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OASES ARGUED AISTD DECIDED
ni THS
SUPEEME COURT
OF THB
UNITED STATES
OCTOBER TERMS, 1807, 1898, IN
171, 172, 173, 174 XJ. S.
•
book: 43,
lawyers' edition,
OoMPLBTB With Head Linb^ Head Notes, statbicbbtb of Oabm^ P^mm abb
▲UTHOBITIBS OF GOUBBEL, FOOT IfOTBS ABD FAEATiTjEL REFBBBBOBi*
BT
STEPHEN K WILLIAMS^ LED.
WITH
""ISrOTES ON XJ. S. R3EPOIIT8"*
BT
WAI/TEB MAUNS ROSE.
THB LAWYBRS* OO-OFBRATIYB PUBLISHINQ OOMFANT.
R0CHS8TBR. NBW YORK.
1001.
.• •
VHB LAWTBB8 OO-OPBRATIYB PUBUBHDfO 00k
Oopfrifffat 1901 by
WALTER MAEJNS ROSS.
Copyright IWl bj
THB LAWYBB8 C04>PBRATiyB PUBLISHING 00.
WALTBR MALIN8 B06B.
■. B. AitDUws PstifTiiro COMPAKT. BocbMter, N. T*
PEEPAOE TO SECOND EDITION.
;pH. itat «i«daieatian. n«riy i^ly y«« .go, of «» United 8t.t« Bupr«. Ooort
Bcports in the Lawyers' Edition, was an event of public importance. It has rfsnlted,
not merely in the increase, bat in the literal multiplication, of the number of lawyers and
Jndfis iHio ofwn and nse this great series of dedsions. It has« therefore, materially ez-
tSBded the <«^im»m*a of those decisions upon the general jurisprudence of the eountry.
Kow the inclusion of Rose's Notes obviously adds great value to these reports.
At the end of each volume of reports, several of which are bound in every book
of this set, will be found Rose's Notes for that volume. These volumes are separated
tj colored sheeta.
289858
JUSTICES
OF THB
SUPREME COURT OF THE UNITED STATES
DURINO THB TIME OF THB8B RBPOBTflL
CHIEF JUSTICE,
HON. MELVILLE WESTON FULLER.
▲SSOCIATB JUSTICES,
HOH. JOHF MaBSHAIX. HABLAKy
Hon. Horace Obat,
Hon. David Josiah Bbbweb,
Hon. Hbnbt Bujjnos Bbowm,
Hon. Geobge Suibas, Jb.,
*
Hon. Eowabd Douglass WhteBi
Hon. Rufus W. Pbckhaic,
Hon. Joseph McKbnha*
▲TTOBNST flBNBRAL,
Hon. John W. Gbxqgs.
■OUCITOB GENEBAL,
Hon. John K. Richabds.
CLERK,
James Hall McKennet, Esq.
BEPPRTEB,
Eon. J. C. Bancbopt Davib.
MARSHAL.
John Montgomery Wrtoht. Esq.
CA8B8 RePOBTSD.
Bailway Go.« Lake Shore k M. 8.« t.
Smith (173U. S. 684) - 868
Louisville, N. A. & C, t. Louis-
ville Bkg. Co. (174 U. S.
552) .... 1081
Louisville, N. A. & C, v. Louis-
vUle Trust Co. (174 U. 8.
552) .... 1081
Louisville, N. A. & C, Louisville
Trust Co. V. • - - 1130
Louisville, N. A. 4( C, Pope v. 814
Mexican C,, v. Marshall (mem.) 1186
Missouri, K. Sl T., v. McOann
(174 U. S. 580) - - 1093
Missouri P., v. Orowell Lumber
A Or. Co. (mem.) - - 1177
Northern P., v. De Lacey (174
U. S. 622) - - - 1111
Northern P., v. Myers ( 173 U. S.
580) .... 564
Pittsburg, C. C. & St L., v.
Montgomery (mem.) • 1188
Pittsburgh, C. C. k St. L., v.
Long Island Loan A T. Co.
(172U. S. 403) - - 528
Pittsburgh, C. C. A St. L., v.
West Virginia Public Works
(172 L. S. 32) - - 854
St. Louis k S. F., v. Barker
(mem.) .... 1181
8t Louie, I. M. A S., v. Paul
(173U. 8. 404) - - 746
Santa F6, P. A P., v. Hurley
(mem.) .... 1183
Sioux City, CN. A W., v. Man-
hattan Trust Co. (mem.) 1180
Sioux City, O'N. k W., v. Man-
hattan Trust Co. (mem.) 1187
Somerset, Pierce v. - • 816
Texas k P., v. Clayton (173 U.
S. 348) • • - 725
Texas A P., New Orleans ▼. • 178
Third Street A S., v. Lewis ( 173
U. S. 457 ) - - 766
Union P., v. Gochenauer (mem.) 1177
Ranlett, United SUtes v. - • 303
Raton, Raton Waterworks Co. ▼. • 1005
Raton Waterworks Co. v. Raton (174
U. S. 360) - - - 1005
Raymond v. New Orleans (mem.) - 1177
Remington Paper Co. v. Watson (173
U. 8. 443) - - . 762
Rhodes v. Mason (mem.) • • • 1184
Richmond, Meyer v. ... 374
V. Southern Bell Teleph. k Teleg.
Co. (174 U. S. 761) - 1102
Rio Grande Dam t L 0>., United
States V. - - - 1186
Rio Grande Irrigation k C. Co. v. Gil-
derslecve (174 U. S. 603) 1103
T. Gildersleeve (174 U. 8. 010) 1106
Roberts, New York, Parke, D. ft 0>., v. 323
Robinson, Choctaw Nation v. - • 1041
Roesd V. Kirk (mem.) - • • H83
Roessler ft H. Chemical Co., United
States V. (mem.) • • 1188
Rogers v. Morgan (mem.) • • 1185
RoseUe, Farmers' Bank v. (man.) • 1180
Ross T. King (mem.) • • 1180
Roy, Duluth ft I. R. R. Co. ▼. • 820
Rodonaa, White v. - • • • 204
Russell V. Steanis (mem.) • • 1170
St. Joseph Union Depot Co., CMoago^
R. I. ft P. R. Co. ▼. (mem.) 1184
St Louis ft 8. F. R. Co. V. Barker
(mem.) .... nsi
St Louis^ I. M ft 8. R. Co. ▼. Paul
(173 U. 8. 404) - - 746
St Louis Min. ft M Co. v. Montana
Min. Co. (171 U.S. 650) 320
Salman Bride ft L. Co. v.Dieck(iiMnk) 1182
Samuel Cupples Wooden Ware Co., Me>
Donald v. • - • 605
San Diego Land ft T. Co. ▼. NttioMl
City (174 U. 8. 789) • 1164
Santa F6, P. ft P. R. Co. v. Hurl^
(mem.) ... 1133
Saville v. American Sugar Ref. Oo.
(mem.) .... 11S4
Sayers v. Burkhardt (mem.) . • • 1183
Scaife v. Western North Carolina Land
Oo. (mem.) ... 1186
Schmidt V. Wnidams (mem.) - -1188
Schofield V. Horse Springs OaUle Co.
(mem.) .... 1177
Schollenberger v. Penosylvmaia 4171
U. 8. 1) • • • 49
Sdiuerman, Jordan v. (mem.) • • 1185
Soott» Beokner v. (mem.; • • 1181
V. Latimer (mem.) • • • 1183
▼. United States ( 172 U. a 343) 471
Scott Counl^ Comrs. v. Kansas
(mem.) - . - - 1187
Sorogffiiis, United States v. (mem.) •1186
Secur% Trust Co. v. Dodd (173 U. 8.
624) - - . • 835
Shailer ft 8. Co., Milwaukee ▼. (mem.) 1188
SUvia, The (171 U. S. 462) - - 241
Simpson v. United States (172 U. 8.
372) .... 482
Sioux City, CN. ft W. R. Co. v. Man-
hattan Trust C6. (mem.)
1180, 1187
Sioux City Terminal R. ft W. Co. t.
Trust Co. of N. A. (173 U.
S. 99) - - - • «28
SldUen v. Ames (173 U. S. 509) - 780
Smith ▼. Allen (173 U. 8. 389) • 741
V. BumeU (173 U. S. 430) - 75«l
Lake Shore ft M. 8. R. Co. ▼. 858
Northern P. R. Co. v. • - 157
Smyth V. •• - • • 197
V. United States ( 172 U. 8. 803 ) 45G
Smyth V. Ames ( 171 U. S. 361 ) • 197
V. Higginson ( 171 U. S. 361 ) • 197
▼. Smith ( 171 U. 8. 361 ) • 197
Sooie^ for 8av., Pratt County Comrm.
V. (mem.) ... 1187
Somerset R. (>>., Pieroe ▼. • • 316
Sonnentheil v. Christian MoerleiA
Brew. Co. (172 U. S. 401) tf2
Sopori Land ft M 0>. t. United Statm
(mem.) . . . • II77
Southern Bell Teleph. ft Teleg. (kK,
Richmond v. - • • im
Southern P. R. Co., Allen v. • • 775
Spalding, Cceur D'Alene Ry. ft N. Oou
V. (mem.) - - 1187
Spratley, Connecticut Mui. L. Ins. Oo.
V. - • • • •
Cabbs Ebpobtbd.
Springfield Safe Depoeit k T. Co^ At-
tica ▼. (mem.) - - 1179
Spnrr ▼. United States ( 174 U. S. 728) 1150
Standard Elevator Oo. v. Crane Eleva-
tor Co. (mem.) • • 1184
8Uik T. United States (mem.) - 1177
State Bank v. Chicago Title A T. Co.
(mem.) .... 1185
Statfller, OiJifom^ Na/t. Bank ▼. • 233
Steams, RuaseU ▼. (mem.) - 1179
Steiiiwender y. The Mexican Prince
(mem.) - - - - 1187
Stephens t. Cherokee Nation (174 U.
S. 445) - - • - 1041
Stevens, Central Nat. Bank ▼. . - 97
Stewart, Morris v. (mem.) • • 1180
Stone ▼. Bank of Commerce (174 U.
S. 412) - - - 1028
v. Bank of Kentucky (mem.) 1187
▼. Bank of Louisville (174 U.
S. 439) - • - - 1039
Citizens' Nat Bank v. - • 1037
T. Deposit Bank (mem.) • 1187
T. Farmers' Bank (174 U. 8.
409) .... 1027
Fidelity Trust & S. V. Co. v. 1034
First NaL Bank v. - - - 1038
▼. Louisville Bkg. Co. (mem.) 1187
Louisville Trust Co. v. • - 1034
Third Nat. Bank V. - - • 1035
Storrow v. Texas Consol. C. ft M. Co.
(mem.) • - • 1187
Stnther t. United States (172 U. S.
303) 456
Storm, Chicago, R. L ft P. R. Co. v. 1144
Sidphiir Mines Co., C%app^ Chemical
ft F. O. V. . - 617, 520
flu las. Office, Kiesel t. (mem.) • 1179
T.
TWylor .▼. Louisville ft N. R. Co.
(mem.) - - - 1182
Tennessee Coal, 1. ft R. 0>., Pierce ▼. 591
Terminal R. Asso., Bosworth v. - • 941
Taas ft P. R. Co. v. C^layton (178
U.S. 348) - • - 725
New Orleans v. • • - 178
Texas Consol. C. ft M. Co., Storrow
V. (mem.) - - - 1187
Third Nat Bank, Louisville v. - 1037
V. National Bank (mem.) • 1178
V. Stone ( 174 U. 8. 432) • - 1035
Third Street ft S. R. Co. v. Lewis ( 173
U. S. 457) . - - 766
Thiomas, California Nai. Bank v. - 231
OhioT. • - • • 699
Thompson v. Missouri (171 U. S. 380) 204
Tide Water Oil Co. v. United States
(171U. S. 210) - • 139
Tinsley v. Anderson (171 U. S. 101) 91
Tod, Hubhard V. .... 246
ToUeston Civib v. (^kni^ (mem.) • 1179
Toweon v. Moore ( 173 U. S. 17 ) - 597
Travis County v. King Iron Bridge
ft M. Co. (mem.) • • 1187
Wade V. - - • - 1060
Treat, Andersen v. • • • • 351
Trenton, McQuade t. • • • 581
Trust Co. of N. A., Sioux City Tmi^^Aul
R. ft W. Co. V.
Turner v. Wilkes County Comra. (17S
U. S. 461) . • • .
U.
768
Union P. R. Co. v. Cochenauer (mem.)
1177
United States v. Alaska Packers' Asso.
(mem.) ...
1188
T. Albuquerque (mem.) •
• 1178
Anderson v. •
300
T. Bacharach (mem.)
» 1188
T. Bliss (172 U. S. 321)
463
Boebyshellv, (mem.)
* 1186
Brown v. - - • •
312
Bryan v. (mem.)
▼. Buffalo Natural Gas Fuel Co
• 1187
(172 U. S. 339) •
469
Camou V. -
> 163
V. Carter (mem.) - • •
1186
Chaplin v. (mem.) •
> 1182
V. Coe (174 U. S. 578) •
1002
Collier v.
- 621
Curleyv. ....
312
Davis V. (mem.)
1182
Dean Linaeed Oil 0>. v. (mem.)
1181
Drexel v. (mem.)
1186
v. Dudley ( 174 U. S. 670)
• 1129
T. Duell (172 U. a 576)
559
Dunlap ¥.--••
616
Ely V.
* 142
V. Fallowell (mem.)
1186
Fax(m ¥.--•••
* 151
Fuller ▼. (mem.) • • •
1182
Oallot ▼. (mem.)
. 1179
Gardes v. (mem.) • • •
1179
Gold V. (mem.)
* 1179
▼. Harsha (172 U. a 667) •
556
T. Uayden (mem.) •
* 1184
▼. Hittson (mem.)
1186
Hoeninghaus v. •
V. Hood (niem.) • . •
• 576
1181
Hoi^ins V. . . • .
Hubbell V. - - . •
> 290
136
T. Ii«ram (172 0. 8.327)
• 465
Ingwersen v. -
786
Irvine v. (mem.)
- 1179
y. Jennings (mem.)
1186
V. Johnson ( 173 U. S. 363 )
> 731
T. Joint Traffic A^so. ( 171 U. 8
595) ....
259
Keck V. • - . . ,
> 505
T. Kidder (mem.)
1182
Kirby v.
> 890*
V. Krall (1.74 U. S. 385) -
1017
▼. Leatherwood (mem.)
- 1180
▼. Loughr^ ( 172 U. S. 206) -
420
T. McCracken (mem.)
- 1186
MacDaniel v. (mem.) •
1179
▼. Madcey (mem.) -
• 1186
y. Maish (171 U. S. 242)
150
Martinez v. (mem.)
' 1177
V. Matthews (173 U. & 381) •
738
Medbury v. - - • •
• 779
V. Morgan (mem.)
1183
Morris v.
> 946
y. Navarre (173U. S. 77) •
620
y. New York Indians ( 173 U. &.
464) . . - .
• 769
9
CA8B8 RePOBTBD.
United States, North American Com-
mercial Oa V. - -
Oakee v - • - • •
V. One' Distillery (174 U. S.
149) ....
Otero V. (mem.) • • 1177,
Perrin v. - • • .
Pounds ¥.-•••-
Price V. -
V. Ranlett (172 U. S. 133) -
y. Rio Grande Dam &, I. Co.
(174 U. S. 690) -
▼. Roessler & H. Chemical Co.
(mem.) ...
Soott ¥.---•
y. Scroggins (mem.)
Simpson v. - - •
Smith V. - • •
Sopori Land & M. Co. v. (mem.)
Spurr V. -
Staric y. (mem.) •
Strather v.
y. The Catalina ( mem. ) -
y. The Miguel Jover (mem.)
Tide Water Oil Co. v. -
y. Van Iderstine (mem.) -
y. WardweU (172 U. S. 48)
Winston v. - - -
y. Woody (n^em.) -
Yerke v. - -
Adriaano, y Alvey (mem.)
Bernardin, y. Duell (172 U.
676) ....
United States Nat Bank, Auten y.
United States Trust Co., New Mexico
407,413,
Utter y. Franklin (172 U. S. 416)
V.
s
y.
9S
1169
929
1173
169
62
1011
393
1130
1188
471
1186
482
456
1177
1150
1177
456
1178
1178
139
1181
S60
456
1186
760
1185
559
920
1079
498
Van Dusen, Pierce y. (mem.) • - 1184
Van Iderstine, United States y. (mem.) 1181
Venner v. Farmers' L#oan k T. Co.
(mem.) . - • - 1185
Violet, Calhoun v. - • • • 614
Virginia, McCullough y. • • • 382
W.
Wade y. Travis Cotmty (174 U. 8.
499) .... 1060
Wadley, Harkrader y. . . . 399
Walker, Briggs v. - • •• -243
Walla Walla v. Walla Walla Water Co.
(172 U.S. 1) - - - 341
Walla Walla Water Co., Walla Walla
V. 841
Walrath y. Champion Min. Co. (171 U.
S. 29t) > • • • 170
Ward, Ex parte (173 U. S. 452) • 761
Wardwell, United SUtes y. - • 360
Warner, New Orleans v. (mem.) • • 1179
Washington & G. R. Oow y. Grant
(mem.) - - - - 1177
Washington Beneficial £ndowmenik
Asso., Gilbert y. (man.) 118S
Washington Gaslight Co. y. Tjamwlm
(172 U. S. 534) - - 643
Washington Market Co. v. Diatriet of
Columbia (172 U. 8. S61) 478
Watson, Holden y. (mem.) • • 1181
Remington Paper Co. y. • •762
West Co. y. Lea ( 174 U. S. 590) . • 1098
Western North Carolina Land Co.,
Scaife y. (mem.) - • 1186
Western Unicm Beef Co., Mullen y. • 635
West Virginia Public Works, Pitts-
burgh, C. C. & St. L. R. Co.
y. 354
Wheeler y. McBlair (mem.) • -1182
y. The LaBourgogne (mem.) • 1181
White y. Berry (171 U. S. 366) - • m
y.BuUer (171 U. S. 379) • 204
y.Leovy (174U. S. 91) - • 907
y.Ruekman (171 U. S. 379) • 204
Whittier v. Packer (mem.) - - 1187
Wiggs, Chickasaw 'Nation y. • • 1041
WMlkes Coun^ Comrs., Turner y. • 768
Williams y. Georgia (mem.) • • 1177
McDonald y. - • • • 1022
Schmidt y. (mem.) • • 1188
Williamson, King y. (mem.) • • 1183
Wills y. Jones (mem.) ... 1183
Wilson, Coyington & C. Elov. R. ft T. 4
B. Co. V. (mem.) - - 1178
y. Eureka City (173 U. S. 32) 603
Winney, Cosgrove y. - - - -897
Winston y. United States ( 172 U. &
303) - • • • 456
Wood, McCook y. (mem.) . - • 1183
Woodfin y. Hampton & O. P. R, Co.
(mem.) . . » . ngj
Woody, United SUtes y. (mem.) • 1186
Y.
Yellow Poplar Lumber Co., Chapman y.
(mem.) .... 1186
Yerke y. United States ( 173 U. a 489) 760
Yot Sang, Jurgens y. (mem.) • • 1180
Young y. Amy ( 171 U. S. 179) • • 127
Z.
Zieeler, Lake Street R. Oo. y. (mem.)
ZecScendorf y. Zeckendorl (man.) •
1181
1179
CITATIONS
W OPINIONS OP THE JUDGES CONTAINED IN THIS BOOK.
Aberdeen Bank v. Chehalis County, 166
U. S. 440 (41 : 1069) . . . .673, 675
Abraham y. Plestoro, 3 Wend. 538, 20
Am. Rep. 738 837
Aeoomac, The, L. R. 15 Prob. Div. 208, 240
Adams Express Co. v. Kentucky, 166 U.
S. 175 (41 : 962) 853, 855
▼. Ohio, 165 U. S. 194 (41: 683)
326 902
T.Ohio State Auditor,' ieeil. S.'
186 (41: 185) 903
Adeline, The, 9 Cranch, 244 (3:719) 1076
A D. Patchin, The, 1 Blatchf. 414. .. . 416
Agar y. AthensBum Life Assur. Soc
(1858) 3 C. B. N. S. 725. . 1091
Agnes I. Grace, The, 49 Fed. Rep. 662,
2 U. S. App. 317 416
Ainsa t. United States, 161 U. S. 208
(40: 673) 147-151
V. United States, 171 U. S. 220
(43: 142) 161
Alacrity, The Steamer, 11 Revue Inter-
nationale, 123 134
Albrecht v. Treitschke, 17 Neb. 205. .. . 1147
Albright y. McTighe, 49 Fed. Rep. 817 552
Alderson y. Ames, 6 Md. 52 603
Alert, The, 56 Fed. Rep. 721 416
Alexander v. Bryan, 110 U. S. 414 (28:
195) 213
Allegheny City v. Reed, 24 Pa. 39 960
Allen V. Baltimore & O. R. Co. 114 U. S.
311 (29:200) 541
y. Northern Pacific R. Co. 6
Land Dec. 620 1116
AUerton y. Belden, 49 N. Y. 373 258
Allgeyer y. Louisiana, 165 U. S. 578
(41:832) 288,300
.Alliance Bank, Ex parte (1868) L. R.
3 Ch. note p. 773 650
AUore y. Jewell, 94 U. S. 506 (24 : 260) 612
American Gonstructi(m Co. y. Jackson-
yiUe, T. & K. W. R. Go. 148
U. S. 372 (37-- 486) 931
American Fertilizer Co. y. North Caro-
lina Bd. of Agri. 43 Fed.
Rep. 609, 11 L. R. A. 179, 3
Inters. Com. Rep. 532 192
American Ins. Co. y. (356 Bales of Cot-
ton) Canter, 1 Pet 511 (7:
242) 501
American Loan & Trust Co. y. Minneso-
ta & N. R. Co. 157 ni 641. 1088
AmiTUmn Pub. Co. y. Fisher, 166 U. S.
464 (41: 1079) 800
y. Kansas [Johnston] (1884) 111
U. S. 449 (28:482) 876
Amory y. Francis, 16 Mass. 308 (1820)
644, 654, 666
Anderson y. Carkins, 135 U. S. 483
(34:272) 322
v.City of Wellington, 40 Kan.
173,2 L. R. A. 110 605
y. Santa Anna, 116 U. S. 356
(29: 633) 601
Andrews y. Clerke, Carth. 25 1146
y.Hovey (1888) 124 U. S. 694
(31:557) 888
v.Swartz, 156 U. S. 272 (39:
422) 404, 1183
Anheuser-Busch Brewing Asso. y. Mor-
ris, 36 Neb. 31 504
Anonymous, 6 Mod. 231 899,390
Antoni y. Greenhow, 107 U. S. 769 (27 :
468) 383,390
Antonio y. Wright, 22 Gratt 833.-383,384
Apollon, The, 9 Wheat. 362 (6: 111)
1076,1139
Appeal Tax Court y. Baltimore Ceme-
tery Co. 50 Md. 432 412
Arapahoe County Comrs. y. [Mclntire],
State Board of Equaliza-
tion, 23 Colo. 137 636
Ard y. Brandon, 156 U. S. 537 (39:
624) 822
Argentine Min. Co. y. Terrible Min. Ca
122 U. S. 478 (30: 1140) .85, 175
Arkansas Valley Land & C. Co. y.
Mann, 130 U. S. 69 (32:
854) 312
Armstrong y. American Exchange Nat.
Bank (1889) 133 U. S. 433
33:747) 1124, 1127
V.Morrill, 14 Wall. 120 (20:
765) 218
y.Toler (1826) 11 Wheat. 258
(6:468) 1124, 1127
Amdt y. Griggs, 134 U. S. 316 (33:
918) 814
Arnold v. Mundy, 6 N. J. L. 1, 10 Am. '
Dec. 356 957
▼.United States, 9 Cranch, 104
(3: 671) *516
Arredondo Case, 6 Pet. 691 (8: 647) . . 144
Arthur, The (1814) Dodson, 423 1068
Ateheson y. Mallon, 43 N. T. 147, 3 Am.
Rep. 678 1121, 1122, 1123
Atehison y. Peterson, 20 Wall. 607
(22:414) 1018
Atehison & Neb. R. R. Co. y. Baty, 6
Neb. 37, 29 Am. Rep. 356. . 918
Atehison, T. & S. F. R. Co. y. Stenford,
12 Kan. 354, 15 Am. Rep.
862 9U
II
CiTATIONa.
Athenaeum Life Assur. Society, Be
(1858) 4 Kav & J. 549. . . . 1091
Athertcm v. Fowler, 96 U. S. 513 (24:
732) 83
Atkinson y. Jordan, 5 Ohio, 293 839
Atlantic & G. R. Co. v. Georgia, 98 U.
8. 359 (25: 185) 682, 844
Atlantic Qty Waterworks y. Atlantic
City, 48 N. J. L. 378 347
Atias, The, 93 U. S. 302 (23 : 863) .... 806
Attila, The, Cook's Ca. 196 805
Attorney General y. Earl Clarendon,
17 Ves. Jr. 491 203
▼. £>di8on Teleph. Co. L. R. 6 Q.
B. Diy. 244 1167
y.Old Colony R. Co. 160 Mass.
62, 22 L. R. A. 112 864
Ayer y. BarUett, 9 Pick. 156 422
Ayers, Re, 123 U. 8. 443 (31:216)
383,406,540
Babcock, Re, 3 Story, 393 656, 657
Badirack y. Norton, 132 U. 8. 337 (33:
377) 494
Bacon y. Texas, 163 U. 8. 207 (41:
132) 345, 387, 391, 582
Badow y. Salter, Wm. Jones, 65 739
Bailey y. United States, 109 U. S. 432
(27:988) 754
Bain y. Sadler, L. R. 12 Eq. 570 653
Baker y. Cummings, 169 U. S. 189 (42:
711) 601
▼. Grioe, 169 U. S. 284 (42:
748) 96, 542, 543, 702
y. Whiting, 3 Sumn. 475 612
Baldwin y. Kansas, 129 U. S. 52 (32:
Q4()\ 526
Ball y. HalseU, 161 U.* S. 72 * (40*: 622) 753
y. United States, 140 U. S. 118
(35:377) 766
Balme y. Button, 9 Bing. 471 428
Baltimore, The, 8 Wall. 382 (19: 464) 759
y. McKin, 3 Bland, Ch. 468 961
Baltimore & O. R. Co. y. Harris, 12
Wall. 66 (20: 354) . . . .575, 1087
V.Wheeler, 1 Black, 286 (17:
130) 1092
Baltimore & P. R. Co. y. Hopkins, 130
U. S. 210 (32:908) 874
Bank of Augusta y. Earle, 13 Pet. 519
(10:274) 441
Bank of Columbia y. Okely (1819) 4
Wheat. 235 (4: 559) . . . .880, 881
y. Roes, 4 Harr. & McH. 456. . . 880
Bank of Commerce y. Seattle, 166 U.
S. 463 (41: 1079) 675
y. Tennessee, 161 U. 8. 146 (40:
649) 857
Bank of Hamilton y. Dudley's Lessee, 2
Pet. 492 (7:496) 800
Bank of Louisville v. Lockridge, 92 Ky.
472 653
Bank of Redemption v. Boston, i25 U.
S. 60 (31:689) 857
Bank of the State v. Cooper, 2 Yerg.
599, 24 Am. Dec. 517 224
Banlf of United States v. Donnally, 8
Pet. 361 (8:974) 1147
Bank Tax Oases, 97 Ky. 697 844, 846
Barber v. Abendiroth Broe. 102 N. Y.
406, 66 Am. Rep. 821 768
It
Barbier v. Connolly, 113 U. S. 27 (28:
923) 912
Barclay v. Howell's Lessees, 6 Pet. 498
(8:477) 964,971,979
Barden v. Northern P. R. Co. 154 U. S.
288 (38:992) 568
V. Northern P. R. Co. 145 U. a
535 (36:806) 1112
Barker v. Furlong [1891] 2 Ch. 172. . 426
Barnes v. l^er, 56 Vt. 469 449
Bamett v. BLinney, 147 U. S. 476 (37:
248) 887
Bam^ V. Baltimore, 6 Wail. 280 (18:
825) 688, 1007
V.Keokuk, 94 U. S. 339 (24:
228) 964
Barreda v. Silsbee [1858] 21 How. 146
(16:86) 876
Barrett v. United States, 169 U. 8. 218
(42:723) 105
Barron v. Bumside, 121 U. 8. 186 (30:
915) 1 Inters. Com. Rep.
295 438,439
Barrow Steamship Co. v. Kane, 170 U.
S. 100 (42:964)
438, 439, 575, 1087
Barry v. Edmunds, 116 U. S. 550 (29:
Y29 ) 883
Barth v. Backus,' 140 N. Y. 230, 23 ll
R. A. 47 838, 839
Basey v. Gallagher, 20 Wall. 682 (22:
454) 1018
Bassett v. El Paso, 88 Tez. 175. .1062, 1064
Bates, Re, 118 HI. 524, 59 Am. Rep. 383 643
Bath Gaslight Co. v. Claflfy, 151 N. Y.
24, 36 L. R. A. 664 113
Bauman v. Ross, 167 U. S. 548 (42:
270) 447,454
Bausman v. Dixon, 173 U. S. 113 (43:
633) 817
Beach v. Wakefield [1898] 76 N. W.
688 682
Beard v. Federy, 3 Wall. 478 (18: 88) 428
V. Hopkinsville, 95 Kj. 239,23
L. R. A. 402 349
V. Rowan, 9 Pet 301 (9: 136) . . 765
Bearse v. Three Hundred &, Forty Pigs
of Copper, 1 Story, 314 416
Beebe v. Robinson, 52 Ala. 66, 203
v. Russell, 19 How. 283 (15:
668) , 234
Beers v. Beers [1823] 4 Conn. 535, 10
Am. Dec 186 883
Beisenthal, Re, 14 Blatdif. 146 1100
Belding v. Pitkin (1804) 2 CaL 147a. . 1123
Belk v. Meagher, 104 U. S. 270 (26:
735) 82
Bell's Gap Rd. Co. v. Pennsylvania, 134
U. S. 232 (33:892) 224
Belt, Re, 159 U. S. 95 (40: 88) 946
Bender v. Damon, 72 Tex. 92 813
Benites v. Hampton, 123 U. S. 619 (31 :
260) 580
Benjamin v. Hilliard, 23 How. 149 ( 16 :
518) 695
Bennet, Ex parte, 2 Atk. 527 6S7
Bennett v. Himter, 9 Wall. 326 (9:
672) 219
Bergemann v. Backer, 157 U. S. 656
(39: 845) 96, 404, 765, 1183
Berry v. Fletcher, 1 Dill. 67 660
Berry Bros. v. Nelson Davis 4 Co. 77
Tex. 191 1146
Citations.
BcK The, L. R. 9 Prob. Div. 134.... 806
Bi^neil ▼. Comstock, 113 U. S. 149
(28:962) 603
Biddle ▼. Commonwealth (1825) 13
Serg. & R. 405 882
Bigelow, Ex parte, 113 U. S. 328 (28:
1005) 315, 946
Billon V. Hyde, 2 Ves. Sr. 330 428
Birmingham v. Anderson, .48 Pa. 258 . . 964
Black V. Black (mem.) 163 U. S. 678
(41:318) 1183.
▼. Elkhorn Min. Co. 163 U. S.
449 (41:223) 76,322
T.Zacharie, 3 How. 483 (11:
690) 837
•BUggey. Balch, 162 U. S. 439 (40:
1032) 246, 755
Blair ▼. St Louis, H. & K. R. Co. 25
Fed. Rep. 684 1092
Blake ▼. Mcaung, 172 U. S. 239 (43:
432) 654
y. Williams, 6 Pick. 286, 17 Am.
Dec. 372 837,1146
Blythe Co. v. Blythe (mem.) 172 U. S.
644 (43: 1183) 785
Boardman, Re, 169 U. S. 39 (42: 653) 354
Bock ▼. Perkins, 139 U. S. 628 (35:
314) 494
Boese v. King, 78 N. Y. 471 840
V.King, 108 U. S. 379 (27:760) 1100
Bogert ▼. Elizabeth, 27 N. J. Eq. 568. . 449
Boggs V. Vamer, 6 Watts & S. 473 312
Bohall ▼. Dilla, 114 U. 6. 47 (29: 61). 822
Bolles y. Brimfield, 120 U. S. 759 (30:
786) 501
Bondies ▼. Sherwood, 22 How. 214 (16:
238) 415
Booth V. aark, 17 How. 322 (15: 164) 837
▼. Commonwealth, 16 Gratt. 519 390
▼. Hodgson [1796] 6 T. R. 406. .
1123, 1124
Bors V. Preston [1884] 111 U. S. 252
(28:419) 876
Boston Beer Co. v. Massachusetts, 97 U.
S. 25 (24:989) 348
Bostwick ▼. Brinkerhoff, 106 U. S. 3
(27:73) 468
Bowden, Ex parte, 1 Deacon & C. 135. . 657
Bowen v. Evans, 2 H. L. Cas. 257 613
Bowman v. Chicago & N. W. R. Co. 125
U. S. 465 (31:700) 1 In-
ters. Com. Rep. 823 67
Boyoe's Exrs. v. Grundy, 3 Pet. 210
(7:655) 346
Boyd ▼. Alabama, 94 U. S. 645 (24:
302) 348, 576
Bradbury v. Sharp, W. N. [1891] 143 907
Bradford v. Tappan, 11 Pick. 76 840
Bradley v. People [1866] 4 Wall. 469
(18:433) 856
Brady v. Mayor, etc, ol Brooklyn, 1
Barb. 684 124
Brandies y. Cochrane, 106 U. S. 262
(26:989) 404
Brashear v. West, 7 Pet 608 (8: 801) 839
Braasej y. Dawson, 2 Strange, 978 423
Brawl^ y. United States, 96 U. S. 173
(24:624) 484
Bridge y. Cage, Cro. Jac 108 739
Bridge Pn^rietors v. Hoboken Land 4
Improv. Co. 1 Wall. 116
(17:571)
368, 368, 385, 388, 526, 666
Briggs y. Spaulding, 141 U. S. 132 (S5:
662) 928
v. Walker, 171 U. S. 466 (43:
243) . ., 744, 756
Brimmer v. Rebman, 138 U. S. 78 (34:
862) 3 Inters. C^m. Rep.
485 68, 330
Brine v. Hartford F. Ins. Co. 96 U. S.
627 (24:858) 477
Brinkerhoff v. Aloe, 146 U. S. 515 (36:
1068) 1060
Broadstreet v. Clark, D. & C. M. & St
P. R. O). 66 Iowa, 670 1147
Broder v. Natoma Water & M. Co. 101
U. S. 274 (26:790)
76,1018,1142
Bromley y. Goodere, 1 Atk. 75
650, 653, 666
Bronson v. Schulten, 104 U. S. 417 (26:
800) 1106
Brooks y. Martin [1863] 2 Wall. 70
(17:732) 1124, 1128
y. Stmr. Adirondadc, 2 Fed. Rep.
387 416
Brothers y. Hurdle, 32 N. C. ( 10 Ired.
L.) 490, 61 Am. Dec. 400. . 424
Brown y. Godfrey, 33 Vt 120 739
y. Houston, 114 U. S. 622 (29:
257) 805
y. Maryland, 12 Wheat 446 (6:
688) 67, 196, 297
326,328, 330, 713,793
• T. Piper, 91 U. S. 37 (23: 200)
1060, 1139
y. United States, 171 U. S. 631
(43:312) 1054
Browne v. Kennedy, 5 Harr. & J. 196,
9 Am. Dec. 503 958, 961
Buchanan y. Litchfield, 102 U. S. 278
(26: 138) 349,694,697
Bucher v. Cheshire R. Co. 125 U. S. 555
(31: 795) 1004
Buck y. Colbath, 3 Wall. 334 (18:
257) 404, 494
V. Panabaker, 32 Kan. 466 627
Buckingham v. Corning, 91 N. Y. 525 258
Buell V. Chapin, 99 Mass. 594, 97 Am.
Dec. 58 1110
Bunting y. Danville, 93 Va. 200 379
Buras v. O'Brien, 42 La. Ann. 528 909
Burfenn|ng y. Chicago, St. P. M. & 0.
R. Co. 163 U. S. 321 (41:
175) 91
Burgees y. Seligman, 107 U. S. 20 (27:
359) 1064
Burke, Re, 76 Wis. 357 766
Burlington Water Co. y. Woodward, 49
Iowa, 58 360
Burnett y. Thompson, 61 N. C. (6
Jones, L.) 120 423,429
Burnham y. Bowen, 111 U. S. 776 (28:
596) 942
Burrill y. Nahant Bank, 2 Met. 163, 36
Am. Dec 396 1091
Burrows v. Brooks, 113 Mich. 307, 71
N. W. 460 918
Busch y. Neeter, 62 Mioh. 381, 70 Mich.
525 423,428
Butcher's Union S. H. & L. S. L. Co. v.
Crescent City L. S. L. & S.
H. Co. Ill U. S. 746 (28:
686) 348, 676
13
CiTATIOMS.
Butler V. Baker, 3 Ck)ke, 25 427
V.Gage, 138 U. S. 52 (34: 869) 378
Butt V. Stinger [1832] 4 Cranch, C. C.
252 884
Butterworth v. [United States], Hoe,
112 U. S. 50 (28: 656) 562, 663
Buxton y. Traver, 130 U. S. 232 (32:
920) 161
C.
Cairo & F. R. R. Co. ▼. Turner, 31 Ark.
494 163
Caider y. BuU, 3 Dall. 386 (1 : 648) . .
206, 916, 1055
Caledonia, The, 157 U. S. 124 (39:
644) 131
California y. California P. R. Co. 127
U. S. 39 (32: 157) 2 Inters.
Com. Rep. 153 711
y. San Pablo 2k T. R. Co. 149 U.
S. 308 (37:747) 934
California Nat Bank y. Kesinedy, 167
U. S. 362 (42: 198)
. .504, 559, 663, 1009, 1010, 1089
California Powder Works v. Davis, 151
U. S. 389 (38:206) 519
Callan v. WUson [1888] 127 U. S. 540
(32:223) 874, 879
Calliope, The [1891] A. C. 11 769
Calton v. Utah, 130 U. S. 83 (32: 870) 459
Camou y. United States, 171 U. S. 277 *
(43: 163) 169,1093
Campbell v. Arnold, 1 Johns. 511 422
V. Innes, 4 Bam. & Aid. 426 1126
V. United States, 107 U. S. 407
(27:592) 618, 619
Canada Shipping Co. y. British Ship-
owners* Mut* P. Asso. L. R.
23 (J. B. Diy. 342 240
Canajoharie Nat. Bank v. Diefendorf,
. 123 N. Y. 191, 10 L. R. A.
67Q 495
Canal Street, Re, 11 Wend. 156 448
Cannon v. Pratt, 99 U. S. 619 (25:446) 316
Canova, The, L. R. 1 Adm. & Ecd. 54. . 417
Capital Bank v. Cadiz Bank, 172 U. S.
425 (43: 502) 778, 843
y. (>)ldwater Nat. Bank, 49 Neb.
786 604
v. First Nat Bank of Cadiz, 172
U. S. 425 (43: 502)... 634, 667
Capital Traction Co. v. Hof, 24 Wash.
L. Rep. 646 887
Cardwell v. American Bridge Ca 113 U.
S. 205 (28:959) 706
Carey v. Houston & T. C. R. Co. 160 U.
S. 170 (37: 1041), 161 U.S.
115 (40:638) 816, 1183
Cargo ex Woosung, The, L. R. 1 Prob.
Div. 260 417
Carib Prince. The, 170 U. S. 655 (42:
1181) 243
Carleton v. Franconia Iron & S. Co.
99 Mass. 216 758
Carmichael v. Liverpool Sailing Ship-
owners* Mut I. Asso. L. K.
19 Q. B. Div. 242 243
Camig V. Carr, 167 Mass. 544, 35 L. R.
A. 512 595
Carper v. Fitzgerald, 121 U. S. 87 (30:
882^ 404
14
Carr y. Gordon, 82 Fed. Rep. 373 203
CarroU County y. Smith, 111 U. S. 556
(28:517) 6M
Canon Park, The, L. R. 15 Prob. Div.
203 133, 134, 135
Carson y. Memphis & C. R. Co. 88 Tenn.
646, 8 L. R. A. 412 1147
Carson City Gold & S. Min. Co. v. North
StarMin. Cow 73 Fed. Rep.
597 87
Carter y. Greenhow, 114 U. S. 322 (29:
204) 88S
Castillo y. McConnico, 168 U. S. 674
(42:622) 765
Catlin y. Wilcox SUver-Plate Co. 123
Ind. 477, 8 L. R. A. 62. .838, 846
Central Bank of Brooklyn v. Hammett,
50 N. Y. 158 927
Central Land Co. v. Laidley, 159 U. S.
112 (40:95)
387, 391, 765, 768, 769
Central P. R. Co. v. Hunsaker, 27 Land
Dec. 297 1116
y. Nevada, 162 U. S. 512 (40:
1057) 667
Central Transp. Co. v. Pullman's Pal-
ace Car Co. 139 U. S. 24
(35:55)71,633, 1010, 1089,1090
y. Pullman's Palcuse Car Co. 171
U. S. 138 (Adv. S. 1897,
897) 1089
Chaffee County v. Potter, 142 U. S. 355
(35: 1040) 696, 697, 698
Ohaffin y. Taylor, 116 U. S. 671 (29:-
728 ) 88S
Chancellor, The, 4 Ben. 153. .!...!.. ! 804
Chapman v. Escar, 1 Smale & G. 676. 65S
y. Royal Netherlands Stecun
Navigation Co.L.R. 4 Prob.
Div. 157 807
Chappell y. Bradshaw, 128 U. S. 132
(32: 369) 626
Charleston & S. Bridge Co. y. Kanawha
County Ct. 41 W. Va. 658. . 869
C^ase y. Jefferson, 1 Houst (Del.) 267 188
y. Smith [1830] 4 Cranch, C. a
90 ggy
y. United States, i 55 U.S. 489
(39:234) 557, 676
Cheaney y. Hooser,* 9 B. Mon. 330
[1848] 882
Cheely v. Clayton, 110 U. S. 702 (28:-
298) 129
Chemical Nat Bank y. Armstrong, 16
U. S. App. 465. . . .642, 644, 668
Cherokee Nation y. Georgia, 6 Pet. 1
(8:25) 1065
y. Southern K. R. Co. 135 U. S.
641 (34:295) . . .708,861,1056
Chesapeake & P. Teleph. Co. v. Balti-
more & O. Teleg. Co. 66 Md.
399, 59 Am. Rep. 167 1167
Chetwood, Re, 165 U. S. 443 (41:-
782) 96, 926
Chicago y. Sheldon, 9 Wall. 50 (19:-
V. Taylor, 125 U. S. 161 (31:-
638) 879
Chicago & A. R. (Do. v. Goodwin, 111
111. 273, 53 Am. Rep. 622. . 168
V. Union Rolling Mill Co. 109
U. S. 702 (27: 1081) 112
CiTATIOMB.
Cyeago 4 O. T. R. Co. ▼. Wellman,
143 U. S. 339 (36: 176; 860, 1160
Oiiciigo & N. W. R. Ck). v. Osborne, 146
U. S. 354 (36: 102) 1182
▼. Whitton, 13 Wall. 270 (20:-
571) 1087
Chicago, B. & Q. R. Co. V. Chicago, 166
U. S. 226 (41:979)
369, 378, 440, 447, 667, 831,
876, 877, 913, 1160
▼. Moore, 81 Neb. 629 1147
Chicago, D. & V. R. Co. v. Fosdick,
106 U. S. 47 (27:47) 934
Chicago, K. & W. R. Co. v. Pontius, 157
U. S. 209 (39: 675) 913
Chicago Life Ins. Co. v. Needles, 113
U. 8. 574 (28 : 1084) 582
Chicago, M. & St P. R. Co. v. Crawford
County Supers. 48 Wis. 666 412
T. Minne8oU,134 U. S. 418 (33:-
97Q) 3 Inters. Com. Rep.
209 1158
V. Solan, 169 U. S. 133 (42: 688) 706
Chicago, R. I. & P. R. Co. v. Houston,
95U. S. 697 (24: 542).... 1016
Chicago, St, L. & N. O. R. Co. v. Moss,
60 Miss. 641 917
Chicot County ▼. Sherwood, 148 U. S.
529 (37:546) 438
Choctaw Nation v. United States, 119
U. S. 1 (30: 306) 1056
Christmas y. Russell, 5 Wall. 290 (18:-
475) 812
Christy, Re (Ex parte City Bank) 3
How. 314 (11: 613)
649, 651, 656
V. Pridgeon, 4 Wall. 196 (18:-
322) 1064
Church ▼. Chambers, 3 Dana, 274 831
Church of Holy Trinity v. United
Stotes, 143 U. S. 457 (36:-
226) 755
Cincinnati, N. O. & T. P. R. Co. ▼. In-
terstate Commerce Commis-
sion, 162 U. b. 184 (40:-
935) 5 Inters. Com. Rep.
"91 711
Cincinnati P. B. S. & P. Packet Co. v.
Catlettsburg Trustees, 105
U. S. 559 (26: 1169) 297
CitizeoB* Sav. Bank v. Owensboro, 173
U.S. 636 (43:840) 851,1028,
1031, 1033, 1035, 1036, 1037,
1038, 1040, 1041
Ci^ of Boston ▼. Lecraw, 17 How. 426
(15: 118) 979
City of Brenham v. Brenham Water Co.
67 Tex. 642 847
Oitf of Burlington ▼. Quick, 47 Iow»,
222 , 668
City of (Chicago ▼.* Trotter, 136 lU. 480 606
City of Cincinnati ▼. White, 6 Pet 432
(8:453) 964
City of Cleveland v. Wide, 18 Ohio St
304 461
City of Cordngton ▼. Kentudcy, 173 U.
S. 231 (48:679) 844,849
Ohj of Detroit ▼. Detroit City R. Co.
55 Fed. Rep. 569 112
City of Janesville v. Carpenter, 77 Wis.
288, 8L. R. A. 808 918
City of Louisville v. Third Nat Bank,
174 U. S. 435 (43: 1037)
1038, 1040
City of New Haven v. Fair Haven &
W. R. Co. 38 Conn. 422 412
City of Terrell v. Dessaint, 71 Tex. 770
t'l^^^J ••• 1062
City of Winona v. Huff, 11 Minn. 119 412
Claflin V. Farmers' 4 C. Bank, 26 N.
Y. 293 927
Clapp V. Trowbridge, 74 Iowa, 550. ... 311
Clark V. Barnard, 108 U. S. 436 (27:-
780) 1087
V. Kansas City, 172 U. S. 334
(43:467) 1185
V. Keith, 106 U. S. 464 (27:-
302) 772
V. Smith, 13 Pet 195 (10: 123) 477
V. Wilson, 103 Mass. 219, 4 Am.
Rep. 532 422
Clarke y. Matthewson, 12 Pet. 164 (9:-
1041) 1088
V. Tyler, 30 Gratt 135 383
Clay V. Smith, 3 Pet 411 (7: 723) . . . 319
Cleveland v. Wick, 18 Ohio St 304.. 454
Clinton v. Englebrecht, 13 Wall. 434
(20: 659) 167
Clintsman v. Northrop, 8 Cow. 46 195
Close V. Greenwood •Cemetery, 107 U.
S. 466 (27:408) 682, 844
Cljne ▼. Benicia Water Co. 100 Cal.
310 1161
Coates V. Mayor, etc., of New York, 7
vJOW. dod • . 94o
Cochran v. McCleary, 22 Iowa, 75 203
Cocke V. Halsey, 16 Pet 71 (10: 891) 766
Coffin V. United States, 156 U. S. 432
(39:481) 894, 897
Cohen, Ex parte, 6 Cal. 318 639
Cohens v. Virginia [1821] 6 Wheat
264 (5:257) 876
Cole V. Cunningham, 133 U. S. 107
(33:538) 437, 837, 838
V. Green, 77 Iowa, 307 311
Colonial Bank of Australasia v. Willan
[1874] L. R. 5 P. C. 417.. 1091
Colorado Central Consol. Min. Co. v.
Turck, 150 U. S. 138 (37:-
1030) 494, 707,817
Colt V. Eves [1837] 12 Conn. 243 883
Colton V. Colton, 127 U. S. 300 (32:-
138) 489
Comegys v. Vasse, 1 Pet 193 (7: 108) 245
Coming, Ex parte [1790] 2 Cox, Ch.
Cas. 225 648
Commercial Bank v. Great Western R.
Co. [1865] 3 Moore, P. C.
C. N. S. 295 1091
Commissioners of Marion County v.
Clark, 94 U. S. 278 ( 24 : 59 ) 698
Commiesioners of Sinking Fund v.
Green ft B. R. Nav. Co. 79
Ky. 73 846,849
Commonwealth v. Abrahams, 156 Mass.
57 606
y. Alger, 7 Cush. 53 706,986
V. Brooks, 109 Mass. 355 605
V. Carrington, 116 Mass. 37.... 63
y. Davis, 140 Mass. 485 605
y. Elisha, 3 Gray, 460 895
y. Essex Co. 13 Gray, 239 861
y. Farmers' Bank of Kentucky,
97 Ky. 590 849
15
Citations.
Commonwealth v. Garner, S Gratt. 655 831
▼. Giles, 1 Gray, 466 897
v. Knapp, 9 Pick. 496, 20 Am.
Dec. 491 353
▼. Kneeland, 20 Pidc. 220. . . ! . . 1163
CotmnoDwealth, ex rel. Philadelphia
County, V. Schollenberger,
156 Pa. 201, 22 L. R. A.
155 56
Compania La Flecha v. Brauer, 168 U.
8.104 (42:398) 240
Confederate Note Case, 19 Wall. 548
(22:196) 212,213
Ooofiscation Cases, The, 20 Wall. 92
(22:320) 1173
Conkling v. Carson, 11 III. 508 839
Conley v. Chilcote, 25 Ohio St. 320 1147
V. Nailor [1886] 118 U. S. 127
(30:1112) 600
ConnecUcui General L. Ins. Co. ▼. El-
dredge, 102 U. 8. 545
(26:245) 612
Conner y. Elliott, 18 How. 591 (15:
497) 435
Consolidated Wyoming Gold Min. Co.
V. Champion Min. Co.
63 Fed. Rep. 540 86
Converse y. Kellogg, 7 Barb. 590 527
V. Norwich & Ne^ York l^ansp.
Co. 33 Conn. 166. . .728,730,731
Cook y. Pennsylvania, 97 U. 8. 574
(24:1018) 713
Cook Coiinty v. Calumet & C. Canal &
D. (>). 138 U. S. 635 (34:
1110) 66
Cook County Nat Bank v. United
States, 107 U. S. 445 (27:
537) 645
Cooke y. Avery, 147 U. S. 380 (37 : 212 818
Cooley y. Philadelphia Port Wardens,
12 How. 299 (13:996)... 328,707
Cooper y. California, 155 U. S. 648
(39:297) 5 Inters. Com.
Rep. 610 675
V.Curtis, 30 Me. 488 927
Cooper Mfg. Co. v. Ferguson, 113 U. S.
727 (28: 1137> 441,442
Coosaw Min. Co. v. South Carolina,
144 U. 8. 550 (36: 537) ... 755
Cope V. Cope, 137 U. 8. 682 (34: 832) 741
Coppell V. Hall, 7 Wall. 542 (19:
244) 1128,1124
Corbin v.. Cannon, 31 Miss. 570 1150
Oorfteld v. Coryell, 4 Wash. C. C. 371 . . 436
Cornelius v. Kessel, 128 U. 8. 456 (32:
482) 774
Cornell v. Green, 163 U. 8. 75 (41: 76) 1186
y. Hope Ins. Co. 3 Mart. N. 8.
223 186
Coulson v. Portland, Deady, 481 ..... . 349
County of Gloucester Bank v. Ruddy
Merthyr Steam & H. C. Col-
liery Co. [1895] 1 Ch. 629 1091
County of Mobile v. KimbaU, 102 U. 8.
702 (26:241) 298,714
Couper V. Smyth, 84 Fed. Rep. 757 203
Courtney v. Louisville, 12 Bush, 419
[1870] 832
Covey v. Cutler, 55 Minn. 18 838
Covington v. Southgate, 15 B. Mon.
498 [1854] 832
16
Covington & C. Bridge Co. v. Kentucky
154 U. S. 204 (38:962) 4
Inters. Com. Rep. 649 834
Covington 4 L. Turnpike Road C6. v.
Sandford, 164 U. 8. 578
(41:560) 413,9134161
Covington Drawbridge Co. vt Sh^iard,
20 How. 227 (15: 896) 439
Cowell V. The Brothers, Bee, 136 416
Cowles V. Mercer County, 7 Wall. 118
(19:86) 438
Cozy. Curwen, 118 Mass. 198 245
Coy, Re, 127 U. 8. 731 (32: 274) 946
Craemer v. Washington, 168 U. S. 124
(42:407) 853
Craighead v. Wilson, 18 How. 199 (15:
332) 234
Crawford's Trust, Re, 2 Drew. 230 245
Crawshaw v. Roxbury, 7 Gray, 374. . . 739
Credit Co. v. Arkansaa C. R. Co. 128
U. S. 261 (32:450) 404
Creighton v. Kerr, 20 Wall. 13 (22:
311) 1104
Crescent City Gaslight Co. v. New Or-
leans Gaslight Co. 27 La.
Ann. 138 345
Cresoent City Live Stock L. & 8. H. Co.
V. Butchers' Union S. H. &
L. 8. L. Co. 120 U. 8. 141
(30:614) 633
OroM v. Burke, 146 U. 8. 84 (36: 897) 315
y.Del Valle, 1 WaU. 5 (17:
515) 1183
y. Evans, 167 U. 8. 60 (42:
77) 87, 1180
y. United States, 145 U. 8. 571
(36:821) S14
Crouch, Ex parte, 112 U. 8. 178 (28:
690) 404
Crowder v. Sullivan, 128 Ind. 486, 3 L.
R. A. 647 849
Crowell V. Randell, 10 Pet 368 (9:
458) 520
Crowl^ v. Saint Freres, 10 Revue
Internationale da Droit
Maritime, 147 136
Crus. v.. The, 1 Lush, 583 416
Crutcher v. Kentucky, 141 U. 8. 47
(35:649) 196, 441
Culbertson v. Fulton, 127 HI. 30 349
Cumberland Tejeph. ft Tel^. Co. v.
United Electric R. Co. 42
Fed. Rep. 273, 12 L. R. A.
544 1167
Cummings v. Merdiante' Nat. Bank,
101 U. 8. 163 (25: 903) 452, 466
Cunningbam v. Butler, 142 Mass. 47
(56 Am. Rep. 657) 838
Currier v. Swan, 63 Me. 323 660
Curtis y. Gill [1867] 34 Conn. 40.... 88S
y. Leavitt, 16 N. Y. 1 927
Cutter y. Powell, 2 Smith Lead. Caa.
7th Am. ed. 17 180
Cutts v. Spring, 15 Maee. 135 422
Cyrus y. SUte, 102 Ga. 616, 29 & E.
917 460
D.
Dainese v. Kendall, 119 U. 8. 68 (30:
305)
Dakota County v. Glidden, 113 tJ. 8.
222 (23:981) 934
Citations.
DuML,Ra [1873] 7 Ben. 1 879
T.Adams, 13 111. C92 1104
Daniels ▼. Newton, 114 Mass. 530, 19
Am. Rep. 384 596
T. Palmer, 35 Minn. 347 838
Dartmouth College v. Woodward, 4
Wheat. 518 (4 : 629) 846
Dashing Wave, The, 5 Wall. 170 (18:
622) 1076
Davenport v. Lamb, 13 Wall. 418 (20:
655) 322
V. Stone, 104 Mich. 521 928
Davenport Nat. Bank v. Davenport Bd.
of Equalization, 123 U. S.
83 (31:94) 857
David Bradley Mfg. Co. v. Eagle Mfg.
Co. 18 U. S. App. 349, 67
Fed. Rep. 989, 6 C. C. A.
661. 138
Davideon v. Burr [1824] 2 Cranch, C.
C. 515 887
▼. New Orleans, 96 U. S. 97 (24:
616) .454, 461, 555, 669
Davies v. Burns, 5 Allen, 349 739
Davieee v. Fairbaim, 3 How. 636 (11:
760) . . 741
Davis y. Elmira Sav. Bank, 161 U. B.
283 (40: 701) 852
y.Geissler, 162 U. S. 290 (40:
972) 1186
T. Massachusetts, 167 U. S. 43
(42:71) 605
▼. Mayor, etc., of New York, 1
Duer, 451 1159
y. Old Colony R. Co. 131 Mass.
258, 41 Am. Rep. 221 1089
y.Utah, 151 U. S. 262 (38: 153) 459
v.Weibbold, 139 U. IS. 607 (35:
238) 91
Day V. Putnam Ins. Co. 16 Minn. 408. . 739
Dean v. Metropolitan Elev. R. Co. 119
N. y. 540 496
De Armas v. United States, 6 How. 103
(12:361) 469
Debs, Re, 158 U. S. 664 (39: 1092) 159
U. S. 251 (mem.) 96
Deff V. Deg, 2 P. Wms. 416 653
Dehon v. Foster, 4 Allen, 545 838
Delahanty v. Warner, 75 111. 186, 20
Am. Rep. 237 203
Delaware, The, 161 U. S. 459 (40: 771) 807
Delmas v. Merchants' Mut. Ins. Co. 14
Wall. 661 (20:757) 211
Del Monte Min. Co. v. Last Chance
Min. Co. 171 U. S. 66 (43:
72) 176
Demarast y. Wynkoop, 3 Johns. Ch.
129, 8 Am. Dec. 467 1149
Den, Murray, v. Hoboken Land & I. Co.
18 How. 284 (16:378)....
219,224,561
Russell, y. Asso. of Jersey Co. 16
How. 426 (14:757) 967
Denny y. Bennett, 128 U. 8. 489 (32:
491) 838
y. Queen [1827] 3 Cranch, C. C.
217 ,^, ggy
Dentrd v. WoldiW^O Cal.'iss! !!!!!!! 601
Denrer ft R. G. R. Co. v. Harris, 122
U. S. 697 (30: 1146) 648
y. Outcalt, 2 Colo. App. 395 918
De Peyster y. Michad, 6 N. Y. 467, 67
Am. Dec. 470 421
Deseret Salt Co. v. Tarpey, 142 U. 8.
241 (35:999) 668
Desmare v. United States, 93 U. S. 686
(23:969) 771
Deeper y. Continental Water Meter Go.
137 Mass. 262 677
Detroit v. Detroit ft H. Plank Road Co.
43 Midi. 140 861
De Vaughn v. Hutchinsoo, 166 U. S.
670 (41:829) 962
De Wolf V. Johnson, 10 Wheat. 367 (6:
343) 476,476
Dibble v. Augur, 7 Blatchf . 86 422
y. Bellingliam Bay Land Co. 163
U. S. 63 (41:72) 381
Dickey v. Armstrong, 1 A. K. Marsh. 39 1150
Dickinson v. Leominster Sav. Bank,
152MaM. 49 362
Dickson, Ex parte [1789] 2 Cox, Ch.
Cas. 196 648
Dietach y. Huidekoper, 103 U. 8. 494
(26:497) 406
Dingley v. Oler, 117 U. S. 490 (29:
984) 596
Distilled bpirits. The, 11 Wall. 356
(ZO: 167) 611
District of Columbia v. Johnson, 3
Mackey, 120 979
y. Woodbury, 136 U. S. 450 (34:
472) 126
District Towns-hip of Walnut v. Ran-
kin, 70 Iowa, 65 124
Dix y. Town of Dummerston, 19 Vt.262 124
Dixon County v. Field, 111 U. S. 82
(28 : 360) 694, 696, 697
Dobell y. Steamship Rossmore Co.
[1895] 2 Q. B. 408 243
Dodd y. St. Louis ft H. Ry. Co. 108 Mo.
581 163
Doe, Winter, v. Perratt, 6 Mann, ft Q.
314 488
Donaldson v. Becket, 4 Burr. 2408 906
Don Carlos, The, 47 Fed. Rep. 746.. 416
Doolan v. Carr, 125 U. S. efl8 (31:
844) 91, 963
Dorsheimer v. United States, 7 Wall.
173 (19: 187) 740
Douglas v. Kentucky, 168 U. 8. 488
(42: 653) . . . .348, 385, 575, o/6
y. Wallace, 161 U. S. 346 (40:
727) 740
Douglass V. Pike County, 101 U. 8. 677
(25:968) 1064
Dower v. Richards [1894] 161 U. S.
658 (38: 305) 886, 1180
Downes v. Phoenix Bank, 6 Hill, 297 . . 362
Dows y. Chicago, 11 Wall. 108 (20:
65) 356, 357
Dravo y. Fabel, 132 U. S. 487 (33:
421) 601
Dubois V. Philadelphia, W. ft B. R. Co.
5 Fish. Pat. Cas. 208 188
Dubose y. Levee Comrs. 11 La. Ann.
166 999
Ducat v. Chicago, 10 Wall. 410 (19:
972) 438, 440
Dude y. Ford, 138 U. S. 587 (34: •
1091) ; 322
Dudman v. Dublin Port ft Docks Board,
Ir. Rep. 7 C. L. 518 136
Dunbar v. United States, 156 U. 8. 185
(39:390) 607
IT
CITATIOAb.
Duncan ▼. MisBOuri, 152 U. S. 377 (38 :
485) 913
Dupasseur y. Rochereau, 21 Wall. 130
(22:688) 532, 533
]>arkM ▼• City of Janesville, 28 Wis.
464, 9 Am. Rep. 500 916, 917
E.
Eadfl y. The H. D. Bacon, Newberry,
274 416
Earhart's Case, Cousar'a Dig. 12 737
Eamshaw y. Cadwalader, 145 U. S.
247 (36:693) 398
Easton C<»nmi8sioner8 y. Ck>ye7, 74 Md.
262 605
East St. Louis y. Eajst St. Louis Gaa-
light & C. Co. 98 111. 415, 38
Am. Rep. 97 849
East Tennessee, V. & G. R. Ck>. y.
Staub, 7 Lea, 397 596
Eaton y. Boston, C. &, M. R. Co. 51 N.
H. 504, 12 Am. Rep. 147.. 379
Eckhart, R^, 166 U. S. 481 (41: 1085) 946
Edwin I. Morrison, The, 153 U. S. 199
(38:688) 131
E. E. Bolles Wooden- Ware Co. y. Unit-
ed States, 106 U. S. 432
(27:230) 423, 426
E^n y. Hart, 165 U. S. 188 (41: 680) 1185
Eidam y. Finnegan, 48 Minn. 53, 16 L.
R. A. 507 1032
Eilenbeoker y. Plymouth County Dist.
Ct 134 U. S. 31 (33:801) 97
Eilers y. Boatman, 111 U. S. 356 (28:
454) 816
Elizabethtown & P. R. Co. y. Trustees
of Elizabethtown, 12 Bush,
239, 90 Ky. 498, 14 S. W.
493 826
ElUot y. Smith, 2 N. H. 430 423
Elwood V. Western U. Teleg. Co. 45 N.
Y. 549, 6 Am. Rep. 140. .. . 495
Ely's Admr. v. United States, 171 U. S.
220 (43: 142) . .153, 154, 167, 169
Elysia, The, 4 Asp. M. L. Cas. 540 805
Embree v. Hanna, 5 Johns. 101 1146
Embrey v. Jeraison, 131 U. S. 336 (33:
172) 1124
Embry y. Palmer, 107 U. S. 3 (27:
346) 533
Emerick y. Harris [1808] 1 Binn. 416
881, 882
Emerson y. Central P. R. Co. 3 Land
Dec. 117, 271 1116
V.Gardiner, 8 Kan. 462 911
y. Hall, 13 Pet. 409 (10:223)
245, 754, 755, 756
Emert y. Missouri, 156 U. S. 296 (39:
430) 5 Inters. Com. Rep. 68
7, 58,297,331
Emulous, The, 1 Sumn. 207 410
Enfield y. Jordan, 119 U. S. 680 (30:
523) 1180
England v. Gebhardt, 112 U. S. 602
(28:811) 1105
Equator Min. & S. Co. v. Hall [1882]
106 U. S. 80 (27: 114).... 877
Erhardt y. Rchroeder, 155 U. S. 125
(39:94) 396
Ernest v. Nicholls [1857] 6 H. L. Cas.
401 1091
18
Erwin v. United Sutes, 97 U. S. 392
(24: 1065) 245, 753, 754
Escanaba Co. y. Chicago, 107 U. S. 678
(27:442) 705, 1141
Essex Public Road Bd. y. Skiukle, 140
U. S. 334 (35: 446) 1058
Etna F. Ins. Co. v. Boon, 95 U. S. 117
(24:395) 238, 240
Etona, The, 64 Fed. Rep. 880 806
Ettrick, The, L. R. 6 Prob. Diy. 127 . 133, 134
Eureka Lake & Y. Canal (Do. y. Yuba
County Super. Ct 116 U. &
410 (29:671) 682
Eustis y. Bolles, 150 U. S. 370 (37:
1113) i 66,319,390,
619, 765, 909, 1185
Eyans y. United States, 153 U. S. 584
(38:830) 607, 1153
Eyansville & T. H. R. Co. y. Nye, 113
Ind.223 168
Ezl^ y. Berryhill, 87 Minn. 182 476
F.
Fairbank y. Phelps, 22 Pick. 536 422
Faircloth y. DeLeon, 81 Ga. 158 197
Fairfax's Deyisee y. Hunter's Lessee, 7
Cranch, 603 (3: 453) ...219, 968
Fairfield y. Gallatin County, 100 U. &
47 (25:544) 1064
Farabow y. Green, 108 N. C. 339 424
Farebrother y. Ansley, 1 Campb. 348. . 660
Farmer y. Russell [1798] 1 Bos. & P.
296 1124, 1126,
1126, 1127, 1128
Farmers' Loan & T. Co. y. Green Bay,
W. & St. P. R. Co. 46 Fed.
Rep. 664 042
Farmington y. Pillsbury, 114 U. S. 138
(29: 114) 688
Famey y. Towle, 1 Black, 350 (17:
216) 626
Farnum y. Boutelle, 13 Met. 159 654
Farrant y. Thompson, 6 Bam. k Aid.
826 428,429
Farrington y. Tennessee, 96 U. S. 687
(24: 560) 867
Farwell y. Des Moines Brick Mfff. Co.
97 Iowa, 286, 35 L. R. A.
63 668
Faxon y. United States, 171 U. S. 244
(43:151) 1093
Fay y. Hayden, 7 Gray, 41 1106
Fearing y. Clark, 16 Gray, 74 634
Feemster y. Anderson [1828] 6 T. B.
Mon. 537 888
Feibelmann y. Packard, 109 U. S. 421
(27:984) 494, 81T
Felix y. Patrick, 146 U. S. 817 (36:
719) 613
FellowB y. Blacksmith, 19 How. 366
(15:684) 771
Felter y. Mulliner [1807] 2 Johns. 181 886
Felton y. United States, 96 U. S. 699
(24: 875) 1153
Fenn y. Holme, 21 How. 481 (16: 198)
422, 642
Fenton Metallic Mfg. Co. ▼. Chase, 73
Fed. Rep. 831 1059
Ferro, The [1893] P. 38 248
Ficklen v. Shelby County Taxing Dist.
145 U. S. 1 (36: 601) 4 In-
ters. Com. Rep. 79 296. 297
CiTATTONB.
Findlay v. Hosmer [1817] 2 Conn. 350 650
Finn v. United States, 123 U. S. 227
(31: 128) 362
Firefly, The, Adm. 240 417
First Nat Bank v. Ay res, 160 U. S.
660 (40:673) 673, 676
▼.Chehalis County, 166 U. S.
440 (41: 1069) 631
V.Colby, 21 WaU. 609 (22: 687) 645
V. Commonwealth [1870] 9 Wall.
353 (19:701) 857
T. Hawkins, 174 U. S. 364 (43:
1007) 1026
y. National Exchange Bank, 92
U. S. 122 (23: 679) . . . .927, 1009
V. Stone, 106 Mich. 367 928
Fish V. Northern P. R. Co. 21 Land
Dec. 16£s 23 Land Dec. 15. . 1116
Fisher ▼. Cockerell, 5 Pet. 248 (8:
114) 526
▼.Perkins, 122 U. S. 522 (30:
1192) . 637
Fiske y. Small, 25 Me. 453 425
Fitzgerald v. CHark, 17 Mont. 100, 30 L.
R. A. 803 86
v. Leisman, 3 McArth. 6 887
Flagstaff Silver Min. (>). v. Tarbet, 98
U. S. 463 (25:253)
75, 77, 78, 85, 86, 174, 176
Flaherty, Re, 105 Cal. 558, 27 L. R. A.
529 605
neming v. Kenney, 4 J. J. Marsh. 155 831
V. Page, 9 How. 614 ( 13 : 280) . . 210
Flint River S. B. Co. v. Foster [1848]
5 Ga. 194, 48 Am. Dec. 248 884
FoUom V. Ninety-six, 159 U. S. 611
(40:278) 769
▼. United SUtes, 160 U. S. 121
(40:363) 316
Fonda, Ex parte, 117 U. S. 516 (29:
994) 96
Fong Yue Ting v. United States, 149
U. S. 714 (37:913) 562
Forbes v. Graoey, 94 U. S. 766
(24:314) 76,322
Ford ▼. Sturget, 97 U. S. 594 (24:
1018) 1175
Forsyth ▼. Hanmiond, 166 U. S. 506
(41: 1095) 1182
Fosdick y. Schall, 99 U. S. 235 (35:
339) 942
Foster v. Bates, 12 Mees. & W. 226 428
Foontaine v. Carmarthen R. Co. [1868]
L. R. 5 Eq. 316 1091
Fowler v. Bebee, 9 Mass. 235, 6 Am.
Dec. 62 766
V. Goodwin, cited in note to 3
Bland, Ch. 468 961
V. Lamson, 164 U. S. 252 (41:
424) 619
V. Morrill, 8 Tex. 153 813
Frandaka, The, 2 Spinks, Eccl. & Adm.
Rep. 128 1067
Franklin County Ct. v. Deposit Bank,
June, 1888, 87 Ky. 382.. 845, 849
Franzeo v. Huuhin^on, 94 Iowa, 95, 62
N. W. 698 839
Frazee, Matter of, 63 Mich. 396 605
Frederich, Re. 149 U. S. 70 (37: 653) 96
Frederick Molke. The, 1 C. Rob. 86. . . 1067
Freeborn v. Smith, 2 Wall. 160 (IV.
922) 1053
Freedman's Sav. & T. Co. v. Shepherd,
127 U. S. 494 (32: 163).. 754
Freeland v. Williams, 131 U. S. 405
(33: 193) 1053
Freeman v. Boston, 5 Met. 56 7^
V. Howe, 24 How. 450 (16: 749) 404
French v. Hay, 22 Wall. 253 (22: 858) 406
V. Hopkins, 124 U. S. 524 (31:
536) 626
French's Lessee v. Spencer, 21 How. 228
(16:97) 428
Fresno Canal &, I. Co. v. Dunbar, 80
Cal. 530 1161
v. Rowell, 80 Cal. 114 1161
Fretz y. Stover, 22 Wall. 198 (22:
769) 213
Frisbie v. United States, 157 U. S. 160
(39:657) 288
V.Whitney, 9 Wall. 187 (19:
668) 161, 1116
Fritts y. Palmer, 132 U. S. 282 (33:
317) 442
Frost y. Wenie, 157 U. S. 46 (39:
614) 467
Fuller y. Missroon, 35 S. C. 314 527
V. Percival, 126 Mass. 381 1088
Furman y. Nichol, 8 Wall. 44 (19:
370) 526,741
Fumess y. Union Nat. Bank, 147 111.
670 642
Q.
Gaines y. Buford, 1 Dana, 481 221
y. Molen, 30 Fed. Rep. 27 322
Gale y. Kalamazoo, 23 Mich. 344, 9 Am.
Rep. 80 349
Gallipot, Bruner, y. Manlove, 2 III. 156 603
Galpin y. Page, 18 Wall. 350 (21:
959) 812
Galveston, H. & H. R. Co. y. Cowdrey,
11 Wall. 459 (20: 199) .... 412
Gardner v. Adams, 12 Wend. 297 422
y. Michigan C. R. Co. 150 U. S.
349 (37: 1107) 596
Garrett v. Burlington Plow Co. [1886]
70 Iowa, 697, 59 Am. Rep.
461, 631, 632, 633
Garrison y. New York, 21 Wall. 196
(22:612) 1053
Gelpcke y. Dubuque, 1 Wall. 176 (17:
520) . .. .387, 392, 769, 1064, 1091
Generous, The, L. R. 2 Adm. & Eccl. 57 416
Gernoania Iron Co. v. United States,
165 U. S. 379 (41:754).. 822
German Nat Bank v. Kimball, 103 U.
S. 733 (26:469) 452
Gibbons y. District of Columbia [1886]
116 U. S. 404 (29: 680) .... 874
y. Ogden, 9 Wheat. 1. 203
(6: 23, 71) 56, 195, 707, 713, 720
Gibbs y. 0)nsolidated Gas Co. 130 U.
S. 396 (32:978) 682, 844
Gibson y. Ghoteau, 13 Wall. 100
(20:537) 427, 428
▼. Peters, 160 U. S. 342
(37: 1104) 734,736,786
y. United States, 166 U. S. 269
(41:996) 879
Gildersleeve v. New Mexico Min. (^.
161 U. S. 573 (40:812)... 581
(iillmore v. Lewis, 12 Ohio, 281 739
19
Cttatiohi.
Onman t. Philadelphia, 3 Wall. 71S
(18:96) 706, 1141
Gibnor* v. American C. Ins. Co. 67
Cal. 366 1082
T. Sapp, 100 ni. 297 603
GUrc^ ▼. Prioe (1803) A. C. 66, 64.. 243
Oirard Baok v. Bank of Penn. Twp. 39
Pa. 92, 30 Am. Dec. 607 362, 864
GiTWi ▼. Wright, 117 U. S. 648
(29: 1021) 888
Gladaon y. Minnesota, 166 U. S. 427
(41:1064) 710, 716
Gltnoohfl, The [1896] P. 10 243
Globe Ine. Co. v. Cleveland Ine. Co. 14
Nat. Bankr. Reg. 311, 10
Fed.Ca8.488 1100
Gloucester Ferry Co. t. Pennsylvania,
114 U. S. 196 (29: 158) 1
Inters. Com. Rep. 382 298
Goldey y. Morning News, 166 U. S.
618 (39:617) 672,812
Good y. London Steamship Owners'
Mut P. Asso. L. R. 6 C. P.
663 243
Goode y. United States, 169 U. S. 663
(40:297) 473
Goodlett y. Louisville & N. R. Co. 122
U. S. 391 (30:1230) 1087
Goodman, Ex parte, 3 Madd. 373.... 667
V. Niblack, 102 U. S. 666 (26:
229) 763,764
Gordon v. Harper, 7 T. R. 9 .. .422, 423, 429
y. Lowther, 76 N. C. 193 424
y. Winchester Bids, ft A. F.
Assa 12 Bush, 110, 23 Am.
Rep. 713 917
Goulding Fertiliser Co. y. Driver, 99
Ga. 623, 26 S. E. 922 197
Graham v. Boston, H. ft E. R. (Do. 118
U.S. 161 (30: 196) 1087
y. La Crosse 'ft M. R. Co. 102 U.
S. 148 (26: 106) 437, 1023
y. Peat, 1 East, 244 422
Grand Chute v. Winegar, 16 Wall. 378
(21: 174) 1088
Grand Rapids Chair Co. y. Runnells,
77 Mich. 104 916
Grand Rapids Electric L. ft P. Co. v.
Grand Rapids Edison Elec-
tric L. ft F. Gas Co. 37 Fed.
Rep. 669 71,349
Grant y. Davenport, 36 Iowa, 896 .... 340
Gray y. Howe, 108 U. S. 12 (27: 634)
316, 1179
Great Western Teleg. Co. v. Burnham,
162 U. S. 339 (40: 991) . . 696
Greber v. Kleckner, 2 Pa. 289 422
Green v. Fisk, 103 U. S. 618 (26: 486) 820
y. Neal's Lessee, 6 Pet 291 (8:
402) 1064
T. Van Buskirk, 6 Wall. 307
(18:699) 837
y. Van Buskirk, 7 Wall. 139
(19: 109) 838
Qtmd Bay ft M. Canal Co. v. Patten
Paper Co. 172 U. S. 68 (43:
364 663,667,843
Greene y. Briggs (1862) 1 Curt. C. C.
311 224,879,917
Greenhow v. Vashon, 81 Va. 336 384
Greenwood v. Taylor, 1 Russ. ft M. 186
643,656
80
GrwBWOod y. Union Freight R. C6b 106
U. S. 13 (26:961)
682,748,844,846,861
Qngorj y. Van Ee, 160 U. 8. 643 (40:
666) 816,817
Grenada Ooontj Snpert. y. Brogden,
112 U. S. 261 (28: 704)... Ml
Griffin y. Chase, 36 Neb. 328 804
y. Kentucky Ins. Co. 8 Bntfi,
692, 96 Am. Dec 269 682
y. Mixon, 38 Miss. 424 821
Griffin's Case, Chase, Dec 864 766
Grisatr v. McDowell, 6 Wall. 868 (18 1
863) 428
Griawcdd v. Haven, 26 N. Y. 696, 82
Am. Dec 380 611
Grove, Ex parte [1747] 1 Atk. 106.. 648
Grover v. Wakeman, 11 Wend. 187, 26
Am. Dec. 624 839
Guerin y. Hunt, 8 Minn. 477 627
Gulf, a ft 8. F. R. Co. y. EUis, 166 U.
S. 160 (41:666)
749, 794, 910, 911, 914-916
Guthrie y. Territory, 1 Okla. 188, 21 L.
R. A. 841 799
GutwiUig, Re, 90 Fed. Rep. 476 1100
Guy y. Baltimore, 100 U. S. 434 (26:
743) 828
Gwillim v. Donnellan, 116 U. 8. 46 (20:
848) :.. 82
H.
Hackensack Water Co. v. De Kay, 86
N. J. Eq. 648 1091, 1002
Hagar v. Reclamation Dist. No. 108,
111 U. S. 701 (28: 669) 464, 461
Hagner v. Heyberger, 7 Watia « S. 104,
42 Am. Dec. 220 203
Hailes v. Van Wormer, 20 Wall. 868
(22:241) 907,1060
Haines v. Levin [1866] 61 Pft. 412. . . . 882
Hale v. Branscum, 10 Gratt 418 .... 218
Hall v. Corcoran, 107 Meas. 261, 9 Am.
Rep. 30 1127
v. De Cuir, 96 U. 8. 486 (24:
647) 700, 712, 713, 716, 718, 720
Halleek v. Mixer, 16 Cal. 674 424, 426
Halsey v. Paterson, 37 N. J. Eq. 446. . 246
Hamblin v. Western Land Co. 147 U.
S. 631 (37:267) 766
Hamilton v. Brown, 161 U. S. 266 (40:
691) 814
y. Pandorf, L. R. 12 App. Oaa.
618, L. R. 17 Q. B. Div. 670,
L. R. 16 Q. B. Div. 629. ... 240
v. Royse, 2 Sch. ft Lef. 316 312
Hamilton Gaslight ft C. Co. v. Hamil-
ton City, 146 U. 8. 268 (36:
963) 345, 846
Hamilton Mfg. Co. v. Massachusetts,
6 Wall. 632 (18: 904) . . .667, 668
Hammett v. Philadelphia, 66 Pa. 146,
3 Am. Rep. 616 449
Hammock v. Farmers' L. ft T. Co. 106
U. S. 77 (26: 1111) 1054
Hammond v. Hopkins, 143 U. 8. 224
(36: 134) 618
Hanauer v. Woodruff, 10 Wall. 482
(19:991) 211,212
Handly's Lessee v. Anthony, § Wheat.
374 (6:113) 880
CiTATIOllS.
Hannewinckle ▼. Georgetown, 16 Wall.
647 (21:231) 366,367
Hannibal ft St. J. R. Co. v. Huaen, 95
U. 8.465 (24:627)
64,331,708,717
Hana ▼. Louisiana, 134 U. S. 1 (33:
842) 640
Hardenbergfa v. Ray, 151 U. 8. 112
(38:93) 489
Harkradar v. Wadley, 172 U. 8. 148
(43:399) 542
Harley ▼. 467 Ban Railroad Iron, 1
8awy. 1 416
Harlow t. Marquette. H. & 0. R. K Co.
41 Mich. 336. 163
Harper ▼. Charleswortb, 4 Barn, k C.
674 422,427
Harris ▼. Bamhart, 97 Cal. 546 138
y. Dennie, 3 Pet 292 (7: 683) . 626
Harrison ▼. King, 9 Ohio St 388 627
y. Morton, 171 U. 8. 38 (43:63) 582
y. Perea, 168 U. 8. 311 (42:
478) 129
y. Sterry, 5 Cranch, 289 (3:
104) 657,837
y. Vose, 9 How. 372 (13: 179) 617
Hart y. Sansoiu, 110 U. S. 161 (28:
101) 812
Hartman y. Greenhow, 102 U. 8. 672
(26:271) 383,384
Haryey y. Great Northern R. Co. 60
Minn. 405, 17 L. R. A. 84. . 1146
Harwell y. Sharp Bros. 85 Ga. 124, 8 L.
R. A. 514 1146
Hatch y. Mann, 15 Wend. 44 739
Hayemeyer v. Iowa County, 3 Wall.
294 (18:38) 1064
Hawkins y. Ireland, 64 Minn. 339.... 838
Haws y. Victoria Copper Min. Co. 160
U. S. 303 (40:436) 681
Hayden y. Souger, 56 Ind. 42, 26 Am.
Rep. 1 739
Hayes y. Fischer, 102 U. S. 121 (26:
96) 90
y. Missouri, 120 U. 8. 68 (30:
578) 521, 913
y. United SUtes, 170 U. 8. 637
(42: 1174) 144,153,154
Hays Comrs. y. Camden's Heirs, 38 W.
Va. 109, 18 8. E. 461 225
Hazen y. Boston & M. R. Co. 2 Gray,
680 412
Head y. Amoskeag Mfg. Co. 113 U. 8.
9 (28:889) 765
y. Hughes ( 1818) 1 A. E. Marsh.
372, 10 Am. Dec. 742 883
y. Starke, Chase, 312 213
Heath, Re. 144 U. S. 92 (36: 358) .... 315
y. Ross, 12 Johns. 140 424,428
V.Wallace, 138 U. S. 573 (34:
1063) 91
Hecht y. Bough ton, 105 U. 8. 245 (26:
1018) 316,581
Hector, The, L. R. 8 Prob. Div. 218 . . 135
Hedley y. Pinkney ft Sons Steamship
Co. [1892] 1 Q. B. 58,
[1894] A. C. 222 243
Hedrick y. Atchison, T. ft S. F. R. Co.
167 U. 8. 673 (42 : 320) ... 910
Heine y. Levee Gomrs. 19 Wall. 655
(22:223) 642
Helen and George, The, Swab. Adm.
368 417
V, S., Book 43
HendersoK v. Maxwell, L. R. 4 C\u Div.
103 007
y. Mayor of New York [Bender*.
son V. Wickham] 92 U. 8.
259 (23: 543) 61,332
Henderson's Tobacco, 11 Wall. 657 (20:
238) 639
Henderson Bridge Co. y. Henderson,
141 U. 8. 679 (35:900)
368, 827, 834
y. Henderson, 172 U. 8. 592 (43:
823) 1160
y. Kentucky, 166 U. 8. 150 (41 :
953) 853,858
Hennington y. Georgia, 163 U. 8. 299
(41:166) 704,707,717
Henry, The, 15 Jur. 183, 2 Eng. L. ft
Eq.564 417
Henshawy. Miller, 17 How. 212 (15:222) 679
Henrey y.. Rhode Island Locomotiye
Works, 93 U. 8. 664 (23:
1003) 837
Hess y. Beekman (1814) 11 Johns.
457 885
Hetcel y. Baltimore ft 0. R. Co. 169
U. 8. 26 (42:648 980
Hickie y. Starke, 1 Pet. 94 (7 : 67) ... . 388
Hickman y. Fort Scott, 141 U. 8. 415
(35:776) 772
HiU y. Nisbet, 100 Ind. 341 1080
V. Scotland County (34: 268) . . 698
y. SUte, 72Ga. 131 460
Hine y. New Haven, 40 Conn. 478 605
Hinson y. Lott, 8 Wall. 148 ( 19 : 387 )
196,327,329,330
Hobbs y. McLean, 117 U. 8. 576 (29:
944) 764
Hocking Valley Coal Co. y. Rosser, 53
Ohio St 12, 29 L. R. A. 386 917
Hodges y. Seaboard ft R. R. Co. 88 Va.
656 379
Hoffnung, The, 6 C. Rob. 112 1067
Hogan y. Kurts, 94 U. 8. 773 (24:
317) 1149
Hoge y. Richmond ft D. R. Co. 99 U. 8.
348 (25<:303) 682,844
Hoke y. Henderson, 15 N. C. (4 Dev.
L.) 15, 25 Am. Dec. 677.. 224
Holden y. Hardy, 169 U. 8. 366 (42:
780) 555, 749,913
HoUand y. Chaillen, 110 U. S. 15 (28:
52) 478
y. Mobile ft 0. R. Co. 16 Lea,
414 1146
Hollander v. Fechheimer, 162 U. 8. 326
(40:985) 234
Rollins y. Brierfield Coal ft I. Co. 150
U. 8. 371 (37: 1113)... 438, 1024
Holley River Coal Co. v. Howell, 36 W.
Va. 489 220
Holman y. Johnson [1775] 1 Cowp. 341
: 114,1123
Holmes v. Remsen, 4 Johns. Ch. 460, 8
Am. Dec. 581 837
Home Building ft C. Co. v. Roanoke, 91
Va. 52, 27 L. R. A. 551 . . . . 379
Home Ins. Co. v. Morse, 20 Wail. 445
(22:365) 438
V. New York, 134 U. 8. 594 (33:
1025) 32fl
Hooper y. California, 155 U. 8. 648
(39:297) 5 Inters. Com.
Reo. 610 298, 299, 666
21
CiTATIOHI.
Onman t. Philadelphia, 3 Wall. 718
(18:96) 706, 1141
Gibnor* ▼. American C. Ina. Co. 67
Cal. 366 1082
T. Sapp, 100 ni. 207 603
GUroy t. Prioe (1803) A. C. 66, 64.. 243
Girard Bank v. Bank of Penn. Twp. 39
Pa. 92, 30 Am. Dee. 607 362, 864
GiTW ▼. Wright, 117 U. & 648
(29: 1021) 888
Gladson v. MinneBota, 166 U. & 427
(41:1064) 710, 716
Gltnoohfl, The [1896] P. 10 243
Globe Ins. Co. v. Cleveland Ins. Co. 14
Nat. Bankr. Reg. 311, 10
Fed.Ca8. 488 1100
Gloucester Ferry Co. t. Pennsylvania,
114 U. S. 196 (29: 158) 1
Inters. Com. Rep. 382 298
Gold^ ▼. Morning News, 166 U. S.
618 (39:617) 672,812
Good V. London Steamship Owners'
Mut. P. Asso. L. R. 6 C. P.
663 243
Goods ▼. United States, 169 U. S. 663
(40:297) 473
Goodlett v. Louisville 4 N. R. Co. 122
U. S. 391 (30:1230) 1087
Goodman, Ex parte, 3 Madd. 373 657
V. Niblack, 102 U. S. 666 (26:
229) 763,764
Gordon y. Harper, 7 T. R. 0 .. .422, 423, 429
v.Lowther, 76 N. C. 193 424
▼. Winchester Bldg. ft A. F.
Assa 12 Bush, 110, 23 Am.
Rep. 713 917
Goulding Fertiliser Co. v. Driver, 99
Ga. 623, 26 S. E. 922 197
Graham v. Boston, H. ft E. R. Co. 118
U.S. 161 (30: 196) 1087
▼. La Crosse 'ft M. R. Co. 102 U.
S. 148 (26: 106) 437, 1023
V. Peat, 1 East, 244 422
Grand Chute v. Winegar, 16 Wall. 378
(21: 174) 1088
Grand Rapids Chair Co. ▼. Runnells,
77 Mich. 104 016
Grand Rapids Electric L. ft P. Co. v.
Grand Rapids Edison Elec-
tric L. ft F. Gas Co. ZZ Fed.
Rep. 669 71,349
Grant ▼. Davenport, 36 Iowa, 306 .... 349
Gray ▼. Howe, 108 U. 8. 12 (27: 634)
316, 1179
Great Western Teleg. Co. v. Burnham,
162 U. 6. 339 (40: 991) .. 696
Greber v. Kleckner, 2 Pa. 289 422
Green v. Fisk, 103 U. S. 618 (26: 486) 820
▼. Neal's Lessee, 6 Pet 291 (8:
402) 1064
T. Van Buskirk, 6 Wall. 307
(18:599) 837
▼. Van Buskirk, 7 Wall. 139
(19: 109) 838
Qtmd Bay ft M. Canal Co. v. Patten
Paper Co. 172 U. S. 68 (43:
364 663,667,843
Greene ▼. Briggs (1862) 1 Curt. C. C.
311 224,879,917
Greenhow ▼. Vashon, 81 Va. 336 384
Greenwood ▼. Taylor, 1 Russ. ft M. 186
643,666
80
GrwBwood ▼. Union Freight R. Oo. 106
U. 6. 18 (26:961)
682,748,844,846,861
Gregory ▼. Van Ee, 160 U. 8. 648 (40:
666) 816»817
Grenada Ooonty Supers, y. Brogden,
112 U. S. 261 (28:704)... Ml
Griffin ▼. Chase, 36 Neb. 828 804
▼. Kentucky Insw Co. 3 Bntfi,
692, 96 Am. Dee. 269 682
V. Mixon, 38 Miss. 424 821
Griffin's Case, Chase, Dee. 364 766
Grisair v. McDowell, 6 Wall. 868 (18 s
863) 428
Griswcdd V. Haven, 26 N. Y. 606, 82
Am. Dee. 880 61 1
Grove, Ex parte [1747] 1 Atk. 106.. 648
Grover v. Wakeman, 11 Wend. 187, 26
Am. Dec. 624 839
Guerin ▼. Hunt, 8 Minn. 477 627
Gulf, C. ft S. F. R. Co. V. Ellis, 166 U.
S. 160 (41:666)
749, 794, 910, 911, 914-916
Guthrie V. Territory, 1 Okla. 188, 21 L.
R. A. 841 790
Gutwillig, Re, 90 Fed. Rep. 476 1100
Guy V. Baltimore, 100 U. S. 434 (26:
T^3 \ ^ 328
Gwillim V. Donnellan,' il5 u! S.'45'(20':
348) :.. 82
H.
TiM/»lr»n«a/»lr Water Co. V. Da Kay, 86
N. J. Eq. 648 1091, 1092
Hagar v. Reclamation Dist. No. 108,
111 U. S. 701 (28: 669) 464, 461
Hagner v. Heyberger, 7 Watia « S. 104,
42 Am. Dee. 220 203
Bailee v. Van Wormer, 20 Wall. 868
(22:241) 907,1060
Haines v. Levin [1866] 61 Pa. 412. ... 882
Hale V. Branscum, 10 Gratt 418 .... 218
Hall y. Corcoran, 107 Mass. 261, 9 Am.
Rep. 30 1127
V. De Cuir, 06 U. S. 486 (24:
647) 700, 712, 713, 716, 718, 720
Halleek v. Mixer, 16 Cal. 674 424, 425
Halsey v. Paterson, 37 N. J. Eq. 445. . 246
Hamblin v. Western Land Co. 147 U.
S. 631 (37:267) 766
Hamilton v. Brown, 161 U. S. 256 (40:
691) 814
▼. Pandorf, L. R. 12 App. Oaa.
618, L. R. 17 Q. B. Div. 670,
L. R. 16 Q. B. Div. 629. .. . 240
V. Royse, 2 Sch. ft Lef. 315 312
Hamilton Gaslight ft C. Co. v. Hamil-
ton City, 146 U. S. 258 (36:
963) 345, 846
Hamilton Mfg. Co. v. Massachusetts,
6 Wall. 632 ( 18: 904) . . .667, 668
Hammett v. Philadelphia, 66 Pa. 146,
3 Am. Rep. 616 449
Hammock v. Farmers' L. ft T. Co. 106
U. S. 77 (26:1111) 1054
Hammond v. Hopkins, 143 U. S. 224
(36: 134) 618
Hanauer v. Woodruff, 10 Wall. 482
(19:991) 211,212
Handly's Lessee v. Anthony, 6 Wheat.
374 (6: 113) 880
CrrATioKB.
Hannewinckle v. Georgetown, 15 Wall.
647 (21:231) 356,857
HAnniM ft St. J. R. Co. v. Husen, 05
U. S. 465 (24:527)
64,331,708,717
Hans ▼. Louisiana, 134 U. 8. 1 (33:
842) 540
Hardenberffh ▼. Ray, 161 U. S. 112
(38* 93) 489
Harkradar ▼. Wadl^l' 172 U.' S. 148*
(43:399) 542
Harlej t. 467 Bars Railroad Iron, 1
Harlow y. Marquette, H. & 0. R. R. Co.
41 Mich. 336 163
Harper ▼. Charlesworth, 4 Barn, k C.
574 422,427
Harris y. Barnhart, 97 Cal. 646 138
▼. Dennie, 3 Pet 292 (7: 683) . 526
Harrison v. King, 9 Ohio St 388 627
y. Morton, 171 U. S. 38 (43:63) 682
y. Perea, 168 U. S. 311 (42:
478) 129
y. Sterry, 6 Crauch, 289 (3:
104) 657,837
y. Vose, 9 How. 372 (13: 179) 617
Hart y. Sansoiu, 110 U. S. 151 (28:
101) 812
Hartman y. Greenhow, 102 U. S. 672
(26:271) 383,384
Hanrey y. Great Northern R. Co. 50
Minn. 405, 17 L. R. A. 84. . 1146
Harwell y. Sharp Bros. 85 Ga. 124, 8 L.
R. A. 514 1146
Hatch y. Mann, 15 Wend. 44 739
Hayemeyer v. Iowa County, 3 Wall.
294 (18:38) 1064
Hawkins y. Ireland, 64 Minn. 339.... 838
Haws y. Victoria Copper Min. Co. 160
U. S. 303 (40:436) 681
Hayden y. Souger, 56 Ind. 42, 26 Am.
Rep. 1 789
Hayes y. Fischer, 102 U. S. 121 (26:
95) 90
y. Missouri, 120 U. S. 68 (30:
578) 521, 913
y. United SUtes, 170 U. S. 637
(42:1174) 144,153,154
Hays Comrs. y. Camden's Heirs, 38 W.
Va. 109, 18 S. E. 461 225
Haxen y. Boston & M. R. Co. 2 Gray,
680 412
Head y. Amoskeag Mfg. Co. 113 U. S.
9 (28:889) 765
y. Hughes ( 1818) 1 A. E. Marsh.
372. 10 Am. Dec. 742 883
y. Starke, Chase, 312 213
Heath, Re. 144 U. S. 92 (36: 358) .... 315
y. Ross, 12 Johns. 140 424,428
V.Wallace, 138 U. S. 573 (34:
1063) 91
Hecht y. Boughton, 105 U. S. 246 (26:
1018) 816,681
Hector, The, L. R. 8 Prob. Diy. 218 . . 135
Hedley y. Pinkney & Sons Steamship
Co. [1892] 1 Q. B. 58,
[1894] A. C. 222 243
Hedrick y. Atchison, T. & S. F. R. Co.
167 U. 8. 673 (42: 320) ... 910
Heine y. Levee Comrs. 19 Wall. 656
(22:223) 642
Helen and George, The, Swab. Adm.
368 417
U. S., Book 43 !
HendersoE v. ^laxwell, L. R. 4 Cli. Div.
103 007
y. Mayor of New York [Hender-
son V. Wickham] 92 U. S.
259 (23: 543) 61,332
Henderson's Tobacco, 11 Wall. 657 (20:
238) 639
Henderson Bridge Co. v. Henderson,
141 U. S. 679 (35:900)
358, 827,834
y. Henderson, 172 U. S. 692 (43:
823) 1160
y. Kentucky, 166 U. S. 150 (41:
953) 863,868
Hcnnington y. Georgia, 163 U. 8. 299
(41:166) 704,707,717
Henry, The, 16 Jur. 183, 2 Eng. L. ft
Eq.564 417
H«nahawy.Miller,17 Ho\v.212( 15:222) 679
Henrey y. Rhode Island Locomotiya
Works, 93 U. S. 664 (23:
1003) 887
Hess y. Beekman (1814) 11 Johns.
457 885
Hetsd v. Baltimore ft 0. R. Co. 169
U. S. 26 (42:648 980
Hickie y. SUrke, 1 Pet. 94 (7 : 67 ) ... . 388
Hickman y. Fort Scott, 141 U. S. 415
(35:775) 772
HiU y. Nisbet, 100 Ind. 341 1080
v. Scotland County (34: 268) . . 698
y. SUte, 72 Ga. 131 460
Hine y. New Haven, 40 Conn. 478 606
Hinson v. Lott 8 Wall. 148 (19: 387)
196, 327,329,330
Hobba y. McLean, 117 U. S. 576 (29:
944) 764
Hocking Valley Coal Co. y. Rosser, 53
Ohio St 12, 29 L. R. A. 386 917
Hedges y. Seaboard ft R. R. Co. 88 Va.
656 379
Hoffnung, The, 6 C. Rob. 112 1067
Hogan y. KurtE, 94 U. S. 773 (24:
317) 1149
Hoge y. Richmond ft D. R. Co. 99 U. S.
348 (25-: 303) 682,844
Hoke y. Henderson, 15 N. C. (4 Dev.
L.) 15, 25 Am. Dec. 677.. 224
Holden y. Hardy, 169 U. S. 366 (4%:
780) 555, 749,913
HoUand v. Chaillen, 110 U. S. 15 (28:
62) 478
y. Mobile ft 0. R. Co. 16 Lea,
414 1146
Hollander v. Fechheimer, 162 U. S. 326
(40:985) 234
Hollins y. Brierfield Coal ft I. Co. 150
U. S. 371 (37 : 1113) . . .438, 1024
HoUey River Ck>al Co. v. Howell, 36 W.
Va. 489 220
Holman v. Johnson [1775] 1 Cowp. 341
: 114,1123
Holmes y. Remsen, 4 Johns. Ch. 460, 8
Am. Dec. 581 837
Home Building & C. Co. v. Roanoke, 91
Va. 62, 27 L. R. A. 551 . . . . 379
Home Ins. Co. v. Morse, 20 Wall. 445
(22:365) 438
V. New York, 134 U. S. 594 (33:
1025) 32fl
Hooper y. California, 155 U. S. 648
( 39 : 297 ) 5 Inters. Com.
Reo. 610 298, 299, 556
21
CrrATiOHB.
OOman t. Philadelphia, 3 Wall. 718
(18:96) 706, 1141
Gibnora v. American C. Ina. Co. 67
Cal. 366 1032
T. Sapp, 100 ni. 297 603
GUrc^ ▼. Price (1803) A. C. 66, 64.. 243
Oirard Bank v. Bank of Penn. Twp. 30
Pa. 92, 30 Am. Dec. 507 362, 364
Giyen ▼. Wright, 117 U. S. 648
(29: 1021) 388
Gladson y. Bfinnesota, 166 U. S. 427
(41:1064) 710, 716
Glenodifl, The [1896] P. 10 243
Globe Ins. Co. v. Cleveland Ins. Co. 14
Nat. Bankr. Reg. 311, 10
Fed. Ca8.488 1100
Glouoeater Ferry Co. v. Pennsylvania^
114 U. S. 196 (29: 158) 1
Inters. Com. Rep. 382 298
Goldey ▼. Morning News, 166 U. S.
518 (39:617) 572,812
Good y. London Steamship Owners'
Mut. P. Asso. L. K. 6 C. P.
563 243
Goode V. United States, 169 U. S. 663
(40:297) 473
Goodlett V. Louisville & N. R. Co. 122
U. S. 391 (30:1230) 1087
Goodman, Ex parte, 3 Madd. 373 657
V. Niblack, 102 U. S. 656 (26:
229) 763,754
Gordon v. Harper, 7 T. R. 9 .. .422, 423, 429
v.Lowther, 75 N. C. 193 424
▼. Winchester Bldg. & A. F.
Assa 12 Bush, 110, 23 Am.
Rep. 713 917
Goulding Fertilizer Co. v. Driver, 99
Ga. 623, 26 S. E. 922 197
Graham v. Boston, H. 4 E. R. Co. 118
U.S. 16; (30: 196) 1087
▼. La Crosse & M. R. Co. 102 U.
S. 148 (26: 106) 437, 1023
▼. Peat, 1 East, 244 422
Grand Chute v. Winegar, 15 Wall. 373
(21: 174) 1088
Grand Rapids Chair Co. ▼. Runnells,
77 Mich. 104 916
Grand Rapids Electric L. & P. Co. v.
Grand Rapids Edison Elec-
tric L. & F. Gas Co. 33 Fed.
Rep. 659 71,349
Grant ▼. Davenport, 36 Iowa, 306 .... 340
Gray y. Howe, 108 U. S. 12 (27: 634)
316, 1179
Great Western Teleg. Co. v. Burnham,
162 U. S. 339 (40: 991) .. 696
Greber v. Kleckner, 2 Pa. 289 422
Green v. Fisk, 103 U. S. 618 (26: 486) 820
v. Neal's Lessee, 6 Pet 291 (8:
402) 1064
y. Van Buskirk, 6 WaU. 307
(18:699) 837
y. Van Buskirk, 7 Wall. 139
(19: 109) 838
Qtmd Bay ft M. Canal Co. v. Patten
Paper Co. 172 U. S. 68 (43:
364 663,667,843
Greene y. Briggs (1862) 1 Curt C. C.
311 224,879,017
Greenhow v. Vashon, 81 Va. 336 384
Greenwood y. Taylor, 1 Russ. ft M. 185
643,666
80
Greenwood y. Union Freight R. Oo. 105
U. S. 13 (26:961)
682, 748, 844, 846p 861
Gregory v. Van Ee, 160 U. 8. 643 (40:
666) 816,817
Grenada County Supers, y. BrogdflB»
112 U. S. 261 (28: 704)... Ml
Griffin y. Chase, 36 Neb. 328 604
V. Kentucky Ins. Co. 3 Botfi,
692, 96 Am. Dec 269 682
v. Mixon, 38 Miss. 424 221
Griffin's Case, Chase, Dec. 364 766
Grisair v. McDowell, 6 Wall. 363 (18:
863) 428
Griffwold v. Haven, 25 N. Y. 696, 82
Am. Dec. 380 611
Grove, Ex parte [1747] 1 Atk. 106.. 648
Grover v. Wakeman, 11 Wend. 187, 26
Am. Dec. 624 839
Guerin y. Hunt» 8 Minn. 477 627
Gulf, C. ft 8. F. R. Co. V. Ellis, 166 U.
S. 150 (41:666)
749, 794, 910, 911, 914-916
Guthrie v. Territory, 1 Okla. 188, 21 L.
R. A. 841 799
Gutwillig, Re, 90 Fed. Rep. 476 1100
Guy y. Baltimore, 100 U. S. 434 (26:
743) 828
Gwillim V. Donnellan, 115 U. S. 46 (20:
348) :.. 82
H.
Hackensack Water Co. v. De Kay, 86
N. J. Eq. 548 1091, 1088
Hagar y. Reclamation Dist. No. 108,
111 U. S. 701 (28: 669) 464, 461
Hagner v. Heyberger, 7 Watu « S. 104,
42 Am. Dee. 220 203
Hailes v. Van Wormer, 20 Wall. 368
(22:241) 907.106O
Haines v. Levin [1866] 61 Pa. 418. ... 882
Hale V. Branscum, 10 Gratt 418 .... 218
Hall v. Corcoran, 107 Mass. 261, 9 Am.
Rep. 30 1127
V. De Cuir, 96 U. S. 486 (84:
647) 700, 712, 713, 716, 718, 720
Halleek v. Mixer, 16 Cal. 574 424, 425
Halsey v. Paterson, 37 N. J. Eq. 445. . 248
Hamblin v. Western Land Co. 147 U.
S. 531 (37:267) 766
Hamilton v. Brown, 161 U. S. 256 (40:
691) 814
y. Pandorf, L. R. 12 Anp. Oat.
618, L. R. 17 Q. B. Div. 670,
L. R. 16 Q. B. Div. 629. ... 240
v. Royse, 2 Sob. ft Lef. 315 312
Hamilton Gaslight ft C. Co. v. Hamil-
ton City, 146 U. S. 268 (36:
963) 346, 84«
Hamilton Mfg. Co. v. Massachusetts,
6 Wall. 632 (18: 904) . ..667, 668
Hammett v. Philad^phia, 66 Pa. 146,
3 Am. Rep. 616 440
Hanmiock v. Farmers' L. ft T. Co. 105
U. S. 77 (26: 1111) 1064
Hammond v. Hopkins, 143 U. 8. 224
(36: 134) 613
Haaauer v. Woodruff, 10 Wall. 482
(19:991) 211,812
Handly's Lessee v. Anthony, 6 Wheat.
374 (6:118)
Citations.
Hiimewinckle t. Georgetown, 15 Wall.
647 (21:231) 356,357
Haniiibal ft St J. R. Co. v. Husen, 95
U. S. 465 (24:527)
54,331,708,717
Bads ▼. Louisiana, 134 U. S. 1 (33:
842).... 540
Hardenberefa v. Ray, 151 U. S. 112
( 38 : 93 ) . . . . 489
HarkradMr t. Wadley/ 172 U.' S.' 148*
(43:399) 642
Harkj ▼. 467 Bars Railroad Iron, 1
Sawy. 1 416
Harlow ▼. Marquette, H. & O. R. R. Co.
41 Mich. 336 163
Harper t. Charlesworth, 4 Barn. & C.
674 422,427
Harris t. Bambart, 97 Cftl. 546 138
y. Dennie, 3 Pet. 292 (7: 683) . 520
Harrison v. King, 9 Ohio St. 388 627
T. Morton, 171 U. S. 38 (43:63) 582
▼. Perea, 168 U. S. 311 (42:
478) 129
▼. Sterry, 6 Crauch, 289 (3:
104) 657,837
T. Vose, 9 How. 372 (13: 179) 517
Hart y. Sansoiu, 110 U. S. 151 (28:
101) 812
Hartman v. Greenhow, 102 U. S. 672
(26:271) 383,384
Harrej t. Great Northern R. Co. 50
Minn. 405, 17 L. R. A. 84. . 1146
Harwell t. Sharp Bros. 85 Ga. 124, 8 L.
R. A. 514 1146
Hatdi v. Mami, 15 Wend. 44 739
Hayemeyer y. Iowa County, 3 Wall.
294 (18:38) 1064
Hawkins y. Ireland, 64 Minn. 339 838
Haws y. Victoria Copper Min. Co. 160
U. S. 303 (40: 436) 681
Haydsn ▼. Souger, 56 Ind. 42, 26 Am.
Rep. 1 739
Hayes y. FiiK^her, 102 U. S. 121 (26:
95) 96
▼.Missouri, 120 U. S. 68 (30:
578) 521, 913
▼. United SUtes, 170 U. S. 637
(42: 1174) 144,153,154
Hays Comrs. y. Camden's Heirs, 38 W.
Va. 109, 18 S. K 461 225
Hazen y. Boston & M. R. Co. 2 Gray,
680 412
Head y. Amoskeag Mfg. Co. 113 U. S.
9 (28:889) 765
y. Hughes ( 1818) 1 A. K. MarsK
372. 10 Am. Dec. 742 883
y. Starke, Chase, 312 213
Heath, Re, 144 U. S. 92 (36: 358) .... 315
y. Ross, 12 Johns. 140 424,428
y. Wallace, 138 U. S. 573 (34:
1063) 91
Hecht y. Houghton, 105 U. S. 245 (26:
1018) 316,681
Hector, The. L. R. 8 Prob. Div. 218 . . 135
%dky y. Pinkney & Sons Steamship
Co. [1892] 1 Q. B. 58,
[1894] A. C. 222 243
Hedriek ▼. Atchison, T. & S. F. R. Co.
167 U. S. 673 (42: 320) ... 910
Heine y. Leyee Comrs. 19 Wall. 665
(22:223) 642
Helen and George, The, Swab. Adm.
368 417
V. 8., Book 43
Henderson v. Maxwell, L. R. 4 Cb. Diy.
163 907
y. Mayor of New York [Hender-.
son V. Wickham] 92 U. S.
259 (23: 543) 61,332
Henderson's Tobacco, 11 Wall. 657 (20:
238) 639
Henderson Bridge Co. y. Henderson,
141 U. S. 679 (35:900)
358, 827,834
y. Henderson, 172 U. S. 592 (43:
823) 1160
y. Kentucky, 166 U. S. 150 (41:
953) 853,858
Hennington y. Georgia, 163 U. S. 299
(41: 166) 704,707,717
Henry, The, 15 Jur. 183, 2 Eng. L. ft
Eq.564 417
Hen8hawy.Miller,17 How. 212 (15:222) 679
Heryey y.. Rhode Island Locomotiye
Works, 93 U. S. 664 (23:
1003) 837
Hess y. Herman (1814) 11 Johns.
^gY ggi^
Hetzel V. Baltimore & 6. R. Co. 169
U. S. 26 (42: 648 980
Hickie v. Starke, 1 Pet. 94 (7 : 67) ... . 388
Hickman y. Fort Scott, 141 U. S. 415
(35:775) 772
Hill y. Nisbet, 100 Ind. 341 1080
V. Scotland County (34: 268) . . 698
y. State, 72 Ga. 131 460
Hine y. New Hayen, 40 Conn. 478 6(M^
Hinson y. Lott, 8 Wall. 148 (19: 387)
196, 327,329,330
Hobbs y. McLean, 117 U. S. 576 (29:
944) 754
Hocking Valley Coal Co. y. Rosser, 53
Ohio St. 12, 29 L. R. A. 386 917
Hodges y. Seaboard & R. R. Co. 88 Va.
656 379
Hoffnung, The, 6 C. Rob. 112 1067
Hogan y. Kurtz, 94 U. S. 773 (24:
317) 1149
Hoge y. Richmond & D. R. Co. 99 U. S.
348 (25': 303) 682,844
Hoke y. Henderson, 15 N. C. (4 Dey.
L.) 15, 25 Am. Dec. 677.. 224
Holden y. Hardy, 169 U. S. 366 (42:
780) 555, 749,918
HoUand y. Cballen, 110 U. S. 15 (28:
52) 478
y. Mobile ft 0. R. Co. 16 Lea,
414 1146
Hollander y. Fechheimer, 162 U. S. 326
(40:985) 234
Hollins y. Brierfield Coal ft I. Co. 150
U. 8. 371 (37: 1113)... 438, 1024
Holley River Coal Co. y. Howell, 36 W.
Va. 489 220
Holman y. Johnson [1775] 1 Cowp. 341
: 114,1123
Holmes y. Remsen, 4 Johns. Ch. 460, 8
Am. Dec. 581 837
Home Building ft C. Co. v. Roanoke, 91
Va. 52, 27 L. R. A. 551 ... . 379
Home Ins. Co. v. Morse, 20 Wall. 446
(22: 365) 438
V. New York, 134 U. S. 594 (33:
1025) 32fl
Hooper y. California, 155 U. S. 648
(39:297) 5 Inters. Com.
Ren. 610 298, 299, 556
21
Citations.
Hopkins, Re [1881] L. R. 18 Ch. Div.
370 656
• T. Oxley Stave Co. 49 U. S. App.
709, 83 Fed. Rep. 912 307
▼. United States, 171 U. S. 578
(43:290) 287,304
Hopt V. Utah, 110 U. S. 574 (28: 262)
206,459
Horn T. Lockhart^ 17 Wall. 670 (21:
657) 211,213,214
Horner t. United States, 143 U. S. 570
(36:266) 1064
Horn Silver Min. Co. v. New York, 143
U. S. 306 (36: 164) 4 In-
ters. Com. Rep. 67. .325,326,333
Houfifh ▼. Ci^ Fire Ins. Co. 29 Conn.
^ 10. 527
Houghton V. First Nat Bank, 26 Wis.
663, 7 Am. Rep. 107 928
Howard v. Smith, 91 Tex. 8 1063
Howard F. Ins. Co. v. Norwich & N.
Y. Transp. Co. 12 Wall. 194
(20:378) 338
Howell, Re [1737] 7 Vin. Abr. 101, pi.
13 648
T. [Dickennan] Circuit Judge,
88 Mich. 369 627
Howland v. Chicago, R. I. & P. R. Co.
134 Mo. 474 1146
Howe Machine Co. v. Gage, 100 U. S.
676 (25:754) 329,330
Hoyt v. Shelden, 1 Black, 518 (17:65) 526
▼. Thompson, 5 N. Y. 322 838
v. Thompson, 19 N. Y. 207 1091
Huclees y. Childrey, 136 U. S. 662 (34:
304) 898
Hull V. Blake, 13 Mass. 163 1146
Humboldt Min. Co. ▼. Variety Iron
Works Co. 22 U. S. App.
334 1089
Humboldt Twp. y. Long, 92 U. S. 642
(23:752) 697,1091
Hume y. Bowie, 148 U. S. 246 (37:
438) 469
Humphrey v. BaJcer, 103 U. S. 736 (26:
466) *. 772
Hunt y. Bay State Iron Co. 97 Mass.
279 412
Huntington v. Attrill] 146 U. S. 657
(36: 1123) 387
Hur8t*8 Lessee v. McNeil, 1 Wash. C. C.
70 688
Huse y. Glover, 119 U. S. 543 (30:
487) 297,706
HuBsey y. Smith, 99 U. S. 20 (25:314)
766
Hyde v. Stone, 20 How. 170 (15: 874) 438
Hyer y. Richmond Traction Company,
168 U. S. 471 (42:547).. 1122
Idaho & O. Land Imp. Co. y. Bradbury,
132 U. S. 509 (33: 433) ... 681
minois C. R. Co. v. Decatur, 147 U. S.
190 (37: 132) 447
y.niinois, 163 U. S. 142 (41:
107) 709,
710, 716, 716, 719, 720, 860, 861
▼. niinois, 146 U. 8. 387 (36:
1018) 960
t2
Illinois Trust & Sav. Bank y. Arkansas
City, 40 U. S. App. 257, 84
L. R. A. 518 846
Indiana y. Kentucky, 136 U. S. 479
(34:329) 880
Indiana & I. C. R. Co. y. Sprague, 108
U. S. 766 (26:554) 584
Indianapolis & St. L. R. Co. y. Vance,
96 U. S. 450 (24: 752) .... 1087
Inffraham v. Wheeler, 6 Conn. 277 839
Inland Fisheries Comrs. y. Holyc^e
Water Power Co. 104 Mass.
446, 6 Am. Rep. 247 748
Insuranoe Co. of Valley of Virginia y.
Barley's Admr. 16 Qratt
363 390
Interstate Commerce Commission y.
Brimson, 164 U. S. 447 (38:
1047) 4 Inters. Com. Rep.
545 288,564
Iowa Central R. Co. y. Iowa, 160 U. 8.
389 (40:467) 519
Iron Silver Min. Company y. Elgin Min.
& S. Co. 118 U. S. 196 (30:
98) 77,85, 175, 176,178
Irrawaddy, The, 171 U. S. 187 (43:
130) 807
Irvine v. Union Bank, L. R. 2 App.
Cas. 366 1092
Itinerant, The, 2 W. Rob. 236 804
J.
Jackson, Swartout, y. Johnson, 5 Cow.
74 (16 Am. Dec. 433) 1149
Jackson County Horse R. Co. v. Inter-
state Rapid Transit Co. 24
Fed. Rep. 306 849
Jacksonville, M. P. R. A Nav. Co. y.
Hooper, 160 U. S. 514 (40:
515) 1089
Jamaica Pond Aqueduct Corp. y.
Chandler, 9 Allen, 159 411
Jameson y. People, 16 III. 257, 63 Am.
Dec. 304 938
Jefferson Branch Bank v. Skelly, 1
Black, 436 (17:173)
384, 891,1064
Jefferys y. Boosey, 4 H. L. Cas. 815. . 906
Jeffries y. Great Western R. Co. 5 El.
& Bl. 802 425
Jenkins y. Pye, 12 Pet 241 (9: 1070) 599
Jenks V. Ludden, 34 Minn. 482 888
Jennings v. Carson, 4 Cranch, 2 (2:
631) 1076
Jennison v. Kirk, 98 U. S. 458 (25:
240) 76
J. E. Rumbell, The [1893] 148 U. a 1
(37:845) 888
Jeune Voyageur, The, 6 C. Roh. 1.... 1174
J. G. Paint, The, 1 Ben. 546 416
John G. Stevens, The, 170 U. S. US
(42:969) 419
John Hopkins, The, 18 Fed. Rep. 185. . 804
Johnson v. Farmers' Basic, 1 Harr.
(Del.) 117 862
y.Hunt, 23 Wend. 87 887
y.M'Intosh, 8 Wheat. 548 (5:
681) 5t7
y. Risk, 187 U. 8. 800 (84: 688) 381
Citations.
Johnson t. Towslej, 13 Wall. 72 (20:
485) 91,1113,1116
T. United States, 160 U. S. 546
(40:529) 761
▼.Waters, 111 U. S. 640 (28:
547) 430
Jolinson'i Adnirs. t. Johnson, 32 Ala.
637 527
JoDifft ▼. Brown, 14 Wash. 155 918
JoBM, Bx parte, 164 U. S. 691 (41:
601) 767,817
T.Brim, 165 U. 8. 180 (41:
677) 709,918
▼. League, 18 How. 76 (15: 263) 688
▼.Simpson, 116 U. S. 609 (29:
742) 498
J«Mi'i Heirs ▼. Perry, 10 Yerg. 59, 30
Am, Dec. 430 224
Jongs Andries. The, Swab. Adm. 303. . 417
Josefa Segunda, 10 Wheat 312 (61
329) 754
Jb7 ▼. St Louis, 138 U. S. 1 (34: 843) 412
▼.St Louis, 138 U. S. 44 (34:
857) 411
Juliet Erskine, The, 6 Notes of Cases,
633 804
Jnncti(Mi R. Co. ▼. Bank of Ashland, 12
Wall. 226 (20:385) 258
Jnstios ▼. Kesquehoning Vall^ R. Co.
gy pg^ 28 162
Justices ▼. Murray [1869] 9 Wail. 274
(19:658) 876,877
Kanaga ▼. St Louis, L. ft W. R. 06. 76
Mo. 207 163
Kansas P. R. Ck). ▼. Dunmeyer, 113 U.
S. 629 (28:1122) 1112,1115
▼. Presoott, 16 WaU. 603 (21:
373) 567
Kabktype Engraving O). ▼. Hoke, 30
Fed. Rep. 444 422
Kaokaima Water Power Co. ▼. Oreen
Bay & M Canal (Do. 142 U.
S. 254 (35: 1004)
372,374,526,582
KeOde ▼. Payne, 8 Ad. & El. 555. .. . 894
Kearney, Ex parte, 7 Wheat 38 (5:
391) 96
Keddie ▼. Moore [1811] 6 N. C. (2
Murph.) 41, 5 Am. Dec. 518 882
Keener ▼. Union P. R. Co. 31 Fed. Rep.
128 411
Kdlock's Case, L. R. 3 Ch. 769
642, 643, 652, 653,655,656
Kelly ▼. Crapo, 45 N. Y. 86, 6 Am. Rep.
35 838
▼. Pittsburgh, 104 U. 8. 78 (26:
658) 359
Kendall ▼. United States [Stokes]
[1838] 12 Pet 524 (9:
1181) 874
Kendig ▼. Dean, 97 U. S. 423 (24:
1061) 1007
Kennedy ▼. Gibson, 8 Wall. 498 (19:
476) 817,926
Kent ▼. United States, 68 Fed. Rep. 536 396
Kentudcy v. Dcnnison, 24 How. 66 (16:
717) 540
Kentucky & I. Bridge Co. ▼. Louisyille
& N. R. C^. 37 Fed. Rep.
567, 2 L. R. A. 289, 2 In-
ters. Com. Rep. 351 206
Kentucky Railroad Tax Cases, 115 U.
S. 321 (29:414) 1159
Keokuk & W. R. Ck>. v. Missouri, 152
U. S. 306 (38:453) 412
Keystone Manganese & I. Co. v. Mar-
tin, 132 U. S. 91 (33: 275) 234
Kidd v. Pearson, 128 U. S. 1 (32: 346)
2 Inters. Com. Rep. 232 65
Elilboum ▼. Sunderland, 130 U. S. 505
(32: 1005) 846
Kimball, Re, 18 Anp. Div. 320 933
King v. Amy & d. Coneol. Min. Co.
152 U. S. 222 (38: 419) . .85, 175
▼. De Berenger, 3 Maule ft S. 67 1121
T.Gallun, 109 U. S. 99 (29:
870) 1060
▼. Mullins» 171 U. 8. 404 (48:
214) 227
▼. Smith, 1 Leach, C. C. 288.. 895
Kingalock, The, 1 Spinks, Eod. ▼
Adm. 263 417
Kinnear ▼. Bausman, 172 U. S. 644
(43: 1182) 1185
Kipley ▼. niinois, 170 U. S. 182 (42:
998) 666, 843, 1180
Kirhy ▼. Huntsville Fertilizer & M. Co.
105 Ala. 529 197
Kirk ▼. Lynd, 106 U. S. 815 (27:
j93\ 1172 1173
Kirtiand ▼. Hotchidse,' 100 U. * S. 49l'
(25:558) 1145
Klinger ▼. Missouri, 13 Wall. 257 (20:
635) 381
Kneeland ▼. American Loan & T. Co.
138 U. S. 509 (34: 1052) . . 942
KnickerlK)cker Ins. Co. v. Comstock
(1872) 16 Wall. 258 (21:
493) 876
Knight ▼. United States Land Asso.
142 U.S. 161 (35:974).... 91
Knox County Comrs. ▼. Aspinwall, 21
How. 539 ( 16: 208) 1091
Koenigsfoerger ▼. Richmond Silver Min.
Go, 158 U. S. 41 (39: 889) 1088
Kohl ▼. Lehlback, 160 U. S. 293 (40:
432) 1183
Kreiger ▼. Shelby R. Co. 125 U. S. 39
(31:675) 526
Kring ▼. Missouri, 107 U. 8. 221 (27:
506) 206
Krippendorf ▼. Hyde, 110 U. 8. 276
(28: 145) 816
Lady Pike, The, 96 U. S. 461 (24: 672) 772
Lafayette Ins. Co. ▼. French, 18 How.
404 (15:461) 438, 572
Laflferty v. Chicago & W. M. R. Co. 71
Mich. 35 916
Lake County ▼. Graham, 130 U. S. 674
(32:1065) 695,696,697
▼. Rollins, 130 U. 8. 622 (32:
1060) 350,761
Lake Shore & M. S. R.- Co. v.Ohio, 173
U. S. 285 (43: 702) 860,861,864
▼. Prentice, 147 U. S. 101 (37:
97) 548
23
CITATIOR8.
Lake Superior Ship Canal R. & I. Co.
v. Cunningham, 155 U. 8.
354 ( 39 : 183 ) . . 422, 426, 427, 429
Lamar y. Micou, 112 U. S. 452 (28:
751) 213,214
Lamb t. Davenport, 18 Wall. 307 (21:
759) 322
▼.Lane [1854] 4 Ohio St. 167 878,884
Lambert t. Barrett, 157 U. S. 697 (39:
865) 1183
▼.Barrett, 159 U. S. 661 (40:
296) 1183
Landes ▼. Brant, 10 How. 348 (13:
449) 428
Laiming ▼. Carp^vter, 20 N. Y. 447. . 938
Loet Chance Min. Co. ▼. Tyler Min. Co.
157 U. S. 683 (30:859)... 85
Let ▼. Johnson, 116 U. S. 48 (29:
570) 615,822
▼.Smith, 84 Mo. 804, 54 Am.
Rep. 101 927
Lee County Supers. ▼. Rogers, 7 Wall.
181 (19: 160) 1064
Leep ▼. St. Louis, I. M. & S. R. Co. 58
Ark. 407, 23 L. R. A. 264 747
Leeper ▼. Texas, 139 U. S. 462 (35:
225) 378,526
Leffingwell v. Warren, 2 Black, 599
(17:261) 1064
Lehigh Coal & Nav. Co. ▼. Northamp-
ton County, 8 Watts & S.
334 422
Lehigh Min. & Mfg.* OoVv.keliy,* 160 U.
S. 327 (40:444) 688
Lehigh Water O). v. ESaston, 121 U. S.
388 (30:1059) 387,391
Leiber v. Union P. R. Co. 49 Iowa, 688 1146
Leighton ▼. United States, 161 U. S.
291 (40:703) 622,1012
Leisy ▼. Hardin, 135 U. S. 100 (84:
128) 3 Inters. Com. Rep.
36 53,57
Lenmion v. People, 20 N. Y. 607 436
Le Normand v. Compagnie (^n6rale
Traneatlantique, 1 Dalloz,
Jurisprudence Q4n6rale, 479 134
Lent y. Tillson, 140 U. S. 316 (35:
419) 461
Leominster ▼. Conant, 139 Maes. 384 453
Leonard v. Poole [1889] 114 N. Y. 371,
4 L. R. A. 728 1123
I^yasser ▼. Washburn, 11 Gratt.572 218,220
Levy y. Chicago Nat. Bank, 158 111. 88,
30 L. R. A. 330 642
y. Superior Ct. of Son Francisco,
167 U. S. 175 (42:126) 666
Lewis y. Northern R. R. 139 Mass. 294 677
V. Pima County, 155 U. S. 54 (39:
67) 499
▼. United States, 92 U. S. 623
(23:515) 044,653,664,667
Lexington & Ohio R. Co. v. Ormsby, 7
Dana, 276 163
License Cases, 5 How. 504 ( 12: 256) . . 861
License Tax Cases, 5 Wall. 462 (18:
497) 322
Lienow v. Ritchie, 8 Pick. 235 422
Lilla, The, 2 Sprague, 177 1175
Lincoln y. Power [1894] 151 U. S. 436
(38:224). 876
▼. Smith [1855] 27 Vt 328. . . . 884
Lincoln County v. Luning, 133 U. S.
529 (33:766) 438
24
LitUe ▼. Bowers, 184 U. 8. 547 (S3:
1016) 034
y. OUes, 118 U. S. 596 (30: 269) 680
Liyermore v. Jenckee, 21 How. 126 (16:
55) 887
Liverpool & Q. W. Steam Co. ▼. Pheniz
Ine. Co. 129 U. S. 397 (32:
788) 131,240
Liverpool Ins. Co. y. Maseaehuaetta, 10
Wall. 666 (19: 1029)... 440, 441
LiyingBton v. Moore [1833] 7 Pet 469
(8:751) 881
Llojd y. Soott, 4 Pet 205 (7:833) .. 476
Lodge ▼. Twell, 135 U. S. 232 (34:
153) 234,820,1185
Lod>er ▼. S<^roeder, 149 U. 8. 580 (37 :
856) 378,843
Logan ▼. Pyne, 48 Iowa, 524, 22 Am.
Rep. 261 349
Logan County Nat. Bank v. Townsend,
139 U. S. 67 (35:107).... 559
Lomer v. Meeker, 25 N. Y. 361 495
Loney, Re, 134 U. S. 372 (33: 949) . . . 701
Long y. Duluth, 49 Minn. 280, 51 N. W.
913 : 71
y. Hebb, Style, 341 428
Long Island Water Supply Co. v.
Brooklyn, 166 U. S. 685
(*i: 1165) 447,510
Lord Montague v. Dudmaa, 2 Yes. Sr.
396 406
Lord Proprietary y. Jennlitts, 1 Harr.
AMcH. 94 961
Lord Saumarez, The, 6 Notes of Cases,
600 804
Lott v. Waycross, 84 Qa. 681 849
Loudenback v. (Dolline, 4 Ohio St. 251 . . 138
Louisiana Mut. Ins. Ca v. Tweed, 7
Wall. 44 (19:65) 238
Louisville & N. R. Co. v. Louisville, 166
U. S. 709 141: 1173).. 843, 1185
Louisville Bridge Co. y. Louisville, 81
Ky. 189 825, 826, 827, 828
Louisville, C. & C. R. Co. v. Leteon, 2
How. 497 (11:353) 439
Louisville Gas Co. v. Citizens' Gas Co.
115 U. S. 683 (29: 510) 682, 844
Louisville, N. A. & C. R. Co. v. Boney,
117 Ind. 501, 3 L. R. A.
435 1088
Louisville Tobacco Warehouse Co. v.
Commonwealth, 48 S. W.
420, 20 Ky. L. Rep. 1047 . . 855
Louisville Water Co. v. Oark, 143 U.
8. 1 (30: 55) . .682, 844, 846, S4S
Low y. Henry, 9 Cal. 538 639, 640
Lowe V. Kansas, 163 U. S. 81 (41: 78) 913
V. Loomis, 53 Ark. 454 476
Lowndes v. Huntington, 153 U. S. 1
(38:616) O.'iS
Lucas y. Brooks, 18 Wall. 436 (21 : 779) 5so
Lunt v. Brown, 13 Me. 236 422
Luther v. Borden, 7 How. 1 (12: 581) 104V4
Lutz V. Magone, 153 U. S. 105 (38:
651) 470
Lynch v. Bernal, 9 Wall. 315 (19: 714) 428
Lytle y. Arkansas, 9 How. 333 ( 13 :
160)
M.
McAllister y. United States, 141 U. 8.
174 (^5:693)
314
Citations.
McArtlmr ▼. Seott» 113 U. 8. 340 (28:
1016) 245
McAulay ▼. Western Vermont R. R. Oo.
83 Vt. 311, 78 Am. Dec. 627
161,162
MeAulej r. Coluhibua, C. & I. R. Co. 83 *
111. 348 1088
MeBlair t. Gibbes [1854] 17 How. 232
(15: 132) 1123, 1124, 1126, 1128
HcCall ▼. California, 136 U. 8. 104
(34:391) 3 Inters. Com.
Rep. 181 299
McCarthy v. De Armit, 99 Pa. 63 660
IfeClure v. Campbell, 71 Wis. 350 839
T. Maitiand, 24 W. Va. 661
220,224,225
▼. UnHed States, 116 U. S. 146
(29:672) 771
lleCool y. Smith, 1 Black, 469 (17:
218) 741
McCormack y. Patchin, 63 Mo. 36, 14
Am. Rep. 440 448
MeCormick y. Hayes, 169 U. 8. 332
(40: 171) 91
y. Market Nat Bank, 165 U. 8.
549 (41:821) ..633, 1010, 1092
V. Varnes, 2 Utah, 355 77
McCready y. Virginia, 94 U. S. 391
(24:248) 436
HX^ullodi y. Maryland, 4 Wheat 316
(4:679) 834,862
McCullough y. Virginia, 172 U. 8. 102
(43:382) 626
McDonald y. Hoyey, 110 U. 8. 619 (28:
269) 1149
▼. Schell [1820] 6 8erg. & R. 240
882,883
MDonneU y. Smalley, 1 Pet 620 (7:
287) 688
McDowell y. United States, 169 U. 8.
696 (40:271) 766
McEroy y. Hyman, 25 Fed. Rep. 596. . 81
McFall y. Commonwealth, 2 Met.
(Ky.) 394 831
McFarland y. McKnight, 6 B. Mon.
500 831
MeOahey y. Virginia, 135 U. 8. 666
(34:305). . . 383, 384, 385, 386
McGonrkey v. Toledo & 0. C. R. Co. 146
U. 8. 536 (36: 1079).. 234, 1185
MackaU y. Mackall (1890) 136 U. 8.
167 (34: 84) 600
y. Richards, 116 U. 8. 46 (29:
668) 772
McKee y. Rains [1869] 10 Wall. 22
(19:860) 877
McLean y. Hager, 31 Fed. Rep. 602.. 617
McLish y. Roff, 141 U. 8. 661 (35: 893)
1102, 1179, 1180
McNeal y. Waco, 89 Tex. 83 (1895) . . 1063
M^eO y. Scoffield [1808] 3 Johns.-
436 885
Macon y. Patty, 57 Miss. 378, 34 Am.
Rep. 451 448
McQuade y. Trenton, 172 U. 8. 636
(43:581) 778
Madden y. Day, 24 Colo. 418 636
Maddoz y. Stewart [1824] 2 Cranch,
C. C. 523 887
Madden y. Day, 24 Colo. 418 636
Magoon y. Illinois Trust & Sav. Bank,
170 U. 8. 283 (42: 1037)..
554, 794, 913
Mahan y. United States, 14 Wall. 109
(20: 764)... 621
Mahaney y. Kephart, 15 W. Va. 609. . . 1146
Mahony y. East Holyford Min. Co
[1875] L. R. 7 H. L. 869 1091
Maine C. R. Co. v. Maine, 96 U. 8. 499
(24: 836) 682, 683, 843, 848
Malever y. Spinke, 1 Dyer, 36 423
Mammoth Min. Co. y. Salt Lake Foun-
dry & Mach. Co. 161 U. 8.
447 (38:229) 316, 681
Manitoba, The, 122 U. 8. 97 (30: 1095)
806, 807
Mann, Re, 32 Minn. 60 838
y. Tacoma Land Co. 163 U. 8.
273 (38:714) 961
Manning, Re, 76 Wis. 365 766
Re, 139 U. 8. 604 (35 : 264) .... 766
Manuel y. Wulff, 152 U. 8. 510 (38:
634) 76,822
Marchant y. Pennsylyania R. Co. 163
U. S. 380 (38: 751) . . . .379, 918
Marcy y. Oswego Twp. 92 U. 8. 637
(23:748) 697
Marine Bank y. Fulton County Bank,
2 Wall. 252 (17:785).... 363
Mark Lane, The, L. R. 16 Prob. Diy.
135 418
Marks y. United States, 161 U. 8. 297
(40:706) 622
Marshall y. Baltimore & O. R. Co.
[1853] 16 How. 314 (14:
953) 1123
▼• Burtis, 172 U. 8. 630 (43:
6<9) 1079
T. Donoyan, 10 Bush, 681 [1874] 832
y. McDaniel, 12 Bush, 378 221
Marsteller y. McClean, 7 Cranch, 166
. (3:300) 1160
Martin y. Baltimore & O. R. Co. 161 U.
8. 673 (38:311).... 679, 1087
y. Hunter's Lessee, 1 Wheat. 304
(4:97) 388
▼. Snowden, 18 Gratt. 100 218, 219
y. Upehur Guaao Co. 77 Ga. 257 197
y. Waddell, 16 Pet S67 (10:
997) 957, 958
y. Webb, 110 U. 8. 16 (28: 62) 928
Marye v. Baltimore & 0. R. Co. 127 U.
8. 123 (32: 96) 904
y. Parsons, 114 U. 8. 325 (29:
205) 883
Mary Thomas, The [1894] P. 108 135
Mason y. Bogg, 2 Myl. & C. 443
643, 651, 652, 665, 656
Mather Humane Stock Transp. Co. y.
Anderson, 46 U. 8. App. 138 942
Mathers v. Miniarters of Trinity Church,
3 Serg. &, R. 515, 8 Am. Dec.
663 42&
Matthews y. Hudson, 81 Ga. 120 424
y. Missouri, K. & T. Trust Co.
69 Minn. 319, 72 N. W. 121 476
Mattingly y. District of Columbia
[1878] 97 U. 8. 687 (24:
1098) 874
Mattox y. United States, 146 U. 8. 140
(36:917) 896
Maury v. Commonwealth, 92 Va. 310 390
Maxmilian v. Mayor of New York, 62
N. Y. 160 346
Maxwell y. Atchison, T. & S. F. R. Co.
34 Fed. Rep. 280 574
25
GiTAnOHB.
Maxwell t. Stewart^ 21 WalL 71 (22:
564) 946
Maxwell's Lessee t. Levy, 2 Dall. 381
(1:424) 688
Maj T. JuDeau County, 30 Fed. Rep.
24X 422
▼. Slade/24'Texi 266!.'!!'..'!!.' 1150
Maynard v. Heehty 151 U. S. 324 (38:
179) 1186
Mayor, etc. of BalUmore t. Baltimore
ft 0. R. Oo. 6 Qill, 288, 48
Am. Dec. 581 412
▼. Radecke, 49 Md. 217, 83 Am.
Rep. 239 605
Mayor of York v. Pilkington, 2 Atk.
802 405, 406
Mays ▼. Fritton, 20 Wall. 414 (22:
389) 432
Meador ▼. Norton, 11 Wall. 442 (20:
184) 612
Meagher ▼. Minnesota Thresher Mfg.
Go. 145U. S. 608 (36:834)
469
Mears ▼. London & S. W. R. Co. 11 C.
B. N. S. 850 423
Medina, The, L. R. 2 Prob. DiT. 5, 1
Prob. Div. 272 417
Mehlhop T. Ellsworth, 95 Iowa, 657.. 257
Meister v, St Paul, etc., R. Co. 14 Land
Dec. 624 1116
Mellen ▼. Buckner, 139 L. S. 388 (35:
199) 430
Memphis ft C. R. Co. y. Alabama, 107
U. S. 581 (27: 618) 1087
Mercantile Bank v. New York, 121 U.
S. 138 (30: 895) 678, 857
M«}rcantile Mut Ine. Co. v. Folsom
[1873] 18 Wall. 237 (21:
827) 876
Mercer's Lessee y. Selden, 1 How. 87
(11:38) 1149
Merchants' Mfg. Co. y. Grand Trunk
R. Co. 13 Fed. Rep. 358. .572, 5/5
Mercfaarts' Nat. Bank y. State Nat.
Bank, 10 Wall. 604 (19:
1008) 1091
Mercurius, The, 1 C. Rob. 80 1067
Merriam y. Hartford ft N. H. R. Co. 20
Conn. 354 728, 730, 781
y. Smith, 11 Fed. Rep. 588 422
Merrill R. ft L. Co. y. Merrill, 80 Wis.
358 349
Merryweather y. Nixon, 8 T. R. 186 . . 550
Mersey Docks A Harbor Board Trus-
tees y. Gibbs, L. R. 1 H. L.
93 ygg
Metcalf y. Watertown, 128 U. S. 686
(32:543) 767
Metropolitan Bd. of Excise y. Barrie,
34 N. Y. 57 348
Metropolitan R. Co. y. District of Col-
umbia, 132 U. S. 1 (33:
231) 125
▼. Moore [1887] 121 U. S. 558
(30: 1022) 886
Mexican C. R. Co. v. Pinkney, 149 U. S.
194 (37: G99) 574, 668
Meyer y. Cox, 169 U. S. 735 (42:
1207) 1179, 1180
Michigan Land ft L. Co. y. Ru»t, 168
U. S. 589 (42:591) 79,774
Michoud y. Girod, 4 How. 503 (11:
1076) 612
Middletoo y. Middleton. 54 N. J. 8a.
692, 36 L. R. A. 221 918
Millar y. Taylor, 4 Burr. 2303 905
Miller y. Brooklyn Life Ins. Co. [1870]
12 WaU. 285 (20:898).. 876
' y. CornwaU R. Co. 168 U. 8. 131
(42:409) 519
y. NichoUa, 4 Wheat. 811 (4:
578) 888,528
y.Texas,153 U.S. 535 (88: 812) 84t
▼. United SUtes, 11 WalL 268
(20:135) 1178
Boiler's Appeal, 35 Pa. 481 642
Miliar Re, 185 U. S. 268 (84: 107) 815, 1062
y. Green, 159 U. 8. 651 (40:
293) 934
Milwaukee y. Koeffler, 116 U. 8. 219
(29:612) 856
Milwaukee ft M. R. Co. y. Milwaokee
ft St. P. R. Co. 2 WalL 609
(17:886) 816
Milwaukee ft St P. R. Co. y. K^ogg,
94 U. S. 469 (24:256).. 239
Mineral Point R. Co. y. Barron, 88 HL
365 1147
Ifinneapolis ft St. L. R. Oo. y. Beck-
with, 129 U. S. 26 (32:
. 585 564,555,861
▼. Emmons, 149 U. S. 364 (37:
769) 919
Ifinnesota y. Barber, 136 U. 8. 313
(34:455) 8 Inters. Com.
Rep. 185.. 53, 196, 325, 331, 332
Mintum y. Luiie, 28 How. 435 (16:
574) 71, 849
Mississippi ft M. R. Co. y. MoClure, 10
Wall. 511 (19:997) 769
y. Rock, 4 Wall. 177 (18: 881) 526
Missouri y. Andriano, 138 U. S. 496
(34:1012) 1180
▼. Lewis, 101 U. 8. 22 (25: 989)
521,918
Missouri, K. ft T. R. (>). y. Haber, 169
U. S. 613 (42: 878) 707, 710, 717
▼. Roberts, 152 U. S. 144 (88:
377) 411
Missouri, K. ft T. Trust Oo. y. McLadi-
Ian, 59 Minn. 468 476
Missouri, Laclede Gkislight Co., y. Mur-
phy, 170 U. S. 78 (42:
955) 348
Missouri P. R. Co. y. Fitzgerald, 160 U.
S. 556 (40:536)
519,936, 1179, 1185
▼.Henning, 48 Kan. 465 911
y. Humes, 115 U. a 512 (29:
463) 910, 914, 918
y.Mackey, 127 U. S. 205 (32:
107) 554. 556, 748, 9n
. T. Merrill, 40 Kan. 404 910
T. Sharitt, 48 Kan. 375, 8 L. R.
A. 385 1145, 114U
Mitdiell y. Burlington, 4 WalL 270
(18:360) 1064, 1065
y. United States, 9 Pet 711 (9:
283) 147
Mitchell Coun^ y. City Nat Bank, 91
Tex. 361 1063, 1064, lOeiS
Mobile ft O. R. Co. y. Tennessee, 158 U.
S.486 (38:793) 889
Mobile County y. Kimball, 102 U. a
691 (26:238) 447,454
Citations.
Ilobley ▼. Brunncr, 59 Pa. 481, 98 Am.
Dec. 360 1150
Mohawk, Tfa«, 8 Wall. 153 (19: 406) . .
239, 240
MosongahelaNay.Co. v. United States,
148 U. 8.312 (37:463)....
288, 296, 980
Mdntaiia Co. Limited y. Qark, 42 Fed.
Rep. 626 178
MonteUo, Tlie^ 11 WalL 411 (20: 191) .
1139, 1140
The, 20 Wall. 430 (22: 391) . . . 369
MbntgOTury y. Uoited States, 162 U. S.
410 (40: 1020) 473
Moonfij y. Buford & George Mfg. Co. 34
U. S. App. 581, 72 Fed. Rep.
32 1146
Mooroock, The, L. R. 13 Prob. Diy. 157 769
Moore y. Chicago, R. I. ft P. R. Co. 43
Iowa, 386 1147
y.Greenhow, 114 U. S. 340 (29:
240) 383
y. Marsh, 7 Wall. 616 ( 19 : 37 ) 422
Mooies y. Wait, 3 Wend. 104 423, 429
Moran y. Miami County Comrs. 2
Black, 722 (17:342) 1091
More y. Steinbadi, 127 U. S. 70 ( 32 : 51 ) 146
Morford y. Barnes [1835] 8 Yerg. 444
882, 883
Morgan y. Curtenius, 20 How. 1 (16:
823) 1064
y. Morgan, 2 Wheat 290 (4:
242) 1088
y.Nunn, 84 Fed. Rep. 651 203
y Richardson, 13 Allen, 410.. 1110
v.Varick, 8 Wend. 587 423
Morgan's L. & T. R. ft S. S. Co. y. Lou-
isiana Bd. of Health, 118 U.
S. 465 (30:237) 61, 707
Morley y. Lake Shore ft M. S. R. Co. 146
U. S. 166 (36: 928) 631, 765
Morning Light, The, 2 Wall. 660 ( 17 :
862) 804
Morrdl y. Quarles, 36 Ala. 644 739
Mtnrioe y. Bank of England, Cas. t>
Talb. 218 663
Morris y. Gilmer, 129 U. S. 816 (32:
690) 680
y. Wheat, 8 App. D. C. 379 1140
McHTison y. Brown, 83 111. 662 603
y. Lovejoy, 6 Minn. 183 627
y.Stalnaker, 104 U. S. 213 (26:
741) 822
Moseley y. Brown, 76 Va. 419 890
Moses y. Ranl^ [1822] 2 N. H. 488. . . 644
Moses Bros. v. Johnson, 88 Ala. 517 . . 423
Monlton y. Reid, 54 Ala. 320 203, 695
Mngler y. Kansas, 123 U. S. 623 (31:
205) 55
Mulgraye, The, 2 Hagg. Adm. 77 417
Mum y. niinois, 94 XT. S. 125 (24: 84) 864
MunoE y. Wilson, 111 N. Y. 295 495
Mnrdock y. Memphis, 20 Wall. 690
(22:429) 66
Murphy y. Louisville, 9 Bush, 189... 1033
Mnsser v. iMcRae. 44 Minn. 343 424, 428
Myers v. Croft, 13 Wall. 291 (20: 562) 322
V.Hale, 17 Mo. App. 204 420
N.
Nancy, The, 1 Acton, 57
1067
Nashville, C.ftSt. L. R. Co. v. Alabama,
128 U. S. 96 (32: 352) 2
Inters. Com. Rep. 238.... 707
Nathan v. Louisiana, 8 How. 73 (12:
993) 330
National Bank y. County of Yankton,
101 U. S. 129 (25: 1046). 601
National Fire Ins. Co. v. Chambers, 63
N. J. Eq. 468 1146
National Steamship Co. y. Tugman, 106
U. S. 118 (27:87) 439
Neagle, Re [1890] 136 U. S. 1 (34: 66)
701, 886
Needham v. Thayer, 147 Mass. 536... 813
Neilson v. Garza, 2 Woods, 287 193, 196
Neslin y. Wells, 104 U. S. 428 (26:
802) 316
Nesmith y. Sheldon, 7 How. 812 (12:
925) 1064
Newgass y. New Orleans, 33 Fed. Rep.
196 664,665
New Jersey v. New York, 6 Pet. 284
(8: 127) 640
y. Wilson, 7 Crajich, 164 (3:
303 )... .. 388
▼.Yard, 95 U. 8. 104 (24: '362)
845, 848, 849
N«w Orleans v. Abbagnato, 23 U. S.
App. 633, 26 L. R. A. 329. . 346
▼.Benjamin, 153 U. S. 411 (38:
764) 664, 666, 941
▼. Citizens* Bank, 167 U. S. 371
(42:202) 868, 1036
▼. aark, 96 U. S. 644 (24: 621)
601,799, 800
y. New Orleans Waterworks Co.
142 U. S. 79 (36: 943) ... . 683
▼. New York Mail Steamship Co.
20 Wall. 387 (22: 364) .... 96
▼. United States, 10 Pet 662 (9:
673) 964
N«w Orleans Gaslight Co. y. Louisiana
Light H. P. ft Mfg. Co. 116
U. S. 650 (29: 616) 330, 345
y. New Orleans, 42 La. Ann. 188 349
New Orleans Waterworks Co. y. Louisi-
ana Sugar Ref. Co. 126 U.
S. 18 (31 : 607) . . . .387, 391, 626
▼.New Orleans, 164 U. S. 471
(41: 518) 345
▼.Rivers, 115 U. S. 674 (29:
525) 845
Newport Light Co. v. Newport, 151 U.
S. 100 (39:84) 96
Newton y. Commissioners, 100 U. 8.
548 (25:710) 676
New York v. Eno, 165 U. 8. 89 (39 : 80)
542, 543
New York C. ft H. R. R. Co. v. Fraloflf
[1879] 100 U. S. 24 (25:
531) 876
New York Iron Mine v. First Nat. Bank,
39 Mich. 644 927
New York, L. E. ft W. R. Co. y. Penn-
sylvania, 158 U. S. 431
(39: 1043) 296
New York Life Ins. O. v. Smith (Tex.
Civ. App.) 41 S. W. 680.. 918
New York, N. H. ft H. R. Co. v. New
York, 165 U. S. 628 (41:
853) 707
2T
Citations.
New York (New York Electric Lines )
V. Squire, 145 U. 8. 176
(36:666) 348
New York, S. & W. R. R. Co. ▼. Trim-
mer, 53 N. J. L. 3 412
Nichols ▼. United States, 7 WalL 122
(19:125) 781, 782
Nickerson ▼. TirrdI, 127 Mass. 236. . . 758
Nightingale, Petitioner, 11 Pick. 168. . 6P5
NiieB Waterworks ▼. Niles, 69 Mich.
311 349
Noble v. Union R. L. R. Co. 147 U. S.
165 (37: 123) 774
Nobles ▼. Georgia, 168 U. S. 398 (42:
616) 631
Norfolk ft W. R. R. Ca V. Pendleton,
156 U. S. 667 (39: 574) .. 412
Norfolk City v. Chamberlaine, 29
Gratt 634 379
Norris ▼. Haggin, 136 U. S. 386 (34:
424) 613
North Car(^ina v. Temple, 134 U. S. 22
(33: 849) 640
North Carolina, The, 16 Pet 40 (10:
663) 416
North Carolina R. Ck>. y. Swas^, 23
Wall. 405 (23 : 136) 820
Northern Bank v. Porter Township, 110
U. S. 608 (28: 268).. ..694, 697
Northern P. R. Co. v. Clark, 153 U. S.
252 (38:706) 4 Inters.
Com. Rep. 641 452, 466
▼.Ck>lbum, 164 U. S. 383 (41:
479) 161, 1116
▼.Patterson, 164 U. S. 130 (38:
934) 668
▼.Sanders, 166 U. S. 620 (41:
1139) 1115
▼. Stovenour, 10 Land Dec 645 1116
▼.Traill County, 115 U. 8. 600
(29:477) 667
▼. Wright, 7 U. 8. App. 602 667
Northern Transp. C^. v. Chicago, 99 U.
S. 635 (25:336) 379
North Missouri R. Co. v. Stephens, 36
Mo. 160, 88 Am. Dec. 138 1032
North Star, The, 106 U. S. 17 (27:
91) 806, 807
Northwestern Fertilizing Co. ▼. Hyde
Park, 97 U. S. 669 (24:
1036) 348, 576
Northwestern U. Packet Co. ▼. St.
Louis, 100 U. 8. 423 (25:
688) 297
Norton ▼. McLeary [1868] 8 Ohio St
205 884
▼. Shelby County, 118 U. 8. 426
(30: 178) 766
Norwich O). v. Wright, 13 Wall. 104
(20: 685) 807
Norwich (Jaislight Co. v. Norwich City
Gas Co. 25 Conn. 19 349
N. Strong, The [1892] P. 106 806
O.
Oakey ▼. Bennett, 11 How. 83 (13:
693) 838
O'Connell ▼. Menominee Bay Shore
Lumber Co. 113 Mich. 124,
71 N. W. 449 918
88
O'Connor ▼. Walter, 87 Neb. 267, 28 L.
R. A. 660 1147
Ogden ▼. Saunders, 12 Wlieai. 213 (6s
606) 837
Ohio & M. R. Co. ▼. Mcdare^ 10 WaU.
611 (19:997) 392
▼.Wheeler, 1 Blade, 286 (17:
130) 439, 1087, 1092
Ohio & P. Coal Co. ▼. Smith, 63 Obdo
St. 313 678
Ohlquest ▼. Farwell, 71 lowm, 231.... 1032
Olcott ▼. Fond du Lac County Supers.
16 Wall. 678 (21:382)... 1064
Omaha ft N. W. R. Co. ▼. Redick, 16
Neb. 313 162
Opinion of the Justices [1860] 41 N.
H. 660 878
Orchard v. Alexander* 167 U. 8. 372
(39:737) n4
Oregon ▼. Jennings, 119 U. 8. 74 (80:
323) 696
Oregon R. ft Nav. Co. ▼. Or^onian B.
Co. 130 U. 8. 1 (32:837). 71
Orient Ins. Co. v. Daggs, 172 U. S.
557 (43:562) 749
Origet ▼. Hedden, 165 U. 8. 228 (89:
130) S96
Orleana v. Pl&tt, 99 U. 8. 076 (26:
404) 694
Osbom ▼. Adams, 18 Pidc. 246 887
▼. Bank of United States, 9
Wheat. 738 (6:204)
....494, 540, 862
▼. New York ft N. H. R. Co. 40
Conn. 491 412
O^wme ▼. Florida, 164 U. 8. 660 (41:
686) 721
▼. Humphrey, 7 Conn. 336. . • 412
Otoe County v. Baldwin, 111 U. a 1
(28: 331) 661
Ouachita ft M. R. Packet Co. ▼. Aiken
121 U. 8. 444 (30: 976) 1
Inters. Com. Rep. 379 297
Ould ▼. Washington Hospital, 96 U. a
303 (24:460) 962
Oxley Stave Co. v. Butler Ck>unty, 166
U. S. 648 (41: 1149)
..368, 526, 666, 843, 1180, 1185
P.
Pacific R. Co. v. Missouri P. R. Co. Ill
U. S. 506 (28:498) 816
Pacific Railway Removal Cases, 116 U.
S. 1 (29:319) 494
Packard ▼. Ames, 16 Gray, 329 426
Packer ▼. Nixon, 10 Pet 408 (9: 473) 1180
Pace y. Moffett, 86 Fed. Rep. 38 203
Paine v. Lester, 44 Conn. 196, 26 Am.
Rep. 442 840
PaUiser, Re, 136 U. S. 262 (34: 617) 404
Palmer v. Corning, 166 U. S. 342 (39:
445) 1060
▼. Forbes, 23 HI. 301 412
▼. McMahon, 133 U. 8. 660 (33:
772) 867
Panama R. Co. ▼. Napier Shipping Co.
166 U. S. 280 (41: 1004) 769
Pardridge ▼. Brady, 7 HI. App. 689. . 660
Parker ▼. Redfield, 10 Onm. 490 412
▼. Russell, 133 Mass. 74 695
▼. Spencer, 61 Tex. 156 813
Plutersburff & 0. R. Tranap. Ck>. y.
Parkersburg, 107 U. S. 691
(27:684) 297
Ptok Hotel Ck>. v. Fourth Nat Bank,
58 U. S. App. 674, 86 Fed.
Rep. 742 927
Fukhnnt v. Salem [Parkhiu'st v. Capi-
tal City R. Co.] 23 Or. 471,
82 Pac. 304 71
Parr, Ez parte, 1 Rose, Bankr. Rep. 76 657
PartODB T. Bedford [1830] 3 Pet 433
(7:732) 876,877,887
▼. District of Columbia, 170 U.
S. 45 (42: 943) 453, 874
Patdi V. White, 117 U. S. 221 (29:
g^ ^ gy2
P^trie V. Murray [1*864] *43 Barb. 323 877
PattenoQ t. Kentucky, 97 U. S. 501
(24: 1115) 348
PMil T. Virginia, 8 Wall. 168 (19:
357)
325, 326, 436, 437, 440, 441, 554
Paulsen v. Portland, 149 U. S. 30 (37:
637) 461
Ptaly ▼. State Loan & T. Co. 165 U. S.
606 (41:844) 1182
Payne ▼. Robertson, 169 U. S. 323 (42:
764) 614
Peacock, Ex parte, [1825] 2 Qlyn & J.
27 657
Pearoe y. Madison & I. R. Co. 21 How.
441 (16: 184) 1090
Pearson t. Portland, 69 Me. 278 918
Pedrick v. Bailey, 12 Gray, 161 605
Peiroe t. New Hampshire, 46 U. 8. 5
How. 504 (12:256) 53
PdmU ▼. Elliott, 6 Pet 95 (8:332)
963, 1088
Ptalham T. Rose, 9 Wall. 103 (19:
602) 1173
Ptaibina Consol. Silver Min. & M. Co.
V. Pennsylvania, 325 U. S.
181 (31: 650) 2 Inters. (^m.
Rep. 24 326
Peniield y. Chesapeake, 0. & S. W. R.
Co. 134 U. S. 351 (33:
940) 1147
Pennoyer v. McConnaughy, 140 U. S.
1 (36:363) 541
V. Neflf, 95 U. S. 714 (24: 565)
574, 638, 668, 677, 812, 814
Pennsylvania R. Co. v. Jones, 155 U.
S. 333 (39: 176) 552
▼. St. Louis, A. & T. H. R. Co.
118 U. S. 290 (30:83)... 1087
People T. Bawden, 90 Cal. 195 460
T. Kamauuu, 110 Cal. 609 460
▼• Marx. 99 N. Y. 377, 52 AnL
Rep. 34 53
y. Maynard, 15 Mich. 463 938
y. Mayor, etc., <rf New York, 11
Abb. Pr. 66 1032
▼. New York Tax & A. Comrs.
[1866] 4 Wall. 244 (18:
344) 856, 857
v. O'Brien, 11 N. Y. 1, 2 L. R. A.
255 861
v. Remington, 121 N. Y. 328, 8
L. R. A. 458 644, 654
People, ex rel. Ballou, v. Bangs, 24 111.
187 766
CiTATioirs.
People, ex rel. Blackinton Co., v. Rob-
erts, 4 App. Div. 388 325
Blanding, v. Burr, 13 Cal. 343
799
412
934
70
Dunkirk & F. R. Co., v. Cassity,
4w J^ . X . 40. . . . ..........
Kingsland, y. Clark, 70 N. Y.
518
Le Roy, v. Hurlbut, 24 Mich. 44,
9 Am. Rep. 103
Park CiHnmissioners, v. Detroit,
28 Mich. 239, 15 Am. Rm.
202 70
People's Bank v. Manufacturers' Nai.
Bank, 101 U. S. 181 (25:
907) 928
Pepke y. Cronan« 155 U. S. 100 (89:
84) 96
Tepperell, The, Swabey, Adm. 12 . • . 804
Peralta Case, 19 How. 343 (15: 678) . . 144
Perrin v. United States. 171 U. S. 292
(43: 169) 165
Peterhoff, The, 5 Wall. 28 (18:564) 1076
Pettibone v. La Crosse & M. R. R. Co.
14 Wis. 443 163
Peyroux v. Howard, 7 Pet 324 (8:
700) 1189
Phantom, The, L. R. 1 Adm. & Ecd.
58 417, 418
Philadelphia Fire Asso. v. New York,
119 U. S. 110 (30:342).. 441
Philadelphia, W. & B. R. Co. v. PhUa-
delphia & H. de 6. Steam
Towboat Co. 23 How. 209
(16:433) 758
▼. Quigley, 21 How. 202 (16:
73) 547
PhiUips V. Detroit, 111 U. S. 604 (28:
532) 1060
▼. Negley, 117 U. S. 665 (29:
1013 945
Phosnix Bank v. Risley, 11 U. S. 125
(28: 374) 863
Phoenix Ins. Co. v. Erie & W. Transp.
Co. 117 U. S. 312 (29: 873) 240
Phoenix Mut L. Ins. Co. y. Bailey, 13
Wall. 616 (20: 501) 346
Pidcering v. McCullough, 104 U. S.
310 (26:749) 907
Pierce y. New Hampshire, 5 How. 593
(12:296) 330
▼. Somerset R. Co. 171 U. S.
. 641 (43:316) 382
Pigot's Case, 11 Coke, 27b 387
Pim y. St Louis, 165 U. S. 273 (41:
714) 1180
Pinge y. United States, 38 U. S. App.
250 579
Pittsburg & S. Coal Co. y. Bates, 156
U. S. 577 (39:538) 805
T. Louisiana, 156 U. S. 590 (39:
544) 5 Inters. Com. Rep. 18
193,297, 807
Pittaborg, C. ft St L. Railway Co. y.
Board of PubUo Works, 28
W. Va. 264 359
Pitteburgh, C. C. & St L. R. Co. y.
Backus, 154 U. S. 421 (38:
1031) 326, 358, 359, 903
y. Board of Public Works, 172
U. S. 32 (43:354) 834
Pizarro, The, 2 Wheat 227 (4:226) .. 1071
29
CiTATIONB.
Planters' Bank y. Union Bank (1872)
16 Wall. 483 (21:473)...
211, 1124, 1128
PleMT ▼. Ferguson, 163 U. S. 537 (41:
256) :... 918
Plnmley ▼. Massachusetts, 156 IT. S.
462 (39: 223) . . . .55, 59, 60, 196
Plummer, Re [1841] 1 Phill. Cni. 56 657
Poindezter v. Greenhoiw, 114 U. S. 270
(29: 185) 383, 541
Polk's Lessee v. Wendal, 9 Cranch, 87
(3:665) 1064
PoUard ▼. H(^eman [1816] 4 Bibb,
416 883
Pollock ▼. Farmers' Loan &, T. Go. 157
U. S. 429 (39:759); 158
U. S. 601 (39: 1108) 798
Pomeroy y. Hand, McNally & Go. 157
111. 176 1146
Pool y. Boston, 5 Gush. 219 739
Porter v. Pittsburg Steel Bess«ner Go.
122 U. S. 267 (30: 1210) . . 412
Portsmouth, The, 9 WaU. 682 (19:
754) 239
Poet y. Jones, 19 How. 150 (15: 618) 416
y. Kendall Gounty Supers. 105*
U. S. 667 (26:1204) 1064
Posthoff y. Schreiber, 47 Hun, 593 496
Potomac Steamboat Ga y. Upper Poto-
mac Steamboat Go. 109 U.
8. 072 (27: 1070)
965, 971, 978, 1004
Potter y. United States, 155 U. S. 438
(39:214) 1152
Pound y. Turdc, 95 U. S. 459 ( 24 : 525 ) 705
Powell y. Brunswick Gounty, 150 U. S.
440 (37: 1137) 369, 667
y. Pennsylyania, 127 U. S. 678
(32:253) 55, 58, 59, 60
Pratt y. Grand Trunk R. Go. 95 U. S.
43 (24:336)
728, 729, 780, 781
Press Pub. Go. y. Monroe, 164 U. 8. 105
(41:367) 816
Preyost y. Gratz, 6 Wheat. 481 (5:
311) 612
Price V. Forrest, 54 N. J. Eq. 669 762
Prince of Wales Life & £. Assur. Go. y.
Harding [1858] £1. Bl. A
El. 183 1091
Prinz Heinrich, The, L. R. 13 Prob.
Diy. 31 417, 418
Prize Gases, 2 Black, 635 (17: 459) . . 1175
Proprietors of Mill Dam Foundery y.
Hovey, 21 Pick. 440 186
Proyidenoe Tool Co. y. Norris, 2 Wall.
45 (17: 868) 1121
Proyident Inst, for Say. y. Mass^achu-
setts, 6 Wall. 61 1 ( 18 : 907 ) 826
Provident Sav. L. Soc. v. Ford, 114 U.
S. 635 (29:261) 817
Proyolt y. Ghicago, R. I. A P. R. Go. 67
Mo. 25C 162
Pryor y. Hays [1836] 9 Yerg. 416 882
I's Palace Gar Go. y. Gentral
Transp. Go. 171 U. S. 138
(43: 108) 633, 1103
y. Pennsylvania, 141 U. 8. 18
(35:613) 3 Inters. Gom.
Rep. 595.326, 902, 903, 904, 1146
Pumpelly v. Green Bay & M. Ganal Go.
13 Wall. 166 (20: 657) .879, 1018
80
Purdy T. Doyle, 1 Paige, 668 653
Pyeatt ▼. PoweU, 10 XL a App. 800. .. . 318
Qninej ▼• Kennard, 151 Mass. 663. . • • €06
Rahrer, Re [Wilkerson y. Rahrer] 140'
U. S. 545 (36: 572).. 57, 58,720
RaUi v. Troop, 157 U. S. 386 (39: 742) 131
Ralston y. Turpin [1889] 129 U. S. 663
(32:747) 600
Randall y. Qeavelapd, 6 Gonn. 328.. 423
Randfield y. Randfield, 8 H. L. Gas. 225 488
Randolph v. Builders & i\ Supply Go.
106 Ala. 601 918
R. D. Bibber, The, 33 Fed. Rep. 55 416
Rea y. Missouri, 17 Wall. 532 (21:
707) 1150
Read y. Plattsmouth, 107 U. S. 568
(27:414) 601,800
Reagan y. Farmers' Loan & T. Go. 154
U. S. 862 (38: 1014; 4
Inters. Gom. Rep. 560
541, 860,1160
Reckendorfer y. Faber, 92 U. 8. 847
(23:719) 907,1060
Reckner y. Warner [1872] 22 Ohio
St 275 8S4
Redlands, L. & G. Domestic Water Go.
y. Redlands [1898] 121 GaL
365, 53 Pac. 843 1161
Red Rock v. Henry, 106 U. 8. 696 (27 :
251) 741
Reed y. Mdntyre, 98 U. a 618 (26:
173) 1100
▼. Reed, 19 8. G. 648 1031
Remdee y. Hall, 31 Vt 682, 76 Am.
Dec. 140 69«
Remington Paper Go. y. Watson, 178
U. S. 443 (43:762) 909
Republican Min. Go. y. Tyler Min. Go.
48 U. 8. App. 213 87
Reusens y. Lawson, 91 Va. 226 227
Revett y. Brown, 6 Bing. 7 422
Rex y. Baldwin, 3 Gampb. 265 895
y. Jervis, 6 Gar. & P. 166 896
y. Rateliflfe, 1 Lewin, G. C. 121 894
y. Turner, 1 Moody, G. G. 847 . . .
894, 895
Reybum y. Brackett, 2 Kan. 227, 83
Am. Dec. 457 627
Reynolds y. State Mutual Ins. Co. 2
Grant, Cas. 326 527
▼. Witte, 13 S. G. 5, 36 Am. Rep.
678 611
Rhawn y. Pearce, 110 HI. 850, 51 Am.
Rep. (191 833
Rhode Island, The, 17 Fed. Rep. 5.*^. . 805
Rialto, The [1891] P. 175 41S
Rioe ▼. Sanger, 144 U. S. 197 (36:
403) 469
Richard Liford's Gase, 11 Goke, 46
423, 429
Richards v. Chase Elevator Ck>. 158 U.
8.299 (39:991) 907,1060
Richardson y. Grandall. 48 N. Y. 848 1121
Citations.
Bieheliea & O. Kav. Ck>. y. Boston Mar
rine Ids. Co. 136 U. S. 408
(34:398) 131
Bidimond, The, 103 U. a 540 (26:
313) 769
Biehmond v. Ricbmond & D. R. I&. Co.
21 Oratt 604 412
Rirfimond ft A. B. Co. t. R. A. Paiter-
8011 Tobaooo Co. 169 U. 8.
SU (42:759)
706, 716, 1097, 1098
BifllimoDd ft D. R. Co. t. Alamance
ComiH. 84 N. C. 504 412
Bidmiond BOn. Co. t. Eurdca Miu. Co.
103 U. S. 839 (26: 657) .. . 177
Rigga ▼. Johnson Ck>unty, 6 Wall. 166
(18:768) 1064
Biitt ▼. Deylin, 68 Wis. 384 739
Ritdiie v. Sample, cited in Note to
Bland, Ch. 468 961
Bobb T. Connolly, 111 U. S. 624 (28:
542) 542
T.Vos, 155 U. S. 13 (39: 52) 1088
Bobbins ▼. Shelby County Tax. Dist.
120 U. S. 489 (30: 694) 1
Inters. Com. Rep. 45
299, 325, 331
Roberts y. Cooper, 20 How. 467 (15:
969) 772
y. Northern P. R. Co. 158 U. 8.
1 (39:873) 163
Robertson y. Anderson, 57 Iowa, 165. . 358
y. Oa«e, 97 U. S. 646 ( 24 : 1057 ) 435
Roby y. Col^our, 146 U. S. 153 (36:
922) 369,667
Rogers y. Durant, 106 U. S. 644 (27:
303) 1007
y. Heads Iron Foundry Co. 51 .
Neb. 39, 37 L. R. A. 429. . . 423
Rogers Locomotiye Mach. Works y.
American Emigrant Co. 164
U. S. 559 (41:552) 774
Rdle ▼. Flower [1866] L. R. 1 P. C.
27 657
Roosevelt y. Mark, 6 Jcmns. Ch. 285. . 651
Root y. Lake Shore ft M. S. R. Co. 105
U.S. 189 (26:975) 117
Roseberry y. Nixon, 58 Hun, 121 496
Rosen y. United States, 161 U. S. 29
(40:606) 897
Ross y. Barland, 1 Pet. 665 (7 : 302) . . 428
y. King (mem.) 172 U. S. 641
(43: 1180) 1185
Rouse y. Letcher, 156 U. S. 47 (39:
341) 816, 817, 1183
Rowin's Executors y. Portland, 8 B.
Mon. 232 964, 971
Rowe y. Qranite Bridge Corp. 21 Pick.
344 1140
Royal British Banky.Turquand [1856]
6E1. &B1. 327 1091
Royall, Ex parte, 117 U. S. 241 (29:
868) 96, 542, 543, 701, 702
y.Virginia^ 121 U. S. 102 130:
883) 888
Rohm y. United States, 66 Fed. Rep.
531 735
RiUDsey y. Boutwell, 61 Hun, 165 496
y.People, 19 N. Y. 41 933
Rnssdl y. Allen, 107 U. S. 163 (27:
397) 962
Russeirs Application, Matter of, 51
Conn. 577 (50 Am. Reo. 55) 730
Rutland R. Ca v. Central Vt. R. Co.
159 U. S. 630 (40 : 284) .... 319
Sabariego y. Maverick, 124 U. S. 261
(31:430) 145
Saoo y. Wentworth [1853] 37 Me. 165,
58 Am. Dec. 786 879
Safety Insulated Wire Co. y. Balti>
more,' 25 U. S. App. 166. .. . 346
Sager y. Qalloway, 113 Pa. 500 424
Saginaw Gkislight Co. y. Saginaw, 28
Fed. Rep. 529 71, 349
Staair y. Cox, 106 U. 8. 350 (27:
103) 573, 574
St. Joseph ft G. I. R. Co. y. Steele, 167
U. S. 659 (42:315) 1087
St. Joseph Twp. V. Rogers, 16 Wall.
644 (21:328) 1091
St Louis y. Western U. Teleg. (Do. 148
U. S. 92 (37: 380) 297, 348, 1166
St. Louis ft S. F. R. Co. y. Curtis, 48
Kan. 179 911
y. 6iU, 156 U. S. 649 (39: 567) 860
y. James, 161 U. S. 545 (40:
802) 1087. 1092
y. McMullen, 48 Kan. 281 911
▼. Mathews, 165 U. S. 1 (41:
611) 749.912, 919
y. Suavely, 47 Kan. 637 911
St. Louis, C. G. ft Ft. Smith R. Co. y.
Missouri (Merriam) 156 U.
S. 478 (39:502) 765
St Louis, I. M. ft S. Ry. Co. v. Graf-
ton, 51 Ark. 504 739
y. Paul, 173 U. S. 404 (43 : 746) 912
V. Williams, 49 Ark. 492 918
St. Louis Smelting ft Ref . Co. v. Kemp,
104 U. S. 636 (26: 875) 91, 963
St Louis, V. ft T. H. R. Co. y. Terre
Haute ft I. R. Co. 145 U. S.
393 (36:738) 1090
St Paul ft D. R. Co. y. United States,
112 U. S. 733 (28:861).. 768
St. Paul, M. ft M. R. Co. y. Todd
County, 142 U. S. 282 (35:
1014) 891
St. Tammany Waterworks y. New Or-
leans Waterworks^ 120 U.
S. 64 (30:563) 345
Salem Water Co. y. Salem, 5 Or. 29. . 340
Saleno y. Neosho, 127 Mo. 627, 27 L. R.
A. 769 849
Salina Stock Co. y. Salina Creek Irrig.
Co. 163 U. S. 109 (41:90)
581, 1179
Salt Lake City y. Hollister, 118 U. S.
256 (30: 176) 4... 548
y. Tuoker, 166 U. S. 707 (41:
1172) 800
Saltonstall y. Wiebusch, 156 U. S. 601
(39:549) 142
Sampeyreac y. United States, 7 Pet.
222 (8:665) 1058
Samuel H. Stone, y. Bank of Com-
merce, No. 362, 174 U. S.
412 (43:1028) 1035,1040
31
CiTATIOira.
San Antonio & A. P. R. Go. v. Wilson
(Tex. App.) 19 S. W. Oil. . 918
Ban Diego Flume Co. ▼. ObsMe, 87 CaL
561 1161
T. Souther (C. C. A.) 90 Fed.
Rep. 164 1161
San Di^go Water C!o. t. San Diego, 118
Cal. 556, 88 L. R. A. 460. .
1159, 1161
Bands t. Edmunds, 116 U. a 585 (29:
739)
▼. Manistee River Improv. Go.
123 U. S. 288 (31: 149) 296,297
Saaford ▼. Sanford, 139 U. S. 647 (35:
292) 615
San Mateo Ck>unty v. Southern P. R.
Co. 116 U. S. 138 (29: 589) 984
San Pedro & G. D. A. Co. v. United
States, 146 U. S. 120 (36:
912) 581
Santa Clara County y. Southern P. R.
Co. 118 U. S. 394 (30: 118) 440
Santa Maria, The, 10 Wheat. 431 (6:
359) 772
Sarf ▼. United States [1895] 156 U. S.
51 (39:343) 878
Satterlee y. Matthewson, 2 Pet 380
(7:458) 388,526
Sayings &, L. Soc. y. Multnomah Counr
ty, 169 U.S. 421 (42:803)
913, 1145
Sawyer, Re, 124 U. S. 200 (31: 402)
203,405,542
y. Davis, 136 Mass. 239, 49 Am.
Rep. 27 605
▼. Koohersperger, 170 U. S. 803
(42: 1046) 1179
y. Oakman, 7 Blatchf . 290 758
Sayward v. Denny, 158 U. S. 180 (39:
941) 369,667
S. B. Wheeler, The, 20 Wall. 386(22:
385) 759
Scarritt Furniture Co. y. Moser, 48
Mo. App. 543 1032
Schaller y. Wright, 70 Iowa, 667 257
Schell y. Plumb, 55 N. Y. 592 596
Sohetka y. Northern P. R. Co. 5 Land
Dec. 473 1116
SchiUinger v. United SUtes, 155 U. S.
163 (39: 108) 1013
Sohoenfeld v. Hendridcs, 152 U. S. 691
(38: 601) 398
Sohofield y. Chicago, M. & St. P. R. Co.
114 U. S. 615 (29: 224) . . . 1016
Sohollenberger y. Pennsylvania, 171 U.
S. 1 (43:49) 196
Schooner Mary, The, 1 Gall. 206 517
Sohreiber v. Sharplesa, 110 U. S. 76
(28:65) 679
Schulenberg v. Harriman, 21 Wall. 44
(22:551)
421, 422, 424, 426, 427, 429
Schutz y. The Kan<7, Bee, 139 416
ScoUand, The, 105 U. S. 24 (26: 1001)
243, 806
Scott, Ex parte, 66 Fed. Rep. 45 53
y. Armstrong, 146 U. S. 499
(36: 1059)
645, 656, 658, 929, 1110
▼. Austin, 36 Minn. 460 476
V.Brown [1892] 2 Q. B. 724
1121, 1123
88
Soott ▼. Donald, 165 U. S. 88 (41:
632) 53,541
V.McNeal, 154 U. 8. 84 (38:
896) 440
y. Wharton, 2 Hen. 4 M. 25 423
Scudder y. Union Nat. Baal^ 91 U. 8.
406 (23:245) 47S
Searle y. Lake County School Diat No.
2, 133 U. a 553 (33: 740) 447
Seidentopf v. Annabiel, 6 Neb. 624. . . . 627
Seneca Nation v. Gris^, 162 U. S. 28S
(40:970) 319,380
Sharp y. Taylor [1849] 2 FhUL Gh. 801
....1124, 1125, 1126, 1127, 1128
Sheehan's Ga«e, 122 Ma^. 445. 23 Am.
Rep. 374 766
Shelton y. Piatt, 139 U. S. 591 (84:
273) 357
Shepl^ y. Cowan, 91 U. S. 330 (23:
424) 428
Sheppard y. Kent, 2 Vem. 435 653
Sheridan v. (Dolvin, 78 lU. 237 203
Sherlock v. Ailing, 93 U. S. 99 (23:
819) 297, 307, 707
Sherman County v. Simons, 109 U. S.
735 (27:1093) 696
Shibuya Jugiro, Re, 140 U. 8. 291 (35:
510) 854
Shiffner v. G<yrd<m [1810] 12 East, 296 1123
Shipp y. MUler, 2 Wheat 316 (4:
248) 1150
Shively v. Bowlby, 152 U. S. 1 (38:
331) 957, 960
Shoemaker v. United States, 147 U. S.
283 (37: 170) 454, 962
Shreveport v. Cole, 129 U. S. 36 (32:
589) 941
Siebold, Ex parte, 100 U. S. 371 (25:
717) 701
Silesia, The, L. R. 5 Prob. Div. 177. . 417
Silver Spray's Boilers, The, Brown, 349, 416
SUvia, llie, 171 U. S. 462 (43: 241) . . 806
The, 35 U. S. App. 395, 68 Fed.
Rep. 230 806
Simmennan v. Nebraska, 116 U. S. 54
(29:535) 519
Simon y. Mann, 33 Minn. 412 838
v. Stettcr, 25 Kan. 155 627
Sinking Fund (Dases, 99 U. S. 700 (25:
496) 682, 748, 844
Sinnot v. Davenport, 22 How. 227 ( 16 :
242) 707
Sioux City & I. F. Town Lot & L. Go.
V. Griff^, 143 U. S. 32 (36:
64) 1112
Sioux City Street R. Co. v. Sioux City,
138 U. S. 98 (34: 898) . .682, 844
Sioux City T. & W. Co. /. Trust Go. of
N. A. 173 U. & 99 (43:
623) 1097
Sioux City Trust Co. v. Trust Go 1097
Sir Wm. Armstrong, The, 53 Fed. Rep.
145 416
Sir WiUiam Peel, The, 5 Wall. 517 (18:
696) 107«
Slaughter-House Casee, 16 Wall. 36
(21:894) 437
Sloan y. Wittbank, 12 Ind. 444 1105
Smale v. Mitchell [1892] 143 U. a 99
(36:90) 877
Smith, Ex parte, 2 Rose, Bankr. Rm.
63 848
CiTATIONB.
T. Alabama, 124 U. 8. 465 (81:
608) 1 Inters. Com. Rep.
804 306, 307, 707
T.Bell, 6 Pet. 68 (8:322).... 489
▼. Bortis, 0 Johns. 174 1149
T. Chase [1828] 3 Cranch, C. C.
348 . . 887
T. Dedham, 144 Mass. 177 349
T. Hall, 103 Iowa, 95, 72 N. W.
427 412
T.Eernochen, 7 How. 198 (12:
666) 688
V. McKay, 161 U. 8. 355 (40:
731) 785,1183
T.Maryland, 6 Cranch, 286 (3:
225) 958
T. Plomer, 15 East, 607 422
T. State, ex rel. Yates, 2 Harr. k
McH. 247 961
▼.Tharp, 17 W. Va. 221.... 218, 220
▼.Townsend, 148 U. 8. 490 (37:
533) 614
SmiHi's Lessee v. Chapman, 10 Gratt.
445 213
Smyth ▼. Ames, 169 U. 8. 466 (42:
819) 333,
438, 440, 541, 708, 860, 861, 1160
Sndl T. Dwight [1876] 120 Mass. 9. . . 1123
8oei6t6 G^n^rale de Paris y. Gtoen, L.
R. 8 App. Cas. 606 648
Society for Savings v. Coite, 6 Wall.
594 (18:897) 826
Sohier t. Trinity Cniurch, 109 Mass. 1 426
SoDsentheil v. (Christian Moerlein
Brewing Co. 172 U. S. 401
(43:492) 926
▼.Texas Guaranty & T. Co. (10
Tez!. Civ. App. 274) 30 8.
W. 945 497
South 4 N. Ala. R. Co., Ex parte, 95 U.
S. 221 (24:355) 1183
T. Morris, 65 Ala. 193 916
South Carolina v. G^rgia, 93 U. 8. 4
(23:782) 373
Southern Bldg. & L. Asso. y. Hallum
(59 Ark. 583) 28 8. W. 420 677
Southern P. Co. v. Burr, 86 Cal. 279. . 412
▼.Denton, 146 U. 8. 202 (36:
943) 438
Southern P. R. Oo. ▼. United States,
168 U. 8. 1 (42:355) 465
Spaight V. Tedcastle, L. R. 6 App. Cas.
217 135
Spain ▼. SUte, 59 Miss. 19 460
Sparks y. Pierce, 115 U. 8. 408 (29:
428 ) , 822
Sparrow y. 8trong,*8 WaJi. 97 ( is : 49 ) 76
Spenoer y. Merchant, 100 N. Y. 585 454
y. Merchant, 125 U. 8. 345 (31:
763) 453
Spies y. niinois, 128 U. 8. 131 (31:
80) 526
SpHman y. Parkershurg, 85 W. Va. 605 349
^ringfaok. The, 5 Wall. 1 (18: 480) . . 1076
Springport y. Teutonia Say. Bank, 75
N. Y. 397 1088
Spring Valley Waterworks ▼. Bartlett,
63 Cal. 245 1159
▼.Bryant, 62 Cal. 132 1159
y. San Francisco, 52 Cal. Ill 1159
y. San Francisoo, 82 Cal. 286 6
L. R. A. 756 1158, 1159
Spring Valley Waterworks Co. ▼.
Schottler, 110 U. a 847
(28:173) 682, 749
Sprott y. United States, 20 Wall. 459
(22: 371) 212 218
Staats y. Board, 10 Gratt 400. .217, 218',220
Stacy y. Bank of Illinois, 5 lU. 91. . . . ' 739
Stanly y. Colt, 5 Wall. 167 (18: 610) 426
Starin y. New York, 115 U. 8. 248 (29:
388 ) 989
Stark y. Starrs, 6 Wail. '402 (iS: 925) 42S
Starry Hall, 87 N. C. 381 1031
y. Jackson, il Mass. 519 423
State y. Goodwill, 33 W. Va. 179 (6 L.
R. A. 621) 919
▼. Hazard, 2 R. I. 474, 60 AncL
Dec 96) 896
y. Ives, 35 N. C. (13 Ired. L.) 838 896
y. LeaUiernian, 88 Ark. 81 938
y. Melyin, 11 La. Ann. 535 460
▼.Newport, 4 Harr. (Del.) 567 805
▼. Norris, 78 N. C. 443 196
▼. Pacific Guano Co. 22 8. C. 83 960
▼. Shields, 11 La. Arm. 395 460
▼.South Penn OU Co. 42 W. Va.
80 859
▼. State Bank of Wahoo, 42 Neh.
896 504
▼. Thompson, 132 Mo. 301, 42 8.
W. 949 205
▼.United States Mut. Acci. As-
so. 67 Wis. 624 677
State, ex. rel. Agens, v. Mayor, etc. of
Newark, 37 N. J. L. 416.. 448
Atly. Gen., y. Cincinnati Gaslight ft
C. Co. 18 Ohio St 262
71,845,849
Duke, y. Central New Jersey Teleph.
Co. 53 N. J. L. 341, 11 L. R.
A. 664 1167
Garrahad, y. Dering, 84 Wis. 585, 19
L. R. A. 858 605
Hoboken Land & Imp. Co., y. Hobo-
ken, 30 N. J. L. 293 448
Humphreys, y. Bayonne, 55 N. J. L.
241 349
Johnson, y. Hitchcock, 1 Kan. 184, 81
Am. Dec. 503 798
Read, y. Atlantic City, 49 N. J. L.
558 349
West, ▼. Des Moines, 96 Iowa, 521, 31
L. R. A. 188 937
Whitall, y. Gloucester County Free-
holders, 40 N. J. L. 302 . . . 358
State Railroad Tsjc Cases, 92 U. 8. 575
(23:669) 356, 452, 455
State Tax on Foreign-Held Bonds, 15
Wall. 300 (21 : 179) 668
Steel y. St. Louis Smelting & Ref. Co.
106 U. 8.447 (27:226).... 91
▼. State Lino Steamship Co. L.
R. 3 App. Cas. 72 243
Steiner ▼. Ray, 84 Ala. 92 197
Steuart y. Baltimore [1855] 7 Md. 500 883
Stevens y. Bagwell, 15 Ves. Jr. 140.. 245
y. Gordon, 87 Me. 564 425
y. Hampton, 46 Mo. 404 603
y. Railroads, 4 Fed. Rep. 97.. 112
y. Williams, 1 MoCrary, 480... 86
Stevens, for Use, etc., v. Brown, 20 W.
Va. 450 1147
33
UlTATlOMB.
BiewErt y. Baltimore & O. R. Co. 168
U. S. 445 (42:537) 246
▼. BramluaU, 74 N. Y. 85 258
▼. Salamon, 97 U. S. 361 (24:
1004) 772
▼. Virginia, 117 U. 8. 612 (29:
1006) 883
Btokfls ▼. Department of Agrionlture,
106 N. C. 439 106
StoiM ▼• Farmere' Loan ft T. Co. 116
U. 8.307 (29:636) 1087
▼. Miseiaeippi, 101 U. 8. 814
(25: 1079) 348
T. United States, 164 U. 8. 380
v41:477) 622, 771
▼. United Stai;e8, 167 U. 8. 192
(42: 133) 427
Stoomvaart Maatsdiappy Nederland,
The, Y. Peninsular & O.
8team Nay. Co. L. R. 7 App.
Ca8.795 806,807
Btoteabmy t. Smith, 2 Burr. 924 789
Strang v. Scott, L. R. 14 App. (^as. 601 134
Strathgarry, The [1895] P. 264 417, 418
Straus, Re, 46 Fed. Rep. 522 396
Stringfdiow v. Cain, 99 U. 8. 610 (25:
421) 316
Stroma, The, 42 Feu. Rep. 922 759
Stuart T. Hayden, 169 U. 8. 1 (42:
639) 601
Sturr ▼. Bedc, 133 U. B. 541 (33: 761)
316,1018
Sutherland v. Wyer, 67 Me. 64 506
Sutliff v. Lake County Comrs. 147 U.
8.230 (37: 145) 697
Swiui, Re, 150 U. 8. 637 (37 : 1207) . . 97
Swearingen t. United States, 161 U. a
446 (40:765) 510
Syket ▼. Beaden [1879] L. R. 11 Ch.
Div. 170 1123,1126
T,
Talbert ▼. United States, 155 U. a 46
Tappan ▼. Gray, 3 Edw. Ch. 450, 9
Paige, 507 203
Tayloe ▼• Merchants' F. Ine. Co. 9 How.
390 (13: 187) 1110
▼. Thompson, 5 Pet 358 (8:
154) 646
Taylor y. Columbian Ins. Co. 14 Allen,
353 840
y. Kerebeyal, 82 Fed. Rep. 497 203
▼. Porter, 4 Hill, 146, 40 Am.
Dec. 274 224
▼. Taintor, 16 Wall. 366 (21:
287) 404, 808
f. TWylor, 8 How. 183 (12:
1040) 599,601
Tefft y. Munson, 57 N. Y. 97 603
Tenant y. Elliott [1797] 1 Bos. ft P. 2
....1124, 1125, 1126, 1127, 1128
Tennessee y. Davis, 100 U. 8. 257 (25:
648) 701
▼. Sneed, 96 U. S. 69 (24: 610) 357
▼. Union ft P. Bank, 162 U. S.
454 (38: 511) 767,1179
V. Whitworth, 117 U. S. 129
(29:830) 857'
84
Terhune y. Phillips, 99 U. S. 592 (25:
293 ) 1066
Teny t. Metcvier,' io4 Mich. 50 . ! ! ! ! ! 425
TexM ▼. White, 7 WalL 700 (19: 227) 210
Teoow ft P. R. Co. y. Coz, 145 U. 8.
503 (36:829) 378
▼. Southern P. R. 06. 137 U. a
48 (34:614) 378
Thamea ft M. Marine Ins. Co. y. Hamil-
ton, L. R. 12 App. Cas. 484 240
Tharpe y. Stallwood, 5 Mann, ft Q. 760 428
Theodore, The, Swab. Adm. 351 416
Third Nat. Bank y. Stone, 174 U. a
432 (43:1035) 1038
Third Street ft a R. Oi. y. Lewis, 173
U. 8.467 (43:766) 817
TliomAS y. City Nat Bank, 40 Neb. 501,
24 L. R. A. 263 928
T. Gain, 35 Mich. 155, 24 Am.
Rep. 535 450
▼. Gay, 169 U. 8. 264 (42: 740) 1055
▼. WecPtem Car O). 149 U. a
111 (37:669) 942
Thomas Martin, The, 3 Bhitchf. 517. . 804
ThcMnpson y. Central Ohio R. Co. 6
Wall. 134 (18:765) 642
▼. BadjA, 3 Pidc. 512 1105
▼. Kortheaetem R. Co. 2 Best A
8. 106 758
▼. Perrine, 103 U. 8. 806 (26:
612) 501,664
▼. Perrine, 106 U. a 589 (27:
298) 664
▼. Utah [1898] 170 U. 8. 343
(42: 1061) . . . .207, 800, 876, 879
▼. White Water Valley R. Co.
132 U. 8. 68 (33: 256) .... *1S
▼. Whitman, 18 Wall. 457 (21:
Thompson, The, 3 Wall. 155 (18:55) 1076
Thomson y. Thomson [1802] 7 Ves. Jr.
470 . . . 1123, 1124, 1126, 1128
▼. Union P. R. Co. 9 Wall. 679
(19:792) 834
Tfaorington y. Smitii, 8 WalL 1 (19:
361) 210-213, 1176
Thorp y. Raymond, i6 How. 247 (14:
923) 1149
Tidewater Co. y. Coeter, 18 N. J. Eq.
619, 90 Am. Dec 634 460
Tidewater tMl Co. y. United States, 171
U. a 210 (43: 139).. 745, 1130
Tiffany ▼. Boatman's Say. Inst. 18
Wall.375 (22:868) 476
Tilton's Ctbse, 8 Land Dec 368 466
Tindal y. W€8l^, 167 U. 8. 204 (42:
137) 641
Tinsley y. Anderson, 171 U. a 101 (43:
91) 913
Tobey y. Webster, 3 Johns. 468 422
Tcmilitteon y. Jessup, 15 Wall. 454 (21 :
204) 682, 843, 848
Tornado, The, 109 U. 8. 110 (27 : 874) 415
Town of Coloma y. Eayes, 92 U. a 484
(23: 579) . . .694, 695, 696, 697
Guilford y. Chenango County
Supers. 13 N. Y. 143 799
Venice v. Murdock, 92 U. S. 494
(23:683) 697
Citations.
XowsMBd T. Ooze, 161 111. 62 830
▼. JemisoD, 9 How. 407 (13:
194) 1147
▼. Vanderwerker, 160 U. S. 171
(40:383) 614
tomwm T. Moore, 173 U. S. 17 (43:
697) 769
Tredwaj ▼• Sanger, 107 U. S. 323 (27:
682) •. 664
Trimble v. People, 19 Colo. 187 636
TristT. Child [1874] 21 Wall. 441 (22:
623) 1123
True Blue, The, 2 W. Rob. 176 417
Tucker ▼. Oxley, 6 Cranch, 34 (3:
29) 661,666
T. McKay, 164 U. S. 701 (41:
1180) 1183
Turner t. Indianapolis, B. & W. R. Co.
8 Bias. 316 942
T. Maryland, 107 U. 8. 38 (27:
370) 193,196
Twiggs T. Chevallie, 4 W. Va. 463 226
Two Hundred Chests of Tea, Smith,
Claintant, 9 Wheat. 430 (6:
128)
T>ler, Re, 149 U. 8. 164 (37: 689) ...
▼. Magwire, 17 Wall. 263 (21:
676)
T. Savage, 143 U. 8. 79 (36: 82)
lyier Min. Co. v. Last Chance Min. 0>.
7 U. S. App. 463
470
641
772
346
86
U.
Union Ins. Co. v. United States, 6 Wall.
759 (18:879) 1173
Union Mut. L. Ins. Co. y. Kircboff,
160 U. 8. 374 (40:461)
234, 1179, 1180, 1182, 1187
Union Nat. Bank t. Wheeler, 60 N. Y.
612, 90 U. 8. 208 (24: 833) 268
Union P. R. Co. v. Cheyenne, 113 U. S.
516 (28:1098; 356,367
T. Chicago, R. I. A P. R. Co. 163
U. S. 564 (41:265) 1089
T. Fisher [1899] 28 Land Dec.
75 1116
V. Hartwioh, 26 Land Dec. 680. . 1116
y. McShaDe, 22 WaU. 444 (22:
747) 567
Union Trust Co. y. Illinois M. R. Co.
117 U. 8. 434 (29: 963) .. . 942
y. Souther, 107 U. 8. 691 (27:
488) 942
United Lines Telegraph Co. y. Boston
Safe Deposit & Tru^t Co.
147 U. S. 431 (37:231).. 635
United States y. Addyston Pipe & 8. Co.
64 U. 8. App. 723, 85 Fed.
Rep. 271 306
y. American Bell Teleph. Co. 29
Fed. Rep. 17 674
y. American Tobacco Co. 160 U.
S. 468 (41: 1081) 782
y. Barber, 140 U. 8. 164 (35:
390) 1183
y. Bradley, 10 Pet 343 (9:448) 287
y. Britton, 107 U. 8. 655 (27:
520) 63
y. CarU, 105 U. 8. 611 (26:
1135) 607
United States y. Onrautes, 18 How. 663
(16:484) , 167
y. aark, 96 U. 8. 40 (24: 698) 622
▼. Coal Dealers' Asso. 85 Fed.
Rep. 252 306
▼. Coe, 156 U. 8. 76 (39: 76) . . 664
▼. Coe, 170 U. 8. 681 (42: 1196)
j5^ 10^
y. Cook, 19 Wall 69i' (227210) '
423,426,429
▼. Cooper, 120 U. 8. 124 (30:
606) 363
▼. Cruikshank, 92 U. 8. 642 (23:
588) 917
▼. (humming, 130 U. 8. 452 (32:
1029 1172
y. Curry, 6 How. Ill (12:
365) 1104
▼. De Witt, 9 WaU. 41 (19:
593) 348
▼. E. C. Knight Co. 156 U. 8. 1
(39:325) 297,293
▼. Elliott, 164 U. 8. 373 (41:
474 1182
▼. Fisher, 2 Cranch, 358 (2:
304) 657,755
▼. Gillis, 95 U. 8. 407 (24: 503) 762
▼. Graham, 110 U. 8. 219 (28:
126) 737
▼. Hall, 2 Wash. C. C. 366 i206
▼. Hall, 6 Cranch, 171 (3. 189) 237
y. Harsha, 16 U. S. App. 13 657
y. Healey, 160 U. 8. 136 (40:
369) ....465, 466,737
y. Herron, 20 Wall. 251 (22:
275) 667
▼. Hess, 124 U. 8. 483 (31 : 616) 607
▼• Jellico Mountain Coal & C.
Co. 46 Fed. Rep. 432, 3 In-
ters. Com. Rep. 626, 12 L.
R.A.763, 306
T. Jones, 134 U. 8. 483 (33:
1007) 1183
▼• Jordan, 2 Low. Dec. 537
(1876) 514,516
▼. Kagama, 118 U. 8. 375 (30:
228) 1055
▼. Kaufmann, 96 U. 8. 567 (24:
792) 782
▼. King, 164 U. 8. 703 (41:
1182) 657
▼. Lacher, 134 U. 8. 624 (33:
1080) 105,1064
y. Lee, 106 U. 8. 196 (27- 171) 641
y. Lyman, 1 Mason, 499 617
y. McLean, 95 U. 8. 750 (24:
579) 618
y. Minor, 114 U. 8. 233 (29:
110) 615
y. Morrison, 4 Pet 124 (7: 804) 1064
▼. New Orleans R. Ck>. 12 Wall.
362 (20:434) 412
y. Northern P. R. Co. 152 U 8.
284 (38:443) 1112
▼. 1363 Bags of Merchandise
[1863] 2 Sprague, 86 878
y. Oregon & C. R. CJo. 164 U. 8.
541 (41:545) 1054
▼. Palmer, 3 Wheat 610 (4: 471) 756
y. Passayant, 169 U. 8. 16 (42:
644) 398
35
CiTATIOlia.
Ualtad SUtes ▼. Philadelphia & R. R.
Go. [1887] 123 U. S. 118
(81: 138) 878
▼. Pond, 2 Curt C. C. 265 1110
▼. Pugh, 99 U. 8. 265 (25: 222) 771
▼. Rauscher, 119 U. 8. 407 (30:
425) 898
▼. Real Efltate Say. Bank, 104 U.
b. 728 (26:908) 782
▼. Realty Co. 163 U. 8. 427 (41 :
215) 742, 743, 746, 799
▼. Rioe, 4 Wheat 253 (4: 563) 210
T. Rider, 163 U. 8. 132 (41:
101) 786
T. Ritchie, 17 How. 525 (15:
236) 800
▼. Rogers, 4 How. 567 (11:
1106) 1055
T. 8anta F6, 165 U. 8. 681 (41:
877) 1178
▼. Sohoverling, 146 U. 8. 76 (36:
893) 142
T. 8ohurtz, 102 U. 8. 378 (26:
167) 603,774
T. Simmons, 96 U. 8. 360 (24:
819) 68
T. Sixty-Seven Packages of Dry
Goods, 17 How. 85 (15: 54)
514,741
T. State Bank, 96 U. 8. 30 (24:
647) 611
T. State Bank, 6 Pet 29 (8:
308) 667
▼. Taylor; 104 U. 8. 216 (26:
721) 86i
▼. Ten lliousand Cigars, 2 Curt
C. C. 436 616
T. Trans-Missouri Freight Asso.
166 U. 8. 290 (41: 1007)
, 283,322,619
▼. 26914 Bales of Cotton, Woolw.
236 1172
▼. Tynen, 11 Wall. 92 (20: 154) 639
▼. Union P. R. O). 168 U. S. 512
(42:661) 1180
▼. Vallejo, 1 Black, 541 (17:
232) 14b
T. Verdier, 164 U. 8. 213 (41:
407) 618
▼. Vowell, 5 Crandi, 368 (3:
128) 616
T. Winchester, 99 U. S. 372 (25:
479) 1178
▼. Winston, 170 U. S. 522 (42:
1130) 735
T. Wong Kim Ark, 169 U. 8. 649
(42:890) 510
▼. Woneon [1812] 1 Gall. 5. . . . 875
Unitad States, ex rel. Brightwood
Railway Co., ▼. O'Neal, 24
Wash. L. Rep. 406 887
United States Ins. Co. v. Shriver, 3 Md.
Ch.381 603
Updegraff y. Orans, 47 Pa. 103 203
Upshur County v. Rich, 135 U. 8. 467
(34: 196) 359
Upton ▼. Hubbard, 28 Conn. 274, 73
Am. Dec. 670 840
Usher's Heirs v. Pride, 15 Gratt. 190
218,220
36
V.
Valk ▼. United States, 168 U. 8. 703
(42: 1211)
Valparaiso v. Ckundner, 97 Ind. 1, 49
Am. Rep. 416 ,
Van Allen v. The Assessors [1865] 3
Wall. 573 (18: 229) . . . .856, 867
Vance v. Hadfield, 51 Hun, 620, 22 N.
T. 8. R. 858, 4 N. Y. Suim.
112 606
Vanderbilt v. Adams» 7 Oow. 349.... 606
Vanmeter ▼. Spurrier, 94 Ky. 22.... 197
Van Ness ▼. Mayor, etc., of Washing
ton, 4 Pet 232 (7:842)
965,970,1004
Van Norden v. Morton, 99 U. 8. 378
(25:453) 46t
Van Wagenen ▼. Sewall, 160 U. & 360
(40:460) 1186
Vanaaodt ▼. Waddel, 2 Yerg. 260 224
Vaehon ▼. Qreenhow, 135 U. 8. 662
(34:304) 393
Venus, The, 5 Wheat 127 (5: 50) 1076
Vick^urg & M. R. Co. ▼. Putnam
[1886] 118 U. 8. 545 (30:
257) 695,878
Vioksburg, 8. ft P. R. Co. ▼. Dennia, 116
U. 8. 665 (29: 770) 418
Victoria, The, 3 W. Rob. 49 804
Vnaa ▼. Plattoburgh & M. R. 0>. 123 N.
Y. 440, 9L.R. A.844 SIS
VirgU, The [1843] 2 W. Rob. 201. .. . 804
Viigkiia, Bx parte, 100 U. 8. 339 (26:
676) 440
Virginia Coupon Cases, 114 U. 8. 269
(29: 185) 383, 384, 886
Voight ▼. Wiigbt, 141 U. 8. 62 (36:
638 196
Volkmar ▼. Maiihattaii R. Co. 134 N. Y.
418
W.
Wabaah, St L. & P. R. 0>. t. Ham,
114 U. 8. 587 (29: 235) 438, 1064
T. Ulinois, 118 U. S. 557 (30:
244) 1 Inters. Com. R^. 31
709, 710, 715, 718, 720, 860
Wade ▼. Lawder, 165 U. 8. 624 (41:
851) 66
Waite,Re,81 Fed. Rep. 350 701
Wakeman ▼. Norton, 49 Pac 283 86
Walden ▼. Heirs of Gratz, 1 Wheat
292 (4:94) 1149
Wales ▼. Stetson, 2 Mass. 143, 3 Am.
Dec. 39 846
Walker ▼. Sauvinet, 92 U. 8. 80 (23:
678) 97,765
▼. Whitehead, 16 Wall. 314 (21:
357 ) 390
Walling ▼. Michigan, 116 U. S. 446
(29: 691) 325, 330, 331
Walton ▼. State. 57 Miss. 633 460
Walworth ▼. Harris, 129 U. S. 355 (32:
712) 1147
Wamsley v. Wamsley. 26 W. Va. 46. . 124
Wanser ▼. Atkinson [1881] 43 N. J. L.
571 879
Citation H,
Ward ▼, Andrews, 2 Chitty, 636, 4
Kent» Com. 120 420
▼. Flood, 48 Cal. 36, 17 Am. Rep.
405 917
▼. Macauley, 4 T. R. 489 422
▼. Karylana, 12 WaU. 418 (20:
449) 328,436
Warfiflld y. Marshall County Canning
Co. [1887] 72 Iowa, 666.. 632
Witfing ▼. Mayor [Waring ▼. Mobile] 8
WaU. 110-122 (19:342) .. 68
Warkworth, The, L. R. 9 Prob. Div. 20 243
Warner t. Jaffrey, 96 N. Y. 248, 48
Am. Rq>. 616 838
▼. New Orleans, 167 U. 8. 467
(42:289) 87,1180
Wadih^ton v. Cooyert» 164 U. S. 702
(41:1182) 1180
Washington Fire Ina. Ca ▼. Kelly, 32
Md. 452, 3 AuL Rep. 149. . 527
Washington Market Co. ▼. District of
Columbia, 137 U. S. 62 (34:
572) 934
Waters ▼. Merchants' Louisville Ins.
Co. 11 Pet. 213 (9:691).. 237
Watson ▼. Phoenix Bank, 8 Met 217, 41
Am. Dec. 500 362
Wayerley, The, L. R. 3 Adm. & Eod.
369 417
Wayne County Supers, v. Kennicott, 94
U. S. 498 (24:260) 772
Webber ▼. Virginia, 103 U. S. 344 (26:
566) 330
Webster ▼. Reid [1850] 11 How. 437
(13:761) 874
Welder ▼. Maddox, 66 Tex. 372, 59 Am.
Rep. 617 838,840
Wdkd T. Cate [1882] 58 Md. 105. .. . 879
Welch ▼. Wesson, 6 Gray, 505 1127
WeUington, The, 48 Fed. Rep. 475. .. . 416
Wend^ ▼. Lebon, 30 Minn. 234 838
Wdton ▼. Missouri, 91 U. 8. 275 (23:
347) . .298, 328, 329, 331, 712, 714
Werner ▼. Charleoton, 151 U. S. 360
(38: 192) 469
Western Coll^^ of Homeopathic Medi-
cine V. Cleveland, 12 Ohio
St. 375 346
Western Nat. Bank v. Armstrong, 152
U. S. 346 (38:470) 927
Western U. Teleg. Co. v. Atty. Gen. of
Massachusetts, 125 U. S.
530 (31:790) . ..326, 902,1166
V. Indiana, 165 U. 8. 304 (41:
725) 913
V. James, 162 U. S. 650 (40:
1105) 706,716
V. Norman, 77 Fed. Rep. 27 855
V. Pendleton, 122 U. 8. 347 (33:
1187) 1 Inters. Com. Rep.
306 716
V. Taggart, 163 U. S. 1 (41 : 49) 903
V. Texas, 105 U. 8. 460 (26:
1067) 714
V. Williams, 86 Va. 696, 8 L. R.
A. 429 379
Weston V. Syracuse, 17 N. Y. 110 349
West St. Louis Sav. Bank v. Shawnee
County Bank, 95 U. S. 557
(24:490) 927
Wetherbee v. Johnson [1817] 14 Mass.
412 877
U. 8^ Book 43. 2
Weymouth v. C^liicago k N. W. R. Co.
17 \\h. 550, 84Am.Dec.763 425
Wheatley v. Martin, 6 Leigh, 64 124
Wbeaton v. Peters, 8 Pet. 591 (8:
1055) 905
Wheeler v. Farmer, 38 Cal. 203 627
V. Lawson, 103 N. Y. 40 425
V. Train, 3 Pick. S56 422
V. Russell [1821] 17 Mast. S£S 1123
Wheeling Bridge & T. R. Co. v. Paull,
39 W. Va. 142 359
Wheelock v. Lee, 64 N. Y. 242 258
Whitbeck v. Mercantile Nat. Bank,
127 U. 8. 193 (32: 118).. 675
White V. Berry, 171 U. 8. 366 ( 43 : 199 ) 204
▼. Knox, 111 U. 8. 784 (28:
603) 645,1110
▼. MTS'eily, 1 Bay, 11 550
V. Morris, 11 C. B. 1016 426
Whitney v. Taylor, 158 U. 8. 85 (39:
906) 1112,1113,1115
Whitten v. Tomlineon, 160 U. S. 231
(40: 406) 96, 542, 543, 701
Wiant ▼. Hays, 38 W. Va. 681 225
Widoe V. VfM), 20 Ohio St. 431, 5 Am.
Rep. 664 886
Wiggins V. Gray, 24 How. 303 (16:
688) 1180
Wight V. Central P. R. Co. 27 Land Dec
182 1116
Wilcox V. Hunt, 13 Pet. 378 (10: 209) 1147
Wild's Lessee v. Serpell, 10 Gratt
405 218, 220
Wilder ▼. Chicago & W. M. R. Co. 70
Mich. 382 916
WiUdns V. Bllett, 9 Wall. 740 (19:
686) 1145
Wilkinson v. Adam, 1 Ves. & B. 466. . 71
Willamette Iron Bridge Co. v. Hatch,
125 U. 8. 1 (31:629) .... 1142
Willard ▼. Presbury, 14 Wall. 676 (20:
719) 454
▼. Sturm, 96 Iowa, 555 1147
Williams v. 0>nger, 125 U. 8. 397
(31:778) 595
T. Eggleston, 170 U. 8. 304 (42:
1047) 447,454
V. Fitzhugh, 37 N. Y. 444.... 476
▼. Heard, 140 U. 8. 529 (35:
550) 245
▼. Norris, 12 Wheat 117 (6:
571) 388
▼. NotUwa, 104 U. 8. 209 (26:
719) 688
▼. United States, 138 U. 8. 514
(34: 1026) 822
Williamson v. Massey, 33 Gratt. 237. . 384
Willis V. :E:astern Trust & Bkg. Co.
[1898] 169 U. 8. 295 (42:
752) 886
Willitts V. Waits, 25 N. Y. 677 . . . . 838, 840
Willyard v. Hamilton, 7 Ohio, pt. 2,
111, 30 Am. Dec. 195 878
Wilmington & W. R. Co. v. Alsbrook,
146 U. 8. 279 (36: 972; 389,412
WUson, Ex parte [1885] 114 U. S. 417
(29:89) 888
▼. Blackbird Creek Marsh Co. 2
Pet 246 (7:412) 388, 526,1141
▼. Ooburn, 35 Neb. 530 504
V. Hoffman, 93 Mich. 72 423, 429
▼. Inloes, 11 Gill .k J. 352 961
37
CiTATIOMB.
WUflon y. Knox County^ 43 Fed. Rep.
481 666
▼. Milner, 2 Oampb. 452 551
▼. Salamanca, 99 U. S. 499 (25:
330) 697
T. Simonton [1821] 8 N. C. (1
Hawks) 482 882
WineiiMter ▼. HeiskeU, 119 U. a 450
(30:462) 482
Winobfister & P. Mfg. Co. v. Creary, 116
U. S. 162 (29:591) 498
WiDona ft St P. R. Ck>. ▼. Plainview,
143 U. S. 371 (36: 191) . .. 378
WiBcart ▼. Dauchy [1796] 3 DaU. 321
(1:619) 886
WiBOOoain ▼. Duluth, 96 U. 8. 879 (24:
668) 373
▼. Pelican Ins. Co. [1888] 127
U. S. 265 (32: 239) 876
Wisoonsin Telerph. Go. ▼. Oshkoah, 62
Wis. 32 1167
Wise ▼. Withers, 3 Crouch, 330 (2:
467) 879
Wise Bros. v. Rogers, 24 Gratt 169. . . 383
WiBemany. Carbonell [1693] 1 £q. Gas.
Abr. 312, pi. 9 648
Wiswall ▼. Sampson, 14 How. 52 (14:
322) 636
Witch«r ▼. Witcher, 49 N. H. 176.... 124
Withemaea Bridcworks, Re, L. R. 16
Ch.Diy.337 644
Wood ▼• Fowler, 26 Kan. 682, 40 Am.
Rep. 330 1139
y. Guarantee Trust k S. D. Go.
128 U. S. 416 (32: 472) ... 942
y. Partridge, 11 Mass. 488 849
y. Truckoe Tump. Go. 24 CaL
474 412
y. Tunnicum, 74 N. Y. 43 124
y. United States, 16 Pet 342
(10:987) 741
Wooderman v. Baldock, 8 Taunt 676. . 426
Woodman y. Hubbard, 25 N. H. 67, 7
Am. Dec. 310 1127
Woodruff y. Parham, 8 Wall. 123 (19:
382) 193, 196, 327,329
Woodstock Iron Co. y. Richmond & D.
Extension Co. [1888] 129
Woodward ▼. SeweU, 140 U. a SfT
(35:478) 798
Woroeater y. Georgia^ 6 Pet 515 (8:
483) 1055
y. Western R. Corp. 4 Met 564 412
Worthingt<m y. Robbini. 139 U. & 837
(36:181) 141
Wright ▼. Nagle, 101 U. 8. 791 (25:
921) 71, 345, 349,S85
T. Roseberry, 121 U. a 488 (30:
1039) 91
Wyandce, The, 40 Fed. Rep. 702 804
Wyieth Hardware ft Mlg. Co. y. Lang,
127 2fo. 242, 27 Lu rTa.
651 1146
Wyman ▼. Halstead, 109 U. a 656
(27:1069) 1146
Wyndham's Trusts, Re, Lu R. 1 Eq. 290 245
X.
XantiKS The, Lu R. 12 App. Oaa. 503.. £40
T.
Yasoo ft M. Valley R. Ca ▼. Thomas,
132 U. a 174 (83:302)
3gg 4\2
Yerger, Ex parte, 8 Wali'85* (19: 882) ' 741
Yick Wo y. Hopkins, 118 U. 8. 356 (30:
220) 440, 911, 913,018
YoeemHe Vall^ Case, The, 15 WalL 77
(21:82) 161
Young y. Brehe, 19 Nev. 379 138
Young America, The, 20 Fed. Rep. 926 416
Z.
Zafcri^ie y. Cleveland, C. ft C. R. Co.
23 How. 381 (16:488)
1090,1091
Zadig y. Baldwin, 166 U. a 485 (41:
1087) 1180
Zadok, The, L. R. 9 Prob. Diy. 114 806
Zeckendorf y. Johneon, 123 U. S. 617
(31:277) 316
Zeely y. Yansen [1807] 2 Johns. 386.. 885
Zipcey y. Thompson, 1 Gray, 243 837
U. a 643 (32:819) 1123 ' Zoeller y. KeUogg, 4 Mo. App. 163.... 4A8
STATUTES AND CONSTITUTIGNS CITED, CONSTRUED, ETa
Argentii&e RepubUe.
Commercial Code.
f 1469« Agreement for salvage made
upon the high seas 419
England.
Statutes,
6 Anne, dhap. 7, S 17. Customs duties 510
12 Car. II., chap. 4, S 2. Customs
duties 510
13 ft 14 Car. 11., chap. 11. Violation
of customs duties 511
1 Eliz. chap. 11. Violation of eustoma
duties 511
38
13 Ella. chap. T. Bankruptcy act
648, 652, 653, 655, 657
3 Geo. m., chap. 22. Act for preven-
tion of clandestine running
of goods into any part of the
dominion. 51 1
5 Geo. I., chap. 11. Smuggling 510
5 Greo. IV., chap. 98. BaiScruptcy. . . . 656
6 GJeo. rv., chap. 9. Bankruptcy aei
650,651
6 Qeo, rv., chi^. 16. Bankruptcy act
648,66(^656
6 Geo. rv., diap. 105. Act reviewing
%nd amending customs lawa ill
7 4 8 Oto. TV., chap. 29, S 54. Felony
L, chap. 18. Forfeiture im-
Cttatiokb.
896
611
511
8 G«^ .
posed on those receiving or
buying smuggled ^goods. ...
9 Geoc IL, chap. 31, § 21. forfeiture
imposed on those having in
possession smuggled goods.
9 Geo. II., chap. 35. Customs duties 511
23 Geo. II., chap. 33. Trial by free
holders 879
29 Geo. III., chap. 40, § 15. Bond re-
quired of master and mate
of vessel not to land illegal-
ly any goods 511
14 Hen. VIJI., 25, 26. Illegal cove-
nants or conditions 387
34 & 35 Hen. VIII., chap. 4. Bank-
ruptcy act 648, 650
James I., chap. 16. Statute of limita-
tions . . 1149
21 James I., chap. 19. Bankruptcy act '
650, 651, 655,656
12 & 13 Vict., chap. 106. Bankruptcy 656
17 & 18 Vict., chap. 125. Common-law
procedure act 205
25 & 26 Vict., chap. 89. Winding-up of
companies 652
28 Viet, chap. 18, SS 1, 8. Procedure
in criminal cases 205
82 ft 33 Vict., chap. 71. Bankruptcy
act 651, 656,1099
M 4*37 Vict., chap. 66. Judicature act
652,656
88 4 39 Vict., chap. 77. Judicature act
643, 652,656
39 4 40 Vict., chap. 36. Act to con-
solidate the customs law?. . 511
4 Statutes of the Healm, 539, 1228.
Bankruptcy 656
France.
Code Civil.
P. 880, art. 650, note 1. Wharfing
regulations 1000
Code Napoleon,
Movables and immovables
defined '. 746
Conditional obligations. . . • 180
Conditional obligations . • •
Conditional obli^tious. ..
Potestative condition • •••
Suspensive condition. •
Art 520.
1168.
1170.
1181.
2024.
2043.
• • •
186
186
185
186
Oommercial Oode.
Art 743. Salvage or payment for as-
aJBtanoe when in danger. . • 418
Holland.
Commercial Code,
Art 568. Contract for salvage or pay-
ment for assistance 418
Mezioo.
Statutes,
1824, Aug. 4. General and special
revenues 165, 167
1824, Aug. 18. Colonization law 165
1824, Sept 21. Act creating office of
commissary general
144, 146,147,167
1831, Jan. 26. Establishment of reve-
nue department 154
1831, May 21. Commissaries general
and commissariats 164
1834, April 16. Secularization of mis-
sion property 167
1837, April 17. Superior chief of the
treasury 153, 156, 166
1837, Dec. 7. Governor's duties 166
1841, Dec. 16. Office of superior chief
of the treasury abolished. . 156
1842, Feb. 10. Sales of temporalities
153,166
1853, Nov. 25. Public lands; aliena-
tion of , etc 168, 169
1854, July 5. Public lands; alienation
of, etc 168
1855, Dec. 3. Act repealing previous
acts regarding grants or
alienations of lands 168
1856, Oct 16. Act repealing previous
acts regarding grants or
alienations of lands 168
D uhlan d Lozano*a Latos,
VoL2,p. 108. Sales of temporalities 157
308. Establishment of de-
partment of revenues 154
329. Commissaries general . . 154
351. Location of commissar-
ies general 154
689. Secularization of mis-
sion lands and prop-
Vol. 8, p. 75. Internal government..
89. Establishment of subor-
dinate departments
of government
Subordinate governors.
Subordinate depart-
ments and governors 155
Treasury depsuiiment. . 155
Gubernatorial powers
and duties 156
Treasury department.. 156
Sales of temporalities 156
Gubernatorial powers . 156
Reynolds*8 Spanish d Mexican Laws.
P. 60. Crown and seignioral lands. . . 144
79. Adoption of Constitution of
March 18, 1812...*. 145
83. Disposal of public lands 145
95. Control of government by
junta 146
96. Order of provisional council
setting aside office of super-
inten&nt general of the
treasury 146
98. Order of provisional council
pertaininff to intendants. . . 146
99. Receipts and disbursements of
treasuries 146
118. Revenues 165,166
121. Colonization law 165
123. Office of commissary general
created 144. 146, 147
148. Public lands 166,167
324. Public lands; alienation of» ete. 168
326. Public lands; alienation of,
etc 168
329. Repeal of previous acts regard-
ing grants or alienations of
lands 168
230.
258.
363.
443.
Vol. 4, p. 75.
114.
428.
157
155
156
155
Citation tt.
P* 831. Repeal of acts regarding
alienations and grants of
lands . . 168
White's New BeoopUacian.
VoL 1, p 375. Constitution of Mexican
federation 165
893. Constitution of 1824
adopted 165
395. Powers of general Con-
gress . . . , 165
405. Power of supreme
court 165
601. Colonization law 165
VoL 2, p. 168. Royal decree re-estab-
lishing powers of gov-
ernor intendants • • • • 145
PortnsaL
Oommeroidl Code,
Art. 1608. Agreement for salvage
nuide upon the high seaa. • 419
Scamdlnaiia,
Code,
Art. 27. Contract for salvage or pay-
ment for assistance 418
United States.
OonatitutUm.
Art 1, S 8. Powers of Congress 792
1, S 8, d. 3. Regulation of comr
merce 193
1, S 9, subds. 4» 5. Tax or du^. 702
1, S 10. State restrictions 380, 829
1, f 10, cL 2. Customs, duties,
tonnage, etc 193, 195, 197
2.52, d. 3. Senate vacancies.. 765
8. Judicial powers of United
States government 765
8. 53. Jury trial in criminal
causes 875
4,92. Privileges and inmiuni-
ties of duzens
434, 435, 437, 438,440
16, 1 8. Taking of private prop-
erty for public uses 380
Amend. 5. Ihie process of law
..,..284, 288, 381, 569, 763, 879
6. Criminal prosecutions 879, 893
7. Trial by jury
800, 875, 880, 888,889
11. Suit with resident ol an-
other state 539,541
14. Citizenship.. 55, 216, 217,
221, 288, 434, 435, 440, 444,
461, 468, 518, 554, 569, 582,
606, 628, 666, 749, 763, 831,
842, 843, 847, 860, 861, 912,
914-919
1787, July 13 (1 Stat, at L. 61 note,
chap. 8). Ordinance for
the government of the terri-
tory northwest of the Ohio
river 829
1789, July 31 ( 1 SUt at L. 29, ehap.
5). Customs duties 512,740
1789, Sept 24 (1 SUt at L. 78, ehap.
26) . Judiciary act
368, 664, 678, 679, 876
1790, April 10 (1 Stat at L. 109, chap.
7). Patent8 662
40
1790, July 16 (1 SUt at Lu 130, chap.
28). Act auUiorizing Pres-
ident to set aside district ol
the PotHnao 964, 967, 988
1790, Aug. 4 (1 Stat at Lu 145, chap.
35). Customs duties. .512, 740
1791, Feb. 4 ( 1 Stat at L. 189, diap.
4). Kentucky form^ into
a new sUte
1793, Feb. 21 ( 1 SUt at Lu 318, diap.
11). Patonto
1796,May 6 (1 SUt at L. 461, ehw.
22). Reward to public offi-
cers 740
1799, Biarch 2 (1 Stat at L. 627, chap.
22). Tonnage and import
duties 513, 740
1800,Mardi 8 (2 SUt at L. 16, chap.
14) . Confiscation act;
prize captures, etc 1174
1800, April 4 (2 Stat at L. 19, chap.
19) . Bankruptcy act
649,651,656
1801, Feb. 27 (2 SUt at L. 107, chap.
15). Powers and duties of
justices of the peace. 879, 880, 884
1801, March 3 (2 Stat at L. 115, chap.
24). Act concerning Dis-
trict of Columbia
1802, May 1 (2 Stat at L. 175, (^sp.
41 ) . Government of Wash-
ington 977, 1001
1802, May 3 (2 Stat at L. 195, chap.
53). Inoorporation of
Washington 977,1001
1804, Feb. 24 (2 SUt at L. 254, ehap.
14). Jurisdiction of dtj
councils 1001
1807,Maxch 3 (2 SUt at Lu 448, | 5).
Leases of mines 7i
1807, Dec 29 (2 SUt at L. 453, chap.
5) . Embargo act 2S7
1815, Feb. 4 (3 SUt at Lu 199, chap.
31 ) . Judidanr act. . . .876, 877
1816,Mardi 3 (8 SUt at L. 234, chap.
94) . Judiciary act. . . .876, 877
1818, April 20 (^ SUt at L. 483, diap.
79). Tariff act 613
1820, AprU 24 (3 SUt at L. 566, ehap.
51). Sale of public lands. .1118
1820, May 15 (3 Stat at L. 587, diap.
104). Cily JurisdicUon ol
the Potcmiae 970, 977, 1008
1820, May 15 (8 SUt at Lu 592, di^^.
107). Treasury department. 224
1823, March 1 (3 SUt at L 729, chap.
21). Tariff act 618
1828, March 1 (3 SUt at L. 748, chap.
24). Act estending luris-
diction of Justice of the
peace 884,889
1825, March 3 (4 SUt at Lu 101, ehap.
52). Chesapeake A Ohio
Canal Company 978
1828, May 23 (4 SUt at L. 292, diap.
85). Lateral canals 973
1828, May 24 (4 SUt at L. 298, diap.
86). Canal aid 973
1829,Mardi 3 (4 SUt at L. 364, ehap
55). Sale of mining lands. . .76
1831, Feb. 3 (4 SUt at L. 436, chap.
16) . CopyrighU 905, 90«
CiTAT
1831, March 3 (6 Stat, at L. 464, chap.
102). Private claims 246
1831, March 31 (6 Stat, at L. 464, chap.
101). Claims against Unit-
ed States 754, 765
1836, Jiilj 4 (5 Stat at L. 117, chap.
357). Act creating com-
missioner of patents 562
1837, March 3 (5 SUt. at L. 803) Ches-
apeake & Ohio canal 973
1838, Jan. 28 (7 Stat, at L. 550).
Treaty with Indians 770
1839, Feb. 16 (5 Stat at L. 365, chap.
229 ) . Execution of laws in
the District of Columbia. . . .959
1839, March 3 (5 Stat at L. 339, chap.
82) . Appropriation act. . . .736
1839, March 3 (5 Stat at L. 354, chap.
88). Patents 562,564
1841, Aug. 19 (5 Stat at L. 440, cha{>.
9). Bankruptcy act. 649, 651, 656
1841, Sept 4 (5 Stat at L. 453, chap.
16) . Pre-emption act. . . .
322, 1113,1114
1842, Aug. 23 (5 Stat at L. 510, chap.
183 ) . Appropriation act. . .786
1842, Aug. 26 (5 SUt at L. 525, chap.
202). Appropriation act.
736,737
1842, Aug. 30 (6 Stat at L. 565, chap.
270) . Tariff act. . . 509, 513-510
1843, March 3 (5 Stat at L. 619, chap.
86). Pre-empted lands..
1114,1116
1843,Dec. 28 (7 Stat at Lu 320).
Treaty with Indians 602
1846, F^. 26 (5 Stat at L. 727, chap.
22). AetioD to recover du-
ties 781
1846, July 9 (9 Stat at L. 35, chap.
85). Retrocession of Alex-
andria county to Virginia. . .884
1846, July 11 (9 Stat at L. 87, ehap.
36) . Sale of mining land . . 75
1846,Aug. 8 (9 Stat at Lu 83, chap.
170). Land grant 869
1847, Feb. 11 (9 Stat at L. 123, diap.
8). Soldiers' claims 1128
1847,Mardi 1 (9 Stat at Lu 146, chap.
32). Sale of mining lands. . .75
1847,Mardi 3 (9 Stat at L. 179, chap.
64). Sale of mining lands... 75
1848,Feb.2 (9StatatL.929). Trea-
ty of Quadalupe Hidalgo. . .
149,1140
1849, March 3 (9 Stat at L. 395, chap.
108). Department of the
Interior 662
1850, Sept 28 (9 Stat at L. 519, chap.
84) . Swamp land act 773
1852, Aug. 30 (10 Stat at L. 76, chap.
107). Patents 562,564
1853, Feb. 26 (10 SUt at L. 161, chap.
80) . Fees and costs allowed
court officers * 737
1853, Feb. 26 ( 10 SUt at L. 170, chap.
81).* Claims against Unit-
ed SUtes 753
1853, Dec 30 (10 SUt at L. chap.
1034). Gadsden Treaty . . .
149, 167, 168, 1140
OKB.
S56, June 3 (11 SUt at Lu 21, chap.
44). Railway land grant.
421,422,428
860, March 12 (12 SUt at Lu 3, chap.
5). Swamp land act 822
861, March 2 ( 12 SUt at L. 197, chap.
68). Tariff act 397
861, March 2 ( 12 SUt at L. 246, chap.
88) . Patento 562
861, July 17 ( 12 SUt at L. 263, chap.
6.) Army appropriation
act 1172
861, Aug. 5 (12 SUt at L. 292, chap.
45). Direct tax act.218, 363, 619
861, Aug. 6 (12 SUt at L. 319, chap.
60). Confiscation act 1173
862, May 20 (12 SUt at L. 392, chaj>.
75). Sale of public lands
for homesteads 1114
862, June 7 (12 SUt at L. 422, chap.
98). Direct taxation of
lands ^218
862, July 1 (12 SUt at L. 489, chap.
120). Railway land grant
412, 1115
862, July 14 (12 Stat at L. 569, chap.
167). Railroad bridges;
post roads^ etc 358
862, July 17 (12 SUt at L. 589, chap.
195). Confiscation act . . . 1173
863, Fdt>. 25 ( 12 SUt at L. 665, chap.
58). Act providing for the
organijsation of national
banks 868
863, March 3 ( 12 SUt at L. 757, chap.
81). Judiciary act . . . 876,877
863, March 3 ( 12 SUt at L. 762, chap.
91 ) . Supreme court of Dis-
trict of Columbia 887
863, March 12 (12 SUt at L. 820,
chap. 120). Abandoned and
captured property 212, 253
864, May 5 ( 13 SUt at L. 66, chap.
80) . Railway land srant. . 783
864, June 3 (13 SUt at L. 99, chap.
106). Power to tax share-
holders Off bank stock 852
864, June 3 (13 SUt at L. 115, chap.
106) . National bank act. . 667
864, June 30 ( 13 SUt at L. 228, chap.
173). Reward to public
officers 740
864, Jane 30 ( 13 SUt at L. 314, chap.
174). Prize captures; sal-
vage, etc 1174
864, July 1 (13 SUt at L. 331, chap.
191). Potomac ferry com-
fany 979
(13 SUt at Lu 336, ehuK
197). Salaries of posV
masters 618
864, July 1 ( 13 SUt at L. 343, chap.
205). Sale and disposal of ■
coal lands 75
864, July 2 (13 SUt at Lu 366, chap.
217). Railway land grant
160, 161, 1112, 1118, 1117
865, Feb. 27 (13 SUt at L. 440, 8 9).
Actions and suiU affecting
mining titles 75
866, March 3 ( 13 SUt at L. 469, chap.
78). Reward to public of-
ficers 740
41
CiTAT
M6, March 9 (13 Stat at L. 629,
diap. 107). Sale and dis-
posal of ooal lands 76
860,May 2 (14 SUt at L. 41, chap.
70). Settlement of Treas-
urer's accounts; private
damns, etc 362
866,Haj6 (14 Stat. atL.43,chap. 73)
Boundaries of state of Ne-
vada 76
866,Ma7 11 (14 Stat, at L. 46, chap.
80). Judiciary act . . . 876,877
866, June 12 (14 Stat, at L. 60, chap.
114). Salaries of postmas-
ters 618
866, June 15 ( 14 Stat, at L. 66, chap.
124). Railroad transporta-
tion 711,716
866, July 24 (14 Stat, at L. 221, cha^.
230). Teleffraph lines....
1168-1168
866^ July 25 (14 Stat, at L. 242).
Pre-emption of lodes 75
866, July 26 ( 14 Stat, at L. 251, chap.
262). Mining claims, ri-
parian rights, etc
. . .75-77, 174, 175, 177, 178,1142
866, July 27 ( 14 Stat at L. 292, chap.
278). Railway land grant
778, 1079,1080
867, Feb. 5 (14 SUt at L. 385, chap.
28 ) . Judiciary act 533
867, Feb. 22 ( 14 Stat at L. 401, chap.
63). Jurisdiction of jus-
tices of the peace in the Dis-
trict of Columbia 888
867, Feb. 22 ( 14 Stat at L. 403, chap.
64). Appeal from justlccrs
court 888
867, March 2 ( 14 Stat at L. 536, diap.
176) . Bankrupt act
651,657,1100
868, Feb. 4 ( 15 Stat at L. 34, chap.
7). Power to tax bank
stock holders 852
868, July 27 ( 15 Stat at L. 240, chap.
273). Extension of govern-
mental power in Alaska. . . 101
868, Aug. 7 (15 Stat at L. 533).
Treaty with Indians 621
869, April 10 (16 Stat at L. 45, chap.
23). Married woman's act 1160
870, July 1 ( 16 Stat, at L. 180, chap.
189). Act to prevent ex-
termination of Alaska fur-
bearing animals
102, 103, 105, 106,108
870, July 8 (16 SUt at L. 198, chap.
230). Revision and con-
solidation of patent laws. . 668
870, July 14 ( 16 Stat at L. 279, diap.
272). Pre-emption act . .. 1114
871, Jan. 21 (16 SUt at L. 399, chap.
25). Rdinquishment of ju-
risdiction over soldier's home 700
871, Fd>. 21 (16 SUt at L. 419, chap.
62). (3ovemment for Dis-
trict of Columbia 125, 481
871, March 3 ( 16 SUt at L. 524, chap.
116). Confiscation daims. 1175
871, March 3 (16 SUt at L. 544,
chap. 120). Indian appro-
pt iation act 1055, 1056
42
CMS
871, March 3 (16 Stat at L. 573,
chap. 122). RaUroad in-
corporation 786
871,Mardi 3 (16 Stat at Lu 601).
Pre-emption act 1114
871, April 20 (17 SUt at L. 6, chapw
21). ConfiscaUon daims.. 117§
871, April 20 ( 17 Stat at L. 15, chapw
22) . Suite for damages. . . S46
872, April 5 ( 17 SUt at L. 649, ehapu
89). Valentine scrip act.. 01
872,May 8 (17 Stat at L. 79, d^
140). Appropriation rar
examinatum of verbal ardi-
ives 1175
872,May 10 (17 Stat at L. 91, diap.
152). Mining claims. 77, 175, 178
872, June 8 (17 Stat at L. 308, chap.
335). Post roads 116S
872, Dec 17 (17 Stat at L. 398, cha|>.
4). Bridges across Ohio
river 825, 888
873, March 3 (17 SUt at L. 500,
chap. 226). Appropriation
for examinaiion of rebel
ardiives 117§
874, March 24 (18 SUt at L. 24, chap.
64). Act designating time
for taking fur seals in
Alaska 103, 106, 106
874,April 7 (18 SUt at L. 27, diap.
80). Judiciary act . ..581,1070
874, June 20 (18 SUt at L. 85, chap.
328). Salaries of govern-
ment officers 733, 738, 740
874, June 20 ( 18 SUt at L. 116, chi^.
337). Ck>vemment of Dis-
trict of 0>lumbia 185
874, June 22 (18 SUt at L. 180,
chap. 390). Bankrupt act 1100
874, June 22 ( 18 SUt at L. 186, chi^
391). Anti-moiety aot . . .
515, 617,740
875, Feb. 8 ( 18 Stat at U 307, diap.
36). Free retom of emp^
grain bags 396, 300
875, March 3 ( 18 Stat at U 376, diap.
130). Examination of rdMl
archives 1175
875, March 3 ( 18 Stat at L. 470, chap.
137). Circuit and district
court jurisdiction . .664. 687, 680
876, March 3 (18 SUt at L. 479, chap.
144). Punishment of lar^
ceny; receiving stolen
goods, etc . . . .891, 892, 896, 896
876, March 3 (18 SUt at L. 470,
diap. 137). Judidary.... 018
876,Mareh3 (18 Stat at U 506, diap.
166). Improvement of Fox
and Wisconsin rivers. . 373, 374
876, March 14 (19 SUt at L. 211, i
2). Indebtedness of I>ia-
triet of Columbia
876, June 30 ( 19 Stat at L. 63, diap.
156 ) . National banking
associations 644,
876, July 26 ( 19 Stat, at L. 102, diap.
234) . Bankrupt act IIOO
876, Aug. 15 (19 SUt at L. 160, diap.
287 ) . Appropriation for
examination of rebd ardi-
ives 1175
Citations.
877. Feb. 27 ( 19 Stat at L. 247, chap.
69). Tariff act 609
877, March 8 ( 19 Stat at L. 310, chap.
102). Appropriation for
examination of rebel arch-
ives 1175
877, March 3 ( 19 Stat at L. 377, chap.
107). Sale of desert lands
466, 467,1142
878, June 8 (20 Stat at L. 101, chap.
168). Act limiting munici-
ral indebtedness 499, 501
1 (20 Stat at L. 102, chap.
180). Government of Dis-
trict of Columbia 125
878, June 19 (20 Stat at L. 195, chap.
329). Appropriation for
examination of rebel arch-
ives 1175
879, March 3 (20 Stat at L. 384, chap.
182). Examination of r^>el
archives 1175
879, March 3 (20 Stat at L. 481,
chap. 196). Boundary be-
tween Virginia and Mary-
land settlKl by arbitrators. 950
879, June 21 (21 Stat, at L. 23, chap.
34). Appropriation for ex-
amination of rebel archives 1175
880, June 15 (21 Stat at L. 226, chap.
225). Appropriation for
examination of r^>el arch-
' ives 1175
880, June 16 (21 Stat at L. 266, chap.
235). Examination of
rebel archives 1176
880, June 16(21 Stat at L. 287, chap.
244) . Act providing for re-
payment to purchaser of ex-
cess paid for land 781-783
881, March 3 (21 Stat at L. 402, chap.
130). Appropriation for
examination of rd>el arch-
ives 1175
882, July 12 (22 Stat at L. 162, chap.
290). Bank checks . .1152-1154
882, Aug. 6 (22 Stat at L. 241, chap.
S89). Appropriation for
War Department 1175
883, N>. 14 (22 Stat at L. 414, chap.
44). Bridges across Ohio
river .825, 828
88S,MmTdi 8 (22 Stat, at L. 488, chap.
121). Tariff act 140, 396
884, March 1 (23 Stat at L. 3, chap.
9). Poet routes 1163
884, May 29 (23 Stat at L. 31, chap.
60). Animal industry act 717
884, July 5 (23 Stat at L. 103, chap.
214). Disposal of useless
military reservations 01
884, July 7 (23 Stat at L. 186, chap.
331). Naval records of
Civil War 1175
885, Feb. 17 (23 Stat at L. 307, chap.
126). Suits for damages.. 246
885, Bfarch 3 (23 Stat at L. 372, chap.
341. Indian claims. 621, 761, 1012
886, July 10, (24 Sat at L. 143,
chap. 764). Railroad lands 567
886, July 30 (24 Stat at L. 170, chap.
818). Act regulating terri-
torial passage of laws. . .499, 798
1886, Aug. 2 (24 Stat at L. 209, chap.
840). Butter and oleo-
margarine 52, 59, 61
1886, Aug. 5 (24 Stat at L. 335, chap.
930) . Act to protect inter-
ests of United States in Dis-
trict of Columbia
954, 956, 969, 979, 980
1887, Feb. 4 (24 Stat at L. 379, chap.
104). Interstate commerce
act 711, 718,1096
1887, March 3 (24 Stat at L. 505, chap.
359 ) . Jurisdiction of court
of claims 557, 781
1887, March 3 (24 Stat at L. 552, chap.
373 ) . Judiciary act 634, 664, 665
1888, Feb. 1 (25 Stat at L. 4, chap.
4). Appropriation act . .. 373
1888, June 4 (25 Stat at L. 1075, chap.
348). Claims against the
government 246
1888, Aug. 1 (25 Stat at L. 357, chap.
728). Method of procur-
ing real estate for public
building purposes 736
1888, Aug. 13 (25 Stat at L. 433, chap.
866). Judiciary act
432, 664, 686-688, 767, 937
1889, Feb. 6 (25 Stat, at L. 655, chap.
113) . Judiciary act 314
1889, March 1 (25 Stat at L. 783, chap.
333). United States court
for Indian territory 313
1889, March 2 (25 Stat at L. 855, chap.
382). Act to regulate com-
merce . . 1096
1889, March 2 (25 Stat at L. 980, chap.
412). Rights of veterans
of Civil War 616
1889, March 2 (25 Stat at L. 1008,
chap. 414). Forfeiture of
railway land grant 424, 426
1890, March 25 (26 Stat at L. 1508).
Extradition convention be-
tween United States and
Great Britain 898
1890, May 2 (26 Stat, at L. 81, chap.
182). Temporary govern-
ment for Oklahoma. 798, 799,801
1890, June 10 (26 Stat at L. 131, chap.
407 ) . dhistoms administra-
tive act 396, 898, 579
1890, June 25 (26 Stat at L. 176, chap.
614 ) . Territorial indebted-
ness 499-601
1890, July 2 (26 Stat, at L. 209, chap.
647). Protection of trade '
and commerce 29f
1890, Aug. 8 (26 Stat at L. 313, chap.
728). Importation of in-
toxicating liquors 67
1890, Aug. 18 (26 Stat at L. 315, chap.
797). Fortification act. 733, 736
1890, Aug. 30 (26 Stat at L. 1247,
chap. ). Claims for '
additional compensation un-
der government contract. . . 464
1890, Sept 19 (26 Stat, at L. 454, chap.
907). Navigation 1148
1890, Oct 1 (26 SUt at L. 567, chap.
1244). Tariff act
396, 470, 471, 507, 579, 742
43
ClTATIONB.
1890, Dec 26 (26 Stat, at L. 1512).
International boundary
oommission for United
States and Meodoo 1140
1891, F^ 23 (26 Stat, at L. 1371,
chap. 279 ) . Claims against
government 750-756
1891, Mardi 3 (26 Stat at L. 826, chap.
517). Judiciary act . 256,
314, 315, 494, 777, 778, 785,
786, 820, 930, 1054, 1102,1123
1891, March 3 (26 Stat at L. 851, chap.
538). Claims arisine fr<Hn
Indian depredations622, 761, 1012
1891, March 3 (26 Stot at L. 854, chap.
539 ) . Act creating court of
private land claims 150, 153
1891, Mardi 3 (26 Stat at L. 897, chap.
540). Appropriation act.. 246
1891, March 3 (26 Stat at L. 948, chap.
542). Appropriation act.. 738
1891,Mardi 3 (26 Stat at L. 1011,
chap. ). Indian claims 621
1891,Mardi 3 (26 Stat at L. 1101,
diap. 561). Umber cul-
ture.. 1142
1891, June 15 (27 Stat at Lu 980).
Agreement between Qt
Britain and United States
regarding fur seal fisheries
in Behring Sea 107
1892, May 9 (27 Stat at Lu 947)
Prodamation of right to
take seals in Behring sea. . 107
1892, May 13 (27 Stat at L. 36, diap.
72). Confederate archives 1175
1892, July 13 (27 SUt at L. 88, chap.
158). Navigable streams. 1148
1892, July 23 (27 SUt at L. 257, chi^.
233 ) . Appropriation for
fortifications 783
1892, July 28 (27 Stat at L. 320, chi^?-
313). Private claims . ... 1171
1893, Feb. 9 (27 Stat at L. 434, chap.
74 ) . Judiciary act . 561, 563, 874
1893, Ffb. 13 (27 Stat at L. 445, chap.
105). Shipowner's duties
and liabiliUes. 131-133, 242,
243, 806-808
1893, Dec. 21 (28 Stat at L. 20, chap.
5) . Judiciary act 627
1893, July 16 (28 Stat at L. 107, chap.
l38). Admission of Utah
as a state ..... 127
1894, July 31 (28 Stat at il'l62,' chap.
174) . Salaried offices .... 558
1894, Aug. 28 (28 Stat at L. 509, chap.
349). Tariff act
. 507, 743, 618-620, 1130
1895, Feb. 19 (28 Stat at L. 668, chi^.
100). Jurisdiction of jus-
tice of the peace extended
888,889
1896, Feb. 26 (28 Stat at L. 683, chap.
131 ) . Mineral lands 568
1S95, March 1 (28 Stat at L. 693,
chap. 145). Judiciary act
313-315, 1052, 1054
1896, March 2 (28 Stat at L. 010,
chap. 180). Sujrar bounty act 743
1896, June S (29 Stat at L. 105, chap.
310). Act repealing 9 61
of August 28, 1804 620
44
1896, June 6 (29 Stat at L. 262, diap.
339). Funding of outp
standing territorial obliga-
tions 500
1896, June 10 (29 Stat at L. 321, chap.
898) . Indian claims
1052-1054, 1056
1897, Jan. 15 (29 Stat at L. 487, chap.
29) . Act to reduce cases in
which penalty of deatli may
be infiicted 459
1897, June 7 (30 Stat at L. 84, chap.
3). Indian tribes 1056
1897, July 24 (30 Stat at L. 151, chap.
11). Tariflf act 578
1898, Feb. 9 (30 Stat at L. 240, chap.
15). Jud^ for northern
judicial district of Texas. .. .765
1898, June 13 (30 Stat at L. 448, diap.
448). Internal revenue aoi 791
1898, June 28 (30 Stat at L. 495, chap.
517). Indian tnbes. 1057
1898, July 1 (80 Stat at L. 546, chap.
541). Bankrupt act. .1099-1102
1899, July 1 (30 Stat at L. 571, chap.
545). Indian appropria-
tion and provision for ap-
peals to Supreme Court
1052-1064
Revised Statutes.
I 306. Outstanding liabilities.
307. Appropriation for parent of
outstanding liabilities. . .<
308. Payment of claims against
government
355. Duties of district attorney as
to public land titles 7SS
380. Suits between government and
national banking associa-
tions 736
566. Jury trial 876
633. Jury trial 876
641. Ju^ciary 521
648. Jury trial 876
689. Jury trial 876
691. Jury trial 876
709. Ju^ciary . . 96, 368, 382, 441,
503, 524, 525, 532, 53?l. 634,
680, 754, 778, 817
711. Bankruptcy proceedings 432
716. Write of sdre facias 405
720. Writ of injunction 403
721. Judiciary 679,1064
726. Jury trial 876
739. Suits against residents 818
767. Appointment of district a^
tomey 738
770. Salary of district attorney . 732, 735
771. Duties of district attorney
732, 736,738
If 823-827. Compensation of dis-
trict attorney and other
court officers. .732, 735, 736,738
833, 834. District attorney re-
quired to make semiamiaal
return to Attorney General
782-7S4
9 835. Limit prescribed of fees and
emoluments of district at-
torney's office 733, 734
844. Surplus in district attorney's
hands deposited in treasurv
7i8,TS4
Citations.
1882. Copies of books, documents,
. etc, as evidence 1176
914. Proceedings in civil causes... 679
955. Death of either party to a
suit 678,679
1003. Judiciary 777,778
1008. Judiciary 777
1011. Jury trial 876
1069. Statute of limitations 361, 363
1076. Department books or papers
as evidence 1176
IS 1764, 1765. Extra services
733,735-740
§1851. Extent of legislative power.. 799
§11956-1976. Killing of fur-bearinf
animals in Alaska.. 103-105, 107
I 1981. Suite for damages 246
2070. Indian tribes . 1055, 1056
IS 2257-2267. Pre-emption 1115
92289. Pre-emption or homestead
lands 466,761
2290. Homest^ claims 323
2291. Homestead claims 323
If 2304,2305. Rights of veterans of
Civil War, homestead
claims, etc 614, 615
$2319. Mineral deposits and mining
lands 77, 79,761
2320. Mining claims 77, 79, 80, 83
2322. Mininff claims . 79, 80, 85, 175, 176
2324. Title io mining claims 70, 81
2325. Patent for mimng claims. . . .79-81
23^6. Adverse daims 80,81
2339. Riparian rights . .* 1142
2357. Railway land grants 466, 467
2387. Townsite act 160
if 2504, 2505. Duty on grain bags. . 396
12802. Penalty for attempted smug-
gling 513
2865. Smug^lin^ 507, 509, 514,515
2901. Examination of grain bags. . • 396
2910. Customs duties. 397
If 2911, 2912. Average values 897
f 3019. Customs duties 140
3082. Imports 507
3224. Taxation 356
3243. Oleomargarine; taxation for
its manufacture, etc 56, 59
3257. Attempt to defraud 929
3271. Distillery warehouse 62, 63
3281. Penalty for distilling without
giving bond 929
3287. Storage of disUlled spirits.. 63
3296. Punishment for concealing
distilled spirits 68
3305. False entries in distillers'
books 929
3453. Seizure for fraud under reve-
nue laws 929
3456. Penalty for fraud under reve-
nue laws 929
3477. Transfer of claims against
government 752-754
3064. Poet roads 1163
4233. Navigation rule 804
4283. Limited liabUity of vessel
owners 807
4622. Examination of witnesses. . . . 1072
46S9. Prize captures 1076
4652. Prize captures; salvage, etc. 1174
4825. National homes for disabled
volunteer soldiers 700
S§4832, 4835. Inmates of national
homes for disabled volun-
teer soldiers 700
94914. Patents 563
5021. Bankruptcy 1100
S 5075. Bankruptcy 667
5136. National banks . ...232, 928,1009
5140. Capital stock of associations
1024, 1026
5141. Shareholders' rights and
duties 1024, 1026
5146. Banking associa^cm directors
1009
6151. Shareholders of national
banking association . . 1024, 1026
6199. Dividends of associations.... 1023
5200. National banks 232
5201. National banking associa-
tions 1010
5204. Payment off dividend out of
capital 1023, 1025
5206. Capital of bank impaired by
losses 1023-1026
5208. Bank ahecks 1162-1154
5219. Taxation of shareholders of
national banks . . 672, 862, 1036
5228. Insolvent banks 645
5234. National banking associations
644-646
5235. Receiver of national banking
association 644, 646
5236. Bankruptcy 644-646, 657
5239. National banks 232
6242. Preferred creditors
644,646, 647,1109
5258. Railroad transportation ....
710,711,718
SS 6263-5268. Telegrapha 1163, 1168
S 6275. Extradition 898
5339. Penalty for crime of murder. 459
6467. Embezzling from mails 471'
5468. United States mails 474
Supplement to Revised Statutea.
VoL 1, p. 505. Oleomargarine 61
(2d ed.) p. 638. Judiciary ... 314
(2d ed.) p. 670. United States
court for Indian territory. 313
Vol. 2, pp. 392-398. Judicial division
of Indian territory 313
Alabma.
Acta,
1895, Feb. 9. Act prescribing rates
over toll bridge . . . .539, 541-543
Code.
1 1715. Appeals from justices of the
peace 917
Criminal Code,
S 4151. Penalty imposed for charging
excessive toll rates 642
Acta,
1891, March 6. Attachments and
garnishments 638-640
1891, March 18. Funding act. 409, 500,502
1895, March 8 (Laws 1896, p. 20)
Board of control of territor-
ial reformatcMry, prison, etc.
^ ^ 722 724 725
1897, March 10. Territioriai indebted- '
ness 499
45
ClTATlOMb.
Laws, 1891.
P. 120. Funding act 499, 500
Latoa, 1895,
P. 148. Railway aid bonds 500
Revised Statutes,
P. 361. Territorial indebtedness .... 499
ff 843-845 (§§ 195-197). Suit; state-
ment filed, etc 1079
Revised Statutes, 1887.
Chap. 1, f 40. Attachments and garn-
ishments 638-640
42. Garnishment proceed-
ings 638-640
43. Writ of attochment.638,d39
47. Attachments and garn-
ishments 639
50. Attachments and garn-
ishments 639
649. Civil suits 633
f 348. Foreign corporations 676, 677
349. Foreign corporation 676
Code of Civil Procedure.
9 704. Suit against incorporated
company 676
712. Suit against foreign corpora-
tion 676
713. Service of summons in suit
with corporation 676
Constitution, 1868.
Art. 6, S 48. State power over corpora-
tions 747
Constitution, 1874-
Art. 12, 1 6. State power over corpora-
tions 747
Acts
1881, March 16. Railway aid 1007, 1089
1889, March 13. Railway aid 1007, 1088
1889, March 25. Protection of serv-
ants and employees of rail-
roads 747,749
Digest, 1894*
§94317, 4431, 4432. Jurisdiction of
Jostioe of the peace 889
Chuld^s Digest,
P.1020. Set-<^. 929
Mansfield^a Digest.
Chap. 40. State control of courts.... 313
California.
Constitution.
Art. 14, 9 !• Water and water rights. 1159
Acts.
1881, March 7. City water supply... 1159
Practice Act.
f 120. Attachments and garnish-
ments 689
Code of CivU Procedure.
§ 537. Attachments and garnishments
639,640
§1 114, 974, 978. Jurisdiction of Jus-
tices of the peace.. 889
Amendments of Codes, 1873-74.
P. 296, § 406. Civil actions; filing of
complaint 640
296, I 406. Civil actions; issue of
summons 640
46
Colovado.
Constitution.
Art. 11, § 6. County indebtedness. . • €85
Acts.
1877, March 24. County government. 685, 697
1881, Feb. 21. County bonds
691-693, 695, 696, 693
1891, April 6 (Sees. Laws 1891, p. 118)
Act creating court of i^
peals 636
Laws, 1877.
P. 62. County indebtedness 692
Laws, 1881.
P. 85-87. County indebtedness 693
General Laws, 1877.
991482, 1519, 1520. Jurisdiction ol
justices of the peace 889
Statutes.
9 260. Foreign corporations 442
General Statutes, 188S.
991924, 1979, 1980. Jurisdiction of
justices of the peace 889
Revised Statutes, 1867.
Chap. 50, 99 1, 38, 39. Jurisdiction (rf
justices of the peace 889
Conneotioiit.
Constitution, 1818.
Art 1, 9 21. Trial by jury
Revised Laws, 1821.
Title 2, 9 23. Ji^risdiction of justice of
the peace extended
Delaw^are.
Revised Statutes, 189S.
Chap. 99, 99 1> 25. Jurisdiction of jus-
tices of the peace
Distriet of Oolualiia.
Revised Statutes.
99 760, 1027. Suprsme oourt of tlM
District 887
769, 997-1006. Jurisdictioii of }iw-
tice of the peace extended. . 884
774, 1027-1029. Appod fnmi jus-
uces court ... ...•...*•• ooo
775, 776, 1027. Appeal fnmi jus-
tices' court 884
9 995. Powers and duties of justices
of the peace 879
997. Jurisdiction of justices of the
peace in the District 888
99 1000, 1001. Duty of justice of the
rce to keep a docket 884
Jurors 874,885
Compiled Statutes.
P. 201, 99 30, 31. Claims against Dis-
trict of Columbia 125
359, i 2. Statute of limitations. . . 1149
Ctoorcia.
Acts.
1861, Dec 16. Guardians and adminis-
trators 209
1866, March 12. Act for relief of ad-
ministrators, etc 209
Laws, 1861.
P. 32. Guardians and administrators 209
Laws, 1865-66,
P. 85. Act for relief of administrators,
etc 209
CiTATlOlUk
1851,
miaots.
Ada.
10. Illinois Central Rafl-
road Oompuxj incorporated 715
Bmnaed Biatuiea.
Chap. 114, f 126. Rates of raUroad
transportation 718
Bmfiaed Statutes, 1874.
(%ap.79. If 13, 62. Jurisdiction of
justices of the peace 889
Starr d Ourtia'a Statutes, 1896.
Chap. 70, S9 16, 115. Jurisdiction of
justices of the peace 889
Indiana*
Acta.
1865, March 3. Railway incorporation
act 1086,1089
1883, March 8. Railway aid. 1089, 1090, 1092
Revised Statutes.
1271. Death or disability of either
party to a suit 678
282. Defl^ of either party to a suit 678
Revised Statutes, 1881.
li 1433, 1500. Jurisdiction of justices
of the peace 889
Iowa.
Acts.
1890, March 13. Special act incorpor-
ating a city 937-940
Laios.
VoL 20, ehap. 22. Organization of cor-
porations . . 631
21, diap. 54. Organization of cor-
porations 631
Oode.
12127. Assignee's iK>wers and duties 257
Tit. 1^ ehap. 7. Assignments for bene-
fit of creditors 257
Oode, 1851.
1676. liability of corporations 631
Code, 187S.
11061. Liability of corporations.. •• 631
Code, 1888.
i 478. Liability of city lot owner. ... 668
Code, 1897.
{1611. Organization of corporations 631
1622. Indebtedness of corporations. 631
Lotos, 1860.
Chap. 70, I 2. Liability of person set-
ting on fire any woods,
marshes, or praries 911
Compiled Laws.
Chap. 101, 1 2. Liability of person se^
ting fire to any woods,
manhes, or praines 911
Session Laws, 1885.
Chaps. 156, 258. LiabUity of railroads
for damages by fire 010
Oenerdl Statutes, 1868.
Cautp.81, 91 2, 121. Jurisdiction of
tostioes of the peace 889
General Statutes, 1897.
Chap. 103, f i 20, 188. Jurisdiction of
jastioes of the peace 889
Kentneky*
Constitution, 1891.
S 170. Exemption of public property
from taxation 681, 682
171. Annuel taxes 681
172. Tax assessor 681
174. Taxation on all property 841
Acts.
1810, Jan. 27 (Sees. Laws 1810, p. 100).
State boundaries 830
1812, Jan. 30. Trial by jury 883
1836, Feb. 12. Rate of toxation on
banks 1040
1856, Feb. 14. State power over cor-
porations
680, 841, 843-845, 847-849, 1040
1872, Feb. 9 (Acts 1871-72, vol. 1,
8 314). Bridge across
hio river 824
1879, March 31 (Acts 1879, chap. 121,
p. 93 ) . City waterworks . . 080
1880, April 8. Railway incorporation
act 1086
1882, April 7. Railway incorporation
act 1086, 1087
1884, May 12. Incorporation of say-
ings bank 840
1886, May 1 (Acts 1885-80, chap. 897,
p. 317). City waterworks
680-683
1886, May 17 (Gen. Stat 1888, chap.
68) . Revenue act 681
1888, Feb. 15 (Acts 1887-88, chap. 137,
p. 221). City bonds 680
1888, April 9 (Acts 1887-88, vol. 2, p.
937). Reincorporation of
city of Henderson 827, 833
1892, June 4. Additional funds for
state expenses 681
1892, July 6. Additional funds for
state expenses 681
1892, Nov. 11. Taxation of banking
and other corporations. . . .
841, 842, 1031-1034
1894, March 19 (Acts 1894, chap. 100,
p. 278). City waterworks 680
Session Acts, 1885-86.
Pp. 144-147. Taxation of banks ... 841-849
P. 201. Taxation of banks
841, 844, 84r,849
Statutes, 1894.
S 1987. Revenue 681
4020. Taxation 681
4022. Real and personal estate de-
fined 681
4026. Exemption from taxation... 681
S 9 4077 et seq. Taxation of corpora-
tions, companies, and asso-
ciations 853, 854
Qeneral Statutes.
Chap. 68, 9 8. Bank taxation 841,843
Revised Statutes.
Vol.2, p. 121. Charters of corpora-
tions 681
9 2909. City attorney 1032
Barhour d CarrolVs Statutes, 1894*
Chap. 7, 9 74, p. 193. CHaimants upon
insolvent estates 654
47
UlTATIOMS.
Zionisiaiui.
Acta,
1669, Feb. 23. Unjust discriminatioii
of passengers by carriers
forbidden 711
Civil Code.
P. 272, art. 68. Conditional obliga-
tions 186
274, arts. 81, 83. Conditional obU-
«itions 186
Art. 465. Movables and immovables
defined 746
Arts. 2021, 2022. Conditional obliga-
tions 185
Art. 2711. Contractual obligations... 190
Code of Practioe.
Arts, 60A et seq. Insolvency «• 765
BSftiae*
Acts.
1883, March 6. Railroad oorporatioos 917
Laws, 1878,
Chap. 53. Railroad corporations • • • • 817
Revised Statutes, 1871.
Chap. 51. Railroad corporationB • • • 817
Statutes,
1715, diap. 12 (Bacon's Laws). Courts
of justices of the peace. .879, 883
1763, chap. 21 (Bacon's Laws). Courts
of justices of the peace. .879, 883
1781, chap. 20. Lands; approrpiation
and sale 960
1781, chaps. 45, 49. Confiscation acts 958
1783,chap. 30 (2 KUty's Laws). Act
incorporating bank in Dis-
trict of (Columbia 880
1788, chap. 44. Vacant lands 960
1791, Dec 19, chap. 45 (2 Killy's
Laws). Act concerning ter-
ritory of Columbia an3 city
of Washington
....971, 977, 981, 986, 994, 1000
1791, chap. 68 (2 Kilty's Laws) . Civil
jurisdiction of justices of
the peace 879, 883, 884
1793, Dec. 28. Supplementary to act
of 1791 092
1798; chap. 71 ( 2 Kilty's Laws) . CivU
lurisdiction of justices of
the peace
1809, chap. 76, SS 1, 6 (3 Kilty's
Laws). Exclusive original
jurisdiction of justice M the
peace extended to causes not
exceeding fifty dollars. . .883, 884
1852, ehap. 239. Junsdiction of jus-
tices extended to one hun-
dred dollars 883
1876, April 3, chap. 198. Rights of
landholoers on either side
the boundary line 956
Bfassaohiisetts.
Acts,
1838, April 23. Qaimants upon in-
solvent estates 654
Provincial Laws,
Vol. 1, pp. 283, 370. Jury trial 879
48
Provincial Statutes, 1697.
Chap.8, S 1. Jury trial 87$
Provincial Statutes, 1699,
Chap.2, 13. JurytriaL 879
Statutes, 178S.
Chap. 48. Jury trial. 87«
General Statutes, 1860.
Chap. 118, I 27. Claimants upon in-
solvent estates 654
Revised Statutes.
Chap. 126, 9 24. Stealing
Revised Statutes, 1872.
9S5249, 5433. Jurisdiction ol fu^-
tices of the peace
BoweU's Annotated Statutes.
§9 6814, 7000. Jurisdicticm of jii».
tices of the peace
VoL 2, p. 2156, I 8824. Claimanto up-
on insolvent estates 654
381
884
Acts.
1860, Mardi 8. Claimants upon insol*
vent estates 654
General Laws, 1881.
Chap. 148. D^tor and creditor. . . .837-839
Mississippi.
Code, 1892,
91 82, 2394. Jurisdiction of justic
the peace
MissovrL
Constitution, 1865.
Art. 2, I 6. Test oath of jurors. .
Lau>s, 1895,
P. 284. Handwriting as evidence.
Revised Statutes, 1889.
Chapr. 26, | 944. Liability of OHnmon
carriers 1095
99 6122, 6328. Jurisdiction ol justices
of the peace 889
Hew Hampsldre.
Puhlie Statutes, 1891.
Chap. 127, §9 19, 20. Act pn^ibitii^
sale of oleomargarine as
butter • 60,61
Keir Jersey.
Aets.
1775, Feb. 11 (Allinson's Lawi» p.
468). Jury trial 879
New^ Mezieo*
Compiled Laws, 18U.
P. 680, 9 1435. Inheritance law 316
New York*
Acts.
1737, Dec 16 (1 Smith ft Livingston'^
Laws, p. 238, 9 4). Jury
trial
1759, Dec 24 (2 Smith k Livingston's
Laws, p. 170, 9 4). Jury
trial
879
879
Citations.
1848,Ap3iI 12. Corporation act 1163
LatDS,
1837, chap. 430, $ 4. Violation of
osury laws 208
1S50, diap. 172. Usury 258
1882, diap. 237, I 1. Usury 268
1884, diap. 202. Act prohibiting man-
ufacture and sale of oleo-
margarine 63
1889 (112th Sees.) chap. 863, p. 467.
Corporation tax 827
1892, ohap. 689, | 60. Usury 268
Siaiuies,
1801, chjip. 166, 9 12. Jurisdiction of
justice of the peace 886
1808, chap. 204, f 9. Justice's court;
jurors, etc 886
1813, chap. 63, f 9. Justice's court;
juroTB 886
1818, diap. 94, $ 22. Jurisdiction off
justice of the peace extend-
ed 886
1861, chap. 158. Jurisdiction of jus-
tices of the peace 889
Revised Statutes,
P.2263. Usfury 263
2256. Violation of usury laws.... 268
2266. Usury 263
.Beviaed Btatutee, 1875.
(6th ed.) pt 3, tit. 2, S 66. Jurisdic-
tion of justices of the peace 889
3, tit. 4, fi 63. Jurisdiction of jus-
tices of the peace 889
Code of Civil Procedure.
192476, 2626. Letters of administrar
tion 934
Nortli Oarolina.
Constitution, 1875-76.
Art. 9, 9 14. Provision for establish-
ing and maintaining depart-
ments of agriculture, me-
chanics, mining and normal
instruction 192
Acts.
1877, March 12. Establishment of de-
partment of agriculture,
mechanics, mining and nor-
mal instruction 192, 196
1891, Jan. 21. Inspection of commer-
cial fertilizers
....191-193,197
Laws.
1876-77, diap. 274, p. 606. Establish-
ment of department of agri-
culture, mining, mechanics
and normal instruction. . . . 192
1885, chap. 308, p. 553. Establish-
ment of industrial school.. 194
1887, c^p. 409, p. 714. Repealing act 194
1887, chap. 410, p. 718. North Caro-
lina College of Agriculture
and Mechanic Arts 194
1891, chap. 90, p. 40. Inspection of
commercial fertilizers .... 192
1891, duu>. 338, p. 369. Oyster indus-
tries 194
1891, diap. 348, p. 404. College appro-
priation bill 194
1891, chap. 348, p. 404. College appro-
priation bill 104
Code.
99 1996-2000. Bailroad bonds 768
Code, 1888.
9 9 834, 884. Jurisdiction of justices of
the peace 889
VoL2, diap. 1, 9 2190. Commerdal
fertilizers; inspection of,
etc 192, 196,197
2, chap. 1, 9 2191. Commercial
fertilizers, stamp, label, etc. 199
2, chap. 1, 9 2192. Proceedings
to condemn 193
2, chap. 1, 9 2193. Liability of
manufacturer and vendor
for disobeying law regard-
ina fertilizers 193
2, chap. 1, 9 2196. Agricultural
experiment and fertilizer
control station ... 193
2, chap. 1, 9 2198. Geological ex-
pexiises paid by agricultural
department 194
2, chap. 1, 9 2205. Tax on fertili-
zers 193
2, chap. 1, 9 2200. Moneys aris-
ing from tax on fertilizers. 194
2| chap. 1, 9 2208. Moneys aris-
ing from tax on fertilizers 193
Ohio.
Constitution.
Art. 1, 9 19. Private property taken
for public use 878
Constitution^ 1851.
Art. 1, 9 19* Private property taken
for public use 444,447
Acts.
1868, May 16. Act ceding jurisdiction
of soldier's home to United
States 700
1889, April 13 (Laws 1889, vol. 86, p.
29 1 ) . Railroad companies ;
running of trains, etc 703
LaMS.
Vol. 63, p. 178, 99 1, 2. Suits to enjoin
illegal levy of taxes 462
Revised Statutes.
9 2730. Taxation; definition of terms
672,674
2769. Unincorporated banks; state-
ments, etc 673
2762. Incorporated banks 672, 673
Revised Statutes, 1880.
99 586, 6684. Jurisdiction of justices
of the peace 889
9 6848. Suits to enjoin illegal levy of
taxes 462
Revised Statutes, 1890.
VoL 1, 9 1692, subd. 18, 33. Cities and
villages 444
1, 9 2232, pp. 429, 430. Enum-
eration of powers 444
1, p. 672. Private property taken
for public use 444
1,99 2233-2261. Private prop-
erty taken for public pur-
poses 444
48a
1
Citations.
1, chap. 4, p. 581, § 2264. Assess-
ments 444, 451
1, chap. 4, p. 581, 9 2263. Assess-
ments 444
l,p. 586, § 2271. Rate of taxa-
tion 445,461
1, p. 586, 9 2272. Assessments for
improvements 445
1, S 2277. Assessments for im-
provements 445
1,9 2284 445
9 3320. Railroad companies 702
VoL 1, p. 1491, 9 5144. Death of either
party to a suit 678
Bai€8*8 Annotated Statutes.
Vol. 3, p. 3525. Private property
taken for public use 444
Oklahonuu
Statutes, 189S.
1 4085. Garnishment proceedings . • • 620
4120. Debtor and creditor... 627
4121. Attachment a^^ainst debtor's
property 627
Constitution, 1776,
Artll. Trial by jury 880
Constitution, 1790.
96. Jury trial 880
Acts,
1745, March 1 (1 Dall. Laws, 304).
Powers of justice of the
peace 881
1785, Feb. 18 (2 Dall. Laws, 44, 247).
Jury trial 880, 881
1785, April 5 (2 Dall. Laws, 304) . Ju-
risdiction of justice of the
peace enlarged 881
1789, March 11 (2 Dall. Laws, 660).
Judicial powers of aldermen 881
1794, April 19 (3 Dall. Laws, 536).
Jurisdiction of justices and
aldermen extended 881
1879, July 7, chap. 211. Jurisdicti<m
of justices of the peace. . . . 889
1 885, May 21, chap. 25. Manufacture
of oleomargarine 68
Purdon*s Digest, 1885.
(11th ed.) 99 35, 99, 100. Justice of
tiie peace 889
South Oarolina.
Acts.
1830, Dec 18. City improvements.... 469
1865, Dec. 18. Sale of Columbia canal 626
1866, Sept 21. Establishment of peni-
tentiary 626
1866, Dec 19. Sale of Oolumbia canal 626
1868, Sept 2 1 . Sale of Oolumbia canal 626
1878, March 12. Disposal of Odnmbia
626
1882, Fdt>. 8. Transfer d canal prop-
erty 624,626
1887, Deo. 24. Act piOTiding for trans-
fer of canal and reservation
of water power 524-527
1892, Dec 24. Contract for use of
water power 524-526
481i
Statutes at Large.
Vol.13, p. 398. Sale of Columbia
canal ^ 526
14, p. 83. Sale of Columbia canal 526
16, p. 445. Di^KMsl of Columbia
canal 528
17, p. 855. Transfer of canal
property 626
Acts,
1875, March 22. Life insurance
569, 570, 576,576
1877, March 19. Mineral resources;
development, etc 433,434
1887, March 29. Foreign corporations
subject to suit in state
570, 571, 674,575
Statutes,
1794, ch&p. 1, 99 52, 54. Jurisdiction
of justices of the peace. . . . 882
1801, chap. 7. Jurisdiction of justice
of the peace extended 882
1809, chi^. 63. Appeal from justices'
court
1831, ch&p. 59 (Pub. Acts 1831, p.
83). Jurisdiction of jus-
tice of the oeace extended to
one hundrea dollars
1877, ohap. 31, p. 44. Mining corpora-
tions 4SS
Texas.
Constitution,
Art 11, i 2. Municipal corporations 1061
11, 9 7. Municipal corporatioos 1062
Latcs.
1846, p. 367. Service of writ or proe-
814
P. 395. Procedure in all civil suits.. 814
1848, chap. 95, p. 106. Procedure in
trial for title to real estate 813
1879, chap. 53, 9 13. Claimants upon
insolvent estates 664
1887, chap. 141, 99 h 2. County bonds
1062,1063
CivU Statutes, 1897.
Art 88. Claimants upon insolv^it
estates 654
Revised Statutes.
Art 1101. Imprisonment for contempt 97
Revised Statutes, 1879.
99 1539, 1639. Jurisdictioxi of justioso
of the peace 889
Revised Statutes, 1895.
99 1668, 1670. Jurisdiction of justioso
of the peace 889
Utah.
Compiled Laws, 1876,
Pp. 686, 586, 99 1919, 1920. Penalty
for crime of murder 469
Virsiaia.
Acts
1781, Jan. 2. ( 10 Hening's Stat 664) .
Cession of lands northwest
of Ohio river 8SI
CiTATIONa.
1789, Bee. 20 (11 Hening'B Stat 326)
Formal conveyance of lands
ceded to United States. ... 829
1788, Dec. 20 (12 Hening's Stat
780). Confirmation of
compact between the orig-
inal states and settlers of
the new territory 829
1789, Dec 18 13 Hening's Stat 17).
Act concerning the erection
of the district of Kentucky
into a separate state 829, 830
1796, Dec 10. Title to land in Vir-
ginia 958
1829, Feb. 27. Canals 973
1835, Feb. 27. Delinquent and for-
feited lands 217, 218
18S6, March 23. Delinquent and for-
feited lands 217
1870, liiy 24. Act providing a charter
for city of Richmond 381
1871, March 30. Refunding of public
debt 383-387, 389, 390
1S72, March 7. Cash payment of taxes
... .383 389
1876, Feb. 19, ' ^ap. '48.* Rights of '
landholders on either side
the boundary line 956
1879, March 28. Tax-receivable cou-
pons 885, 380
1882, Jan. 14. Tax-receivable coupons 390
1882, Jan. 26. Repealing act 390
Session Acts.
P. 7. Ddinquent and forfeited lands. . 217
Laics.
1834-35, pp. 11-13. Delinquent and
forfeited lands 217
1893-94, p. 381. Suits against state.. 389
Statutes,
$1 45, 46. License tax upon agents. . . 330
Hening's Statutes at Larg^
VoL 12, chap. 81, p. 186. Freeman's
rights and privileges 219
Code, 187S.
P. 1023. Suits for nonacoeptance of
tax-reoeivable coupons . . . 390
Code, 1S87,
S 1287. Telegraph and telephone com-
panies 1164
Revised Code.
Chap. 92. Disputed title to lands 958
Wasbinston.
Acts,
1881, Dec 1. Water supply in cities
and towns. WO
West Virffina.
Constitution.
Art 3, §§ 4, 5, 9, 10, 20. BiU of rights. 216
5, § 1. Division of powers 216
18, § 1. Private rights in lands. . 217
Constitution, 181Z.
Art 18. Forfeited lands 220
Acts.
1873, Nov. 18. Suits involving forfeit-
ure of lands 222, 226
1882, March 25. Forfeited lands; sale
of 222,225
1872-78, chap. 134, p. 449. Suits in-
volving forfeiture of lands
. . 222,225
1882, chap. 95, p. 253. Circuit court
proceedings for sale of for^
feited lands 222,225
1891, chap. 94. Power of court in suits
over forfeited lands 223
1893, p. 57. Sale of forfeited lands. ... 223
Code.
Chap. 105, §§1,2. Sale of lands for
benefit of school fund 216
Code, 1887.
Chap. 105. Forfeited lands 222, 223
Code, 1891.
Chap. 29, §67. Taxation on rail-
road property .357-359
P. 731. Forfeited lands ; sale of 223
Wisconsin.
Constitution.
§ 10. Internal improvements 870
Acts.
1848, Aug. 8. , Improvement of Fox and
Wisconsin rivers . . .369,370, 37Z
1950, Feb. 9. Contracts for improve-
ments •••• 370
1853. July 6. Improvement of Fox
and Wisconsin rivers . . .370,372
1856, Oct 3. Improvement of Fox and
Wisconsin rivers 370, 373
1866, April 12. Steamship navigation
from Mississippi river to
(jreen Bay 871
1871, March 23. Sale of improved
lands -.. 378
Statutes, 1898.
§§ 3572, 3760. Jurisdiction of justices
of the peace 889
Revised Statutes, 1878.
§§ 3572, 8756. Jurisdiction of justices
ofthepeaoe 889
48o
CASES
ARGUED AND DECIDED
SUPREME COURT
or THB
UNITED STATES
AT
OOTOBEE TEEM, 1897.
Vol ITI.
EOisioirs
' the United States
AT
; TERM, 1897.
^
T followed, ezMpt « to nudi rafareDoe wattt m
Dclooed In braoketa.]
„ he toWlly eieloded from a itata
■imrly bocoDBe the state deeldei that, lor tlie
parpose of preventlnit the Importation of a»
Impure or adnltersted article, It will not per-
mit the Introduction wltbln Ita borden of the
pore and unadulterated article.
I. A aale of a 10-pound package of oleomarga-
rlne manalactnred. Imported, and told br the
Importer under the clrcnmBtaneea found In
the special Terdlct In thie oaae, was a TBlld
lale, althouih to ■ person who was a con-
allj.
An Importer hM the liKht to sell oleomarga-
rine In ortsinal package* to consumera as well
as to wholesale dealers, and the exercise of
this right will not be prevented hj the (act
that the packages are suitable for retail
S. The Pennsylvania statute of 1880, to the el-
tent (hat It prohibits the lutrodDCUon (>t oleo-
margarine from another state, and its aale la
the irlBlnal pactiage aa described In the sp»-
clai Totdlct Id
this cas
e, is InvaUd.
[Nob. S6-S8.1
Argued
March
85, E*
1898.
Decided May
IN ERROR to the Supreme Court of the
Bta^ of FeniuylvBJiia to review a. judgment
of that «ourt reversing the judgment of ths
trial court for the defendant in each of these
cases and in favor of the Commonwealth of
Pannsylvanla convieting in pursuance of the
special verdict said defendants several I7 of a
violation of a statute of said state prohibiting
the sale of oleomargarine, and remanding the
I vlttont told to a eontnmar, — aee note to Cratt
t V. Parker (»lco.) 21 L. R. A. 136.
At to poicer of Oongreii to remilale oom-
■ merer, — see note to State. CorwlD, v. Indiana
. A O. Oil, Obs a Min. Co. Ilnd.) 8 U R, A. 5T>.
A( to ttate tax or Hotna« a* aftenllng oom-
t ni«roe, — see note to Bothermel v. Uejarle (Pa.)
. • L. B. A. BeS.
1-4
SupRKiiE Court op the United States.
Ocr. T£iM,
cases for sentence. The cases were similar
and the thre^i cases were argued together.
Judgments of the Supreme Court reversed,
and the cases remanded for fuither proceed-
ings.
See same case below, Com, v. Paul, 170 Pa.
284 [30 L. R. A, 390].
Statement by Mr. Justice Peckhamt
[2] •The questions in these three cases are the
same, and they arise out of the selling of cer-
tain packages of oleomargarine.
The plaintiffs in error were indicted for
and convicted of a violation of a statute of
PennsTlvania prohibiting such sale. The act
was passed on the 2l8t of May, 1886, and is
to be found in the volume of the laws of Penn-
sylvania for that year, page 22. It provides
as follows:
**That no person, firm, or corporate body
shall manufacture out of any oleaginous sub-
stance or any compound of the same, other
than that produced from unadulterated milk,
or of cream from the same, any article de-
signed to take the place of butter or cheese
produced from pure unadulterated milk, or
cream from the same, or of any imitation or
adulterated butter or cheese, nor shall sell or
offer for sale, or have in his, her, or their pos-
session with intent to sell the same as an ar-
ticle of food."
A violation of the act is made a misde-
meanor and punishable by fine and imprison-
ment.
The jury found a special verdict in each
case. The only difference between the facts
stated in the verdict in nimiber 86 and those
contained in the other cases is that in the
latter the package sold was 10 pounds in-
stead of 40 pounds and was sold by the plain-
tiffs in error in those cases as agents of a dif-
ferent principal, carrying on the same kind of
business in the state of Illinois, and the pack-
age was sold to a different person and upon a
different date.
[8] •The following facts were set out in the
special verdict in number 86:
** (1) The defendant, George SchoUenberger,
is a resident and citizen of the commonwealth
of Pennsylvania, and is the duly authorized
agent in tiie city of Philadelphia of the Oak-
dale Manufacturing Ck>mpany of Providence,
Knode Island.
•* (2) The said Oakdale Manufacturing Ck)m-
pany is engaged in the manufacture of oleo-
margarine in the said city of Providence and
state of Rhode Island, and as such manufact-
urer has complied with all the provisions of
the act of Congress of August 2, 1886, entitled
•An Act Defining Butter; also Imposing a
Tax upon and Regulating the Manufacture,
Sale, Importation, and Exportation of Oleo-
margaiine.'
"(3) The said defendant, as agent aforesaid
fo engaged in business at 219 Callowhill street^
in the city of Philadelphia, as v. holesale dealer
in oleomarfi^rine, and was so engaged on the
td day oi October, 1893. and is not engaged
In any other business, either for himself or
ethers.
" (il The said defendant, on the 1st dav of
SO ^
July, 1893, paid to the collector of interatJ
revenue of the first district of PennsylvanU
the sum of four hundred and eignty doUiurs u
and for a special tax upon the business, u
agent for the Oakdale Manufacturing Com-
pany, in oleomargarine, and obtained from
said collector a A^iiting in the words follow-
ing:
Stamp for Special tax,
$480 United States $480
per year, internal revenue, per year.
NaA434. No. A 4k
Received from George Schollenbemr,
agent for the Oakdale Maniifacturing Com-
pany, the sum of four hundred and eighty
dollars for special tax on the business of
wholesale dealer in oleomargarine, to be ca^
ried on at 219 Callowhill street, Philadclphii,
state of Pennsylvania, for the period repre-
sented by the coupon or coupons hereto at
tached.
Dated at Philadelphia, Pa., July fiist, 1891
[Seal.] William BL Doyle,
$480. Collector, First District of Penns.
•"The following clauses appear on the||l
margin of the above: ^
** This stamp is simply a receipt for s tax
due the government, and does not exempt the
holder from any penalty or punishment pro-
vided for by the law of any state for carrying
on the said business within such state, and
does not authorize the commencement nor
the continuance of such business contrary to
the laws of such state or in places prohibited
by a mimidpal law. See § 3243. Revised
Statutes, U. S. . «» «a
" 'Severe penalties are imposed for neglect
or refusal to place and keep this stamp con-
spicuously in your establishment or place ol
business. Act of August 2, 1886.'
"Attached to this were coupons for sack
month of the year in form as follows:
"'Coupon for special tax on wholeralt
dealer in oleomargarine for Oct<..ber. 1893.'
" (5) On or before the said second day ol
October, 1893, the said Oakdale Manafactiu«>
ing Company shipped to the said defendant,
their agent aforesaid, at their place of busi-
ness in Philadelphia, a package of oleomar-
garine separate and apart from all other pack-
ages, being a tub thereof containing forty
pounas, packed, sealed, marked, stamped, and
branded in accordance with the requirements
of the said act of Congress of August second,
1886. The said package was an original
package, as required by said act, and was of
such form, size, and weight as ia used by pixh
ducers or shippers for the purpose of securing
both convenience in handling and security ia
transportation of merchandise betweea
dealers in the ordinary course of actual coai*
merce, and the said form, size, and weight
were adopted in good faith and not for the
purpose of evading the laws of the commoa-
wealth of Pennsylvania, said package being
one of a number of similar packages forming
one consignment shipped by the said company
to the said defendant Said packnges fonn-
ing said consignment were unloaded from the
171 U. 8.
1817
SCBOLLBNBSRORR V. PkNNSTLVANIA,
4-7
CITS and placed in defendant's store and then
offered for sale as an article of food.
"(6) On the said second day of October,
1SKI, in the said city of Philadelphia, at the
place of business aforesaid, the said defend-
ABt, as wholesale dealer aforesaid, sold to
James Anderson the said tub or package men-
tioned in the foregoing paragraph, the oleo-
■targarine therein contained remaining in the
original package, being the same package,
wiUi seals, marks, stumps, and brands un-
broken, in which it was packed by the said
manufacturer in the said city of Providence,
Bhode Island, and thence transported into
the dty of PUladelphia and delivered by the
carrier to the defendant; and the said tub
was not broken or opened on the said premises
of the said defendant^ and as soon as it was
1] purchased bv the said James * Anderson it
was removed from the said premises.
"(7) The oleomargarine contained in said
tab was manufactured out of an oleaginous
rabstance not produced from unadulterated
milk or cream, and was an article designed to
take the place of butter, and sold by the de-
fendant to James Anderson as an article of
food; but the fact that the article was oleo-
margarine and not butter was made known
hj Uke defendant to the purchaser, and there
was no attempt or purpose on the part of tke
defendant to sell the article as butter, or any
understanding on the part of the purchaser
that he was buying anything but oleomar-
garine, and the said oleomargarine is recog-
nized by the said act of Congress of August
2, 1886, as an article of commerce.
''(8) The above transaction specifically
fonnd by the jnry is one of many transactions
of like character made by the defendant dur-
ing the last two years."
Upon this special verdict the trial court
directed judgment to be entered for the de-
fendant Hie case was taken by the com-
monwealth to the supreme court of the state,
where, after argument, the judgment was re-
Teraed and judgment was entered in favor of
the conunonwealth, and the record remanded
that sentence might be imposed by the court
below. The plainti/Ts in error have brought
these judgments of conviction before uiis
court for review by virtue of writs of error.
The opinion of the supreme court of the
•tate is to be found repoited under the name
of Cimmontoealih v. Paul, in 170 Pa. 284
[30 L. R. A. 396].
Miw$, William D. Guthrie» Bie?iard 0,
DaU, Henry U, J£dmunds, and Albert K
Vteder for plaintiffs In error.
Mr. JobA G. Johnson for defendant in
Mr. Justice Peekham delivered the oinn-
iota of the court:
Counsel in behalf of the commonwealth
rests the validity of the statute in question
upon two principal grounds:
(1) That oleomargarine is a newly invent-
ed or discovered article, and that each state
bas the right in the case of a newly invented
or discovered food product to determine for
171 U. 8.
its citizens the question whether it is whole-
some and nondeceptive, and neither the Con-
gress of the United States nor the legislatures
of other states can deprive it of this right,
and that being such newly discovered article
it does not l^Iong to the class universally
recognized as articles of commerce, and hence
the legislation of Pennsylvania does not regu-
late or affect commerce; that nondiscrimin-
ative legislation enacts in ffood faith for tha
Srotection of health and tike prevention of
eception, not hampering the actual transport
tation of merchandise, is not presumptively
void but is conclusively valid.
(2) That if the right of citizens of another
state to send oleomargarine into the common*
wealth of Pennsylvania be admitted, it can
only be introduced in orighial packages suit-
able for wholesale trade, and where the article
imported is intended and used for the supply
of the retail trade or is sold by retail directly
•to the consumer, the package in which it is
imported from another state is not an "orig-
inal package" within the protection of the in-
terstate commerce provision of the Constitu-
tion of the United States.
These are the main grounds upon which the
conviction is soueht to be sustained. The
supreme court of uie state upheld the statute
upon the ground that it was a legitimate ex-
ercise of t£e police power of the state not in-
consistent with the right of ^e owner of the
product to bring it within the state in appro-
priate 'packages suitable for sale to the whole- [T]
sale dealer and not intended for sale at retail
by the importer to the consumer, and that in
the cases under consideration the packages .
were not wholesale original packages and
their sale amounted to a mere retail trade.
Upon the first ground for sustaining the
conviction ip these cases the argument upon
the part of the commonwealth runs some-
what as follows: It may be admitted that
actually pure oleomargarine is not dangerous
to the public health, but whether it be pure
depends upon the method of its manufacture,
and its purity cannot be ascertained by any
superficial examination, and any certain and
effective supervision of the method of its
manufacture is impossible. It is manufac-
tured to imitate in its appearance b\itter,
with a view to deceiving the ultimate con-
sumer as to its character, and this deception
cannot be avoided by coverings, labels, or
marks upon the product; the legislature of
Pennsylvania was therefore so far justified in
protecting its citizens against oleomargarine
oy prohibiting its sale; that the legislation
in question does. not discriminate in favor of
the citizens of Pennsylvania or in any man-
ner against any particular state or any par-
ticular manufacturer of the article, and, aa
there is nothing in the case tending to prove
the contrary, it must be assumed that the
legislation was enacted in good faith for the
protection of the health of the citizens and
for the prevention of deception, and as such
legislation did not hamper the actual trans-
portation of merchandise, the statute must bt
held to be within the power of the legislature
to enact, and is therefore valid; at all events,
51
7-10
SnFBBMB COUBT OF THB UNITED StATBS.
Occ Tm,
the state has a right in cases of newly invent-
ed food products to determine for its citizens
the question whether they are wholesome and
nondeceptive, and that oleomargarine is one
of that class of products and is necessarily
subject to the right of the state, either to
regulate or absolutely to prohibit its sale.
In the examination of this subject the first
question to be considered is whether oleomar-
garine is an article of commerce? No affirm-
ative evidence from witnesses called to the
stand and speaking directiy to that subject
(8] is found in the record. * We must determine
the question with reference to those facta
which are so well and universally known that
eourts will take notice of them without par-
ticular proof being adduced in regard to
them, and also by reference to those dealings
of the commercial world which are of like
notoriety.
Any l^;islation of Congress upon the sub-
ject must, of course, be regarded by this court
u a fact of the first importance. If Ck>ngress
has affirmatively pronounced the article to
be a proper subject of commerce, we should
rightly be influenced by that declaration. By
reference to the statutes we discover that
Congress in 1880 passed "An Act Defining
Butter, also Imposing a Tax upon and Regu-
lating the Manufacture, Sale, Importation,
luid Exportation of Oleomargarine." 24 Stat.
at L. 209, chap. 840. In that statute we find
that Congress has given a definition of the
meaning of oleomargarine and has imposed
a special tax on the manufacturers of the
article, on wholesale dealers and upon retail
dealers therein, and the provisions of the Re-
vised Statutes in relation to special taxes are,
so far as applicable, made to extend to the
n>ecial taxes imposed by the 3d section of
tne act, and to the persons upon whom they
are imposed. Manufacturers are required to
file with the proper collector of internal reve-
nue such notices, and to keep such books and
conduct their business under such supervision
as the Commissioner of Internal Revenue,
with the approval of the Secretary of the
Treasury, may by regulation require. Pro-
vision is made for the packing of oleomargar-
ine by the manufacturer in packages con-
taining not less than 10 pounds and marked
as prescribed in the act, and it provides that
all sales made by manufacturers of oleomar-
garine and wholesale dealers in oleomargar-
ine shall be in the original stamped pack-
ages. A tax of 2 cents per pound is laid
upon oleomargarine to be paid by the manu-
facturer, and the tax levied is to be repre-
sented by coupon stamps. Oleomargarine
imported from foreign countries is taxed in
addition to the import duty imposed on the
same an internal revenue tax of 15 cents per
pound. Provision is made for warehousing,
and a penalty imposed for selling the oleo-
margarine thus imported if not properly
J9] stamped. Provision is *also made for the ap-
pointment of an analytical chemist and mi-
eroscopist by the Secretary of the Treasury,
And such chemist or microscopist may exam-
ine the different substances \vhich may be sub-
mitted in contested cases, and the Commis-
82
sioner of Internal Revenue is to decide h
such cases as to the taxation, and his ded-
sion is to be final. The Commissioner is alio
empowered to decide '"whether any suhstanet
made in imitation or semblance of butter,
and intended for human con8lm^>tioll, eon-
tains ingredients deleterious to the pabhe
health; but in case of doubt or oontest his
decisions in this class of cases may be ap-
pealed from to a board herebv constituted for
the purpose, composed of the surgeon ges-
eral of ihe army, the suigeon general ol the
navy and the commissioner m affrienltnre,
and the decisions of this board shiQl be final
in the premises." Provision is idso nuide for
the removal of oleomargarine fmm the place
of its manufacture for export to a foreign
country without payment of tax or affixing
of stamps thereto, and there is a penalfy de-
nounced affainst any person engaged in car-
rying on Vie business of oleomargarine who
i^ould defraud or attempt to defraud the
United States of the tax.
This act shows that Congress at the time
of its passage in 1886 recognized the artide
as a proper subject of taxation and as one
which was the subject of traffic and of ex-
portation to foreign countries and of im-
portation from such countries. Its mann-
facture was recognized as a Lawful pursuit,
and taxation was levied upon the manufae-
turer of the article, upon the wholesale and
retail dealers therein, and also upon the arti-
cle itself.
As to the extent of the manufacture sad
its commercial nature, it is not impn^wr to
refer to the reports of the Secretary of the
Treasury, which show that the tax recdpti
from its manufacture and sale in the United
States under the act above mentioned dur-
ing the nine years, beginning with 1887,
amounted to over $10,000,000.
When we come to an inquiry at to the
properties of oleomargarine and of what the
substance is composed, we find that answen
to such inquiries are to be found in the va-
rious *encyclopsedias of the day, and in the '
official reports of the commissioner of agri- '
culture and in the legal reports of casea act-
ually decided in the courts of the country.
In brief, every intelligent man knows its
general nature, and that it is prepared as aa
article of food, and is dealt in as such to a
large extent throughout this country and in
Europe.
Upon reference to ihe Encyclopedia Brit-
annica it is said that "pure oleomargarine
butter is said to contain every element that
enters into cream butter, and to keep pore
much longer; but there is the defect of not
knowing when it is pure or what injorioos
ingredients, or objectionable processes, maj be
u^ in its manufacture by irresponsible
parties." The article also says: **WeappeiNla
comparative analysis of natural and artificial
butter, which shows that, when properly
made, the latter is a wholesome and aattt-
factory substitute for the former."
There is contained in the 17th vc^unM of
the Encyclopiedia Britaimica an extract from
a report by the secretary of the Britisdi ein-
171 U.&
1817.
SCHOLLBNBBRGSR V. P^NNSYLYAMIA.
10-18
at Wafthington, in 1880, describing the
Bcthod of obtaining oleomargarine oil.
TUt shows the article was then well known.
In Em parte Scott and others, the circuit
court for the eastern district of Virginia
(68 Fed. Rep. 45), roeaking by Hughes, dis-
thet judge, said: '^It is a fact of common
knowledge that oleomargarine has been sub-
jected to the severest scientific scrutiny, and
has been adopted by every leading govern-
ment in £nrope as well as America, for use by
their armies and navies. Though not origi-
nally invented by us, it is a gift of American
entMprise and progressive invention to the
world. It has become one of the conspicuous
articles of interstate commerce, and fumishe?
t large income to the general government
tnnu^ly. ... It is entering rapidly into
domestic use and the trade in oleomar^rine
hts become large and important. The atten-
tion of the national government has been at-
tracted to it as a source of revenue. . . .
Provincial prejudice against this now staple
article of commerce is natural, but a city of
the size and prospects of Norfolk as a world's
entrepot ought not to be foremost in mani-
festing such a prejudice."
U] *In People v. Marx, 99 N. Y. 377 [52 Am.
Rep. 34], which was a prosecution under the
Xew York statute (chap. 202, Laws of 1884)
prohibiting the manufacture or sale of oleo-
margarine, the court of appeals of New York
held the act unconstitutional. It appears
from the opinion that on the trial of that ac-
tion on the part of the defendant "it was
proved by distinguished chemists that oleo-
margarine was composed of the same elements
as dairy butter. That the only difference be-
tween them was that it contained a smaller
proportion of fatty substance known as but-
terme. That this butterine exists in dairy
butter only in a small proportion — from three
to six per cent. That it exists in no other
•nbstance than butter made ^om milk and
it is introduced into oleomargarine butter by
adding to oleomargarine stock some milk,
cream, or butter, and churning, and when
this is done it has all the elements of natural
bntter, but there must always be a smaller
percentage of butterine in the manufactured
product than in butter made from milk. The
only effect of the butterine is to give flavor to
the butter, having nothing to do with its
wholesomeness. Aat the oleaginous sub-
itances in the oleomargarine are substantially
identical with those produced from milk or
cream. Professor Chandler testified that the
only difference between the two articles was
that dairy butter had more butterine. That
oleomargarine contained not over 1 per cent
of that substance, while dairy butter might
contain four or five per cent, and that if four
or five per cent of butterine were added to the
oleomargarine, there would be no difference;
it would be butter; irrespective of the
Bonrces, they would be the same substances.
According to the testimony of Professor Mor-
ton, whose statement was not controverted or
^Utttioned, oleomargarine, so far from being
•a article devised for purposes of deception in
trade, was devised in 1872 or 1873 by an emi-
171 V. 8.
nent French scientist who had been employed
by the French government to devise a sub-
stitute for butter." This extract from the
opinion in the New York case, speaking of
the testimony given before the trial judge, is
not quoted for the purpose of proving the
facts therein stated, but for the purpose of
showing that as *long ago as the time when L^V
that case was decid^— ^une, 1885 — the ar-
ticle was then well known as an article of
food, and manufactured as a substitute for
butter, and we may notice from some of the
histories of the article the fact (which is
stated in the opinion) that it was first de-
vised as long ago as 1872 or 1873 by a French
gentleman who had been employed by the
French government to devise a substitute for
butter. The article is a subject of export,
and is largely used in foreign countries.
Upon all these facts we think it apparent that
oleomargarine has become a proper subject
of commerce among the states and with for-
eign nations.
The general rule to be deduced from the de-
cisions of this court is that a lawful article
of commerce cannot be wholly excluded from
importation into a state from another state
where it was manufactured or grown. A
state has power to regulate the introduction
of any article, including a food product, so as
to insure purity of the article imported, but
such police power does not include the total
exclusion even of an article of food.
In Minnesota v. Barber, 130 U. S. 313
[34: 455, 3 Inters. Ck>m. Rep. 185], it was
held that an inspection law relating to an ar-
ticle of food was not a rightful exercise of the
police power of the state if the inspection pre-
scribed were of such a character or if it were
burdened with such conditions as would
wholly prevent the introduction of the sound
article from other states. This was held in
relation to the slaughter of animals whose
meat was to be sold as food in the state pass-
ing the so-called inspection law. The prin-
ciple was affirmed in Brimmer v. Rehman,
138 U. 8. 78 [34: 802, 3 Inters. Com. Rep.
485], and in Scott v. Donald, 105 U. S. 58, 97
[41:032, 044].
Is the rule altered in a case where the in-
spection or analysis of the article to be im-
ported is somewhat difficult and burdensome?
Can the pure and healthy food product be
totally excluded on that account? No case
has gone to that extent in this court. The
nearest approach to it was the case of Peirce
V. New Hampshire, 40 U. S. 5 How. 504
[12: 250], involving the importation of intox-
icating liquors. But in Leisy v. Hardin, 135
U. S. 100 [34: 128, 3 Inters. Com. Rep. 30],
the New Hampshire case was overruled,
and it was stated by the present Chief Jus-
tice, in speakinff for the court, *that "what- [18]
ever our individual views may be as to the
deleterious or dangerous qualities of par-
ticular articles, we cannot hold that any
articles which Congress recognizes as sub-
jects of interstate commerce are not such, or
that whatever are thus recognized can be con-
trolled by state laws amounting to regula-
tions, while they retain that character; al-
53
18-16
SUPRSafB COUBT OF THE UNITED StATSS.
Oct. Tesm,
though, at the same time, if directly danger-
ouB in themselves, the state may take appro-
priate measures to guard against injury be-
fore it obtains complete jurisdiction over
them. To concede to a state the power to
exclude, directly or indirectly, articles so
situated, without congressional permission,
is to concede to a majority of the people of a
state, represented in the state legi^ture, the
power to regulate conmiercial intercourse be-
tween the states, by determining what shall
be its subjects, when that power was distinct-
ly granted to be exercised by the people of
the United States, represented in Uongress,
and its -possession by the latter was consid-
ered essential to that more perfect union
which the Ck>n8titution was adopted to cre-
ate."
To the same effect, we think, is the case of
Hannibal d 8i, J. Railroad Company v. Hu-
am, 95 U. S. 465 [24:527], in which it was
said that "whatever may be the power of a
state over commerce that is completely inter-
nal., it can no more prohibit or regulate that
which is interstate than it can that which is
with foreign nations." The court, therefore,
while conceding the right of the state to en-
act reasonable inspection laws to prevent the
importation of diseased cattle, held the law
of Missouri there under consideration to be
invalid, because it prohibited absolutely the
introduction of Texas cattle during the time
named in the act, even though they were per-
fectly healthy and sound.
The court said that a state could not, un-
der the cover of exerting its police powers,
substantially prohibit or burden either for-
eign or interstate commerce. Reasonable and
appropriate laws for the inspection of arti-
cles, including food pnoducts, were admitted
to be valid, but absolute prohibition of an un-
adulterated, healthy, and pure article has
never been permitted as a remedy againnt
the importation of that which was adulterat-
ed and therefore unhealthy or impure.
[14] *We do not think the fact that the article is
subject to be adulterated by dishonest per-
sons in the course of its manufacture, with
other substances, which it is claimed may
In some instances become deleterious to
health, creates the right in any state through
its legislature to forbid the introduction of
the unadulterated article into the state. The
fact that the article is liable to adulteration
in the course of manufacture, and that the
articles with which it may be mixed may
Sossibly and under some circumstances be
eletenous to the health of those who con-
sume it, is known to us by means of various
references to the subject in books and ency-
dopsedias, but there was no affirmative evi-
dence offered on the trial to prove the fact.
From these sources of information it may be
admitted that oleomargarine in the course of
its manoftusture may sometimes be adulter-
ated by dishonest manufacturers with arti-
des that possibly may become injurious to
health. Conceding the fact, we yet deny the
right of a state to absolutely prohibit the in-
troduction within its borders of an article of
eommerce which is not adulterated and which
64
in its pure state is healthful, nmply because
such an article in the course of its manufac-
ture may be adulterated by dishonest manu-
facturers for purposes of fraud or illegal
gains. The bad article may be prohibited,
but not the pure and healthy one.
In the execution of its police powers we
admit the right of the state to enact suek
legislation as it may deem proper, even in re-
gard to artides of interstate commerce, for
the purpose of preventing fhiud or deception
in the sale of any commodity and to the ex-
tent that it may be fairly necessary to pre-
vent the introduction or sale of an adul-
terated artide within the limits of the state.
But in carrying out its purposes the state
cannot absolutdy prohibit the introduction
within the state of an artide of commeroe
like pure oleomargarine. It has ceased to
be what counsd for the commonwealth has
termed it, a newly discovered food product.
An article that has been openly manunctored
for nearly a quarter of a century, where the
ingredients of the pure artide are perfectly wdl
known and have been known for a namba- of
years, and whei*e the general process of manu-
facture has been known 'for an equal period, [Ifl
cannot truthfully be said to be a newly dis
covered product within the proper meaning
of the term as here used. The time when a
newly discovered artide ceases to be such can-
not always be definitdy stated, but all will
admit that there does come a period when
the article cannot be so described. In this
particular case we have no difficulty in hold-
ing that oleomargarine has so far ceased to be
a newly discovered artide as that its nature,
mode of manufacture, inCTodients, and effect
upon the health are and have been for manv
years as wdl known as almost any article of
food in daily use. Therefore, if we admit that
a newly discovered artide of f6od might be
wholly prohibited from beinff introduced
within the limits of a state, ^^e its prop-
erties, whether healthful or not, were still un-
known, or in regard to which there miffht
still be doubt, yet this is not the case ^th
oleomarga rine. I f properly and honestly manu-
factured it is con(^ed to be a healtlifol and
nutritious article of food. The fact that it
may be adulterated does not afford a founda-
tion to absolutdy prohibit its introduction
into the state. Although the adulterated ar-
tide may possibly in some cases be injurious
to the health of the public, yet that does not
furnish a justification for an absolute prohi-
bitioiL A law which does thus prohibit the
introduction of an artide like oleomargarine
within the state is not a law which regulates
or restricts the sale of artides deemed injuri-
ous to the health of the community, but is
one which prevents the introduction of a per-
fectly healthful commodity merdy for the
purpose of in that wav more easily prevent-
ing an adulterated and possibly in|unoua ar-
ticle from being introduced. We do not
think this is a fair exercise of legislatxre dis-
cretion when applied to the artide in qusn-
tioiL
It is claimed, uowever, that the very stat-
ute under consideration has heretofore been
171 v. a.
1887.
SCHOLLSNBBBOBR Y. P&NN8TLTANIA.
16-18
hdd ralid by this court in the case of Powell
T. Pennsylvania, 127 U. S. 678 [32:253].
Hiat case did not involve rights arising
tnider the commerce clause of the Federal
Constitution. The article was manufactured
and sold within the state, and the question
was one as to the police power of the state
(It] acting upon a subject always 'within its jur-
isdiction. The plaintiff in error was convicted
of idling within the conmionwealth two cases
containing 5 pounds each of an article of food
designed to take the place of butter, the sale
having taken place in the city of Harrisburg,
and it was part of a quantity manufactured
in and, as alleged, in accordance with the
laws of the commonwealth. The plaintiff in
error claimed that the statute under which
his conviction was had was a violation of the
Uth Amendment to the Ck>nstitution of the
United States. This court held that the stat-
ute did not violate any provision of that
amendment, and therefore neld that the con-
viction was valid.
The Pou?ell Case did not and could not in-
volve the rights of an importer imder the
commerce clause. The right of a state to en-
act laws in relation to the administration of
its internal affairs is one thing, and i«ue riffht
of a state to prevent the introduction witnin
its limits of an article of commerce is another
and a totally different thing. Legislation
which has its effect wholly within the state
and upon products msuiuiactured and sold
therein might be hdd valid as not in violation
of any provision of the Federal Constitution,
when at the same time legislation directed
towards proiubiting the importation within
the state of the same artide manufactured
outside of its limits might be regarded as ille-
gal because in violation of the rights of citi-
sens of other states arising under th« com-
merce clause of that instrument.
Beferring what is said in the opinion in
PawelTs Case to the facts upon which the case
arose, and in regard to which the opinion was
based and the case decided, there is nothing
whatever inconsistent with that opinion in
holding, as we do here, that oleomargarine is
a legimnate subject of conmierce among the
states, and that no state has a right to total-
ly prohibit its introduction in its pure condi-
tka from without the state under any ezer-
ose of its police power. The legislature of
the state has the power in many cases to de-
tennine as a matter of state policy whether
to permit the manufacture and sale of art!-
des within the state or to entirely forbid such
manufacture and sale, so long as the legisla-
[17]tion is confined to the manufacture *and the
sale within the state. Those are questitfis of
pnUic policy which, as was said in the case of
Powell, belong to the legislative department
to determine; but the legislative policy does
not extend so far as to embrace the right to
absolutely prohibit the introduction within
the liinits of the state of an article like oleo-
margarine, properiy and honestly manufao-
tnred.
The Powell Case was, in the opinion of the
court, governed in its important aspect by
^t of Mwiler v. Kansas, 123 U. S. 623 [31 :
171 U. 8.
205], in which case it was said that it did not
involve any question arising imder t)ie com-
merce clause of the Constitution of the United
States. The last cited case was followed in
Kidd V. Pearson, 128 U. S. 1 [32: 346, 2 In-
ters. Com. Rep. 232].
Nor is the question determined adversely
to this view iii the case of Plumley v. Mas-
saohuseits, 155 U. S. 462 [39:223]. The stat-
ute in that case prevented the sale
of this substance in imitation of yellow but-
ter produced from pure unadulterated milk
or cream of the same, and the statute con-
tained a proviso that nothing therein should
be "construed to prohibit the manufacture or
sale of oleomargarine in a separate and dis-
tinct form, and iu such manner as will ad-
vise the consumer of its real character, free
from coloration or ingredient that causes it
to look like butter." This court held that a
conviction under that statute for having sold
an article known as oleomargarine, not pro-
duced from unadulterated milk or cream, but
manufactured in imitation of yellow butter
produced from pure unadulterated milk or
cream, was valid. Attention was called in
the opinion to the fact that the statute did
not prohibit the manufacture or sale of all
oleomargarine, but only such as was colored
in imitation of yellow butter produced from
unadulterated milk or cream of such milk.
If free from coloration or ingredient that
caused it to look like butter, the right to sell
it in a separate and distinct form and in such
manner as would advise the consumer of the
real character was neither restricted nor pro-
Inbited. The court held that under the stat-
ute the party was only forbidden to practice
in such matters a fraud upon the general pub-
lic; that the statute seeks to suppress nilse
pretenses and to promote fair dealing in the
*sale of an article of food, and that it compels [XS}
the sale of oleomargarine for what it really is
b} preventing its sale for what it is not; tnat
the term "commerce among the states" did
not mean a recognition of a right to practice
a fraud upon the public In the tfale oi an ar-
ticle even if it had become the subject of trade
in different parts of the country. It was said
that the Constitution of the United States
did not take from the states the power of pre-
venting deception and fraud in the sale within
their respective limits of articles, in whatever
state manufactured, and that that instrument
did not sectire to anyone the privilege of
committing a wrong against society.
It will thus be seen that the case was based
entirely upon the theory of the right of a
state to prevent deception and fraud in the
sale of any article, and that it was the fraud
and deception contained in selling the article
for what it was not, and in sellinff it so that
it should appear to be another and a different
article, that this right of the state was up-
held. The question of the right to totally
prohibit the introduction from another state
of the pure article did not arise, and, of
course, was not passed upon. The act of Con-
gress, above cited, was referred to by the
counsel for the appellant in the Plumley
Case as furnishing a full system of legisla*
■id
18-41
SUPRBMB CODBT OF THB UniTBD StATBB.
Oct. Tesm.
tion upon the subject, and he daimed that
it excluded any legislation on the same sub-
ject by the state, but it was held that there
was no ground to suppose that Congress in-
tended by that enactment to interfere with
the exercise by the states of any authority
they could rightfully exercise over the sale
within their respective limits of the article
defined as oleomargarine, and, as § 3243 of
the Kevised Statutes was referred to in the
act, it was held that the section was incor-
porated in the act for the purpose of making
it dear that Congress did not intend to re-
strict the power of the states over the sub-
ject of the manufacture and sale of oleomar-
garine within thdr respective limits.
The taxes prescribed by that act were held
to have been imposed for national purposes,
and their imposition did not give authority
to those who paid them to engage in the man-
ufacture or sale of oleomargarine within any
f 10] state which lawfully *forbade such manufac-
ture or sale, or to disregard any regulations
which a state might lawfuUy prescribe in
reference to that article. It was also held
that the act of Congress was not intended
as a regulation of commerce among the states.
By the reference which we have already
made to this statute we have not intended to
claim that it was a regulation of commerce
among the states further than the provisions
of the act distinctly applied to its manufac-
ture and sale. We refer to it for the purpose
of showing that the artide itsdf was therdn
recognized as a proper and lawful subject of
commerce with fordgn nations and among
the several states under such lawful regula-
tions as the state might choose to impose.
We think that what Congress thus taxes and
recognizes as a proper subject of commerce
cannot be totally excluded from any particu-
lar state simply because the state may choose
to decide that, for the purpose of preventing
the importation of an impure or adulterated
article, it will not permit the introduction
of the pure and unadulterated article within
its borders upon any terms whatever.
We are therefore of opinion that the first
ground for upholding the conviction in these
cases cannot oe sust^ed.
Nor do we think the conviction can be
sustained upon the ground taken in the opin-
ion of the supreme court of Pennsylvania.
The q^uestion in regard to packing the oleo-
margarine first arose in the case of Common-
wealth [Philadelphia County] v. SchoUen-
herger, 156 Pa. 201 [22 L. R. A. 155]. The
defendant in that case was an agent of a
nonresident manufacturer of oleomargarine,
and he sold at his store in Pennsylvania a
package of the article wdghing dghty
pounds, made and stamped and branded in
Bhode Island for use as an artide of food.
It was held that the case did not show that
the sales were made in the original package
of commerce. And it was said that a jury
would be justified in finding that the mode
oi putting up the package was not adapted
to meet the requirements of actual interstate
commerce, but the requirements of an un-
lawful intrastate retail trade. But the spe-
56
dal verdict in this case shows what the court
♦said was lacking in the case just cited, fw it W
appears in the verdict that the package in
which the oleomargarine was sold was an
original package, as reqiured by the act of
Congress, and was of such "form, size, and
weight as is used by producers or shipp^s
for the purpose of securing both convenience
in handling and security in transportation
of merchandise between dealers in the oidi-
nary course of actual commerce, and the said
form, size, and wdght were adopted in good
faith, and not for the purpose of evading
the laws of the commonwealth of Pennsyl-
vania, said package being one of a number
of simUar packages forming one consignment
shipped by ihe said company to the said de-
fendant" It also appears from the special
verdict that the defendant was engaged in
business in the dty of Philaddphia as a
wholesale dealer in oleomargarine as aeent
for the manufacturer; that he had paid the
spedal tax upon the business as a wholesale
dealer, and had otherwise complied with all
the requirements of the act of Congress, and
the article was openly sold as oleomargarine,
and that fact was made known to the pur-
chaser, and he understood that he was buy-
ing oleomargarine and as soon as the tub was
purchased it was removed unbroken from
the place of sale by the purchaser thereof.
Upon the facts found in the spedal ver-
dict. It is said in the opinion of the court be-
low (170 Pa. 291 [30 L. R. A. 396]) that It
IS very clear that this sale was a violation
of our statute. The conviction was eminent-
ly proper, therefore, and should be sustained
unless the sale can be jusUfied as one made
of an original package within the proper
meaning of that phrase. The nonresidenoe
of the manufacturer does not play any im-
portant part in this case, for he comes into
this state to establish a 'store' for the aale of
his goods, pays the license exacted by the
revenue laws, and puts his agent in thmrg^
of the sale of his goods from his store, not to
the trade, but to customers. We have, there-
fore, a Pennsylvania store, selling its stock
of goods to its customers for their consump-
tion, from its own shdves; and unleaa these
goods are in such original packages as the
laws of the United States must protect, thm
sale is dearly punishable under our statute.
• \ • ^® ^question ... is whether ftl
a package mtended and used for the supplT
of the retail trade is an 'original package/
within the protection of the uitersUte eiUB-
merce cases.''
What are the rights of one engaged in in-
terstate commerce in regard to the introduc-
tion of a lawful article of commerce into n
state? Those rights have been declared by
various dedsions of this court, some of them
made at a very early date, and coming down
to the present time.
In the leading case of Gibbons v. OmUm^
22 U. S. 9 Wheat. 1, 193 [6: 23, 69], it^
said by MarshaU, Chief Justice, that the com-
merce dause extends to every species of com-
merdal intercourse among the several statesu
and that it does not stop at the external
171 V. S.
1897.
SCHOLLBNBKROBR V. l^ENMSTLVANIA.
21-24
boniidaiy of a state, and that this power to
imlate included the power to prescribe the
rue by which commerce is to be governed,
•nd it was held that navigation was included
within that power.
InBroum v. State of Maryland, 25 U. S.
12 Wheat 419 [6: 678], it was stated that
this power to regulate commerce could not
be stopped at the external boundary of a
•tate, but most enter its interior, and that if
the power reached the interior of the state
•nd miffht be there exercised, it must be ca-
pable of authorizing the sale of those articles
which it introduces. It was said tiiat "sale
is the object of importation, and is an essen-
tisl ingredient of that intercourse, of which
importation constitutes a part. It is as essen-
till an ingredient,as indispensable to the exist-
ence of the entire thin^,then,as importation
hsdf. It must be considered as a component
part of Uie power to T^pHtkte commerce."
Years after the decision of the last case
•■d after many other decisions had been
made upon the general subject of the com-
merce clause, this court in Bowman v. Ohica-
go d Northioeatem Railway Company, 125
U. & 465 [31: 700, 1 Inters. Com. Rep. 823],
hdd that the state could not for the purpose
of protecting its people against the evils of
Intemperance pass an act which regulated
eoDuneroe by forbidding any common carrier
to bring intoxicating liquors into the state
from another state or territory, excepting
upon conditions mentioned in the act. Such
act was held to be repugnant to the Constitu-
tion of tiie United States as affecting inter-
[ft]8tate*oommerce in an essential and vital part.
But whether ike right to transport an article
of commerce from one stete to another includ-
ed by necessary implication the right of the
consignee to sdl it in unbroken packages at
the place where the transportation terminated
was not decided. In Broton v. Maryland, au-
fro, it was said that the right of transporte-
tkm did indude the right to sell, as to for-
eign commerce, and in Uie course of his opin-
ion Chief Justice Marshall said that the con-
dnsion would be the same in the case of com-
merce amdkig the states; but as it was not
neoeasaiy to express any opinion upon the
pdnt, it was simply held in the Botoman Case
that the power to regulate or forbid the sale
of a eommodity after it had been brought
Into a atete does not carry with it the right
and power to prevent its Introduction by
transportetion from another stete.
The case of Leiey ▼. Hardm, 135 U. 8. 100
[84: 128, 3 Inters. Com. Rep. 36], went a
step further than the Bowman Case, and held
tluU the importer had the right to sell in a
state into which he brought tiie article from
another stete in the original packages or
kegs, unbroken and unopened, notwitl^tand-
ing a statute of the stete prohibiting the sale
of such artides except for the purposes there-
in named and under a license from the stete.
Such a stetute was held to be unconstitution-
il as repugnant to the clause of the Constitu-
tion granting power to Congress to regulate
eommerce with foreign nations and among
the several stetes. Mr. Chief Justice Fuller,
171 V. 8.
in speaking for the court, said: "Under our
decision in Botoman v. Chicago d N, ir. iC.
R, Co, supra, they had the right to imjort
this beer into that stete, and in the view
which we have expressed they had the right
to sell it, by which act alone it would become
mingled in the common mass of property with-
in the stete. Up to that point of time, we hold
that, in the absence of congressional permis-
sion to do so, the stete had no power to inter-
fere by seizure or any other action, in prohi-
bition of importation and sale by the fordffn
or nonresident importer." The right of tna
stete to prohibit the sale in the original pack-
age was denied in the absence of any law of
Congress upon the subject permitting the
stete to prohibit such sale. *There is no such [M]
law of Congress rdating to articles like oleo-
margarine. Such artides are therefore ia
like condition as were the liquors in the case
above dted.
Subsequent to the decision in the Leiey
Case and on the 8th of August, 1890 (26
Stet. at L. 313, chap. 728), Congress passed
an act commonly known as the Wilson act,
which provided that upon the arrival in any
stete or territory of the intoxicating liquors
transported therein they should be subject to
the operation and effect of the laws of the
stete or territory enacted in the exercise
of ite police power to the same extent and in
the same manner as though such liquors had
been produced in such stete or territory, and
that Uiey should not be exempt therefrom by
reason of bdng introduced therein in originU
packages or otherwise. This was held to be
a valid and constitutional exercise of th»
power conferred upon Congress. Re Rahrer,
Petitioner [Wilkerson v. Rahrer] 140 U. S.
545 [35: 572]. In the absence of Congres-
sional legislation, tiierefore, the right to im-
port a lawful aitide of commerce from on*
stete to another continues until a sale in th*
original package in which the article was in-
troduced into the stete.
The case of Emeri v. Missouri, 156 U. S.
206 [30: 430, 5 Inters. Com. Rep. 68], involved
the validity of a stetute of Missouri providing
that ped<Uers of goods, going from place to
place within the stete to sell them, should
take out and pay for licenses. The stetute
was hdd not to violate the commerce clause
of the Constitution of the United Stetes be-
cause it made no discrimination between resi-
dente or producte of the stete and those of
other stetes. The conviction of the plaintiff
in error for a violation of the stetute was up-
hdd, although he was an agent of a corpora-
tion which manufactured the property in an-
other stete and sent it to him to sell as ite
agent. It was hdd to be within the police
power of the stete to regulate the occupation
of itinerant peddlers and to compel them to
obtein licenses to practice their trade, and
such power had been exerted from the earliest
times. The remark of Chief Justice Marshal]
in Brown v. Maryland, supra, was quoted,
that "the riglit of sale may very well be an-
nexed to importetion, without annexing to
it also the privilege of using the officers II-
ceused by the * stete to make sales in a pecul- [Ml
67
S4-M
SuPRBMB Court of thk United States.
OoT. Term,
hit way." Pafe 313 [30: 434]. It was the
privilege of seUing in a peculiar way, as a
peddler, which was licensed in the Emeri
Case, and such a person, it was therein de-
cided, could properly be made to pay a li-
cense for selling m that way an article manu-
factured in another state and sent into Mis-
souri, as well as for sellinc in the same way
articles manufactured in Missouri, so long as
there was no discrimination between the two
classes of goods.
The Emeri Case does not overrule or affect
the cases above dted as to the right to sell.
We are not aware of any such distinction
«s it attempted to be dra\im by the court be-
low in these cases between a sale at whole-
•ale to individuals engaged in the wholesale
trade or one at retail to the consumer. How
amall may be an original package it is not
necessary to here determine. We do say that
a sale of a ten-pound package of oleomargar-
ine, manufactured, packed, marked, imported
and sold under the circumstances set forth in
detail in the special verdict, was a valid sale,
although to a person who was himself a con-
sumer. We do not say or intimate that this
right of sale extended beyond the first sale by
the importer after its arrival within the state.
Waring v. The Mayor [Waring v. Mobile] y 75
U. S. 8 WaU. 110-122 [19:342-346]. The
importer had the right to sell not oxUy per-
sonally, but he had the rieht to employ an
agent to sell for him. Otherwise his right
to sell would be substantially valueless, for
it cannot be supposed that he would be per-
sonally engaged m the sale of every original
package sent to the different states in the
union. Having the right to sell through his
agent, a sale thus effected is valid.
The right of the importer to sell cannot de-
pend upon whether the original packi^e is
fluitable for retail trade or not. His right to
•ell is the same, whether to consumers or to
wholesale dealers in tiie article, provided he
•ells them in original packages. This
does not interfere with the acknowledged
right of the state to use such means as mav be
necessary to prevent the introduction of an
adulterated article, and for that purpose to
inspect and test the article introduced, pro-
vided the state law does really inspect and
|85] does not substantiallv 'prohibit the introduc-
tion of the pure article and thereby interfere
with interstate commerce. It cannot, for the
purpose of preventing the introduction of an
unpure or adulterated article, absolutely pro-
hibit the introduction of that which is pure
and wholesome. The act of the legislature
of Pennsylvania, under consideration, to the
extent that it prohibits the introduction of
oleomargarine from another state and its sale
in the original package, as described in the
•pedal verdict, is invalid. The judgments
mre therefore reversed, and the cases remand-
ed to the supreme court of Pennsylvania for
further proceedings not inconsistent with
this opinion.
Mr. Justice Gray, with whom concurred
ICr. Justice Harlaa, dissenting:
Mr. Justice Harlan and myself oaanot oon-
68
cur in this judgment, and will state, as briefly
OS may be, some of the grounds of our disKnt*
The Question at issue appears to us to be so
completely covered by two or three recent
judgments of this court, as to make it un-
necessaiy to dte other authorities.
As has been said by this court, speaking
by the present chief justice: '*The power of
the state to impose restraints and burdens
upon persons and property, in conservation
and promotion of the public health, good or-
der and prosperity, is a power originally and
always belonging to the states, not surren-
dered by them to the general government,
nor directly restrained by the Constitution of
the United States, and essentially exdusive.
And this court has uniformly recognized
state legislation, legitimatdy for police pur-
poses, as not, in the sense of the Constitu-
tion, necessarily infringing upon any right
which has been confided, expressly or by im-
plication, to the national government**
Rahrer's Case [Wilkerson v. Kahrer], 140
U. S. 545, 554 [35: 572, 574].
The statute of Pennsylvania of May 21,
1885, under which the plaintiffs in error
were indicted and convicted for sdlin^ in
Pennsylvania oleomargarine in the original
packages *in which it had been sent to them r26)
from other states, provides that ''no person,
firm, or corporate body shall manufacture
out of any oleaginous substance or any com-
pound of the same, other than that produced
from unadulterated milk, or cream from the
same, any article designed to take the place
of butter or cheese produced from pure un-
adulterated milk, or cream from the same, or
of any imitation or adulterated butter or
cheese, nor shall sell or offer for sale, or have
in his, her or their possession with intent to
sell the same, as an article of food." Penn.
Stat. 1885, chap. 25.
In Powell V. PenneylviMia, 127 U. S. 678
[32: 253], tiie defendant waa indicted, under
this very statute, for selling, and for having
in his possession with intent to sell, oleo-
margarine manufacttuned in Pennsylvania be-
fore the passage of the statute; and, at the
trial, in order to show that the statute was
not a lawful exerdse of the police power of
the state, offered to proye that the articles
which he sold, and tnoae ^diich he had in
his possession for sale, were, in hict» whole-
some and nutritious, and were part of a large
quantity manufactured by him b^ore the
passage of the statute, by the use of land,
buildingSy and machinery, purdiaaed by him
at great expense for earnong cm this busi-
ness, and the value of which would be de-
stroyed if he were prevented from continn-
ing it. The evidence offered was exduded,
and the defendant was convicted; and his
conviction was afiinned by the supreme eourt
of Pennsylvania, and by this court upon writ
of error.
This court in its opinion upholding this
statute as a constitutional and valid r
dse of the police power of the state, after
mentioning the defendant's offer to pttyve
that the articles which he sold or had to his
possession for sale were in fact whol^
^^ 171 V. &
1197.
SCHOLLBNBEROBR ▼. PSNNSTLVAMIA.
WU--J
aad natiitioiia, proceeded as follows: "It it
entirely eonsLstent with that offer, that many,
indeed, that most, kinds of oleomargarine
hottir in the market contain ingrediento that
are or may become injurious to health. The
eoort cannot say, from anything of which it
■iij take judi<nal cognizance, that such is
not the fact. Under the circumstances dis-
doted in the record, and in obedience to set-
tled roles of constitutional construction, it
:t7|niu8t be assiun^ that *such is the fact. . .
Whether the manufacture of oleomargarine
or imitation butter, of the kind described in
the statute, ia, or may be, conducted in such
a way, or with such skill and secrecy, at to
baffle ordinary inspection, or whether it in-
Tolyes such danger to the public health at to
require, for the protection of the people, the
entire suppression of the business, rather
than its regulation in such manner as to per-
mit the manufacture and sale of articles of
that class that do not cgntain noxious in-
gredients, are questions of fact and of public
policy, which belong to the legislative de-
partment to determine. And as it does not
appear upon the face of the statute, or from
any £scts of which the court must take judi-
cial cognizance, that it infringes rights se-
cured by the fundamental law, the legislative
determination of those questions is conclu-
sive upon the courts. It is not a part of
their nmctions to conduct investigations of
fkcU entering into questions of public policy
merely, and to sustain or frustrate the leg-
islative will, embodied in statutes, as they
may happen to approve or disapprove its de-
termination of such questions. . . . The
legislature of Pennsylvania, upon the fullest
investigation, as we must conclusively pre-
fome, and upon reasonable grounds, as must
be assumed from the record, has determined
that the prohibition of the sale, or offer-
ing for sale, or bavins; in possession to sell,
for purposes of food, of any article manufact-
ured out of oleaginous substances or com-
pounds, other tlum those produced from un-
adulterated milk, or cream from unadulter-
ated milk, to take the place of butter pro-
duced from unadulterated milk, or cream
from unadulterated milk, will promote the
public health, and prevent frauds in the sale
of such articles.^' 127 U. & 684-686
[32:256,257].
That dedaion appears to us to establish
that the courts cannot take judicial cogni-
ance, without proof, either that oleomargar-
ine is wholesome or that it is unwholesome;
and we are unable to perceiTe how Judicial
eognizanoe of such a fact can be acquired by
leKrring to the vmrious opinions which have
found ezpressiiHi in sdentiflc publications, or
in testimony g^ven in cases before otiier
eoorts and between other parties.
•28] ^Evidence that the articles sold were whole-
some and nutritious having been excluded
as immaterial, when offers in defense in
PoweWs Com, it necessarily follows that the
eommonw^th in the case at bar had no oe-
easioii to offer evidence to prove the oon-
trary.
The decision in Pow€lF$ Oa$0 oonelusiTely
171 V. m.
establishes that the statute in question in a
constitutional. exercise of the pouce power of
the state, unless it can be considered as al«
fected by the power to regulate commerce^
as granted to or exercised by Congress under
the Constitution of the United States.
The act of Congress of August 2, 1886, ohap.
840, imposing internal revenue taxes upon
manufacturers and sellers of oleomargarine,
and defining what shall be considered as oleo-
margarine for the purposes of that act, ex*
prepsly provides, in § 3, that § 3243 of the Re-
vised Statutes, so far as applicable, shall ap-
ply to such taxes and persons. 24 Stat, at L.
209. By § .S243 of the Revised Statutes, "the
payment of any tax imposed by the internal
revenue laws for carrying on any trade or
business shall not be held to exempt any per- '
son from any penalty or punishment provided
by the laws of any state for carrying on the
same within such state, or in any manner to
authorize the commencement or continuance
of ^uch trade or business contrary to the laws
of such state or in places prohibited by munic-
ipal law; nor shall the payment of any such
tax be held to prohibit any state from plac-
ing a duty or tax on the same trade or busi-
ness, for state or other purposes."
As was said by this court in Plumley ▼•
Massachusetts, 155 U. 8. 461 [30:223]: "It
is manifest that this section was incor-
porated into the act of August 2, 1886, to
make it clear that Couffress had no purpose
to restrict the power oi the states over the
subject of the manufacture and sale of oleo-
margarine within their respective limita.
The taxes prescribed by that act were imposed
for national purposes, and their ilnposition
did not give authority to those who paid
them to engage in the manufacture or safe of
oleomargarine in any state which lawfully
forbade such manumcture or sale, or to dis-
regard any relations which a state micht
lawfully prescribe in reference *to that article fj^O}
• . . Nor was the act of Congress relating
to oleomargarine intended as a regulation of
commerce among the states. Its provisions do
not have special application to the transfer of
oleomargarine tom one state of the Union to
another. They relieve the manufacturer or
seller, if he conforms to the regulations pra-
scribed by Congress or by the Commissioner
of Internal Revenue under the authority oon-
ferred upon him in that resard, from penalty
or punishment so far as the general govern-
ment is concerned, but they £> not interfere
with the exercise by the states of any author-
ity they possess of preventing deception or
fiuud in the sales of property within thdr
respecUve limits." 156 U; & 466, 467 [39:
225]^ '^ there be any subject over which it
would seem the states ought to have plenary
control, and the power to legislate in respect
to which it ought not to be supposed was in-
tended to be surrendered to the general gov-
ernment, it is the protection oi the people
against fraud and deception in the sale of food
products. Such legislation mav, indeed, in-
directly or incidentally affect trade in such
products transported nrom one state to an-
other state. But that oiroumstanot does not
'iiO—iSi
SUPRBMB CotTRt OF THB UNITED STATES.
Oct. Tsbm,
y
■how tliat lawB of the character alluded to are
inconsistent with the power of Congress to
regulate commerce among the states." 155 U.
8. 472 [39:227].
In Plumley's Case, it was accordingly ad-
Judged by tMs court, affirming the judgment
of the supreme judicial court of Massachu-
setts, that a statute of Massachusetts, impos-
ing a penalty on the manufacture, sale, of-
fering for sale, or having in possession with
intent to sell, "any article, product, or com-
pound made wholly or partly out of any fat,
oil, or oleaginous substance or compound
thereof, not produced from unadulterated
milk, or cream from the same, which shall be
in imitation of yellow butter produced from
pure and imadulterated milk, or cream from
the same," was constitutional and valid, as
applied to sales in Massachusetts of oleomar-
garine made in another state, artificially col-
ored so as to look like yellow butter, and im-
ported in the packages in which it was sold.
The necessary r^ult of the decisions in
PotoelVa Case and in Plumley's Case and of
the reasoning upon which those decisions
[80] *were found^, and by which alone they can
be justified, appears to us to be that each
state may, in the exercise of its police power,
without violating the provisions of the Con-
stitution and laws of the United States con-
cerning interstate commerce, make such regu-
lations relating to all sales of oleomargarine
within the state, even in original packages
brought from another state, as the Ic^^ature
of the state may deem necessary to protect
the people from being induced to purchase
articles, either not fit for food, or differing in
nature from what they purport to be; Siat
the questions of danger to health, and of like-
lihood of fraud or deception and of the pre-
ventive measures required for the protection
of the people, are questions of fact and of pub-
lic policy, the determination of which belongs
to the legislative department, and not to the
judiciary ; and that, if the legislature is satis-
fied that oleomargarine is unwholesome, or
that, in the tubs, pots, or packages in which
it is commonly offered for sale, it looks so like
butter that the only way to protect the people
against injury to health, in the one case, oi
against fraud or deception, in the other, is
to absolutely prohibit its sale, it is witJiin the
constitutional power of the legislature to do
CliARENCE E. COLLINS, Plff. im Err,,
V.
STATE OF NEW HAMPSHIBB.
(See 8. C Beporter's ed. S(MM.)
Totoer of a state — purpose of a statute — re-
striction of oommeroo-sale of oleotnargar-
ine — statute of New Hampshire.
1. Where the state has not the power to abso-
lutely prohibit the sale of an article of com
merce, like oleomargarine In Its pfire state, it
has no power to provide that snch article
shall be colored, or rather discolored, by add-
ing a foreign snbstance to it. In the manner
described In the New Hampshire statute.
60
2. A state law which necessitates and provides
for adulteration of an article of commerce,
and enforces npon the Importer the necessity
of adding a foreign substance to his article,
• which Is thereby rendered unsalable, in order
that he may be permitted lawfully to import
and sell It, Is an unlawful restriction of com-
merce. •
3. In whatever language a statute may bo
framed. Its purpose must be determined by
Its natural and reasonable effect.
4. Although under the wording of snch statute
the importer Is permitted to sell oleomirga-
rlne freely and to any extent, provided be
colors it pink, yet the permission to aelU when
accompanied by the Imposition of a condition
which, If complied with, will effectually pre>
vent any sale, amounts In law to a prohibi-
tion.
5. Tbe statute of New Hampshire making It
unlawful to sell or keep in possession, with
Intent to nell In said state, any oleomarga-
rine unless It is of a pink color, when applied
to oleomar.<;arlne,. Imported Into that state
from another attate for sale. Is Invalid.
[No. 17.1
Argued March ZS, 24, 1898. Decided Mem
25, 1898,
IN ERROR to the Supreme Coiurt of the
State of New Hampshire to review the judg-
ment of that court sustaining a convictioB
of Qarence E. Collins of a violation of tbe
statute of that state prohibiting the sale of
oleomargarine unless it i^ of a pink color.
Revers^, and case remanded for further pr^
ceedings.
The facts are stated in the opinion.
Messrs, William D. Gathrie* Rkhard C
Dale, Henry R. Edmunds, and Albert R
Veeder for plaintiff in error.
No brief filed for defendant in error but
Mr, Jolm O* Jolinson was for ^iie defend-
ant in error in Schollenberger ▼. Pennsylva-
nia, 171 U. 8. 1 (ante, 49), which was argued
with this case.
Mr. Justice PeoUuuB delivered the opin-
ion of the court:
This case comes here by virtue of a writ
of error to the supreme court of the state ol
New Hampshire, by which we are called upoa
to review the judgment of that court sus-
taining a conviction of the plaintiff in error
in the court of first instance of a violatioa
of the public statutes of the state, prohibit-
ing the sale of oleomargarine as a substitute
for butter unless it is of a pink color. The
law is to be found in §§ 19 and 20, chap. 127,
Public Statutes 1891. The two sections are
fet forth in the margiiLf
t Sec 19. It shall be unlawful to sell, offer
for sale, •r keep in possession with Intent to
selL In this state, any snbstance or compound
made wholly or in part of fats, oils, or grcasa,
not produced from milk or cream. In Imltatioa
of, or as a substitute for. butter or cheese, on-
less the same is contained in tubs, flrklns, boxes.
or other packages, each of which has np<m it, to
Indicate the character of Its contents, the words
"Adulterated butter," "Oleomargarine," or
"Imitation cheese" as the case may be. In plala
Roman letters not less than one half Inch la
length, and so placed and made or attached
171 V. t.
1897.
CoLUKB V. New Hampshirb.
81-8%
The plaintiff in error was convicted of sell'
pift] ing a packagd of 'oleomargarine not of pink
eolor, in violation of the statute, and was sen-
tenced to pay a fine of $100, and to pay the
costs of prosecution, and to stand committed
until SAotence was performed.
The following are the facts appearing in
the record:
'^e respondent is agent at Bianchester of
Swift & Co., an Illinois corporation, haying
its principal place of business in Chicago.
Th% corporation manufactures oleomargar-
ine and puts it up in packages in Chicago,
and distributes the packages from there to
different places — one of which is Manchester
—where it maintains stores and sells the arti-
de at wholesale in the original packi^ges. It
has paid the special United States taxes im-
posed l^ the act of Congress of August 2,
1888 (Supp. to B. S. of U. S., ▼. 1, p. 505) , and
has compked witii all other requirements of
that act in respect to the manufacture and
Mle at wholesale of oleomargarine. The arti-
de has the color of butter, the same coloring
matter beinff used to color it that is fre-
qoently used to color butter, and is made
whdly or in part of lata, oils, or grease not
produced from milk or cream, in imitation of
or as a substitute for butter. It is not manu-
lutured in this state. The respondent as
■Dch agent sold in Manchester, at wholesale,
at the store of the company, a package of
said article weighing 10 pounds in the form
it was put up in Qiicago by his principal.
The provisions oi § 10, chap. 127, Public
Statutes of this state, were complied with, so
fsi as the package was concern^, except the
color of its contents was not pink. The oleo-
margarine sold was the c^eomargarine of com-
merce as the same is known and dealt in as
an article of food.
TThe respondent claimed that upon these
facts he was not guilty, because the statute
of this state is in contnivention of the Con-
stitution of the United States and its amend-
ments and of the laws of Congress; otherwise
he admitted his guilt. The court ruled
against the respondent as to the above daim,
and he excepted."
It was stated on the argument that since
the conviction of the plaintiff in error the
statute above cited had been repealed, but
that such repeal did not affect the conviction,
(83]because of the 'provision made in the New
Hampshire statutes that '^o suit or prosecu-
tion, pending at the time of the repeal of an
act, for any offense committed or for the re-
covery of a penalty or forfdture incurred,
uider the act so repealed, shall be affected
by such repeal." We are therefore csdled upon
to determine the validity of the conviction.
The plaintiff in error claims that the stat-
ute under which he was indicted and con-
victed is void, because in contravention of
the Constitution of the United States, which
gives power to Congress "to regulate com-
merce with foreign nations and among tha
several states and with the Indian tribes."
^ We think this case comes within tJie prin-
dple of the cases just dedded regarding the
statute of the commonwealth of Pennsyl
vania prohibiting the introduction of oleo-
marganne into that commonwealth. Thu
statute is in its practical effect prohibitory.
It is clear that it is not an inspection law in
any sense. It provides for no inspection, and
it IS apparent that none was intended. The
act is a mere evasion uf the direct prohibitioo
contained in the Pennsylvania statute, and
yet, if enforced, the result^ within the state,
would be quite as positive in the total sup-
presdon of the artide as is the case with the
Pennsylvania act.
In a case like this it is entirdy plain that
if the state have not the power to absolutdy
prohibit the sale of an article of commerce
like oleomargarine in its pure state, it has
no power to provide that such artide shall be
colored, or rather discolored, by adding a for-
dgn substance to it, in Uie manner described
in the statute. Pink is not the color of oleo-
margarine in its natural state. The act ne-
cesdtates and provides for adulteration. It
enforces upon the importer the necesdty of
adding a fordgn substance to his article,
which is thereby rendered unsalable, in order
that he may be permitted lawfully to sdl it.
If enforced, the result could be foretold. To
color the substance as provided for in tha
statute naturally excites a prejudice and
strengthens a repugnance up to the point of
a positive and absolute remsal to purchase
the artide at any price. The direct and nec-
essary result of a statute *must be taken into [34]
consideration when dedding as to its valid-
ity, even if that result is not in so many
words dther enacted or distinctly provided
for. In whatever language a statute may be
framed, its purpose must be determined by its
natural and reasonable effect. Henderson ▼.
Mayor of New York [Henderson v. Wioifc-
ham], 92 U. S. 259 [23: 543] ; Morgan's L. d
T, R. d S, 8, Co, V. Louisiana Bd, of Health,
118 U. S. 455, at 462 [30:237, 241]. Al-
though under the wording of this statute the
importer is permitted to sdl oleomargarine
freely and to any extent, provided he colors
it pink, yet the permission to sell, when ac-
companied by the imposition of a condition
which, if complied with, will effectually pre-
vent any sale, amounts in law to a prohibi-
tion.
If this provision for coloring the artide
were a legal condition, a legislature could
that tbey can be readily seen and read and
cannot be enslly defaced; and If the Bubstance
or compound Is a substitute for cheese, unless
tbe cloth surrounding It has a like Inscription;
and If It Is a substitute for butter, unless It Is
ef a pink color. When any such substnnee or
eoDipound is sold In less quantities than the
erlginal packages contain, tbe seller shall de-
Brer to the purchaser with It a label bearing
the words indicating Its character as above, in
flke letters.
171 V. 8.
Sec. 20. If any person shall sell, or oflTer for
sale, or keep In possession with Intent to sell,
in this state, any substance or compound of the
kinds described In the preceding section In a
manner that Is made unlawful by said section,
or shall sell, oflTer for sale, or keep in possession
with intent to sell, any such substance or com-
pound without disclosing its true character, he
shall be fined not more than one hundred dol-
lars, or be Imprisoned not more than sixty dayB»
or both.
54-87
BupsKMS Court ov thb Usitbd Statbs.
Oct. Tcrx,
sot be limited to pink in its choice of colon.
The legislative fancy or taste would be bound-
less. It might equally as well provide that
it should 1m colored blue or red or black.
Nor do we see that it would be limitM to the
use of coloring matter. It might, instead of
that, provide that the article ihould only be
sold if mixed with some other article which,
whUe not deleterious to health, would never-
thelen give out a most offensive smeU. If
the legidature have the power to direct that
the article shall be colored pink, which can
only be accomplished by the use of some for-
eign substance that will have that effect, we
do not know upon what principle it should be
confined to discoloration, or why a provision
for an offensive odor would not be just as
valid as one prescribing the particular color.
The truth is, however, as we have above stat-
ed, the statute in its necessary effect is pro-
hibitory, and therefore upon the principle
recognized in the Pennsylvania cases it is in-
The judgment of the Supreme Court of
New Hampshire ie reversed, and the case re-
manded to that court for further proceedings
not inconsistent with this opinion.
Mr. Justice Harlaa and Mr. Justice
Qrmj dissented.
[851 GEORGE POUNDS, Plff. 4m Btr^
UNITED STATES.
(See 8. C Reporter's ed. 85-^8.)
Indictment fot oonoealing distilled spirits —
separation of jury.
1. An Indictment In the langaage of U. 8. Rev.
Stat I 820G, charging the concealment of dis-
tilled spirits on which the tax had not been
paid, which had been removed to a place
other than the distillery warehouse provided
by law, Is sufficiently certain and sufficiently
alleges the existence of a warehouse provided
for such spirits.
% A claim that a Jury separated before the
verdict was returned is Ineffectual, where
that fact does not appear on the record, but It
does appear that a sealed verdict was re-
turned, under agreement of counsel for both
parties. In open court and In the presence of
the defendant.
[Na 29a]
Submitted May 6, 1898. Decided May 2$,
1898.
IN ERROR to the District Court of the
United States for the Northern District of
Alabama to review a judgment convicting
George Pounds for concealing distilled spirits
on which tha tax had not been paid.
Affirmed.
Statement by Mr. Justice MoKenaat
The indictment under which the defendant
(plaintiff in error) was tried contained fifteen
counts. He wms convicted cm the sixth count,
whicn reid as follows:
The grand jurors aforesaid, upon their
oaths aforesaid, do further present, that, at
the time and place and within the jurisdic-
tion aforesaid, the said George Pounds unlaw-
fully did conceal and aid in the concealment
of distilled spirits on which the tax had not
been paid, which said spirits had been re-
moved to a place other than the distillery
warehouse provided by law, contrary to the
form of the statute in such case made and
provided, and against the peace and diimitv
of the United States."
The count wab drawn under § 3296 of the
Revised Statutes, which provides that:
^'Whenever any person removes, or aids or
abets in the removal of, any distilled spirits
on which the tax has not be^ pftiu» to a place
other than the distillery warehouse provided
by law, or conceals, or aids in the conceal-
ment of, any spirits so removed, or removes^
or aids or abets in the removal of, any dis-
tilled spirits from any distillery warehouse,
or other warehouse for distilled spirits au-
thorized by law, in any manner other than is
provided by law, or conceals or aids *in the (96]
concealment of any spirits so removed, be
shall be liable to a penalty of double the tax
imposed on such distilled* spirits so removed
or concealed, and shall be fined not less than
two hundred dollars nor more than five thou-
sand dollars, and imprisoned not less than
three months nor more than three years."
After the verdict, and before the judgmenU
the plaintiff in error filed his motion in arrest
of judgment, as follows:
'rNow comes the d^endant after the rendi-
tion of the verdict of the jury finHiwg him
guilty as charged in the sixth count of fiie in-
dictment and before judgment and eentence»
and moves the court to arrest the judgment
in this case, upon the ground that the sixth
count of the indictment is too vague and un-
certain to authorize a judgment and sentence
against the defendant."
Afterwards an amended motion in arrest
of judgment was filed, as follows:
**By leave of the court first had and ob-
tained the defendant amends his motion in
arrest of judgment by adding the following
grounds:
Tirst The said sixth count of the indict-
ment fails to show that there was a ware-
house provided by law to which the spirits
alleged to have been concealed should have
been removed.
"Second. That the jury separated belore the
verdict of the jury was returned into court.**
llie overruling of this motion is asagaed
as error.
Mr. J. A. W. Smith for plaintiif In oror.
Mr, James £• BotcU Assistant Attorney
General, for defendant in error.
Mr. Justice McKenaa delivered the opin-
ion of the court:
Section 3271 of the Revised Statutes pro-
vides that "every distiller shall provide, at
his own expense, a warehouse, to be ^situated [S7]
on and to constitute a part of his distillery
premises, and to be used only for the storage
of distilled spirits of his own manufactui«
171 U. 1.
ssrr.
Harriboh ▼. Morton.
87-8t
iRtfl tilt tax thereon shall hare been paid;
• . • and such warehoiise, when approved
hj the Commissioner of Intemid Revenue,
OB report of the collector, is hereby declared
to be a bonded warehouse of the United
States, to be known aa a distillery warehouse,
snd shall be under the direction and control
of the collector of the district, and in diarge
of an internal revenue storekeeper, assigned
thereto by the Gonmiissioner."
Section 3287 provides that aU distilled
spirits shall be drawn from the rteeiving ds-
tems into casks of a designated capacity and
the quantity of spirits marked thereon, "and
shall be immediately removed into the distil-
lay warehouse," and stamps designating the
quantity of spirits shall be applied thereto.
Other sections provide that no distilled
spirits upon which the tax has been paid
ihall be stored or allowed to remain on any
distillery premises, and such spirits found in
a cask containing 5 gallons or more without
having the stamp required by law shall be
forfeited.
To secure the enforcement of this provision,
I 3296 was enacted.
Plaintifir in error says:
It seems clear that section 3206 of the Re-
vised Statutes intended to provide a punish-
ment for a distiller who had complied with
the various provisions of chapter four of the
Berised Statutes, and had provided a ware-
house as required by section 3271, and then
eoncealed or aided in the concealment of dis-
tilled spirits which had been removed, the
tax not having been paid, to a place other
than the distillery warehouse so provided."
And it hence dumed that the indictment is
too uncertain to sustain the judgment, be-
cause it does not inform the defendant that
a warehouse was provided in which the spir-
its which he is charged to have concealed
should have been stored until the tax wa»
psid. Undoubtedly, the statute was intended
to punish a distiller who violated its provi-
sions. It was also intended to punish any-
[38] one else who did, and the 'offense could be
committed by a removal of spirits from the
Kmises before storage in the distillery ware-
ise or by concealment of the spirits so re-
moved. And it is this concealment which
the indictment charges, and it suffidently
slleges the existence of a warehouse. It also
siloes that the tax had not been paid. The
offense was purely statutory, in such case it
is generally suflident to charge the d^end-
sot with acts coming within the statutory
description in the substantial words of the
statute without any further expandon of the
matter. United States v. Simmone, 96 U. S.
360 [24: 819] ; United States y. Brttton, 107
U.a665 [27:620],
One of the acts which is made an offense by
I 3296 is the concealment of distilled spirits
on which the tax has not been paid, removed
to a place other than the distillery warehouse
provided by law. The indictment charges in
the language of the statute the performance
of that act at a particular time and place.
H was therefore sulRdently certain.
As to the second ground of motion in arrest
171 U. 8.
of judgment, it Is enough to say that there ia
nothing in the record to show that the jury
separated before the verdict was returned
into court, but the record does show that a
sealed verdict was returned by cue jury by
agreement ot counsel for both parties in open
court and in the presence of the defendant.
This verdict was rightly received and re-
corded. CommonweMh v. Car ring ton, 11^
.Mass. 37.
The jiidgment is affirmed*
WALTER H. HARRISON, Plff, in Err^
9,
FRANEUN J. MORTON.
Review of state judgment — when this cour$
uill not review it.
(See 8. C. Beporter's ed. 88-47.)
1. To give this court Jurisdiction to review •
state judgment, a Federal questioo must have
been presented to the state court and de-
cided adversely to the party claiming the
Federal right, or It must appear that the
judgment could not have been rendered with-
out deciding such question.
2. This court will not review a state judg-
ment, although a Federal question was de-
cided adversely to the plaintiff In error, If an-
other question, not Federal, was also raised
and decided against him, the decision of
which Is sufficient to sustain the judgment.
[No. 246.]
Argued May $, S, 1898. Decided May tSp
1898.
IN ERROR to the Court of Appeals of the
State of Maryland to review a judgment of
that court affirming the judgment of the
state trial court in favor of the defendant,
Franklin J. Morton, in an action brought by
Walter H. Harrison, plaintiff, to recover dam-
ages for breach of contract for ^e sale ol
certain patent rights. Dismissed.
See same case below, 83 Md. 456.
Statement by Mr. Justice MoKennat
This suit was brought by the plaintiff in
error Harrison against the defendant in error
on the 8th of February, 1805, in the Baltimore
city court, to recover the sum of $300,000
damages for the breach of a contract under
seal for the sale of certain patent rights.
Under the alleged contract the plaintiff in
error sold, and t^ defendant in error bought
NOTB.-r- As to furisdiotion in the United States
Supreme Court where Federal question arises
or where are dragon in question statutes, treaty,
or Constitution, — see notes to Martin v. Uua-
ter, 4 : 97 ; Matthews v. Zane, 2 : 664 ; and Will-
iams V. Norrls, 6 : 571.
As to jurisdiction of United States Supreme
Court to declare state law void as in oonflirt
with state Constitution; to revise deorees of
state courts as to construction of state Iaio%
— see notes to Jackson, Hart, v. Lamphire, 7:
670, and Commercial Bank v. BncklnghsJn, 12:
160.
63
tO-42
SUFBEMX OOUBT OF THB UVITED StATBS.
Oct. Trwi,
And agreed to pay for, a certain machine,
method, and device for making barrels and
kegs, and all his right, title, and interest in
certain pending letters patent therefor, when
issued, at and for the price of $300,000,
whereof $100,000 were to be paid in cash
within ten days after the issuing of letters
patent, and the remaining $200,^N) were to
oe paid in the full-paid, nonassessable shares
of a corporation, to be incorporated and or-
ganized by the defendant in error Morton im-
der the laws of Maryland, with a capital stock
of $500,000.
The pleas were:
First. Non eat factum.
Second. That the signature of the defend-
ant in error to the alle^^ agreement was pro-
cured by the fraud of the plaintiff in error.
Third. That the signature of the defend-
ant in error was procured by the undue influ-
ence of the plaintiff in error.
And also three supplemental pleas on equit-
able grounds:
1st. That there was no consideration for
the alleged agreement.
2d. That at the date of the alleged agree-
|40]ment Harrison *was not the owner of and had
BO valid title to the machine, method, and
device mentioned in the declaration.
3d. That at the time of the alleged assign-
ment of the patent Harrison was not the own-
er of and had not a valid title to the said pat-
ent.
The defendant also filed a plea of set-off,
and upon demand for a bill of particulars of
such set-off filed a bill of particiUars, amount-
ing to thirty-one thousand, seven hundred
and ninety-one dollars and fifty-two cente
($31,701.52).
Keplications were duly filed and issues
joined on all of them.
The case was tried before the judge with-
out a jury.
At the trial the parties asked the court to
rule on certain propositions contained in
what the record calls "prayers." They were
as follows, with the action of the court ex-
pressed thereon:
"Plaintiff's liret Prayer.
The plaintiff, by his counsel, pravs the
oourt to rule that if it shall find from the evi-
dence that the contract between the plaintiff
and defendant, dated December 8, 1804, and
read in evidence, was signed and sealeid by
the plaintiff and defendant, and left in the
possession of the defendant as a complete and
operative instrument according to ite terms,
and that in accordance with said contract,
shortly after the execution thereof, the plain-
tiff executed to the defendant the assignment
read in evidence of his right to the invention
therein mentioned, on which application for
a patent was then pending, and that defend-
ant afterwards employed and paid patent at-
torneys to procure for him the patent from
the government of the United Stetes and
from the govemmente of other countries; and
if the court shall further find that the said
. application for a patent was allowed by the
government of the United States, and subse-
quently that letters patent for said invention
were granted, bearing date January 22, 1{$$I5,
as read in evidence, and that the plaintiff, ^.t
the time of the execution of said agreement
with the ploiniiff, had no knowledge or no-
tice of the ^[reement between Heniy Oimp-
bell and the Ounpbell Barrel Company offered
in evidence, then the plaintiff is entitled to
recover.
•"{'And that there is no evidence that the [4]
plaintiif had any htwwledge or notice of eaid
agreement between said Cfamphell and eaid
OampbeU Barrel Company.*) (Rejected as
fered, but granted as modified by omitting
the words in itelics.)
"Plaintirs Second Pimyor.
'^'he plaintiff, by his counad, prays the
court to rule that the defendant baa offered
no evidence legally sufiSdent to show that the
contract set out in the declaration was pro-
cured by the plaintiff from the defendant bf
fraud or by undue influence, i Conceded.)
"Plaintiff's Third Prayer.
"The plaintiff, by his counsel, prays the
court to rule that the defendant has offered
no evidence legally sufiSdent to show that
there was no consideration for the amement
set out in the declaration. (Rejected.)
"Plaintiff's Fourth Prayer.
"The plaintiff prays the court to rule that
if the court shall find that on the 1 1th day of
September, 1804, Henry Campbell made to
the plaintiff the assignment of one-half inter-
est in his then pending application to tiis
Uniteil Stetes Patent O^ce for a patoit for
the invention in said assignment mentioned,
and subsequentiy, on or about the 26th of
November, 1894, made to the plaintiff a fur-
ther asdgnment of all his interest in his said
pending application and to the patent there-
on, whenever the same should thereafter be
granted; then, b^ virtue of said two assign-
mcnte, the plaintiff acquired an thchoate title
to said invention and to the patent thercoa,
when the same diould tiiereafter be granted,
whica title it was competent for the plaintifT
to sell, assign, anu dispose of; and if the court
shall further find that on or about the 10th
day of December, 1894. the plaintiff executed
to the defendant the assi^ment read in the
e\'idence and dated the 8th day of December,
1894, for the consideration therein menticned,
and that subsequentiy, on or about the 23d
day of January, 1895, a patent waa issued bj
Ihe United Stetes in the name of said Benrr
Campbell, for the invention described *ir>«ai<i[4l
scvAntl assignmente from said Campbell to
the plaintiff and from the plaintiff to the de-
fendant, tnen the defendant, by virtue of
said letteis patent, acquired a valid titie to
and became the owner of said patent, and said
assignment from the plaintiff to the defend-
ant, bearing date the 8th day of December,
1894, was supported by a good and sufficient
consideration, and the plaintiff is entitled to
recover upon the contracte set out in the dec-
laration, provided the court, sitting as a jury,
shall find that the said contract was a^;ned
and sealed by the plaintiff to the defendant,
and was designed by them to be an operatite
instrument according to ite terms; iatd pro-
vided further that at that time of the execo-
171 U. t.
1107
Uabiusom v. M»*JiTu^.
42-10
tte of «dd oontimety the plaintiff had no
laowl«dge ornotioe of the agreement between
Henrj Campbeli and the Campbell Barrel
Company, oeaiing date the — day of January,
1802, and ofTered in evidence by the defend-
ant, and that there ia no evidence legally suf-
fident to ahow that the plaintiff had any
toch knowledge or notice of said agreement.
(Rejected.)
Tifth Prayer.
That tliA agreement of January, 1892, be-
tween Henry <>unpbeli and the Campbell Bar-
rel Company, offered in evidence by the de-
fendant, is no defense to this action, if the
court shall find that by the true construction
of said agreement the invention and device
described in the contract set out in the dec-
laration is not embraced within said agree-
ment (Granted.)"
And the defendant offered the following
two prayers:
'a>efendant's First Prayer.
'The defendant asks the court to rule as
matter of law that upon the pleadings of the
ease the burden is upon the plaintiff to prove
the delivery of the sealed instrument sued
on, and if €he court, sitting as a jury, finds
that the paper sued on never was delivered,
the verdict must be for the defendant.
(Granted.)
'a>efendant's Second Prayer.
"If the court, sitting as a jury, shall find
that when the paper sued on was presented
43Jbj the plaintiff to the defendant *for the lat-
ter's signature, with the request that he
would sign it, the defendant declined so to
do, as the terms of such papers did not corre-
spond with any agreement made or talked of
between the plaintiff and defendant, and that
thereupon it was agreed between them that
the papers in duplicate should be signed by
the defendant, and both kept in his posses-
skm, uid should not be of any force, and
■hould belong to the defendant until he
chose to put them in force, and that in pur-
suance 01 this agreement they were uien
figned by the defendant, and always after-
wards kept in his possession until produced
at the trial of this cause, on notice, and that
at no time after the signing of said papers
did tiie defendant evjsr exercise his option of
{ratting into force, but, on the contrary, sub-
•equentiy thereto, exercised his option by de-
etining to recognize them as in force, then the
▼erdict shall be for the defendant.
(Granted.)"
The trial judge rendered a general verdict
for the defendant, on which judgment was
entered for $35,091.65, with interest and
costs.
An appeal havinff been taken to the court
of app^ds of Maryland by the plaintiff Har-
rison, the judgment of the court below was
affirmed by the said court of appeals on the
17th of June, 1896, for $39,091.65, with in-
terest from tiie 13th of December, 1894, until
paid, and costs.
On September 21, 1896, a writ of error to
feriew this judgment was issued to the court
of appeals of 3£uryland.
There are nine assignments of error. They
171 v. 8. U. &, Book 43.
embrace rulings on testimony, on tkm
prayers, and the following:
"1. It was error to decide that under the
laws of the United States the assignments
from Henry Campbell to Waltor H. Harrison,
dated the 11th day of September, a. d. 1894^
and the 26th day of November, 1894, ra-
spectively, purporting to oonvey to the said
Harrison the 'entire right, titie, and interest
in and to the application for patent — serial
number, 522,266— -and the patent right con-
tained tJierein and covered thereby,' operated
to convey to the plaintiff Harrison merely
the equitable titie in and to said inventioa
and the patent rights oovered by said appli*
cation.
"2. It was error to decide that the said aa-
signments were *not drawn as the laws re- [44]
quired and hence did not convey the legal
title to the invention in question."
The opinion of the supreme court of Biary-
land is ouito long, necessarily so, as it passes
upon all tiie points which were raised by
plaintiffs. The parts of it which concern the
case are as follows:
"We think there can be no doubt that the
defendant's two prayers were properly
granted. By the first the court declared as
matter of law that upon the pleadings tiie
burden was upon the plaintiff to prove the
delivery of the sealed instrument sued on,
and that if the court, sitting as a jury,
should find that said paper never was de-
livered, the verdict must be for the defend*
ant. The second prayer recites the evidence
more at length, but asserts the same propo-
sition of law which appears to be well settled
in this stato. Edelin v. Sanders, 8 Md. 129.
We ^discover no inconsistency between the
two* prayers. The plaintiff specially ex-
cepted to the second on the ground that there
was no evidence in the cause legally sufficient
to prove the facts therein set forth. It ia
clear, however, tiiat the testimony of the
witnesses Morton and Coale support the facta
set forth in this prayer, and we have already
held it to be competent and admissible under
the issue made by the plea of non eat factum.
"We will now consider the prayers of the
Slaintiff. He offered five, the second having
een conceded and the fifth granted.
'The controlling proposition in this part of
the case is that contended for by the plaintiff
in his first, third, and fourth prayers, namely,
that there is no legally sufficient evidence in
the case to show that he had any knowledge
or notice of the agreement between the in-
ventor, Campbell, and the Campbell Barrel
Company.
'The correctness of this contention of the
plaintiff depends first, upon the leeal effect
of the assignments from CampbeU to the
plaintiff, and, secondly, upon the effect of
the contract of Campbell with the Campbell
Barrel Company — ^that is to say, whether said
company thereby assigned to said company
an equitable title to his invention ijrior in
date to the title he Maims to have assigned to [45J
the defendant, which lattor titie the plaintiff
claims to be an absolute legal title, and the
defendant's contention, on the contrary, ia
e9
4
i5 4T
ScrK£MB Court of the Umitbd States.
Oct. Tsn^
Uiat it if a mere equitable title, subsequent
la date and therefore inferior .to the title of
the barrel company. The plaintiff claims
title through two assignments from Camp-
beU, each being for one-half interest in a cer-
tain application filed in the Patent OfiKce of
the United States, at Washington, D. C,
which application is for letters patent cover-
ing the invention of a machine for forming
and making barrels and k^^s.
'^t will befound upon an examination of
these instruments that they do not contain a
request to the Conunissioner of Patents to
issue letters patent to the plaintiff. Not-
withstanding they were recorded in the Pat-
ent Office, letters patent were issued in the
name of Henry Ounpbell, the inventor, and
the defendant contends that the legal effect
of such an assignment, in which the inventor
fails to embody a request to tiie Commis-
sioner of Patents to issue letters to the as-
signee, is to convey to such assignee only an
equitable title. It is conceded that by one
of the rules of the Patent Office the Commis-
sioner will not and cannot issue tiie letten
patent to an assignee, unless specially re-
quested so to do by the terms of the assign-
ment. One of the witnesses refers to &is
rule in his testimony. The patent having
been issued to Campbell instead of to the de-
fendant, the witness thus explains: 1 ascer-
tained that the probable reason why it (the
patent) had not been issued to Mr. Morton
was this: The original assignment from Mr.
Campbell to Mr. Harrison did not contain
the request which the rules of the Patent
Office required in order that the patent
should be issued in the name of the assignee.*
Rule 26, Rules of Practice in the United
States Patent Office, page 9. Revised April
1, 1892,"
After considering authorities, the opinion
decides that —
'^f, therefore, the Campbell Barrel Com-
pany acquired an equitable title to the pat-
ent, as it undoubtedly did, under its contract
with the inventor, before the assignment of
the equity to the defendant, the latter took
subject to the equitable title in the said com-
pany, and the first, third and fourth prayers
£46] of the ^plaintiff were properly refused, for
they all asked the court to say that there was
no legally sufficient evidence to show that the
plaintiff had knowledge or notice of the
agreement between the plaintiff and the bar-
ni company, but, as we have seen, knowl-
edge and notice will be imputed to him, as
Ch. J. Qibson said in Chew v. Bametf svpra
[11 Serg. k R. 389], 'whether he had notice
or not,' holding as he did only an equitable
Utle."
The opinion concludes as follows: bind-
ing no error in the rulings of the learned
judge below, tiie judgment will be afilrmed."
Me$9r$. WIlliaiB Pinkney Whyte*
Frederie D* McKenney, and Samusl F.
PhUUpi for plaintiff in error.
Me$$r$, Bernard Carter and Hdgmr H.
Gans for defendant in error.
Mr. Justice MeKenaa delivered the optn-
ion of the coui*t:
It is manifest that the pleadings of the par-
ties presented for decision other questions be-
sides Federal ones, and which could be, inde-
pendent of the Federal ones, determinatJTe
of the controversy. Assuming, therefore,
that a Federal question was involved, it docs
not appear but that the decision was gives
on the contention of the defendant that the
aCTeement never became operative for waat
of delivery. This contention was dearly pre-
sented by defendant's prayers, and they oon-
tained the onlv rulings uiged upon the cooit
in that way, Uiat is, in the nature of instme-
tions. They were given and the verdict wss
generally for the defendant. It is therefore
natural to presume that the veidict was rea-
dered on accoimt of them and on the gronnd
urged by them. The ruling of the cooit
granting them was sustained by the supreme
court of the state. It affinned the ruling u
correct in law and as supported by competent
testimony. The supreme court, it is true,
passed on other groimds, passed oti the one
which it is *clairaed involved a Federal qnef- [f
tion, and decided it adversely to plaintiff.
But the rule in such cases has been repeatedly
declared by this court. It is not necessary to
review the decisions. That has been done by
Mr. Justice Shiras in Eustia ▼. BoUe$, 150 U.
& 361 [37:1111]. It is sufficient to annonnee
the rule pronounced in the case:
"It is settled law that, to give this court
jurisdiction of a writ of error to a state court
it must appear affirmatively, not only that a
Federal question was presented for dedtioa
by the state court, but that its decision was
necessary to the determination of the cause,
and that it was actually decided adversely to
the party claiming a right under the Federal
laws or Constitution, or tiiat the judgment
as rendered could not have been given with-
out deciding it. Murdoch v MeniphU, 87 U.
S. 20 Wall. 690 [22 : 429] ; Cook County ▼.
Calumet d Chicago Canal d D. Co. 1S8 V. S.
G35 [34:1110]. It is likewise settled law
that, where the record discloses that if a
question has been raised and decided adver^-
ly to a party claiming the benefit of a pro-
vision of the Constitution or laws of the
United States, another question, not Federal*
has been also raised, and decided aninst
such part^, and the decision of the latter
question is sufficient, notwithstanding the
Federal question, to sustain the judgment,
this court will not review the judgment"
See also Wade v. Lawder, 165 U. & 624
[41:861].
The writ of rrror must therefore he die>
mieeed,
Mr. Justice Gray did not hear the srg«»
ment and took no part in the dedsioa
171 IT. t.
l8»7.
DsTBorr Citizens* Stbbbt R. Co. ▼. Detroit Railwat.
48
[481DETBOIT CITIZENS' STREET RAILWAY
COMPANY. Pl/f . in Err.^
••
DETROIT RAILWAY and the Cily of De-
troit.
(See 8. C Reporter's ed. 48-55.)
Power of oommon ootinoU of Detroit — privi-
lege to biiHd raUroade on streets — potoer
to gremt easemente in puhlio streete.
L The common conndl of Detroit bad no In*
herent power to confer the exclusive privi-
lege claimed by the Detroit CItisens* Street
icailwaj Company to coostract and operate
railways on certain streets, under the ordin-
ance of November 24, 1862.
2. The Michigan tram railway act. conferring
on railway companies the exclusive right
to use and operute railways constructed by
them, provided that they shall not be author-
ized to constioict a railway through the
streets ot any city without the consent of Its
municipal authorities, did not give the city of
Detroit the power to grant to a railway com-
pany the exclusive privilege to occupy Iti
streets for railway purposes.
MoiE. — As to munMpal power to impose eon-
mtkms when ffivtng assent to street roHway in
street; power to assent as involving power to
Impose conditions; agreement by railroad; oon-
dUiens enforced; express power to impose con-
ditions; want of power or consent; conflict with
ether anthority; conditions after completion of
eentraet; right to control street, — see note to
Oalveston ft W. R. Co. v. Galveston (Tex.) 86
L. B. A. 88.
A$ to acquirino right of way; autfutrity to
use streets, — see note to Adams v. Chicago, B.
4 N. B. Co. (Minn.) 1 L. R. A. 403.
At to right of street railways to use streets,
— eee note to People, Third Ave. R. Co., v. New-
ton (N. T.) 3 U R. A. 174.
Street ntilroads: rights of,' in the street;
gromts to, by municipetl corporations; power
of such corporations to impose restraints or
conditions upon street railways; consints hy
ehuttimp owners; forfeiture of rights.
An Irrepealable contract for the use of a street
S' a street-railway companv Is* not In excess of
e powers of a municipal corporation which
Is Invested with full power to regulate and con-
trol the use of streets. Baltimore Trust & G.
Cow V. Baltimore. 64 Fed. Rep. 158.
A dty of the third class Is not prohibited from
frantlng by special ordinance to an electric
railway company the right to construct its
tracks In the city streets, by Pa. act June 14,
1887, i 82, prohibiting cities of the second class
from so doing. McHale v. Baston A B. Transit
Co. 16P Pa. 416.
A consent given by the supervisor of a town-
ship to a street-railway company to construct
a line on Its highways, upon the consideration
that the latter employ him and his son for
Ufe at an agreed price oer day, does not bind
the township, and Is void. Lehigh Coal A Nav.
Co. V. Inter-County Street R. Co. 167 Pa. 75.
A mere license, and not a franchise. Is given
to a street-railway company by an ordinance
granting the consent of a city to the use of
streets for its tracks. Belleville v. Citizens*
Horse R. Co. 152 111. 171. 26 L. R. A. 681.
A provision In a city charter, making It un-
lawful to grant the right to construct a street
railroad except to one who will agree to carry
passengers thereon at the lowest rate of fare,
la superseded by N. Y. Laws 1890, chap. 665,
flTlDg every railroad corporation the power
to construct Its road upon any highway which
Its route shall touch, subject to the limitations
of such chapter. Adamson v. Nassau Electric
R. Co. 80 Hun, 261.
The consent of property holders on a deslg-
Bated street Is not necessary to enable a street
railway company to make use of the tracks
of soother company already In operation, un-
der N. T. Const, art. 3, | 18. providing that
DO street railway can be constructed or operat-
^ without the consent of such owners. Inger-
•oil V. Nassau Electric R. Co. 89 Hun, 218.
A dty council which Is authorized to regulate
the use of streets and to permit or prohibit
any street railroad in anv street, but which
has "no power to grant" the right to lay down
an.T railroad track in any street except on a
q^lfied petition, cannot grant the use of a
street for railroad purposes except on the pe-
tition provided for. North Chicago Street R.
Co. V. Cheetharo, 58 III. A pp. 318.
The right of a city to grant or withhold its
171 U. 8.
consent to the operation of a street railroad la
not property of the city, so as to constitute a
Sant thereof for a less price to one party
an another Is ready to pay a waste of prop-
erty, within a statute antnorlzlng an action to
Rrevent waste of city property. Adamson t*
fassau Blectrlc R. Co. 89 Hun, 261.
The question of the consent of the municipal
authorities to the construction of a street rail*
road does not necessarily arise on a motion to
confirm the appointment of commissioners un-
der N. Y. Laws 1890, chap. 565, I 94, making
such appointment depend upon the failure to
secure the consent of the property owners.
Re Auburn City R. Co. 88 Hun, 603.
The consent of township supervisors to the
construction of a street railway upon an ordi-
nary township road Is sufficient where such
consent Is given at a meeting held for the pur-
pose after four meetings to deliberate upon snd
aiscuss what their action should be, although
no minutes of their proceedings were kept by
them. Scranton A P. Traction Co. v. Delaware
A H. Canal Co. 1 Pa. Super. Ct. 409.
The consent of the township committee la
necessary to legalise the construction of street
railroads In any township, under N. J. P. L.
1893, p. 144, prohibiting the construction of any
street railroad on the street of any "municipal-
ity" without the consent of the "governing
body" having the control of the streets In such
municipality. West Jersey Traction Co. ▼•
Camden Horse R. Co. 53 N. J. Bq. 163.
A city In consenting to street-railway fran-
chises under MiUiken ft Vertrees (Tenn.) Code,
}\ 1921, cannot limit such consent to a period
ess than the duration of the franchise granted
by the state. Africa v. Knoxvllle, 70 Fed. Rep.
In the absence of a statute there Is no Im-
plied restriction springing trom public policy
upon the power of a city to grant a street ease-
ment to a railroad or street-car company hav-
ing the requisite franchises from the state
unlimited as to time. Louisville Trust Co. v.
Cincinnati, 47 U. 8. App. 86, 76 Fed. Rep. 299»
22 C. C. A. 334.
A resolution by the dock department of a city
granting a revocable license to a street-railroad
company to construct its road over a given
street confers no authority for Its construction,
where such department has no power to grant
any franchises. Central Cronstown R. Co. v.
Metropolitan Street R. Co. 16 App. Dlv. 229.
City authorities have no right to grant street-
railwav franchises except in so far as they may
l>e autoorlzed by the legislature, and theu only
In the manner and under the conditions pre-
scribed by the statute. Beekman v. Third Ave.
R. Co. 163 N. Y. 144.
Validity of conditions Imposed by city or
highway authorities In granting consent to a
street railways to use the streets. People, West
Side Street R. Co. v. Barnard, 110 N. Y. 548;
Abraham v. Meyers. 29 Abb. N. C. 384: Cin-
cinnati V. Mt. Auburn Cable R. Co. 28 Ohio L.
J. 276; Allegheny v. Mlllvllle, E. & S. Street
R. Co. 159 Fa. 411; Cincinnati v. Cincinnati
Street R. Co. 81 Ohio L. J. 308: Plymouth Twp.
V. Chestnut Hill & N. R. Co. 168 Pa. 181.
The legislature can, without consulting the
municipality, grant the right to a street-rail-
way company to lay Its tracks on the streets of
the city. Central Railway ft Electric Co.'a
Appeal, 67 Conn. 197.
A city can impose no te^ms on the construc-
tion of a street railway upon Its streets, where
67
SUPBBMB COUBT OF THB UhiTBD STATBflL
IL The power to gnuit tmmmtntm In the public
streets. In perpetnltj and In monopoly, mnst
be conferred In fTprcw words, or. If Inferred
from other powers. It Is not enooiKh that the
authority Is conrenlent to than* bat it mnst
be indispensable to them.
[No. 23G.]
Argued AprU 26, tJ, 1898. Decided May ZS,
1898.
IN ERROR to the Supreme Ck)tirt of the
State of Michigan to review a decree of that
Ooc Tnai,
court affirming the decree of the Grcoit
Court of the County of Wayne, in said state,
dismissii^ a suit in equity brought by the
Detroit Oitizens' Street Railway Company
against the city of Detroit e^ al to oijoia
said city et oL from acting under an ordi-
nance granting to others Ute n«^t to ecu-
struct street railways upon oertam stzeets ia
said city. Affirmed.
Statement by Iftr. JusUce MeKeaaat
The plaintiff in error v^ a street raOway
company of the state of Uinhigaiy^ organized
the city's consent Is not made necessary for
the construction of the road. Philadelphia t.
Empire Pass. B. Co. 177 Pa. 382.
A street-railway company has the right to
Alrerge from the highway and to construct Its
railroad on property secured for that purpose
In order to avoid a grade crostfing at the inter-
section of a railroad. Pennsylrania R. Co. t.
Olenwood Jk D. Electric Street R. Co. 184 Pa.
227.
The provision of N. Y. Const art. 8, i 18,
reaulring the consent of the abutting owners
and local authorities, or the substituted con-
sent of the court, to the grant of street-railroad
franchises, does not authorize the legislature to
confer upon local authorities power to consent
to such a grant if otherwise Illegal, or prevent
tt from repealing such_j>ower bv subsequent
legislation. Norns v. Wnrster, 28 App. Dlv.
The consent of all the local authorities
through whose districts the established route
of an electric passenger railway passes must
be obtained, in Pennsylvania, before any part
of the road can be built. Reading Co. v.
Schuylkill VaUey Traction Co. 14 Mont. Co. L.
Rep. 10.
A permit granted by the park commissioner
of the city of Brooklyn, under N. T. Laws 1888,
chap. C83, tit. 16, I 2. subd. 5. which designates
the location for a railway switch, will not au-
thorise Its construction in the absence of the
consent of the common council, since the pro-
visions of N. Y. Laws 1896, chap. 825, do not
Impliedly repeal the ordinance making such
* consent necessary. Irvine v. Atlantic Ave. R.
Co. 23 App. Dlv. 112.
The consents of abutting owners to the con-
struction of a street railway, contemplated by
the New York Constitution and the railroad
act, cannot be acquired by an individual and
assigned by him to a corporation thereafter
organized to construct the road, but they mnst
be given in the first instance to a corporation
antfiorized to construct the road. Geneva &
W. R. Co. V. New York C. & H. R. R. Co. 24
App. Div. 835.
A city may require the payment of license
fees as a condition of granting a franchise to
a street-railroad company, and such company
on accepting the franchise becomes liable to
pay the fee. under the provision of the Illinois
statute. Byrne v. Chicago General R. Co. 160
111. 75.
A corporation Incorporated under the Penn-
sylvania general raiiroad laws aa a steam
railroad company cannot acquire the rights and
franchises of a street passenger railroad com-
pany, without reincorporation under the street
railroad laws. Potts v. Quaker City Blev. R.
Co. 161 Pa. 386.
A corporation organized under Pa. act April
4, 1868, becomes necessarily a steam railroad
for the carriage of passengers and freight in
the manner provided by the general railroad
laws, and has no power to carry on the busi-
ness of a street passenger railway company.
Comu, Atty. Gen., v. Northeastern Blev. R. Co.
161 Pa. 400.
That a street-railway company under Its gen-
eral corporate powers may have the authority
to receive an estate In the streets beyond its
•wn life does not necessarily empower the city
to grant such an estate. Detroit t. Detroit
City R Co. 66 Fed. Rep. 867.
Conditions Imposed by a municipal corpora-
tion in gi^g the consent required by Pa. Const,
art. 17. i 9, to the oonatructfon of a street rail-
^Ay within its Umlts, that a fixed fare ahaU
be charged for passengers and a certain pe^
centage of the divldenda be paid to the d^.-
are valid. Allegheny v. MillviUe. B. & &
Street R. Co. ^ Pal 411. ~"^"^ «. « a.
The **pubUc convenience or neceaslty" con-
templated by Conn. Pub. Acts 180S, chsp. lefli
t-TS*P~^^''*^'5*i_'*® ■*'*«t railroad shaU b«
RJrlJSfii^^i?"?®^ ^^^ ®"« ^^^ to another la
the pnbUc highways so aa to parallel any oth«f
stoeet or steam rallwa/, unless the superior
co^ or a Judffe thereof shall have fouhd that
public convenience or hecessity requires Itt
constmcUon,— meana such a condition existing
at tje time of the appUcaUon in respect to the
fi?f*?iK railroad, the mode of onbllc travel
the manner in which those needs are to be
suppUed, and the probable effect of the oro-
posed road upon tie whole question of tde-
qnately supplying those needs, aa well at la
rK?u^ !S the road proposed to be paralleled,
IhS'iiS^S® Judgment of the trior will Instlfy
the interference with the private ririit of ibe-
l^er road. Re Bhelton Street B. CoTea Cowl
«^"iJj^!!Pi**? to malnUln a street raUway It
not Imposed by the grant of a mere privlk-«e
to construct and maintain it. San Antonio
^T R"f^e& ^^ Blmendorf, 00 1^ 52^
-.\-.°lP'*l*^*P*"^y ***■ "o authority to grant t
right to lay a street-railway track in an aUey
and operate cars thereon, where, in view of the
"^^kV u^Jl**® ®' ^^^ *"«y «i°<> t*»« frequency with
!^5IS5 i?^?T '^ required to be run. It would
result In Uie loss of the benefit of Uie nse of
iKfiJlJJf^ *? ****«***^"'°iL owners. Watsos t.
Robertson Ave. R, Co. ^ Mo. App. 648.
Time fixed by Civ. Code. % SS, before its
amendment in 1895. within which a iSeei
railway track most be completed in order to
preserve the franchise to occupy the street
^l^u^^ o* ''.^^"SS^J^.i**® ^nt of the^ii
City may attach to grant of the rUht to
occupy its streets with street-railway tracks
conditions necessary to protect itself from pe^
welfare of Its dtisens, and may resume the
"^°i.^.^^'^*\^^v"P<*'* noncompliance with tuck
ci^?it^"i!i ^^ the grantees or their succestort.
Springfield v. Robertson Ave. R. Co. 60 Mo.
App. 514.
The consent of the local authorities havinr
control of the street and of the owners of one
K**U° J^J^® ^1 *^* '?""*"? property reqslred
**y..^* I•.^*^°■^^/^ ^ * 1^ and of theN T.
railroad law, i 91, to construction, extentkm.
or operation of a street railroad. Is necetsmr
to entitle a street railroad company to use the
line of another company. Colonial Oty Trac-
il?? fit ^\ ^^"Pion Cl!^ R Co. 165 N. Y.
540. Afflrminr 15 App. Dlv. 106.
A municipality does not waive the forfeiture
of the franchise of a street railway companr
to maintain and operate Its road In the streeu
for nonperformance of conditions siibseqnent,
by its failure to take any action to remove the
tracks after the breach of the conditions, or to
take any proceedings to have the franchise de-
clared forfeited. People, Warfleld, v. Sutter
Street R. Co. 117 Cal. 604.
A street-railway company which haa accepted
171 U. S.
1897.
DsrRoiT Citizens' Strbbt R. Co. y. Dbtboit Railway.
48,49
for the purpose of owning and operating lines
in the aty of Detroit, and is the successor in
interest of a similar corporation named the
Detroit GI7 Railway. The rights asserted
hj it arise from an ordinance of the common
council of that city passed upon November
24» 1SG2. This provided that the Detroit aty
Railway was "exclusively authorized to con-
struct and operate railways as herein pro-
vided, on and through [certain specified
streets], and through such other streets and
avoiues in said city as may from time to
time be fixed and determined by vote of the
eommon council of the said city of Detroit
and assented to in writing by said corpora-
.... And provided the. corpora-
tion does not assent in writing, within thirty
days after the passage of said resolution of
the council ordering the formation of new
routes, then the common council may give
the privilege to any other company to build
such route."
The ordinance provided also that "the
powers and privileges conferred by the pro-
visions of this ordinance shall be limited to
thirty years from and after the date of its
passage."
Section 2 of the ordinance is only neces-
sary to be quoted, and it is inserted in the
margin.t
*There is also inserted in the margin SS 33 [40]
and 34 of the tram railway acrtft
from a vilUfe the grant of a franchise to lay
A street railroad cannot rescind tbe contract
and recover an amount deposited as liQoldated
damages for faiiure to perform the contract to
construct the road, on the ground that the
frant was impracticable. Peekekill, B. C. &
M. B. Co. V. Peeksklll, 21 App. Dlv. 94,
Power given by a city charter to anthorlse
the ose of the streets for "horse and steaiu
railroads,*' before electricity came into use as
a means of propnlsion, authorizes the city to
grant a franchise for operating a street rail-
way by electric!^ on the trolley system.
Bnckner v. Hart, 62 Fed. Rep. 835.
A general grant of power to a clty^to per-
mit, allow, and regulate the laying down of
tracks for street cars, upon such terms and
conditions as the city may prescribe, does not
empower It to grant for a term of yes's an
exciuslTe franchise to occupy its streets with
street railwaya Parkhurst v. Capital City R.
Co. 23 Or. 47L . . . ,^
The resolution of the board of aldermen of
the city of New York consenting to the grant
of a street-railway franchise unuer N. Y. Laws
MPO. chap. 665, need not be published as re-
8 aired by the New York consoMdation act, f 80,
I regard to resolutions disposing of propertv
of the city. Abraham v. Meyers, 29 Abb. N.
C. 884
A special charter of a street-railway com-
pany, empowering It to commence at a certain
■treet comer and construct Its tracks east-
wardly and westwardly through such street, or
any other streets In the borough, with the right
to construct branches to its main track through
any streets of the boroueh, does not give it
the right to occupy a thoroughfare running
Borth and south, in so far aa the right to con-
struct its main track is concerned, and the pro-
Tislon aa to branches is so indefinite that new
tracks cannot be constructed thereunder after
the expiration of twenty-eight yeara and after
the Tillage has become a city and the street
has been granted to another company. Junc-
tion Pass. B. Co. V. WiUlamsport Pass. S. Co.
IMPa. ue.
A franchise granted to a street-railway com-
pany under a city charter requiring publics-
tloB of the terms and specifications of the
tranchiae Is void as to a street sixteen blocks
in length not mentioned In the publication, al-
thongh such street was substituted for one
mentioned In the publication on which tracks
had already been authorised. Buckner v. Hart.
91 Fed. Rep. 886.
A street-railway franchise required by stat-
ute to be disposed of by a city to the highest
bidder Is invalid when advertised and sold to
the highest bidder *tn square yards of gravel
pavement." Buckner v. Hart, 62 Fed. Rep.
Failure to comply with N. Y. Laws 1884,
chap. 262. I 4, requiring the time and place
when an application Is to be made for a street-
railway frandilse to be advertised in two pap-
ers, tor advertising In but one, invalidates the
ftfandilse. People, St. Nlcholaa Ave. k C. T.
B. Co., V. Grant, 60 N. Y. 8. R. 465.
A legislative act authorising a street-railway
eoaipany to extend Its line to certain streets
wtween another street and a certain road.
171 V. 8.
"with the right to connect the same on any
street between these two points," does not au-
thorize the laying of any track for connection
or otherwise, even with the consent of coun*
ells, on any part of such roa<l. Philadelphia v.
Citizens* Pass. R. Co. 161 Pa. 128 ; Qermantowa
Pass. R. Co. V. Citizens' Pass. R. Co. 151 Pa.
138.
An ordinance giving a street-railway company
the right to lay double tracks on certain streets
may be repealed, and the right limited to the
use of a single track. Lake Roland Blev. B.
Co. V. Baltimore, 77 Md. 362, 20 L. R. A. 126.
A franchise to a street-railway company In
a particular street prevents the gram to an
electric company of a franchise to use such
street In any way obstructing, hindering, or
embarrassing the use under the former fran-
chise. Fidelity Trust & Safety Vault Co. v.
Mobile Street R. Co. 53 Fed. Rep. 687.
Municipal authorities consenting to the con-
struction of a street railway In a street are not
confined to the conditions required by the New
York railroad act, but may affix any further
conditions not contravening the statute or re-
lating to matters over which other bodies havs
comDlete control. Abraham v. Meyera, 29 Abb.
N. C. 884.
t Sec 2. The said grantees are, by the provl-
slons of this ordinance, exclusively authorised
to construct and operate railways as herein pro-
vided, on and through Jefferson, Michigan, and
Wooaward avenues, Witherell, Qratlot, Qrand
River, and Brush or Beaubien streets; and from
JefTenon avenue through Brush or Beaubien
streets to Atwater street; and from Jefferson
avenue, at Its Intersection with Woodbrldge
street, to Third street; up Third street to Fort
street and through Fort street to the western
limits of the city; and through such other
streets and avenues in said city as may from
time to time be fixed and determined by vote
of the common council of the said city of De-
troit, and assented to, in writing, by said cor-
poration, organized as provided In section first
of this ordinance. Ana provided. The corpora-
tion does not assent. In writing, within thirty
days after the passage of said resolution of the
council ordering the formation of new routes,
then the common council may give the privi-
lege to any other company to build such route,
and such other company shall have the right to
cross sny track of rails already laid, at their
own cost and expenses; Provided, always, that
the railways on Grand river street, Qratlot
street and Michigan avenue shall each run into
and connect with the Woodward avenue rail
ways, in such direction that said railways shall
be continued down to, and from, each of them«
one continuous route to Jefferaon avenue; Pro-
vided, always, that said railroad down Gratiot
street may be continued to Woodward avenue,
through State street, or through Randolph
street, and Monroe avenue, and the Campus
Martins, as the grantees, or their assigns, un-
der this ordinance may elect.
ft Sec. 33. It shall be competent for parties
to organize companies under this act to con-
struct and operate railways In and through
the streets of any town or city In this state.
Sec. 34. All companies or corporatlona formed
6*
V
4»-52
SUPRBMB COUST OF THE UnITKD StATBS.
Oct. Tkbm,
By an ordinance passed November 14, 1879,
it was provided further that '*the powers and
privileges conferred and obligations imposed
on the Detroit City Railway Company by the
ordinance passed November 24, 18G2, and the
[SO] amendments 'thereto, are hereby extended
and limited to thirty years from this date."
On November 20, 1894, the common coimcll
passed an ordinance granting to several third
parties the right to construct street railways
upon portions of certain streets upon which
the plaintiff in error waa maintaining and
operating street railways, and also the right
to conatruct, maintain, and operate railways
on certain other streets, alleys, and pubUc
places in the city of Detroit, without giving
to plaintiff in error the opportunity to decide
whether it would construct the same. The
present suit was brought in the circuit court
for the county of Wayne and state of Michi-
gan, to enjoin the grantees named in the lat-
ter ordinance, and also the city, from acting
thereunder, upon the ground that it impaired
the contract between the city and the plain-
tiff in error arising from the ordinances first
aforesaid. The bm was dismissed, and, on
appeal to the supreme court of the state, the
decree of dismissal was affirmed. From that
decree the present writ of error has been duly
prosecuted to this court.
There are five assignments of error. They
present the contention that the grant to the
plaintiff in error was a contract within the
protection of the provision of the Constitu-
tion of the Uniteq States, which prohibits
any state from passing any law impairing
tiie obligation of a contract, and that the sub-
sequent grant to the defendant in error, the
Detroit Railway, was a violation and an im-
pairment of the obligation of that contract.
Messn. Henry M. Dnflleld, John C.
Donnelly* Fred A. Baker, Michael Bren-
nan, David WiUoax, and fiYank SuUivan
Smith for plaintiff in error.
Meitsn. John B. Corliss, Charles
Flowers* Joseph H« Choate* and PhUip
A, BoUint for defendant in error.
Mr. Justice MoKenna delivered the opin-
ion of tne court:
(SI J *The controversy turns primarily upon the
power of the dij of Detroit over its streets,
whether original under the Constitution of
the state, and hence at extensive at it would
be in the legislature, or whether not original
but conferred by the legislature, and hence
limited by the terms of the delegation.
The first proposition is asserted by the
plaintiff in error; the second proposition by
the defendants in error.
The provisions of the Constitution whieh
are pertinent to the case are as follows:
"The state shall not be a party to or ib-
terested in any work of internal improve-
ment, nor engaged in carrying on any such
work, except m the expenditure of grants to
the state of land or other property.
There shall be dected annually on the
first Monday of April in each organized
township . . . one commissioner of
highways . . . and one overseer of high-
ways for each highway district.
'*The l^islature shall not . . . vacate
or alter any road laid out by the commis-
sioners of highways, or any street in any dty
or village, or in any recorded town plat.
*The legislature may confer upon organized
townships, incorporated cities and villages,
and upon boards of supervisors of the several
counties such powers of a local, l^islative,
and administrative character as they may
deem proper."
The supreme court of Michi^ran, in its opin-
ion (68 N. W. 304 [35 L. K A. 859]), inter-
prets these provisions adversely to the conten-
tion of plaintiff in error, and, reviewing prior
cases, declares their harmony with the views
expressed. "The scope of the eariier deci-
sions," the court said, 'is deariy stated bj
Mr. Justice Cooley in [People] Park Com-
miaaionert v. Common CouncU of Detroit , 28
Mich. 230 [15 Am. Bep. 202]. After sUting
that the opinion in People [Le Roy] v. Fi»ri-
hut [24 Mich. 44, 9 Am. Rep. 103], had I«eii
misapprohended. Justice Cooley said: 'We
intended, in that case, to concede most fully
that the state must determine for each of ita
municipal corporations the powers it should
exerdee and tne capacities it should possess,
and that it must also decide what restrictiooa
should be placed upon these, as weU to pre-
vent clashing of action and interest in the
state as to protect individual corporators
'against injustice andoppressiou at the bunds [5t]
of the local majority. And what we said in
that case we here repeat, that while it is a
fundamental principle in this state, recognixed
and perpetuated by express provisions of the
Constitution, that the people of every hamlet,
town, and city of the state are entitled to
the benefits of local self-government, the Con-
stitution has not pointed out the precise ex-
tent of local powers and capacities, but has
left them to be determined in each case by
the legislative authority of the state, from
considerations of general policy, as wdl ss
those which pertain to the local benefit and
local desires. And in conferring those powers
it is not to be disputed that the legislatort
may give extensive capacity to acquire and
hold property for looat purpoeea, or it may
confine the authority within the narrow
for such porposes shall have the exclusive right
to use and operate any street railways o^n-
stracted, owned» or held hj them; Provided,
that no soch compsny or corporation shall be
authorised to constmct a railway under this act
through the streets of any town or city without
the consent of the municipal authorities of such
town or city and under such regulations and
vpon such terms and conditions as said authori-
ties may from time to time prescribe; Provided,
further, that, after such consent shall have
70
been i^ven and accepted by the company or cor-
poration to which the same Is granted* sa^ ae-
thorltlea shall make no regulations or eoadl-
tlons whereby the rights or franchisee ■•
granted shall be destroyed or nnreasonably la-
pnli'ed. or such company or corporation be dt»
r»rlTed of the right of constructing, maintain-
ng, and operating such railway In the strtct
In such consent or grant named, pursaaat Is
the terms thereof.
171 U. t.
18D7.
Dktiioit Citizens' Stbebt R. Co. v. Dbtboit Railway.
52-55
bounds, and wbat it thus confers it may en-
lari^o, restrict, or take away at pleasure." '
This decision of the supreme court of Michi-
^n is persuasive if not authoritative; but,
exercising an independent judgment, we
think it is a correct interpretation of the oon-
•titutional provisions. The common council
of Detroit, therefore, had no inherent power
to confer the exclusive privilege claimed by
the plaintiff in error.
Did it get such power from the legislature?
It is contented that it did by the act under
which the Detroit City Railway Company, the
predecessor of plaintiff in error, was organ-
ized, and to whose rights and franchises it suc-
ceeded. This act is the tram railway act, and
%t the time of the adoption ol the first ordi-
nance in 1802, S 34 of that act provided that
"all companies or corporations formed for
meh purposes [the railway purposes men-
tioned in the act] shall have the exclusive
ri^ht to use and operate any railways con-
structed, owned, or held by them: Provid-
ed, that no such company or corporjition
shall be authorized to construct a railway,
under this act, through the streets of any
town or dty, without the consent of the
municipal authorities of ^uch town or dty,
and under such regulations and upon such
terms and conditions as said authorities may
from time to time prescribe."
[13] *In 1867 the further proviso was added that,
after such consent should be given and ac-
cepted, such authorities should make no reg-
ulations or conditions whereby the rights or
franchises ao granted should be destroyed or
unreasonably impaired, or Brjcb company be
deprived of the -right of constructing, main-
taming, Kod (grating such railway.
It is dear that the statute did not explidt-
ly and directly confer the power on the muni-
dpality to grant an exclusive privilege to oc-
cupy its streets for railway purposes. It is
urged, however, that such power is to be in-
leiTea from the provision which requires the
eonsent of the munidpal authorities to the
eonstmetion of a railway under such terms
as they may prescribe, combined with the
previsions of the Constitution, which, if they
do not confer a power independent of the legis-
lature, strongly provide for and intend lo-
cal government. The argument is strong,
and all of its strength has been presented and
is appreciated, but there exist considerations
of eonntervailing and superior strength.
That such power must be given in language
ezpHdt and express, or necessarily to h^ im-
plied from other powers, is now firmly fixed.
There were many reasons which urged to
this— reasons winch flow from the nature of
the manidpal trust — even from the nature
of the legislative trust, and those which,
without the clearest intention explicitly de-
cUred, insistently forbid that the future
ihould be committed and bound by the con-
ditions of the present time and functions dele-
ftted for puDlic purposes be paralyzed in
their exercise by the existence of exclusive
pnvileges. I'he rule and the reason for it
*re expressed in Minium v. Lartte, 64 U. S.
» How. 436 [16:676] ; Wright v. Nagle. 101
ni V. 8.
U. S. 791 [25:921]; State [Atty. Gen] v.
Cincinnati Gaslight and Coke Co. 18 Ohio St.
262 ; Parkhursi v. City of Salem [Parkhurat
v.Capital City R, Co, 23 Or. 471] 32 Pac. 304;
Saginaw Gaslight Co, v. Saginaw, 28 Fed.
Rep. 529, decided by Mr. Justice Brown of
this court; Long v. Duluth [49 Minn. 280],
51 N. W. 913. See also Grand Rapids Electric
Light d Power Co, v. Grand Rapids Edison
E, L, d Fuel Gas Co. 33 Fed. Rep. 659, opinion
delivered by Mr. Justice Jackson at circuit.
As bearing on the rule, see also Oregon RaU-
way d Nav. Co. v. Oregonian Railway Co, 180
U. S. 1 [32:837] ; •Central Transportation Co. [5*1
V. PuUman'a Palace Car Co. 139 U. S. <54 [36:
56].
The power, therefore, must be granted in
express words or necessarily to be implied.
What does the latter meanf Mr. Justice
Jackson, in Grand Rapids Eleotrio Light d
Power Co. v. Grand Rapids, Edison E, L. d
Fuel Gas Co. supra, says ''that municipal oor-
povaticns . . . possess and can exercise
only such powers as are 'granted in express
words or those necessarily or fairly im-
plied in or incident to the powers ex-
pressly conferred, or those essential to
the declared objects and purposes of the
corporation, not simply convenient, but in-
dispensable.'" The italics are his. This
would make ''necessarily implied" mean in-
evitably implied. The court of appeals of the
sixth circuit, by Circuit Judge Lurton, adopts
Lord Hardwicke's explanation, quoted by
Lord Eldon in Wilkinson v. Adam, 1 Ves. &
B. 466, that a ''necessary implication meant,
not natural necesdty, but so strong a proba-
bility of intention, that an intention contrary
to that, which is imputed to the testator
[the partv using the language], cannot be
supposed." If this be more than expressing
by drcumlocution an inevitable neoesmty, we
need not stop to remark ; or if it mean less, to
sanction it, oecause we think that the stat-
ute of Michigan, tested by it, does not confer
on the common council of Detroit the power
it attempted to exercise in the ordinance ol
1^62. To refer the right to occupy the
streets of any town or dty to the consent of
its local government was natural enough-
would have been natural under any Constitu-
tion not prohibiting it, and the power to pre-
scribe the terms and regulations of the occu-
pation derive very tittle, if any, breadth from
the expresdon of it. But assuming the
power to prescribe terms does acquire breadth
from such expresdon, surdy there is sufficient
range for its exercise which stops short, or
which rather does not extend to granting an
excludve privilege of occupation. Surdy
there is not so strong a probability of an in-
tention of granting so extreme a power that
one contiar}' to it cannot be supposed, which
is Lord Hardwicke*s test, or that it is indis-
pensable to the purpose for which the power
is given or necessarily to be implied from it,
which is the test of the cases. The rule is
one of ^construction. Any grant of power in [6BJ
general terms read literally can be construed
to be unlimited, but it may, notwithstand-
ing, receive limitation from its purpose —
71
95^7
SnPBBMB COUBT OF THB UNITSD StATBS.
OOT.
from the general purview of the act which
confers it. A municipality is a goyemmental
agency — ^its functions are for the public good,
and the powers given to it and to be exercised
by it must be construed with reference to that
good and to the distinctions which are recog-
nized as important in the administration of
public affairs.
Easements in tiie public streets for a lim-
ited time are different and have different con-
sequences from those given in perpetuity,
lliose reserved from monopoly are different
and have different consequences from those
fixed in monopoly. Consequently those
given Ib perpetuity and in monopoly must
have for their authority explicit permission,
or, if inferred from other powers, it is not
enough that the authority is convenient to
them, but it must be indispensable to them.
Decree affirmed.
Mr. Justice Shiraa did not hear the argu-
menty and took no part in the decision.
DEL MONTE MINING & MILLING CX)M-
PANY, Appt.,
V,
LAST CHANCE MINING & MILLING
COMPANY.
(See 8. C. Reporter's ed. 65-92.)
Kighis of owner of mining claim — tinea of
junior location, token may he laid across
senior location — Tfew York lode mining
claim — right of locator to follow dip of
. vein — rights below the surface— when ea-
tend beyond side lines — when side lines are
end Unes,
L Congross having prescribed the conditions
upon which extralateral rights of a mining
claim may be acquired, a locator must bring
himself within those conditions, or else be
content with simply the mineral beneath the
surface of his territory.
tt. Any of the lines of a jonior-lode location of
a mining claim may be laid within, upon, or
across the surface of a valid senior locatlou
for the purpose of defining for or securing t<>
such junior location underground or extra-
lateral rights not in conflict with any rights
of the senior location.
8. The easterly side of the New York Lode
mining claim, in this case, is not an end Une
of the liast Chance Lode mining claim within
the meaning of U. 8. Rev. SUt. || 2820^ 2822.
4. If the apex of a vein crosses one end Une
and one side line of a lode mining claim* •■
located thercoo, the locator of such vein caa
follow It upon its dip beyond the vertical side
line of his location.
5. The location as made on the snrfaee by the
locator determines the extent of his rights be-
low the surface.
8. Bvery vein the top or apex of which lies in-
side the surface lines of a lode mining elaia
extended downward vertically belongs to the
locator, and may be pursued by him to any
depth beyond his vertical side lines, although
in doing so he enters beneath the surface of
some other proprietor.
7. The only exception to the rule that the end
lines of a location as the locator of a lode
mining claim places them establish the limits
beyond which he may not follow the v^n on
its course or strike is where It is developed
that in fact the location has been placed, not
along, but across, the course of the vein. la
such case what he called his side lines are his
end lines, and what he called end lines are la
fact Bide lines.
[No. 147.]
Argued December 8, 9, 1879, Decided Ma^
23, X898.
ON A CERTIFICATE from the United
States Circuit Court of Appeals for tflieEightii
Circuit certifying certain queettons to be an-
swered in this case between the Del Monte
Mining & Milling Ccnnpaiiy, aoid the Last
Chance Minaing & Millim^ Company, in legaid
to the rights of conflicting mining claims.
First and fourth questions answered in the
affirmative the third in the negative; the
second and fifth are not answered.
Statement by Mr. Justice Brewert
This case is before this court on questiOBt
certified by the court of appeals for tbe
eighth circuit. The facts stated are as fol-
lows: The appellant is the owner in fee of tks
Del Monte Loide mining daim, located in the
Sunnyside mining district. Mineral County,
Colomdo, for which it holds a patent bearing
daite February 3, 1894, pursuant to an entry
made at the local land office on February 27,
1893. The appdlee it the owner of the Last
Chance Lode mining claim, under patent
dated July 5, 1894, based on an entry of
March 1, 1894. The New York Lode miniiig
cbdm, which is not owned by either of the
parties, was patented on April 6, 1894, upon
an eotary of August 26, 1893. The relatiTf
•itoation of these claims, as well as the eonne
and dip of the vein, which is the subject of
oontroversy, is shown on the loUowing dis*
fnun:
Nora. — As to ownership of mines; Unite4
States statute as to; right to support of sm^
face, — see note to United States v. CastllleiOb
17:448.
As to title to water hy appropriation; com'
wien-law rule; rule of mining state,-
to Atchison V. Peterson, 22 : 414.
78
Am to conveyance of mineral beneath turfsce
of Umd; rights of owner of surface and of «<••
erali see note to Lilllbridge v. Lackawtnss
Goal Co. (Pa.) 13 L. B. A 627.
171 V. &
WfL
Del Momtx M. & M. Co. v. Lasi Cbamcx M. & M. Oo.
07-l»
^
SaJL,^oof4:^Iu^
Both fa locadon and patent the Del Monte
dtim is fiiBt in time, the New York second,
•ad the Last Chance third. When the own-
en of the Last Chance claim applied for their
patent, proceedings in adverse were instituted
•gainst them by the owners of the New York
ettim, and an action in support of such ad-
▼me was brought in the United States cir-
eoit coort for the district of Colorado. This
(S8] action terminated *in favor of the owners of
the New York and against the owners of the
Last Chance, and awarded the territory in
eonflict between the two locations to the
New York claim. The ground in conflict be-
tween the New York and Del Monte, except
ao much thereof as was also in conflict be-
tween the Del Monte and Last Chance loca-
tions, is included in the patent to the Del
Monte elaim. The New York secured a pat-
cat to all of its territory, except that in con-
flict with the Del Monte, and the Last Chance
in torn secured a patent to all of its territory,
except that in ooxifliot with the New York, in
whidi last-named patent was included the
[Wl triangular surface •conflict between the Del
Monte and Last Chance, which, by agree-
ment, waa patented to the latter. The Last
Cbance daun was located upon a vein, lode,
or ledge M silTer and lead bearinf^ ore, which
crosses its nortli end line and continues south-
erly from that point through the Last Chance
171 V. M.
location until it reaches the eastern side lin*
of the New York, into which latter territory
it enters, continuing thenca southerly with a
southeasterly course on the New York claim
until it crosses its south end line. No part
of the apex of the vein is embraced within
the small triangular parcel of ground in the
southwest comer of the Last Chance location,
which was patented to the Last Chance a»
aforesaid, and no part of the apex is within
the surface boundaries of the Dd Monte min-
ing claim. The portion of the vein in con-
troversy is that l^ing under the surhice of
the Del Monte claim and between two verti-
cal planes, one drawn through the north end
line of the Last Chance claim extending west-
erly, and the other parallei thereto and start-
ing at the point where the vein leaves the
Li^t Chance and enters the New York claim,,
aa shown on the foregoing diagram. Upon
these facta the following questions have been
certified to us:
"1. May any of the lines of a junior lodo
location be laid within, upon, or across the
surface of a valid senior location for the pur-
pose of defining for or securing to such junior
location underground or extralateral rights
not in confiict with any rights of the senior
location?
"2. Does the pa/tent of the Last Chance
Lode mining claim, which llrat describes the
7S
69,80
SnruE&is CouBT of nm United Statxs.
OoT. Tal^
rectangular claim by meteff and bounds, and
then excepts and excludes therefrom tlic
premises previously granted to the New York
Lode mining claim, convey to the patentee
anything more than he would take by a
grant specifically describing only the two ir-
regular tracts which constitute the granted
si:fface of the Last Chance claim?
"3. Is the easterly aide of the New York
Lode mining claim an 'end line* of the Last
Chance Lode mining claim, within the mean-
ing of §§ 2320 and 2322 of the Bevised Stat-
utes of the United States?
|60] •«4. If the apex of a vein crosses one end
line and one side line of a lode mining daim,
as located thereon, can the locator of such
vein follow it upon its dip beyond the verti-
cal side line of his location?
**6, On the facts presented by the record
herein, has the appellee the right to follow
its vein downward beyond its west side line
uid under the surface of the premises of ap-
peUant?"
Meaara, Charles 8. Thonuui, WiUiam H.
Bryant, and Harry H, Lee, for appellant:
One who discovers a lode on the national
domain and locates a claim therein, in ac-
cordance with the law, segregates the prem-
ises included within his ^undaries as com-
pletely from the public territory as though
the ^vemment had executed and delivered
to him a patent therefor. It is his private
property upon which no other citizen may in-
trude except to follow a vein underneath its
surface which outcrops somewhere else.
The statutory right of patent is permis-
sive merely. He may avail himself of it or
not. If he loes not his tenuie continues,
provided he shall annually expend $100 in
labor or improvements thereon. Failing to
do Uiis, his location lapses, and the ground
which it covers reverts to the government,
after which it becomes open to relocation.
Oacamp v. Crystal River Min. Co, 19 U. S.
App. 18, 58 Fed. Bep. 293, 7 C. C. A. 233 ;
Belk V. Meagher, 104 U. S. 279 (26: 735) ;
Lockhart v. Rollina (Idaho) 21 Pac 413;
Oarthe v. Hart, 73 Cal. 541; Harris v.
Equator Min, d Smelting Co, 8 Fed. Rep.
863; McFeters v. Pierson, 15 Colo. 201;
Keller v. Trueman, 15 Colo. 143.
One who enters upon ground staked and
claimed by a?iother under an assertion of dis-
eovery, and attempts to institute a claim of
his own, is a wrongdoer simply, and can be
ousted by action of ejectment.
Erhardt v.Boaro,! 13 U.S. 627 (28: 1113);
Craig v. Thompson, 10 Colo. 517 ; Thompson
V. Spray, 72 Cal. 528; North Noonday Mir^,
Co. V. Orient Min. Co. 6 Sawy. 290 , Weese v.
Barker, 7 CJolo. 178; Omar v. Soper, 11 Colo.
C80.
And if the point of discovery or the dis-
covery shaft of a lode claim is located upon a
previous valid and subsisting location the
iormer is invalid.
Chcillim v. Donnellan, 115 U. S. 45
(29: 348) ; Upton v. Larkin, 5 Mont. COO;
Armstrong v. Lower, 6 Colo. 393; Golden
Terra Min. Co. v. Mahler (Dak.) 4 Mining
74
Hep. 390; McGinnis v. Egbert, 8 Colo. 54;
Miller Y. Oiiard, 3 Colo. App. 278; Oirurdi,
Carson, 22 Colo. 346.
It is incumbent upon a junior locatci, if
he would avail himself of any advnnta^ to
be gained by the forfeiture or abandoniTient
of a conflicting senior location, to appropri-
ate the ground in conflict by relocatirg it
Failing to do so, he must stand or fall by the
merits of his iunior location as against the
earlier one, which must stand as to him as
though it had never been abandoned.
Lindley, Mines, S 363.
Whatever may pass by words of grant may
be excepted by like words, and the same con-
sequences attach to such an exception at
would have attached had it been a grant.
3 Washb. Real Prop. 435.
By an exception the grantor withdraws
from the operation of the conveyance some-
thing which is in existence and included qb-
der the terms of the grant.
1 Devlin, Deeds, § 221; Whitaker v.
Broum, 46 Pa. 197 ; RandaU ▼. Bandall, 59
Me. 338.
The end lines of a lode daim are those
which lie "crosswise of the general eonreeof
the vein," and these, to jostify a departnrt
from its vertical boundary, must be paralkL
Flagstaff Silver Min. Co. ▼. Tarhet, 96
U. a 463 (25: 253) ; Argentine Min. Co. v.
TerHhle Min. Co. 122 U. S. 478 (30: 1140) ;
Iron Silver Min, Co. ▼. Elgin Min. d BmeU-
ing Co. 118 U. &. 196 (30: 9^ ; King v. Amf
d 8. ConsolMin.Co.l62 U. a 222 (38: 419) ;
Last Chance Min. Co. ▼. Tyler Min. Co. 157
U. S. 683 (39:859).
But if the appellee should saooessfuUj eoB-
tend that the line of crossing is not an eid
line, or that its lines of shadow beyond H art
lines of substance for the purpose of itt
claim, we have then presented tne quest ioa
whether a daim, the vein within whidi
crosses an end and a side line, has any right
to go beyond its boundaries in the pnrsnit ei
its vein. There are a few cases arising qb-
der the act of 1872 in which such a right has
been recognized.
Colorado C. Consol Min. Co. ▼. Turek, 4
U. S. App. 290, 50 Fed. Rep. 888, 2 a C. A
67, 12 U. S. App. 85, 54 Fed. Rep. 262, 4 C. C
A. 318; Del Monte Min. d MUL Co. v. Nem
York d L. C. Min. Co. 66 Fed. Rep. 212; Last
Chance Min. Co. ▼. Tyler Min. Co. 15 U. S.
App. 456, 61 Fed. Rep. 557, 9 C. C. A. 613 ;
Consolidated Wyoming Oold Min. Co, v.
Champion Min. Co. 63 Fed. Rep. 540 ; Carson
City Gold d 8. Min. Co. ▼. North 8tar Min.
Co. 73 Fed. Rep. 598.
Wherever a mine owner asserts the risht
to enter into the land of his neighbor bv fol-
lowing the dip of his vein, the burden of
proof is upon nim to establish the existence
of all conditions made necessary to such
right by the Matute.
Iron Silver Min. Co. ▼. Campbell^ 17 Ojla
267; Stevens v. Williams (Odo.) 1 Mining
Rep. 557 ; Iron Silver Min, Co. v. Cheesman,
2 McCrary, 191; Iron Silver Min. Co. v.
Murphy, 3 Fed. Rep. 368; Hymatk ▼•
Wheeler, 29 Fed. Rep. 347.
171 U. &
1817.
Del Montb M. A H. Co. t. Last Chancs M. A M. (Jo.
Go-aa
Mean, J09I F. Valle and Edward 0.
Woloott, for appellee:
What are the "end lines'* of 4 lode mining
daim is to be determined, not by the linefl of
pttented surface, but by the lines of the
dsim as located.
Floifsiaff Silver Min. Co, v. Tarhet, 98 XJ.
S. 468 (26:256) ; Iron Silver Min. Co. v.
Elgin Min. d Smelting Co. 118 U. S. 206
(30:101)
If the apex of a vein enters a location
across one end line thereof, the locator will
own as much of the vein at any depth as he
owns of its apex, subject only to superior
rights of other apex claimants.
Del Monte Min. de Mill. Co. v. Iflew York d
L. C. Min. Co. 66 Fed. Rep. 212; Last Chance
Min. Co. Y. Tyler Min. Co. 157 U. S. 683,
695 (39: 859, 861) ; Flagstaff Silver Min. Co.
Y. Torbet, 96 U. S. 463, 468 (25: 253, 255) ;
Iron BUver Min. Co. v. Elgin Min. d Smelt-
ing Co. 118 U. S. 196, 207 (30: 98, 102) ;
Tyler Min. Co. v. Sweeney, 7 U. S. App. 463,
54 Fed. Rep. 284, 4 C. C. A. 320.
Where several overlapping claims are lo-
cated along the apex of the vein, the senior
claimant hold^ as much of the vein at any
depth as he holds of the apex within his loca-
tion. The next in rank holds as much of the
vein at anv depth as there is of its apex
within his location, except as to the portion
thereof owned by the first in rank; and so
on with subsequent claimants.
Iron Silver Min. Co. v. Elgin Min. d Smelt*
ing Co. 118 U. S. 206 (30: 102.)
Mr. Justice Brewer delivered the opinion
of tiie court:
The questions thus presented are not only
important but difficult, involving, as they do,
the construction of the statutes of the United
States in respect to mining claims. As lead-
ing up to a clearer understanding of those
statutea it may be well to notice the law in
existence prior thereto. The general rule of
the common law was that whoever had the
fee of the soil owned all below the surface,
and this commcm law it the general law. of
the stales and territories of the United States,
and, in tiie absence of specific statutory pro-
viffions or contracts, the simple inquiry as to
the extent of mining rights would be. Who
owns the surfooe? Unquestionably at com-
mon law the owner of the soil might convey
bis interest in mineral beneath the surface
withoui relinquishing his title to the sur-
isee, but the possible fact of a separotion be-
tween the ownership of the sur^e and the
ovner^p of mines beneath that surface,
gnming out of contract, in no manner
abridged the general proposition that the
owner of 4iie surface owned all beneath. It
is said by lindley, in his work on Mines (vol.
1, i 4,) that in certain parts of England and
[fl] Wales so-called *local customs were recog-
nized which modified the general rule of the
eonunon law, but the existence of such excep-
tkmo fbunded upon such local customs only
aeoentofttes the general rule. The Spanish
and Mexican minuu^ law confined the owner
of a mine to perpen<ucular lines on every side.
171 U. S.
Flagstaff Silver Mining Company v. Tarhet
(98 U. S. 463, 468 [25:253,255]; 1 Lindley
on Mines, § 13). The peculiarities of the
Mexican law are discussed by Lindley at
some length in the section referred to. It is
enough here to notice the fact that by the
Mexican, as by the common, law, the surface
rights limited the rights below the surface.
In the acquisition of foreign territory since
the establishment of this government, the
great body of the land acquired became the
property of the United States, and is known
as their "public lands." By virtue of this
ownership of the soil the title to- all mines
and minerals beneath the surface was also
vested in the govemracnt. For nearly a cen-
tury there was practically no legislation on
the part of Congress for the disposal of mines
or mineral lands. The statute of July 26,
1806 (14 Stat, at L. 251), was the first general
statute providing for the conveyance of mines
or minerals. Previous to that time it is true
that there had been legislation respecting
leases of mines, as, for instance, the act of
March 3, 1807 (2 Stat, at L. 448, § 5), which
authorized the President to lease any lead
mine in the Indiana territory for a term not
exceeding five years; and acts providing for
the sale of lands containing lead mines in
special districts (4 Stat, at L. 364; 9 Stat, at
L. 37, 146, 179) also such legislation as is
found in the act of February 27, 1865 (13
Stat, at L. 440) providing for a district and
circuit court for the district of Nevada, in
which it was said, in § 9, "that no possessory
action between individuals in any of the
courts of the United States for the recovery
of any mining title, or for damages to any
such title, slifdl be affected by the fact that
the paramoimt title to the land on which
such mines are, is in the United States, but
each case shall be adjudged by the law of
possession;" *that of May 5, 1866 (14 Stat. at [68]
L. 43), concerning the boundaries of the state
of Nevada, which provided that "all posses-
sory rights acquired by citizens of the United
States to mining claims, discovered, located,
and originally recorded in compliance with
the rules and regulations adopted by miners
in the Pah-Ranagat and other mining dis-
tricts in the territory incorporated by the
provisions of this act into the state of Ne-
vada, shall remain as valid subsisting min-
ing claims; but nothing herein contained
shall be so construed as ffranting a title in
fee to any mineral lands held by possessory
titles in the mining states and territories ;**
and the act of July 25, 1866 (14 Stat, at L.
242), which, granting to A. Sutro and his as-
signs certain privileges to aid in the construc-
tion of a tunnel, conferred upon the grantees
the right of pre-emption of lodes within
2,000 feet on each side of said timnel. Two
laws were also passed regulating the sale and
disposal of coal lands; one on July 1, 1864,
and one on March 3, 1865. (13 Stat, at L.
343, 529.)
Notwithstanding that there was no general
legislation on the part of Congress, the fact
of explorers searching the pubuc domain for
mines, and their possessory rights to the
75
63~<S6
BUPBBMB COUBT OF THB UnITBD StATBS.
Oct. TsHift,
nines bj them discovered, wms genermlly rec-
ognized, and the rules and customs of min-
ers in any particular district were enforced
as valid. As said by this court in Bparraw
V. Strong, 3 Wall. 97, 104 [18: 49, 50] i "We
know, fdso, that the territorial legislature
has recognized by statute the validity and
binding force of the rules, rep;ulations, and
customs of the mining districts. And we
cannot shut our eyes to the public history,
which informs us Uiat under tms legislation,
and not only without interference by the
national government, but under its implied
sanction, vast mining interests have grown
up, employing many millions of capital, and
contributing largely to the prosperi^ and
improvement of the whole country.'' See
also Forhea v. Gracey, 94 U. S. 762 [24: 313]
Jennison v. Kirk, 98 U. S. 463-469 [25 f240-
243] ; Br Oder v. Natoma Water d Min. Com-
pany, 101 U. S. 274-276 [26: 790,791] ; Man-
uel V. Wulff, 162 U. S. 605-510 [88:532-
534] ; Black v. Elkhom Mining Company, .163
U. S. 446, 449 [41: 221, 223].
The act of 1866 was, however, as we have
[68 J said, the first ^general legislation in respect
to the disposal of mines. The first section
provided "that the mineral lands of the pub-
lic domain, both surveyed and unsurveyed,
are hereby declared to be free and open to
exploration and occupation by all citizens of
the United States, and those who have de-
clared their intention to become citizens, siio-
iect to such regulations as may be prescribed
vy law, and subject also to the local customs
or rules of miners in the several mining dis-
tricts, so far as the same may not be in con-
flict with the laws of the United SUtes."
The second section gave to a 'claimant of
a vein or lode of quartz, or other rock in
place, bearing gold, eto., the right "to file in
the local land office a diagram of the same
• . . and to enter such tract and receive
a patent therefor, granting such mine, to-
gether with the right to foUow such vein or
lode with its dips, angles and variations, to
any depth, although it may enter the land ad-
joining, which land adjoining shall be sold
subject to this condition." The purpose here
manifested was the conveyance of the vein,
and not the conveyance of a certain area of
land within which was a vein. Section 8.
which set forth the steps necessary to be tak-
en to secure a patent and required the pay-
ment of $5 per acre for the land conveyed,
added: "But said plat, survey, or descrip-
tion shall in no case cover more than one vem
or lode, and no patent shall issue for more
than one vein or lode, which shall be ex-
pressed in the patent issued.** Nowhere was
there any express limitetion as to the amount
of land to be oonveved, the provision in S 4
being: "That no location nereafter made
shall exceed two hundred feet in length along
the vein for each locator, with an lulditicma!
daim foi discovery to the discoverer of the
lode, with the rignt to follow such vein to
any depth, with all ite dips, variations, and
angles, together with a reasonable quantity
of surface for the convenient working of the
•ame as fixed by local rules: And provided
76
further. That no person may make more than
one location on tne same lode, and not mora
than three thousand feet shi^ be taken in
any one claim by any association of persona.**
Obviously the stetute contemplated Uie pat-
enting of a certain ^number of feet of the par- [<
ticular vein claimed by the locator, no mat-
ter how irregular ite course, made no provi-
sion as to the surface area or the form of the
surface location, leaving Uie Land Depart-
ment in each particular case to grant so much
of the surface as was "fixed bv local rules,"
or was, in the absence of sucn rules, in ita
judgment necessary for the convenient work-
ins of the mine. The party to whom ihm
vein was thus patented was permitted to fol-
low it on ite dip to any extent, although
thereby passing imdemeath lands to which
the owner of the vein had no title.
As might be expected, the patente issued
under the stetute described surface areas
very different and sometimes irregular in
form. Often they were like a broom, there
being around the discovery shaft an amount
of ground deemed large enough for the con-
venient working of the mine, and a narrow
strip extending therefrom as the handle of
the broom. This strip might be straight or
in a curved or irregular une, following, as
was supposed, the course of the vein. Soms-
times uie surface claimed and patented was
a tract of considerable size, so claimed with
the view of including the apex of the vein«
in whatever direction subsequent explora-
tions might show it to run. And again,
where there- were local rules giving to ths
discoverer of a mine possessory righte in s
certain area of surface, the patent followed
those rules and conveyed a similar area.
Even imder this stetute, although ite ex-
press purpose was primarily to grant the sin-
gle vein, yet the righte of the patentee be-
neath the surface were limited and con-
trolled by his righte upon the surface. If, is
fact^ as shown by suosequent exploration!,
the vein on ite course or strike departed from
the boimdary lines of the surftuse location,
the point of departure was the limit of right.
In otiier words, he was not entitied to the
claimed and patented number of feet of the
vein, irrespective of the question whether the
vein in ite course departed from the lines of
the surface location.
llie litigation in respect w the Flagstaff
mine in Utah illustrates thLi. There was a
local custom giving to the locator of a mine
50 feet in width on either side of the course
of the vein, and the Iflagstetf patent granted
a superficies *100 feet wide by 2,000 feet long, [SS]
with the right to follow the vein described
therein to the extent of 2,600 feet. It turned
out that the vein, instead of running through
this parallelogram lengthwise, crossed the
side iLnes, so that there was really but 100
feet of the length of the vein within the sur-
face area. On either side of the FlagstefT
ground were other locations, through which
the vein on ite course passed. As against
these two locations the owners of the Flap-
steff claimed the right to follow the vein on
ite course or strike to the full extent of 2,600
itl U. S
1W7.
Dbl Moktb M. a M. Co. y. Last Changs M. A M. Co.
66-67
ThlB was denied bj the supreme court
of Utah. MoCormiok ▼. Vamea, 2 Utah, 355.
In that case the controyersy was with the lo-
cation on the west of ihe Flagstaff. The de-
dflion of that court in respect to the contro-
▼eny with the location on the east of the
Plugstaff is not reported, but the case came
to this court. Flagstaff Silver Mining Com-
pony ▼. TarUt, 08 U. S. 463 [25: 253]. In
the course of the opinion (pages 467, 468)
[25:265] it was said:
**lt was not the intent of the law to allow a
person to make his location crosswise of a vein
so that the side lines shall cross it, and there-
by give him tiie richt to follow the strike of
the vein outside of his side lines. That would
subvert the whole system sought to be estab-
lished by the law. If he does locate his claim
in that way, his rights must be subordinated
to the rights of those who uave properly lo-
cated on the lode. Their right to follow the
dip outside of their side lines cannot be inter-
fered with by him. His right to the lode only
extends to so much of the lode as his claim
covers. If he has located crosswise of the
lode, and his claim is only 100 feet wide, that
100 feet is all he has a right to."
These decisions sliow that while the express
purpose of the statute was to grant the vein
for so many feet along its course, yet such
mnt could only be made effective by a sur-
Skce location covering the course to such ex-
tent. This act of 1866 remained in force only
six years, and was then superseded by the
act of Hay 10, 1872 (17 SUt. at L. 91), found'
in the Revised Statutes, §§ 2310 and follow-
ing. This is the statute which is in force to-
[66] day, and under which the controversies *in
this case arise. Section 2319, Bevised Stat-
utes (corresponding to 9 I of the act of
1872), reads:
"All valuable mineral deposits in lands be-
longing to the United States, both siureyed
and uQSurveyed, are hereby declared to be
free and open to exploration and purchase,
and the lands in which they are found to oc-
cupation and purchase, by citizens of the
United States and those who have declared
their intention to become such, under regula-
tions prescribed by law, and according to the
local customs or rules of miners in the several
mining districts, so far as the same are appli-
cable and not inconsistent with the law of
the United States."
It needs no argument to show that if this
were the only section bearing upon the ques-
tion, patents for land containing mineral
wouJd, except in cases affected by local ciis-
toms and rules of miners, be subject to the
ordinary rules of the common law, and would
convey title to only such minerals as were
found beneath the surface. We therefore
turn to the following sections to see what ex-
tralateral rights are <^ven and upon what
contlitions tncy may be excrcit^ed. And it
most be borne in mind in considering the
questions presented that we are dealing sim-
ply with statutory rights. T&ere is no show-
171 V. S.
ing of any local customs or rules affecting the
rights defined in and prescribed by the stat-
ute, and beyond the terms of the statute
courts may not go. They have no power of
legislation. They cannot assume tne exist-
ence of any natxural equity, and rule that by
reason of such equity a party may follow a
vein into the territory of his neighbor, and ap-
propriate it to his own use. If cases arise for
which Congress has made no provision, the
courts cannot supply the defect, (ingress
having prescribed the conditions upon which
extralateral rights may be acquired, a party
must bring himself within those conations, or
else be content with simply the mineral be-
neath the surface of his territory. It is un-
doubtedly true that the primary thought of
the statute is the disposal of the mines and
minerals, and in the interpretation of the stat-
ute this primary purpose must be recognized
and given effect. Hence, whenever a party
has acquired the title to ground within whose
surface area is the apex of a vein with a tew
or many feet along •its course or strike, a [67J
right to follow that vein on its dip for the
same length ought to be awarded to him if it
can be done, and only if it can be done, under
any fair and natural construction of the lan-
guage of the statute. If the surface of the
ground was everywhere level and veins con-
stantly pursued a straight line, there would
be little difficulty in legislation to provide lor
all contingencies; but mineral is apt to be
found in mountainous regions, where great ir-
regularity of surface exists, and the course or
strike of the veins is as irregular as the sur-
face, so that many cases may arise in which
statutory provisions will fail to secure to a
discoverer of a vein such an amount thereof
as equitably it would seem he ought to re-
ceive. We make these observations because
we find in some of the opinions assertions by
the writers that they have devised rules which
will work out equitable solutions of ail diffi-
culties. Perhaps those rules may have all
the virtues which are claimed for them, and
if so it were well if Congress could be per-
suaded to enact them into statute; but be
that as it may, the question in the courts is
not. What is equity? but, What saith the
statute? Thus, for instance, there is no in-
herent necessity that the end lines of a min-
ing claim should be parallel, yet the statute
has so specifically prescribed. (9 2320.) It
is not within the province of the courts to ig-
nore such provision, and hold that a locator,
failing to comply with its terms has all the
rights, extralateral and otherwise, which ha
would have been entitled to if he had com-
plied, and BO it has been adjudged. Iron 8iU
ver Mining Company v. Elgin Mining de 8,
Company, 118 U. S. 106 [30:08J.
This case, which is often called the 'horse-
shoe Case," on account of the form of the lo-
cation, is instructive. The following dia-
gram, which was in the record in that case,
illustrates the scope of the decision:
77
9UPU£MS COUBT OF THJS UhIXKD SXATBii
Oct. Tiuim.
I
SCAL£' 200 f£i7 • / MCH
Tha locator claimed in his application for a
patent the lines 1, 14 and 5, 6, as the end
fines of his location, and because of their par-
allelism, that he had complied with the letter
of the statute, but the court ruled against
him, saying in the opinion (page 208 [80:
102]):
"The exterior lines of the Stone claim
r M] formed a curved *fiffure somewhat in the shape
of a horseshoe, and its end lines are not and
cannot be made parallel. What are marked
on the plat as end lines are not such. The
one between numbers 5 and 0 is a side line.
The draughtsman or surveyor seems to have
hit upon two parallel lines of his nine-sided
figure, and apparently for no other reason
than their parallelism called them end lines.
'^e are therefore of -opinion that the ob-
• Jection that, by reason of the surface form of
the Stone daim, the defendant could not fol-
low the lode existing therein in its downward
course beyond the l&es of the claim, was well
taken to the offered proof."
[60] *It is true the court also observed that if
the two lines named by the locator were to
be considered the end lines, no part of the
vein in controversy fell "within vertical
planes drawn down throuprh those lines, con-
tinued in their own direction." But notwith-
standing this observation the point of the de-
cision was that the lines, which were the end
lines of the location as made on the surface of
78
the grotmd, were not paralld, and that tMa
defect could not be obviated by calling that
which was in fact a side line an end line.
This is made more clear by the observationa
of the Chief Justice, who. with Mr. Justio*
Bradley, dissented, in which he said:
"I cannot agree to this judgment In my
opinion the end lines of a mining location
are to be projected parallel to eacu other and
crosswise of the general course of the vein
within the surface limits of the location, and
whenever the top or apex of the vein is found
within the surface lines extended vertically
downwards, the vein may be followed out-
side of the vertical side lines. The end Unea
are not necessarily those which are marked
on the map as such, but they may be pro-
leeted at tne extreme points where the apex
leaves the location as marked on the surface."
In other words, the oouit took the location
as made on the surface by the locator, de-
termined from that what were the end lines,
and made those surface end lines controlling
upon hiB rights, and rejected the contention
that it was proper for the court to ignore the
surfisce location and create for the locator a
new locattion whose end lines should be cross-
wise of the general course of the vein aa
finally determined by explorations. That
this decision and that in the Tarhet Case,
9upra, were correct expositions of the statute,
and correctly comprehended the intent of
171 V. S.
1897.
DsL MoNTB M. & M. Co. V. LasT Cbakob M. & M. Co.
6»-7»
CongreoB therein, is evident from the fact
that, although they were announced in 1886
and 1878, reapectivelj. Congress has not seen
fit to change the language of the statute, or
in any manner to inc&cato that any different
measure of rights should be awarded to a
mining locator.
Wil^ these preliminary observations we
pass to a eonsideratiOQ of the questions pio-
poundedi The fint is:
'*May any of the lines of a Jimior-loda lo-
[70] cation be laid *within, upon, or across the sur-
laoe of a yalid senior location for tha purpose
of definJeng for or securing to such junior lo-
cation underground or extralatenJ rights not
in oonfliot with any rights of the senior loca-
iaont"
By § 2310, quoted abore, the mineral de-
posita wMcb are declared to be open to ex-
ploration and purchase are those found in
tanda belonging to the United States,' and
such lands are the only ones open to oocu-
rion and purchase. While this is true, it
alao true that until the legal title has
paseed the public lands are within the juris-
diction of the Land Department, and, al-
though equitable rights may be established,
Oongress retains a certain measure of control.
Michigan Land d Lumber Company T. Rust,
168 U. S. 589 [42: 591]. The grant is, as is
often said, in process of administration. Pass-
ing to 9 2320, beyond the recognition of the
goveming force of customs and regulations
and a declaration as to the extreme length
and width of a mining claim, it is provided
that ''iio location of a mining claim shall be
mada until the discovery of the vein or lode
within the limits of the claim located. . . .
The end lines of each claim shall be parallel
to each other."
SectaoQ 2322 gives to the locatofs of all
mining locations, 80 long as they comply with
laws of the United States, and with state, ter-
ritorial, and local regulations not in conflict
therewith, "the exclusive right of possession
and enjoyment of all the surface included
within the lines of their locations, and of all
veins, lodes, and ledges throughout their en-
tire depth, the top or apex of which lies in-
side of such surfiBLce lines extended downward
vertically, although such veins, lodes, or
ledges may so far depart from a perpendicu-
lar in their course downward as to extend
outside the vertical side lines of such surface
k>cations. But their right of possession to
such outside parts of such veins or ledges
■hall be confined to such portions thereof as
He between vertical planes drawn downward
as above described, through the end lines of
their locations, so continued in their own di-
rection that such planes will intersect such
exterior parts of such veins or ledges. And
nothing in this section shall authorize the lo-
prijcator or possessor *of a vein or lode which
extends in its downward course beyond the
vertical lines of his claim to enter upon the
snr^ce of a daim owned or possessed by an-
other."
Section 2324 in terms authorizes "the min-
ers of each mining district to make regula-
tions not in conflict with the laws of the
171 U. S.
United States, or with the laws of the state
or territory in which the district is situated,
governing the location, manner of recording,
amount of work necessary to hold possession
of a mining claim, subject to the following re-
quirements: The location must be distinctly
marked on the ground so that its boimdaries
can be readily traced. All records of mining
cUdms hereafter made shall contain the name
or names of the locators, the date of the looa*
don, and such a description of the daim or
claims located by reference to some natural
object or permanent monument as will iden-
tify the claim. On each claim located after
the tenth day of May, eighteen hundred and
seventy-two and until a patent has been ia-
sued therefor, not less than one hundred dol-
lars' worth of labor shall be performed or im-
provements made during each year. On all
claims located prior to the tenth day of May»
eighteen hundred and seventy-two, ten dot*
lars' worth of labor shall be performed or im-
provements made by the tenth day of June,
eighteen hundred and seventy-four, and each
year thereafter, for each one hundred feet in
length along the vein until a patent has been
issued therefor; but where such claims are
held in common, such expenditure may be
made upon any one daim; and upon a failure
to comply with these conditions, the claim or
mine upon which such failure occurred shall
be open to relocation in the same manner at
if no location of the same had ever been
made, provided that the original locators,
their heirs, assigns, or legal representatives,
have not resum^ work upon the claim after
failure and before such location."
Section 2325 provides for the issue of a
patent. It reads:
"A patent for any land claimed and located
for valuable deposits may be obtained in the
following manner: Any person, association,
or corporation authorized to locate a claim
under this chapter, having claimed and lo-
cated a piece oi land *for such par poses who [78]
has or have, complied with the terms of ttds
chapter, may file in the proper land office an
application for a patent, under oath, showing
such compliance, together with a plat and
field notes of the claim or claims in common,
made by or under the direction of the United
States surveyor general, showing accurately
the boundaries of the claim or claims, which
shall be distinctly marked by monuments on
the ground, and shall post a copy of such
plat, together with a notice of such applica-
tion for a patent, in a conspicuous place on
the land embrac^ in such plat previous to
the filing of the application for a patent, and
shall file an affidavit of at least two persons
that such notice has been duly posted, and
shall file a copv of the notice in such land
office, and shall thereupon be entitled to a
patent for the land, in the manner follow-
ing: The register of the land office, upon
the filing of such application, plat, fidd
notes, notices, and affidavits, shall publish a
notice that such application has been made,
for the period of sixty days, in a newspaper
to be by him designated as published nearest
to such claim; and he shall also post such no*
79
7»-79
SUPRBMB OOUBT OF THB UhITBD StATBS.
OoT. Tsnc,
tioe in his office for the same period. The
claimant, at the time of filing this applica-
tion, or at any time thereafter, within the
aizty days of publication, shall file with the
register a certificate of the United States
surveyor general that five hundred dollars'
worth of labor has been expended or improve-
ments made upon the claim by himself or
grantors; that the plat is correct, with such
further description by such reference to nat-
ural objects or permanent monuments as
ahall identify the daim, and furnish an ac-
curate descnption, to be incorporated in the
patent. At the expiration of the sixty days of
publication the claimant shall file Ms affida-
vit, showing that the plat and notice have
becm posted in a conspicuous place on the
claim during such period of publication. If
no adverse claim shall have been filed with
tiie reflister and the receiver of the proper
land office at the expiration of the sixty
days of publication, it shall be assumed that
the applicant is entitled to a patent, upon
the payment to the proper officer of five dol-
^^ lars per acre, and that no adverse daim ex-
|T8]i8ts; and thereafter no ^objection fro^i third
parties to the issuance of a patent shall be
heard, except it be shown that the applicant
has failed to comply with the tenns of this
chapter."
Section 2320 is as follows:
"Where an adverse claim is ffied during the
period of publication it shall be upon oath
of the person or persons making the same,
and shall show the nature, boundaries, and
extent of such adverse daim, and all pro-
ceedings, except the publication of no-
tice and making and filing of the affidavit
thereof, diall be stayed until the con-
troversy shall have been settled or de-
cided by a court of competent Jurisdiction,
or the adverse daim waived. It shall
be the duty of the adverse claimant,
within thirty days after filing his claim, to
conmience proceedings in a court of compe-
tent jurisdiction to determine the question
of the right of possession, and prosecute the
same wiui reasonable diligence to final judg-
ment; and a failure so to do shall be a waivei
of his adverse claim. After such judgment
shall have been rendered, the party entitled
to the possession of the claim, or any portion
thereof, may, without giving further notice,
file a certified copy of the judgment roll with
the register of the land office, together with
the certificate of the surveyor general that
the requisite amount of labor has been ex-
pended or improvements made thereon, and
the description required in other cases, and
shall pay to the receiver five dollars per acre
for his claim, together with the proper fees
whereupon the whole proceedings and thf
Judgment roll shall be certified by the reg
tster to the Commissioner of the General
lAnd Office, and a patent shall issue there-
on for the claim, or such portion thereof, as
the applicant shall appear, from the decision
of the court, to rightly possess. If it ap-
pears from the dedsion of the court that sev-
eral parties are entitled to separate and dif-
ferent portions of the daim, each party may
pay for his portion of the daim, with the
proper fees, and file the certificate and de-
scription by the surveyor general, whereupon
the register shall certify the proceedings and
judgment roll to the Commissioner of the
General Land Office, as in the preceding case,
and patents shall issue to the several partiee
according to their respective rights. Noth-
ing herein contained *shall be construed to [741
prevent the alienation of the titia conveyed
by a patent for a mining daim to any person
whatever."
These are the only provisions of the statute
which bear upon the question presented.
The stress of the argument in favor of a
negative answer to this question lies in the
contention that by the terms of the statute
exdusive possessory rights are granted to the
locator. Section 2322 declares that the loca-
tors "shall have the exdusive right of pos-
session and enjoyment of all the surface in^
duded within the lines of their locations,"
and negativdy, that "nothing in this section
shall authorize the locator or possessor of a
vein or lode which extends in Its downward
course beyond the vertical lines of his daim
to enter upon the surface of a daim owned
or possessed by another.** Hence, it is said
that affirmativdy and negativdy is it pro-
vided that the locator shall have exdusive
possession of the surface, and that no one
shall have a right to disturb him in such pos-
session. How, then, it is asked, can anyone
have a right to enter upon such location for
the purpose of making a second location? If
he does so he is a trespasser, and it cannot be
presumed that Congress intended ti^t any
rights should be created by a trespass.
We are not disposed to undervalue the
force of this argument, and yet are con-
strained to hold that it is not controlling. It
must be borne in mind that the location is
the initial step taken by the locator to indi-
cate the place and extent of the surface which
he desires to acquire. It is a means of giving
notice. That which is located is called in §
2320 and elsewhere a "claim" or a "mining
claim." Indeed, the words "dsim" and "lo-
cation" are used interchangeably. This lo-
cation does not come at the end of the pro-
ceedings, to define that which has been ac-
quired after all contests have been adjudi-
cated. The location, the mere making of a
claim, works no injury to one who has ac-
quired prior rights. Some confusion may
arise when locations overlap each other and
indude the same ground, for then the right
of possession becomes a matter of dispute,
but no location creates a right ^superior to [75)
any previous valid location. And thesra pos-
sessorv rights have always been recognized
and disputes concerning them settied m the
courts.
It will also be noticed that the locator is
not compelled to follow the lines of the gov-
ernment surveys, or to make his location in
any manner correspond to such 8urve3rs. The
location may, indeed, antedate the public sur-
veys, but whether before or after them, the
locator places his location where, in his judg-
ment, it will cover the underlying vein. The
171 IT. S.
1897.
Dbl Hontb M. a M. Co. ▼. Last Cua^^cb M, & M. Co.
r5-nr
law nf^uirM that the end lines of the daim
•hall be pai-alleL It will often hoppen that
loeaiioua which do not overlap are no placed
aa to leave between theui some irregular par-
ed of ground. \^ithin tliat, it being no mure
than one locator it entitled to take, may be
discovered a mineral vein and the discoverer
deaire to take the entiia surface, and yet it
be impossible for him to do so and make his
end Imes parallel unless, for the mere pur-
poses of location, he be permitted to place
tlioae end lines on territory already claimed
by the prior locators.
Again, the location upon the surface Is
not nmda with a view of getting benefite from
tho use of that surface. The purpose is to
reach the vein which is hidden m the depths
of the earUi, and the location is made to
measure rights beneath the surface. The
area of surface is not the matter of moment;
the thing of value is the hidden mineral be-
low, and each locator ought to be entitled to'
make his location so as to reach as much of
the unappropriated, and perhaps only partial-
ly discovered and traced ^ein, as ia possible.
Further, Congress has not prescribed how
the location shall be made. It has simply
provided that it "must be distinctly marked
on the ground so that its boundaries can be
readily traced," leaving the details, the man-
ner of marking, to be settled by the regula-
tions of each mining district Whether such
location shall be made by stone posts at the
four comers, or by simply wooden stakes, or
bow many such poets or stakes shall be placed
along the sides and ends of the location, or
what other matter of detail must be pursued
in order to perfect a location, is left to the
varring judgments of the mining districts.
Sneh locations, such markings on the ground,
{ 79] are *not always made by experienced survey-
ors. Indeed, as a rule, it has been and was to
be cxpeoted that such locations and mark-
iua would be made by the miners them-
aovea, — men inexperienced in the matter of
enrv^ing, and so in the nature of things
there must frequently be disputes as to
whether imy particular location was suffi-
ciently and distinctly marked on the surface
of tlie ground. Especially is this true in lo-
calities where the Around is wooded or
broken. In such loc«uities the posts, stakes,
or other particular marks required by the
rales and regulations of the mining diiBtrict
may be placed in and upon the ground, and
yet» owing to the fact that it is densely wood-
ed, or that it is very broken, such marks may
be perceived by the new locator, and his
location marked on the ground in ignor-
of the existence of any prior claim.
And in all places posts, stakes, or other mon-
nmenta, altnough sufficient at first and dear-
ly visible^ may be destroyed or removed, and
nothing remain to indicate the boundaries
el the prior location. Further, when any
valuable vein has been discovered, naturally
many locators hurry to seek by early loca-
tiooa to obtain some part of that vein, or to
iliw»Tfir and appropriate other veins in that
vicinity. Experience baa shown that around
any new discovery there quickly giows up
171 V. S. U. 8., Book 43. )
what is called a mining camp, and the con*
tiguous territory is prospected and locations
are made in every direction. In the haste of
such locations, tne eagerness to get a prior
right to a portion of what is supposed to be
a valuable vein, it is not strange that many
conflicting locations aie made, and, indeed, in
every mining camp where large discoveries
have been made locations, in faot, overlap
each other again and again. MoEvoy v. By-
man, 26 Fed. Rep. 696-600. This confusion
and conflict is. something which must have
been expected, foreseen, — something which in
the nature of things would happen, and the
legislation of Congress must be interpreted in
the light of such foreseen contingencies.
Still again, while a location is required by
the statute to be plainly marked on th^ sur-
face of the ground, it is also provided in
§ 2324 that, upon a failure to comply with
certain named conditions, the claim or mine
shall be open to relocation. •Now, although f 77)
a locator finds distinctly marked on the sur-
face a location, it does not necessarily follow
therefrom that the location is still valid and
subsistinff. On the contrary, the ground may
be entir^y free for him to make a location
upon. The statute does not provide, and it
cannot be contemplated, that he is to wait
until bv judicial proceedings it has become
established that the prior location is invalid
or has failed before he may make a location.
He ought to be at liberty to make his loca-
tion at once, and thereafter, in the manner
provided in l^e statute, litigate, if necessary,
the validity of the other as well as that of
his own location.
Congress has in terms provided for the set-
tlement of disputes and conflicts, for by
§ 2325, when a locator makes application for
a patent (thus seeking to have a final deter-
mination by the Land Department of his
title), he is required to make publication and
give notice so as to enable anyone disputing
his claim to the entire ground within his lo-
cation to know what he is seeking, and any
party disputing his right to all or any part
of the location may institute adverse proceed-
ings. Then by § 2326 proceedings are to be
commenced in some appropriate court, and
the decision of that court determines the rela-
tive rights of the parties. And the party
who by that judgment is shown to be "enti-
tled to the possession of the claim, or any por-
tion thereof,'' mav present a certified copy of
the judgment roll to the proper land officera
and obtain a patent 'ior'the claim, or such
portion thereof, as the applicant shall appear,
from the decision of the court, to rightfully
possess." And tliat the daim may m found
to belong to different persons, and that the
right of each to a portion may be adjudicat-
ed, is shown by a subsequent sentence in that
same section, which provides that '*if it ap-
pears from a decision of the court that sev-
eral parties are entitled to separate and dif-
ferent poitions of the claim, each party may
pay for his portion of the claim . . . and
patents shall issue to the several parties ac-
cording to their respecUve rights." So it dis-
tinctly appears that, notwithstanding the
61
(
77-80
SurilSMB COUBT OP THE UNITED SXATEfl,
Oct. Tebm^
)
provision in reference to the rights of the lo-
cators to the possession of the surface ground
within their locations, it was perceiv^ that
[78] 'locations would overlap, that conflicts would
arise, and a method is provided for the ad-
justment of such disputes. And this, too, it
must be borne in mind, iff a statutory pro-
vision for the final determination, and is sup-
plementary to that right to enforce tempo-
rary possession, which, in accordance with
the rules and regulations of Tnining districts,
has always been recognize.l.
This question is not foreclosed by any de-
cisions of this court as suggested by counsel.
It is true there is language in some opinions
which, standing alone, seems to sustain the
contention. Thus, in Belk v. Meagher, 104
^ U.^S. 279, 284 [26: 736, 737], it is said:
'^Mining claims are not open to relocation
until the rights of a former locator have come
to an end. A relo'cator seeks to avail him-
self of mineral in the public lands which an-
other has discovered. This he cannot do un-
til the discoverer has in law abandoned his
claim, and left the property open for another
to take up. The nght of location upon the
mineral lands of the United States is a privi-
lege granted b^ Congress, but it can only be
exercised wiihm the limits prescribed by the
grant. A location can only be made where
the law allows it to be done. Any attempt
to go beyond that will be of no avail. Hence
a relocation on lands actually covered at the
time by another valid and subsisting location
is void; and this not only against the prior
locator, but all the world, because the law al-
lows no such thing to be done."
And again, in Owillim v. Donnellan, 115
U. S. 45, 49 [29 : 348, 349] :
''A valid and subsisting location of mineral
lands, made and kept up in accordance with
the provisions of the statutes of the United
States, lias the effect of a grant by tne United
States of the right of present and exclusive pos-
session of the lands located. If, when one enters
on land to make a location, there is another
location in full force, which entitles its owner
to the exclusive possession of the land, the
first location operates as bar to the second."
The question presented in each of those
cases was whether a second location is effect-
ual to appropriate territory covered by a prior
subsisting and valid location, and it was held
|79] it is *not. Of the correctness of those deci-
sions there can be no doubt. A valid location
appropriates the surface, and the rights given
by such location cannot, so long as it remains
in force, be disturbed by any acts of third
parties. Whatever rights on or beneath the
surface passed to the first locator can in no
manner be diminished or affected by a subse-
quent location. But that is not the question
here presented. Indeed, the form in which it
is put excludes any impairment or disturb-
ance of the substantial rights of the prior lo-
cator. T'he question is whether the lines of a
junior-lode location may be laid upon a valid
senior location for the purpose of defining or
fecuring "underground or extralateral rights
not in conflict with any rights of tne senior
loca^on." in other words, in order to com-
82
ply with the statute, which requires that th*
end lines of a claim shall be parallel, and in
order to secure all the unoccupied surftuie to
^vhich it is entitled, with all the underground
rights which attach to possession and owner*
ship of the surface, may a junior locator place
an end line within the limits of a prior loca-
tion?
In that aspect of the question the decisions
referred to, although the language employed
is general and broM, do not sustain the con-
tention of counseL l*his distinction is recog*
nized in the text books. Tlius in 1 Lindley
on Mines, S 303, the author says:
"As a mining location can only be carved
out of the unappropriated public domain, it
necessarily loilows that a subsequent loca^tor
may not invade the surface territory of his
neighbors and include within his botindariee
any part of a prior valid and subsisting loca-
tion. But conflicts of surface area are more
than frequent. Many of them arise from hon-
est mistake, others from premeditated design.
In both instances the question of priority c^
appropriation is the controlling element wnidi
determines the rights of the parties. Two lo-
cations cannot legally occupy the same space
at the same time. These conflicts sometimee
involve a segment of the same vein, on ite
strike; at others, they involve the dip bound-
ing planes underneath the surface. More fre-
quently, however, they pertain to mere over-
lapping surfaces. The *same principles of law [80]
apply with equal force to all classes of cases.
Such property rights as are conferred by a
valid prior location, so long as such location
remains valid and subsisting, are preserved
from invasion, and cannot be infringed or im-
paired by subsequent locators. To the ex-
tent, therefore, that a subsequent location in-
cludes any portion of the surface lawfully ap-
propriated and held by another, to that ex-
tent such location is void."
It will be seen that while the author denies
the right of a second locator to enter upon the
ground segregated by the first location, he
recognizes the fact hat overlapping locations
are frequent, and declares the invalidity of
the second location so far as it affects the
rights vested in the prior locator, and in that
he follows ths cases from which we hare
quoted.
The practice of the lAnd Department bee
been in narmony with this view. The patsnte
which were issued in this case for the Last
Chance and New York claims give the entire
boundaries of the original locations, and ex-
cept from the ffrant thote portions included
within prior valid locations. So that on the face
of each patent appears the original survey
with the parallel end lines, the territory
granted and the territory exduded. The in-
structions from the Land Department to the
surveyors general have been jgenerally in har-
mony with this thought. Thus, in a letter
from the Commissioner of the Land Office to
the surveyor general of Colorado, of date
November 5, 1874, reported in 1 Copp's Land
Owner, p. 133, are these instructions:
"In this connection I would state that the
surveyor general has no jurisdiction in the
171 V. S.
DaL MoiRa H. A U. Co. ▼. Lur Chakcb H. A M. Co.
ThU wM denied by the rapreme court
i»h. MoOormiek V. Fomw, 2 UUh, 358.
At nee the contTOveray wu with tbe lo-
D on the weat ol ihe Flag8U(T. The de-
a of that court in reapect to the conlro-
r with the location on the eut of the
itaff is not reported, but the caoe eune
U oourt. Flagstaff Biloer JUning Com-
f V. Tarbei, 08 IT. 3. 463 [25: 263]. In
couTw of the opinion (page* *V1, 468)
£55] it WBA uld:
t was not the intent ot the law to allow a
jn to make hii location crowwiae ot aTein
lat the lide lines shall otoh it, and there-
ive him the risht to follow the strike of
rwi outside of his side lines. That would
Brt the whole system souabt to be estab-
d by the law. If be does locate hie claim
lat way, his rights must be subordinated
He rights of those who uave property lo-
i on the lode. Their right to follow the
}Utside ot their side tines cannot be int«r-
1 with by him. Uis right to the lode only
nds t« so much of the lode as hla claim
TB. It he has located crouwiee of tbe
, and his claim is onlv 100 <eet wide, that
feet Is all be has a right to."
teas decisions abow that while the expreaa
KMe ot the statute was to grant the vein
so many teet along its course, yet such
it could only be made effective by a sui^
location covering the course to such ex-
, This act of IStW remained in force only
years, and was then superseded by the
of May 10, 1872 (17 Btat. at L. 91), found
he Revised Statutes, H 2319 and (ollow-
This ia the statute which is in force to-
, and under which the conLroveraiei *in
«u ■rise. Section 2319, Hevisad Flfat-
iponding to 1 1 ot the act of
Wl valuable mineral depoaits In lands be-
;ing to the United Statea, both surveyed
uasurveyed, are hereby declared to be
and open to exploration and purchase,
the lands in which they are found to oc-
ition and purchase, by citizens of the
t«d Statea and those who have declared
r intention to become such, under regula-
s prescribed by law, and according to the
1 customs or rules of miners in the several
ing districts, so far as the aame are appll-
le and not inconsistent with tbe law of
United Statea."
L needs no argument to show that if this
B the only section bearing upon the quea-
L, patents for land containing nuDcral
dd, except in cases affected by local cus-
is and Tutea of miners, be subject to the
inary rules ot the common law, and would
vey title to only such minerals aa were
nd beneath the surface. We therefore
n to tbe following sections to see what ex-
ateral rights are given and upon what
ilitioiu thiiy may be exorcited. And it
st be borne in mind in conaidering the
stions presented that we are dealing aim-
with atatutoiy right*. Tnere is no abovT'
1U.S.
ing of any local cuatoma or rulea affecting tbe
ence of any natiu^ equi^, and rule that by
reason ot auch equity a party may toUow a
vain into the tarritory of his neighbor, and ap-
propriata it to his own use. If cases arise lor
which Congress baa made no provision, the
extralateial rights mav be acquired, a party
must bring himself within those conditions, or
else be content with simply the mineral be-
neath the surface of his t^ritory. It is un-
doubtedly true that the primary thought ol
the statute is the diapoaal ot tbe minea and
minerals, and in the interpretation of the atat-
this primary purpose must be recogniied
and given effect. Hence, whenever a party
acquired the title to ground within whose
'ace area is tbe apex ot a vein with a tew
or many feet along *its course or atrikc, a [61
right to follow that vein on its dip for tbe
same length ought to be awarded to him If it
can be done, and only if it can be done, under
any fair and natural construction of tbe lan-
guage ot the statute. If tbe surface ot the
ground was everywhere level and veins con-
stantly pursued a straight line, there would
be litUe difficulty in legislatinn to provide tor
all contingencies; but mineral is apt to be
found in mountainous regions, where great ir-
regularity ot surface exists, and the course or
strike of the veins is aa irregular as the sur-
face, BO that many cases may arise in which
statutory provisions will fail to secure to B
discoverer of a vein such an amount thereof
aa equitably it would seem be ought to re-
ceive. We make these observations because
we find in some of the opinions assertions by
the writers that they have devised rules which
will work out equitable solutions of all diffi-
culties. Perhaps those rules may have all
the virtues which are claimed for them, and
if so it, were well if Congress could be per-
suaded to enact them into statute; hut be
that as it may, the question in the courts is
not. What is equity! but, What saith the
statute! Thus, for instance, there is no in-
herent neceaaity that the end lines of a mia-
ing claim should be parallel, yet the statute
' 18 BO Specifically prescribed. (S 2320.) It
., not within the province of the courts to ig-
nore such proviBion, and bold that a locator,
failing to comply with its terms has all the
rights, extralaterel and otherwise, which he
would have been entitled to if he bad com-
plied, and so it has been adjudged. Iron Sil-
ver Mining Company v. Elgin Mining i 8.
Comfany, 118 U. B. 196 [30:9SJ.
'I'his case, which is often called tbe "horse-
shoe Case," on account of tbe torm of the lo-
cation ia instructive. The following dia-
gram, which waa in the record in that case,
Oluabatea tbe acope ot the deciaioD:
T7
6a-86
SuPRRMB Court of the United States.
Oct. Term,
I
emptor, or it may not be known thai the set-
Uementa are on the same quarter."
The distinction thus suggested is pextineni
here. A party who is in actual possession of
a valid location may maintain that possession
and exclude everyone from trespassing there-
on, and no one is at liberty to forcibly disturb
his possession or enter upon the premises. At
the same time the fact is also to be reooff-
nized that these locations are generally made
upon lands open, unindosed, and not subject
to any full actual occupation, where the Um-
iito of possessory rights are vague and uncer-
tain and where the validity of apparent loca-
tions is unsettled and doubtful. Under those
circumstances it is not strange— on the con-
trary it is something to be expected, and, as
we have seen, is a common experience — that
conflicting locations are made, one overlap-
ping another, and sometimes the overlap re-
peated by many different locatioois. And
while in the adjustment of those conflicts the
rights of the first locator to the surface with-
[84] in his location, as well as to veins * beneath
his surface, must be secured and confirmed,
why should a subsequent location be held ab-
solutely void for all purposes and wholly ig-
nored? Recognizing it so far as it establishes
the fact that the second locator has made a
claim, and in making that claim has located
parallel end lines, deprives the first locator of
nothing. Certainly, if the rights of the prior
locator are not infringed upon, who is preju-
diced by awarding to the second locator all
the benefits which the statute gives to the
making of a daim? To say that t^e subse-
quent locator must — when it appears that his
lines are to any extent upon territory cov-
ered by a prior vaUd location — go through
the form of making a relocation simi^y works
delay and may prevent him, as we have seen,
from obtaining an amount of surface to which
he is entitled, unless he abandons the under-
ground and ertralateral rights which are
secured only by parallel end lines.
In this connection it may be properly in-
quired. What is the significance of parallel
end lines? Is it to secure the locator
in all cases a tract in the shajpe of a paral-
lelogram? Is it that the surveys of mineral
land shall be like the ordinary public surveys
in rectangular form, capable of easv adjust-
ment, and showing upon a plat tinat even
measurement which is so marked a feature
of the range, township and section evstem?
Clearly not. While the contemplation of
Congress may have been that every location
•hould be in the form of a parallelogram, sot
exceeding 1,500 by 600 feet in size, yet the
purpose also was to permit the location in
such a way as to secure not exceeding 1,500
feet of the length of a discovered vein, and
It wias expect^ that the locator would so
1>]ace it as in his judgment would make the
ooation lengthwise cover the course of the
vein. There is no command that the side
lines shall be parallel, and the requisition that
the end lines shall be parallel was for the
Eurpose of bounding the underground extra-
iteral rights which the owner of the location
may exercise. He may pursue the vein down-
84
wards outside the side Unas of his kxmtion,
but the limits of his rigDt are not to extend
on the course of the vein beyond the end Unea
projected downward through the earth. His
rights on the surface are 'bounded by the sev- f 8S1
end lines of his location, and the end lines *
must be parallel in order that going down-
wards he shall acquire no further length of
the vein than the planes of those lines ex-
tended downward inclose. If the end linea
are not parallel, then following their planes
downwara his rights wUl be either converg-
ing and diminishing or diverging and increas-
ing the farther he descends into the earth.
In view of this purpose and effect of th«
parallel end lines, it matters not to the prior
locator where the end lines of the junior looa-
tion are laid. No matter where thev may b«^
they do not disturb in the slightest his
surface or underground rights.
For these reasons, therefore, we are of
the opinion that the first question must be
answered in the affirmative.
It may be observed in passing that the an-
swer to this question does not involve a de-
cision as to the full extent of the rights be-
neath the surface which the Junior locator
acquires. In other words, referring to the
first diagram, the inquiry is not whether the
owners of the Last Chance have a right to
pursue the vein as it descends into the ground
south of the dotted line r s, even thou^ thoT
should reach a point In the descent in whi<m
the rights of the owners of the New York,
the pnor location, have ceased. It is ob-
vious that the line e h, the end line of the
New York claim, extended downward into
the earth will at a certain distance pass to
the south of the line r s, and a triangle of
the vein will be formed between the two
lines, which does not pass to the owners of
the New York. The question is not die-
tinctly presented whether that triangular
portion of the vein up to the limits ot the
south end line of the Last Chance, b e«
extended vertically into the earth, belongs
to the owners of the Last Chance or not»
and therefore we do not pass upon it.
Perhaps the rights of the junior locator
below the sunace are limited to the
length of the vein within the surface of the
territory patented to him, but it is nnnecee-
sary now to consider that matter. All that
comes fairiy within the scope of the question
before us u the right of tne owners of the
Last Chance to puraiie the vein as it dips into
the earth westerly between the line a d t and
the line r s, and to appropriate so much of
it as is not held by the prior location *of the [80]
New York, uid to that extent only is the
question answered. The junior locator is en-
titled to have the benefit of making a loca-
tion with parallel end lines. The extent of
that benefit is for further consideration.
The second Question needs no other answer
than that whicn is contained in the discusrion
we have given to the first question, and we
therefore pass it.
The third question is also practically an-
swered by the same considerations, and in
the view we have taken of the statutes the
171 V. flL
iwr.
Dml Mohtb M. ft M. Co. t. Last Chancb M. ft M. Co.
8»-88
maiafj side of the New York lode mining
daim !■ not the end line of the Last Ciiance
lode mining claim.
The fourth question presents a matter of
importance, particularly in view of the in-
ferences which have been drawn by some
trial ccmrte, state and national, from the
id this court. That question
'^f the apex of a vein crosses one end
Uae and one side line of a lode mining claim,
at located thereon, can the locator of such
vein follow it upon its dip beyond the verti-
cal dde line of his location?"
The decisions to which we refer are Flag-
atvff Silver Mining Company v. Tarhet^ 08
U. S. 463 [25 : 253] ; Iron Silver Mining Com-
r»y r, Elgin Mining d S. Company , 118 U.
190 [30:98]; Argentine Min:ng Company
r.Terrible Mining Company, 122 U. 8. 478
[30: llAO]; King v,Amy i S.Consol, Min-
ing Company, 152 U. 8. 222 [38-419].
Two of these cases have been already no-
ticed in this opinion. In Flagstaff Silver
Mining Company v. Tarhet a surface loca-
tion, 2,000 feet long and 100 feet wide had
been noade. This location was so made on
the supposition that it followed lengthwise
tbe course of the vein, and the claim was of
the ownership of 2,600 feet in length of such
Tein. Subsequent explorations developed
that the course of the vein was at right an-
gles to that which had been suppos^, and
that it crossed the side lines, so that
there was really but 100 feet of the
l«igth of the vein within .the surface
area. It was held that the side linee
were to be regarded as the end lines. In
Iron Silver Mining Company v. Elgin Mining
d S, Company the location was in the form of
a horseshoe. The end lines were not parallel.
The location was quite irregular in form, and
B7 J* inasmuch as one of the side lines was sub-
stantially parallel with one of the end linee it
was contended that this side line should be
considered an end line, and this although the
rein did not pass through such side line.
Bat the court refused to recognize any such
contention and held that the end lines were
those which were in fact end lines of the
daim as located, and that as they were not
parallel there was no right to follow the vein
on its dip beyond the side lines. In Argen-
tine Mining Company v. Terrible Mining
Company the claims of the plaintiff and de-
fendant crossed each other, and in its decision
the court affirmed the ruling in Flagstaff
Silver Mining Company v. Tarhet, saying
(p. 46 [30:1142]):
**When, therefore, a mining claim crosses
the course of the lode or vein instead of being
'along the vein or lode,' the end lines are
thoee which measure the width of the claim
as it crosses the lode. Such is evidently the
meaning of the statute. The side lines are
those which measure the extent of the claim
en each side of tne middle of the vein at the
•arface.**
In King v. Amy d 8, Conwl, Mining Com-
pany the prior cases were reaffirmed and
those lines which on the face of the location
^71 U.S.
were apparently side lines were adjudged end
lines because the vein on its course passed
through them, the location being not along
the course of the vein but across it. But
in neither of these cases was the question now
before us presented or determined. All that
can be said to have been settled by them is,
first, that the lines of the location as made by
the locator are the only lines that will be rec-
ognized; that 'the courts have no power
to establish new lines or make a new loca-
tion; second, that the contemplation of the
statute is that the location shall be along the
coiu*8e of the vein, reading, as it does, that a
mining claim "may equal, but shall not ex-
ceed, 1,500 feet in length along the vein or
lode;" and, third, that when subsequent ex-
plorations disclose that the location has been
made, not alonff the course of the vein, but
across it, the side lines of the location become
in law the end lines. Nothing was said in
either of these cases as to how much of the
apex of the vein must be found within the
surface, or what rule obtains in case the vein
crosses only one *end line. So, when Los^ [88]
Chance Mining Company v. Tyler Mining
Company, 157 U. S. 683, 696 [39: 859, 805],
was before us (in which the question here
stated was presented but not decided, the
case being disposed of on another ground) we
said, after referring to the prior cases, ''but
there has been no decision as to what extra-
territorial rights exist if a vein enters at an
end and passes out at a side line.*'
We pass, therefore, to an examination of
the provisions of the statute. Premising
that the discoverer of a vein makes the lo-
cation, that he is entitled to make a location
not exceeding 1,500 feet in length along the
course of such vein and not exceeding *'300
feet on each side of the middle of the vein at
the surface/' that a location thus made dis-
closes end and side lines, that he is required
to make the end lines parallel, that by such
parallel end lines he places limits, not merely
to the surface area, but limits beyond which
below the surface he cannot go on the course
of the vein, that it must be assumed that he
will take all of the length of the vein that he
can, we find from § 2322 that he is en-
titled to "all veins, lodes, and ledges through-
out their entire depth, the top or apex of
which lies inside of such suriace lines ex-
tended do^vnward vertically." Every vein
whose apex is within the vertical limits of his
surface lines passes to him by virtue of his
location. He is not limited to only those
veins which extend from one end line to
another, or from one side line to another, or
from one line of any kind to another, but he
is entitled to every vein whose top or apex
li^ within his surface lines. Mot only is he
entitled to all veins whose apexes are within
such limits, but he is entitled to them
throughout their entire depth, "although
such veins, lodes, or ledges may so far depart
from a perpendicular in their course down-
ward as to extend outside the vertical side
lines of such surface locations." In other
words, given a vein whose apex is within his
surface limits, he san pursue that vein as far
85
(
62-05
SUPBBMB COUBT OF THE UNITED StaTBA.
Oct. Tskm,
nines by them discovered, was generally rec-
ognized, and the rules and customs of min-
ers in any particular district were enforced
as valid. As said by this court in Sparrow
T. Strong, 3 Wall. 97, 104 [18: 49, 60] : "We
know, also, that the territorial legislature
has recognized by statute the validity and
binding force of the rules, regulations, and
customs of the mining districts. And we
cannot shut our eyes to the public history,
which informs us that under this legislation,
and not only without interference by the
national government, but imder its implied
sanction, vast mining interests have grown
up, employing many millions of capital, and
contributing largely to the prosperitv and
improvement of the whole coimtry/' See
also Forbes v. Oracey, 94 U. S. 762 [24: 313]
Jennison v. Kirk, 98 U. S. 453-459 [25 r240-
243] ; Broder v. ifatoma Water d Min. Com-
pany, 101 U. 8. 274-276 [26: 790,791] ; Man-
uel V. Wullf, 152 U. 8. 506-510 [38:532-
634] ; Black v. Elkhom Mining Company, .163
U. S. 446, 449 [41: 221, 223].
The act of 1866 was, however, as we have
[63 J said, the first 'general legislation in respfect
to the disposal of mines. The first section
provided "that the mineral lands of the pub-
lic domain, both surveyed and unsurveyed,
are hereby declared to be free and open to
exploration and occupation by all citizens of
the United Stetes, and those who have de-
clared their intention to become citizens, siio-
ject to such regulations as may be prescribed
by law, and subject also to the local customs
or rules of miners in the several mining dis-
tricte, so far as the same may not be in con-
flict with the laws of the United Stetes."
The second section gave to a* claimant of
a vein or lode of quarte, or other rock in
place, bearing gold, ete., the right "to file in
the local land office a diagram of the same
. . . and to enter such tract and receive
a patent therefor, granting such mine, to-
gether with the right to follow such vein or
lode with ite dips, angles and variations, to
any depth, although it may enter the land ad-
joining, which land adjoining shall be sold
subject to this condition." The purpose here
manifested was the conveyance of the vein,
and not the conveyance of a certain area of
land within which was a vein. Section 3.
which set forth the steps necessary to be tak-
en to secure a patent and required the pay-
ment of $6 per acre for the land conveyed,
added: "But said plat, survey, or descrip-
tion shall in no case cover more than one vein
or lode, and no patent shall issue for more
than one vein or lode, which shall be ex-
pressed in the patent issued." Nowhere was
there any express limitetion as to the amount
of land to be conveved, the provision in ( 4
being: "That no location hereafter made
shall exceed two hundred feet in length along
the vein for each locator, with an lulditionu
claim foi discovery to the discoverer of the
lode, with the right to follow such vein to
any depth, with all ite dips, variations, and
angles, together with a reasonable quantity
of surface for the convenient working of the
■ame as fixed by local rules: And provided
76
further. That no person may make more than
one location on the same lode, and not mora
than three thousand feet shall be taken Ui
any one claim by any association of persona.**
Obviously the statute contemplated the pat-
enting of a certein 'number of feet of the par- [#A
ticular vein claimed by the locator, no mat-
ter how irregular ite course, made no provi*
sion as to the surface area or the form of the
surface location, leaving the Land Depart-
ment in each particular case to grant so much
of the surface as was "fixed by local roles,'*
or was, in the absence of such rules, in its
judgment necessary for the convenient w€>rk-
inff of the mine. The party to whom tha
vem was thus patented was permitted to fol-
low it on ite dip to any extent, althoi^gh
thereby passing underneath lands to whi^
the owner of tiie vein had no title.
As might be expected, the patente iaraed
under the stetute described surface areaa
very different and sometimes irregular in
form. Often they were like a broom, therm
being around the discovery shaft an amomt
of groimd deemed large enough for the eamr
venient working of the mine, and a narrow
strip exten^Ung therefrom as the handle of
the broom. This strip might be straight or
in a curved or irregular une, followhu|» aa
was supposed, the course of the vein. &ana-
times the surface claimed and patented wae
» tract of considerable size, so claimed with
the view of including the apex of the veia,
in whatever direction subsequent e^orar
tions might show it to run. And again,
where there- were local rules giving to tha
discoverer of a mine possessory righte in m
certain area of surface, the patent followed
those rules and conveyed a similar area.
Even imder this stetute, although ite ex-
press purpose was primarily to grant the sfai-
gle vein, yet the righte of the patentee ba-
neath the surface were limited and eoa-
trolled by his righto upon the siurface. H, is
fact, as shown by subsequent expIoratiaBa*
the vein on ite course or s^ike departed from
the boundary lines of the surface locatioa,
the point of departure was the limit of right.
In other words, he was not entitled to tha
claimed and patented number of feet of tha
vein, irrespective of the question whether tha
vein in ite course departed from the lines off
the surface location.
llie litigation in respect to the Flagstaff
mine in Uteh illustrates thU. There was a
local custom giving to the locator of a mint
50 feet in width on either side of the oovrat
uf the vein, and the IilagstefT patent graatcil
a superficies *100 feet wide by 2,000 feet long,[tS)
with the right to follow the vein deeeribed
therein to the extent of 2,600 feet It turned
out that the vein, instead of running throuffh
this parallelogram lengthwise, crossed the
side lines, so that there was really but 100
feet of the length of the vein within the sar-
faoe area. On either side of the Flagstaff
ground were other locations, through which
the vein on its course passed. As against
these two locations the owners of the Flai;-
steff claimed the right to follow the vein on
ite course or strike to the full extent of 2,00O
171 U. R
lan.
Dbl Mohtb M« a M. Co. t. Labt Chance M. A M. Co.
66-«7
iBtt This was denied by the supreme court
el Utah. MoCarmick v. Vames, 2 Utah, 355.
In that case the controversy was with the lo-
cation on the west of the I«lagstaff. The de-
cttkm of that court in respect to the contro-
versy with the location on the east of the
nantaff ia not reported, but the case came
touis court. Flagstaff Silver Mining Com-
pmf ▼. Tarhet, 98 U. S. 463 [25: 253]. In
the course of the opinion (pages 467, 468)
[25:255] it was said:
**lt was not the intent of the law to allow a
person to make his location crosswise of a vein
BO that the side lines shall cross it, and there-
by give him the right to follow the strike of
the vein outside of his side lines. That would
subvert the whole system sought to be estab-
lished by the law. If he does locate his claim
in that way, his rights must be subordinated
to the rights of those who uave properly lo-
cated on the lode. Their right to follow the
dip outside of their side lines cannot be inter-
fered with by him. His right to the lode only
extends to so much of the lode as his daini
covers. If he has located crosswise of the
lode, and his daim is onlv 100 feet wide, that
100 feet is all he has a right to."
These decisions show that while the express
purpose of the statute was to grant the vein
for so many feet along its course, yet such
grant could only be made effective by a sur-
Sice location covering the course to such ex-
tent. This act of 1866 remained in force only
six years, and was then superseded by the
act of May 10, 1872 (17 Stat, at L. 01), found'
in the Revised Statutes, $$ 2310 and follow-
ing. This is the statute which is in force to-
(66]dav, and under which the controversies *in
this case arise. Section 2319, Revised Stat-
utes (corresponding to S 1 of the act of
1872), reads:
"All valuable mineral deposits In lands be-
longing to the United States, both surveyed
end UQSurveyed, are hereby declared to be
free and open to exploration and purchase,
tnd the lands in which they are found to oc-
cupation and purchase, by citizens of the
United States and those who have declared
their intention to become such, under regula-
tions prescribed by law, and according to the
local customs or rules of miners in the several
mining districts, so far as the same are appli-
cable and not inconsistent with the law of
the United States."
It needs no argument to show that if this
were the only section bearing upon the ques-
tion, patents for land containing mineral
would, except in cases affected by local cus-
toms and rules of miners, be subject to the
ordinary rules of the conmion law, and would
convey title to only such minerals as were
found beneath the surface. We therefore
turn to the following sections to see what ex-
tralateral rights are given and upon what
conditions they may be excrcit;ed. And it
must be borne in mind in considering the
questions presented that we are dealing sim-
^y with statutory rights. Tnere is no show-
171 V. 8.
ing of any local customs or rules affecting the
rights defined in and prescribed by the stat-
ute, and beyond the terms of the statuta
courts may not go. They have no power of
legislation. They cannot assume the exist-
ence of any natural equity, and rule that by
reason of such equity a party may follow a
vein into the territory of his neighbor, and ap-
propriate it to his own use. If cases arise for
which Congress has made no provision, the
courts cannot supply the defect Congress
having prescribed the conditions upon which
extralateral rights may be acquired, a party
must bring himself within those conditions, or
else be content with simply the mineral be-
neath the surface of his territory. It is un-
doubtedly true that the primary thought of
the statute is the disposal of the mines and
minerals, and in the interpretation of the stat-
ute this primary purpose must be recognized
and given effect. Hence, whenever a party
has acquired the title to ground within whose
siuface area is the apex of a vein with a tew
or many feet along •its course or strike, a [67}
right to follow that vein on its dip for the
same length ought to be awarded to him if it
can be done, and only if it can be done, imder
any fair and natural construction of the lan-
guage of the statute. If the surface of the
ground was everywhere level and veins con-
stantly pursued a straight line, there would
be little difficulty in legislation to provide lor
all contingencies; but mineral is apt to be
found in mountainous regions, where great ir-
regularity of surface exists, and the course or
strike of the veins is as irregular as the sur-
face, so that many cases may arise in which
statutory provisions will fail to secure to a
discoverer of a vein such an amount thereof
as equitably it would seem he ought to re-
ceive. We make these observations because
we find in some of the opinions assertions by
the writers that they have devised rules which
will work out equitable solutions of all difii-
ctdties. Perhaps those rules may have all
the virtues which are claimed for them, and
if so it were well if Congress could be per-
suaded to enact them into statute; but be
that as it may, the question in the courts is
not, What is equity? but. What saith the
statute? Thus, for instance, there is no in-
herent necessity that the end lines of a min-
ing claim should be parallel, yet the statute
has so specifically prescribed. ($ 2320.) It
is not within the province of the courts to ig-
nore such provision, and hold that a locator,
failing to comply with its terms has all the
rights, extralateral and otherwise, which he
would have been entitled to if he had com-
plied, and so it has been adjudged. Iron 8iU
ver Mining Company v. Elgin Mining d 8,
Company, 118 U. S. 196 [30:9SJ.
This case, which is often called the "Horse-
shoe Case," on account of the form of the lo-
cation, is instructive. The following dia-
Igram, which was in the record in that case,
Ulustrates the scope of the decision:
77
r
9UFU£MB COUBT OF THS UHIT&D SXATJUk
Oct. X
SCAL£' 200 f££T • / MCH
The locator daimed in Us application for a
patent the lines 1, 14 and 5, 6, as the end
tines of his location, and because of their par-
allelism, that he had complied with the letter
of the statute, but the court ruled against
him, saying in the opinion (page 208 [80:
102]):
"The exterior lines of the Stone claim
[ 09] formed a curved *figpire somewhat in the shape
of a horseshoe, and its end lines are not and
cannot be made paralleL What are marked
on the plat as end lines are not such. The
one between numbers 5 and 6 is a side line.
The draughtsman or surveyor seems to have
hit upon two parallel lines of his nine-sided
figure, and apparently for no other reason
t^BLn their parallelism called them end lines.
'^e are therefore of -opinion that the ob-
jection <Mt, by reason of the surface form of
the Stone daim, the defendant could not fel-
low the lode existing therein in its downward
course beyond the Imes of the claim, was well
taken to the offered proof."
[60] *It is true the court also observed that if
the two lines named by the locator were to
be considered the end lines, no part of the
vein in controversy fell "witmn vertical
planes drawn down through those lines, con-
tinued in their own direction." But notwith-
standing this observation the point of the de-
cision was that the lines, which were the end
lines of the location as made on the surface of
78
the ground, were not paralld, and that lUi
defect could not be obviated by calling thai
which was in fact a side line an euT liia
This is made more dear by the obeervatioM
of the Chief Justice, who. with Mr. JusUet
Bradley, dissented, in which he said:
''I cannot agree to this judgment. In mj
opinion the end lines of a mining locatioa
are to be projected paralld to eacu other tad
crosswise of the general course of the veiB
within the surface limits of the locatioo, tad
whenever the t(^ or apex of the vein is found
within the surface lines extended vertictUy
downwards, the vein may be fdlowed o«^
side of the vertical side lines. The end Umi
are not necessarily those which are mtrked
on the map as such, but they may be pie-
jeeted at the extreme points where the apex
leaves the location as marked on the sorftce."
In other words, the couit took the locattoi
as made on the surface by the locator, de-
termined from that what were the end linei,
and made those surface end lines conUroUing
upon his rights, and rejected the contentioa
that it was proper for the court to ignore tbe
surface location and create for the locator a
new location whose end lines should be crost*
wise of the general course of the vein ai
finally determined by explorations. Tliat
tJiis dedsion and that in the Tarh€t Cast,
aupro, were correct expositions of the ^tatnta,
and correctly comprehended the intent of
171 V. i.
1897.
Dbl Montb M. <& M. Co. v. Lasr Chanob M. & M. Co.
6»-7»
Congrai therein, is evident from the fact
that, although they were announced in 1885
and 1878, respectivdy, Congress has not seen
it to change the language of the statute, or
in any manner to incUcate that any different
measure of rights should be awarded to a
aiininff locator.
With these preliminary observations we
paas to a consideiwtioa of the questions pro-
pounded. The flnt is:
"llay any of the lines of a junior-lode lo-
rn] ^tion be laid *within, upon, or across the sur-
laoe of a valid senior location for the purpose
€i defining for or securing to such junior lo-
eation underground or extralateral rights not
IB oonfliet with any rights of the senior loca-
tion? *•
By ( 2319, quoted above, the mineral de-
pots wMch are declared to be open to ex-
ploration and purchase are those found in
landB belonging to the United States,' and
such lands are the only ones open to oocu-
rion and purchase. While this is true, it
also true that until the legal title has
passed the public lands are within the juris-
diction of the Land Department, and, al-
though equitable rights may be established,
Oongress retains a certain measure of control.
Michigan Land d Lumber Company v. Rust,
168 U. 8. 689 [42: 591]. The grant is, as is
oftm said, in process of administration. Pass-
ing to § 2320, beyond the recognition of the
governing force of customs and regulations
and a declaration as to the extreme length
and width of a mining claim, it is provided
that ''no location of a mining claim shall be
made until the discovery of the vein or lode
within the limits of the cbum located. . . .
The end lines of each claim shall be parallel
to each other."
Section 2322 gives to the locators of all
mining locations, so long as they comply with
laws of the United States, and with state, ter-
ritorial^ and local regulations not in conflict
therewith, "the exclusive right of possession
and enjoyment of all the surface included
within the lines of their lucations, and of all
veins, lodes, and ledges throughout their en-
tire depth, the top or apex of which lies in-
side of such sur£Eu» lines extended downward
verticidly, although such veins, lodes, or
ledges may so far depart from a perpendicu-
lar in their course downward as to extend
outside the vertical side lines of such surface
locations. But their right of possession to
such outside parts of such veins or ledges
Aall be confined to such portions thereof as
Ke between vertical planes drawn downward
as above described, through the end lines of
their locations, so continued in their own di-
rection that such planes will intersect such
exterior parts of such veins or ledges. And
nothing in this section shall authorize the lo-
[71]cator or possessor *of a vein or lode which
extends in its downward, course beyond the
vertical lines of his claim to enter upon the
•nr^ice of a daim owned or possessed by an-
other."
Section 2324 in terms authorizes "the min-
ers of each mining district to make regula-
tions not in conflict with the laws of the
171 U. 8.
United Sta/tes, or with the laws of the state
or territory in which the district is situa/ted,
governing the location, manner of reoording^
amount of work necessary to hold possession
of a mining claim, subject to the following re-
quirements: The location must be dietinctiy
marked on the ground so that its boundaries
can be readily traced. All records (d mining
claims hereafter made shall contain the name
or names of the locators, tiie date ol the looa-
tion, and such a description of the elaim or
claims located by reference to some natural
object or permanent monument as will iden*
tify the claim. On each claim located after
the tenth day of May, eighteen himdred and
seventy^two and until a patent has been is-
sued therefor, not less thui one hundred dol-
lara' worth of labor shall be performed or im-
provements made during eadi year. On all
claims located prior to tne tenth day of May»
eighteen hundred and seventy-two, ten dol-
lars' worth of labor shall be performed or im-
provements made by the tenth day of June,
eighteen hundred and seventy-four, and each
year thereafter, for each one hundred feet in
length along the vein until a patent has been
issued therefor; but where such claims are
held in common, such expenditure may be
made upon any one claim; and upon a fsolure
to comply with these conditions, the claim or
mine upon which such failure occurred shaJl
be open to relocation in the same manner aa
if no location of the same had ever hem
made, provided that the original locators^
their heirs, assigns, or legal representatives,
have not resum^ work upon the claim after
failure and before such location."
Section 2325 provides for the issue ol a
paiteni. It reads:
"A patent for any land claimed and located
for valuable deposits may be obtained in the
following maimer: Any person, association,
or corporation authorized to locate a claim
under this chapter, having claimed and lo-
cated a piece oi land *for such parposes. who [7S]
has or have, complied with the terms of this
chapter, may file in the proper land office an
application for a patent, under oath, showins
such compliance, together with a plat and
field notes of the claim or claims in common,
made by or under the direction of the United
States surveyor general, showing accurately
the boundaries of the claim or claims, which
shall be distinctiy marked by monuments on
the ground, and shall post a copy of such
plat, together with a notice of such applica-
tion for a patent, in a conspicuous place on
the land embraced in such plat previous to
the filing of the application for a patent, and
shall file an affidavit of at least two persons
that such notice has been duly posted, and
shall file a copv of the notice in such land
office, and shall thereupon be entitied to a
patent for the land, in the manner follow-
ing: The register of the land office, upon
the filing of such application, plat, fidd
notes, notices, and affidavits, shall publish a
notice that such application has been made,
for the period of sixty days, in a newspaper
to be by him designated as published nearest
to such claim; and he shall also post such no>
79
iMJn
SUPRBMS COUBT OF THS UvrTSD StATBS.
Oct,
i\
i"
tioe in Us office for the same period. The
claimant, at the time of filing this applica-
tion, or at any time thereafter, within the
aizty days of publication, shall file with the
register a certificate of the United States
surveyor general that five hundred dollars'
worth of labor has been expended or improve-
ments made upon the claim by himself or
grantors; that the plat is correct, with such
further description by such reference to nat-
ural objects or permanent monuments as
ahall identify the claim, and furnish an ac-
curate description, to be incorporated in the
patent. At tl^ expiration of the sixty days of
publication the claimant shall file his affida-
vit, lowing that the plat and notice have
hbixk posted in a conspicuous place on the
daim during such period of publication. If
■o adverse claim shall have been ffied with
the register and the receiver of the proper
land office at the expiration of the sixty
days of publication, it shall be assumed that
the appucant is entitled to a patent, upon
the payment to the proper officer of five dol-
lurs per acre, and that no adverse daim ex-
fT8]ists; and thereafter no ^objection fropa third
parties to the issuance of a pat^t diall be
heard, except it be shown that the i^plicant
has failed to comply with the terms of this
chapter.**
Section 2326 is as follows:
"Where an adverse claim is ffied during the
period of publication it shall be upon oath
of the person or persons making the same,
and shidl show the nature, boundaries, and
extent of such adverse claim, and all pro-
ceedings, except the publication of no-
tice and making and filing of the affidavit
thereof, shall be stayed until the con-
troversy shall have been settled or de-
cided by a court of competent jurisdiction^
or the adverse daim waived. It shall
be the duty of the adverse claimant,
within thirty days after filing his daim, to
commence proceedings in a court of compe-
tent jurisdiction to determine the question
of Uie right of possession, and prosecute the
same with reasonable diligence to final judg-
ment; and a failure so to do shall be a waivei
of his adverse claim. After such judgment
shall have been rendered, the party entitled
to the possession of the claim, or any portion
thereof, may, without giving further notice,
ffie a certified copy of the judgment roll with
the register of the land office, together with
the certificate of the surveyor general that
the requisite amount of labor fiu been ex-
pended or improvements made thereon, and
the description required in other cases, and
shall pay to the receiver five dollars per acre
lor his daim, together with the proper fees
whereupon the whole proceedings and the
judgment roll shall be certified by the r^
liter to the Commissioner of the GenenL
Land Office, and a patent shall issue there-
on for the claim, or such portion thereof, mi
the applicant diall appear, from the decision
of the court, to rightly possess. If it ap-
pears from the decision of the court that sev-
eral parties are entitled to separate and dif-
ferent portions of the claim, each party may
80
pay for his portion of the daim, witii tke
proper fees, and ffie the certificate and de-
scription by the surveyor general, whereupon
the register shaU certilfy the proceedymga and
judgment roll to the Commissioiier of tke
General Land Office, as in the preceding eaae,
and patents shall issue to the sevoal parties
according to their respective righta. Noth-
ing herem contained *shall be construed tonyg
prevent the alienation of the title eonveyed
by a patent lor a mining daim to any person
whatever."
These are the only proviaiooa of the statute
which bear upon the question presented.
The stress of the argument in trnvor of a
n^ative answer to this question lies in the
contention that by the terms of the statute
exdusive possessory rights are granted to the
locator. Section 2322 declares that the loca-
tors "shall have the exdusive right of poo-
session and enjoyment of aU the surftioe in*
duded within the lines of their loeaUcmsy"
and n^fativdy, that "nothing in this section
shall authorize the locator or possessor of a
vein or lode which extends in its downward
course beyond the vertical lines of hb daim
to enter upon the sur^u^e of a daim owned
or possessed by another." Hence, it is said
that affirmativdy and n^fativdy is it pro-
vided that the locator shall have exdusive
possession of the surface, and that no one
shall have a right to disturb him in such pos-
session. How, then, it is asked, can anyone
have a right to enter upon sudi location for
the purpose of making a second location T If
he does so he is a trespasser, and it cannot be
presumed that Congress intended that any
rights should be created by a trespass.
We are not disposed to undenralue the
force of this aigument, and yet are con-
strained to hold tiiat it is not controlling. It
must be borne in mind that Uie location is
the initial step taken by the locator to indi-
cate the place and extent of Uie surftice which
he desires to acquire. It is a means of siving
notice. That which is located is called in I
2320 and dsewhere a "daim" or a "mimng
daim.** Indeed, the words "daim** and "lo-
cation" are used interchangeably. This lo-
cation does not come at the end of the pro-
ceedings, to define that which has been ac-
quired after all contests have been adjudi-
cated. The location, the mere maLVing o| a
claim, works no injury to one who has ac-
quired prior rights. Some confusion may
arise when locations overlap each other and
indude the same ground, fbr then the right
of possession becomes a matter of dispute,
but no location creates a right ^superior to [TS]
any previous valid location. And the<« pos-
sessory rights have always been recognind
and disputes concerning Uiem settled in the
courts.
It will also be noticed that the locator is
not compelled to follow the lines of the gov-
ernment surveys, or to make his location in
any manner correspond to such surveys^ The
location may, indeed, antedate the public sor^
veys, but whether before or after them, the
locator places his location where, in his judg-
ment, it will cover the iinderiying vein. His
171 IT. S.
1697.
Del Montb M. A M. Co. ▼. Last Cilocb M. & M. Co.
r5-n
tow requires that the end lines of the claim
ihsn be paralleL It will often happen that
loeatioiia which do not overlap are »o placed
as to leave between them some irregular par-
ed of ground. Within that, it bein^ no mure
than one locator is entitled to take, may be
discovered a mineral vein and the discoverer
desire to take the entire surface, and yet it
be impossible for him to do so and make his
ead Imes parallel unless, for the mere pur-
poses of location, he be permitted to place
those end lines on territory already claimed
by the prior locators.
Again, the location upon the surface Is
not made with a view of getting benefits from
the use of ihAit surface. The purpose is to
reach the vein which is hidden in the depths
of the earth, and the location is made to
measure rights beneath the surface. The
area of surface is not the matter of moment;
the thing of value is the hidden mineral be-
kyw, and each locator ought to be entitled to'
make his location so as to reach as much of
the unappropria^ted, and perhaps only partial-
ly discovered and traced v^ein, as is possible.
Further, Congress has not prescribed how
tiie location shall be made. It has simply
provided Uiat it "must be distinctly marked
on the ground so that its boundaries can be
readily traced," leaving the details, the man-
ner of markii^, to be settled by the regula-
tions of each mining district. Whether such
location shall be made by stone posts at the
four comers, or by simply wooden stakes, or
how many such posts or stakes shall be placed
along the sides and ends of the location, or
what other matter of detail must be pursued
in order to perfect a location, is left to the
varying judgments of the mining districts.
Such locations, such markings on the ground,
76] are *not always made by experienced survey-
ors. Indeed, as a rule, it has been and was to
be expected that such locations and mark-
ings would be made by the miners them-
wlves, — men inexperienced in the matter of
sorveying, and so in the nature of things
there mxmt frequently be disputes as to
whether uiy particular location was suffi-
ciently and distinctly marked on the surface
of the ground. Especially is this true in lo-
caUties where the groimd is wooded or
broken. In such looedities the posts, stakes,
or other particular marks required by the
rules and regidations of the mining diistrict
Bity be placed in and upon the ground, and
yet, owing to the fact that it is densely wood-
ed, or that it is very broken, such marks may
not be perceived by the new locator, and his
own location marked on the ground in ignor-
anee of the existence of any prior claim.
And in all places posts, stakes, or other mon-
uments, although sufficient at first and clear-
ly visible, may be destroyed or removed, and
nothing remain to indicate the boundaries
of the prior location. Further, when any
^nihable vein has been di<«covered, naturally
mtny locators hurry to seek by early loca-
^ns to obtain some part of that vein, or to
diocover and appropriate other veins in that
ncinity. Experience has shown thai around
say new discovery there quickly giows up
171 U. 8. U. 8., Book 43. l
what is called a mining camp, and the con-
tiguous territory is prospected and locations
are made in every direction. In the haste of
such locations, the eagerness to get a prior
right to a portion of what is supposed to be
a valuable vein, it is not strange that many
confiicting locations are made, and, indeed, in
every mining camp where large discoveries
have been made locations, in fact, overlap
each other again and again. McEvoy v. Hy-
man, 25 Fed. Rep. 596-600. This confusion
and oonfiiot is. something which must have
been expected, foreseen, — ^something which in
the nature of things would happen, and the
legislation of Congress must be interpreted in
the light of such foreseen contingencies.
Still again, while a location is required by
the statute to be plainly marked on the» sur-
face of the ground, it is also provided in
§ 2324 that, upon a failure to comply with
certain named conditions, the claim or mine
shall be open to relocation. 'Now, although fTTJ
a locator finds distinctly marked on the sur-
face a location, it does not necessarily follow
therefrom that the location is still valid and
subsisting. On the contrary, the ground may
be entirdy free for him to make a location
upon. The statute does not provide, and it
cannot be contemplated, that he is to wait
until by judicial proceedings it has become
establisned tha4^ the prior location is invalid
or has failed before he may make a location.
He ought to be at liberty to make his loca-
tion at once, and thereafter, in the manner
provided in the statute, litigate, if necessary,
the validity of the other as well as that of
his own location.
Congress has in terms provided for the set-
tlement of disputes and conflicts, for by
S 2325, when a locator makes application for
a patent (thus seeking to have a final deter-
mination by the Land Department of his
title), he is required to make publication and
give notice so as to enable anyone disputing
his claim to the entire ground within nis lo-
cation to know what he is seeking, and any
party disputing his right to all or any part
of the location may institute adverse proceed-
ings. Then by $ 2326 proceedings are to be
commenced in some appropriate court, and
the decision of that court determines the rela-
tive rights of the parties. And the party
who by that judgment is shown to be "enti-
tled to the possession of the claim, or any por-
tion thereof," may present a certified copy of
the judgment roll to the proper land officers
and obtain a patent ''tor the claim, or such
portion thereof, as the applicant shall appear,
from the decision of the court, to rightfully
possess." And that the claim may be found
to belong to different persons, and that the
right of each to a portion may be adjudicat-
ed, is shown by a subsequent sentence in that
same section, which provides that "if it ap-
pears from a decision of the court that sev-
eral parties are entitled to separate and dif-
ferent poi-tions of the claim, each party may
pay for his portion of the claim . . . and
patents shall issue to the several parties ac-
cording to their reactive rights." So it dis-
tinctly appears that, notwithstanding the
81
77-80
SUPRKMB COUBT OP THE UNITED STATES.
Oct.
provision in reference to the rightfl of the lo-
cators to the possession of the surface ground
within their locations, it was perceiv^ that
[78] 'locations would overlap, that conflicts would
arise, and a method is provided for the ad-
justment of such disputes. And this, too, it
must be borne in mind, is a statutory pro-
vision for the final determination, and is sup-
plementary to that right to enforce tempo-
rary possession, which. In accordance with
the rules and regulations of mining districts,
has always been recognize.1.
This question is not foreclosed by any de-
cisions of this court as suggested by counsel.
It is true there is language in some opinions
which, standing alone, seems to sustain the
contention. Thus, in Belk v. Meagher, 104
^ V*S. 279, 284 [26: 735, 737], it is said:
'^Mining claims are not open to relocation
until the rights of a former locator have come
to an end. A relo'cator seeks to avail him-
self of mineral in the public lands which an-
other has discovered. This he cannot do un-
til the discoverer has in law abandoned his
claim, and left the property open for another
to take up. The right of location upon the
mineral lands of the United States is a privi-
lege granted by Congress, but it can only be
exercised within the limits prescribed by the
grant A location can only be made where
the law allows it to be done. Any attempt
to go beyond that will be of no avail. Hence
a relocation on lands actually covered at the
time by another valid and subsisting location
is void; and this not only against the prior
locator, but all the world, because the law al-
lows no such thing to be done."
And again, in OwiUim v. DonneUan, 115
U. S. 45, 49 [29 : 348, 349] :
"A vaUd and subsisting location of mineral
lands, made and kept up in accordance with
the provisions of the statutes of the United
States, lias the effect of a grant by tue United
States of the right of present and exclusive pos-
session of the lands located. If, when one enters
on land to make a location, there is another
location in full force, which entitles its owner
to the exclusive possession of the land, the
first location operates as bar to the second."
llie question presented in each of those
cases was whether a second location is effect-
ual to appropriate territory covered by a prior
subsisting and valid location, and it was held
(T9] it is *not. Of the correctness of those deci-
sions there can be no doubt. A valid location
appropriates the surface, and the rights given
by such location cannot, so long as it remains
in force, be disturbed by any acts of third
parties. Whatever rights on or beneath the
surface passed to the first locator can in no
manner be diminished or affected by a subse-
quent location. But that is not the question
here presented. Indeed, the form in which it
is put excludes any impairment or disturb-
ance of the substantial rights of the prior lo-
cator. The question is whether the lines of a
junior-lode location may be laid upon a valid
senior location for the purpose of defining or
securing "underground or extralateral rights
not in conflict with any rights of tne senior
location." In other words, in order to com-
82
ply with the statute, which requires tliat
end lines of a claim shall be parallel, and im
order to secure all the unoccupied surface to
which it is entitled, with all the underground
rights which attach to possession and owner-
ship of the surface, may a junior locator plMcm
an end line within the limits of a prior loca-
tion?
In that aspect of the question the deeisooa
referred to, although the language employed
is general and broi^ do not sustain the eoa-
tention of counseL This distinction is recof^
nized in the tex:t books. Thus in I iJndlcy
on Mines, { 363, the author says:
"Ab a mining location can only be earred
out of the unappropriated public dommiii. it
necessarily follows that a subsequent loeator
may not invade the suribuse territory of his
neighbors and include within his boundmxici
any part of a prior valid and aubeistiiig loca-
tion. But conflicts of surface area are mora
than frequent. Many of them arise from hon-
est mistake, others from premeditated design.
In both instances the question of priority o<
appropriation is the controlling element wkiek
determines the rights of the parties. Two k>-
cations cannot legally occupy the same tf&m
at the same time. These ccmflicts sometuiMi
involve a segment of the same vein, on its
strike; at others, they involve the dip bouBd-
ing planes imdemeath the surface. More fre-
quently, however, they pertain to mere over-
lapping surfaces. The *same principles of law [8
apply with equal force to all daases of eaaea
Such property rights as are conferred by a
valid prior location, so long as such looatkMi
remains valid and subsisting, are piesuftd
from invasion, and cannot be infringed or im-
paired by subsequent locators. To the ex-
tent, therefore, that a subsequent location in-
cludes any portion of the surface lawfully ap-
propriated and hdd by another, to that ex-
tent such location is void."
It will be seen that while the author denifli
the right of a second locator to enter unon the
ground segregated by the first locataoa, be
recoffnices the fact hat overlapping locstJoM
are frequent, and declares the invalidity of
the second location so far as it affects the
rights ve&ted in the prior locator, and in that
he follows the cases from which we kavt
quoted.
The practice of the I^and Department has
been in narmony with this view. The piUaBti
which were issued in this case for the Lsal
Chance and New York claims give the entirs
boundaries of the original locations, and ex-
cept from the ^ant those portions induded
within prior valid locations. Bo that on the tam
of each patent appears the original sorrej
with tiie paralld end lines, the territory
granted and the territory exduded. The in-
structions from the Land Department to the
surveyors general have beenj^nerally in har-
mony with this thought, 'iuius, in a letter
from the Commissioner of the Land OflSce te
the surveyor general of Colorado, of dais
November 5, 1874, reported in 1 Copp*s Land
Owner, p. 133, are these instructions:
''In this connection I would state that the
surveyor general has no jurisdictian in tht
171 v. &
vm.
Del Homtk M. & M. Co. v. Last Chakcb M. A M. Co.
60-88
■Mtter of dedding the respective rights of
partiet in eases of conflicting claims.
''Each applicant for a suiTey under the
nining act is entitled to a survey of the entire
mining claim, as located, if held by him in ac-
cordance with the local laws and congres-
sional enactments.
'1^ in running the exterior boundaries of a
claim, it is found that two surveys conflict,
the plat and field notes should show the ex-
tent of the conflict, giving the area which is
embraced in both surveys, and also the dis-
Bl]tanee8 from the established ^corners at which
the exterior boundaries of the respective sui-
veys intersect each other."
Again, in a general circular issued by the
Land Department on November 16, 1882.
found in 9 Copp's Land Owner, p. 162, it
is said:
*7he regulations of this office require that
the plats and field notes of surveys of mining
daims shall disclose all conflicts between such
iorveys and prior surveys, giving the areas of
conflicts.
The role has not been properly observed
in all cases. Your attention is invited to the
following particulars, which should be ob-
fored in the survey of every mining claim :
"1. The exterior boundaries of the claim
^ould be represented on the plat of survey
and in the field notes.
T2. The intersections of the lines of the sur-
Tey, witn the lines of conflicting prior sur-
veys, should be noted in the field notes and
represented upon the plat.
*% Conflicts with unsurveyed claims, where
the applicant for survey does not claim the
area in conflict, should be shown by actual
■nrrey-
**L The total area of the claim unbraced by
the exterior boundaries should be stated, and
alto the area in conflict with each inten^ecting
fonrey, substantially as follows."
Again, on August 2, 1883, in a letter from
the acting commissioner to the siur^eyor gen-
oal of Jmzona, reported in 10 Copp's I^and
Owner, p. 240, it is said:
Ton state, and it is shown to be so by said
diagram, that the said Grand Dipper lode, so
located, is a four-sided flgure with parallel
end lines, the provisions of XJ. S. Rev. Stat.
1 2320, being fully complied with.
**The survey ol the claim made by the dep-
uty surveyor cuts off a portion of the right
end, shown to be in conflict with the KmeraTd
lode, the easterly end line of the Emerald
dtim thus becoming one of the boimdary
lines of tlie said 'Grand Dipper,' and not par-
tllel to the easterly end line of the Grand Dip-
per survey.
**! cannot see how you can give your ap-
proval to such survey. No reason exists why
[SSJthe survey lines should not conform 'directly
to the lines of the location, they being prop-
siiy run in the first instance/*
K b tme that on December 4, 1884, a cir-
colar letter was issued by the Land Depart-
ment wliloh aUghtly quaUfles the gcnerid in-
■tniotions previously issued. So thiBit it may,
pvhape, be truthfully said that the practice
of the Land Department has not been abso-
ITl V. 8.
lutely uidform, and yet the descriptions which
are found in the patents before us show thal^
notwithstanding the circular of 1884, the for>
mer practice stul obtains.
It may be said that the statute gives to the
first locator the right of exclusive possession;
that an entry upon that territory with a view
of making a subsequent location and marking
on the ground its end and side lines is a tres-
pass, and that to justify such an entry is to
sanction a forcible trespass, and thus precipi-
tate a breach of the peace. But no such con-
clusion necessarily follows. The case of Ath-
crton V. Fowler, 90 U. S. 513 [24: 732], illus-
trates this. It appeared that on^ Page was
in lawful possession of certain premises
claimed under a Mexican g^ant, though his
title had not been confirmed by any act of
Congress; that while so in possession a party
of persons, who had no interest or claim to
any part of the land, invaded it by force, tore
down the fences, dispossessed those who oc-
cupied, and built on and cultivated parts of
it under pretense of establishing a right of
pre-emption to the several parts which they
had so seized. It was held that such forcible
seizure of the premises gave no rights under
the pre-emption law, and it was said (p. 516
[24:733]:
"It is not to be presumed that Congress in-
tended, in the remote regions where these
settlements are made, to invite forcible in-
vasion of the premises of another, in order to
confer the gratuitous right of preference of
purchase on the invaders. In the parts of
the country where these pre-emptions are
usually made, the protection of the law to
rights of person and property is generally but
imperfect under the best of circumstances. It
cannot, therefore, be believed, without the
strongest evidence, that Congress has ex-
tended a standing invitatioti to the strong,
the daring, and the unscrupulous to dispos-
sess by 'f orce the weak and the timid from ac- [83]
tual improvements on the public lands, in or-
der that the intentional trespasser may se-
cure by these means the preferred right to
buy the land of the Government when it
comes into market.''
But while thus declaring that it cannot be
presumed that Congress countenanced any
such forcible seizure of premises, the court
also observed (p. 510 [24:733]):
'Undoubtedly there have been cases, and
may be oases again, where two persons mak-
ing settlement on difTercnt parts of the same
quarter section of land may present conflict-
ing claims to the right of pre-emption of the
whole quarter section, and neither of them be
a trespasser upon the possession of the other,
for the reason that the quarter section is
open, uninclosed, and neither party inter-
feres with the actual possession of the other.
In such cases the settlement of the latter ot
the two may be bona fide for many reasons.
The flrst party may not have the qualifica-
tions necessary to a pre-emptor, or he may
have pre-empted other land, or he may have
permitted the time for flling his declaration
to elapse, in which case the statute expressly
declares that another person may become pre-
83
4
i
8a-66
SUPRRMB COUBT OP THK UNITED STATES.
Oct. TBB3f«
emptor, or it may not be known that the aet-
tlementa are on the same quarter."
The distinction thus suggested is perCinent
here. A party who is in actual possession of
a valid location may maintain that possession
and exclude everyone from trespassing there-
on, and no one is at liberty to forcibly disturb
his possession or enter upon the premises. At
the same time the fox;t is also to be recog-
nized that these locations are generally made
upon lands open, uninclosed, and not subject
to any full actual occupation, where the lim-
ifto of possessory rights are vague and uncer-
tain and where the validity of apparent loca-
tMMifl is imsettled and doubtful. Under those
circumstances it is not strange— on the con-
trary it is something to be expected, and, as
we have seen, is a common experience — that
conflicting locations are made, one overlap-
ping another, and sometimes the overlap re-
peated by many different locatioois. And
while in the adjustment of those confliots the
rights of the first locator to the surface with-
£84] in his location, as well as to veins * beneath
his surface, must be secured and confirmed,
why should a subsequent location be hdd ab-
solutely void for aU purposes and wholly ig-
nored? Recognizing it so far as it establiahes
the fact that the second locator has made a
claim, and in making that claim has located
parallel end lines, deprives the first locator of
nothing. Certainly, if the rights of the prior
locator are not infringed upon, who is preju-
diced by awarding to the second locator all
the benefits which the statute gives to the
making of a daim? To say that the subse-
quent locator must — ^when it appears that his
Unes are to any extent upon territory cov-
ered by a prior valid location — go through
the form of making a relocation simply works
delay and may prevent him, as we have seen,
from obtaining an amount of surface to which
he is entitled, unless he abandons the under-
ground and extralateral righta which are
secured only by parallel end lines.
In this connection it may be properiy in-
quired. What is the significance of parallel
end lines? Is it to secure the locator
in all cases a tract in the shape of a paral-
lelogram? Is it that the surveys of mineral
land shall be like the ordinary public surveys
in rectangular form, capable of easv adjust-
ment, and showinff upon a plat niat even
measurement which is so marked a feature
of the range, township and section s^rstem?
Clearly not. While the contemplation of
Congress may have been that every location
should be in the form of a parallelogram, not
exceeding 1,500 by 600 feet in size, yet the
purpose also was to permit the location in
such a way as to secure not exceeding 1,500
feet of the length of a discovered vein, and
it waa expect^ that the locator would so
1>lace it as in his judgment would make the
ooation lengthwise cover the course of the
vein. There is no command that the side
lines shall be parallel, and the requisition that
the end lines shall be parallel was for the
Surpose of bounding the underground extra-
kteral rights which the owner of the location I
may exercise. He may pursue the vein down- 1
84
wards outside the side lines of his location,
but the limits of his rigbt are not to extend
on the course of the vein beyond the end lines
projected downward through the earth. Hla
rights on the surface are*bounded by the aer- rg
eial lines of his location, and the end lines *
must be parallel in order that going down-
wards he shall cuMjuire no further length oi
the vein than the planes of thoee lines ex-
tended downward inclose. If the end lines
are not parallel, then following their planes
downwa]^ his rights will be either converg-
ing and HiTniniahiTig nr ^ivATging ttnH increas-
ing the farUier he descends into the eartk.
In viefw of this |)urpo8e and effect oi ihm
parallel end lines, it matters not to the prior
locator where the end lines of the junior loca-
tion are laid. No matter where they may bs^
they do not disturb in the sUghtest hk
surface or underground rights.
For these reasons, Uierefore, we are of
the opinion that the first question mnst bs
answered in the affirmative.
It may be observed in passing that the an-
swer to this question does not invcAve a de-
cision as to the full extent of the rights be-
neath the surface which the iunior locator
acquires. In other words, referring to the
first diagram, the inquiry is not wheth^o' the
owners of the Last Chance have a right to
pursue the vein as it descends into the groond
south of the dotted line r s, even thon^ tln^
should reach a point in the descent in whicn
the rights of the owners of the New York,
the prior location, have ceased. It is ob-
vious that the line e h, the end line of tte
New York daim, extended downward into
the earth will at a certain distance pees to
the south of the line r s, and a triangle of
the vein will be formed between the two
lines, which does not pass to the owners of
the New York. The question is not dis-
tinctly presented whether that triaagnlar
portion of the vein up to the limits of tiM
south end line of the Last Chance, b e.
extended vertically into the earth, belongs
to the owners of the Last Chance or not;
and therefore we do not pass upon it.
Periiaps the rights of the jnnic^ loeator
below the surface are limited to Um
length of the vein within the surface of tbs
territory patented to him, but it is nnnecss
sary now to consider that matter. AH tbst
comes fairly within the scooe of the question
before us is the right of Uie owners of Ibe
Last Chance to purade the vein as it dips into
the earth westerly between the line a d t and
the line r s, and to appropriate so wnth of
it as is not held by the prior location *of tbs [S^
New York, and to that extent only is tbs
question answered. The junior locator is en-
titled to have the benefit of making a kwa-
tion with parallel end lines. The extent of
that benefit is for further consideratioB.
The second Question needs no other siw
than that which is contained in the ifispusMoa
we have given to the first question, and ws
therefore pass it.
The third question is also practicallj an-
swered by the same considerations, and in
the view we have taken of the statutes tbs
171 IT. H
MT.
Dbl Mortb M. & M. Co. t. Labt Chancb M. & M. Co.
8»-8t
BuUAj ride of the New York lode mining
daim it not the end line of the Last Cliance
lode mining dftim.
The fourth question presents a matter of
inportance, particularly in view of the in-
ferences which have been drawn by some
trial courts, ^t&te and natdonal, from the
deckiooB of this courL That question
•
It the apex of a vein crosses one end
liae and one side line of a lode mining claim,
IS located thereon, can the locator of such
teiii fdlow it upon its dip beyond the verti-
cal side line of his location?"
The decisions to which we refer are Flag-
ftof Silver Mining Company v. Tarbety 08
U. S. 463 [25 : 253] ; Iron Silver Mining Com-
Msjf f, Elgin Mining d S, Company, 118 U.
B. 196 [30: OS]; Argentine Mining Company
w.Terrible Mining Company, 122 U. 8. 478
[30: 1140] ; £tn^ T.Amy d S.Consol. Min-
img Company, 152 U. 8. 222 [38 410].
Two of these cases have been already no-
ticed in this opinion. In Flagstaff Silver
Mimng dnnpany v. Tarhet a surface loca-
tioii, ^600 feet long and 100 feet wide had
been made. This location was so made on
the snpposition that it followed lengthwise
tbe course of the vein, and the claim was of
the ownership of 2,600 feet in length of such
nin. Subsequent explorations developed
that the course of the vein was at right an-
gles to that which had been supposed, and
thai it crossed the side lines, so that
thers was really but 100 feet of the
length of the vein within .the surface
area. It was held that the side lines
vere to be regarded as the end lines. In
Iron Silver Mining Company v. Elgin Mining
i 9. Company the location was in the form of
a horseshoe. The end lines were not parallel.
The location was quite irre^ar in form, and
rj*iiiasmuch as one of the side lines was sub-
stantially parallel with one of the end lines it
wu contended that this side line should be
considered an end line, and this although the
Tein did not pass through such side line.
But the conrt refused to recognize any such
contention and held that the end lines were
those which were in fact end lines of the
daim as located, and that as they were not
parallel there was no right to follow the vein
on its dip beyond the side lines. In Argen-
tine Mining Company v. Terrible Mining
Company the claims of the plaintiff and de-
fendant crossed each other, and in its decision
the eourt affirmed the ruling in Flagstaff
Silver Mining Company v. Tarbet, saying
(p. 45 [30:1142]):
**When, therefore, a mining claim crosses
the course of the lode or vein instead of being
**long the vein or lode,* the end lines are
those which measure the width of the claim
M it crosses the lode. Such is evidently the
Rttoing of the statute. The side lines are
those which measure the extent of the claim
^Bttch side of tne middle of the vein at the
•orface."
In JTtfi^ v. Amy d 8. Oonfol. Mining Com-
f^ ttie prior cases were reaffirmed and
those lines which on the face of the location
were apparently side lines were adjudged end
lines because the vein on its course passed
through them, the location being not along
the course of the vein but across it. But
in neither of these cases was the question now
before us presented or determined. All that
can be said to have been settled by them is,
first, that the lines of the location as made by
the locator are the only lines that will be rec-
ognized; that 'the courts have no power
to establish new lines or make a new loca-
tion; second, that the contemplation of the
statute is that the location shall be along the
course of the vein, reading, as it does, that a
mining claim ''may equal, but shall not ex-
ceed, 1,500 feet in length along the vein or
lode;" and, third, that when subsequent ex-
plorations disclose that the location has been
made, not alonc^ the course of the vein, but
across it, the side lines of the location become
in law the end lines. Nothing was said in
either of these cases as to how much of the
apex of the vein must be found within the
surface, or what rule obtains in case the vein
crosses only one *end line. So, when La^t [88]
Chance Mining Company v. Tyler Mining
Company, 157 U. S. 683, 696 [39: 859, 865],
was before us (in which the question here
stated was presented but not decided, the
case being disposed of on another ground) we
said, after referring to the prior cases, "but
there has been no decision as to what extra-
territorial rights exist if a vein enters at an
end and passes out at a side line.''
We pass, therefore, to an examination of
the provisions of tiie statute. Premising
that the discoverer of a vein makes the lo-
cation, that he is entitled to make a location
not exceeding 1,500 feet in length along the
course of such vein and not exceeding *'300
feet on each side of the middle of the vein at
the surface," that a location thus made dis-
closes end and side lines, that he is required
to make the end lines parallel, that by such
parallel end lines he places limits, not merely
to the surface area, but limits beyond which
below the surface he cannot go on the course
of the vein, that it must be assumed that he
will take all of the length of the vein that he
can, we find from § 2322 that he is en-
titled to "all veins, lodes, and ledges through-
out thehr entire depth, the top or apex of
which lies inside of such surface lines ex-
tended downward vertically." Every vein
whose apex is within the vertical limits of his
surface lines passes to him by virtue of his
location. He is not limited to only those
veins which extend from one end line to
another, or from one side line to another, or
from one line of any kind to another, but he
is entitled to every vein whose top or apex
lies within his surface lines. Not only is he
entitled to all veins whose apexes are within
such limits, but he is entitled to them
throughout their entire depth, "although
such veins, lodes, or ledges may so far depart
from a perpendicular in their course down-
ward as to extend outside the vertical side
lines of such surface locations." In other
words, given a vein whose apex is within his
surface limits, he san pursue that vein as far
85
8&-91
SuPRUME Court op the United States.
Oct. Tkkm.
as ho pleases in its doAvnward course outside
the vertical side lines. But he can pursue
the vein in its depth only outside the vertical
side lines of his location, for the statute pro-
vides that the ''right of possession to such
£89] outside *parts of such veins or ledges shall
be confined to such portions thereof as lie be-
tween vertical planes drawn downward as
above described, through the end lines of their
locations, so continued in theif own direction
that such planes will intersect such exterior
parts of such veins or lodes."
This places a limit on the length of the
vein beyond which he may not go, but it does
not say that he shall not go outside the verti-
cal side lines unless the vein in its course
reaches the vertical planes of the end lines.
Nowhere is it said that he must have a vein
which either on or below the surteuse extends
from end line to end line in order to pursue
that vein m its dip outside the vertical side
lines. Naming limits beyond which a grant
does not go is not equivalent to saying that
nothing is granted wnich does not ext^d to
those limits. The locator is given a right to
pursue any vein, whose apex is within Ms sur-
face limits, on its dip outside the vertical side
lines, but may not in such pursuit go beyond
the vertical end lines. And this is all that
the statute provides. Suppose a vein enters
at an end line, but terminates half way across
the length of the location, his right to follow
that vein on its dip beyond the vertical side
lines is as plainly given by the statute as
tiiough in its course it had extended to the
farther end line. It is a vein, *'the top or
apex of which lies inside of such surface tines
extended downward vertically" and the same
it true if it enters at an end uid passes out at
a side line.
Our conclusions may be summed up in these
propositions: First, the location as made on
the surface by the locator determines the ex-
tent of rights below the surface. Second, the
end lines, as he marks them on the sur-
face, with the single exception hereinafter no-
ticed, place the limits beyond which he may
Bot go in the appropriation of any vein or
veins along their course or strike. Third,
every vein "the top or apex of which lies in-
ride of such surface lines extended downward
vertically" becomes his by virtue* of his
location, and he may pursue it to anv
depth beyond his vertical side lines, al-
though in so doing he enters beneath the
surface of some other proprietor. Fourth, the
only exception to the rule that the end lines
of the location as the locator places them es-
190] tablish the *limit8 beyond which he may not
go in the appropriation of a vein on its course
or strike is where it is developed that in fact
the location has been placed, not alons, but
Across, the course of the vein. In sucn case
■the law declares that those which the locator
<»lled his side lines are his end lines, and
those which he called end lines are in fact
•side lines, and this upon the proposition that
it was the intent of Congress to give to the lo-
4»itor only so many feet of the length of the<
Tein, that length to be bounded by the lines
which the locator has established of his loca-
86
tion. "Our laws have attempted to estabiirii
a rule by which each claim shall be bo many
feet of the vein, lengthwise of ita course, to
any depth below the surface, although later-
ally its Inclination shall carry it ever so far
from a perpendicular." Flagstaff Silver Min-
ing Company v. Tarhet, 98 U. S. 4d3, 468
[25:253, 255].
These conclusions find support in the fol-
lowing decisions: Stevens vJiVilliame, 1 Me-
Crary, 480, 490, in which is given the charge of
Ml*. Justice Miller to a jury, in the course of
which he savs: "You must take all the evi-
dence together; you must take the poiid
where it ends on the south, where it esMB tm
the north, where it begins on the west and is
lost on the east, and the course it takes; and
from all that you are to say what ia its gen-
eral course. The plaintiff is not bound to lay
his side lines perfectly parallel wiiii the oonras
or strike of the lode, so as to cover it exactly.
His location may be made one way or the
other, and it may so run that he croesei it
the other way. In such, event his end linei
become his side lines, and he can only pome
it to his side lines, vertically extended, as
though they were his end lines, but if be han-
pens to stnke out diagonally, as far as ■»
side lines include the apex, so far he can pnr-
sue it laterally." Wakeman v. NorUmj de-
cided by the supreme court of Colorado, June
1, 1897, 49 Pac. 283, in which Mr. Justice Qod-
dard, whose opinions, by virtue of his kag
experience as trial judge in the mining dis-
tricts of Leadville and Aspen, as well as on
the supreme bench of the state, are entitled
to great consideration, said, p. 28<6: In in-
structing the jury that, .in order to give any
extralateral rights, it was essential that Um
apex or top of a vein should on its ^course pass [f j
through both end lines of a claim, the eoort
imposed a condition that has not heretofors
been announced as an essential to Jie exei^
cise of such right in any of the adjudicated
cases." Fitzgerald v. Ctorib, 17 Mont. 106
[30 L. R. A. 803], a case now pending in this
court on writ of error. Tyler Mining Cow^-
pany v. L<ut Chance Mining Compttny, oourt
of appeals, ninth circuit, decided by Cureoit
Judge McKenna, now a justice of this court.
Circuit Judge Gilbert and District Judge
Hawley, 7 U. S. App. 463. Coneolidaied Wy-
oming Oold Mining Company v. Champiom
Mining Company , circuit court northern di^
trict California, decided by Hawley, District
Judge, 63 Fed. Rep. 640. Tyler Mining O^m-
pany v. Last Chance Mining Company, tir*
cuit court district of Idaho, dedded by Beat^
ty District Judge, who in the coant
of his opinion pertinently observed: "What
reason under the law can oe assigaed
why these rights shall not apply whcs
his location is such that his ledge passet
through it in some other way than
from end to end? The law does not say
that his ledge roust run fronr end to end, bat
he is granted this right of following 'all veins,
lodes, and ledges throughout their estirt
depth, the top or apex of which lies inside of
his surface lines.' Upon the fact thst an apes
is within Ms surface lines, all his undergroai
171 IT. ft
1817.
Clabk t. Fitzgbbald.
OK 92
riglits are based. When, then, he owns an
apex, whether it extends through the entire
or through but a part of its location, it
should loUow that he owns an equal length of
the ledge to its utmost depth. These are the
important rights granted by the law. Take
than away, and we take all from the law that
is of value to the miner." 71 Fed. Bep. 848,
851. Carson City Gold d Silver Mining Com-
pmtp T. North Star Mining Company, circuit
court northern district of California, decided
by Beatty, District Judge, 73 Fed. Rep. 697.
Republican Mining Company v. Tyler Min-
wg Company, circuit court of aopeals ninth
circuity decided by C^cuit Judges Gilbert and
Ross and District Judge Hawley, 48 U. 8.
App. 213. See also 2 Lindley on ACnes, ( 691.
The fourth question, therefore, is answered
fai the affinnative. '
The fifth i^uestion in effect seeks from this
It] court a decision *of the whole case, and there-
lofe is not one which this court is called upon
to answer. Croee ▼. Evans^ 167 U. S. 60
[42: 77] ; Wam&r T. Hfew Orleane, 167 U. 8.
W [42:239].
It will therefore be certified to the Court of
Appeals that the first question is ansuered in
the affinnative, the third in the negative, the
fourth in the affirmative. The second and
ffth are mot answered.
WILLIAM A. CLARK, Plff. in Err.,
V.
WILLIAM P. FITZGERALD et ah
(See & a Reporter's ed. 92, 98.)
L Del Monte Mining Go. T. Last Chance Mln-
las Co. ^71 U. & 92 [ante, 72] followed.
1 If the apex of a vein crosses one end line
and one side line of a lode mining claim, as
located thereon, the locator of each vein can
follow It upon Its dip beyond the vertical side
line of his location.
[No. 146.]
Argued December 7, 8, 1897, Decided May
tS, 1898.
IK ERROR io 4ihe Supreme Court of 4ihe
State of Montana to review the judgment of
thai oouit affirming the judgment of the Dis-
trict Court of the County of Silver Bow in said
state in favor of ^he plaintiffs, William F.
Fitzgerald et aU, aeainst the defendant, Wil-
liam A. Clark, for damages for ores extracted
from the Niagara lode mining claim in said
county and state, and adjudging that two
thirds of the vein in controversy are the
property of the plaintiffs. Affirmed.
See same case below, 17 Mont. 100 [30 L.
R.A.803].
Messrs. Robert B. Smith and Robert L.
Word, for plaintiff in error:
This cause comes here on a writ of error
directed to the supreme court of the state of
Montana, and the questions involved grow
«Dt of the following state of facts :
The plaintiff in error is the owner and in
possession of the 'Tlack Rock*' lode mining
171 V. 8.
claim situated in the "Summit Vall^" min*
ing district in Silver Bow county, Montana.
The defendants in error own two-thirds
interest, and the plaintiff in error one-third
interest in the "Niagara" lode mining claim
situated in the same district and county.
The "Niagara" lode lies alongside of the
"Black Rock" lode so that the south side
line of the ''Niagara" forms or is a part of
the north side line of the "Black Rock" lode.
The "Black Rock" lode is the older of the
two locations. As appears from the plead-
ings in the cause the vein or lead crosses
the east end line and south side line of the
"Niagara" lode 613 feet west of the north-
east corner of the "Black Rock" lode and
dips to the south and under the surface of
the "Black Kock" lode claim.
The plaintiff in error entered upon that
part of the vein east of the point where it
crosses the division side line between the
"Black Rock" and "Niagara" lode claims and
extracted ore from the said vein on its dip
under the "Black Rock" lode at Uie point
above described. '
Thereupon the defendants in error, who,
as stated supra, own two-thirds interest in
the "Niagara" lode claim, brought an action
askinff for an accounting and judgment for
two uiirds the value of the ore extracted
by the plaintiff in error. Judgment was
rendered against the plaintiff in error for
the sum of $27,242.54 being two thirds the
value of the ore extracted, and for ($234.50)
two hundred and thirty-four and 50-100 dol*
lars, the cost of the suit.
An appeal was taken to the supreme court
of the state and the judgment of the lower
court was affirmed.
The questions presented by this record for
decision are raised solely by the jud^^ment
roll consisting of the pleadings and judgment
of the lower court and opinion of the supreme
court of the state.
This cause presents to this court for the
first time a new question for adjudication.
In some respects analogous questions have
already been settled by this tribunal, but the
exact question here presented has never been
decided.
Last Chance Min, Co, v. Tyler Min. Co.,
157 U. S. 696 (39:865).
The apex of the vein or lode of the "Niaga-
ra" claim crosses the east end Hne and the
south side line of said "Niatj^ara" claim.
Tlie plaintiff in error entered upon said
vein upon its downward course or dip into
the earth and extracted therefrom ceitain
valuable ores, for an accounting of which
this action was brought.
The ore taken by the plaintiff in error was
from that portion of the vein which had its
apex within the surface lines of the "Niaga-
ra," but the ore was taken from the vein on
its downward course or dip, the vein dipped
to the south and underneath the *' Black
Rock" claim, and it was upon this dip or
downward course of the said xein tlmt the
plaintiff in error entered and extracted the
ore sued for.
The question thus presented for determi-
87
Supreme Coukt of the United States.
Oct. Tkbx,
Bation by this court by the pleadings in this
ease is as follows: Where a vein or lead of
quartz in place crosses one end line of the
surface location as marked upon the ground,
and also crosses one of the side lines of said
location, has the owner or patentee of such
location a right to follow the said lead, or
BO much thereof as has its apeT within the
Burfact lines of his location on its pitch or
dip into the earth outside of planes drawn
▼ertically downward through the surface
lines of his location?
By S 2320 of the Revised Statutes of the
United States it will be seen that the first re-
quirement of the statute in respect to the
it frequently happens that the side lines are
claims shall be parallel, and that so much
Tein as lies between planes drawn vertically
downward through Uie end lines until the
ledge is intersected bv such planee belongs to
the locator on ita dip into the earth. The
lines designated by the locator in his surface
location as end lines are not necessaril/ such;
it frequently happens that the side Imes are
in fact tiie end lines of the lode or vein.
Flagstaff Silver Min. Co, v. Tarbet, 98 U.
B. 463 (26: 253) ; Argentine Min. Co, v. Ter-
rible Min. Co, 122 U. S. 478 (30: 1140).
If, then, side lines which are not parallel
become end lines by reason of haviniir been
laid across thr strike of the vein, has the
daimant any extridateral rights?
What rights, then, can a claimant have
whose locatioii is so made that one o^ the
lines he de<«ignates as an end line, and ore of
his side lines, crosses the vein or ledge so
that the same departs from the claim
through one end line and one side line?
As the end lines of the **Niaffara" claim, or
rather the surface lines of the "Niagara,"
crossed by the vein or lode are not paralld,
have the respondents then any extralateral
or extraterritorial right? This auestion is
answered in the negative by the following au-
thorities :
Iron Silver Min, Co. v. Elgin If in. d Smelt-
ing Co. 118 U. S. 196 (30: 98), 14 Fed. Rep.
877 ; Montana Co. v. Clark, 42 Fed. Rep. 626 ;
King v. Amy d S. Consol. Min. Co, 152 U. S.
222 (38: 419) ; Colorado C. Coneol. Min Co.
V. Turck, 4 U. S. App. 290, 50 Fed. Rep. 888,
2 C. C. A. 67 ; Tombstone Mill, d Min. Co. v.
Way Up Min. Co. 1 Ariz. 426 ; Bi-ue Bird Min.
Co. V. Largey, 49 Fed. Rep. 291 ; McCormick
T. Vames, 2 Utah, 355.
Mr, JamiMi W. Forbts, for defendants in
error :
What is the effect of a vein crossintr both
end lines of a claim when in its course it
passes through a side line?
This court has in express tenrus stated that
the question liere presented ha^s never been
by this court decided.
. .Last Chance Min. Co. v. Tyler Min, Co, 157
U. S. 683 (39:859).
The act of May 10, 1872, required that the
end lines of each claim should be parallel,
and prohibited the claimant from passin^r be-
yond these end lines extended downward in-
definitely in their own direction.
Tliere may be numerous veins within the
88
daim and each may have a different eoimt
with many variations therefrcna, but tite
line of the dip for one and all t^ in the sane
direction — the direction fixed by the end line.
Whatever point on the claim may be se-
lected, whether it be at the end lines or the
center of the claim, there is no uncertainty
as to what is the plane of the daim, for it
has been determined by the fixing of the end
lines.
The statute expressly dedares th%t the
claimant shall have "all veins, lodes, or ledges
throughout thdr entire depth, the top or
apex of which lie inside such surface lines
extended downward vertically, although sodi
veins, lodes, or ledges mav so far depart from
the perpendicular in their course aownward
as to extend cutside the vertical side l«nes of
such surface locations."
The question, so far as this court b cob-
cemed, stands undedded.
In not a single case dted by plaintiff is
error was the auestion here in issue dis-
cussed or decided.
On the other hand, this identical qneetioa
has arisen and been decided, as \«^ contend is
correct, in the following cases:
Tyler Min. Co, v. Laat Chanee JTmi Oo. 7
U. S. App. 463, 54 Fed. Rep. 284, 4 C. C A.
329; Consolidated Wyoming Oold Min. Os. v.
Champion Min, Co. 68 Fed. Rep. 540; Dd
Monte Min. d MUL Co. r. Nmo York 4 L
C. Min. Co. 66 Fed. Rep. 212^ Tyler MitL Oo.
v.Last Chance Min.Oo.7lVtd.Bmp.S4S; Re-
publican Min. Co, V. Tyler Min. Co. 48 U. 8.
App. 213, 79 Fed. Rep. 733, 25 C. C. A. 178;
Carson City Oold d 8. Min. Oo. v. North 8tor
Min. Co, 73 Fed. Rep. 597; Pitegerald ▼.
Clark, 17 Mont. 100, SO L. R. A. 803 (the
case at bar).
The question is also discussed and te
same principle announced in —
Doe V. Sanger, 83 Cal. 203.
Mr. Justice Brewer delivered the opiata
of the court:
This case is before us on error to the su-
preme court of Montana. It is unnecenaiy
to state its facta in detail, and it is sufficient
to say that the answer given to the fourth
question in the opinion just fUod comprit em
affirmance of the judgment, and it it st
ordered.
JAMES JOHNSON, Plff. in Srr.,
t.
QEORGE F. DREW.
(See B, C Reporter's ed. 93-100.)
Equitable pleas in ejectment — defense apmntt
patent for land.
1. The rejection of equitable pleas la eject-
NoiB. — As to pre-emption riffhts — we DOtt
to United States t. PtUgerald. 10 : 785.
That patents for land may be set aids fer
fraudr-^ee note to Miller v. Kerr. 5 : 88L
As to errors in survtyi and desoriptioms to
patents for Umds; how oonstrued, — see aoCt ts
Watts V. Undaey. 5 : 428.
171 V. i.
ia97.
JOHNSOH T. DbBW.
U4-9(^
K«Bt !■ tmaMterUl, when the defendant conld
gl?« trldence of all matters of defense let np
In the equitable pleas under the plea of not
gvUty filed by him.
1 A partj cannot defend against a patent for
land, dnly Issned bjr the United States npon
an entry made at a local land office, on the
groond that he was in actual possession of
the iaad at the time of the Issue of the patent.
[No. 239.]
Suhmiiied April 28, 1898. Decided May SI,
1898.
IN ERROR to the Supreme Court of the
State ot Florida to review a judgment of that
eoort afllrming the judgment of the Circuit
Court of that state in an action of ejectment
brought by George F. Drew, plaintiff, against
James JohnyBon, to recover possession of a
tract id land, the judgment being for plain-
tiff. Afflrmed.
Statement bj Mr. Justice Brewert
In September, 1886, defendant in error
^Mwnmenced an action of ejectment in the dr-
cidt eourt of the state of Florida, for the
eoon^ of Hillsborough to recover possession
<ii a tiact of land described as follows:
liOt ei^t (8) of section nineteen (19),
township twenty-nine (20) south, of range
aiaeteen (19) east, and lot seven (7) of sec-
tkm twenty-four (24), in township twenty-
sine (29) south, of range eighteen (18) east,
containing about forty and nineteen one-
hnndredtha (40.19) acres."
The defendant, now plaintiff in error, filed
a plea of not (juilty and also a plea based on
equitable grounds. A demurrer to this lat-
ter plea was sustained, and thereupon the
ddendant asked leave to file an amended
equitable plea. Thia application was denied,
the court holding that the grounds of defense
set up therein were not sufficient That plea
alleged in substance that the plaintiff's title
rested on a patent from the United States, is-
fiied on a location of Valentine scrip; that
such scrip was, by the terms of the statute
under wmch it was issued, to be located only
upon unoccupied and unappropriated lands
of the United States; that the land in con-
troversy was, at the time of the location of
the scrip, a part or Fort Brooke military res-
ervation, and was also in the actual occu-
pancy of the defendant The case came on
for trial in September, 1889, and the defend-
ant offered evidence in support of all of his
defenses, including therein the matters set
up in the equitable plea which he had been
refused leave to file. This testimony was
hdd insufficient oy the court, and the trial
resulted in a verdict and judgment for the
I^Dtiff, which judgment was thereaiter,
and in June, 1894, aflirmed by the supreme
eourt of the state; whereupon the defendant
med out this writ of error.
The Valentine scrip act was passed April
IH]5, 1872 (17 Stat. at L. 649), chap. 89, *and au-
thorized the location of such scrip on "the
unoccupied and unappropriated public lands
of the United States, not mineral, and in
tracts not less than the subdivisions provided
171 U. 8.
for in the United States land laws." The
patent to the plaintiff was issued September
30, 1882, and recited that it was upon a loca-
tion of Valentine scrip, and in his equitable
plea defendant averred that the patent was-
predftcated upon an entry at the local land of-
fice of the United States at Gainesville,.
Florida. On August 18, 1856, Congresa
passed an act (11 Stat at L. 87, chap. 129)
containing this provision:
"That all public lands heretofore reserved
for military purposes in the state of Florida,
which said lands in the opinion of the Secre-
tary of War, are no longer useful or desired
for such purposes, or so much thereof as
daid Secretary may designate, shall be, and
are hereby, placed under the control of the
Qcoieral Land Office, to be disposed of and
sold in the same manner and under the same
regulations as other public lands of the
United States: Provided, That said landa
shall not be so placed under the control of
said General Land Office until said opinion
of the Secretary of War, giving his consent,,
communicated to the Secretary of the In-
'terior in writin^r, shall be filed and recorded.*^
At that time there was in existence what
was known as the Fort Brooke military res-
ervation, near the town of Tampa, florida.
As appears from the testimony offered by the-
defendant, on July 24, 1860, the Secretary of
War wrote to the Secretary of the Interior a»
follows:
War Departm^t, July 24, 1860.
Sir: Referring to the correspondence be*
tween the two departments on the subject^
I have the honor to inclose to you a report of
the quarter-master general lowing that
Fort Brooke is now in readiness to be turned
over to the Department of the Interior, in
pursuance of the arrangements made to that
effect
Very respectfully, your obedient servant,
John B. Floyd, Secretary of War.
Hon. J. Thompson, Secretary of the In-
terior.
•The inclosed report from the quartermaster [06)
general stated that all the movable property
of Uie government had been sold, lukl that
there was no reason why the military reser-
vation should not be turned over to the In-
terior Department Probably the ezigenciea
of the war, which soon thereafter commenced,
prevented any further action bv either de-
partment, for on April 6, 1870, the following
communication was sent by the Secretary d
War to the Secretary of the Interior:
War Department, Washington City,
April 6, 1870.
The Honorable Secretary of the Interior.
Sir: I have the honor to reply to a letter
addressed to this department by the Commis-
sioner of the Genend Land Office on the 26th
ultimo relative to the public lands occupied
by this department for military purposes at
Fort Brooke, Florida, and to inform you
that there is no longer any objection to their
8»
(
96-99
SoPRSsiE Court of the United States.
Oct. Tkhm«
disposition by the General Land Office under
the laws governing the subject
Very respectfully, your obedient senraat,
Wm. W. Belknap, Secretary of War.
From the date of tills last communication
up to 1877 the record discloses no action by
€rther department, but in January, 1877, the
Secretary of War requested that a military
reser\'ation at Fort Brooke be declared and
set apart by the executAve. Subsequently,
And on May 29, 1878, the Secretary of War
addressed a communication to the President,
as follows:
War Depaoianenlt, Washington CSty,
May 29, 1878.
To the President
Sir: In accordance with recommendation
of commanding general department of the
south, concurrM m by division commanders,
I have the honor to request that a military
reservation at the post of Fort Brooke,
Tampa, Florida, with boundaries as herein-
after described, may be duly declared and set
apait by the executive in lieu of the lands at
that pcKBt reserved by executive order dated
January 22, 1887, to wit: Beginning at the
intersection of the line which bounds the
(97] town *of Tampa on the south with the Hills*
borough river, running thence along said line
which bounds the town of Tampa on the
south, and in prolongation thereof north 68
degrees 46 minutes east 2,976 feet; thence
north 4 degrees 28 minutes west 2,342 feet
thence north 38 degrees east 1,052 feet
thence south 62 degrees east 469.2 feet
thence south 38 degrees west 1,062 feet
thence south 4 degrees 28 minutes east 1,931
feet; thence south 5 degrees 29 minutes east
2,007.2 feet to the Hillsborough bay; thence
westerly along the shore of Hillsborough bay
and the shore of Hillsborough river to the
glace of beginning, containing 166 and one
alf acres, more or less. A plat of the reser-
vation and report and notes and survey by
lieutenant James C. Bush, 6th artillery, are
inclosed herewith.
I have the honor to be, sir, with great
leepect, your obedient servant,
Geo. W. McCrary,
Secretary of War.
This request was approved and the reser-
▼ation was made and declared accordingly.
The plat, notes, and survey referred to in this
letter were not introduced in evidence, so
that the exact boundaries of the reservation
then ordered were not distinctly shown, nor
«an it be determined from the description in
the letter alone whether it included tne lands
in controversy. In March, 1883, this last
reservation was abandoned, and the land
again turned over to the Interior Depart-
ment Defendant also offered a diagram,
certified by the Commissioner of the Land
Office, of sections 18 and 19 of township 29,
range 19, and section 24 of township 29,
range 18, which, as the record recites, "shows
the contiguity of the land in question to that
portion of the Fort Brooke military reserva-
lion last relinquished by the Secretary of
War to the Secretary of the Interior." TIm
diagram is not very definite, and it is diffi-
cult to determine therefrom the boundariea
of either the earlier or later i?ort Brooke
military reservation. The defendant also of-
fered evidence tending to show that he en-
tered into occupation of the tract in oontn>>
versy in 1871, and had continued in
pancy ever since.
•Mr. Samael Y. Finl^j' for plaintiff la 1981
error. '' '
MesiTM. C. M. Cooper and ^. C. Cooper
for defendant in error.
Mr. Justice Brewer deliveied the opinloa
of the court:
The ruling of the trial court in siutalmiiff
the demurrer to the first equitable pl^imd
refusing leave to permit the second to be filed
presents no question for the consideratkm of
this court, for it was held by uie Bo^mMkt
court of the state that under the plea of w^
guilty all the matters of defense set op in
these equitable pleas could be offered in evi-
dence and made available; and, in fact, tlie
defendant on the trial did offer his testimony
to establish them. So, the substantial rights
of the defendant were not prejudiced, and the
ruling involved merely a question of state
piactice.
We pass, therefore, to a oonsideratioB of
the merits of the case: Was the land with-
in the limits of any military reservation at
the time that it was patented? The sopi
court of the state said in respect to this
ter:
"There is doubt whether the documentary
evidence offered by the defendant showa that
the particular lots of land described in the
declaration were embraced in the Fort Brooka
reservation when the patent was issnad."
It is dear to us that thev were not. TIm
description of the reservation asked for in
the letter of May 29. 1878, from the Secrets^
of War to the President, is not of itaeli suffi-
cient to show whether tne land was within or
without the limits of such reservation. The
plat, notes and survey were not in evidenea.
But the record recites that the diagram, cer-
tified by the Commissioner of the Land Of-
fice, "shows the contiguity of the land in
qu^tion.*' If contiguous it was not within,
and while the diagram is unsatisfactory, yet
it tends to support this statement of the ree-
ord. Again, the testimony of the defendant
is that he entered into possession of ^s land
in 1871, which was before the reservation was
established, and 'continued in such possession [§§]
imtii after the restoration in 1883, and this
is in accord with the averments in the equit-
able plea. This also indicates Inat the land
was not included in any government reser>
vation. Further and finally, the plat on file
in the General Land Office, and a part of the
public records, puts the question at rest and
locates the land outside the reservation.
Hence, as shown by the testimony and by ths
public records, this land ever since 1870 has
been part of tne public lands of the United
171 IT. &
1897.
TiMSLKT y. AHDSBSOir.
99- 101
States, and subject to disposal in accordance
with the genera] land laws. It was unappro-
priated land within the meaning of the act of
1872.
It being so a part of the public domain,
•object to administration bv the land depart-
ment and to disposal in the orainary way,
the question i^rises whether a party can de-
foid against a patent duly issuecf therefor
upon an entry nuide in the local land office on
the ground that he was in actual possession
of the land at the time of the issue of the
patent? We are of opinion that he cannot.
It appears from the testimony that the de-
fendant, although in occupation of this land,
■a he says, from 1871, never attempted to
malce any entry in the local land office, never
took any steps to secure a title, and in fact
did nothing until after the issue of a patent,
when he began to make inquiry as to his
ioppoeed rights. But whether a party was
or was not in possession of a particular tract
at a given time is a question of fact^ depend-
ing upon parol testimony; and if there is
any one tmng respecting the administration
of the pubUe lands wuich must be considered
at settled by repeated adjudications of this
court, it is that the decision of the land de-
partment upon mere questions of fact is, in
the absence of fraud or deceit, conclusive,
and such questions cannot thereafter be re-
Htigated in the courts. The law in reference
to this matter was summed up in the case of
Bwrf mining y. Chicago, 8t, Paul, M, d 0. Rail-
wag Co. 163 V. S. 321, 323 [41: 17^ 176],
•a foUowB:
It has undoubtedly been affirmed over
and over again that in the administration of
the public land system of the United States
questions of fact are for the consideration
anu judgment of the land department, and
that it« judgment thereon is nnal. Whether.
lOOjfor instance, a certain tract la swamp *land
01 not, saline land or not, mineral land or not,
presents a question of fact not resting on rec-
ord, dependent on oral testimony; and it
cannot be doubted that the decision of the
land department, one way or the other, in
reference to those questions, is conclusive and
not open to relitigation in the courts, except
in those cases of fraud, etc., which permit
any determination to be re-examined. John-
9on V. Towsley, 13 Wall. 72 [20: 485]; 8t.
Jj0ux9 Btnelting d Ref, Company v. Kemp,
104 U. S. 636 [26: 876] ; Steel v. 8t. Louis
Smelting d Ref, Company, 106 U. S. 4^17 [27 :
22Cj; WHght v. Roacherry, 121 U. S. 488
[30: 1039] ; Heath v. Wallace, 138 U. S. 673
[34: 1063] ;McCormick v. Bayca, 169 U. S.
832 [40:171].
"But it is also equally true that when by
act of Congress a tract of land has been re-
served from homestead and pre-emption, or
dedicated to any special purpose, proceedings
in the land department in defiance of such
reservation or dedication, although culminat-
ing in a patent, transfer no title and may be
challenged in an action at law. In other
words, the action of the land department
cannot override the expressed will of Con-
gress, or convey away public lands in disre-
171 V. 8.
gard or defiance thereof. 8t^ Louia Smelting
d Ref. Company v. Kemp^ 104 U. S. 636. 046
[26:876,879]; WHght v. Roseberry, 121 U.
S. 488, 619 [30: 1039, 1048] ; Doolan v. Carr,
126 U. S. 618 [31 : 844] ; Davis's Admr. v.
Weibbold, 139 U. S. 607, 629 [35: 238, 246] ;
Knight v. United States Land Asso. 142 T^. S.
161 [36: 974].
Beference ia made in the brief to the act
of Congress of July 5, 1884 (23 Stat, at L.
103, chap. 214) concemin^^ the disposal of
abandoned and useless military reservations.
But obviously that statute can have no Rig-
nificance in this case, for the patent had is-
sued and the title passed from the govcm-
iiient prior to its enactment. We see no rea-
son to doubt that upon the facts in this case
the judgment of the Supreme Court of FlorU
da was right, and it is therefore affirmed.
THOMAS TINSLEY, Appt,
V.
ARCHIE R. ANDERSON, Sheriflf of Harrie
County, Texas.
(101]
SAME
e.
GAME.
(See 8. C. Reporter's ed. 101-108.)
Power of circuit courts — dismissal of hnhea$
corpus — equal protection of the laws-^
. .commitment for contempt — lien on prop'
. .erty, when a defense — jury trial.
1. Circuit courts of the United States should
not, except In nr^nt cases, relieve from cus-
tody, by bnbpns corpus, persons held under
state aathorlty In violation of a Federal right,
but should leave them to their remedy by re-
view.
2. The dismissal of a writ of habeas corpus
by the highest court of the state having Juris-
diction of the case Is reviewable by this court
on writ of error, If It denies the prlsouer any
right specially set up and claimed by him un-
der the Constitution, laws, or treaties of the
United States.
3. Equal protection of the laws Is not denied
by a law or course of procedure which would
have been applied to any other person In th^
state under similar circumstances and condi-
tions.
4. A commitment for contempt does not de-
prive a person of liberty without due process
of law, unless the commitment was void.
5. The claim of an equity or lien on property
held by an officer of a corporation to secure a
debt to himself does not defeat the jurisdic-
tion of a court which has appointed a receiver
NoTK. — When haheaji corpus may issue, and
whtm not: and from what courts and by what
fudges; what may be inquired into by writ of,
— see note to United States v. Hamilton. 1 :
400.
As to what questions may he considered on
habeas corpus, — see note to Re Carll, 27 : 288.
As to suspension of writ of habeets corpus,
— sec note to Luther v. Borden, 12 : 581.
As to what is due prootss of law, — see note to
Pearson v. Tewdall, 24 : 480.
91
Supreme Court of the United States.
Oct. Temm^
b/
for the corporation In a suit to which the ofD-
/ eer Is a party, after hearing on due notice and
appearance, to order him to turn over such
property to the receiver.
6w A Jury trial is not necessary to due process
of law on an inquiry for contempt.
[N08. 632, 633.]
Argued May 5, 6, 1898. Decided May SI,
1898.
APPEAL from a judgment of the Circuit
Court of tbe United States I6r the Northern
District of Texas dismissing a writ of habeas
corpus to inquire into the cause of the im-
prisonment of Thomas Tinsdey for a con-
tempt; and in error to the Court of Criminal
Appeals of the State of Texas to review a
judgment dasmissing a writ of habeas corpus
and remanding said Tinsley.«to the custody
of i^e sAieriff for the same contempt of court,
which was disobeying the order of the IMs-
triot Court oi the County of Hanis in said
State, requiring him to deliver to the re-
ceavcu" of the Hou«(txm Cemetery Company
certain books and property of t^t company.
Judgments of the Circuit Court and of ike
Court of Criminal Appeals affirmed.
See same case below (Tex. Civ. Aro.) 36
S. W. Rep. 802, 37 Tex. Crim. Sep. . 4X>
S. W. 306. .
The facts are stated in the opinion.
Mr. James Ii. Bisbop for appellant and
plaintiff in enor:
The commiunent and the order on wbt^ it
was made weie void.
Distinct and incompatible proceedinga
were blended in one judgment.
Be Chiles, 22 WalL 157 (22: 819) ; Peo-
ple, MunseU, y.NewYork County Ot. of Over
d Terminer, 101 N. T. 245, 54 Am. Rep. 001.
Regarding the order as made in the pro-
ceeding as a civil remedy directing the appel*
lant to delivei the proper^ specified to the
receiver, or in default of delivery that he b»
As to powers of oourt to putUsh for contempt,
note to Be parte Robinson, 22 : 205.
That there is no review of decree punishing
for contempt; limits to rule, — see note to New
Orleans v. New York Mail 8. S. Co.* 22 : 854.
As to powers and duties of receivers, — see
note to Davis v. Gray, 21 : 447.
As to presumption of innocence in habeas cor-
pus proceedings, — see note to State v. Jones
(N. 0 22 L. R. A. 678.
As to jurisdiction of United 8tates courts, to
issue writs of habeas corp%is, — see note to Re
ReinlU (C C. a D. N. T.) 4 L. R A. 286.
Babeas corpus: power of Federal courts to is-
sue: in what cases; when discharge granted;
review of decisions; contempt proceedings.
The circuit courts of the United States have
inrisdlction to issue a writ of habeas corpus in
favor of a person unlawfully restrained of his
liberty by state oiBcers under a statute in vio-
lation of the Constitution of the United States.
Baker v. Grice. 169 U. & 284 (42: 748).
Error in submitting to the Jury only the
aucstlon of murder In the first degree, while
lie evidence Is snfllcient at the most to convict
of murder in the second desree, does not con-
stitute such a JurlsdlctioDal defect in a con-
viction for murder In the first degree as to sus-
tain a writ of habeas corpus. Crossley v. Cal-
ifornia, 168 U. 8. 640 (42:610).
The action of the circuit court of the United
States in refusing to grant appeals in habeas
corpus cases in favor of a prisoner under Judg-
ment of a state court cannot be revised on ap-
plication to the Supreme Court of the United
States for such a writ. Re Boardman, 169 U.
8. 39 (42:658).
A determination by a state court that Judg-
ment of conviction in a capital case shall not
be stayed, notwithstanding the pendency of an
appeal which is alleged to present Federal
questions, will not be interfered with by the
Supreme Court of the United States on a writ
of nabeas corpua Re Boardman, 169 U. S. 39
(42:653).
A Federal court will not on habeas corpus
discharge a prisoner charged with a violation
of the criminal laws of one state and appre-
hended In another, where it appears by the re-
citals contafned in the warrant under which
he was arrested and the record of the extradi-
tion proceedings, that no right, privilege, or
Immunity secured to him by the Constitution
and laws of the United States will be violated
bv remanding him to the custody of the agent
or the demanding state. Dawson v. Rusnln,
49 U. S. App. 674, 88 Fed. Rep. 806, 28 C. C. A.
354.
The regular course of justice in a state court
wl!1 not t>e Interfered with by habeas corpus
In a Federal court, unless the case is of an ex-
92
ceptlonal nature. Baker ▼. Grice, 160 U. ^
«o4 (42 ! T4o).
Habeas corpus will lie to prevent tbs execa-
tlon of the petitioner under order of a atata
court, pending an appeal in previous hi ~
cornus proceeding instituted by him in a
era! court, the effect of which is to stay pio-
ceedings in the stats court. Re Bbanks, 84 WeL,
Rep. 311.
Federal officers arrested under a charae mada
In stats courts will be discharged by a FMeral
court on habeas corpus where tfiere is no cioiiBd
for a criminal charge under the stats law&
Re Lewis, 83 Fed. Rep. 169.
The finding of a commissioner holding a
prisoner lor removal to another B^dsialdls-
trlct, as to probable cause to believe that ka
has been guilty of a crime, wlU not be dlatnrbsa
where the testimony, though not strona. teada
to show the commlnlon of the oltense ^laraed.
Re Price. 88 Fed. Rep. 880. «*««wfc
A writ of habeas corpus will not be craatsd
bv a Federal court to investigate the detentloa
of a person for selling cigarettes without a
license, under a plain statute making no dis-
criminations against foreign goods or foialaa
citizens, but simply requiring every person si^
gaged in the business of selling cigarettas ta
KL 42?*^*' "**°^ ^^ ^ ^^' ^ '^
The court cannot upon habeas corpus ravlsw
a Judgment of deportation made by a United
States commissioner In respect to a Chlneas
person upon the facts. Re Tsu Tse Mee. 81
Fed. Rep. 702. ^
A complaint In habeas corpus alleging Invalid-
ity of process or proceedings under wnlcfa tbs
party is held In custody must set out copies of
such process or proceedings, or the essential
parts thereof; and mere averments of concla-
sions of law are Inadequate. Craemer v. Wash-
inrton. 168 U. a 124 ^42 : 407).
writ of habeas corpus cannot perform tbs
office of a writ of error to review proceedings
in extradition before an officer authorised to
entertain such proceedings. It Is efficient only
to reach error fatal to the Jurisdiction of the
officer over the person accused, or over the sob-
Ject-matter of the accusation. Stemaman v
Peck. 61 U. S. App. 812. 80 Fed. Rep. 883, 96
C<. C A. 2l4.
Habeas corpu» wil' (i«s ro review an imprison-
ment under ^oc ««^a«:ence of a state court,
where the question U whether such court had
Jurisdiction to hear and determine the chara«.
te Walte. 81 Fed. Rep. 859. ^*^
Federal courts will not, except In extreme
cases, if at all. Interfere by habeas corpus witb
confinement of Insane person, because steps pr^
vided for by the state statute have not bees
followed, but the proper redress Is by applica-
tion to ^be state courts. Re Huse, 48 U. ft.
App. 818. 79 Fed. Rep. 305. 25 C. C. A. 1.
One held for extradition upon charge of tot'
gery should not be released upon habeas corpos,
171 v. 8.
isn.
TlHBLST V. AHDERSOH.
comoiittcd imUl h« make delivery, it tru
Toid for the rrason that the court hid no
■uthori^ in ■ proceeding to puniah for con-
tempt to det«rniine the rij(ht of passesnion
of property claimed adversely to the receiver
or give judgment for the payment of b, debt-
Ex parte Eollit, G9 Cal. 40ji Parker v.
Browning, 8 Paige, 388, 35 Am. Dee. 717;
Eovtmtyer t. jSan Francisco City d County
Super. Ct. 84 CbI. 385, 10 L. Tt. A. 627 ; Pacii
T.Gray, IS WoU. 2IS IZ\: 452) ; Baldwin v.
Wayne County Circuit Judge, 101 Mich.
119; ataU, Boardman, v. Ball, 6 Wash.
387; S« ilufhlfeld. Id App. Div. 401; Eie
parte Grace, 12 Iowa, 208, 79 Am. Dec. 634;
State Y. 8tart,1 Iowa, 601,74 Am. Dec. 278;
S» parte Hardy, 68 Ala. 303.
The unifotni rule ia that where a receiver
hu been appointed he cannot compel the de.
livery of property in the poEse-iaion of third
persona, who claim title or rittht to po^aes-
don mdverae to the judgment ilebtor by pro-
ceedings for coDtempt.
Rodman v. Henry, 17 N. Y. 182 ; BamarA
r. Kohhe, 64 N. Y. 618; West Side Pank v.
Pugaleg, 47 N. Y. 368: Ermv v. ffto/:, 3
App. Div. 587 ; fie Bavlik, 45 Neb. 747 ; Ed-
garton v. Hanna. 11 Ohio St. 323.
Juriedicttou means something more than
thttt a party lias been brought before the
court, or that the court has a ireneral juris-
diction ot tlie subject- mailer — it requires
that the pai'ticular aubjcct-matter ehall
have been brought into issue in the particu-
lar action before the court.
ICeynolds v. Stockton, 140 U S. 264 (35 i
404) ; Bigeloiu T. Forrest, S Wall. 331 (19:
fi9G) Seonwtar v. Blackytoek, 63 Va, 232;
RisUy V. I'ho^ia Bank, 83 N. Y. 318, 3^ Am.
Rep. 421; 8hawv.Broadbeni, 129 N. Y. 114;
Stanttard v. Babbell, 123 N. Y. B20; A«en t.
Far mere' Loan d T. Oo. IB App. Div.
27.
The title of the receiver related only to
the date of hJB appointment. He took the
pro[>erty as of that date subject to such
wbcT* tbeie «
the
legal, though c
s charge ol toi
deemed sulDelent
tSt,:-.:-
while the cenersJ rule li that partlea uuaer
{roaetutloo In state courts will not be released
J a Federal court on habeas corpus, but wlJl
be left to reach the United StaCea Supreme
Court by writ of error, the Federal court bss
ilie power to do so It special clrcumatsnces re-
qnJre. fia Grlce. TO Fed. Rep. &21.
Coons ol the United Slates may eierclse a
dlacretlon In determining the queatlou ol the
discharge of a person on habeas corpus who has
bea arrested as a fugitive In a state proceeding
In aid of a proaecaClon for the vlolallon of tbe
laws ot anothgr state. laslgl v. Vsn De Carr,
isa D. & 3I»1 (41^ 104B|.
A writ of habeas corpus cannot be made use
ot to perform the funcilons ot a writ ot error or
an appeal. Rs I.ennoD, IflS U. S. 548 (41 ;
UlOi: Rf Rowe, 40 U. S. App. CIS. 77 Fed.
B«. 161, 23 C. C. A. 108.
itj the dears* ot the crime, wl
divides It into de.^rees. with puniBumeaL y^ij-
lag aceoTdlng to tbe degree, although it Is er.
reneoaa. Is not a turladlctloDSt detect tor which
tlic enovlct can be releesed oo batieas corpus.
a* b^art. 160 D. 8. 481 (41 : 10B5).
Habeas corpus In contempt proceedlosa : Bx
ferU Smith. 177 111. 83; £» " ' " — ' B
V. B. 289 <82 : 40n) ; £« part, I.
IBS ; Be Iforrls, 30 San. 28 :
son. 27 Tex. App. e'iS; Ex 3
CaL 97 ; its Burrua, 188 D. B
[«Dgeiiberg V. Decker. 131 Ii :.
A. 108: Com. V. Bell. I4S P e
Brown, 97 Cal. 83 ; Re Whetat ;
Kt Tarktr, 8 Ulsc. ISO : Be I i.
436; Sa parte Wrlgbt. 82 N. _. _.■■
■asn, 1 Oblo N. P. 127 ; Jte Rosenberg, 90 Wis.
581 ; Bi sane Lenaon, 22 U. B. App. 581, 04
red. Kep. 320. 12 C C A. 134 : Ex parte
O-Brtes, 127 Ho. 47T.
The aneatlon ot error In an order caaaolldst-
Ini Indictments cannot be re-eianilned by writ
at habeas corpus, as error in that respect would
not make the Judgment end sentence void as
without Jurisdiction and authority. Howard v.
Called States. 4n II. 8. App. ST8. 75 Fed. Rep.
•88, 21 C. C A. 68(1. 84 L. R. A. n09.
After a decision of s state court of competent
tarlsdictlon when It la allii contended that th?
Federal Cooatitntlon bss been violated,
eial ooort has tbe power, a—" '" '- "■- ■
An executive warrant for the an
the from justtee will be upheld o
DM when the foreign indictment e
171 u. a.
mode ot detention
„ imlssioner ot Inte
collector, stating that a s
right to compel the proauctloi
.. .t_ (.(Hcets. and tliat the t
cords of the
latlon bavlQ); the
— ■- a Federal «
r for n
wll! entitle a Federal court to review o
corpus tbe imprleonmpnt of a collecto. .... .-
tusal to produce such records in compliance with
the order ot a state court. Re Qlrscb, 74 Fed.
Rep. 928.
One held onder proceaa legally Issued by the
courts ot a state Is not entitled to discharge
upon habeas corpus because of Illegal or fraudu-
lent extradition proceedings by which he waa
brouF^t Into the Jorladlctlon. Re Uoore, 75
Fed. I
]. 821.
Is poor and nn
■- - "--ring IE
'E?^""»
■ of the si
Ke Nelson, 69 Fed. 1 .
The decision of a state o
of error to a persou convicted of ciiiue ut leiui-
Ing to make II eHectuel cannot be revised by
habeas corpua proceedings In a Federal court.
Kobl V. Lehlbark, 160 iT 8. 29M (40 : 482).
The Insufficiency of an Indictment In a state
"■ - " be a ground for Interposition by
W
231 (40:406).
Habeas corpus will ile in a Federal court to
review tbe commitment by a state court ot a
deputy collector ot Internal revenue (or con-
tempt In refusing to disclose communications
made to bim by an applicant for a retail liquor
■ - for tt -• --■-■--
ot'Arls'ona cannot be created or determined
petition for a writ ot hsbeaa corpua in
n
SUPREMR COUBT OF THE UNITED STATES,
Oct.
fflghis of action as the corporation haJ, or as
be was clothed with by statute.
Re Schuylcr'a Steam Tow Boat Co. 13C N.
Y. 169, 20 L. R. A. 391 ; Connecticut Fiver
Bkg. Co. V. Rockbridge Co. 73 Fed. Rep. 709;
Storm y. Waddell, 2 Sandf. Ch. 4^1; Be
Muehlfeld, 12 App. Div. 492.
A complete departure from the prescribed
formalities, even though the parties wi^re ac-
tually present in court, would devest the
court of jurisdiction to render any judgment.
Ex parte Lange, 18 Wall. 163 (21: 872) ;
Ew parte Bain, 121 U. S. 1 (30: 649) ; Hopt
T. Utah, 110 U. S. 574 (28: 262) ; Edrington
V. Pridham, 65 Tex. 617.
The petition in the United States circuit
court contained the averment that petitioner
had not then and never had possession or
control, since the application for the re-
ceivership was made, of certain of the notes
mentioned in the judgment. This averment
was not controverted and it must be taken
as true in this court.
Kohl V. Lehlbacky 160 U. S. 296 (40:432) ;
Whittenv. Tomlinaon, 160 U. S. 231 (40:
406).
In effect, the appellant was sentenced to
an indefinite imprisonment. An order of
that character was beyond the power of tbm
court to make.
Ew parte Kearhy, 35 Tex. Grim. Rep. 531 ;
Edrington v. Pridham, 65 Tex. 617 ; Ex parf
Robinson, 19 Wall. 505 (22: 205) ; State v.
Kaiser, 20 Or. 50, 8 L. R. A. 584.
The court anticipated the default and com-
mitted the appellant in anticipation of the
disobedience. The commitment was there-
fore void. A man cannot be convicted of an of-
fense in anticipation of its being committed.
Re Chiles, 22 WaU. 157-169 (22: 81»-
823) ; Brinkley v. Brinkley, 47 N. Y. 40. 46;
Rice V. Ehele, 55 N. Y. 518 ; firet Nat. Bamk
V. Fitzpatriok, 80 Hun, 75; Fromme T.
Jarecky, 19 Misc. 483.
The sentence imposed being without a«-
thority of law, it was void, and the prisoner
was entitled to be discharged on halMsaA cor-
pus.
Re Bonner, 151 U. S. 242 (38: 140) : Rm
MiUs, 135 U. S. 263, 270 (34: 107, 110) ; Poo-
pie V. Carter, 48 Hun, 166; People, Ticeed,
Y.IAaoomb, 60 N. Y. 559, 19 Am. Rep. 211;
Com. V. Newton, 1 Grant, Gas. 453 ; Ex patrt^
Degener, 30 Tex. App. 566.
prison claimed to stand within the boundaries
of such state. Be Chaves, 72 Fed. Hep. 1000.
A habeas corpus is. properly granted iu the
case of an army officer arrested for selling
liquor on a military reservation in violation of
a state statute, involving the question whether
such statute Is operative within the limits of
the reservation. Be Ladd, 74 Fed. Rep. 31.
Persons held for deportation as alien immi-
grants coming into the country in violation of
the contract Tabor laws will be released on ha-
beas corpus, where the warrant of deportation
does not contain their names or any name or
names idem gonans, and there is no evidence
tending to identify them with any name or
names recited In the warrant. United States
V. Amor, 30 U. S. App. S02, 68 Fed. Rep. 885,
16 C. C. A. 60.
The circuit court of the United States should
not, except in cases of urgency, discharge upon
habeas corpus, from custody under warrants
Issued by a state court, one charged with the
offense, committed while president of a national
bank, of forgery by making false entries In the
books of the bank with Intent to defraud, where
he Is not indicted In any court of the United
States for such offense. New York v. Bno, 155
U. S. 89 (89:80).
The United States district court should not
sustain a writ of habeas corpus to discharge
a person convicted In a state court, where the
validity of the sentence can be tested by the
supreme court of the state, or a writ of error
from the Supreme Court of the United States
may be applied for. Pepke v. Cronan, 155 U.
S. 100 (39:84).
A dismissal by a state court of a petition for
a writ of habeas corpus to release a person from
a lunatic asylum, although incidentally accom-
?>aoied by a direction that he should remain in
be asylum, will not preclude a Federal court
from taking jurisdiction of a subsequent petl-
tloo for the same purpose. King v. McLean
Asylum, 21 U. S. App. 481, 64 Fed. Rep. 881,
12 C. C. A. 145, 26 L. R. A. 784.
A writ of habeas corpus will not be granted
to release a prisoner under indictment In the
District of Columbia, until his case has reached
a final determination In the district court. Be
Chapman, 156 U. S. 211 (39:401).
A Federal marshal and his deputies, when ar-
rested under process from a state court because
to save their own lives they killed a person
whom they were lawfully attempting to arrest
under process of a Federal court, will be re-
leased by the latter court on habeas corpus.
Kelly V. Georgia. 68 Fed. Rep. 662.
The repugnancy of a state statute to the state
Constitution does not authorise a writ of ha-
04
beas corpus from a court of the United
Andrews v. SwarU. 156 U. & 272 (39:422).
A defect in an indictment under state stat-
utes which are not repugnant to the Federal
Constitution does not give Jurisdiction to a Fed-
eral court to Interfere with the ezecntion of tte
sentence of a state court by writ of habeas cor-
pus. Bergemann v. Backer, 157 U. 8. 656
(39 : 845);
The violation of a provision In a state Con-
stitution, limiting the time for reprieves, does
not make an execution of the death sentence on
a governor's warrant and after the time named
In the sentence a violation of the prtsoBer*s
right to due process of law, or a deprlvatioo o(
any right, privilege, or immunity granted by
the Constitution of the United States, which
will authorize interference by habeas corpse
from a Federal court. Lambert v. Barrett, 167
U. S. 697 (39:865).
A prisoner is not entitled to discharge opoa
habeas corpus because be Is a negro and cdtlsens
of his race were not summoned for qnallfleatloa
as grand Jurors, where the state law directs tbe
selection of Jurors impartially from the dtlaeas
having the reoulslte qualifications ss votsrs.
and does not discriminate against men of tbe
African race. Ex parte Murray, 66 Fed. Rep. 207.
A denial In a state court of the right to
show that persons of the race of the accused
were arbitrarily excluded bv the sheriff from
the panel of grand and petit Juries solely be>
cause of their race does not defeat the Jurisdlc>
tlon of that court so as to warrant a writ of
habeas corpua Andrews v. Swarts, 166 U. 8.
272 (39 : 4^2).
While* the decision of an Inspecting ofllccr
touching the right of alien Immigrants to land,
when adverse to such right. Is made final by
United States statute, the court upon habeas
corpus may determine whether the person ex-
cluded Is or Is not an alien Immigrant Mts
Malola, 67 Fed. Rep. 114.
Habeas corpus will not lie to review proceed-
ings by which an alien immigrant is excluded as
likely to become a public charge* as Congress
has constltntionally vested in the commissioner
of immlKratlon, exclusive of the courts, the
final authority to determine whether an alien
shall be excluded from admission to this coun-
try. United States, Goldstein, v. Rogers. 66
Fed. Rep. 787.
The question whether one extradited from
one state to another was a fugitive from Justice
Is not so excluslvelv a Federal question that a
Federal court will discharge him on habeas cor-
¥us, where the question has not been raised Is
he state court. Bm parte Whit ten. 67 Fed.
Rep. 280.
171 u- a.
1897.
TlNSLEY V. AnDBBSOK.
102. 103
The order and eomniftment being vo\5, the
appellant was deprived of his liberty by the
fUte without due process of law, and was
entitled to his discharge on habeas cor-
pus.
Ew part9 Virginia, 100 U. 8. 339 (26*
876) ; Neal v. DeUnoare, 103 U. 8. 370 (26:
567); Tick Wo v. Hopkina, 118 U. S. 356
(30: 220) ; Oibaon v. Miaaisaippi^ 162 U. S.
565 (40: 1075) ; Scott v. MoNeal, 154 U. S.
34 (38:896).
Meun. l^resley K. Ewlng: and Henry F.
Ring, for appellee and defendant in error:
Id respect to the cause on error to the
highest court of the state, this court appears
to be without any jurisdictional right of re-
view, since no Federal right was specially
set up or claimed in the state court, the gen-
eral averment of want of due process of law
amounting to nothing.
Kohl y. Lehlhack, 160 U. S. 293 (40:
432) ; Whitien v. Tomlinson, 160 U. S. 231
(40: 406) ; Owley Stave Co. v. Butler County,
166 U. S. 64S (41: 1149) ; Leeper v. Texas,
139U. 8. 462 (35:225).
In respect to the appeal cause, the circuit
court properly exercised its discretion in re-
fusing to interfere with the state court's
process, and in leaving the relator to his
remedy in the state courts, and thence on er-
ror to this court.
Em parte Itoyall, 117 U. S. 241 (29: 868) ;
Ee Frederick, 149 U. 8. 70 (37: 663) ; Cook
F. Eart, 146 U. S. 183 (36: 934) ; Re Wood,
140 U. 8. 278 (35: 505) ; Whitten v. TomUn-
wn, 160 U. S. 231 (40: 406) ; Pepke v. Cro-
lum, 155U. 8. 100 (39:84).
The claim of denial of due process of law
appears utterly untenable.
Da/tie v. Beason, 133 U. 8. 333 (33: 637) ;
hcMion V. Ldke^ Shore d M, ^. Ry, Co. 22
U. S. App. 561, 565, 64 Fed. Rep. 320, 12 C.
a A. >34.
A jui^ trial is not necessary to due process
ot law in a contempt inquiry.
EUenbecker v. Plymouth County Dist. Ct.
134 U. a 31 (33: 801) ; Walker v. Saurinet,
92 U. 8. 90 (23:678).
The claim of denial of equal protection of
the law is without merit.
WalsioHY. Nevin, 128 U. 8. 578 (32:
644) ; Missouri P. R. Co. v. Mackey, 127 U.
S. 209 (32: 109).
Matters of fact adjudicated by the cotnmit-
tbg court cannot be tried anew on habeas
corpus.
Lennon v. Lake Shore d M. S. R. Co. 22 U.
8. App. 565, 64 Fed. Rep. 320, 12 C. C. A.
134; Davia ▼. Beaaon, 133 U. 8. 333 (33:
637).
The claim by relator that he cannot com-
ply a& to part of the notes, if true, is conclu-
sively met by his contumacious refusal to
comply with the order, as far as he admits
his ability to do so, the rule being well set-
tled that until the relator does this, and
then seeks in the committing court modifica-
tion of the order in other respects, he cannot
be relieved on habeas corpus.
As fifioon, 150 U. 8. 637 (37:1207).
171 V. 8.
*Mr. Chief Justice FvUer delivered the[10S]
opinion of the court:
The object of both these proceedings is
to obtain the discharge of Thomas Tinsley
from imprisonmeipt under an order com-
mitting him for contempt, under the follow-
ing circumstances:
On April 23, 1896, upon a petition for the
appointment of a receiver of the Houston Om-
eteiy (Company, a corporation of Texas, filed
against the corporation, and against Tinsley,
who was its president, and the other oflScers
of the corporation, both as such officers and
individually, by some in behalf of all, of the
owner of lots in the cemetery, the district
court of the county of Harris in the state of
Texas made an order appointing a receiver of
all the property of the corporation, and re-
quiring each of its officers, upon demand of
the receiver, to deliver to him any books,
papers, money, or property, or vouchers for
property, within their control, to which the
corporation was entitled. Upon appeal by
Tinsley and the other defendants from that
order it was aflirmed, on May 21, 1896, by
the couit of civil appeals of the state. 36
S. W. 802.
On February 2, 1S07, the receiver made a
motion to the district court to commit
Tinsley for contempt in refusing to deliver
to the receiver of a minute book, promissory
notes of the amount of $1,440.50, and a trust
fund, amounting to $402.52, belonging to the
corporation. A rule to show cause was
issued, in answer to which Tinsley averred
that the notes and the minute book had been
delivered by the corporation to him as col-
lateral security for monejr advanced by him
to the corporation, and that he had made, at
the expense to himself of $7.70, an investment
of the trust fund in securities which he had
ofTered, and was still ready, to deliver to the
receiver upon payment of this sum.
On February 6, 1897, the district court, after
taking eviaence and hearing the parties,
adjudged that Tinsley was guilty of a con-
tempt in disobeying its formei- order by not
delivering to the receiver the minute book,
notes, and trust fund, *being the property o^lOS]
the corporation and in his contix>l; and
ordered him to pay to the dherifT a fine of $100,
and to deliver to the receiver the property
aforesaid, and to 'be committed until he should
pay the fine and should (being allowed by
the sheriff reasonaible opportunity to do eo
if he should so desire) deliver the property
to the receiver, or until he should be dis-
charged by further order of the court. And
upon the same day he was accordingly com-
mitted tt> the county jail. On March 17,
1897, he presented to the judge of the dis-
trict court a petition for a writ of habeas
corpus, setting forth the above proceedings,
and alleging that the judgment and com-
mitment for contempt were void, and his
detention under them illegal for these
reasons: That his claim to the notes, minute
book, and trust fund was made in good faith,
and that he had the right thereto until de-
prived thereof by due course of law, and that
the proceedings on said motion and said
05
108-106
SuPREMR Court op the Unitkd States.
Oct.
judgment are not due process of law, and
that he ought not and cannot be by eucii
proceedings imprisoned or compelled to turn
4>ver said property and things, for tAiat there-
by he is deprived of a trial by due course of
law; that the judgment and commitment
were uncertain and indefinite, and did not
limit the time of his confinement under them ;
that the statute of the state provided that the
district court should not have the power to
imprison any person for a longer period than
three days for a contempt; and that the mat-
ters set up in said motion and judgment did
not and could not constitute a contempt.
This petition for a writ of habeas ocMrpus
was denied by the judge of the district oourt,
but on April 2, 1897, was granted by the
presiding judge ot the court <^ criminal ap-
peals of the state of Texas, and a writ of
habeas corpus issued, addressed to the sheriff,
who, on April 8, returned that tie held the
prisoner under the commitment for contempt.
After full arguments by bodi parties, the
court of crimimd appeals entered judgment,
dismissing the writ of habeas corpus, and re-
manding him to the custody of the sheriff, on
the ground that the order of commitment
for contempt was within the power of the
district court, at least so far as concerned the
notes and minute book, because Tinsley was
(104> *part7 to the suit in which the receiver was
appointed, and claimed no title, other than
by way of lien, in the notes and minute book,
and such lien, if genuine, would be preserved
to him against the property in the hands of
the receiver. 40 S. W. 306.
On April 26, 1897, Tinsley filed a motion
to set aside that judgment and for a rehear-
ing, which, after further written arguments
in his behalf, was overruled on May 12, 1897.
On May 16, 1897, upon a petition alleging
that by the order of commitment he "is de-
prived of his liberty, and will be, if he sub-
mits to the order, of his property, without
4ue process of law, in viomtion of the Oon-
«titution of the United States," he obtained
from the circuit court of the United States
tor the eastern district of Texas a writ ot
babeas corpus to tihe sheriff, whicfh, after a
hearing, was by the judgment of that oourt
dismissed and the prisoner remanded to
custody; and on January 21, 1898, he ap-
pealed from that judgment to this couit.
On January 31, 1898, he sued out a writ
•of error from this court to review the judg-
ment of the court of criminal appeals of the
fTtate of Texas, and filed in that court an
jLSsignment of errors, one of which was that
by the proceedings in that court '^e was
deprived of his liberty, and, if he submitted
to the order of the trial court, would be de-
prived of his property, without due process
•of law, in violation of Uie Constitution of the
United States and the 6th and 14th Amend-
ments thereto.*'
The two cases now betore us are the ap-
peal from the judgment of the circuit court
of the United Sutes, and the writ of error to
the court of criminal appeals of the state of
Texas.
The dismissal by the cirouit court of the
96
United States of its oiwn writ of
corpus was in accordance with the nde, re-
peatedly laid down by this court, that the
circuit courts of the United States, while they
have power to grant writs of habeas eorpoe
for the purpose of inquiring into the caoee of
restraint of liberty of any person in custody
under the authority of a state in violation
of the Ck)nstitution, a law or a treaty *of tbc(10l
United States, yet, except in cases of
peculiar urgency, ought not to exercise tbftt
jurisdiction by a discharge of the pcnon is
advance of a final determination oc his eeae
in the courts of the state, and, evm after
such final determination, will leave him to
his remedy to review it by writ of error from
this court. Em parte RoyaU, 117 U. 53. 241
[29:808],^ ha parte Fonda, 117 U. 8. 516
[29: 994] ; Re Frederick, 149 U. & 70 [37:
663]; Pepke v. Cronan, 166 U 8. 100 [39:
84] ; Bergemann v. Baokor, 157 U. 8. 665
[39 : 845] ; Whitien v. TonOineof^ 160 U. a
231 [40: 40ai : Baker v. Qrioe, 100 U. & fM
[42 L. ed. 748]. This case shows no such etr^
viimstanoes as to require departure from this
u'p.
It was argued in behalf of Tinsley that t^
judgment committing him for contempt was
not reviewable by thS court; citing the state-
ment in 0hettDOod*8 Case, 165 U. 8. 443, 463
[41: 782, 788], that "judgments in proceed-
ings in contonpt are not reviewable here oa
appeal or error. Hayes v. Fiedier, 102 U. 8.
121 [26: 96] ; Re Debs, 158 U. &564,573 [30:
1092,1096], and 169 U. & 251 [mem.]** Bat
that statement was made in rMard to sadi
judgments in independent proceraings for eoa-
tempt in the circuit courts of the United
States, and the reasoii is, as stated ia oases is-
ferred to in Hayes v. Fischer, obore cited,
thsit such judgments were ooosidersd as judg-
ments in criminal cases, in which this eoort
had no appellate jurisdiction from thoat
courts. Em parte Kearney, 7 Wheat: 38, 43
[5 : 391, 392] ; New Orleans v. New York Mml
Steamship Company, 20 WalL 387, 302 [22:
354, 357].
Hut the appellate jurisdiction of this eoort
from the state oourt extends to a ffaDoal jadc^
ment or decree in any suit, ctvil or crimuuu,
in the highest oourt of a state where a daei-
uon in the suit could be had, against a titk,
right> privilege, or immuni^, specially set «p
and claimed under the Constitatioa or a
treaty or statute of the United States. Bsf?.
Stat. § 709. Ooneequently, if the oider ef
the oouit of criminal appeals of the elate ef
Texas, being the highest court oi the state
having luriSiction w the case, dismisang ths
writ of habeas corpus issued by one <3 its
judges, and remanding the prisoner to cos-
tody, denied to him any rignt specially ast
up and claimed by him under the Ooostita-
tion, laws, or treaties oi the United States, H
is doubtless reviewable by this court oa writ
of *error. Newport Light Oofnpemy ▼. I^si^f lOH
port, 151 U. a 527, 542 [38 : 259. 264] ; iVpfcs^
V. Cronan, J 55 U. S. 100, 101 [39: 84. 85].
Wo perceive no reason for holding that say
such nghts were denied by the jiftdgmeat ol
the court of criminal appeals, ia view of te
171 v. a
Mr.
Cmvtbal National Bank op Bostoh t. biKYKMa.
iuo-iutf
taeti appcMliig in the record and the ^unds
01 wbidi that court proceeded as disclosed
hj its opinion.
Counsel asserts that the rights claimed
onder the Gonstitutioii of the United Sttaites
were the right to due process of law, and the
right to the equal protection of the laws.
The right to the equal protection of the
laws was certainly not denied, for it is appar-
ent tliat the same law or course of procedure
which was applied to Tinsley would have
been applied to any other person in the state
of Texas, under similar circumstances and
cAoUitions: and there is nothing in the rec-
ord on which to base an inference to the con-
trary.
Wis the right to due proceas of law de-
aied? If tlie committing court had jurisdic-
tion of the subject-matter and of the person.,
and power to make the order for disobedience
to which the judgment in contempt was ren-
dered, and to render that judgment, then the
court of criminal appeals could not do other-
wise than aischarge the vrrit of habeas cor-
pus and remand the petitioner. The writ
cannot be availed of as a writ of error or an
appeal, and if the commitment was not void
petitioner was not deprived of hit liberty
without due process of law.
The district court of Harris county, Texas,
WIS a court of general jurisdiction, and had
jurisdiction in the suit sgainat the Oemetery
CJompany and its otficers, including Tinsley,
who was not a stranffer, but a party, to the
titigation, aftor hearing had on due notice
end appearance by the defendants, to enter
the order appointing a receiver and uirecting
the company's officers to deliver to him, on
his demand therefor, the company's property
in their custodv, including the books, notes,
and moneys on hand, and to determine on the
facts that Tinsley was in contempt in refus-
ing to deliver such property, and assuredly to
adjudge this as to so much of the property as
he conceded belonged to the company, but
lOTJthe possession of which •he claimed the right
to retain only in order to enforce an alleged
lien.
The court of criminal appeals held that, as
Tinsley did not claim the legal title in the
note? and in the minute book, but merely an
equity or lien thereon to secure his debt; as
the order to turn over the property to the re-
enver was by no means an adjudication as
to his lien,which if it was a genuine lien
would be preserved to him in the handa of
the receiver; and as the effect of the order
was merely to place the articles in the hands
of the receiver for administration under the
orders of the court, — ^the distiict court un-
questionably had the power to make the order
as to these articles, and did not exceed its
jurisdiction in so doing. 80 that even though
the $492.52 was not a trust fund in his hands,
as the district court had decided, but a mere
debt due from him, because, as he alleged,
that sum had been taken by another, and he
had simply agreed to make ic good, the ad-
judication of the district court was neverthe-
Mw subtainable apart from' that item.
We concur in the view that it was un
171 U. a. U. 8.. Book 43.
doubtedly competent for the district court to
compel the surrender of the minute book and
notes in Tinsley's possession, and thai hm
could not be discharged on habeas corpus un-
til he had perform^ or offered to perfonn
so much of the order as it was witnin the
power of the district court to impose, even
though it may have been in some part in-
valid. Re Swan, 150 U. S. 637 [37: 1207].
The other objections suggested reqinre no
special consideration. It is said that the im-
porisonment for oontempt was limited hj
the staite stajtute to three days (art 1101,
Tex. Bev. Stat), but the state court held
that that stetute had reference to a quasi-
criminal contempt as a punishment, and not
to a civil cont^pt, where the authority of
the court is exercised by way of compelling
obedience. Bapaije, Contempt, § 21. This
is not a Federal question, and we accept the
ruling of the stete court in ito construction
of the statute. It is urged that the order of
commitment imposed an uncertain and in-
definite term of imprisonment; but the order
was that Tinsley should be conflned until he
complied, and the addition, "or *until he shall
be discharged by the further order of the
court," was merely intended to retain the
power to discharge him if the court should
thereafter conclude to do so, it being within
his own power to obtein his discharge at any
time by obeying the order. Nor is there any
force in the objection that no trial by junr
was awarded, for such trial was not demand-
ed, and a jury trial is not necessary to dus
process of law on an inquiry for contempt.
Walker v. Sauvinet, 92 U. S. 90 [23 : 678] ;
Eilenhecker v. Plymouth County Didriot
Court, 134 U. S. 31 [33: 801] ; Rapalje, Con-
tempt^ § 112.
The judgments of the Circuit Court and of
the Court of Criminal Appeals are sereraUp
affirmed.
CENTRAL NATIONAL BANK OF BOS-
TON et al.
V,
AARON R. STEVENS et al.
(See 8. C. Reporter's ed. 108, 100.)
Motion to amend mandate.
Wbere the motion to amend the mandate of
this court proceeds on a misconception of the
meaning of the Judgment and mandate, ths
motion will be denied.
[No. 88.]
Submitted May 9, 1898. Decided May Sli
1898.
IN ERROR to the Court of Appeals of th«
State of New York. On motion to amend the
mandate in this cause (reported in 169 U. S.
432, 42 L. ed. 807 ) so as to command that the
judgment be reversed only in the particulars
described in the opinion of this court. Motion
denied.
See same case below, 144 N. Y. 60.
9f
I
109. 110
SUFRBMB COUBT OF TAB UnITBD StaTU.
OOT.
Mr. Edward Winslow Paic^t 'or the
defendants in error, in favor of motion:
The opinion of the court seems to show
that the court intended to reverse the judg-
ment in the two particulars only which are
described in it. The mandate, however, com-
mands the reversal of the whole judgment.
The defendants in error move to amend
the mandate so that it conform to the opin-
ion.
It is the opinion of the counsel who signs
this brief that it is decidedly for the interest
of the defendants in error that the motion
be denied.
And for the following reasons: —
The whole judgment being reversed, there
must inevitably, under the laws of New
York, be a new trial of the whole action As
the defendants in error might succeed in the
new trial in all matters except those de-
scribed in the opinion of the court — as to be
reversed — there would be a general judgment
in hivor of the defendants In error like the
S resent jud^ent, except that it would omit
be injunction and the provision about the
plaintiffs in error proving their certificates.
Under that judgment there would of course
be a new sale and the bondholders could then
buy through the medium of a trustee other
than "Mr. Foster, thus relieving the case
from the difficulty described in the opinion
of the court.
It would also relieve the defendants in er-
ror from paying tiie costs of tlie court, since
there is not any way under the laws of New
York by whidi a successful plaintiff can be
made to pay costs to the defendant.
And they can also show, although a^ we
submit the present record shows, that not
any of the proo^eds of the certificates went
into the property. Nevertheless we make the
motion.
Mr, CJkarlee E. Pattersoa for plaintiffs
in error, in opposition to motion.
Per Ovriaatt The motion to amend the
mandate in the above case seems to proceed
OB a misconception of the meaning of the
judgment and mandate.
Tikt judgment of this court does not under-
take to a&ct or reverse the Judgment of the
supreme court of the state of New York, ex-
cept in to far as that judgment sought to *re-
ftndn tiie Central National Bank of Boston
and the other plaintiffs in error from proceed-
ing under and in accordance with the decree
9i tSie circuit court of the United States for
the northern district of New York, and to
eompel them toagain try in the supreme court
of New York matters tried and detennined
in the circuit court. As between the other
parties ^e judgment of the supreme court
of New York was, of course, left undisturbed,
and it is not perceived that the terms of the
mandate signify anything else, or imply the
consequences suggested by counseL
Tk4 motUm it oented.
NORTH AMERICAN COMMERCIAL OOM{llfl
PANY, Plff. in Err^
V.
UNITED STATES.
(See & C Reporter's ed. UO-187.)
Lease hy the government of the ettduMtve
right to take fur eeale — w^awimum nmmher
of aeaU — reduction of rental — Secretary
of the Treasury — damages,
1. No redaction of the per capita amount to be
paid for each sealskin taken and shipped by a
lessee of the goyerDment can be made on ae>
count of the limitation by the Secretary of
the Treasury of the number of seals that may
be killed, although by U. 8. Rev. SUt. | 1M2»
a proportionate reduction of the rents re-
served may be made, where the lease prorides
for an annual rental of $00,000 and in addltioa
thereto for a certain sum for each skin takes
and shipped, as this is In the nature of a
bonus or addition to the stated conslderatSoa.
2. The original provision for a maximum nuoi-
ber of seals to be taken by a lessee and a pro-
portionate reduction of the fixed rental In
case of a limitation, made by the act of Coa-
gress of 1870, is not done away with by im-
plication by the act of May 24, 1874. which re-
moves the restrlctiens imposed by U. S. Rer.
Stat. If 1060, 1962, concerning the months
during which seals may be taken and the
number to be taken on or about each ialand
respectively.
8. Assuming that the lessee took all the Hak oC
a catch of seals reduced by natural canaea,
yet when the number that might be killed
was limited by the act of the goTemmeat or
its agent, the Secretary of the Treasury, the
lessee was entitled to a reduction of the rental
reserved in the same proportion as the nusi-
ber of skins permitted bore to the maximum.
4. In reducing the number of seals whl^ sMy
be taken by a lessee of the government In the
Prlblloff islands, In the exercise of the power
reserved to him, it is Immaterial whether the
Secretary of the Treasury acta on hla own
Judgment, or in compliance with the wUl oC
the government as expressed by the treaty
with Great Britain.
5. The right to take fur aeals under a so-caUc4
lease from the government, which is expressly
subject to such regulations of the business aa
the United States may make, does not entitle
the lessee to any damages for a reduction oC
the catch allowed by the regulatlona, for
wlilch a reduction of rentala Is provided.
[No. 431.]
Argued Af>ra 18, 19, 1898, Decided Ma^ SJ.
1898,
ON WRIT OF CERTIORARI to the Unit-
ed StaJtes Circuit Court of Appeals for the
Second Circuit in an action brought by the
United States in the Circuit Court of the
United States for the Southern District of
New York against the North American Com-
mercial Company, to recover for rent under a
lease made by tibe Secretary of the Treasury
to the company of the right to engage in the
Non. — As to right of fishenf; suhordtmate ta
that of navigation, — see note to Wright v. Mai-
vaney (Wis.) 9 L. R. A. 807.
Aa to prescriptive rights of Ushsry; in ^Mle
navigable waters; in private waters, — see noCa
to Turner v. Hebron (Conn.) 14 L. R. A S8e.
171 U. 9
1697.
HOBTH AmKBIOAH COMlfBBGIAL CoMPAUT T. UhITSD 8ta1S8.
110-118
«f iakiBff fur seals on iht islaiidA of
St G«oq|« and §L Paul, in the tenitorx d
Akakm, mad for roymltiet upon tho tMb
taken* mad for ihB revenue tax <m the Mum,
the jndgBBent of the Circuit Court bdng in
favor 9i tbe United States for $84,687.50, wiitih
intereat and ooeta amounting to $107,257^9.
Jndgwieni of Circuit Court reversed, And
cause renutnded vntti direction to enter judg-
ment in favor of the United States for $76,-
C87^ with interest from April 1, 1894, etc.
See same case below, 74 Fed. Bep. 145.
Statement by Mr. Chief Justice Fnllert
This was an action brought by the United
States against the North American Commer-
cial Company to recover the sum of $132,-
187^, wHh interest, for rent reserved for Uie
vear ending April 1, 1804, under a so-called
lease, bearing date March 12, 1890, made by
the Secretary of tne Treasury to the com-
pany, and royalties upon 7,500 fur-seal
■Jdns taken and shipped by the company that
year in virtue of that inertrument, and for
Ijihe revenue tax of $2 on *each skin. The
d>im «f the goveniineirt consisted of Cheee
items:
Annual rentaL $60,000 00
Revenue tax on 7.500 skins at $2. . . 15,000 00
Per capita at $7.^ on 7.500 skins, 57,187 60
ToUL $132,187 6(f
And interest thereon from April 1, 1894.
The ease was tried by the circuit court
without a jury. The court found for the
United Sbates in the sum of $94,687.50, with
interest, and judgment was entered in their
fsTor for $107,257.29, principal, interest, and
costa 74 Fed. Rep. 145.
The company having taken a writ of error
to the dreuit court ol appeals for the second
drcnit, that oouit certified a certain question
arifling in the cause concerning which it de-
sired the inatruction;5 of this court for its
pn^>er decision, whereupon this court ordered
that the whole record and cause be sent up
for eonaiderBtion. A counterclaim of the
eompany against the United States for breach
oi the lease was disallowed and dismissed by
the circuit court, but not on the merits, and
vMiout prejudice to the right of the company
to enforce the same by any other proper legal
proeeeding.
The agreement of lease out of which the
etnae of action aniee is as follows:
This indenture, made in duplicate this
twelfth ^gr of Msjrch, 1890, by and between
William Windom, Secretary of the Treasury
of the United States, in pursuance of chapter
t of title 23, Revised Statutes, and the North
American Cconmercial Company, a corpora-
tion duly establiahed under the laws of the
iUte of Califomia, and acting by L liebee,
its preddent, in accordance with a resolution
of said corporation adopted at a meeting of
its board of directors. held January 4, 1890,
witaesseth: That the said Secretary of the
Treajniry, in consideration of the agreements
Wreinafter stated, hereby leases to the said
North American Commercial Company for a
torn of twenty years from the 'first day of
*^l^j, 1890, tne exclusive *right to engage in
171 U. S.
the business of taking fur seals on the la-
lasda of St. George and St. Paul, in the ter^
iliory of Alaska, and to send a vessel or vea-
sels to said islands for the skins ol such seals.
'The said North American Commercial
Company, in consideration of the rights se-
cured to it under this lease above stated, on
its part covenants and agrees to do the
things following, that is to say:
'*To pay to tine Treasurer of the United
States each year during the said term of
twenty years, as annual rental, the sum of
sixty thousand dollars, and in addition there-
to agrees to pay the revenue tax or duty of
two dollars laid u]pon each fur seal skin taken
and shipped by^it from the islands of St.
George and St Paul, and also to pay to said
Treasurer the lurther sum of seven dollars
dixty-two and one half cents apiece for each
and every fur seal skin taken and shipped
from said islands, and also to pay the sum of
fifty cents per gallon for each gallon of oil
sold by it niade from seals that may be taken
on said islands during the said period of
twenty years, and to secure the prompt pay-
ment of the sixty thousand dollars rental
above referred to the said company agrees
to deposit with the Secretary of uie Treasury
bonds of the United States to the amount
of fifty thousand dollars, face value, to be
held as a gusirantee for tiie annual pavment
of said sixty thousand dollars rental, the bt'
terest thereon when due to be collected and
paid to the North American Commercial
Company, provided the said company is not
in default ot payment of any part of the said
sixty thousand dollars rental.
'That it will furnish to the native inhab-
itants of said islands of St. George and St.
Paul fmnually sudi quantity or number of
dried salmon and such quantity of salt and
sudi number of salt barrels for preserving
their necessary supply of meat as the Secre-
tary of the Treasury shall from time to time
determine.
"That it will also furnish to the said in-
habitants eighty tons of coal annually and a
sufficient number of comfortable dwellings in
which said native inhabitants may reside, and
will keep *said dwellings in proper repai r,and[ 118]
will also provide and keep in repair such suit-
able schtwl-houses as may be necessary, and
will establish and maintain during eight
months of each year proper schools for the
education of the children on said islands, the
same to be taught by competent teachers^
who shall be paid by the company a fair com-
pensati<»i, all to the satisfaction of the Sec-
retary of the Treasury, and will alao provide
and maintain a suitable house for religioua
worship, and will also provide a competent
physician or physicians and necessary aoMi
proper medicines and medical supplies, and
will also provide the necessaries of life for tha '
widows and orphans and aged and infirm in-
habitants of said islands who are unable to
provide for themselves; all of which foregoing
agreements will be done and performs by
the said company free of all costs and charges
to said native inhabitants of said islands or
to the United States.
113-116
Supreme Court of the United States.
TThe annml rental, together with all other
payments to the United States provided for
in tiiis lease, shall be made and paid on or
before the fiist daj of April of each and every
year during the existence of iMa lease, be^
ginning wiUi the finrt day of April, 1891.
"The said company fomier agrees to em-
ploy the naitive inhabitants of said islands
to perform such labor upon the islands as
they are fitted to perform, and to pay therefor
a fair and just compensation, such as may be
fixed by the Secretary of the Treasury; and
also agrees to contribute, as far as in its
power, all reasonable efforts to secure the
comfort, health, education, and promote the
morals and civilization of said native inhabi-
tants.
''The said company also agrees faithfully
toobev and abide by all rule<i and regulations
that the Secretary of the Treasury has here-
tofore or may hereafter establish or make in
pursuance of law concerning the taking of
seals on said islands, and concerning the com-
•fort, morals, and other interests of said in-
halUtants, and all matters pertaining to said
islands and the taking of seals wit^iin the
possession d the United States. It also
agrees to obey and abide by any restrictions
or limitations upon the light to kill seals that
[114]the Secretary *of the Treasury shall judge
necessary, under the law for the preservation
of the seal fisheries of the United States ; and
it agrees that it will not kill or permit to be
killed, so far as it can prevent, in any year
a greater numiber of seals than is^ authorized
by the Secretary of the Treasury.'
"The said company further agrees that it
will not permit any of its agents to keep, sell,
give, or dispose of any <Ostilled spirits or
spirituous liquors or opium on either of said
islands or the waters adjacent thereto to any
of the native inhabitants of said islands, such
person not being a physician and furnishing
the same for use as a medicine.
"It is understood and agreed that the num-
ber of fur seals to be taken and killed for
their skins upon said 'slands by the North
American Commercial Company during the
year ending May 1, 1891, shaM not exceed
sixty thousand.
"The Secretary of the Treasury reserves the
light to terminate this l^ase sjhI bM rights
of the North American Commercial Company
under the same at any time on full and satis-
factory proof that the said company has vio-
lated any of the provisions and agreements
of this lease, or in any of the laws of thi"
United States, or any Treasury regulation re-
«>ecting the <ta.king of fur seals or concerning
the islands of St George and St. Paul or the
Inhabitants thereof."
The circuit court made eighteen findings,
including the following:
"Sixth. The said islands of St George and
fit Paul in the territory of Alaska are the
breeding ground of a herd of seals which in
the early spring moves northward to Behring
Sea, and are the habitat of that herd during
the summer and fall of each year; that the
seals land in great numbers upon the said
islands and divide into families, each consist-
100
: V .
• • •
• • •
ing of one male or bull and many females or
cows; that the young or male seals, or baehs*
lors as they are called, are not ^mit^H it
the breeding ground, but «re driven n^ by
the older males and oftentimes destroyed fay
them; that until such bachelor seals arrive
at the age of three or four years th^ ocenpj
other p<Nrtioos of the islands and can be
driven away from the breeding ground and
killed without disturbing the seals *on thefl
breeding grounds ; that a large proportion of
these young bachelor seals may be so killed
without diminishing the birth rate of Che
herd, and their skins a^ a valuable artide of
conmieroe and are more valuable than the
skins of the females or older males; that by
protecting the females and restricting the
capture to the bachelors the fisheries are es-
pable of a permanent sind annual supply of
skins which would fifford a valuable source
of revenue.
"Seventh. That after ths making of tbe
said lease by the said plaintiff and the said
defendant, the said defendant entered upon
the enjoyment of the right thereby granted
it; but on account of the enforcement by the
said plaintiff of the provisions of a conven-
tion or agreement maide and entered into by
the eaid plaintiff with the government of
Great Britain it prohibited and prevented the
said defendant, during the years 1890, 1891,
and 1892, from taking on the said islands ai
many seals as might have beoi taken withimt
diminution of the herd, and far less in eseb
year than the number mentioned in the asid
lease for the first year; the numbers taken is
those years being in 1890, 20>95; in 1891.
13,482; and in 1892, 7,547.
''Eighth. That for the said yeiirs of 1890,
1891, and 1892, it was agreed between the
Secretary of the Treasury and tne said de-
fendant that the said defendant should paj
to the said plaintiff for the seal iddns taxes
by it on the said islands the tax and sneb
proportionate part of the rental ol $GO,O00a]id
the per capita sum of seven dollars sixty-tiro
and one half cents, as the number of seels
taken bore to one hundred thousand, except
that for 1890 the per capita of seven doUsn
sixty- two and one half cents was not eo n-
duced.
"Ninth. That by a convention or agreeacat
with the government of Great Britain, eooh
raonly called the modtM vivendi^ the United
States promised, during the pendency of the
arbitration between those two govemmestf
relating to the Behring Sea controversy sad
the prese^nttion of Uie seals resorting to
those waters, to prohibit seal killing oa the
said islands in excess of 7,500 to be tains
from the islands for the subsistence of tbe
natives, and to use promptly its best efforts
to insure the enforcement of the prohibitioa
*'Tenth. That pursuant to such agreniient(ll<
the United States proh*bited and prsveoted
the said defendant from taking any eeali
whatever from the said islands during tbe
year 1893, and thus deprived the said dated-
ant of the benefit of its said lease.
"Eleventh. That the Secretary of the TreM>
ury did not exercise the diserstkxi eoafansd
171 U. •.
1897.
NOBTH AUMEXOAM CSOMMBBOIAL C^MFAMT T. XTllITBD BtATEM.
llG-llt
ipoQ lilm by Metion 1M2 of the Revised 8tei-
st«t to limit tho right of killing seals when
nefesmy for <the preservation of such seals,
and did not so linut or restrict the right of the
Mid defendant to take seals under ite said
lease for the year 1803, and that during that
jear it was not necessary or even desirable
for the preservation <^ such seals to limit the
killing of the seals upon the said islands to
the said number of 7«500 specified in the said
modus Vivendi,
Twelfth. That in the year 1893 the Unit-
ed States government itself, through the
agents oi the Treasury Department, took up
on the said islands 7^00 seals; that the said
defendant was permitted to co-operate in se-
lecting the aeals so killed, cmd to take, and
it did take and retain the skins of those
seals, and in this way, and in this way only,
the defmdant received those 7,500 skins.
"In accordance with the power reserved to
him in aaid contract, the Secretary of the
Treasury at trhe commencement of the seal-
killing season for the year ending April 1,
1894, fixed the compensation of the natives
upon t2ie telaods of St Paul and St. George
to he paid to them by the defendant for kill-
ing tliMe seals, sorting the skins, and loading
them on board the defendant's steamer, at 60
cents for each skin taken from the islands dur-
ing the said season; and defendant paid to the
natives said compensation, to wit, the sum ol
13,760.
Thirteenth. Thai 20,000 bachelor seals
eould have been killed upon the said islands
dnring the year 1893 in the customary way,
without injury to or diminution of the herd,
and the said defendant would have taken that
number had it been permitted so to do.
"Fourteenth. That if the said defendant
had been allowed to and had taken in the
vfar 18»n. under its said lease, 20,000 seal
I7]*8kins, there would have been due to the said
[ilaintilf the $00,000 lental and for the per
capita of seven dollars and sixty two and
one half cents and the revenue tax of two dcl-
lu8 per skin, the sum of $192,500, making
together the sum of $262..f»00->that is, twelve
ifSHan and sixty-two and one half cents for
earh seal skin taken; that for the 7/>00 re-
mved by the said defendant, as above set
forth, it owes to the said plaintifT the said
van of twelve dollars and sixty-two and
one half cents apiece, amounting to the
■om of $94,687.60.
"Fifteenth. The defendant could have
t lold 12,500 more seal skins if it had been al-
lowed to take the same en the said islands
toing the year 1893, at the average market
price of twenty-four dollars for each skin;
whidi for the said number of 12,500 which
H ought have taken, but was prevented from
taking by the act of the government of the
United States, would amount to $300,000;
that for such 12,500 seal skins the said defend-
int would have been liable to pay, according
to the terms of its lease if it had taken 20,000
•eal aldns during that year, the sum of
twelve dollars a^ sixty-two and one half
ccBta each, amounting to $157,812.50, which,
^sing deducted from the price at which such
skins could have been sold, namely, $300,000.
leaves as the net loss sustained by the said
defendant in consequence of the breach of its
said lease by the said plaintiff, the sum of
$142,187.50, which is due and owing to the
said defendant by the said plaintiff; and
that its claim therefor would be a proper mat-
ter of counterclaim or credit in this action^
if the conditions prescribed by § 951 of the
United States Revised Statutes had been com-
plied with by the said defendant."
"Eighteenth. The defendant did not pre-
sent to the accoimting officers of the Treae>
ury for their examination any claim for dam-
ages by reason of the losses alleged to have
been incurred by the defendant bv reason of
the action of the United States in entering
into the said convention or modus vivcndi
with Great Britain and limiting the catch of
seals upon the said islands to 7,500; and such
claim was not disallowed by the accounting
officers of the Treasury in whole or in part,
and it was not proved *to the satisfaction of[118]
the court that the defendant was at the time
of the trial of this action in possession of
vouchers not before in its power to procure,
or that the defendant was prevented from
exhibiting its said alleged claim at the Treas-
ury by absence from the United States or by
unavoidable accident.'*
The circuit court made these conclusions
of law:
*^First. That tlie said defendant, having
received the said 7,500 seal skins taken from
the said islands during the year 1893, is liable
to pay the said plaintiff therefor the said
sum of $94,687.50, with interest thereon from
the first day of April, 1894; and the said
plaintiff is entitled to recover in this action
said sum, with interest as aforesaid, from
the said defendant.
"Second. That by reason of the breach of
the said lease by the said plaintiff, prohibit-
ing the said defendant from taking any eeal
skins during the year 1893, the said plain-
tiff is liable to the said defendant for the said
sum of $142,187.50, with interest thereon
from the first day of December, 1894.
''That on account of the same daim of the
said defendant against the said plaintiff for
damages for breach of the said lease not hav-
ing been presented to and disallowed by the
accounting officers of the Treasury, it cannot
be allowed as a counterclaim or credit in this
action, and the said counterclaim is therefore
dismissed, but not on the merits thereof, and
without prejudice to the right of the said
defendant to enforce the same by any othf r
proper legal proceeding."
Mr. Jamee O* Carter for r1t.inn!Q in
error.
Mr, John W. Ori^^e, Attorney General,
for defendant in error.
Mr. Chief Justice Fnller delivered the
opinion of the court :
By the act of Julv 27, 1868 ( 15 Stat, at K
240, chap. 273), the laws of the United States
relating to customs, commerce, and naviga*
tion were extended over all the mainland, is-
101
145-14.5
SUPKKMB COUKT OF THB UnITKD BTATkB.
Oct. Tkrm,
Company in its cross bill wa^ under the cir-
cumstances a proper subject of equitable cog-
nizance, and counsel claimed it was really
nothing but a legal cause of action in regard
to which the cross defendant was entitled to
a trial by jury under the Constitution of the
United States. There being room for doubt
in regard to the soimdness of such conten-
tion, the counsel also took an appeal to the
circuit court of appeals, and we think that
by this action he did not waive any right of
appeal which he would otherwise nave had.
Whichever roivte may be the correct one,
cither directly from the circuit court or
through t^e circuit court of appeals, it ia un-
necessary to decide, because the case is now
properly before us either by appeal or by the
writ of certiorari ; and we therefore proceed
to determine it upon the merits.
The Pullman Company, complainant in the
original suit, insists that it had the right to
discontinue that suit at its own cost before
any decree was obtained thereiii, and the re-
fusal of the court below to ^rant an order of
discontinuance upon its application is the first
ground of objection to tne decree herein.
The general proposition is true that a com-
[146]plainant in an equity *suit may dismiss his
bill at any time before the hearing, but to
this general proposition there are some well
recognized exceptions. Leave to dismiss a
bill is not granted where, beyond the inci-
dental annoyance of a second litigation upon
the subject-matter, such action would be
manifestly prejudicial to the defendant The
subject is treated of in City of Detroit v.
Detroit City Railway Company, in an opinion
by the circuit judge, and leported in 55 Fed.
Bep. 569, where many of the authorities are
collected, and the rule is stated substantially
as above. The rule is also referred to in
Chicago d Alton Railroad Company v. Union
Rolling Mill Company, 109 U. S. 702 [27:
1081].
From these cases we gather that there must
be some plain, legal prejudice to defendant
to authorize a denial of the motion to dis-
continue; such orejudioe must be other than
the mere prospect of future litigation ren-
dered possible by the discontinuance. If the
defendants have acquired some rights which
might be lost or rendered less efficient by the
discontinuance, then the court, in the exercise
of a sound discretion, 4nay deny the applica-
tion. Stevens v. The Railroads, 4 Fed. Rep.
97, 105. Unless there is an obvious viola-
tion of a fundamental rule of a court of
equity or an abuse of the discretion of the
court, the decision of a motion for leave to
discontinue will not be reviewed here.
Upon an examination of the facts relat-
ing to the motion, we think the circuit court
was right, in the exercise of its discretion, in
denying the same. The original bill was
framed really on two theories: One, that
by reason of an election male under the
eighth clause in the lease, the Pullman Com-
pany had terminated the lease, and it was
therefore bound under its provisions to re-
turn the property which it had received from
Mie Central Company. Itsuted in its bill
112
the impossibility of returning a large portiom
of the property which it had received; it an-
nounced its willingness to make substantial
performance of its contract contained in the
lease, and it asked the court to aid it therein
by decreeing exactly what it should do for
the purpose of carrying out equitably and
fairly its obligations incident to* its termina-
tion of the lease under the clause above men-
tioned. The other theory rested upon what
was *a substantial allegation of the invalidity[ 1 47i
of the lease as having ^n made without au-
thority of law, and therefore in violation of
the corporate duties of the Central Company,
and on tdiat account not enforceable against
the Pullman Company beyond the obligation
of the latter company to make return of just
compensation for the property denysed. Up-
on that theory the bill asked, not that the
court should set aside or cancel the lease, bat
that it should aid the parties by decreeing
just what relief should be given by the com-
Slainant to the lessor in the execution of its
uty to make some compensation foi the
property it received and which it stated its
willingness to make, and to that end, that an
accounting might be had and the amount
ascertained tluit should be paid to the
Central Company in discharge of the obliga-
tions of the complainant in that behalf.
Thus the Pullman Company came into a
court of equity and in substance alleged that
the lease had been terminated by it under the
eighth clause, and it also alleged that the
lease was void as ultra vires, and in either
event it tendered such relief as the conrt
might think was proper and fair under the
circumstances.
A large amount of proof had been taken
under the issues made in this original bill
and the answer thereto, and before the case
was concluded the decision of this court was
made in which the lease was declared to be
void. The only obligation left under the
original bill of complainant after the decision
of this court was the obligation to return
such portion of the property received by it as
the court should determine to be right, or to
make some compensation to the Central
Company for the same. And this obligation
it ha!d offered in the original bill to carry out.
The Pullman Company had also obtained
an injunction in the original suit, restraining
the Central Company from commencing fur-
ther legal proceedings to recover rent under
the lease, and after obtaining this injunction
and taking the testimony relating to the sub-
ject-matter of the original bill, the complain-
ant should not be permitted under these cir-
cumstances to dismiss that bill and thus with-
draw the whole case from the jurisdiction of
the court, and thereby blot out its ^tenders of[ 148]
relief contained in its original bill grounded,
among others, upon the allegation that the
lease was void, and asking the aid of the
court to decree the precise terms upon which
its obligations to tlie Central Company might
be fulfilled.
The denial of the motion was made in con-
nection with the application of the Central
Company to (ilea crosj bill in which it would
171 U. S.
1897.
North Ambbican Oomhbbcial Oompant t. Uiiitkd Statbb.
121-184
tiaiiaaoe at cuoh lease to be paid into the
Treasury of the United Statee; and the Secre-
tarj of the Treasury is hereby empowered
mmd ftnthorieed to miJca all needful rules and
reguiations for the ooUection and payment of
the same, for the comfort, maintenance, edu-
catknix AAd protection of the natives of said
fadmnds, and also for carrying into full effect
all the provisions of this act"
These provisions as well as others from the
prior legislation were carried forward into the
[lS9]ReTiaed Statutes, approved *June 22, 1874,
H 10>54 to 1976 constituting chapter 8 of
title 23, relating to the territory of Alaska,
•ad i§ 1956 to 1976 thereof to the subject un-
der consideration.
By f 1960 the killing of any fur seals upon
the islands or their adjacent waters was for-
bidd«i, except during June, July, September,
and October in each year, etc, wit^ the same
proviBO as in the Ist section of the act of
187a
SecUons 1962, 1963, 1968, 1969, 1972, and
1073 were as follows:
**Sec. 1962. For the period of twenty years
from tiie first of July, eighteen hundred and
eerenty, the number of fur seals which may
be killed for their skins upon the island of
St. Paul is limited to seventy-five tiuwsand
per annum; and the number of fur seals
which may be killed for their skins upon the
island of 6t Geoi^e is limited to twenty-
five thousand per annum; but the Secretarr
o< the Treasury may Hmit the right of kill-
ing, if it becomes necessaiy for the preserva-
tion of such seals, with such proportionate re-
daction of the rents reserved to the govern-
ment as may be proper; and every person
wlio knowin^y violates either of the pro-
Tisione of this section shall be punished as
provided in the preceding section.
''Sec 1963. When the lease heretofore
made by the Secretary of tiie Treasury to
'The Alaska Commercud Company,' of the
right to engage in taking fur seals on the
islands of Saint Paul and Saint George, pur-
suant to the act of July 1, 1870, chaf^ 189,
or wlien any future similar lease expires, or
is surrendered, forfeited, or terminated, the
Secretary shall lease to proper and responsible
parties, for the best advantage of the United
States, having due regard to the interests of
the sovemment, t^e native inha;bitants, their
oooalort, maintenance, and education, as well
as to the interests of the parties heretofore en-
gaged in trade and the protection of the fish-
eries, the right of taking fur seals on the
isbands herein named, and of sending a vessel
or vessels to the islands for the skins of such
eeals for the term of twenty years, at an an-
nual rental of not less than fifty thousand
dollars, to be reserved in such lease and se-
(ISSJcured by a deposit of United ^States bonds
to that amount, and every such lease shall be
duly executed in duplicate, and shall not be
tranef^uble."
"Sec 1968. If any person or company, un-
der any lease herein authorized, knowingly
kiUs, or pennita to be killed, any number of
seals etceeding the number for each island in
this chapter prescribed, such peraoa or com-
171 U. S.
pany shall, in addition to the penalties and
forfeitures herein provided, forfeit the whole
number of the skins of seals killed in that
year, or, in case the same have been disposed
of, then such person or company shall forfeit
the value of the same.
"Sec. 1969. In addition to the annual rental
required to be. reserved in every lease, aa pvo-
vided in section nineteen hundred and sixty-
three, a revenue tax or duty of two dollars la
laid upon each fur-seal skin taken and shipped
from the islands of Saint Paul and Saint
George, during the continuance of any lease,
to be paid into the Treasury of the United
States; and the Secretary of the Treasun^ is
empowered to make all needful reffulatione
for the collection and payment of zke same,
and to eecure the comfort, maintenance, edu-
cation, and protection of the natives of those
islands, and also to carry into full effect all
the provisions of this chapter except aa otiher-
wiee prescribed."
"Sec. 1972. Congress may at any time here-
after alter, amei^, or r^>eal sections from
nineteen hundred and sixty to nineteen hun-
dred and eeyenty-one, both indue&ve, of this
chapter.
"Sec 1973. The Secretary of the Treasury
is authorized to appoint one agent and three
assistant agents who shall be charged with
the management of the seal fisheries in Alas-
ka, and the performance of such other duties
as may be assigned to them by the Secretary
of the Treasury."
Pending the adoption of the Revised Stat-
utes, and on March 24, 1874 (18 Stat at L.
24, chap. 64), the act of July 1, 1870, was
amended so as to authorize the Secretary of
the Treasury to designate the months in
which fur seals "may ^ taken for their skins
on the islands of St. Paul and St Qeorge^
in Alaska, and in the waters adjacent there-
to, and the number to be taken on or about
the islands respectively." Thus the Revised
Statutes *were in effect amended so that[l£4]
whereas by f 1960 the months of June, July,
September, and October had been designated
as the months in which fur seals might be
taken on the islands and in the waters ad-
jacent thereto, for their skins, and by § 1962
the maximum number which might be killed
on the island of St Paul was limited to
75,000, and on the island of St Georse to
25,000, per annum, the Secretary of the
Tieasurjr was authorized by the amendatory
act to designate the months in which fiur
seals might be taken, and the number to be
taken on or about each island respectively.
The times of killing and the number to be
killed were left to Uie judgment of the Sec-
retary of the Treasury.
Muiif^ly the object the ^vemment had
in view throughout this Imslation was the
preservation by proper regulations of the fur-
bearing animals of Alaska, including, and
particmarly, the fur seals.
The first twenty vears being about to ex-
pire 'die Secretary of the Treasury on Decem-
ber 24, 1889, advertised for propoaals "for the
exclusive right to take fur seals upon the
islands of St Paul and St Qeorge, Alaska,
108
124-127
StTKEMK COUKr OK TUK UNITUU StATBS.
Oct. Tkmm,
for the ♦^rm of twenty (20) years from the
flnrt day of May, 1890. agreeably to the pro-
▼ieioiis of the statutes of the United States.''
Among other things, the advertisement
fftated: "The number of seals to be taken
for their skins upon said islands during the
year ending May 1, 1891, will be limited to
sixty thousand (60,000), and for the succeed-
ing years the number will be determined by
the Secretary of the Treasury, in accordance
with the provisions of law."
There were twelve proposals or bids, of
which the North American dkmimercial Oom-
pany put in three, numbered 10, 11, and 12,
each of which offered a gross sum as rental,
and, in addition to that and the revenue tax,
a royalty per capitem. The three bids set
forth the advertisement at length. No. 10
contained a proviso that the proposal was
made on the express condition that the Unit-.
ed States should not through the Secretary
of the Treasury, or otherwise, limit the skins
te be taken to any number less than 100,000
[126]skins per annum *after the first year of the
lease; and No. 12 made the express condition
that the United States should protect the
exclusive right of the fur-seal fisheries in and
within the islands and the waters known as
the "Behring Sea." No. 11 contained no
such express conditions, and it was this bid
which was accepted by the government The
lease in question wa3 thereupon entered into
'^ pursuance of chapter 3 of title 23, Revised
Statutes," as it recites.
By its terms, the c(Mnpany undertook, in
consideration of the lease for twenty years
of "the exclusive right to engage in the busi-
(less of taking fur seals on the islands of St
Greorge and St. Paul, in the territory of
Alaska, and to send a vessel or vessels to
said islands for the skins of such seals," "to
pay to the Treasurer of the United States each
year during the said term of twenty years, as
annual rental, the sum of sixty thousand
dollars, and in addition thereto agrees to pay
the revenue tax or duty of two dollars upon
each fur-seal skin taken and shipped by it
from the islands of St George and St. Paul,
and also to pay to said Treasurer the further
sum of seven dollars sixty-two and one half
cento apiece for each and every fur-seal skin
taken and shipped frcm said islands, . . .
and to secure the sixty thousand dollars rental
above referred to" to deposit United States
bonds of the face value of fifty thousand
dollars; and further "faithfully to obey and
abide by all rules arJ. regulations that the
Secretary of the Treasury has heretofore or
may hereafter establish or make in pursuance
of iaw concerning the taking of seals on said
idands, and concerning the comfort, morals,
and other interesto of said iphabitento, and
all matters pertaining to said islands and the
taking of seals withm the possession of the
Unit^ States. It also agrees to obey and
abide by any restrictions or limitations upon
the right to kill sealb that the Secretory of
the Treasury shall adjudge necessary, under
the law, for the preservation of the seal fish-
eries of the United States; and it agrees that
it will not lull, or permit to be killed, so far
104
as it can prevent, in any year a greater mni-
ber of seals than is aLthorixed by the Seert-
tary of the Treasury."
It was also agreed that "the annual rental,
together with *all other payments to the Unit-[
ed Stotes provided for in this lease, shall be
made and paid on or before the first day of
April of each and every year during
the existence of this lease, banning with the
first day of April, 1891." The lease also pro-
vided Uiat the number of fur seals to be
taken and killed for their skins during the
year ending May 1, 1891, should not exceed
60,000.
1. It is contended on behalf of the com-
pany that, conceding that the right of kill-
ing in 1893 had been duly limited to 7,500
seals, and that it took and received that num-
ber of skins as full performance of the cove-
nante of the lease on the part of the govern-
ment, it is entitled under § 1902 of the Re-
vised Stotutes to a proportionate redaction
of the rent reserved, that is, in the proportion
that 7,500 bears to 100,000; and that this re-
duction applies to th? per capita of $7.62 V^
for eauoh fur-seal skin taKon and shipped by
it, as well as to the $60,000 annual rental
On this theory, the company tendered to the
United States, before action brought, the
sum of $23,789.50, be^T;g $15,000 for the tax
on 7,500 skins; $4,500, three fortieths of the
annual rentol; and $4,289.50, three fortieths
of, the full royalty on the skins.
The latter branch of this contention may
be dismissed at once as untenable. By the
terms of the lease, the per capita of $7.62*^
for each and every skin was not a part of
the annual rental. The lease is explicit that
the annual rental is the sum of $60,000, and
that in addition the lessee shall y^y the rev-
enue duty of ^2 per skin, and also pay the
further sum of this royalty on each and every
skin. United States bonds were to be de-
posited '^ secure the prompt payment of
the sixty thousand dollars rent^ above re-
ferred to," and "the annual rental, together
with all other pa3rments to the United States
provided for in this lease," was to be paid on
or before the 1st of April of each and every
year.
We think the rent reserved as such was
this specified rnnual rental, and that tSe per
capito payment was in the nature of a bonus
in the sense of an addition to the stated con-
sideration.
*The Secretary was to lease to the be^ ad-[lt7:
vantage to the United States, and that in-
cluded the right to accept an offer of this
kind; and wmle the per capita was a part
of the return to the government, H does not
follow that the provision for reduction bad
reference to anything else than the specified
rental, nor is any other construction oom*
pelled by the fact that the per capita might
exceed the rental. Natural causes might di-
minish the catch so that this would not be
so, and, at all events, the construction of the
words of t^e statute and contract cannot b«
controlled by the amount of the reduction
in one view rather than the other. Of coursr
at the time the lease was made it is evident
171 U. i
i«r.
NORTB AMXRICAN CoifMEBOIAL OOMPAVT ▼. UNITBD StaTBB.
127-180
tlHi II wma fappoaed that 60,000 seals might
be taken annually, and on that baaia the per
eftpita royalty wouli^ be the principid eomr
pomdon of the government. This made it
directly to the interest of the government
to allow the largest possible catch, which
wts undoubtedly a reason for the offer of
the lessee in that form, as it tended to induce
^rett drcumspection in prescribing any lim-
itation.
On the other hand, it may be that each
eetl would coat more aa the number taken
WIS less, and that, if the price of skins did not
keep up, the company nught be subjected to
a loss, no matter how many it took, and the
loes might be greater the more it took. But
that was a risk the company assumed, and no
reason is perceived for relieving it from the
eonsequences.
The reduction of what the company agreed
to pay, so far aa the per capita was con-
cerned, r^ulated itself. The smaller the
number of sldns, the less the company would
pay, the larger the number, the more. We
conclude tnat there is no adequate ground
for holuing that there should be any reduc-
tion on the per capita, which necessuily had
to be paid.
By i 1962 of the Kevised Statutes it was
provided, as it had been by § 3 of the act of
1870, that for the period of twenty years from
July 1, 1870, the number of fur* seals which
mi^t be killed for their skins on the
idand of St Paul was limited to 75,000 per
annam, and the number which might be
killed on the island of St. vjreorge to 25.000:
28]t»at *the Secretaryof the Treasury might limit
the right of killiug if it became necessary for
the preservation of such seals, "with such
proportionate reduction of the rents reserved
to the government as may be oroper."
By § 5 of the act of 1870, that at the ex-
piration of the first term of twenty years, or
iti termination by surrender or forfeiture,
other leases might be made ''in manner as
aforesaid, for other terms of twenty years;"
and by § 1063 of the Bevised btatutes, that,
when the first lease, or any future similar
lease, expired, or was surrendered, forfeited,
or terminated the Secretary should again
Waae for the terra of twenty years.
It is argued with great force on behalf of
the government that whether reference be
had to the act of 1870. or to the Bevised Stat-
utes, the limitation of the maximum number
wu expressly made only for a period of
twenty years from July 1, 1870; that that
limitation determined with the expiration oi
that period, and that consequently the pro-
vision for a proportionate reduction of rental
in case of a limitation bv the Secretary did
sot afterwards apply. Sut, taking the en-
tire legislation into consideration, as we may,
uid indeed must, in accordance with well-
settled rules of construction, when interpreta-
tioa results in fairly differing meanings
{United States v. Lacker, 134 U. S. 624, 626
[33: 1080, i082] ; Barrett v. United States,
IM U. 8. 218, 227 [42 : 723, 726] ) , we are not
pennaded that this position is correct.
la giving authority to make the first lease,
171 U. B.
by I 4 of the act of 1870 the character of th#
lease waa described, and a provision for fur^
thar leases was made in f 5, which referred
back to the description in § 4 by saying that
other leases might be made, "in manner as
aforesaid, for other terms of twenty years," '
When« however, the statutes were revised,
the first lease had been executed and was
running, and the words "in manner as afore-
said" were eliminated. The provision for suc-
ceeding leases was made the subject of i .
19G3, and, in declaring what they should be,
the same language was used as that em-
ployed in the original act, whereby the char-
acter of future leases was indicated.
*And § 1068, taken from the latter part of[lW]
§ 5 of the act of 1870, provided for the for-
feiture of all the skins "if any person or com-
pany, under any lease herein authorized,
knowingly kills, or permits to be killed, any
number of seals exceeding the number for
each island in this chapter prescribed."
It is said that the words "under any tease
herein authorized," were intended to apply
to the then pending lease, and that the pur-
jK>se of the section was to provide for a for-
feiture against any new lessee who might
come m under a lease made on the happening
of either of the contingencies mentioned in
§ 1U63, as applied to the first lease, but we
think the operation of the section was not in-
tended to be thus restrained, and that it re-
ferred to any lease authorized under the
chapter, and applied the forfeiture to the
killing of seals m excess of the maximum
number prescribed, which was to remain, it, .
when the time arrived for a new bidding, no
change had been made by Congress. '
The revision of the statutes was approved
June 22, lsg4, but by the last section, §5601^
provision was made that legislation between
December 1, 1873, and the cUite of enactment
should take effect aa if passed subsequently*
Accordmgly the act of May 24, 1874, op«r-
ated by way of amendment, and by author-
izing the Secretary to designate the monthe
during which seals might be taken and the
number to be taken on or about each island
respectively, removed the restrictions im*
posed by f f 1060 and 1062 in those regards.
The next day after the approval of the aet»
the then Secretary availed himself of it by
entering into an agreement with the com*
puny that the lease of 1870 should be amended
so as to provide that not more than 00,000
seals should be killed per annum on the is- '
land of St Paul, aux^ not more than 10,000 ;
on the island of St. George, and that no seals
should be killed in anv other month except
the months of June, July, August to the 15th,
September, and October. It seems to us rea-
sonably clear that the specific restriction as
to number, whicn, with the other restriction
as to the montiis, it was the object of the
act to remove, had relation to the distribu-
tion *as between the two islands "respective-[18|^
ly," and if it were proper to resort to what
])as8ed in Congress no doubt could be enter-
tained on the subject. When the bill was re-
ported from the committee on commerce no
written report waa made, but its purpose and
106
130-188
SuPREMB Court of the Unttbd States.
OcE. Tuui,
ieope were explained on behalf of that com-
mittee in each house, and those explanations
dedared the object to be as above indica4;ed.
AlUiough the authority conferred as to the
times of killing and the nimiber to be killed
'. was continuing and discretionary, and al-
though the company in the present lease cove-
nanted that it would not kill in any year a
greater number than was authorized by the
Secretary, yet we think it would be going
. much too far to hold that the oriffinal provi-
sion for a maximum number, and a propor-
tionate reduction of the fixed rental m case
of a limitation, was done away with by im-
plication.
Repeals where the intention to do so is not
expr^sed are not favored, and moreover, here
the mischiefs sought to be remedied are quite
obvious. One was that it was evidently
thought that seals might properly be taken
during the first half of August, and the ex-
isting statute forbade this; the other was,
that the maximum was fixed for each island,
whereas it had probably been ascertained that
the distribution was erroneous, or that the
numbers that might be safely taken on one
or the other mignt vary, and consequently
that greater elasticity was desirable. The
lan^age by which these objects were at-
tained was entirely reconcilable with the
prior law so far as it did not purport to
change it.
The legislation from the b^^nins was di-
rected to the preservation of the fur seals,
and the act of 1870 recognized that it might
be necessary to such 'preservation that the
number to be killed in the different years
should be varied, and the discretion to do this
was vested in the Secretary, but while this
authority was made more comprehensive
by the act of 1874, and a redistribution as be-
tween the two islands authorized, we cannot
accept the view that it was the intention by
that act to wholly change the scheme of leas-
ing by making the discretion of the Secretary
purely arbitrary, and dispensing with any
maximum or rcKiuction.
|181] 'It should be added that the action of the
Treasury Department in the matter of the
abatement of rent for 1890, 1891, and 1892
does not impress us as amounting to such de-
partmental construction as entitles it to any
particular weight, and the views of the De-
partment of Justice were ccmflicting.
Reference is made to article 5 of the treaty
of 1892 extending the modus vivendi and the
action taken under it before the tribunal of
arbitration, as if amounting to an estoppd,
or an admission agaimt interest, or ai the
least as having some considerable bearing Km
the construction of the lease and the statutes.
That article provided, among other things,
that '*il ihe result of the arbitration shall be
to deny the right of British sealers to take
seals within the said waters, then compensa-
tion shall be made by Great Britain to the
United States (for itself, its citizens and les-
sees) for this agreement to limit the island
catdi to 7,500 a season, upon the basis of the
difference between this number and such lar-
ger catch sa in the opinion of the arbitrators
106
might have been taken withoat aa ondiis
diminution of the seal herds.'* And it ap-
pears that the United States originally f
sented as part of its case a claim lor uie
oovery of the damages which it and its
had sustained by reason of the limita^itTii to
7,500, but this claim was ootainly not pre-
sented as a claim which the company oonM
maintain against the Uuited States ooder the
lease, and it involved no question of the power
of (the Secretary in respect of Uie lessee nndv
the covenants of that instrument There
was no element of estoppel about the trans-
action, and counsel had no authority to bind
the government for any other purpooe than
the pending cause.
Moreover, counsel for the United Statei
were constrained to expressly admit tliat ths
evidence failed to establi^ that an additional
take over and above the 7,500 could have
been safely allowed. In the argument oa be-
half of the United States, Judge Blodgett, one
of the counsel, and all the counsel concurred,
made this statement: 'Trankneas requiree
us, as we think, to say tLat the proofs whick
appear in the counter case of the United
States as to the condition of the seal herd on
the Pribiloff islands show that the United
*States could not have allowed its lesseen tc{lM
have much, if any, exceeded the number of
skins allowed by the modus vivendi of 1892
without an undue diminution d the seal
held, and upon this branch of the case wt
simjdy call the attentioo of the tribunal to
the proofs, and submit the question to its dt-
cSsion." And later, counsel announced that
the United States would not ask the tribonal
for any finding for damages upon and under
article 6.
Our opinion is, that, assuming ihat the les-
see took all the risk of a caUm, redneed by
natural causes, ^et that whoi the namber
that might be killed was limited by the act
of the government or its agent, the Seoetaiy,
the company was entitled to such redoctioa
on the rental reserved as msght be proper,
and that the rule to be observed in that it-
gard would be a reduction in the same nro-
portlon as the number of sldns peimitted to
be taken bore to the maximum. This woald
reduce the annual rental lor the year nnder
ocmsideFation from $60,000 to $4/wk); the tax
due would be $15,000, and the per capita $57,-
187.50, making a total of $76,687.50.
2. Laying out of view the concBsrioa wm-
der the fint nroposition, the company fn*>
ther contended that the prohibition by the
United States, by agreonent with Great
Britain, of seal killing in excess of 7,500, to be
taken on t^ islands for the subsistence of ths
natives, relieved the company from its eov-
enantB for the payment of rent and royalty,
and that no action could be mslntainsd there-
for on the lease.
The evidence disclosed thai prior to 181$
the number of seals annually resortiag ts
these islands was rapidly diminishing. i%ie
was attributed to the open sea or pelaffie seal-
ing, whereby ^e seals, especially the femalei,
who were exempt from slaughter under the
laws of the United States, wws interrupted is
171 V. B.
im.
XiUJiTfl AMBBICAH CklMMKBCiAL COMTANT V. UNITIW th'ATM.
18d-lM
to the islands by the orews of
§oimgm t«imI0 and were killed in great nuxn-
bat whfle in the water. For several years
the United States, asserting that it had terri-
torial jurisdiction over Behrine sea, had been
striTing to prevent vessels of roreign nations
from smI hunting on the open waters thereof.
Great Britain denied the territorial juriedio-
Uon of the United States and denied that the
ll.SS]United States *had a right of property in the
fur aeala while on the high seas diuing their
progress to or from the islands of St. Paul
and St. George, and it became necessary to re-
sort to inter^tional regulation to prevent the
e9teraiina4ion of the seals. Indeed, it ap-
pears thsft the Treasury agent in oharge made
a repOTt to the Secretary of the Treasury af •
tor the season of 1890, in which he strenuous-
ly urged the necessity oi stopping sealing for
a number of years abe<^utely upon the islands
aa a necessary measure for the preservation
of the seals. On the 15tib of June, 1891, an
agreement for a modua vivendi was concluded
between the government of the United States
aad tlM government of Her Britannic Majesty
"Sn relation to the fur seal fisheries in Belhring
sea" (27 Stat. §A L. 980), whereby with a view
to promote the friendly settlement of the
questions between the two governments
touching their respective rights in Behrins
sea, *%iid for the preservation of the seu
species,^ it was agreed that seal killing should
be prohibited until the following May, al-
together by Great Britain, and by the United
States ''in excess of seventy-five hundred, to
be taken on the isknds for the subsistence
and care of the natives." This was followed
by a convtti'^n submitting to adrbitration the
questioDB concerning the jurisdictional rights
of the United States in Behring sea; 'Uhe
preservation of the fur seal in, or habitually
resorting to, l^e Mid sea," and the right to
take such seals, which was proclaimed May
9, 1892 (27 Stat at L. 947).
And under the same date the modiMiHrendi
was renewed during the pendency of the ar-
bitration. 27 Stat at L. 952.
The arbitral tribunal sat in. Paris in 1892-
%3, and the prohibition covered the killing
period for which recovery is sought in this
The learned circuit judge held that the
limitation under the modus vivendi was not
a de8i|iiatton by the Secretary, but was a
prohibition by the government; and, conse-
quently, that if the lessees had not received
any skins the action could not have been
maintained. But he held that as the 7,500
skins were received by the lessees they must
make compensation for them; that a proper
[184]way to determine *thi8 was to ascertain what
the fair product of the year, which might
•afdy be taken, was, and compute what Mdi
akin would have cost the company, assuming
they had taken that number; and by this
mode of computation, having found that
2OJ0O0 might properly have l^en taken, he
reached the sum of $94,687.50 as the amount
doe to the government
The circuit count found that the United I
(States, pursuant to tha modua vwendi. "pro- 1
171 V. M.
hjbited and prevented the said company from
taking any seals whatever from tlu» said
Islands during the year 1893, and thus de-
I>rived tiie said defendant of the benefit of its
akid lease." We think this so far partakes of
a conclusion of law that we are not shut up to
treating it as a finding of fact. The power to
reguhtte the seal fisheries in the intcurest of
the preservation of the species was a sorereign
protecftive power, subject to which the lease
was taken, and if tflie government found it
necessary to exeroise tmit power to the ex*
tent which this finding asserts, and if we as-
sume that the company might thereupon have
treated this contract as rescinded, it is suffi*
cienit to say that it took no such posHion, but
accepted the performance invcdved in the de-
livery of the 7,500 skins. The company did
not wish to rescind or abandon, and it could
not but recognize that, as the modus was en*
tered Into in an efPort to save the seal race
from extermination, and thereby to pre-
serve something for the future years of the
lease, the prohibition was so far for its bene-
fit
A^in, although the government acted in
making the lease by the hand of the Secre-
tar^j^ it was the r^ contracting party, ex*
ercising the power of regulation through the
Secretary, so that it was immaterial whether
the Secretary on his own judgment or in com-
pliance with the will of tiie government con-
fined the number of seals tiucen in the year
1893 to 7,500. ' Undoubtedly the government
could have directed the Secretary by law to
restrict the killing to 7,500 seals, and the
treaty was nothing more.
The company could not object that the
Secretary was constrained to impose the lim-
itation, for the Secretary was bound to obey
the instructions of his principal, and the com-
pany *could not make it the subject of a con-[139)
test in pais a£ to whether the preservation
of the herd in fact required the limitation.
The whole business of taking seals was con-
ducted under the supervision of the govern-
ment, and by 9 1973 the Secretary was au-
thorized to appoint -agents, who were charged
with the management of the seal fisheries.
The record eiiows that instructions were
issued to the government supervising agent
on. April 26, 1893, and a copy delivered to the
superintendent of the company before tha
commencement of the season of that year.
These instructions directed the number
of seals to be taken during the season of 1893
to be limited to 7,500. It was stated by the
Secretary that it was believed ''that if the
killing be confined between the first of June
and the tenth of August, a better quali^ of
skins would be obtained and less injury
would be done to the rookeries;" and he
added: 'This matter is, however, left, as
above stated, to your discretion, and in refer-
ence thereto you will confer fully with the
representative of the company, its interests
and those of the government in the preser-
vation of the fur seals being identical.'^
In the letter of the attorney of the com*
pany of November 16, 1893, he said: "During
the present year this company, in strict com-
107
Itto-i;K5
SUPUSMB COUBT OF THB UhITBD StaTBC
Oct. TiuiK
pliance with the orders of the Treasury De-
partment, restricted its catch to 7,500." In
other words, it appears that both parties re-
garded the Secretary of the Treasury aa au-
thorizing the taking of 7,600 akins ia tHe
year 1893.
Under the law of 1870 and the yarious sec-
tions of the Revised Statutes the power was
expressly reserved to the government to make
whatever restrictions of the business it might
see fit to make; the lease recognized this to
the full extent; and it was, moreover, ex-
pressly stipulated that the company was not
to kill or permit to be killed a greater num-
ber than tne Secretary might authorize. The
company was offered 7,5^ skins for 1893:
took them; paid the amount fixed by the
Secretary under the lease for ccHupensation
to the natives for talking and loading the
skins, and subsequently tendered the sum of
$23,789.50 as, according to its computation,
the full amount due under the lease. These
[lS6]particular seals *were killed by tht govern-
ment agent, but notice of the killing, from
time to time, was given to the company, and
the company requested to select the skins
it desired, which it did. The government did
not regard the lease as broken, but proceeded
under it, and delivered the 7,500 skins as full
performance of the covenant on its part, for
the privilege of taking the seals was subject
to such limitation on the number as the gov-
ernment believed it necessary to impose; and
the company acquiesced in that view by tak-
ing the 7,500 skms without dissent.
It was after this that the question arose,
BOt of breach of contract, but as to what
sum, if any, was due from the company under
the lease more than it had tendered. Was
the company entitled to a reduction on what
it had agreed to pay, and, if so, how
8. Finally, the company claims that the
United States are liable to it in damages to
the extent of $287 J25 for skins it could have
taken during the season of 1893, without un-
reasonable inlurr to or diminution of the
seal herd, and which the United States pre-
Tsnted It from doing; and that it can avail
lUelf of this claim in this suit by way d re-
•oupment and counterclaim.
Tne circuit court rejected this eounter-
elslm on the ffround that the claim had not
^n presented and disallowed by the ae-
miunting otHoers of the Treasury, and dis-
iii)iim4m1 Ft, not on the merits, but without
proJu«ll(*«. The company prosecuted its writ of
srMir from the circuit court of appeals for
the M*con(l circuit, and assi^ed as errors,
SMioiiu uthrTH. that the circuit court erred in
MilhKlifttitf that its claim for damaffes was not
fliilv |M<»4*iit<Hl( that the court did not allow
M« (KMiiih^rUiini and that judgment was
iMil dli«M'l4i<l In fuvor of the company. From i
hUnI w« have alrmdy naid it will have been !
m^i^h I hilt W41 1114) of o(>lnion that the company
f'*ifMH't niitliiiuin thin claim for damages and
fliMl, MMOMilutf that the claim had been duly
tu««'iil«Mt MMil ittNallowed, and that, if meri-
itU'Ht, ii Milyht he availed of by way of re-
iM<(i|<Mi(«ia In this actton« the citx^uiC court
erred in its disposition of the co«interclaia.ri87
*The seal fisheries of the Pnbiloff islands ^
were a branch of commerce and their
regnlati<m involved the exercise of powo- as
a sovereign and not as a mere proprietor.
Such governmental powers cannot be contract-
ed away, and it is al»urd to argue that in this
instance there was any attempt to do so, or
any sheer oppression or wrong inflicted on the
lessee by the government in the effort to pro-
tect the fur seal irom extinction.
Tlie privilege leaded was the exclusive
right to take fur seal, but it was subject, and
expressly subjected, from the banning, to
whatever regulations of the business the Unit-
ed States might make. If those regulatioM
reduced the catch, the company was protected
by a reduction of the rental, and paid taxes
and per capita only on the number taken.
The other expenses to which it bound itself
were part of the risk of the venture. The
catch for 1893 was lawfully limited to 7,50$
and the company accepted and disposed of
the skins. It cannot now be heard to in-
sist that that limitation was in breach of the
obligations of the government, for which,
though still claiming the contract to be out-
standing, it is entitled to recover damagea
The judgment of the Circuit Court 19 re-
versed, and the cause remanded with a direc-
tion to enter judgment in favor of the Unit-
ed States for $76,687.50, with interest froa
the first day of April, 1894; and to enter
judgment in favor of the Undted States on the
counterclaim.
PULLMAITS PALACE CAR COMPANYJISS]
Appt^
e.
CENTRAL TRANSPORTATION COM-
PANY.
(See S. C. Reporter's ed. 138-161.)
T^e right to appeal— when a complainant is
equ%ty majf dismiss his suit—prejudice te
defendant — review of motion to discon-
tinue— when leave to disc^mtinue may ^
denied^-^cross bill for affirmative reliefs
property transferred under illegal con-
tract— right to recover — n^easure of veins
— value of contracts and patents trans-
ferred— earnings of the property — loss by
breaking up of business,
1. The rifffat to appeal directly to this coart
from the circuit court becaate of a constlts-
Note. — As to what acts and contracts of e
cerporutian are nlira vires; controcU to vtole-
tion ef statute or public policy; executed con-
tracU; instances; estoppel or ratification of
transoftions ultra virts, — see note to Central
Transp. Co. v. Pullman's Palace Car Co. 35 : 5S.
As to what laws are void as impairing obU-
gation of contracU, — see note to Bute. Ranker,
V. New Orieans, 26 : 132.
As to what remedy at lo«o will prevent rtm-
edjt in squitp, — see note to Tjler v. SaTSM,
36:83.
As to account stated; bar to biU to equity,
defenses must be made in original action,— ess
note to Chappedelaine v. Dechenaax. 2 : 629.
171 U. B.
isr.
rujui^MAjTs Palaob Cab Co. v. CjftftYiUL Xjuahspobtatiox Co.
IM
llouU ^iwstloD Is not waived by taUng an
appeal also to the circuit court of appeals.
% A complalnaat in an equity suit may ^ener*
ally dismiss his bill at any time before the
Bearing; but leave to dismiss a bill Is not
granted where, beyoud the annoyance of a
second litigation upon the subject-matter,
•Qch action would be manifestly prejudicial
to the defendant.
8. Legal prejudice to defendant to authorize a
denial of a motion by plaintiff to discontinue
must be other than the mere prospect of
future litigation.
4. The decision of a motion for leare to dls-
eontinue will not be reriewed in this court ex-
cept for abuse of the discretion of the court,
or an obvloos riolation of a fundamental rule
of a court of equity.
6w Leare to discontinue a suit In equity to re-
strain bringing suits for rent, alleging an elec-
tion to terminate the lease by virtue of its
provisions and that the lease was ultra virea»
and offering to do what is equitable and right
for the property demised, and asking the
court to decree the compensation or relief to
be made, la properly denied after the lease
has been held void In another case, and after
an injunction has been granted against recov-
erlnir rent and testimony has been talten on
the Issues involved in the suit, when defend-
ant opposes such discontinuance and asks
leave to file a cross bill to avail Itself of the
tenders made in the original bill.
6l a cross bill for affirmative relief is properly
allowed to be filed by defendant for the re-
turn of property delivered under an illegal
lease and to determine the liability of the
eomplalcant, where he has alleged an election
to terminate the lease, and also alleged its in-
validity and offered to do what the court
should decree to be Just.
7. The right to a recovery of property trans-
ferred under an illegal contract is founded
upon the implied promise to return or make
compensation for it.
8. The right to recover property delivered un-
der an Illegal contract rests upon a disaffirm-
ance of the contract, and is permitted only to
do Justice to the party who has thus deliv-
ered it.
9. The market value of the stock of a corpora-
tion is not a proper measure of the value of
Its property transferred by an ultra vires
lease, and which must be returned or paid
for.
10. The value of contracts with third parties,
or of patents owned by a company when It
transfers its property under an ultra vires
lease, and which have expired when the obli-
gation to restore the property or make com-
pensation therefor is enforced, cannot be con-
sidered in determining the value of such prop-
erty, when payment for the use of such pat-
ents and contracts for the time they were
used was included In the rent paid, and they
had become valueless at the time of their
expiration.
U. The earnings of property transferred under
an ultra vires lease cannot t>e included in the
compensation to be paid the lessor in lieu of
the property on disaffirmance of the contract.
12. The loss sustained by the lessor in an ultra
vires lease on account of the breaking up of
Its business and the loss of contracts with
third persons when the lease Is repudiated
cannot be recovered as part of Its relief, on
recovering compensation for the property
transferred and not restored.
171 V. M.
[Koa. 141, 496.1
Argued Maroh 24, 2S, 1898. Decided May Sl^
1898.
APPEAL from a judgment of the Circuit
Court of the United States for the Eastern
District of Penoifiylyaiiia and aleo on certio-
rari to the Unvted States Circuit Court of Ap-
peals for the Third Circuit to review a judg-
ment ai tflie Circuit Court in favor of the
Central Tra2i8>poitte;taoia Compeny i^gainst the
Pullman's I>alace Car Company, for the sum
of $4,235,044, for the value of certain property
which was leaeed by the Central Tmnsporta-
ti<m Company to the Fleuaee Car Company by
an ultra vires lease, and which was to be re-
turned or paid for by the latter company.
Reversed, and case remitted to the Unit^
States Circuit Court for the Eastern Dietriot
of Pennsylvema with directions to enter a
judgment for the Central Transportation
Company in acoordanoe with the opinion.
See 9ame case, 139 U. S. 24 [35: 55], also
same ease bdow, 39 U. S. App. 307, 76 Fed.
I^p. 401, 22 C. C. A. 248.
Statement by Mr. Justice PeoUtaint
The recoid in this case shows that in 1870
the Central Transportation Company, here-
after called the Central Company, was a cor^
poration which had been in 1802 incorporated
under the general manufacturing laws of the
state of Pennsylvania. It was engaged in
the business of operating railway sleeping
cars and of hiring them to railroad companies
under written contracts by which the cars
were to be used by the railroad companies
for the purpose of furnishing sleeping con-
veniences to travelers. The corporation at
this time had contracts with a number of dif-
ferent railroad companies in the east, princi-
pally, but not exclusively, with what is
known as the Pennsylvania Railroad system^
and it had been engaged in its business with
those companies for some time prior to 1870.
In the year last named the Pullman's Palaca
Car Company, hereafter called the Pullman
Company, was a corporation which had been
incorporated under the laws of the wtate of
Illinois. It was doing the same general kind
of business in the west that the Omtoral Com-
pany was doing in the east. For reasons not
material to detail, the two companies entered
into an agreement of lease, widch was exe-
cuted February 17, 1870.
6v its terms the Central Company leased
to the Pullman Company its entire plant and
personal property, together with its contracts
which it had with railroad companies for the
use of its sleeping cars on their roads, and
also the patents belonging to it. The lease
was to run for ninety-nine years, which was
the duration of the charter of the Central
Company.
It was also agreed that the Central Com-
pany would not engage in the business ot
manufacturing, using, or hiring sleeping cars
while the contract remained in force.
In consideration of these various obliga-
109
a8»-142
SupKKMX Court of thb Ukitkd Statmh.
Oct. T
;■!
■i'-
Iv
■> (,
aoDB, tha Pullnmn Company agreed to pay
mBiraklly the suin of $264,000 during the en-
tire term of ninety-nine years, in quarteriy
payments, the first quarter's ^ymeni to be
miuie on tiie 1st of April, 1870.
(140] *From the time of the execution of the con-
tract its terms were carried out, and no par-
ticular trouble occurred between the compa-
nies for about fifteen years. During this time
and up to the 27th day of January, 1885, the
Pullman Company paid to the Coitral Com-
pany, as rent under the contract, the sum of
$3,960,000, without any computation of in-
terest. About or just prior to January, 1885,
differences arose between the companies.
The Pullman Company claimed the right to
terminate the contract under the eighth
dause thereof, or else to pay a much smaller
rent. The merits of the controversy are m^t
material.
The two companies not agreeing, and the
Pullmsn Company refusing to pay the rent
stipulated for in the lease, the Central Com-
pany brought successive actions to recover
the instalments of rent accruing. In one of
them the Pullman Company plcasided the ille-
gality of the lease, as being ultra vire$^ the
charter of tne Central Company. The plea
prevailed in the trial court, and upon writ of
error the judgment upholding «this defense
was, in Msutsh, 1891, sustained in this court
Central Transportation Company v. PuU-
man'9 Palace Car Company, 139 U. S. 24 [35 :
55].
After the bringing of several actions for in-
stalments of rents by the Central Company
1^ before the question of ultra vires had
been argued in this court, the Pullman Com-
pany on the 25th day of January, 1887, com-
menced this suit by the filing of its bill
against the Central Company in the circuit
court of the United States for the eastern
district of Pennsylvania. The bill asked for
aa injunction to restrain the bringing of
more suits for rent. It gave a general hi^ry
of the transactions between the companies
from the execution of the contract between
them in February, 1870, down to the time of
the filing of the 1^, and it alleged the elec-
tion of the Pullman Company to terminate
the lease under the provisions of the eighth
dause thereof, and the willingness of the
company to pay what should be found by the
court to be equitable and right to the Cen-
tral Company on account of the property
which had been transferred by that company
to it, and to this end it prayed the aid of the
court. The bill also contained the following
allegation:
[141] '''And your orator shows that in said lease
it is recited that the said contract of lease is
made on the part of the defendant, the said
Central Transportation Company, under an
act of the general assembly of die common-
wealth of Pennsylvania therein named, ap-
proved the 0th day of February, A. D. 1870,
a copy whereof b hereto attached, marked
Exhibit G, and referred to as part of this bill ;
but your orator is advised, and therefore sub-
mits it to tlie court, that the said lease being
a granty aMignTTrt. and transfer of aU the
110
property, contracts, and rights of tke said de-
fendant, the Central Tranq>ortation Cooi-
pany, and including a covenant on the part
of said defendant corporation not to traiuact
during the existence of said lease any of the
business for the transaction of which it was
incorporated, iiv^&s never legally valid be-
tween the parties thereto, but was void for
the want of authority and corporate power
on the part of the defendant to make the
said contract of lease, and because the same
was in violation of the charter conferring the
corporate powers of said defendant, and of
the purpose of its incorporation, as by the said
charter, to which, for greater certainty, ref-
erence is made, your orator is advised it wiH
appear; that the said contract of lease was
never susceptible of being enforced in law by
your orator against said defendant, and can-
not therefore be construed and held to con-
tinue in force and obligatory upon your ora-
tor; and that your orator can be under no
other legal obligation or equitable duty to
the defendant Uian to return such of the
property assumed to be demised as is
ble of being returned, and to make just
peiisation for such otho- of the said piiipeitj
as under the said contract of lease it ou^d
to make compensation for, which it is will-
ing and now offers to do."
In the prayer for relief it was also asked- -
That the court may consider and decrat
ivhether said contract of lease was not made
without authority of law on the pert of the
def^idant and in excess of its eorposain
powers and in violation of its corporate dn-
ties, so as not to be enforceable against yo«ir
orator beyond the obligation of your orator
to make return of or just compensation for
the property 'demised; and thi^ an aeeovnl{| \S]
may be taken between your orator and de-
fendant, and that the amount may be asctf
taincd that should be paid by your orator to
the defendant on any account whatever; .
. . and that an accounting may be hadb»>
tween youi orator and defendant as to all the
matters and things set out in this bilL**
The Central Company answered the bill,
denying many of tiie material allegationa
therein contained. It doiied that the Pull-
man Ocmipany had ever elected to tenmnate
the lease under the provisions of the eighth
dause thereof, and it alleged that the Iceae
was still in existence^ and that it had the
ri^t to recover from the PifUman Company
the amount of the rent named in the lease,
and that no valid agreement had ever bem
made between the companies in any way al-
tering the lease or reducing the amount of
the rent payable thereunder. It denied that
the lease was illeffal, and it alleged that eves
if it were, the illegality did not justify the
complainant in applying for any equitable
relief whatever. Upon application on the
part of the Pullman Company the court
l^ranted an injunction restraining the bring-
mg of suits for the collection of rent ~~
cnilnf after July, 1886. but it declined to
join Uioee already pending for rent
belore that date.
After eonsideraUe proof had been take*
171II.S.
vm
POLLMAV*! PaLACB CkM Co. T. CMMTJKAL TSAMSPOBTAXiOM CU.
14^145
«poB Hm ivD« iBTolred ki tut tuii and al-
tv t^ dMinoa of the other case in this
eourt, IB March, 1891, holding the lease ille-
gal aad void, the complainant herein, on the
S5th of Ajiril, 1891, applied to the couit for
leaTO to dnmias its bill at its own cost This
appliettioa was imposed by the defendant,
who^ OB tho same day, moved for leave to file
bill, in which it said it would avail
itself of the tenders of relief made by the
eompUinant in its bill, and that it would
pmjr such relief in its cross bill as miffht be
pertineiit to the case made by the bm. In
becember, 1891, complainant's motion for
kave to dismiss its bill was denied, and the
defendant's motion for leave to file a cross
bin was granted. Thereupon the cross bill
was filed* in whidi the Central Company ac-
knowledging, under the decision of this
eourt, that the lease in question was void,
4S]*elaimed to avail itself of the tenders made in
complainant's bill upon the subject of the re-
turn of its property and compensation for
that which it was impossible to return, and
daimed, among other things, that the Pull-
Ban Company lAiould aooount for all the
profits which it had derived since the making
of the lease by the use of the property trans-
ferred to it under the agreement, and that
the amount found due should be paid to the
Centnd Company, and that the Pullman
Company sSiould be adjudged to be a trustee
for the Central Company of all the contracts
for transportation, whether original, new or
renewals, held by the Pullman Company
with railroad companies with which there
were contracts of transportation with the
Centeal Company at the time of the i«av(ng
of the lease in February, 1870, and that the
Pullman Company should be adjudged to
pay the Central Company all such sums as
should be due to it by the Pullman Company
as snch trustee, and that defendant should
in the future from time to time account for
the sums whidi should be due by reason of
fntore operations under those contracts.
It also piayed for a discovery and an ac-
coonting b^ the Pullman Company of its use
ind disposition of the property turned over
to it by the Central Ccmipany.
To this cross bill the Pullman Company
filled three demurrers^ the first beinff a gen-
oal demurred on the ground that tkt cross
bin was filed contrary to the practice of the
eourt, and also that it appeared that the
coQii had no jurisdiction of the case; the seo*
OBd demurrer related to tiie portions of the
crosB bill prajring that the cross defendant
might be regard^ as a trustee and decreed
to account accordingly; the third demurrer
rdated to that part of 4he cross bill which
asked for an account of profits since the
Biaking of the lease and for future profits.
Hie demurrers were overruled with leave to
present the questions on final hearing, and
the Pullman Company then answerMi the
eroBB UlL Among otner things it set up
that the agreement in question was roid^
"lad that being null and void between the
parties hereto because of such character of
the agreementi it oannot be made the lawful
171 V. %.
foundation of any action* or application for[lM]
any relief whatever between the parties
thereto. And this respondent submits that
the rule which precludes the granting of re- .
lief by any court of either equity or law»
upon a contract void for contravention of
public policy, forbade this circuit court to al-
low such fldOSrmative relief upon this cross
bill which asserts no claim of right not
founded directly upon the express undertak-
ing of Uiis contract of lease, held void by
this couit itseif and by the supreme court
for tSie reasons aforesaid." The Pullman
Company therefore denied that it owed any
duty to the cross complainant which was en-
forceable at law or equity to return to the
Central Company the property assigned un-
der the lease or to account for any profits de-
rived under and by reason of any property
delivered to it under the agreement.
Testimony was taken under these plead-
ings, and the case came before the circuit
court for final hearing, and that court held
that the cross complainant made out a caso
for an accounting by the cross defendant for
the value of the property when received, to-
gether with its earnings since, less the
amount paid as rent. The court therefore
referred it to a master for "tiie purpose of as-
certaining the facts, with directions to report
within the time named in the order of refer-
ence. Under this order testimony was taken
and the master reported in favor of the Cen-
tral C(»npany, and the exceptions filed hav-
ing been overruled, judgment was entered in
favor of the Centrsil Company for the sum of
$4»235,044, together with costs. From thia
judgment the Pullman Company appealed
directly to this court. It also appealed to
the circuit court of appeals. The case was
there argued upon a motion to dismiss tho
appeal, and the motion denied, and the fur-
ther argument was postponed until some dis-
poatson was made of the appeal taken di*
rectly to this court 39 U. S. App. 307. A
motion has also been made to this court to
dismiss the appeal, ana thereupon an applica-
tion was made to us for a writ of certiorari
to the circuit court of appeals for the third
circuit, and on account of the peculiar cir-
cumstances it was granted, and the record
has been returned to this court by virtue of
that writ.
•
Menrn, Edward S. IbIuub* Joseph H»
Ohoate, A. H. Winterateen, and Robert T,
Lwooln for appellant
Jie^sfs, FrauiK f. Prielutrd and Joha
G* Johnson for appellee.
Mr. Justice Peckhaaa delivered the opin-
ion of the court:
The motion to dismiss the appeal in this
case is now before the court
Counsel for the Pullman Company took
the appeal directly from the circuit court to
this court on the ^eory that the case in-
volved the construction or application of
the Constitution of the United States, be-
cause of the holding of the court below that
the cause ol action alleged by the Central
111
i4d-i4d
SUPKKMB COUKT OP THE UnITICD STAThS.
Company in its cross bill was under the cir-
cumstances a proper subject of equitable cog-
nizance, and counsel claimed it was really
nothing but a legal cause of action in regard
to which the cross defendant was entitled to
a trial by jury under the Constitution of the
United States. There being room for doubt
in regard to the soundness of such conten-
tion, the counsel also took an appeal to the
circuit court of appeals, and we think that
by this action he did not waive any right of
appeal which he would otherwise have had.
Whichever route may be the correct one,
either directly from tiie circuit court or
through the circuit court of appeals, it is un-
necessary to decide, because the case is now
properly before us either by appeal or by the
writ of cei-tiorari; and we therefore proceed
to determine it upon the merits.
The Pullmcui Company, complainant in the
original suit, insists that it had the rieht to
discontinue that suit at its own cost before
any decree was obtained therein, and the re-
fusal of the court bdow to grant an order of
discontinuance upon its application is the first
ground of objection to the decree herein.
The general proposition is true that a com-
[146]oIainant in an equity *suit may dismiss his
bill at any time before the hearing, but to
this general proposition there are some well
recognized exceptions. Leave to dismiss a
bill is not granted where, beyond the inci-
dental annoyance of a second litigation upon
the subject-matter, such action would be
manifestly prejudicial to the defendant The
subject is treated of in City of Detroit v.
Detroit City Railway Company, in an opinion
by the circuit judge, and leported in 55 Fed.
Bep. 569, where many of the authorities are
collected, and the rule is stated substantially
as a^ve. The rule is also referred to in
Chicago d Alton Railrocid Company v. Union
Rolling Mill Company, 109 U. S. 702 [27:
1081].
From these cases we gather that there must
be some plain, legal prejudice to defendant
to authorize a denial of the motion to dis-
continue; such orejudioe roust be other than
the mere prospect of future litigation ren-
dered possible by the discontinuance. If the
defendants have acquired some rights which
might be lost or rendered less efficient by the
discontinuance, then the court, in the exercise
of a sound discretion, may deny the applica-
tion. Stevens v. The Railroads, 4 Fed. Rep.
97, 105. Unless there is an obvious viola-
tion of a fundamental rule of a court of
equity or an abuse of the discretion of the
court, the decision of a motion for leave to
discontinue will not be reviewed here.
Upon an examination of the facts relat-
ing to the motion, we think the circuit court
was right, in the exercise of its discretion, in
denying the same. The original bill was
framed really on two theories: One, that
by reason of an election maie under the
eighth clause in the lease, the Pullman Com-
pany had terminated the lease, and it was
therefore bound under its provisions to re-
turn the property which it had received from
the Central Company. ItsUted in its bill
112
the impossibility of returning a lar^ge portioa
of the property which it had received; it an-
nounced its willingness to make substantial
performance of its contract contained in the
lease, and it asked the court to aid it thereii
by decreeing exactly what it thoold do for
the purpose of carrying out equitably and
fairly its obligations incident toita termina-
tion of the lease under the clause above mea-
tioued. The other theory rested upon what
was *a substantial allegation of the invalidity |
of the lease as having ^en made without au-
thority of law, and therefore in violation of
the corporate duties of the Central Companj,
and on that account not enforceable against
the Pullman Company beyond the (4>ligatioi
of the latter company to make return ^ just
compensation for the property den^^sed. Up-
on that theory the bill asked, not that ths
court should set aside or cancel the lease, bat
that it should aid the parties by decreeiBg
just what relief should be given by the com-
plainant to the lessor in t^ execution of itt
duty to make some compensation for tht
property it received and which it stated its
wilUngness to make, and to that end, that aa
accounting might be had and the amoont
ascertained tluit should be paid to tht
Central Company in discharge of the obliga-
tions of the complainant in that beh^L
Thus the Pullman Company came into •
court of equity and in substaince alleged that
the lease had been terminated by it under tht
eighth clause, and it also alleged that tht
lease was void as ultra vires, and in either
event it tendered such relief as the eoart
might think was proper and fair under tht
circumstances.
A large amount of proof had been taken
under the issues made in this original biU
and the answer thereto, and before the case
was concluded the decision of this court was
made in which the lease was declared to bt
void. The only obligation left under the
original bill of complamant after the decisioa
of this court was the obligation to return
such portion of the property received by it ai
the court should determine to be right, or to
make some compensation to the Central
Company for the same. And this obligatioe
it had oflfered in the original bill to cany out
The Pullman Company had also obtained
an injunction in the original suit, restraining
the Central Company from commencing fur-
ther legal proceedings to recover rent oader
the leasie, and after obtaining this injunetiofi
and taking the testimony relating to the sub-
ject-matt^ of the original bill, the complaia-
ant should not be permitted under these cir-
cumstances to dismiss that bill and thoairiUi-
draw the whole case from the jurisdiction of
the court, and thereby blot out its * tenders oQ li
relief contained in its original bill grouadetl,
among others, upon the allegation that the
lease was void, and asking the aid of the
court to decree the precise terms upon which
its obligations to the Central Company might
be fulfilled.
The denial of the motion was made ia eoa-
nection with the application of the Ceotral
Company to file a crosj bill in which it ««iiU
171 V. ^
itftr.
I'Dl.LMAM'S PaLACS CaR Co. V» OKMTJtAli TKAMMfOMTATIOV CO.
148-180
•«dc to armll itMlf of the tenders made by the
Pulinaa Company in the original bill. Such
am ap|>lication for leave to file a croas bill
•cekin^ affirmative relief, while at the same
time availing itself of those tenders of relief
Bade by the original complainants, would
foraiah additional ground for the exercise of
the discretion oi the court in refusing to
fnjit the i4>plioation for leave to discontuiue.
We think there was no error committed by
the court below in refusing the leave asked
for.
The further objection is made by the coun-
sel for the Pullman Company that it was er-
ror to allow the cross bUl to be filed in this
eue. Counsel ^m* the Pullman Company as-
Mrt that the cause of aotion for a return of
tlw property ia a purely legal one of which a
eourt of equity has no jurisdiction, and that
it can acquire none simply by the filing of a
eroas bilL Whatever mav be the original
ehancter of the liability of the Pullman Com-
ptny to return or make compensation for the
property, we are of opinion that under the
ficte above set forth it cannot object to the
iUiiig of the cross bUl, or to the determina-
tioB of the amount of its liability by a court
ol equity. It had itself voluntarily appealed
to the jmrisdiotioii oi such a court for the pur-
pose of obtaining its aid in decreeing the
terms upon which its obligations to the Cen-
tnX Company might be fu) filled and the lease
tenninKted, either under the eighth clause in
iht leaw or because of its invalidity as being
lUtra wires. Having thus appealed to equity
far its aid and the Tease having been conclu-
sively 'letermined to have been void, we think
it was within the fair discretion of the court
to retain jurisdiction of toe cause and of the
ongiool complainant, and to permit the filing
9f a CI OSS bill in w4iich the cross complainant
might seek affirmative relief, and at the same
19 time cvail * itself of the tenders made by the
^'ODipiainant in its original bill.
The facts which were set up in the cross bill
f)oee]y affected one of the theories upon
vhieh the original bill was filed, viz., the in-
viHdily of the lease. They were relevant to
the matters in issue in the original suit, and
IB seeking affirmative i*elief the cross oom-
pltioaat is but amplifying and making clearer
the foundations for the intervention of equity
which had been ai^>ealed to by the Pullman
Conipkny, and the continued intervention 6f
which would greatly speed a final termination
of tU matters for litigation between the par-
ties The court below did not err in permit-
tiag the cross bill to be filed.
Tbb brings us to a discussion of the prin-
ciples upon which a recovery in this case
ihouM be founded. The so-csdled lease men-
^aed in this case has been already pro-
Donnced illegal and void by this court. 139
U> 8. 24 [35:55]. The contract or lease was
^ to be unlawful and void, because it was
Wood the powers conferred upon the Cen-
tTkl Company by the legislature, and because
H mrolvol an abandonment by that company
^ its duty to the public It was added that
tittre was strong ground also for holding that
^ contract between the parties was void
171 V. a. U. 8.. Book 4X l
because in unreasonable restraint of trade,
and biierefore contrary to public policy. Ib
makinff the lease the lessor was certainly aa
much m fault as the lessee. It was argued
on the part of the Central Company that even
if the contract sued on were void, yet that
having been fully performed on the part of
the lessor and the benefits of it received by
the lessee for the period covered by the dec-
laration in that case, the defendant should
be estopped from setting up the invalidity
of the contract as a defense to the action to
recover compensation for that period. But
it was answered that this argument, though
sustained by the decisions in some of the
states, finds no support in the judgments of
this court, and cases in this court were cited
in which such recoveries were denied.
It is true that courts in different states
have allowed a recovery in such cases, among
the latest of which is the case of Bath Oaa
Light Company v. Claffy, 161 N. Y. 24 [36
L. R. A. 664], where Chief *Judge Andrews of[150>
the court of appeals examines the various
cases, and that court concurred with him in
permitting a recovery of rent upon a void
lease where the lessee had enjoyed the bene-
fits of the possession of the property of the
lessor during the time for which the recovery
of rent was sought.
But in the case of this lease, now before
the court, a recovery of the rent due there-
under was denied the lessor, although the
lessee had enjoyed the possession of the prop-
erty in accordance with the terms of the
lease. It was said ( page 60 of the report in 139
U. S. [35:69]) : "The courts, while refus-
ing to maintain any action upon the unlawful
contract, have always striven to do justice
between the parties so far as could be done
consistently with adherence to law, by per-
mitting property or money parted with on
the faith of the unlawful contract to be re-
covered back or compensation to be made for
it. In such case, however, the action is not
maintained upon the unlawful contract nor
according to its terms, but on an implied
contract of the defendant to return, or fail-
ing to do that, to make compensation for the
property or money which it had no right to
retain. To maintain such an action was not
to affirm, but disafHrm, the unlawful con*
tract." And the opinion of the court ended
with the statement that, "Whether this
plaintiff could maintain any action against
this defendant, in the nature of a quantum
meruit, or otherwise, independently of the
contract, need not be considered, because it
is not presented by this record and has not
been argued. This action, according to the
declaration and evidence, was brought and
prosecuted for the single purpose of recover*
ing Slims which the defendant had agreed to
pay by the unlawful contract, and which,
for the reasons and upon the authorities
above stated, the defendant was not liable
for."
The principle is not new; but, on the con-
trary, it has been frequently announced*
commencing in cases considerably over a hun-
dred years old. It was said by Lord Mana-
113
tftlKldS
SuniEMIB COUBT OF THB UnITBD STATES.
Oct.
field in Bolman r. Johnson, 1 Cowp. 341, de-
cided in 1775, that **the objection that a con-
tract is immoral or illegal as between the
plaintiff and defendant sounds at all times
verv ill in the mouth of the defendant. It is
£11^1 ]not for his sake, however, that the 'objection
is ever allowed; but it is founded in general
principles of policy, which the defendant
has the advantage of, contrary to the real
justice, as between him and the plaintiff, by
accident, if I may so say. The principle of
public policy is this : Ex dolo maXo non ori-
tur actio. No court will lend its aid to a
man who founds his cause of action upon an
immoral or an illegal act."
The cases upholding this doctrine are nu-
merous and emphatic Indeed, there is really
no dispute concerning it, but the matter of
I controversy in this case is as to the extent
- to which the doctrine should be applied to
the facts herein. Many of the cases are re;
ferred to and commented upon in the opin-
ion delivered in the case in 139 U. S. 24
[35: 56], already cited. The right to a recovery
r of the property transferred under an illegal
contract is founded upon the implied promise
to return or make compensation for it. For
illustrations of the general doctrine as applied
to particular facts we refer in the margin to
a few of the multitude of cases upon the
iubjectf
They are substantially unanimous in ex-
pressing the view that in no way and in no
channels, directly or indirectly, will the courts
allow an action to be maintained for the re-
covery of property delivered under an illegal
contract where, in order to maintain such re-
covery, it is necessary to have recourse to
that contract. The right of recovery must
rest upon a disaffirmance of the contract, and
it is permitted only because of the desire of
courts to do justice as far as possible to the
party who has nuuie payment or delivered
property under a void agreement, and which
in justice he ought to recover. But courts
[16S]will not in sudi endeavor permit *any recov-
ery which wiU weaken the rule founded upon
the principles of public policy already noticed.
We may now examme the record herein
•nd learn the ^unds for the recovery which
has been permitted, and determine therefrom
whether the judgment in favor of the Cen-
trml Company should be in all things affirmed
or li not, then how far the liability of the
eross defendant extends, and, if possible, what
should be the amount of the judgment
against it.
In referring the case to the master for
the purpose of taking the account between
the parties the learned district judge stated
the principle upon which the liability of the
eross defendant rested. He said:
''The property must therefore be returned
or paid for. The former is impossible,
property has substantially disappeared. It
has become incorporated with the bnsinefls
and property of the plaintiff, and cannot be
separated. Compensation must therefore be
made. What, then, is the measure of oom-
pensatiou? Clearly, we think, the Talne of
the property when received, together with
its earnings since, less the amount paid as
rent. In ascertaining the value the ^»*»*wi
rental may be considered, but it does not af-
ford a conclusive nor an entirely safe measoie
of value because the unlawful conmderstioB
(that the Centi-al Company would abstain
from exercising its franchises) entered into it
For the same reason the earnings cannot be
measured by the rent. The value of the
property and earnings must be ascertained
from a careful examination of the property,
the business, and its earnings at the time
they passed into plaintiff's huids and anbee-
quently. It is not their value to the plain-
tiff we want, but to the defendant; in effect,
what is lost by parting with them. The
value of both property and earnings may
liave been worth more to the plaintifl with
the business united, but this cannot be coa-
sidered."
Acting under these directions of the court,
the master in his opinion said:
''Passing to the consideration of the maia
question raised in the present reference, wim^
what the Central Transportation Company
lost by the transfer of its property to the
Pullman 'Company, the measure of damagei(l8
as determined by the court requires tne mas-
ter to ascertain:
"(I) What wns th«( value to the Centnl
Transportation Company in 1870 of the prop-
erty transferred?
'^(2) What was earned by the PnUman
Company between January 1, 1870, and Jan-
uary 1, 1885, from the use of the property
transferred?
*'(3) The difference between the amount
so received by the Pullman Company and the
rental paid by it to the Central Transporta-
tion Company for the above period.
"(4) The total amount to be paid by the
Pullman Company, as of January 1, 1885, de-
duced as above, together with interest
thereon from January 1, 1885, to date of flnal
decree." .
The master proceeded to determine the
value in 1870 of the property then trtae-
ferred. In ascertaining it he said :
**The value of the stock on the street is a
positive indication of the estimate placed um
the property by the public That it it sot
entirely a satisfactory measure of value ntist
be conceded, but in the judgment of the
master, supported as it is by the best inde-
pendent estimate that the evidence affords.
rCoppell V. Hall, 7 Wall. 542 [19:244]: Con
lb B. Spring Company v. Knc
49 126:3471; Lontn Connty :
Townsend. 159 U. 8. OT [85:107]; St. Louis, V.
cress
U. 8.
nowltoD, 103
Nat. Bank v.
ft T. H. ^ilroad Company v. Terre Haute St
I. Railroad Company. 145 tJ. 8. 393, at 408, 409
(86:748, 754, 755]; Manchester & L. Railroad
Company v. Concord Railroad Corp. 66 N. U.
100 (9 L. R. A. 089, 8 Inters. Com. Rep. 319];
White V. Franklin Bank, 22 Pick. 181: Utlca
114
Insurance Company v. Caldwell, 8 WewL ^ .
Atcheson v. Mallon, 48 N. Y. 147 13 Am. tteew
6781; I^eonard v. l»oole. 114 N. Y. .MTl 14 U ft.
A. 7281; Snell v. DwUhl, 120 Mas*. i»: Ditw v.
Old Colony Railroad Co. 131 Mass. 2uS [41 As.
Rep. 2211; Holt v. Grevn. 73 \*n. V.W M-L^^
Rep. 737J; Johnson v. Hnllnss. 103 Pa. 498 t4t
Am. Rep. 181]; Thomson v. Thorn son, 7 y«^
Jr. 470; Sykes v. Beadon, L. R. 11 Ch. IMv. 1T»:
Brooks T. Martin, 2 Wall. 70 [17:7321.
171 U.«.
mi.
PvuJiAX's FaJjAOB Cab Co. v. Cjbmtkal 'XKAHfii'uiiiATiuii Cu.
15a-15«
H ritould b« accepted m the fairest criterion
lvalue."
He accordingly reported the value of the
property when received as $58 a share (the
par Yalue being $50 per share or a total par
value of $2,200,000) making the total market
Taltie of the shares $2,552,000, which sum he
reported aa the value of the property trans-
ferred.
When the report came before the court,
exceptions having been taken, among other
things, to the findings of the value of the
property when delivered, the court said:
'^t is the value of the property at the time
it should have been returned that the Pull-
man Company should be charged with. In-
aimuch as this value would be difficult of
aieertainment by the transportation com-
pany except by reference to the value in
1870, it waa considered proper to direct the
inquiry to the latter date. Presumably the
value increased; the evidence fully justifies
the presumption. If it decreased, the Pull-
man Company could and should have shown
MJt The master's * valuation in 1870 is there-
fore to be taken as the value in 1885, when
the property should have been returned. The
payment of this sum, with interest from Jan-
nary 1, 1885, seems necessary to a just set-
tlement, treating the value of the use and
the rents paid pnor to that date as balancing
each oUier. A decree may be prepared ac-
cordingly, dismisbing the exceptions and con-
firming the report."
Judgment based upon the value of the
property i^ $2,552,000 on the lift of Janu-
ary, 1885, with interest from that time, was
therefore entered, and it amounted, as stated,
to the sum of $4,235,044.
We are of opinion that the court erred in
the Diann^ <^ ascertaining the value of the
property transferred by the Central Com-
pany. The market value of its stock was
not a proper measure of the value of the
prq)erty, and such error resulted in largely
increasing the supposed value of the property
which the cross defendant was under liability
to account for.
The capital stock of this corporation had
been increased from an original amount of
1200,000 in 1862 to $2,200,000 in 1870. Dur-
ing this time it had been doing an increasing
and a profitable business, and it was sup-
posed that such business might increase in
tht future. The market price of the shares
of stock in a mannfacturing corporation in-
cludes more than the mere value of the
property owned by it, and whatever is in-
duded in that price beyond and outside of
the Talue of its property is a factor which in
s case like this cannot be taken into consid-
eration in determining the liability of the
cross defendant. Whatever that something
niay be it is not that kind of property which
wu delivered or that can be returned or
compensation made in lieu of its return. It
is not propoty at all within the meaning of
the word as understood in such a case as thii.
1^ Talue of i^e franchise for one thing en*
teri into the computation of market value.
Tliis was, of oourae, not assigned to the Pull*
ni V. a.
man Company, nor were the shares of the
capital stock of the Central Company, all ol
which remained in the hands of its original
owners. The probable prospective capacity
for earnings also enters largely 'into mar-[165]
ket value, and future possible earnings again
depend to a great extent upon the skill with
which the affairs of the company may be
managed. These coiisiderations, while they
may enhance the value of the shares in the
market, yet do not in fact increase the value
of the actual property itself. They are mat-
ters of opinion upon which persons selling
and buying the stock may have different
views. A liability to return or make com-
pensation for property received cannot be
properly extended so as to include other con-
siderations than those of the actual value
of that property.
In this particular caae a consideration en-
tering into the market value of the shares
must have been the probability or possibility
of renewals of the contracts owned by the
company for the use of its cars upon the
railroads of the companies with which it had
such contracts and the possibility of extend-
ing its business in the future under contracts
with other railroads. These considerations,
while they affect more or less the value in
the market of the shares of a corporation, do
not constitute the ^alue of the property
which a party impliedly promises to pay for
upon the agreement being determined void
under which the property was received. The
faith which a purchaser of stock in such a
company has in the ability with which the
company wiU be managed, and in the capaci-
ty of the companv to make future earnings, ,
may be well or ill-founded. It is but mat* ,
ter of opinion which in itself is not property. \
While the value of the property is one of the (
material factors going to make up the mar-
ket value of the stock, yet it is plainly not
the sole one. Mere speculation has not un-
commonly been known to exercise a potent
influence on the market price of stock. The
capacity to make any future earnings in
this caae by the lessee arose out of the trans-
fer of the property to it and grew out of th*e
lease itself, and that capacity would there-
fore be partly founded upon the illegal con*
tract and could not otherwise exist.
As the market value of the shares of this
stock was made up to some extent, at least,
of certain factors which the lessee cannot,
under the rules of law, be held responsible for
in this case, it follows that such value cannot
furnish a safe ffuide in measuring *the respon*[ 156}
sibility of the lessee in an utterly void lease.
The court therefore erred in taking the mar-
ket value of the shares of this stock as a
proper or just measure of the value of the
property transferred.
We must therefore take the property that
actually was transferred and determine its
value in eome other way than by this resort
to the market price of f-he stock. The prop-
erty transferred oooisisted (a) of cars, bed-
ding, etc.; (b) contracts which the Central
Con^Mny owned with railroad companies for
^e uee of He oars on tueir roads; (c) patent*
115
u
id0-id9
bUPBSMB Ck)I7BT OF TUS UniTKD blATKd.
Ill' ,
i^'H
11 I
\l
•Ofaring the coiiBtnictioii and use of sleeping
oars owned by the Centra. Company and by
it transferred under the leaae to the Pullman
Company; and (d) $17,000 in cash. It seems
to us these values muet be taken separately,
because, for reasons hereafter suggested, the
value of the contracts and patents does not
enter into the problem.
As to the value of the cars. We agree with
the court below that it is now impossible to
decree their return, for the reasons stated.
They have substantially disappeared. The
property 'has become incorporated with the
business and property of the Pullman Com-
pany. Compensation therefore must be made.
l%e master found that the value of the cars
as vehicles, together with their equipment, at
the time of the transfer, was $710,846.50.
This is probably a pretty high figure judging
from the wh<^e evidence in the case upon that
subject, yet still we are incUned to think that
the master was justified in arriving at
that sum. We take this value fbr the reason
that tiie Pullman Company agreed in the lease
to keep the cars in good order and repair, cmd
renewed and reconstructed as often as might
be needful during the whole term of the lease.
During the fifteen years elapsing from 1870
up to January, 1885, no violation, of the
terms of the lease by either party is com-
plained of, and we think the whole transac-
tion between the parties during those fifteen
years must be treated as closed, eo that no
examination should be made in regard to any-
thing that happened within that time. We
must assume the provisions of the lease were
fully carried out by both parties, particularly
as no complaints were made of nonperform-
ll67]ance. *We therefore assume the cars wert
kept in good order, and when necessary were
reconstructed and renewea up to January,
1885. The value at that time may be taken
to be as great as the master found it to be for
1870. It is very probable the assumption is
not in accordance with the fact, and that
the property had greatly depreciated. But as
we refuse to look into the transactions be-
tween the parties during that period, we will
bold the value in 1885 to have been the same
as in 1870, on the presumption that the Pull-
nan Company fulfilled its dbligationa be-
tween 'Uiose dates. What rule of compensa-
tion should be deduced from such finding will
be alluded to hereafter.
We next come to consider the various con-
tracts. They were entered into with differ-
ent railroad companies for certain definite
periods, and their time of expiration was
stated in the contracts themselves. ^They
were valuable only as they were used by the
lessee, and its right to use them sprang from
and was determined by the lease itself. They
were a.««ij^ed to the lessee for the purpose of
enabling it to avail itself of the rights therein
ereated and to use the cars with the consent
of the railroads to which the contracts ap-
plied. Whether any use was made of these
contracts or not they became daily less valu-
able ms they daily neared their termination.
The use made of them did not impair their
^mlue. The passage of time did that. The
110
rental that was paid by the lessee
compensation for use, and to that extent tht
transaction was closed and the compcnsstioe
paid up to the time when the oontracte them-
selves had expired, which was pri<x' to the
time when the lease was declared void and
payment of rent ceased. There is no principle
with which we are familiar that will permit
Ihe value of those contracts when aasigued to
the Pullman Company to enter into and form
a part of the value of the property for which
the company is *jo make compensation, whea
from the nature of the thing itaelf, its valae
necessarily, and from the simple passage of
time, decreased daily, and upon the arriral
of the date named for the expiration of the
contract it ceased to have any value.
We think the contracts were not ext^ided
by the legislative 'extension of the charter of[ 181
the Central Company by the act of 187a
Some of these contracta were to last during
the corporate life of the Central Company.
At the time they were made the charter of the
company would expire in twenty yeara from
December 80, 1862, or on December 30, 18S^
We do not think the contracts meant that
they were to cover any further time to which
the legislature might *;hereafter extend the
charter of the company. S'>i3ie language to
that effect would have been contained in the
oontracte if such had been the meaning of the
parties. All the contracts had thenuore ex-
pired by the end of 1882.
Now upon what principle can it be oiged
that the lessee should compensate the lessor
for the value of these contracts when delir-
ered to it when it had paid for the use, and
the property was of such a nature that it be-
came valueless by mere limitation of time?
In 1885 they had gone out of existence, aad,
of course, had no value. The basis for a re-
covery of property or compenaation for ita
value, in cases of illegal agreements, rests up-
on the implied contract to return it or pay
for it, because there is no right in the psity
in possession to retain it. If at the tiue
when otherwise it would or ought to be re-
turned it has ceaaed to exist by virtue of ths
termination of its legal existeiK^e, how oaa it
be returned? How can a promise to return
or make compensation therefor be implied in
the case of a contract halving but a limited
time to run, and the value of which dimin-
iflihes daily until the contract itself and iu
value are wholly extinguished by expiration
of time, and where the use of this intangible
right during its existence was fully paid lor
by the party to whom it was assigned? There
is no implication of a promise to make say
further compensation for such a epedei of
property than is made by paying for its qm
while it remained in legal existence. Wbca
that time expired the value was goas, sad
while it lived it had been paid for.
We have been afcle to find no case who*
any principle was laid down which would §•*
thorize or justify a reeovery of the value ol
property at the time of delivery, whidi, be-
fore its return became proper, bad passed oat
of existence by limitation of •time, and the(li#l
use of which was paid for during its lifetime.
171 U. I.
lar
I'ui.LMAJi's Palacb Cab Co. y. Ckktical Tuaksfoiitatioii Co. 159-101
Wluit othe;' contracte may have been made
hj the Pullnuxn Company with railroad oom-
paniea would form no factor in the yaiue of
ibe oontracto assigned. If otliers were ob-
tained, they had never been the property of
the Central Company, and the latter could
only make a pretense of a claim in regard to
then by virtue of and through the illegal con-
trary. A resort to the illegal instrument can-
not be permitted for the purpose of sustain-
ing any recovery.
The same may be said of the patents which
the Central Company also undertook to trans-
fer, as they had all expired before January,
1886. They simply protected the use of the
eam which had been constructed under them,
an-J they diminished in value as each day
biooght them nearer to their expiration, and
when that time anived they were absolutely
valueless. During all that time they were
included in tne consideration for the pay-
ment of rent made by the Pullman Company
under the terms of the lease. The contracts
ana the patents must be eliminated from the
▼tlue of the property.
Nor can we accede to the view that the
Pullman Company is liable for the earnings
of the property which it realized by means
of putting such property to the very use
which the lease provided. It had the right
while both parties acquiesced to so use the
property.
There is no question of trustee in the case.
Root V. Lake Shore d M, 8. Railroad Com-
fony, 105 U. S. 189, 215 [26:975, 984].
The property was placed in its hands by
the lessor and in accordance with the terms
•f the agreement It was not then impressed
with any trust according to any definition of
that term known to us. Although the title
did not pass and was not intended to pass, the
lessee did nothing with the property other
than was justi6ed by the lease. Uis liability
» based only upon an implied promise to re-
turn or make compensaUou therefor. This
implication of a promise would not arise until
one or the other party chose to terminate
the lease, for the law implies such promise
in order only that justice, so far as possible
may be done. So long as neither party
ifOjttkes any 'objection to the agreement, and
both carry it out, there is no room for any
differences, and no promise to return the
property or make compensation is necessary,
Mid none is therefore implied. The use of the
property is lawful as between the paitie?, ho
loDjT as the lease was not repudiated by either,
and the rent compensates for the use. After
the repudiation the promise is then implied,
and it is fulfilled by the payment of the value
of the property at the time the promise is
implied and interest thereon from that time.
As to the claim of the lessor that its busi
ncM liRs been broken up, its contracts willi
railronds terminated and the corporation
left in a condition of inability to a«>:ain take
up its former plans, and that all mis should
be regarded iu the measure of the relief to
^hich it should be entitled, the same con-
^derations which we have already adverted to
ftoit be entertained. These are results of
171 V. 9.
the illegality of the contract entered into
between these parties, and its subsequent re-
pudiation on that ground, and in regard to
such illegality the Central Company is cer-
tainly as much in the wrong as the cross de-
fendant herein. The former laiew the ex-
tent of its obligations under its charter as
well as the latter did, and the illegal provi-
sions of the lease were quite as much its
doings as they were those of the cross defend-
ant. To grant relief based upon these facta
would be so clearlv to grant relief to one of
the parties to an illegal contract, based upon
the contract itself or upon alleged damages
arising out of its nonfulfilment, that nothing
more need be said upon that branch of the
subject. It is emphatically an application
of the rule that in such a case the position oi
the defendant is the better.
We conclude that the cross defendant is
not liable for the contracts and patents trans-
ferred, nor for the possible damage the Cen-
tral Company may have sustained, as above
stated. It is liable for the value of the cars,
furniture, etc., transferred. It is a liberal
estimate of the value of this property to say
that it amounted in 1885 to as much as it
did in 1870, yet we are disposed to deal in as
liberal a manner with the cross complainant
as we fairly may, while not violating any
settled principle of law, in order to give to it
such measure of relief *as the circumstance^ri^ji
of the case seem to justify. We therefore
lake the value of the property in the cars,
etc., in 1885 at the sum of $710,846.50. To
that, we think, should be added the $17,000
cash received from the Central Company,
making a total of $727,846.50 and interest
from January 1, 1885, for which the cross de-
fendant is liable, together with costs.
Although the Central Company may have
been injured by the result of this lease, yev
that is a misfortune which has overtaken it
by reason of the rule of law which declares
void a lease of such a nature, and while the
company may not have incurred any moral
guilt it has nevertheless violated the law by
making an illegal contract and one which
was against public policy, and it must take
such consequences as result therefrom.
The judgment appealed from must he r^
versed, and the case remitted to the circuit
court for the eastern district of Pennsylvania,
with directions to enter a judgment for the
Central Transportation Company in accord-
ance >%ith this opinion.
Mr. Justice Harlan dissented; Mr. Jus-
tice WMte dissented on the ground that
the judgment appealed from was for the cor-
rect amount and should not be reduced.
117
SceauMK CouKT of
DISTRICT OF COLUMBU, PJff, in Bir^
ELIZABETH L. W. BAILEY, Admrx., etc.,
DISTRICT OF COLUMBLi.
(8m 8. C Beimrtei'B ed. 101-1T9,)
Agreement (i arbitrate — power of commit-
gionera of Dittrict of Columbia — appoint-
ment of referee.
'- An ■greemtut to arbllnitc, nol nndec role ol
coart or vltbiD the tenni of a atatnte en-
acted for aacb parpoae, ■■ a contract.
2. The commlBBlonen of the Dlatrlct of Colam-
bla had not the power to bind the District bj
a comnioD-lav aubmlaslon of a pending suit
tor breach of contract, to a referee, under the
act o( June 11, 18T8, which proTldea that they
THK Uhitkb Statsb. Oct. Tmam,
Bhnll make no contract and Incnr do obUs>-
tlOD which IB not tbereln prorlded for mod By-
proved by Congreas.
I, The mete sCatemeDt of the appolntmeot «(
B refprec, on tbe mlnntea of tbe e— iml— Ina
ers of the District of ColnmblB, wHtaont Bar
algnaCure thereto by the eommlaala«era. la 1»
BulScient to coustltnte a contract ttj tlwf ■>-
der tlie act of Congreu of Jnoe U, 1878. !•-
yulrlne all contract! to be copied In > book
kept fur ibat purpoae, and to be ilxned by
the cammlaklooecB.
IN ERROR t» the Ckiait of Appeals of tba
IMstdct of Columbia to review a judgment
of thS't court aOirtning a judgment in tailor
>t the plaintiff, EUuilietb W. Bailey, as ad-
ministratrix of Davia W. Bailej-, <f
; their intcrprelaHoi
Oftd validUy, — see note to IMil t. itruen, ii : »U.
At to ofrresinmti la arMlrate; ipeoi/lo perfor-
■nanct nf; rcmtitD al law for breach of; at a
tar to oclloii*, — see DOte to Kinney t. Baltimore
* O- Bmplojees' Aaao. <W. Va.) IB L. B. A. 142.
At U lubniuion to orHlraffoA; efTeot of;
rd'ocoKoB of; fmlgincnt on aaard, — aee note
to People. Union Ini. Co., T. Naah (N. X.) 2 U
a. A. lao.
At to itttliig mUte arbHfralton and oiearit;
nU«f from mUtate In aicard; vaUdity at award,
— aee note to Hartford F. Ina. Co. t. Bonner
Hereantlle Co- (C. C. D- Hoot.) 11 L. B. A.
623.
teAm iindi .„ , _. . , _. _.. _._ ,
notice If hearioui lelecllnw nnpire,' 004lt,
WbCD aubuilaalOD to arbitration la revocable.
Panlien v. Unoslic, 126 III. 12: Oregon A W.
Bar. Bank t. American Morte Co. 3S Fed. Rep.
22; People, Onion Ins. Co.. v. Nnsli. Ill N. Y.
810, 2 U R. A. 180: Cregory v. Bust.in Hate De-
E«lt & T. Co. 36 Fed. Kep. mS. iiidllnger t.
erkDw, 82 Cal. 42: Fare] t. Itolierls, 1 Fa.
Dlat. B. 743: Mlnneipolla A Bt. L. B. Co- t.
Cooper, ea Minn. 290 .
A party to an arbitration agreement provld
Ins for a written award tdbt revoke tb,e aamc
after the ■rbltriion hare Indlvldnaily eommun-
Icated to Btranjiera their respective views, but
before they bave signed any award. Butler v.
Oreeoe, 48 Neb. 280.
Tbe right to revoke a submission to arbitra-
tion at commoB law must be exercised before the
Cobllcatlon of the award. Otherwise It will
t coDSldered waived. Counectlcot F. Ins. Co.
out a ahowlng of dl
en to act only on mattera of dilTereDCe between
the arbitrator*, doe* not authorlie one arbltra-
. ._. . -jjj^ ^^ award wlth-
e belweeo the arbl-
rard of arbitrators Is too uncertain ti
luslve upon tbe parties where It leavei
lUDt dne from one patty Co the other ti
FBiined by a reference to hooks of ac
iBTOIvlDg more than a mere computation
Ut. 28, (or aettllBi dirrer.
Bltect upon common-lBw arbitration of
Conger v. Dean, •!
Agreemeal ot i
Co arbitrators, wl
to a apecltled coi
leld. 80 Ala. lib
Ulles 1. ScbmUi.
Arbkratora are not reouired to decide aaj
matter before them according to law. U^rr *.
uailard, 120 N. C. 4-'.i.
the Hbsenc
tatBl to an a
v. Peel. 74 Ul
'lug of tealimony by I
! and wKboul notice i
ard agalDBt such
(8:&C
Dec E
S3 Ff
McCall. [
^ 113 : Danif
lot be set as
ora did not r<
> select nmpir*. Hart t. Keaoed*.
- -' Irysn v. Jeffren. 104 N. 0
Ipinnlng. Bl Ind -
■^' : Sharp - '
lei. 6 fii
I appoln ._
ise the board
work, nor Hi '
snd could not
nor Hnlsb Che moT*
right! ni Che parties. Blfert
Hep. SOT.
An award will not be set
. Wolf. 1» Kt I-
bltratloB. New
■ ..Now York part of the arbitrator*. Henry »,
Sebnledar, 11» fj. c. 4T».
IS97.
DisTBiGT OF Columbia y. Bailky.
1>.1, lUi
against the Distrioi of Golumbm, in the Su-
preme Court ol that District upon an award
lor a breach of contract for resurfacing with
nAphaltum certain streets in the city of
Washington, and in favor of the defendant in
another action. Reversed, and cases remand-
ed with directions to dismiss one action and
to grant a new trial in the other.
See same case below, 9 App. D. C 860.
Statement by Mr. Justice White*
On July 30, 1879, a contract for resurfac-
ing with asphaltum certain streets in the city
]of Washington was awarded to the *Bai]ey-
French Paving Company. The agreement
was embodied in a writing signed on the one
part by Davis W. Bailey as general agent of
the company just named, and on the other
part signed and sealed by the commissioners
of the District of Columbia. The price speci-
fied for the work aggregated a little less than
$41,00a On February 12, 1880, when about
three fourths of the work to be done under
this contract had been completed and about
$36,000 earned therefor, including $5,784.14
allowed for extra work, the commissioners
notified Bailey that no more work could be
perfonued under the contract, because of the
fact that the appropriation made by Con-
fress for the work in question was exhausted,
ubsequently^ on February 24, 1883, Davis
W. Bailey, claiming that he was in fact the
Bailey-French Paving Company, instituted an
action at law in the supreme court of tht
District of Columbia agamst the District of
Columbia to recover $25,000 as damages,
averred to have been sustained by the cessa-
tion of the work under the contract. The
District, on April 4, 1883, filed pleas, claim-
ing a set-off of $1,312.30 for damages alleged
to have been sustained by improper perform*
ance of the work of resurfacing; averring
the teimination of the contract by reason of
the appropriation having been exhausted;
Arbitrators, unless restricted by the agree-
ment to submit, are not. as to matters of law,
^und in all cases to follo\v the strict rules ol
inw soveming the courts, but may decide in
accoraance with their views of the equitable
rii^u of the parties. School Diet. No. 5 v.
&a£e, 13 Wash. 852.
An award by arbitrators under the Washing-
ton statutes. If fairly and honestly made upon
doe consideration of all the evidence before
them. Is conclusive and binding upon the par-
ties. School DIst No. 5 t. Sage, 13 Wash. 352.
llie conclusions of arbitrators on tactn s^^b-
mltted to them, which are such as may be de-
termined differently by fair minded and honest
people, are final, and not subject to review.
Wlti V. Tregallas. 82 Md. 351.
A suit cannot be maintained upon an original
cause of action which has been submitted to
arbitrators, where the plaintiff retains the
fruits of the award. Orvls v. Wells, P. & Co.
S8 U. & App. 471. 73 Fed. Bep. 110, 19 C. C.
A. 382.
An award by arbitrators will not be set aside
upon a doubtful point of law or upon a com-
plaint of error which Is not plain, even where
the arbitrators are required to decide accordlnc
to the strict rules of law. School Dlst. No. 6
▼. Sage, 13 Wash. 352.
'n agreement of arbitration forced by a
threat of prosecution for perjury Is void. La-
ferriere v. Cadieux, 11 Manitoba L. R. 175.
Failure to insert the names of the arbitrators
is a written submission to arbitrate does not
invalidate such submission. Beeves v. McOloch-
lin. 65 .Mo. App. 537.
An sward made In purscance of a submission
under Ala. Code, f 3222, of partnership trans
actions carried on In two states by partners
who reside in two different states. Is not vi-
tiated as an Alabama award by the fact that the
sitting of the arbitrators occurred in a store,
the prop<>rty of the parties across the state
Use. Edmundson v. Wilson, 108 Ala. 118.
A submission to arbitration requirlna the ar-
bitrators to make a written sward ana deliver
a eopy thereof to the parties Is not compiled
with by one of the srbltrators notifying a party
on meeting him on the street that the arbltra-
tora had come to a decision, with a statement
ss to what their finding was. Anderson v.
Miller, 108 Ala. 171. ^ . ^ .
The decisions of arbitrators, under Ala. Code,
i 8222. are to be liberally construed, and every
ressonable Intendment Is made to support them.
Edmondson v. Wilson, 108 Ala. 118.
A motion to vacate or modlfv an award Is
properly denied when filed during the second
tern after publication of the sward, under the
Uissosri statute requiring snch an application
to be made at the next term after snch publi-
cation. Reeves r. McGlochlin. 65 Mo. App. 537.
An award of arbitrators will not be vscated
•r modified under Mo. Rev. Stat. 1889, fi 405,
406. for nMeged mistakes which do not appear
171 U. U.
on the face of the record. Reeves v. McGloch-
lin, 65 Mo. App. 537.
That an agreement for arbitration does not
comply with the mode prescribed by the Texas
Revised Statutes does not invalidate It, In view
of the provision that nothing therein shall be
construed as affecting the right of parties to
arbitrate their differences In such other mods
as they may select. Salinas v. StlUman, 30 U.
S. App. 40, 66 Fed. Rep. 677, 14 C. C. A. 50.
An agi*eement without action pending, t#
submit all matters In variance between the
parties to designated arbitrators, written down
by a justice in nls docket. Is a common-law sub-
mission to arbitration. Climenson v. Cllmen-
son, 163 Pa. 451.
Costs and expenses Incurred In preparing for
an arbitration, under an agreement that the
compensation of the arbitrators and their ex-
penses and those of the witnesses shall be boms
and paid by the parties In a designated propor-
tion, may be recovered In full from a party who
revokes the agreement, under N. Y. Code Civ.
Proc i 2384. Union Ina Co. v. Central Trust
Co. 24 N. Y. Civ. Proc. Rep. 219, Affirmed In 87
Hun, 140.
A provision In a submission of a controversy
to arbitrators, thst the arbitrators shall proceed
on the principles of equity, it being the desire
that the matters In dispute shall be equitably
settled so that each shsul have from the other
all that Is his equitable due, — means equity In
the sense of "fair dealing" and "justice.** Bs
Curtis, 64 Conn. 501.
An agreement by a client and his attorney to
submit the amount of the letter's compensation
to the determination of a person upon a sworn
itemized and explanatory statement of the serv-
ices rendered and expenses Incurred and of the
moneys received, the arbitrator to allow only
such sum as he believes proper and necessary
for preparing the defense In the suit in which
such services were rendered, constltu* .8 In ef-
fect a common-law arbitration, which is still
recognised and enforced by the courts of New
York. Box v. Costello, 6 Misc. 415.
The award of arbitrators to whom a case Is
submitted by mutual consent of the parties Is
conclusive upon them, although the agreement
of submission Is by parol and the parties do
not assent to the award after It Is made.
Wents V. Bealor, 14 Pa. Co. Ct. 837.
The power of awarding the costs of arbitra-
tion Is necessarily Incident to the authority con-
ferred on the arbitrators of determining the
case, although snch costs are not provided for
In the terms of submission. Stewart v. Orler,
7 Houst. (Del.) 878.
The fact that one has been previously In the
employ of one of the parties to an aroitrstlon
does not disqualify hfm from scting as clerk
for the arbitrators. Wilson v. Wilson, 18 Colo.
615.
The necessity for filing an award of arbitra-
tors with the clerk as required by the Colorsdo
119
\\
162-164
StPBuuB Court op thk Unitkd Statm.
OCT.TotM^
«nd alleging that the time within which the
contractor nad stipulated to complete the
work had expired long prior to the cancela-
tion of the contract. The plaintiff joined is-
sue and filed a replication on April 18, 1883.
On June 19, 1883, Bailey died. His widow
was appointed administratrix, and the action
against the District was revived in her name.
On September 10, 1891, the attorney tor
the claimant addressed a letter, on behalf of
the administratrix, to the commissioners of
the District of Columbia, calling attention to
tihe pending case, stating that ''the ground
of said suit is for breach of contract," recit-
ing the facts as to the making of the contract
and the mode by which it was terminated,
and claiming that, at the time of such can-
celation, Bauey had expended for machinery
necessary to the performance of the contract
$10,180; that he had at the time stock on
[163]hand, $7,000 ; that *the profit on the unexecut-
ed balance of the work would have been $8,-
000; that there was due under the contract
for an extra one half inch of surfacing $5,000.
These items were stated in the letter to
amount to $31,180, but only aggregate $30,-
ISO. Without calling the attention of the
commissioners to the fact that the item of
$5,000 for an extra half inch of resurfacing was
not asserted in the declaration in the pending
suit, the attorney for the administratrix pro-
ceeded to refer to the defenses interposed in
such suit on behalf of the District, and next
stated the claim made by the contractor in
his replication, that the delay in the work
was the fault of the District. The conclu-
sion of the letter, omitting references to im-
material matters, was as follows:
''Now, having stated the principal facts
which bear upon this case, that you may
have sufficient knowledge to act in the prem-
ises, I write to ask if you will appoint some
good man as a referee or arbitrator to whom
this case may be referred, with power to hear
the evidence and make an award whidi shall
be accepted, whether for or against as, as a
final settlement of this long and much liti-
gated case."
This communication was referred by the
commissioners to the attorn^ for the Dis-
tri'jt, who indorsed thereon under date of Oe>
tober 17, 1891:
"This is a case which has been pending ia
the court for a long time and it ought to be
disposed of. If it could be referred to some
first-cltisf^ referee, who will give us a full hear
ing. it would be a very good way of dispodn^
of it, and I should favor such a reference, as
we can then attend to it at our convenience."
A memorandum was also sent by one of
the commissioners to the assistant attoniey
for the District, which read as follows:
"Thomas: Think of some good names for
a referee, and talk with us about this case.
"October 27, 1891. J. W. D."
A memorandiun in pencil, evidently having
reference to the foregoing, is as follows:
*"Ans. Mr. Douglass. Comm^rs think thi^fll
case should be iseltled in court.''
On October 28, 1801, Assistant Attorney
Thomas sent the following letter:
To the Hon. Commissioners, etc, etc
Gentlemen: I return to you herewith a
commimication from W. Preston Williamson,
Esq., relative to the case of Bailey v. The
District of Columbia, referred to me with the
request thait I give you the name of someoat
who would make a good referee.
I would suggest either Mr. A. B. Du^-ail or
Mr. J. H. Lichliter, both memliers of the bar
and well qualified to decide the issues in that
ca.se. Very respectfully,
a T. Thomas, As8*t Att'y, a C
Statute is obviated by the payment of ths
award. Wilson v. Wilson, 18 Colo. 615.
Failure of an umpire chosen to render a de-
cision upon an arbitration after the authority
•f the original arbitrators has ceased, to rehear
the testimony taken before the arbitrators, is
fatal to the award. Re Grening, 74 Hon. 62.
Omission to administer oaths to arbitrators
and witnesses is not a ground of objection to
the award made by the arbitrators where the
contending parties expressly agreed that no
oaths should be administered to the arbitrators,
and that the testimony of witnesses unsworn
should be received. Russell v. Seery, 62 Kan.
786.
Failure of an arbitrator to be sworn is not a
Jurisdictional defect, but at most an irregulari-
ty which can be availed of only by motion to
set aside the award, or by raising ft in the an-
swer in a suit to enforce the award. Box t«
Costello, 6 Misc. 416., ^ , , w. ^ w
A waiver by an assignor of a claim which, by
agreement of the assignor, assignee, and debtor,
is submitted to arbitration, of the oath of arbi-
trators required by N. Y. Code Civ. Proc I 2869,
unless waived, is not binding upon his assignee.
Be Grening, 74 Huu. 62. . . ^
An award of arbitrators is void where they
have attempted to award what they have no
power to award, and have failed to find what
they were empowered to determine. Fortune v.
Eiliebrew, 86 Tex. 172.
Error of judgment by arbitrators as to the
effect or weight of evidence is not a ground for
setting aside the award. Russell v. Seery, 62
Kan. 786.
120
An award of arbitrators will not be sec
for fraud, accident, or mistake nnleas the traad
was practised upon the arbitrators or tlie acci-
dent or mistake deceived and misled thea. A
mistake of arbitrators in weighing the fact*
placed before them, or their adoption of trroac-
OU8 rules of law, is not sufficient. Wllsoa t.
Wilson, 18 Colo. 615.
An award of arbitrators, arrived at la par-
suance of the terms of the agreement voloatari-
ly adopted by the parties, will not be revlewci
on the question of damsiees, unless there v*e
corruption or partiality ox the arbitrators, mis-
conduct during the hearing, or fraud la tkt op^
C^ite party. Hartford F. Ins. Co. v. Boaaer
ercantUe Co. 16 U. S. App. 134, 66 Fsd. Bep^
878, 6 C. C. A. 624.
An award under a common-law arbltrattoa li
concluaive upon the parties, merges the ort^asl
rifl^t, and alone furnishes the basis upon whkk
the rights of the parties are to be determlatd.
Box V. Costello, 6 Misc 416.
A judgment entered upon an award byarbttrt-
tors is void where some of the necessary par
ties did not properly Join In the sobmistloB. mm4
the arbitrators fslled to determine the laves
and decided matters not submitted to tbeir se
termination. Fortune v. Klllebrew. 86 Tti.
172.
An application to set aside an award of titi-
trstors for purely technical reasons will be de-
nied where no apparent Injustice has beea 4aM
or is contemplated, and defendant voloBtanv
submitted all matters in dispute, sad oie
amount of the award has been collected, wet^
fel V. Hammer. 160 Pa. 448.
171 U. I.
lar
DiamCT OF OOLUMBIA ▼• BAlliBT.
Itt4-16T
Tbt next doeoDMil liiirriBg to Um matUr
it tkt loUowing:
Office of tlM
OttDmiMioiicra of the Distriet of Columbia.
Wasbingion, January 11, 1802.
Ordered, that J. J. Johnson is hereby ap-
pointed n^eree in the matter of the suit of
Mhjf, Administratrix of Bailey, Deceased, v.
Dittfiet of CclumUa,
Official copy lumished Mr. J. J. Johnson.
By order: W. Tindall, Secretary.
Under this appointment, on February 17.
1892, the attorneys for the respective parties
appeared before Mr. Johnson. It was dairoed
by witnesses for the plaintiff at the trial of
the action subsequently brought to enforce
the finding of the referee, that at the com-
BieDceinent of the hearing the latter gentle-
DMii, as well as the attorney for the adminis-
tratrix, raised the question whether or not
uider the order oi appointment the decision
of the referee was to be final, and were as-
•ared by the attorney for the District that
the decision of Mr. Johnson was to be a final
•^Idetermination of the case. *8uch witnesses
also testiiied that subsequently, when a ques-
ties arose with respect to permitting an
•mended declaration to be filed, setting up a
dtun for an extra half inch of resuriacinf^,
the referee and attorneys discussed as to
whether the decision of the referee 'Sras to
wind op finally the whole matter," and
aa afilrmative conclusion was arrived at.
Ko attempt, however, was made to obtain
from the eommiesioners of the District any
nodification or amplification of the writing
of January 11, 1892.
The hearing before the referee was con-
doded on July 18, 1802, when Mr. Johnson
pla^ on the files of the supreme court of the
biitriet 0^ Columbia in action numbered
24^9 his report as referee. The report did
not refer to the mode by which its author
had become referee. It was entitled in the
cauiie, purported to contain a synopsis of the
pleadings, the plaintifTs claim, a statement
of the faets and the findings of *'J. J. John-
aoB, referee." The report concluded as fol-
lows:
'^pon the evidence and the law I have al-
lowed the plaintifiT for the unexecuted bal-
anee of 11,386 square yards, $4,440.15, being
the profit between the cost of resurfacing the
ttreeto at fifty cents per square yard and
nghty-nioe cents, th^ price received, and for
the extra one-half inch I have allowed the
pUintifir $6,079.05 at the contract price, ag-
pegiting the sum of $10,519.20. I do there-
wTs find that there is due to the plaintiff
htmi tiie defendant the sum of $10,619.20, bd-
adeseosts."
The referee al^o fixed his fee at $660, which
^sa paid by the administratrix.
On September 23, 1802, exceptions were
fled on behalf of the District to this report
Upon the exceptions, the attorney for the
puiatiff made the following indorsement:
^ eoBient that these exceptions bs filed
mine pro iimeJ* On March 10, 1893, a
tion for judgment was filed on behalf ol tho
plaintiff.
Without action being had on the excerp-
tions and motions referred to, the adminis-
tratrix of Bailey, on August 8, 1893, insti-
tuted an action at law, numbered 34,564, in
the supreme court *of the District of Colum-[ 1 66]
bia, seeking to recover from the District the
sum of $10,519.20, basing the right to such
recovery upon the claim that the finding of
Mr. Johnson was, in fact, a final decision and
award. In the afiSdavit filed with the dec-
laration, as authorized by the rules of prac-
tice of the court, what purports to be a copy
of the resolution appointing Mr. Johnson
referee is set out, but the words "of the surt"
are omitted from before the words "of Bailey^
administratrix." On September 2, 1893,
pleas were filed on behalf of the District, de-
nying that it had agreed to submit the mat-
ters of diflference referred to in the declara-
tion to the award and arbitrament of John-
son, and averring that Johnson had not made
an award concerning the same. The various
steps in the original action (No. 24,279)
were stated, and it was alleged that motions
to set aside award and for judgment were
still pending. It was also averred that ths
alleged award was not under seal and was
never delivered to the defendant; that the
defendant never undertook and promised in
the manner and form as alleged, and that the
District was not indebted as alleged. The
plaintiff joined issue. On October 8, 1895,
on motion of the plaintiff, the two causes
were consolidaited. While the motion to
consolidate was opposed by the District, no
exceptions were taken to the entry of the or-
der of consolidation.
The consolidated action came on for trial
January 13, 1898. At the trial W. Preston
Williamson, a witness for the plaintiff, tes-
tified that he had sent to the commission-
ers the communication of September 16,
1891. Under objection and exception he
was permitted to testify to conversations
had separately with two of the commission-
ers, which tended to show that in the event of
the appointment of an arbitrator or referee^
it was the intention of the commissioners to
submit to the individual selected as referee
or arbitrator the fina^ determination of the
entire oonirovcrsy referred to in William-
son's letter. Also under objection and ex-
ception, the witness testified that after tho
order appointing Mr. Johnson referee was
made by the commissioners, he and the attor-
ney for tiie District, in the presence of the
re/eree, discussed the scope of the submissicm,
*and agreed that the decision of the referee[167|
was intended by the parties to the contro-
versy to be a &aal disposition of the whole
matter. The indorsements on the letter of
Mr. Williamson, the letter of the assistant
attorney of the District, and other memo-
randa heretofore set out were put in evidence
on behalf of the plaintiff. Mr. Hazleton, a
former attorney for the District, also testi-
fied for the plaintiff, in substance, under ob-
jection and exception, that it was the inten-
121
I
1 )
167-169
SUPBBMB COUBT OF THB UmITBO StATKS.
Oct.
■4
i '
It <■
r/i
r
I
I
I
If I.:
Hi
■il,
t
ill*
i'i|i':
,1
,
iioA of the commnBicnen, ae he knew from
ond rtatements made to him by two of the
oommiaiionere, that the appointment of a
referee would be for the purpose of ending
the whole controversy, and that nothing oc-
curred between the time of the appointment
of the referee and the making of the rqK>rt
to change that understanding. He also tes-
tified as to the hling of the amended declara-
tion before the referee, setting up the claim
for an extra half inch of resimacing, which
was not embraced in the pending suit at the
time the referee or arbitrator was appointed.
J. J. Johnson also testified on behalf of the
plaintiff, under objection and exception, as
to the understandins: had with him at the
hearing before him as referee, by the counsel
for the reepective ]>arties, regarding the
finality of any decision made by him, and as
to the filing of the amended declaration for
the extra half inch oi resurfacing. He tes-'
tified that he filed the report made by him
in court of his own motion, and averred that
certain written matter filed with his report
was not a part of the report, and that it did
not contain all the evidence, though it con-
tained all the oral testimony given before him.
The report was next put in evidence, ob-
jections being first separately interposed to
its introduction on the grounds: 1, that the
papers and evidence attached thereto should
also be put in evidence; and, 2, that the
referee was without authority to make an
award. To the overruling of each objection
the defendant duly excepted.
John W. Douglass, one of the commission-
ers for the district in office at the time of the
appointment of the referee, testified on be-
half of the plaintiff that the intention of the
.68]*commi9sioiiers was to make the reference
final. The evidence for the plaintiff was
cloeed with the testimony of the plaintiff,
who stated, in effect, that the letter of Sep-
tember 16, 1891, had been sent to the com-
missioners with her approval, and that noth-
ing had been paid her on account of the
award. For the defendant, John W. Ross,
who was a commissioner at the time of the
appointment of Mr. Johnson, testified that he
was an attorney at law, knew the difference
between an arbitration and order of reference
for a report, and that his understanding when
the appointment of Mr. Johnson as referee
was made was that the appointment was not
of an arbitrator, but was simply one of refer-
ence. He further testified "Uiere was no
record of the appointment of the referee, ex-
cept the one in evidence, unless the pencil
memorandum may be taken as a record."
The witness denied that he made statements
attributed to him by the witness for the
plaintiff, to the effect that it was the inten-
tion of the commissioners that the decision
of Mr. Johnson should be final.
After Mr. Ross had concluded his testi-
mony, the record and proceedings in action
No. 24,279 were introduced in evidence on
bdialf of bhe defendant. On the settlement
of the bill of exceptions a dispute arose as to
whether the papers attached to the report of
the referee had been put in evidence by the
ioBotieatta
eooit with re^eet
offer m«de» but it is vbi
action taken by the
to that controversy.
In rebuttal, Mr. Williamson reiterated
statem»its as to alleged deolarationB of Mr.
Ross regarding the finiBdity of the deciaion of
the referee. On cross-examination he said:
'That he wrote the letter of September 16,
1891, at his office, 912 F street; that he did
not know why the District filed exceptions,
as it was understood that the report was to
be final; that witness filed the motion to coa-
firm the award because he thought it the
best thing, the only thing, that could then be
done, and that he thought it would be simplya
matter of form, and he would have confirma-
tion at once of the award, and that the money
would be paid; but the District, instead of
doing that, violated its agreement; that wit-
ness *did not remember ever consenting tothe[m
filing of exceptions to the award. Now that
counsel shows him the paper which is the ex-
ception to the award, witness remembers that
he signed the paper consenting that the ex-
ceptions should be filed nunc pro tunc, Mr.
Richardson came to him and asked him if
he would make any special objection to the
exceptions being filed; that it ought to be
filed, so that the Districi might make their
objections, and for that purpose he did it. and
did not consent to it because he thought il
was not final; that there was not a copy of
the award served by him on the commis-
sioners; that Mr. Johnson was their arbitra-
tor, and it was not for witness to serve then
with a copy."
The evidence was then closed. The trial
judge granted a request of the defendant that
the jury be instructed to render a verdict for
the defendant in the first action, and an exosp-
tion was duly noted on behalf of the adminia-
tratrix. The trial judge also granted a re>
quest of counsel for the plaintiff, in substaaet
that t^e jury be instructed to find for the
plaintiff if they found from the evidence that
the commissioners accepted the propoaitioa
contained in Mr. Williamson's letter, that in
pursuance of such acceptance the oommij<.^ioa-
ers made the order of January 11, 1S92, and
that the hearing before Mr Johnson was pro-
ceeded with under such appointment, and tht
declaration amended at tlte hearing by con-
sent of counsel. An exception was taken to
the granting of this instruction.
The following requests for instructions wert
then asked on behalf of the defendant, which
being overruled, separate exceptions wen
not^:
"2. The jury are instructed, on the whole
evidence in cause No. 34,564, they are to rea-
der a verdict for the defendant.
"3. The jury are instructed that the cam-
missioners of <t^e District of Columbia wan
without authority to agree to submit the
matters in controversy in the case of Reifcy,
Adm'r, v. The District of ColtiiaMo, at law,
No. 24,279, to the final award of an arbitra-
tor, but that said commissioners had asther-
ity to agree to refer the case for the awari
and report of a referee, subject to the approv-
al of the court."
171 U. &
kdtf?
MJAOIMICT OF GOLVMBU. Y. BaILBT.
IttU, 170
"5. Hm Jury are iastrueted thai 4ih« plain-
nOjUlT, M administratrix* of the estate of her
deoeeeed husband, was without authority to
agree to refer the claim of the estate to arbi-
tmtioB without the previous direction of the
supreme court of the Difttrict of Oolumbia,
boldiiig a special term for orphans' court busi-
The bill of exception also states that ex-
ceptiona were taken on behalf of the District
to portMoa <^ the general charge of the court
contained in brackets, but no portion of the
charge, aa contained in the printed record, la
•0 marked.
A verdiot waa returned finding in favor of
the deiendant in action No. 24,279, and in
favor of the plainUff f<nr $10,519.20 aad inter-
est in aotion No. 24,564. Judgment was sub-
tsqneotly entered up<m the verdict, and both
parties prosecuted error. The court of ap-
peals of the District having; affirmed the judg-
ment (9 App. D. C 360), each party obtained
the allowance of a writ of error from the
court and the consulidaied cause is now here
ior review.
Messrs. Sldmey T. Thomas and Andrew
B. DwTall for District of Columbia :
A written submission cannot be varied by
parol evidence. Neither is it competent to
show b^ parol evidence what the written
submission in fact was.
Efner v. Shaw, 2 Wend. 667; MoVear v.
BaUey, 18 Me. 251; DvLong v. Stanton, 9
Johns. 38.
A memorandum of an agreement to refer is
wholly superseded by a sub^^equent complete
reference of submission. And the verbal
agreement nmde prior to, or contempora-
neously with, a written submission is mctged
in the latter.
Morse, Arbitration k Award, 63; Billing-
Urn V. Sprague, 22 Me. 34 ; boring v. Alden,
3 Met 676; Symonda v. Mayo, 10 Cush. 39;
Palmer v. Oreen, 6 Conn. 14.
A casa submitted to arbitration pendente
Ute will in no case be considered diecontin-
ued where the terms of the submission show
the intention of the parties not to discon-
tinue.
Jacoby V. Johnston, 1 Hun, 212; Uenrne v.
Brown, 67 Me. 156; Ensign v. 6t. Louis d 8,
F. IL Co. 62 How. Pr. 123.
The practical interpretation put upon the
agreement uy the parties was tiiat the ref-
eree was to make a report onlv. This con-
trols. Chicago ▼. Sheldon, 9 WalL 64 ( 19 :
597).
The plaintiff sues as an administratrix;
as such, she was yrithout power to submit
alleged differences to arbitration* Clark ▼.
Bogle, 62 111. 427.
U an arbitrator discloses in his award the
ground of his decision the sanie is reviewa-
ble, and, if contrary to law, may be set aside.
State, Calvert, ▼. Williams, 9 Gill, 172 : Oli-
ver V. Heap, 2 Harr. 4 M*H. 477; Heuitt
V. State, Brotvn, 6 Harr. 4 J. 97; ChldsnUth
▼. TiUy, 1 Hair. 4b J. 361; Tillard ▼. Fisher,
3 narr & MTL 118; Woods v. Matohett, 47
Md. 390; Kent w. Elstof, 3 East, 18; Know
t71 U. S.
▼• WMon, 2 Wash. 0. O. 607f K^Uy ▼. Johm-
son, 3 Wash. G. 0. 47; Conger ▼. James, t
Swan, 216; Billings, Awards, p. 61.
A submission under a statute which re-
quires the court to "approve" the award
gives the court power to inquire into the de-
cision of the arbitrators as regards mattara
of law.
Allen V. Miles, 4 Harr. 234.
The court is bound to set aside an award
which is manifestly against the law and
facts.
Allen v. Miles, 4 Harr. (Del.) 236; Hurst
V. Hurst, 1 Wash. C. C. 60; Williams ▼.
Craig, 1 Dall. 315 (1: 153) ; Qjvett v. Reed,
4 Yeates, 461.
Mr. A. S. WorthiiLBton, for Elizabeth
L. W. Bailey, Administratrix.
This is a case in which a part only of tha
contract was in writing. That being so, tha
whole matter was open to oral evident to
show what was the real agreement between
the parties.
Hays V. Hays, 23 Wend. 263.
It must be presumed that there was evi-
dence to sustain the award.
United States v. Farragut, 22 Wall. 416
(22:879).
An administrator has power to submit a
claim, and especially one that is already in
litigation, to arbitration.
3 Wms. Exrs. bottom page 1801, note i;
2 Woerner, Am. Law of Administration, |
327; Lyle v. Rodgers, 6 Wheat. 406 (5:
117) ; Morse, Arbitration & Award, 19, and
cases cited.
llie commissioners of the District are also
authorized to submit to arbitration a claim
against the municipality which they repre-
sent, especially when an action is pending
to enforce the claim.
1 Dill. Mun. Corp. § 478; ftelmont r.Wash'
ington d O. R. Co. 3 Mackey, 357.
If the award is within the submission and
contains the honest decision of the arbitra*
tors after a full and fair hearinir of the par-
ties, a court of equity will not set it aside
for error either in law or in fact.
Burchell v. Marsh, 17 How. 349 (15: 99) ;
Smith V. Morse, 9 Wall. 82 ( 19 : 599 ) .
Courts of justice in their latest decisions
have manifested a disposition to treat
awards with more liberality than formerly.
Everything is to be intended in favor of aa
award.
Ehert v. Ehert, 5 Md. 359 ; Roloson ▼. Car^
son, 8 Md. 220; Qaritee ▼. Carter, 16 Md.
300; Maryland d D. R. Co. Y. Porter, l^ Md.
458 ; Willard v. Horsey, 22 Md. 89.
Several cases are cited in the opposing
brief in support of their proposition tnat the
submission to arbitration of ajpending action
at law will not necessarily of itself work a
discontinuance of the action. On the other
hand, it has been frequently held that the
effect of such reference is to discontinue the
pending suit.
Mill^ y, Vaughan, 1 Johns. 315; Johnson
▼. Pwrmely, 17 Johns. 129; Camp ▼. Root, 18
Johns. 22; Dodge y.Waterhury,^ Cow. 136;
Rathbone v. Lwonsltury, 2 Wend. 595; Tovcne
123
170-178
bUl'KKMB COUBT OF THB UhITKD BTATlkS.
Oct. Tskk.
W. WUcom, IS Wend. 503; Oreen r. Patehen,
18 Wend. 293; Mooera v. Allen, 36 Me. 276,
68 Am. Dec 700; Orooker v. Buck, 4) Me.
855; Eddings v. Oillespie, 12 Heisk. 648;
JetDell V. Blankenahip, 10 Yerg. 439; Jfucl^
0y v. Pierce, 3 Wis. 307; Cunningham T.
Cf Aiy, 53 ni. 262.
Mr. Justdoe Wliite delivered the opinion
of tiie court:
The decision of thia controversy involves
two ppopo6iti<Hi8. Did the commissioners of
the District of Columbia h&ve the power to
s^ee to submit the claim in issue to the
award of an arbitrator? And if they did
have the power, did they lawfully exercise
it? To answer either of t^ese questions it be-
comes essential to ascertain whether an agree-
ment to 8uft>mit to arbitration involves the
power to oontiuct. Both of the nuutters above
stated depend upon this last inquiry, because
both the claim thai th^ District of Columbia
did not in valid form exercise the power to
submit to arbitration, and the assertion that
if they so did they were not authorized to
thttt end, rest on we claim that the submis-
£171]sion was not made in the form 'required by
law to constitute a contract, and even if the al-
leged award was in legal form, nevertheless
the Distitct commissioners were without
power to contract for that purpose.
In determining whether an agreement to cur-
bitrate involves the power to oomtract we
eliminate at once from consideration consents
to arbitrate made under a rule of court, by
consent, in a pending suit, and shall consider
only whether an agreemeirt to arbitrate not
under rule of court or within the terms of a
statute enacted for such purpose is or is not a
contract. We do this, because there is no
pretense in the case at bar that the submis-
non to arbitration was under a rule of court
or eauivalent thereto. Indeed, the courts be-
low neld that the submission of the claim in
question to arbitration was a purely common-
law one and not made under a statute or rule
of court; and in consequence of these views
the courts held it to be their duty to make
<^e award executoiy by rendering a judg-
ment thereon, on the assumption that the
parties, having sgreed to a common-law sub-
mission, were bound by reason thereof to
abide by the award of the arbitrator.
The general rule is, "that everyone who is
capable of making a disposition of his prop-
erty, or a release of his rigfht, may make a
submission to an award j but no one can, who
it either undo* a natuial or civil incapacity
of contracting." Kyd, p. 35; Russell, Arbi-
trators, p. 14. And Morse, in the opening
paragraph of his treatise on Arbitration and
Award (p. 3), says: ''A submission is a con-
tract" And again, at p. 50: "The submis-
sion is the agreem^st of the parties to refer.
It is therelove a contract, and will in general
be governed by the law concerning contracts.''
In Witcher v. Witcher, 49 N. H. 1/6, the su-
preme court of New Hampshire said (p. 180) :
*A submission is a contract between two or
more parties, whereby they agree to refer the
subject in dispute to others ukL be bound by
124
their award, and the submission itself impti»
an agreement to abide the result, even if no
such agreement were expressed." It was be-
cause a submission to ait>itration bad the
foroe of a contract, thai at common law a
submission by a corporation aggregate wia
required to be the act *of the corporate bodj[l^
(Russell, Arbitrators, 5th ed. p. 20) ; whicn
act was of necessity requlied to be evidenced
in a particular manner.
It is true that an executor, at c<nnmoii
law, had the power to submit to an award.
But this power arose by reason of the foD
doU'lnion which the law gave the executor
or administrator over the 'assets, and the foil
discretion which it vested in him for the set-
tlement and liquidation of all claims due to
and from the estate. Wheatley v. Vartim,
6 Leigh, tJ4; Wamsley v. Wamsiey. 26 W. Va.
46; Wood v. Tunnicun, 74 N. Y. 43. Whilst,
however, the agreement of the executor to a
omnmoQ-law submissioA was himiing upoa
him, buch a consent on his part did not pru-
tect him from being billed to an account by
the beneficiaries of the estate, if the submis-
sion proved not to be to their advantage, be-
cause the submission was a voluntar}- act of
the executor and was not the equivalent oi
a judicial finding. 3 Wms. Kxrs. p. 32d, and
authorities cited. So, also, the power of a
municipal corporation to arbitrate arises froB
its authority to liquidate and settle claims,
and the rule on whis subject is thus stated bj
Dillon (Mun. Corp. 4th ed. S 47-^) r
"A^ a general proposition, municipal cor-
porations have, unless specially restricted,
the same powers to liquidate claims and in-
debtedness that natural persons have, and
from that source proceeds power to adjust aU
disputed claims, and when the amount is ss-
certained to pay the same as other indebted-
ness. It wotUd seem to follow therefrom that
a municipal corporation, unless disabled by
positive law. could submit to arbitration sC
unsettled claims with the same liability ts
perform the award as would rest upon a
natural person, provided, of course, that tiidi
power be exercised by ordinance or reaolutioii
of the corporate authonties.*'
In the early case of Brady v. Mayor, etc. of
Brooklyn, 1 Barb. 584, 589, Uie power of a
municipal corporation to submit to arbitra-
tion was ascribed to the caoacity to contract,
with a liability to pay, and it was held tbat
corporations have lul the powers of ordiaarr
parties as respects their contracts, exctpt
when they are restricted expressly, or
by necessary implication. In the *0Mfji7f
of minor public officials or corporetioiii,
such as selectmen and sdiool districii,
the power to arbitrate has been cUsHt
rested upon the existence of the rifkt
to adjust and settle claims of the |«^
Ucular character which had been sub-
mitted to arbitration. D«p v. Totm of Ihrn-
tneraton, 19 Vt. 262; Districi Townahip tf
Walnut V. Rankin, 70 Iowa, 65. Indeed, tks
proposition that an independent agreemot
to submit to an award must denend for ill
validity upon the existence of the right to
contract is so elementary that further dta^
171 tt*.
A6»7
^.oAiUOT OF Columbia v. Bailet.
17^179
tkm 9i iitawrltj to sappori it h uimeoes-
ExAmiiiiiig, then, ihm qnettiont we have
•Uied in their inverse order, we proceed to in-
qure whether bhe coninu88ionei*8 of the Dis-
trict of Columbia had the power to enter into
t coalrtct of the nature of that under consid-
enitioB. The solution of this inquiry re-
quires a brief examination of the statutes,
from which alone the po\^ers of the comniis-
ooners of the District are derived*
B7 chapter 887, act of June 20, 1874,
"An Act for the Government of the District
<^ Columbia, and Other Purposes". (18 Stat
tt U 116), the commission provided for in S
2 was vested with the power imd authority
of the then governor or beard of public works
of the District, except as thereinafter limited,
and it was provided that '*said commission,
in the exercise of such power or authority,
shall make no contract, nor incur any obliga-
tioB, other dSiaa such oontraots and o^ga-
tions as may be necessary to the faithful ad-
ministration of the valid laws enacted for the
government of said Distrit^t, to the execution
ol existing legal dbligationa und ooniractB
and to the protection or preservation of im-
provements existing, or commenced and not
eompleted, at the timt of the passage of this
act''
By chapter 180, act of June 11, 1878, "An
Act Providing a Permanent Form of Qovem-
ment for the District of Columbia" (20 Stat
it L. 102) , the District and the property and
persons therein were made subject to ihe
provisiona of the act, "and also to any exist-
ing laws applicable thereto not hereby re-
plied or inconsistent with the provisions of
this set" The commissioners provided for in
the set were, by S 3, vested with all the pow-
I7t]ers,*rig)it3»duties,and privileges lawfullv ex-
ercised by. and all property, estate, and effects
Tested in, the commissionerr appointed umder
the provisions of the act of June 20, 1874, and
were given power, subject to the limitations
and provisions contained in the act. to apply
the taxes or other revenues of the District t*^
the payment of tiie current expenses thereof,
to the support of the public schools,
the fire department, and the police.
It was expressly enacted, however, in the
same section, that the commissioners in the
exercise of the duties, powers, and authority
Testec in them ''shall make no contract, nor
incur any obligation, other than such con-
trtcts and obligations as are hereinafter pro-
vided for and shall be approved by Congress.'*
in the same section it was further provided
that the commissioners should annually sub-
mit to the Secretary of the Treasury, for his
examination and approval and transmission
by him to Congress, a statement ^showinff in
detail the ^ork proposed to be undertaken
by the commissioners during the fiscal year
next ensuing, and the estimated ooet thereof;
alw) the coiit of constructing, repairing and
Btintaining all bridges authorized by law
•cress the Potomac river within the District
of Columbia, and also all otiier streams in
•lid District; the coet of maintaining all
r^bKe inrtifUiUonB ol cMMkjj lefomwtories,
171 U. S.
and prisons belonging or eontrolled wholly or
in part by the District of Columbia, and
which are now by law supported wholly or
in port by the United States or District o(
Columbia ; and also the expenses of the Wash-
ington aqueduct and its appurtenances; ani
also an itemized ftatement and estimate oi
the amount necessary to defray the expenses
of the government oc the District of Columbia
for the next fiscal year." Of the estimates
08 finally Approved by Congress, the act pro-
vided that 50 per cent should be appropriated
for by Congress, and the remaining 50 per
cent assessed upon the taxable property and
privih ges in the District other than the prop-
erty of the United States and of the District
of Columbia. In the 5th section of the act
provision was made for the lettins by con-
tact, after due advertisement, of aS work of
repair on streets, etc, where the cost would
exceed $1,000, and *it was also in said section[179)
stipulated that "all contracts for the con-
stmction, improvement, alteration, or re-
pairs of the streets, avenues, highways, alleys,
gutters, sewers, and all work of like nature
shall be made and entered into only by and
with the oflicial unanimous consent of the
commissioners of the District, and all con-
tracts shall be copied in a book kept for that
purpose and be signed b^ the said commis-
Moners, and no contract involving an expen-
diture of more than $100 ehall be valid until
recorded and siened as aforesaid."
By S 37 of chap. 62, act of February 21,
1871 (16 Stat at L 427), it was provided as
follows:
"All contracts made by the said board of
public works shall be in writing, and shall be
signed by the parties making the same, and
a copy thereof shall be filed in the ofHce of
the secretary of the District, and said board
of public works shall have no power to make
conti-acts to bind said District to the payment
of any sums of money except in pursuance of
appropriations made by law, and not until
such appropriations shall have been made."
This section is deemed to be applicable to
the present commissioners. Comp. Stat D.
C. SS 30, 31, pp. 201, 202. 80, also, by S 15
of the aot of 1871 (16 SUt at L. 423, chapw
62), it was provided that the legislative as-
sembly should not "authorize the payment of
any claim or part thereof, hereafter created
against the District under any contract or
agreement made, without express authority
of law, and all such unauthorized affreementa
or contracts shall be null and void."
Section 13 of the act of June 1, 1878, em-
bodies the 2d eection of the joint resolution
approved March 14, 1876 (19 Stat at L. 211,
$2), which made it a misdemeanor for any
officer or person to increase or aid or abet in
increaaing <tiie total indebtedness of the Dis-
trict
Under the statutes of 1874 and 1878, abova
referred to, it has been held that the District
of Columbia still continued to be a municipal
corporation, and that it was subject to the
operation of a statute of limitations ( J/e^ro-
politan Railroad Co. y, Diatrioi of Columbia,
132 U. & 1 [33: 231]), and waa also liable for
126
I .
176-i;8
StPREMB Court of the Uhitbd States.
Oct.
■■'-i,
r !
.li! lil
it
C176]*damageB caused by a neglect to repair the
streets within the District {District of Col-
wmhia ▼. Woodbury, 136 U. 8. 450 [34:472] ) .
JBut the mere fact that the District is a mu-
nicipal corporation is not decisive of the ques-
tion whether or not the commissioners of the
District had power to make a contract to jNib-
mit to an award, for, as we have seen, it is
not the mere existence oi municipal corporate
being from whidi the power to make a sub-
mission to arbitration la deduced, but that
the municipal corporation by which such an
agreement is entered into has power to con-
tract, to settle and adjust debts; in other
words, all the general attributes which nor-
mally attach to and result from municipal
corporate existence. Recurring to the stat
utes relating to the commissioners ol the
Dktriot of Columbia, it is dear from thei
face l^at these officers are wvtbout general
power to contract debts, or to adjiist and pay
the same; that, on the contrary, the statutes
expressly deprive them ot such power, and
limit the scope of their authority to the mere
execution of contracts previously sanctioned
by Congress or which they are authorized to
make by express statutory authority. The
necessary operation of these provisions of the
statutes is to cause the District commissioners
to be merely administrative officers with min-
isterial powers only. The sum of the munici-
pal powers of the District of Columbia are
neither vested in nor exercised by the District
commissioners. They are, on the contrary,
vested in the Congress of the ('nited States, ;
acting pro hoc vice as the leg[islative body of I
the District, and the commissioners of thej
District discharge the functions of adminis-
trativB officials.
There is no authority for holding that a
mere administrative officer of a municipal cor-
poration, simply because of the abe^ice of a
I afaatutory inhibition, has the power, without
the consent of the corporation speaking
through Ha municipal legislative lx>dy, to
bind the corporation by a conunon-law sub-
mission. And this being true, with how much
leas reason can it be contended that the ad-
ministrative officers of the District have such
power without the consent of Congress, when
the acts defining the powers of the commis
eioners, by clear and necessary implication,
contain aa express prohibition to the con-
trary?
[177] *^or is it in reason sound to say that be-
cause the District commissioners have the
power to sue and be sue-1, they have therefore
the authority to enter into a contract to sub-
mit a claim preferred against the District to
arbitration, and thus to oust the courts of
jurisdiction, when no authority is conferred
upon the commissioners to contract to pay
A daim of the character embraced in the artn-
tration, and no appropriation had been made
by Congress for Uie payment of any such
ciaim. It cannot be said that because Con-
gress had appropriated for the improvement
ol streets, and therefore authorized a con-
tract for such improvement to the extent of
the appropriation, tAiat it had also authorized
and appropriated for a daim in damages
asserted to have arisen frcmi the fact that work
had tMen stopped because the appropriatioa
made by Congress had been exhiiusted. The
aj^nopnation of money to improve streets
was in no sense the appropriation of money
to pay a daim for unliquidated damages aris-
ing, not for work and labor performed and
materials furnished, but from the refusal to
permit the performance of work and labor
and the furnishing of materials.
Aside from the proliibition imposed om the
commissioners of the District by the acts of
Congress against entering into contracts for
the payment of money for any daim not
specifically appropriated for, an agreement to
submit the claim in question to the arintra-
ment of a single individual was, if valid, a
contract binding the District to pay any sua
of money which the arbitrator might award.
It cannot be doubte.! .that if the District
commissioners themsdves had seen fit to pass
a resolution reciting that the appropriatioa
by Congress for the improvement of the
streets had been exhausted, and that a given
sum of money was set aside to pay a elaia
for damages preferred against the District
for having contracted when there was no ap-
propriation, such action would have been, on-
der the statutes, ultra vires. But if the ex-
press action of the oonmiissiorers to this end
would have been void, how can it be con-
tended that by indirection, that is, by enter-
ing into sn agreement to submit to an award,
the commissioners had the power to ddegatc
to a third person an authority which *theT[17l
themsdves did not possess! Whilst the fun-
damental want of power in the District coa-
missioners to agree to a common -law sub-
mission is decisive, there is another view
which is equally so. By the express terms
of the statute the commissioners are forbid-
den to enter into any contract binding the
District for the payment of any sum of money
in excess of $1(X), unless the same is redured
to writing and is recorded in a book to be
kept for Uiat purpose, and signed by all the
Commissioners, the statute dedarin^, in ex-
press terms, that no contract shall be valid
unless recorded as afoTcsaid. This mandatory
provision of the statute dearly makes the
form in which a contract is embodied of the
essence of the contract In other words, by
virtue of the restrictions and inhibitions oif
the statute a contract calling for an expen-
diture in excess of $100 cannot take efiect
unless made in the form stated. The form,
therefore, becomes a matter of fundamental
right, and illustrates the application of the
maxim Forma dat esse ret. That the rocrs
statement of the appointment of a referee on
the minutes without the signature of any of
the commissioners did not comply with the
requirements referred to, is too clear for dis-
cussion. The attempt to give eflfect to such
entry as a contract without regard to the re-
quirements of the law illustrates the wi»do«
of the statute and the evil of disregarding it»
for on the trial two of the three commiamm-
ers testified, one on behalf of the pUiata€
and the other on behalf of the detendaaft*
and swore to directly oppoaito views as la
171 V.IL
um.
Vuux^Q V. Amt.
178-181
i^tther «r aot there had heen a common-law
•ahmiflsioB by the Commissioners.
We have considered what has been referred
to bj counsel as the order of the commission-
«iy according to its terme, which embraced
only the matters contained in the action then
pending, and have not regarded the parol
evidence which sought to vary and contra-
dict the writing by establiafhing that it was
intended thereby to embrace a claim which
had not been asserted in the action. The
views we have advanced being decisive
against the legality of the alleged award, it
follows that the judgment in favor of the ad-
minislratrix based thereon must be reversed.
As, however, the con^lidation of the action
ITSfupon the award with the original action for
damegee for breach of the contract for the
resurfacing, and the trial of such consoli-
dated cause, proceeded upon the hypothesis
that a valid agreement to arbitrate had been
entered into, Uie ends of justice will be sub-
served by also reversing the judgment in
hkvor of the District entered in the original
action. It is therefore ordered that the
fudgments he reversed, and tlie cases remand-
ed, with directionit to dismiss the action No.
S4,564 founded upon the alleged award, and
to grant a new iiial in action No. 24,279.
ADELIA YOUNG et al, Appta.,
JENNIE AMY.
(See 8. C. Reporter's ed. 179-187.)
Appeal from territorial court — jurisdiction
of this court,
1 Oo appeal from the supreme court of a terrl*
tC'r> this court Is without power to re-ezamiae
the facts, and can oalj determine tirhether
the court below erred In the conclusions of
law deduced hj It from the facts bj it foimd,
and review errors In admitting or rejecting
evideace. dulj excepted to.
1 Alleged errors In the admission or rejection
of evidence cannot be passed upon bj this
court on appeal from a terrltortil court,
where thla cannot be done without exaintn-
toff the weight of the evidence and dlaregard-
*ag the facts as found.
[No. 242.]
Submitted AprU 27, 1898. Decided Matf SI,
1898.
APPEAL from a Judgment of the Supreme
Court of the Territory of Utah reversing the
Norid — As to what questions tfie United
8tMte$ Supreme Court wiU review on writ of
trror; kUi of e9ee»tions,'-u%e note to Parks v.
tiimer. 13 : 883.
is effvKif eueee udmission of iUegal evidence
net, of iteeif, ground of reversal or hUl of em-
^Nea,— see note to Field v. United States,
9:94.
As to review ty Vn^ed Btatee Supreme Court
•f territorial decisions; emtent and manner of;
^tiuetion between an appeal and a writ of er-
v^^r-eee note to Mlntia' Bank T. Iowa. 18 : 867.
171 U. S.
decree of the District Court of the Third J«-
diciaJ District of that Territory which
affirmed the decree of the Probate Court of
Summit County, Territory of Utah, in favor
of Adelia Young et al,, claimants to the es-
tate of Oscar A. Amy, decease!.. Affirmed.
See same case below, 12 Utah, 278.
Mr. lie Grand Youns for appellants.
Mefsrs. Charles S. Varian, W. EL
Dickson, and S, P. Aiinstrong for appellee.
Mr. Jusrtice WUte delivered the opinion
of the court:
By § 17 of the act of Congress providing for
the admission of Utah iuto the Union (28
Stat, at L. 107, chap. 138) *Dower was con-[i80]
ferred upon the convention called for the pur-
pose of framing a Constitution for the con-
templated state, to provide for a transfer of
causes which might be pendizig in the ter-
ritorial courts, at the time of the
admission of Utah into the Union,
to the oourte of the state which were
to be established. The staitute moreover pro-
vided thatt ''from all judgments and decreet
of the supreme court of the territory men-
tioned in this act, in any case arising vrithin
the Mmdta of the proposed ata/te prior to ad-
mission, the parties to such judgment shall
have the same right to prosecute appeals and
writs of error to the Supreme Court of the
United States as they shall have had by law
prior to the admission of said cftate into the
Union."
This cause oomes here for review in virtue
of the foregoing provisions of law. It
originated in the probaite court of Summit
county, Utah territory, and involved a dis-
Sute over the distribution of the estate of
scar A. Amy, who died intestate in the
county of Summit, in Utah territory, on the
26th day of May, 1891. There were three
classes of claimants U> the estate. First,
AdelJa Young, Cedina C. Young, and DeiActe
Mastov, who were maternal aunts of the dece-
dent, they being the appellants on this record.
Second, Koyal D. Amy, Francis R. Jackson,
and others, half-blood brothers and sisters of
the deceased. Third, Jennie Amy, who is the
appellee claiming to be the wife of the
deceased. Each of these different classes of
claimants asserted that they were solely en-
titled to take distribution of the estate to the
entire exclusion of the others. In the pro-
bate court a decree was rendered in favor of
the first-mentioned persons, the maternal
aunts. From this decree an a^eal was taken
to the distriot court of the third iudiciid dis-
trict of the territory of Utah, where after a
trial de tiovo the decree of the probate court
was affirmed. From this decree further ap-
peal was prosecuted to the supreme court of
the territory, and that court reversed the de-
cree of the distnct court, rejected tiie claims
of those firstly and secondly mentioned; that
is, the maternal aunts and the brothers and
sisters of the half blood, the court deciding
that the wife of. the deceased, Jennie Amy,
was solely entitled to the entire *estate. The[181|
decree of the supreme court of the territory
127
161-183
SuPBKMB Court of thb Unttid States.
Oct. Tksm,
was entered on December 21, 1895. 12 Ulaih,
278. On the same day the maternal
auntR, who were embraced in the first class,
applied for and were allowed an appeal to this
ooiirt, and on December 21, 1896, a bood for
^OBtB was filed in the supreme court of the
terrHory, and was approved by the chief
justice thereof. The citation on appeal,
however, was not issued until about six
months thereafiter, September 21, 1896. As,
in the meanwhile, the state of Utah had been
admitted into the Union this citation was
approved by the chief justice of the state of
Imh, and on the same day findings of fact
and conclusions of law were made by the su-
preme court. These findings, as the record
certifies, were prepared by the late chief
justice of the territorial court, and were
adopted by the supreme court of the state of
Utan as rts own. From the findings thus
made we have ascertained the facts above
stated, and the findings moreover show that
the controversy involved two issues. First,
whert^her tiie brothers and sisters of the hall
blood were entitled to a distribution of the
property left by the deceased in preference to
the maternal aunts; and, second, wh€(tber
Jennie Amy, the appellee, was the wife of the
decedent, it being conceded that if she was hia
wife under the laws of Utah, she inherited the
property left for distribution to the ex-
elusion of his malemal aunts. The first ques-
tion, that is, the right to distribution as-
serted in favor of the brothers and sisters of
the half blood, may be at unce dismissed from
▼lew, aa the decree of ttie supreme court re-
jected their claim, and they have not ap-
pealed. The second question, that is, whether
Jemiie Amy, the appellee, was the wife of the
deceased, depended upon the validity of a
judgment of divorce against a former hus-
band which had been rendered in her favor in
1879 in the probate court of Washington
county, Utah, the marriage having been con-
tracted in Utaii and the ground for the di-
vorce being the abandonment of the wife by
the husband. After this judgment of
divorce Mrs. Amy, on the 4th of August,
1886, was married to Oscar A. Amy, the de-
ceased. The controversy, then, between the
parties now before up turned upon a claim
fl821i^^^'^<^ by the maternal aunts, *that
the judgment of divorce rendered between
Mrs. Amy and her former husband was void;
that she hence did not enter in a lawful mar-
riage with the deceased, ami was not entitled,
therefore, as his wife to his estate.
The record contains, as we have stated,
findings of fact made by the supreme court
of idle eta/te and the conclusions of law, which
the supreme court held to be decisive of the
inues which the case involved, and to which
we shall have occasion hereafter to refer.
The findings of^fact and conclusions of law
are immediately followed in the record by
this recital: '^he foregoing is a statement
of the fa^ts found upon the evidence in the
ease, and the following arc the rulings of the
oourt on the admission and rejection of the
ovidenoe, which were duly excepted to by
oounsel for Adelia Young, Cedina C Toung,
128
and Delecto Maston." This is followed bv t
note of evidence, showing what took plaet
during the trial in the d&trict court, which
is also supplemented by the oral and doea-
mentary evidence offered in the trial of the
cause. It appears that Mrs. Amy offered the
decree of divorce between herself and ner hus-
band and the complaint filed in the suit in
which the judgment of divorce was ei^red.
This was objected to on the ground thai the
documents were irrelevant, inasmuch as with-
out the summons issued in the cause thej
proved nothing. The counsel tendering the
proof thereupon declared that although the
decree on its face recited the fact that the
summons had been regularly issued ami
served, it was absent from the record, and k«
proposed by further evidence to show that the
summons was regularly issued and due notice
thereof had been given to the defendant u
the law required.
The court received the evidence subject to
the objection. Thac is to say, it declared
that it would pass on the objection when all
the evidence in the case had been offered,
thus treating the objection as in a measure
going to the effect. Mrs. Amy and her
former husband, the defendant in the divorce
proceedings, were then called, and testimooy
was given by both tending to show that the
summons had Leen issued in conformity to
law and the defendant in the divorce suit
*was personally cognizant of tlie suit, as H«(183
received and ha'l in his possession the copies
of the newspaper containing the published
summons, and that due service thereof, io
the manner required by law, had bera made.
All this testimony was objected to, and the
court likewise received it subject to objec-
tion, no exception being taken to such ac-
tion. In the course of the testimony of them
witnesses various exhibits were offered tend-
ing to show the preparation of the summoas
in compliance with l.<\w, the publication in
the newspaper of the summons in conformity
to legal requirements, its service on the de-
fendant, and that he bad both legal and ac-
tual notice of the suit, all of which wu ob-
jected to, and this, like the other objectioai,
was reserved to be considered when the eri-
dence was all in. The counsel of Royal D.
Amy and others, the sisters and brothen of
the half blood, offerci in evidence what thev
designated as the iudgnient roll of the di-
vorce proceeding. This was also objected to
by the counsel for the maternal aunts on the
ground that the record was not complete and
did not show c>mpli<ince with the l^al ^^
quisites, and was objected to by Mrs. Amy
because it contained matters asserted not to
be properly a p^rt of the judgment roU, and
which were therefore not admissibla The
court also reserved the objection to this evi-
dence.
At the conclusion of the trial the court n»-
tained all the objections to the evidence and
the testimony, and decided the case a^inst
Mrs. Amy and in favor of the maternal auata
To the rulings of the court rejecting the doe-
umentary and oral evidence, Mra Amy u*
cepted, and upon the record as thus made tht
171 V. t.
1807
YouKO Y. Amy.
18a-18»
..■«*
to the supreme court of tha
territoiy. In that court, as we have seen,
tbt letrai of the trial court was reversed and
a decree rendered in favor of Mrs. Amy.
The assignments of error are twenty-four
)D number, and th-^ argument by which their
correctness is sought to be maintained has
taken a much wider range than the condi-
tioo of the record justifies. It is settled that
on error or appeal to the supreme court of a
tenitory this court is without power to re-
examine the facts, and is confined to deter-
184 ^lining* whether the court below erred In the
i-onelusions of law deduced by it from the
^ts by it found, and to reviewing errors
conunitted as to the admission or rejection of
testimony when the action of the court in
this regard has been duly excepted to, and
the right to attack the same preserved on the
recor£ HanHson v. Ferea, 168 U. S. 311
[42: 478], and authorities there cited.
The findings of fact and conclusions of law
of the supreme court are as follows:
'Seventh. The court further finds that
the said Jennie Amy was married to one
Elliot Butterworth in 1875.
"That on the third day of September, 1879,
the probate court of Washington county
msde and entered a decree of divorce, dis-
Bolving the bonds of matrimony theretofore
existing between the said Jennie Amy and
the ssM Elliot Butterworth, and absolutely
releasing the said Jennie Amy and the said
illiot Butterworth from all the obligations of
•aid marriage; that the said probate court so
granting said decree of divorce was a court
fli competent jurisdiction and had jurisdic-
tion of the subject-matter of said divorce ac-
tion and of both the parties thereto.
"That the said defendant therein, Elliot
Butterworth, had Imowledge at the time of
the said divorce proceedings and Wad duly
ierred with process in said action.
"That the said EUiot Butterworth married
a second wife on the 11th day of October,
1880, being the year after said decree of di-
vorce waa rendered; that his second wife is
•till living, and she and the said Elliot But-
terworth are stiU husband and wife; that as
the issue of said second marriage the said
Bliot Butterworth and his present wife have
•even children, ranging from two years to fif-
teen years old.
That afterwards, to wit, on April 4, 1886,
the said Jennie Amy, the claimant in this
proceeding to the estate of the said Oscar A.
Amy, deceased, was duly and lawfuny mar-
ried to the said Oscar A. Amv, and continued
to be and was his lawful wife at the time of
his death.'*
From these findings it deduced the follow-
ing legal conclusion:
*W] •"That the said Jennie Amy is now the
vidow of said Oscar A. Amy, deceased, and as
eueh widow she is the successor to the whole
of his estate, consisting of the property here-
iaabove described."
We will consider the assignments in their
logical order. The first to the eleventh, in-
clusive, and the nineteenth complain of er-
len which it is alleged the supreme court
171 V. 8. U. S., Book 4a
committed in admitting certain evidence.
But all the evidence objected to was received
by the trial court subject to the objection,
and the question of it^ admissibility turned
on that of its irrelevancy or the quantum of
proof which it would establish if considered.
The ultimate action of the trial court in re-
jecting the evidence which it had received,
subject to objection, amountetl, in effect, to
a decision that the evidence did not establish
that the judgment in the divorce procecdir^s
had been rendered after due publication of
summons in accordance with thi laws of the
territory, and therefore the evidence was in-
su^cient. But the express finding from all
the evidence by the supreme court of the
state is that the summons in the divorce
suit was duly issued and published according
to law, and that the defendant had, besides,
pei-sonal notice of the pendency of the suit.
This conclusion, being binding on us, estab-
lishes that the evidence was relevant and
ma;terial, and tliut there was lo ground to
reject it. We cannot, therefore, say that the
evidence should have been disregarded be-
cause it did not establish the facts, which we
arc bound to conclude it did fiilly prove.
If specific findings of each item of evidence
and the conclusions deduced from the separ-
ate items had been made, as in Cheely v.
Clayton, 110 U. S. 702 [28:298], the cast
would present a different aspect. Consider-
ing, however, the state of the record and the
nature of the findings of fact certilied, we
cannot determine the correctness of the ob-
jections to the evidence without going into
its weight and making independent conclu-
sions of fact; in other words, without disre-
garding the findings made by the court be-
low, by which we are concluded. The same
reasoning is applicable to the other assign-
ments of error. Thus, the thirteenth, four-
teenth, seventcenta, and eighteenth assert
that the court erred in holding,*as to the bur-[180]
den of proof, that it erroneously treated the
denial of the validity of the judgment of di-
vorce by the maternal aunts as a collateral
attack by them on such judgment. But
there are no findings which raise these ques-
tions. On the contrary, the facts found ren-
der them wholly immaterial, for it is obvious
that if the evidence affirmatively established,
as the findings declare, that the judgment of
divorce waa rendered after due summons, and
that the defendant had personal notice of
the proceedings, the questions of burden of
proof and collateral attack are wholly irrele-
vant. Again, the twenty-first and twenty-
second assignments of error complain that the
court erred in holding that it was not neces-
sary that there should be an order of the
court directing the publication of the sum-
mons in the divorce proceeding, and that the
court erred in holding; that the only papers
necessary in proof ot publication were the
complaint, summons, and affidavit of the
printer and judgment. But there are no
findings which raise these questions. On the
contrary, the facts found are that the sum-
mons were duly published, and that the de-
fendant had besides personal notice. To
I 120
191-194
SUPBRMB OOUBT OF THS UhITBD STATML
Oor.
diligence has been exercised to make the ship
■ea worthy, and a common dan|[er arises upon
the voyage by 'fault or error in the naviga-
tion or management of the ship/ the third
section of that act declares that 'neither the
vessel nor her owner, agent, or charterer
shall become or be held responsible for dam-
age or loss resulting therefrom;' the previous
liabilitv of the shipowner to the carso owner
for faults of navigation is thus abolished in
all cases coining within the act. In such
cases faults in the navigation or management
of the ship are no longer, by construction of
[192]*law, faults of the owner, as heretofore; and
the ship and her owner are now no more liable
to the cargo owner for his damages therefrom
than the latter is liable to the shipowner for
the resulting damages to the ship. Botii are
alike strangers to the fault, and equally free
from all responsibility for it; and hence ail
expenditures or losses voluntarily incurred
for the common rescue are no longer made
in the discharge of an individual legal obli-
gation, or in diminution of a fixed liability
resting upon one of the parties only, but are
truly a sacrifice voluntarily incurred, and
for the common benefit, as much and as truly
80 when made by the shipowner as when made
by the cargo owner alone. On principle,
therefore, in such cases, the one is as much
entitled to a general average contribution for
his sacrifice as the other. . . . The appli-
cation of this new relation of nonresponsibil-
ity under the Barter act to cases of general
average does not, in fact, make the least
change in the principles of general average
contnbution. The rule remains as before,
that he by whose fault, actual or construct-
ive, tibe ship and cargo have been brought
into danger cannot recover an average contri-
bution for his expenses in extricating them.
And 80 the counter rule remains as before,
that the interest which, being without fault,
makes sacrifices for the common rescue, is en-
titled to an average contribution from what
is thereby saved. Prior to the Harter act the
shipowner, under our law, was constructively
in fault for bad navigation and hence fell
within the former rule. The Harter act, by
abolishing his constructive fault and freeing
him from all responsibility, withdraws him
from the former rule and entitles him to con-
tribution under the latter." 82 Fed. Rep.
472, 474r^77.
We are unable to accept tMs view of the
operation of the act of Congress.
Plainly the main purposes of the act were
to relieve the shipowner from liability for
latent defects, not discoverable by tue utmost
care and diligence, and, in event that he has
exercised due diligence to make his vessel sea-
worthy, to exempt him and the ship from
responsibility for damage or loss resulting
from faults or errors in navigation or in the
[1931* management of the vessel. But can we go
further, and say that it was the intention of
the act to allow the owner to share in the
benefits of a general average contribution
to meet losses occ^tsioned by faults in the nav-
igation and management of the ship?
Doubtless, as the law stood before the pas-
132
sage of the act, the owner could not eontraefc
against his liability and that of his Tesssl for
loss occasioned by negligence or fault in th*
officers and crew, because such a contract wa*
held by the Federal courts to be contrary to
public policy, and, in this particular, theown-
ers of American vessds were at a disadvan-
tage as compared with the owners of
foreign vessels, who can contract with
shippers against any liability for negligenoo
or fault on the part of the officers and crew.
This inequalitv, of course^ operated unfavor-
ably on the American shipowner, and Con-
gress thought fit to remove the disadvantage,
not by declariug that it should be competent
for the owners of vessels to exempt thenuelTee
from liability for the faults of the master and
orew by stipulations to that effect contained
in bills of lading, but by enacting that, if
the owners exercised due diligence St making
their ships seaworthy and in duly manning
and equipping them, there should be no lia-
bility tor the navigation and management of
the ships, however faulty.
Although the foundation of the rule that
forbade shipowners to contract for exemp-
tion from liability for negligence in their
agents and employees was in the decisions of
the courts that such contracts were against
public policy, it was nevertheless competent
for Congress to make a change in the stand-
ard of duty, and it is plainly the duty of the
courts to conform in their decisions to the
policy 80 declared.
But we think that for the courts to de-
clare, as a consequence of this legislation, that
the shipowner is not only relieved from lia-
bility for the negligence of Ms servants, but
is entitled to share in a general average ren-
dered necessary by that negligence, would be
in the nature of a legislative act. The act in
question does, undoubtedly, modify the pub-
lic policy as previously declared by the
courts, but if Congress had intended to grant
the further privilege now contended for it
* would have expressed such an intention in[
unmistakable terms. It is one thinff to ex-
onerate the ship and its ovmer from liability
for the negligence of those who manage the
vessel; it is anotuer thing to autnorise
the shipowner to do what he could not do be-
fore, namely, share in the general average
occasioned by the mismanagement of the mas-
ter and crew.
What was the reasoning on which the
courts proceeded in holding that it was
against public policy to pemut shipowners to
contract for exemption mm liability for the
negligence of their agents? Was it not that
such a state of the law would impel the ship-
owners to exercise care in the selection of
those for whose conduct they were to be re-
sponsible? This being so, can It be reasona-
bly inferred that Congress intended, when re-
lieving shipowners from liability for the mis-
conduct of their agents, to confer upon thena
the further right to participate in a general
average contribution, and tnat to the detri-
ment of the shippers? Such an interpret»>
tion of the statute would tend to relieve ddp-
ownen^ to some extent at lisel^ from care m
171 IF. S.
1897.
Flint, Eddy, & Co. t. Chbistall.
188-191
Hho has ezeroned due diligence to make his
Tend in all respects seaworthy, properly
flnimed, equipped, and supplied, under the
provisions oi S 3 of the act of February 13,
1893, a right to general average contribution
891for ^sacrifices made and suffered by him sub-
sequent to the stranding, in successful efforts
to save vessel, freight, and cai^oT
M€B»rt. Wilhelmiui M^derse and
James C. Carter for appellants.
Mr, Harrinfl^n Putiuun for appellees.
Mr. Justice Shiraa delivered the opinion of
tiie coort:
The answer we shall give to the question
eertified by the circuit court of appeals must
be determined by the meaning and effect
which should be given to the act of February
13, 1803, known as the Barter act. Admitted-
ly, upon the facts conceded to exist in the
piesent case, the owner of the ship has no
right to a general average contribution from
the cargo, unless such right arises from the
^>eration of that act.
We shall first inquire why H is that, apart
from the act in question, the owner of the
•hip is not entitled to a general average con-
tribntion where the loss was occasioned by
the £iiu>t of the master or crew, and we find
the rule is founded on the principle ttiat no
one can make a claim for general average
ecHitribution, if the danger, to avert which
the sacrifice was made, has arisen from the
Italt of the claimant or of someone for whose
acts the claimant has made himself, or is
made by law, responsible to the cocontribu-
tora Ws are not oalled upon either to trace
the history of the rule, or to justify it as
hssed on equitable principles, as it is conced-
ed on both aides that such is the ordinary rule
In the absence of statute or contract to modi-
Nor is it necessary to inquire infto the ori-
en or nature of the la^w of general average.
Thai has been so recently and thoroughly
done in RaUi ▼. Troop, 167 U. S. 38C [39:
742], that it is sufficient to refer to the opin-
ion of Mr. Justice Gray in that case.
Xot only is the shipowner excluded from
I90]eontribution by *way ofgeneralaverairewhen
the Joss arises from the &p's fault, but he is
legally responsible to the owner of the cargo
for kiss and damages so occasioned. And it
li the wdl-settled law of this court that a
eommon carrier by sea cannot, by any stipu-
lation with a shipper of goods, exempt himself
Irom responsibility for loss or damage arising
from the negligence of the officers or crew;
that it is against the policy of the law to al-
low stipulations that will relieve a carrier
horn liability for losses caused by the negli-
gence of hiniself or his servants. Liverpool
^ 0. W. Steam Co. ▼. Phettia It%$, Co. 129 U.
8. 397 [32: 788].
Farther, ft has frequenftly been decided by
ttus eonrt that in eyery contract for the car-
^jy of ^oods by sea, unless otherwtee ex-
P^cHly itipulated, there is a warranty on the
yt of tM shipowner that the ship is sea-
^"i>rihy at the time of beginning her voyage,
t7l U. ft.
and not merely that he does not know her to
be unseawoi*thy at the time of beginning her
voyage, or that he has used his best efforts to
make her seaworthy; and that his undertak-
ing is not discharged because the want of fit-
ness is the result of latent defects. Richelieu
d 0. Nav. Co. v. Boston Marine Ins. Co. 138
U. S. 408 [34: 398] ; The Edioin I. Mo^yison,
153 U. S. 199 [38 : 688] ; The Caledonia, 167
U. S. 124 [39: 644].
In this condition of the law i^e so-called
Harter act was approved on February IS,
1893 (27 Stat, e/t L. chap. 105), wherein, after
providing in the Ist and 2d secftions that it
shall not be lawful for any owner, agent, or
master of any vessel transporting merchan-
dise or property from or between ports of
the United States and foreign ports, to
exempt himself from liability for loss or dam-
age arising from negligence in the loading or
proper delivery of such property, or to imett
m any bill of lading any covenant or agree-
ment whereby the ooli^tions of the owner to
exercise due diligence in manning and equip-
ping the vessel, and to make su<m vessel sea-
worthy and capable of i>erformin|f her intend-
ed voyage should be in anywise lessened,
weakened or avoided, it was, in the 3d see*
tion enacted as follows:
"That if the owner of any vessel transport-
ing merchandise or property to or from any
port in the United States of America shall ex-
ercise due diligence to make the said vessel
•in all respects seaworthy and prrperly[l91)
manned, equipped, and supplied, neither the
vessel, her owner or owners, agents, or char-
terers, shall become or be held responsible for
damage or loss resulting from faults or errors
in navigation or in the management of said
vessel, nor shall the vessel, her owner or own-
ers, charterers, agent or master, be held Uable
for losses arising from the danger of the sea
or other navigable waters, acto of Qod, or
public enemies, or the inherent defect, qual-
ity, or vice of the thing carried, or from in-
sufficiency of package, or seizure under legal
process, or for loss resulting from any act or
omission of the shipper or owner of the
goods, his agent or representative, or from
saving or oittempting to tutve life or property
at sea, or from any deviation in rendering
such service."
The argument on behalf of the shipowner
is clearly expressed by the learned judge of
the district court in the following terms:
"I'here is no doubt, I think, that the liabil-
ity to indemnify the cargo owner is the sole
ground of the exclusion of the shipowner's
claim to general average compensation for
his expenses in rescuing the adventure from
a peril caused by bad navigation. It there-
fore seems necessarily to follow that in cases
where all such liability is abolished by law,
as it is under the drcumstances of this case
by the Harter act, no such exclusion can be
justified; and that where no such liability
exists on the part of the ship or her owner,
his right to a general avera!^ contribution
from Sie cargo arises necessanly by the same
principles of equitable right that apply in or-
dinary cases <n general average. Where due
131
I *
H 1
'if'
197'4m
SUP&KMR COUBT OF THB UhITBD STATEB.
Oct. Tksi^
m
.,1'
[■t
u
1 '
w
V
&
h '1
\
11
tions are of no ftvail, it is equally well settled
that by the law of England, and of some, if
not all, of the maritime nations of continent-
al Europe, they are held to be valid and
binding.
In Sie case of The Oarrcn Parh, L. R.
16 Prob. Div. 403, a charter party contained
a stipulation that the shipowners were not to
be responsible "for any act, negligence, or
default whatsoever of their servants during
the said voyage." The cargo having been
damaged by water pouring through a valve,
negligently left open by one of the engineers,
the owners brought suit against the vessel,
and the owners of the ship oounterdaimed
for a general average contribution. It was
held by the admiralty division that the ship
was exonerated in the suit against her by the
owners of the cargo, and was also entitied to
her contribution. 1^ delivering the opinion,
Sir James Hannen, President, observed:
'^he claim for contribution as general aver-
age cannot be maintained where it arises out
of any negligence for which the shipowner
is responsible ; but negligence for which he is
not responsible k as foreign to him as to the
person who haa suffered by it. The loss
would not have fallen upon the shipowner,
and the expenditure of sacrifice made by him
is not made to avert loss from himself alone,
but from the cargo owner." The case of
Strang ▼. Scott, L. R. 14 Ap|p. Cas. 601, was
cited to the proposition that the conditions
ordinarily existing between parties standing
in the relation of ship and cargo owners may
be varied by special contract.
[108] *It is true that the case of The Oarron Park
was not one arising upon a statute but upon a
stipulation in a charter party; but I think it
can make no possible difference in the legal
aspect of the case whetner the exemption be
conceded by contract or granted by statute.
The case of The Ettriok, L. R. 6 Prob Div.
127, is not in point. In that case the owner
of a ship, sunk by a collision in the Thames,
admitted the collision to be his fault, and
Said into court £8 a ton in a suit to his lia-
ility. The ship having been subsequently
raised at the expense of the owner, he sought
to recover in general average against the car-
go its contributory portion of such expenses.
It was held that this could not be done, the
court basing its opinion upon the language of
the merchants' shipping act, { 64, which mere-
ly declared that the owners of the ship should
not be answerable for damages in respect of
losses to ships or goods to a CTeater amount
than £8 per ton of the ship^s tonnage. In
delivering the opinion of the court. Sir
George Jessel observed : "That is merely the
limit of the liability for damages. It does
not in any way alter the property. . . .
Vow, property not being altered, the ground
upon which the shipowner puts his claim is
Ihis: He says that the payment of eight
^unds per ton not only prevents his being
Answerable in damages for any more, but is
equivalent to saying that he shall be in ex-
actly the same position as if no negligence
liad been comn^itted, and nothing had been
done by him or by his agents that would give
134
rise to any liability. But I cannot read tks
act so. All that it says is, that he rnhmU not
be answerable in damages for any greater
amount. It does not make his acts riglit if
they were previously wrongfuL ... It
see:ns to me that he would have no waA
right" (that is, to salvage on the cargo), 'for
the statute does not destroy the effect of all
that had been done, as it simply dimimshes
or limits the liability in damages. If that ii
so, of course that is an end of the case."
In the case of The Carron Park the stipu-
lation exempted the ship from the consequen-
ces of all negligence in her navigation. la
The Ettriok the act simply limited the lia-
bility of *the owner in damages to a certaiifll
sum per ton. llie operation of the mer-
chants' shipping act was evidently intended
to be merely defensive. The Etirick, though
cited by counsel, waa not referred to by the
court in The Carron Park, and was eri-
iently regarded as standing upon a differoit
footing.
The French law in this particular is the
same: The case of Le Normand v. Oompag-
nie Oenerale Tranaatlantique, 1 DallojL Ju-
risprudence G6n6rale, 470, before the Freneh
court of cassation, was an appeal tram the
court of Rouen, which had treated as general
average the expenses of salvage and towage
of the steamer Amerique, after having found
that the abandonment of the ship was im-
putable only to the master and crew, and had
held that a contract exempting the ship from
the consequences of negligence permitted tka
owners of the ship to reoover m>m the own-
ers of the cargo their share in contribntke
of the expenses of salvage. In the opinion of
the court of cassation upon appeal it was
said that in this bill of lading tne defendant
company, the owner of the Amerique, had
formaUy excepted the acts of God, of enemies
pii-ates, lire by land or sea, accidents proceed-
ing from the engine, boilers, steam, aad all
other accidents of the sea caused or not
caused by the negligence, fault, or oror of
the caption, crew, or engineers, of whatetar
nature these accidents were, or whaterer
were their consetiuences. It was further said
that no law forbade the owners of ship* from
stipulating that they would not answer for
the faults of the captain or crew; that soeh
an agreeni»it is no more contrary to public
1>olicy than to fair dealing; that in upholding
this clause in the bill of lading by wnich the
defendant company declined respomdbility
for the faults of the crew, the decree appealed
from violated no law. It was thereby estab-
lished that the ship had been abandoned at
<>ea, after consultation with the crew; that it
had afterwards been picked up by three Sn^
lish vesseie, whidh h<id towed ft to Plymouth
where it was voluntarily stranded, and that
the defendant company had reclaimed it from
the salvors by paying the expenses of salvact
and towage; and thereupon the court hod
that this was a damage voluntarily suffered,
that the expenses were incurred *f or theeom-iiOil
mon safety of the ship and cargo, and with-
out the payment of wnich the salvors would
not have been obliged to deliver over the ini»
171 v. &
I«d7.
i? .UNT, Eddt, & Co. y, Chkistali..
200-20B
aelyand thsftmichexpeiiiMSOonstiiated&cIaiiu
for general average, notwithstanding the
almndonment of the ehip was not attiibuted
to a peril of tlie sea, but to the fault of the
BSfiter and crew. The decree waa affirmed.
The case of Crowley v. Saint Freres, 10
Bevoe Ijvlernatioiiale du Drovt Maritime, 147
aiao came before the French court of cassa-
tion in 1S94. In this case, an English ship,
the Alexander Lawrence, on di voyage from
Calcutta to Boulogne, with a cargo of jute,
took fire through the carelessness of a sailor.
The ship put into Port Louis, an intermedi-
ate port, vrith the cargo still burning, and ex-
tan^niiiOied it, subsequently arriving at her
port of destination. By a clause in the char-
ier party the ship was exonerated from re-
sponsibiiity for negligence. It was held that
the expenses of putting into the port of ref-
uge should be classed as general average, and
not a« particular average, as it had been held
by the court below. The decree of tha^, court
(of Douai) was therefore reversed.
A •saae arising from the same disaster to
Hie Alexander I^wrence, ^>etween the owners
and tlie underwriters (11 Revue Inter-
nationale, 41), subsequently came before the
court of appeals of Orleans, on appeal from
the tribunal of commerce of Boulogne, where
a similar ruling was made, and the expenses
ef putting into port classed as general aver-
age under the stipulation in the charter
Darty, although in tnc absence of such stipu-
lation tiiey would have been chargeable to
the ship.
The same question eame before <the tri-
bnnid i)i commerce of Antwerp, Belgium, in
the case of The Steamer Alacrtty, 11 Revue
Internationale, 123, where the cargo was held
to contribute to t^e expenses of putting into
a port of refuge, in consequence of a colli-
■on due to the fault of the captain, the ship-
ewner being exonerated by his contract from
the consequences of this fault. In this case
the parties had stipulated that general aver-
age expenses shoiild be payable under the
Tork-i^twerp rules, and thait the ship
should not be responsible for the faults of
I01]the captain or crew. It was "held that, by
the Bdgium law, parties might contract with
reference to these rules, which declared the
axpenses of putting into a port of refuge gen-
eral average; that there was no difference be-
tween such expenses when occasioned by an
Inevitable accident or in consequence of the
ftult of the captain; that the parties having
ttipulated tihat l^e ship should be exonerated
from the consequences of such fault, the own-
ers of the car^ were bound for their conlrib-
iitory shares.
Prom the case of The Mary Thnmaa
[1894] P. 108, it would seem that the Dutch
Uw is different; but i b was said by Mr.Justice
Barnes in this case (p. IIG) that if the ques-
tion had arifien in this country (England)
**fche point could hardly have occurred, as it
Itas done, because it has already been decided
by Lord Hannen, in the case of The Carron
Pork, that the cargo owners would be liable
for the contribution in general average under
Wnmstances where the accident had oc-
171 V. S.
cur red through negligence, but where by the
bills of lading the owners of the ship were not
responsible for that negligence."
These are all the cases I have been able to
find directly upon the question under consid-
eration, but there is a class of analogous
cases which, I think, have a strong bearing
in the same direction. It is well known that
by the law of England a ship is not respon-
sible to another for a collision brought about
by the negligence of a compulsory pilot. Of
coiu-se where such ship is solely to blame the
rule is easy of application. No recovery can
be had against her. But where the faults of
the two vessels are mutual, a different ques-
tion arises : and in the case of The Hector, L.
R. 8 Prob. IMv. 218, it wits held that, where a
collision occurred by the mutual fault of two
vessels, and one of such vessels had on board
a compulsory pilot, whose fault contributed
to the accident, the owner of tihat vessel was
entitled to recover a moiety of the damages
sustained by her without any deduction on
account of the damage sustained by the
other; in other words, she was not respon-
sible for any portion of the damage done to
the other vessel, but might recover the half
of (her damages from such other vessd. Said
the master of the rolls, in delivering the opin-
ion:
•«i
With regard to the Augustus, she was[209]
found to blame for the collision, therefore she
is, in the first instance, liable to pay all the
damage which t^e Hector has suffered. With
regard to the Hector, it is found that her
owners are not to blame, but that her navi-
gation was to blame; but that was the fault
of the pilot. The owners are not liable for
this default, therefore they are not liable for
anything to the owners of the Augustus.
What is the result? Ihat the liability of the
owners of the Augustus is declared to have
been proved, but the liability of the owners of
the Hector is dispro\ed, and they are dis-
missed from the suit. Therefore no balance is
to be calculated; the owners of the Hector
are not liable for a single pennyworth of the
damage done to the Augustus. The owners
of the Au«rustus must go against the pilot and
get what they can out of him; but the Hec-
tor is entitled to succeed."
See also Dudman v. Dublin Port and Docke
Board, Ir. Pep. 7 C. L. 518; Spaight v. Ted-
castle, L. R. 6 App. Cas. 217.
It seems to me that the cases above cited
show an almost uniform trend of opinion
against the principle laid down by the court
in this case. I do not contend that the de-
cisions of the English, French, and Belgian
courts should be recognized by us any fur-
ther than their course of reasoning com-
mends itself to our sense of justice; but upon
questions of maritime law, which is but a
branch of international law, I think the opin-
ions of the learned and experienced judges of
these courts are entitled to something more
than respectful consideration. It is for the
interest of merchants and shipowners, whose
relations and dealings are international in
their character, that the same construction
should, so far as possible, be placed upon the
202-204
BUPBEMX COUBT OF THB UniTBD StaTKS.
Oct.
law maritime by the courts of all maritime
nations, and I am compelled to say that I see
BO resAon for creating an exception in this
[tOajWILLIAM WHEELER HUBBELL, Appt,,
V,
UNITED STATES.
(See & a Reporter's ed. 203-210.)
Diamiasal upon the merit8 — estoppel in sub-
sequent action — res judicata,
t. When a case Is dismissed apon an opinion
filed and certain findings of fact, it will be
I presumed to hsTe been dismissed upon tbe
merits and that each dismissal coTsred eyery
question put In issue by the pleadings.
iL The dismissal of a suit for Infrlujcement of
a patent is a complete estoppel In fsTor of
the successful party, In a subsequent action
upon the same state of facts except for a sub-
sequent period of Infringement, even if the
new action Is based on a different theory.
' ft. Neither a motion for a new trial whl<di was
OTerruled In the former case, nor an applica-
tion for an appeal which was ncTer allowed
or perfected, will prevent the Judgment from
being re§ fuOieata,
[No. 198.]
Argued April 13, U, 1898. Decided May Si,
1698.
APPEAL from a judgment of the Court of
Claims dismissing the petition of William
Wheeler Hubbell for judgment against the
United States for compensation for making
and using by the defendant and its officers
and employees, of plaintiff's patented inven-
tion for an improvement in cartridj^
Affirrmtd.
See same case below, 20 Ct CL 354.
Statement by Mr. Justice Browns
This was an appeal from a judgment of the
couit of claims dismissing the petition of
William Wheeler Hubbell, who, as patentee
of an ''improvement in cartridges," claimed
that the United btates had manufactured and
used cartridges covered by his patent under
an implied contract to pay a reasonable roy-
alty therefor.
'ine petition contained, amongst others,
the following allegations: That ''your pe-
titioner is the first and original inventor of
an improvement in cartridges, for which let-
ters patent of the United States were granted
to him in duo form of law, and, according to
law, dated and issued the 18th day of Febru-
ary, A. D. 1879, vesting in him the exclusive
right to make, vend, and use the same for
seventeen years from the date thereof.
"Your petitioner has pending a suit for com-
KoL
pensation up to March 31, 1S83,
13733, in the court of claims, and has
sued any officer nor brought an^ other
than that before this present petitkm.
"Your petitioner prays for an aoootmt
the full and entire number of the said ea
ridges made or used b^ the defendant, ita
officers or employees in its service, or for "*"
tribution to the states, since the
31, 18S3, to be separately stated when
dered, and for leave to make the
of this petition when precisely
by amendment.
*"Your petiitaoner further claims a jiiatoo«-[S04
pensation for the making or use by the de-
fendant, its authorized officers or cmployeea,
for its service, of his said patented inventSoB
of cartridge, to wit: he claims the sum of one
hundred and ten thousand dollars due to htm
on this behalf by the United States from tka
31st March, 1883, up to Mav 31, 1888.
"And he prays for judgment for all
making or use of his said patented invention
from the said 31st March, 1883, to said Slat
May, 1888, by the defendant, its authoriaed
officers or employees in its service, or on its
behalf, in pursuance of law, in the amn of
one hundred and ten thousand dollars, with
leave to amend his petition in this behalf
when the precise numbers have been duly
reported by the proper departments d ike
United SUtes."
Upon the trial of this ease the eonrt of
claims made, amongst others, the lollowiaft
finding:
"The facts in this case are the faetsalrea^y
found in ease No. 13793, between the same
parties as to the same subject-matter, exeepi
as to the time since the beginning of the other
action, during which time, to wit, from the
beginning of the other action to the begin-
ning of this action, the government mean-
factured cartridges of the same form and kind
as those described in these findini^i, Imown
as the 'reloadine* cartridge, in which said earn
No. 13793 the following proceedings were had
and the foUoviing fa^ were found, which
facts are now found herein and are hmto an-
nexed, as follows, to and including finding tkT
The 9th finding Is as follows:
'*The following are, in substance, the pro-
ceedings had in case No. 13793 between the
^me parties:
"April 19, 1883. Petition filed.
"May 18, 1883. Amendment to petitioa
filed bv allowance of judge at chacibefs.
"June 4, 1883. Traverse filed.
"July 25, 1883. Amendment to petitioa
ffied and allowed.
**October 2, 1884. Amendment to petitioa
filed and allowed.
"December 15, 1884. Amendment to peti-
tion allowed.
"January 10, 1886. Qaimant's reqnsiti
for facts and brief filed*
NoTB. — A$ to contequence of a nonsuit or i As to damages for infringemenS of patmi;
— ^-.-. ^M 1-^_* ^« -.^ TT irehle damages, — see note to Hogg v. ExDersoa.
18 : 824.
As to %ohat fHestions are eonolmdsd kg re»
fudioata, — se^ note to Wlese v. San Fraadsw
Musical Fond Soc (Cal.) T U &. A. 577.
171 V.M.
dismissal of complaint, — see note to Homer v.
Brown, 14 : 970.
As to ichat constitutes infringement of pat-
ent; similaritv of devices; designs; comtfina.
tions: machines; ronsti^uction of patent,-
note to Royer v. Coape, 36 : i.073.
136
lar
HUBBBLL V. UHITED STATBB.
2U5-20T
\] «"ApriI 9, 1885. Additional brief lor
claimAiit llled.
"Apnl 13, 1885. Defendant's requests for
bets and brief filed.
"April 16, 1885. Argued and submitted.
"April 16, 1885. Claimant's brief of argu-
Bent fleil.
"April 20, 1885. Waiver filed by claimant.
".Time 1, 1885. Davis, J., filed the opinion
of the court. Petition dismissed. Findings
9i fact filed.
"August 14, 1885. Motions for new trial,
amendment of findings and for reversal of
judgment filed by claimant.
"Angust 21, 1885. Application for appeal
fled by clainuvnt.
"December 14, 1885. Motion of claimant
lor new trial overruled, with leave to submit
to the oonrideration of the court. Findings
2, 3, 4, amended in the form requested by
daimant in his motion, subject to objection
Q< the defendants to their allowance.
"October 8, 1886. Claimant's request for
indings of fact filed under order of court.
"March 15, 1887. Kequests, etc., of Octo-
ber 8, 1886, ordered to law docket.
"April 15^ 1889. Motion to anjend findings
euntinued.
"November 18, 1889. Continued.
"November 12. 1891. Motion of claimant
to smend order of court filed.
"November 16, 1891. Motion of claimant
to amend order of court heretofore entered
ss to the evidence to be used on the trhU al-
lowed, subject to objections of defendants on
the aignment."
Upon these and other facts found, the court
di8iniF<t^ the petition, hut as no opiiiiun was
iled, Um reasons for this judgment do not
swear.
Sobeeqnently ad«liiioTial fin<1ings were
Bsde, but as th^ are not material they are
■ot here repeated.
From the judgment of the court of claims
dismiHting his petition, petitioner applied for
tnd was allowed an appeal to this court.
Mean. F. P. Oewees, George S.
Bovtwell, and WUUam Wheeler BuSbeU in
person, for appellant.
MeMxrt. ChaVles C. Binney and L, A.
Pmrlt, ABsistant Attorney General, for ap-
pellee.
Mr Justice Browm delivered the opinion
of tlie court:
As the daimant in his petition relies only
npon the patent of February 18, 187l», No.
ilt^lZ, for an improvement in cartridges,
tnd as the proceedings in the former smt
^ the court of daims were based, in part at
l«ut, upon this patent, it will not be neces-
aury to refer to any prior patents.
ihe only defense we are called upon to
consider is that of res judicata. Ah bearing
vpon this defenee the following faots are per-
tmoit:
April 19, 1883, claimant filed his petitloin
iB tlie court of daims for a royalty upon cai*t-
midges end primers alleged by him to have
becQ manufactured by the United States un-
171 V. 8.
der his patents, between February 18, 1S79,
and March 31, 1883;
June 1, 1885, this petition, after having
been several times amended, was dismissed
and findings of facts filed;
August 14, 1885, motions for new trial,,
amendment of findings, and for reversal of
juagment were filed by the claimant;
August 21. Ib83, application for appeal
was ffied by claimant, but such appeal does
not appear to have been allowed :
Det-ember 14, 1885, motion for new trial
was overruled by the court, and the claimant
was given leave to submit to the considera-
tion of the court certain amended findings,
suDject, however, to objection of the defend-
ants as to their allowance;
October 8, 1880, claimant's reouest for find-
ings was filed under order of tne court, and
on March 15, 1887, it was ordered to the law
(locket :
The argument was deferred from time to
time until November 16, 1891, when the mo*
tion of claimant to amend an order of court
lis to evidence was allowed subject to the ob-
jections of the defendants on the argument.
The petition under consideration was filed
June 11, 1888, after *the first petition had[207I
been dismissed by the court of claims, and is
based upon the patent issued February 18,
1879, which was one of the patents involved
in the first petition. A claim is made in tliis
petition for royalty upon cartridges manu-
factured, in accordance with this patent, and
used by the United States for nearly six years
prior to the filing of this petition, but
subsequent to the time of the filing of the
first petition.
In this connection the court has found that
the facts in the case under consideration are
the same as those in the prior case, except as
to the time since the beginning of the other
action, during which time, to wit, from the
beginning of the other action to the begin-
ning of this action, the government manu-
factured cartridges of the same form and
kind as those described in these findincrs.
1. As the prior action was between the
same parties, and was based in part, at least,
and principally, upon the same patent, it
would appear tliat the judgment of the court
dismissing the petition would operate as a
complete estoppel to the present suit, unless
the proceedings suosequent to the judgment
in the former suit in some way deprived that
judgment of its force and efTect as res judi'
cata. 3 Robinson, Patents, § 1017.
While the record of the former case was
not sent up with the transcript from the
court of claims, it appears from the petition
in the case under consideration that, at the
time the petition was liicd, there was a suit
pending by the petitioner in the court of
olaims in case No. 13793 for compensation up
to March 31, 1883; and, in the findings, that
the facts in both cases were the same, except
as to the time covered by the petitions. The
identity of the two actions with respect to
the parties, the subject-matter, and tlie facts
sufficiently appear. As it further appears
that the petition in the former case was dis-
137
207-210
SumEME Court of the Unitkd States.
Oct.
missed upon an opinion filed and certain find-
ings of fact, it will be presumed to have been
dismissed upon the merits ( Loudenhaok v.
Collins, 4 Ohio St. 251 ) ; and that such dis-
missal covered every question put in issue
by the pleadings, including the validity of
the patent and its use by the defendants.
f208] *But if there were any doubt with regard
to this point, it would be resolved by an in-
spection of the opinion of the court (which
may be examined for the purposes of identi-
fication), as it is published in 20 Court of
Claims, 334, wherein it not only appears that
the case was considered and disposed of upion
the merits, but the court concludes its opin-
ion (p. 370) in the following language:
**Upon our construction of the patent in
issue the government cartridges do not in-
fringe the claimant's; but if we are in error
as to this, still the claimant cannot recover,
as the essential characteristics of his inven-
tion now found in the government cartridtfc
were developed by officers of the army in
1864. That is, if the relative position ot the
vents and the wall of the fulnunate chamber
is a material part of the claimant's patent,
the government has not infringed, this feat-
urci not appearing in its cartridges; but if
this position is not material, still the claimant
cannot recover, as the other characteristics
of his invention, found in the cartridge now
used by the defendants, were introduced by
them prior to the use of the patent or the
filing of the .application for it, and even prior
to the application of 1865."
Whether the reasons given by the court of
claims for the dismissal of this petition are
conect or not; whether, indeed, this judg-
ment were right or wrong upon the lacts pre-
€cnted, is of no importance here. If such
judgment were based upon an erroneous
view of the claimant s patent, it was his duty
to have promptly taken an appeal to thi^
court, where the whole case would have been
reopened and the error of the court of claims,
if such there was, would have been rectified.
It is insisted by the claimant that in the
former action the main contention arose
upon the manufacture and use of what was
known as the "cup-anvil cartridge," together
with a certain reloading cartridge, which
had been experimentally manufactured, and
that no claims for the "cup-anvil cartridge"
or for the reloading cartridge in that suit are
in issue in the case at bar. The suit, how-
ever, was upon the same patent, and it wa^
found by the court of claims to have been
upon *.he same facts, and we think the estop-
|£09]pel operates upon everything •which was, if
not upon everything which might have been,
put in is.sue in the former case. The pre
sumption is that the issues were the same,
and if they were in fact ditTerent, it was in-
cumbent upon the claimant to show that the
prior case was decided upon questions not in
Yolved herein. We have before us only a
decision upon the meritn, and upon the same
state of facts, of a claim identical with this,
and wo perceive no reason why it should not
operate as an estoppel.
But there seems to be nothing upon which
138
to base claimant's argument thftt the
were not the same. The findings e^ow that
the manufacture of the reloading cartridge
with the grooved anvil disk, referred to in
finding 6, commenced at the Frankfort
Arsenal in the month of July, 1879, and tlai
from February, 1879, to March 31, 1883, beii^
the period covered by the first euit, the
United States manufactured 3^66,352 rdoad-
ing cartridges. We see nothing to indies te
that these reloading cartridces were maao-
factured experimentally, or uiat tho issue as
to these cartridges was not presented and de-
cided in the former case. The claim in the
preeenit suit is also for rel<jading oartiidget.
But, evai if a somewhat differeiit tlieory
or state of facts were developed upon tlie trial
of the second case, the former judgmeai
would not <^>enDte the less as an estoppel,
since the patentee cannot bring suit against
an infringer upon a certain state of facta, and
after a dismissal of his action, bring aaoUier
suit against the same party npcm the mum
state of facts, and recover upon a dhfercBt
theory. The judgment in the first aotioa is
a complete estoppel in favor of the soeeessfnl
party in the subsequent aoti<m upon the earns
state of facts. Walker, Patents, § 468 ; Du-
bois Y. Philadelphi(i, W, d B, RaUroad Co. 6
Fish. Pat. Cas. 208; David Bradie^ Mfg. Co.
V. Eagle Mfg. Co. 18 U. S. App. 349, 67 Fei.
Rep. 989, 6 C. C. A. 661.
2. It only remains to consider, tlMB,
whether any proceedings taken in the eooft
of daims since the dismissal of cneh petitMB
deprived its judgment of its character as aa
estoppel. A motion for a new trial was wmM
August 14, 1885, but as this nnotion was ovw-
ruled in the foUowinff December, dearly tMi
would not deprive w judgment of its e^
ficacy as a plea *in bar. Indeed, it nny weU[tli
be doubted whether the pendency of a motion
for a new trial would interfere in any way
with the operation of the judgment as an «•-
toppel. Harris v. BamKart, 97 CaL 546;
Chase v. Jefferson, 1 Houst. (DeL) 257;
Young v. Brehe, 19 Nev. 379.
8. It further appears that on Augwt tl,
1885, an application for an appeal was fikd
by the claimant, but as this appeal was aerar
allowed or perfected, and as it does not appear
that a transcript of the record was ever filad
in this court, it is obvious that the aa-
thoritiee whic^ ho4d t^at an appeal perfected
to a superior court vacates the judgment of
the court below have no application to this
case.
We are therefore of the opinion that ti»
defense of res judicata is sustained, and lAs
judgment of the Court of Claims
the petition is accordingly affinned^
171 V. ft
IIBT.
TiDB Water Oil Co. v. tJuiTisD 8ta.tbs.
210-218
UDE WATER OIL COMPANY, AppU
V.
XJNITBD STATES.
<8m & a Beporter'8 ed. 210-219.)
Drawhaoh on mrtioles empnrted whftn mnnu-
faetured of imported tnateriala — drawback
on nail9m
1. Boxes made in the United States from
shooka Imported from Canada are not wholly
mannfactiired In the United States so as to
give a right to a drawback nnder the United
States treaanrj regulations of 1884, art 066,
aid U. 8. ReT. Stat, i 8019, when all that is
dons tn this eonntrj is to manufacture the
nails* and nail the box shooka together, and
trim off anj projections when the boards are
not of the right length, and the cost of the
labor In the United States represents only
one tenth of the Tslue of the boxes.
X No separate drawback for nails used In the
mannfactnre of boxes can be claimed nnder
tiie United States treasury regulations of
1884, art. 966, on the ground that the nails
were manufactured In the United States,
when no drawback can be had on the boxes.
[No. 140.]
Argued April 29, 1898, Decided May 91,
1898.
ON APPEAL from a judgment of the Court
of Chums <1lBmifl8ing the petition of the Tide
Water Oil Company for drawback of duties
psid upon ahooks and iron rods imported
ndikfti were manufaotured txvto boxes in this
country nad subsequently expoi^ted <to for-
eign countries. Affirmed,
See ssjDA case below, 31 Ot 01. 90.
Statement by Mr. .Justice Brown t
This -was a petition by a corporation of
Hew Jersey for a drawback of duties paid
upon eertain shooks imported from Canada,
sad iron rods imported from Europe, which
were manufactured into boxes or cases by
the petitioner in its fnctory at Bayonne, New
Jersey, and were subsequently exported to
foreign countries.
The court of claims made the following
findings of fact:
"l. During the years 1889, 1890, and 1891
the claimant was a corporation existing un-
der the laws of New Jersey, organized in
1888, and having a factory for carrying on
its business at Bayonne, in that state.
'^ In 1889 and 1890 the claimant imported
from Canada box shooks, and from Europe
sted rods, upon which importation duties
amounting in the aggregate to $39,636.20
were paid to the United States, of which sum
$837.68 was paid on the importation of the
steel rods.
NoTK. — A9 to lien of United States for dutiee,
see note to United States t. 850 Chests of Tea,
«:702.
A9 to action to recov4fr hack duties pnid un-
der protest; protest, how made, and its cffeot,—
me note to Greeij v. Thomi>8on, 18 : 897.
171 V. S.
^ The box shooks imported as set forth
in finding 2 were manuiactured in Canada
from boards, first being planed and then cut
into required lengths and widths, intentied to
be substantially ^correct for making into[212]
boxes without mrther labor than nailing the
shooks together. They were then tied up in
bundles of sides, of ends, of bottoms and of
tops of from fifteen to twenty-five in a bun-
dle for convenience in handling and ship-
ping.
''4. The shooka so manufactured in Can-
ada and imported into the United States as
aforesaid were, at the claimant's factory in
Bayonne, New Jersey, constructed into the
boxes or cases set forth in Exhibit E to the
petition herein, by nailing the same together
with nails manufactured in the United States
out of the steel rods imported as aforesaid,
and by trimming when defective in length or
width to make the boxes or cases without
projecting parts, i. e., the shooks were im-
ported in bundles of ends, of sides, of tops,
and of bottoms, each part coming in bundles
separated from the bundles of other parts.
From one of these bundles of ends the ends of
a box are selected, to which the sides taken
indiscriminately from any bundle of sides
are nailed by nailing machines; then the
sides are trimmed ofif even with the ends by
saws; then by bottoming machines bottoms
taken from any bundle o! bottoms are nailed
on; then the bottoms are trimmed even with
the sides by saws; then after being filled
with cans, the tops are nailed on; and then
the boxes or cases are ready for exporta-
tion.
"The cost of the labor expended in the
United States in the necessary handling and
in the nailing and tiimming of the boxes as
aforesaid was equal to about one tenth of
the value of the boxes.
"The principal part of. the labor performed
in trimming the boxes was occasioned by the
Canadian manufacturer not cutting the
shooks into the required lengths and widths
for use in making the boxes, and for which
the claimants sometimes charged the cost
of such trimming to the Canadian manufact-
urer.
"5. The boxes or cases made as aforesaid
were exported from the United States to for-
eign countries in conformity with the regu-
lations of the Treasury Department then in
force, to wit, Treasury regulations of 1884,
sections 960, 967 and 968, hereinafter set
out, relating to drawbacks upon the exporta-
tion *of articles wholly manufactured of im [213]
ported materials ; and cases so manufactured
were entered for such drawback upon the
ex]>ortation thereof.
**For about four years prior to July 31,
1889, the Treasury Department had allowed
and paid a ditiwback upon the exportation
of boxes made from imported shooks fastened
together with nails made from imported
steel rods as aforesaid; and the Treasury
Department was requested to pay the draw-
back on the exportation of the boxes or cases
set forth in Exhibit E to the petition, but
refused for the reasons set forth in the fol-
130
2(iu-«4^
burBBHB Court op thb Cnitrd syrAXMs.
Oct.
lowing communication addressed to the col-
lector of customs at New York:
Treaaury Department, July 31, 1869.
Sir: Referring to department letter of
March 2, 1885, addressed to the then oollect-
m at your port, in which a inie of drawt>ack
^ was established on shooks used in the manu-
facture of boxes, you are informed that the
' department has recently given the matter
further consideration, and it appears upon
investigaUon that the boxes cure made com-
plete in Canada, with the exception of nail-
ing, and that the only manufacture which
they receive in this country consists in their
thus being nailed together, which part of
the labor is omitted to be done in Canada
merely for tiie convenience in shipping to the
United States.
The boxes appear to have been manufact-
ured oomplete abroad, and in the oondHion
imported resemble the finished furniture im-
ported in pieces which the department has
heretofore ndd to be dutiable ai the imte
api^i^le to (nSshed furniture. (See Synop-
■b, 4272.)
The simple act of nailing them together is
not, in the opinion of &e departoient, a
manufacture within the meaning of § 3019,
Revised Statutes, and the authority to al-
low drawback tiiereon is hereby revoked.
Tou will accordingly receive no further en-
tries for drawback in such cases.
Respectfully youris,
George C. llchnor,
iUsistant Secretary.
Collector of Customs, New TcMrk.
[S14] *''7. The Treasury regulations of 1884 re-
ferred to in finding 6, vis!,, articles 966, 967,
and 968, are as foUows:
"'Art. 966. On articles wholly manufac-
tured of imported materials on which duties
have been paid, a drawback is to be allowed
on exportation, equal in amount to the duty
paid on euch imported materials, less 10 per
cent thereof, exc^t on exportations of re-
fined sugars, in w'nich oaee the legal retenrtion
is 1 per cent.
" 'Art. 967. The entry in such cases will be
as follows, and must be filed with the coUeci-
or at leaat six hours before putting or lad-
ing any of the merchandise on board the ves-
sel or other conveyance for exportation.' "
Here follows a form of entry for exporta-
tion with oaths of exporter and of the pro-
prietor and foreman of manufactory.
Article 968 contained a form of bond for
exportation.
Upon the foregoing findings the court
found the ultimate fact, so far as it waa a
question of fact, that the boxes or cases so
exported were not manufactured in the
,' United States, and, an a conclusion of law,
that the claimant was not entitled to re-
cover; and the petition was dismissed.
.Whereupon petitioner appealed to this court
Mr. Edwin B. Smith for appellant.
Me$sr$. Henry H. Hoyt, Assistant At-
torney General, and Felix Brannigan, for ap-
pellee.
140
Mr. Justice Brown deiivo^d the opiaioa
of the court:
The single question presented for our earn-
sideration in this case is whetiber the boxes
or cases exported by the petitioner were
"wholly manufactured'' in the United States
within the meaning of the section hereinsLfter
cited.
The facts were, in substance, that the dnim-
ant imported from Canada in 1889 aad 1890
box shooks, and from Europe steel rods, npos
which duties were pud to the amooiftt of
$39,636.20 under the tariff act of March S.
1883 (22 etat. at L. 488, 502, ohap. 121),
which levied a duty of 30 per cent upon "eeake
and ^barrels, empiy, suffar-box shooka,
packing boxes, and packing-box ahooke, oi
wood, not spedally enumerated or pro^rided
for in tills act" Ae box shooks ao imported
were manufactured in Canada from boevde»
whidi were planed and cut into the reqiitfed
lengths and widths for making into boxes
wi&out further la.bor than naiflng^ them to-
gether. They were then tied up into birndles
of sides, ends, bottoms, and tops, of from fif-
teen to twenty-five in a bundle, for oonves-
ience in handling and shipping. After impor-
tation, th^ were made up into boxes or pssee,
by nsdUng the proper parts toffethar witk
nails manufactured in the United States oot
of the imported steel rods, and by trimmia^
when defective in length or width, to
the boxes or oases without projecting
The ends and sides of the boxes weie
toffether by nailing machines, and the aides
trimmed off even with the ends by askwa^
Then bottoms were nailed on and tiimmed im
the same manner. After being flUed, the tope
were nailed on, and th^ boxes made r&maj
for exportation. The cost of the leibor ex-
pended in the United States in the n&ilivg.
handling, and trimming of the boxes wss
about one tenth of the value of tlie boxes.
The principal part of the Uhor in trimming
the boxes was occasioned by the ^^***it4Tis
manufacturer not cutting the sho(^ci into the
required lengths and widths for making tbe
boxes, i^e cost of which trimming ^le
ant ecmietimes charged to the Canadian
ufacturer.
Upon this state of facte petitioner
claim for duties paid as above upon the
shooks, under Rev. 8Ut. S 3019, which resds
as follows:
There shall be allowed on all artides
wholly manufactured of materials imported
on which duties have been paid when export-
ed, a drawback equal in amount to the duty
paid on such materials, and no more, to be
ascerteined under such regulations as shmll be
?r escribed by the Secretory of the Tressory.
'en per centum on the amount of all draw-
backs 90 allowed shall, however, be retained
for the use of the United Stetes by the col-
lectors paying such drawbacks respectively.**
The question arises whether the boxes in
question were •"wholly manufactured" within[91t;
the United Stattes of "materials imported"
from abroad. The section above quoted
the words "wholly manufactured of
imported," but we understand it to be
171 XT
']
i8r
'lio« Watibr Oil Co. ▼. United States.
216-318
v«ded that the words "in the United SUbes"
ibonld be considered as being incorporated
Mo tlM flecUoii after the word "manufac-
imnL" The provision would be senseless
vithout this interpolation. The objects ol the
section were evidently not only to build up
SB export trade, but to encourage manufac-
tores in this country, where such manu-
fsetores are intended for exportation, by
giaating a rebate of duties upon the raw or
ptepsjred materials imported, and thus en-
abling the manufacturer to compete in for-
eign markets with the same articles manu-
iMtured in other countries. In determining
whether the articles in question were wholly
manufactured in the United States, this ob-
ject shoidd be borne steadily in mind.
The primary meaning of the word "manu-
facture is something made by hand, as dis-
tinguiBhed from a natural growth; but as ma-
chinery has largely supplanted this primitive
method, the word is now ordinarily used to
denote an article upon the material of which
labc^ has been expended to make the finished
produet. Ordinarily, the artiide so manu-
iutoied takes a dififerent form, or at least
■nbserves a dififerent purpose frcmi the orig-
inal materials; and usually it is given a dif-
ferent name. Raw materials may be and
«ften ere si^jected to successive processes of
msnttfacture, each one of which is complete
in itself, but several of which may be required
to make the final product. Thus, logs are
fiist manufactured into boards, planks, joists,
teentlings, etc, and then by entirely different
processes are fashioned into boxes, furniture,
doon, mndow iashes, trimmings, and the
thoQsand and <me articles manufactured
utiolly or in part of wood. The steel spring
of a watch is made ultimately from iron ore,
bfot by a fati^ num/ber of processes or trans-
fcvmations, each successive stop in which
ii a distinct process of manufacture, and for
which the article so manufactured receives
a different name.
The material of which each manufacture is
formed, and to which reference is made in S
|I17]}019, is not necessarily the ^original raw
ma^afisl — ^in this case the tree or log — 'but
tke product of a prior manufacture; the
fiaished product of one manufacture thus be-
eoming {he material of the next in rank.
This ease, then, resolves itself into the ques-
tioA whether the materials out of which
Ibees boxes were constructed were the board.s
whi<Ai were manufactured in Canada or the
abooks which weie imported into the United
SUtes.
While the planing and cutting of the boards
is Canniia into the requisite lengths and
shapes for the sides, ends, tops, and bottoms
of the boxes, was doubtless a partial manu-
iactiire, it was not a complete one, since the
boards so cut are cot adaptable as material
for other and different objects of manu-
faetiu^e, but were designed and appropriate
only for a particular purpose, i. e., for the
manofacture of boxes of a prescribed size, and
were useless for any othpr purpose. It is
not always eas^ to determine the diflTerence
between a complete and a ^rtial manu-
171 V. S.
facture, but we may say generally that an
article which can only be us^ for a particular
purpose, in which the process of manufacture
»tops short of the completed article, can only
be said to be partially manufactured within
the meaning of this section; nor can we re-
gard the mere assembling and nailing to-
gether of pans complete in themselves and
destined for a particular purpose as a com-
plete and separate manufacture. Thus,
chairs are made of bottoms, backs, legs, and
rounds, each one of these parts being made
separately and in large quantities. If im-
ported in this condition from abroad, and the
parts were a9semi)led and glued or screwed
together here, we think it entirely clear that
such chairs would not be wholly manu-
factured in the United Slates; and the same
ma^ be said of the staves heads, and hoops
which constitute a barrel Upon the theorv
of the claimant, if all the parts which
constitute a wooden house were made
separately, as tlicy aoinetinies are, and im-
ported from abrcKid and put togellier in this
country in the form of a house, it would fol-
low that the house must be said to have been
wholly constructed in this couwtry.
It may be said generally, although not
universally, that a complete manufacture is
either the ultimate product of prior *succes-[218)
sive manufactures, such as a watch spring, or
a penknife, or an intermediate product which
may be used for diilerent purposes, such
for instance as pig iron, iron bars, lum-
ber, or cloth; while a partial manufacture
is a mere stage in the development of the
material toward an ultimate and predestined
product, such for instance as the different
parts of a watch which need only to be put to-
gether to make the finished article. If, for
instance, the wheels, chain, springs, dial,
hands, and case of a watch were all imported
from abroad, and merely put together in this
country, we do not think it could be said that
the watch was wholly manufactured within
the United States. The same remark we
think may be made with reference to the
shocks in this case, which were practically
worthless except for being put together for a
box of a definite size.
The distinction here made was alluded to
in the opinion of this court in Worih^'ngton
V. Rohhina, 139 U. S. 337 [35: 181], in which
the question arose whether "white hard en-
unel,*' upcd for various purposes, including
watch dials, was dutiable as "watch mate-
rials," or as a simple manufacture. In dc- .
liverinff the opinion of the court Mr. Justice
Blatchford said: "llie article in question was,
to all intents and purposes, raw material. If
it were to be classed as 'watch materials,' it
would follow that any metal which could ul-
timately be used, and was ultimately used,
in the manufacture of a watch, but could be
used for other purposes also, would be dutia-
ble as 'watch materials.' In order to be
'watch materials' the article must in itself
bear marks of its special adaptation for use
in making watches. I'he fact that the ar-
ticle in question was used in the manufacture
of watches has no relation to the condition
141
918-220
SUP&BMB OOUBT OF THB UnITKD STATBil
Oat,
of the article at imported, but to what after-
wards the importer did with it."
It does not necessarilj follow that the
shooks in question were not a manufacture,
and dutiable as such, or that they were duti-
ai>le as boxes, though destined to be put to-
gether as such, since in United S^ateaY.Soho-
verling, 146 U. 8. 76 [36:893], Onished gun-
stocks with locks and mountings, unaccom-
panied by barrels, were held to l^ dutiable as
manufactures of iron, and not as ''guns."
IBIO] ^Bearing in mind that the object of the
drawback was partly, at least, to encourage
domestic manufactures, and that all the sub-
stantial work done in this country was in
nailing together the tops, bottoms, and sides
of these boxes, we think it clear that it can
not be said that the boxes so constructed were
wholly manufactured in the United States.
The work done in trimming or sawing off the
ends of the boards was a mere incident to the
nailing together, and was caused by the in-
advertence, negligence, or insufficient instruc
tions given to the Canadian manufacturer,
and was no proper part of the manufacture.
While the amount of work done to constitute
a new manufacture may not l>e great [Salton-
4tan v. Wiehuach, 156 U. S. 601 [39 : 549] )
yet we think the fact that in the transfer of
those boards to the completed boxes, the cost
of the labor expended in the United States
represented only one tenth in value of the
boxes is important, especially when taken in
connection with the fact that the shooks
when imported were usable only for a single
purpose. It is quite improbable that Con-
gress intended to allow a drawback upon
the nine tenths represented by the Canadian
material for the benefit of the one tenth rep-
resented by the labor put upon the boxes in
this country. What was doubtless meant
was to allow this drawback upon articles
manufactured wholly and bona fide within
the United State:^, either from the raw mate-
rial, or from material which was the result of
the last complete manufacture.
While the nails, which were used in fasten
ing the shooks together and were made from
iron rods importeu from abroad, may be said
to have been wholly manufactured in the
United States within the principles here an
nounced, they lost their identity as sucli
when used in nailing the shooks together, and
became so far a part of the boxes that no
separate drawback could be claimed for them
There was no error in dismissing the peti-
tion, and the judgment of the Court of
Claims is therefore affirmed.
pwoi
ELY'S ADMINISTRATOR
V,
UNITED STATES.
(See 8. C Reporter's ed. 220-241.)
Authority of Mexican officials to make a
The docket title of this case Is Santiago Ain-
em. Administrator of the Estate of Frank Ely,
4eesased, y. The United States.
Non.— At to Jff««oiiH private land claims,
•ee note to Les Bols t. Bramell, 11 : 1051.
142
grant — sale of Umd by the intend4MsU — hie
power to oonvey puhUo lands qu&mfiff
named— chUgation to sustain Meaneam
grant — limit of investigation-'^deeoriptiom.
1. Anthorltj of Mezlean offldala to
grant cannot be presomed from their hartac
made It. Sneh grants can onlj be conflrmed
under the act of Congress when made bj per*
sons havinf anthority or when sobocqoeatly
ratified. Bat when an officer was In the haMt
of exercising that power and his acta wcf*
recognized bj the Mexican anthorttica aa
▼alld, his authority maj be presumed.
2. ▲ sale of land by the Intendant of Soaora
and Sinaloa la 1S21, which was completed bj
title Issued bj the commissary general and bj
the payment of the purchase price Into the
public treasory, and which was recognised as
▼alld by the Mexican goTemment, ahoold be
recognized as TaUd by the coort of priTata
land dalma
3. The power of an Intendant to conrey pab-
Uc lands was recognised by the gOTenuneat
of Mexico as continuing after Its aeparatloa
from Spain.
4. The quantity named in a grant may be ef de-
cisive weight, when there Is uncertainty la
specUlc description; and It will be nrrrssirllj
so if the Intention to couTey only ao much aad
no more Is plain.
5. Sustaining the ralldlty of a Mexicaa great
to the extent of the land paid for Is but carry-
ing out the spirit of the treaty, the obligatloae
of International justice, and the duties im-
posed by the act creating the court of prirate
land claims, where the grant waa of a sped-
fled quantity of land, in a certain plaee, at a
certain price i>er sitio.
6. In an Investigation of a Mexican land title
the court of private land claima la not limited
to the dry technical rules of a court of law,
but may Inquire and establish tliat which
equitably was the land granted l»y the gov-
ernment of Mexico.
7. The mere fact that a Mexican land
Is narrower than the limits of tlie ontboaad-
aries does not prevent tlie court of private
land claims through the aid of a eommla-
sloner, surveyor, or master, from deteraiaiag
exactly what did equitably pass nader the
grant.
[Na 27.1
Argued March 15, 16, 1898. Daeided Mm
81, 1898.
APPEAL from a judgment of tlia Oouxt ol
Private Land Gaims in favor of the piainH^^
the United States, against Santiago Aian*
administrator of Frank Ely, deceaaad, et at,
in a suit to settle and adjudicate the title
to a larse tract of land Ib the territory of
Arizona icnown as the Raaoho da San Jose
de Sonoita, and adjudging that tha title of
said administrator was Inyalid. JUversei,
and case remanded with direetioiia to deter
mine the true boundaries, ate.
Statement by Mr. Juitica
On October 19, 1892, proceeding uader S
S of the act creating the court of private
land claims (28 Stat, at L. 864, ^ap. 09),
the United SUtea fUed in that oouit a peti-
tion against Santiago Ainsa, adminlatrator of
the estate of Frank Sly, deceased, aad otlMi%
alleging thai said adminiatrator nliiiasil ta
171 V. t.
1897
Ely v. United States.
220-228
lue owner thnragli mt&UB connrejBiioft of
« lMTg% timet of land in the territory of Aii*
lona, known as the Rancho de San Joee de
Sonoita; that he had not voluntarily come
into the court to seek a considenution of hia
title; that the title waa open to question,
and was in fact invalid and void; that th6
other def^idanta claimed some interests in
the land, and praying tha/t they all might be
hronght into court a^ be ruled to answer the
petition, set up their titles and have them
settled and adjudicated.
In an amended answer the administrator
■et forth the nature and extent of his title,
and prayed that it be in<juired into and de-
dared valid. Reply having been filed, the
esse came on for trial, which resulted in a
decree on March 30, 1S94, that the claim for
tl]confirmation of title be disallowed *and re-
jected. The opinion by Associate Justice
SlusB contains this general statement of the
facto:
'Xhi the 29th day of May, 1821, Leon
Herreros presented his petition to the in-
tendente of the provinces of Sonora and Sin-
aloa, asking to obtain title to two sitios of
bad at the place known as Sonoita. The in-
tendente referred the petition to the com-
naader at Tubac, direoting him to cause the
tiint to be surveyed, appraised, and the pro-
posed aale thereof to be advertised for thirty
days.
In obedience to this order the oflficer pro-
ceeded to make a survey of the tract, which
vas made on the 26th and 27th days of June,
1821, and on the completion of the survey he
caused it to be appraised, the appraised value
leoig one hundred and five dollars. There-
apon the proposed sale was advertised for
thirty consecutive days by proclamation
Blade by a crier appmnted for that purpose,
beginning on June 29, and ending on the
tttii day of July, 1821. Thereupon, on the
Slat day of July, 1821, the officer took the
testiinony of three witnesses to the effect
that Herreroe had property and means to oc-
eapy the tract On October 20, 1821, the
proeeedinga above mentioned, being reduced
to writing, were by the officer returned to
the intendente.
"On Octob^ 25, 1821, the intendente re-
ferred the proceedings to the promoter fiscal
ior his examination.
"On November 7, 1821, the promoter fiscal
leported to the intendente the regularity of
the proceedings and recommending that the
lud be offered for sale at three public auc*
tkms, and thereupon the auctions were or-
dered to be held.
The first auction was held on November
^ 1821, the second on November 9, and the
third on November 10, 1821.
''At the conclusion of the third auction the
land was struck off to Heneros at the ap-
F^sed value by the bonrd of auction, of
^hich board the intendente was a member
^ the president.
"AH Uiese proceeding being concluded, on
^ 12th day of November, 1821, HeiTcros
P*id to the officers of Die treflRiiry the
*BMmnt of ttie appraisemeut, together with
ni V. a.
the fees and charges required ho be paid, and
with his concurrence the ^intendente and the[MJi|
auction board ordered the expediente of the
proceedings to be reported to the jimta su-
perior de hacienda for its approbation, so
that when approved the title might issue.
'There is no evidence that the mlIc was ap-
proved by the jimta superior de hacienda.
''On the 15th day of May, 1825, Juan
Miguel Riesgo, commissary general of the
treasury, public credit and war of the Repub-
lic of Mexico for the State of the West, is-
sued a title in the usual form purporting to
convey the land to Herreros in pursuance of
the proceedings above referred to and pro-
fessing to act under the authority of the ordi-
nance of the intendentes of Spain of the year
1786."
The conclusion reached was that "the en-
tire proceedings set forth in the expediente
of this title and the final title issued thereon
were without warrant of law and invalid."
Two of the justices dissented. Thereupon
the administrator secured an order of sever-
ance and took a separate appeal to this court.
MeKtrs. Rochester Ford and James C*
Carter for appellant.
Meiart, Matthew O. Resmolds and
John K, RichardSy Solicitor General, for ap-
pellee.
Mr. Justice Bre^rer delivered the opinicm
of the court:
The controversy in this case does not turn
upon any defect in the form of the papers.
Tne contentions of the government are that
the officers who assumed to make the grant
and to execute title papers had no authority
to do so, and upop this ground it was held by
the court of pnvate land claims that the
grant was in its inception invalid. Secondly,
that if a valid grant was made it was one of
quantity, and should be sustained for only
that amount of land which was named in the
granting papers and paid for by the grsntee.
It appears that the proceedings to acquire
title were ^initiated by a petition to the in-[8M)
tendant, or intendente, as ne is called in the
opinion of the court below, of the provinces
of Sonora and Sinaloa, on May 29, 1821;
that, so far as that officer was concerned,
they were concluded and the sale completed
on November 12, 1821. Nothing seems to
have been done after this date until Mav 15,
1825, when the commissary general of the
Republic of Mexico for the State of the West
on application issued a title in the usual
form. So the question is as to the power of
these officers to bind the government of Mex-
ico.
Few cases presented to this court are more
perplexing than those involving Mexican
grants. The changes in the governing power
as well as in the form of government were so
frequent, there is so much indefiniteness and
lack of precision in the language of the stat-
utes and ordinances, and the modes of pro-
cedure were in so many respects essentially
different from those to which we are ae-
customed, that it is often quite difficult to
determine whether an all^d grant was
143
223-226
SUPRBMB CfOUBT OF THE UhITED STATBt.
made by officers who, at the time, were aa>
tborized to act for the goyemment, and was
consummated according to the forms of pro*
cedure then recognized sa essential. It was
imdoubtedly the duty of Congress, a« it w«8
lis purpose in the various statutory enact-
ments it has made in respect to Mexican
titles, to recognize and establish ever^ title
and right which before the cession Mexico rec-
ognized as good and vajid In other woonds,
in harmony with the rules of international
law, as well as with the terms of the treaties
of cession, the change of sovereignty should
work no change in respect to rights and titles;
that which was good before should be good
after; that which the law would enforce be-
fore should be enforceable after the cession.
As a rule. Congress has not specifically deter-
mined the validity of any right or title, but
has committed to some judicial tribunal the
duty of ascertaining what were good and
valid before cession, and provided that when
80 determined they should be recognized and
enforced.
Of course in proceeding under any partic-
ular statute the limitations prescribed by
(8M]that statute must control; and whatever *may
be the obligations resting upon the nation
by virtue of the rules of international law
or the terms of a treaty, the courts cannot
pass beyond such limitations. In the case of
Hayes v. United States, just decided, 170 U.
S. 637 [42: 1174], we called attention to the
fact that in the act creating the court of pri-
vate land claims there was a prohibition upon
the allowance of any claim ''that shall not ap-
pear to be upon a title lawfully and regularly
derived from the government of Spain or
Mexico, or from any of the states of the Re-
public of Mexico having lawful authority to
make grants of land/' and pointed out the
difference between this statute and those con-
strued in the Arredondo Case, 6 Pet. 691
[8: 547] ; and the act of March 3, 1851, con-
sidered in the Peralta Case, 19 How. 343 [15:
678]. We held that under the act of 1891
the court must be satisfied, not merely of the
regularity in the form of the proceedings, but
also that the official body or person assumin]^
to make the grant was vested with authority,
or that the exercise of power, if unwarranted,
was subsequently lawfully ratified. We are
not to presume that, because certain oflScials
made a grant, therefore it was the act of the
Mexican government and to be sustained. It
must appear that the officials did have
the power, and we are not justified in resting
upon any legal presumption of the existence
of power from the fact of its exercise.
While this is true, yet when the statutes
and ordinances defining the powers and duties
of an officer are somewhat indefinite and gen-
eral in thedr terms, and that officer was in the
habit of exercising the same power as was
•xerdsed in the case presented, and such
exercise of power was not questioned by the
authorities of Mexico, and grants purporting
to have been made by him were never chal-
lenged, tliere is reason to believe that the true
construction of the statutes or ordinances
supports Uie txistence of the power. Cases
144
now before us discloee that abodt the
the intendant aoted in this case sunUai
was taken by him in respect to other appKea-
tiooB for the purcbase of land; that thnmgh
a series of years from 1824 downwari,
the commissary general, the oflKoer trtated
by the act of Sepftember 21, 1824,
recognized his acts ^as creating equitabl^tl
obU^tions on the part of the gOTemnieat,
and attempted to conBummate me amies by
papers passing the legal title; that the titk
papeiB thus executed were duly placed of
record in the proper office, and fail to show
that subsequently thereto the Ifexicaa
government took any steps te questioB tht
title or diBturb the possession. While this nay
not be condufiive as to the validitj of the
gmnts and the existence of the power ex-
ercised by the intendant, it certainly is
persuasive, and we should not be joFtified ia
lightly concluding that he did not 'possess the
power whkh he was in the hatit of exercis^
ing.
What powers did the int^klant possess at
•the time this sale is alleged to have taka
phLceT It is conceded by the government
that by the ordinance of December 4,1786 (at
which time Mexico was a province of Spain),
the intendants had fuH authority in refemet
to the sale of lands. Artide 81 of that
ordinance (Reynolds' Spanish & ifjirii^w
Land Laws, p. 60) is as follows:
Art 81. rrhe intendants shall also be
judges, with exclusive jurisdiction aver all
matters and questions that ariM in the
pro^dnces of their districts in rehM^on to the
sale, composition, and distribution ol erown
and sdgnioral lands. The holders thereof,
and those who seek new grants of the same,
shall set up their rights and make thdr ap-
plications to said intendants, who, after the
matter has been duly examined into by aa
arttomey of my royal treasury, appointed by
themselvee, shall take action thereon, te ae>
cordance with law, and in conjunction with
their ordinary »egal advisers. They shall
admit appeals to the superior board of tht
treasury, or, should the parties in interest
fail to employ that recourse, euhmlt a report
thereto, together with the original proeeed-
ings, when thev consider them in eooditioa
to issue the title. The board shall, after ex*
amination thereof, return them either lor it>
sue of title, if no correction is neeessaiy, or,
before doing so, for such other proceediagi as
in the opinion of the board are required, with
the necessary instructions. In the meaatiBa
and without further delay, the necessary eon
firmation may be made, which said superior
board shall issue at the proper tinM, proosed-
ing *in this matter, as also the intendaoui^^
their deputies and others, in aoeordanee with
the requirements of the royal tnstmdtioBS of
Octo/ber 15, 1754, in so far as they do not cob-
ffict wHh these, without kMing eight of the
wise provisions of the laws therein dted aad
of law 9, tit, 12, book 4."
It is, however, contended that prior to the
transfer of title in this caae thia anthoiitj
was taken away from ^e intendant Ta
suppoit ol thia contention four matten ate
171 V. t.
Ml.
Eli t. Umitad Statbs.
%ZQ-22$
nkmd to bj oonnsel: L The adoption of
4h« ConstituUon of Mftrch 18, 1812, and the
r>mii]gation of the law of January 4, 1813.
The resolution of tiie oounoil of the
lAdiee, libfore a full board at Madrid, Decem-
ber 23, 1818. 3. The decreee ol FeidinaAd
Vn. le-eeUbHehing the Conetitfution of 1812,
and eo&yoldng the Cortes, March 6, 7, 9, 1820.
4^ The imperSd colonization law of January
4,1823.
Of these in thefr order, though H may be
weQ here to note that the colonization law
was not passed vnlil after the sale in oontro-
veray had taken place.
On March 18, 1812, in the midcTt of troub-
Was times in Spain, a Constitution (Reynolds,
p. 79) wiaa adopted, and by it and the law of
the Cortes of January 4, 1813 (Reynolds, p.
83), it is insisted that » different mode of
di^osing of the public lands was created.
As, however, this continued in force only un-
til May 4, 1814, when the King, Ferdinand
VILy returned to the throne and issued a
decree refuaing to recognize the existing order
of things and declaring tiie Constitution of
1812 revoked, it would seem that the powers
Ihaetofore vested in the intendants were re-
estaMiehed, Indeed, on December 28, 1814,
tlie King issued a royal e6dula or edict, the
mnth article of which is as follows (2 \^te.
New Beoopiladon, p. 168) :
'The governor bitendants shall resume all
the powers appertaining to them before the
promulgation of the Constitution, so called;
and shall consequently exercise said powers,
SI well in matters of government as in those
ef economy sad liti^tion relating to the
loyal Ui:asury, agreeably to the Uws and
oidinances respecting inftendants."
Clearly thereafter the intendants had the
lS7]powers given *tbem by the ordinance of 1786.
SabarUgo v. Maverick, 124 U. 8. 261 [31:
430].
On December 23, 1818, a resolution passed
bj the council of the Indies, at Madrid, and
approved by the Kinff, provided that allbusi-
neas pertaining to t% alienation of lands in
Kaw Spain should belong to the department of
the office of the treasury of the Indies Bit
Midrid. Hall, Mexican Law, P;76, 8 188.
Is March, 1820, Ferdinand YlL, under
presnire from the people, adopted the
Ooostitution of 1812 and took an oath
to support it Did this resolution of
Beeember, 1818, or this re-establish-
Bent of the Constitution, or both together,
put an end to t^ power of the intendanrts in
rsipeet to the safe of lands? Clearly the
rewlntion of December, 1818, would not have
that effect. The mere placing of the control
ever land matters in a particular government
department at Madrid would in no manner
affect the powers of K>cal officers until and
rnUeas such department should so order, and
tiiere is no suggestion that any orders to that
effect were ever issued. The resolution would
have no more effect <m the powers of local
•Aeers than would a transfer of the land
department of this govermnent from the con-
tral of the Secnftary of the Interior to that of
the Secretary ol the Treasury. The local of-
171 V. 8. U. S., Book 43. 10
/
fleers would simply have to respond to neir
superiorB, and that is alL I
Nor do we think that the rs-establishment j
of the Constitution, even if the re-establish-
ment of that instrument oarried with it ths
re-enactment of the law of the Cortes of Jan-
nary 4, 1813, put an end to the office of in-
tendant, or whoUv abrogated his poweiB. So
far as the act ox Januarv 4, 1813, is con-
cerned, while it did authorize the distii-
bution of part of the lands on account of mil*
itary service, it still provided that half of ths
public and crown lands should be reserved to
serve as a mortgage for ths payment of ths
national debt, and recognized the disposition
of sudi lands by the ''provincial deputation,**
as it was called. Turning to the Constitu-
tion we find the following provisions in chap-
ter 2, article 324: rThe political govern-
ment of the provinces shall reside in ths sn-
perior chief appointed by the ELing in each
one of them." * Article 825: ''In each prov-[2Ml
inoe there Shall be a deputation called
provindal, to promote its prosperity, pre-
sided over by the superior chief." Aitids
326: "This deputation shall be composed ot
the president, the intendant, and seven mem-
bers elected in the manner that shall bs
stated." While it may be that under the
terms of these and subsequent articles the
general control over the affairs of a province
was vested in the provincial deputation, of
which deputation the intendant was to bs
one member, we find nothing in them that
either put an end to the office of intendant or
had any other effect than to subject his ac-
tions to the control of the provincial depu-
tation. The (question is not what the prov>-
incial deputation when organized would do^
but whether the mere re-establishment of ths
Constitution, which provided for a provincial
deputation, operated before any aotion taken
under it, to put an end to the powers there-
tofore vestea in the intendants. It may
well be that in thus arranging for a new sys-
tem of contix^, without abolishing the office
of intendant, but on the contrary, in terms
recognizing its oontinuance, the purpose was
not to create an interim in wliicn no person
should have power to act for the government
in the alienation of its lands, but that the in-
tendant should continue to exercise t^s
powers he had theretofore exercised untU ths
King should appoint a superiorchief, andths
other members of the deputation be elected.
The very next year witnessed the sepaxu-
tion of Mexico from the kingdom of Spain^
On February 24, 1821, a declaration of in- «
dependence was made in the form known as
the plan of Iguala, and this declaration of
independence was made good by the surren- (
der of the city of Mexico on September 27,
1821. The 15th section of this plan provided
that "the junta will take care that all the '
revenues of departments of the state remain '
without any alteration whatever, and all the
employees, political, ecclesiastical, civil, and
miUtary, will remain in the same state in !
which they exist to-day." Prior to that time,
and on August 24, 1821, what is known as the
treaty of Oordoba was signed at that village
145
826-2^1
SurU£MB COU&T OF THB UNITED STATBB.
Oct. Tssv
by General Iturbkle, for Mexico, and Viceroy
O'Donoju, for Spain, the latter, however,
lttO]*havin^ no previous authority from Spain,
and this treaty was by Spain afterwards re-
pudiated. This treaty provided that "the
provisional junta was to govern for the time
being in conformity with the existing laws
in everything not opposed to the plan of
Iguala, and until the Cortes shall form the
constitution of the state.'' Immediately af-
ter the surrender of the city of Mexico a pro-
vdfiional coumcil or junta, consisting of
thirty-six members, was created under the
plan of Iguala, which assumed the control of
the government, and on October 5, 1821, this
provisional council promulgated the -follow-
ing order (Re3molds, p. 95) :
"The sovereign provisional ooimcil of gov-
ernment of the empire of Mexico, considering
that from the moment it solenmly declared
its independence from Spain all authority for
the exercise of the administration of justice
and other public functions should emamate
from said empire, has seen fit to habilitate
and confirm all authorities as they now are
in conformity with the plan of Iguala and
the treaty of Uie village of Cordo^, for the
purpose of legalizing the exercise of their re-
spective functions."
That the office of intendant was one of
those continued in existence by this order is
dearly shown by the decree of September 21,
1824, creating the office of commissary gen-
eral. Reynolds, p. 123. Its first two arti-
cles ore:
"Art. 1. So far as concerns the federation,
the officers of general and local depositories,
and all revenue employees tiiat have been
retained by the federation, are discontin-
ued.
"Art 2. From the intendants and other
discontinued officers the government diall ap-
point, in each state where it appears neces-
sary, a commissary general for the different
branches of the exchequer, public credit, and
war."
Prior thereto, and on October 24, 1821, the
provisional council passed an order declaring
that the office of superintendent general of
the treasury was not necessary, and added,
*'and in consequence, has decided that the
duties of the superintendency be performed,
as your excellency proposed in your said re-
port, by the direotories general of the rev-
enues, the officers of the treasury and inten-
]dants, in the^cases and matters that severally
belong to them, in conformity with their or-
dinances, without any variation in them."
Reynolds, p. 06. On January 16, 1822, it or-
dered tAiat, until the next august national
congress fixes the system of public revenues,
the intendants ahouid remain as they are, ex-
cept those who are reappointed and have, in
their former offices, had a higher salary than
that the intendants of Sonora and Pueblo
BOW have." Reynolds, p. 98. And on Feb-
ruary 2, 1822, it directed that '% report of
the receipts of tne treasuries since indepen-
dence was sworn to be forwarded by the in-
tendancies of the empire; and a statement of
the receipts and disbursements of the last
14«
fifteen days since the 24th of December.*
Reynolds, p. 99.
So that iong after the sale here in questioa
was made the government of Mexyo reoog-
nized the office of intendant as continuing,
and no statute or oripUnance appears which in
terms at least took away fnmi that officer aO
control over the sales of public lands.
It is contended that the mere change of
sovereignty revoked all authority to mak»
sales of the public lands, and United Stctn
V. VaUejo, 1 Black, 641 [17: 232] is cited, ia
which it was held that the decree of the
Spanish Cortes of 1813, in relation to the dis-
position of the crown lands, was inappli-
oable to the state of things which existed in
Mexico after the revolution of 1820, uiA
could not have been continued in force there,
imless expressly recognized by the MexKraa
congress.
And also Afore v. Steinhach, 127 U. S. 70,
81 [32:51,55], in which it was observed
that—
"The doctrine . . . that the Iaw4 of a
conquered or ceded country, except so far as
they may affect the political institutions of
the new sovereign, remain in force after ths
conquest or cession until changed bv hio,
does not aid their defense. That doctrine has
no application to laws authorizing the alieii-
ation of any portions of the puuic domain,
or to officers charged under rae former gov-
ernment with that power. No proceedings
affecting the rights of the new soveiei^
over public property can be taken except ii
pursuance of his authority on the subject"
*It is doubtless true that a change of sover^tl]
eignty implies a revocation of the authority
vested by the prior sovereign in local officers
to dispose of the public lands. And jH wt
think tliat rule is not controlling in tms ease,
for the new sovereign made an order coatia-
uing the functions of the local officers, and
one of those local officers making a sale ii
accordance with the provisions of the vrior
laws caused the money received thernroia
to be paid into the treasury of the new sov-
ereign, and that sovereign never letuined
the money thus received or challenged the
validity of the sale thus made. This is sot
a case in which the local officers attempted
to dispose of public lands in satisfactioB of
obligations created by the former soverofs,
but one in which a sale was made for moaej,
and that money passed into the treasniy ol
the new sovereign.
Again, the original ordinance of intendants
provided for an examination of the prooesd-
mgs by "an attorney of my royal treasury.'
The proceedings had in this case were rs>
f erred to the promoter fiscal, such being the
name of the legal adviser of the treasury de-
partment, who approved them. So we have
presented the case of a sale made by an oA-
cer who at one time undoubtedly had power
to make a sale, who was directed by the orif>
inal ordinance creating his office and csta^
lishing his powers to refer his proceedings tt
the legal adviser, a reference of the proceed
ings had by him to such legal adviser and a
decision of rach adviser that the proceediagi
171 V. n.
iMf.
Ely ▼. Ux<iTSD States.
231-234
wire regular and that the sale ought to be
ecmsuminated. Under those circumstances
it ii not inappropriate to refer to what was
■aid in Mitchel v. United States, 9 Pet 711,
742 [9:283, 294], in reference to the validity
of a grant in Florida:
It was done on the deliberate advice of
■a officer responsible to the crown, which
makes the presumption very strong, if not
irresistible, that everything preceding it had
been lawfully and rightfully done."
Affain, it must be noticed that according
to the report of tae proceedings the money
received for this land was paid into the pub-
lic treasury, the entry on the account book
being ia these words:
132] ^Charged one hundred and sixteen dollars,
two reales and five grains paid by Don Jose
Msi^ Serrano in the name oi and as attor-
ney for Don Leon Herreros, resident of the
eompany of Pimas at Tubac, in the following
manner: One hundred and five dollars as
the principal value for which was auctioned
by tnis intendencia one sitio and three quar-
ter! of another of lands for raising cattle con-
tained in the place of San Jose de Sonoita,
kituated in the jurisdiction of said company;
ox dollars, one real and seven grains for the
add half annual charge and eighteen per cent
for transfer to Spain; two dollars, ten grains
for the two per cent as a general charge, and
the three dollars as dues for the extin-
|[Qiahed account, as is explained by tne order
of the intendencia marked No. 32, $116 2r.5g.
Escalante.
Fuente.
Jose Maiia 6erraiK>.
It would seem not unwarranted and un-
reasonable to refer to the familiar rule that
where an agent, even without express author-
ity, makes a sale cd the property of his porini-
dpid, and the latter with full knowledge re-
ceives the money paid on account thereof,
his retention of the purchase price is equiva-
lent to a ratification of the sale. We do not
mean, however, to state this as a general
proposition controlling all municipal and
governmental transactions, biut only as one
of the circumstances tending to strengthen
the conclusion that these acts of the intend-
aat were not mere usurpations of authority,
but were in the discharge of duties and the
exercise of powers conceded to belong to his
office.
Passing beyond the action of the intend-
ant, we find that in 1825 the commissary
seneral executed title papers, thereby rati-
fying the sale made by the intendant four
years before. Vve have heretofore quoted
artidcs 1 and 2 of the act of September 21,
18^ creating such office. We now quote
trticles 3, 4, and 6:
"Art 3. These commissaries shall be, in
tho state or states and territories of their de-
tlS^rcation, head officers of all ^branches of the
exchequer. Consequently they are responsible
for Uie prompt execution of the laws that
gorem their administration, and all employ-
es thereof shall be subordinate to them.
"Art 4. They shall collect and disburse,
171 V. a.
under the laws and orders of the govemmejit»
the proceeds from the revenues and the con-
tingents of tihe 'tates.
"Art 5. The revenue on powder, salt de-
posits, the proceeds from the revenue on to-
bacco that belong to the federation, nationU
properties and vacant lands (cascos), con-
tingents, customs, tolls, and all the branches
pertaining to the public credit, shall be ad-
ministered directly by the commissary. The
revenue on tobacco in the places where
raised, that from the maritime customs, from
the niail and lotteries, shall continue under
their special administration, subordinate in
all respects to the commissaries."
Obviously these articles gave to this new-
ly created officer the fullest powers in respect
to the national revenues. When an office is
created with sudh laxve powers as these, and
the incumbent thereof, reviewing proceedings
theretofore had by prior representatives of
the government, and finding that a sale made
by one of such prior officers has resulted in '
the payment of the cash proceeds thereof
into the public treasury, confirms his action,
rati lies his proceedings and issues appropri-
ate title papers therefor, it would seem tha^
any doubts which might hang over the powet
of the prior officer were put at rest, ana that
thereafter no question could be raised as to
the validity of the sale.
And, indeed, such seems to have been the
assumption on the part of the government of
Mexico, for there is no suggestion that from
the time of the execution of these title papers
in 1825 up to the date of the cession, 1853,
the government ever raised any question as
to the validity of the sale or sought to dis-
turb iue possession of the grantee. While of
course time does not run against thegoveln-
ment, and no prescription, perhaps, may be
affirmed in favor of the validity of this grants
yet the inaction of the government dunng
these many years is very persuasive, not
merely that it considered *that the intendani(884]
had the power to make the sale, but that in
fact he £d have such power. These consid-
erations lead us to the conclusion that this
grant was one which, at the time of the ces-
sion in 1853, was recognized by the govern-
ment of Mexico as valid, and therefore one
which it was the duty of this government to
respect and enforce.
We pass, therefore, to a consideration of
the second question, and that is, the extent
of the grant It is claimed by the appellant
that the grant should be sustained to the ex*
tent of the outbdimdaries named in the sur-
vey. He insists that the accepted rule of r
the common law is, that metes and bounds
control area; that a survey was in fact made
and possession given according to such sur-
vey, and that although it now turns out that
the area within the survey is largely in ex-
cess of the amount applied and paia for, the
grant must be held elTective for the area
within the survey.
We had occasion to examine this question
in Ainsa v. United States, 161 U. 8. 208, 229
[40:673, 680], and there said:
"So monuments control courses and dis-
147
I r 'v H
184-287
BuPRRKB Court of thb United States.
OoT. TKm,
tftnces, and courses and distances control
quantity, but where there is uncertainty in
specific description, the quantity named may
be of decisive weight, and necessarily so if
the intention to convey only so much and no
more is plain."
We think this case comes within the rule
thus stated. The defendant in his answer al-
leges that the grant comprises 12,147.60
acres, wtille counsel for the government say
that 13ie measurements given by the surveyor
make the area 22,925.87 acres. The amount
of land 8n;>pra]sed, advertised, sold and auc-
tioned off was one and three quaiter sitios
(7,591.61 acres). While, of course, any slight
discrepancy between the area of the survey
and tiiat ostensibly sold might be ignored,
yet the difference between the amount which
was understood to have been sold and the
amount now found to be within iJhe limits of
the survey is so ^eat as to suggest the pro-
priety of the applicalion of the rule laid down
in Ainaa v. United States, supra. There can
be no doubt from the record of the proceed-
ings that one and three quarter sitios was all
thmi ttie purchaser supposed he had pur-
|p88]chased, all *that the intendant supposed ha
had sold, and all that was advertised or paid
for. The original petition, after stating that
there was a place known as San Jose de
Sonotta, declared that the petitioner
registered "in the aforesaid place two sitios
of land," which he desired to have sur-
veyed, uid to pay therefor the just price at
which it mi^t be valued. The petition
therefore was not for any traOt known by a
eiven name, but for a certain amount of land
in such place. The report of the survey is
very suggestive. We quote from it as fol-
lows:
"In the ancient abandoned place of San
Jose de Sonoita, on the 26th day of the month
of June, 1821, 1, the said lieutenant com-
■lander and subdelegate of the militarjr post
•Dd company of Tulraic and its jurisdiction, in
<vder to make the survey of the land de-
nounced by Don Leon Herreros of this
vicinity, delivered to the appointed officials
a well twisted and stretched cord, and in my
presence was delivered to them a castilian
vara, on which cord were measured and
counted fifty regulation varas, and this, be-
ing done, at each were tied poles, and stand-
ing on the spot assigned by the claimant as
the center, which was in the very walls of the
Already mentioned Sonoita, there were
measured in a northeasterly direction sixty-
three cords, which ended at the foot of some
low hills, a little ahead of a spring — a chain
4ii mountains of a valley whicm goes on and
turns to the east, where was placed a heap
4>f stones as a monument; and being about
to return to the center, the claimant ex-
pressed a desire that the survey should be
continued down the cafion until the two sitios
should be completed, that on each side we
should survey to him only twenty-five cords,
because if the survey should extend further,
by reason of *tihe broken-up condition of the
eoimtry and the rocky hills in sight, such
land would be useless to him, saying, at the
148
same time, that, contintiing the
along the cafikm (because it was imposBibie to
go in any other direction on account of the
roughness of the nound), by reason of the
many turns that had to be made, so masy
coxxls should be deducted from the total
number measured as woidd be calculated to
result in excess of the *real length measuredjtl
taken on a straight line, and ocMisderiag
his demand reasonable I ordered the ooa-
tinuation of ihe survey as fellows, to irit.
''And in view of ihe suggestion made by
the claimant to reduce the number of coidi
actually measured so much as might be eil-
culated to be in fact in excess of the trae
measurement by reason of the many turns of
the cafkm over which the survey was msde,ss
it could not be carried on stcaight, I ap-
pointed for that purpose lieutenant Don
Manuel Leon and ^e citizen Den Jose lfa>
Sotelo who were unanimously of the <^inion
to deduct twenty-five cords out of the three
hundred and twdve cords messoied in the
last survey downthecafion, the daimant con-
senting thereto as just; the sorvey was eil-
culated to be two hundred and drnty eordib
with which this survey was flnjuhftd^ nm^
inff from it one sitio and t^hree fouiliis of as-
other sftio, registered by Don Leon Hflrreroo
for raising atSck and for ftmning pniposea*
The appraisers reported as follows:
'In virtue thereof th^ said that aeeori*
ing to and because of the examination thej
had made and being aware of the exirtinc
regulations on the subject, the price should
be fixed at, and they fixed it at, sixty doUan
for eaoh sitio, because Uiey have nnuung
water and sevc-al banks of arable land
wthich can be made use of by cultiva;taon.'' |
The direction for the almoneda or offer of
sale was of the lands "composed of one ntis
and three fourths of another." 'Rut first al-
moneda was of lands "comprising one sitio
and three fourths of another. . . . and
appraised in the sum of one hundred and tr%
dollars, at the rate of sixty dollara per sitio."
The property put up for sale was lands "com-
prising one sitio and three fourths of another,
. . . appraised at one hundred and ilvt
dollars, at the rate of sixty dollars ea^
sitio." The report of the promoter fisosl
opens with this statement:
"The promoter fiscal of this treasury has
examined carefully the expediente of the
lands surveyed in favor of Don Leon Her
reros, resident of the military post of Tubsc,
by the Commissioner Don Elias Ygnscio
Gonzales, lieutenant ^commander of tbc(t37|
post, in the place called San Jose de SonoitA,
in that jurisdiction, from which resulted oas
sitio and three fourths of another, for raisiaf
Stock and horses, valued at sixty dollars esdi
sitio, which sums up one hundred and ivo
dollars, as it has running water and sods
pieces of land fit for cultivation."
Subsequently to this report the direetioa
was made for three public auctions, whidi
were made, and the record of title first tn^
tlon, the others being similar, is in tbsM
words:
171 U.^
i897
Ely ▼. Ukitbd States.
287-289
"Ist auctaoB. At the cHy of Arizpe, on the
8th daj <^ the month of November, 1821,
there convened as a board of auction the in-
l^idente as president and the members com-
podng the board, in order to make the first
taction of the lands referred to in this ex-
Mdiente. They caused many persons to o(^-
lect by the beating of drums at the office of
the intendencia, and in their presence they
made the crier, Loreto Salcido, announce, as
be did in a Icmd and clear voice, saying:
There is ito be auctioned at this board odf
audaon one eitio and three fourtiis of aiiatiher
of pabUc lands, lor rsdatng cattle, oomprised
in the place of Sui Jose de Sonoita, in tiie ju-
lisAetion of the mMitary post oif Xubac, sur-
Teyed in favor of Don Leou Heireros, resident
of the eame, and appraised in tthe sum of one
himdred and five dollars, at the rate of sixty
ddlars per mtio; whoever wants to make a
hid on it, let him do so before this board,
which will admit it if done properly; with
the miderstandin^ that at the third and last
auction, which will take place the day after
to-morrow, the propei'ty will be sold to the
highest bidder.' ''
The payment was, as appears from the
entry in the treasury office, heretofore
quoted, of ''one hundred and five dollars as
the principal value for which was auctioned
by this intendencia one sitio and three
quarters of another of lands for raisiiDg cattle,
contained in the place of San Jose de Son-
oita.** So, notwithstanding the fact that as
diown by the report of the surveyors, a sur-
rey was made, all the proceedings from the
eonunencement to the close contemplated, not
the purchase of a given tract of land, but a
certain amount of land in the place of San
Jose de Sonoita. Every consideration of
t38]equity,*therefore, demands that the title of
the pmtrhaser should be confined to the one
end three fourths sitios for which he paid.
As indicated in Ainaa v. United States,
rapro, too mudi stress cannot be laid on the
tedimcal rules of the common law in refer-
eaoe to the dominance of courses and dis-
tanees over area. It is a matter of common
knowiedge that in this part of the coimtry
huge areas beyond the immediate reach of
water courses or springs were arid; that pur-
ehaaes were of lands so watered or so sus-
ceptible of watering that crops could be ex-
peeted therefrom, or pasturage furnished for
stock. The land beyond the reach of these
water supplies was deemed of little value, and
hence slight attention was paid to it Every
purchase Uiereforo must oe considered as
dominated by this important and single fact.
Kude methods of measurement were resorted
to. As shown in the report of the survey in
this case mere estimates were relied upon.
Doubtless this carelessness was partly owing
to the fact disclosed in Ainaa v. United
States, that any overplus above the actual
amount paid for still remained the property
of the government, payment for which could
be compelled of the locator, or, on his failure
to make such payment, coidd be appropriated
bj any third party desiring to purchase. The
li!ct that duiing these yean no ehallenge
171 U. S.
was made of the overplus is not important.
The government was indifferent. Its rights
oouM be enforced at its leisure, and no indi-
vidual cared to purchase any surplus of arid
lands. The presumption which might ob-
tain in other places from the inaction of tiie
government, the failure of any individual to
assert a claim to the overplus, is in respect to
the lands in this territory of no significance.
Who there would care to question the right
of a locator along a waterway to any over-
plus of arid lands? Such overplus was of no
value, and no third party would ever care to
challenge the locator's right to this overplus,
and the government, like the individual, was
also indifferent. So the silence and inaction
of the government and third parties are not
strange, and create no presumption in favor
of the validity of the grant to the extent of
the survey.
Sustaining the validity of the grant to the
extent of the *land paid for is but carrying[2d9]
out the spirit of the treaty, the obligations
of international justice and the duties im*
posed by the act creating the court of pkifu'^
land claims. Article S of the treaty of
Guadalupe Hidalgo provided in reference to
the ceded territory that "Mexicans Viow es-
tablished in territories previou^y belonging
to Mexico, and which remain for the future
within the limits of the United BUA/tn, as de-
fined by the preseM treaty, shall b6 free to
continue where they now reside, or to re-
move at any time to the Mexicatii Republic,
retaining the property which thty ^possess in
the eaid territori%M, or disposing thereof, and
removing the pixKseeds wherevev they please,
without their being subjected, on this ac-
count, to any contribution, iutz, or charge
whatever," and that **m the said territories,
property of every kind, now belonging to
Mexicans not established there, shall be in-
violably respected" (9 Stat, at L. 929) ; and
these stipulations were reaffirmed in article
5 of the Gadsden Treaty (10 Stat at L. 1035).
Article 6 of that treaty, wliich placed a lim-
itation, provided '^hat no grants of land
within tne territory ceded . . . will be
considered valid or be recognized by the
United States, or will any grants made pre-
viously be respected or be considered as ob-
ligatory, which have not been located and
duly recorded in the archives of Mexico."
But this limitation is not to be understood
as denying the obligations imposed by the
rules of international law in the case of ces-
sion of territory, but simply as defining spe-
cifically the evidences of title which are to
be recognized. The spirit of the treaty is
fully oarried out when the amount of land
petitioned and paid for is secured to the
grantee or his successors in interest. This
government promised to inviolably respect
the property of Mexicans. That means the
property as it then was, and does not imply
any addition to it. The cession did not in-
crease rights. That which was beyond
challenge before remained so after. That
which was subject to challenge before did
not become a vested right after. No duty rests
on this government to recognize the validity
140
JB89-S42
SUPllEHS COUKT OF THB UmITSD 8tATB8.
Oct. TnM,
i' t
of a grant tx> any area of greater extent than
was recognized by the government of Mex-
ico. If that government had a rights as we
[S40]have seen in Ainsa v. United States 'it had,
to compd payment for an overplus or resell
such overplus to a third party, then this ^v-
emment is under no nooral or legal obliga-
tions to consider such overplus as granted,
but may justly and equitably treat the grant
as limited to the area purchased and paid
for.
It may be said that to consider the tract
granted as one not extending to the limits of
the outboundaries of the survey is to hold
that the tract granted was not located, and
therefore^ within the terms of the Gadsden
treaty, not to be recognized by this govern-
ment, as suggested in Ainaa v. United States,
In that case it appeared that while the out-
boundaries of the survey extended into the
territory ceded by ^fexico to the United
States, the grant^ had taken and was in
possession of land still remaining within the
Uiiiits of Mexico, to the full extent which he
had purchased and paid for, and therefore no
legal or equitable mim existed against the
United States in reference to land \%ithin the
ceded territory.
It is also undoubtedly true, as disclosed in
that case, that where there is a mere grant
of a certain number of acres within specified
outboundaries there may be such indefinite-
ness as to prevent a court from declaring the
true- location of the granted lands. And yet
it is also true that there may be disclosed by
the survey or other proceedings that which
will enable a court of equity to determine
with reasonable certainty what lands were
intended to be granted and the title to which
i^ould be established. It must be remem-
bered in this connection that by § 7 of the act
creating the court of private land claims, it
is provided "that all proceedings subsequent
to the filing of said petition shall be con-
ducted as near as may be according to the
Practice of the courts of equity of the United
tates." Therefore in an investigation of
this kind that court is not limited to the dry,
technical rules of a court of law, but may in-
quire and establisn that which equitably was
the land granted by the government of Mex-
ico. It was doubtless the purpose of Con-
gress, by this enactment, to provide a tribu-
nal which should examine all claims and ti-
tles, and that should, so far as was practicable
in conformance with equitable rules, finally
settle and determine the rights of all claim-
{ft^lfknts, *It will be imnecessarily limiting its
powers to hold that it can act only when the
grant to the full outboundaries of the survey
IS valid, and is powerless when a tract within
those outboundaries was granted. Many
things may exist by which the real tract grant-
ed can be established. In the case before us^f
it be possible to locate the central point from
which according to the report the survey was
made (and we judge from tne testimony that
it is possible) the actual grant can be estab-
lished by reducing each measurement there-
from to such an extent as to make the area
Uiat of the tract purchased and paid for.
150
If the outboundaries disdoee a square or tnj
rectangular figure, the excess of area suggarts
simply a carelessness of measaienient, aad
can be corrected by a proportionate redne-
tion in each direction. In other cases, the
location of the waterway, the conlSgnratioi
of the ffround, may be such as to enable a
court of equity by its commissioner or mis-
ter to determine exactly what was intended
to pass under the grant. We do not mean to
anticipate all the questions that may ansa
We simply hold that the mere fact that the
grant is narrower than the limits of the out'
boundaries does not prevent the court ol pri-
vate land claims from determining through
the aid of a commissioner, surveyor, or mur
ter exactly what equitably did pass under the
grant. It is enough for this case to hold
that the powers of the court of private land
claims are not narrow and restricted, and
that, when it finds that there is a valid graat
for a certain number of acres within the out-
boundaries of a larger tract, it may inquire,
and, if it finds sufficient reasons for determia-
ing the true boundaries of the tract uiat waa
granted, it can so prescribe them, and ana-
tain the claim to that extent, re. erring to the
land department the final and absolute wat'
veys thereof. In view of these considera-
tions, we are of opinion that this grant ahooki
be sustained to tne amoimt of one and thne-
fourths sitios, and the judgment of the Couft
of Private Land Claims is reversed, and tha
case remanded to that tribunal, with direc-
tions to examine and decide whether there ba
suflicient facts to enable it to determine tha
true boundaries of the one and three fooriha
sitios.
UNITED STATES, Appt^
r.
FREDERICK MAISH and Thomas DriacoU,
Partners as Maish & DriscolL
(See 8. C. Reporters ed. 242, 24S.) .
Extent of Mexican grant.
A Mexican grant should not be sDatain^ br
tbo court of private land clalns r r .i»<>f«
than the amount purchased, petUtooed. and
paid for, when all the proceediiiirs coatea-
plated a sale of that quantity only.
[No. 297.]
Argued March 15, 16, 1898, Decided Jfay
SJ, 1S9S.
•
APPEAL from a decree of the Court ol
Private Land Claims confirming the title of
the petitioners, Frederick Maish et oi., to a
tract of land in the county of Pima, and t«^
ritory of Arizona, under a Mexican grant
Reversed, and case remanded for farther
proeaedings.
The facts are stated in the opinion.
Nora. — As to Missouri private land eitlmt,
•ee aoto to Las Bols v. Bramell. 11 : 1061.
171 U.t.
[241
1897.
Fazoh t. Unitbd Statbs.
242-244
Jtoff. Matthew G. Resmolds and
Mn K. Bichardif Solicitor General, for ap-
pellant
Mr, Roehester Ford for appellees.
Mr. George Line* filed a brief for the Sopor!
Land ft Mining Company.
Mr. Jutioe Brewer delivered the opinion
of the court:
Tliis ease resembles that of Ainaa v. United
StaUs inst decided, 171 U. S. 220 [ante, 142].
The proceedings for the aaile were had in
1S20 and 1821 and before the same intendant.
We deem it unnecessary to add anything to
what was stated in that opinion as to the
Itw controlling. It is sufficient to say that
whOe the claim now made is for 46,606.2 acres,
the application for purchase was for four
atios (17, 353.84 acres). All the proceedings
eontemplated a sale of only that anoount of
Itnd. Thus the appraisers stail*^ that ''from
liieir examination they said that each sHio
ihooM be valued at thirty dollars, taking in-
to c(»Bideration that none of them had run-
ning water or natural standing water, but
that water facilities might be obtained by
means of a welL" The first of the three final
auctions was repeated in these words:
"In the city of Arizpe, on the 13th day of
December, 1821, there met as a board of auc-
tion the provisional intendant, as president,
and the other members that compose it, to
hold the first auction of the lands to which
these proceedings refer, and they caused the
people to be assembled at this office by the
[t49]*beatinf ^f the drum, and many persons
gathered at the office of the intendant, when
the auctioneer, Loreto Salcido, in their pres-
ence was ordered to ask for a bid, which he
did in a loud and clear voice, saying: 'Here
before this board of the treasury are being
sold four sitioe of public land for the rais-
ing of cattle situated at the place called San
Tgnado de la Canoa,wlthin the juriddiotion
of the military post of Tubac, surveyed in
favor of Tomas and Yniacio Ortiz, residents
of that same town, and appraised in the sum
of one hundred and twenty dollars, being at
Uie rate of thirty dollars for each sitio, it be-
ing necessary to dig a well to make the land
osefuL Whosoever wishes to make a bid up-
on this land, leit him come forward and do eo
in the manner established by law before this
board, where his bid will be heard, notice be-
ing given that the Rev. Father Fray Juan
Biuio, nnnister of the mission of San Xavier
dd Bac, in the name of Tgnacio Sanchee and
Francisco Flores, resident citizens of the same
town, had bid lor said land the amount of
two hundred and ten dollars; and with the
nndonstanding that on the third auc^on,
which is to take place on the day after to-
morrow, the sale shall be settled upon the
highest bidder.' As no bidder appeared, the
bMrd adjourned, and the minutes were signed
by the president and members of this board."
At the third auction a bid of $250 was
made, and on that bid the property was
■track off to Tomas and Tgnado Ortiz, who
iubseqnenUy paid into the treasury the full
imount of the purchase price with all
171 V. 8.
charges. Nothing seems to have been done
on this purchase until 1849, when title papen
were issued by the substitiite treasurer gen- j
eral of the state of Sonora.
Without repeating the discussion oontaioed
in the foregoing opinion, we think thai the
grant should be sustained for the four sitios
purchased, petitioned and paid for, and for
no more. As the grant was confirmed in toto
toe are compelled to order that the decree of
the Court of Private LandClnima he reversed,
and the case remanded to the court for fur-
tftier proceedings.
WILLIAM FAXON, Jr., Trustee, et al [244]
Appta.g
V,
UNITED STATES and George W. Atkinsoa
et al,
(See S. C. Reporter's ed. 244-260.)
Court of private land claims — power of trea9»
urer of Sonora to grant Memican landa-^
pueblo and mission lands.
1. In order to the confirmation of any claim,
the court of private land claims must be satis-
fled of the regnlarity in form of the proceed-
ings, and that the ofllclal body or person mak
Ing the grant was vested with authority, or
that the exercise of power, if unwarranted,
was subsequently lawfully ratified.
2. The treasurer of the department of Sonora
did not In 1844 have the power to determine
by his sole authority that abandoned pueblo
and mission lands belonged to the class of the
temporalities, and that their Talne was not
oyer $500, and to sell and grant them inde-
pendently of other o^clals.
8. Pueblo and mission lands In Mexico when
abandoned seem to bave become, under the
laws existing in 1844, a part of the public
domain of the nation, to the disposal of which
only the laws of the nation applied, and
which conld not be granted by the treasurer
of a department.
[No. 119.]
Argued March 18, 1898, Decided May SI,
1898.
APPEAL from a decree of the Oouit of
PrivBite Land Claims, rejecting the claim of
William Faxon, Jr., trustee, for the confinna-
don of his title to land known as the Tuma-
caood, Calabazae, and Huelnibi gnanft, situ-
ated in the valley of the Santa Cruc liver,
Pima county, Arizona. Affirmed.
Statement by Mr. Chief Justice Fnllert
Three separate petitions were filed in the
court of private land claims for the confir-
mation of what was commonly called and
known as the Tumacacori, Calabazas, and
Huebabi grant, situated in the valley of the
Santa Cruz river, Piniia county, Arizona, the
petitioners in each claiming under t^e origi-
nal grantee. The causes were oonsolidatod
NoiB. — As to Missouri private lamd elatmSt
see note to Les Bols v. Bramell, 11 : 10^1.
151
844-246
Supreme Coubt of thb Ukited States.
Oct. Tkmm^
and tried under the petition of William
Eazon, Jr., trustee, and others. The
petition alleged that the claimants were
the owners in fee of the tract of land in
question under and by virtue of a certain
instrument in writing, dated April 19, 1844,
'^ade and executed by the treasury depart-
ment of Sonora in compliance with the law
of the Mexican Congress of the 10th of Feb-
ruary, 1842, providing for the denoimcement
and ^e of abandon^ pueblos," running to
Don Francisco Alejo Aguilar, to whom said
treasury department sold the tract April 18,
1844, for the sum of $500.
That in the year 1806, the governor of the
inpueblo 'of Tumacacori petitioned Don
Alejo "Grfurcia Oonde, intendente of the prov-
ince, etc., etc, to issue to the Indians of the
pueblo a grant of lands for the ''fundo legal"
and idso for the "estancia" of the pueUo to
replace ancient titie papers which had been
lost or destroyed; that in accordance with
that petition tihe lands mentioned were
ordered to be surveyed, which was done,
and the boundary monuments established,
by Don l^fonuel de Leon, commandante of
the preeidio of Tubac; that on April
2, 1807, the said iTttendant Conde is-
sued a royal patent or title to the Indians
• of the pueblo of Tumacacori for the lands, as
set foith in the proceedings of the survey
thereof and in the copy of the original ex-
pediente.
That under the law of the Mexican Con-
gress of February 10, 1842, Don Francisco
Aguilar, on April 18, 1844, became the owner
by purchase, as before mentioned, "of the
four square leagues oi agricultural and graz-
ing lands of the 'fundo 1^^' of the aban-
doned pueblo of Tumacacori and the sitios of
ttie eeftancia (stock farm) of Calabazas, and
the other places thereunder pertaining." It
was averred that all the steps andproc^dings
in the matter of the grant and sale were
regular, complete, and legal and vested a
complete and valid tiUe in fee in the grantee;
and that the grantee at the time went into
actual possession, use, and occupation of the
grant and erected the proper monuments
thereon, and that he and his legal represen-
tatives have continued ever since and until
the present time in the actual possession, use,
and occupation of the same, and are now
possessed and seised in fee thereof.
The United States answered alleging that
the alleged sale to Aguilar was without war-
rant or authority of law and void; that,
if these lands had been theretofore granted
to the pueblo of Tumacacori, they were
abandoned about 1820, and bv virtue thereof
became public lands; that the titie to said
property, if any passed in 1807, was purely
usufructuary, and vested no estate, Ic^al or
equitable, in the said pueblaor mission, but
that the same and the right of disposition
were reserved to and remained in the national
government.
The answer denied that Aguilar became the
owner by purchase or otherwise of any lands
[M61included in the alleged grant *of 1807 to the
pueblo, or of any land of that mission or its
152
dependencies; that the alleged grant
located and recorded as provided by the
article of the treaty of Mesilla (Gadsden par-
chase) ; that the original grantee or grantee*
were ever owners of the property as against
the Republic of Mexico, or are now the oi
era thereof as against the United States
its grantees; that the grantee Aguilar,
the year 1844, went into actual possessioA
and occupation of the grant, and^erectad
monuments thereon, or that he and his repre-
sentatives have continued ever since in t3»e
actuid possession, use, and occupation of the
same.
The answer averred that the proceeding*
for sale were never taken under the expreaa
order or approval of the general govenuoeaty
and never submitted to said general goven-
ment for ratification or approved; that the
lands claimed far exceeded those contained ua
the original survey; that the sale was by
quantity and limited; and that the alleged
grant was so indefinite and uncertain as to de-
scription as to carry no title to any land.
On the hearing the testimonios of the
grants of 1807 and of 1844 were put in evi-
dence. Evidence was adduced to tiie effect
that Aguilar, the original grantee, never took
or had possession of the lands; that he was
the brother-in-law of Manuel Maria Gan-
dara, who was the Governor of Sonora in
1842, and in 1845 to 1853, except a few
months; to whom Aguilar convey^ in 1856,
and, more formally, in 1869; that Gandam
was in possession in 1852, 1853, 1854, and
1855, through his herdsmen; and that, as
contended by counsel for petitioner, the
money for the purchase was furnished by
Gandara, and Aguilar took the title as tma-
tee for him. Apparentiy the expedientes
were not in the archives, nor was there any
note of the grant in the book of toma de
razon for 1844.
A translation of the titulo of 1844 ia gives
in the margin.!
tTreasnry of the Department of Sonora, 1M4.
Title of sale, transfer, and adjudication of
affricfiltiiral lands which include the 4 leftfoct
of the fnndo leaal of the deserted pneblo of
Tumacacori and the 2 sitiot of its estandt
(stock ranch) of Calabasas and the oth«r
places thereto annexed, the same t>elnf ilta-
ated In the Jurisdiction of the District of Sta
Igrnaclo. issued by the said departmental
Treasury in compliance with the supreme de-
cree of the 10th of February, 1842, in fiTor
of Don Francisco Alejandro Aguilar. a reri-
dent of the port and Vlllace of San FcmAiido
de Guaymaa.
Second Seal. Seal Four DoHan.
Eighteen hundred and forty-four and el^tcea
hundred and forty-fire.
Ignacio Lopes, captain of caralry retired Co
the infantry, honorary Intendaut of the tray
and treasurer of the Department of Sonorm.
Whereas the supreme decree of February 10,
1842, provides for the sale, on account of tftc
critical condition of the public treasury, of tbe
properties pertaining to tne department of tern*
poralitles, of which class are the farming landf
and the lands for breeding catUe and honeo re*
spectiTely of the 4 leagues of the town site of
the depopulated town of Tumacacori and tbe t
sitios of the stock farm of the same at tbt
points of HuebabI, Potrero, Cerro de San Caye-
tano, and Calabasas, whose areaa, boundaries
monuments, and conterminous tracts are stated
In the corresponding proceedings of surrey exe-
cuted In the year ISO? by the commiasloncd •a^
171 U.i
ii'Axos T. L'Ai'i'iU) Statu.
247, ■MH-Ml
W\ *n« eovrt of private cinims rejected the
ckiM ox Oit grouikd that the sale in question
«H void lor want of power on the pftrt of the
iffiecr atttmptiag to make it.
* Mr. Frkaela J. H«n«y lor appellant
Jfran. H»ttkew O. ReTnolda and JoAn
£ fiicAarrft. Solli^tor QeneTal, for appellee.
Ml *Hr. Chief Justice Fuller delivered the
apJBion of the oourt:
In rader to the oonflrmatjou of any claim,
H]ltw court of private'land claims, under the act
crcatii^ (bat tribunal (28 Stat <ut L. S54,
Atf. 639), most be satined not merely ol the
regnlanty in fram of the proceedinga, but
iMt the official body or peraoo assuming to
ll]miki the grant was vested witji autboritj/or
chat the exercise of power, if unwairanted,
«■! lutHequently lawfully ratified; and the
HUM rule applies to this court on appeal.
Basa V. Vnited Statea, 170 U. S. 037 [42.:
1174] ; Ely's Adminiatrator v. Vuited State*,
171U. S. 220 [on(e, 142].
The titulo shows thait Ignacia Lopec, trea»
urer ot the department of Sonora, aesiuned ta
make the Bsle and grant of the lands in ques-
tion, in the exercise of sole authority, ea oj7>-
do, under the decree of February 10, 1842,
and article 73 ot the law ot April 17, 1837, aa
bdng prtqtert^ "pertaaning to the department
of temporal itjes, the value whereof did not
exceed $500. He aaserUd the power to deter-
mine, alone, that the tanda were of the tempo-
ralMieB; that their vaJue was not over $500;
and ta sell and grant them independently <4
other offidals tluiA himself.
The court of private land claims held that
if tQie lands belonged Lo the claaa of tempo-
ralitiee it waa cleax that the treasurer of th«
department had no power to make a sale by '
bis sole autJiority, whether the value exceeded
five hundred dollars or not; and if the land*
did not belong to .thai class, neverthelesa
nrtc, Don Hanael de Leon, Teterao eas[gn sod
idant at tbe presidio ot Tntii
-- '-* — iBtlon obtained In re
thereto at the Instance ot Uilg di
Tnainrr. aald lemporal farmli
—^M belne valoed In the sum i
-. 1500. SB pro-
said supreme de-
pomplylng punc-
Tlded b> article _
cree of Febmarj
tiullj therewitb .-_
•1 tb* eorreapondlag eipedlente bj the court oi
tm liutince and of the treaeur; ot the district
vt Bu Isnaclo, durlnu which proclQUiatlonB
(prefOBMj no bidder appeared; therefore, and
a eompliance with Brtlcle TB ol the law ot
Iprll if. 1B3T, as the sale In question oo ac-
HHiit ot the national TreBsnr; does not exceed
txa, tble said Ireasar; proceeded to the put>-
Bc nle of the aforementioned lands of tlie de-
popnliln) TnmicBCorl aod the lends of Its
Roct farm. Cnlabazaa. and other annexed
Miata. al] beloflglne to the departmeat of tem-
ponlLUM, on the leth, ITth, snd ISth of the
oimnt montb of April. In solicitation of bld-
dttB. vtchont there being 'oj other than Don
rnnelKii Alexandra Asnilar, a merchant and
irtidfot af this p«t and Tillage of San Fer-
uado de GoaTmU, for said anm of (GOO, the
■Pltialsed TBlne at which said temporalities
t,.i. ■_«. .,.1.1 "-- ^■-" -^c1
Gnumaa.
ptrtDrntal
tlnste Irlfoje
Um tnasorv «i
aaee with the n
af April IT. 1{B
lo the public at tbe souDd of the dram, as. Id
rOtrt, the nDbUc crler. Ptorentlno Baldlzao.
■ude lif a hlah and clear voice, saTlng: "The
tnaBDiT of tSe department Is going to sell, on
tmnat of the national treasnrj and In accord.
»»* with the anpreme decree of February 10.
181% tbe ■erlcnltUTal lands and lands for rtls-
iDf cattle and horses which comprlae tbe 4
Incws of the town ilte of the depopulated
tows of Tamacflcorl and the 2 sltlos of the de-
papnbted stock farm of the aame at the points
tt Hnebabl. Potrero, Cerro de Bsn Cajetano
■nd Calabasaa. situated In the District of San
IfUdo, tbe areas, inonumenta. boundaries, and
cnteTalaoDS tracts of which are stated In the
eone>»ndlD« proceedlnga of surrey executed
Is the Tear 180T bj tbe commlaaloned surreTor.
Don Kanuel de leon. Tcteran enalgn and late
eomnindaDt Of the presidio of Tuhae, as ap-
pears from the Information obtained
stance of said departmeutal treasi
which It also Bppeara that the orlglna
! It Win be r
>ntorm1tr
wlti) the lE .
dual sale Is to be made now to whomever
should be tbe blahest bidder."
In which act Don Francisco Alexandre Agul-
lar, a merchBut and resident of this port, ap-
peared and made the bid of (500. at which salcl
Icoiporalltlea are appraised; and no other bid-
der hBTing appesred and the hour for midday
prayer of this day hBTlng already struck, the
fubllc crier flnBlly anld: "Once, twice, three
Inies: sold, sold, sold; may It do good, good,
good to Don Franclaco Alejandro Agullar.''
In these terms this act was concluded, the
aforesaid farming lauds and lands for ■-°i°i'<-
cattle and horses of tbe depopulated t<
nd stoch farm of the temporalities of Ti
-J — J ^.i„t being publicly and so
iclsco Alexaudro AguUar.
corl and C
■old - -
inly
hant and resident ot this port, tor the ■!._
of (SOD.
And In due witness thereof and for the usual
furposea these- proceedings were closed and en-
Bred and I signed tbem together with tbe
party In Interest and my undersigned attendant
I^anclaoo i!\gQllar.
Witness: Jose Hsrla Mendoia.
Witness: Vicente Irlgoyen.
In which legal terms was concluded the sals
ot the farming lands snd Isnds for raising cst-
tle and horses, which comprise the 4 lesguea of
the depopulated t -"■- -* •" ■ --'
tbe 2 sltlos ' "
other
Itlos ot Its stock farm, Galnbs
tbe larlsdlctlon of tbe District
uBclo. the original expedlente
posited In tbe archives ot this *
petual evidence, with the —
"hen' the orlgi'nBi titles ot Yumacscorl and
'".alned. they shall be aggre-
lands and lapds tor
horses, which ci
to Don Frnnclsc
Into t£ls depsrtmental trensiiry. I,
In use of tbe powers, the laws on tbe
S also the supremedecree^^ottjie lOtk
Of February, 1843. conceded ti
I
:ibL, 25:;:
ScrUKMK CoUUT OF TUE UNITED 8TATB8.
Oct. Tbxm,
\y> i<
' I
1 I
there was the 8amc want of power unJer the
laws of Mexico in relation to the disposition
4ii the public domain.
Many of the laws in this regard have been
set forth in United States v. Coe, 170 U. 8.
681 [42: 1195] ; Hayes v. United States, 170
U. S. 637 [42: 1174] ; Ely's Administrator Y.
United States, 171 U. S. 220 [ante, 142] ; and
other cases, and the statement of eo much
thereof as particularly bears on the matter in
hand involves some repetition.
By the law of January 26, 1831, a general
department of revenues was established, un-
der whose control all branches of the treasury |^
were placed, except the general administra-
tion of the mail and of the mint. A general
director and three auditors were provided for,
to be appointed by the government, end the
general department was divided into three
fMSjsections *of each of which an auditor was the
chief. 2 Dublan and Lozano, Mex. Laws, 308.
May 21. 1831. a law was passed creating
commissaries general and commissariats, and
on July 7, 1831, regulations were issued un-
der the law of January 26. The first auditor
was made chief of the first section, having
charge, among other things, of "nationiS
property in which is included, under article
9 of the law of August 4, 1824, that of the in-
quisition and temporalities, and all ot^er
country or town property belonging to um
Federation." 2 Mex. Laws, 329, 341.
The tenth regulation provided that the gem-
eral department should take an exact #«-
count of the number, location, value, co*fedi-
tion, and present method of administratioa
of all the property and estates of the Xation,
in which were included those ol the iaquiji-
tion and temporalities, and all others that
belong to the public exchequer, in aooordanoe
with the law of August 4,. 1824 ; should see to
the thorough collection of the proceeds, as
provided in the law of January 26th and
other laws; and should do whatever it con-
sidered most beneficial in regard to the sale,
lease, or other means of administration that
might be advisable, in whole or in part, of the
property in question.
CertaLin regulations were thereafter pre
scribed, and set forth in a circular of July 20,
1831 (2 Mex. Laws, 351), whereby the com-
missariats general were located in the capi-
tals of certain enumerated states; and^ ai
designated points in othcis, that of Sooora
being at Arizpe; hut the commissaries, if
they thought a change would be adv^nu-
geous, were required to bring it to the notice
of the government 'with their reasons.
Artidee 126 and 127 of these regulationa
read:
•Dt title and in the name of the Mexican Na-
tion and of the supreme govemment. formally
cede, sell, eive, nnd adjudicate the said farming
lands and lands for raising cattle and horsey
which comprise the 4 leagues of the depopulated
town site of Tumacncon and the 2 sltios o< its
stock farm of Calabazas and other annexed
?oint8 already mentioned to the said purchaser.
)on Francisco Alejandro Agullar. by way of
sale, and with all the qualities, solemnities,
firmness, and subsistence the law establishes,
for himself, his heirs, children, and successors,
with all their entrances, exits, lands, timber,
groves, shrubs, pastures, centers, circumfer-
ences, waters, springs, watering places, uses,
customs, servitnaes. and other things pertain-
ing to said possessions, with their Inclosures,
metes and bounds for the snm of $500, at which
they have been sold to said Francisco Alejandro
Agullar. with the precise condition that the
said buyer, and his successors in their case, are
to maintnin the above mentioned agricultural
lands and lands for raising cattle and horses
that comprise the 4 leagues of the depopulated
town site of Tumacacorl and the 2 sltios of Its
stock farm of Calabazas populated, possessed,
cultivated and protected, without passing be-
yond their metes and bounds and without their
Deing totally abandoned: with the understand-
ing that If the said abandonment and depopu-
ladon of said farming and grazing lands should
take place for the space of three consecutive
years, by the neglect or fault of their owners or
Sossessors and tnere should be any person who
euounres them. In such event after verification
of the fact, tbev shall be declared public lands
and shall be sold at public sale, on account of
the national treasury, to whomever should be
the highest bidder, excepting, as Is Just, those
cases where the abandonment, depopulation or
lack of protection are on account of the notori-
ous invasion or hostilities of enemies or epidem-
ics or other like causes, and only for the
f»erlod or periods of such occurrences, caution-
ng as the aforesaid Don Francisco Alejandro
Aguilar and his successors are strictly cau-
tioned that they are to restrict themselves to
thp brlonffings. metes, and bounds of the afore-
-sniO agricultural and grasing lands of the town
«ltt» of Tuninoflcorl and Its stockfarm of Cala-
bazns. coustrnctlng and maintaining on said
pos!*es&iont4 the necpssary monuments of stone
end mortiir under the penalties established by
tho lows In cnse of neglect.
And with the powers, which they and tte
154
divers superior provisions that gorem th*
matter, concede and confer on me. 1 order aod
require respectively of the judges. Justice*,
and local authorities that at present are and
shall hereafter be in the district of San Igntcto,
that, for the sake of the good and prowpt ad
ministration of Justice and In observance of tli«
aforesaid legal provisions they do not permit
the said Francisco Alejandro Aguilar oor bn
successors to be. In any manner, disturbed, an
noyed, or molested In the free use. exeiriM.
property, dominion, and possession of the nld
agricultural lands and lands for raising cAtt\t
and horses of the town site of Tumacacori tad
stock farm of Calabaxas. but rather stiali
watch and see with the greatest emcacy that
they are always protected and malntalDed (■
the quiet and peaceable possession to wfakk
they are entitled by legitimate right, so that
In this manner, they may freely have the b^ee-
fit of, enjoy, possess, sell, exchange, barter,
donate, transfer, devise, cede, and alienate tbe
aforesaid agricultural lands and lands for rait>
ing cattle and horses of the 4 leagues of rbe
town site of Tumacacori and Its stock farm.
Calabaxas. and other annexed polnta at thHr
free arbitrament and election, as sbsolotc
owners and proprietors of said posseaslooa
with tlie understanding also that Jast as foos
as the original titles of said agricultural aod
grazing lands are obtained they shall be ajnrre-
gated to the present ones, and the trancintttal
and delivery of said original documents are cos-
sldered as made and verified from this momeat
In favor of said party In Interest, Doo Fraa
dsco Alejandro Agullar.
In which terms I have Issued this title of
formal sale, transfer, and adjudication to aaM
Mr. Agullar, his heirs and successors, TSeUrvr
Ing It to the former for his security and other
convenient uses, after entry thereof la the
proper place.
Given in the port and village of San PeraaB4a
de Guaymas, on the nineteenth day of tte
month of April, eighteen hundred and forty-
four, authenticated and signed by me. tk*
treasurer of the department sealed with tbe
seal which this treasury uses, before my wo^rt-
signed attendant witnesses. In the abeenee of t
notary of the treasury or a notary public tkcct
being none, according to law.
Igaaclo LfOfca
Witness: Jose Diego Labandenu
WltBsss: Jose Maria Mendoaa.
t^^
11
1817.
Faxoh t. U&itied BxATsa.
:£5;3-2l50
*126. AH porcliaaes, sales, and oofntmets
Dtde on scconnt of the treasury, vhateTer
be ihai purpose, shall be made by the oom-
Bussaries general sitting as boards <^ sale;
but before c<mvoking them, it shall be abao-
Inidy necessary to receive first the order
therdor, either from the supreme govern-
meni, eommunicated directly or through the
tntsory generaJ, or rather from the directory
of revenues, when it ridates to mattere euAh
jeet lliereto.
t5S] * "127. Said board shall hold its sessions in
the ro6m most suitable for the purpose in the
eofflmisBariats, or in the public place nearest
to those offices, and the r^^ular members shall
be the commissary or suboommissary, who
shall preside, the senior officer of the troasury,
or the one who acts in his stead, and the at-
loniey general, where there is one, and each
a these employees shall take the place or seat
to whidi he is entitled in the order in which
they aie named."
Besides the regular members, it was pro-
vided by article 128 that there should be
tpmtl members, depending on the character
ol the sale, purchase, or contract being made.,
as for instance, when it related to the offices
or revenues in the federal district subject to
the directory general, the auditor in charge
should attend; and if subject to any of the
other departments, the chief clerk of the bu-
reau of accounts, etc If it related to supplies
for army service, the officer appointed by the
proper inspector should be present; if to busi-
ness pertaining to the artillery arsencds, etc,
the chief officer thereof; if to hospital ser-
yiee, the first assistant of the medical corps ;
if to fortification works, the chief of the corps
of GDgineers; and if, finally, to other matters,
the employee of tne nearest related depart-
ment appointed by the commissary general.
Timely notice was required to be given to
the regular and special members of the day
sad hour of the sade, which ordinarily should
be held at 10 o'clock in the morning.
It was also provided that if there was a
notary public in the place, he should neces-
sarily be present at the sessions of the board,
and that whatever was done therein should
be certified to by him, or by two attending
witnesses, if there was none; that the sales
or purchases intended to be made should be
published for at least eight days beforehand
by placards put up in the most public and
freipented places, and also inserted in news-
papers of greatest circulation, if there were
iny. caie being taken that the notices con-
tained the necessary information about the
matter and its most Pflsential circumstances;
that whei the sale was opened, and the cus-
tooiary prodaniations made, all lawfully
IS4)nade bids should be received *untn the day
of final sale, which should be made '^ the
biddtr who oders the most advantagca to the
treasury, as determined by an absolute ma-
joiiiy of the votes of the board, which niinat?
tad cTcrything that may have oocorred ct
tbe sale diaJI be entered on. the book, iv:faich
tbt eamansttry and atibeomtiiSaBaxiea shall
Icep far the purpose, and wluch the members
Aall sign with cttcidiBg wEtocaaea or with
inii.3.
the notary, who, besides, shall draw up all
other necessary papors. In the absence of a
notary, a clerk, whom the commissary shall
bring for the purpose, shall draw up the min-
utes end the conclusions.'' The proceedings
were then to be forwarded with a report
thereon to the supreme s^ovemment, "without
whoso approval the purchase, sale, or contract
shall not be carried into effect;" and it was
also provided that "when there is evidence
that any member of the board has bought or
sold at the sale, himself or through a third
persor, the snle shall be void and he shall be
punished with the penalties the laws impose
upou those who couuiiit like abuses."
In 1835 the state legislatures were ab(d-
fehed and department bodies established; aiid
the bases for a new oouaUtuition were adopt-
ed, followed by such constitution dividing tne .
country into departments, the interior
government of which was intrusted to the
governors in subordination to the general
government. 3 Mex. Laws, 75, 89, 230, 258.
By a de<?ree of April 17, 1837, the principal
officer of the general treasury in each de-
partment was designated as a superior chief
of the treasury, and on him and his subordi-
nates were conferred by article 92 the powers
and duties foruieily exercised by the com-
misbary general and his subcommissaries, "in
so far as they do not conffict with this de-
cree, for in that renpect all existing laws
stand repealed." 3 Mex. Laws, 363.
ArtidiBs 73, 74, 75, and 76 were as follows:
''73. All the purchases and sales that are
offered on account of the treasury and exceed
five hundred dollars shall ue made neces-
sarily by the board of sales, which, in the
capital of each department, shall be composed
of the superior *chief of the treasury, the de-[2691
partmental treasurer, the first alcalde, the at-
torney general of the treasury, and the audit-
or of the treasury, who shall act as secretary.
Its minutes siiall be spread on a book which
shall be kept for the purpose, and s^all be
signed by all the members of the board, and
a copy thereof shall be transmitted to the
superior chief of the treasury, for such pur-
poses as may be necessary and to enable him
to make a report to the supreme government.
'Ti. The superior chiefs shall hold meet-
ings of the boards of the treasury at least
twice a month, and when they consider it
nccessar}' according to the difliculty and im-
portance of the business. These boards shall
be composed of said chief, the departmental
treasurer, the attorney general of the treas-
ury, the principal collector of the revenues
and the auditor of the treasury, who shall
act as sei;retary thereof.
"76. The object of the board of the tread-
ury shall be to procure the prosperity and
increase of the revenues of the treasury, the
most easy and prompt collection thereof, to
promote the economies that should be made,
to expedite such grave matters of difficult
solution cs the superior chief may bring to
its knowledge, and to maKe a report to the
latter of bod management, improper conduct,
failure to comp)}* with their duties and other
oniiasions of which they may have knowledge,
165
SUPHXMB COUBT OT THS UkITED STATRS.
Oct.
«r rmy 1iav6 clbsenred in the employees of the
treasury of the department.
**7C. The minutes of the board shall be
spread on the proper book, which shall be
signed by all the members thereof, and ar
authenticated copy transmitted to the supe-
rior chief of the treasury to enable him to
make a report to the supreme goyemment,
when the case requires it."
By a law of December 7, 1837, it was made
the duty of the governors, among other
things, ^ preside over the boards of sale
and of the treasury, with power to defer the
resolutions of these latter until, in the first
or second session thereafter, the nmtter under
oonrideration is more carefully examined
iato." 3 Mex. Laws, 443.
My article 140 of a decree oi June 13, 1843,
Jit was made the duty *of the governor of each
department to publish the decrees of the
president and cause them to be complied
with; and by subdivision 10 of article 142,
the governor was made the chief of the pub-
lic treasury of the department with general
supervision of the same. 4 Mex. Laws, 428.
And in passing it may be remarked that
there is absolutely nothing in this record to
indicate that tiie governor participated in
any way in the act of sale, while the terms
of the testimonio clearly show that the de-
partmental treasurer proceeded and assumed
to proceed upon his own sole authority.
December 16, 1841, the office of the supe-
rior chief of the treasury created by the de-
cree of April 17, 1837, was abolished, and it
was provided that the departmental treasur-
ers snould continue for the present to per-
form the functions of their office as estab-
lished by the law creating them, and also to
perform those of the discontinued chiefs of
the treasury, except such as were assigned to
l^e commandants general, who we^e to be in-
spectors and visitors of the .treasury offices,
and to see that the public revenues were well
and faithfully collected, administered, and
disburaed; and to make timely reports to
the supreme government of what they ob-
served, which should be brought to its atten-
tion. 4 Mex. Laws, 75.
On February 10, 1842, the following decree
was issued:
''Antonio Lopez de Santa Ana, etc.
"Article 1. The boards of sale in the sev-
eral departments will proceed to sell, at pub-
lic auction, to the highest bidder, the prop-
erties (fincas) situat^ therein that pertain
to the department of temporalities.
''2. No bid will be admitted that does not
cover the amount conddered to be the value
of the property (fincas), computed from the
amount of the leases, which shall be con-
sidered as the interest thereof, at the rate of
five per cent.
'*3. The bids shall be made for cash, which
shall be paid when the sale is approved, less
the amount of the burden imposed on each
property (fincas), which the buyers sftiall con-
tinue to recognize with a mortgage thereof.
"4. No action or claim, which the actual
lessors of the property (fincas), in question,
pumfpuij intend to set up for * improvements or
166
I
under other preltext shally in any maimer,
barrass the proceedings of the board of aik ia
making the sales, but the right of partiei in
interest to apply to the supreme goyernmeat,
or to the proper authorities, shall remain in-
tact.
Therefore I order this to be printed, pub-
lished, and circulated, and demand that it be
complied with." 4 Mex. Laws, 114.
Lopez certified that it was in virtue of this
decree that he had sold the lands in queitioa
as belonging to th^ class of tempo^tiet,
and as b«ing of a value not exceeding $500,
in which case he assumed that he was au-
thorized to sell irrespective of the board of
sales in view of article 73 of the decree of
April 17, 1837. The arcroment is that as that
article provided that all purchases and sales
exceeding $500 should be made necessarily
by the board of sales, therefore all property
under that value could be sold by the de-
partmental treasurer alone; but the difficulty
is, as pointed out by the court of private
land claims, that even if that provision op-
erated in the manner contended for, it had
no application to a sale under the decree of
February 10, 1842, which specifically directed
that the sales should be made by the board,
and contained nothing to suggest that the
value of the property affected uie power and
duty of the board in any way.
The decree recognised the existence of the
boards of sale as the only proper official or-
gans to accomplish the r«ults desired, and it
was this decree that was relie4 on as justify-
ing the proceedings. If these Isnds were not
of the temporalities, then the basis of the
sale utterly failed, as the decree applied only
to property of that class, and if of the tem-
poralities the sales were to be made by the
board.
In relation to article 73 of the law of 1837,
some further observations may be added.
The regulations of July 20, 1831, and the
law of April 17, 1837, treated of the sane
subject-matter, and must be read together;
and prior laws, so far as not eonfficting, were
expressly saved from repeal by article 92 of
the latter act
*By § 73, the board of sales was nece88ari]j[tSl
to make sales exceeding $500, but Dothia^
was said as to sales for less than that hud.
This would seem to have left the law of 1831
in force in respect of the making and the cob-
duct of sales of property having a value be-
low that amount, and whether the board of
sales consisted of the membership prescribed
by § 73, or was composed in some respects of
a different membership, is not materiaL
While these various laws are rather eoafos'
ing in their number and minuteness, nothiaf
is clearer than that the power to make sski
and grants was vested m the treasury de-
partment* of the nation and governed by
strict rules and regulations, none of which
contemplated that any single officer could
make tne sales. It is enough that the de-
partmental treasurer did not possess the
power, acting singly and on his own respoa-
sibility, to conclusively determine to whsi
class lands belonged, and their vahia, sad
171 U«.
lajrr
^NuuTUJUUi Pacific Railroad Co. ▼. 8mitr«
208-260
oAving dedded these points, thereupon to
sxerdae the sole power of sale.
Tumscacori, Calabezas, and Huebabf are
Mid to have been originally separate and dis-
tiBet pneblos and missions, of which the two
Utter were abandoned as early as December,
1806, when the native Indians of Tumacaoori
and the governor of said Indiana presented pe-
titioiis to the governor and intendente conde
to give them title in accarduice with the
rojml instmetioDa 3f October 15, 1764, and o<
aittde 81 of the royal ordinances of December
4, 1786 (alleging the loes or destruction of
their eld thle pigpen), of the lands embraced
in the fundo le^^ and the estancia of each
wmMo and mission, whereupon the grant of
1807 was made.
The tttnlo refers to some lands acquired by
purchase, though the record leaves tnat mat-
ter entirely vague and uncertain, and declares
the gnmt to St made to the pueblo aad na-
tbet of Tumaoacoii, that they may "enjoy
the use and freely fNMsess at wiu and for tiieir
own benefit in community and individually,
and lor the decent support of the church of
ssad mlsBion, but under the condition that in
■0 ease and in no manner shall they alienate
at any time any part of said lands which are
idjudieated and assigned to them, since they
|K6>re all *to be considered as belonging to the
B^nblic and community of natives alone, for
tfieir proper use, as well for sowing purposes
IS for stockraismg and the increaaed pros-
perity of the same."
This was in accordance with the general
mle that the iniasi<maries and Indians only
setjuired a usufruct or occupancy at the wiU
of the sovereign. United Btate$ v. Cervantes,
18 How. 553 [15: 484].
Prior to 1829, the tribunal of the inquisi-
tloB had been abolished by the Oortes, and
the monastic and other religious orders sup-
pressed, and <m the 10th of May of that year
it was ordered, through the department of
the treasury, tAiat "the property in which
eonsist the funds of the temporalities of the
ez-Jesusts and monasticft and the nual end
uhan estates belonging to the inquisition" be
•old at public sale to the best and highest
hidder. 2 Mek. Laws, 108. May 81, 1829,
the eommiasary general of Mexico published
a *list oi the urban and rural estates relat-
iig to the temporalities of the ex-Jesuits and
suppressed monastico with a statement of
wk values, the burdens they carry, and an-
Bu^ revenue" (Ibid. 117), which did not in-
vade the lands in question. The depart-
imtal treasurer did not claim, and manifest-
ly did not acquire, the power to sell these
Itads under the order of May 10, 1829, or the
v^gulations of July 7, 1831, besring on that
•object
% a decree of April 16, 1834 (2 Mex. Laws,
689), the missions of the Bepublic were secu-
htfized, that m to say, converted from sacred
to secular uses, said so far as these lands
•oold have been regarded as temporalities,
^t is, profane property belon^ng to the
^^reh or its ecclesiastics, "Uiat decree
^hinged their condition.
Aiid, ss many years bsfore the sale in ques-
171 V. 8.
tion, the lands of Uiis puefblo and mIssioB
were iU>andoned, it would seem that they thus
bcK»me a part of the public domain of tha
nation, and that as such the only laws appli-
cable to their disposal were the laws of tha
nation in relation to its vacant public land%
to which the proceedings in this instance do
not purport to have conformed or to have
been made under them.
We concur with the court of private land
claims that in either *view there was a fatal[
want of power in th^ departmental treasurer
to make the sale, and it is not asserted in the
petition, nor was any evidence introduced to
show that his action was particinated in or
ratified by the governor, or by the national
government in any manner. And this is not
a oase in which the sale and grant can bo ^
treated as validated by presumption.
Decree affirmed.
NORTHERN PACIFIC RAILROAD COM-
PANY et al., Plffe. in Err.,
e.
PATRICK R. SMITH.
(See 8. C. Eeporter's ed. 260-276.)
Grant to railroad company — ewtent of oooft^
pation.
L The occupotlon and survey of lands with In-
tent to locate a town site thereon, bnt with*
out filing a plat or obtaining the adoption of
the town site or a patent therefor until after
a railroad is located thereon, does not prevent
the land from being a part of the pnblic do-
main for the purposes of a grant to the rail-
road company.
%. The fact that only 26 feet In width of Its
right of way has been occnpled for railroad
pnrposes, under a grant of 200 feet on each
side of the track, does not prevent a railroad ;
company from claiming the full width of the >
grant as against persons who had occupied
the premises for the pnrpose of making a
town site location thereof, bnt had not ac-
quired a right thereto as against the railroad
company when the road was bnllt.
[No. 93.]
Argued Vovemher 4, 5, 1897. Ordered for
Reargument January 10, 1898. Reargued
March 21, 1898, Decided May SI, 1898.
IN ERROR to the United States arcuit
Count of Appeals for the Eighth Circuit to re-
view B judgment of that court affirming the
judgment of the Circuit Court of the United
States for itihe Dletriot of North Dakota, in
favor of the nlaintiff, Patrick R. Smith, in an
action brought by him sgainst the Northern
Pacific Railroad Company to recover the pos-
NOTB. — A$ to pre-emption right$, see note to
United States v. Fitsgerald, 10 : 786.
That patents for land mav be set aside for
fraud, see note to Miller v. Kerr, 6 : 881.
As to ertom in nun^eps and desoriptioni in ,
patents for landc; hofo oonMtrued, — see note to •
Watts V. Lindsey, 6 : 423.
As to land grants to railroads, see note to .
Kansas P. R. Co. v. Atchison, T. A 8. F. B. Oa.
28 : 704.
167
960-268
SuFBXMB Court of thx Unitkd States.
Oct.
* I
MSfiioii of HnA. in iikt cyty of Bismarck and
territory of Dakota, now state of North Da-
kota. Judgments of the Circuit Court of Ap-
peals and of the Circuit Court reversed, and
cause remanded to the latter coant with di-
rections to enter a judgment in favor of the
defendants.
See same case bek>w, 19 U. 6. App. 131, 58
Fed. Bep. 513, 7 C. C. A. 397.
Statement by Mr. Justice Shirast
This was an action ])rouffht by Patrick K.
Smith on the 28th day o? December, 1S91,
in the circuit court of the United States for
the district of North Dakota against the
Northern Pacific Railrocui Company. The
complaint and answer were as follows:
''The complaiot of tho above-named plain-
(Ml]tifr respectfully ^shows to this court and
alleges that the plaintiff is, and ever since
the organization of the etate of Noith Dakota
has be^, a citizen thereof and that prior
thereito he was during all the time hereinafter
mentioned a citizen oi the territory of
Dakota,
''That during all the time hereinafter
mentioned the above-named defendant has
been and still is a corporation created by and
existing under and in virtue of an act. of the
. Congress of the United States of America,
entitied 'An Act Granting Lands to Aid in
the Construction of a Railroad and Telegraph
line from Lake Superior to Puget Sound on
the Pacific Coast, by the Northern Route,'
am>roved July 2, 1864.
rThat on the 14th day of September, A. D.
1876, the plaintiff -became and ever since has
been and still is duly seised in fee simple and
entitled to the possession of the following-
described real property situated in the city
of Bismarck, in the county of Burleigh and
territory of Dakota (now, and since the
organization thereof under a state govern-
ment, the state of Norch Dakota), to wit:
Lots numbered five, six, seven, eight, nine, ten,
eleven, and twelve, in block number eight, ac-
cording to ihe recorded plat of the city of
Bismarck, Dakota Territory, together with
the hereditaments, privileges, and appurte-
nances hereof and thereto belonging.
"That said defendant more than six years
prior to the .commencement of this action
wrongfully and unlawfully went into posses-
sion of the premises above described. That
said defendant ever since said entry has
wrongfully and unlawfullv retained and with-
h^d, and still does wrongfully and unlawfully
retain and withhold, the possession thereof
from the plaintiff. And that the use and oc-
cupation thereof during said time was worth
at least five thousand dollars a year. That
the damage to the plaintiff by the wrongful
withholding d the possession of the premises
as aforesaid is the sum of thirty tnousand
dollan.
"Wherefore the plaintiff demands jud^ent
against said defendant for the possession of
said premises and for the sum of thirty
thousand dollars, bis damagei as aforesaid,
together with his oosts and disbursements
Herein.*
168
^'The defendant for amended answer tothe[^
complaint herein:
"First For a first defense, alleges—
"That the land mentioned in the complaint
is situated within two hundred feet of the
center line of the roadbed of its Ime (Mf xailroad
constructed through the state of North
Dakota, and has been for more than twenty
years in its lawful possession as its r^t id
way, roadbed and depot grounds, and that the
same was granted to it as a right of way by
the act of Congress described ia the eom-
plaint.
"Admfts that at all times mentioned in the
complaint the plaintiff was a resident of the
city of Bismarck in the state of North
Dakota, and further admits thst the de-
fendant is a corporation created by the said
act of Congress. Denies each and every al-
legation in the complaint not hereinbefore
specifically admitted, and it ^>eciftciU]y deniei
that by reason of any of the allegations or
things in the said complaint set f<Mrth the
plaintiff has been damaged in any sum what-
ever.
"Second. For a second defense —
*That on the ninth day <4 May, 1889, the
plaintiff impleaded the defendant in the dis-
trict court within and for the county of Bur^
leigh, in the sixth judicial district for the to*
ritory of Dakota (now the state of Koith
Dakota), for the same cause of action for
which he has impleaded it in this actioB.
"That at the time of the commenoemeni <A
this action, said action was pending ia said
court and is still pending therein.
"Third. For a third defense—
"That on the 3l8t day of January, 1878, the
defendvint recovered judgment against tht
plaintiff for the possession of a portion of the
property described in the complaint, to wit,
that portion thereof described as lots elevea
and twelve, for six cents damages and lor
costs, and that said judgment was
rendered upon the cause of action
in the complaint, which judgment is in full
force, unreversed, and unsatisfied.
"Wherefore, the defendant demands jndf^ •
ment: Ist That the complaint be dismissed.
2d. For its costs and disbursements in this
action."
*The ^findings of fact and law nuule bj tbc(M
trial court were as follows:
"The property in controversy, the same bt-
ing eight lots in the city of Bismarck is
North Dakota, described as lots five (5) to
twelve (12) both inclusive, in block eight (8t,
in the city of Bismarck, whi<^ was foraieriv
known as Edwinton, and the name of whici
was changed by act of the legislature of th«
territory oi North Dakota to 'Bismarck*
was part of an eight v (80) acre tract of laod
whicn was entered oy John A. McLesa as
mayor of the city of Bismarck, in behsif of
its inhabitants, under the to^^m-site act (Re-
vised Statutes, § 2387), and was patented to
him thereunder July 21, 1879.
"The corporate authorities of that ditj sa^
sequently and more than six years prior to
tihe commencement of the action cuuvejod
these lots to Patrick B. Smith, the plantifl.
I'M;
vm.
NoRTHJCKK Pacific Railboad Co. t. Smith.
263-266
dgliAy (80) mere tract, on whiclh these
Mi were eltuated, wm selected as the looa-
Ika ef a portioii of this town site, and sfor-
T^yed prior to June 20, 1872. In tdie year
1872 toe attorney of the Lake Superior A
Paget Bound Land Company — ^the company
that flrrt made this seloction — commenced
and thereafter continued to sell lots upon this
town site according to a plat thereof, which
was then made, aikl subsequently, on Febru-
aiy 9, 1874, recorded in the- office of the
register of deeds of the county in which the
kid was situated. By the first of January,
1873, thirty buildings had been erected on the
town site, and from that time until the
patont was issued the population of the cilty
and the improvements in it continued to in-
crease. It was upon the town site thus
sdedted and the plai thus made, which
WIS afterw«irds adopte*! as the pla/t and site
el the city of Bismarck, tha4; the patent to Mc-
Lean was based, axMi this patent oontained no
reeenration ol any right of way to the North-
ern Pacific Bailroad Company.
'The congressional townShIp embracing the
premiaes in question was surveyed in the
months of October and November, 1872, and
the pkt thereof filed in the General Land
OiBee in March, 1873.
''On February 21, 1872 the Northern Pacific
K64]Bailpaad 'Company filed in the Department
of the Interior the map of its general route
eaat of the Missouri river. This route passed
about three quarters of a mile soutfti of this
dghtyacre tract On May 26, 1873, it filed
with the Secretary of the Interior, in the of-
fice of the Commissioner of the General Land
Office, and he accepted, its map fixing the
definite locati<Hi of its line. The Intexior
Departinent thereupon designated such line
upon its record maps for its use, and oopies of
rach record maps were forwarded to and re-
Bsin on file in the office of the register and
receiver, of the land office at Biamarcic, hav-
ing jurisdiction of that part of the public
domain embracing the premises in question.
Hie line thus fixed passed about two miles
•oath of this eighty-acre tract During the
year 1872 grading was done by the company
on this line extending in a continuous line
from its grading east of the township in
which this tract was located to a point one-
quarter of a mile west of the west line of this
€i^ty-acre tract extendcMi south to its in-
toseetioQ with the srading. During the
year 1872 there was a Une staked out across
thia tract substantiaUy where the railroad is
now eonstructed, but no grading was done on
thia line until the spring of 1873. In the year
1873 the railroad was constructed across this
tiaet and has since remained and been oper-
ated npon it The grading on its line of
definite location two mUes south was
•Anadoned. The lots in question are within
two hundred feet of the main track of this
nilnMid as actually constructed and more
than two miles from its line of definite loca-
teis shown on its map filed to definitely fix
^ fine, and bave been occupied by the de-
Maat, through Its tenants, during the
Mod in question; hut no part ol the same,
exmpt the rear twenty-five feet thereof
ever been oooupied lor raUzoad purposes.
**In the year 1877 the defendant commenced
an action in the district court of Burleigh
county, territory of Dakota (now the state ol
North Dakota), in which county the prem-
iaes next hereinafter deeciibed were and an
situated, against certain parties, including the
plaintiff herein, to recover the possession of
part of the premises here in question, which
portion is particularly described as follows:
Commencing at the*southeast comer of Main[4S65)
and Third streets in the dty of Bismarck, the
same being the northwest comer of block
eight (8), running thence east along the
south line of said Main street, a distance of
fifty (50) feet; tlience south, parallel vnth
the east line of said Third street, a distance
of seventy-five (76) feet to said east line ol
said Main street, a distance of fifty (50) feet,
to said Third street; thence north, along said
east line of said Third %treet, a distance ol
seventy-five (75) feet to the piace of begin-
ning. Anu such proceedings were duly had
in said action in said court (the same being
a court of competent jurisdiction of the par-
ties and subject-matter of said action) that
the defendant in the action herein (the plain-
tiff in the action last above referred to) duly
recovered in said action a judgment against
the defendants in that action including the
plaintiff in this action, for the possession ol
the premises last above described and for
nominal damages for the withholding thereot
*'That the value of the use and occupation
of the premises in question, for six years
prior to December 28, 1891, the date of the
commencement of the action, is the sum ol
twenty-six thousand dollars.
*'From the foregoing facts I find, sji cob-
elusions of law, that the plaintin is entitled
to the possession of the premises above de-
scribed, and to recover from the defendant
the sum of twenty-six thousand dollars with
interest thereon from the 28th day of Decem-
ber, A. D. 1801, at the rate of seven per cent
per annum, and his costs and disbursements."
Mr. C. W. Bunn for plaintiff in error on
both arguments. Mr, C. W. Holcomb filed
a supplemental brief for plaintiff in error by
leave of the court.
Mr, Hiram F« Stevens for defendant in
error on both arguments.
Mr. Justice Sl&iraa delivered the opinion
of the oourt:
By the second section of the act of July 2,
1804, creating the Northern Pacific Railroad
Company, there was granted •to that com-[2661
pany, its successors and assigns, the right of
way throuffh the public lands to the extent
of 200 feet in width on each side of said rail-
road where it may pass through the pubUe
domain.
During the year 1872 there was a Une
staked out across the tract, a portion ol
which is in dispute in this case, substantially
where the railroad is now constructed, but
no grading was done on this line until the
spring of 1878. In the latter year the rail-
159
266-268
SuPRBMB Court of thb Unitkd Statbs.
Oct.
road was constructed across this tract, and
Has unce remained and been operated upon
it. The lots in question are within 200 feet
of the main track of this railroad as actu-
ally constructed, and have been occupied by
the defendant during the entire period since
the construction of the road, excepting lots
«leven and twelve, which during about three
years were in the adverse possession of the
firm of Browing & Wringrose and of Patrick
B. Smith, the defendant in error, as the ten-
ant of said fimi.
In 1877 an action of ejectment, to recover
sossession of said lots eleven and twelve, was
brought by the Northern Pacific Railroad
Company, in the district court of the terri-
tory of Dakota against Browing & Wring-
foee and said Patrick K. Smith, which action
resulted, on January 31, 1878, in a final Judg-
ment, still subsisting, against said Smith
and the other defendants.
On the trial of the present action, which
was brought m the circuit couit of the Unit-
ed States lor the distiidt of Noith Dakota
in 1893, and which brought into question the
title and possession of lots five, six, seven,
eight, nine, and ten, as well as of lota eleven
and twelve, the plaintiff, Patrick E. Smith,
set up, as the basis of his title and right of
possession, a deed of conveyance by the cor-
porate authorities of the dty of Bismarck
of the said lots as part of a town-site plat
patented to John /L McLean, as mayor of
eaid city, on July 21, 1879. The recora does
not disclose a copy of such deed to Smith,
nor its date. In his complaint Smith alleged
that '*on the fourteenth day of September, A.
D. 1876, he became and ever since has been
and still is duly seised in fee simple and en-
titled to the possession" of the property in
|f 67]dispute. *In the findings it is stated that the
city authorities conveyed these lots to Pat-
rick R. Smith, the plaintiff, aubaequently to
the granting of the patent to the mayor on
July 21, 1879.
The defendant, the Northern Pacific
Railroad Company, at the triid relied on its
grant of right of way from the United States
on June 2, 1864, on its possession of lots six,
seven, eight, nine, and ten since the construc-
tion of the railroad in 1873, and of lots eleven
aaod twelve since their recovery under the
action and judgment in 1878, and the com-
pany likewise put in evidence the record of
■aid suit and recovery as constituting res
judicata.
The learned judge of the circuit court, af
ter stating the foregoing facts, and some
others not necessarr to be here mentioned,
entered judgment that the plaintiff was en-
(tirtled 4x> recover the possession of cdl of eaid
lots and the sum of $26,000, as the value oi
the use and occupation of the premises in
question, for six years prior to Dumber 28,
1891, the date of the commencement of the
action; and that judgment was affirmed by
the circuit court of appeals. 32 (J. S. App.
673.
When it was made to appear that, by the
2d section of the act of June 2, 1864, there
mms granted to the Northern Pacific Rail-
160
road Company a right of way throudi \
public lands, to the extent of 200 net
width on each side of said railzoad; tlnt» im
pursuance of said grant, the railroad eoat-
pany had constructed ita road in 187S» is-
clumng in its right of way the land in d^
pute; that, on November 24, 1873, conupie-
sioners, appointed under the 4th sectiuB oi
said act, reported that they had exammed
the Dakota division of said ndlniad (ia-
eluding that portion of the same whidi eor-
ered the land in controversy) and that tbey
had found its construction and eqnipiiiat
throughout to be in accordance with tne ia-
strucUons furnished for their guidanee by
the Interior Department, and aooordiB^y
recommended the acceptance of the road by
the government; that said report had beea,
on December 1, 1873, approved by the Ptm-
dent; and that the company had maintained
and operated said railroad unce its said con-
struction to the time of trial, undoubtedly
*there was thus disclosed a prima imam titk[fl
and right of possession of the disputed tract.
To overthrow the railroad company's caas
the plaintiff depended on an alleged eonrey-
ance made to him after July 21, 1879, by the
city authorities of the dty of BismaruE, of
the lots in dispute in tias suit, and gave evi-
dence that the 80-acre tract on wh^h these
lots were dtuated was selected as a portioa
of a town site and surveyed prior to June 20,
1872, by the Lake Superior & Pnget Souad
L^uid Company, and that said land oompany
made and, on February 9, 1874, recorded, a
plat thereof^ and that said town site and plat
was afterwards adopted as the town site of
the dty of Bismarck under the town site act
of the United States (§ 2387, Rev. SUt.) and
was patented as such town site to J<^ A.
McLean, mayor of said dty, on July 2U
1879. The congressional township embne-
ing the premises in question was surveyed ia
the months of October and November, 1872,
and the plat thereof was 'filed in the Gaierml
Land Office in March, 1873.
It is evident that when in 1873 the North-
em Padfic Railroad Company took posws
sion of the land in dispute, as and for its
right of way, and constructed ita road over
and upon the same, if the tract so taken wis
then part of the public lands, only the
UnrUsd States could complain of the act of
the company in changing the location of its
tracks from that previously sdected. But,
so far as this record disdosee, the United
States did not object to such change of loos-
tion, but rather, by having, through the cob-
missioners and the Preddent, approved and
accepted this part of the road when cob-
artructed, must be deemed to have acquiesced
in the Change of location as property mada
But was the land in question part of the
public domain in the spnng of 1873? It eer
tainly was, unless the occupation, at that
time, of those who afterwards, in 1879, ob-
tained a patent for a tract of 80 acres, indad-
ing the land iu question as part thereof, for
a town site, deprived it of that character.
It has frequently been dedded by thk
court that mere oocupartioo and improveoMSt
17117.&
.an
X^uKTUKlUf I'ACiiriO ILULBOAD CO. V. SmiTH.
269-27i
)\aL the public lands, with a view *to pre-
emptioOi do not confer s vested right in the
Und 80 occupied; that the power of Congreae
over the public lands, as conferred by the
Constitution, can only be resti^ained by the
courts in cases wliere the land has ceased to
be government property by reason of a right
vested in some person or corporation, that
luch t verted right, under the pre-emption
laws, is only obtained when the purchase
money has been paid, and the receipt of the
proper land officer given to the purchaser.
Frithie v. Whitney, 9 WaU. 187 [19: 668];
The Yosemite Valley Case, 15 Wall. 77 [21 :
9IZ]\Buwton V. Traver, 130 XJ. S. 232 [32:
920]; Northern Pac. B. B. Co. ▼. Colbum,
164 U.S. 383 [41:479].
If, then, one seeking to appropriate to him-
aelf A portion of the public lands cannot, no
matter how long his occupation or how large
his improvemenrts, maintain a right of pos-
session against the United States or their
grantees, unless he has, by entry and pay-
ment of purchase money, crea;ted in himself a
vested right, is one who claims under a
town-site grant in any better position?
No cases are cited to that effect; nor does
there seem to be any reason, in the nature of
things, why rights created under a town-
ate settlement should be carried back, by
<^)eration of law, so as to defeat the title of a
party who had, under color of right, taken
possession and made valuable improvements
Wore the entry under the town-site act
It is one of the findings of fact that, in the
year 1872, the Lake Superior & Puget Sound
Land Company occupied a tract of land, in-
cluding within its boundaries the land in dis-
pirte, but it is also found toat no plat thereof
ifM filed in the register^ office tintil Feb-
ruary 9, 1874, a year after the railroad com-
pany bad gone into possession and con-
ttnicted its road, and that tihe patent was not
granted to the mayor in behalf of the city of
Bismarck till July* 21, 1879. It is also one of
the findings that tho corporate authorities
did not convey these lots to Patrick B. Smith
till after the grant of the patent. '
The record contains no copy of the deed to
Smith, nor statement of any consideration
paid by him, nor of the date when, if ever, he
w^ into actual possession.
V^O] •In such a state of facts will the law over-
turn the title of the railroad company by
imputing to Smith the antecedent possession
of the Lake Superior & Puffet Sound Land
Company? Whatever may he his rights to
the land outside of that in possession of the
railroad company, must it not be inferred
that he bought subject to the public high-
way? It is found that in the month of June,
' 1873, the railroad had been constructed
■cross this tract, and has since remained
fnd been operated upon it; and it is hard to
imagine what m)tice more distinct and act-
Qtl could be given than that afforded by the
operation of a railroad. Moreover, this rec-
<^ discloses that Smith on or about Novem-
hor 1, 1876 (more than three years after the
Mipletion of tihe railroad), went into posses-
Mi of a portion of the land in dispute as
171 V. S. U. S., Book 43. 11
a tenant of other parties, and that he
ousted therefrom by a final judgment in an ' .
action of ejectment at the suit of the railroad ',
company on January 31, 1878.
Apart from the legal effect of that judg-
ment as res judicata, it is thus quite appar-
ent that Smith thereby was visited with no-
tice of the claim oif the railroad company.
But suppose it be conceded, for the sake
of the argument, that the Lake Superior & *
Puget Sound Land Company made the first *
entry, and that the city of Bismarck and
Smith OS its grantee could avail themselvea
of such entry, still the proof is that the rail-
road company completed its road over the
land before the town site was patented, and
before Smith obtained his conveyance. To
acquire the benefit tendered by the act of
1864 nothing more was necessary than for
the ro^ to be constructed. The railroad
company by accepting the offer of the gov-
ernment obtained a grant of the right of way,
which was at least perfectly good as against
the government. And be it further con-
ceded, but not decided, that the railroad
company when it changed its route, after
the filing of its map of definite location, lost
its priority of right under the grant of the
act of 1864 as against subsequent grantees of
the United States who obtained title before
the actual construction of the railroad, and
that the railroad company could only legally
proceed under the exercise of its right of em-
inent domain, it still 'remains, as we think,[271]
under the facts of this case, that Smith could
not maintain his present action seeking to
oust the company from possession of its
right of way and railroad constructed there-
on.
There is abundant authority for the propo-
sition that, while no man can be deprived of
his property, even in the exercise of the right
of eminent domain,. unless he is compensated
therefor, yet that the property holder, if cog-
nizant 0^ the facts may, by permitting a rau-
road company, without objection, to take
possession of land, construct its ^ack, and
operate Its road, preclude himself from a rem-
edy by an action of ejectment. His remedy
must be sought either in a suit in equity, or
in a proceeding under the statute, if one be
provided, regi3ating the appropriating of
private property for railroad purposes.
Such were the facts in the case of MoAulay
V. Western Vermont B. B. Company, 33 Vt.
311 [78 Am. Dec. 627], and where Chief
Justice Bedfield delivered the opinion of the
court, a portion of which we quote:
"It hein^ admitted, as it seems to be, that
the plaintiff had full knowledge of the pro-
ceedings of the company to construct and lo-
cate their road upon his land, before and dur-
ing all the time of tho construction, and that
he did not interfere in any way to prevent
the occupation of the land for the purposes
of the road otherwise than by forbidding the
hande working on the road until his damages -
were paid, and that only on one occasion, it ^
becomes an important inquiry whetdier he ^
can maintain ejectment for the land by rea- •
jK>n of the nonpayment of his damages..
161
871-274
SUPHKMB COUBT OT THX UmITBD STATES.
Oct.
1:1
I
■ \ \
J
i:.'
1
1*
« • • It is undoubtedly true that, ac-
eording to our general railroad statutes and
the special charters in this state, the pay-
ment or deposit of the amount of the land
' damages assessed or agreed is a condition
precedent to the vesting of the tittle, or of any
right in the company to construct their road,
and that if they proceed in such construction
without this, tney are trespassers. And
this haa been repeatedly so held by this
court
"ThiB may have led to the misapprehension
in the present case, but it certainly is a very
[S72]Beriou3 misapprehension. In*these great pub-
lic works the shorteet period of dear acqtiles-
oence, ao as fairly to lead the company to in-
fer l^at the papty intends to waive his oklm
for present payment, will conclude the right
to assert the claim in any such form as to
atop the company in the progress of their
works, and especially to stop the running
of the. road after it has been put
in operation, whereby the public acquire
an important interest in its continuance.
The party does not, of course, lose
his claim or the right to enfqrce it in all
proper noodea. He may possibly have some
rights analc^oua to the vendor's lien in
England, and here till the legtokiture cut it
off. But it ia certain, according to the Eng-
lish decisiona, that he cannot stop the work,
and especially the trains upcm the rocul, if
he has in any sense, for the shortest period,
clearly given to the company, either by his
express consent, or by his silence, to under-
atand thait he did not intend to o^bject to their
proceeding with their conatruotion and opera-
tion. ... If there was, then, a waiver in
fact, either express or unplied, by acquiescence
in the proceedings of the company to the ex-
tent of not insisting upon payment as a condi-
tion precedent, but consenting to let the dam-
ages be and remain a mcire dim, wit^ or with-
out a lien upon the roadbed, as the law may
turn out to t>e, then it is impossible to regard
the defendants in any sense in the light of
trespassers or liable in ejectment."
Justice Y.N esquehoning Valley R,R.Co.S7
Pa. 28, was a case where a railroad company
was a trespasser, and ita entrv upon land not
in cohformity with law, and it was held that
these irr^^ar proceedings did not operate as
a dedication to the landowners of the prop-
erty of the company, placed upon the land,
ao aa to entitle mid landowners to include
said property in an assessment of damages
under the railroad law, and recover their
value aa an accession to the value of the land
taken by the company. In delivering the
opinion of tftie supreme oourt, Chief Justice
Agnew said:
"This is not the case of a mere trespass by
one baving no authority to enter, but of one
representing the state hersdf, dothed with
the power of eminent domain, faavinff a right
to enter, and to place these materiaM on the
[S73]ana taken for a public ^use— materiala easen-
tial to the very purpose wiiidi the state haa
declared in the granit of the diarter. It ia
ime the entry was a trespaas, by reasoii ol the
omiaaion to dk> an act required m 43ie security
168
of the dtizen, to wit, to make compoisatioa,^
give security for it. For this injury
citizen is entitled to redress. But hia
cannot extend beyond his injury. It
extend to taking tihepersonal chattela of thm
railroad company. They are not his and cmm-
not increase his remedy. The injury was
to what the landholder had himseif, not to
what he had not Then why should the loa-
terials laid down for the benefit of the pablia
be treated as dedicated to him? In the case ol
a common trespasser Hhe owner of the land
may take and keep his structures, nolena
voiens, but it is not so in this case; forthoogh
the original entry was a trespass it is wdl set-
tled taa.t tlra company can proceed, in due
course of law, to appropriate the land, and
consequently to redaim and avail itsdf of the
structures kid thereon."
In ProvoU v. Chicago, R, /. d Pac R, R,
Co. 57 Mo. 256, it was hdd that the conduct
of a landholder in standing by while a rail-
road company constructed its road, preduded
him from recovering physical possession of the
land covered thereby. Judge Wagner, alter
quoting with approval the language of Chief I
Justice Redfldd in McAulay v. Western Ver^
mont Railtoay Co., hereinbefore dted, said:
'The plaintiff did not attempt to obstruct
or in any wise impede the progreM of the
work. The plain inference waa that be
waived (his right for prepayment of his dam-
ages and only intended to foUov hta
remedy on lus judgment His eooduK
surdy led the company to bdieve such
was his purpose and induced them
to pursue a course axid expend larfre
sums of money which, otherwise, they would
not have done. If plaintiff intended to rely
on his rights and make present payment a
condition precedent he sbould have objected
and forbidden the company to interfere or to
do any work on his land till the question of
damage waa settled. But this he did not do.
He acquiesced in the proceedings of the com-
pany to the extent of not insisting upon the
prepayment as a condition* precedent; andsi{t74l
ter having done ao, we do not think thai be
can main&dn ejectment.
"If from negotiation in regard to the price
of the land, or for any other reason, there >■
just ground of inference that the works hare
been construoted with the express or unplied
assent of ^e limdowner, it would seem wholly
at variance with the expectaAiona of the
partiea and <the reason of the case, that the
landowner diould retain tfhe rigbt to enter up-
on the land, or to maintain ejectment. There
are other effective and aulfident remediea A
court of equity would unquestionably iater-
fere, if necessary, and place the road in the
hands of a recdver until the dunagea wen
paid from the earnings. 2 Redt Am. Bailw.
Gas. 2d ed. 353. But the only question «t
are called upon to'dedde is whether under the
facts and drcumstances of this case ^jeetr
menrt wiU lie, and we think it will not"
A similar question was decided in the ctse
of the Omaha and Northern Nebraakm R. W.
Co. y. Redick, 16 Neb. 313. This was aa
acrtMQ of ejedtment lor the poaseanoft of a 4^
171 V.B.
18IT.
Oamou t. Uhitbd Statbb.
274-277
aera tivet of land brought by a landowner
against a ndlroad company, w'hich had oon-
atrnctad ita road over said tract It seems
tSiat the plaintiff, as one of the directors d
the raihroad company, had known thai the
oompaay was conatruating its road across his
kads and had remained qmet The court
*It is tme that nnd^ the Oonstitution and
laws of this et&te the assessment of damages
and payment or deposit of the amount is a
eonditiofi precedent to the vesting of the title
or of any right of the company to construct
their road. But these conditions are suscepti-
ble of being waived. . . . Whatever
tight the plaintiff may have against the rail-
HMui company, growing out of this right of
wa^ question, and whether he is estopped in
poa to assert any and all of them, it seems
dear that lie is not entitled to a judgment
that would enable him to sever a line of com-
merce which by his assent, if not through his
aotire agency in part, was constructed over
this same propeity, and has enjoyed free
passage over it for at least seven years."
75] *The same conclusion was reached in Lex-
ingt<m d Ohio R. R, Co. v. Ormaby, 7 Dana,
276; HarUno ▼. Marquette, H. d O. R, R, Co.
41 Mich. S36; Cairo and Fulton R, R. Co, ▼.
Turner, 31 Ark. 404; Pettihone v. La Crosse
nd Milwaukee R. R, Co. 14 Wis. 443 ; Chica-
go and Alton R. R. Co. v. Ooodwin, 111 111.
273 [53 AoL Rep. 622] ;Kanaga v. 8t. Louis,
LdW. Ry. Co. 76 Mo. 207 ; Dodd v. St. Louis
d E. Ry. Co. 108 Mo. 581 ; Evansville d T. H.
Ry. Co. V. Tfye, 113 Ind. 223.
This subject was fully considered by this
court in the case of Roberts v. Northern Pac.
R. R. Co. 158 XJ. S. 1 [39: 873], where, upon
the foregoing authorities and others, it was
Md that if a landowner, knowing that a
laflroad company has entered upon his land
and is engaged in constructing its road with-
out having complied wiUi a f^tatute requiring
either payment t>y agreement or proceedings
to condemn, remains inactive and permits it
to ^ on and expend lar^e sums in the work,
he IS estopped nrom mamtaining either tres-
ptss or ejectment for the entry, and wiH be
regarded aa having acquiesced therein, and
vUl be resUicted to a suit for damagee.
Upon principle and authority we there-
fore eondude that neither the dty of Bis-
marck, aa owners of the town Me, nor ita
grtntee Smith, ean, under the facta and cir-
cumstances shown in this record, disturb the
PosicaBion of the Northern Pacific Rulroad
Company in ita right of way extending 200
feet on each side of ita said road. The find-
ii^ of ^e trial court, that only 25 feet in
width haa enrer been occupied for railroad
pvposea, ia immaterial. By granting a
nght (d way 400 feet in width. Congress
must be understood to have conclusively de-
termined that a strip of that width was neces-
■vy for a public work of suoh importance,
uid it was not competent for a court, at the
^t of a private puty, to adjudge that only
K feet hereof were occupied for railroad
pvpoaes in the face of the srant and of the
wng that the entire land im dispute waa
within 200 feet oi the track of the railroad
aa actually oonstructed, and that the rail-
road company was in actual possession
thereof by ita tenants. The precise charac-
ter of the business ^carried on by such tenants[276]
is not dificlosed to us, but we are permitted
to prestune that it Is consistent with Hie pub-
lic duties and purposes of the railroad com-
pany; and, at any rate, a forfeiture for nua-
user could not be enforced in a private ao*
tion.
These views dispose of the oase, and ren*
der it unnecessary to determine whether tha
trial of the title of lota eleven and twelve,
in the action betweeu the railroad company
and Smith, as a tenant of Browning &
Wringrose, resulting in a final judgment,
waa well pleaded as res judicata in the prea* .
ent action.
The judgment of the Circuit Court of Ap-
peals is reversed; the judgment of the Cir»
ouit Court is also reversed, and the cause re-
manded to that court with a direction to en-
ter a judgment in favor of the defendanta.
Mr. Justice Gray and Mr. Justice White
concur in the judgment of the court onlv on
the ground first stated in the opinion of the
court, that is, the sufficiency ox the tiUe of
the railroad company.
Mr. Justice Harlam dissenttL
Brewer, J., concurring specially: I con-
cur in a reversal of the judgments below but
not in all the conclusions reached in the fore-
^ing opinion, nor in the direction to enter
judgment for the defendant I think the
estoppd relied on goes only to the ground
actually occupied by the lailroad company
with ita tracks, station houses, cuid other
buildings used exclusively for railroad pur-
poses, and does not extend to the entire 400
feet of the right of way which the company
daims under the congressional fprant. It
may be that a large portion of this tract ia
in only the constructive possession of tha
company, or it may be occupied bv buildings
not ufl^ exclusively for railroad purposes,
and as to all such ground I do not think any
est<^pel extends.
I am also of the opinion that the legal
title conveyed by the town-site patent luid
the deed to plaintifiT must prevail in this ac-
tion at law over any equities the company
may have acquired by occupancy.
JUAN PEDRO CAMOU, Appf..
t.
UNITED STATEa
<8ee 8. C. Reporter's ed. 277-201.)
Authority of Mewioan states to sell vacant
public lands — decree of Batata Anna.
1. The several states in Mexico had In 1888 aa-
NOTB. — As to Missouri private land claims,
see note to Lea Bols v. Brameli, 11 : 1061.
16S
[«77]
«77-279
SuTRwra CoxmT of thb United Statu.
i
thorlty to make sales of vacant public lands
within their limits, which sales mast be rec*
ognised by this government under the treaty
of 1853.
2, The decree of Santa Anna on November 25,
1853, while he was temporary dictator, and
shortly before the Gadsden treaty was made
with him by the United States, whereby he
declared that alienations of public lands by
the several states without approval of the
general government are null, will not preclude
the- recognition of such a claim w|ilch had
become a vested right at the time of his de-
cree, when the grantee was never disturbed
la his possession, nor any adjudication made
of the nullity of his grant on account of such
decree.
[No. 28.]
Argued March 16, 1898. Decided May SI,
1898.
APPEAL from a decree of the Court of
Private Land Claims in behalf of the United
States, defendant, dismissing the petition of
Juan Pedro Camou, plaintiff, to have con-
firmed to him a tract of land in the county
of Cochise in the territory of Arizona, known
as the San Rafael del Valle grant, and ad-
judging the petitioner's claim and title in-
valid. Reversed, and case remanded for fur-
ther proceedings.
Statement by Mr. Justice Brewer:
On December 3, 1891, the appellant filed in
the oourt of private land claims his petition
praying to have confirmed to him a certain
trad; of land situate in the county of Cochise,
in the territory of Arizona, known and desig-
nated as the San Rafael del Valle grant.
Sufbsequent proceedings resulted in a trial and
a decree in behalf of the government, dismiss-
ing the petition and adjudging petitioner's
daim and title invalid. The title papers
show thait on March 12, 1827, Ra<fael Elias
made appilioation to the treasurer general of
ihe erta'te of Sonora for the purchase of "puib-
tk hinds adjacent to the ranch of San Pedro,
within the jurisdiction of Santa Cruz, as far
wm the phice called Tres Alamos." On July
1 Off that year the treasurer general directed
that proceedings be had in accordance with
kuw under the supervision of the alcalde of
Santa Cruz. The proceedings appear to have
been regular. The survey was of a tract re-
ported by the surveyors to contain four
ritioe. The propei^ty was appraised at $60 a
ritio, or $240 altogether. The fiscal attorney
ftpproved the proceedinp^s and advised that
they '^ continued to adjudication according
to the forms and requisites in use." At the
third auction, on April 18, 1828, the property
was struck off to Don Rafael Elias, the peti-
tioner, for the sum of $240. On April 21 the
peftitioner paid this sum into the treasury.
Nolthing furthw was done until April 29,
1833, at which time the then treasurer general
of the state of Sonora issued the expediente,
w title papers. This expediente opens with
this preamble :
IS78] *Jose Maria Mendoza, Treasurer (General of
164
the Free, Independent, and Sovereign State of
Sonora, Greeting:
Inasmuch as article li of the •overeigB
decree number 70 of the genend oongresi ol
the union, dated August 4th of 1824, ecmeedei
to the states the revenues which in satd law
it did not reserve for the federation itsrif, aad
one of them being that derived from the lands
within their respective territories, which in
consequence belongs to them, for the di^posi-
tion of which the honorable constitutive oon-
fress of the state that used to be joined of
onora and Sinaloa enacted the law No. 30 of
May 20th of 1825, as well as t^e decrees reU-
tive thereto passed by ot&er succeeding
legislatures, and the ^tizen Rafael ^ias, a
resident of this capital, having made due ap-
plicaition on the 12th of March of 1827, at the
treasury geneml that was then ol the United
States, for the lands named San Rafael del
VaAIe, located in the jurisdiction of the prt-
sidio of Santa Cruz, which was allowed ae>
cording to law on tJhe dete of July let </
the same year, and the petition of entry, tht
order for the commission, and the act of ac-
cepting the charge being as follows, to wit
[and after reciting the various steps in tht
sale closes with the granting clause] :
In which terms I issue the present title ot
grant in due form in favor of the citiies
Rafael Elias, his heirs and successors, deliver-
ing it to them for their protection, preview
memorandum of the same being entered in
the proper book.
Given at the capital of Anspe on tht
twenty-fifth day of the month of December at
one thousand eight hundred and thirty-two.
Attested and signed by me, sealed with tht
seal of the treasury general, before the under
signed witnesses of my assistance, with wbo«
I act in default of clerk, there being none, ac-
cording to law.
Jose Maria Mendoo.
Assistant: Louis Carranco.
Assistant: Bartdo Miianda.
[Seal of the Free State o£ Sonora, Treasnry
General.]
*The amount of land within the tract ss[t7fj
now surveyed, according to the testimony, it
20,034.62 acres. The petition did wA staU
the area applied tor, but as has been seen Um
survey and appraisement called the tract four
sitioe, or 17,353.85 acres. '
Mr Rochester Ford for appellant.
Messrs. Matthew G-. Reynolds ud |
John K. Richards, Solicitor General, for v^
pellee. <
Mr. Justice Brewer delivered the opimoi
of the court:
This grant wa^ made in the name of tb«
state of Sonora and by the proper oflleer of
tihat state, if it had power to make the grut j
The first question, therefore, is as to t^
power of the state. We held in Vnit^
States V. Coe, just decided, 170 U. S. 687 [42:
1105], that from and after thu adoption of
the Constitution of 1836 no such power wu
vested in the separate states. But that cts
171 U.l
imi.
Camou y. United Statu.
27»-282
caIM lor BO deiormiiaktioiii of the afutboiity
thoM fUtei'poeseeaed prior thereto, and in
respeei to that nuntter no opinion was ex-
pffiMad. We haTe in this case, and that im-
Dediatdj following, Perrin v. United 8tate9,
171 U. S. 292 ipoat, 169] ) , elaborate discis-
■ioBs bgr donnsel as to the title to the public
Unds within the limits of Mexi«:o and tne re-
speetiTe rights thereto of the general govern-
latAi and uie separate states. On the one hand
it ii insisted that, as in the case of the thirteen
ooloflies that fonned the United States of
Ameriea, the yacant lands were the property
of tiie states; that as no express cession ¥ras
nads by any Mexican states to the general
gofemment the title to those huids remained
in the states until at least the formation of
tiie GonsUtution of 1836, and tbat each itate
bad tberefore the absolute right to dispose of
aU within its own Mmits. On the olftier hand,
it ii said that, prior to the separation of
Mezieo from Spain, the lands were 4die prop-
erty of the King of Spain, that the separation
creatal a new national gOTemment which
sneceeded to all the rights of the prior
soTereign, including therein the ownership of
•]b11 Tseant lands. We deem *it unnecessary to
review this discussion o^^ attempt to settle
the disputed question as to the location of the
title. In this expediente the treasurer
teneral refers to "article 11 of the sovereign
deois number 70 of the general ccmgrees ci
the uuon," as conceding to the ittatee the
revenues derived from the sale of lands within
their respective limits, and upon that and
law nomber 30 of the congress of the state
reliee as the sources of his power to make the
conveyance. The state having undoubtedly
veeted its aulftiority in the treasurer general,
the inquiry comes back to the effect oi said
artide 11.
PreKminaiy thereto we must notice these
matters:
The constitutive act of the Mexican federa-
tion, adopted January 31, 1824, in articles
6 and 6 declares:
"Art. 5. The nation adopts for the form of
its government a popular representative and
federal republic
"Art. 6. Its integral parts are fre^, sover-
eign, and independent states, in as far as-
Rgirds exclusively its internal administra-
tion, according to the rules laid down in this
tct, and in the general Constitution." White,
New Kecopilacion, p. 375.
On October 4, 1S24, a Constitution was es-
tablished. In it article 49 reads:
'The laws or decrees, which emanate from
the general congress, shall have for their ob-
ject;
''I. To sustain the national independence,
*nd to provide for the preservation and se-
evnty of the nation in its exterior relations.
"^ To preserve the federal union of the
■tates, and peace anu public order in the in-
terior of the confederation.
**Z. To maintain the independence of the
>t«tcs among themselves, so far as respects
their government accordhig to the constitu-
tive act and this Constitution.
"4. To sustain the proportional equality
ni u. m.
of obli^tions and rights which the states
possess in point of law/' 1 White, p. 393.
And enumerating in article 50 the powers
possessed by ,the general congress, subdivi-
sion 31 reads:
^*o dictate all laws and decrees, which
may conduce to accomplish *the objects spok-[S81]
en of in the forty-ninth article, without in-
termeddling with the interior administration
of the states." 1 White, p. 395.
Article 137, defining the attributes of the
supreme court, names amonff others:
^'1. To take cognizance of disputes which
may arise between the differeoit states of the
union, whenever there arises litigation in re-
lation to the same, requiring a formal decree,
and that arising between a state and one or
more of its inhabitants, or between individ-
uals in relation to lands under concessions
from different states^ without prejudice to
the right of tue parties to daim the oonces-
^on from the party which granted it.** 1
White, 405.
It cannot of course be pretended that these
provisions either operated to transfer the title
to vacant public lands from t^e nation to the
respective states or amount to a declaration
that tha title to such lands is vested in the
states. All that can fairly be inferred from
them is that the supremacy of the several
states in matters of local interest was recog-
nized, and further, that conflicting cessions of
lands froiu different states might be expect-
ed and that the settlement of disputes re-
specting them should be by the supreme court
of the nation. These inferences are by nd
means determinativa of the question hert
presented, and yet it must be conceded that
they at least point to some control by the
states over vacant lands within their limita»
and suggest the exercise by those states of
the right to make concessions of thosa
lands.
Two prominent laws of the Mexican nation
are the colonization law of August 18, 1824
(1 White, 601; Reynolds, p. 121), amd the law
in respect to general and special revenues, ol
August 4, 1824. Reynolds, p. 118. White's
translation of articles 1, 2, 3, 10, 11, and 16
of the colonization law, differing slightly
from that given by Reynolds, is as followss
"Art. 1. The Mexican nation offers to for*
eiders, who come to establish themselves
within its territory, security for their per-
sons and propertv; provided they subject
themselves to the laws of the country.
"Art. 2. This law comprehends those lands
of the nation, *not the property of individu-[28ST
als, corporations, or towns, which can be col-
onized.
"Art. 3. For this purpose the legislatures
of all the states will, as soon as possible, form
colonization laws or regulations for their re-
!^pective states, conforming themselves in all
inings to the constitutional act, general Con-
stitution, and the regulations established in
this law." \
"Art. 10. The military who, in virtue of
the offer made on the 27th of March, 1821,
have a right to lands, shall be attended to
by the states, in conformity with the di-
165
882-285
SUFREMB COCRT OF THE UNITED STATES.
':
plomas which are issued to that effect by the
supreme executive power.
"Art 11. U, in virtue of the decree alluded
io in the last article, and taking into view
the probabilities of life, the supreme execu-
tive power should deem it expedient to alien-
ate any portion of land in favor of any officer,
whether civil or military, of the federation,
U can do so from the vacant lands of the ter-
ritories."
"Art. 16. The government in conformity
with the provisions established in this law
will proceed to colonize the territories of the
Republic"
It is not pretended that the grant in ques-
tion was made under this colonization *law,
and we only refer to it as shoeing a recogni-
tion by the general government of some au-
thority on the part of the states in reference
to the vacant lands. It will be seen that
while artide 2 speaks of "the lands of the
nation," article 3 directs the states to enact
colonization Ikws in conformity to the gen-
eral provisions of the Constitution. So that
the actual management of colonization affairs
was put within the control of the states, sub-
ject, of course^ to the euperior dominion of
the general government Article 10 provides
that military rights to lands, though created
by the nation, shall be attended to by the
states, thus implying at least that, for con-
venience, administration of the vacant lands
was intrusted to the states. Obviously the
thought here was that there should not be
two places in which the administration of
the public lands should be carried on, and
80 in article 11 it was provided that if in the
[S881jud jinent of the nation it was ^expedient to
graiit to a military or civil, officer any public
lands, it was to be made ht)m vacant lands
in the territories. And, finally, in article 16,
Mi though to eepaiute the admioistrattiim of
the public lands in the states from those in
the territories, it is distinctly declared that
the national government will colonize the
territories of t£e Republic As heretofore said,
all this, of course, amounts only to assigning
to the states the administration of the va-
cant lands for purposes of colonization.
The other act to which we have referred,
the one which is relied upon by the tr^urer
general as ffiving authority for this ex-
|>ediente, is Uiat in reference to general and
special revenues. It commences with the
declaration that the following belong to the
general revenues of the federation, and then
in ten artides are named revenues derived
^m different sources, such as import and
.export duties, tobacco, and powder, etc The
8th, 2th, 10th, and 11th articles are as fol-
lows (ReynoldB, p. 118) :
"8. That from the territories of the fedem-
iion.
<<9. National prop<n^y, in which is included
that of the inquisition and temporal property
of the clergy, or any other rural or urban
property that belongs, or shall hereafter be-
long, to the public exchequer.
"10. The buildings, ofticea, and the lands
attached thereto, whicli belong or have be-
longed, to the general revenues and those that
166
have been maintained by two or more of what
were formerly provinces, are at the disponl
of the government of the tederation.
"11. The revenues not included in tlie
foregoing articles belong to the states."
The 8th article gives to the national sovera-
ment all the revenues derived from the ter-
ritories. Obviously the entire management of
ihe affairs of the territories was reserved to
the general government, and any revenue de-
rived therefrom passed into the general
treasury.
The 9th artide is indefinite in that it faOs
to define what is national property. It m-
sumes that c^'tain things pas^ within the
description of national property, and affirma-
tively includes within that description th«
property taken from 'the demjy. The Ian [I
guage u^ed is brocui enough to indude all pub-
lic lands within the limits of the nation, and
yet if it was intended to include such lands it
would seem scarcdy necessary to add Ciie
clause, including those taken from the dergj.
Certain is it that according to our methods oi
legislation, and our us^" of language, this
article would not be considered as defining the
property the revenues from which it ansigBfl
to the national government. The lOih
article seems to have little significance in tltU
connection, and refers obviously to pubac
buildings and the grounds attadied, and not
to vacant public lands. While the 11th
article concedes to the states revenues not in-
cluded in the foregoing articles, it docs not de-
fine those revenues, and depends for its scope
upon the significance and force of the pri^ir
articles. If these artides were all that called
for consideration it would be difficult to inkt
from them that the vacant public lands why
given to the states for purposes of sale or far
appropriation of the proceeds of such aalea
But in the same statute is a provisioa that
''the sum of $3,136,875, estimated as the defi*
cit in the general expenses, shall be appor
tioned among the states of the federatioa,*
and following that is the apportionmeat
Other sections required delivery by the states
every month of thdr part of the above ap>
portionment and the final adjustment ol the
amount* thereof between the government aad
the states. Of course this implies that withii
the limits of the stete there were cer-
tain matters oi revenue reserved, out of which
the states were to collect the sums appor-
tioned to them, and to return the same to ths
general treasury. Subse(|uent legislataaa
throws light upon the meaning of this revenot
law. Thus, on April 6, 1830, a decree was
passed, the third artide of which is aa id-
lo>^-8;
"The government shall have power to ap-
point one or more commissioners to visit the
colonies of the frontier states, to contract
with thdr legislatures for the purobaae, ia
the name of the tederation, of the lands thej
may consider suitable and sufilcient for the
establishment of cdonieb of Mexican aad
of other nations, to enter into such arraa^
mente with *the colonies already eetablitlwirf' lH
as they may deem proper for the security ot
the Republic, to see to the exact oompluuM^
171 U.B.
r '. •
wn.
Camou v. United States.
285-aa7
wHh the contracts upon the entry of new col-
oidstfl, and to examine as to how far those
•treadj entered into have been complied with.
^4. The executive shall have the power to
take the lands he may consider suitable for
fortifications and arsenals, and for new col-
onies, and shall give the states credit for their
ralne on the accounts they oiwe the federa-
tfon." Reynolds, p. 148.
The language of this decree is very signifi-
cant, and clearly recognizes some title in the
ftates, for why should commissioners be au-
tborused to contract with the legislatures of
the states tor the purchase of la^s which be-
longed to the nation? It also dearly recog-
nSm the right of the states to sell mese va-
cant lands and apply the proceeds in settle-
ment of the demands made against them by
the general apportionmeDit of the revenue law
of 1824. It dedaree that the executive mapr
take the lands he considers suitable for forti-
fieatioofl, arsenals, and for pew colonies, and
at the same time provides that he shall give
the states credit on the amounft they owe the
confederation. But w4iy should any <uiedit
be given if these lands so taken by the ex-
eentive where the property of the nation, and
the frtAtes without authority to sell them or
reeeive the proceeds of aales? If during
all these years the lands were the property of
the nation, were to be held and sold only by
the nation, and the proceeds thereof to be ac-
counted for directly to the nation, wtiy ediould
it be decreed that if the nation takes any part
of them for araenals and other public pur-
poses, credit for the value thereof is to be en-
tered upon the amounts due by the states to
the nation T We find it difficult to escape the
force of this decree of 1830. It indicates that
akhough the language of the revenue decree
of 1824 is indefinite, and does not in terms
name vacant public lands, yet both the nation
and l^e states understood that its effect was
to grant authonty to the eftates to sell such
lanoB and appropriate the proceeds in settle-
ment of the amounts charged against them
[t86]b7 ^ nation. We see no other "^way in which
to give reasonable force to the language of
this decree of 1830, and it must be held to be
a national interpretation of the revenue de-
cree of 1824.
Bat we are not limited to this authoritiative
national exposition of the meaning of the rev-
enue law of 1824. The testimony in the sev-
eral cases of a similar nature now before us,
induding therein the reports of the officers
of this government sent to examine the
arehives of Mexico, discloses that the srt^ate
oi Sonora at least assumed that the revenue
act of 1824 authorized its disposal of the va-
cant public lands, and acting on that as-
iomption did in a multitude of cases make
sales thereoL Jn this connection it may be
observed thai the Constitution of the staie
of Sonora, or State of the West^ declares, ar-
tide 47, that the right of selling lands be-
bngs to the state. This Constitution bears
date May 11, 18?5. Law No. 30 of that
state, of May 20, 1825, the law referred to by
the treasurer general in the expediente, re-
cfttcB the* 'Hhe oongreM has seen fit to de-
171 V. a.
cree the following pro visionallaw for the pur-
chase of the lands of the state." Subsequent
legislation of the state is in the same line.
Further, §§ 8 and 9 oi article 161 of th«
national Constitution of 1824 made it the
du'ty of each Mexican state:
"To present annually to each one of th«
houses of the general congress a minute and
comprehensive report of the amounts that
are received and paid out at the treasuries
within their limits, together with a statement
of the origin of the one and the other, and
touching the diff crept branches of agricul-
ture, commercial and manufacturing indus-
tries," etc
And also,
To forwaid to the two chambers (of the
federal government) and when they are in re-
cess, to the council of the government, a cer-
tified copy of their constitutions, laws, and ^
decrees.*^ ' '
It may be assumed that these require-
ments of the national Constitu'tion were com-
plied with, and that the constitutions, laws
and decrees of the state and the proceedings
had in reference to these several ndes of land
were reported to the congress of the nation.
We find no act of that congress setting aside
*such legislation or sales. This is significant,[2871
and it is not inappropriate to refer to Olinton
V. Englehreohi, 13 Wall. 434, 446 [20:659,
662], in which it was said:
"In the first place, we observe that the law
has received the implied sanction of congress.
It was adopted in 1859. It has been upon
the statute nook for more than twelve years.
It muet have been transmitted to congress
soon after it was enacted, for it was the duty
of the secretary of the territory to transmit
to that body copies of all laws, on or before
the first of the next December in each year.
The simple disapproval by congress at any
time would have annulled it. It Is no un-
reasonable inference, therefore, that it was
approved by that body."
We are not insensible of the fact that the
provisions of the act of September 21, 1824,
creating the office of commissary general, an
act which we had occasion to consider in
Ely's Administrator v. United States, 171 U.
S. 220 [ante, 142] seem to make against the
idea of the administration of vacant lands by
the states, and it is difficult to work out from
idl the statutes a consistent, continuous, and
harmonious rule. We must in each case en-
deavor to ascertain what the Mexican gov-
ernment recognized as valid, and when thai
is done the duty of respecting and enforcing
the grant arises. Other matters are referred
to by counsel 5n their briefs, but it would
needlessly prolong this opinion to refer to
them. Our conclusion is that at the time of
these transactions the several states had
authority to make sales of vacant public
lands within their limits, and that such sales^
unless annulled by the national government,
must be considered as grants to be recognised
by *^is government under the terms of the
treaty of 1853.
We pass, therefore, to a consideration of
the effect of the deerees of Santa Anna. The
167
887-290
SUPRKICS COUUT OF THB UNITBD BTATES.
Oct. Tkbm.
■
8
I
;
i:
luidi in controversy were obtained from
Mezioo under what is known as the Gadsden
treaty of 1853. This treaty was concluded
on December 30, 1853, and ratified June 30,
1854. At the time of the treaty Santa Anna
ims supreme executive and virtually dic-
tator in Mexico, and the treaty was ne-
gotiated with him. On November 25, 1853,
only about a month before the signing of the
Gadsden treaty, ho published this decree:
{t88] *"Art. 1. It is declared that the public
lands, as the exclusive property of the na-
tion, never could have been idienated under
any title by virtue of decrees, orders, and en-
acbnents of the l^ialatures, governments, or
local authorities of the states and territories
of the Bepublic.
"2, Consequently, it is also declared that
the sales, cessions, or any other class of alien-
ations of said public lands that have been
made without tne express order and approval
of the general powers in the manner pre-
scribed by the Uws are nuU and of no value
or effect.
**Z, The officials, authorities, and employ-
ees upon whom devolves the executioii of 4m8
; decree, shall proceed as soon as they receive
it to recover and take possession, in the name
of the nation, of the lands comprehended in
the provisions of aittde 1, and that may be
in the possession of ccMporations or private
individuals, whatever may be their pre-
roga^ves or position.
^'4. The judicial, civU, or administrative
authorities shall admit no daims of any kind
nor petitions whose purpose is to obtain in-
demnifications from the public treasury for
the damages the unlawful holders or owners
may allege under the provisions of the pre-
ceding article; and they shall preserve their
right only against the persons frcMU whom
they have the lands they are now compelled
t to return." Reynolds, p. 324.
t On July 5, 1854, he published another de-
I eree, which was even more specific, contain-
ing these provimons:
^'Art. 1. The titles of aU the alienations of
public lands made in the territory of the Re-
public from September, 1821, till date,
whether by the general authorities or by
, those of the extinguished states and depart-
ments, shall be submitted to the revision of
the supreme government, without which
they shall have no value and shall constitute
BO right of property.
"5. The alienations of public lands, of
wilMvtever nature they be, that have
been made by the authorities and officials of
the departments without the knowledge and
approval of the general government, during
the epoch when the central system was in
force m the Republic, are void.
(MO] *"6. Those made by said authorities in the
epoch of tlie extinguished federation are like-
wise void; provid^ they were not made for
the purpose of extending and promoting col-
onization, which was the purpose proposed
by the law of August 18, 1824.
^7. Grants or sales of lands made to pri-
vate individuals, companies, or corporations
168
under the express condition of eolomxlBg
them, and the holders of which have not oonft-
plied therewith in the terms stipulated* aro
declared to be of no value." Reynolds, p. 32ft.
Subsequently, on December 3, 1855, and af-
ter Santa Anna had been deposed and while
Juan Alvarez 'was president ad interim^ a
decree containing tne following provisions
was entered:
'•Art I. The decrees of November 25, 1853.
and July 7th, 1854, which submitted to ihm
revision and approval of the supreme govern-
ment the grrants or alienations oi public lands
made by the local governments of the states
or departments and territories of the repub-
lic from September, 1821, to that date, are re-
pealed in all their parts.
"Art 2. Consequently, all the titles Issued
durinff that period by the superior anttooti-
ties of the states or territories under the fed-
eral sjrstem, by virtue of their lawful facul-
ties, or by those of the departments or terri-
tories, under the central system, with express
authorization or consent of the supreme gov-
ernment for the acquisition of said lands, aU
in conformity with the existing laws for tho
grant or alienation respectively, shall for aD
time be good and valid, as wdl as those of
any other property laTivfiiUy acquired, and in
no case can they be subjected to new reviskm
or ratification on the part of the govern-
ment" Reynolds, p. 329.
And again, on October 16, 1856, a deeres
was passed while Ignado Comonfort was
president, the first article of whidi is as fol-
lows:
•'Art 1. The decrees of November 25^
1853, and July 7, 1854, are void.** Reynolds,
p. 331.
The court of private land claims was di-
vided. Three of the justices were of fyin-
ion that as this government recognized *&ui^Sii)
ta Anna in negotiating with and purchstii^
from him the territory within the Gadsden
purchase, the courts must also recognise his
declarations in respect to titles as authori-
tative, citing in support of these general prop-
ositions Wheaton's Intematioiuil Law, 11
31 and 32, and Halleck's International Lam,
pages 47 and* 62. Without questioning the
general propositions laid down in these aa-
thorities, we are of opinion that too much
weight was given to the decree cf Santa Anna
of November 25, 1853, the only one an-
nounced before the cession, and that that de>
cree should not be considered as absolutely
deteroiinative of individual rights and titlea
While it is true that practically Santa
Anna occupied for the time being the posi-
tion of dictator, it must not be torgotten
that Mexico, since its separation from Spain
in 1821, was assuming to act as a republie
subject to express constitutional limltatioDi.
While temporary departures arc disclosed in
her history, the dominant and continuous
thought was of a popular government under
a constitution which defined rights, duties^
and powers. In that aspect the spasmodie
decrees mode by dictators in the occasionsi
interruptions of constitutional ^venunent
should not be given conclusive weight in the
i7iir.&
£"1
1817.
Pkbkin v. United States.
290-::«;3
deteradaatkni of rights created during peace-
tal and Molar eras. The devestiture of
titles oDoe legally vested is a judicial act.
In goTemmeiits subject to ordinary consti-
totioiial HmHations a mera executive dedar-
ition disturbs no rights that have been
vested, and simply presents in 'any given
esse to the judicial department the inquiry
whether the rights claimed to have been
vested were legsdly so vested. Undoubtedly
this government dealing with Mexico, and
finding 8anta Anna in control, rightfully
deslt with him in a political way in the ne-
gotiatiaa of a treaty and the purchase of ter-
ritofy, and the judicial department of this
forernment must recognize the action of its
ixeeutive and political department as con-
trolling. But when the courts are called up-
on to inquire as to personal rights existing
in the ceded territory, a mere declaration by
the temporary executive cannot be deemed
sbsolutJy and finallv controlling. It is un-
^l^ieeeBsary *to rest this case upon the fact dis-
dosed that these decrees of Santa Aima were
immedioitely itlierealter revoked. It is not
Bgnifieant that the substance of them was
thereafter re-established. We are compelled
to inquire whetner prior to such decree there
were rights vested, rights which the Mexican
COYcniment recognized, and then determine
whether those rights were by such decree ab-
Mlntdy destroyed.
Turning to the decree of November 25,
1853, the first and second articles are mere
declarations of law. llie third article directs
the officials to proceed to the execution of
, the decree and to recover and take possession
of the lands coining within the scope of the
prior articles. It does not appear that any
ftepe were taken by any officials to carry
into execution this decree. Whether this
particular grant came witliin the scope of the
two declarations of law was a question to b'^
considered and determined. On that ques-
tion the grantee never was heard. There
never was a judicial adjudication that hia
gnnt came within the scope of the fint two
articles. He was never dispossessed. His
property was never taken possession of. It is
goin^ too far to hold that the mere dedara-
ticD of a rule of law made by a temporary
<li€t«or, never enforced as against an individ-
ual grantee in possession of lands, is to be
regarded as operative and determinative of
the latter's rights.
As for the reasons heretofore mentioned
we are of opinion that a valid grant was
made in this case, we think this arbitrary
declaration by a temporary dictator was not
potent to destroy the title. The decree of
the court of private land claims must there-
fore be reversed. As shown by the statement
of heU the survey of the land claimed in the
petition is in excess of the four sitios granted
and paid for. While the excess is not so
peat as in many cases, yet we think the rule
laid down in Ely's Administrator v. United
States, 171 U. S. 220 [ante, 142] should con-
trol, and that this government discharges its
foil duty under the treaty when it recognizes
t grant as valid to the amount of land paid
171 V. 8.
for. The decree of the Court of Private Land
Claifns toill he reversed, and the case remand-
ed for further proceedings.
ROBERT PERRIN, Appt,
V.
UNITED STATES, Crittenden Land ft
Cattle Company, et aL
(See & C Reporter's ed. 292.)
Oamou V. United States, 171 U. 8. 277 {ante.
168], followed.
[No. 80.]
Argued March 16, 11, 1898. Decided Maw
SI, 1898.
APPEAL from a decree of the Court of
Private Land Claime decreeing that the
claim of the plaintiff, Robert Perrin, to a
tract of land formerly in the state of Sonora
in the Republic of Mexico, but now in the
territory of Arizona, known and designated
as the Rancho San Ygnado del Babocomari,
described in his petition, is invalid, and dia-
missing the petition. Reserved, and case r^
manded for further proceedings.
The facts are stated in the opinion.
Messrs. B^ron Waters, John T. Mor*
C^aji, and J, H. Meredith for appellant.
Messrs, Matthew O. Reynolds and John
K. Biehards, Solicitor General, for appellee.
Mr. Justice Brewer delivered the opinion
of the court:
l9o far as the question of title is concerned
■tiiis case is similar to the one immediately
preceding. {Camouv.United States, 171 U. S.
277 [ante, 163] ) . For reasons therein stated
the decree of the court of private land claims
wiU he reversed, and the case remanded for
further proceedings. It is true, as suggested
in its opinion, the court of privnte land
claims thought that there was no sufficient
location of the tract in controversy, and that
prohEtbly the grant was void for uncer-
tainty in the description of the property. It
may be that this conclusion was right At
the same time, in view of what has been re-
cently said by this court in respect to
boundaries, description and area, we think
that justice requires thai we reverse the
judgment and remand the case for further
proceedings. Perhaps the claimants may be
able to satisfactorily identify a tract not
larger than the area purchased and paid for
which should equitably be recognized as ths
tract granted.
[•Ml
ie»
2U3, 294. 296
SurU£3€S COUBT OF THE UmITBD StATES.
Oor. Tkmm,
: '
I I ,1
[S98] AUSTIN WALRATH, Appl^
CHAMPION MINING <X>MPANT.
(See 8. C. Reporter's ed. 293-312.)
Rights under mining claim — end lines — deC'
larations of superintendent — end lines
must he straight.
1. The right to follow a yeio oo the dip Is
limited by the end lines of the mining claim,
in case of a patent under the act of 1866, as
well as in case of a location under the act of
1872.
2. The end lines of a mining claim under the
act of 186G must be the end lines of all the
▼eins found within the surface boundaries
which are giren to the locator by the act of
1872.
8. A corporation is not bound by the declara-
tlons of its superintendent outside the scope
of his agency or authority, to the prejudice
of its property rights.
4. The end lines of a lode mining claim under
the act of 18^ must be straight, whether
they need to be parallel or not.
[No. 230.]
Argued AmrU 2$, 1898. Decided May SI,
1898.
APPEAL from a decree of tlie United
States Circuit Court of Appeals for the Ninth
Circuit affirming as modified the decree of the
Circuit Court of the United States for the
Northern District of California, which was
mainly in favor of the complainant, Austin
Walrath, in an action brought by him against
the Champion Mining Company, for a per-
petual injunction, restraining defendants and
their agents and servants from entering upon
certain lands in the county of Nevada, state
of California, and mining therein, and from
extracting or removing therefrom any gold
bearing quarts. Affirmed.
See same case below, 44 U. S. App. 291,
72 Fed. Rep. 978, 19 C. C. A. 823.
Statement by Mr. Justice MeKennat
This action, brought in the superior court
of Nevada county, California, involves title
to a triangular shaped section of what is
known as the "Contact," **Ural" or "Back"
ledge of gold-bearinff ore, situated in the
same county, claimed by appellant to be a
portion of the Providence Mine, to which
complainant has title through a patent from
the united States, and by appellee, a corpora-
tion, to be a part of the New Years Extension
Mine owned by it.
The relative situation of the two properties
and the portion of the ledge in controversy
is shown by the following figure No. 1; the
disputed section being contained between the
lines thereon marked "Line claimed by Pfeofi-
dence" and "line daimed by ChampioB."
[See cut on opposite page.]
The figures marked "New Years" and "New
Years Extension" represent the surface of the
mining properties owned by defendant wfcUe
that marked "Providence Mine" repreaentj
the surface of the patented ground cf tht
plaintilf.
The action was brought May 24, 1892, to
recover $300,000 damages for ore extracted
from the ledge and canied away by the de-
fendant, and for an injunction against forthtf
trespasses thereon.
Upon motion of appellee the action was re-
moved to the United States circuit court, u
involving a Federal question, where the con-
plainant recast his pleadings so as to sq>ante
the action into a bill in equity, upon whicb
the action is now proceeding, sjid an aetioi
at law for the damages aUcged.
The suit in equity was tried in the cireoh
court and decided mainly in tevor of the ap-
pellee.
From this decree the appellant appealed to
the court of 'appeals for the ninth dreuit^tl
where it was modified^ and, as modified, ai
firmed.
The appellant now brings the ease to tius
court upon writ of error trom the court of Lf-
peals.
The appellant's title is deraigned as fol-
lows: In 1857, under the miners* roIe§ aad
customs then in force, thirty-one locators lo-
cated 3,100 feet of the Providpnoe or iracitt
lode. By mesne conveyances the title tn thtt
location became vested in the Prondenct.
€k>ld A Silver Alining Company and oo >pn]
28, 1871, that company obtaii«cd a patent to
8,100 feet of the lode and for surface groaml
as de;«eribed in the patent
The title thus granted to the Prondeeet
Oold & Silver Mining Company vma, befort
the commencement of this suit, vested in tht
appellant.
The ledge, as granted by the patent, ex-
tends 30 feet north of the north surface line
of the location and some 680 feet south of the
south surface line.
The patent conveyed only the ProTi<lffK«
ledge and the surface ground. All otb«r
ledges contained within the surface line* wrre
expressly reserved.
It is also contended by appellants that, br
the act of Congress of May 10. 1872. exdo^v*
possession of all the sur^^e included withis
the lines of the location was granted to the
owners of the Providence, together wth til
other lodes or ledges having their too* or
apexes within such surface lines. Thitgrtat,
of course, included the Contact vein. wb»e-
quently discovered within said boundanf«,
and now constituting the bone of contfntioa
in this action.
If
I
NoiB. — As to otcnerahip of mines; United
States statutes as to; right of support of sur-
face,—-we note to United States y. Castlllero,
17 : 448.
170
As to title to ioater by appropriation: e»m-
mon-law rule; rule of mining states, — «t sets
to Atchison V. Peterson. 22 : 414.
171 V. &
^Mi
1897.
Walrath y. Champion MiaiKe Co.
295,390
The Contact vein is shown in the figure,
tad crosses the surface line f-y of the I^oyI-
(knee location.
On September 29, 1877, the appellee and de-
fendanty the Champion Mining Company,
made a location upon the Contact vein sailed
the New Years libctension Mine. This loca-
tion oyerlapped, both as to surface groiaid
S9S1
FIG. I
^jBS^^'^
'^''^^h}i^^^
yo SHOWtNO THe£HDUfi£S CuHMeO
^y£^CM,MOTMEUNES Fixed BY THt
Cincurr Couktand Court OFAppcAut
4CAU Of £HAIM9
ITl V. «.
171
i
89»-2M
Sdpbioib Coubt of thb Uhited States.
Oct. Tkbm,
►
and lode, upon the Providence location; that
is, the lode line and surface lines of the said
New Years Extension extended to the south
of the boundary line f-g of the Providence
location.
*The New Tears Extension Mine is shown[ft1
in the following figure No. 2, together with
the conflict caused by the oveiiap; the cam-
llicting surfioce portions Ixdng ^aded, and
showing the Contact vein passing through it
(
FIG. 2
f/£V^ Y£AffS EXT£t!tSlON
As OnieiNMUY LOCATED.
SHADED PART SHOWING LODE AMD
SURFACE CONFUCT WITH PROVIDENCE,
9
119
ITIV.1^
I'
II
Walrath ▼. Champion Mining Co.
8g7« 899,800
Im tka jmr 1884 the complainant and his
coownen objected to the overlap, and de-
manded of the Chlunpion Mining Company
that it abandon all claims to the surface and
lode to the south of the Providence boun-
darj line, above described. Thereupon, in
the month of November, 1884, John Vincent,
the superintendent of the defendant, the
Champion Mining Company, under the au-
thority and by the direction of the said com-
Mjiy, relocated the New Years Extension
Mine by a notice of relocation, in which the
fact of the overlap under the original location
wtfl particularly recited, and the lines were
resdjusted so as to avoid the overlap and to
conform to said line f-y of the Providence
lliee, as shown on figure 1.
In the notice of relocation the lode line was
Mrtienlariy described as follows: "The lode
line of this claim as originally located, nd
which I hereby relocate, is described as fol-
lows: Commencing at a point oft the north-
erly bank of Deer creek, which point is 60
fe^ 8., 11 degrees 45 minutes east of the
iDotith of the New ^ears tunnel and running
thence along the line of the lode towards the
K. £. comer of the Providence mill, about S.
46 degrees 15 minutes east, 200 fe^t, more or
lere, to a point and stake on the northerly
Hoe of the Providence Mine, patented desig-
Bttcd as Mineral Lot No. 40 for the south end
of said lode line."
It idso contained the foUowing statement:
*And whereas, part of this claim, as origi-
ntlly described and as hereby relocated, con-
flicts with the rights granted by letters pat-
ent of said Providence Mine, said lot No. 40,
DOW, therefore, so much of this claim, both
for lode and surface ^und, as originally con-
flicted or now conflicts with any portion of
the surface or lode claims or rights granted
by said patent, is and are hereby abandoned,
which portion of this claim so abandoned is
desoribed as f(^ows: All that pontion oif ihe
tboveHlescribed New Years Extension Claim
for surface and lode which lies south of the
Mjiiorthem boundary line of said ^Providence
Mine, which runs north 43 degrees 10 min-
otes east, across the southeastern comer of
thisdaim."
The New Years Extension as relocated is
eootoininoos with 1^ Providence Mine on
the northerly boundary line designated as the
line f-g, running south 43 degrees west.
(Rg. 1.)
Hiat lihe is the only boundary between
the two properties, and the only boundary of
the Providence location which is crossed by
the Contact ledge.
The first workings of the appellee involved
■0 conflict with appellant. The shaft ran
ptndlel with the Providence line, and
none of the levels crossed that line until
tbont three months before this suit was be-
gan, when the 1,000-foot level was driven
•cross it into the ground in dispute. Sub-
sequently the eighUi and ninth levels were
dnren across.
The work done by the Providence was car-
ried on through a shaft sunk on the Provi-
dence or Gramte ledge, from which shaft a
in u. 8.
crosscut was run back to the Contact veia
on the 000 foot level, and another on tha
1,250 foot level, and mucdi of the ground now
in controversy was thereby prospected and
opened up by complainant and his co-owners.
(See Fig. 1.)
The daims of the respective parties will be
readily understood by reference to Figure 1,
which shows the relative position of all the
mining properties belonging to both, with the
lines daimed by them.
The portion of the Contact vein in dis-
pute is that upon the dip of the ledge lying
between the line markea "line daimed by
Providence" and the line marked "Line
claimed by Champion."
The apex of <he Contact vein is repre-
sented by the dotted line w-w^, and shows
the vein as far as exposed in both Uie Cham-
8 ion and Providence ground. South of w^
tie course of the vein in the Ihrovidenca
ground is unknown.
The line f~g is the same line as that design
nated A-B by some of the witnesses.
Upon the trial the drcuit court hdd that
there could be but one end line for each end
of the Providence location, and that the
lines g-h and a-p constituted such end
lines; that *such lines constituted the end[300)
lines of not only the originally discovered
Providence lode, but also of every other vein
that might be discovered within the surface
lines of the location. But, notwithstanding
this holding, in entering the decree the line
f-g was also established as an end line of the
Contact vein, but for its length only, sjid
then that from **g'' the line g-h^ and that
line extended indefinitdy eastwardly, consti-
tuted another end line for the same end of
the lode, and constituted the line through
which the plane determinative of all ex-
tralateral rights in the vdn must be drawn.
From this decree the appellant here was
allowed an appeal to the circuit court of ap-
peals.
The latter court established the line
g-h-h^ as the sole . line of the Contact
vein, and reversed the decree of the circuit
court in so far as it fixed the Line t~9 u an
end line.
As a result of this decree the complainant
was not only shut out of all extralateral
rights in the Contact vdn north of the line
g-hr-h}, but also of that portion of tlie vein
lying vertically beneath the surface lines of
the Providence which extend north of that
line, and which are marked upon the figures
as constituting the parallelogram hr^h-h\
which was awarded to the Champion. (See
figure 1, showing the end line fixed by the
circuit court, and that line as subsequently
fixed by the court of appeals with the latter
line extended in its own direction both east-
wardly and westerly.)
From the judgment of the drcuit court of
appeals the appellant has appealed to this
court.
There are nine assignments of error. The
first eight attack so much of the decree as
establishes the line g-h as an end line, for
the purpose of determining the extralateral
173
80»-808
SUPRBMB COUBT OF THB UnITBD StATBS.
Oct. Tbbm«
right, or fails to establish tho line f-^, and
tluit line produced indefinite in the direc-
tion of ^ as such end line. The last two as-
sail so much of the decree as awards to ap-
pellee the right to pursue the vein on its
downward course underneath the parallelo-
gram hr^h-hK
•
Meuer%, B. IL Blg^low* DarM Tituu^
and JamM F, Smith for appellant
MeMTB, Curtis H. Lindley and Lindlep
d Bickhoffiox appellee.
Mr. Justice MeKenna delivered the opin-
ion of the court:
There are two questions presented by the
assignment of eiTors:
(1) What are the eztralateral rights of
the appellant on the Contact vein?
(2) Is appellant entitled to Uiat portion
of the Contact vdn within the Providence
boundaries which lies north of the north end
line fixed by the court, and which is de-
scribed upon figure 1 as the parallelogram
bounded by the lines marked li-ir-h-h^
(1) The appellant contends that the pat-
ent of the Providence ledge was conclusive
evidence of his title to 8,10^ feet in length of
that vein. If true, this carried the northern
end of the ledge 30 feet beyond the line fixed
by either the circuit court or the circuit
court of i4>peals. It was truly said at bar:
"If it is not the end line of the Providence
location, then certainly there is no reason
for holding it to be the end line of the Con-
tact vein."
The language of the patent is: '^t being
the intent and meaning of these presents to
convey unto the Providence Gk>la k Silver
Mining Company, and to their successors
and assigns, the said vein or lode in its en-
tire width for the distance of thirty-one
hundred (8,100) feet along the course here-
of."
The patent was issued under the act of
1866, and it is necessary, therefore, to some
extent to consider that act Bv it, the ap-
pellant urffes, the principal thing patented
was the lode, and tnat the northern limit of
that, and hence of his rights on that, was 30
feet north of the line fixed by the circuit
court of appeals; and hence it is further con-
tended that as the northern and southern
suiface lines (o-h and a-p> did not deter-
mine or limit his right to the lode under the
act of 1866 — in other words, did not become
end lines — they do not become aid lines
upon the Contact ledge (of-of) acquired un-
der the act of 1872, but that the surface line
|90j|]which crosses *the strike of that ledge must
be held to be the end line, and the line which
fixes the rights of the parties. This line is
/-^p Fig. 1, and, if appellant is correct, de-
termines ths controversv in his favor.
The extent of the right passing under the
act of 1866 has been decided by this court
In Flagstaff Silver Mining Co. v. Tarbet,
08 U.S. 463 [25: 253], known as the Flagstaff
Case, the superficial area of the Flagstaff
Mine was 100 feet wide by 2,600 feet long. I
174
It lay across the lode, not with it, and tht
company contended, notwHhstaading that,
it had a right to the lode for the length of
the location. In other words, the contention
was that it was the lode which was granted*
and that the surftuse ground was a mere in-
cident for the convenient working of the lode.
The contention was presented and denied by
the instructions whi<m were given and refused
by the lower court That court instructed
the juij that if they found Tarbet "was la
possession of the claim, describing it, hold-
ing the same in accordance with the mining
laws and the customs of the miners of the
mining district, and that the apex and course
of the vein in dispate )p within such surfticey
then, as against one subsequently entering,
he is deem^ to be possessed of the land with-
in his boundaries to any depth, and also of
the vein in the surface to any depth on its
dip, though the vein in its dip downward
passes the side line of the surface boundary
and extends beneath other and adjoining
lands, and a trespass upon such part of the
vein on its dip, thougb beyond the side sur-
face line, is unlawful to the same extent as a
trespass on the vein inside of the surface
boundary. This possession of the vein out-
side of the surface line, on its dip, is limited
in two ways — by the length of tne course oi
the vein within the surface; and by an exten-
sion of the end lines of the surface elida
vertically, and in their own direction, so as
to intersect the vein on its dip; and the right
of a possessor to recover for trespass on the
vein IS subject to only these restrictions."
Again: "The defendant (plaintiff in error)
has not shown any title or color of title to
any part of the vein, except so much of its
length on the course us lies within the Flag-
staff *surf ace, and the dip of the vein for that[3M}
length; and it has shown no title or color of
titM to any of the surface of the Sout^ Star
and Titus mining claim, except tx> so rnvteh
of No. 8 as lies within the patented sorteee
of the Flagstaff mining claim."
And the following instructions propounded
by the owner of the Flagstaff:
'^y the act of Congress of July 26, 1866,
under which all these locations are claimed
tx> have been made, it was the vein or lode
of mineral that was 'ocated and claimed;
the lode was the prinoipsl thing, and the
sjrface area was a mere incident for the coa*
venient working of the lode; the patent
granted the lode, as such, irrespective of the
surface area, which an applicant was not
bound to claim; it was his convenience fur
working the lode that controlled his location
of his surface area; and the patentee under
that act takes a fee-simple title to the lode,
to the full extent located and dajmed under
said act"
Commenting on the instructions, Hr.
Justice Bradley, speaking for the court, said:
These instructions and refusals to iiMtmet
indicate the general position taken by the
court below, namelv, that a mining clai!M
secures only so much of a lode or vein as It
covers along the course of the apex of the
vein on or near the surface, no matter hem
171 U. 8.
!■*
m. if CMDK, to kMf >^
e ^Bve witk MM ft
: .azm^; tint ki te
tt ka ffroQid,ni
E I voud nifidhi
j'ji^'
ms referred tis
line; cu j« :
4."
does 9fA mttMii
tstbe
of the ^uvcnrj
tke scope ot fee
Ti^M to thetfarti
mit.\^in like
IB cstbor oi tbe'
b^ tbe decree of tfer u -z
tD mfP|i^l«e by eAiment
oi tibe T«%n OQ its en v. ■ •«
oi tKe Use f-li at i- «-^
tare qneetiom ie m. erv «r B - *
tlimk it is dcA^nait tr \^
the 9xX of im 1» «■ —
uad SfOt T«qaii« ike kr:h:j« ^ ■
peraUriofxis. V B i
tbetibfRvvM T-^
linee libfNi^ W VB* ■•
tlui^ mdet ^2^af. tn «&- vm-
|l«e XBc^Tftoed im e Vd^ml v i
kk sturfsc^ ]^roQBd v«* nr - ^^
YcyiDot of al 'ii» • ^
.t>iiB iHc linei of tW .^^— .«
lodct, end ki^ *.«•. ^-
t the tuf or ay^- •
•ach eoilaflr Ub«
Fvrtkellj, WR r ••.
Tifeihti oa the r.ni * a?
_ nr * ••
tike dip of the «ilb»- «...^
la otbv
,7 be ^««^*i^y most •
)etvetfa tW> ^ act, and
„o estabbau » .^ ^,t
Orleans ptopct^jj^ttuct
s' *^^ la depots, and
^^^^'y^'ftnaintHinits
a-t oi ^^V;raA«vo?8 and
V therefor aj ^^^.
^^®^^I^v intersect,
^^^HlJ^d company
reet, ^«^^^4 may «*>
.^e interest «f * i* «g ot
.Mtous oi con* ^99.
tmio^^S^^t t«J*«
.Vtend it« *"*&^rTve
Ac **'*^,\: the «8"* \,
^. '***^thevvrtse. »» «
«^ •* ? on St. J°'*tA
' '^•^ •'"'^ otTot pern.»;
«ty ,v from iw*^"^'
^ a >,^ the «"^- (
^ '.e4 "J rtHe lie* ..
*tnlce8»'y
■ ■ "f and other
* ; 1 ter the 1
f;&»the^
MM09
SUPBBMB OOUBf OF THB UviTBD StATBS.
OocTm^
],:!
;i''
their locations, so continued in their own di-
rection that such planes will intersect such
exterior parts of such veins or ledges And
nothing in this section shall authorize tlie lo-
<iator or possessor of a vein or lode which ex-
tends in its downward course beyond the
vertical lines of his clum to enter upon the
surface of a claim owned or possessed by
another." Act of May 10, 1872, I 3; S 2322,
U. S. Bev. SUt
Appellant's right upon the Contact vein is
given by this statute. What limits this
right extralaterally? The statute says ver-
tical planes drawn downward through the
end lines of location. What end lines?
Those of and as determined by the original
location And lode, the circuit court of appeals
decided. Those uetermined by the direction
of the newly discovered lodes, regardless
whether they were originally intended as
end lines or side lines, the appellant, as we
have seen, contends. The court of appeals
was right. Against the contention of ap-
pellant, the letter and spirit of the statute
oppose, and against it the decisions of this
court also oppose.
The language of the statute is tbat the
''outside parts" of the veins or ledges "shall
be confined to such portions thereof as lie
between vertical planes drawn downwards
• . . through the end lines of their loca-
tions . . ." And Mr. Justice Field,
speaking for the court, said, in Iron Silver
Min. Co. V. Elgin Mining d 8. Co, 118 U. S.
196-198 [30: 98,99]:
'The provision of the statute, that the lo-
|S07]cator is entitled ^throughout their entire
depth to all the veins, l(^es, or ledges, the
top or apex of which lies inside of the surface
lines of his location, tends strongly to show
that the end lines marked on the ground
must control. It often happens that the
top or apex of more than one vein lies with-
in such surface lines, and the veins may have
different courses and dips, yet his right to
follow them outside of the side lines of the
locGition must be bounded by planes drawn
vertically through the same end lines. The
planes of the end lines cannot be drawn at a
right angle to the courses of all the veins if
they are not identical."
The court, however, did not mean that the
end lines, called such by the locator, were
the true end lines, but those which "are
erosswise of the general course of the vein
on the surface"
This court in Del Monte Mining Co, v.
LtLSt Chance Mining Co,, decided at the pres-
ent term, 171 U. S. 55 [ante, 72], reviewed
the cases we have cited, and, speaking for the
•court, Mr. Justice Brewer said:
"Our conclusion may be summed up in
these propositions: First, the location as
made on the surface by the locator deter-
mines the extent of rights below the surface;
second, the end lines, as he marks them on
the surface, with the single exception herein-
sifter noticed, place the limits beyond which
he may not go in the appropriaticMi of any
vein or veins along their course or strike;
third, every vein, the t^p or apex of which
176
lies inside of such eurftuse liiiee extwidei
downward vertically,' becomes his by rirtet
of Ms lotation, and he may pursue it to may
depth beyond his veiticsl side line%
although in so doing he enters beBeath tiM
surface of some other proprietor; looitJI,
the only exception to the nUe that the cai
lines of the location as the locator plaeei
them establish tne limits beyond which hs
may not go in the appropriation ot a vein <m
its course or strike is where it is developeii
that, in fact» the location has been placed
not along but across the course of the vcia.
In such case, the law declares that ihtm
which the locator called his side lines are his
end lines and those which he cadled aid lisei
are in fact side lines, and this, upon the pnp-
ofiitioti thait it was the intend of GbngreaB to
give *to the locator only so many feet of Um 3
length of the vein, that length to be boimded
by the lines which the locator has eiUb-
lished of his location. Our laws have at-
tempted to establish a rule by which each
claim shall be so many feet of the vein,
lengthwise of its course, to any depth below
the surface, although laterally its indinatiea
shall carry it ever so far from a perpeadica*
lar." Flagstaff Silver Mining Company r.
Tarbet, 98 U. S. 463-468 [25: 253-255].
These propositions we affirm, with the ad-
dition that the end lines of the original tcibs
shall be the end lines of all the veins fouad
within tiie surface boimdariea.
The appellant contends that by sgree-
ment, by acquiescence, and by eetoppd Um
line f-g has become the end line between tbe
two claims.
This contention is attempted to be mp-
ported by (a J A relocation of the Ne«
Years Extension claim bv which it » as-
serted it recognized ana designated the hoc
f-gta the northerly end line of the Providewy
claim, (hj The testimony of the superiih
tendent as to what took place between him
and the directors before sinking the Cham-
pion shaft, and afterwards between him and
a cotenant of complainant (appeUaat).
(aj The relocation does not in terms reo
ognize the line f-^ as the northern ead liaa |
of the Providence. Its recitals are:
"And whereas, part of this daim as ori^
inall^ described and as hereby rekKat«d
conflicts with the rights granted by the let-
ters patent of said Providence mine, said Lot
No. 40, now, therefore, so much of this daim,
both for lode and surface ground, as origiaal-
ly designated, conflicting, or now eoniSirU,
with any portion of the surface or lode,
claims or nchts granted hj mid patcat, a
and are her^y abandoned.*^
"Which portion of this claim so abaa-
doned is described as follows: All Uat
portion of the above-described New Yean
Extension claim for surface and lode which
lies south of the northern boundary Um of
said Providence mine, which runs north 43
degrees, 10 minutes east, across the tsith-
eastern comer of this claim."
It will be observed by referenes to Igw*
1 that the northern boundary 'of the Ptoth W
dence is not one line, but two lines, and it ia
171 U.^
I
vVaLKATH v. CnAMPIOK MiNIMO Co.
809-311
tU one which mils north 43* 1(K east across
the southern comer, which is designated in
tb^ relocation of the New Years daim.
la the notice of relocation, however, the
■ortheriy line of the Providence is called the
ioath end line of the relocated ground. The
deaeription is aa follows:
TIm lode line of this claim as originally lo-
eated, and which I hereby relocate, is de-
•cribed aa follows: Commencing at a point
on the northerly bank of Deer creek, which
point is 80 feet S., 11 deg. 45 minutes east, of
the month of the New leaiB tunnd and run-
Biagthenoe along the line of the lode towards
the N. E. comer of the Providence mill, about
8. 46 deg. 15 minutes east, 200 feet more or
less, to a point and stake on the northerly
iiae of the Providence Mine, patented, desig-
■Ated as Mineral Lot No. 40 for the south end
ef said lode line. And that the contact vein
crosMS on its onward course the southerly
«Dil line of said New Years Extension claim
and cntoB the lands and premises of plaintiff
described in said bill of complaint."
It is hence contended that if the line /-y is
the southerly end line of the New Years Ex-
tension it must necessarily be the northern
end line of the Providence Mine. This does
aot foUow, nor is there any concession of it.
CoiBcidence of lines between claims does not
make them side lines or end lines. Whether
thej shall be so r^arded depends upon the
togal considerations which we have already
•affidently entered into and need not repeat
We do not sav that there may not be an
aj^reenient settling end lines. One example
of iueh an agreement was exhibited in Rich*
mond Mining Oo. v. Eureka Mining Co. 108
U.& 839 [26:557].
(b) The testimony relied on was admitted
against the objection of defendants (appel-
lees.) It was as follows:
"Q. Then you may go on, Mr. Vincent, and
state how you started that work, and how
you planned it, and what communications
yoa bad, if any, with the board of directors
ef the Champion Mining Company.
• •••••••••
110] ***!. Well, I was sent up by the board of
directors to do whatever work I thought was
lor the best of the company. I started that
■halt down and had it down about 40 feet,
sad I reported to the board of directors in ses-
aon about what work I had done, and they
csleulated to go to work and put up hoisting
works and run that shaft down further.
"Q, What, if any, communication did you
make, or was there any commimication from
the board to vou concerning the direction of
the shaft, and why any given direction was
adopted for the shaft?
A. There was none, but then I reported to
the board that such was the case, that the
■haft was laid out so it would never interfere
«ith this line."
The witness further testified that he sank
the shaft 540 feet and was discharged on the
lit of August, 1889, and he was further ques-
tioiied as follows:
"Q. State whether at the time you were
idldnf; thttt ^hafi you w«re called upon by
Mr. Walrath, the oomplainanit in this aotion,
or his broitiher, Mr. Biohard Walrath, to make
any inquiry of you concerning the construc-
tion of that shaft and what the intention was,
whether to cross the Providence line or not*
as marked on the map?
"A. Well, Mr. Walrath' he happened to
come along, and he made a remark to me that
he wished for us, of course, to keep his line
and not to cross it as he didn't want any more
trouble as he did have with some other min-
ing properties adjoining; that he didn't want
any more holes in his ground, and so i an-
swered him that I would respect his line as
long as I am here.
VTho Court— That you would respect his
line as long as you were there?
"A, As long as I was superintendent of tha
mine.
"Q, Where did this conversation take
place?
"A. Right on the premises.
"Q, You were then acting as superintend*
ent, were you?
"A. Yes, sir.
"Q, What line was referred to at that time
as the Providence line; can you point it out
on the map?
"A. Yes, sir; it is the line marked 'A B' onTSllI
the map, Exhibit 4."
This testimony does not establish an equi-
table estoppel,nor is the corporation bound by
the declarations of the superintendent They
were without the scope of his agency or au-
thority.
(2) The right to that portion of the Con-
tact ledge within the boundarie^s of the paral-
lelogram hr-i-k-h* presents an interesting
question. Itdoes not appear to have been sub-
mitted to either of the lower courts, but the
right by the decree of the circuit court is
given to appellee by adjudgin;^ to it that por-
Uon of the vein on its dip which lies north-
easterly of the line g-h and its continuation.
The question is a new one in this court, but
we think it is determined by the principles
hereinbefore laid down. It may be true that
under the act of 1866 the patenting of the
Providence Mine in its irregiiliir shape was in
all respects legal and proper,. and that the act
did not require the location to be made in the
form of a parallelogram or in any particular
form, and that there was no requirement that
the end lines shoidd be parallel. It is also
true that under that act only one vein could
be included in a location, no matter how
much surface ground was included iu the ]>at-
ent, but that under the act of 1872 possossion
and enjcyment of all the surface included
within the lines of their location and of all
veins, lodes, and ledges throughout the en-
tire depth, the top or apex of which licb in-
side of such surface lines extended down-
ward vertically, were given.
But rights on the strike and on the dip of
the original vein and rights on the strike and
on the dip of the other veins, wc have de-
cided, are determined by the end lines of Ihe
location. In other words, it is the end lines
alone, not they and some other lines, which
171 V. 8. U. 8., Book 43.
It
177
I
Sil-wiJ
817PKEMB Court of the Umtkd SxAi-hs.
Oct. Tkbc,
define the extralateral riclit, and they must
be straight lines, not broken or carved ones.
The nppdlant, under his contention, would
get the right such lines would give him and
Bomethinff more beddes outside of them.
To specialize, he would get all within a plane
drawn through the line g-h, and all within
the planes dra^^nn through the sides of the
parallelogram h-i-k-h^ (Fiff. 1.)
112] *It may be that the end lines need not be
pai*allel under the act of 1866 r may converge
or diverge, and may even do so as to new
veins, of which, however^ we express no opin-
ion, but they must be straight — ^no other de-
fine planes which can be continuous in their
OMm direction within the meaning of the stat-
ute. It may be that there was liberty of sur-
face form under that act, but the law strict-
ly confined the right on the vein below the
surface. There is liberty of surface form un-
der the act of 1872. It was exercised in Iron
Bilver Mining Co, v. Elgin Mining d 8, Co.
supra, in the form of a horseshoe ; in Mon'
tana Co, Limited v. Clark, 42 Fed. Rep. 626,
in the form of an isosceles triangle.
The decree is affirmed.
CITY OF NEW ORLEANS, AppU
o.
TEXAS & PACIFIC RAILWAY COMPANY
and the Fidelity Insurance, Trust, k Safe
Deposit Company.
(See & C. Reporter's ed. 812-344.)
Ordinance to esttend railroad tracks m New
Orleans — resolutory condition — lease by
the city — suspensive condition,
1. An ordinance of the city council of New Or*
leans giving the right to extend railroad
traclrs from a depot at a designated terminus
In said city to certain points, in consideration
of the obligation to establish its terminns at
the place designated, creates a suspensive
condition, or a condition precedent.
t. A provision that certain rights granted to a
railroad company on condition of its estab-
lishing a terminus at a certain point shall
cease if the terminns is abandoned creates a
resolutory condition.
tw A lease by a city of batture to a railroad
company in order to permit the extension of
Its tracks from a terminus which it had con-
tracted to establish under an ordinance which
made that a suspensive condition is subject
to the same condition.
4. The mere payment of rent under a lease
by a city of batture, which is subject to a
suspeuslTe condition, does not change the na
ture of the condition or worlc an estoppel.
[No. 1.]
Argued January S, 4, 1898, Decided May 51,
1898.
APPEAL from a deree of the Circuit
Court of the United States for the Eastern
District of Louisiana in favor of the Texas
& Pacific Railway Company et al., complain-
ants, against the city of New Orleans decree-
ing certain ordinances invalid and perpeto-
ally restraining the city from executing nA
ordinances and ^rom interfering with eoa-
plainants in building a track in said city, ete.
Reversed and cause remanded for furthar
proceedinga.
Statement by Mr. Chief Justice FaUert
The New Orleans Paciiic Railway Compaaj
became duly incorporated under the general
laws of the state of Louisiana on June 29»
1S75. By i^rtide I of its charter, it was gives
corporate existence for the term of twenty-
five > ears from that date. By article 3 it ww
empowered among other things: "^o lay»
construct, lease, own, and uae a railroad wi&
cne or more tracks and suitable turatabies
upon such course or route as may be detm&i
by a majority of the directors of salt! cc»-
pany most expedient, beginning at a point m
the Mississippi river at .\ew Orleans, or be-
tween New Orleans and the pariah of Ibcr
ville, on the right bank of tue MiaasBippi»
and Baton Rouge on the left bank, or horn
New Orleans or Berwick's Bayt>taVermilio«-
ville, in the parish of Lafayette, and Opdoo-
sas, in the parish of St. Landry, or from say
of said points, or from any point within ths
limits of this state, and running thence to-
ward and to the city of Shreveport, or ths
city of Marshall or Dallas, in the state ei
Texas, in such direction and route or roatM
as said company shall fix, and with suck cos-
necting branches in the state of Louisiana aa
may be deemed proper; to locate, construct,
lease, own, maintain, and use such hraach
railroads and tracks as the majority of the
directors of said company may from time te
time deem proper and expedient and for tht
interest of said company to own and to um,
and lease, with the right to connect their
main line with any other line or lines in other
states, which shall authorize the exenise ol
said privile^ within their limits; to ettak-
lish and mamtain in the city of New Orleaas
proper freight and passenger de]M>ta» and te
connect them by tracks and ferries with the
left bank of the Mississippi river at iinch
point or points as may be deemed most coa-
vcnient for the public interest, and to use ia
such ferries, steamboats, and other ves!>flt,
and for the purposes of such depots, tracki,
NoTR. — As to liability of grantee upon condi-
tions in deed poll, — see note to Hlckey v. Lake
Shore & M. S. R. Co. (Ohio) 23 L R. A. 396.
As to forfeiture of estate by breach of condi-
tion,— see note to Royal v. Aoltman-Tayior Co.
(Ind.) 2 L. R A. 526.
As to condition in deed that land is to be used
for a specified charitable pubUo or guasi-publio
purpo9t: (1) Btppress conditions or stipula-
178
tions for reversion ; (S) languoQe mertt$ sp^
fying or restricting the use; grants for sckstt
purposes; for municipal purposes; for etms-
teries; for railroad uses; for other btiMttt
purposes; (8) conveyance so long a» used fwt
purpose named; (4) breach of coudittem,-^
see note to Greene v. OXonnor (R. L) 19 L &
A. 262.
171 v. •
40J7.
Hmw OiiUiAJSB V. TatXAB & Faoifio IUilwat Co.
;iia-aJ6
and ferriefl to acquire property by ezpro-
priAticn; to acquire, construct, maiiitaiD, and
ow suitable wharves, piers, warehouseSt
^urds, steamboats, harbors, depots, sbitions,
lilindoUier *works and appurtenances connect-
ed with and incidental to said railway and its
connections, and to run and manage the same
ax the directors of the said company may
deem to be most expedient and to the wel-
fare of said corporation; to construct and
maintain its said railroads, or any part of the
same, and to have the right of way therefor
across or along or upon any waters, water
cuarses, river, lake, bay, inlet, street, high-
way, turnpike, or canal within the stale of
Louisiana which the course of said railways
may intersect, touch, or cross, provided that
•aid company shall preserve any water course,
■trset, l^gh^-ay, tuiiipike, or canal which its
railways may so pass upon, along, or inter-
Mct, touch, or cross, so as not io impair its
Qttfulness to the public unnecessarily; to ob-
tain by grant or otherwise from any parish,
dty, or village within the state any rights,
privileges, or franchises that any of said par-
ttbes, cities, or villages, may choose to grant
in reference to the construction, maintenance,
management, and use of the railroads of said
company, its depots, cars, locomotives, and its
buaness within the limits of such or any of
ttid parishes, cities, and villages; to purchase
or lease from any railroad company or corpo-
ration, at any authorized sale, any railroad
aad the charter, frainchises, property, and ap-
portenances thereof, and to maintain and use
the same as & pait of the propeity ol said
company."
On February 19, 1876, the general assem-
bly of the state of lA)ui8iana passed act iMo.
U of 1876, to conQnn said charter of the
Kailway Company, with amendments there-
to, which among other things declared "that
the term of existence of the said New Orleans
Pacific Bailway Company shall be so extend-
ed that said company by its name and under
the aforesaid mentioned articles of incorpora-
tion shall have perpetual succession, and th9.t
8tireveport in Lomsiana shall be the north-
western terminus of said New Orleans Pa-
cific Railway Company, and that the main
line ahall be completed to Shreveport before
any branches shall be constructed,"
ITie city council of New Orleans on No-
Tember 9,* 1880, adopted ordinance No. 6695,
eiititlea "An ordinance granting to the New
Chrleans Pacific Railway Company or its as-
'l(]ngn8,*the right to establish its terminus with-
in its city limits, and to construct, maintain,
and operate a railroad to and from such ter-
minus with one extension for passenger pur-
poses and another one for freio-Iit purposes in-
to and through certain streets and places in
the city of New Orleans.'*
This ordinance resd:
"Whereas, the New Orleans Pacific Rail-
way Company, & corporation organized tuiil
existing imder Louisiana state laws, is vested
^ith authority under an act approved Feb-
n»ary 19, 1876, as follows, to wit: I'o locate,
construct, lease, o^-n, and use a railroad, with
•ne or more tracks and suitable turnouts, of
m u. 8.
such gauge and construction aad upon such
a coim^ or route as may be deemed by a ma-
jority of the directors of said company most
expedient, and to and between the points and
places mentioned and implied in said act, and
is hereby authorized 'to establish and main-
tain in the city of New Orleans proper freight
and passenger depots,' and to construct
vi^harves, piers, warehouses, yards, depots, and
slaiionp; and to 'construct and raaintnin its
said railroads or any part of the same, and to
have the right of way therefor across and
along and upon any street, highway, turn-
pike, or canal in the state of Louisiana which
the course of said railways may intersect,
touch, or cross. Provided the said company
shall preserve any street, highway, turn-
pike, or canal which its said raOways may so
pass upon, along, or intersect, touch, or cross
so as not to impair its usefulness to the pub-
lic unnecessarily;' and,
'"Whereas it is for the interest of the dty
of New Orleans that the southern terminus of
said railroad shall be fixed and estabUshed
within the city limits; and,
"Whereas the said New Orleans Pacifie
Railway Company is desirous of constructing
ita line of road on the east bank of the Miss-
issippi, from a crossing near Baton Rouge to
some point in the city of New Orleans, be-
tween the new canal and Melpomene street,
and to establish its terminus at such pointy
on condition that the city shall grant to the
company the right to extend its tracks from
such terminus into and through Claiborne
street to Canal street, for passenger purposes ;
and *shall also grant the right to extend its[316]
tracks from such terminus north of Claiborne
street by the most convenient and practicable
route through the public streets to the river
front for freiglit purposes, with the right to
operate the same by steam or othei*wise, as is
now done on the Belt railroad on St. Joseph
street, and on the levees by other railroad
companies in the city of New Orleans.
"Now, therefore, for the purpose of peima-
nently securing to the city of New Orleans
the advantages that will result from locating
and maintaining the terminus of the said
New Orleans Pacific Railway within the city
limits:
"Sec 1. Be it ordained by the council of
the city of New Orleans, That the New Or-
leans Pacific Railway Company be, and it if
hereby authorized and empowered to locate
construct, and maintain a railroad, with aU
necessary tracks, switches, turnouts, sidings,
and structures of every kind convenient and
useful and appurtenant to said railroad, upoi^
lines and levels to be furnished by the city
surveyor, to and from such point as shall b#
selected by such company as its terminus, be-
tween >the new canal, Claiborne canal, and
Carrollton avenue, with the right to establish
and maintain at such point necessary depots,
shops, yai-ds, warehouse 4, and other struct-
ures convenient and useful for the transac-
tion of its business., and to operate the same
by steam or otherwise for the transportatioa
of freight and passengers within the city lim-
its.
179
•ia-;ti9
BuPBBn Oomer 9V
i
..:
*
**S«>c, 2, Be H farther ordaiMd, Tkiit tte
Mid X«w OricMM FMifie Bmihraj OoaipMiy,
or its assigns, be *»d tiMj we fcuiiiiy uh
thoiited end «Eiip<>w«^ to loeete» eoBrtraet,
and mmintaiB ma «xteiisk» of its imilroed.
with «ll iic«<«issar7 trades
•iduiir^ Mid etnKt«r» ol
ieal «Ad vsefol Mid appurtesnt to
toad, upoa ItMO Mid Wves to be tovisked br
tbe ciiy Munreror uito o»i IkrM^gb CLuboime
elrtel to CumI otmK. w)t^ iW i^g^ to
itnK^ a ftt«w«$fr d«fMt «t or ■ntr tbe i
CUikhStreo otren vitb Ckael obvcs
Mid to oforato tbo »■» bv
WMO f)M> tbo trawyoitaiMtt of
ProTiML. TVu o^xikM II
Occ TJUU^
tt k ftfll forttflff
gimoi tint Olid nfl-
ite rood tram tto
nvcr, mi or mug
im titts ci^
tbm froondgotm «f
^be<w;^oaQr
Of:tt**M^^Wv W
oot^<ii^
sisiM to W
OM TCdibr Vidft
■e lBffd*< oscaur-
Oiiftt «r*jj^, tr*|: *r t***r^ Vfliu xMir^'snisic ■■&£
«$«v*ii 43U: %Tmir?traiftxc i^~ Sku: rwirmoc wwt
•iiiNt jOktKOM ^^ !:»• "^'^^sr T^oK. wca. ste
0^>a »^ tv ^*m£ -^ T* t'i:?' -^i^m^ J-^mr
* »«« *
c< *.•••. t^
V >* . ^ *<
•f
• «» •-.-
• •«i-««Mi«.U -^ "^"^ * ^ ^^- i- "-•
1T11:&
1097.
Nbw Oblbaiii ▼. Tbxai A Facifio Railway Co.
liij-'uU
within the city limits, then thii grant ■hall
cctn and terminate and be without force or
tfTeet from the date of such abandonment;
and upon the further condition that tlia said
company, at the time of laying their track
upon Thfilia street, shall pave said street from
Pilie street to Kampart street, including all
iatersectjcns of said Thalia street, with blocks
of the best hard Boston granite, oblong in
ihape, not less than eleven inches and not
Bwre than fourteen inches in width, and not
less than sixteen inches nor more than twenty-
four inches in length, and from nine to ten
inches in thickness; they shall be well quar-
ried, having paralld sides and ends, and the
npper side free from lumps. The blocks ad-
joining the gutterstones shall be cut at an an-
gle of forty-five degrees with the sides, so as
to be laid diagonally, and said pavement shall
extend from curb to curb; and the said com-
pany shall at the time of laying their track
Cive with round or cobblestone pavement,
ying with gutterstones the gutters of said
street from the end of the block paving at
Bampart street to Claiborne street, with the
privilege of using for the pavement the cobble-
stones removed Srom that part of the street to
be paved with square block — the rails to be
Itid in the pavement so that the top of the
ISO>ailf thaU he flush with the surface *of the
pavemoit ; and upon the further condition that
laid railway company shall at all times keep
laid pavement from curb to curb in repair;
and the further condition that all construc-
tion work within the city limits shall be ex-
ecuted under the direction and supervision of
the eity surveyor and completed to the satis-
faction of the administrator of improvements
and the administraMxyr of oommerce; and it
is farther made a condition of this grant that
•aid railway company shall complete its road
from the crossing of the Mississippi river, at
or near Baton Rouge, to the terminus in this
city, within two years from the promulgation
sf this ordinance.
''Sec 3. Be it further ordained. That unon
fht failure of said company to comply within
three days with any notice of the department
of improvements to repair any portion of the
■treet or streets through which said company
■hall lay its tracks, they shall be fined
twenty-five dollars for each and every day
they ftul to comply with said notice; said fine
to he recoverable before any court of compe-
tent jurisdiction."
In 1881 the New Orleans Pacific Railway
Company purchased a railroad already con-
■tmcted by the New Orleans, Mobile & Texas
BaOroad Company on the west bank of the
IkCssisBippi river, extending from Bayou
Goula, a point near Baton Rouge on the west
litik, to Westw^o, also on the west bank,
ud just opposite New Orleans, bubsequent-
ly on March 29, 1881, the city council passed
ao ordinance. No. 6938, as follows t
"Whereas the New Orleans Pacific Railway
Company has purchased the road heretofore
ccBstmcted under the charter of the New Or-
louia, Mobile, k Texas Railroad Company, on
the west bank of the Mississippi River, be-
tween Bayou Goula and Westwego, and with
a Tiew to maintaining and operating the said
road in connection with and as a ]^urt of its
through line to and from its terminus in New
Orleans, designated in section i of ordinance
No. 6695, administration series, passea on i he
ninth day of November, 1880; such line to
cross the Mississippi river from a poinj at or
near Westwego to a point on the east bank
of the river in front of the Upper City Park,
late Foucher property; thence to extend by
the best and most practicable *route to the[821]
desifi^nated terminus, between the new canal,
Claiborne canal and CarroIIton avenue:
"Now, therefore, for the purpose of securing
to the city of New Orleans the advantages,
that win result from locating and perma-
nently maintaining the terminus of the New
Orleans Pacific Riulway within tne limits of
the city of New Orleans, as herinabove
recited ;
"Sec. 1. Be it ordained by the council of
the city of New Orleans, That the New Or-
leans l*acific Railway Company, or its assigns,
be, and are hereby, authorized and empow-
ered to locate and maintain a railroad with
all necessary tracks, switches, turnouts,
sidings, and structures of every kind conven-
ient, useful, and appurtenant to said railroad,
from such point on the river front as its cross-
ings from Westwego shall be located at in the
vicinity of the Upper City Park, along the
western border of the said city park, and from
thence by the best ana most practicable route
to its designated terminus east of CarroIIton
avenue.
"Sec. 2. Be it further ordained, etc.. That
the city of New Orleans sgrees to lease unto
the New Orleans Pacific Railway Company,
its Successors and assigns, for the period of
ninety-nine years, and at the price of five
hundred dollars per annum, payable annually
in advance, all tnat strip or parcel of ground
on the river front of said Upper CSty Park,
south of Tchoupitoulas street, or soutn of an
extension of Tchoupitoulas street, in a west-
wardly direction, and between a prolonga^
tion of the east and west boundary lines of
said park to the river, with all the batture
formed thereon, or which may form during
the term of said lease, with the right to es-
tablish and maintain upon said grounds such
ferry facilities, whar\'es, piers, warehousesi
yards, tracks, depots, stations, sheds, eleva-
tors, and other structures as shall be neces-
sary and convenient for the transfer of cars,
engines, passengers, and freight, and in the
transaction of its business. No vessel shall
occupy or lie at such wharves without the
consent of said company, its successors or as-
signs, and all vessels lying at or using said
wharves with such consent shall be exempt
from the payment of levee or wharf dues to
the city of New Orleans; the proceeds of such
lease shall *be applied by the city to the im-[322]
proveroent of said park.
"Sec. 3. Be it further ordained, etc.. That
the said New Orleans Pacific Railway Com-
pany, its successors and assigns, shall have
the right to extend its tracks from the said
ground so leased between the Upper City Park
and the river front, easterly along saia river
181
9:U~4U
SUFRSMS COUBT OF THX UnITKD StaTU.
Oct. Txuf,
front to connect witli the Belt road at Louia-
iana avenue, and to connect at Jackson street
with tracks heretofore authorized to be con-
structed between Jackson and Julia streets
by section 3 of ordinance 6695, administra-
tion series, adopted NoYcmber 0, 1880, and by
ordinance No. 6732, same series, adopted De-
cember 3, 1880, provided that between Louis-
iana avenue and Jackson street the trains of
9aid company shidl be run only between sun-
set and sunrise on said track, except in case
of emergency and neces^ty beyond the rea-
sonable control of the company.
"Sec 4. Be it further ordained, etc. That
.the said New Orleans Pacific Railway Com-
pany, its successors and assigns, shaill have
the right, and the same is hereby conferred
for the term of its charter and from and after
the expiration of the existing lease of the dty
wharves, to inclose and occupy for its pur-
poses and uses, that portion of the levee bat-
ture, and wharf in the city of New Orleans in
front of the riparian property acauired or
to lie tioquired between Thalia and
Terpsichore streets, and to erect and
maintain thereon at its own expense
such ferry facilities, wharves, piers, ware-
houses, elevators, yards, tracks, depots,
stations, sheds and other structures as shall
be necessary and convenient for the transfer
ot cars, engines, passengers, and freight, and
in the transaction of its business. No vessel
shall occupy or lie at such wharves without
the consent of said company or its successors
or assigns, or discharge or receive car^ there-
at, and all vessels lying at or Msmg said
wharves by such consent and on the busine«w
cf the company shall be exempt frona the
payment of levee or wharf dues to the city of
N^ew Orleans.
"Said wharves and other structures shsll
be lighted and policed by said company at
its own expense.
"Any vessel lying at these wharves with
[388]the consent of the company, *but not on its
business, or not for the purpose of discharging
or receiving treight or passengers to or from
said company as a carrier, shall be liaUe to
tSie city for usual wharf or levee dues.
"Any vessel using said wharf to receive
any freight not coming to or going from said
company as a carrier shall pay usual wharf-
age dues to the city.
"In consideration of the permission hertfn
given the company will build three hundred
feet of new wharf at such point between
Terpsichore and Jackson streets, for the dty,
as tne administration of commerce may indi-
cate, and will pave Pilie street between Thalia
and Terpsichore streets, and Terpsichore
street between Pibe and Front with square
blocks of granite or with blocks of compressed
asphalt, and keep the same in good order.
"The rights conferred by this section shall
not be held to interfere with the rights of the
dty to poUce any part of the river front.
"Sec 6. Be it further ordained, etc, lliat
the mayor be, and he is hereby, authoriied
and directed to enter into a proper notarial
182
contract of lease for the purpose of eanyxM
out the provisions of the second atetiamm
this ordinance
"Sec 6. Be it further ordained, etc. Hist
the right of way, franchisee, and privOmi
herein and heretofore granted to the New
Orleans Padfic Bailwajr Company are and
were n'anted on condition and in eonsidera* ,
tion that the said grantee shall permanently
establish its terminus within the dty Units,
and shall mainfjiin said terminus during the
existence of the charter of said company, for
which period the said franchises, rights of
way, grants, and privil^es shall last and
continue; and should the said railway eom-
pany at any time hereafter remove its termi-
nus from within the dty limits, then this
grant shall cease and terminate and be with-
out force and effect from the date of Bach
removal; and the further condition that tht
construction work within the dty limits
shall be executed under the direction and
supervision of the city surveyor, and com-
pleted to the satisfaction of the administn-
tor of public improvements and the sdnda-
istrator of commerce; and the further eon-
dition *that said nulway company shaU co»{SS^
struct or control a line of road, ready for
public use, from a crossing of the lOssissippi
river to its designated t^minua in this dty,
within two years from the promulgation of
this ordinance"
The New Orleans Pacific BaUway Oob-
pany, on June 20, 1881, entered into a writ-
ten agreement with the Texas A Padfic Rail-
way Company, a corporation organind under
the laws of uie United States, by the terns
whereof the New Orleans Padfic RaUway
Company consolidated itself with the Texas
& Pacific Railway Company <m the terns and
conditions specified in the agreement, '%y
granting, bar^ning, seUing," etc, "unto the
Texas i Pacific Railway Company all the
franchises, corporate rights, or privileges o<
the New Orleans Padfic RailwaT ConuMUiy,
together with its track, roadbed, boildingi,
roUing stock, engineer's tools, bonds, stodo.
grants, privileges, property (real and per-
sonal), and every right, title, and interest in
and to any franchises or property, real or
personal, and all rights of every na»
kind in which the New Orleans Padfic Rail-
way Company had any right, privilege, or
interest, situated and being in the state of
Louisiana or in the state of Texas, or ebs-
where, it being dedared by the agiecnwt
that ihm object of the agreem^it was to m
raerse the rights, powers, and privikgei of
the New Orieans Padfle Railway Compsny
into the Texas & Padfie Railway Oonpsny
that the Texas & Padfie Railway Oonpsny
under its own chartered name and orfanm-
tion shonld, without impairing any existiag
right, exercise in addition thersto, all the
powers, rights, priyfleffss, and franehiMi sad
own and control all tne propertieB that the
New Orieans Padfic Raflway Oompaay then
exeidsed and owned, or by its diartv sad
by-laws it had the right to exerdas, own m
control.*
171 V. &
1097.
NrW 0&LEAV8 y. TbXAB & PACUriG RAILWAY Co.
324-827
Tbereftfter, on July 11^ 1882, the city coun-
cil adopted ordinance No. 7946, as follows:
"An Ordinance Supplementary to Ordinances
6606, 6732 and 6938, Administration Series,
Granting certain Eights to the New Or-
leans Pacific Railway Company and its As-
agns, and Providing for the Selection of a
Site for the Claiborne Market.
f5] ^'^hereas by section 2 of ordinance 6695,
administration series, a right was given to
the New Orleans Pacific Railway Company,
or its assigns, to locate, construct, and main-
tain an ext^ision of its railroad through
Qaibome street, with a right to construct
a passenger depot on the neutral ground of
Qaibome street, at or near the intersection
of Claiborne street with Canal street, with a
proviso that should it become necessary for
the building of the depot or laying tracks to
remove the Qaibome market, then the New
Orleans Pacific Railwav Company, or its as-
Bgns, should rebuild the same at their own
expense on such lots as the city shall desig-
nate; and
**Wherea8, by ordinances Nos. 6732 and
6938, administration series, certain rights
hare also been granted to said company and
its assigns with reference to the said Clai-
borne street and to Thalia street, and the
eompany has built its road from Baton Rouge
to New Orleans, crossing Thalia street, and
established its terminus in the city limits at
Tbalia street and the levee, and is preparing
also to cross from Westwego to the City
Park, and thence to Claiborne street; now,
therefore,
''Sec 1. Be it ordained by the council of
the dty of New Orleans, that the administra-
tor of improvements, the administrator of
eommerce, and the administrator of water-
works and public buildings, be, and they are
hereby, authorized and directed, within sixty
days from the passage of this ordinance, to
select such lots as may be needful and proper
for a new site for said market; and when
•ueh selection shall have been made ' th^y
•hall deposit a proces verbal thereof in the
oflice of the administrator of waterworks and
public buildings.
"Sec 2. Be it further ordained. That when-
erer said company or its assigns shall find it
neeessary to remove said building it sh^ be
rebnilt on said lots so selected and as pre-
■eribed in said original ordinance.
''Sec 3. Be it further ordained, That in
crossing the new canal under its charter, and
leeording to the said ordinances, the said
raflway company, or its assigns, shall do so
bj means ol a proper drawbridge."
M] *The company also sent its olioerswi^^hoer-
tain dty officem in the summer of 1882 to
inspect lots thought suitable at that time for
the Qaibome market, when the removal of
the market might be decided upon; and
itated l^ its officers that the lots would be
pnrdiased, the market taken down and an-
other market put up, but that if this was not
isti^bu*tory to the city, the city should re-
■sin alent for a while, because if it were
kBown the railroad wanted the lots, too much
Vivld be aakad for them. In the summer ol
111 V. 9.
1883, the company demanded from the city
surveyor lines and levels for a track on the
river front from Louisiana avenue to Jack-
son street, and the city surveyor not fur-
nishing them, instituted suit June 11, 1883,
in the civil district court for the parish of ^
Orleans, where the same is still pending, to
compel the city surveyor by writ of manda-
mus to furnish such lines and levels. The
company also paid $1,000 rent for the two
years ending March 8, 1,882 and 1883, under
an alleged lease of the batture in front of the
upper city park and made a tender of $500
for rent under said alleged lease for the year
ending March, 1384, and acquired by private
ownership four squares of ground adjoining
the upper city park, two squares fronting the
river and two in the rear thereof.
The record showed that the railroad com-
pany did not establish its terminus in the
rear of the city of New Orleans at the place
designated by ordinance 0695 of November 9,
1880, and referred to in ordinance 0732 of
December 3, 1880; that tjie company did not
as stated or required in ordinance 6938 of
March 29, 1881, make itR terminus on the
west bank of the Mississippi river at West-
wego, and there erect it' wharves, inclines,
and structures, necessary for the purpose of
crossing the river at that point so ae to reach
the east bank on* the batture in front of the
City Park; and that tho. company did not
build its road from th> batture along the
edge of the park through the designated
streets to the point in the rear of the city
where the proposed tenuiaus was to be lo-
cated under and in accordance with the pro-
visions of the city ordinances, which have al-
ready been stated. And the record also dis-
closed that instead of making Westwego its
terminus on the west *bank of the river, the[38T]
railroad was prolonged nine miles further
down the bank of the river to a point desig-
nated as Gouldsboro; aad this latter point
being approximately opposite the foot of
Thalia street on the east bank of the river,
wharves and inclines we^'e constructed at
Ciouldsboro, whence the traffic of the road
was carried across the river to the foot of
Thalia street in the city of New Orleans,
where depots and struc .ures have been ee-
tablished by the company.
On the 15th of April, ii>S4, the city council
adopted an ordinance, Nj 085, council series,
as follows:
''An Ordinance Repealing certain Sections of
the Ordinance No. 6938, A. S., Granting
Privileges to the New Orleans Pacific Rail-
way (>>mpany.
''Be it ordained. That 8 two (2) of the ordi-
nance No. 6938, A. S., passed March 1881,
granting to the New Orleans Pacific Railway
Company a lease of the Upper City Park bat-
ture property, be, and the same is, hereby re-
pealed and revoked."
June 16, 1886, the city council adopted an
ordinance. No. 1828, couni*il series, as follows:
"An ordinance repealing certain rights
granted to the New Orleans Pacific Railway
Conopany under ordinanc 0695, A. S., adopt-
ed November 9, 1880; No 6732, A. S., adopted
183
827-380
SUPRBMB COUBT OF THE UNITED STATK6.
Oct. Teiui,
December 8^ 1880; No. 6938, adopted March
29, 1881; Na 7946, adopted July 11, 1882;
"Whereai the city of New Orleans granted
to the Pacific Railway Company the right to
extend its tracks through Claiborne street to
Canal, to erect a passengai depot on Claiborne
street near Canal street, construct tracks
from Claiborne street to and through Thalia
street to the riyer; and
'H^ereas the original grantee company
has merged its identity with that of an alien
corporation, which itself is now in the hands
of a receiyer appointed on the prayer off an
alien corporation; and
'^liereas such rights were granted on ya-
rious conditions wMch haye not been com-
plied with, and the delay for so doing has
elapsed; and
''Whereas by the acts of said New Orleans
IMSJPacific Railway 'Company such rights haye
been abandoned, and it h necessary for the
Sublic good that Claiborne street, between
k>mmon street and the Old Basin, shall be
used for steam and horse railway and depot
purposes:
'Therefore, be it ordained by the council
of the city of New Orleans, That all rights
of way on Claibome street, rights to establish
a passenger depot on sail street, and rights
to connect any steam or other railway by the
New Orleans Pacific Railway Company
through or on Claibome street, or to erect
any depot thereon, whethe racquired through
or by the ordinances aboye enumerated or
through or by any other ordinance of the
coun^l of the city of New Orleans, he and the
tame are hereby repeal ed and reyoked."
July 2, 1886, the receiyers of the Texas ft
Pacific Railway Corapary, and the Fidelity
Insurance Trust and Safe Deposit Company,
died a bill of complaint in the circuit court
of the United States for the easftem district
of Louisiana, which alleged the incorporation
of the Texas ft Pacific £ulway Company un-
der certain acts of Congress, the acquisition
by the Texas ft Pacific Railway Company of
all the property and franchises of the New Or-
leans and Pacific Railway Company, the ap-
pointment of receiyers of the Texas and Pa-
cific Railway Company, the adoption by the
city of New Orleans of or.linance No. 6695, on
Noyember 9, 1880; of ordinance No. 6732, on
December 3, 1880; of ordinance No. 6938, on
March 29, 1881 ; the full and fair compliance
by said New Orleans ft Pacific Railway Com
pany and the Texas ft Pacific Railway Com
pany with the conditions imposed by said or
dinances; the adoption of ordinance No
7946; the repealing ordinance. No. 685, coun
cil series, adopted April 24, 1884, and No
1828, council series, adopted June 8, 1886;
the violation hy the adoption of said ordi
nances of the contract created by ordinances
Nos. 6695, 6732, and 0938, administration
series, and prayed that ordinances No. 685
and No. 1828, council seiies, be adjudged and
decreed to be illegal and injurious to com-
£Iainants, and be canceled, and the right of
ie Texas ft Pacific Railway Company, under
ordinance No. 6695, to lay its tracks and build
184
a passenger dopot on tho nmitral *grouai o^
Claibome street, near Cuial iUeei> mad to lo-
move the Claibmne market, be dedsred aad
decreed, and its right to the laade of end
Park batture, under the stecond section of or-
dinance No. 6938, be declared and decreed;
and its right to haye lines furnished l^ the
proper ofiicial of the city for its route from
Louisiana avenue to Jackson street, along
the river front, under the third section ot
said ordinance, be declared and decreed and
specifically enforced.
That the city of New Orleans be enjoiaed
and restrained from in anywise executing or-
dinance No. 685 and onlinance No. 1828,
council series, and fnnn g>nting to any other
person or ciMrporation the rights sought to be
taken away by said ordmanoea Noe. 685 and
1828.
The city of New Orleans filed iU
November 1, 1886, which admitted the
poration of the Texas ft Pacific Railwaj Com-
pany; the incorporati<m c»f the New Oiieans
Pacific Raiiway Company; the contmet en-
tered into between the New Orleans Facifte
Railway Company and the Texas ft Padlt
Railway Company, averring, however, the
effect of said contract to he that the Texas 4
Pacific Railway Company was held and boond
to all the obligataons imposed upcm the New
Orleans Pacific Railway Company, and was
affected by all the equities existing boieKa
the New Orleans Pacifi'^ Railway Company
and the city of New Orleans; the sppointmeat
of the receivers; the adoption of ordinanet
No. 6695, on the 9th of November, 1880; or-
dinance No. 6732, on December 3, 1880; ordi-
nance No. 6938, on Marcii 29, 1881; the fail-
ure on the part of complainants to oom|dy
with the obligations imposed bv said ordi-
nances; the nullity of the tease of the battnrt
in front of the Upper City Park purported te
be granted by ordinance No. 6938, and the
nullity of the grant of the right to bnild a
depot on the neutral ground oi CUbons
street, aaid batture in front of said park and
said neutral ground beins dedicated to pab-
lic use; and the legality of the repealing ordi-
nances 685 and 1828, council seriea.
On the 3d of February 1887, complainants
filed a eupi^emental bill which alleged that
under the ordinance set forth in the origins]
bill of complaint, the wharf of the Tena 4
'Pacific Railway Company, its transfers aad(3SI
incline between Thalia and Teipsiehoit
streets, at New Orleans, had been doly eon
struoted and used for about live yean, and
in like manner and during the same tins the
tracks of said, railway, conneetinff its trans-
fer facilities and its depots and ueda at iti
Thalia street term*nus, had been laid and nssd
in Pilie and Water struts, and along the
river front from Thalia direct up to abont
Race street; that it had become neeessary
for the business of said railway to lay a
small spur track to conn<tct said wharf abofe
the transfer slip with the ssid tracks on Piht
and Water streets; that the complainants
had applied to the city surveyor lor lines and
levels of said spur track; that the city enr
veyor refused to grant said lines and levsii
171 V. ■»
1807.
Nsw Oblbans ▼. Texas & Pacific Railway Co.
:i30-335
noder a certain resolution of the coundl of
September 15, 1885, prohibiting him from ^iy-
ing any lines for »uon work in the street with-
out submitting the question to the council;
tliat asid resolution was illegal and a breach
•f eomplainant's contract, and that interfer-
Aee by the mayor of the city with coraplain-
tafs buildhig said -spni track was appre-
teded.
Upon thess allegations a writ of injunction
WIS prayed fm*, restraining the cky from in-
towering with complainants in the work of
bofldiiiff said spur track to connect the wharf
above the transfer incline between Thalia and
Terpsiehore streets with the tracks of the
nilvay between Thalia and Water streets,
along the riyer front, and in the work of
stie^S^hening and filling up said wharf and
driving piling to reach the same with said
spar, and for a decree as prayed for in their
original bilL
Upon this supplemental bill a restraining
Older was granted which, by agreement, was
to stand as an injunction jiending suit.
On the 23d day of June, 1891, a final de-
sree in Ulyot of oomplainauts, granting in full
the prayer of their bill, was rendered.
From this decree the city of New Orleans
•{^)ealed.
Ifr. Samuel Xi. Gilmore for appellant.
JTenn. W. W. Howe and/. F, DiUon for
tppelli
81] *Mr. Chief Justice Fuller deliyered the
opinion of the court:
The assignments of error relate to three
iobjects: l^rst, thebatture or space in front
el the City Park, embraced in the lease made
by the titj to the railroad company in exe-
eotiai of the terms of the city ordinance;
seeond, the construction of a track on Clai-
borne and Canal and the building on Clai-
home near Canal of * passenger depot; and,
lastly, the wharfage rights claimed by the
railroad company by ordinances 6695, 6732,
in virtue of $ 4 of ordinance No. 6938.
The argument as to the first and second
aarignments is, that the right granted to the
niuoad company by ordinances 6695, 6732,
aid 6938, to extend its track from the point
doignated as its ierminu?, in the rear of the
city along Claibome to Canal, and there to
tmfld a passenger depot, as also the lease,
whieh, to carry out the ordinance, empowered
the railroad eompanT to use the batture in
front of the park, and to construct its railroad
along the edge thereof through certain desig-
■ated streets to the rear of the city, were lul
granted to the railroad company as accessory
lights, depending for their existence upon the
croaang at Westwego and Uie location by th#
nihoad company of its terminus in the rear
<rf the dty. In other words, that these rights
vcre given to the railroad company, subject
to conditions precedent, or, to use the Ian-
gvage of the law of LouUiana, subject to sus-
paaive conditions. It is further contended:
'hst, that in consequence of the failure of
^ nikoad company to cross at Westwego
ni ir. s.
and to locate its terminus as aforesaid, and
its election, on the contrary, to continue its
road down the river to Gooldsboro and thert
cro^B the river, it never acquired the right to
enjoy the privileges above mentioned, and
hence that the repealing ordinances are valid.
Second, that even if the rights in favor of
the company above mentioned were not
granted to it on a suspensive condition, they
were clearly subject to a resolutory or dis-
solving condition arising from the obligation
to cross at Westwego and to locate the ter-
minus in the rear of the city at the point
designated in the original 'ordinance, the con-[83flf
tention being that the failure to do so within
the period named in the ordinance authorized
the city to treat the contract as dissolved
and pass the repealing ordinances in question.
The railroad company meets these proposi-
tions by denying that crossing at Westwego
and the location of the terminus in the rear of
the city, at the point named in the origini^
ordinance, was made a condition suspending
the operation of the grant of the rights above
stated, and argues that even if it be conceded
that the location of the terminus at the point
originally pointed out created a condition, it
was not a suspensive but a resolutory one.
Although it is admitted that the happening
of a resolutory condition dissolves the con-
tract, yet such consequences, it is asserted, do
not arise from the mere happening of the con-
ditio.n, and cannot be availed of by one of
the contracting parties of his own will, since
before the resolutory condition can be in-
voked it must be established by a suit
brought that such condition has arisen and
that the effect of its existence has been to
difiscdve the contract. That is, the claim is
that under the law of Louisiana a dissolving
or resolutoory condition does not operate upon
the contract propria vigore, but requires the
judgment or decree of a cmrt to give it effect,
and that before finding a contract dissolved
in consequence of a resolutory condition, the
court has the power to obviate the effect of
the condition bv givins further time to per-
form the act from which the condition it
claimed to have arisen, if, in its judgment,
the equities of the case so require.
The question which first anses is. Was the
right of the railroad company to the prop-
erty in front of the park and to the track
on Claibome street, including the construc-
tion of a passenger depot on Claibome near
Canal, subject to suspensive conditions? The
Louisiana Civil Code provides as follows:
**Art. 2021. Conditional obligations are
such as are made to depend on an uncertain
event. If the obligation is not to take effect
until the event happen, it is a suspensive con-
dition; if the obligation takes effect imme-
diately, but is liable to be defeated when the
event happens, it is then a resolutory con-
dition.
*'^Art. 2022. Conditions, whether suspensiveroAM
or resolutory, are either casual, potestative/' ^^
or mixed."
"Art. 2024. The potestative condition is
that which makes the execution of the agree-
ment depend on an event vihich it is in the
185
333,834
SopREMx Court of thb Unttbd SrAXEa.
Oor. TbHi
power of the one or the other of the contract-
ing parties to bring about or to hinder."
In defining the suspensive condition the
Louisiana Code says:
"Art. 2043. Tbe obligation contracted on
a suspensiye condition is that which depends
either on a future and uncertain event, or
on an event which has actually taken place,
without its being yet known to the parties."
These provisions of the Louisiana Ck>de are
like those of the Code Napoleon on the same
subject Arts. 1168, 1170, 1181.
In Cornell v.Hope Insurance Company, 3
Mart N. 8. 223, 226, the supreme court of
Louisiana said, in respect of conditions prece-
dent:
'*They are recognized and provided for by
our system of iurisprudence, and by every
other that has in view the ordinary transac-
.tions of men. The obligation is conditional
when it depends on a future or uncertain
«vent, says our Code. The event then must
be shown to make the obligation binding on
the party against whom it is presented. For
until it takes place, he is not bound to per-
form what he has promised. Civ. Code, 272,
art 68. There is an exception to this rule in
regard to the dissolving condition. But in
relation to all others it is true, and it is a
matter of no moment whether we say the
obligation is suspended until the condition
is performed— or that the performance of the
condition must precede the execution of the
obligation. Civ. Code, 274, art 81 and 3;
Toullier, Droit Civil fVancaise, liv. 3, tit. 3,
chap. 4, No. 472; Pothier, Trait6 des Ob. No.
202."
"The effect of a suspensive condition, as its
name necessarily implies, is to suspend the
obligation until the condition is accomplished
or considered as accomplished; till then noth-
ing is due; there is only an expectation that
what is undertaken will be due; pendente
conditione nondum dehetur, aed spes est debi-
tum iri," Pothier, Traits des Ob. 218.
{334] *The suspensive condition under the Loal^
1S%
iana Code is the equivalent of the <*n«MtTfwa
precedent at common, law.
The general j^rindples in nBpeei of eoifi-
tions precedent are set forth sufficiently lor
the purposes of this case by Cbief Jnstiet
Shaw in Proprietors of Mill Dam Fomtderj/
V. Hovev, 21 Pick. 440, cited bv appdlaiit
Where the undertaking* on one side is intenoi
a condition to the stipulation on the other,
that is, where the contract provides for the
performance of some act, or Uie i»^ppMi«»g
of some event, and the obUgationa of the eoa-
tract are made to depend on sudi perforai-
ance or happening, the conditaons are eoadi-
tions precedent The reason and sense of tht
contemplated transaction, aa it must have
been imderstood by the parties and is to be
coUected from the whole oontraet, detenmne
whether this is so or not; or it may be de-
termined from the nature of the acts to be
done and the order in which they must Be^
essarily precede and foUow each other in tbe
progress of performance. But when the set
of one is not necessary to the act of the otber,
though it would be convenient, useful, or
beneficial, yet as the want of it does not pre .
vent performance, and the lo« and ineoa*
venience can be compensated in damefei,
performance of the one is not a eoaditiaB
precedent to performance by the other. The
nonperformance on one side must go to tbe
entire substance of the contract and t» tbe
whole consideration, so that it may sMj
be inferred aa the intent and just eoBlt^^
tion of the contract that if the act to be per
formed on the one side is not done, there ii
no consideration for the stipulationt on tbe
other side. See Cutter v. Powell, 2 Smitb,
Lead. Aub. [7th Am. ed.] 17, and noCee.
In examining the contract embodied in tbe
ordinances it is essential to have in mind tbe
particular territoiy to whidi the ordintaeei
relate, and we therefore insert aa oothai
sketch extracted from a map of the dty of
New Orleans contained in Hm raeoid.
[8m loHowing page.]
vnu
Nbw Oblbabb v. Texib dk PAcmc Bailway Oqu
ni IT. 8.
18T
sii-uia
Sup HEME COUBT OF THE UkITIU) StATK8.
Oct. Tebi^,
I
f y
define the extralateral ric^lit, and they must
he straight lines, not broken or curved one&
The appellant, under hia contention, would
get the right such lines would give him and
something more besides outside of them.
To specialize, he would get all within a plane
drawn through the line g-h, and all within
the planes drawn through the sides of the
parallelogram A-i-fc-V (Fig. I.)
112] *It may be that the end lines need not be
pai-allel under the act of 1866 r may converge
or diverge, and may even do so as to new
veins, of which, however, we express no opin-
ion, but they must be straight — ^no other de-
fine planes which can be continuous in their
own direction within the meaning of the stat-
ute. It may.be that there was liberty of sur-
face form under that act, but the law strict-
Iv confined the right on the vein below the
surface. There is liberty of surface form un-
der the act of 1872. It was exercised in Iron
BUver Mining Co, v. Elgin Mining d 8. Go.
supra, in the form of a horseshoe ; in Mon-
tana Co, Umiied v. Clark, 42 Fed. Rep. 626,
in the form of an isosceles triangle.
The decree is affirmed.
CITY OF NEW ORLEANS, Appt^
V.
TEXAS A PACIFIC RAILWAY COMPANY
and the Fidelity Insurance, Trust, ft Safe
Deposit Company.
(See & C. Reporter's ed. 812-344.)
Ordinance to extend railroad tracks in Ifew
Orleans — resolutory condition — lease by
the city — suspensive condition.
1. An ordinance of the city conncil of New Or*
leans giving the right to extend railroad
tracks from a depot at a designated terminus
In said city to certain points, in consideration
of the obligation to establish Its terminus at
the place designated, creates a suspensive
condition, or a condition precedent.
t. A provision that certain rights granted to a
railroad company on condition of Its estab-
lishing a terminus at a certain point shall
cease If the termious Is abandoned creates a
resolutory condition.
t. A lease by a city of batture to a railroad
company In order to permit the extension of
Its tracks from a terminus which it had con-
tracted to establish under an ordinance which
made that a suspensive condition is subject
to the same condition.
i. The mere payment of rent under a lease
by a city of batture, which is subject to a
suspensive condition, does not change the na
ture of the condition or work an estoppel.
[No. 1.]
Argued January S, h iS98. Decided MajfSl,
1898.
APPEAL from a de-ree of the Circuit
Court of the United Slates for the Eastern
District of Louisiana in favor of the Texas
A, Pacific Railway Company et oi., complain-
ants, against the city of New Orleans decree-
ing certain ordinances invalid and perpetu-
ally restraining the cit^ from executing sack
ordinances and ^om interfering with com*
plainants in building a track in said city, etc
Reversed and cause remanded for further
proceedings.
Statement by Mr. Chief Justice TwSUirt
The New Orleans Pacilic Railway Company
became duly incorporated under the general
laws of the state of Louisiana on June 29,
1S75. By article 1 of its charter, it was gives
corporate existence for the term of twenty-
five >'ears from that date. By article 3 it wss
empowered among other things: "lo lay,
construct, lease, own, and use a railroad with
one or more tracks and suitable turntables
upon such course or route as may be deemed
by a majority of the directors of sail! com-
pany most expedient, beginning mi a point m
the Mississippi river at New Orleams or be-
tween New Orleans and the parish of Ibei^
ville, on the right bank of the Mississippi,
and Baton Rouge on the left bank, or from
New Orleans or^erwick's BaytHaVermilioB-
ville, in the parish of Lafayette, and Opeloo-
sas, in the paiish of St. Landry, or from ^ny
of said points, or from any point within tbs
limits of this state, and running thence to-
ward and to the city of Shreveport, or the
city of Marshall or Dallas, in the state U
Texas, in such direction and route or rontm
as said company shall fix, and with such cos-
necting branches in the state of Louisiana ss
may be deemed proper; to locate, construct,
lease, own, maintain, and use sudi branch
railroads and tracks aa the majority of the
directors of said comnany may from time te
time deem proper and expedient and for tbs
interest of said company to own and to vm,
and lease, with the right to connect their
main line with any other line or lines in other
states, which shall authorize the exente of
said privilep;e within their limits; to estab*
lish and maintain in the city of New Orleapt
proper freight and passenger depots, and te
connect them by tracks and ferries with the
left bank of the Mississippi river at rack
point or points as may be deemed most coa*
veniont for the public interest, and to use ia
such ferries, steamboats, and other ve»eli,
and for the purposes of such depots, trsckii
NoTR. — A§ to liahility of grantee upon condi-
tions in deed poll, — see note to Hlckey v. Lake
Shore & M. S. R. Co. (Ohio) 23 L. R. A. 396.
A$ to forfeiture of estate by breach of oondt-
tion, — see note to Royal v. Aoltman-Taylor Co.
<lnd.) 2 L. R. A. 526.
As to condition in deed that land is to be used
for a specified charitable pii5No or quasi-publio
purpoit: (1) Express conditions or stipula-
178
tions for reversion; (2) languoife merely tp^
fying or restricting the use; grants for sekotl
purposes; for municipal purposes; for etmS'
teries; for railroad uses; for other Imsimtts
purposee; (8) conveyance so long as used fw
purpose named; (4) breach of contfiNem^
see note to Greene v. O'Connor (R. L) 19 L 1.
A. 262.
171 V.t
I ''
A0J7.
Hmw OuuiAna V, TiULAB & Pacific IUilwat Co.
;iia-;>Jd
and ferriei to acquire property by ezpro-
prinUcn; to acquire, construct, maintaiii, and
nae tuitahle wharves, piers, warehouses,
yards, steemboats, harbors, depots, stsitions,
l#lind other * works and appurtenances connect-
ed with and incidental to said railway and its
(onnectioDs, and to run and manage the same
w the directors of the said company may
deem to be most expedient and to the wel-
Uit of said corporation; to construct and
maintain its said railroads, or any part of the
nme, and to have the right of way therefor
arroea or along or upon any waters, water
coarees, river, lake, bay, inlet, street, liigh-
vay, turnpike, or canal within the state of
Louisiana which the course of said railways
may intersect, touch, or cross, provided that
said company shall preserve any water coui*se,
street, highway, turnpike, or canal which its
railways may so pass upon, along, or inter-
sect, touch, or cross, so as not io impair its
usefulness to the public unnecessarily; to ob-
tain by grant or otherwise from any parish,
d^, or village within the state any rights,
privUeges, or franchises that any of said par-
ishes, cities, or villages, may choose to grant
in reference to the construction, maintenance,
management, and use of the railroads of said
eompany, its depots, cars, locomotives, and its
busineFs witldn the limits of such or any of
laid parishes, cities, and villages; to purcliase
or lease from any railroad company or corpo-
ration, st any authorized sale, any railroad
and the cliarter, franchises, property, and ap-
portenances thereof, and to maintain and use
tiie same as a pait of the property ol said
company."
On February 19, 1876, the general assem-
Uy of the state of Jx>ui8iana passed act No.
14 of 1876, to condnn said charter of the
BaOway Company, with amendments there-
to, which among other things declared "that
tiie term of existence of the said New Orleans
Padfic Bailway Company shall be so extend-
ed that said company by its name and under
tite aforesaid mentioned articles of incorpora-
tion shall have perpetual succession, and thfit
8hreveport in Lomsiana shall be the north-
western terminus of said New Orleans Pa-
ofio Railway Company, and that the main
line shall be completed to Shreveport before
any branches shall be constructed,"
Ihe city council of New Orleans on No-
▼ember 9,* 1880, adopted ordinance No. 6C95,
eiititlea "An ordinance granting to the New
C»rlean8 Pacific Railway Company or its as-
KS]ugns,*the right to establish its terminus with-
in its city limits, and to construct, maintain,
and operate a railroad to and from such ter-
minus with one extension for passenger pur-
poses and another one for freight purposes in-
to and through certain streets and places in
the city of New Orleans."
This ordinance read:
**Wherea«, the New Oi'leans Pacific Rail-
^y Company, a corporation oi«raiiized and
txisUng under Louisiana state laws, is vested
^ith authority under an act approved Feb-
mary 19, 1876, as follows, to wit: To locate,
Mnstruet, leane, o^'u, and use a railroad, with
sae or more tracks and suitable turnouts, of
ni u, s.
such gauge and construction and upon such
a course or route as may be deemed by a ma-
jority of the directors of said company most
expedient, and to and between the points and
places mentioned and implied in said act, and
is hereby authorized 'to establish and main-
tain in the city of New Odcans proper freij^Tit
and pasEcnger depots,' and to coi;struet
wharves, piers, warehouses, yards, depots, and
stations; and to ^construct and raaintnin its
said railroads or any paii; of the same, and to
have the right of way therefor across and
along and upon any street, highway, turn-
pike, or canal in the state of Louisiana which
the course of said railways may intersect,
touch, or cross. Provided the said company
shall preserve any street, highway, turn-
pike, or canal which its said raUways may so
pass upon, along, or intersect, touch, or cross
so as not to impair its usefulness to the pub-
lic unnecessarily;* and,
*'Wliereas it is for the interest of the city
of New Orleans that the southern terminus of
said railroad shall be fixed and established
within the city limits; and,
"Whereas the said New Orleans Pacific
Railway Company is desirous of constructing
ita line of road on the east bank of the Miss-
issippi, from a crossing near Baton Kouge to
some point in the city of New Orleans, be-
tween the new canal and Melpomene street,
and to establish its terminus at such point,
on condition that the city shall grant to the
company the right to extend its tracks from
such terminus into and through Claiborne
street to Canal street, for passenger purposes ;
and *shall also grant the right to extend its[816]
tracks from such terminus north of Claiborne
street by the most convenient and practicable
route tlirough the public streets to the river
front for freight purposes, with the right to
operate the same by steam or otherwise, as is
now done on the Belt railroad on St. Joseph
street, and on the levees by other railroad
companies in the city of New Orleans.
"Now, therefore, for the purpose of perma-
nently spcuring to the city of New Orleans
the advantages that will result from locating
and maintaining the terminus of the said
New Orleans Pacific Bailway within the city
limits:
"Sec. 1. Be it ordained by the ooundl ot
the city of New Orleans, That the New Or-
leans Pacific Railway Company be, and it it
hereby authorized and empowered to locate
construct, and maintain a railroad, with all
necessary tracks, switches, turnouts, sidings,
and structures of every kind convenient and
useful and appurtenant to said railroad, upoik
lines and levels to be furnished by the city
surveyor, to and from such point as shall b*
selected by such company as its terminus, be-
tween the new canal, Claiborne canal, and
Carroll ton avenue, with the right to establish
and maintain at such point necessary depots,
shops, yaixls, warehouses, and other struct-
ures convenient and useful for the transac-
tion of its business., and to operate the sama
by steam or otherwise for the transportatioa
of freight and passengers within the city lim-
ita.
179
<lf»-Sl9
Bop:
OOUBT 09
UsRBD SrAm.
Oct. Tmmm,
"See. 2. Be it further ordftined, Tlutt the
New Orleans Pftdfic Baflway Company,
or its aawgnu, be end they aie hocfcy au-
thorized and empowered to locate, eonstmet,
and maintain an extension of its railroad,
with all necessary tracks, switches, turnouts,
sidings, and structures of every kind conven-
lent and useful and appurtenant to said rail-
road, upon lines and levels to be furnished by.
file city snrveyiMr into and through Claiborne
street to Canal street, with the right to con-
struct a passenger depot nt or near the inter-
section of ClailMme streel with Canal street;
tjod to operate the same by steam or other-
wise for the transportation of passengers;
Provided, That should it become necessary
[SlTjbir the building of depot *or laying of tracks
to lemofe the Qaibome market^ then the said
Kew Orleans Pacific Bailway Company obli-
gate themsrivea to rebuiid the same at their
own expense on sn<^ lots to be purchased by
the company as the city shall designate. The
aaid mi^Let to be rebuilt under the super-
Tision and instructions of the administrator
•I waterworics and public buildings.
'^Bec 3. Be it further ordained. That the
Mid Kew Orleans Pacific Railway Company,
er its asBJgns, be and they are hereby author-
ised and empowered to locate, construct, and
an extension of its railroad, with all
tracks, switches, turnouts, sidings,
structures of every kind, convenient and
useful and appurtenant t j said railroad upon
fines and levels to be furnished by the city
•nrveyor, across Claiborne canal into (uid
through such street as ms} hereafter be law-
fully selected to the river front, with the
right to extend its tricks through Front
s^eet. Water and Jackson streets, connecting
with the depots of che Louisville ft Nashville
Railroad Company, Morgan's liouisiana k
Texas Railroad, and the Chicago, 8t Louis,
4 New Orleans Railroad, and to operate the
■ame by steam or otherwise for the transpor-
tation of cotton, tobacco, grain, merchandise,
and other freight; or the said company may
purchase, lease, control, maintain, and operate
by steam or otherwise any railway or rsilway
tracks now existing in the streets of the city
of New Orleans.
"Sec. 4. Be it further ordained, That the
right of way, franchises, hud privileges herein
granted to the New Orleans Pacific Railway
Company are granted only on condition and
In consideration that the said grantee shall
permanently establish the terminus of said
road within the city limits and maintain said
terminus during the exHtence of the charter
of said company, for which period said right
of way privileges shall last, and should the
said company at any time hereafter abandon
tU said roaa on the east ^ide of the Missis-
sippi river and its terminus within the city
limit*, then this grant ishall cease and termi-
nate, and be without force and effect from the
date of such abandonment, and the further
condition that all construction work within
the city limits shall be executed under the di-
|g^9]ier,tion 'and su^rvision of the city surveyor
and completed to the satisfaction of the ad-
■linistrator of improvements and the adminis-
180
trator of oommeroe; mnd it is still forthsr
made a oondition of this grant that said nil-
way CMupaoy shall cMnplete its road from tht
crossing of the Mistriimppi riw, at or near
Baton Rouge, to its tenninua in tiiis dtj
within two years from the promulntion m
this ordinance.
"Sec. 5. Be H further ordained, Thni Os
rights herein granted on CUibome etresl
shall apply only to a railroad for pewwnjitff
purposes; that the rights to be granted from
north of the daibome etnal to the riw
front, and herd>v mnted along the river
front and in parslltf^ streets, shall apply to a
railroad for might purposes only, SAd shaH
not be used as a thoroughfaro fmr the traM-
portati<m of pasaengua wiihout the nn«sft
of this eounciL"
On December 3, 1880, the foUowiaig ordi-
nance, numbered 6732, was adopted:
''Whereas, on the ninth day of Kovemhcr,
1880, the ordinance No. 6605 (administratioB
series) waa duly adopted, granting to the
New Orleans Pacific Railway Company, or its
assi^, the riffht to establidi its terminus
withm the city limita, and to constmot, main-
tain, and oporate a railroad to and from sodi
tenninttB; with <me extension for peww iij^ir
purposes and another for freight purpcees*
into and through certain streets and places in
the dtv of New Orleans; and it wae eontem-
platod by said ordinance that a street ahould
be duly selectod whereby the said eompany
should have its rights reoogniaed to lay a
track from Claiboroe street to the river front
through a street to be se-^ected; now, thers-
fore,
*Bec 1. Be it ordained by the city eosnefl
of the city of New Orleans, That the New
Orleans Pacific Railway Company, or its as-
signs, be, and it and they aro nereby anthoi^
ized and empowered to locate, eon^^net, and
maintain an extension of its railroed, with all
necessary tracks, switches, tomouta, adings,
and structures of every kind, oonvenisBt and
useful and appurtenant to said railroad, upon
lines and levels to be furnished by the city
surveyor across Claiborne canal, into and
through Thalia street, to the river *front, aad[Sil
to operate the same by steam or othtfwiss for
the transportation of cotton, tobaeoo, graia,
merchandise, and other freight; or the said
company may purchase, lease, eontrcl, OMin-
tain, and operate, by steam or otherwise, any
railway or railway tracks now •yiating is ths
streets of the city of New Orleans; provi^d*
that there shall be but one trade laid on
Thalia street, from Cl%ibome to Water atrssL
''Sec. 2. £e it further ordained. That ths
right of way, franchises, and privile^ hfie-
in granted to the New Orieana Pacifie Rsil*
way Company are granted only on eonditiQe
and in consideration that the said grantees
shall permanently establish the terminus of
said road within the city limits, and to bm^
tain said terminus during the existence of ths
charter of said company, for which period
said right of way and privileges ahaU last;
and should the said company at any tias
hereafter abandon its said road on the esii
side of the Mississippi river and ite teiBueni
171 V. &
M7.
Nbw Oblbams ▼. Tbxai d Pacifio Railway Co.
'iiij-u44
within the city limits, then this grant ehall
ceate and terminate and be without force or
effect from the date of such abandonment;
and iipoii the further condition that the said
eoinpany, at the time of laying their traek
upon Thalia street, shall pave said street from
PUie street to Kampart street, includins all
intenecticns of said Thalia street, with blocks
of the best hard Boston granite, oblong in
shape, not less than eleven inches and not
more than fourteen inches in width, and not
lev than sixteen inches nor more than twenty-
four inches in length, and from nine to ten
inches in thickness; they shall be well quar-
ried, having paralld sides and ends, and the
npper side free from lumps. The blocks ad-
joining the gutterstones shall be cut at an an-
gle of forty-five degrees with the sides, so as
to be laid diagonally, and said pavement shall
extend from curb to curb; and the said com-
pany shall at the time of laying their track
pave with round or cobblestone pavement,
laying with gutterstones the gutters of said
itree^ from the end of the block paving at
Bampart street to Claiborne street, with the
privilege of using for the pavement the cobble-
•tones removed from that part of the street to
be paved with square block — ^the rails to be
laid in the pavement so that the top of the
ttOlnils shall be flush with the surface *of the
pavement; and upon the further condition that
laid railway company shall at all times keep
mid pavement from curb to curb in repair;
and the further condition that all construc-
tion work within the city limits shall be ex-
ecuted under the direction and supervision of
the dty surveyor and completed to the satis-
iietion of the administrator of improvements
and the adnunistniAoT of oommerce; and >t
is further made a condition of this grant that
mid railway company shall complete its road
from the erosaing of the Mississippi river, at
or near Baton Rouge, to the terminus in this
city, within two years from the promulgation
sf this ordinance.
^^Sec 3. Be it further ordained. That upon
the failure of said company to comply witnin
three days with any notice of the department
of improvements to repair any portion of the
•treet or streets through which said company
ihall lay its tracks, they shall be fined
twenty-five dollars for each and every day
they ha to comply with said notice; said fine
to be recoverable before any court of compe-
tent jurisdiction."
In 1881 the New Orleans Pacific Railveay
Company purchased a railroad already con-
■trocted by the New Orleans, Mobile ft Texas
Baflroad Company on the west bank of the
Uinissippi river, extending from Bayou
Goula, a point near Baton Rouge on the west
bank, to Westwego, also on the west bank,
ind just opposite New Orleans. Subsequent-
ly on March 29, 1881, the city council passed
■n ordinance. No. 6938, as follows t
"Whereas the New Orleans Pacific Railway
Company has purchased the road heretofore
constructed under title charter of the New Or-
kans, Mobile, ft Texas Railroad Company, on
the west bank of the Mississippi River, be-
tween Bayou Goula and Westw^o, and virith
a Tiew to maintaining and operating the said
road in connection vrith and as a part of its
through line to and from its terminus in New
Orleans, designated in section i of ordinance
No. 6695, administration series, passel on the
ninth day of November, 1880; such line to
cross the Mississippi river from a poiuw at or
near Westwego to a point on the east bank
of the river in front of the Upper City Park,
late Foucher property; thence to extend by
the best and most practicable *route to the[8Sl]
designated terminus, between the new canal,
Claiborne canal and Carrollton avenue:
"Now, therefore, for the purpose of securing
to the city of New Orleans the advantages,
that will result from locating and perma-
nently maintaining the terminus of the New
Orleans Pacific Railway within tne limits of
the city of New Orleans, as herinabovi
reed ted;
"Sec. 1. Be it ordained by the council of
the city of New Orleans, That the New Or-
leans l*acific Railway Company, or its assigns,
be, and are hereby, authorized and empow-
ered to locate and maintain a railroad with
all necessary tracks, switches, turnouts,
sidings, and structures of every kind conven-
ient, useful, and appurtenant to said railroad,
from such point on the river front as its cross-
in jifs from Westwego shall be located at in the
vicinity of the Upper City Park, along the
western border of the said city park, and from
thence by the best ana most practicable route
to its designated terminus east of Carrollton
avenue.
"Sec 2. Be it further ordained, etc, That
the city of New Orleans agrees to lease unto
the New Orleans Pacific Railway Company,
its Successors and assigns, for the period of
ninety-nine years, and at the price of five
hundred dollars per annum, payable annually
in advance, all that strip or parcel of ground
on the river front of said Upper City Park,
south of Tchoupitoulas street, or soutn of an
extension of Tchoupitoulas street, in a west-
wardly direction, and between a prolonga*
tion of the east and west boundary lines of
said park to the river, with all the batture
formed thereon, or which mav form during
the term of said lease, with the right to es-
tablish and maintain upon said grounds such
ferry facilities, whar\'e8, piers, warehouses,
yards, tracks, depots, stations, sheds, eleva-
tors, and other structures as shall be necee*
sary and convenient for the transfer of cars,
engines, passengers, and freight, and in the
transaction of its business. No vessel shall
occupy or lie at such wharves without the
consent of said company, its successors or as-
signs, and all vessels lying at or using said
wharves with such consent shall be exempt
from the payment of levee or wharf dues to
the city of New Orleans; the proceeds of such
lease shall *be applied by the city to the im-[82S]
proveroent of said park.
"Sec. 3. Be it further ordained, etc. That
the said New Orleans Pacific Railway Com-
pany, its successors and assigns, shall have
the right to extend its tracks from the said
ground so leased between the Upper City Park
and the river front, easterly along saia river
181
9^:i-4M
SupRKMS Court of ths Unttsd Statsa.
Oct. Tnuf,
If
front to connect with the Belt road at Louis-
iana avenue, and to connect at Jackson street
with tracks heretofore authorized to he con-
structed between Jackson and Julia streets
by section 3 of ordinance 6695, administra-
tion series, adopted November 9, 1880, and by
ordinance No. 6732, same series, adopted De-
cember 3, 1880, provided that between Louis-
iana avenue and Jackson street the trains of
said company shidl be run only between sun-
set and sunrise on said track, except in case
of emergency and necessity beyond the rea-
sonable control of the company.
"Sec 4. Be it further ordained, etc, That
.the said New Orleans Pacific Railway Com-
pany, its successors and assigns, shail have
the right, and the same is hereby conferred
lor the term of its charter and from and after
the expiration of the existing lease of the city
wharves, to inclose and occupy for its pur-
poses and uses, that portion of the levee bat-
ture, and wharf in the city of New Orleans in
front of the riparian property acquired or
to lie <ioqnired between Thalia and
Terpsichore streets, and to erect and
niaintnin thei'con at its own expense
such ferry facilities, wharves, piers, ware-
houses, elevators, yards, tracks, depots,
stations, sheds and other structures as shall
be necessary and convenient for the transfer
ot cars, engines, passengers, and freight, and
in the transaction of its business. No vessel
shall occupy or lie at such wharves without
the consent of said company or its successors
or assigns, or discharge or receive cargo there-
at, and all vessels lying at or using said
wharves by such consent and on the business
cf the company shall be exempt from the
payment of levee or wharf dues to the city of
Kew Orleans.
*^8aid wharves and other structures shall
be lighted and policed by said company at
its own expense.
"Any vessel lying at these wharves with
[828]the consent of the company, *but not on itH
business, or not for the purpose of discharging
or receiving freight or passengers to or Srom
said company as a carrier, shall be liable to
tile city for usual wharf or levee dues.
"Any vessel using said wharf to receive
any freight not coming to or going from said
company as a carrier shall pay usual wharf-
age dues to the city.
"In consideration of the permission herein
given the company will build three hundred
feet of new wharf at such point between
Terpsichore and Jackson streets, for the dty,
as the administration of commerce may indi-
cate, and will pave Pilie street between Thalia
and Terpsichore streets, and Terpsichore
street between Pilie and Front with square
blocks of granite or with blocks of compressed
asphalt, and keep the same in good order.
^niie rights conferred by this section shall
not be held to interfere with the rights of tjbe
dty to police any part of the river front
''Sec 6. Be it further ordained, etc. That
the mayor be, and he is hereby, authorised
and directed to enter into a proper notuial
182
contract of lease for the purpose of
out the provisions of the seecmd
this ordinance
"Sec 6. Be it further ordained, ete^ Thai
the right of way, franchises, and priyileges
herein and heretofore granted to the New
Orleans Pacific Railway Company are and
were eranted on condition and in considera-
tion that the said grantee shall permanoitly
establish its terminus within the dty limits,
and shall maintain said terminus during the
existence of the charter of said company, for
which period the said franchises, rights of
way, grants, and privileges shall last and
continue; and should the said railway com-
pany at any time hereafter remove its termi-
nus from within the dty limits, then this
grant shall cease and terminate and be with-
out force and effect from the date of such
removal; and the further condition that the
construction work within the dty limits
shall be executed under the direction and
supervision of the city surveyor, and com-
pleted to the satisfaction of the administra-
tor of public improvements and the admin-
istrator of commerce; and the further con-
dition *that said railway company shall cob-[S94
struct or control a line of road, ready for
public use, from a crossing of the IGasiasippi
river to its designated terminus in this dty,
within two years from the promulgatioB of
this ordinance."
The New Orleans Pacific Railway Caoh
pany, on June 20, 1881, entered into a writ-
ten agreement with the Texas ft Padfie Rail-
way Company, a corporation orsanixed under
the laws of the United States, oy the terns
whereof the New Orleans Padflc Railway
Company consolidated itself with the Texas
k Padfie Railway Company on the terms and
conditions spedned in the agreement, "^
granting, bar^ning, sdling," etc, ''unto the
Texas i. Pacific BLailway Company aU the
franchises, corporate rights, or privileges d
the New Orleans Padfie Railway Company,
together with its track, roadbed, bmloings,
roUing stock, engineer's tools, bonds, stoeki,
grants, privileges, property (real and per-
sonal), and every right, title, and interest in
and to any franchises or property, real or
personal, and all rights of every name and
kind in which the New Orleans Padftc Rail-
way Company had any right, priyilege, or
interest, situated and being in the state of
Louisiana or in the state of Texas, or else-
where, it bdng declared by the agreement
that tiie object of the agreement was to se
merffe the rights, powers, and privileges of
the New Orleans Padflc Railway Company
into the Texas ft Padflc Railway Company
that the Texas ft Padfle Railway Company
under its own chartered name and orgaain*
tion should, without impairing any existiaf
right, exercise in addition thereto, aJl ths
powers, rights, priyileM, and frawdiiese and
own and control all tne properties that ths
New Orleans Paciflo Railway Company thsn
exerdsed and owned, or by its charter and
by-laws it had the right to exerdee, o>wn er
controL*
171 V. 8.
M7.
Nrw Ohleahs y. Tbxab A Fjlcsfic Railway Co.
324-827
Thereafter, on July 11, 1882, the city coun-
cil adopted ordinance No. 7946, as follows:
*An Ordinance Supplementary to Ordinances
6095, 6732 and 6938, Administration Series,
Gruiting certain Eights to the New Or-
leans Pi^ific Railway Company and its As-
agns, and Providing for the Selection of a
Site for the Claiborne Market.
IM] ^''Whereas by section 2 of ordinance 6695,
administration series, a right was given to
the New Orleans Pacific Railway Company,
or its assigns, to locate, construct, and main-
tain an extension of its railroad through
Oaibome street, with a right to construct
a passenger depot on the neutral ground of
Qaihome street, at or near the intersection
of Gaibome street with Canal street, with a
proviso that should it become necessary for
the building of the depot or laying tracks to
remove the Qaibome market, then the New
Orleans Pacific Railwav Company, or its as-
signs, should rebuild the same at their own
expense on such lots as the city shall desig-
nate; and
'^Whereas, by ordinances Nos. 6732 and
6838, administration series, certain rights
have also been granted to said company and
its assigns with reference to the said Clai-
borne street and to Thalia street, and the
company has built its road from Baton Rouge
to Xew Orleans, crossing Thalia street, and
established its terminus m the city limits at
Thalia street and the levee, and is preparing
alao to cross from Westwego to the City
Park, and thence to Claiborne street; now,
therefore,
"Sec 1. Be it ordained by the council of
the dty of New Orleans, that the administra-
tor of improvements, the administrator of
commerce, and the administrator of water-
works and public buildings, be, and they are
hereby, auUiorized and directed, within sixty
days from the passage of this ordinance, to
select such lots as may be needful and proper
for a new site for said market; and when
inch selection shall have been made • th^y
•hall deposit a proces verbal thereof in the
ofDce of the administrator of waterworks and
public buildings.
''Sec 2. Be it further ordained. That when-
ever said company or its assigns shall find it
neeessary to remove said building it shall be
reboot on said lots so selected and as pre-
scribed in said original ordinance.
''Sec 3. Be it further ordained. That in
crossing the new canal under its charter, and
aeeordmg to the said ordinances, the said
railway company, or its assigns, shall do so
bj means ol a proper drawbridge."
3S6] *The company also sent its olioerswi^^hoer*
tain dij officers in the summer of 1882 to
inspect lots thought suitable at that time for
the CSaibome market, when the removal of
the market might be decided upon; and
stated by its officers that the lots would be
pnrdiased, the market taken down and an-
other market put up, but that if this was not
•ati^bu^tory to the citv, the city should re-
gain silent for a while, because if it were
kiown the railroad wanted the lots, too much
veaM be asked for them. In the summer of
lYl V. S.
1883, the company demanded from the city
surveyor lines and levels for a track on the
river front from Louisiana avenue to Jack-
son street, and the city surveyor not fur-
nishing them, instituted suit June 11, 1883,
in the civil district court for the parish of ^
Orleans, where the same is still pending, to
compel the city surveyor by writ of manda-
mus to furnish such lines and levels. The
company also paid $1,000 rent for the two
years ending March 8, 1882 and 1883, under
an alleged lease of the batture in front of the
upper city park and made a tender of $500
for rent under said alleged lease for the year
ending March, 1384, and acquired by private
ownership four squares of ground adjoining
the upper city park, two squares fronting the
river and two in the rear thereof.
The record showed that the railroad com-
pany did not establish its terminus in the
rear of the city of New Orleans at the place
designated by ordinance 0695 of November 9,
1880, and referred to in ordinance G732 of
December 3, 1880; that tjie company did not
as stated or required in ordinance 6938 of
March 29, 1881, make lu terminus on the
west bank of the Mississippi river at West-
wego, and there erect it' wharves, inclines,
and structures, necessary for the purpose of
crossing the river at that point so ae to reach
the east bank on* the batture in front of the
City Park; and that tho. company did not
buiJd its road from th> batture along the
edge of the park through the designated
streets to the point in the rear of the city
where the proposed termiaus was to be lo-
cated under and in accordance with the pro-
visions of the city ordinances, which have al-
ready been stated. And the record also dis-
closed that instead of making Westwego its
terminus on the west *bank of the river, the[38T]
railroad was prolonged nine miles further
down the bank of the river to a point desig-
nated as Gouldsboro; a.id this fatter point
being approximately opposite the foot of
Thalia street on the east bank of the river,
wharves and inclines we«'e constructed at
Ciouldsboro, whence the traffic of the road
was carried across the river to the foot of
Thalia street in the city of New Orleans,
where depots and structures have been ee-
tablished by the company.
On the 15th of Apnl, 1884, the city council
adopted an ordinance, Nj 085, council series,
as follows:
''An Ordinance Repealing certain Sections of
the Ordinance No. 6938, A. S., Granting
Privileges to the New Orleans Pacific Rail-
way (>>mpany.
''Be it ordained. That 8 two (2) of the ordi-
nance No. 6938, A. S., passed March 1881,
granting to the New Orleans Pacific Railway
Company a lease of the Upper City Park bat-
ture property, be, and the same is, hereby re-
pealed and revoked."
June 16, 1886, the city council adopted an
ordinance. No. 1828, couUi-il series, as follows:
"An ordinance repealing certain rights
granted to the New Orleans Pacific Railway
Company under ordinanc 0695, A. S., adopt-
ed November 9, 1880; No 6732, A. S., adopted
183
827-380
SUPRBMB COUBT OF THE UNITED STATKb.
Oct. Tciui,
December 8^ 1880; No. <$938, adopted March
29, 1881; Na 7946, adopted July 11, 1882;
"Whereas the city of New Orleans granted
to the Pacific Riulway Company the right to
extend its tracks through Claiborne street to
Cuial, to erect a passengai depot on Claiborne
street near Canal street, construct tracks
from ClaibcMiie street to and through Thalia
street to the river; and
"Whereas the original grantee company
has merged its identity with that of an alien
corporation, which itself is now in the hands
of a receiver appointed on the prayer off an
alien corporation; and
"Wliereas such rights were granted on va-
rious conditions wUch have not been com-
plied with, and the delay for so doing has
elapsed; and
'*Whereas by the acts of said New Orleans
IMSJPacific Railway 'Company such rights have
been abandoned, and it )£ necessary for the
public good th&t Claiborne street, between
Common street and the Old Basin, shall be
used for steam and horse railway and depot
purposes:
"Therefore, be it ordained by the council
of the city of New Orleans, That all righto
of way on Claiborne street, righto to establish
a passenger depot on sail street, and righto
to connect any steam or other railway by the
New Orleans Pacific Railway Company
through or on Claiborne street, or to erect
any depot thereon, whethe racquired through
or by the ordinances above enumerated or
throufh or by any other ordinance of the
council of the city of New Orleans, he and the
tame are hereby repeal ed and revoked."
July 2, 1886, the receivers of the Texas &
Pacific Railway Corapary, and the Fidelity
Insurance Trust and Safe Deposit Company,
died a bill of complaint in the circuit court
of the United States for the eaaton district
of Louisiana, which alleged the incorporation
of the Texas & Pacific Railway Company un-
der certain acto of Congress, the acquisition
by the Texas & Pacific Railway Company of
all the property and franchises of the New Or-
leans and Pacific Railway Company, the ap-
pointment of receivers of the Texas and Pa-
eific Railway Company, the adoption by the
dty of New Orleans of ordinance No. 6695, on
November 9, 1880; of ordinance No. 6732, on
December 3, 1880; of ordinance No. 6938, on
March 29, 1881 ; the full and fair compliance
by said New Orleans k Pacific Railway Com-
pany and the Texas k Pacific Railway Com-
pany with the conditions imposed by said or-
dinances; the adoption of ordinance No.
7946; the repealing ordinance, No. 685, coun-
cil series, adopted April 24, 1884, and No.
1828, council series, adopted June 8, 1886;
the violation by the adoption of said ordi-
nances of the contract created by ordinances
Nos. 6695, 6732, and 0938, administration
series, and prayed that ordinances No. 685
and No. 1828, council sciies, be adjudged and
decreed to be illegal and injurious to com-
plainants, and be canceled, and the right of
the Texas k Pacific Railway Company, under
ordinance Na 6695, to lay ito tracks and build
184
a passenger depot on tho Btntral *groiiBi o^
Claiborne street, near Ouial iUeei» and to le-
move the Claibmne market^ be deelmred aad
decreed, and ito right to the Imda of eaM
Park batture, under the sfecond sectioii of or-
dinance No. 6938, be declared and decreed;
and ito right to have lines furnished by the
proper ofiicial of the city for ito route from
Louisiana avenue to j!K*kson street, along
the river front, under the third eeetioB oi
said ordinance, be declared and decreed and
specifically enforced.
That the city of New Orleans be enjoined
and restrained from in anywise executing or-
dinance No. 685 and OTilinance Ko. 1828^
coimdl series, and from g>nting to any other
person or corporation the righto sought to bs
token away by said ordinances Noa. 685 and
1828.
The dty of New Orleans filed its
November 1, 1886, which admitted the
poration of the Texas ft Pacific Railwaj Com-
pany; the incorporati<m of the New Orleanf
Pacific Raiiway Company; the cootiact en-
tored into between the New Orleans Faeifte
Railway Company and the Texas & Fadfit
Railway Company, averring, howefver, the
effect of said contract to he that the Texas 4
Padfic Railway Company was held and boond
to all the obligataons imposed upcm the New
Orleans Pacific Railway Company, and was
affected by all the equities existing between
the New Orleans Pacifi*". Railway Oompaay
and the dty of New Orleans; the sppointmeBt
of the recdvers; the adoption of ordinance
No. 6695, on the 9th of November, 1880; or-
dinance No. 6732, <m December 3, 1880; ordi-
nance No. 6938, on March 29, 1881 ; the fail-
ure on the part of complainanto to comptj
with the obligations imposed by said ordi-
nances; the nullity of the tease of the battnrt
in front of the Upper City Park purported te
be granted by oidinanoe Na 6&8, and the
nullity of the grant of the right to build a
depot on the neutral ground of CUbons
street, said batture in fi^t of said park and
said neutral ground being dedicated to pnb-
lic use ; and the legality of the repealing ordi-
nances 685 and 1828, council series.
On the 3d of February 1887, complainants
filed a euppAemental bill which alleged thai
uikler the ordinance set forth in the <Higinal
bill of complaint, the wharf of the Tens 4
*Padfio Railway Company, ito transfers aad(M
incline between Thalia and Teipsiehort
streeto, at New Orleans, had been doly con-
structed and used for about live yean, and
in like manner and during the same time the
tracks of said, railway, connecting ito trans-
fer facilities and ito depoto and raeds at its
Thalia street termmus, had been laid and used
in Pilie and Wator struts, and ak>ng the
river front from Thalia direct up to aboot
Race street; that it had become neoesasiy
for the business of said railway to lay a
small spur track to conntict said wharf abote
the transfer dip with the said tracks on PQis
and Wator streeto; that the complainants
had applied to the dty surveyor for lines and
levels of said spur track; that the dtr ev^
veyor refused to grant said lines and wreli
171 V. &
1807.
NSW 0BLBAN8 ▼. TEXAS & PACIFIC RAILWAY Co.
:i30-335
under a eeriain resolution of the council of
Septemberl5, 1885, prohibiting him from giv-
ing Any lines lor »uch work in the street with-
out submitting the question to the council;
that mid resolution was illegal and a breach
•f eomplainant's contract, and that interfer-
Aee by the mayor of the eity with oomplain-
•Bt*s buildhig said -spni track was appre-
Upon thess allegations a writ of injunction
WIS pvayed fm*, restraining the city from in-
terfering with complainants in the work of
buOding said spur track to connect the wharf
above the transfer incline between Thalia and
Terpsiebore streets with the tracks of the
rsflway between Thalia and Water streets,
along the river front, and in the work of
itre^[th«iing and filling up said wharf and
driring piling to reach the same with said
spdr, ana for a decree as prayed for in their
enghiAl bill.
Upon this supplemental bill a restraining
Older was granted which, by agreement, was
to stand as an injunction i»ending suit.
On the 23d day of June, 1891, a final de-
cree in Ulvot of oomplainauts, granting in full
the prayer of their bill, was rendered.
From this decree the city of New Orleans
•l^ealed.
Mr. Saatvel Xi. Gilmore for appellant.
Jfestrc. W. W. Howe and/. F. IHUon for
ippellt
81] *Mr. Chief Justice Fuller delivered the
opinion of the court:
The assignments of error relate to three
•objects: First, thebatture or space in front
d the City Park, embraced in the lease made
hy the titj to the railroad company in exe-
entioB of the terms of the city ordinance;
second, the construction of a track on Clai-
borne and Canal and the building on Clai-
bmrne near Canal of * passenger depot; and,
lastly, the wharfage rights claimed by the
ndlroad company by ordinances 6695, 6732,
in virtue of 9 4 of ordinance No. 6938.
The aigument as to the first and second
tssignments is, that the right granted to the
nifaoad company by ordinances 6695, 6732,
sid 6938, to extend its track from the point
designated as its terminu?, in the rear of the
city along Claiborne to Canal, and there to
tfofld a passenger depot, as also the lease,
which, to carry out the ordinance, empowered
the raibroad eompanv to use the batture in
tiOBt of the park, and to construct its railroad
>lo^ the edge thereof through certain desig-
■atei streets to the rear of the city, were idl
granted to the railroad company as accessory
nghts, depending for their existence upon the
croaang at Westwego and the location by th#
nilroad company of its terminus in the rear
d the dty. In other words, that these rights
were given to the railroad company, subject
to conditions precedent, or, to use the lan-
SUge of the law of Louisiana, subject to sus-
Fttsive conditions. It is further contended:
'hst, that in consequence of the failure of
the railroad emnpanj to cross at Westwego
and to locate its terminus as aforesaid, and
its election, on the contrary, to continue its
road down the river to Gooldsboro and thert
croi^ the river, it never acquired the right to
enjoy the privileges above mentioned, and
hence that the repealing ordinances are valid.
Second, that even if the rights in favor of
the company above mentioned were nol
granted to it on a suspensive condition, they
were clearly subject to a resolutory or dis-
solving condition arising from the obligation
to cross at Westwego and to locate the ter-
minus in the rear of the city at the point
desi^atedin the original 'ordinance, the con-[83flf
tention being that the failure to do so within
the period named in the ordinance authorized
the city to treat the contract as dissolved
and pass the repealing ordinances in question.
The railroad company meets these proposi-
tions by denying that crossing at Westwego
and the location of the terminus in the rear of
the city, at the point named in the original
ordinance, was made a condition suspending
the operation of the grant of the rights above
stated, and argues that e*/en if it be conceded
that the location of the terminus at the point
originally pointed out created a condition, it
was not a suspensive but a resolutory one.
Although it is admitted that the happening
of a resolutory condition dissolves the con-
tract, yet such consequences, it is asserted, do
not arise from the mere happening of the con-
dition, and cannot be availed of by one of
the contracting parties of his own will, since
before the resolutory condition can be in-
voked it must be established by a suit
brought that such condition has arisen and
that the efifect of its existence has been to
dissolve the contract That is, the claim is
that under the law of Louisiana a dissolving
or resolutoory condition does not operate upon
the contract proprio vigore, but requires the
judgment or decree of a cmrt to give it effect,
and that before finding a contract dissolved
in consequence of a resolutory condition, the
court has the power to obviate the effect of
the condition bv givins further time to per-
form the act from which the condition it
claimed to have arisen, if, in its judgment,
the equities of the case so require.
The question which first arises is. Was the
right of the railroad company to the prop-
erty in front of the park and to the track
on Claiborne street, including the construc-
tion of a passenger depot on Claiborne near
Canal, subject to suspensive conditions? The
Louisiana Civil Code provides as follows:
'*Art. 2021. Conditional obligations are
such as are made to depend on an uncertain
event. If the obligation is not to take effect
until the event happen, it is a suspensive con-
dition; if the obligation takes effect imme-
diately, but is liable to be defeated when the
event happens, it is then a resolutory con-
dition.
*"Art. 2022. Conditions, whether 8Uspensivero«^
or resolutory, are either casual, potestative, ^^
or mixed."
"Art 2024. The potestative condition is
that which makes the execution of the agree-
ment depend on an event vihich it is in the
185
;'h
333,834
SopREMx Court of thb Unttbd SrAXEa.
Ooc Tm,
power of the one or the other of the contract-
ing parties to bring about or to hinder."
In defining the suspensive condition the
Louisiana O^e says:
"Art. 2043. Tbe obligation contracted on
a suspensive condition is that which depends
either on a future and uncertain event, or
on an event which has actually taken place,
without its being yet known to the parties."
These provisions of the Louisiana Uode are
like those of the Code Napoleon on the same
subject. Arts. 1168, 1170, 1181.
In Cornell y.Hope Insurance Company, 3
Hart N. S. 223, 226, the supreme court of
Louisiana said, in respect of conditions prece-
dent:
**They are recognized and provided for by
our system of iurisprudence, and by every
other that has in view the ordinary transac-
.tions of men. The obligation is conditional
when it depends on a future or uncertain
«vent, says our Code. The event then must
be shown to make the obligation binding on
the party against whom it is presented. For
until it takes place, he is not bound to per-
form what he has promised. Civ. Code, 272,
art 68. There is an exception to this rule in
regard to the dissolving condition. But in
relation to all others it is true, and it is a
matter of no moment whether we say the
obligation is suspended until the condition
is performed— or that the performance of the
condition must precede the execution of the
obligation. Civ. Code, 274, art 81 and 3;
Toullier, Droit Civil Francaise, liv. 3, tit 3,
chap. 4, No. 472 ; Pothier, Traits des Ob. No.
202."
"The effect of a suspensive condition, as its
name necessarily implies, is to suspend the
obligation until the condition is accomplished
or considered as accomplished; till then noth-
ing is due; there is only an expectation that
what is undertaken will be due; pendente
conditione nondum dehetur, aed apes est dehi-
turn in." Pothier, Traits des Ob. 218.
£334] *The suspensive condition under the Loal^
iana Code is the equivalent of the coaditiflB
precedent at common, law.
The general j^rindples in nBpeet of eonfi-
tions precedent are set forth sufficiently for
the purposes of this case by Cbief Jortict
Shaw in Proprietors of MUl Dam Fommderjf
V. Hovev, 21 Pick. 440, cited bv appellant
Where the undertaking*on one side is intemii
a condition to the stipulation on the other,
that is, where the contract provides for tbe
performance of some act, or the happening
of some event, and the obUgations of the cob*
tract are made to depend on sudi perform-
ance or happening, the conditions are condi-
tions precedent The reason and sense of the
contemplated transaction, aa it must have
been understood by the parties and is to be
collected from the whole contract^ determiae
whether this is so or not; or it may be de-
termined from the nature of the acts to be
done and the order in which they must nee-
essarily precede and follow each other in the
progress of performance. But when the act
of one is not necessary to the act of the other,
though it would be convenient, useful, or
beneficial, yet as the want of it does not pre- .
vent performance, and the low and ineos*
venience can be compensated in damsgci,
performance of the one is not * ooaditioB
precedent to performance by the otiier. The
nonperformance on one side must go to thi
entire substance of the contract wad to tkt
whole consideration, so that it may safely
be inferred aa the intent and just eonstme-
tion of the contract that if the act to be pv-
formed on the one side is not done, that ii
no consideration for the stipulataont on the
other side. See Cutter v. PoioeU, 2 SmitK
Lead. Aub. [7th Am. ed.] 17, and noCea
In examining the contract embodied in the
ordinances it is essential to have in mind tkt
particular territoiy to whidi the ordinsBMi
rels^te, and we therefore insert aa ootfiai
sketch extracted from a map of the city of
New Orleans contained in tha raeoid.
[8m loHowiog page.]
1891
Nbw OmLBAHB V. Tbxab dk Pacific Bailwat OOk
171 V. ■»
18T
834-838
SUFBEMB COUBT OP THS XJlHTBD STATES.
t
The origmal ordinanoe 6695 contemplated
tliat the proposed railroad would be built
upon the west bank of the Mississippi river,
New Orleans being upon the east bank, and
*hat the road would cross that river to the
[8851 -ast bank some hundred *or more miles above
Sevr Orleans, coming to that dty on the east
bank, and entering in the rear of the city,
that is, in that porUon of the city lying a con-
siderable distance back from the river. The
purpose of the ordinance was clearly indicated
by its title, which declared that it was in-
tended to grant "to the New Orleans Pacific
Railway Company or its assigns the right to
establi^ its terminus within the city limits
and to conetruct, maintain, and operate a
|M6]railroad *to and from such a terminus, with
one extension for passenger purposes and an-
other for freight purposes, into and through
certain streets and places in the dty of New
Orleai'iS." 1 he preamble to the ordinance re-
dted the desire of the railroad to enter the
dty at about a certain point, and to construct
its terminus between the new Canal and Mel-
pomene street, providing the city would grant
the right to extend its tracks '^frorn 8uch ter-
minus into and through Claiborne street to
Canal street for passenger purposes; and shall
also grant the right to extend its tracks from
9uch terminus north of Claiborne Canal by
the most convenient and practicable route
through the public streets to the river front
lor freight purposes." The 1st section of the
ordinance grants the railroad the right to cn-
, * tcr the dty to the point stated in the pream-
ble, and to construct and TnaintAJTi at the ter-
minus necessary depots, shops, yards, ware-
houses, and other structures, convenient and
useful for the transaction of its business. The
point at \ihich the riffht to construct this ter-
minus was given by the ordinance is onbraced
vdthin the triangiUar space in the rear of Ihe
dtv as marked on the sketch above given.
Ths 2d section of the ordinance empowered
Che company to locate, construct and main-
tain an extaiMOfi of its railroad with aU neces-
sary tracks, switches, turnouts, sidings and
structures ol every kind, convenient and jiae-
ful and appurtenant to said railroad, . • .
into and through Claiborne street to Canal
f street, with the right to construct a passenger
depot at or near the intersection of Claibonie
street with Canal street.'' A glance at the
sketch will make dear the fact that CSaibome
street thus designated was in the rear of the
dty, quite near the poiiit where the railroad
had contracted to establish its terminus, de-
pots and structures, and that the route thus
mapped out in the very nature of things and
in the language of the ordinance was a mere
right granted to the railroad to extend its
tracks from the terminus, which the railroad
was imder the obligation to build, to and
along the desiinuited route to the point indi-
cated on Claiborne and Canal. The 3d sec-
tion of the ordinance obligated the dty to des-
ignate a street from the point where the ter-
IMT^oinug •was selected, and where the company
was to establish itself, througa which it could
build an extension for the purposes of its
frdght buflinsss to the river front. On the
188
face of this ordinance it is apparent that the
rights thus givoi the railroad to extad
along Claiborne to Canal for passenger m*
poses, and along a street to be designated ts
the river for freight purposes, were mere se>
cessories to the obligaiion imposed by theonfi-
nance upon the railroad to bufld its depots
structures, warehouses, etc., at the point ii>
dicated, and that the inddental rights of ex*
tension from the terminus to tiie other potsts
could have no existence if no terminos was
established from whidi the extensions eoold
be made. Heading the provisions of the
ordinance with the preamble and the
title, it cannot reasonably be contro-
verted that the rights of exteosioa
were granted upon uie suspensive cob-
dition that the railroad should terminate at
Uie point indicated, and there build the shops
and depots from which the right to extend its
tracks was conceded. And this is, if possiMe,
made more certain by considering the 4th
section, which, in express words, provides thst
the privileges of extension granted were de-
pendent upon the establishment of the tenni-
nus at the point indicated, and would eease to
exist if, after the establishment of the temi-
nus, the railroad company should abandon it
The language of the 4th section is as foOom:
''That the right of way, franchises, and
privileges herein granted to the New Orleam
Pacific Railway Company are granted only
on condition and in consideration that ths
said grantees shal permanentlv establish ths
terminus of said road within the dty limits,
and maintain said terminus during tbe ex-
istence of the charter of said compapy, for
which period said right of way and privikges
shall last; and should the said company at
any time hereafter abandon its paid road as
the east side of the Itfississippi river and its
terminus within the dty bmits, thai this
grant shall cease and terminate, and be with-
c*ut force or effect from the date of soeh ahsn-
donment; . . . and it is still made a eo»-
dition of this grant that said railway eott-
pany Aall complete Its road frofn the
croning of 4iie Mississtppt river, si or netr
Baton Rouge, to its ^terminus in this dt7[S8
within two years from the promulgatioa oif
this ordinanee."
The words "Hhe terminus of said road**
and said nermiBus^ used in the 4th seetioa
clearly refer to the torminus fixed by the ordi-
nance, and where the railroad agreed to estab*
\uAk its shops, louDdbottses, etc. H fol-
lows, then, that the ordinance giaatcd
a right to the railroad oompaay ta
enter the dty to readi a designatsd
point, and imposed upon the eompaay
the obligatioB to erect its depots, shops, wart>
houses, etc, at that point; that im ecmmdv*
ation of this oUigati<A assumed by the tamr-
pany, to be performed within two veais, a
right was given to it to emtend from thedepoC
so designated a passenger track to a girm
p<Hnt, and a freight track to another poist:
that the two rights of extenaioB were the
mere resultants of the prindpal obhgstioa
imposed upon the company, in consideratioa
of which the rights to the extensioni vera
171 V. 8.
1897.
Nbw Oblbani t. Tbxab A Paoifio Railway Co.
883-341
•OBoedtd; tad that the ordinance, intddition,
te order to remove all question that the inci-
4t«tal right! of exteni^on were dependent
ipQB the principal obligation to establish a
tsnainos at the point named, provided that,
CTcn after the fixed terminus was established,
if it were abandoned, the company should
cease to enjoy the riffht of extension along
Oaibome to Canal which the original ordi-
nance granted. Thus there were plainly
created, first, a suspensive, and, after the work
WAS done, a resolutory condition.
Nor is there anything in ordinance 6732,
adopted oa December 3, 1880, which changed
the rights of the parties. That ordinance re-
itnrated and reasserted the nature of the priv-
ilege covnred by the concession made ^ the
previoias ordinance, and designated Thalia
sticet, which is marked on the sketch, as the
one throoffh which the railroad company
should bmid the track for freijjht purposes
is compliance with the obligations assumed
by it under the fUst ordinance
This brings us to the consideration of the
cfdinaaee numbered 0938, passed in March,
188L The purpose of that ordinance, and the
change in condition which rendered its adop-
tim necessary, is stfited with great deamess
ia the preamble thereof:
tm] ^'^hereas, the New Orleans Texas Pacific
Baflway Company has purchased the road
heretofore constructed under the charter of
the New Orleans, Mobil > k Texas Railway
Oompany on the west bank of the Mississippi
riTcr, beyond Bayou GouU and Westwego,
sad with a view to maintaining and operat-
ing the said road in connection with and as a
pert of its through line to and from its ter-
Buaus in New Orleans, deni^ated in section
1 of ordinance No. 6696, administration series,
pessed OB the 9th day of November, 1880;
each Has to cross the Mississippi river from a
point at or near Westw^^ to a point on the
esst bank of the river in front of the Upper
Qty Parle, late Fouche, |roperty; thence to
atcnd by the best and rorst practicable route
to the designated termin«ii» between the new
esiud, Claiborne canal, and Carrollton ave-
■ae:
*Now, therefore, for th^ purpose of securing
to the dty of New Orlcjins the advantages
that win result from loca*:ng and permanent-
ly maintaining the terminus of the New Or-
Icsns Pacific Railwav vilhin the limits of
the dty ol New Orleans, as hereinabove
fdUAT
The ordinance then proceeds in S 1 to au-
thorise the railroad to maintain wharves, in-
cKaes, ete., on the river front at the Upper
Otj Park from such point on the river front
*ss its crossings" from We#twego shall be lo-
sated at, and m>m this point to build a track
sloBg the western border of said city park,
sad from thence by the best and most prac-
tiesMe route to "its designated terminus east
ef Ckrronton avenue.** Hhe second section
ffnmts to the railroad land in front of the
city park belonging to the city, on the borders
sf the river, for Um purpose of estaA>Iiahing
tte crossing 6i the road ss recited in the 1st
sieticB. The Sd section gives the company
171 V. S.
the right to lay certain tracks do^n the river
front, in other words, to connect the newly
authorized tracks with those existing at or
near Thalia street The 4th section granted
the company the right to make certain struct-
ures at the foot of Thalia street, the point
to which the extended freight track referred
to in the previous ordinances was to termi-
nate, and at which, ae we shall hereafter see,
the company actually made its crossing from
the west bank, and where *it now maintain8[340}
its terminal facilities. The rights covered by
this section are those to which Uie third as-
signment of error relates and are not involved
in the inquiry now bein^ pursued. The 5th
section authorized the mayor of the city to
enter into a contract of lease with the rail-
road for the piece of ground in front of the
city park referred to in the ordinance, and
the 6th section declared that the grant re-
ferred to was made upon the condition of the
establishment of "ita ierminus within the city
limits."
Referring to Hn sketch and considering
the record and the terms of this ordinance,
the situation was this: The railroad com-
pany having obtained a oncesslon from the
city of a right to enter the city on the east
bank in a particular difecdon and to build
its terminus at a point drsignated, and hav-
in|^ received authority, if It did the foregoing
things, to make certain extensions, found it
necessary, in consequen'^ of its change of
route, to obtain a further consent from the
city. The change of line was this: Instead
of buildinff its road on the west bank to a
Soint one hundred or more miles above New
•rleans, and there crossing the river and com-
ing thence into the dty in the rear thereof,
as designated in the original ordinance, the
company having bouffht a road on the west
bank, the terminus of which was Westwego,
about opposite the city park, asked and was
allowed that it be exempied from reaching its
designated terminus by entering the city in
the rear thereof, and th«it It be granted the
right to establish a crosMDg from Westwego
to the land in front of the dty park, so that
from the land thus conceded the railroad
might reach the point where it had con-
tracted that it would make its permanent es-
tablishment. The argun«ent that this ordi-
nance gave the raHroad the power to establish
a new or different terminus from that re-
ferred to in the original ordinance, beoauee
the place where the termmus was to be is re-
ferred to indefinitely in the ordinance as be-
tween Uie now canal, Claiborne canal, and
Carrollton avenue, is untenable. Indeed the
ordinance contains not a word relieving the
railroad from the obligation to establish and
maintain the terminus indicated in the pre-
vious ordinances. On the contrary, the pre-
amble declares *that the new route was gran t-[ 341]
ed to the railroad to enable it to reach "the
designated terminus between the Claiborne
canal and Carrollton avcAue," which id the
situation originally described. It further re*
cites that it is passed for the purpose of en-
abling the railroad to locate and permanently
maintain "the terminus • • . within the
180
841-348
SuPRBiME Court of thb United States. *
Oct.
I
LI'
:i:
i:
limits of the city of New Orleans, <u herein-
above recited."
In stating the purpose of the grant of the
new right of way from the point of landing
at the dty paik opposite Westwego alon^
the line of the park over the route indicate^
' the first section in the ordinance declares it
to be given to afford the railroad the "most
practicable route to its designated terminus
east of Carrollton avenue." True it is that
in § 6, in referring to the previous obligations
of the company to establish its terminus, the
words used are that the grantee shall perma-
nently establish *'its terminus within the
city limits." But, manifestly, the words 'Its
f^rminus" as used there refer to its terminus
as defined not ordy in the ordinance in ques-
tion but in the prior ordinances by which the
grant was made.
It being shown by the record that the ter-
minus from which the extension alons GUI-
borne street to Canal was to be made was
never constructed, and that the crossing from
Westwego to the land in front of the park
was also never established, but, on the con-
trary, that the company extended its road
down the river to Grouldsboro where it made
its main crossing, it needs no reasoning to
demonstrate that the right to the extension
down Qaibome street and the right to the
use of the batture in front of the city park
no longer obtains. The claim of the corpora-
' tion really amounts to this: That, having
had certain accessory rights conferred upon
it in the event it discharged particular obli-
gations, it can disregard the obligations, es-
cape the burdens resulting therefrom, and
yet hold on to all the rights which depended
for their existerce upon the performance of
the obligations which the company has dis-
regarded. The ordinances cannot be properlv
construed as authorizing an extended track
to be built when the point from which the
extension was to be made has never come into
existence. They cannot be read as dedicating
[S42]to the use of the *railroad, under the terms
of the ordinances, Hit land in front of the
city park, when such use was accorded to
the railroad soldy to enable it to accomplish
a purpose which it has declined to effectuate
by carrying its main crossing to another and
a far distant point. In reaching these conclu-
sions we are not unmindful of the argument
predicated on the supposed effect of ordi-
nance numbered 7946, A. 8. The title of this
ordinance indicates its purpose. It is as fol-
lows:
"An ordinance supplementary to ordinances
6695, 6732 aUd 6938, administration series,
granting certain rights to the New Orleans
racific Railwav Company and its assigns,
and providing lor the selection of a site for
the Claiborne market/*
The preamble of tliis ordinance recites the
two ordinances conferring the right to build
the extension on Claiborne street and states
this right to be one of maintaining "an ex-
tension of its railroad through Claiborne
street," and after reciting the fact that the
railroad had cro(<sed at Thalia street, and es-
tablished its terminus there, declares that
100
the railroad is preparing also to
Westwego to the city park, and thenee to
Claiborne street. The ordinance then pi*-
ceeds to provide for arrangements for remov-
ing tho market from Claiborne street in ordv
to allow the extension on that street to be
built. The argument which is baaed upoa
this ordinance is this, as at the time this
ordinance was passed, the railroad had
crossed from Gouldsboro to Thalia street and
established its terminus there, aa is recited
in the ordinance, hence it is asserted the or
dinance recognizes the fact that the railroad
was entitled to the extension on Qaibons
street despite tb.e fact that it had not estab-
lished its terminus as required by the ofdi-
nances from which the rignt to the r^^T'^'m
on Claibome street arose. But this overiooks
the fact that in the very sentence upon which
reliance is placed reference is made to ths
ordinance giving the corporation the right
to build from uie city park to the "desig-
uated" terminua. One portion of the se>-
tence cannot be separated from the otlier.
The most that can be said of the argoment
ad>'anced, from the text of Uiis ordinance, is
that it seeks by implication and remote de-
duction to absolve the company horn the
obligation imposed *upon it when the aooe»{S4
iory right of extension down Claibome street
was granted, and thus to enable the eompaav
to retain the incidental right, when it had
relieved itself of the obligatioai upon which
the right rested. It ic not to be doubted thst
the rule is that .contracts are not to he eo
violently construed as to destroy ri^^ts ia
consequence of suspensive conditKms, bat it
is also equally obvious that they are not te
be so interpreted as to relieve one of the
parties to a contract from the obligatioBS rt*
suiting therefrom and thereby destroy the
suspensive condition plainly written thereia.
Corporations do not take pubUc grants sad
privUeges by implication, and where expreei
and positive obligations are imposed in nsk-
Ing a ^rant, these obligations cannot, withoot
violating an elementary canon of interprets*
tion, be frittered away in consequence of
loose implications made by way of refereaee
in subsequent municipal ordUnancea. TU
formal contract of lease executed by the dtt
of the batture in fi'ont of the city parte took
its origin from and was sanctioned oy the or
dinance granting the right to cross the rirer
from Westwego to the land covered by the
lease in order to enable the corpora tion to
carry its tracks from thence to the termiaai
which it contracted to establish under Um
original ordinance. It follows, therelbcti
that the suspensive condition by which the
rights of the oovnoany under the original or
dinance were held in abeyance operates alio
upon the lease in question.
The mere payment of rent did not ehsage
the nature of the suspensive condition or
work an estoppel. The right to use the
property was limited to the destinatioi
stated in the contract La. Ov. Code. 271L
But this right to use was covered by the lat-
pensive condition, and the contract of lesM
only evidenced the agreement to use the prof*
171 U.*
1897.
Patapsco Guano Co. v. Loard op Agbicultuuk.
blO— u4»?
crty for the purposM stated, when the sue-
pensTe oondition ceased to operate by the
fliacharge of the obligations on which it
rested, tiiat is, the establishment of the ter-
Bdnns at Westwego, the crossing therefrom,
and the location of the shops, etc., at the
place fixed in the original ordinance. The
case is aptly illustrated by Roy De L'EcIuse
et autres. Cassation, 4 Jan. 1858; Journal du
Palais, 1858, 452. There a promise to sell on
^>i sospenaive ^condition was entered into, but
the prospective buyer was allowed to take
possession pending the condition. The claim
was that tnis fact destroyed the suspensive
nature of the condition. But the court held
to the contrary, considering that the fact of
posaesdon was subject to the suspensive con-
dition, as it w£a upon such condition that
the contract had been entered into. Laurent,
ToL 17, No. 33, p. 53.
Conduding that the rights on Claiborne
street and to the batture in front of the park
vere subject to suspensive conditions, it is
manifest from the facts which we have stated
that the railroad company was not entitled
to possess or enjoy the same. This renders
it unnecessary to consider the resolutory con-
dition and leaves only for consideration the
subject-matter of the third assignment of er-
rors. This asserts that the rights conveyed
by the 4th section of ordinance No. 6038 to
whar^iffe, etc, at Thalia street are not val-
idly held by the corporation. This is based
not on the claim of a condition either sus-
pensive or resolutory, but because it is as-
serted that the grant was ultra vires. The
repealing ordinances, however, do not em-
braee tUs grant, and except for the argu-
ment at bar it does not appear that the city
hu repudiated the ^ant. Since this case
was argued a suggestion has been made that
this grant has been, in effect, ratified by a
provision of a new Constitution said to have
been recently adopted by the state of
Louisiana . As we must reverse the decree
rendered for the reasons above stated, we
deem that the ends of justice will best be
Ribeerved by not passing on this assignment,
thus leaving the rights of both parties in re-
lation thereto open for further consideration
in the court betow.
Decree reversed, and cau^e remanded for
fortho' proceedings consistent with this opin-
ion.
MSJPATAPSCO QUANO COMPANY, Appt,,
BOARD OT AGMCULTURB OF NORTH
CAROLINA, W. R. Williams et ok. Com-
Busoonera.
(Bee & C Beportev's sd. 845-861.)
i^speolifi^ part9 cf a eiatute — inapeotian
charge — inspection latoSf when valid — im*
terstate commerce.
L The iutentlon. In repealing parts of the Cod»
of a state, to revive earlier laws which might
render the amended law liable to the same
objection as the parts repealed, cannot be im-
puted to the legislature.
2. An inspection charge of 25 cents per ton on
commercial fertilisers is not so in excess of
what is necessary to pay cost of analysis,
salaries of Inspectors, cost of tags, and other
charges, as to Justify the imputation of bad
faith and show that it is not a proper exercise
of the police power.
8. Inspection laws are valid when they act on
a subject before It becomes an article of com-
merce, and also when, altbougb operating on
articles brought from one state into another,
they provide for inspection in the exercise of
that power of self -protection commonly called
the police power.
4. Interstate as well as foreign commerce la
subject to a state Inspection law.
[No, 9.]
Argued May 7, 8, 1896, Ordered for Reargw
ment May 24, J 897, Reargued March Sp
4, 1898. Decided May 5i, 1S98.
APPEAL from a decree of the Circuit
Ck)urt of the United States for the Eastern
District of North Carolina dismissing a suit
in equity brought by the Patapsco Guano
Ompany to enjoin the Board of Agriculture
of North Carolina et al. from the collection
of an inspection charge on fertilizers, etc*
Affirmed.
See same case below, 52 Fed. Kep. 600.
The facts are stated in the opinion.
Messrs. Thomas N. Hill and John W,
Hinsdale for appellant on first argument.
Messrs. F. H. Busbee and R. H. Battle
for appellees on first argument.
Mes»rH. Thomas N. lBill and John W»
Hinsdale for :ipp< llant on rcariru • ent.
Messis. R. H. Battle, F. H. Busbee, and
J. C. L. Harris for appellees on reargu*
ment.
Mr. Chief Justice Fuller delivered the
opinion of the court:
This was a bill filed in the circuit oourt of
the United States for the eastern district of
North Carolina, April 1, 1802, seeking to en-
join the collection of an inspection charge of
25 cents per ton on commercial fertilizers, ••
prescribed by an act of the general assembly
of North Carolina of January 21, 1891, and
from taking any steps whatever to enforce
that act, on the ground of its unconBtitu>
tionality.
The court entered a restraining order, bw
on the coming in of the answer, a motion t«
Hen. — As to power of Congress to regulate
ssmmerce, — see notes to Gibbons t. Ogden, 6:
2S, sod Brown t. Maryland, 6 : 678.
As to tonnage torn, see note to Inman 8. &
Oa ▼. Tinker, 24 : 118.
As to 4ntorsUste oommeree; regulation of;
9smer of Congress, how fat melusiv§s — see note
171 U. 8.
to Gloucester Ferry Co. t. Pennsylvania,
29 : 158.
As to poUee power of state, see note tb Pee>
pie V. Bndd (N. Y.) 6 L. R. A. 559.
As to power of state to levy tames; Btate in^
speotion laws/^-oee note to American Fertilis-
ing Co. V. North Carolina Bd. of Agri. (C. a
& D. N. C.) U L. B. A. 179.
101
\
r
i
I
343-348
SopREMB Court op thb Unitbd dTJiTsa.
Oct. Tamm,
;
(Mi6]oontinue the injunotion until the hearins * was
heard on bill, answer, affidayits and exhibits,
and denied, and the temporary injunction
dissolved. The opinion of the oirciiit court by
Seymour, J., is reported in 52 Fed. Rep. 690.
Froo& were taken, and a final hearing had at
June term, 1893, at Raleigh; the bill was dis-
missed; and complainants thereupon prose-
outed this appeal.
By S 14 of article 9 of the Constitution of
North Carolina of 1875-76, it was provided
that, as soon as practicable after the adop-
tion of that iustnmient, the general assem-
bly should "establish and maintain, in con-
nection with the University, a department
of agriculture, of mechanics, of mining, and
of normal instruction."
By an act of March 12, 1877 (Laws N. C.
1876-77, 506, chap. 274), such a department
was established, and, among cftheit things, the
subject of commercial fert&users dealt with.
By the 8th section, manipulated guanos, su-
perphosphates, or other commercial fertilizers
were forbidden to be sold, or offered for sale,
until the manufacturer or person importing
the same had obtained a license therefor on
payment of a privilege tax of $500 per annum
for each separate Brand or quality.
By § 9 every bag, barrel, or other package
of such fertilizer offered for sale was required
to have thereon a label or stamp setting forth
the name, location, and trademark of the
manufacturer; the chemical composition of
I the contents, and the real percentage of cer-
tain specified ingredients; and that the priv-
ilege tax had been paid. By § 10, the Board
was empowered to collect samples for analy-
sis; by § 11, to require railroad and steam-
boat companies to furnish monthly state-
ments of the quantity of fertilizers trans-
ported; and by § 12, to establish an agri-
cultural experiment and fertilizer central sta-
tion in connection with the chemical labora-
tory of the University, and the trustees of the
University, witih the approval of the board,
were directed >to employ an analyst, skilled
in agricultural chemistry, whose duty it
should be "to analyze such fertilizers and
products as may be lequired by the depart-
ment of agriculture, and to aid as far as prac-
ticable in suppressing fraud in the «aie of
£847]commercial fertilizers;" *and whose salary
was to be paid '^out of the funds of the de-
partment of agriculture."
The sections bearing on this subject were
carried forward in the Code of 1883, volume
f, chap. 1, §§ 2190 et seq.
In August, 1890, the circuit court for the
eastern district of North Carolina, Bond and
Seymour, JJ., held that S 2190 of the Code,
declaring that no commercial fertilizers
should be sold or offered for sale until the
manufacturer or importer obtained a license
from the treasurer of the state, for which
should be paid ;. privilege tax of $500 per
annum for each separate brand, was in viola-
tion of the Federal Constitution and void.
American Fertilizer Co. v. North Carolina
Bd. of AgH. 43 Fed. Rep. 609 [11 L. P. A.
179, 3 Inters. Com. Bop. 532.]
Thereupon, by the act of January 21, 1891
IM
(Lawa 1891, 40, chap. 0), chapter 1 of
2 of the Code was amended, and 8i 2190^
2101, and 2193 were made to read as foUows:
''Sec 2190. For the puipoee of defraying the
expenses connected with tne inspection of fer-
tilizers and fertilizing materials in this state
there shall be a charge of twenty-llTe eenti
per ton on such fertilizers and fertflinng ma-
terial for each fiscal year ending Kovember
thirtieth, whi( h shall be paid before delivery
to agents, dealers, or consumers, in this state:
Provided, the board shall [have] the disers-
tion to exempt certain natural maUnai
as may be deemed expedient JSmet bs^
barrel, or oither package of each fer-
tilizers or fertiliang materials ihiin havi
attached thereto a tag stating that all
charges specified « in this section have beei
paid, and the state board of agricnltnre k
hereby empowered to prescribe a form for
such tags, and to adopt such regnlatiom as
will enable them to enforce this law. Axw
person, corporation, or companT who riiafl
violate this chapter, or who shall adl or off«r
for sale any sucn fertilizers or fertilmag aa-
terial contrary to the provisicms above asl
forth, shaU be guilty of a misdemeanor, tf4
all fertilizers or fertilizing materials to woU
or offered tor sale shall be subject to seiziin
and condemnation in the same manner as k
provided in this chapter for the adznre and
condemnation of spurious fertilizers, sobjeet,
however, *to the discretion of the board oCMJ
agricidture to release the fertiMzers to seiied
and condemned upon the payment of ths
charge above specified and all costs and ex-
penses incurred by the departmoit in so^
proceeding: Provided, that tags shall be at-
tached by manufacturers, agents or dcatai
to all fertilizers no^ in the rtate; those pro-
tected under license previously issued skal
be furnished free of charge.
"Sec 2191. £>ery bag, barrel, or ette
package of such fertilizers or fertiUziBg ma-
terials as above designated offered for nie ii
this state shall have thereon plainly printed a
label or stamp, a copy of which shall be fiM
with the commissioner of agriculture, to-
gether with a true and faithful sample of the
fertilizer or fertilizing material which it it
propoeed to sell, at or before ddivery to
agents, dealers or consumers in this state aad
which shall be uniformly used and dtaU not
be changed during the fiscal year for whieh
tags are issued, and the said labd or stama
shall truly set forth the name, location, and
trademark of tlie manufactiurer; also the
chemical composition of the contents of nsk
package, and the real percentage of any ol
the following ingredients assert^ to be pra*-
cnt, to wit, soluble and precipitated ^hm-
phoric acid, which shall not be less thaa
eight per cent; soluble potassa, which AmSL
not be leas than one per cent; ammonia*
which shall not be less than two per cent;
or its equivalent in nitrogen; together with
the date of its anal yzation, and that the re-
quirements of the law have been comptiad
with ; and any such fertilizer as shall be as-
certained by analysis not to contain the in-
gredients and percentage set forth as abort
imr.
Patafsco Goamo Co. v. Board of ▲grioux.tubk.
848-851
■roTided shall be liable to aeizure and con-
damation as hereinafter prescribed, and
when condemned shall be sold by the board
of agriculture for the exclusive use and bene-
fit of the department of agriculture."
Section 2102 refers to the proceedings to
condemn.
^'Sec. 2193. Any merchant, trader, manu-
facturer, or agent who shall sell or offer for
sale any commercial fertilizer or fertilizing
material without having such labels, stamps,
aiid tags as hereinbefore provided attached
thereto, or shall use the required tag the
second time to avoid the payment of the ton-
I49]<iiige 'charge, or if any person shall remove
any such fertilizer, (he) ihall be liable to a
fine of ten dollars for each separate bag, bar-
rel, or package sold, offered lor sale, or re-
moved, to be sued for before any justice of
the peace and to be collected by the sheriff by
distress or otherwise, one half less the costs to
go to the party suing and ihe remaining half
to the department ; and if any such fertilizer
shall be condenmed as herein provided it shall
be the duty of ihe department to have an an-
alysis made of the same and cause printed
tags or labels expressing the true chemical in-
gredients of the same put upon each bag, bar-
rel or package, and ^all fix tihe commercial
Taloe thereof at which it may be sold; and
any person who shall sell, offer for sale or re-
move any such fertilizers, or any agent of
any railroad or other transportation com-
pany who shall deliver any such fertilizer in
violation of this section shall be guilty of a
misdemeanor."
Section2196, which corresponded to S 12 of
the act of March 12, 1877, was amended by
the substitution of the word "control" for the
word "central," and read as follows:
The department of agriculture shall es-
tabhsh an agricultural experiment and ferti-
lizer control station, and shall employ an an-
alyst, skilled in agricultural chemistry. It
•bdl be the duty of said chemist to analyze
•nch fertilizers and products as may be re-
quired by the department of agriculture, and
to aid as far as practicable in suppressing
fraud in the sale of commercial fertilizers.
He shall, also, under the direction of said de-
partment, carry on experiments on the nutri-
tion and growtii of plants, with a view to as-
CNtain what fertilizers are best suited to the
various crops of this state; and whether other
erops may not be advantageously grown on
its sc»l, and slmll carry on such other investi-
gations as the said department may direct.
He shall make regular reports to the said de-
partment, of ali analyses and experiments
made, which shall be furnished, when deemed
needful, to such newspapers as will publish
the same. His salary shsill be paid out of the
funds of the department of agriculture."
The following was substituted for § 2205:
KOJ'Whenever *any manufacturer of fertilizers
or fertilizing materials shall have paid the
charges hereinbefore provided his goods shall
not be liable to any further tax whether by
eity, town, or county."
Section 2208 remained unamended, and pro-
vided: "All moneys arising from the tax on
171 U. 8. U. a. Book 48. 18
licenses, from fines and forfeitures, fees for
registration and sale oi lands not hereia
otherwise provided for, shall be paid into the
state treasury and shall be kept on a smumto
account by de treasurer as a fund for tne ex-
clusive use and benefit of the department oi
agriculture."
The various errors assigned question the de-
cree on the grounds, in general, that the oourt
should have held the act of January 21, 1891,
to be in violation of the third clause of S 8,
and of the second clause of § 10, of article 1
of the Constitution of the United States; that
the charge required to be paid was so exces-
sive that the act could not be sustained as a
legitimate inspection law; or as a valid exer-
cise of the police power; and that it was
neither, because it was not limited to articles
produced in the ntate, and because it did not
relate to the health, morals, or safety of the
oonmiunity.
The second clause of S 10 of article 1 of the
Constitution reads: "No state shall, without
the consent of the Congress, lay any imposts
or duties on imports or exports, except what
may be absolutely necessary for executing ita
inspecftion laws; and the net produce of all
duties and imposts, laid by any state on im-
ports or exports, shall be for the use of the
Treasury of the United States; and all sudh
laws shall be subject to the revision and con-
trol of the Congress.".
The words "imports" and "exporta," ms
therein used, have been held to apply only ta
articles imported from, or exported to, for-
eign countries. Woodruff v. Parh<im, 8 Wall.
123 [19: 382] ; Pittsburg d 8. Coat Company
V. Louisiana, 156 U. S. 590, 600 [39:544,
549.]
The clause recognized that the inspection
of such articles may be required by the states,
and that they may lay duties on them to pay
the expense of such inspections, but as it
would *be difficult, if not impossible to de-[S5l]
termine the necessary amount with exactness
and to remove any inducement to excess, it
was provided that any surplus should be paid
to the United States. As such laws are sub-
ject to the revision and control of Congress,
it has been suggested that whether inspection
charges are excessive or not might be for Con-
gress to determine and not the courts, which
would also be so where inspection laws ope-
rate on interstate as well as foreign commerce.
Neilson v. Garea, 2 Woods, 287 ; Turner ▼•
Maryland, 107 U. S. 38 [27 : 370].
Considered as an inspection law and as not
open to attack as in contravention of that
clause, the questions still remain whether an
inspection law can operate on importations as
well as exportations; and whether in this in-
stance the charge was so excessive as to de-
prive the act of its character as an inspection
law or as a legitima4« exercise of protective
governmental power, and make it a mere rev-
enue law obnoxious to the objection of being
an unlawful interference with interstate com-
merce. Counsel for plaintiff in error insists
that this result is deducible from the legisla- «
tion of North Carolina making appropria- :
tions from the funds of the department of
19S
851-354
8C7FRBMK COOBT OF TUB UNrTBD STATES.
Oct. Tkem,
ft
' 1
1
t
If I
' I
1^
agriculture received from the charge on fer-
tuizers or fertiliziiig materials; as also from
the evidence submitted on the hearing.
It will be more convenient to first dispose
€f ^e latteo* contention.
By 8 2206 of the Code of 1883, the board of
agriculture was directed to "appropriate an-
nually, of the money received from the tax on
fertilizers, the sum oi five hundred dollars
for the benefit of the North Carolina Indus-
trial Association, to be expended under the
direction of the board ol agriculture.''
By chapter 308 of the laws of 1885 (Laws
N. C. 1885, 553), the eslabtishment of an in-
dustrial school was provided for, to the es-
tablishment and maintenance of which the
board was directed by the 4th section to ap-
ply their surplus funds, not exceeding $5,000
annually.
^ chapter 410 of the laws of 1887 (Laws
[S52IN. C. 1887, 718), *the name of ^he industrial
echoed was cftianged to **The North Carolina
College of Agriculture and Mechanic Arts,'*
and the boaM was required by § 6 to turn
over to that institution annually "the whole
residue of their funds from licenses on ferti-
Hzers remaining over and not required to con-
duct the regular work of that department."
But by dapter 348 of the laws of 1891
(Laws N. C 1891, 404), the provision last
above given wtas stricken out, and by § 5 of
the act $10,000 for the year 1891 and $10,000
for the year 1892 were appropriated to the
college; and by chapter 426 of the laws of
1891 (Laws N. C. 1891, 491) an annual ap-
propriation of five hundred dollars was made
to Uie North Carolina Industrial Association.
These appropriations were made from the
state treasury, and 4K)th acts oontidned the
usual repealing clauses.
By S 2198 and subsequent sections of the
act of 1883, the geological survey of the atate,
tiie geological museum, the appointment of
the state geologist, and matters pertaining
thereto, were dealt with, and various expendi-
tures connected therewith were authorized to
be paid out of the general fund of the agri-
cultural department, the sources of which
were apparently not confined to what mdght
be derived from the license tax in respect of
fertilizers.
By chapter 409 of the laws of 1887 (Laws
1887, 714), so much of the sections of the
act pertaining to the state geologist as re-
quired the department to fix the compensa-
tion, to regulate the expenditures, or pay
out of their funds the salary and expenses of
the state geologist, was repealed.
Section 14 of this act empowered the de-
partment to expend from the amount arising
from the tax on fertilizers for 1887-88, the
expenses for the completion of the oyster
survey; but by chapter 338 of the laws of
1891 (Laws 1891, 369), provision was made
for defraying the expenses of the regulation
of the oyster industries of the state from
other sources.
We agree entirely with the cirouit court
that the legislation of 1891 not only amended
the Code in the matter of the requirement of
l]the privileft tav ef $500, *but repealed all
194
I laws making any substantial diveraioB of the
money to be derived from the charge om ier-
• tilizers of 25 cents per ton, to any other pur-
poses than those connected with the neoeasaiy
expenses of inspection. It is ingeniously ar-
gued that as S 6 of chapter 410 of the laws of
1887 repealed by substitution S 4 of chapter
308 of the laws of 1885, the repeal thereof by
chapter 348 of the laws of 1891 revived the
latter section, and hence that $5,000 of the
amount arising from the present charge oa
fertilizers became appropriated to the indot-
trial school, it being asserted that the funds
of the department were in fact derived th&e-
from; and also that the appropriation out of
the state treasury of $500 to the industrial
association by chapter 426 of the laws of
1891 was an additional appropriation, and
did not repeal •§ 2206 of the Code, which di-
rected the Doard of agriculture to appropriate
that sum to that association.
These positions do not commend then-
selves to our judgment. As to the appro-
priation of $500, we think, under the ctrcum-
stances, that it was intended to be in lieu of
the former appropriation of that amount;
and as to the revival of the act of 1885 by the
repeal of the repealing act of 1887, we regard
the doctrine that the repeal of a repealing
act revives the first act as wholly inapplica-
ble. In our opinioii such a conclusion wonld
be opposed to the obvious legislative inten-
tion in the enactment of the law of 1S9L
This act imposed a charge of 25 cents per tea
on commeroial fertilizers, and the purpose oi
thft charge was declared to be to defray the
expenses of inspection onlv. The preVioa
laws had imposed a tax of $500 per brand
upon every brand and description of fertil-
izer, and declared the same to be a privilege
tax. It is impossible to impute to the Bf^n-
eral assembly the intention, in repealing
parts of the Code whidi had been declared un-
constitutional, to revive earlier laws which
might render the amended law liable to the
same objections.
Entertaining these views of the lecislatira
intention, it does not appear to us taut evi-
dence tending to show that *money oollivtcd(Si4
from this source was applied to other than
the purposes for which it was received ihoald
be entered into on this inquiry into the va-
lidity of this act if the receipts are ityaui
to average largely more than enough to pay
the expenses, the presumption would be that
the legislature would moderate the charge.
But treating the question whether the charge
of 25 cents per ton was shown to be so ex-
cessive as to demonstrate a purpose other
than that which the law declared, as a jadl-
cial question, we are satisfied that compariag
the receipts from this charge with the neces-
sary expenses, such as the cost of analyses,
the salaries of injpectors, the cost of tags, ex-
press charges, miscellaneous expenses of the
departnkent in this connection, and so oa. «a
cannot conclude that the chai^ is so seriow*
ly in excess of what is necessary for the oih
iects designed to be effected, as to justify the
imputation of bad faith and change the
character of the act.
171 V. S.
.[ . I
M7.
Fatafboo Quano Co. y. Coasd of ^Amcux^TUiiB.
864-897
InspeetioB laws are not in themselyes
regulations of commerce, and while their ob-
ject frequently is to improve the quality of
articles produced by the labor of a country
and fit them for exportation, yet they are
quite as often aimed at fitting them, or de-
termining their fitness, for domestic use, and
in 10 doing protecting the citisen from fraud.
Necessarily, in the latter aspect, such laws
are applicable to aitides imported into, as
well as to articles produced within, a state.
Clause two of S 10 expressly allows the
state to collect from imports as well as ex-
ports the amounts necessary for executing
its inspection laws, and Chief Justice Mar-
shall expressed the opinion in Broton v:
Maryland that imported as well as exported
articles were subject to inspection.
The observations of Mr. Justice Bradley,
on circuit, in Neilaon y. Oarza, are quite ap-
posite on this and other points under discus-
sion, and may profitably be quoted.
That case involved the validity of a law
of the state of Texas, providing for the in-
spection of hidei» and Mr. Justice Bradley
Slid:
"If the state law of Texas, which is com-
plained of, is really an inspection law, it is
IS5>'alid and binding unless it interferes *with
the power of Congress to regulate commerce,
and if it does thus interfere, it may still be
Talid and binding until revised and altered
by Congress. The right to make inspection
laws is not granted to (pongress, but is re-
seryed to the states; but it is subject to the
psramount right of Congress to regulate
coounerce wiin foreign naitions, and anvooig
the several states; and if any state, as a
means of carrying out and executing its in-
spection laws, impose any duty or impost on
imports or exports, such impost or duty is
vxad il it exceeds what is absolutely
necessary for executing such inspection
laws. How the question whether a duty
is excessive or not is to be decided
may be doubtfuL As that question is
passed upon by the state legislature,
when the duty is imposed, it would hardly
be seemly to submit it to the consideration
of a jury in every case tfhat arises. This
might give rise to great diversity of judg-
ment, the result of which would be to make
the law constitutional one day, and in one
case, and unconstitutional another day, in
another case. As the article of the Consti-
tution which prescribes the limit goes on to
provide that 'all such laws shall be subject
to the revision and conto>l of Congress,' it
teems to me that Congress is the proper tri-
bunal to decide the question,whether a charge
or duty is or is not excessive. If, therefore,
the fee allowed in this case by the state law
is to be regurded as in effect an impost or
duty on impoits or exports, still if tne law
is really an inspection law, the duty must
stand untn Congress shall see fit to alter it.
'Then we are brought back to the ques-
tioa whether the law is really an inspection
law. If it is, we cannot interfere witn it on
■eeouiit of supposed excessiveness of fees.
If it is not, the cscaotion is clearly unconsti-
ITl V. S.
tutional and void, bdng an vnanthoriBed i»>
terference with the free importsitioii ol
goods. The complainant contends that It !•
not an inspeotion law; that inspection laws
only apply legitimately to the domestic prod*
ucts of ihe country, intended for exiKMrt^-
tion; and that no inspection is actually re-
quired in this particular case, but a mere ex-
amination to see if the hides are marked, and
who imported them, etc., duties which belong
to the entry of goods, and not their inspec-
tion.
*"No doubt the primary and most U8ual[AM]
object of inspection is to prepare goods for
expoi-tation in order to preserve the credit of
our exports in foreign markets. Chief Jus-
tice Marshall, in Ot&boiM V. Ogden, says: The
object of inspection laws ia to improve the
quality of articles produced by the labor of a
country; to fit them for exportation, or it
may be, for domestic use.' 9 Wheat. 203
[6: 71] ; Story, Const. § 1017. But in Broum
V. Maryland, he adds, speaking of the time
when inspection takes place: 'Inspection
laws, so far as they act upon articles for ex-
portation, are generally executed on land be-
fore the article is put on board a vessel; so
far as they act upon importations, they are
generally executed upon articles which are
landed. The tax or duty of inspection is a
tax which is frequently, if not always, paid
for service performed on land.' 12 Wheat. 410
[6: 678] Story, Const. S 1017. So that, ao-
cordinff to Chief Justice Marshall, imported
as well as exported goods may be subject to
inbpection; and tbey may be inspected at
weU to fit them for domestao use as for expor-
tation.
''All housekeepers who are consumers of
fiour know what a protection it is to be able
to rely on the inspection mark for a fine or
superior artide. Bouvier defines inspection
as the examination of certain articles made
by law subject to such examination, so that
they may be declared fit for commerce. Law
Diet, verb, 'Inapeciian.' The removal or de-
struction of unsound articles is undoubtedly,
says Chief Justice MarsniUl, an exercise of
that power. Broton ▼• Maryland, supra;
Story, Const. 8 1024. The object of the in-
spec&on laws,' says Justice Sutherland, Is to
protect the community, so far as they apply
to domestic sales, from frauds and imposi-
tions; and in relation to articles designed
for exportation, to preserve the character and
reputation of the state in foreign markets.'
CUntaman ▼. Northrop, 8 Cow. 46. It thus
appears that the scope of inspection laws is
very large, and is not confined to articles of
domestic produce or manufacture, or to ar-
ticles intended for exportation, but applies
to articles imported, and to those intended
for domestic use as well."
But in Turner r, Maryland, 107 U. 8. 38
[27:370], which related only to the law<i of
Maryland so far as providing for the prepara-
tion *for exportation of tobacco grown in thel857]
state, any opinion as to the provisions of
those laws referring to the inspection of to-
bacco grown out of Maryland was expressly
reserv^
195
857-359
SUPBBMB COUBT OF THS UNITED STJiTKb.
Oct. Ton,
I
!
}.• ^
ill!
I'M
n
I
I 1
In Voight v. WH^^f, 141 U. S. 62, 66 [35:
638, 640], a statute of Virginia relating to the
inspection of flour brought into that common-
weoltli was hdd to be unconstitutional, be-
cause it required the inspection of flour from
other states when no such inspection was re-
quired of flour manufactured in Virginia, an
objection to which the act under considera-
tion is not open, for the inspection and pay-
ment of its cost are required in respect of all
fertilizers, whether manufactured in the state
or out of it, and it is conceded that fertilizers
are manu^ctured in Noith Oarolina, as in-
deed, their many laws incorporating compa-
nies for the purpose of so doing plainly indi-
cate. Mr Justice Bradley in that case re-
marked that the question was "still open as
to the mode and extent in which state inspec-
tion laws can constitutionally be applied to
personal property imported nrom abroad, or
from another state, whether such laws can go
beyond the identification an^t regulation of
such things as are strictly injurious to the
health and lives of the people, and therefore
not entitled to the protection of the commer-
cial power of the government, as explained
and distinguished in the case of Crutcher v.
Kentucky, 141 U. S. 47 [35:640] just de-
cided."
Whenever inspection laws act on the sub-
ject before it becomes an article of commerce
they &re confessedly valid, and also when,
although operating on articles brought from
one state into another, they provide for in-
spection in the exercise of that power of self-
](nrotection commonly called the police power
No doubt can be entertained of this where
the inspection is manifestly intended, and
calculated in good faith, to protect the pub-
lic health, the public morals, or the public
safety. Minnesota v. Barber, 13G U. 8 313
[34-455, 3 Inters. Com. Rep. 185]. And it
has now been determined tlutt tMs is so, if
the object of the inspection is the prevention
of imposition on the public generally.
In Plumley v. Massachusetts, 155 U. S. 4G1
[39:223], it was decided that a statute of
Massachusetts "to prevent deception in the
[SM]manufacture *and sale of imitation butter,*'
in its application to the sale of oleomargarine
artificially colored so as to cause it to look
Hke yellow butter, and brought into Massa
ehusetts, was not in conflict with the clause*
•f the Constitution of the United States in-
▼esting Congress with power to regulate com
merce among the sevei'al states. That deci
•ion explicitly rests on the ground that the
statute souffut to prevent a fraud upon the
general public. It is true that an article ot
food was involved, but the sole ground of the
decision was that the state had the power to
protect its citizens from being cheated in
making their purchases, and that thereby the
eommercial power was not interfered with.
Schollenherger v. Pennsylvania, 171 U. S. 1
[ante, 49].
Where the subject is of wide importance t(«
the community, the consequences of fraudu
lent practices generally injurious, and the
suppression of such frauds matter of public
concern, it is within the protective power o:.
106
the state to intervene. Lawi pnnriding lor
the inspection and grading of flour, tl^ in-
spection and regulation of weights and mess-
ures, the weighing of coal on public sesiei,
and the like, are all competent exercises el
that power, and it is not percdved why tht
prevention of deception in the adulteratioD of
fertilizers does not fall within its scope.
It is apparent tnat there is no artiele enter-
ing into common use in many of the states,
and particularly the southern states, the in-
spection of which is so necessary for the pro-
tection of those citizens engaged in agricul-
tural operations, as commercial fertilizei^
Certain ingredients, as ammonia or nitrogen,
phosphoric acid, and potash, make up tht
larger part of the value of these fertilizen,
and without the aid of scientific analysis, tbt
amount of these ingredients cannot be asce-
tained nor whether the fertilizer sold is of s
uniform grade. The avera^ farmer wta
compeued, without an analysis, to depend as
his sense of smell, or his success, or failure,
during the previous year with the same brutd
or name, to determine the relative amoonta
of the essential ingredients, and the value of
the materials. To protect agricultural inter-
ests against spurious and low grade fertili-
zers was the object *of this law, which simptj^Si
imposed the actual cost of inspection, neecf-
sanly varying with the agricultural eonditios
of the various years. The label or tag couki
only be furnished after an analysis, the result
of which was therein stated. In that light,
the law practically required an analysis is
every case, and was sustained as so dotof by
the supreme court of North Carolina in 8te$e
V. Norris, 78 N. C. 443.
The act of 1877, requiring the obtaining of
a license to sell fertilizers on the payment of
a privilege tax of $500, was considered in thAt
case, at January term, 1878, of that eovt,
and held valid under the state Constitntioa
as intended to protect the pubUe from beiog
imposed on by aviulterated fertilisers, asd to
keep the traffic in the hands of respossblt
parties, making the means to thsi aid M-
sustaining by the license tax. And it wti
also decided that the law was not in cosfiet
with the Federal Constitution <m the author
ity of Woodruft v. Parluim, 8 WaU. 122 [1»:
382], and Einson v. LoU^ 8 WalL 148 [)f :
387].
As before remarked, the sections of the id
of 1877 relating to this subject were csrritd
forward into the Code of 1883, and 8 2190 1^
quired the license and imposed the privikgf
tax.
In Btokes v. Department of Agrieultwrt,
106 N. C. 439 (If^) the supreme oooH bdi
that § 2190, in prohibiting the sale, or tht
offering for sale, of ferblizers in North Cud*
Una until the manufacturer or person ish
porting the same diould ot>tain a lieeBse, dii
not prohibit the use of them in the state, sor
the purchase of them in another state, to be
used for fertilizing purposes by the porchtaer
himself in North Carolina; and that, where t
person acting for himselif and others, res-
dent farmers of the state, ordered from a sos-
resident manufacturer a number of bsfi of
171 U. &
iMT.
Smtth t. Amb8.
859-888
fcrtfliier, m given number being ordered for
cteh pnrdiMer, and the same was shipped in
separate parcels, addressed to different pur-
ehaaers separately, and separate bills sent to
etch purchaser, there being no intent to evade
the statute, the transaction did not come
within the inhibition of S 2190, and the goods
were not liable to seizure at the instance of
the department of agriculture.
10] *8iinilar laws of other states, regulating the
•ale of fertilizers* have been sustained on the
tame ground*
In Steiner ▼. Ray, 84 Ala. 93, it was held
that a statute r^^ating the sale of commer-
cial fertilizers, when its controllinff purpose
was to guard the agricultural pubkc against
•porious and worthless compounds sometimes
sold as fertilizers, and to furnish to buyers
cheap and reliable means of proving the de-
ception and 6«ud, should such be attempted,
was strictly within the pale of police regula-
tka and was constitutional. And this case
was cited with approval in Kirhy ▼. Efunta-
viUe FeriUizef' d M. Co. 105 Ala. 529, where
it was ruled that the saleof commercial ferti-
lizers was void unless each sack, parcel, or
package was tagged as required by statute
at the time the right of property paissed from
the vendor to the tondee.
In Vanmeier v. Spurrier, 94 Ky. 22, an act
of Kentucky, "to r^ulate the sale of ferti-
Vaen in thM oommonweaH;h, and to protect
agriculturists in the purchase and use of the
same," was sustainea ; and it was held that
the statute oould not be fairly construed to
authorize the levy of an impost on interstate
coDunerce beyond what was necessary to in-
spection. The court said: The statute, as
its title indicates, was enacted for proiection
of krmers of this commonwealth against
fraud and imposition of those having for sale
eommercial fertilizers. To accomplish that
object, each one sellmg, or offering for sale,
any fertilizer is required to submit a sample
for analysis and test of its quality at the ex-
perimental station. For that purpose onlv
can the fees collected by the director be used,
and in that way and to that extent only can
hrmers of the commonwealth be benefited by
the statute. In our opinion the law is valid
ia every respect."
In Faircloth v. De Leon, 81 Ga. 158 ; Oould-
ing Fertilizer Company v. Driver [99 Ga.
623] ;25 S. & 922, and other cases, the supreme
court of Georgia has held that the seller of
eommercial fertilizers, which had not been
inspected as the law required, could not main-
tain against the buyer an action for the price;
but in Martin v. Upshur Ouano Company, 77
^IJi^a. 257, *that the statute was not applicable
where sale and delivery were without the
state.
The act of January 21, 1891, must be re-
garded, then, as an act providing for the in-
spection of fertilizers and fertilizing materials
in order to prevent the practice of imposition
on the people of the state, and the chaiige of
25 cents per ton as intended merely to defray
the cost of sadtk inspection. It being compe-
tent for the state to pass laws of this
character, does the requirement of inspection
171 u. a.
and payment of its cost bring the act into
collision with the commercial power vested in
Congress? Gearly this cannot be so as to
foreign commerce, for clause two of § 10 of
article 1 expressly recognizes the validitY of
state inspection laws, and allows the collec-
tion of tne amounts necessary for their ex-
ecution; and we think the same principle
must apply to interstate conmierce. In
any view, the effect on that commerce is in-
direct and incidental, and "the ConstituiAon
of the United States does not secure to any-
one the privilege of defrauding the public."
Decree affirtMd,
Mr. Justice Harlan and Mr. Justlca
Wliite dissented.
CONSTANTINE J. SMYTH, Attorney Qe»-
eral, et dl.. Constituting the Board of
Transportation of Nebraska, Appte.,
V,
OLIVER AMES et ol.
SAME
V,
GEORGE SMITH et oL
SAME
HENRY L. HIGGINSON et of.
(See S. C Reporter's sd. 861-885.)
Deoreee modified — reasonahleneae of rafes—
when to be determined,
L The decrees of this court are modified, to
these cases, by striking out certain restrain-
ing words.
2. This court did not In its prevons decree pass
judgment upon the reasonableness of the
rates on any particular article.
8. The reasonableneas of a schedule of rates
must be determined by the facts as they exist
when it is sought to put such rates into opera-
tion.
[Nos. 49-^1.]
Submitted May 9, 1898. Decided May 9U
1898.
APPEALS from decrees of the Circuit
Oouit of the United States for the District of
NebnaskcL On application for rehearing and
modification of decrees. Decrees in the aev'
eral cases modified and as modified, affirmed..
The facts are stated in the opinion.
See same case, 169 U. S. 466 [42: 819].
Mr, C. J. Smyth, Attorney General of
Nebraska, for appellants.
Mr, J. M. Wool worth for appellees.
Mr. Justice Harlan delivered the opinion
of the court:
These cases were determined in this court
during the present term and are reported in
NoTB. — A9 to rates, regulation of, l)y statute,
see note to Winchester & L. Tump. Road Co. v.
Croxiun (Ky.) 33 L. B. A. 177.
107
:
1
-1
•0:d-«05
6UP&&MS COU&T OF THR UnITBD StATKS.
Oct. Tkbh,
1Q» U. a 460 [42:819]. The decree in
•Aoh OMe WM afnrmed. The eases are now
before ut upon an application by the appd-
lanU- the attorney gt^neral of Nebraska and
hU oollen>;uea constituting the State Board
ot TtAnsiHirtation and its secretaries — ^for a
mmUtloation of the dveree ol the eireait court
In the rt^Jtpective cases.
Tht» dtHMee in Smyth ei mk t. Awtm 9t ^K
Kok 40* which this court afl&nned, was as fbl>
lows)
*''rhat the said milroad comp«uiiea and
each and ev^jry of them» and said reeeirers>
be perpetually eivioined and restrained from
wakii^c or puMUhtog a schedule ol ratee to
be chav>;^ by them or any or either of tbeas
(or the ti^an^^portatioa ol Insight om aad over
their ree^HN'tive ro^^ds in this state frooa eoe
poini to another theiviiu whereby each rates
•hall be redu^-ed to thot$e t^reecrtbed by the
aet ol the Wgi^ature ol thjb state^ called tit
the biU ftted uherein^. 'Hout^ RoU 33.^ and esr
tilled 'An Aot to Kt^uJ;ite KailroadSv to
CUwifv ¥>ei^ht% to Fix Keesemibie >Iax-
ivuuuji l^tee to be Charged for the Traaspor-
States, forasmuch as by the provisions ol
said aot the said defendant railroad com-
panies n?ay not exact for the tran^>ortatiaB
ol freight from one point to another wkhia
this state, charges which yield to the laid
companies, or either of them, reasonable com-
pensation for such services. It Is further or^
dered, adjudged, and decreed, that the de-
fendants> members of the board of transpor-
tation of said state, may hereafter, when the
circumstances have changed so that the ratet
fixed in the said act shall yield to the said
companies reasonable compensation for the
serrices aforesaid, apply to this court by sap-
plemental bill or otherwise, as they may bt
sdYiscd, for a further order in that behalf. It
*is further ordered, adjudged and decree! thau<
the p^afntiffs recorar of the said defendants
their costs to be taxe»i by the derk."
The appellants tto« ask that the decree ol
the circuit court in that case be modified br
striking therefrom the words, *^uid below
:hoee mam charged by said companies or
either <d them or their receiTers*** and the
words **ajKi particularly from reducing its
7res«rfe rates of charges for transportatiaa ol
^tiott ol t>ei^ht upcrt each ol the Bailroais
te Ihe ^at* ol Nei)ni;sJta,. and t» Provide rreight to those prv^iibed in
lV«u«^Uee ^ the Viaiiitiott of thi» A^rC»* ap- The (iecree of the cirq^t co*trt in Smytk
Mvved April It, IS^^ 'imi Moi4T those mnc -rt «L ▼. Sm:jtk nt «L, No. 50. and the derree
e^^ory^ f>^ ^liiti (A/m/^t«it^ or ttchttr of thtun in Smyth ^tdL t. Eig'jiitsfm €t ai^ Xo, SUart
er ih<f*r >vtv<6tfrs, or in Aaywuse ooeyiity:. oh- substantially the same as the decree in the
9Kvii^c or (^ml:t>rttlinK to the :7rovt:Hoas» oom^ ; •.*&{£« ot Sm^ih 9t oL r. Amts H mL The ap-
Uliu^J^ iit.»um.*Ut>tt* irtd proaibiuona ot said oellants in Smyth et oL t. Smith «t «f. bo«
altered *ci.; Jutd uha- :he boerd ^ transport : isk tha« the words fat the decree **aiid bdow
t%#$Jfe*uva ol -kAid -a* te ^i-nd the member* ami «c-: ihose now charged by sa: t companies or
l^^noa o* iJtiid lK»tird thf »n a vtt manner pec^ " eidier of them,** \nd fbe words "^uid partirt-
»«HuaHy e**>»i>*W anu rvsir^ntKl trum eocet^ 'ariy from reducing^ its present rates of
%iii)ai^, hrjium^c or JtM»»r*tuttiii^ any oonr- Hiarges ^r txansportatioa of freight to those
piaiiio tio It 4K'^^"^ >^*d rH.I\>Hy vwm panics Tnsjcrib«l in said act."* be striekan out; and
w t4i»v v^ tftJ =u»i oi '- KMM jT :ho%r '^'**.>?nr. 'he a^peilanta in Smyth et «£. t. Bi^yim»em
li>r or on tvwtuMC s>i Any set jt ta.nir oy re u. isk that the words '*and below thsm
4i hvM" v,vJ *H*d v.vttiiMMic* xjT tiieir r*?^.-^.- v'r^ TOW oflunred. by said company/ aad the
ih,^> y^.hv\H«< .i^vu.^ ^iv.-ixttss jr ijnit'i •} '."t*!- ronis '*ajid parneuiariy from reduoBf it»
di^fK>« J**t '^itni, K^i .>ttu: t.xi, \»'Uvl !tuiv jt; .ur-
«>« vi'vi vN>^<v*-'^"*^ ***" * ^*''' ^H^i^et-* 'Or in*
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^rwenc mcoe it vihar^es for trutsporzaiioa «l
re'LTMC to "unree presenbed by said act,** ht
<rM t;'*n rmm "tie decree in that «ni3e.
rhe "JUT*" IS *rf opinion that the vm^
»nc ipMiiitiruin bv ta»» appeilanta in eaoi ti
.IV iLX've .-ise* "Woui f jv jn"nnrt*d. The f«a-
'rni !ue^iIon irtrntMi 'jerore ij» -m die ipirit
w-.-rji \n*v \';.''ieT the r-i:e» est j 'i^oed
jy u.t* N '•MTti^ka -rtanite. Iotjk:njr a£ 'Jum as
ux ^iwrr^^'. A-n* •« 'inn^atMnuoiy low as to
>:f«\..at uie m^lrrjitei jomp:inie9 Tom cuvng
^^ . , -^'-^^nxiriiin <»& a lu.a re juirt, iiaT'Sf
aitt -vui.u 'o lie rrjtlitx »«uii of :he aubiic
.iM n ne - ini^^mww In our axaminA*i*'a
i r*.! :iit-<iv.n t "taa irrmpnatn ami asf
.^5^.^ -,. r • 'IP* i» "lo JTt* -nnimje ii lae re>
<^,, ;^i« , • ■ .r"t^ •in*.er :»» m'ee winch
-* , .a^ -n »n'.ir»""\ In 'ms wav wa
:. ■**-•* r**? "••^•"^.'le »»ffw^ -ft "^iie ftatutv
^: *- '\ - i: * T- ; ntond. iv sa
..'-I? "*? -s«\t*fn4 ut*'T*«* Tf .ta^uuge that
*. - lU -•*fr'^an:e» ^i^ rxsd aat, at any
^ . ,. -»i.»"Ti.. t •*ht*^ «w rYmper, re*
r -*.*». •' ♦frr >t trem, onuer
^^^ , •"t.'rrMPC *tyuMi't m at cfae
•* '■**. ;•:' ••■'■i^ Trerv rr^f^'-'ed* nor <teft
t: -^::.^r x*ara M ':xnjMpummtiom. lOtmd Mt
^ • -
*-v «
1897.
Whits t. Bsbbt.
865-3«7
ndoM ratct on specific or particular articles
below the mtes which the companies were
fihuging on such ariicles when the decrees
were entered. It may well be Idiat on some par-
licular artide the railroad companies may
deem it wise to make a reduction of the rate,
and it may be that the public interests will
justify the state board of transportation in
ordering each reduction. We have not laid
down any oast-iron rule covering each and
every separate rate. We only adjudged that
the enforcement of the schedules of rates es-
tablished by the state statute, looking at
fiuch rates aa a whole, would deprive the rail-
road companies of the compensation they
were legally entitled to recei^^e. We did not
pass judgment upon the reasonable-
ness or unreasonableness of the rates
on any particular article prescribed by
the statute or bv the railroad companies.
If the state should by statute, or through its
bond of transportation, prescribe a new
schedule of rates, covering substantially all
articles, and which would materially reduce
ihoM charged by the companies respectively,
or should by a reduction of rates on a lim-
ited number of articles^ make its schedule of
rates as a whole, produce the same result,
the question will arise whether such
rites, taking into oonfdderation the rights of
the public as well aa the rights of carriers,
ire consistent with the principles announced
by this court in the opinion heretofore de-
liTered. Of course, the reasonableness of a
sdiedule of rates must be determined by the
facts as they exist when it is sought to put
SQch rates into openulion.
The decrees in the several cases are hereby
modified by striking therefrom the words re-
ferred to in the appbcation of the appellants.
The decree in each case being thus mod-
ified ia affirmed.
66JA. B. WHITE, Collector of Internal Revenue
for the Distiict of West Virginia, et oZ.,
H. C. BERRY.
(See S. C. Reporter's ed. 366-878.)
Distinction between common law and equity
— equity jurisdiction over removal of pub-
lie of^cere— distillery gauger — removal
from office,
L Under the Constitution and laws of the
United States the distinction between com-
mon law and equity, as existing in England
St the time of the separation of the two coun-
tries, is maintained, althongh both jarlsdlc
tions are vested in the same courts.
1 A court of equity has no jurisdiction over
the appointment and removal of public ofll-
cers. To sustain a suit in equity to restrain
or relieve against proceedings for the removal
of a public officer would invade the domain of
the courts of common law, or of the executive
and administrative departments of the gov-
ernment.
8. A court of equity ought not to assume to
control tne discretion which under existing
statutes the executive department has to as*
sign some one to duty as gauger at a distil-
lery in the place of the plaintiff, although
that does not work the removal of the latter
from office.
4. Proceedings for the removal from office of a
United States gauger, although in violation
of law, cannot be restrained by a court of the
United States, sitting in equity.
[No. 539.]
Argued March 21, 22, 1898. Decided May
SI, 1898.
APPEAL from a decree of the Qrcuit
Court of the United States for the District of
West Virginia restraining the defendants, A.
B. White, collector, etc., et al,, from inter-
fering with the plaintiff, H. C. Berry, in his
office and in the discharge of his duties at
gauger at the Hannis distillery at Martina-
biirg. West Virginia, and to permit him to
discharge the duties of his office, etc. Re-
versed, and cause remanded with direction to
dismiss the suit.
Staltement by Mr. Justice Harlan s
This suit in equity was brought by H. €L
Berry in the circuit court of the Uirited Statei
for the district of West Virginia a^nst A.
B. White, Uniied States collector of internal
revenue for that district, A. L. Hoult, John
D. Suitton, Anthony Staubley, and Franldiii
T. Thayer.
The bill alleged that in 1893 the plaintiff.
Berry, was duly appointed b^ the secretary
of the Treasury to the position of United
States gauger, and from that time to the com-
mencement of this suit he had acted in thait
capacity at the Hannis distillery at Martina-
burg, West Virginia;
That he was appointed through the recom-
mendation of E. M. Oilkeson, late oollector
of internal revenue for tdie eibove-named dda-
trfct;
That he was paid at the rate of $100 per
month directly from the Treasury Depait-
ment, and was an officer of the United States
government, having taken the required oatb
of oflSce and executed bond as required by
law ;
♦That his oath of office and bond continued[367]
good and in force regardless of the personnel
of the collector of internal revenue, and he did
not hold his position at the discretion of tlai
officer;
Nom. — As to equity jurisdiction after trial
•I law, see note to Smith v. M'lver, 6 : 152.
As to what remedy at law will prevent rent'
•dif in equity, see note to Tyler v. Savage,
86:83.
At to when injunction to restrain acts of pub-
Me officers wiU be granted, see note to Missis-
sippi ▼. Johnson, 18 : 437.
171 V. S.
As to right to remove officers summartty:
particular officers; particular provisions; 4m-
plicatlons; where term of office is flwsd; remote
als for cause; nature of proceeding, — see note
to Trainor v. Wayne County Auditors (Mich.)
15 L. B. A. 96.
190
I67-S69
SuPREMB Court op thb United States.
Oct. Term.
That 9kt lutd honestly, faithfully, and im-
futtfially discharged his duties, being espe-
cially well equipped and qualified to dis-
charge all the duties appertaining to his of-
fice;
That the defendant White, collector of in-
ternal revenue, had declared his intention to
appoini a ganger and three Grtxn-ekeepers to fill
the place of the plaintifir and others employed
•ft the distUlenr at an early date;
That the defendants Hoult, Sutton, Staub-
ley, and Thayer had been reinstated, or would
be appointed and commissioned, and one of
them would be assigned to duty in place of
the plaintiff at the Hannis distillery through
White, who had openly declared his intention
to reinstate the defendants in place of the
pAaintiff and others;
That the plaintiff is a Democrat in politics,
WBB assigned to said office as a Democrat, and
had voted ihe ticket of that political paity,
while the defendant White was a RepubU-
;i'
I
That Wliite had declared his intention to
place one of the other Anir defendants in
Slaintiff's pomtion because of the latter's po-
tical affiliation, and for no other reason, luid
to appoint and recommend Republicans to fill
such places for no other reason than that ^ey
were of that {Kylitical faith;
That the plaintiflrs office is in the classified
service, and belongs to what is known as the
(Xvil Service, and as such he could not be re-
moved, except for cause shown and proved;
That by a circular issued by the Secretary
d the Treasury it was provided that no re-
movals should be made from any position
subject to competitive examinatron except
upon just cause and upon wntten charges
filed wtth t^e head of the department or &e
appointing officer, of which tiie accused
should have full notice and opportunity to
make defense;
That in department circular No. 119, which
was an executive order, the same provisions
were made, together witli others, and were
signed by the Acting Commissioner of Inter-
[M8X>al ^Revenue and approved by the Secretary
of the Treasury;
That the plaintiff was one of the employees
of the Treasury Department, was included in
the clasaified service, and was protected from
removal for political or religious reasons un-
der the Civil Service laws and rules of the
United States, as fullv apptrars from a com-
munication received from the acting presi-
dent of the Civil Service Cominussion of date
September 10, 1897;
That if the defendant White be permitted
to remove the plaintiff from his office and po-
sition or supplant him by others, the same
would be illegal and in violation of law;
That rule 2 of § 3 <^ the Civil Service niles
provides that ''no person in the executive
Civil Service sfaaH dismiss or cause to be dis-
missed or make any attempt to procure the
dismissal of or in any manner change the of-
ficial rank or position of any other person
therein because of his political or religious
affiliations;" while S 1 of those rules provides
that any person in the executive Civil Service
200
of the United States who should wilfnDj
violate any provision of the Civil Service set
or of the rules established by the Civil Serviee
Commission should be dismissed from ofiioe;
That under the law the plaintiff had a
vested interest in his office, and if White
should remove him therefrom or asast a m
doing it would be in violation not only ol the
Civil Service rules but of 4^e pbuntiff'e vested
interest in his office, for which he would not
have an adequate remedy at law;
That he is able, competent, and willing ts
discharge the duties of his offiice, and is un-
willing to be summarily dismissed therefroB
for no other reason than that he is of opposits
politics to those of the defendant White, col-
lector of internal revenue;
That the said collector has no power, right,
or authority to remove the plaintiff fnna hn
office, or to appoint any other to take bis
place and ther^y effect his removal; that the
defend«urts Hoult, Sutton, StauUey, and
Thayej* have no right or authority to take
the oat^ of office Mid otherwise qualify sad
appear to take the position, and thereby as-
sist in the removal *of the plaintiff, and as[M|
there were no vacancies created either by re-
movals or resignations, and there being 15
per cent now commissioned more than soiB-
clent to perform the duties of storekeepers
and gangers in that district, if they were pei^
mitted so to do it would be in violation ol
law as well as of the rights and vested inter-
ests of the plainUff ; and.
That unless White be enjoined from so do-
ing he will remove the plaintiff, and un)e«
his codefendants are enjoined from qualifying
as officers of the United States to take the
place of the plaintiff at the distillery they
would in that manner effect the remoTal oi
the plaintiff from his office, they having ex-
pressed their intention to accept tnoh ap-
pointment and assignments.
The relief asked was an injunction restraia-
ing and prohibiting the defendant White, col-
lector, and all others by and through him,
"from removing him from the positioa of
gauger until a vacancy is created accord iag
to law, as an officer of the United States
aforesaid, and also from recommending, as-
signing, and appointing any person to the
same position, and from proceeding in the at-
tempt to make such removal, and in any
other manner interfering with your complain-
ant;" and also, that Hoult, Sutton, Suubley,
and Thayer and all other persons be enjoined,
restrained, and prohibited "from qualifying
as gauger to take the place ol your complain-
ant at said distillery, or ir any other way aid
or assie^ in the removal of your said orator, or
performing or disdiarging anv of the duties
of said office," and for such other and ^oeial
relief as to equity might seem just and righL
In confomuty with the motion by the
plaintiff for a temporary restraining order,
it was adjudged, ordered, and decre^ **that
A. B. White, United States collector of in-
ternal revenue for the district of West Vir^
ginia, be and is hereby restrained, enjoined,
and inhibited from recommending, appoistr
ing, or aiding in the appointment of A. l»
171 U.l^
rJ i: I
iao7.
WfllTB ▼. BSBRT.
8e»-«7»
H<mH» J6iia D. BnttoBf Anthony Btroubley^
or say other peraon, to said poaitioii, and from
femoTing the nid compUunairt Berry afore-
ndd, turtil a vacancy therein is created by
law, and from aaaigning and appointing any
(S70]* person to the same position, and from pro-
ceeding in the attempt to make such removal
and in anv other manner interfere with the
said complainant Berry in the said office, as
aforesaid." It was further adjudged, ordered,
and decreed "that A. L. Hoult, John D. Sut-
ton, Anthony 8troubley, and aU other per-
sons be, and they are hereby, enjoined and
prohibited from acting as gauger in the
place and stead of the said complainant Ber-
ry, as aforesaid, or in discharging any of the
duties of the said office, until the further
order of this court."
The answer of the defendants states that
on the 30th day of September, 1897, the Com-
miBsioner of Internal Revenue made an or-
der reeving plaintiff from assignment to
duty as gauger at the Hanms distillery, and
on the same day telegraphed the plaintiff to
that effect; that on the same day the com-
missioner telegraphed defendant Thayer, as-
signing him to duty as gauger at that diertil-
lexy, and oa the 1st day of October, 1897, he
took charge as such gauger, and was in
chsj^ when defendant White, collector, vis-
ited the distillery on that day; that Thayer
took charge before 8 o'clock in the morning
of October 1, and before the granting of the
injunction, and before any service upon or
otaier notice of any kind of the granting oi
or appUoatioB for the injunction to Thayer,
White, or any of the defendants; that the
recommendatioii of defendant White to the
commissioner, that the plaintiff be rdieved
from duty as aforesaid^ was made prior to the
institution of this suit; that it has been the
general policy of tiie Internal Revenue Bu-
reau to rotate the assignments of storekeepers
and gaugen for the purpose of securing to
such storekeepers and gangers a fair propor-
tion of employment and for the purpose of
preventing collusion between distillery offi-
cials, and otherwise protecting the interests
of the government; that plaintiff having been
on duty for a long time prior to the 30th
day of September, 1897, as gauger, it was
deemed by the Commissioner fair and right
among the several gangers, and for the best
interests of the public service, to relieve
plaintiff from assignment to duty at the Han-
nis distillery.
Admitting In their answer that the plam-
fS71]tiff was an officer "^of the United States, duly
appointed and conimi(:sioned, and that he did
not hold his position at the discretion of the
coUeci^x' of internal revenue, the defendant
Wliite denied that the plaintiff was well
equipped and qualified to discharge all the
duties of gauger, but that from the records
of his office and of the department for the
previous three months, during which he has
been collector, the plaintiff was not a first-
dass gauger, and was culpwbly careless in
his work, and that it was largely because of
informatkm he had received th»t defendaiib
White rpoommended to the commissioner that
171 U.S.
the plaintiff be relieved from duty m gaug-
er at that distillery; that the defendant
White as collector had never declared his in-
tentioQ to appoint any one of the other de-
fendants or anyone else a storekeeper or
gauger, knowing full well and recognizing
the fact that storekeepers and gangers are
and can be appointed by the Secretaj^ of the
Treasury only; that the Secretary of the
Treasury reinstated Hoult as gauger, Staub-
ley as storekeeper, and Thayer as gauger in
1897, in aooordsAce with the laws of the Unit-
ed States and in accordance with the civil
service law, each having first been certified
as digible to such reinstatement by the Civil
Service Commission; and that Hoult, Sutton^
Staubley, and Thayer had all been duly com-
nussioned and executed bonds and qualified
prior to the inMitution of this suit; and that
defendant White never declared hia inten-
tion to reinstate any of said officers or assign
them to duty in the place oi Uie plaintSf^
recognizing fully that he had no such au-
thority, and that neither Hoult nor SPtaublej
had been assigned to duty since their rein«
statement
Hie defendant White admitted that he waa
a Republican in politics, and the defendants
admitted that the plaintiff was a Democrat
in politics. White denied that he ever sig-
nified or declared his intention to remove tiis
plaintiff from office or put the defendants or
anyone else in his place, for the reason that
the i^alntiff was a Democrat in politics, and
for no other reason to appoint or recommend
in his stead a Republican; that fan fact and
in law he could have nothing to do with tiit
removal or appointment of a storekeeper or
a gauger unless it be to recommend the same:
that in short the appointments of *storekeep [9t9%
ers and oaugers ana their removals could h*i
made omv by the Secretary of the Treasury.
The defendants alleged that the revocation
of assignment complained of by the plaintiff
was nude by the Commissioner, whom the
defendants understood was a Democrat.
The defendants admitted that the office of
gauger held by tihe plaintiff was in the classi-
fied service, and belonged to what was known
as the CivU Service; but alleged that so far
as they knew the plaintiff had not been re-
moved, but oci the contrary still held the po-
sition of United States gauger; that the fact
that he had been rdiev^ from assignment to
duty at the Hannis distillery did not remove
him from office; that he might be assigned
to duty or transferred or nonassigned at any
time by the Commissioner of Internal Reve-
nue; that the plaintiff could not in this man-
ner question the righl of the commissioner ta
assign a United States gauger at a disftillery
or relieve one who has already been assigned;
that the Commissioner had the right to as-
sign to duty a United States gauger, and to
determine how long he shall remain on duty ;
under such assignment; and that no law, ex-
ecutive order, or rule or regulation of the
Civil Service Commission was violated by the
commissioner doing as he had done in this
case in exercising the authority conferred up-
on him by the acts oi Congress by assigning
201
•7^-375
SUPHKMB COUUT OF TUB UNITED StATIlS.
0<7T. TsftM.
■t
A ffauger to duty at the said disrtillery and
• nueving from duty the plaintiff, who had
been thei*etofore assigued to duty at the same
distillery by the commissioner and by the
Bame act of Congress.
The defendants admitted that the plain-
tiff was willing to continue in office,
but the defendant White charged that
he was a earless officer, and that if any at-
tempt was or should be made to remove or
^iamian him from the service, it would not be
- for the reason that be was of opposite poli-
tics to those of the collector.
The answer concludes:
"Replying to allegation No. 13 in plaintiff's
bill, the defendants again say that the de-
fendimt White claims no nght or authority
to remove the said plaintiff from office or to
appoint anyone in his place, and that he
|973]iiever has claimed any such *authority. The
defendants say that the defendants Hoult,
Sutton, Staubley, and Thayer, having been
duly appointed to the positions respeotively
held by each of them by the Secretary of the
Treasury, that the right to h(^d said posi-
tions cannot be questioned in this or any
other collateral proceeding; that the question
of whether there were or were not vacancies
at the time these appointments were made
cannot be determined in this suit. Neither
of said defendants Hoult, Sutton, Staubley, or
Thayer was appointed in place of the plain-
tiff. The appointment of neither could affect
the plaintiff, and whether the Secretary of t^e
Treasury has more of these officers m com-
mission than he is enttitled to have under the
law is not a question wihtch can be raised by
the plaintiff in this suit. It cannot be ascer-
taiDed in this proceeding whether or not 15
per cent or any other number of officers are
now in commission more than are sufficient
to perform the duties of storekeepers or gaug-
•«rs in this collection district This oourt, it is
respectfully suggested, will not undertake to
ascertain the number of disrtilleries in opera-
tion and to be placed in operation in said col-
lection district and the number of storekeep-
ers and gangers to be placed on duty at such
distilleries. It is submitted that these are
ouestions to be determined by the Treasury
Department, and must be supposed to have
l>een determined before such appointments
were made, and the appointments made in
•conformity to the interests and requirements
of the public service. Defendants therefore
•deny that by the appointment of the defend-
ants Hoult, Sutton, Staubley, and Thayer
more storekeepers and gaugers were placed in
comnnssion than were suflicient to perform
the duties of such officers in said district.
"The defendants deny that the appoint-
ment and qualification of said Hoult, Sutton,
Gtaubley, and Thayer will make necessary
the removal of the plaintiff. The defendants,
further answering, say that the defendant
Hoult was on the — day of , 1889, ap-
pointed a United States ganger; that on the
— day of , 1893, after having served
about four years, and there having been a
change of administration, he was removed
from said position through no delinquency or
1t02
misconduct *of his; that during the latewmr^St
of the Rebellion he served in the miUtarj
service of the United States, and was honor-
ably discharged therefrom; that avmiUng Idm-
scdf of rule 9 of the Civil Service regulMiom,
he made application to the Secretary of the
Treasury to be reinstated to the p<^tion fron
which he had been removed; that defendants
are informed that said petition, together with
the requisition of the proper officer of the
Treasury Department, were referred to the
Civil Service Commission, and his eligibility
having been properly certified by said com-
mission, he was reinstated and reappointed by
the Secretary of the Treasury. Said petxtioa
was originally filed with £. M. Gilkeson, late
cc^ector of internal revenue, and, together
with the recommendation of said ooUeetor,
forwarded to the Commissioner of IntenuJ
Revenue. The defendants insist that in mak-
ing said appointment or reinstatement the
Scwrertary of the Treasury acted in stiicC oon-
formity with the acts of Congress and the
rules and regulations ot the Civil Service
Commission. The defendants Sutton, Steah-
ley, and Thayer were similarly reinstated
and reappointed as storekeepers and ganger.
The defendant A. B. White says that the
recommendation made by him to the Com-
missioner oi Internal Revenue relative to the
plaintiflf was made prior to or on the 29x!h
day of September, 1897, and the said recom-
mendation was made in part because the said
plaintiff had been on duty for some time, and
in pait for the reasons herein b^ore stated.
Said defendants further say that they believe
and charge that the reinstatement and ap-
pointment of said defendants Hoult, Sutton,
Staubley, and Thayer were not made by the
Secretary of the Treasury for political* rea-
sons, nor was the plaintiff relieved from duly
as aioresaid at the Hannis distillery by the
Conraiissioner of Internal Revenue for polili-
cal reasons, nor the said Thayer assigned to
duty at the said distillery for political rea-
sons,*'
The cause having been heard upon the bHI,
the demurrer to uie bill, the answer and a
general replication thereto, the affidavits filed
by the parties, and upon the pLaintiff^i motu^o
to perpetuate the injunction theretoN're
grnnted, a final order was made "rej train: c-'
and inhibiting the defendant White, •theal ,37J]
lector of the district, Uie app«>iming power,
the defendant Thayer, and all others, from in
anywise interfering with the plaintiff U. C
Berry in the possession of his office and in the
discharge of his duty as ganger at the llaaius
distdileiy, located in the town of Martin*-
burg. West Virginia, until he sliall be re-
moved therefrom by proper proceed in;r* h*d
under the civil service act and the ruJes tod
regulations made thereumler or by juditi**
proceedings at laW; and the said collector Imt-
ing applied heretofore to the court for 1««
to the commissioner to appoint temporarily i
ganger pending this litigation, he, the nid
collector, is required and directed to recom-
mend and the Commissioner of Intennl Rer-
enue to transfer the temporary gauger beit"
tofore assigned, and to permit the said gasfer
171 U.S.
.IIU I
1997.
WuiTS y. Bbbbt.
876-a7a
Berry uiidi«hirbed to dischargt the dinties of
his office as gauger, unless heieafiter removed
«s -hereinbefore provided.''
Mewm, James E. Boyd, Assistf.nt Attor-
Dej General, and Joseph H. Gaines for
•ppellanto.
J6*. Charles J. Fanlkaer for appellee.
Mr. Justice Hartan delivered the opinion
of the court:
In the opimoB delivered by the learned dis-
\xici judge, who heard this and other cases
inrotvins the same queetions as those now
presented, it was bdd: 1. That the act known
as 4^e ''Civil Service act" was constitutional.
2. That Congress has not delegated to the
Tresident and the commission legislative pow-
ers. 3. That by rule 3, § 1, the internal rev-
sane service has been placed under the CHvil
Service act and rules made in pursuance of
it 4. That the plaintiffs in tihese actions are
offieeiB of the government in the internal
revenue service. 5. That they cannot be re-
moved from their posiiions except for causes
ether tlian political, in whicb event their re-
moval must be made under the terms and
provisiooB of the Civil Service act and the
376]ni]es promulgated under it, * which, undier the
d«i of Congress, became a part oi tiie law.
6. Thet the attempt to change the position
and lank al the officers in these cases was in
violation of law. 7. That a court of equity
has jurisdiction to restrain the appointing
power fixMn removing the officers from their
poeitioDs if suoh removals are in violation of
the avil Service act. 83 Fed. Rep. 678.
On behBlf of the government it is insisted
that the circuit court of the United Staites,
sitting io equity, was without jurisdiction
to entertain tbis duit and to grant the relief
isked in the bilL If this position be well
taken, it will be unnecessary to consider the
other questions discussed in the able and
elaborate opinion of the district judge.
In Sawyer's Case, 124 U. S. 200, 223 [31 :
402, 410], Chief Justice Waite in a dissenting
opinion said that he was not prepared to hold
that an officer of a municipal government
could not, under any circumstances, apply to
a court of chancery to restrain the municipal
authorities from proceeding to remove him
from his office without authority of law; that
there might be cases when the tardy reme-
dies of quowarranto,certiorari,and other like
writs would be entirely inadequate. In that
▼lew of the jurisdiction of equity the writer
of this opinion concurred at the time the
court disptised of that case
But the court in its. opinion in that case
observed that under the Constitution and
laws of the United States the distinction be-
tween common law and equity, as existing in
England at the time of the separation of the
two countries, had been maintained, although
both jurisdictions were vested in the same
courts, and held that a court of equity had
■0 jurisdiction over the appointment and re-
moval of public officers, and that to sustain a
bill in equity to restrain or relieve against
proceedinirs for the remov^ of public officers
171 V. S.
would, invade the domain of the courts of com*
mon law, or of the executive and administra-
tive departments of the government.
After referring to numerous authorities,
American and English, in support of the gen-
eral proposition that a court of chancery had
no power to restrain criminal proceedings, un-
less they had been instituted by a party to a
suit already pending *before it, and to try the[377]
same right that was in issue there, the court
proceeded : "It is equally well settled that a
court of equity has no jurisdiction over the
appointment and removal of public officers,
whether the power of removal is vested, as
well as that of appointment, in executive or
administrative boards or officers, or is in-
trusted to a judicial tribunal. The iurisdic-
tion to determine the title to a public office
belongs exclusively to the courts of law, and
is exercised either by certiorari, error or ap-
peal, or by mandamus, prohibition, quo war-
ranto, or information in the nature of a wnt
of quo warranto, according to the circum-
stances of the case, and the mode of proced-
ure established by common law or by statute.
No English case has been found of a bill for
an injunction to restrain the appointment or
removal of a municipal officer. But an an-
formation in the court of chancery for the
regulation of Harrow School within its un-
doubted jurisdiction over public charities was
dismissed so far as it sought a removal of gov-
ernors unlawfully elected. Sir William Grant
saying: This court, I apprehend, has no ju-
risdicUon with regard either to the election or
amotion of corporators of any description.'
Attorney General ▼. Earl Clarendon, 17
Ves. Jr. 491. In the courts of the sever^
states the power of a court of equity to re-
strain by injunction the removal of a muni-
cipal officer has been denied in many well-
considered cases," — citinff Tappan \. Cray, 3
Edw. Ch. 450, reversed by Chancellor Wal-
worth on appeal, 9 Paige, 507, 509, 512, whobS
decree was affirmed by the court of errors, 7
Hill, 259 ; Hagner v. Heyherger, 7 Watts. ^
S. 104 [42 Am. Dec. 220] ; Updegraff v.Crans,
47 Pa. 103; Cochran v. McCleary, 22 Iowa,
75 ; Delahanty v. Warner, 75 111. 185 [20 Am.
Rep. 237]; Sheridan v. CoZtnn, 78 111. 237;
Beehe v. RohinsoHf 52 Ala. 66; and Moulton
V. Reid, 54 Ala. 320.
The rule established in Sawyer's Case was
applied in Morgan v. tfunn, 84 Fed. Rep. 651,
in which Judge I^urton said that "a court of
equity will not, by injunction, restrain an ex-
ecutive officer from making a wrongful re-
moval of a subordinate appointee, nor re-
strain the appointment of another." Simi-
lar decisions have been made in other circuit
courts of the United States; ♦by Judges Par-[378]
dee and Newman in Couper v. Smyth, north-
em district of Georgia. 84 Fed. Rep. 767; by
Judge Kirkpatrick in Page v. Moffett, dis-
trict of New Jersey, 86 Fed. Rep. 38; by
Jud^ Jenkins, northern district of Illinois,
in Carr v. Gordon, 82 Fed. Rep. 373, 379, and
by Judge Baker, district of Indiana, in Tay-
lor V. Keroheval, 82 Fed. Rep. 497, 499.
If the assignment of some one to duty as
gauger at the Hannis distillery, in the place
203
i7»-d80
SuPBBMB Court of thb Unitbd Btateb.
Oct.
of the plaintiff, did not work his removal
from office, a court of equity ought not to as-
sume to control the discretion which under
existing statutes the executive department
has in all such matters. Interference by the
judicial department in such cases would lead
to tne utmost cojifusion in the management
of executive affairs.
liut the plaintiff contends that the assign-
ment of some one to duty in his place at the
Hannis distillery is, in effect, a removal of
him from his office in violation of law, and
that the object of the proceedings against
him was to bring about that result. But,
under the authorities cited, such proceedings
cannot be restrained by a court of the United
States, sitting in equity, and therefore the
court below erred in passing the final decree
which has been brou|^t here for review.
Without expressing any opinion upon
other questions so fuBy discussed by ooun-
■d, we hold that the circuit court, sitting in
Muity, was without jurisdiction to grant the
leiief asked.
The decree below is reversed and the cause
nmanded with direction to dismiss the bilL
Reversed.
Mr. Justice MoKemaa took no part in the
decision of the case.
Mr. Justice Har1»« delivered the opinkn
of the court:
Butler, the appellee in the first of the above
cases, was a storekeeper of the United States
at the Hannis distillery at Martinsburg, West
Virginia.
Ruckman, the appellee in the seeond eaae»
was also storekeeper at the same dist'Uoy.
The bill in each case is substantially like
that in White, Collector, etc., v. Berry, jsst
decided 171 U. S. 366 [ante, 199]. The re-
lief asked by Butle^ and Ruckinan is the
same as that asked by Berry, and the de-
cree rendereii in behalf of each w%^ the same
as that rendered in Berry's case.
For the reasons stated in the opinion just
delivered in White, Collector, etc, v. Berrf^
the decree in each of the ahove caees wmet
he reversed, and the causes remanded with
directions to dismiss the bills.
It is so ordered.
{•70] A. B. WHITE, Collector, ei ol., AppU.,
V,
WILLIAM BUTLER.
GEORGE THOMPSON, Plff. in
STATE OF MISSOURL
Brr., [S8C
< .
A. B. WHITE, Collector, et oL, Apptt.,
J. G. RUCKMAN.
(See & a Reporter's ed. 879.)
Removal of jmhUo officere-^White v. Berry,
111 17. 8. S66 [ante, 199], foUowed.
1. Under the Constltation and laws of the
United States a court of equity has no Jnrls-
dlction over the appointment and removal of
public officers.
% White V. Berry, 171 U. a 866 [ante, 199],
followed.
[Noe. 540, 541.]
Argued March 21, tt, 1898, Decided May SI,
1898.
APPEALS from decrees of the Circuit
Court of the United States for the District of
West "Virginia restraining A. B. White, col-
lector, etc., et al., from interfering with the
sevend plaintiffs, William Butler and J. C
Ruckman, in the possession of their offices
and in the discharge of their duties at the
Hannisville distillery, etc The decree in
each case reversed, and the causes remanded
with directions to dismiss the bills.
The facts are stated in the opinion.
Messrs. James E. Boyd, Assistant Attor-
ney General, and Joseph H. Gaines for
appellants.
Mr. Charles J. Faulkner for appellees.
204
(See 8. C Reporter's ed. 380-888.)
State statute allowing comparison of
writings— not an ex post faeio Imo
1. The Missouri sUtnte of 1886 allowtBc a c«»
parison by witnesses of a disputed wrttlaff
with other writings proved to be senalne, aai
the submission to the court and jury of seek
writings and the evidence of the witseaeea. as
evid«*nce of the genuineness or otherwtoe •<
the writing in dispute, is not an em poet fmte
law when applied to a prosecution fer a crlat
committed prior to its passage.
2. Such statute is one merely regulating pc^
cedure, and may be applied to crimes eeet
mitted prior to its passage without impalrlBg
the guarantees of life and liberty secured ta
an accused by the supreme law of the lead.
[No. 023.]
Submitted AprU 21, 1898. Decided Jfay Sl»
1898.
IN ERROR to the Supreme Conrt of ths
State of Missouri, to review a judgment ol
that court affirming the judgment of the 5t
Louis Criminal Court convicting George
Thompson of the crime of murder. Aprmei.
See same case below, 132 Mo. 301, and 4t
S. W. 949.
The facts are stated in the opinion.
Messrs. Charles F. Joy and Mariom C
Early, for plaintiff in error :
It was error to admit in evidence for tht
purpose of comparison certain extraneoei
handwritings under the provisions of 58W4a,
Session Laws of Missouri 1895, »— —
Nora. — A 8 to proof of handicritimg er
ture, see note to Rogers v. Bitter. 20:417.
As to constitutionality of e* post feete Imes,
see notes to Calder v. Bull, 1 : 648. and StsfflM
V. Crowninshield, 4 : 529.
171 U.a
^V:
M7.
Thomfboitt. Missocio.
880-^8
tilt Mkid aet waa passed after the arrest, in-
dictment, and first trial of defendant and is
in violation of 'art. 1, § 10, Constitution
United States.
Colder y. Bull, 3 DaU. 3S6 (1:648);
Kring t. MUmouH, 107 U. S. 221 (27: 506) ;
mate T. Batid, 49 N. C. (4 Jones L.) 9;
mate y. Johnson, 12 Minn. 486, 93 Am. Dec.
2f^l; Story, Const. § 1345; Cooley, Const.
Lini. pp. 319, 325; 1 Bl. Com. §§ 45. 46;
Kent, Com. p. 458; Miller, Const, p. 587;
llaie. Am. Const. L. p. 565; Block, Constitu-
Uuiial Prohibitions, M 234 et aeq.
It was error to admit in eyidence for the
purpose of comparison certain extraneous
handwritings, under ^ 8944a, Sessions Laws of
Missouri 1805, because in yiolation of art.
2, S 15, Constitution of Missouri, and in yio-
UUon of §§ 6594, 6597, 6598, Heyised Stat-
utes of Missouri 1889.
8tateY,Thomp8on,l4l Mo. 408; Pacifio R.
Co. y. Com County, 53 Mo. 17 ; 8t, Louis y.
Life Asso. of America, 53 Mo. 466; State y.
iJrant, 70 Mo. 113, 49 Am. Rep. 218.
Mr. Edward C. Crow, Attorney General
of Missouri, for defendant in error :
The law of 1895 (see Acts of Mo. 1^95, p.
284), making the notes written by defendant
while in jail and proyed to be genuine and
competent for the purpose of comparison
with the disputed writing, to wit: the
forged order to the druggist for stryolmine,
is not an e^ post facto law in ics relation to
this case.
State T.Thofnp8on,l4l Mo. 408; Hopi y.
Utah, 110 U. S. 574 (28:202) ; O'Bryar. y. Al-
len, 108 Mo. £27 ; State y. Jackson, 80 Mo.
175, 50 Am. Rep. 499; Cooley, Const. Lim.
3d ed. 367 ; Bope Mut. Ins. Co. y. Flynn, 38
Mo. 483, 90 Am. Dec. 438; State y. Thomp-
son, 132 Mo. 301.
This law of 1895 relates solely to the pro-
ee<!ure, and the rule is that remedies and pro-
cfNlure must always be under the control of
the legislature.
Cooley, Const. Lim. 6th ed. p. 329.
Laws which change the rules of eyidence
relate to the remedy only, and may be ap-
plied to existing causes of action without
infringing the constitutional guarantees
sgainst **em post facto" legislation.
(ySryan v. Allen, 108 Mo. 227; Laughlin
T. Com, 13 Bii«h, 261 ; Messim y. McCray,
113 Mo. 382; Urous y. State^ 31 Tex. Crim.
Bep. 697.
Mr. Justice Harlaai delivered tbe opinion
of the court:
13i€ record su^este many questions of law,
lut the only one that may be considered by
this court is whether the proceedings against
the plaintiff in error were consistent with the
provisi(m in the Constitution of the United
States forbidding the states from passing ea
post facto laws.
Thompson was indicted in the St. Louis
criminal court at its Noyember term, 1894,
for the murder, in the first degree, of one
Joseph M. Cunningham, a sexton at one of
the obonchee in the city of St Louis. Hay-
ing been tried and convicted of the offense
171 V. ft.
charged, he prosecuted an appeal to the to-
preme court of Missouri, and by that oouit
the judgment was reversed and a new trial
was ordered. State v. Thompson, Appellantf
132 Mo. 301. At the second trial the aocused
was again convicted; and a new trial having
been denied, he prosecuted another appeal to
the supreme court of the state. That court
affirmed the last judgment, and the present
appeal brings *that judgment before us for[38^]
re-examination. State v. Thompson, Appel-
lant (Mo.) 42 S. W. 949.
The evidence agalrst the accused was en-
tirely droumstantial in its nature. One of
the issues of fact was as to the authorship of
a certain prescription for strychnine, and of
a certain letter addressed to the organist of
the church containing threatening language
about the sexton. The theory of tihe prose-
cution was that the accused had ofbtained the
strychnine specified in the prescription and
put ii into food that he delivered or caused
to be delivered to the deceased, with intent
to destroy his life. The accused denied ths/t
he wrote either the prescription or the letter
to the organist or that he had any connection
with either of those writings. At the first
trial certain letters written by him to hia
wife were admi^tted in evidence for the pur-
pose of comparing them with the writing in
the prescription and with the letter to the
organist. The supreme court of the ertate,
upon the first appeal, held that it was error
to admit in evidence for purposes of compar-
ison the letters written by Thompson to his
wife, and for that eiror the first judgment
was reversed and a new trial ordered. 132
Mo. 301, 324.
Subsequently, the general assembly of
Missouri passed an Set which became oper-
ative in July, 1806, providing that "compari-
son of a diluted writing with any writing
proved to the satisfaction of the judge to be
genuine shall be pennittted to be made by
witnesses, and such writings and the evi*
dence of witnesses respecting the same may
be submitted to the court and jury as evi-
dence of the genuineness or otherwise of the
writing in dispute." Laws Mo. 1896, pi 284.
This statute is in the very words of § 27
of the English conunon-Iaw procedure act of
1854 (17 & 18 Vict chap. 125). And by-the
28 Vict. chap. 18, S§ 1> 8, the provisions of
thai e^ were extended to criminal cases.
At the second trial, which occurred in
1896, the letters written by the aocused to his
wife were again admitted in evidence, over
his objection, for the purpose of comparing
them with the order for strychnine and the
letter to the organist. *This action of the[382)
trial court was based upon the above statute
of 1895.
The cooltention of the accused is that as
the letters to his wife were not, at the time of
the commission of the alleged offense^ admis-
sible in evidence tor the purpose of comparing
them with other writings charged to be in his
handwriting, the subsequent statute of Mis-
souri changing this rule of evidence was em
post facto when applied to his case.
It is not to be denied that the position of
205
ai82-884
SursBMB Ck>uRT OP THB Umitbd Btatbb.
Oct. Tutu,
the accused finds apparent support in the
general lan^^uage used in some opinions.
Mr. Juertice Chaue, in his classification d
9w post facto laws in Calder v. Bull, 3 Dall.
886, 390 [1:648,650J includes "every law
that alters ithe legal rules of evidence, and re-
ceivee less or ditferent testimony than the
law required at the time of the oommission
of the offense in order to convict the of-
fender."
In Kring v, MisaouH, 107 U. S. 221, 228,
232, 235 [27:500.500,610,511], the question
arose as to the validity of a statute of Mis-
souri under which the accused was found
guilty of tiie crime of murder in the first de-
gree and sentenced to be hung. That case
was tried several times, and was three times
in the supreme court of the state. At the
trial immediately preceding the last one Kring
was allowed to plead guilty of murder In the
seoond degree. The plea was accepted, and he
was sentenced to imprisonment in the pen-
itentiary for the term of twenty-five years.
Having understood that, upon this plea, he
was to be sentenced to imprisonment f6r only
ten years, he prosecuted an appeal, which re-
sulted in a reversal of the judgment. At the
lafft trial the oouit set aside the plea of
guilty ol murder in the second degree — ^the
accused having refused ito withdraw it — and,
againiErt; his objection, ordered a plea of not
ffuilty to be entered in his behalf. Under the
bitter plea he was tried, oonvioted, and sen-
tenced to be hanged. By the law of Missouri
at the time of the oommission of Kring's of-
fense, his conviction and sentence under the
plea of guiHy of murder in the second degree
was an absolutte acquittal of the charge of
murder in the first degree. But that law
having been changed before the final trial oc-
curred, Krin^ contended that the last stat-
(383]ute, *if applied to his case, would be within
the prohibition of ew post facto laws. And
that view was sustained by this court, four
of its members dissenting.
In the opinion of the court in JTrm^V Case
reference was made to the opinion of Mr.
Justice Chase in Calder v. Bull, and also to
the chaxge of the court to the jury in
United States v. Hall, 2 Wash. C. C. 366,
t73. In the latter case Mr. Justice Wa^-
ington said: "An ea post facto law U one
wmch, in its operation, makes tiiat criminal
or penal which was not so at the time the
acUon was performed; or which increases
the punishment; or, in short, which, in re-
laition to the offense or its consequences, al-
ters the flituation of a party to his disad-
vantage." He added: 1i t^e enforcinff law
applies to tlfis case, there can be no doubt
that, so far aa it takes away or impairs the
defense which the law had provided the de-
fendant at the time when the condition of thi?*
bond became forfeited, it is em post facto and
inoperative." Considering the suffgestion
that the Bfissouri statute under which Kring
was convicted only regulated procedure, Mr.
Justice Miller, speaking lor this court, said:
*Can any substuttial rigbt which the law
gave the defendant at the time to whidi his
guilt relates bt taken away from him by
206
em post facto legislation, because, in tl^t
of a modem phrase. It is called a law of pro-
cedure? We think it eannot" In conclu-
sion it was said: "Tested by these criteria,
the j>rovifiion of the Constitution of Mis-
soun whidi denies to plaintiff in error tSie
benefit which the previous law gave him of
acquittal of the charge of murder in the first
degree on conviction of murder in the secoAd
degree, is, as to his cose, an em post facto
law within the meaning of the ConstitutkNa
of the United States."
A careful examination of the opinion in
Kring v. Missouri shows that the judgment
in that case proceeded on the ground that the
change in the law of Missouri as to the effect
of a conviction of murder in the second de-
face— ^the accused being charged with murder
m the first degree — ^was not simply a chaoige
in procedure, out such an alteration of the
previous law as took from the accused, after
conviction of murder in the second degree,
that protection against punisAiment for mur-
der *in the first degree which was given hini[384i
at the time of the oommission of the offense.
The right to such protection was deemed a
substantial one — indeed, it constituted a com-
plete defense against the charge of murder in
the first degree — ^that could not be taken
from the accused by subsequent legislation.
This is clear from the statement in Kring*M
Case that the question before the court was
whether the statute of Missouri deprived **the
defendant of any rieht of defense which
the law gave him when the act was com-
mitted so that as to that offense it is e9
post facto.'*
This general subject was considered in
Hopt V. Utah, 110 U. S. 674, 588. 589 [28:
262, 268]. Hopt was indicted, tried, and con-
victed of murder in the territory of IPtah,
the punishment therefor being death. At
the time of the commission of the offense it
was the law of Utah that no person con-
victed of a felony could be a witness in a
criminal case. After the date of the alleged
offense, and prior to the trial of the case, an
act was passed removing the disqualification
as witnesses of persons who have been con-
victed of felonies. And the point was made
that the statute, in its application to Hopt%
case, was em post facto.
This couit said: 'The provision of the
Oonstittrtion which pr<^ibits the states from
passing em fiost facto laws was examined in
Kring v. MissouH, 107 U. S. 221 [27:6M].
The whole subject was there fully and care-
fully considered. The court, in view of the
ad fudged oases, as wdl as upon principle,
held that a provision of the Constitution of
Missouri denying to the prisoner, charged
witli murder in the first degree, the ben^t
of the law as it was at the commission of the
offense — under which a conviction of mur^
der in the second degree was an acquittal of
murder in the first degree, even though such
judgment of conviction was subsequently vs*
verMd — was in coniliot with the Constitution
of the United States. That decision proceeded
upon the ground that the state Conttitutioa
deprived the accused of a substantial right
171 V. 8.
Ifi97.
TH0MP80V ▼. MI88OUBL
884-^8?
which the law gave him when the offense weia
eommitted, and therefore, in ita applicatiom to
than offenae and ita consequences, altered the
situation of the party to his disadvantage.
l6]By the law as established *when the offense
was oommittedy Kring could noi have been
punished with death after his convicfdon of
murder in the second degree, whereas, by the
abrogation of tihat law by tbe conatltutioDal
provision aubeequently adopted, he could
thereafter be tried and convicted o^ murder
in the first degree, and subjected to the pun-
ishment of deatlL Thus the judgment of con-
viction of mxirder in the second degree was
deprived oi all force as evidence to establi^
his absolute immunity thereafter from pun-
ishment for murder in the first degree.
This was held to be the deprivation of a sub-
stantial rightt which the accused had ejt the
time the aUeged offense was committed. But
there are no such features in the case before
VA, Stfttutea whidh simjdy enlarge the dees
of persons who may be competent to testify
in criminal cases are not ex post facto in their
^)ptioation to prosecutions for crimes com-
mttted prior to tneir passage; for they do not
attach criminality to any act previously done,
and which waa innocent when done; nor
sggxminate any crime theretofoie conmiitted;
nor provide a greater punishmedt therefor
than waa prescribed at the time of its com-
mission; nor do they alter the degree or lessen
the amount or measure, of the proof which
wm made necessary to conviction when the
erioie was commMed." The court added:
"The crime for which the present defendant
was indicted, the punishment prescribed
therefor, and the quantity or the degree of
proof necessary to establish his guilt, all re-
mained unaffected by the subsequent statute.
Any statutory altemtSon of the legal rules of
•ridence which would authorize conviction
npon less proof, in amount or degree, iHika
was required when the offense was com-
mitted, might, in respect of that offense, be
obnoxious to the com^utional inhibition up-
on «9 post facto laws. But alterations
whidi do not iDcrease the punishment, nor
ebange the ingredients of the <^ense, or the
Qltio^iie facts necessary to establish guilt,
bit— leaving untouched the nature of the
crime and the amount or degree of proof es-
•eirtial to conviction — only remove existing
lestrictioos upon the competency of certain
eksses of persons as witnesses, relate to modes
of procedure only, in which no one can be
%aid to have a vested right, and which the
86]*8tate, upon gronnds of public policy, may
regulate at its pleasure, ouch regulatkms of
the mode in which the facts constituting guilt
may be placed before the jury, can be noade
ipplicable to prosecutions or l^als thereafter
had, without reference to the date of the com-
miwioQ of the offense chai^d."
At the present term, in Thompson v. Utah,
170 U. 8. 349 [42: 1061], this court observed,
generally, that a statute is ew post facto
whidi, hv its necessary operation and in
Its relation to the offense or its con-
sequences, alten the situation of the accused
to his disadvantage. But it tiK>k oare to
171 U. g.
add: "Of OMirse, a statutte is not of that
class unless ft materially impaira the right d
the accused to have the question of his gu^
determined according to the law as it was
when the offense was committed. And, there-
fore, it is well settled that the accused is not
entitled of right to be tried in the exact mode»
in all respects, that may be prescribed for ths
trial of criminal cases at the time of the com*
mission of the offense charged against him.
Gooley in his Treatise on Constitutional
Limitations, after referring to some of ths
adjudged cases relating to ew post facto laws,
says: 'But, so far as mere modes of proced-
ure are concerned,, a party has no more ri^ht»
in a criminal than m a civil action,
to insist that his case shall be disposed of
under the law in force when the act to be in
vestigated is charged to have taken place.
Remedies must always be under the control
of the legislature, and it would create endless
confusion in legal proce^lings if every case
was to be conducted only in accordance with
the rules of practice and heard only by ths
courts in existence when its facts arose. Ths
legislature may abolish courts and create
new ones, and it may prescribe altogether
different modes of procedure in its discretion
though it caimot lawfully, we think, in so
doing, dispense with any of those substantial
protections with which the existing law sur*
rounds the person accused of crime.'" Chap.
9, ♦272.
Applying the principles announced in
former cases — ^without attaching Tindus
weight to general expressions in them that go
beyond the questions necessary to be de-
termined— ^we adjudge that the statute of
Missouri relating to the comparison *of writ [887]
ings is not ea post facto when applied to
prosecutions for crimes committed prior to its
passage. If persons excluded, upon grounds
of public policy at the time of the commissioai
of an offense, from testifyrng as witnesses for or
against the accused, may, in virtue of a
startute, become competent to testify, we can-
not perceive any ground upon which to hold
a statute to be e« foat facto which does
nothing more than admit evidence of a par-
ticular kind in a criminal case upon an issus
of fact which was not admissible under ths
rules of evidence as enforced by judicial ds>
cisions at the time the offense was committed.
The Missouri statute, when applied to this
case, did not enlarge the punishment to
which the accused was liable when his crime
was commhlted, nor make any act involved in
his offense criminal that was not criminal
at the time he committed the murder of
which he was found guilty. It did not
change the quality or degree of his offense.
Nor can the new rule introduced by it bs
characterized as unreasonalble — certainly not
so unreasonable as materially to affect ths
sufbstantdal rights of one put on trial for
crime. Ths statirts did not require "less
proof, in amount or d^pree," than was re-
quired at the time of the conmiiseion cA ths
crime charged upon hdm. It left unimpaired
the right of the jury to determine the suf*
ficiency or effect ol the evidence declared to
tor
<
W7, MS
SuPRBicE Court of ths Unttbd Statkb.
Oct.
1
b% admiasible, and did not disturb the funda-
mental rule that the state, as a ccmdition of
Its right to take the Ufa of an accused, must
overcome the presxunption of his innocence
and establish his guilt beyond a reasonable
doubt. Whether he wrote the prescriptioii
for strychnine, or the threatening letter to
the church organist, was left for the jury,
and the dutty of the jury, in thai par-
ticular, was the same after as before the pas-
sage of the statute. The sta/tute did nothing
more than remove an obstacle arising out of
a rule of evidence that withdrew from the
consideration of the jury testimony which,
in the opinion of the legislature, tended to
elucidate the ultimate, essential fact to be
established, namely, the guilt of the accused.
Nor did it give the prosecution any right that
was denied to the accused. It placed the
^tate and the accused upon an equality; for
f888]the rule established by it gave *to each
aide the right to have disputed writings
compared with vmtings proved to the satis*
faction of the judge to be genuine. Bach
tide was entitled to go to the jury upon the
question of tflie genuinenesB of the writing up-
on which the prosecution relied to establish
the guilt of the accused. It is well known
that the adjudged cases have not been in
harmony touching the rule relating to the
oomparison of handwritings; and the object
of the legislature, as we may assume, was to
give the jury all the light that could be
thrown upon an issue of that character. We
«annot adjudge that the accused bad any
Tested right in the rule of evidence which
•obtained prior to the passage of the Missouri
statute, nor that the rule established by that
statute entrenched upon any of the essential
rights belonging to one put on trial for a
public offense.
Of course, we are not to be understood as
fKdding that there may not be such a statu
tory alteration of the fundamental rules in
•criiniTiHl trials as might bring the sta/tute in
•conflict with the ex post facto clause of the
Oonotttution. If, for instance, the atatutte had
taken from the juiy the right to determine
ihe sufficiency or effect of the evidence which
it made admissible, a different question
would have been presented. We mean now
only to adjudge that the statute is to be
regarded as one merely regulating procedure,
and may be applied to crimes committed
prior to its passage without impairing the
substantial guarantees of life and liberty that
are secured to an accused by the supreme la\(
4A the land.
The judgment of the Supreme Court of
Miseouri %» affirmed.
liOS
MARIANNE J. BALDY, by Her Nol
Friend, W. B. Pritchard, PIf . in ftr,
c.
JOHN H. HUNTER, EzecutOT of Edward
H. W. Hunter, Deceased.
(See 8. C Hoporter's ed. S89-404.)
Investment in Confederate bonds 6y a
dian.
The mere investment during the dvU war, of
the Confederate foods or correocy of a mii
in bonds of the Confederate states by a faird-
ian, wbeo botJi were residents wlthlii tkt
Confederate lines, slioold be deemed a trsM-
action in the ordinary course of clrll sodetr.
and not illegal as a transnctlon to aid io tkt
destruction of the governmc^ot of the Uaioa.
[No. 241.]
Argued AprU 29, 1898, Decided Jfsy ».
1S08,
IN ERROR to the Supreme Court of Un
State of Geoma, to review a judgrocot of
that court amrming the judgment of tW
state trial court in favor of the defendtat,
John H. Hunter, executor of R H. W. Hob-
ter, in an action brought by Marianne J.
Baldy, to recover moneys invested in Omkir
erate bonds. Affirmed.
See same case below 98 6a. 170.
The facts are stated in the opinion.
3/e9srs.Pope Barrow, 8amu€l R, Ckmr^
and Francis H. Stephens, for plaintiff la ar
ror:
There was but one issue between the pUia*
tiff and the defendant in this case. The «!#
question is whether it was lawful or nnltv-
ful for a ffuardian to invest his ward*s moaey
in Confederate bonds.
Every other question was eliminated Uxm
the case.
Pettitt V. Uaoon, 95 Ga. 645.
An investment by a guardian of mooev o(
his ward in bonds of the Confederate Stst««
of America was unlawful, and he is not et*
titled to a credit in a settlement with liti
ward for the sum so invested.
No act of the legislature of Georviaaatlior
izing such investment, and no order of *>▼
court granted by authority of such act wocW
make it a lawful investment.
Tom V. Lockart, 17 Wall, 570 (21:657);
Lamr v. Micou, 112 U. S. 452, 476 (28: 751.
760) ; Chancely v. Bailey, 37 Go. 532, 95 Am.
Dec. 350; Wallace v. Cannon, 38 Ga. 199. 96
Am. Dec. 385.
NoTi. — As to Confederate states: fudgmf**
of courts of: laws and amthoritp of: fft^
and relations with the Union; oommerrisi »-
tercourse, — see note to Keene t. ITDosms^
8 : 955.
As to Confederate notes; contracts psfsHt
in; tender of, see note to ThorlaftoB r-
Smith. 19:862.
That dominion acquired over eon^mtrfi 0
ceded territory does not devest vested Hr*'» •^
individuals to property; fonmer tarns cmttt^s
until altered by new sovereign, ew ssis tt
Delassus v. United States. 9 : 71.
171 V. 1.
m
i5ALOT V. Hunter.
/^
38»-8«|i
The fact that the guardian acted in good
Itith is inelevant and immaterial.
Sprott V. United States, 20 Wall. 459, 463
(22:371,372).
The guardian is hound to account for the
money m gold. He has failed to show that
the gold which he collected in 1857, 1858,
and 1859, was changed into Ck>nfederate
Bon^.
Kmg T. Hughes, 52 Ga. 600; Johnson t.
McCuUough, 59 Ga. 212.
if r. P. liT. Meldriniy for defendant in er-
ror:
The guardian had the riffht to invest Ck>n-
federate mofiey in his han£ under the direc-
tion of the judge of the superior couit hav-
ing jurisdiction.
Ga. ^cU 1861, p. 32; Ga. Acts 1863-64,
p. 29; Ordinances of the Conventions of
Georgia, 1865-1868; Campbell v. Miller, 38
Gt. 304, 95 Am. Dec. 389 ; MiUer v. Gould,
38 Ga. 465 ; Westhrook v. Davis, 48 Ga. 473;
Sawon V. Sheppard, 54 Ga. 286 ; McWhorter
v. Tarpley, 54 Gra. 291; Nelms v. Summers,
54 Ga. 605; Venahle v. Cody, 68 Ga. 171;
McCook V. Harp, 81 Ga. 236.
Mr. Justice Harlam delivered the opinion
of the court:
William H. Baldy, a citizen of Georgia, died
in that state prior to the dvil war, leaving
•everal children, one of whom was Marianne
J. Baldy, who became of full age on the 21st
day of February, 1875.
In 1857 Dr. E. H. W. Hunter was appointed
M|ier guardian, *and after duly qualifying as
such took possession of the estate of his ward.
By an act of the legislature of Georgia,
piBsed on the 16th day of December, 1861,
guardians, trustees, executors, and adminis-
traton were authorized to invest any funds
held by them in the bonds issued by l^e Oon-
federate states or in lands and negroes — an
order to that effec^t bedng first obtained from
a judge of the superior court, who was em-
powered to consider and pass such applica-
tions, either in term time or vacat&on. Ga.
Laws 1861, p. 32.
On the 25th day of April, 1863, the superior
eonrt of Jefferson county, Georgia, passed an
Older granting leave to the guardian of Miss
Bsldy to invest certain funds then in his
hinds in Confederate bonds. This order was
gianted upon the petition of the guardian*
^pho expressed the opinion that such funds
should be so invested. On the same day the
iDveBtment was made.
The legis'kbture of Georgia, by an act ap-
proved March 12, 1866, entitled "An Act for
the Belief of Administrators, Executors,
Guardians, and Trustees, and for Other Pur-
poses," declared that all administrators, exec-
utors, guardians, and trustees, who, in pur-
nance of an order, judgment, or decree of any
eourt having jurisdiotion, or of any law of
that state, bona fide invested the funds of
tile estate they represented in the bonds.
Boles, or certificates of the state of Georgia
or of the Confederate states, "be and they are
hereby relieved from all the penalties of mis-
nana^^einent, misappropriation, or misappli-
171 V. S. U. S., Book 43.
cation of the funds of the estaitesthey repre-
sent, by reason of such investments;" and
that all administrators, executors, guardiaaa,
and trustees, claiming the benefit of the pro-
vlaions of that act, should, before their final
settlement, make oath before the ordinary of
the county in which the^ had therertofo<ra
made their returns, "showing what funds cd
the estates they represent they have so in-
vested, and shall also swear that the notes,
bonds, or certificates, so held by them, are
the same kind of currency which thev re-
ceived for the estates they so represent.'' Ga.
Laws 1865-66, p. 85.
On the 2d day of July, 1866, the guaxdian
made a return *to the proper court of hisacts[891]
for the years 1864 and 1865, showing the
amount in his hands, and also made oarai be-
fore the ordinary of Jefferson county, Geor-
gia, 'Uhat in 1863, in pursuance of an order^
judgment, or decree of the superior court of
said county as guardian of M. J. Baldy, a
minor, he did bona fide invest twelve hundred
dollars of the funds of said minor in the
eight per cent bonds of the Confederate states,
SLnd that the bonds so held by him are the
same kind of currency which he received for
said minor's estate."
In 1876 Hunter received from the ordinary
of Jefferson county letters of dismissal as
guardian of the several children of William
H. Baldy. He died nine years thereafter, in
1885, and this suit was brought in 1893
against his execiFtor in the name of Marianne
J. Baldy by her next friend, she having be-
come of unsound nund as far back at least as
1875, and being at the time this suit was
brought in a lunatic asylum.
At the trial below the plaintiff asked ^m
court to instruct the jury that "an invest-
ment by a guardian of money of his ward
during the Confederate war, ajid while both
guardian and ward were residing within the
Confederate territory, in bonds of the Con-
federate states, was unlawful, and the guard-
ian is responsible to the ward for the sum so
invested;" and that no act of the legislature
of the state "passed during the late war, au-
thorizing the guardian to invest the funds of
his ward in Ooniederate bonds, and no ordw
of any court of the state granted in pursuance
of said act of the le^slature, would authorize
such investment." Both of these instructions
were refused.
It is not contended that the case involves
any question as to the statute of limitations.
It was agreed at the trial that the only
matter in issue was as to the liability of Hun-
ter's estate by reason of his having invested
the ward's money in 1863 in bonds of the
Confederate states. This appears from the
charge to the jury in which the trial court,
after observing that its duty was to foUow
the decisions of the supreme court of G^r^a,
said: "In the present case I am authorized
to say that it is agreed between counsel that
the investment was made bona fide, and the
*onlv question is whether it was lawful orun-[39S]
lawful for the guardian to make this invest-
ment; and, further, that as I may decide the
legal question, I shall insti-uct a verdict for
14 209
419-415
Supreme Coubt of the Unitxd States.
Oct. Te&m,
the proyirion of the act of March SO, 1887,
fliying time for rederrption until the 15th of
January, 1838. did not release the forfeitures
which had accrued, except in such cases
where the owner or proprietor availed him-
self of the privilege of redeeming. And it
hirther seems to the court that such forfeit-
ure became absolute and complete by the
failure to enter and pay th% taxes thereon in
the manner prescribed by the act of 27th of
February, 1835. And no inquisition or judi-
cial proceedinge or inquest, or finding of any
kind, was required to consummate such for-
feiture,"
fAIS] *The same principle was announced in
Wild's Lessee v. Serpell, 10 Gratt. 405, 408
(1853). The court said: "That the pxxm-
sions of our sta^tutes passed from time to
time, making it the duty of the owners of
lands to pay all taxes properly chargeable
thereon, and, where they have oeen omitted
from the books of the commissioners of the
revenue, to cause them to be entered thereon
in the proper counties, and to be charged
with all arrearages of taxes and damages, and
to pay all such arrearages as ehall Im found
not to be released b^ law, and, in case of fail-
ure so to do, forfeiting to the commonwealth
all riffht and title whatever of the parties in
defamt (under the modifications and restric-
tions provided by the acts), are within the
constitutional competency of the legislaiture,
has been sufficiently affirmed in decisions
wUch have been made during the present
term of this court in eases arising under
these several statutes. Staafs Lessee v.
Board, 10 Oratt.400; Smith's Lessee v. Chap-
man, 10 Gratt. 445 ; Hale v. Branscum, infra.
The same cases also sufficiently establish that
in order to consummate and perfect a forfeit-
ure in such a case, no judgment or decree or
other matter of record nor any inquest of of-
fice, is necessary, but that the statutes
themflelves, of their own force cmd by their
own ei\firgy, work out their own purpose, and
operate effectually to devest the title out of
the defaulting owner, and perfectly to vest it
in the commonwealth, without the ma-
chinery of any proceeding of record, or any-
thing in the nature of an inquest of office.
And aa the title is thus in a proper case de-
vested out of the owner and vested in the
commonwealth by the operation of the stat-
utes, 90 where the forfeiture inures to the
benefit of a third person, claiming under the
commonwealth by virtue of another and dis-
tinct riffht, the transfer of the title to such
person is, in like manner, perfect and com-
plete without any new grant from the com-
monwealth, or any proceeding to manifest
the transfer by matter of record or other-
wise. Upon these subjects I have nothing
therefore to Ray upon this occasion, except
that considering the peculiar condition
of things in that part of the state
lying west of the Alleghany mountains,
and the serious check to population
and the improvement of the country
|424]*and the development of its resources
growing out of it, a resort to the stringent
measures of legislaition that were adopted
S18
was, in m^ opinion, a3 wise and expedient as
the constitutional power of the legislature
to enact them was clear and unquestion-
able." This case was cited in Armstrong v.
Morrill, 14 Wall. 120, 134 [20:705. 769],
which was an action of ejectment brought
prior to the adoption of the 14th Amendment
of the Constitution of the United Stages, and
in which therefore the rights of tiie parties
must have been determined without refer-
ence to the prohibition in that Amendment
against the deprivation of property without
due process of law.
In Levasser v. Washburn, 11 Gratt. 572,
580, 581 (1854), it was said: "According
to the decisions of thid court in the cases just
referred to, and also in the cases of Wild v.
Serpen, 10 Gratt. 405, and Smith v. Chap-
man, 10 Gratt. 445, the circuit court also
erred in its opinion a^ to the time at which
the forfeiture under the Girond grant oc-
curred or became complete. It appears to
have proceeded on the notion that some in-
quest of office, or decree, or other proceeding
should have been had in order to declare ana
perfect the forfeiture. Nothing of the kind
was necessary. The act of the 27th of Feb-
ruary, 1835 (Sees. Acts, p. 11), declaring that
lands which had been omitted finom the
books of the commissioners of the revenne
should be forfeited unless the owners should
cause the same to be entered and charged
with taxes, and should pay the same, except
such as might be released by law, was in-
tende<l by its own force and energy to render
the forfeiture absolute and complete,without
the necessity of any inquisition, judicial
preceding, or finding of any hind, in order
to cofisummate it. It was perfectly within
the competency of the legislature to declare
such forfeiture and devest the title by the
mere operation of the act itself; and the
whole legislation upon the subject of delin-
quent and forfeited lands plai^y manifests
the intention to exercise its power in this
form." See also Usher's Heirs v. Pride, 15
Gratt. 190, and Smith ▼. Thorp, 17 W. Va.
221.
In this connection it may be well to refer
to Martin v. Snowden, 18 Gratt 100,135, 136,
139, 140 (1868), in which the supreme court
of appeals of Virginia had occasion to deter-
mine, *as between the parties before it, the[415]
effect of the provisions in the acts of Congress
of August 5, 1861 (12 Stat, at L. 292, chap.
45) and June 7, 1862 ( 12 Stat at L. 422, chap.
98), relating to the direct taxation of lands»
By the latter act it was provided that "the
title of, in and to each and every piece or
parcel of land upon which said tax has not
beeu paid as above provided, shall thereupon
become forfeited to the United States," and
that "upon the sale hereinafter provided
for, shall vest in the United States or in the
purchasers at such sale, in fee simple, free
and discharged from all prior liens, eocum-
bracces, tight, title, and claim whatsoever."
§ 4. One of the questions presented in that
case was, whether the first of the clauses just
a noted worked, propria vigore, a transfer to
tie United SUtes of the title to the land de-
171 U. ft.
il^.
Billdt t. HuNm.
S94-897
•cy of the insurgent goTernment, as a
Mligerent, within the territory where it dr*
cidated, and from the necessity of civil obe-
dience on the part of all who renrained in it,
that this currency must be considered in
eourta of law in the same light aa if it had
been issued by a foreign government tempor-
arily occupying a part of the territory of the
United States. Contracts stipulating lor
payments in this currency cannot be regard-
ed for thai reason only as made in aid of
195]* he foreign invasion in the one *case, or of
the domestic insurrection in the other. They
have DO necessarv relations to the hoatUe
fforemment, whetner invading or insurgent.
They are transactions in the ordinary course
of civil society, and though they may indi-
leetiy and remotdy promote the ends of the
indawfiil government, are without blame, ex-
cept when proved to have been entered into
with actual intent to further invasion or in-
soneotion. We cannot doubt that such con-
tracts should be enforced in the courts of
tlie United States, after the restoration of
peace, to the extent of their just obliga-
tion."
In Delmaa v. Merehantt^ Mut Insurance
Co. 14 Wall. 6G1, CGd [20: 767, 759] upon
writ of error to the supreme court of Louis-
iana, one of the questions presented was
whether a judgment, whic^ was otherwise
conceded to be a valid prior lien for the
paity in whose favor it was rendered, was
rM beeanse the consideratioa of the contract
stt whidi tlie judgment was rendered was
Cbnfedeimte money. This court said: 'This
eonrt has decided, in the case of Thorington
T SmUth^ 8 Wall. 1 [ 19 : 361 ] , that a contract
was not void because payable in Ck>nfederate
aioiMy; madf notwithstanding the apparent
divifltoB of opinion on this question in the
ease of Hanauer t. Woodruff, 10 Wall. 482
[19: 991]» wt an o< opinion that on the gen-
eral principle announced in Thorington v.
Aniia, the notes of the Confederacy actually
dvenlating as money at the time the eontract
was mada may constitute » vidid considera-
tion for such contract." So, in Planters*
Bank v. Union Bank, 16 Wall. 483, 490
[21: 478, 480], it was a quesrtion whether
Ooafiedenite treasury notes had and received
hj the defendants for the use of the plaintiffs
were a sufficient consideration for a promise,
expressed or implied, to pay anything; and it
was held upon the authority of Thorington
V. Bmith above cited, that "a promise to pay
in Confederate notes, in consideration of the
teeeipt of such notes and of drafts payable
by them, cannot be considered a nudum paO'
turn or an illegal contract."
Horn T. Lockhart, 17 Wall. 570, 578, 575,
S80 [21 : 657, 660], was a suit for an account-
iag as to the funds in the hands of an execut-
or, and to enforce the payment to legatees of
their respective shares. One of the questions
in the case was whether the defenduit was
IM]*eBtitled to credit for a certain sum in Con-
federate notee which, in March, 1864, he had
deposited "as executor in the Confederate
■tatca depoeiiory office, at Selma, Alabama,
and received a oartificato entitling him to
171 u. a.
Confederate states four per cent bonds to that
amount." The receiving of money by the ex-
ecutor in Confederate notes, and the invest*
ment of such notes in Confederate bondsi
were, it was said, in strict accordance with
lai;i'S passed by the legislature of Alabama m
November, 1861, and November, 1863, when
that state was engaged in rebellion against
tha United States. The circuit court held
that the executor could not exonerate him-
self from liability for the balance adjudged
to be due the legatees by paying the same in
Confederate bonds; that, as a general rule^
all transactions, judgments, and decrees which
took place in conformity with existing laws
in the Confederate states between the citi-
zens thereof during the late war, "except suck
as were directly in aid of the Rebellion, ought
to stand good;" and that the exception of
such transactions was a political necessity ro>
quired by the dignity of the government of
the United States and by every principle of
fidelity to the Constitution and laws of our
country. Upon these grounds it adjudged
that the deposit by the executor of
money of the estate in a depository of the
Confederate states could not be sustained,
as it was a direct contribution to tiie re-
sources of the Confederate government. The
decree, therefore, was that the executor
should pay to plaintiff the sum so deposited
by him In lawful money of the United Statea.
Upon appeal the decree of the circuit court
was affirmed, three of the members of this
court dissenting. This coyrt said: "We ad-
mit that the acts of the several states in their
individual capacities, and of their different
departments of government, executive, judi-
cial, and legislative, during the war, so far
as they did not impair or tend to impair the
supremacy of the national authority, or tha
just rights of dtisens under the Constitution,
are, in general, to be treated as valid and
binding. The existence of a state of insur*
rection and war did not loosen the bonds of
society, or do away with civil government or
the regular administration of the laws. Or-
der was to be ^preserved, police regulations[897]
maintained, crime prosecuted, property pro-
tected, contracts enforced, marriages cele-
brated, estates settled, and the transfer and
descent of property r^:ulated precisely as in
time of peace. No one, that we are aware of,
seriously questions the validity of judicial or
legislative acts in the insurrectionary states
touching these and kindred subjects where
they were not hostile mi^etr purpose or mode
of raforcement to the authority of the nation-
al government, and did not impair the righta
of citizens under the Constitution. The va-
lidity of the action of the probate court of
Alabama in the present case in the settle-
ment of the accounts of the executor w^ do
not question, except so far as it approves the
investment of funds received by him in Con-
federate bonds, and directs payment to the
legatees of thdr distributive shares in those
bonds. Its action in this respect was an ab*
solute nullity, and can afford no protection
to tbe executors in tbe courts of the United
SUtea.**
211
897^400
SUTREMB COORT OF TIIS UnITID STATEB.
Oct. Tekm,
t
1 1
1 1
In the Confederate Note Case, 19 Wall. 548,
655-557 [22: 106,199,200], in which it waa
held that parol evidence was admissible to
prove that the word ''dollars" in a contract
made during the Ciyil War meant in fauct
Confederate notes, the court said: "The treas-
ury notes of the Confederate government were
issued early in the war, and, though never
made a legal tender, uiey soon, to a large
extent, took the place of coin in the insurgent
states. Within a short period they became
the principal currency in which business in
its multiplied forms was there transacted.
The simplest purchase of food in the market,
as wdl as the largest dealings of merchants,
were generally mAde in this currency. Con-
tracts thus made, not designed to aid the
insurrectionary government, could not there-
fore, without manifest injustice to the par-
ties, be treated as invalid between them.
Hence, in Thorington v. Smith this court en-
forced a contract payable in these notes, treat-
ing them as a currency imposed upon the
community by a government of irresistible
force. As said in a later case, referring to
this decision, It would have been a cruel and
oppressive judgment if all the transactions
of the many m^lions of people composing the
inhabitants of the insurrectionary states, for
[S08]the several years *of the war, had been held
tainted with illegality because of the use of
this forced currency, when those transactions
were not made with reference to the insur-
rectionary government.* Hanauer v. Wood-
ruff, 15 Wan. 448 [21 : 227]." Again: "When
the war closed, these notes, of course, became
at once valueless and ceased to be current,
but contracts made upon their purchasable
quality, and in which they were designated
as dollars, exist ea in great numbers. It was
at once evident that great injustice would in
many cases be done to parties if the terms
used were intei*preted only by reference to
the coinage of the United States or their le-
gal tender notes, instead of the standard
adopted by the parties. The legal standard
and the conventional standard differed, and
justice to the parties could only be done by
allowing evidence of the sense in which they
used the terms, and enforcing the contracts
thus interpreted."
Sprott V. United States, 20 Wall. 459, 460,
462 [22: 371,372], was a suit against the gov-
ernment in the court of claims under the
captured and abandoned property act of
March 12, 1S63 (12 Stat at L. 820, chap. 120),
one of the provisions of which was that a
claimant, before being entitled to recover the
proceeds of the property, must prove that
he had never given aid or comfort to the
Eebellion. It appeared that the cotton in
question wa.^ sold to the claimant by an
agent of the Confederate states as "potton be-
longing to the Confederate states, and it was
understood by the claimant at the time of the
purchase to be the property of xhc rebel gov-
ernment, and was purchased as such." After
observing that the cotton had been m the
possession and under the control of the Con-
federate government, with claim of title, and
that it was taken by the Union forces during
tl2
the last days of the existence of that govern-
ment, soli, and the proceeds deposited in the
Treasury, this court said: 'The daimaot
now asserts a right to this money on the
ground that he was the owner of the cotton
when it was so captured. This claim of rigUt
or ownership he mupt prove in the court ol
claims. He attempts to do so by showing
that he purchased it of the Confederate gov-
ernment and paid them for it in money. la
doing this he gave aid and assistance to the
Hebdlion in the most efficient manner be pos-
sibly could. *He could not have aided thatI9M
cause more acceptably if he had entered its
service and become a blockade runner, or un-
der the guise of a privateer had preyed upon
the unoffending commerce of his oountry.
It is asking too much of a court of law sitting
under the authority of the government then
struggling for existence against a treason re-
spectable only for the number and the force
by which it was supported, to hold that one
of its own citizens, owing and acknowled^ng
to it allegiance, can by tlie proof of sudi a
transaction establish a title to the property
so obtained. The proposition that there m
in many cases a public policy which forbids
courts of justice to allow any validity to oca*
tracts because of their tendency to affect in-
juriously the highest public interests, and to
undermine or destroy the safeguards of the
social fabric, is too well settled to admit of
dispute. That any person owing allegiance
to an organked government can make a ooa-
tract by which, for the sake of gain, he con-
tributes most suosvantially and knowingly to
the vital necessities of a treasonable conspir-
acy against its exstence, and then in a court
of that government base successfully his
rights on such a transaction, is opposed to ail
that we have learned of the invalidity of im-
moral contracts. A clearer case of turpitude
in the consideration of a contract can hardly
be imagined unless treason be taken out of
the catalogue of crimes." The court farther
said:
"The recognition of the existence and the
validity of the acts of the so-called Coafeder^
ate government, and that of the states whi^ |
yielded a temporary support to that govern-
ment, stand on very different ground, and
are governed by very different consideratioBik
The latter, in most, if not in all, instances,
merely transferred the existing state organ-
izations to the support of a new and diffetrnt
national head. The same Constitutions, tbs
same laws for the protection of property and
personal rights remained, and were adminis- ,
tered by the same officers. These laws, nec-
essary in their recognition and administra-
tion to the existence of organized eoctety,
were the same, with alight exceptions
whether the authorities of the state acknowl-
edged allegiance to the true or the fadse Fed-
eral power. They were the fundamental
principles for which civil society is organised
*into government in all countries, and mast^tOi]
be respected in their administration under
whatever temporary dominant authority they
may be exercised. • It is only wh«i in the
use of these powers substantial aid and
171 U. S.
1897.
BaLDT ▼. HUNTBR.
400-403
fort was given or intended to be given to the
BebeDion, when the functions necessarily re-
posed in the state for the maintenance of civ-
u society were perverted into the manifest
and intentional aid of treason against the
government of the Union, that their acts are
void.*
From these cases it may be deduced —
That the tiansactiona between persons ac-
tuilly redding within the territory domi-
Bated by the govemnient of the Coi^ederate
states were not invalid for the reason only
that they occurred under the sanction of the
kwB (A that government or of any local gov-
ernment recc^nizinff its authority;
That, within such territory, the preserva-
tion of order, the maintenance of police reg-
ulations, the proeecution of crimes, the pro-
tection of property, the enforcement of con-
traets, the celebration of marriages, the set-
tlement of estatee, the transfer and descent
of property, and similar or kindred subjects,
were, during the war, under the control ol
the local ffovemments constituting the so-
ctlled Confederate states;
That what occurred or was done in respect
of tnch matters under the authority of the
laivs of these local de facto ffovemments
ihonld not be disi-egarded or neld invalid
merely beoiuse those governments were or-
nmzed in hostility to the Union established
oy the national Constitution; this, because
the existence of war between the United
States and the Confederate states did not re-
lieve those who were within the insurrection-
try lines from the necessity of dyQ
obedience nor destroy the bonds of so-
ciety nor do away with civil govem-
metit or the regular administration of the
laws, and because transactions in the ordi-
nary course of civil society as organized with-
fai the enemy's territory, although they may
have indirectly or remotely promoted the ends
of the de facto or unlawful government or-
ganized to effect a dissolution of the Umon,
were without blame "except when proved to
have been entered into with actual intent to
further invasion or insiirre<'tion;" and,
Al] *That judicial and legislative acts in the re-
spective states composing the so-called Con-
federate states should he respected \>y the
eourts if they were not "hostile in their pur-
pose or mode of enforcement to the authority
of the national government, and did not im-
pair the rights of citizens under the Consti-
tution."
Applying these principles to the case before
us, we are of opinion that the mere invest-
ment by Hunter, aa guardian, of the Con-
federate funds or currency of his ward in
bonds of the Confederate states should be
deemed a transaction in the ordinary course
of dvil society, and not, necessarily, one con-
ceived and completed with an actual intent
thereby to aid in the destruction of the
govemmeiit of the Union. If contracts be-
tween parties resident within the lines of the
insurrectionary states, stipulating for pay-
ment in Confederate notes issued in further-
ance of the scheme to overturn the authority
of the United States within the territory
171 V. 8.
dominated by the Confederate states, were
not to be regarded, for that reason only, as
invalid, it is difhciilt to perceive why a dif-
ferent principle should be applied to the in-
vestment by a guardian of his ward's Con-
federate notes or currency in Confederata
bonds — ^both guardian and ward residing at
that time, as they did from the commence-
ment of the Civil War, within the Confeder*
ate lines and undf r subjection to the Confed-
erate states.
As to the question of the intent with which
this investment was made, all doubt is re-
moved by the agreement of the parties at the
trial that the investment was lK)na fide, and
that the only question made was as to ita
legality. We interpret this a^^eement aa
meaning that the guardian had m view only
the best financial interests of -the ward in the
situation in which both were placed, and that
he was not moved to make the investment
with the purpose in that way to obstruct the
United States in its efforts to suppress armed
rebellion. We are imwilling to hold that the
mere investment in Confederate states bonds
— ^no actual intuit to impair the rights of the
United States appearing— was ill^al as be-
tween the guardian and ward.
*It is said, however, that any such conclu-[4(NIJ
sion is inconsistent vrith the decision in La-
mar v. Micou, 112 U. S. 452, 476 [28: 761,
760]. That was a suit in the circuit court
of the United States for the southern dis-
trict of New York, having been removed
thereto from the supreme court of that state.
One of the questions arising in thst case was
as to the liability of a guardian for moneys
belonging to hds wards which weie invested
by him during the Civil War in bomds of the
Confederate states. This court said: "Other
monevs of the ^^urds in Lamar's hands, arie-
inff either from dividends which he had re>
oeived on their behalf or from interest with
which he charged himself upon sums not in-
vested, were used in the purchase of bonds of
the Confederate states, and of the state of
Alabama. The investment in bonds of t^e
Confederate States was clearly unlawful, and
no legislative act or judicial decree or deci-
sion of any state could justify it. The so-
called Confederate government was in no
sense a lawful government, but was a mere
government of force, having its origin and
foundation in rebellion against the United
States. The notes and bonds issued in its t
name and for its support had no legal value
as money or property, except by agreement
or acceptance of parties capable of contract-
ing with each other, and can never be re>
garded by a court sitting under the author-
ity of the United States as securities in which
trust funds might be lawfully invested.
Thorington v. Smith, 8 Wall. 1 [19: 361];
Head v. Starke, Chase, 312; Horn v. Look- '»
hart, 17 Wall. 570 [21 : 657] ; Confederate
Note Case, 19 Wall. 548 [22: 196] ; Sprott v.
United States, 20 Wall. 459 [22:371] ; Fretg
V. Stover, 22 Wall. 198 [22: 769] ; Alexander
V. Bryan, 110 U. S. 414 [28: 195]. An in-
fant has no capacity by contract with his
guardian or by assent to his unlawful acts te
21S
402-404
SUPBBMX COUBT OF THB UnITBD STATBS.
Oct. T
ii
■ii-
affect his own rights. The case is governed
in this particular by the decision in Horn
V. Lockhart, in which it was held that an ex-
ecutor was not discharged from his liability
to legatees by having invested funds pur-
suant ix> a statute of the ertate, and with the
approval of the probate court by which he
had been appointed, in bonds of the Confed-
era/te states, which became worthless in his
hands."
It was, of course, intended that this lan-
[403]^uage of the court *be taJcen in connection
with the history of the guardian's transac-
tions as disclosed in the full and careful
statement of the case that preceded the opin-
ion. It appears from that statement that the
guardian was appointed prior to the war by
the surrogate of Richmond county, New
York, in which state he, at that time, 1865,
resided; that immediately upon his appoint-
ment he received, in New iTork, several
thousand dollars belonging to each of his
wards, and invested pait of it in 1856 in the
tftock of a New York bank and a part in
1857 in the stock of a Greorgia bank, each
bank then paying good annuid dividends;
that in 1861 he had a temporary residence in
New York; that upon the breaking out of
the Rebellion he removed all his property
and voluntarily left New York, passing
through the lines to Savannah where he took
up his residence, sympathizing with the re-
bellion and doing all that was in his power
to accomplish its success, until January,
1865; and that he took up his residence again
in New York in 1872 or 1873, after which
time he Uved in that city. It further ap-
peared that of the money of his wards accru-
ing from bank' stocks he, in 1862, invested
$7,000 in bonds of the Confederate states and
of the state of Alabama, and afterwards sold
the Alabama bonds and invented the pro-
ceeds in Confederate state bond^s. It thus
ap[)ear8 that Lamar v. Micou wss a case in
which the guardian, becoming surh under the
laws of New York, in violation of his duty
to the country, and after the war became
flag^nt, voluntarily went into the Confeder-
ate lines, and there gave aid and comfort to
the Rebellion; and yet he asked that the in-
vestment of his ward's money in ConfeJernte
states bonds receive the sanction of the
oourts sitting in the state under the author-
tty of whose laws he became and acted as
guardian.
Besides it is distinctly stated in the opin-
ion in that case that the sums which Lamar
used in the purchase of bonds of the Confed-
erate states were moneys of the wards in his
hands ^'arising either from dividends which
he had received in the*r behalf, or from in-
terest with which he chai,^'pd himself upon
sums not invested" (112 U. S. 476 [28: 760]),
which is a very different thing from reinvest-
T4Q4iing (as in the present case) in •Confederate
currency moneys previously received in the
like kind of currency The present case is
governed by considerations that do not apply
to that case. We do not doubt the correct-
ness of the decision in Lamar v. Mirou, upon
Its facts as set out in the report of that case;
S14
but we hold, in the present case, for the n»-
sons we have stated, that the judgmemt of
the Supreme Court cf Georgia wyuet te mf"
firmed.
It is so ordered.
HENRY C. KING, Plff. in Err^
V,
M. B. MULLINS, Alexander McClintock,
John McCUntock.
(See 8. 0. Reporter's ed. 404-437.)
State system of taxation — prolectUm of
lands against a forfeiture — summofy rsM-
edies — due process of lata — official dutp —
equal protection of the laws— West Vir-
ginia system for forfeiting lands for lum-
payment of tames — rule in ejectment,
1. Tbe statutes and Constitution of tbe sute
most be looked at together for the piui>«««
of determinlni; whether a system of taxatioA
is In its essential features consistent with
due process of law, where it is claimed ttu t
the state Constitntion provides for a forfelrur?
of property for nonpayment of taxes, witfaont
doe process of law.
2. If the statutes of a state In connectloa vf^h
its Constitution give the taxpayer rea^no-
able opportunity to protect his lands agal*u<
a forfeiture, he has no gronod ^n r-ompUta
that his property has been taken withoat ds*
process of law.
3. Summary remedies, which conld not be ap-
plied to cases of a Judicial character, may be
used In the collection of taxea
4. Due process of law in forfeiting lands fur
DODpaymeut of taxes and failure to place
them on the land books is furnished noder a
constitution which provides that such fallnr*
for Ave years in succession shall* by operatioa
of the constitution Itself, forfeit the title f
the state, where the statutes provide tbe ux-
pnyer a reasonable opportunity to protect hu
lauds in a judicial proceeding, of which h« H
entitled to notice, and in which the court ba«
authority to relieve him, upon reaaoaab«c
terms, from the forfeiture.
6. It cannot be assumed that the commissiooer
will neglect to discharge a duty expressly Im-
pressed upon him by law, or that coorta ar*
wittiout power to compel him to act, where
Nope. — Ai to tohat U due procn*9 of lair, te^
note to Pearson v. Yewdall, 24 : 436.
.4.9 to direct taxet, see note to Scholey ▼. Rev.
23 : 09.
A8 to power of states to tarn, see note to Dob-
bins V. Eiie County Corors. 10: 1022.
Ai to exemption from taxation; tehetker «
contract or not; not implied, — aee note to
Tucker v. Ferguson, 22 : 805.
As to fate of lands for taxes; strict com.i'*-
ance with statute necesBory, — see note to Wt.l-
lams V. Peyton, 4 : 518.
As to when an injunction to restroin the col-
lection of a tax uHll be ffronted, see Dot* te
Dows V. Chicago, 20 : 65.
As to when taxes iHegaUy assessed osa ks
recovered hack, see note to Bxuklns ▼. Van Ars*
dale, 21: 63.
As to when a judgment mt law ta efoefw^nt
will he at joined hy a hill in equity, see noes ts
Davis V. Tileston, 12 : 860.
171 17. S.
ldV7
HoiQ y. MULLINS.
405-407
Uls is aecenaiT for the protection of the
rtfhti of an Indivldnal.
C The exemption bj the Virginia ConstltnttoD
of tractt of land of less than 1,000 acres, from
a proTltion for forfeltnre of larger tracts by
fallnre for ilye snccesslTe years to have them
charged on the land books with taxes due
thereon, does not oonstltnts snch a dlscriml-
nation against the owners of larger tracts as
to deny them the equal protection of the laws.
1 The system of West Virginia* forfeiting to
the state lands not placed by the owner on
the land books for taxation for flye years, and
selling snch lands for the benefit of the school
fsnd, with liberty to the owner upon motion
te interrene and redeem his lands by paying
the taxes and charges,— to sot Inconsistent
with dne process of law.
H Plalntlfr In ejectment can recoysr only on
the strength of hto own tlUsw
[No. 157.J
SubwUtUd January 11^ 1897. fhderd far
Oral Argument October IS, 1S97. Argued
March tZ. 23, 1898. Decided May SI,
1898.
IN ERROR io the arcuft Omit of the
Uvted Stwtes lar tOie Bistriofe of West Vir-
giiik io review m judgment in favor of de-
indantB M. B.MiiUin8 et at in an action of
^jeetmeoft tnvnght by Henry C. King, plain-
tiff, to neoyar lands in West Virginia. Af-
The laotf an stated in tba ofdnloo.
iff. Hmynard F. Stiles for plaintiff In
«rror on tubmission and on oral argument.
Meun, James H. Fermson, W. E.
Chiltoa, John A. Sheppard, and Vineon d
Thompean for defendants in eiior on submis-
iionof case.
Mean, Z. T. Vinson and Holmes Con-
rad for defendants in error on oral argument
Mr. Jnstiee Harlam delivered the opinion
eftheeonrtr ^
TUs action of ejectment was brought to
Kcover that part lying in the state of West
VirginiA id a «ract of 600,000 acras of land
C tented by the commonwealth of Virginia
1795 to Robert Morris, assignee of Wilson
Otry Nicholas.
Ibe persons sued were very numerous, but
IL B. MoUins, Alexander Mcdintock, and
Mm MeClintock having elected 4x> sever
is their defense from other defendants, the
caie was tried only as between them uid the
pbisttirKing.
At the trial in tho eireiilt eonrt the
plaintiff Intnodnced in evidence the patent to
Morris showing that the lands therein de-
•oribed were granted without eonditiona.
Eviaence was also Mitroduced tending to
•how that by sundry mesne eonveyanoes and
legislative and judicial proceedings the title
of Morris became vested, in 1866, in Robert
Randall, trustee; in John R. Reed, trustee,
on the 29ih day of June, 1886; and through
Biin«lry mesne conveyances by Reed, trustee,
Davkl W. Armstrong, and John V. LeMoyne
is the plaintia King on the 24 th day of De-
esmber, 1892.
ITl V. 8.
The defendants resisted the claim of the
plaintiff upon the general ground that prior
to the date of the deed from LeMoyne, the
lands embraced in the patent were absolute-
ly forfeited to the state, and were so forfeited
when the present action was instituted.
*To show an outstanding title in the 8tate[40€|
to the lands in dispute by forfeiture, the de-
fendants read in evidence a certificate of the
auditor of the state, dated October 20, 1895^
showing that neither Randall, trustee, nor
Heed, trustee, nor LeMoyne, King, Arm-
strong, and others named, had enter^ on the
land books of Wyoming, McDowell, Logan,
Boone, or Mingo counties, or either of them,
for the years 1883, 1884, 1885, 1886, 1887,
1888, 1889, 1890, 1891, 1892, 1893, and 1894^
or eitiher of them, a tract of 500*,000 acres oi
land, nor paid taxes upon the land for any
of those years. Ine certificate furtber stated
that the tract of 500,000 acres was not en-
tered on the books of the assessor in any of
those counties for any of the years named;
that no land was entered on the assessor's
book in the name of any of said parties foe
any of those years; and that none of the
above persons are charged on the land books
with state taxes on any part of those
lands.
We assume from tbe record that the great-
er part at least of the lands in West Virginia
embraced in the Morris patent are in the
above-named counties.
The defendants, further to maintatn the i*>
sues on their part, offered in evddenoe —
1. A certified copy of the order of the di^
cuit court of Wyoming coimtv, West Vir-
ginia (in which county part of the original
tract was situated), showing the appointment
and qualification, on the 18th day of April,
1800, of K M. Senter, oommissioner ol school
lands for that county.
2. Also the annual report made by that
officer to the circuit court of Wyoming ooun-
ty, March 31, 1894, and filed, of all tracts and
parcels of land liable to be sold for the bene-
fit of the school fund, as required by § 5 ol
chapter 105 of lihe Code of West Virginia, •■
amended by the act of the legislature of 1893,
chapter 24. That report gives the list of va-
rious tracts in the county of Wyoming "here-
tofore purchased for the state at sales thereof
for delinquent taxes and not redeemed within
one year or within the time required by law,
made up from the records in the auditor's
oHlce and certified by the auditor to the derk
of the circuit court to be sold by the commis-
sioner of school lands." The report idso
*8tates: "Said commissioner of school lands[407]
would further report that in the annual re-
port of the commissioner of school lands for
the year 1889 there was reported for sale for
the benefit of the school fund 60,000 acres,
forfeited in the name of the Pittsburgh Na-
tionaiLBank of Commerce, and sold on the —
day of for the nonpaymeot of the taxes
due thereon for the years 1883 and 1884, and
purchased by the state. . . . The com-
nuseiofner of the circuit court who waa ap-
pointed to report upon proceedings heretofore
instituted to sell the lands of said Pittsburgh
S15
407-400
SUFBBKB COUBT OF THB UmT1£D StaTBS.
Oct. Tkkm.
National Bank of Commerce and Smith and
Fougeray reported them a part of 500,000-
aere survey, nohert Morris patent, known as
the 'Kohert £. Randall land/ aoid thai a suit
was pending in the circuit or district court
of the United States for the district of West
Virginia, and that proceedings to sell the
same under said formal proceedings had .been
enjoined* Said commissioner is advised thai
aa error was made in said matter, and that
BO suit was pending in said United States
eourt with reference to said 500,000-acre
survey. The said commissioner of school
lands would further report that it has come
to his knowledge from Henry C Kin^, the
present owner and claimant thereof, Uiat a
tract of 600,000 acres of land, lying partly in
this county and partly in the counties ol Lo-
ftat and McDowell, and the greater portion
in the states of Virginia and Kentucky, was
at the April term, 1883, of the drcuit court
of this county redeemed from a former for-
feiture by Robert E. Randall, trustee, and all
the taxes thereon paid prior to and including
the year 1883; that since said redemption
the said land has been omitted from the land
books of this county for five consecutive
yean, 4o wit, for the yean 1884, 1885, 1886,
1887, and 1888, and thereby the same has
been forfeited to the atate in the name of
Robert £. Randall, trustee. The said com-
missioner ot school lands further i-eports
that each of said tracts hereinbefore men-
tioned are liable to be sold for the benefit of
the school fund of this state on account of the
forfeiture herein stated; all of which is re-
spectfully submStted."
3. A certiried copy of an order of the dr-
[M8]cuit court of *Logan county. West Virginia,
made April 1, 1889, showing the appointment
ot U. B. Buskirk as commissioner of school
lands of that county, and his annual report,
as such commissioner, of all tracts and par-
cels of land in Logan county theretofore re-
ported for sale for the benefit of the school
fund to the clerk of the circuit court of that
county under §§1 and 2 of chapter 105 of the
Code of West Virginia, and all lands in that
county not theretofore reported, which in his
opinion were liable to sale for the benefit of
that fund.
4. A certified copy of an order of the circuit
court of Logan county, West Virginia, order-
ing suit to 1^ brought in the name of the state
for the sale of the lands mentioned in the re-
port of commissioner Buskirk.
The defendants having rested their case,
the plaintiff to prove that no forfeiture of the
land or outstanding title thereto existed or
was claimed by the state of Wesrt Virginia,
and that there was no record of any for-
feiture where the same would be found if it
existed, introduced and read in evidence a
certificate of <die auditor of the state, dated
October 30, 1895, ceilifying that he had care-
fully exaniined the record books of forfeited
lands returned and kept in his office, as re-
quired by law, for the counties of Lc^p^an,
Mingo, Wyoming, and McDowell, West
Vliginia, from and including the year 1883 to
dat^ and there did not appear on such books
€16
a tract of 500,000 acres o! land, or any i>nrt
thereof, or any other tract forfeited for any
cause in the name of eitfaei Robert £. Randall,
Robert £. Randall, trustee, A. D. Mas-
pertures, Jno. R. Reed, John R. Reed, trustee.
John V. LeMoyne, David W. Armstrong, or
Qenry C. King; that there were no lajads
from anv of those counties entered on the
record of forfeited lands of his office for either
of those yean in the name of either or any of
those parties; that he had car^ully ex-
amined the r^^ord books of ddinquent lands
returned and kept in his office, as required by
law, for the counties ol Logan, Mingo,
Wyoming, uid McDowell, West Virginia,
from and including the year 1883 to date,
and there did not appear on such record books
a tract of 500,000 acres of land or any part
thereof or any other tract ddinquosi for anr
cause *in the name of either Robert E. Ran [
dall, Robert K Randall, trustee, A. D. Maa-
pertures, John R. Reed, John R. Reed, trustee,
John V. LeMoyne, David W. Armstrong, or
Henry C. King; and that there were no lands
from any of those counties entered on the
reoord of delinouent lands of his oflftee lor
either or any of those years in the name of
either or any of those parties.
The plaintiff further oilered evidenoe tend-
ing toj>rove that all taxes of the state d
West Virginia charged or chargeable upon
said tract of land up to and induomg tbeyear
1883 had been fully paid and discharged by
Robert E. Randall, trustee, under whom
plaintiff claimed title, and proved fnrtlMr
that plaintiff was a purt-haser of said traei
lor a valuable consideraftion and withont
knowledge or notice of any alleged forfeit iu»
thereof or outstanding title thmto in West
Virginia, or of any of the facts set out in the
auditor's certificate, shown and referred to in
plaintiff's bill of exceptions, except snch
notice as the land books and records duly
kept, discloeed.
At the instance id the defendants the eoort
instructed the jury "thai the title to the land
claimed by the plaintilT, granted to one
Robert Morris by the commonweal^ of
Virginia, by patent dated June 23, 1796, was
(prior to the date of the deed made by Joha
V. LeMoyne to Henry C. King, under whick
the plaintiff now claims), under the prori-
sions of the Conatltution of ihe state of West
Virginia, forfeited to and vested in said state,
and was so forfeited at the time OiU suit
was instituted, and that therefore the ptain-
tiff took and has no title to said land, ani
the jury are further instructed to render a
verdict in favor of the defendants."*
To this instruction the pluiwtaff objected
upon the ground that the proviaiotts of tfet
Constitution of West Virginia for the for
fefture of lands were repugnant to the 14tk
Amendment of the Constitution of the United
States, and to article 3, §S 4, 5, 9, 10, 20, and
article 5, $ 1, of the state Constitution; aad
upon the further ground that if there were a
forfeiture of said land to and an out«tandia|
title in the crtate, such title could not be set
up against the plaintiff in this actSoa, he bt>
ing a purchaser for value without knowledge
171 V. 1.
im.
iilNO ▼. MULLmt.
410-41!»
I0]*or uutica of toch forfeiture or of such out-
fUidiog Utie.
Tlie plaintiff't objection having been over-
niled, and a verdict having been rendered by
Erection of t^e court for the defendants,
judgment was entered that the plaintiff take
nothing by his action.
The controlling question in this case relates
to the validity under tho Constitutdon of the
United States of certain provisions in the
Contitution and statutes ol West Virginia
for the forfeiture of lands by reason
of the fiulure of the owners during
t given period to have ttiem placed upon the
prraer land books for taxation.
Tbib Constitution of West Virginia provides
that all private rights and interests in lands
in that state derived from or under the laws
fd Viiginia, and from or under the Constitu-
tion and laws of West Virginia prior to the
time such Constitution went into operation,
ihoold ''remain valid and secure, and shall be
detennined by tbe laws in force in Virginia
poor to the formation of this state, and by
the Constitution and laws in fopoe in this
iUbte prior to the time this Constitution goes
into effect." Art 13, S 1.
In view of this psovision it is proper to
k>ok at the legislation of Virginia and the
derunons of its highest court touohing the
forfeiture of lands for noncompliance by the
owners with the requirements of the law re-
lating to taxation.
By the lat section of an act of the general
nsembly of Virginia, passed February 27,
1835, further time was given until July 1,
1838, for the redemption of all lands and lots
tberetofore returned as delinquent tor the
nonpayment of taxes, west of the Alleghany
numntaine, and which had become vested on
tbe previous 1st day of October in the presi-
dent and directors of the literajry fund; sav-
ing the title of any bona Me occupant claim-
ing under a junior grant, whose rights were
proteeted and secured under prior legisla-
tioo.
That act further provided:
"And whereas it is known to the general
•sseoibly that many large tracts of lands
lying vest of the Alleghany mountains which
▼ere granted by the commonwealth before the
'll]tirst day •of April, 1831, never were, or have
not been for many yeara past, entered on the
books of the commissioners of the revenue
vhere they respectively lie; by reason where-
of no forfeiture for the nonpayment of taxes
has occurred, or can accruer under the exist-
ing laws, the commonwealth 13 defrauded of
Iier just demands, and the settlement and im*
provement of the country is delayed and em-
Wraased; for remedy whereof,
'^ Be it enacted, That each and every
o^ner or proprietor of any such traot or
ptrcel of land shall, on or before the first day
of July, 1836, enter or cause to be entered on
the books of the commissioners of the revenue
for the county wherein any such traot or
P^cel of land may lie, all such lands
now owned or claimea by him, her
<^ them, through title derived mediately
OT immediately under grants from the
171 V. B.
commonwealth, and have the same
charged with all taxes and damages in
arrear, or properly chargeable thereon, and
shall also actually pay and satisfy all such
taxes and damages which would not havs
been relinquished and exuneiuted by the
second section of the act concerning delin-
quent and forfeited lands, passed March 10»
1832, had they be^n returned for their delin-
quency prior to the passage of that act; and
upon tlieir failure to do so, all such lands or
parcels thereof not now in the actual posses-
sion of such owner or proprietor by himself^
or his tenant in possession, shall become for-
feited to the conmionwealth, after the 1st day
of July, 1836, except only as hereinafter ex-
ceo ted*
*'3. That all right, title, and interest which
may hereafter be vested in the conmion-
wealth bv virtue of the provisions of the sec-
tion of this act next preceding herein, shall
be transferred and absolutely vested in
any and every person or persons other .
than those for whose default the same
have been forfeited, their heirs or devi-
sees, who are now in actual possession of
said lands or any part or parcel of them, ft>r
so much thereof as such person or persons
have just title or claim to, legal or equitable,
bona fide claimed, held or derived from or un-
der any grant of the conmionwealth bearing
date previous to the Ist day of April, 1831,
who shall have discharged *all taxes duly as-[41iq
sessed and charged against him, her or Uiem
upon such lands, and all taxes that ought to
have been assessed and charged thereon
from the time when he, she or they acquired
his, her, or their title thereto, whet)ier legal
or equitable; Provided, That nothing in
this section contained shall be so construed
as to impair the rignh or title of any person
or persons who have obtained grante from
the commonwbalth for the same land and
have regularly paid the taxes thereon, but in
all such cases the parties shall be left^to ths
strength of their original titles." Laws Va.
1834-35, pp. 11-13.
Other acte were passed in Virginia relating
to delinquent and forfeited lands and extend-
ing the time for redemption, all of them pro-
ceeding upon the ground that the sta/te had
the power to forfeit lands for failure to have
them charged with taxes as well as for fail-
ure to pay the taxes so charged.
The nrst case in which the supreme court
of appeals of Virgima had occasion to pass
upon the validity of the above statute of
1836, so far as it forfeited lands which the
owner failed to have put on the proper lasd
books and pay taxes upon, was Stoats v.
Board, 10 Gratt. 400, 402, decided in 1853.
That court said: "It turther seems to the '
court that, as by the act of March 23, 1836,
Sess. Acts, p. 7, time was allowed from the
1st day of November, 1836, for all persons to
cause their omitted lands to be entered with
the commissioner of the revenue, and to pay
the taxes thereon, in the manner prescribed in
the second section of the act of February 27,
1835, the forfeiture became absolute from
and after the 1st of November, 1836. That
217
418-41S
SUPBEICS COUBT OF THE UnITKD StaTXS.
Oct. Tk&x,
;
the proyislon of the act of March 30, 1837,
ffiving time for redeirption until the 15th of
January, 1838. did not release the forfeitures
whic^ had accrued, except in such cases
where the owner or proprietor availed him-
sdf of the privilege of redeeming. And it
further seems to the court that such forfeit-
ure became absolute and complete by the
failure to enter and pay th^ taxes thereon in
the manner prescribed by the act of 27th of
February, 1835. And no inquisition or judi-
cial proceedings or inquest, or finding of any
kind, ioas required to consummate such for-
feiture."
fA18] *The same principle was announced in
Wild's Lessee v. Serpell, 10 Gratt. 405, 408
(1853). The court said: 'That the provi-
nons of our statutes passed from time to
time, making it the duty of the owners of
lands to pay all taxes properly chargeable
thereon, and, where they have been omitted
from the books of the commissioners of the
revenue, to cause them to be entered thereon
in the proper counties, and to be charged
with all arrearages of taxes and damages, and
to pay ail such arrearages as shall be found
not to be released by law, and, in case of fail-
ure so to do, forfeiting to the commonwealth
all right and title whatever of the parties in
defaiut (under the modifications and restric-
tions provided by the acts), are within the
constitutional competency of the legislature,
has been sufficiently affirmed in decisions
which have been made during the present
term of this court in cases arising under
these several statutes. Staafs Lessee v.
Board, 10 Gratt. 400; Smith's Lessee v. Chap-
man, 10 Gratt. 445 ; Hale v. Branscum, infra.
The same cases also sufficiently establish that
in order to consunmiate and perfect a forfeit-
ure in such a case, no judgment or decree or
other matter of record nor any inquest of of-
fice, is necessary, but that the statutes
themselves, of their own force and by their
inon er^firgy, work out their own purpose, and
operate effectually to devest the title out of
the defaulting owner, and perfectly to vest it
in the conmionwealth, ioithout the ma-
chinery of any proceeding of record, or any-
thing in the nature of an inquest of office.
And as the title is thus in a proper case de-
vested out of the owner and vested in the
commonwealth by the operation of the stat-
utes, so where the forfeiture inures to the
benefit of a third person, claiming under the
commonwealth by virtue of another and dis-
tinct right, the transfer of the title to such
person is, in like manner, perfect and com-
plete without any new grant from the com-
monwealth, or any proceeding to manifest
the transfer by matter of record or other-
wise. Upon these subjects I have nothing
therefore to say upon this occasion, except
that considering the peculiar condition
of thinfja in that part of the state
lying west of the Alleghany moimtains,
and the serious check to population
and the improvement of the country
|4^4i«and the development of its resources
growing out of it, a resort to the stringent
measures of legislation that were adopted
218
was, in my opinion, aa wise and expedient aa
the constitutional power of the legislature
to enact them was dear and unquestioB-
able." This case was cited in Armstrong ▼.
MorriU, 14 WaU. 120, 134 [20:765. 169},
which was an action of ejectment brought
prior to the adoption of the 14th Amendmest
of the Oonstituticm of the United States, aad
in which therefore the rights of the parties
must have been determined without refer-
ence to the prohibition in that Amendmeait
against the deprivation oi property without
due process of law.
In Levasser v. Washburn, 11 Gratt. 572«
580, 581 (1854), it was said: ''Aooordiug
to the decisions of thi^ court in the cases just
referred to, and also in the case^ of Wild ▼.
Serpen, 10 Gratt. 405, and Smith ▼. Chmp-
man, 10 Gratt. 445, the circuit court also
erred in its opinion as to the time at whidi
the forfeiture under the Girond grant oc-
curred or became complete. It appears to
have proceeded on the notion that aome in*
quest of office, or decree, or other proceedinc
should have been had in order to dedareand
perfect the forfeiture. Nothing of the kind
was necessary. The act of the 27th of Feb-
ruary, 1835 (Sees. Acts, p. 11), declaring that
lands which had been omitted frtmi the
books of the conunissioners of the rerenat
should be forf^ted unless the owners iboald
cause the same to be entered and dyurged
mth. taxes, and should pay the same, exeept
such as might be relesised by law, wms in-
tended by its own force and energy to render
the forfeiture dbsolute and complete,withouS
the necessity of any inquisition^ jmdiciet
proceeding, or finding of any hind, t» order
to consummate it. It was perfectly within
the competency of the legislature to deelare
such forfeiture and devest the title by the
mere operation of the act itself; and the
whole legislation upon the subject of delia-
quent and forfeited lands plainly manife<t«
the intention to exercise its power in thi«
form." See also Usher's Heirs ▼. Fride^ 15
Gratt 190, and Smith ▼. Tharp, 17 W. Va.
221.
In this connection it may be well to refer
to Martin v. Snowden, 18 Gratt. 100,135,134.
139, 140 (1868), in which the eupreme coort
of appeals of Virginia had occasion to dec^
mine, *as between the parties before it, thc(41Sj
efTect of the provisions in the acts of CongreM
of August 5, 1861 (12 SUt at L. 292, chap.
45) and June 7, 1862 (12 SUt at L. «22, chapi
98), relating to the direct taxation of landa
By the latter act it was provided that **the
title of, in and to each and every pieee or
parcel of land upon which said tax has act
beeu paid as above provided, shall theieupoa
become forfeited to the United States," and
that "upon the sale hereinafter provided
for, shall vest in the United States or in the
purchasers at such sale, in fee simple, fret
and discharged from all prior liens, eDcnai- i
brances, light, title, and claim whatsoever.*
§ 4. One of the questions presented in that
case was, whether the first of the clauses Just
a noted worked, propria vigors, a transfer te
tie Uuited SUtes of the title to the land de>
171 U. ft.
id97.
Kino y. MvLLura.
415--418
ibved to be forfditod. The court held tbait
the eeto of Congress did not and were not in-
tended to ereate such a forfeiture of the land
to the United States as that it ceased ipso
footo to be tiie property of the former owner
end beoame tlM a«beoluite propertyof the Unit-
ed Stttfeee; that Congrees was witiboui oonsti-
totfiooal power to impose ihe penalty ol for-
Idtvre of lands for the nonpayment of tazee;
that Congrees had all the powers for ^if orc-
iag the collection of its i/ixea that wero in
ase by the Crown ol England, or were in use
bj the states at the time of the adoption of
the CanatitotioQii, but forfeiture of the land as-
sessed with the tax was not then in use,
«ther in England or the states, as a mode of
eoUecting the tax. Referring to Den, Mur-
rajf*9 Lessee, y. Hohoken Land and Improve-
ment Co. 18 How. 272 [15: 372], the state
court further said: '*Can a forfeiture of the
lead charged with taxes, such as is contend-
ed for in these cases, be r^;ard^ as 'due pro-
een of law/ upon the principles established
by that case? literally speaking, it is not
uy process at all, but operates by force of
law and without uiy prooeas or proceeding
whaterer, except the ascertainment by the
eommissioners of the sum chargeable on the
land. But that is probably immateriaL The
krfeiture of land to the Crown does not ap-
pear to have been a means recognized and
emplinred in Englana at any period of its his-
tory for oiforcing the payment of taxes or
other debts to the Crown. If it had been, we
l6]BboQJd have *found such forfeitures treated
of in the Englisu law books; but we nowhere
ind them mentioned." Again: 'These ref-
erencee will show what were the ordinary
nethods <^ enlorcing the payment of taxes
In use in Virginia about the time of the adop-
ticm of the Constitution. And it may be
worth mentioning, that before the adoption
ef the Constitution of the United States the
legislature of Virginia had re-enacted the
pronsion of Magna Chaxta, that no freeman
•hall be taken or impiisoned, or be deprived
of his freehold or liberties or free customs,
(ff be outlawed or exiled, or any otherwise
destroyed, nor shall the commonwealth pass
wpcm him nor condemn him, but by the law-
fol judgment of his peers, or by the law of
the land. 12 Hen. Stat at Large, 186.
Looking at the spirit which animated all this
legislation, we cannot doubt as to what
would have been thought, at that day, of a
statute declaring an immediate and absolute
forfeiture of the whole land as a penalty for
the ncmpayment of <the tax within eixty days
after the assessment of it, without notice to
the owner, by advertisement or otherwise,
of the assessment, and without any, even the
Wast, effort to collect it."
The ease of Martin v. Snowden was brought
here and is reported under the title of Ben-
nett r. Hunter, » Wall. 326, .^35-337 [19:672,
e75, 676] (1869). This court did not deem U
eocessary in that case to decide whether the
United States could constitutionally take to
itself the absolute title to' lands merely be-
cause of the nonpayment of taxes thereon
within a prescribed time, and without some
ITl IF. S.
proceeding ecmivalent to office found. Speak-
mg by Chief Justice Chase, it said: "We are
first to consider whether the first clause of
this section, propria vigore, worked a trans-
fer to the United States of the land declared
to be forfeited. The counsel for the plaintiff
in error have insisted earnestly that such was
its effect. But it must be remembered that
the primary object of the act was, undoubt-
edly, revenue, to be raised by collection of
taxes assessed upon lands. It is true that a
different purpose appears to have dictated
the provisions relating to redemption after
sale, and to the disposition of the lands pur-
chased by the government; a policy which
had reference to the suppression of rebellion
rather *than to revenue. But this purpo8e[411f]
did not affect tiie operation of the act before
sale, for imtil sale actually made there could
be, properly, no redemption. The assessment
of the tax merely created a lien on the land,
whicn might be discharged by the payment
of the debt. And it seems unreasonable to
give to the act, considered as a revenue meas-
ure, a construction which would defeat the
right of the owner tx> pay the amount aaseeeed
and relieve his lands from the lien. The first
clause of the act, therefore, is not to be con-
sidered as working on aotuai transfer of the
land to the Unit^ States, if a more liberal
construction can be given to it consistently •
with its terms. Now, the general principles
of the law of forfeiture seem to he inoonsist*
ent tvith such a transfer. Without pausing
to inquire whether, in any case, the title ol
a citizen to his land can be devested by for-
feiture anu vested absolutely in the United
States, without any inquisition of record or
some public transaction equivalent to office
found, it is certainly proper to assume that
an act of sovereignty so highly penal is not
to be inferred from language capable of any
milder construction. Fairfaw's Devisee v.
Hunter^ s Lessee, 7 Cranch, 625 [3: 460]. In
the case of lands forfeited by alienage the
king could not acquire an interest in the
lands except by inquest of office. 3 Bl. Com.
258. And so of other instances where the
title of the sovereign was derived from for-
feiture." Again: "Applying these principles
to the case in hand, it seems quite clear that
the first clause of the fourth section was not
intended by Congress to have the effect at-
tributed to it, independently of the second
clause. It does not direct the possession and
appropriation of the lard. It was designed
rather, ae we think, to declare the ground of
the forfeiture of title, namely, nonpayment ol
taxes, while the second clause was intended to
wOrkthe actual investment of the ti<tle through
a public actof tlie government in Idie United
States, or in the purchaser at the tax sale.
The sale was the public act, which is the
equivalent of office found. What preceded
the sale was merely preliminary, and, inde-
pendently of the sale, worked no devesUture
of title. The title, indeed, was forfeited by
nonpayment of the tax; in other words, it
became 'subject to be vest«Hi in the United[41Q
States, and, upon public sale, became actually
vested in the United States or in any other
219
413-420
SupRBMB Court of the United States.
Oct.
ftUTchaser; but not before such public sale,
t follows that in the case before us the title
^\ remained in the tenant for life with remain-
*" ^ der to ihe defendant in error, at least until
' sale; though forfeited, in the sense just stat-
ed, to the United SUtes."
We come now to an examination of the
V West Virginia Constitution and statutory
* provisions relating to the forfeiture to the
) state of lands subject to taxation.
t By article 13 Of the Constitution of West
Virginia of 1872 it was provided:
\ "4. All lands in this state, waste and un-
appropriated, or hio^tofore or hereafter for
any cause forfeited or treated as forfeited or
escheated to the state of Virginia or this
■tate, or purchased by either and become ir-
redeemable, not redeemed, released, trans-
, ferred, or otherwise disposed of, the titie
wherrto shall remain in this state tall such
•ale as is hereinafter mentioned be made,
shall, by proceedings in the oircuii oourt of
the oounty in which the lands or a part there-
of are situated, be sold to the highest bidder.
"5, The former owner of any such land
■haU be entitled to receiTe the excess of the
aum tor which the land may be aoM over the
taxes charged and chargeable thereon, or
whi<A, if tiie land had not been forfeited,
would have been charged or chargeable there-
• on, ance the formation of this staAe, with in-
terest at the rate of twelve per centum per
* umum, and the costs of the proceedings, if
his daim be filed in the circuit court that
decrees the sale, within two years thereafter.
^. It shall be the duty of every owner of
land to have it entered on the land books of
I the oounty in which it, or part of it, is
•ituated, and to cause himself to be charged
with the taxes thereon, and pay the same.
When for any five eucceaeive years after the
year 1869 the owner of any tract of land eon-
iaining one thousand acres or more shall not
have been charged on such hooks toith state
taw on said land, then by operation hereof the
land shcUl be forfeited and the title thereto
vest in the state. But if, for any one or more
f419]of such five*years the owner shall have been
charged with state tax on any part of the
land, sucfh part thereof 9hall not be forfeited
for such cause. And any owner of land so
forfeited, or of any interest therein at the
time of the forfeiture thereof, wlio shall then
be an infant, married woman, or insane per-
son, may, until the expiration of three
Tears after the removal of such disability,
nSave the land, or such interest charged on
suoh books, with all state and other taxes
. that shall be, and but for the forfeiture
would be, chargeable on the land or interest
therein for the year 1S63, and every year
thereafter with interest at the rate of ten per
centum per annum; and pay all taxes and
interest thereon for all such years, and there-
bj redeem the land or jnterest therein: Pro-
vided, Such right to redeem shall in no case
extend beyond twenty years from the time
such land was forfeited.'* The duty imposed
upon owners of land by Uie first clause of
this section was also prescribed by the
statutes of the stata
220
Such being the provisions of the
tion of West ViiTinia m relation to the for-
feiture of lands, t£e supreme court of iptiials
of that state had occasion in McClmre v.
Maitland, 24 W. Va. 561, 575-578, to deter*
mine their scope and effect. In ihmt case it
was said: "In the year 1831, aa we have e»-
deavored to show in a former part of this
opinion, the land titles in that portion of t^
commonwealth of Virginia now embraced
within this state were in a moot wretched anJ
embarrassed condition. Many owners of
laige tracts, ooverinff in some eaees almost
entire counties, would neither pay their taxes
nor settle and improve ttieu' lands, Uini
paralyring the energy and oontravemng the
prosperity of the people and the advanoemest
and population of the state to an almost ia-
conceivable extent. In this emergency and tA
remedy this calamitous evil, the general
assembly of Virginia inaugurated the system
of delinquent and forfeiture laws that fom
the baais of the provisions of our present Con-
stitution on that subject The whole history
of that system shows a most earnest and de-
temnned eff(»t on the part of the I^gisiatnre,
the judiciary, and the people, q^eaking
through our present Oonstitution, to destroy
and annihilate the titles of such driinqunt
owners, *who should, after every reasonthM^
opportunity had been given them to eomply
with the laws, continue in defauH. and to
protect actual settlem and those not in de-
faidt. The piU7>ose of the statutes passed to
enforce 'this system was not merely to create
a lien for the taxes on these ddinquent and
unoccupied lands, but to effect by their otcm
force and vigor an absolute forfeitmre of them
and effectually vest the title thereto im the
state without the machinery of any proeetd-
ing of record or anything in the matwrs ef
an inquest of office. Such tras itUonded to lis
and such was in fact the effect of tk^e stt-
utes. The constitutional competency of th«
legislature to pass these laws and thus eoa-
summate the forfeiture and perfectly devest
all the right, title, and interest of the fomicr
owner by the mere energy and operation ol
the statutes themselves, das been repeatedly
affirmed by the court of appeals of virgiBia^
—citing Stoats v. Board, 10 Gratt.400; Wm
V. Seri)ell, 10 Qratt. 405; Levassor v. Wmh-
bum, 11 Gratt. 572; Usher v./Vuie, 15 Oratt
190, and Smith v. Tharp, 17 W. Va. 221.
So in Holly River Coal Co, v. BoweU^ M
W. Va. 489, 501, the court referred to its for»
mer decisions, above cited, and after ubssrv
ing that they had been adhered to with only
a seeming exception, said: **rhe forfntms
became complete and absolute by operatioa
of law — in the case of delinquent lands oa the
Ist day of October, 1834, and in ease of osnt*
ted lands on 1st November, 1836, e^d mo m-
quisition or judicial proceeding or infmest
or finding of any kind teas required to eset
summate such forfeiture**
Now, the plaintiff contends that the pro-
vision in the Constitution of West Virgoia
which forfeits and veets absolutely H Um
state wi}thout inquisition of reooid, or wmo
public transaction equivalent to office foead,
171 v. &
i$77
KllXQ T. MULLINI.
4-0 ie3
the uUe to iMids which for five succflssiTe
jmn after 1809 have xkot been chairg^d <with
•tete taxea <m the kind books of wi proper
ttmnty, m repugnant to tlio dame of thie 14th
Amendment <S the ConstitiitiocL of the
United States deekurinff thait no etato shall
deprire any person ol nis property mttioat
due prooeas of law.
In support of this contention numeions an-
ll^thorities have been *cited bv the plaintiff,
those most directly in point being Oriffln ▼.
Mixon, 38 Miss. 424 ( 1860) , and Marshall ▼.
MeDaniel, 12 Bush, 378, 382-385 (1876). In
the first of those cases, the high court of er-
rors and appeals of Mississippi, speaking by
Judge Harris, held a staitute of that state
declaring the forfeiture of lands on the failure
limply of the owner to pay the taxes due
thereon, without notice or hearing in cmy
form, to be in riolatioa of the constitA:0tional
prorisions prohibiting the taking <^ private
property for public use without just compen-
sation being first made therefor, or the depri-
fstion of property without due process of
law. In the other case, the court of appeals
•f Kentucky held to be unconstitutional a
projision in a statute of that state declaring
**that in all cases where any lands shall here-
after be forfeited for failing to list for taxa-
tion, or stricken off to the state, the titie of
•och lands shall vest in this oommoowealth
bj virtue of this act 'without any inquest of
office foind, unless said lands shall have been
redeemed according to law." That court,
^waking by Chief Justice Lindsay, said: Tn
puismng this inquiry we need not call in
question the power ol the legislature to pro-
Tide for the levy and collection of taxes in the
most summary manner. The right of the
eoBmonwea4th, through its executive and
ministerial oflScers, to assess property for
taxaiion, to ascertain t^e sum payable by
<Mh taxpaver, and to eeire and sdl his prop-
erty in satisfaction of such sum, is not open
to doubt It is equally dear the legislature
may ifflpos«i upon the taxpayer the duty of
Ksting his property for taxation, and may
prescribe, for the neglect of the duty so im-
posed, penalties reaching sven to the foi'fei-
tors of tJio estate not li^ed. But when such
laws are enacted, the forfeitures prescribed
most be regarded as penalties, and they can-
sot be inflicted until inquiry has first been
made and the commission of the offense as-
certained by due course of law. • • .
Ts enjoin what shall be done or what left
andone, and to secure obedience to the in-
junction by appropriate penalties, belongs
exclusively to legislation. To ascertain a
nolMion of such injunction and inflict the
pfnaliy belongs to the judicial function.'
li)0(iin«« V. Buford, I Dana, 481. 'By the Magna
ihnrU It is declared that no citi/.en shall be
. diMrii^ed of his freehold or be condemned but
by the lawful judgment of his peers or by
the law of the land. The substance of this
deefaumtion is contained in our Bill of Rights.
Its meaning and inienUon is that no man
•>>tll be deprived of his properly without be-
jjf first heard in his own dei>n<»e. . . .
Weeoncliide without hesitation ihat so much
'71 V. S.
i
of the act of 1^5 as provided that for a mers
failure to list lands for taxation the title
should be forfeited, and should ipso factOp
without Inquiry or trial, and without <^or*
tonity to the party supposed to be in default
even to manifest his innocence, be vested in ]
the commonwealth, Is unconstitutional and
▼odd."
Tha question of constitutional law thus '
presented is one of unusual gravity. On the ■
one hand, it must not be forgotten that the
clause of the national Constitution which *
this court is now asked to interpret is a part ..
of the supreme law of the land, and that it «
must be given full force and effect through*
out the entire Unioii. The due process of
law enjoined by the 14th Amendment must
mean the same thing in all the states. Om
the other hand, a decision of this court de-
claring that that Amendment forbids a states
by force alone of its Constitution or statutes,
and without inquisition or inquiry in any
form, to take to itself the absolute title to
lands of the citizen because of his failure to
put them on record lor taxation, or to pay
the taxes thereon, might greatiy disturb the >
land tities of two states under a system
which has long been upheld and enforced by
their respective legislatures and courts. Un-
der these circumstances, our duty is not to
go beyond what is necessary to tiie decision
of the particular case before us. If the
rights of the parties in this case can be fully
determined without passing upon the gen-
eral question whether the clause of the West
Virginia Constitution in question, alone cofi*
aidered, is consistent with the national Con-
stitution, that question may properly be left
for examination until it arises in some case
in which it must be decided.
We come then to inquire whether, looking
at the Constitution and the statutes of West
Virginia together, a remedy *was not pro-[42^
vided which, if pursued, furnished to the
plaintiff and those under whom he aseerts
titie all the opportunity that "due process of
law" required in order to vindicate any
rights that he or they had in respect of the
lands in question.
We have seen that the lands embraced by
the patent of Robert Morris were not put
upon the land books of the proper counties
during the years 1883 to 1894, both inclu-
sive. They were redeemed in 1883 from for-
feiture bv Randall, trustee, in whom, as we
take it, the title was at that time vested. Let
it be assumed that they were again forfeited
to the state upon the expiration of the five
consecutive years after 1883 during which
t^ey were not placed on the land books for
taxation; in other words, that for that rea-
son they were forfeited to the state after the
year 1888. What, at the time of such for-
feiture, were the rights of the owner! Did
the statutes of the state give him any remedy i
whereby he could be relieved from suoh for- .,
feiture? Was he denied all opportunity te
hold the lands upon terms just and reason- .
able both to bim and the state?
We pass by the act of November 18, 1871^
providing for the sale of escheated, forfeited,
221
4:: J no
BuFBBMS Court of thx Unftbd States.
Oc?r. Tkkm,
■ 1
' I
and unappropriated lands for the benefit of
the school fund ( Acte of W. Va. 1872-73, p.
449, chap. 134), and also, for the present, the
act of March 26, 1882, on the same subject
(Acts of W. Va, 1882, p. 263, chap. 96), be-
cause both of those acts are amendatory of
the Code of West Virginiii, and their pro-
▼isions, so far as they directly or indirectly
bear upon tht present controversy, are pre-
served and extended, in the Code published
in 1887, which contained the law of the
state in reference to forfeited lands as it was
at that time.
From cAiapter 106 of tiie Code of West
Virginia, published in 1887, it appears that
all lands forfeited to the state for the failure
to have the same entered upon the land
books of the proper county and charged wiCh
the taxes thereon, as provided by law — so far
as the title thereof was not vested in junior
grantees or daimantn under the provisions
of tihe Constitution and laws of the state —
were required to be sold for the benefit of the
|iC%]8chool fund — ^the auditor to certify *to the
derk of the circuit court a list of all such
lands (which, or the greater part of Which,
were in his county), within sixty days after
tbe iaitie theretx) ve!fted in the state. Tba
act made it the duty of the commissioner of
school lands to file his petition ?r the circuit
eourt and pray for the sale of the lands for the
benefit of the school fund. He was required
to tttaJte in his petition ''all the tracts, lots,
and parts and parcels of any tract or lot of
land so liable to sale, in the drcuit court of
his county, praying that the same be sold for
the benefit of tl»e school fund," and, accord-
ing to the best of his information and belief,
the local situation, quantity or supposed
quantity, and probable value of each tract,
lot, or pared, and part of a tract of land
therein mentioned, together with all the facts
at his command, in relation to the title to
the same, and to eafh tract, lot, part, or par-
ed thereof, the claimant or claimants thereof,
and thdr residence, if known, and, if not
known, that fact shall be stated, and stating
also how and when and in whose name every
^ such tract, lot, and pared, and part of a
tract or lot, was forfeited to the state." Pro-
vidon was made for the reference of the pe-
tition to a commisdoner in chancery, "with
instructions to inquire into and report upon
tiie matters and things therein contained,
and such others as the court may think prop-
er to direct, and particularly to inauire and
report as to the amount of taxes and interest
due and unpaid on each tract, lot, and pared,
and part of a tract or lot of land mentioned
in the petition, in whose name ft was for-
feited, and when and how forfdted, in whom
the legal title was at the time of the forfd-
ture, and, if more than one person daimed
adverse titles thereto at the date of the for-
fdture, the name of each of such daimuits
and a reference to the deed book or books in
which the title papers of any claimant there-
* of can be found; what portion or porti<Mis,
tf any, of such lands is claimed by any per-
son or persons under the provisions of
tinn three e< artick thirteen of the
tution of this state, with tiie names of so^h
claimants and the amount daimed by each as
far as he can ascertain the same." If there
were no exception to this report, or if tiiere
were any wHich were overruled, "thm eourt
*8hall confirm the same and decree a eale oJ[4
the lands, or any part of them, thereiii men-
tioned, which are subject to sale, for tba
benefit of the school fund, upon saA terms
and conditions as to the court may seea
right and proper; and in any decree of sal*
made under this chai.ter, the court may pro-
vide that the commisdoner of school lan-H
or other person appointed eommisaioner to
make such saie, may recdve bida for surh
lands, wKhout any iMTtice of sale; and if the
former owner or owners, or person in who&e
name the land was returned delinquent ani
forfdted, or the heirs or grantee of such
owner or person, or an^ person or penonj
holding a valid subsisting lien thereoa, at
the time of silch forfeiture, bid a sum suffi-
cient to satisfy such decree and the costs of
the proceeding and sale, and such person or
persons so bidding be the highest bidder,
said commissioner shall sell the land on sndi
bid, and report the same to the oonrt for
confirmation; but if the commisdoner reedrs
no bid from any such person, or il he shall
recdve a higher bid therefor from any other
person not so mentioned, then and in eiUicr
event the said commisdoner shall odl the land
at pubUc auction to the highest bidder, after
first givinff such notice as may be provided
by such decree." By the same act it was
provided: "The former owner of any sack
land shall be entitled to recover the exeesi ol
the sum for which the land may be sold over
the taxes charged and chai^geaUa thereon, or
which, if the land had not been fM^tcd,
would have been char^^ed or diargeabla there-
on, since the formation of this atait% with
interest at the rate of twdve per '^f^'yt per
annum and the costs of the proeeedinga, if
his claim be filed in the drcuit eout that de*
crees the sale, withm two years
as provided in the next sueoeeding
But the part of chapter 105 of the Cods
which has the most direct bearing on the
question under condderation Is | 14» which,
ifter providing that the owner may. npca
his petition to the drcuit court, obtain sa
irder for the payment to himself of the ex-
cess lust mentioned, proceeds: "At say
time during the pendency of tlie proceediagf
for the ssJe of any such land as hereiabefurs
mentioned, such former owner, or any credit-
or *of such former owner of such land,haviii|[4]
a Hen thereon, may file his petition in said r^r^
cuit court as herembefore provided* and a«k-
ing to be allowed to redeem eweh peri or
parte of ony tract of land eo forfeited^ er the
whole thereof^ as he may desire, and apoa
such proof being made as would entitle tl*e
petitioner to the excess of purchase noney
hereinbdore mentioned, such court may al*
lorn him to redeem the whole of such tract tf
he desire to redeem the whole, or such part sr
parts thereof, as he may dedre, lees than ths
wiide, upon the payment into court, or to
the commisdoner of school lands, all eo<ti^
171 V. M.
ia97.
JkJLXiU T. HULUNm
i-:'. l?»
taxes, and interest dut thi>reon, as provided
la ^ dHtpier, if ho deBU^ to redeem t^e
whole of such tract; or ii he desire to redeem
ka than the whole of such tract, upon the
payment as aforesaid, of so much of the coAts,
taxes, and in^tereet due on such traot aa will
be a due pr<^K>rtion thereof for the quantity
•0 ledeemed. But if the petition be for a re-
demption of a less quantity than the whole
el such tract, it shall be accompanied with a
plat and a certificate of aurvev of the part
or parts thereof sought to be redeemed.
Whenever it shall satisfactorily appear that
the petitioner la entirtlod to redeem such
tract, or any part or parts thereof, the court
ihall make an order showing the sum paid
ia order to redeem the whole tract or the
part or parte thereof which the petitioner de-
sires to redeem, and declaring the traot, or
fort or parte thereof, redeemed from euoh
forfeiture, so far as the title thereto was in
the state immediately before the date of such
order; which order, when so made, shall op-
erate a» a release of such forfeiture so far as
the state is concerned, and of all former taxes
on said tract, or part or parts thereof so re-
deemed, and no sale thereof shall be made.
If the redemption be of a part or parts of a
tract, the plat or plats and certificate of the
soTYey thereof hereinbefore mentioned, to-
gether with a copy of the order allowing the
redemption, ahall be recorded in a deed book,
in Uie office of the clerk of the county court.
Provided, That such payment and redemption
ihall in no way affect or impair the title to
any portion of such land transferred to and
Tested in any person, as provided in section
three of article thirteen of the Constitution
of this state."
nj *It thus appears that when^ the lands in
(juestion and others embraced in the Morris
patent were, as is contended, forfeited to the
state for the failure of the owner during the
trt consecutive years after they were re*
deoned by Bandall, trustee, in 1883, to have
them entered upon the land books of the
proper county and charged with the taxes
thereon, it waa provided by the statutes of
West Virginia:
lliat all lands thus forfeited to 'the slate
should be sold for the benefit ox the school
fond;
That the sale should be sought by petition
Hied by the commissioner of school lands in
the proper circuit court, to which proceeding
sH daimantfl should be nuide parties, and be
brought in by personal service of summons
vpon all found m the county, or by publica-
tion as to those who could not be found;
That the petition should be referred to a
eommissioner in chancery, who should report
ipon the same and upon such other things as
the comt mi^t direct, and particularly as
to the amount of taxes due and unpaid upon
any landa mentioned in the petition, in whose
name and when and how forfeited, and in
whom the legal title was at the time of the
lorfeitare:
That if there were no exceptions to the re-
port, or if there were exceptions which were
erermled. the court was required to confirm
171 Tj. n.
the same and decree a sale of the lands for
the benefit of the school fund; ami,
Thai at any tame during the pendency of
the proceedings instituted for the sale of for-
feited lands for the benefit of the school fund^
the owner, or any creditor of the owner hav-
ing a lien thereon, might file his petition in
the drcurt court of the county for the r^
demption of his lands upon the payment in-
to court, or to the commissioner of school
lands, of all coets, taxes, and interest due
thereon, and obtain a decree or order declar-
ing the lands redeemed so far as the title
thereto was in the state immediately before
the date of such order.
These provisions were substantially pre-
served in chapter 105 as amended and re-en-
acted in 1891 and 1893. Ckxle of Weet Va.
1891, p. 731; Acts of West Va. 1893, p. 67.
But in the Oode of 1891 will be found thk ad-
ditional and important provision (Acta 1891,
chap. 94) :
*"Sec. 18. In every such suit brought undeT[42^
tihe provisiooB of this chapter, the court shall,
have full jurisdiction, power, and authority to
hear, try, and determine all questions of title,
possession, and boundary which may arise
therein, as well as any ttnd aU conflicting
chiims whatever to the real estate in question
arising therein. And ine court in its discre-
tion may at any time, regardless of the evi-
dence, if any, already taken therein, direct an
issue to be made up and tried at its bar as to
any question, matter, or thing arising there-
in, which, in the opinion of the court, is prop-
er to be tried by a jury. And if any such is-
sue be as to the question of title, possession^
or boundary of the land in question, or any
part of it, it shall be tried and determined
in all respects as if such issue was made up in .
an action pending in such court. And every
such issue shall o% proceeded in, and the trial
thereof shall be governed by the law and prac-
tice applicable to the trial of an issue out of
chancery; and the court may grant a new
trial therein aa in other cases tried by a
jury." And this provision was preserved, sub-
stantially, in the act of 1893, amendatory of
chapter 105 of the Code of West Virginia*
If, as contended, the state, without an in*
quisition or proceeding of some kinu declar-
ing a forfeiture of lauds for failure during a
named period to list them for tsLXsMon, and
by force alone of its Constitution or statutes^
could not take the absolute title to eudh lands^
still it was in its power by legislation to pro-
vide, as it did, a mode in which the attempted
forfeiture or liability to forfeiture ooula be*
removed and the owner enabled to retain the
full possession of and title to hss lands. We
should therefore look to the Constitution and
statutes of the state together for the pur-
pose of ascertaining whether the system of
taxation establisheu by the state was, in its
essential features, consistent with due pro-
cesH of law. If, in addition to the provision*
contained in the Constitution, that instru-
ment had itself provided for the sale of for- ,•
felted lands for the benefit of the school fund»
but reserved the right to the owner, before
sale and within a reasonable period, to pay
423 m
SufiiBia CouBT ot THB Umtid Staibs.
Oar. Tnuf
the Uxes and charges due thereon, and there
by relieve his land from forfeiture, we do not
suppose tluit such a system would be held to
(429]*be inconsistent with due process of law. If
this be true it would seem to follow necessar-
ily that if the statutes of the state, in coaneo-
tion with the Constitution, gave the taxpay-
er reasonable opportunity to protect ms lands
against a foi-feiture arising from his failure
to place them upon the liukd books, there is
mo ground for him to complain that his prop-
erty has been taken without due process of
law.
Much of the argument on behalf of the
plaintiff proceeds upon the erroneous theory
that aU the principles involved in due process
of law as i4>plied to proceedings strictly judi-
cial in their nature apply equally to proceed-
ings for the collection of puSbHc revenue by
taxation. On the contrary, it is well settled
that very summary remedies may be used in
the collection of taxes that couild not be ap-
ptied in cases of a judicial cfharacter. This
«ubject was fully considered in Den, Mur-
ray's Lessee, v. Hoboken Land d Improve-
ment Co. 18 How. 272,280,281,282 [15: 372,
376, 377], which arose under the act of Con-
gTess of May 15, 1820, providing for the better
•organization of the Treasury Department.
The account of a collector of customs having
been audited by the first auditor and certified
» by the first comptroller of the Treasury, a
•dretress warrant for the balance found to be
•due was issued by the solicitor of the Treas-
ury, in accordance wiith the aot of Congress,
«nd levied upon the lands of the collector.
The question presented was whether such a
proceeding was oonsiirtent with due process
•of law — the objection to it being that ft was
judicial in its nature and that it openated to
deprive the debtor of his property without a
hearing or trial b^ jury and without due
process of law. This court eaid, among otiber
things: 'Tested by the common and 6ta4>
ute law of England prior to the emigration
of our ancestors and by the laws of many of
the flltates at the time of the adoption of this
Amendment, the proceedings authorized by
the act of 1820 cannot be denied to be due
process of law when appMed to the ascertain-
ment and recovery oi bailances due to the
government from a collector of customs, un-
less there exists in the Consrtitution some
other provision which restrains Congress
from authorizing such proceedings. For,
(430Jthou|^h *due process of law* n^nerally* implies
and includes act or ^ reus, judex, regular alle-
gations, opportunity to answer, and a trial
according to some settled course of judicial
proceedings (2 Inst. 47, 50; Hoke v. Bender-
eon, 15 N. C. (4 Dev. L.) 15 [25 Am. Dec.
677] ; Taylor v. Porter, 4 Hill, 14G, 40 Am.
Dec. 274; Vanzandt v. Waddel, 2 Yerg. 260;
Bank of the State v. Cooper, 2 Yerg. 599 [24
Am. Dec. 517] ; Jones's Heirs v. Perry, 10
Yerg. 59, 30 Am. Dec 430 ; Oreene v. Briggs,
1 Curt. C. C. 311), yet this is not univer-
sally true. There may be and we have seen
that there are cases, under the law of Eng-
fauid after Magna Charta, and as it was
brought to this country and acted on here,
t24
in lihich process, in its nature ftnaT,
against the body, lanis, and goods of
publie debtors without any such trial; aad
this brings us to the queetioo whether tWM
provisions of the Constitution whiofa ralaSs
to the judicial power are incompatible with
these proceedings." Again: 'The power to
collect and disburse revenue, aad to niake aQ
laws which ahail be necessary and proper for
oarrying that power into effect, inchades all
known and appropriate means of effectually
oolleoting and disbursing that revenue, unieM
some such means should be forbidden m some
other part of the Constitution. The pov«'
<has not been exhausted by the receipt of th«
money by the collector. Its purpose is to
raise money ajul use it in paymott of the
dcfbts of the government; and, whoeTer naj
have possession of the public money, ontal h
is aotually disbursed, the power to use thoc*
known and appropriate means to secure iu
due application continue^. As we have tl*
ready shown, the means provided by the ac:
of 1820 do not differ in principle from those
employed in England from remote antiquity
— and in many of the states, so far as wt
know, without objection — ^for this poipose,
at the time the Constitution was formed. U
may be added, that probably there are few
governments which do or can permit their
claims for puUic taxes, either on the eitim
or the officer employed for their ooUectioo or
disbursement, to become subjects of judkul
controversy, according to the cooree of the
lew of the land. Imperative neoeasity has
forced a distinction between such rlsimi and
all others, which has sometimes been eaniai
out by summary methods of proceeding and
sometimes by systems of fines ^and pem^tie^^^U
but always in some way observed aad yieldec
to." In BeWs Gap R*d Co. t. PmrnMyUnmrn,
134 U. S. 232, 239 [33: 892, 896], it was ssid
that '^e process of taxation does not re-
quire the same kind of notice as is required ta
a suit at law, or even in proceedings lor tak-
ing private property under the power of emi-
nent domain. It invx^ves no violation of doe
process of law when it is executed aecordin^
to customarr forms and established ntsgfi.
or in subordination to the principles which
underlie them.** This must be eo, eke tb«
existence of government might be pat in p^
by the delays attendant upon formal jndiciai
proceedings for the collectNn of iazaa
In this connection reference may be madt
to What was said by the supreme eourt of
appeals in UcClure v. MaitUind^ above cit«d.
touching the rights of the owner of lands for-
felted to the state, and f6r the sale of whick
proceedings were instituted by the oomni*-
sioner of Mho<^ landa That oonrt said: Ths
title to the land and all the right aad iatet-
est of the former owner having thus, by his
default and the operation of the law, beoooM
absolutely vested in the state and becoms ir-
redeemable, she, having t^us acquired a pir-
feet title to, and unqualified dominion ever.
the land, had the undoubted right to hold cr
dispose of it for any p.x>per purpose, ia aav
manner and upon any terms and conditk
she might in her sovereign capacity
171 v. &
Mff.
JLXKO y. HULLINS.
431-484
proper, wttiioat eooBultiiig the former owner
er ABTone else. For after the forfeiture bad
beoome compete, tm it liad in tbe gase before
OS, tlie former owner had no more cladm to or
Men upon the land than one who never had
pretended to own it. In the exerdse of this
perfect dominion over her own property the
state eaw proper to transfer and veelt her title
to M> much of said kind owned by her, in
any peraon, other than those who oocaeioned
the defoiilty aa such person nmy have been
in tike actual poeseasion of, or have juert title
to, claiming the same, and was not in default
lor the taxes thereom chargeable to him. • • .
The lawv, as we have shown, by their own
force, transferred to and vested the title to
the land ahsolutely in the state without any
jndkial inquiry or inquest of any kind.
At]lliffe eoi^d *therefora be no necessity or rea-
8«i for proceeding in rem against the land.
That had already become the absoluite prop-
erty qI the state, and she had a perfect right
to sell ft without further inquiry. All the
laws piovidii^ for the sale of Uiese lands pre-
supposed the title to have vested in the state
prior to the commencement of the proceed-
ings. In fact the whole authority of the com-
missioner and the jurisdiction of the court
are based upon the assumption that the un-
eondhicmal title is in the state; for unless
such is the fact n^her has any authority to
act Twigg* ▼. ChevalUe, 4 W. Va. 463.
And all the right, title, and initereet ^t the
former owner Iwving been completely devest-
ed, he has not a partide of interest in the
land— no nnne than if he had never owned
It; there is therefore no possible reason for
BUiking tiim a party or proceeding agaimrt
him in pemmatn or otherwise. The proceed-
iBf is of necessity, then, neither in rem nor
in perwonam; and aa all judicial proceedings
properly so atyled muat belong to either l£e
oae or the other of these dassee, it follows
that this is not aad cannot be in may technical
seme a judidal proceeding."
It is said that this lAiOws that the taxpay-
er, after his land is forfeited to the state, is
lek by the statutes of West Virginia with-
out any right or opportunity, by any form
of judicial proceeding, to get it back or to
prevenft its sale, and, therefore, it is argued,
he is ahaolotely devested of his lands solely
by reason of his failure to place them on the
proper land books.
Ask answor to this view is, thai what was
said in MeVlure y. Maitland, on this point,
had refo^nce to proceedings under the act of
November 18, 1873 (Acts 1872-73, p. 449,
chap. 134), iR^uch were not judicial in their
■ators but administrative. But, as declared
in ffoys, Com'r, v. Camden's Heirs, 38 W. Va.
109, 110, the aot of 1873 was so amended by
the set of March 25, 1882 (Acts W. Va. 1882,
p. 253, chap. 95), as to make the proceeding
ui the circtiit court for the sale of forfdted
hmds, in which the owners or dadmants could
hitenrene and effect a redemption of their
luidB from forfeiture, a judicial proceeding.
This view was reaffirmed in Wumt ▼. Hays,
of the state court, observed that what was
said in McClure ▼. Maitland, as to the land-
owner not being entitled of right to be made
a party to the proceeding instituted for the
sale of forfeited lands for the benefit of the
school funds, had reference to the then exist-
ing act which was changed bv ihe act of 1882.
Answering the suggestion that the proceed-
ings under the new law were not judicial, tha
court said: "Now, why, vrith parties plaintiff
and defendant, process, pleading, hearing be-
tween the parties, decree, etc., it is not, if not
technically a chancery suit, yet a suit, I can-
not see; a suit under a special statute, it is
true, but none the less a suit. So, substan-
tially, it was regarded in Hays v. Camden's
Heirs, 38 W. Va. 109, 18 S. E. 461. Proceed-
ings at rules take place as in ordinary and
common-law suits. In some places it is called
a 'suit.' But I know that it is said by those
holding the other view that the question is
not to be tested by the drcumstances, such
as I have alluded to, the presence of pleading,
process, hearing, etc., but it must be tested
by the nature of the proceeding; that is, that
it is only an admimstrative process by the
state, through an ofiicer and court, to realize
money on its own propcri^y. But to this I
reply that though tne state might maJce the
pixxjceding such, and did in its acts up to
1882, yet by ito act in 1882 it changed the
proceeding from one ew parte to one inter
partes, and clothed the proceeding with all
the habiliments of a euit; and still it did not
proceed against the land, taking the act of
forfeiture as a concession, and simply at once
sell the land, but it subjected its right and
trtle under the supposed forfeiture to ques-
tion and investigation under the law through
a suit, called in all interested adversely to
its claim, and gave them leave to contest its
right, and made its daim the subjeot of liti-
gation.''
It thus appears that under the irtntutes of
West Virginia in force after 1882 ^e owner
of the forfeited lands had the right to become
a party to a judicial proceeding, of which he
was entitled to notice, and in which the court
had authority to relieve him, upon terms that
were reasonable, from the forfeiture of his
lands.
*It is said that the landowner will be wi [484]
out remedy if the commissioner of the echo
fund lihouid fail to institute the proceeding
in which the statute permitted such owner
to in^tervene by petition and obtain a re-
demption of his lands from the forfefturs
claimed by the state. It cannot be assumed
that the commissioner will neglect to dis-
charge a duty expressly imposed upon him
by law, nor that the courts are without power
to compd him to act, where his action be-
comes necessary for the protection of the
rights of the landowner.
It is further said that a forfeiture may
arise under the Constitution of Weaft Vir-
ginia despite any effort of the landowner to
prevent it; that although the owner may
direct his lands to be entered on the proper
Cem'r, 38 W. Va. 681, 684, in which Judge land books, and that he be diar^ed with the
W]Brannon,*deli¥ering the unanimous judgment I taxes due thereon, the custodian of such
171 ir. S. U. S., Book 43b l^ 225
4;i4-137
SUFRBMS COUBT OF THB XJhITBD BtATXS.
Oct- T
books may neglect to perfonn his dut^. Thus,
it is «rgued, the lands may be forfeited by
reason of the landowner not having been^ in
fact, charged on the land books with the
taxes due nrom him, although he iraa not re-
sponsible for such neglect We do not so in-
terpret the state Oonstitution or Hke statutes
enacted under it If the landowner does all
that is reasonably in his power to have his
lands entered upon the land books and to
! €au8e himself to oe charged with taxes there-
on, no forfeiture can arise from the owner
not having oeen ''charged on such books"
with the state tax. The state could not ac-
Suire any title to the lands merely through
tie neglect of its agent having custody or
control of its land books. Any stepe at-
tempted to be taken by the officers of the
state, based upon such n^lect of its agent, —
the tazpaver not being in default, — ^would be
without 1^^ sanction, and could be re-
strained by anycourt having jurisdiction in
the premises. We go further, and say, that
any sale had under the statute providing for
a sale, under the order of oourt, for the bene-
fit <(Mf the school fund, ol lands alleged to be
forMted by reason of their not having been
chaiged on the land books for five consecu-
tive years with the state tax due thereon,
would be absolutely void, if the landowner
wms not before the court, or had not been
duly notified of the proceedings, but had done
afl that he could reasonably do to have his
[4S6]lands entered *on the proper books and to
cause himsdf to be chaiged with the taxes
due thereon. If the state was not entitled
to treat them as forfeited lands, that fact
could be shown in the proceeding instituted
for their sale as lands of that charact^, and
the rights of the owner fully protected. In
the present case, it does not appear that any
evidence w«s offered tending to show that
the absence from the land books of any
charge <^ taxes on the lands claimed by tiie
plaintiff durinj^ five consecutive years after
their redemption by Randall, trustee, in
1883 wms due to sny neglect of the officers of
the state, or that the plaintiff, or those under
whom he asserts title, entered or attempted
to enter the lands upon the land books, or
that he or they caused or attempted to cause
the lands to be chaiged with taxes thereon.
But there wms evidence tending to show that
the requiranents of the Oonstitution were
mot met during any of the years fitMn 1883
to the bringing of this acticm. So far as the
record disdoses, it is a case of sheer neffledt
upon the part of tha landowner to pemrm
the duty required of him by the Oonstitntion
and statutes of the state.
Another point made bv the plaintiff in error
is that the provision of the Gonstitiitioii of
Virginia exempting tracts of less than 1,000
acres from forfeiture is a diserimination
against the owners of tracts containing one
thousand acres or more, which amounts to a
denial to citizens or landowners of the latter
class of the equal protection of the laws.
We do not concur in this view. The evil hi-
tended to be remedied by the Oonstitntion
and laws of West ^^rginia was the psnisteBt
220
failure of those who owned or AlainKnj to own
large tracts of lands, patented in the Inst esm-
tury, or early in the present century, to pot
them on the land books, so that tbe exteat
and boundaries of sudi tracts eould be easily
ascertained by the officers chaiged with the
duty of assessing . and collecting taxea
Where the tract was a small one, the proba-
bility was that it was actually occupied bf
someone, and its extent of bonndmzy eoidd
be readilv ascertained for purposes of simrsi
ment and taxation. We can w^ vnderstand
why one policy could be property adoptod as
to large tracts which the neoessitiee of the
public revenue did not require to be prescribed
*as to small tracts. The judiciary should h^4M
very reluctant to interfere with the taxi^
systems of a state, and should never do ss
unless that which the state attempts to de
is in palpable violation of the eonstitiitiansl
rights of the owners of property. Under th»
view of our duty, we are unwilling to %frfd
that the provision referred to is i^Nupsant te
the clause of the 14th Amendment Ibrhiddiv
a denial of the equal protection of the lavm
For the reasons stated, we bold that the
system established by West Viiginia. odsr
which lands liable to taxation mrs toilsited te
the state by reascm of the owner not hmvisg
them placed, or caussd to be piaced,
during five consecutive yean, on the
proper land books for ^^fltfim, and
caused himself to be charsed with the *^^^
thereon, and under whi(£, on petition i»
quired to be filed by the representative si
tne state in the proper circuit court, snch
lands are sold for the benefit <tf the school
fund, with liberty to the owner, uptm das
notice of the proceeding, to intervene by pe-
tition and secure a redemption c^ Ids ttads
from tbe forfeiture declared by paying ths
taxes and charges due upon them, is not in-
consistent with the due process of law re-
quired by the Constitution of the IMtsi
States or the Constitution oi the stata.
Having discussed all the points ■ujtgrslsd
by the assignments of error which we dsssi
it necessary to examine, we ccmdnde this
opinion by saying that as neither the pbia-
tiff nor tiiose under whom he daims tifis
availed themselves ot the remedy provided }rj
the statutes of West Virginia for maorief
the forfeiture arising from the fact that, dur-
ing the vears 1884, 1885, 1886, 1887, and 1M8^
the lanos in question were not charged as
the proper land books with the state taxai
thereon for that period or any part thsrsol.
the lorfeltars of sodi lands to the state wm
noc displaced or discharged, and the cire«t
court properly directed the jurr to find a vsr
diet for the defmiants. The plaintiff wu en-
titled to rseover only on the strength of his
own titla. Whether the defendants had a
good title or not the plaintiff had no each in-
tmst in or daim to tne lands as enabled hia
to maintain his action oi ejectment We eoa-
ear in what the sapttmm court e< espeab ei
lOrginia said *in a ease reemtfy dscftded: nscUT)
an action of ejectment the plamtifi must rt-
cover on the strength of his own title, and if
it iw«v thai the kgal title la in aaoUcr.
1897.
King t. Panther Lumber Co.
487. 488
whetiier tluit other be tbe defendant, the com-
BOBweatth, or eotno third penon, it ie raffi-
^■ttodfllBiiithoplilntifl: If it of^eusthat
tiM title bos been forfeited to the ooinmon-
vnHb for tko aoopojiMiii of taxei» or other
mam, aad there m no enrideBee that it hae
ben redfienwd by the owner, or reeold, or re-
iiaBted bj the oommonwealth, the preaump-
ttn ie that the title ia etiU outetandtiig in the
•BBOBOBwealth.'* JtenfeM t. hwiotm, 91 Va.
128.
TU judifment of f be Oiroyit Court a/ tbe
Uailei Stolet U offi/rmed.
HENRT a KING, Appt^
V,
PANTHER LUMBER COMPANT and Jer-
ome P. KrolL
<8ee & a Reporter's ed. 487-48&)
f9rfmture of Im^da im West Virginia — King
«. MuUin9, 171 U. 8, m [ante, tUh fol-
lewea.
L Tb» omlesloii to enter eertaln lands for
ttzacion upon tbe proper land books, as and
for the period required bjr tbe Constitution of
West Vlri^nla, operated to forfeit and devest
tke title and vest tbe same In said state.
1 KUtg ▼. Mnmm9, 171 U. & 404 {ante, 214],
followed.
[No. 24a]
Irgued April 28, 1898. Decided May SI,
1898.
APPEAL fnom a judgment ci tiie Gixouit
Oonrt of iiie United fiteitee for the Deitnot
of Weit VtrgiiiiA dieeolving the injunetioii
•ad dismieBUig a euit in equity brmight by
Henry G. King againat the Panther Lumbar
Company ef al., to enjoin defendants from
**^*TBg and removing timlier fmn a oertein
tnet of land in West Virginia. Affirmed.
The iMta are stKted in t^ opinion.
Mr. Hajmard F. Stilen for appellant.
Ko eonnad for appell
Mr. Justice Harlma delivered the opi4ioa
of the court:
Thia waa a suit in equity by tbe appellant,
a citizen of New York, against the appellee^
a oorpomtion of West Virginia, and oneKroU
a cituen ot the laAter state. Its object waa
to obMn % aeeree enjoining the defendant
fnom eottiiiff aod removing timber from a eer«
tain tinoi of land in West Virginia, of which
the plaintiff. King, claimed to be tiie owner.
The defendant coipomtioa denied the plain-
tiff'e ownership of the land, aod asserted title
initsell
*The land in dispute is a part of atractpur-[438]
porting to contain 500,000 acres, aoMi wtiich
waa patented in 1703 by the commonwealth
of Virginia to Robert Morris, assignee of Wil*
son C^y Nicholas. It is the same patent
which is referred to in tbe opinion in King v.
Mullins, just decided, 171 U. S. 404 [ante,
214].
It a{^>eared from tbe pleadings and exbibite
in tbe oause that tbe lands in controversy
were not entered upon tbe proper land books
for taxation or cbaoged with taxes for any
year from 1883 to 1895, inclusive.
Tbe final order in the cause was in these
words: "It having been held by this court
in the case of H. C. King v. M, B, MulUna et
ale,, recently tried in this court, tbe honora-
ble circuit ludffe presiding, that such omis-
sion of said land from the land books operated
to forfeit and devest tbe title to said tract of
kmd and vest tbe same absolutely in tbe eta;te
of Wedt Virginia, under the provisions of the
Conetitufeion of said state, before tbe pur-
chase of the same by complainant, and that
therefore compiainant has no title to said
land, the court ie of ^e opinion to diseolve
said injunetioii, reserving the n^ht to render
and file herein an opinion in writuig upon said
motion. It is therelore ordered, ediudged, and
decreed that the said injunotion be, and tbe
same is hereby, dissolved, and that the said
bills be dismissed, and that the defendants re-
cover of the compkinante their coets."
The contrdHng questions in this case are
the same as those decided in the case of King
V. Mullina. For tbe reasons therein given,
the judgment of the Circuit Court is affirmed.
to pre-emptUm righte, eee note to
Usttad States v. Fitssorald, 10 : 786.
Thet p^tente for Ifmd may he »et atide for
frmd, lee note to Miller ▼. Kerr, ft:g81.
171 U. A.
A» to errort in surveys and description* in
patent* for lands; how construed, — see note to
WatU V. Undsey. 5 : 428.
227
CASES
ABGUED AlTD DECIDED
SUPREME COURT
UNITED STATES
AV
OOTOBEE TEEM, 1898.
Vol. 171.
lS U
<
{
*
i
'
f
II
i '1
*'V^ M
>
.
■•:■';*',
■^1
r
THE DECISIONS
OF THE
Supreme Court of the United States
▲T
OCTOBER TERM, 1898.
[AatkMtlcftted eopy of opinion rocnrd •tricti j followed, except as to rach rtferenee words ani
flfores as are Inclosed In bracken.]
ttJCALIFORNIA NATIONAL BANK OF SAN
FRANCISCO, Plff. in Err.,
V.
BIOHARD P. THOMAS.
(8ia & C Reporter's ed. 441-^46.)
Federal quetUon, when necessary,
A, writ of error to a state coort will be dls-
■Issed when no Federal right was specially
sit ip or dalmed nntU after the judgment In
oonrt of the state.
[No. 36.]
Ulmiiiti JTof 4, 1898. Decided Ooioher
11, 1898.
IN KSBOB to the Supreme Court of the
State of Califomia to review a Judgment
of that oonrt reversing a judsment of the Su-
perior Court of the Ci^ and County of San
Frandaeo in fayor of the plaintiff, John
Chetwood, Jr» and asainst the defendant,
Bidiard P. Thomas, for a certain sum of
monej; tha oasa heinff remanded by the Su-
preme Court of the State to the trial coiurt,
with diraetioiia to enter a judgment in favor
of thadttedant^ Thomas. Dismissed on mth
Hon.
See aaaa oaae belaw, US Cal. 414.
StatsBMBt hj Mr. Justice Brown t
This HBM an action sounding in tort, but
■tjled a Ml of complaint in equity, for an
aoeoontliiff and settlement of a trust by
Ridurd P. Thomas, Bobert R. Thompson,
and Bolwrt A. Wilson. The action was in-
itttuted in the superior court of San Fran-
eifloo by John Chetwood, Junior, for himself
and as the representative of all the stodc-
holders oi the Califomia National Bank,
which bank had fafled and was at the time
in the hands of a receiver.
The bill aUeged that the faflure was due to
the n^ligence of Richard P. Thomas, presi-
4S]dent, Ro£iert R. Thompson, vice 'president,
and Robert A. Wilson, a director, oompoaing
the executive committee of the corporation,
171 U. S.
who had as such conunittee contrived to-
gether to injure and deceive the said corpora-
tion by neglecting to conform to its bv-
laws; and as such committee had made
worthless loans, wherry the money of the
corporation was wasted, misused, and lost to
the amount of about $200,000.
Among the duties and powers of the com-
mittee, as set forth in the by-laws adopted
by the bank, were an immediate supervision
of all the officers and business of the bank;
auditing all bills for current and other ex-
penses; discountinff and purchasii^ bills,
notes, and other cadences of debt; and re-
porting to the directors at MUsh r^^ar
meeting all bills, notes, and other evidences
of debt discounted or purchased bv them for
the bank. It was further provided by the
by-laws thcUt the president should have
general control and supervision of the bank,
and be responsible for its condition to the
directors. The vice president was to assist
the president in the oischarge of his duties.
The bill alleged that "it was the duty of
each of said members of the executive com-
mittee to exercise, concurrentiy with his as-
sociates on said committee, diligence and fi-
delity in performing the duties of said com-
mittee," but that 'They neffligentiy permit-
ted the cashier of said baiu: to control and
manage the whole business of the said bank
as he saw fit and without consulting or in
anywise informing said defendants," and
that by reason of the negligence of said de-
fendants, and the acts and misconduct of the
cashier, negligently permitted as aforesaid*
the bank suddenly failed on December IS,
1888, owing about $450,000, and the Comp-
troller of the Currency had placed a receiver
in charge of said bank and its affairs, and
thereafter levied an assessment of $75,000
upon the stockholders, which sum was all
paid except $20,000 assessed against Rich-
ard P. Tliomas, the president of the bank.
The prayer of the bill was that a decree
might be entered holding Richard P.
Thomas, Robert R. Thompson, and Robert
A. Wilson to an accounting of their trust,
231
442-440
BXTPBBMX COUBT OF THB UNITED &TATB&
Oct.
and ihat a joint and several mon^ judmnent
I443]be entered against them for the eum *of $400,
000, with leffal interest thereon from the
time of such lost.
The defendants answered the bOl, denying
the allegations as to ni^ligence on their part.
Upon the cause being submitted to the
court, a judgment was '^entered in favor of
the plaintiff and against Richard P. Thomas,
Bobert R. Thompson, and Robert A. Wilson,''
and the case was rcierred to a master, who
found the actual loss of the bank to be $166,-
919. Before a final judgment was rendered
bj the court, however, the suit was dismissed
by the plaintiff as to Robert R. Thompson
and Robert A. Wilson, from whom had been
collected the sum of ^7,500, thus leaving a
net loss to the bank of $139,419, and judg-
ment for this amount was rendered against
Richard P. Thomas.
Thereupon, Thonttui appealed to the su-
preme court of the state of California, bv
which eowrt the judgment was reversed,
and the case remandea to the trial court,
with directions to enter a judgment in favor
•f the defendant Thomas. (113 Cal. 414.)
The plaintiff thereupon sued out a writ of
error to this court, assigning as the pfin-
eipal eround to give this court jurisdiction
that the judgment of the supreme court of
the state was rendered without due or any
inroeess of law, and deprived the plaintiff of
its property without due process of law, con-
tmry to Ihe Constitutioo, cftc, and Revised
Btetultes, I 6186, relarting to national banks.
Messrs, Robert Bae, E. G. Knapp,
and Jolui Clietwood^ Jr., for plaintiff in
error.
if r. A. S. Bleketta for defendant in er-
ror.
Mr. Justice Brown delivered the opinion
of the couit:
Unless the plaintiff in error was denied
some right under the Constitution or stat-
lutes of the United SUtes, ''speciaUy *8et up
and claimed" by it, this writ of error must be
dismissed.
The bill of complaint, filed in the superior
eourt of San Francisco by a stockholaer of
the California National Bank, sought to
charge three directors of the bank with neg-
ligence in the performance of their trust,
and particularly in faflinff to comply with
certain by-laws of the bank, by which large
amounts of money were lost to the bamc,
which the bill prayed that the defendants
might be decreea to make good and restore.
The bank was chartered under the national
banking act and the by-laws were adopted
in pursuance of Revised Statutes, section
5136, whidh authoiizee aasociations in-
corporated under the act to define the duties
of the president and other officers and to res-
ulate tne manner in which its general busi-
ness shall be conducted. Cer&in transac-
tions of the directors are also idlesed to be
infractions of Revised Statutes, section 5200,
for which the directors are made liable in
•eotion 5239, aHhoaflh no vidationB of this
section are specificafly alleged in the bill.
Demurrers were interposed by the several
232
defendants and overruled, when
filed denying in general the aUegationa of the
bilL The court sulMcquentiy entered judg-
ment against the three directors, biU, being
unable to determine the proper amount, ap-
pointed a referee to take proof of the amount
appearing to be due and owing to the bank
from certain named individuals. Upon sock
report having been made, a stipulraon was
entered into between theplaintiff stockhidd-
er and the defendants Tnompeon and Wil-
son, whereby the plaintiff renounced and
withdrew his action against such defendants,
and the court, upon such stipulation, oitored
a judgment dismissing the action against
them. The court thereupon made a findiag
of all the facts in the case, among whidi was
one to the effect that there had been collected
of the two defendants Thompson and Wilson
the sum of $27,500, leaving a net ioes to the
bank of $139,419, for which judgment was
entered against the defendant Thomas.
Thomas thereupon appealed to the suprcnt
court of the state from the judgment so en-
tered.
*That court was of opinion that the cob-[
plaint, thouj^h entitied ^'a bill in eijuity for
the accounting and settiement of m trust**
contained nothing more than a diarge «s
delicto against the directors for a breach and
nonperformance of their duties. It did not
consider it necessarjr to dispose of tJie ob^
tions to the complaint; but assumed, with-
out deciding, that the complaint was soft-
cieni to state a cause .of action in its aver-
ments of misconduct. It tiien proceeded ts
decide (1) that the complaint was one
sounding in tort, and tiiat the defendants
were charged as joint tortfeasors; that theb
n^ligence was pleaded as their joint negket
to perform duties, not individually imposed
upon them, but collectively undertaken as
members of the executive committee; that ia
the findings of fact no mention was made of
any dereliction of duty on <the part of Thoaip-
son and Wilson, and that there was an ahs>
lute failure by the court to find upon the
most material issues of the case— the jotit
n^ligence of the three defendants, which
alone, it was alleged, had occasioned loss ts
the bank. "Such," said the court, "it the
cause of action pleaded in the compUiat
The findings, if it be conceded that th^ gtvi
evidence of a meritorious cause of actloa
affainst the defendant Thomas, do so becaast
of a showing that he was negligent, not with
the other defendants and as monber of tht
executive committee, but that he was individ-
ually and separately n^ligent in the per-
formanoe of his duties as president. Bat
this is not the cause of action pleaded against
him, and it is well setUed that, where tht
case made out by the findings is a differed
case from that presmted by the pleadian,
the judgment will be reversed ; for th^ rriief
decided must be the relief sought, and a va-
riance, even if it be such as could have bsM
cured b;^ amendment, is fatal to the vslidity
of the judgment." The court furthei bcM
(2) that, as the defendants in error wert
sued joinUy for a tort, a withdrawal of tht
action in favor of Thompson and Wilsoa ope-
rated also to rdease the defenda*^t ThoofisA.
171 U. &
1888.
Cauvornia National Bank y. Statblbr.
445-448
TUf wms in fact the main reason given for
its eondnsion. The court thereupon ordered
the judgment to he reversed, and the cause
remanded with directions to enter judgment
in favor of the defendant Thomas.
M] •In aU this record there was no Federal
right spedaUy set up or claimed by the
pUintiir in error until after the judgment in
the supreme court, when a petition for writ
ef error was filed by the California National
Bank, a oodefendant with Thomas in the
original action, in which various allegations
irare made of a denial of Federal hghU. But
tisoming that a Federal question might be
•itorted from the allegations of the com-
plaint, it is sufficient to say that the case
was not disposed of upon the merits of such
eomplainty which was treated as sufficient,
but upon a variance between its allegations
and the proofs, and upon the settlement made
with the defendants Thompson and Wilson,
and the withdrawal of the action against
them. These were purely questions under
the law of tha state, as to which the opinion
of the supreme court was conclusive. Not
only was no suggestion of a Federal question
made to the trial court or to the appellate
eonrt, but there was nothing to indicate that
the judgment rendered could not have been
siven without deciding a Federal question.
Indeed, the opinion snows that the cause
was decided, as it might well have been,
■okly upon grounds not involving such ques-
tion.
Whether a judsmen^ should be ordered in
favor of Thomas K>r a aismissal of the action
against him or simply for a new trial, in-
volved merely a question of the procedure
mder the law of the stato. The court mi^ht
bave been, and probably was, of the opinion
that an action would lie upon the separate
liability of Thomas, and have reserved for'
fntare consideration the question whether
the dismiseal of this action upon a joint lia-
bility would operate as estoppel a^inst a
new action upon his individual liability.
There was no Federal question involved in
the disposition of this case, and tha writ of
error is therefore di9mis$ed.
17} CAUFOBNIA NATIONAL BANK et at,
Plffs. in Err.,
V,
THOMAS K. 8TATELER et oL
(See & a Reporter's ed. 447-449.)
What is not a final order.
Aa order directing the trial court to enter
an order for turning over certain moneys and
•ecorltlee received from certain persons, aft-
er maklns reasonable allowances for ''costs,
dislrarsenients, and attorneys' fees" as con-
templated by law, Is not a final order for the
perpose of a writ of error.
[No. 87.]
Biihmitted May 4> ^S98. Decided Ootoher
17, 1898.
ITl V. 8.
IN ERROR to the Supreme Court of tha
State of California to review a decision of
that court reversing an order made by the
Superior Court of the City and County of
San Francisco denying a motion to require
the plaintiff Chetwooa to appear and riiow
cause why monm collected of defendants
ThompsoQ and Wilson and certain stock and
other securities should not be turned over
to Thomas K. Sta^eler as agent of the stock-
holders of the California National Bank and
direct inff the trial court to enter the order
prayed for, after allowing plaintiff for his
costs, etc On motion to dismiss. Die*
mieeed.
See same case below, 118 Cal. 649.
Statement by Mr. Justice Br o was
This was an intorvening petition by State-
ler in the case just decid^ of the California
National Bank v. Thomae [ante, 231] to ob-
tain the possession of the sum of $27,500
paid to the plaintiff Chetwood by the de-
fendants Thompson and Wilson in the settle-
ment of the suit of Chetwood against them
as codefendants with Thomas.
Folding the insolvency and winding-up
proceedings of the California National Bank,
and subs^uent to the appointment of a re-
ceiver by the Comptroller of the Currency,
the petitioner Stateler was elected "agent"
by the stockholders pursuant to the i^ of
Congress of August 3. 1892 (27 Stat at L.
345). As this act provided that the per-
son so dected agent **shall hold, control, and
dispose of the assets and property of such
association which he may receive under tha
torms hereof, for the benefit of the share-
holders of such association," Stateler ap-
plied by affidavit to the superior court of the
city and county of San Francisco, in which
the Chetwood action was then pending, for an
order upon the plaintiff Chetwood to appear
and show cause why the moneys collectod of
Thompson and Wilson, as well as certain
stock and other securities, should not be
turned over to the affiant as such agent.
The motion was opposed upon the gpround
that of the whole number of 2,000 shares,
1,020 shares onlv were voted to elect State-
ler as agent of the bank, and that they were
either owned or controlled by Richard P.
Thomas, the former president, against whom
there was a judgment outstanding in *favor[4k4S]
of the stockholders in the amount of $139,-
419, besidei aa unpaid asseesment of $20,-
000 levied upon Um aa a stockholder by the
Comptroller of the Currency.
Upon lUffidavits read at uie hearing of tha
motion tha oourt denied tha order prayed for,
whereupon Statelar appealed to the supreme
court of tha state, lliat court held that tha
regularity of the appointment of the agent
could not be questioned in a proceeding of this
kind, inasmuch as it had been approved by
the Comptroller of the Currency, and that
the agent's demand to have the mon^ paid
over to him should have been granted. Tha
court thereupon reversed the order "with di-
rections to the trial court to enter the order
prayed for, after making reasonable i^ow-
ance to the plaintiff Chetwood for his coste,
disbursements, and attorney's fees in sala
233
448-400
SUFRBMB OOUBT OV THB UVITBO StATBS.
Oor.
action as contemplated by law." An appll-
cation lor a lieanng in Mnc was made and
denied by the supreme court, whereupon the
bank ana Chetwood, as representatiye stock-
holder, and the party upon whom the order
was made, sued out a wnt of error from this
court, which the defendants in error moTcd
to dinniss.
Messrs, Robert Bae and fi. G. Xaapp
lor plaintiff in error in opposition to the mo-
tion.
Messrs, Robert Brent Mitebell, WiU-
iam M. Pierson, and Robert A, Friedrioh
for defendant in error, in favor of the mo-
tion to dismiss.
BCr. Justice Browa deliTcred the opinion
of the court:
Motion is mad% to dismiss this writ of
arror upon the ground that no Federal ques-
tion is involved in the case.
Without, however, expressins an opinion
upon this, we think the case will have to be
dismissed upon the groimd that the order
appealed from is not a final order witiiin the
decisions of this court. The affidavit of
Stateler, which is the basis of this proceed-
ing, sets forth, not only the payment of $27,
600 in cash 1^ Thompson and Wilson, but
avers upon information and belief that there
[4A0]was also transferred to the ^plaintiff, by said
defendanlts, a larse block of nock belonging to
them in the California National Bank, which
is the property of its stockholders, and the
praver is for an order turning over to the
petitioner the moneys above mentioned, and
"all stock and other securities of every sort,
nature, and description, received by him
from defendants Thompson and Wilson in
this action."
While the opinion of the court deals only
with the moneys paid by Thompson and Wil-
son, the order appealed from directs tibe trial
court to enter the order prayed for "after
making reasonable allowances to the plain-
tiff Chetwood for his costs, disbursements,
and attorney's fees in sa{d action as contem-
plated by law." This order lacks finali^ in
two particulars. It would still be competent
to prove that Chetwood had received the
bkxuc of stock set up in Stateler's affidavit,
and it would certainlv be necessary* for Chet-
wood to prove up his costs, disbursements,
and attorney's fees before the amoimt for
which he is ultimately made liable could be
ascertained.
The settled rule is that if a superior court
makes a decree fixing the liability and rights
of the partly, and rmrs the case to a master
or subordinate court for a judiciid purpose,
such, for instance, as a statement of account
upon which a further decree is to be entered,
the decree is not final. Craighead v. Wilson,
18 How. 100 [16: 882] ; Bee^ v. Buss^, 10
How. 288 [16:068] ; Keystone Manganese d
Iron Co, V. Martin, 182 U. 8. 01 [88:276] ;
Lodge v. TweU, 186 U. S. 232 [34: 153] ; Mo-
Gourkey v. Toledo d OhioC. Railway Co, 146
TJ. 8. 636 [36:1070] ; Union Mutual Life Ins,
Co. V. Kirehoff, 160 U. 8. 374 [40:461] ; HoU
kinder v. Fechheimer, 162 U. 9. 326 [40:086].
The writ of error is therefcre dismissed.
234
THE G. B. BOOTH.
(Set & a Reporter's ed. 450-462.)
Loss hy peril of the sea — prowimate
aooident of natkgation,
t. Damage to iragar, part of tlM cargo of a ahlpw
while unloading at the dock In her port of
destination, caused by sea water whidi ea-
tered the ship through a hole made In her
side b7 the ezplosloD, without her fault and
purely bj accident, of a case of detonators,
also a part of her cargo. Is not "a loas or
damage occasioned hj the perils of the sea or
other waters," or bj an "accident of naviga-
tion of whatsoeTer kind," within the ezcep>
Uons In th* bill of lading.
2. The explosion, and not the sea water, was
the proximate cause of the damage to the
sugar, and this damage was not occasioned
b7 the perils of the sea, within the exceptions
In the bill of lading.
8. The damage to the sugar, attributable, not
to a peril of the sea, but to the explosion of
part of the cargo after the ship had ended
her Tojsge aod bad been finallj and Inten-
tionally moored at the dock, there to remala
until the cargo was takeo out of her, cannot
be considered as "occasioned bj accidents of
naTlgatlon."
[No. 10.]
Argued December 17, 1897. Decided OeiO'
ber 17, 1898.
ON CBRTIFICATE from the United SUtes
Circuit Court of Appeals for the Second
Circtiit, certifying a question of law for in-
structions, upon an appeal from a decree dis-
missing a libel in admiralty filed in the Dis-
trict Court of the United States for the
Southern District of New York by the Ameri-
can Suffar Refining Company against tha
steamship G. R. Booth, for damage to cargo.
Question answered in the negative.
See same case below, 64 Fed. Rep. 878.
Statement by Mr. Justice Grays
Upon an appeal from a decree of the dis-
trict court 01 the United States for the
southern district of New York, dismissing a
libel in admiralty by the American Sugar Bo-
fining Company against the steamship O. R.
Booth, for damage to carflOt 64 Feo. Rep.
878), the circuit court m aopeds oertiflad
to this court the following statamcnt of faets
and question of law:
"On July 14, 1801, tha steamship Q. R.
Booth, a larffe seaworthy steal vessel, was
Ijrinff at the cu>ck in the waters of the harbor
of New York, discharging a general cargo
which had been laden on board at
Hamburg for transportation to and da-
livery at New Yore dty. Part of the
cargo laden on board at Hamburg consisted
of twenty cases of detonators.
'^tonators are blasting caps used to ex-
plode dynamite or gun cotSon, and condst of
a copper cap packS with fulminate of mar^
curv. In use, the cap is placed in contact
with dynamite; a fuse is pushed Into the
cap until It meets the padong; tha fuse Is
liffhted; and when the fire readies tha fnl-
nunate it explodes it, thus cocplodinff tha
[46C
1898.
The G. R. Booth.
450-45S
dyiuumte. The detonators were made in
GemiAny, and were packed according to the
r^gulatMna prescribed by German law,
adoftted and enforced for the purpose of
tliininatiny risk of danger in handling and
il]*traD8i>orting them. When thus packed, the
impninity from danger of an accidental ex-
plosion is supposed to be complete, and they
are transported and handled like ordinary
merehandise by carriers and truckmen with-
oat the use of anv special precautions to
tToid risk. They do not explode when sub-
jected to violent shock, as when thrown from
fueb a height above the ground as to shatter
in fragments the cases in which they are
psckef l^y were customarily stowed and
transported in vessels like ordinary merchan-
dise^ indiscriminately with the other cargo ;
and until the present occurrence, although
millions of cases had been shipped and car-
ried to all parts of the world, no accident had
ksppened, so far as is known.
*The detonators were stowed with other
eaigo in afterhold No. 4. While the steam-
■hip was being unladen, one of the cases ex-
l^ooed, makinff a largie hole in the side of
the ship, in the No. 4 hold, besides doing
other damage. In consequence of the open-
iog thus made in the ship's side, sea water
rapidly entered in the No. 4 hold, beyond the
eontrol of the capacity of the pumps, and
ptsaed from the No. 4 hold through **he par-
tition into No. 3 hold. In No. 3 hold there
wts cargo belonging to the libellant, consist-
ing of sugar, which had not as yet been dis-
charged. The sea water thus entering the
hM damaged the sugar extensively. The
hoxes of detonators were stowed and handled
la the usual way; and the explosion occurred
{HiTdy by acciaent, and without any fault
or negligence on the part of any person en-
gtged in tansporting them or in discharging
the cargo.
'The bill of lading under which the suffar
of the libellant was carried contained the
following dause: The ship or carrier shall
not be liiable for loss or diRmage occasioned
by the perils of the sea or other waters; by
fire, from any cause or wheresoever occur-
ring; by barratry of the master or crew; by
oianies, pirates, robbers or thieves; by ar-
Ml end Teetndnt of princes, rulers, or peo-
ple; Mr explosion, bursting of boilers, break-
sge of shafts, or any latent defect in hull,
ittsdiinery, or appurtenances; by collision,
stranding, or other accidents of navigation,
of whatsoever kind.'
Kt] ^^Upon these facts the court desires In-
itmetfons upon the following question of
Uw, vis.: Whether the damage to libellant's
nigar caused by the sea water whidi entered
the ship through the hole made in her side
by the exploeion, without her fault, Is a loss
or damase occasioned by the perils of the
•ea or other waters,' or by an 'accident of
BSTlgation of whatsoever kind,' within the
above-mentioned exceptions in the bill of
lading.*
Mr. Hairlastoa Putaaaa. for the ap-
pdlant: *^
,The learned dktrict judge held: ^The'
171 IT. tk
explosion did no direct damage to the sugary
nor »n any manner directly affected it. By
bursting a hole in the side of the ship, sea
water was let into the hold, which subse-
3uently made it way among the sugar and
amaged it. Such damage is a sea peril.
The Xantho, L. R. 12 App. Gas. 503. The
burden of proof is upon the libellant to show
that it miffht have been avoided by the ship
by reasonable care.*'
The Q, R, Booth, 64 Fed. Rep. 879.
The absolute liability of a common car-
rier for any loss except the aot of God and
the King's enemies has been settled in En-
glish law since the reign of Elizabeth.
1 Co. Inst 89; 1 Comyns, Dig., p. 212, ed.
Dublin, 1785; Tomphina v. Ulster, Fed. Gas.
No. 14,087a; Nugent v. SnUth, L. R. 1 0. P.
Div. 19; Uljpian, Dig. lib. IV. tit. IX., 5 8;
Casaregis, Disc. X^II. 88; Baxter v. Le-
kmd, Abb. Adm. 348.
By dangers of the sea are meant all una-
voidable accidents from which common car-
riers, by the general law, are not excused un-
less they arise from the act of Qod,
To bring a disaster within tiie scope of
the phrase "act of God," for the purpose of
reli«nng the common carrier from responsi-
bility, it is necessary to show that it oc-
curred independent of human action or neg-
lect.
Dibble V. Morgan, 1 Woods, 411.
Perils of the sea are those accidents pe-
culiar to navigation, that are of anextraordi-
nary character, or arise from an irresistible
force or from an overwhelming power whi<di
cannot be guarded a^^ainst by the ordinary
exercise of numan skill and prudence.
14 Am. & Eng. Enc. Law, 323 ; Holt, Ship-
ping, 2d ed. (London, 1842) 412; Park, Ina.
chap. 3, p. 61, 3d ed., Boston, 1800.
Losses by perils of the sea are now re-
stricted to such accidents or misfortunes as
proceed from mere sea damage; that is, sudk
as arise ew vi dwina from stress of wea/Uier,
winds and waves, from lightning and tern-
pestp rodcs and sands, etc.
Marshall, Marine Ins. 5th ed. 886; 2 Ar-
nould, Ins. 6th ed. 1887, 754; The Reeaide,
2 Sumn. 671 ; The Majeetio, 166 U. S. 866,
41 L. ed. 1044; The Mohler, 21 Wall. 280,
233, 22 L. ed. 485, 486; Revue Internationale
dii Droit Maritime, vol. X. 207 ; New Jersey
Steam Nav, Co. v. Merchants* Bank, 6 How.
344, 383, 12 L. ed. 465, 482.
A daina«;e from explosion is not a loss by
perils of the sea.
The New World v. King, 16 How. 469,
476, 14 L. ed. 1019, 1022: Buckley v. Naum-
keag Steam Cotton Co. 1 Cliff. 322, Affirmed
24 How. 386, 16 L. ed. 599; The Mohawk,
8 WaU. 153, 162, 19 L. ed. 406, 409; Dun-
lap V. The Reliance, 2 Fed. Rep. 249 ; Posey
V. Scoville^ 10 Fed. Rep. 140; Rose v. Ste-
phens d C. Transp. Co. 11 Fed. Rep. 438;
The Sydney, 27 Fed. Rep. 123; Orimsley v.
Hankins, 46 Fed. Rep. 400; Warn v. Davis
Oil Co. 61 Fed. Rep. 631.
In the present case the process of dib-
charging was under the control of the vessel,
and the casualty was such as in the ordinary
course of hoisting out cargo does not hap-
pen if reasonehle care is used. In the ab-
235
SUPKBMB COUBT OF THB UhITKD StATU
Oct. Tsxm,
eenoe of explanation by the claimant such
an accident oannot be deemed ineyitable.
Inland d 8. Ooaating Co. v. ToUon, 139 U.
8. 665, 35 L. ed. 272; Brcen v. New York
C. d H. B. B. Co. 109 N. Y. 297 ; The Nitro-
£lycerine Case, 15 Wall. 624, 637, 638, 21
u ed. 206, 211, 212.
The idea that contact of sea water with
the cargo makes a prima facie sea peril,
without regard to the way the water made
its way into the ship, is not the law of this
court.
This inflow of water is not a cause. It is
itself a natural result of the bursting of the
•hip below the water line. The real cause
is the explosion which opened the bilge
plates.
Phillips, Ins. S 1132; LouiHana Mut. Ina.
Co. V. Tweed, 7 Wall. 44, 19 L. ed. 65; MO-
waukee d 8t, P. R. Co. v. Kellogg, 94 U. S.
470, 24 L. ed. 257 ; JBina P. Ina. Co. ▼. Boon,
95 U. S. 130, 24 L. ed. 399; Waters y. Mer-
chants' LoiUaville Ina. Co. 11 Pet. 213, 9 L.
ed. 691 ; Dole y. New England Mut. Marine
Ina. Co. 2 Cliff. 394; The Chaaca, L. R. 4
Adm. k Ecd. 446 ; Brovm y. 8t, Nicholaa Ina.
Co. 61 N. y. 332.
In case of a loss or damage to goods cov-
ered by a bill of lading, the presumption of
the law is that such loss or oamaee was oc-
casioned by the act or default of the carrier,
and the burden of proof is upon the carrier
to show that it arose from a cause for which
he is not responsible.
The William Taher, 2 Ben. 329 ; Ctdlm t.
Butler, 5 Maule & S. 461 ; The Ewe, 14 U.
8. App. 627, 67 Fed. Rep. 399, 6 C. C. A.
410.
Neither is such an explosion an accident
of navigation, within the exceptions of the
bill of lading.
Hanseatische Gterichtszeitung, Nov. 17,
1886, p. 276.
The later English decisions enlarging the
import of the term ''perils of the sea" in a
bill of lading, and reversing the former can-
ons of conetruction of those contracts, will
not be followed by this fK)urt.
King t. Shepherd, 3 Story, 349 ; Lloyd y.
General Iron 8crew Collier Co. 3 Hurlst. & C.
284 ; Qrill y. Oeneral Iron Screw Collier Co.
L. R. 1 C. P. 600, L. R. 3 C. P. 476; Restric-
tions by Contract upon the i^iiabiU^ of Ship-
owners as Carriers of Goods, by J. E. Gray
Hill, London, 1891, p. 2; The Duero, L. R. 2
Adm. & Ecd. 393; Chartered Mercantile
Bank y. Netherlanda India Steam Nai). Co.
5 As^. M. L. Cas. 66, L. R. 10 Q. B. Diy. 532 ;
Eamilton y. Pandorf, L. R. 12 App. Cas. 518.
These English decisions will not be fol-
lowed by thu court.
Hazard y. New England Marine Ina. Co.
8 Pet 557, 584, 8 L. ed. 1048, 1053; Oarri-
guea y. Come, 1 Binn. 692 ; Merrill y. Arey, 3
Ware, 215.
In frequent instances the courts have de-
clared the carrier by sea to have been with-
out the slightest negligence, and yet respon-
sible for nondeliYery of the cargo that has
been intrusted to the vessel.
Hyde v. Trent Nav. Co. 5 T. R. 389; Nu-
gtnt v. Smith, L. R. 1 C. P. Div. 19.
tse
Even jarrinff, heat, and concussion may
produce an explosion of such blasting caps.
Mather v. RUlaton, 160 U. S. 391, 39 L. ed.
464.
In a general ship, the damage <^ one part
of the cargo to another can never be attrib-
uted to a peril of the sea, unless firat initi-
ated by some external cause.
Brouaaeau v. The Hudson, 1 1 La. Ann. 427.
Mr. J. Parker KlrHm, for the app^ee:
The proximate cause of the loss was tht
entrance of sea water through the ship's side
without the ship's fault.
Milwaukee d St. P. R. tfo. y. Kellogg, 94
U. S. 469, 474, 24 L. ed. 256, 269; The Zmm-
tho, L. R. 12 App. Cas. 503.
The character of the loss as such must be
regarded first; and, finding the immediate
cause of the damage to be an inflow of sea
water without the ship's fault, — a loss pe-
culiar to sea carriage, — it is unnecessary to
examine or consider the cause of that cause.
Oeneral Mut. Ina. Co. v. Sherwood, 14
How. 351, 366, 14 L. ed. 452, 458.
In looking for the proximate cause of the
lo6s, if it is found to be a peril of the sea we
inquire no further; we do not look for the
cause of that peril.
The maxim has been applied in this seme
in Howard P. Ina. Co. v. Noncich d N. T.
Tranap. Co. 12 Wall. 194, 20 L. ed. 378;
Orient Ina. Co. v. Adama, 123 U. 8. 67, 31
L. ed. 63; Weatem Trafiap. Co. v. Downer,
11 WaU. 129, 20 L. ed. 160; Memphia dC.R.
Co. v. Reevea, 10 Wall. 176, 19 L. ed. 909;
Morrison v. Davia, 20 Pa. 171, 57 Am. Dec.
695; Scheffer v. Waahington City, V. M. d
G. 8. R. Co. 105 U. S. 249, 26 L. ed. 1070:
Northweat Tranap. Co. v. Boaton Mmrima
Ina. Co. 41 Fed. Kep. 793; City P. Ina. Co,
v. Corliea, 21 Wend. 367, 34 Am. Dec 258;
Letoia v. Springfield P. M. Ina. Co.'lO Gray,
159; Kenniaton v. Merrimack Mut. Ina. C^
14 N. H. 341, 40 Am. Dec 193; Bahcodt v.
Montgomery Cotmty Mut. Ina. Co. 6 BarK
637 ; Grim v. Phomiw Ina. Co. 13 Johns. 451.
The occurrence of a loss j>eculiar to wa
carriage, from one of the dangers incident to
transportation of goods by water, in a wa*
worthy ship, without contributing fanlt by
the carrier, is within the exception, and tlie
carrier is excused. In Clark v. BomicWZ,
12 How. 272, 282, 13 L. ed. 985, 989, damage
to car^ by sweat in a ship's h<dd, withovt
the ship's fault, was held to be a Iom hj
"perils of the sea" within an exoeptioB ia
the bill of lading.
The same principle is admitted in The
Star of Hope, 17 Wall. 651, 654, 21 U ed.
719, 721 ; Hoatetter v. Park, 137 U. S, 30, $4
L. ed. 568; Hihemia Tna. Co. v. St. Lowif
Tranap. Co. 120 U. S. 166, 30 L. ed. 621.
Damage caused by the entrance of sea wa-
ter through theship^s side, without the ship't
fault, is a loss "by an accident of narifra-
tion," and also by a "oeril of the sea and
other waters," within the moaning of theie
words in a policy of insurance on goods.
Gow, Marine Ins. 349.
If this action had been brought by the o«»>
er of the sugar against an uisurance eoa-
lany insuring it under this form of pott9.
it is not to be doubted that the court wodl
171 V. t.
fi
1888.
The Q. R. Booth.
462-454
find the loss was caused by a "peiil of the
tt
Carruthers v. Sydehotham, 4 Maule & S.
77; Davidson ▼. Bumand, L. R. 4 C. P. 117;
Union Ins. Co. v. Smith, 124 U. S. 406, 31
L ed. 497; Cullen y. Butler, 6 Maule & S.
461.
The meaning of the words, ''a loss by an ao-
ddent of navigation," or ''by a peril of the
tea," if the some in a bill of lading as in a
foods policy. The carrier's negligence, or
&e unseaworthiness of his ship, may exclude
the operation of the exception, while negli-
Sice conducing to the loss would not be a
ense to an underwriter; but this result
does not flow from any different meaning of
the ssme words occurring in two maritime
iostriUDentB.
In the present case the loss would be with*
fai the words, whether in a policy or in a bill
of lading.
TkeXantho, L. R. 12 App. Cas. 503 ; Ham-
Utonv. Pandorf, L. R. 12 App. Cas. 618;
TktSouthgate [1894] P. 329; The Creasing^
Urn [1891] P. 152; The Glendarrooh [1894]
P. 226; rjke Ewe, 14 U. S. App. 626, 67 Fed.
Kep. 399, 6 C. C. A. 410; The Caetleventry,
69 Fed. Rep. 476, note.
The casualty occurred during the voyage.
Although the ship had arrived at the dodc,
the cargo which was damaged was still on
board and in her custody, under the terms
of Uie contract oi carriage.
8eoU V. Baltimore, C. d R. 8. B. Co. 19
Fed. Rep. 66; Constable v. National 8. 8. Co.
154 U. d. 61, 63, 38 L. ed. 903, 911.
M] *Kr. Justice QfrsLj delivered the opinion
of the court:
This was a libel against the steamship G.
R. Booth, for damage done to sugar, part of
ber cargo, under the following circumstances:
Another part of the cargo consisted of
twenty cases of detonators, Ming copper caps
packed with fulminate of mercury for ex-
ploding dynamite or gun cotton. While she
vas being imladen at the dock in her port of
destination, one of the cases of detonators ex-
ploded, purely by accident, and without any
ftult or negligence on the part of anyone en-
nged in carrying or discharging the car^.
The explosion made a large hole in the side
of the ship, through which the sea water
rapidlv entered the hold, and greatly dam-
aged the sugar.
The bill of lading of the sugar provides
that ''the ship or carrier shall not be liable
for loss or damage occasioned by the perils
of the sea or other waters," or "by collision,
sending, or other accidents of navigation,
of whatsoever kind."
The quesuon certified by the circuit court
of appeals to this court is whether the dam-
age to the sugar is within these exceptions
in the bill of Uding.
The case turns upon the question whether
the damage to the su^ar by the sea water
^ch entered the ship through the hole
made in her side by the explosion, without
her fault, was "occasioned oy the perils of
**itbe sea;" or, in other words, *whetner it is
tlie explosion, or a peril of the sea, that is to
be considered as the proximate cause of the
171 V. 8.
damage, according to the familiar maxim,
Causa proxifna non remota spectatur.
The many authorities bearing upon this
point, fully cited and discumd in the
learned arguments at the bar, have been
carefully examined. But only a few of them
need be referred to, because judgments
heretofore delivered by this court afford
suffidenlt guides for the d«ci9ion of this case.
In an early case, in which the action was
upon a bond, given under the embargo act
of December 29, 1807 (2 Stat at L. dh^>.
5, § 2, p. 453), to reiland goods in some port
of the. united btates, "the dangws of the
seas only excepted," the vessel was irresist-
ibly driven by stress of weatner into Porto
Rico, and the careo was there landed and
sold by order of the governor, with which
the master was obliged to comply. It was
argued for the United States, that the eoods
arrived in Porto Rico in safety, and the
party had the full benefit of them, and prob-
ably at a hiffher price than if he had landed
them in the United States; and that the sea
was not the proximate cause of the loss.
But this court held that the case was within
the exception in the bond, because the vessel,
as said oy Chief Justice Marshall in deliv-
ering judgment, ''was driven into Porto Rico,
and the sale of her cargo, while there, was in-
evitable. The dangers of the sea placed her in
a situation which put it out of the power of
the owners to reland her cargo within the
United States. The obligors, then, were
prevented by the dangers of the seas from
complying with the condition of the bond;
for an effect which proceeds, inevitably and
of absolute necessity, from a specified cause,
must be ascribed to that cause." United
States V. Hall, 6 Cranch, 171, 176 [3: 189,
190].
InWaters v. Merchants^ LouisviUe Ins. Co.
11 Pet. 213 [9: 691], the circuit court certi-
fied to this court the question whether a pol-
icy of insurance upon a steamboat on the
western waters against the perils of t^e rivers
and of fire covered a loss of the boat by a
fire caused by the barratry of the master and
crew. This question was answered in the
negative, for reasons stated by Mr. Justice
Story as follows: "As we understand the
first ^question it assumes that the fire wa8[454]
directly and immediately caused by the bar-
ratry of the master and crew as the efficient
agents ; or, in other words, that the fire was
communicated and occasioned by the direct
act and agency of the master and crew, in-
tentionally done from a barratrous purpose.
In this view of it, we have no hesitation to
say that a loss by fire caused by the barratry
of the master or crew is not a loss within the
policy. Such a loss is properly a loss at-
tributable to the barratary as its proximate
cause, as it concurs as the efficient agent,
with the element, eo instanti, when the in-
jury is produced. If the master or crew
should barratrously bore holes in the bottom
of the vessel, and the latter should thereby
be filled with water and sink, the loss would
properly be deemed a loss by barratry, and
not by a peril of the seas or rivers, though
the flow of the water should co-operate In
'237
454-457
8C?BEMS COUBT OV THB UnITSD StAT£8.
Oct.
producing the sinkiiig.'' 11 Pet 219, 220
[9:694, 095].
The maxim has been largely expounded
and defined by this court in cases of insur-
ance against fire.
In Jjouisiana Mut. In9uratice Co, t. Tioeed,
7 WaiL 44 [19: 65], cotton hi a warehotise
was insured against fire by a policy which
provided that the insurers should not be lia-
^ble for losses which might ''happen or take
'place by means of any invasion, insurrection,
riot, or civil commotion, or any military or
usurped power, explosion, earthquake, or
hurricane." An explosion took place in one
warehouse, resulting in a conflagration which
spread to a second warehouse, and thence, in
tne course of the wind blowing at the time,
to a third warehouse containing the insured
eotton. This court hdd that the loss of the
cotton was caused by the explosion, and
therefore the insurer was not liable; and,
speaking bv Mr. Justice Miller, said: "The
only question to be decided in the case is
whether the fire which destroyed plaintiff's
cotton happened or took place by means of
the explosion; for if it dio, the defendant is
not liable by the enress terms of the con-
tract. Tliat the explosion was in some sense
the cause of the fire is not denied, but it is
elaimed that its relation was too remote to
bring the case within the exception of the
policy. And we have had cited to us a gen-
eral review of the doctrine of proximate
[456] and remote causes *as it has arisen and been
decided in the courts in a gpreat variety of
cases . . . One of the most valuable of
the criteria furnished us by these authorities
is to ascertain whether any new cause has
intervened between the fact accomplished
and the alleged cause. If a new force or
power has intervened of itself sufficient to
stand as the cause of the misfortune, the
other must be considered as too remote. In
the present case we think there is no such
new cause. The explosion undoubtedly pro-
duced or set in operation the fire which
burned the plaintiff s cotton. The fact IJiat
it was carried to the cotton by first burning
another building supplies no new force or
power which caused the burning. Nor can
the accidental circumstance that the wind
was blowing in a direction to favor the prog-
ress of the fire towards the warehouse be
considered a new cause. . . . We are
clearly of opinion that the explosion was the
cause of the fire in this case." 7 Wall. 51,
52 [19: 07]. In that case, as has been since
observed by Mr. Justice Strong in delivering
' judgment m a case to be presently referred
to more particularly, "it was, in effect, mled
that the efficient cause, the one that set
others in motion, is the cause to which the
loss is to be attributed, though the other
causes may follow it and operate more im-
mediately in producing the disaster." ^tna
F, Insurance Co, v. Boon, 95 (J. S. 117, 131
[24:395, 399].
In Howard F, Insurance Co, v. Jforwich d
y, Y, Transportation Co. 12 Wall. 194 [20:
878], a large steamboat on Long Island
sound was insured against fire, excepting fire
happening "by means of any invasion, insur-
rection, not, or civil commotion, or of any
238
military or usurped power." Hie facta, as
found by the circuit court and stated in the
report, were as follows: Another vesisl
came into collision with the steamboat*
strikinsf her on the side, and cutting into hm
hull below the water line, in consequenee of
which she immediatelv and rapidly o^gaa to
fin with waiter. Within ten or fifteen mia-
utes after the collision, the water readied
the fioor of her furnace, and generated steaoi
which blew the fire against her woodwork,
whereby her upper works were enveloped in
fiames and continued to bum for half or
three quarters of an hour, when she roDed
over and gpradually sank in twenty fathoms
of water. From the effects of the edlisioa
alone, *she would not have sunk betow her [41
promenade deck, but would have remained
suspended in the water, and could have beea
towed to a place of safe^, and repaired at
an expense of f 15,000. The sinking of the
steamboat below her promenade deck was
the result of the action of the fire in buraiiig
off her upper works, whereby her floating
capacity was decreased and she sank to the
bottom, and the amount of the additional
damage thereby caused, including the cost
of raising her, was $7,300. Upon limfi state
of facts, this court, affirming the judsment
of the drcuit court, held the insurers liable
for the latter sum. But in the bpinioa of
this court, delivered by Mr. Justiee Strong,
the rule was recognized and aflirmed, that
"when there is no order of succession in timt,
when there are two concurrent causes ef t
loss, the predominating efficient one must be
regarded as the proximate, when the dam-
age done by each cannot be distinguished.**
^d it was added, "And certainly that cause
which set the other in motion, and gave ts
it its efficiency for harm at the time of tbs
disaster, must rank as predominant." 12
Wall. 199 [20: 379]. The rule was hdd ta
be inapplicable to that case, because the
damace resulting from the fire, and thst
caused by the cMlision, apart from the firs,
were clearly distinguished; and because tbs
policy, exempting the insurers €rom liability
for losses by fire bv certain specified caoMS,
covered losses by fire from all other caasa,
including collisions. But for thoae di«tiae> j
tions, the decision could hardly be reconciled
with the earlier opinions already referred te,
or with that delivered by the same able and
careful judge in the latter case of ^twa F.
Insurance Co. v. Boon, 95 U. S.117 [24: SW).
In JStna F. Insurance Co. v. Boon a policy
of insurance a^inst fire, issued during tht
war of the rebellion, for one year, upon goodi
in a store in the cit^ of Glasgow, in the fttata
of Missouri, provided that the insaren
should not be liable for "any loss or daois^
by fire which may happen or take place by
means of any invasion, insurrection, riot or
civil commotion, or of any military or
usurped power." The city of Glassow, beinc
occupied as a military post by the Unitca
States forces, was attacked by a superior
armed force of the rebels, and defended by
the ^United States forces; and during the bat-[4^
tie the comtnander of these forces, upon its
becomini^ apparent that the city could not
be successfully defended, and, in order to pr^
171 U, f.
lan.
Tiu 6. R. Booth.
457-459
rmi military stores, which had been placed
la the city hall, from falling into the nands
of the rebels, caused them to be destroyed by
bomiiig the dij hall; and the fire, spreading
from building to building, through three in-
termediate buildings, to that containing the
goods insured, destroyed them. This court
bdd that the loss was within the ezceptioo
in the policy, because the rebel military
power was the predominating and operating
cause of the fire; and in the opinion of the
eoort, delivered by Mr. Justice Strong, and
stroagly supported hj authority, the true
rsJe and its applicatiofa to that case were
stated as follows:
"The question is not what cause was near-
est In time or place to the catastrophe.
That is not the meaning of the maxim,
CoiiM procfima non remota apeotatur. The
pnudmata cause is the efficient cause, the
one that necessarily sets the other causes in
operation. Hie causes that are merely in-
tUnital or instruments of a superior or con-
trolling agency are not the proximate causes
sad the responsible ones, though th^ may be
near^ in time to the result. It is only when
tbe causes are independent of each other that
the nearest is, of course, to be charged with
the disaster." 96 U. 8. 180 [24:399]. ^The
eondusion is inevitable, that the fire which
osmed the destruction of the plaintiff's prop-
mtj happened or took place, not merely m
eonsequoice of, but by means of, the rebel
Imnsion and military or usurped power. The
fire occurred while the attack was in prog-
ress, and when it was about being success-
foL The attack, as a cause, never ceased to
rite until the loss was complete. It was
causa oauaans which set in operation
erery s^ency thmt ocmtributed to ijhe deiftmc-
tkm. It crea;ted the military necessity for
the destruction of the military stores in the
city haU, and made it the duty of the com-
Bssding officer of the Federal forces to de-
itroy them. His act, therefore, in setting fire
to the dty hall, was directly in the line of the
force set in motion by the usurping power."
96 U. S; 132 [24:399]. "The court below re-
girded the action of the United States mili-
tiry authorities as a sufficient cause inter-
^heiung ^between the rebel attack and the de-
Btmction of the plaintiff's property, and
therefore held it to be the responsible prox-
imate cause. With this we cannot concur.
The proximate cause, as we han^ seen, is the
dominant cause, not the one which is inci-
dental to that cause, its mere instrument,
thotigh the latter may be nearest in place
and time to the loss. In Milwaukee d 8i,
Paul Railway Co, v. Kellogg, 94 U. S. 469
[24: 256], we said, in considering whtit is the
proximate and what the remote' cause of an
injury: "Tha inquiry must always be whether
there was any intermediate cause diaoon'
necied from the primary fault, and self-op-
erating, which produced the injury.' In the
present case, the burning of the city hall and
the spread of the fire afterwards was not a
sew and independent cause of loss. On the
contrary, it was an incident, a necessary in-
cident and consequence, of the hostile rebel
«ttack on the town, — a military necessity
171 U. S.
caused by the attack. It was one of a con-
tinuous chain of events brought into being
by the usurped military power, — events so
linked togetner as to form one continuous
whole." 95 U. S. 133 [24: 400].
In ffeneral accord with the opinions above
quotea are two cases in this court upon the
meaning and effect of the term "dangers of
navigation," or "perils of the sea," in a bill
of ladinff. The Mohawk, 8 Wall. 153 [19:
406]; The Portsmouth, 9 Wall. 682 [19:
754].
In The Mohawk, a steamboat carrying
wheat under a bill of lading containing an
exception of "dangers of navigation"
grounded on the flats, and, in the effort to get
her off, became disabled by the bursting of
her boiler, and afterwards sank. It was ar^
gued, amonff other things, on the one side,
that the escplosion was not a danger Incident
to navigation; and, on the other, that tha
sinkinff of the vessel was the immediate causa
of the damage to the wheat. The question at
issue was whether the vessel was entitled to
freiffht pro rata itineris. This court, speak*
ing oy Mr. Justice Nelson, said that "the ex*
plosion of the boiler was not a peril within
the exception of the bill of lading," and
therefore the case fell within that dass in
which the ship is disabled or prevented from
forwarding the goods to the port of destina-
tion by a peril or accident not ^within the ex- [459]
ception in the bill of lading. 8 Wall. 162
[19:409]. Although this statement was
perhaps not absolutely necessary to the deci-
sion, it was upon a point argucKi by coimsel,
and shows clearly that the court was of
opinion that the explosion, and not the sink-
ing, was the proximate cause of the loss.
In The Portsmouth, it was decided that a
jettison made to lighten a steamboat which
had been run agroimd by her captain's neg*
ligence was not within an exception of "tha
dangers of lake navigation," in a bill of lad-
ing; and Mr. Justice Strong, in delivering
judgment, said: "A loss by a jettf
son Occasioned by a peril of the sea
is, in ordinary cases, a loss by perils
of the sea. But it is well settled that,
if a jettison of a cargo, or a part of it,
is rendered necessary by any fault or breach
of contract of the master or owners of tha
vessel, the jettison must be attributed to that
fault, or breach of contract, rather than to
the sea peril, though that may also be pres-
ent, and enter into the case. This is a prin-
ciple alike applicable to exceptions in bills
of lading and in policies of insurance.
Though the peril of the sea may be nearer
in time to the disaster, the efficient cause,
without which the peril would not have been
incurred, is regarded as the proximate cause
of the loss. And there is. perhaps, greater
reason for applying the rule to exceptions In
contracts of common carriers than to those
in policies of insurance, for, in general, neg-
ligence of the insured does not relieve an un-
derwriter, while a common carrier may not,
even by stipulation, relieve himself from the
consequences of his own fault." 9 Wall. 684,
685 [19:755,756].
Qenerally speaking, the words "perils of
239
4SM63
SUPRUB COUBT OF THB UhITBD StATBB.
Oor.
the sea" hare th« same meaning in a bill of
ladinff aa in a policy of insnranoe. Tliere
is a differenoe, indeed, in their effect in the
two kinds of contract, when negligence of
the master or crew of the vessel contributes
to a loss by a peril of the sea; in such a
case, an insurer against "perils of the sea** is
liable, because the assured does not warrant
that his servants shall use due care to avoid
them ; whereas an exception of "perils of the
sea" in a bill of lading does not relieve the
carrier from his primary obligation to carry
with reasonable care, unless prevented by
the excepted perils. But when, as in the
[460]pi'eMnt case, it is *distinctl^ foimd that there
was no negligence, there is no reason, and
much inconvenience, in holding that ^e
words have different meanings in the two
kinds of commercial contract. The PortS'
mouth, above cited; Phosnim Ins, Co, v. Erie
d W. Tranaportation Co. 117 U. S. 312, 322-
326 [29:873, 879, 880]; Liverpool d G, W.
Steam Co. v. Phenim Ina. Co. 129 U. S. 397,
438, 442 [32:788, 791, 792]; Compania La
Flecha v. Bra%ier, 168 U. S. 104 [42:398];
The Xantho^ L. R. 12 App. Cas. 603, 610,
614, 617.
In the ease at bar, the explosion of the
ease of detonators, besides doing other dam-
age, burst open the side of the ship below
the water line, and the sea water rapidly
flowed in through the opening made by the
explosion, and injured Uie plaintiff's sugar.
The explosion, in oonseauence of which, and
through the hole made by which, the water
immediately entered the ship, must be con-
sidered as the predominant, the efficient, the
proximate, the responsible cause of the dam-
age to the sugar, according to each of the
tMts laid down in the judgments of this
court, above referred to. The damage to
the sugar was an effect which proceed^ in-
evitably, and of absolute necessity, from the
explosion, and must therefore be ascribed to
that cause. The explosion concurred, as the
efficient agent, with the water, at the instant
when the water entered the ship. The in-
flow of the water, seeking a level by the mere
force of gravitation, was not a new and in-
dependent cause, but ¥ras a necessary and in-
stantaneous result and effect of the bursting
open of the ship's side by the explosion.
There being two concurrent causes of the
damage — the explosion of the detonators, and
the inflow of the water — without any ap-
preciable interval of time, or any possibility
of distinguishing the amount of damage
done by each, the explosion, as the cause
which set the water in motion and gave it
its efficiency for harm at the time of Sie dis-
aster, must be regarded as the predominant
cause. It was the primary and efficient
cause, the one that necessarily set the force
of the water in operation; it was the su-
perior or controlling agency, of which the
water ¥ras the incident or instrument. The
inflow of the sea water was not an inter-
mediate cause, disconnected from the pri-
mary cause, and self -operating; it was not
n new and independent cause of damage;
[^•*l*but, on the contrary, it was an In-
cident, a necessary incident and conscQuence,
S40
of the esnlosion; and it was one of a
tinuous chain of events brought into L- _.
by the explosion,— events so linked togetker
as to form one oontinuoQa whole.
The damage was not owing to aaj violeit
action of winds or waves, or to theahip tarn-
iD^ against a rode or shoal or other ezteraal
obje<^; but it was owin^ to an r»pi>?«ioi
within the ship, and arising out of the na-
ture of the cargo, whidi cannot be conaidewd,
either in common understanding or aeeord-
ing to the judicial precedents, as a peril of
the sea.
As was observed by this court in MUm F.
Insurance Co. v. Boon^ above dted: "Oftaa
in case of a fire, much of the destraetioo is
caused by water applied in efforts to extia-
guish the flames. Yet it is not doubted all
that destruction is caused by the lire, and ia-
surers against flre are liable for H." 96 U.
S. 131 [24: 899}. If damage done by water
thrown on bv human agency to put out a in
is considered a direct oonsequenoe of the firs,
surely damaffe done by water entering ia-
stantiy, by the mere foroe of gravitatioa,
through a hole made by an explosion H part
of the cargo, must be considered as a dueet
consequence of the explosion.
Upon principle and authority, tharefbrs,
our conclusion is that the explonon, and not
the sea water, waa the proximate eanse ei
the damage to the sugar, and that tlii* dam-
age was not occasioned bv the perils of the
sea, within the exceptions in the mil of ladii^
Nor can the damage to the sugar, attriba-
table, not to a peril of the sea, but to the
explosion of part of the earso after the ship
had ended her voyage, and had bear flasQj
and intentionally moored at the dock, thwt
to remain until her cargo waa taken oat el
her, be considered as ''occasioned by aaidits
of navigation." Canada Shipping Oo. v.
BHOsh Shipoumers* Mut. Protection Assoom-
tion, L. R. 23 Q. B. Div. 842; The Aeeomee,
L. R. 16 Prob. Div. 208; Thatnee 4 Meresf
Marine Ins. Co. v. Hamilton, L. R. IS Ape^
Gas. 484; The Mohawk [8 WalL 16S, ft:
406], above cited.
Much reliance was placed bj the appdlct
upon a recent English case, in whidi the
House of Lords, reversing the deeiskm *ol[4i
Lord Esher and Lords Justices Bowen aad
Frv in the court of appeal, and restorif^ tkt
judgment of Lord Justice Lopes in ths
Queen's bench division, held that oamafe to
coods by sea water which, without ai^ a^
feet or default on the part of the shipowa-
ers or their servants, found ita way into tki
hold of a steamship through a hda which ha4
been enawed by rats in a leaden pipe eoa-
nected with the bath room of the fessd, wss
within the exception of ''dangers or aeddcati
of the seas" in a bill of lading. HmmiUom ▼.
Pandorf, L. R. 12 App. Cas. 618, L. R. 17 Q.
B. Div. 670, L. R. 16 Q. B. Div. 629. Thcrt
is nothing in the report of any stage of that
case to show that the sea water entered ths
ship immediately upon the gnawing bj tkt
rats of the hole in the pipe ; and any sndi ia-
ference would be inconsistent with oat of
the opinions delivered in the House of Lords
in which Lord Fitzgerald said: "Ilie re-
mote cause was in a certain aenae the actiea
171 V. &
18WL
Thb Silvia.
«l the tats on the lead pipe, but the immedi-
ate cause of the damage was the irruption of
tea water from time to time through the in-
jored pipe caused by the rolling of the ship
18 she proceeded on her voyage.'' L. R. 12
App. Cas. 528. However that may have
been, that case differs so much in its facts
from the case now before us, that it is un-
necessary to consider it more particularly.
Question certified answered in the negative.
THE SILVIA,
(flee 8. C Reporter's ed. 462-466.)
When a $hip is not unseaworthj^ — error in
navigation.
1 A ihlp beginning her voyage when the
weather It fair is not anseaworthy because
ber ports between decks, which are tightly
closed with thick glass, are not also covered
with the Inner covers of iron provided for
that purpose, and because the hatches are bat-
tened down, where they can l>e opened in two
minotes, and no cargo is stowed against the
ports, snd they can be speedily got at and
etosbd with the iron covers if occasion should
require.
1 Neglect In not closing the Iron covers of
the ports of a ship Is a fault or error In the
navigation or In the management of the ship,
wItlUn the meaning of i 3 of the Barter act.
(No. 6.]
Argued Maroh 8, 1898. Decided October 17,
1898.
0
N CERTIORARI to the United States Cir-
cuit Court of Appeals for the Second Cir-
cuit to review, a judgment of that Court af-
firming a judgment of the District Court of
the United States for the Southern District
of New York dismissin^^ a libel in admiralty
filed by the Franklin Su^ar Refining Com-
pany against tne steamship Silvia to recover
damages for injuries to a cargo of Lugar
ihipped upon the Silvia at Matanzas, Cuba,
to be delivered at the port of Philadelphia.
Affirmed,
See same case below, 64 Fed. Rep. 607, and
S5 U. S. App. 395.
The facts are stated in the opinion.
Messrs, Harrinston Putnam and
Charles C Burlinshani, for the Franklin
Sum" Refining Company, appellant:
fht negligence of the ship was abundantly
established.
The steamship sailed from Matanzas in an
nnseaworthy condition.
DoheU V. Steamship Rossmore Co, [1895]
2 Q. B. 408.
The act of February 13, 1893, does not
4o away with the warranty of seaworthiness.
The Barter act is to be construed in ac-
cordance with the state of pre-existing law,
the various eflforts made to agree on a divi-
sion of the carriers' liabilities, the standard
forms of bills of lading which commercial
Mies had adopted before 1893, and the ex-
igencies which led to the passage of the act.
171 V. 8. U. S., Book 43. 1
The Delaware, 161 U. S. 450, 472, 49 L.
ed. 771, 776; Wendt, Maritime LegislatioBi,
3d ed. 398, 401.
But if the severity of the obligation which
has heretofore rested on the snipowner to
furnish a seaworthy ship has been relaxed,
the strict obligation of diligence substituted
therefor has not been satisfied by the own-
ers of the Silvia.
The Main v. Williams, 152 U. S. 122, 132,
38 L. ed. 381, 385 ; The Millie R. Bohannon,
64 Fed. Rep. 883 ; The Sintram, 64 Fed. Rep.
884; The Mary L. Peters, 68 Fed. Rep. 919;
The Flamhorough, 69 Fed. Rep. 470; The
Alvena, 74 Fed. Rep. 252; The Oolima, 82
Fed. Rep. 665.
The omission to close the dummy waa. not
a fault or error in navigt.tion or in the man-
agement of the vessel under S 3 of the EDar*
tSr act.
Oood V. London 8, 8, Owners^ Mut, Pro-
tecting Asso, L. R. 6 C. P. 563; Oarmichael
V. Liverpool Sailing Shipotcners* Mut, In-
demnity Asso, L. R. 19 Q. B. Div. 242; The
Warkworth, L. R. 9 Prob. Div. 20, and 145;
Dohell V. Steamship Rossmore Oo, [1895] 2
Q. B. 408; Steel v. State Line S, S. Co. L. R.
3 App. Cas. 72. •
By the absolute undertaking of the char-
ter party to have the ship fit for the voyage,
the clainmnt has precluded itself from any
exemption under the Harter act.
The Edwin I. Morrison, 158 U. S. 199, 38
L. ed. 688.
Mr. J. Parker KirUa, for The Silvia,
appellee :
The exemptions provided by § 3 of th«
Harter act are available to foreign vessels.
The Etona, 04 Fed. Rep. 880, 38 U. S.
App. 50, 71 Fed. Rep. 895, 18 C. C. A. 380;
The Silvia, 35 U. S. App. 395, 68 Fed. Rep.
230, 15 C. C. A. 362 ; The Straitherly, 124 U.
S. 558, 31 L. ed. 580; The Scotland, 105 U.
S. 24, 30, 26 L. ed. 1001, 1003; The State of
Virginia, 60 Fed. Rep. 1018; Thommasen v.
Whitwill, 12 Fed. Rep. S9l ; Re Leonard, 14
Fed. Rep. 53; Levinson y. Oceanic Steam
Nav, Co. 17 Alb. L. J. 285, Fed. Cas. No.
8,292.
The ship was seaworthy on sailing from
Matanzas, with the glass port closed and
secured, though the dummy or deadlight in-
side was not shut. There waa ready access
to the steerage, so that the dummy could
be closed, if necessary, at a moment's notice
on approach of a storm.
The Titania, 19 Fed. Rep. 101 ; Steele v.
The State Line, L. R. 3 App. Cas. 72 ; Bed-
ley V. Pinkney d Sons S, S, Co. [1894] A. C.
222; Oilroy v. Price [1893] A. C. 56; The
Mexican Prince, 82 Fed. Rep. 484: Quebee
S, 8. Co, V. Merchant, 133 U. S. 375, 3(3 L.
ed. 656.
The loss was within the exception of "dan-
gers of the sea," contained in the bill of lad-
ing.
A loss happening under these circumstances
is prima facie a loss by a danger of the sea.
The G. R, Booth, 64 Fed. Rep. 878; Bi-
hernia Ins, Co. v. St. Louis Transp, Co 120
U. S. 166, 30 L. ed. 621 ; Carruthers v. Syde-
hotham, 4 Maule & S. 77; Laurie v. Doug-
las, 15 Mees. & W. 746; Davidson v.Bumand,
6 241
18(6.
Brigoc« y. Walkbr.
464-466
Bing of her Toyage. The Carib Prince, 170
UTs. 655 [42: 1181].
But the contention that the Silvia was un-
■eaworthj when she sailed from Matanzas
u unsnpported hj the facts. The test of sea-
worthiness is whether the vessel is reasona-
Uy fit to carry the cargo which she has un-
S6]dertaken to transport. *The portholes of the
eompartment in question were furnished
both wiUi the usual glass covers and with the
usual iron shutters or deadli^^hts; and there
is nothing in the case to justify an inference
that there was any defect in the construction
of either. When she began her voyage, the
weather being fair, the glass covers only
were ^ut, and the iron ones were left open
for the purpose of lighting the compartment.
Although the hatches were battened down,
they could have been taken off in two min-
utes, and no cargo was stowed against the
ports so as to prevent or embarrass access to
them in case a change of weather should
make it necessary or proper to dpse the iron
shutters. Had Uie cargo been so stowed as
to require much time and labor to shift or
remove it in order to get at the ports, the
fsct that the iron shutters were left open at
the beginning of the voyage might have ren-
dered the ship unseaworthy. But as no
eargo was so stowed, and the ports were in a
{»laoe where these shutters would usually be
eft open for the admission of light, and
eould oe speedily got at and dosea if occa-
sion should require, there is no ground for
holding that the ship was unseaworthy at the
time of sailing. Sieel v. State Line Steam-
•hip Co. L. B. 8 App. Gas. 72, 82, 90, 91;
Hedley v. Pinhney i Sons Steamship Co.
[1892] 1 Q. B. 58, 65, and [1894] A. C. 222,
227, 228; GUroy v. Price [1893] A. C. 56,
64.
The third section of the Harter act pro-
Tides that "if the owner of any vessel trans-
porting merchandise or property to or from
sny port in the United States of America
•hall exercise due diligence to make the said
nisel in M respects seaworthy and properly
namied, equipped, and supplied, neither the
▼easel, her owner or owners, agent or char-
terers, shall become or be held responsible for
dimage or loss resulting ^m faults or er-
rors in navigation or in the management of
■dd vesseL^ 27 Stat, at L. 445. ^^
ins provision, in Its tenne and intent, in*
dudes foreign vessels canying goods to or
from a port of the United States. The Soot-
land, 106 U. S. 24, 80 [26: 1001-1008] ; The
Cerih Prince, above cited.
Kot only had the owners of the Silvia ex-
ercised due diligence to make her seaworthy,
hut, as has been seen, she was actually sea-
worthy when she began her voyage.
■M] *Tliis ease does not require a comprehen-
■ire definition of the words "navigation" and
'^nagemenf of a vessel, within the mean-
hig of the act of Congress. They might not
include stowage of cargo not sheeting the
toess of the ship to carry her cargo. But
they do induda, at the least, the control, dur-
ing the voyase, of everything with which the
nmi is equH>ped for the purpose of protect-
ing her and her cargo against the inroad of
the was; and if there was any neglect in not
dosing the iron covers of the ports, it
a fault or error in the navigation or in the
management of the ship. I^is view accords
with the result of the English dedsions upon
the meaning of these words. Oood v. Lofi-
don Steamship Oumers' Mut, Protecting As*
sedation, L. R. 6 C. P. 563; The Warktoorthf
L. R. 9 Prob. Div. 20, 145; Oarmichael T.
Liverpool Sailing Shipowners' Mut. Indent
nity Association, L. R. 19 Q. B. Div. 242;
Canada Shipping Co. v. British Shipoumers^
Mut, Protection Association, L. R. 23 Q. B.
Div. 842; Tlie Ferro [1893] P. 38; The Qlen^
ochU [1806] P. 10.
In the case, dted by the appellant, of Do-
hell V. The Steamship Rossmore Co, [1895]
2 Q. B. 408, 414, the ship was unseaworthy
at the time of sailing, by reason of the cargo
having been so stowed against an open port
that the port could not 1^ closed without re-
moving a considerable part of the cargo; and
Lord Esher, M. R., upon that gpround, distin*
gnoiished that case from the decision of the
circuit court of appeals in the present case.
Judgment affirmed.
JAMES A. BRI6GS, Executor of Charles
M. Briggs, Deceased, Plff, in Err,,
V,
AMANDA M. WALKER, and Ohio Vall^
Bankiuff & Trust Company, Administra-
tor of the Estate of A. L. Shotwdl, De>
ceased.
(See 8. a Reporter's ed. 466-474.)
Federal question — act of Congress for the r#>
Uef of an estate.
1. A Federal question Is presented by the de«
termination of a state court as to whether the
right given by act of Congress to the "legal
representatives" of a person Is for the benefit
of his next of kin, to the exclusion of his
creditors, or not.
2. An act of Congress for the relief of the es-
tate of a person, and referring to the court of
dalms a claim of his **legal representatives,"
makes the recovery on such claim assets of
his estate and subject to his debts and lia-
bilities.
[No. 260.] . ."
Submitted April 25, 1898. Decided October
17, iQ^S.
IN ERROR to tihe Court of Appeals of the
State of Kentucky to review a judgment of
that court amrming a judgment of the Cir-
cuit Court of Jefferson County in said state
in a suit brought against James A. Briggs,
executor, to which Amanda M. Walker and
others were parties in favor of defendants
Walker and Sbotwell for certain sums of
money, and adjudging that moneys in the
hands of Brigcs as executor be applied to
the payment or these sums, and of a further
sum due from Moorehead to Briggs. On
motion to dismiss the writ of error or to
affirm the judgment. Judgment affirmed.
See same case below, 19 ICy. L. Rep. 1490,
43 S. W. 479.
248
I fMIMIfrT
487^169
SOPRSMS OOUBT or THB UVITED STATES.
Oct. Tesm,
(
I
SUtemeiit by Mr. Justice Gray:
[MT] •The controversy in this case was
the executor and two creditors of Gharkt IL
Briggs, and arose as follows:
On April 18, 1862, during tlie war of tlie
rebellion, Charles S. Mordioul, of Kentud^,
executed and delirered to his n^hew,
Charles M. Brigffs, a bill of sale of eotton in
Mississippi, in Uiese terms:
''For and in oonsideration oi maom
loaned and adTanoed heretofore by C. M.
Brig^ and further valuable consideration
by way of suretyship for me by said Briggs,
I herikiy eell and transfer to said C. M.
Bri»8 an the cotton on my two plantations
in Mississippi near E^gspoint and Greoi-
▼ille. Said cotton so sold embraces all I
haT«, baled and unbaled, nithered and un-
fathered. This is inteadea to cover all cot-
ton thai I have now or may have this year
Ml said two plantatioi, supposed to be about
1,000 bales.''
At the sanw time, Briggs executed and de-
liv«Kd to Samud J. Walker, Morehead^s
aoat4n4aw, a writing in these terms:
*In oonsideration of the sale and trans-
fcr this day made to me by C. S. Morebead
•f all the cotton on his two plastations near
E)pg!ti>oiBt in the state of Mississippi, as
i^ecitted in aaid sale and transfer in writing.
I herp^y assame and a^Erree to pay to Samuel
J, Walker the snm of forty thousand dollar*
due and owing to said Walker by said C S.
Morehead. upon oonditioiu however, that I
realise sufFicient amount from any eottoa oti
nr from said plantations or proceeds of same.
V^ethfT with about tmntr^^T^ thousand
dollars due me from «aid C. S, Morebead for
wtonevs advanced and liahHitr for him a>
irurrty; also about taen t>»oc<aiT>d dollsT^.
more or >«s<s^ beinr a clarra of A, S, Sbonrer
as he "mar Wreifter establish a^raiTtst said
C^ S. V.-*T^>»<»ad; bet in ra54e I <«>»oiiM not
reaaj* ^c'^rM^t tr tyvv nil of said claims or
aTrM:TT< aSrvf jimir^ in fr.?., tb«i 1 am to \
pAT o* d:r7de the aTnontit that "may be real- '
iw*d f",'^'^, said cotton, proTv^nJonatehr or
yind •^ M aoco'-d.^c to the respectrrt
aTr>MrrT< Tia."med. to tV -nart^e? above luiTned
Ifrst^ *^^»TTy»-. TifiT-Tur a7»d re'^TiT^diTjr nnr
TnoT»cyis Tiaid br t>>e ro^T»oft:T^ T»'i'-rM«s for o'-
MS a.-voirrt of e\T»ei^«»es tv^T^airiTir t.** sar^
and rr Mu^e too*^ «ihot:''d be re*^':*'ed tVai-
«jfFV.'*>ert tr tmv said a-moirrts^ tnib trteTie^t
tbe^-fv^r re t^e ti7T>e of reft^:r*t^-*r a7»d 7»aT-
TT»f*«", t>eT aT.y 5iir-?i''ns tr be d'^^e-^.. .-^t»*
br • r,'' sa>d '^^nt^f'^. ar^d C M Birr*
toir*^^' for arr <sf»rn.-e*;^ a^'C t^ rerra:"^ ^c
/i^'>e bf>' to 5^.1 r SU^ T*e^. ^ X^ f.'.te^, btt >-
*t^>er or-T^^rf^tv-*!: rr V Ttav". to sasd Sbos-
Tn' ii::t> at OT'*'* TA-»fe <c^TK T,"* ret "n-wi^fisioT
*f tW cvxtor* brt »•«> T^-^'-errec >v the Fed-
♦-*.' Taroes^ ai»d ;hr vT^a-'t^-ji'-atf rc^-^-^esi in the
%n.-.T-..T Ti I* co;;an. jupoutiiiijc te iour
I urc-W aT»c t '•v Jwefv «-»< fr*u.V nei?ec.
t.x:T». *^* V :!- -.v- o r e" iv::.-^r. ^5 CaT*rx;T
IT it*e .. T.'sec ^^i*:<»s A-n.^, it heKj.^: n: me
X i:-**»c States aT»c wa* rT r.ne ^oic and xbe
w*ooeeC!c T^fcT nxr the T^^ea^uTj* of
V T."ec S^A *e!v
Briggs died in 1875, after mptmted and nn-
suecessful efforts, through his attomeyi, ts
obtain the proceeds of the cotton in qnes-
tion; and his executor continued the effort!
and through the same attorneys procured
the passage of the act of Congress of June 4,
1888, diap. S48, copied in the margin..
^Undo* the provisions of that act, Briggt^[ii
exeeutor brought suit in the court of claiiwC
and therein recovered the sum of fSb.OOA.
See Bri^gt v. United Stciet, 25 Ct. CL 126.
143 U. S. 346 [36:180], 27 Ct. CL 564. Half
of that sum was paid to the attomeys, par*
suant to a contract bKween than aa4
Briggs ; and the rest, being the sum of $44,-
000. came to the hands of the executor.
Thereupon the executor, in a suit pre*
viously broi^t against hbn for iht settle-
ment of Bri^rs's estate, in the diancny di-
vision of the circuit court for the county of
Jefferson and state of Kentucky, set up, by
amended answer, that he had cc^ected thii
sum oi $44,000; and prayed that WaDnr^i
widow (to whom Walker had assigned Ub
daim) and Shotw^'s administrator mietit
be made parties to the suit, and he reauired
to set up their claims to this sum. And Mrs.
tAn Act flor tte KeU«< mt tbt EKate ef C IL
Be It exacted \/t the Senate
tatlves <^ tbe rvfted States of
!b Oo-Dfress anemb^ed. T^at tke court if daivt
is berfbT prem. pnhiert tf» tbe pivtlm fctwlsift-
er mentioDed. like ^vrisdSrtloa ts kear and de
tennlse tbe rlalni «f tbe lecal rtprtatmtathm
of C M. Brijr?s. deceased, for tbe |HWt<di of
four bmMSred and tft^-frre bales «f cottaa. m«
la tbe TreasaxTT ef tbe Fntted Stama. aHefid t>
bave been ovDed. la wba^ or tai parL hy taM
Rnrr!L as is eivea te aald eaurt by tbe acta •<
M&rcb rv^e'frb. eicbteen bmdred and atztr
three, and Jnlr sec^sd. ^l|!btecn baadrid aal
sxxtT-four. UTviT T^et.tinB to be filed la aaU eevt
at anj t:me virL Ji rvt» y«an fma tbe paatn
of this an. aiiT fErarrre of Iimltati«at t» tte
cantrarv iiorw:r»~iC undine : Prended. b<m*w*.
tbat cLiesa ibe sjud cnmrT aba.L oa a peeUaia-
arr tucL.rv. t,-Di that saic BrtigEi vat ta fbet
icTnl Tc tiH- Ft -red SraTet- p^'reraBea
tbe ass;;^:xmex.t ;e bin berelnafter
»-a$ h 'ta r at. tbe mnrt abai!
ru'i£ o: tbf ra«e mad tb^ same abaU. vttbevt fvr
rl^i-r p'HK-f'ed t^cs. be ducmiieied : And pieihM
fu-rber, tha: .: tbe corn aba:: find tbat t*« a'-
•o£r^ assicmnert fnna cse Hfwxbfd to faJd
Itr.jircs. c^ date Apri' e^^tcentb. tttbtw
rt*d and «tlrt?-r«-a nnd
. a.iDf>d sx^c m^.'n was tatcBdei onlj at
t^ Tf s*'j! K~.;n3^ ;«c taj
->t-rc«i~ :ie» aamuatd by M» ttt miA
V ~'t r. \m T* sii» be Ti.ndi.rid tor ■■<*
po^nic of Tbe lumreds of aaU cectao as vtl*
St >v.; -1" .v.»* -« Mf r-»:iB» ef mM BH0i »
w*r— f » ^ -y w* »i«-»mBieBt was flua: Fr^
rio'^d Si '£ iticcin«*rt «bai net be paid est if
tb« p«i»<*r*. nn»£ IK
rb^ « *# nT n.t-K*e<
bet alit* be t**.*.^ «*r*
tf ai»£ •r>*uT--c •.TT by Oantala G L. f****
ftstoram Qra.-~--Taas*er at
f-,»ir rbr aair h" Tbf
ai*;' DJ»e ban* rc -n*'T«. reeeCfrd fcy bte. «*•
wt Ti- rj^iiBMr: * rf.-rmt: vaa Inuivlafltd, f^^
rlft.:inaLi!t ir ?ece *t
b* eccii« baara u
Tor le^ aaM Pan. S ScaL m U Ift^
IW.
Bbiggs t. Walkeb.
461M72
Walker and Shotwell's administrator fifed
petitioiiB in the cause, claiming the sums
mentioned as due to Walker and to Shotwell,
respectively, in the writing signed by Briggs,
April 18, 1862, and above set forth.
To these petitions the executor of Briggs
lUed supplemental answers, in which, among
other things, he set up the act of Congress of
June 4, 1888, and the proceedings in the
oourt of claims; and alleged that " in pur-
luancc to the said act this defendant,
through his said counsel, insliiuted an ac-
tion against the United States in the court
of claims to recover the proceeds of sale of
the cotton aforesaid, and in and by said ac-
tion it was finally determined and adjudged
fC that the said ^testator was loyal to the
United States, and that the assignment made
by said Morehead to defendant's testator was
bona fide and founded on a valuable consider-
ation; but this defendant was, bv the act
aforesaid, as well as the final judgment of
the court of claims, limited in his recovery
to such stun as would satisfy the debts and
daims of his testator, to secure which the
said assignment was given ; and this defend-
ant says that by the final judgment of said
coart of claims he only received and recov-
ered from the United States such sum as was
owing directly to his testator by said More-
head, and aid not recover anything whatso-
ever for or on account of anything that may
have lieen owing by said Morehead to A. L.
Shotwell or Samud J. Walker;" and further
alleged that "the passage of the act afore-
said was an act of grace on the part of the
United States for the sole benefit of this de-
fendant, and to permit this defendant to aa-
sert a daim against the proceeds of said cot-
ton to the extent that said Morehead was in-
debted to his testator ; that long prior there-
to all claim that had existed in favor of said
testator as against the United States for any
part of the proceeds of said cotton had been
barred by limitation, and said claim was out-
Uwed and worthless;" and that "it was not
intended by said act that this defendant
should recover anything for the benefit, di-
I'ectly or indirectly, of any other person."
The circuit court of Jefferson county sus-
tained demurrers of the petitioners to the
supplemental answers of the executor; and,
upon a hearing, found that there was due to
Walker the sum of $40,000 and to Shotwell
the sum of $6.681.21 ; and adjudged that the
sura of $44,000, in the hands of Uie executor,
^ter deducting his commissions, be applied
pro rata to the payment of these two sums,
and of the further ^m of $25,000 due from
Morehead to Briggs. The executor appealed
to the court of appeals of Kentucky, which
affirmed the judgment. 43 S. W. 479.
Thereupon he sued out this writ of error.
The case was submitted to this court upon
a motion by the defendants in error to dis-
ttise the writ of error for want of jurisdic-
tion, or to aflhm the judgment.
Mes8r9, Janaea P. Helm, Helm Bmoe,
Buttvel B. Vaaee, Charles M. Walker, and
^iiUam B, Dix^m, for defendants in error,
m favor <rf motion.
ITl IT. S.
Ueaan. Wm. Stone Alierty Oluurles H.
GibaoA, John MarahaU, and D. W.
Sanders for plaintiff in error« opposed to
motion.
*Mr. Justice Graj, alter stating the caM9[471]
delivered the opinion of the court:
The motion to dismiss must be overruled.
An executor represents the person of the tes-
tator, and is chared with the duty of resist-
ing unfounded claims against the fund in his
hands. Co. Lit. 209a; MoArthur v. Sooii,
113 U. S. 340, 396 [28: 1016, 1033]. The
record, therefore, does present the Federal
question whether the right given by the act
of Congress to the "legal representatives" of
Charles M. Briggs was for the benefit of his
next of kin to the exclusion of his creditors.
But we are of opinion that this question,
which is the only Federal question in the
case, must be answered in the negative, and
consequently that the judgment of the court
of appeals of Kentucky must be affirmed.
The primary and ordinary meaning of ths
words "representatives," or "legal represen-
tatives," or "personal representatives,'' when
there is nothing in the context to control
their meaning, is "executors or administra
tors," they being the representatives consti-
tuted by the proper court. Re Crawford's
Trust, 2 Drew. 230; Re Wyndham's Trusts,
L. R. 1 Eq. 290; 2 Jarman on Wills, chap.
29, § 5 (5th ed.), 957, 966; Williams on Ex-
ecutors, pt. 3, bk. 3, chap. 2, § 2 (7), (9th
ed.) 992; Ooa v. Curtoen, 118 Mass. 198;
Ealsey v. Paterson, 37 N. J. Eq. 445.
In Stevens v. Bagwell, 16 Ves. Jr. 140, 162,
a claim by the next of kin of a naval officer
to the share awarded him in a prize con-
demned after his death, and ordered by
treasury warrant to be paid to his "repre-
sentatives," was rejected by Sir William
Grant, who said that the intention of the
Crown in all cases of this kind is to put what
is in strictness matter of bounty upon the
footing of matter of right, and not to exer-
cise any kind of judgment or selection with
regard to the persons *to be ultimately bene- [478]
fited by the gift; that the representatives to
whom the Crown gives are those who legally
sustain that character ; but the gift is made
in augmentation of the estate, and is to be
considered as if it had been actually part of
the officer's property at the time of his death.
In this oourt, it is well settled that moneys
received by the United States from a foreign
government by way of indemnity for the de-
struction of Americanvessels, ana granted by
act of Congress to the owners of those ves-
sels, without directing to whom payment
shall be made in case of death or insolvency,
pass to the assignees in bankruptcy for tiie
benefit of the creditors of such owners, al-
though such assignees have been appointed
before the act of Congress making the grant.
Comegys v. Vasse, 1 Pet. 193 [7 : 108J ; £7r-
u)in V. United States, 97 U. S.392 [24:1065] ;
Williams v. Heard, 140 U. S. 629 [35: 660].
In Emerson v. Ball, 13 Pet. 409 [10: 223],
cited by the plaintiff in error, in which
money paid by the United States to the heirs
at law, as "the legal representatives of Wil-
liam Emerson," imder the act of March 8,
245
472-4;4
SaPHBlCB Ck>UBT OF THB tJNTrSD StATBS.
Oct. TfCRM,
1831 (6 8Ut. at L. 464, chap. 102), was
held not to be asseU in their hands for
the payment of his creditors, the act, in its
title, was expressed to be "for the relief of
the heirs of William Emerson, deceased;"
and it granted the money as a reward for
aervices, meritorious indeed, but Toluntarily
rendered by Emerson^ not under any law or
contract, and imposing no obligation, l^gal
or equitable, upon the government to com-
pensate him therefor; and the money was
therefore held to have been received by his
heirs as a gift or pure donation.
In the provision of the appropriation act
of March 3, 1891, chap. 540, concerning the
French Spoliation Claims, the words "per-
Bonal representative" and "legal representa-
tive" were used to designate the executor or
administrator of the original sufferer; and
money awarded hj the court of claims to
such a representative was held by this court
to belong to the next of kin, to the exclusion
of assignees in bankruptcy, upon the ground
that the act expressly so provided. 20 Stat,
at L. 897, 908; Blagge v. Balch, 162 U. S.
439 [40: 1032].
The words "legal representatives*' or "per-
[478]8onal representatives" *have also been used as
designating executors or administrators, and
not next of kin, in acts of Congress giving
actions for wrongs or injuries, causing death.
Act of April 20,1871 ( 17 SUt.at L.15,chap.22,
S 6) ; Rev. Stat. § 1981; Act of February 17,
1886 (23 Stat, at L. 307, chap. 1?.6) ; Stew-
art y. Baltimore d Ohio Railroad Co, 168 U.
8.445,449 [42:537,539].
The act of June 4, 1888, chap. 348, now
before the court, is entitled "An Act for the
Relief of the Estate of C. M. Briggs, De-
ceased," and confers upon the court of claims
"jurisdiction to hear and determine the
elaim of the lesal representatives of C. M.
Briggs, deceased," for the proceeds, in the
trefSuTT of the United States, of cotton
owned hv him. The only conditions which
the act imposes ui>oh the riffht of recovery
are that the petition shall be filed in the
court of claims within two years; that that
court shall find that Briggs was in fact loyal
to the United States, and that Morchead's
assignment of the cotton to Briggs was made
in (^od faith; and that if it shal*. find that
the assignment "was intended only as securi-
ty to said Briggs for indebtedness, and
a^inst oontinffent liabilities assumed by
him for said Morehead, judgment shall be
rendered for such portion of the proceeds of
■aid cotton as will satisfy the debts and
claims of said Brigf^ to secure which said
assignment was given." The "debts and
claims," in this last clause, manifestly in-
clude both classes of debts previously men-
tioned, namely, the direct "indebtedness" of
Morehead to Bri^^; and the "contingent
liabilities assumed^ bv him for said ]£>re-
head," including the claims of the defendants
in error, specified in the written agreement
executed by Briggs contemporaneously vrith
the assignment, and the amount of each of
wnich has been ascertained by the court be-
low.
The act of Congress nowhere mentions
heirs at law, or next of Idn. Its manifest
S46
purpose is not to confer a bounty or gratuitj
upon anyone ; but to provide for the aooer-
tainment and payment of a debt due from
the United States to a loyal oitisen for prop-
erty of his, taken by the United States, miKl
to enable his executor to recover, as part of
his estate, proceeds received by the United
States from the tale of that property. *TheC.474]
act is "for the relief of the estate^' of Charles
M. Brigffs, and the only matter referred to
the court of claims is the claim of hia '^cgal
representatives." The executor was tbm
S roper person to represent the estate of
^riggs, and was his legal representative ; and
as such he brought suit in the court of
claims, and recovered the fund now in quea-
tion, and consequently held it as assets of the
estate, and subject to the debts and lial>ili-
ties of his testator to the defendants in er-
ror.
Judgment affirmed.
B. H. HUBBARD, Assignee of the UnioB
Loan A. Trust Company, Petitioner,
V.
J. KENNEDY TOD et at.
(See 8. C. Reporter's e<L 474-504.)
Rights of pledgees — when pledge ie d<s-
charged-—act8 of an officer of a oorporaiian
— secret equitjf — twuriotss agreement-^
holder in good faith,
1. Failure of pledgees to sustain their alleged
rights as purchasers at a sale set op as a A»>
fense will not affect their rights as pledgees,
when they stand on all their rights and have
not been pnt to an election.
2. A pledge Is discharged by the voluntarj
parting with the possession of the property.
8. The mere fact that a person who negotimtee
securities Is an officer of a corporation doea
not coll for an Inference that he is acting mm
such in that transaction.
4. A secret equity In securities pledged hj a
person who has been empowered to do so by
a corporation cannot be set np by It mm
against the pledgee.
6. One seeking the affirmative aid of equity for
relief against an alleged osarious agreement
most himself do equity by tendering or offer-
ing payment of what Is Justly due.
6. Usury between the parties to a contract, or
defect of power of a corporation engaged la
the transaction, will not prevent the pur-
chaser of securities from being a holder la
good faith as against another corporattoa
which attempts to set up a secret equity.
[No. 24.]
Argued April t$, t5, 1898. Decided October
17, 1898.
ON WRIT OF CERTIORARI to the United
States Circuit Court of Appeals for the
Eighth Circuit to review a decree of that
Court affirming the decree of the Circuit
Court of the United States for the Northern
District of Iowa in an action brouffht bv the
Afonhattan Trust Company of New York
against the Sioux Citj i Northern Railroad
171 V. m.
Hubbard y. Tod.
474-477
OommuiT of Iowa> in which action B. H.
Hubbard as assignee of the Union Loan ft
Trust Company fied an intervening petition
against J. Kennedy Tod ft Co., and the de-
cree of the Circuit Court authorized the re-
demption of certain securities by the inter-
vener on payment to Tod ft Co. of a certain
•mn with interest. Affirmed.
See same case below, 66 P^ed. Rep. 559.
Statement by Mr. Chief Justice Fullers
The Bfanhattan l\aist Company of New
York filed its bill, on September 28, 1893,
in the circuit court of the United States for
the northern district of Iowa, against the
Sioux City ft Northern Railroad Company
f5]of Iowa, praying for *the appointment of a
receiver to take possession of the railroad
and its properties and to operate and pre-
serve the same, under and by virtue of the
terms of a trust deed made and executed by
the Sioux City ft Northern Railroad Com-
pany to the Manhattan Trust Company, Jan-
uary 1, 1890, to secure an issue of bonds to
the amount of $1,920,000.
October 5, 1893, receivers were appointed,
and on the same day E. H. Hubbard, as as-
signee of the Union Loan ft Trust Company^
a corporation of Iowa, filed in said cause an
intervening petition against the members of
the banking firm of J. Kennedy Tod ft Co. of
Kew York, prayinff in respect of 10,600
shares of the capital stock of the Sioux City
4 Northern Railroad Company, and $2,340,-
000 in first-moi'tgage bonds of the Sioux
Qty, O'Neill, ft Western Railway Company,
ft coiporation of Nebraska, held by J. Ken-
nedy Tod ft Co., an injunction against the dis-
ration thereof, an accounting of what sums
Kennedy Tod ft Co. had advanced in good
fftith on said securities, and the surrender by
them of the collateral to the intervening pe-
titioner on the ascertainment of the sums so
advanced and constituting a lien thereon.
J. Kennedy Tod, W. S. Tod, and Robert
8. Tod, composinp^ the firm of Tod ft Co. ob-
jected to the jurisdiction, but answered No-
vember 16, 1893, and about the 1st of Janu-
ftry, 1894, petitioner filed an amended peti-
tion, to which defendants filed a supplement-
al answer, and petitioner, a replication.
Hie intervening petition and amendments
a^-erred that the Union Loan ft Trust Com-
pany was a corporation of the state of Iowa,
organized in the year 1885, and thereafter
ttigaged in carrying on a loan and trust busi-
1MS8 up to and until April 25, 1893, when it
nukde a general assiffnment of all its prop-
erty and assets to E. H. Hubbard of Sioux
City, Iowa.
That on July 8, 1889, A. S. Garretson,
John Homick, J. D. Booge, Ed. Haakinson,
ftnd D. T. He<^e8 entered into an agreement
in writing, referred to as a railroad syndi-
cate agreement, for the construction of the
Sioux City ft Northern Railroad, which con-
■trnction was proceeded with and from time
to time the individual members of the syndi-
I78]€ate executed and ^delivered their respective
notes to the Union Loan ft Trust Company in
▼arions sums, which notes that company sold
to various bankers and brokers throughout
the United States; that there existed an un-
171 V. S.
derstanding or agreement between the syndi-
cate and the company that the syncucate
should deposit with the company, as collat-
eral security for said notes, the stock and
bonds of the Sioux City ft Northern Railway
Company when issued; that the syndicate
caused tne corporation to issue the mortgage
described in the original bill; and that the
bonds and stock of the corporation were hdld
by the company "as collateral security for
the payment of the notes with the proceeds
whereof the said railroad has been construct-
ed and eauipped as aforesaid."
That afterwards the syndicate lent Its aid
to the Wyoming-Pacific Improvement Com-
pany, a Wyoming corporation engaged in the
construction of the Nebraska ft Western Rail-
road, a line of road extending westward from
Sioux City to the town of O'Neill, in the state
of Nebraska, and that said syndicate also ex-
tended its aid and assistance to other cor-
porations in and about Sioux City, such as
the Pacific Short Line Bridge Company, the
Union Stock Yards Company, the Sioux City
Tei-minal Railroad ft Warehouse Company,
and the Sioux City Dressed Beef ft Canning
Company, with a like understanding between
the syndicate and the Union Loan ft Trust
Company that the securities of the respect-
ive companies coming into the possession of
the syndicate should be deposited with the
Union Loan ft Trust Company as collateral
to the notes which the members of the syndi-
cate might give to that company on behalf of
the enterprises respectively.
And also that the syndicate organized th^
corporation known as the Pacific Short Line
Bridge Company to construct a bridge across
the Missouri River at Sioux City for ^e
purpose of connecting said railroads, the
stock of said company to belong to the Ne-
braska Company.
It was furtlier averred that the syndicate
acquired the ownership of all the bonds of
the Nebraska ft Western Railway Company,
and that they became subject to the lien of
the Union Loan ft Trust Company; yet that
A. S. Garretson, *on or about October 1,1891, [477]
without any apparent record or other author-
ity from the union Loan ft Trust Company,
caused all of the Nebraska ft Western bonds
and 7,200 shares of Sioux City ft Northern
Railroad stock to be transferred to Tod ft Co.
as security for a loan of one million dollars,
but tiharti Tod ft Co. were cfhargeable wiUi
notice of Gkirretson's want of authority.
That the Nebraska ft Western Railway
was built by the Wyoming ft Pacific Improve-
ment Company, which was practically owned
and controllea by the Manhattan Trust Com-
pany, and that the improvement company
received stock and bonds of the Nebraska ft
Western Company, and delivered them to the
Manhattan Trust Company, by which they
were pledged, or held in trust, as security for
loans negotiated and advanced by it to the
improvement company, including a loan of
$500,000 by Belmont ft Co., all of which were
outstanding when, on November 1, 1890, the
improvement company collapsed, to the
knowledge of Tod ft Co.
That to relieve itself from impending lost,
the Manhattan Trust Company, by untruth-
247
: ~*^ ^r."-* •
im.
Hubbard t. Tod.
4o.-4oa
Beeiiriti€6 on the market ; and its financial
managenvint was intrusted to him.
The so-called railroad syndicate agreement
was entered into July 3, 1889, by A. S. Gar-
TttBon, John Homick, J. E. Booge, Ed. Haak-
inBon, and D. T. Hedges, for the purpose of
bmldhig and equipping the Sioux City &
Korthem Railroad, and provided that all
money borrowed and contracts made for the
building and equipment of the road should
be borne equally by the paitiefl; tiwut where
notes were executed by one for the purposes
expressed, each should be equally liable there-
for; that all money borrowed should be
placed to the credit of John Homick, trustee,
it the office of kue Union Loan & Trust Ck>m-
pany; and that the contract should continue
ontil the railroad should be completed audits
debts paid ; and be lodged with the company.
The agreement contained no provision that
the money borrowed for the uses of the co-
partnership should be borrowed from or
through the Union Loan & Trust Company;
nor any stipulation for the depositing with
that company of the stock and bonds of the
Sioux City ft Northern Railroad, as security
for any money the syndicate mi^ht borrow.
It appeared that when the Union Loan &
Trust Company desired to rediscount or sell
notes, it sent out a circular offering them at
a considerable discount, and reciting "in
crerr case we hold good and sufficient secur-
itf trom the maker;" but it did not appear
that the holders of notes, the creditors rep-
] resented *by the assignee, took them on the
faith of any pledge of the securities in ques-
tion. Nor was any reference thereto made
in the notes themselves. The understanding
between the syndicate and the Union Loan
k Trust Company, that railroad securities
shoiUd be deposited to secure syndicate pa-
per, rested on conversations between the par-
ties, and did not involve the liberty of the
lyndicate to borrow elsewhere; nor did the
understanding permit securities held for
moneys advanced to one enterprise to be held
IS security for any other.
The Sioux City & Northern Railroad was
eonstrncted by the syndicate, some of the
money being raised on notes of its members,
whidi were discounted by the Union Loan &
Trust Company, the process credited to
Homick, trustee, and drawn against as pro-
vided in the agreements
The road was completed in January, 1800,
and the syndicate acquired its first-mortgage
bonds for $1,920,000, secured by mortgage to
the Manhattan Trust Company as trustee,
and fts capital tftock of about 14,400 shares.
None of the shares of thin stock ever stood in
the name of the Union Loan & Trust Com-
pany, nor did any of the bonds ; nor did the
books of the company contain entries refer-
ring^ to the collateral in controversy as
pledged to secure syndicate paper or the com-
pany's indorsement thereof.
The bonds came into the custody of the
Vnkn Loan & Trust Company before they
were certified by the Manhattan Trust Com-
pany, and on February 24, 1800, Smith, sec-
retary, transmitted them to the Manhattan
Troit Company to be certified, but did not
171 ir. 8.
request that tney should be returned. On
the same day Garretson directed the Man-
hattan Trust Company to certify the bonds
and hold them subject to his order; and on
March 12, 1890, Smith, secretary, directed
the Manhattan Trust Company to issue its
receipt for said bonds to A. S. Garretson, in*
dividually, which was accordingly done.
Efforts to sell the bonds were made, and,
in furtherance thereof, August 26, 1890, Gar-
retspn directed the Manhattan Trust Com-
pany to ship the bonds to the Boston Safe
Deposit & Trust Companv, Boston, to be held
subject to the order of P. V. Parker & Co.,
and the bonds were so shipped.
* Subsequentl V, Garretson hypothecated por- [MS]
tions of these bonds to secure his own notes
given for loans made for the purpose of ac-
quiring control of the Nebraska & Western
Railroad, forming part of the "Pacific Short
Line" enterprise, promoted to build a road
from a point on the Missouri river opposite
Sioux City westward to Ogden, Utah.
In the latter part of December, 1890, or
early in January, 1891, Garretson and
HedjKCS offered the Sioux City & Northern
bonds to Tod & Co. at 90 cents, but no pur-
chase was made. Tod & Co. offering 66|. A
few weeks later. Tod & Co. were asain ap-
plied to and they purchased the bonds at 75
cents. The evidence tended to show that
out of the proceeds Garretson's notes to the
aggregate of $690,000, secured by 920 Sioux
Ci^ S Northern bonds, were taken up, and
$750,000 were paid over to the Union Loan
& Trust Company, and credited to the syndi-
cate.
II. The Nebraska & Western Railway
Company was organized in 1889, and on the
first day of July of that year made and ex-
ecuted its mortgage to the Manhattan Trust
Company to secure its issue of bonds to the
amount of $2,583,000.
It then contracted with the Wyoming-
Pacific Improvement Company to construct
and equip the road, which was to receive
therefor the bonds of the railway company,
to be delivered by the Manhattan Trust Com-
pany as issued and certified to by it, and in
this way the improvement company became
the owner of the bonds. On Februarv 1,
1890, the improvement company enterea in-
to an agreement with the Manhattan Trust
Company, under which the latter procured
for the former, on its notes, loans to the
amount of $1,050,000, secured by bonds held
in trust in the ratio of two dollars in bonds
to one dollar in money, loaned. At the same
time an underwriter's agreement was entered
into between the improvement company and
the subscribers thereto, by which if the loans .
were not paid the bonds were to be taken at
fifty cents on the dollar.
Of this loan Belmont & Co. took $500,000,
and Garretson & Hedges $125,000 each.
Garretson, Homick, and Booge had pre-
viously become subscribers *to the enterprise [48^
to the extent of $100,000 for certificates of
the improvement company, and they, and
Hedges and Haakinson, executed an agree-
ment Februarv 15, 1890, agreeing that, for
the purpose of securing the "construction of
249
488-485
SUPBEMB Ck>nBT OF THB UVITED 8TATE8.
Oct. Tbbm.
Che Pacific Short Line from Sioux City west-
ward to O'Neill/' they would raise $350,000,
#250,000 to be loaned the improvement com-
pany on the security of $500,000 first-mort-
^^age bonds of the Nebraska Sc Western Rail-
wviy Co., held by the Manhattan Truai Com-
pany, and $100,000 certificates of the im-
provement company to be assi|p3^d to the
syndicate bv the original subscribers.
The Manhattan Trust Company held $2,-
100,000 of the Nebraska ft Western bonds to
secure the $1,050,000 loan and, subsequently,
$483,000 more to secure other loans.
About November 1, 1890, it became neces-
sary to provide for the payment of the loan
hy Belmont & Co.
On that date Garretson borrowed through
the Manhattan Trust Company $500,000 on
his individual notes secured by $750,000
Sioux City ft Northern bonds, and took up
the Belmont loan of $500,000. He at the
flame time n^otiated with the officers of the
Manhattan Trust Company touching other
loans to the improvement company under the
underwriter's agreement to the effect that
the Manhattan Trust Company should cause
said loans to be renewed orplaced elsewhere
And that the Nebraska ft Western bonds in
possession of the Manhattan Trust Company
flhould be used as collateral.
And January 28, 1891, Garretson entered
Into a written agreement with the Manhat-
tan Trust Company for the taking up of the
then outstanding notes and receiving the col-
lateral held as security therefor.
Among the transactions, Garretson bor-
rowed in February, $190,000 secured by 170
Sioux City ft NorUiem bonds, and the equity
in the 750 bonds held to secure the $500,000
loan. These loans were paid out of the pro-
ceeds of the sale of the whole issue of the
Sioux City ft Northern bonds, as before
stated.
ihe testimony of Garretson was relied on
{484] to sustain the ^charge that the Manhattan
Trust Company perpetrated a fraud on him
at the time he entered into negotiations to
assume or take up the obligations of the im-
provement company, in the acquisition of the
Nebraska ft Western road, in that it misrep-
resented the amount of that oompanv's in-
debtedness. The officers of the Manhattan
Trust Company positively denied any such
misrepresentation ; and the eighth paragraph
of Garretson's contract with the Manhattan
Trust Company of January 28, 1891, de-
clared: "This agreement and the settlement
herein made is in full adjustment and settle-
ment of all questions heretofore arising be-
tween the parties hereto, in reference to the
flaid improvement company or the construc-
tion of the Nebraska ft Western Railway, and
the first party agrees that his note for $500,-
4)00 heretofore given on taking up certain
loans shall be paid at or before maturity."
The evidence did not show that if there had
been any misrepresentation, Tod ft Co; had
any knowledge in fact thereof, though at one
time a member of the firm, now deceased,
was a director of that trust company, and
its counsel was also Tod ft Co.'s.
After Gkirretson had become the holder of
«50
the obligations of the improvement compaav
and the Nebraska ft Western bonds, he eusei
the bonds to be sold on May 27, 1801, aatf
June 24, 1891, pursuant to a demand made
on the Manhattan Trust Company as trustee
and to notice given, and at the sale purchased
all the bonds of the Nebraska ft Western
Railway Company.
In June, 1891, Tod ft Co. loaned Garretm
$75,000 on $200,000 Nebraska ft Westen
bonds as collateral.
III. October 1, 1891, Garretaon entered im
to a contract with Tod ft Co. to borrow one
million dollars, which recited that Garretna
was the holder of $2,500,000, or thereabouti,
of Nebraska ft Western bonds; of 25,000
shares of the stock of the Nebraska ft West-
ern Railway Company, and of 7,200 shans
of the stock of the Sioux City ft Northen
Railroad Company; that proceedings vert
pending for the foreclosure and sale of the
Nebraska ft Western Railway; and that Gar-
retson desired to borrow money, purchase
the road, form a new corporation, and obtaia
a new issue of b(»ds and stock; *and Tod [48
ft Co. agreed to make or procure him a Iosb
on these terms: Garretson to deliver to Tod
ft Co. his two hundred promissory notes ol
$5,000 each, dated October 1, 1891, and paya-
ble on demand, and to deposit as security
for the equal and common benefit of all who
should become holders thereof the Nebraska
ft Western bonds, the shares of Nebraska k
Western stock, and the shares of Sioux City
ft Northern stock ; Tod ft Co. to procure thi
sale of the notes at par, and to advaaet
thereon at once $200,000, if required in oh*
taining title, the collateral to be bdd by
Tod ft Co. for the eaual benefit of the hMtn
of the notes; on tne reorganization oi the
Nebraska ft Western Railway Company ai-
der the foreclosure, a new mortgagee to bt
executed to the Manhattan Trust Oonpaay
to secure a new issue of bonds at the ratt
of $18,000 per mile, and the whole amount of
such issue, $2,340,000 and one half of tht
capital stock of the new oompaaj to be de-
livered to Tod ft Co. in the maee of the N t>
braska ft Western bonds ana atoek. If the
Nebraska ft Western bonds were required te
be deposited in court, the road was to bt
purchased in the name of trustees, and is-
til the new corporation was formed and at*
bonds and stock delivered, no more thai
$600,000 was to be paid over to GarrotMa,
the balance to remain to his eredit with tht
banking company.
The new bonds were also to be further »
cured by all the stock of the Pacific Brid^
Company except such part not exoeedinjr fif^
shares as should be necessary to qoali^
directors. The note holders were also gim
certain options, and Tod ft Co. were to i*-
ceive one per cent commission for thdr ssrr>
ices.
The notes representing this mUlion-dotlsr
loan were not executed October 1, 1891. bat
were thereafter prepared and sent to Ganst*
son at Sioux City, were there executed by
him, and were received by Tod ft Co. Oetobff
26, Garretson being credited with the pria-
cipal and tMrenty-flve days* interest
One million of the Nebraska ft Weittn
171 IF- 1^
1896.
HuBBiLBB ▼• Tod.
485-488
bonds were delivered to Tod & Co. October
19, 1891, $800,000 by the Manhattan Trust
Company and $200,000 by Tod & Co.'s
cashier, which had been pledged to them to
secure the loan of $75,000, and these bonds
M]*were sent that day to Wickersham, Tod &
Cc's aUorney and agent at Omaha, to be
used in the purchase luider the foreclosure.
Odb hundred and fifty thousand dollars of
the bonds had been delivered to the St.
(diaries Car Company, and were received by
Tod 4 Co. October 27, and forwarded to
Wickersham that day.
Of the remainder of the bonds, 500 were
held by the Manhattan Trust Company as
collateral to the $250,000 subscribed hy Gar-
retson and Hedges to the underwriter's
•greeroent, and had been shipped to the
Union Loan & Trust Company oy the Man-
hattan Trust Company by direction of Qar-
retson, December 2, 1890.
And $933,000, which had been lodged in
Tod k Co.'s custody by Oarretson, had been
sent to the company in August, 1801, on his
instructions, which contained nothing to in-
dicate that the Union Loan & Trust Com-
pany had any claim of lien thereon, or right
thereto, while Tod & Co. testified that they
■apposed they were transmitted as a mere
matter of safety deposit.
These bonds for $1,433,000 were sent to
Garretson at Omaha by the Union Loan &
Trust Company, and delivered by him to
Wickersham.
Hie railroad was sold imder the foredos-
ore decree October 23, 1891, and bought in
hj Garretson and Wickersham as trustees
for the holders of the flrst-mortsage bonds
of the Nebraska & Western Railway Com-
pany, and on October 30 the entire issue,
12^83,000, was deposited by Wickersham
with the clerk of the court, and the sale
thereapon confirmed.
The road was reorganized under the name of
tiie Sioux City, O^eill, & Western Railway
Company, and Wickersham and Garretson
18 trust^ conveyed the property to the new
eompany in excnange for the issue of the
hcmos and stock.
Pending the issue of the engraved bonds
of the Sioux City, O'Neill, Sc Western Rail-
vav CompanVy a temporary bond was issued
m delivered to Tod & Co., and afterwards
exchanged for the engraved bonds.
All the bonds of the company were thus
pledged to secure the $1,000,000 loan with
o7]the full knowledge and participation *of
Garretson, and of Smith, secretary and treas*
orer of the Union Loan & Trust Company.
Some of the notes issued under this loan
were sold to various parties and some re-
tabed by Tod & Co.
It having been intimated that payment of
the one million-dollar loan would be reauired,
Garretson applied to Tod & Co. for uie ne-
gotiation of a loan of $1,500,000. It was
eontemplated that the notes of the Sioux
CJity, OT^eill, & Western Railway Company
for that amount should be given, to be se-
eared by the bonds of that company and the
«tock of the Sioux City & Northern Com-
mjj then in pledge with Tod & Co. But
Tod k Co. were advised by their counsel that
ni u. s.
the railway company was not authorized un-
der the law of Nebraska to contract so large
an indebtedness in excess of its outstanding
bonds, and thereupon it was su^jgested that
Garretaon should sell the securities to the
Pacifie Short Line Bridge Company and re-
ceive back the notes of that company for
$1,500,000, to be secured by a pledge of said
securities, and that Tod & Co. should nego-
tiate a sale of these notes on the strength
of the securities thus pledged.
The Pacific Short Line Bridge Company
was a corporation of Iowa, organized for the
Surpose of constructing a bridge across the
[issouri River at Sioux City, as a part of
the Nebraska and Western enterprise. Its
stock was divided into 20,000 shares of $100
each, which were issued November 13, 1891,
in four certificates of 5,000 shares esLch, in
the name of "A. S. Oarretson, trustee," and
these certificates were delivered by Oarret-
son, November 19, 1891, to Tod k Co., who,
on December 14, delivered them to the Man-
hattan Trust Company as trustee under the
mortgage of the Sioux City, O'Neill, & West-
ern Railwav Company, pursuant to the mil-
lion-dollar-loan agreement of October I,
1891. The bridge company had executed a
mortgage to secure $1,500,000 of bonds, but
of these only $500,000 had been certified by
the trustee, and it did not affirmatively ap-
pear that any had been negotiated. Garret-
son testified that the purpose of the $1,500,-
000 loan was to take up the million-dollar
loan and to get "additional funds with which
to carry on the construction of the bridge
to a *point where we could get money from [488]
the bonds of the bridge to complete it."
December 26, 1892, the Pacific Short Line
Bridge Company, at a meeting of its board
of directors, passed a series of resolutions
by which it agreed to purchase the bonds of
the Sioux City, O'Neill, & Western Railway
Company, and 10,200 shares of the capital
stock of the Sioux City k Northern Com-
pany, and to give therefor its promissory
notes in the sum of $1,500,000 to the order
of Garretson, dated December 30, 1892, and
to pledge said bonds and stock to Oarretson
as security. Accordingly on December 31,
1892, a contract was entered into between
Garretson, Hedges, Homick, and Haakinson
(the remaining member of the syndicate,
Booffe, havinff tailed and dropped out), and
the Pacific Snort Line Bridge Company, by
which the bridge company purchased the se-
curities and agreed to give its notes there-
for, payable to Garretson's order, February
1, March 1, and April 1, 1894, bearing date
December 30^ 1892, to be forwarded to Tod
& Co. to be delivered to Garretson or his
order, or held by Tod & Co. as trustees to
secure the payment of said notes. The notes
were to pro^de, and when issued did pro-
vide, that on thirty days' default in payment
of interest, the principal was to become due
and payable at the option of Tod & Co., on
behalf of the holders, to be exercised on the
written request of a majority.
Tod & Co. negotiated a sale of the notee
through the Union Debenture Company, a
corporation of the state of New Jersey, which
was evidenced by a contract under date of
251
48^-491
SUPBBMB COUBT OF THB UhTTBD StATXS.
Oct. Tcbm,
December 80, 1892, between (Jarretson and
that company, which recited that the notes
were to be secured by the 2,340 Sioux City,
O'XdU, & Western bondjs and 14,200 Etharos of
the Sioux City & Northern stock, by an in-
denture of trust with Tod & Co. December 31,
Garretson entered into this indenture of
trust whereby he pledged the said bonds and
stock to Tod & Co. as trustees for the equal
and pro rata benefit and security of all the
holders of the notes, it being provided that
if default should be made in the payment of
the principal or interest of any of the notes,
the trustee, on request, might declare the
[489]*principal and interest due and sell the bonds
and stock at public auction, and that the
holders might appoint a purchasing trustee,
in whom, if he boueht at the sale, the right
and title to the bonds and stx>ck [should vest]
in trust for all the note holders in proportion
to the amounts due them respectively.
The note holders were given certain op-
tions, and Garretson agre^ to pay the de-
benture company three and a half per cent
commission.
As already set forth, Tod & Co. then held
the 2,340 bonds and 7,200 shares of Sioux
City & Northern stock. Of the remaining
7,000 shares of this stock to be pledged un-
der the agreement, 6,190 shares were deliv-
ered to T(kI & Co. by Grarretson in December,
1892, in New York, and certificates for 1,000
shares were sent to Tod & Co. by Smith, sec-
retary, January 16, 1893. All these shares
were transferred by members of the syndi-
cate. In March, 1893, Tod Sc Co., as author-
ized by the indenture of trust, at the request
of Garretson, released and delivered to the
treasurer of the Great Northern Railroad
Company 3,000 shares, which Garretson had
sold to that company for $350,000 in cash,
all of which was received by Garretson. W.
S. Tod testified that his firm supposed the
proceeds of this sale were to be applied
towards the construction of the bridge, and
the evidence tended to show that the money
was paid over to the Union Loan & Trust
Company to be applied in payment of notes
of the syndicate.
The notes for the $1,500,000 were executed
and indorsed by Garretson, and the transac-
tion closed, January 30, 1893, and on that
date the Union Debenture Company turned
over to Tod & Co. $1,507,500, being principal
with accrued interest, and thereupon Tod &
Co. paid off the million-dollar loan with ac-
crued interest, $1,004,833.33. They thus re-
leased the $2,340,000 Sioux City, O'Neill, &
Western bonds, the 18,000 shares of Sioux
City & Western stock, and 7,200 shares of
Sioux City & Northern stock, and delivered
to themselves as trustees under the indenture
of trust the bonds, 10,200 shares of Sioux
City & Northern stock and also 4,000 of the
latter stock; and certified and delivered the
bridtre notes to the debenture company.
[490] *These notes contained the provision that
they might be declared due on default in pay-
ment of interest or principal, and that they
were secured by the indenture of trust of
December 31, 1892, and the deposit of the
bonds and stock as collateral.
252
The Union Debenture Company was a co*-
poration of New Jersey, with a capita] stock
of $300,000 and over $800,000 of assets, and
had issued and had outstanding $500JX)0 of
twenfy-year debenture bonds, which had beo
sold mainly in England, Scotland^ and Hol-
land. Tod & Co. owned one third of thi
capital stock, and the business of the eon-
pany was transacted through Tod t Co. u
brokers. The notes in question, except
about $40,000 retained by the debentaie cob
pauy, were sold by them as brokers to varioai
persons, including $590,000 to parties abroad
and $500,000 to the Great Northern lUilivij
Company, but Tod & Co. took no part of Um
loan.
The commission of three and one-half i<r
oenit, $52,500, w&s paid ix) the debenture eon-
pany by Tod & Co.
The remainder of the proceeds of the $1,-
500,000 loan, after the discharge of the mil-
lion-dollar loan, the payment of the eoounit-
sions, and of a temporary loan of $30 4kM) to
Garretson, was paid over on Garretaoo'i
drafts, to the Union Loan & Trust Conpany,
to be applied to the payment of bridge eA
mates and to the credit of Homick, trustee.
About $200,000 was applied on bridge ac-
count.
All the members of the syndicate were par-
ties to the agreement by which the bondi
and stock in controversy were sold to tht
bridge company, and kne^ of the use Gar-
retson prom>sea to make ot the notes and »
curitiee. They did not repudiate the trana-
action, and never made any oomplaiot or
gave any notice to Tod & Co. that Garretson
was wrongfully pledging the oollateraL Tod
& Co. rendered full accounts of the two loans
to Garretson, which were sent by him te
Smith as they were received.
Garretson was a prominent man in bai^*
ing, financial, and railroad cirdes when be
began his dealings with Tod & Co., and cos-
tinned to be so until 1893. He had been, or
was, an officer of many business eorporatioiis \
or companies; and one *of the d^ief proaiot*[d4
ers and builders of the Sioux City4Korthcn
Railway, and organizers of the Union Loaa
& Trust Company. He was hiffhly neom-
mended to Toa dt Co. by the preaideot of tho
Great Northern Railway Company, of w)iieh
J. Kennedy Tod was a director. Mr. Tod
stated that they believed during the negotia-
tions between their firm and Ghurrtson tkat
he was a man of large wealth. !
The Tods testified that they knew nothinf
of the dealings between the l£uihattan Trust
Company and the improvement oompaay. or
of the loan transactions of the improrfment
company, and had no connection therewith:
that tney had no knowledge or notice of any
claims of the Union Loan dt Trust Oompaay
to these securities at or before the time the^
were pledged to secure either the loan for
$1,000,000. or the loan for $1,500,000, and tba
first information they had of any such daia
was after default had been made in the pay*
ment of interest on the latter loan.
The interest on the notes was payable July
1, 1893, and January 1, 1894, and the inters
esft due July 1, 1893, not haviiw been paid.
171 V. S.
Hubbard ▼. Tod.
491-494
•ad the default haying continued for thirty
days. Tod ft Co., on a request of a majority of
tt« note holders, declared the principal due,
and adrertised the securities for sale on
September 19, in accordance with the inden-
tare of trust, due notice being given, which
Mle was adjourned to Septenober 26, at the
instance of the creditors of the Union Loan
4 Trust Company, when the sale took place,
and Tod A Co. bought the securities as pur-
efaasinff trustees, thereto duly appointed, and
held the same for the benefit of the holders
of the notes. Certificates were issued by
Tod k Co. as such purchasing trustees that
they so held the securities and that each of
the note holders was entitled to a three-hun-
dredth part interest for every $5,000 note de-
poeited*
After the interest had defaulted Tod &
Go. were interviewed on behalf of some of the
creditors of the Union Loan ft Trust Com-
pany, and an offer to pay the defaulted inter-
est was made on condition that such credit-
ors should be put in control of the board of
directors of the Sioux City ft Northern Rail-
road Company, but with this condition Tod
fi]t Co. were without ^authority to comply, and
the creditors committee declined to pay. No
money was tendered.
According to the evidence of the Tods it
was then, for the first time, that Tod ft Co.
received any intimation that their right to
hold the securities was questioned by the
Union Loan ft Trust Company or its cred-
itors.
The circuit court entered a final decree au-
thorizing the redemption of the securities
bj the intervener on payment to Tod ft Co.,
as trustees, of the sum of $1,500,000, with
interest thereon from December 30, 1892,
eotnpated with semiannual rests, to the date
of payment.
Tlie opinion is reported 65 Fed. Kep. 559,
and it appears therefrom that District Judge
Shiras, by whom the cause was heard, held
that the transactions prior to the million
and a half loan could not be passed on, but
that the inquiry at issue was to be deter-
mined by considering the contracts under
which Tod ft Co. obtained possession of and
claimed title to tiie 10,600 shares of Sioux
City ft Northern stock, and the $2,340,000 of
Sioux City, O'Neill, ft Western bonds held
by them.
After a brief review of the formation of
th^ syndicate and its dealing^ with theUnion
Imh ft Trust Company, the conclusion was
drawn "tliat the trust company, as against
the members of the syndicate, is entitled to
the benefit of the securities which were
placed in its possession, and upon the faith
of which it may be assumed it indorsed the
syndicate paper," but that it was fairly de-
ducihle from the evidence that "the trust
company parted with the possession of the
securities, knowing that it was intended to
rehypothecate them," and that "it is not now
open to the trust company to repudiate the
acts of its secretary and treasurer in regard
to these securities, by whose action in plac-
ing the same in the possession and under the
control of Garretson the latter was enabled
171 V. 8.
to repledge the same as security for further
advances.'* That "the fair inference from
the entire evidence is that the trust company
consented to the repledging of these securi-
ties, in order that further funds might be
procured for carrying on the work in ques-
tion, but by so doing it did not abandon its
*lien upon or eouity in the securities, but [493]
only subordinatea its rights to those created
by the repledging of the securities."
That the sale of the securities by Tod ft
Co. under the provisions of the trust agree-
ment of December 31, 1892, did not devest tho
trust company, or its assignee, of the junior
lien on the securities, and that its right to
redeem remained because the $1,500,000 of
notes were not purchased in the ordinary
course of business, nor in fact issued by the
bridge company in connection with its busi-
ness, but made at the dictation of the syndi-
cate on the suggestion of Tod ft Co., and
operated as a fraud on the bridge company;
that the use of its name was in reality a
matter of form merely, and was so under-
stood ; and that the transaction must be con-
sidercKl as a loan to the syndicate, secured
by a pledge of the collateral, which lien was
superior to that existing in favor of the trust
company.
Tlie suggestion as to usury was dismissed
on the ground that in any view equity re-
quired the payment of the sums advanced
with interest, and no ofTer to do this was
made by the intervener.
From the decree the intervener prosecuted
an appeal to ine circuit court of appeals for
the eighth circuit, assi^ing as error, in sub-
stance, that the circuit court erred in not
finding that intervener had a prior lien;
that the securities were wrongfully taken
from the Union Loan ft Trust Company, and
that defendants were not bona fide holders
and took with notice; that the loans were
usurious and void, and defendants, there-
fore, unable to hold the securities as against
the intervener.
Defendants also appealed from the decree,
assigning as error the failure of the court to
sustain objections to certain evidence; the
allowance in the final decree of leave to in-
tervener to file his second amended petition;
and the award of redemption.
The cause was heard in the court of ap-
peals by two circuit judges, and the decree
affirmed by an ec^ual division; but on a peti-
tion for rehearing by the intervener an
opinion was filed from which it appeared that
both judges were agreed *that appellees* lien [494]
on tne securities was paramount to anv claim
of intervener, but that they were divided on
the question whether or not the right of re-
demption was cut off by the auction sale un*
der the loan agreement.
The intervener then applied to this court
for a writ of certiorari, which was granted.
Messrs. John O. Ooombs, Henry J.
Taylor, and WilUcnn Faxon, Jr,, for appel-
lant:
An eauitable lien may be created by agree-
ment of the parties.
Walker v. Broum, 166 U. S. 664, 664 41 L.
253
-a ..-
-1
I
f
-a
HuBBABD ▼. Tod.
, 12 Gray, 836; Van Winkle t.
QrowOl, 146 U. S. 42, 36 L. ed. 880; Bailey
r. H&roey, 136 Muba. 172 ; Jacobs y. Laiour,
ft^ng. 130; Ayling y. WiUiama, 6 Car. & P.
^T^OfM^ ▼. Oliff, 6 Car. 4 P. 660; WMie
7. Gainer, 2 Bing. 23.
Mettm. Oeorse W.Wiokersham,Jol&n
L. Webatevt Francis B, Daniels^ and Strang
* Cadwalader, for appellees:
The evidence fails to ef tablish the all^g[ed
.Jtdge or agreement to pledge the securities
a controversy to the Union Loan & Trust
^mpany.
3 Pom. Eq. Jnr. I 1236; WaZker y.
Jn>¥m, 166 U. & 664, 41 L. ed. 866.
The entire course of dealing pursued bv
^ Union Loan & Trust Company is at vari-
jiee with tbe contention of its assignee that
.udi of the securities aM were ever in its
.jMsession were wrongfully withdrawn from
s custody.
Leicester Piano Co, v. Front Royal d R.
at^rov, Co. 8 U. 8. App. 374, 66 Fed. Rep.
iO, 6 C. C. A. 60; Moore v. H. Cfaus d Sons
'fg. Co. 113 Mo. 08; Fifth Ward Sav, Bank
First Nat, Bank, 48 N. J. L. 613; Martin
Webb, 110 U. 8. 7, 28 L. ed. 49; Fifth
''«!. Bank v. Navassa Phosphate Co, 119 N.
. 256; Hartin y. Niagara Falls Paper Mfg.
'\ 122 N. Y. 166; BeU v. Hanover Nat.
"vik, 67 Ked. Rep. 821 ; Hanover Nat. Bank
Imerioan Dock d Trust Co. 148 N. T. 613.
The trust compamy delivered the securi-
*<i either to Too &, Co. or to Qarretson for
'edge to them, in such form as to enable
"srretson to hold himself out as owner of
*^€DL These facts estop the company and
'•« assignee from now asserting title to the
cnrities.
Donald v. Suckling, L. R. 1 Q. B. 686;
^yiel V. Tetith Nat. Bank, 46 N. Y. 326, 7
m. Rep. 341; Merchants' Bank v. Living-
ofi, 74 N. Y. 223; Moore v. Metropolita/n
at. Banib, 66 N. T. 41, 14 Am. Rep. 173;
•tltp V. Freedman's Sap. d T. Co. 93 U. S.
.1, 23 L. ed. 886; Calais S. B. Co. v. Scud-
-r, 2 Black, 372, 17 L.ed. 282 ; Indiana d I. C.
.. Co. V. Sprague, 103 U. S. 766, 26 L. ed. 664.
Where the owner intrusts a stodc certif-
ate indorsed in blank to another, who
lU or pledffes it for value, the latt^ may
jld the stodc.
First Nat. Bank v. Lanier, 11 Wall. 369,
' L. ed. 172; Cowdrey v. Vandenburgh, 101
a 672, 26 L. ed. 923 ; Leitch v. Wells, 48
. Y. 586 ; Swift v. Smith. 102 U. 8. 442, 26
ed. 103; AUen v. St. Louis Nat. Bank, 120
S. 20, 30 L. ed. 573 ; Peoples Bank v.
' inufacturers' Nat. Bank, 101 U. 8. 181, 25
ed. 907; Railroad Companies v. Schutte,
'^3 U. 8. 118, 26 L. ed. 327; Rumsey t.
'vm, 20 Fed. Rep. 668 ; Sandwich Mfg. Co.
Wright, 22 Fed. Rep. 631 ; Clapp v. Nord-
-yer, 26 Fed. Rep. 71 ; Ooff v. KeUy, 74
^ d. Rep. 327.
Snbrogaiion will not be allowed when it
inequitable or will prejudice the rights of
-ditors.
Meyer y. Evans, 66 Towa, 179 ; Lyon v.
mnoil Bluffs Sav. Bank, 29 Fed. Rep. 666.
Bat even if the trust company had a lien,
'^d was not estopped from assertinff it, there
ts an utter failure 9i proof that Tod and
71ir. S.
Co., when they received the pledge of tte
collateral in question from Qarretson, had
any. notice of any defect in his title to the
securities, or of any interest of the Union
Loan & Trust Company in them.
Cheever v. Pittsburgh, 8. d L. E. R. Co,
160 N. Y. 59, 34 L. R. A. 69; Murray v.
Lardner, 2 Wall. 110, 17 L. ed. 857; Stanley
V. Sthwalby, 162 U. S. 255, 40 L. ed. 960;
Clark V. Evans, 27 U. S. App. 640, 66 Fed*
Rep. 203, 13 C. C. A. 433.
The circumstances amounting to notice
should always be strictly proved.
Totonsend v. Little, 109 U. 8. 504, 27 L.
ed. 1012; 16 Am. k Eng. Enc. Law, p. 796.
A purchase is not bound to look for la-
tent equities.
Acer V. Westcott, 46 N. Y. 384, 7 Anu
Rep. 365; Bank of the Metropolis v. New
England Bank, 6 How. 212, 12 L. ed. 409.
There is no duty to inquire, if the in*
quiry would not laid to a discovery of facte
changing the rights of the parties.
Lea V. Polk County Copper Co. 21 How*
493, 16 L. ed. 203; Wilson v. Wall, 6 Wall.
83, 18 L. ed. 727 ; Brush v. Ware, 16 Pet. 93,,
10 L. ed. 672.
While the construction of contracts-
made by a dominating stockholder with a
railway company for his own benefit are
looked upon with suspicion, yet their legal
existence cannot be questioned by third per*
sons who are not injured thereby.
Wright V. Kentucky d O. E. R. Co. 117 U»
8. 72, 29 L. ed. 821 ; Union P. R. Co. t.
Chicago, R. I. d P. R. Co. 10 U. 8. App. 98,,
51 Fed. Rep. 309, 2 C. C. A. 174; Tod v.
Kentucky Union Land Co. 57 Fed. Rep. 47.
The defense of usury is personal to th9
borrower and those in privity with or daim*
ing under him.
Culver y. Wilbem, 48 Iowa, 26, 30 Am.
Rep. 386; De Wolf v. Johnson, 10 Wheat.
367, 6 L. ed. 343; Merchants' Exch. Nat^
Bank v. Commercial Warehouse Co. 49 N.
Y. 635 ; Chapuis v. Mathot, 91 Hun, 566.
The auction sale on Soptember 26, 1893,.
cut off all equity of redemption of the Union
Loan & Trust Company or its assignee in the
securities
Elliott v. Wood, 46 N. Y. 71 ; Richards w.
Holmes, 18 How. 143, 16 L. ed. 304; Rose y»
Paige, 82 Mich. 106; Campbell v. Wheeler,
69 Iowa, 688; Wylder v. Crane, 53 111. 490;
French v. Powers, 120 N. Y. 128.
The effect of an unauthorized sale and
purchase by the pledgee is to leave the^
property wnere it was.
Terry v. Birmingham Nat. Bank, 93 Ala.
599 ; Day v. Holmes, 103 Mass. 306 ; Fay v.
Ciray, 124 Mass. 600; Stokes v. Prazier, 12
111. 428 ; Jones, Pledges, § 741 ; Bryan v.
Baldwin, 52 N. Y. 232; Collins v. Riggs, 14
Wall. 491, 20 L. ed. 723; Jones v. Van-
Dorm, 130 U. S. 684, 32 L. ed. 1077 ; Cun-
ningham V. Macon d B. R. Co. 166 U. 8. 400,
30 L. ed. 471.
If the pledgeor comes into a court of
equity he must do equity by first paying the
debt secured and allowing for other set-offs.
18 Am. & Eng. Enc. Law, p. 727; Taltff
v. Freedman*s Sav. d T. Co. 93 U. 8. 321, 2S
L. ed. 886.
25S
•'•I jf* »*?
buPRiSMB Court op the United ^tai^o.
i/ii. 'itujk,
t494] «Mr. Chief Justice FuUer delivered the
Opinion of the court:
It is provided by the judiciary act of
March 3, 1891, that any case in which the
Judgments or decrees of the circuit court of
appeals are thereby made final, may be re-
quired, by certiorari or otherwise, to be cer-
tified to this court "for its review and deter-
mination, with the same power and author-
ity in the case as if it had been carried by
appeal or writ of error to the supreme
court."
This case belongs to the class of cases in
which the decree of the circuit court of ap-
peals is made final by the statute, and having
been brought up by certiorari on the applica-
tion of petitioner below, is pending before us
as if on his appeal.
And as respondents did not apply for cer-
tiorari, we shall confine our consideration of
the case to the examination of errors as-
signed by petitioner.
These errors as assigned in the brief of
counsel are, in short, that the circuit court
erred, (1) in not establishing^ the priority
of pcrtitioner's lien or righit m and to tne
securities; (2) in subordinating that lien or
right, and decreeing foreclosure unless pay-
ment was made as prescribed; (3) in not en-
tering a decree giving priority to petitioner
because respondents set up absolute title by
purchase, which was not sustained by the
court; (4) in not restraining respondents by
injunction and not ordering the surrender of
the securities to petitioner.
[495] *The supposed errors in decreeing forecloe-
ure, and that respondents were entitled to
hold as pledgees notwithstanding their title
by purchase was so far defective as to let in
redemption, may readily be disposed of.
This was not a proceeding by Tod & Co. to
obtain foreclosure. It was petitioner « who
sought the aid of the court, and this by an
application which was, in efifect, a bill to re-
claim the securities absolutely and free from
encumbrance. The circuit court treated the
pleading as if framed in the alternative, and
allowed redemption on conditions stated, the
right thus accorded being necessarily de-
clared to be extinguished if the conditions
were not complied with as prescribed. And
no error is assigned to the particular t^rms
imposed.
Nor is there any tenable basis for the prop-
osition that respondents* failure to sustain
their purchase at the sale as a defense af-
fected their rights as pledgees. Respondents
stood on all their rights, and were not put
to an election. If the purchase were valid
the equity of redemption was wiped out. If
invalid, the original lien remained. If su-
perior, its superiority was not displaced by
the claim of absolute title derived through
the pledj^e as set forth in the pleadings.
Assuming that, as between the Union Loan
A Trust Company and the syndicate, the
company or its assignee had a lien on the
securities in question, did the circuit court
err in holding that the rights of respondents
in respect thereof were paramount to those
•eserted by the intervening petitioner?
If not, then although the circuit court
vaay have erred in holding that the sale of
956
the securities did not absolutely cut off tht
claim of the company or its assignee, ♦I'M
would be an error of which petitioner eonld
not, of course, complain.
Petitioner contends that his alleged lien or
right was entitled to priority, becaiDBe the
securities "were wrongfully and fraudnlcBt-
ly abstracted and diverted from said trust
company in subseouent rehypothecation with
respondents;" and respondents did not bold
them as received in good faith, in due eoorae
of business, for value and without notice, but
acquired possession through transacUoiu j
known to be ^fictitious, usurious, ultra vire$,l4M
fraudulent and void, and with notice.
The circuit court and the circuit court of
appeals agreed that respondents' right to the
securities was superior to that asserted by
petitioner, and we entircdy concur in that
conclusion.
So far from the securities being wrongful-
ly abstracted from the trust company, w%
think that, whatever the agreement between
the trust company and the syndicate, th«
trust company must be held to have parifd
with such of the securities as were eref ia
its custody, with full knowledge that thej
were to be hypothecated by Garretson; that,
indeed, the evidence fairly shows that thost
which at any time came into the possessiaa
of the trust company were either deposited
there hj Grarretson or by his order and dir«>
tion, with the understanding on his part that
he was authorized to withdraw them for tht
purpose of sale, pledge, or otherwise, and
that he always acted on that theory, witk
the consent and participation of Smith, u
secretary and treasurer; and that in any
view Smith's acts in the company's behalf
must be held to have been performed with tbt
actual or implied authority of the directors.
Smith, as secretary and treasurer, was the
person who was actively engaged in the man-
agement of the affairs of t£e llnion Loan k
Trust Company, and held out to the pablif
as having unlimited authority to maaaict
its business and dispose of any of its lenxn-
ties. He indorsed in the company's aane
every note it put out, signed every letter that
it wrote, ana was, as respected the puUir,
the trust company itself. Throughout all
the transactions his conduct conceded that
Garretson was the lawful holder of the stock
and bonds tendered by him as collateral to !
the loans he negotiated. As such officer, he
directly transmitted the securities of tht
Sioux City & Northern Railroad Companr
to New York, and likewise the $1,433,000 of
Nebraska & Western bonds to Garrel^^m at
Omaha, to be delivered to the agent of Toi
& Co., under the contract for the raiUitm-dol-
lar loan, and to be turned into court in car- ,
rying out the reorganization scheme •in ae^l^
cordance with which the Sioux City, CXeil!
& Western bonds were to be issued.
It appears to us indisputable on the fart
of this record that Garretson was intntttel
according to the understanding of all par*
ties, with the right to sell the Sioux City
& Northern bonds; that the Union Loan t
Trust Company received the proceeds of a
million dollars of those bonds, thua ratifyiac
the transaction; and that the proceeds of
171 U. S.
1888.
HuBBABD ▼. Tod.
4V7-4U9
the balance were applied with Smith's knowl-
edge, without objection on his part, or that
of inj other officer or director of the trust
company, to taking up notes secured thereby,
, which had been given by Garretson to acquire
the Nebraska & Western bonds, which he af-
terwards pledged to Tod Sc Co., and which
were exchang^ for the bonds of the Sioux
City, (yNeilf, k Western Railroad in con-
troversy.
None of the securities ever stood in the
name <^ the Union Loan Sl Trusft Ck>mpany.
And they were delivered in such form as to
enable Garretson to hold himself out as the
owner or lawful holder thereof, with full
power of disposition.
The district judge well said [65 Fed. Rep.
564] : '^t ia entirely clear that £. R. Smith,
the secretary and treasurer of the trust com-
Btny, dealt with these securities as though
he had full authority from the company so
to do, and he obeyed Grarretson's instructions
in regard to the same without demur; and
it does not appear that the trust company,
or any officer thereof, ever objected to such
disposition of the securities; and, further-
more, so far as the evidence in this case dis-
closes, the general management of the busi-
ness of the trust company was intrusted to
Smith, with but little, if any, supervision
on part of the directors or other officers of
the corporation."
The truth of the matter seems to be, as the
crrcoit court held, that, in order that the
T&rious properties represented by the stock
and bonds should beicome valuable, it was
necessary that the enterprises on which they
were baaed should be carried through, and
this required additional funds, to procure
which the trust company consented to Gar-
retson's n^^tiations with Tod & Co., and the
debenture company, and the pledging of the
"nrities.
)] The presumption on the facts is that the
-urities were delivered by the company to
(•arretson for use, and, if they had ever been
pledged to the companv, that the pledge was
discharged by the volimtary parting with
posMssion. There is nothing to show an in-
tention to limit the use to a hypothecation
in subordination to a prior pledge, let alone
the question whether any such pledge ex-
isted, and the absence of evidence of any as-
sertion thereof.
Certainly, under the circumstances, the
company could not be allowed to set up its
alleged title as against third parties taking
in good faith and without notice. And the
same principle is applicable to its assignee
and to creditors seeking to enforce righto in
his name. So far as this case is concerned
there is nothing to the contrary in the stat-
nte of Iowa r^ulating assignments for the
boiefit of creditors as expounded by the su-
preme court of the state. Code Iowa, title
14. diap. 7; Sohaller v. Wright, 70 Iowa,
667; MehUiop t. Elhworih, 95 Iowa, 657.
Section 2127 of the Code provides: "Any
assignee as aforesaid* shall have as full pow-
er and authority to dispose of all estate, real
and personal, assigned, as the debtor had at
the time of the assignment, and to sue for
everything belonging or appertaining to said
estate, and, generally, do whateoever the
debtor might have done in the premises.''
Conveyances by insolvent debtors in fraud
of their creditors may be attacked by their
statutory assignees, though equity would not
aid the debtor* themselves to recover the
property, for tj.e property transferred ivould,
m the eye of the law, remain the debtors'
and pass to the assignees, who would not be
subject to the rule that those who conmiit
iniquity have no standing in equity to reap
the fruits thereof. But equities or rights
belonging to particular creditors are not, by
operation of law, transferred to such as-
signees.
The trust company did not own these se-
curities, and did not transfer them in fraud
of its creditors, prior to the assignment, so
as to entitle the assignee to treat the trans-
fers as void and the securities as belonging to
the company.
*And it must be remembered that this pre [499]
ceeding is an attempt on behalf of the holdei o
of railroad syndicate paper, which consti-
tuted only a portion of the liabilities of the
trust company, to establish equities in the
securities on the ground that they were
pledged to the company to secure it against
liability on its indorsements of such paper,
and that these equities, if any, must be
worked out through the company.
The difficulty with the contention that the
trust company was bound to hold the se-
curities for the benefit of the holders of syn-
dicate paper ; that they were not duly parted
with ; and that Tod & Co. took with notice of
the alleged interest of the trust company,
and the equities of those holders, is that it
does not appear that any of the syndicate
paper was taken on the strength of these par-
ticular securities ; or that Smith acted other-
wise than with the knowledge and assent of
the directors; or that Tod £ Co. had notice
of any claim of the trust company or its in-
dorsees, or of any defect in Grarretson's right
to dispose of the securities.
The securities were railroad bonds, pay-
able to bearer, and certificates of stock in th^
names of Garretson and his associates, with
transfers indorsed by them in blank; and
they were, in large part, sent to Tod & Co«
by the trust company, at Garretson's request,
with presumably full knowledge that they
were to be used as collateral to loans he was
procuring, without anything to indicate tha^
the trust company had any interest In them,
or any intimation of such interest. The se-
curities 4id not stand in the name of the
trust company, and Garretson did not, in
any of his dealings with Tod k Co., assume to
act for the company. The mere fact that ha
was one of its officers was not in itself suffi-
cient to call for an inference that he was act-
ing as such in these transactions, nor did he
make his requests of Smith in that capacity,
nor were they complied with by Smith as on
that theory.
There was no actual notice, and as the vis-
ible state of things was consistent with Gar-
retson's right to deal with the securities aa
ind recover in the name of such assignee he did, such notice cannot be presumed or
171 ir. 8. U. S., Book 43. 17 «57
499-502
SUPJiKSCB COUBT OF THB UNITED STATES.
Oct. Tmmm^
implied. Nor do we regard the conduct of
Tod & Go. as so negligent as to justify the
application of the doctrine of constructive
notice.
£M0] *The drcumstanoes rdied on as imputing
notice or requiring inquiry which would have
resulted in notice are in our judgment inad-
quate to sustain that conclusion.
Thus, it is said that because the Nebraska
k Western bonds were overdue, and the mort-
gage in process of foreclosure, they were not
negotiable and were taken subject to the al-
leged lien of the trust company. But they
were assignable choses in action susceptible
of being pledged, and were pledged to Tod
k Co. until through the foreclosure and re-
organization the new securities were substi-
tuted. As we have seen, the power of dis-
. position had been lodged in Grarretson by, or
with the assent of, the trust company, and no
secret equity could be set up by the latter.
So as to the fact that some of the shares
of Sioux Ci^ k Northern stock delivered to
Tod k Co. imder the agreement of December
81, 1892, stood in the name of "A. S. Garret-
son, Trustee,'' the evidence disclosed that
this stock belonged to Boo^e, one of the or-
iginal members of the syndicate, and that he,
having failed, had consented it should be put
out of his name and held in trust, and that at
this time there were no notes furnished by
Booge to the syndicate outstanding. The
trust company had no greater interest in this
stock than in any other, and the word "trus-
tee" was not intended to ^ve, and did not
give notice of any rights claimed by the trust
eompany.
Again, elaborate argument is devoted to
the point that Garretson vras induced to as-
sume the Nebraska k Western enterprise by
false representations by the Manhattan
Trust Company as to the condition of the
improvement company; and that this led
him to pledge the securities which he should
have left with the Union Loan k Trust Com-
pany.
While we must not be understood as in-
timating in any degree that this charge of
misrepresentation was made out, or, if it
were, that Tod k Co. were cognizant thereof,
it is enough that we are not satisfied that the
transactions complained of involved notice
of the claim of tne trust company now set
up.
But we do not feel called on to do more
(Mllthan allude to these ^matters. Tod k Co. held
the securities under the $1,500»000 loan in
trust for the purchasers of the notes there-
under issued, and neither the debenture com-
pany, through which the transaction was
made, and which holds a few of the notes,
nor any other of the beneficiaries, was before
the court. Nor was Garretson, nor any mem-
ber of the syndicate, nor any holder of part
of the million-dollar loan, other than Tod k
Co., a party to the record.
The circuit court correctly held that the
prior transactions could not be overhauled
under such circumstances; and applied the
same principle to the last loan as well.
By the final decree petitioner was per-
mitted to file a se«H)nd amended petition, on
which no issue could be, or was, joined, tr
additional testimony taken, and it was tkam
set up, for the first time, that the loans w«9
void because in contravention of the stai-
utes of New York in relation to usury, aad*
that petitioner was, therefore, entitied to r»>
claim the securities without oompensatka.
The prohibition against usury of the Ne»
York laws (N. Y. Rev. Stat Banks Bros.' 7tli
ed. p. 2253) could not be interposed l^^ corpo-
rations as A defense (Id. p. 2^6; Laws
1850, chap. 172), nor could Uie indoncfB ot
their paper plead the statute {Uniom JTe-
iional Bank v. Wheeler, 60 N. Y. 612, 96 U.
S. 268 [24: 833]; Stewart t. BramtkaU, 74
N. Y. 85; Junction Railroad Co. v. Bamk ai
Ashland, 12 WaU. 226 [20: 385]) ; nor dii |
it apply to demand loans of $5,000 or up-
wards, secured by collateral. Lawi 18S8,
chap, 237, 9 1; Laws 1892, chap. 689, | 51
Apart from these considerations, the cir-
cuit court disposed of this contention on the
ground that the petitioner, in order to any
relief in equity, would be compelled to pay
the sums aavanced and interest, but had wk
tendered or made any offer of payment. Hit
assumed that the point mi^t have bees
passed on, if there had been such toider or
offer, notwithstanding the trust eompany wss
not a party to the contract of loan, an!
neither the bridge company, nor GarretaoB,
nor any member of the syndicate, nor the
debenture company, nor any other loan hold-
er, was a party to the record. We Hduk tke |
court was right if the question was profwrly
before it. This vras not a proceeding to en-
force an alleged usurious agreemenC bvt H ,
*was petitioner who sought the affirmsthv[fl
aid of equity, whidi he could only obtain by ]
doing equity. It is true that by a statute oif
New York (N. Y. Kev. Stat 7th ed, 2255;
AcU 1837, chap. 430,14), it is provided thai
whenever a borrower files a bill for relief is
respect of violation of the usury law, he M«d
not nay or offer to pay Any interest or prin-
cipal on the sum or tiling loaned;" but this
act has been rigidly confined to the borro«er
himself {Wheelook v. Lee, 64 N. Y. 24f;
Buckingham v. Coming, 91 N. Y. 625; AUtr*
ton V. Belden, 49 N. Y. 373) ; and, moreorfr,
is not applicable to suits brought in eovts
not within the state of New York.
It is further urged that the transactSoi
with the bridge company was ultra vim.
and that, this being so, the securities should
have been awarded petitioner free and dear
from anv condition whatsoever.
The circuit court held that the bridge com-
pany did exceed its powers, and t£it ike
matter must be treatc^d as if that oompssy
had not been interposed as an actor is tbs
transaction. Relief to the extent of redemp-
tion ^I'as on that account accorded, yK it
was limited to that because there was notb-
ine in the invalidity of the action of the
bridge company which gave the trust com-
pany any greater right to the securitiet thsi
it had before. The bridge company ^ww "^
a party to tiie proceeding, and, indeed, if it
had itself instituted suit for the cancelstioe
of its notes, it could not have demanded pojK
session of the securities. Clearly the trwt
Ukitbd States t. JoiNT-TiurFio AnooiATiOM.
5(KMM)5
ipftnj eoold not avail itself, in favor of its
own aUeged daim, of such an infirmity, if
It existed, nor oould the holders of the notes>
which had passed into their hands as stran-
sers, he deprived of the securities on the
nith of i^ch th^ had advanced their
money; or have their rights adjudicated in
their ahsence.
However, wliatever the contention in the
eoorts hdoiw may have heen tibe errora as-
signed here merdy put forward the theory
tl^t the alleged usurious character of the
eontract by reason of the options nlsnted
and commissions paid, and its invalidity for
lade of power in tne bridge company, so took
the tranMction out of the ordinary course of
nibnsiaess aa to *diar^ Tod & Co. and the loan-
holders with bad faith and notice of the al-
leged claims of the trust company.
But we cannot perceive that the fact of
usury between the parties to the contract, if
Qsiuy there were, or action in excess of
power, if that existed, dther or both, can be
laid bold of to justify the imputation of no-
tice that Garretson was dealing with the se-
enrities in derogation of rights of the trust
eompany. Doubtless there are cases where
commercial paper or securities may be of-
fered for negotiation under drcumstacces so
oat of the usual course of business as to
throw such grave suspicion on the source of
title that Isdc of inquiry, assuming that it
would disclose defects, might amount to cul-
pable negligence. But that doctrine has no
application here.
Respondents hadpossessionof all the Sioux
City, (TNeiU, 4 Western bonds, and 7,200
shares of Sioux City & Northern stock, in
pledge to secure payment of $1,000,000 of
Garretson's notes payable on demand, which
amount had been oorrowed for the purposes
of, and was used in, acquiring the Sioux City,
O^^eiU, & Western Railroad for the syndi-
cate.
The syndicate was engaged in constructing
a bridge across the Missouri river to connect
the railroad in Nebraska with that in Iowa.
The 8to<^ of the bridge company was all
owned by the syndicate, and haa been pledged
with the bonds of the Sioux City, O'Neill, &
Western Railway.
Garretson applied for a new loan of $1,-
500,000,with which to take up the million dol-
lar loan and get additional funds for the con-
struction of the bridge.
As the railroads whose bonds and stock
constituted the security were new, and the
securities were then without market value,
the negotiation of the loan was made more
attracUve to the debenture company by the
allowance of the commission and certain op-
tions. And since there seems to have been a
question as to whether the agreements might
sot be obnoxious to the New York usury
statutes, and as notes of a corporation were
supposed to be more readily salable than
those of an individual, it was thought best to
mike the loan directly to one of the corpora-
tions owned by Garretson and his associates.
The original suggestion was that the loan
'>^l*duyiild be made to the Sioux City, O'Neill,
k Western Railway Company, but objections
171 u. a.
being raised to this In view of certain prorl*
sions of the statutes of Nebraska, it was Ar>
ranged between Tod & Co. and Gairetooa
and his assodates that the brtuge oomnanjE^
which was equally owned by the syndicate^
and to the purposes of which $600,000 of tha
loan were ost^sibly to be devoted, should
become the borrower. The sale of the securi-
ties, the issue of the notes secured thereby,
and the making of the loan followed.
Garretson executed the indenture of trust
to Tod & Co., the debenture company paid
over $1,500,000 and interest to them, and
they took up the million dollar loan, thereby
rdeasing the Sioux City, O'Neill, k Western
bonds and 7,200 shares of Sioux City &
Northern stock; the balance of the latter
stock was sent to Tod & Co. by Uie trust
company; Tod &, Co., aa trusteed, certified
on the notes that the collateral liad been de-
posited with them, and the notes were sold
to various purchasers, who apparently ad-
vanced their mone^ in good faith.
If the transactions, tiius briefly stated,
were unaiTected by notice of any want of au-
thority in (JarretBon in respect of the trust
company am now allied, it is not for that
company to say that "luMift Co., or the holders
of the loan, should be hdd chargeable with
notice simply because the commissions and
options might have constituted usury as be-
tween the parties to the loan, or the bridge
bompan^, its stockholders, or Judgment crM-
itors might have had cause of complaint of
defect of power.
In letting petitioner in to redeem the cir-
cuit court went at least as far as the record
would permit. Whether or not there was er-
ror in the decree of which respondents might
have complained, we do not feel at libmy
to decide.
Decree affirmed.
UNITED STATES*
V,
JOINT-TRAFFIC ASSOCIATION ei dL
(See 8. C. Reporter's ed. 605-678.)
Joint' traffic aBsooiation, when illegaV^
power of Congress to prohibit — agreement
hy which competition is prevented — free*
dom of contract — valid statute— agre^*
ment between railro<id companies.
1. The right of a railroad company In a joint-
traffic association to deviate from the rates
prescribed, provided It acts on a resolution
of Its board of directors and serves a copy
thereof on the managers of the association,
who, upon Its receipt, are required to "act
promptly for the protection of the parties
hereto," does not relieve the association from
condemnation as an Illegal restraint of com-
petition, as the privilege of deviating from
the rates would be exercised upon pain of a
war of competition against It by the whole
association.
2. Congress has the power to prohibit, as In
restraint of Interstate commerce, a contract
or combination between competing railroad
companies to establish and maintain Inter-
state rates and fares for the transportation
259
[605]
•05-507
SOPBEMS COVBT OP THB UNITED StaTBA.
Oct,
of freight and pastengerc on any o£ the rail-
roads, parties to the contract or combination,
eren though the rates and fares thos estab-
lished are reasonable.
tk Congress has the power to forbid any agree-
ment or combination among or between com-
peting railroad companies for Interstate com-
merce, by means of which competition Is pre-
vented.
4. The constltatlonal freedom of contract In
the use and management of property does not
Inclade the right of railroad companies to
combine as one consolidated and powerful as-
sociation for the purpose of stifling competi-
tion among themselves, and of thus keeping
their rates and charges higher than they
might otherwise be under the laws of com-
petition, even If their rates and charges are
reasonable.
Bw The statute under review is a legitimate
exercise of the power of Congress over Inter
state commerce, and a valid regulation there-
of.
6b An agreement of railroad companies which
directly and effectually prevents competition
Is, under the statute. In restraint of trade,
notwltluftandlng the possibility that a re-
straint of trade might also follow unrestricted
competition, which might destroy weaker
roads and give the survivor power to raise
rates.
[Ho. 84.]
Argued February 24, 25, 1898. Decided
October 24, 1898.
APPEAL from a decree of the United
St&tes Circuit court of Appeals for the
Second Circuit affirming the decree of the
Circuit Court of the United States for the
Southern District of New York, dismissing
a suit in equity brought by the United States,
plaintiff, against &e Joint-Traffic Associa-
tion et aZ.. for the purpose of obtaining an
adjudication that an agreement entered into
between some thirty-one different railroad
oompanies was illegal, and enjoining its fur-
ther execution. Judgments of the Circuit
Court and of the Circuit Court of Appeals
reversed, and the case remanded to the Cir-
cuit Court witii diredaons to talce furtiher
proceedings in conformity with the opinion
of this court.
See same case below, 76 Fed. Kep. 805.
Statement by Mr. Justice Peokkams
The bill was filed in this case in the cir-
euit court of the United States for the south-
ern district of New York for the purpose of
obtaining an adjudication that an agreement
|W61 ^entered into between some thirty-one differ-
ent railroad companies was ill^^l, and en-
joining its further execution.
These railroad companies formed most
(but not all) of the lines engaged in the
business of railroad transportation between
Chicago and the Atlantic coast, and the ob-
ject of the agreement, as expressed in its
preamble, was to form an association of rail-
road companies ''to aid in fulfilling the pur-
pose of the Interstate Commerce Act, to co-
operate with each other and adjacent trans-
portation associations to establish and main-
tain reasonable and just rates, fares, rules,
And regulations on state and interstate traf-
860
fie, to prevent unjust discrimination, a^id to
secure the reduction and concentration of
agencies and the introduction of eoonomiei
in the conduct of the freight and passenger
service." To accomplish uiese pnrpoees thm
railroad companies adopted articles of asso-
ciation, by which they agreed that the affairs
of the association should be administered by
several different boards, and that it bhoold
have jurisdiction over ^ail com^»crtithre traffic
(with certain exceptions therein noted)
which passed through the western temEiIni
of the trunk lines (naming them), and sarh
other points as might be thereafter desi^^nat*
ed by the managers. The duly puUishcd
schedules of rates, fares, and charges, and
the rules applicable thereto, which were in
force at ttte time of the execution of the
agreement and authorized by the different
companies and filed with the Interstate Com-
merce Commission, were reaffirmed by tlis
companies composing the association. Frooa
time to time the managers were to recom-
mend such changes in the rates, fares, ciiarg-
es, and rules as might be reasonable ai^
just and necessary for governing the tralBe
covered by the agreement and for protecting
the interests of the parties to the agreement,
and a failure to observe such reconxmenda-
tions by any of the parties to the agreemeoC
was to* be deemed a violation of the agree-
ment. No company which was a party to it
wka permitted in any way to deviate from or
change the rates, fares, charges, or rules set
forth in the agreement or recommended by
t^e managers except by a resolutioii of the
board of directors of the company, and ill
action was not to affect the rates, etc., di«- j
approved, except to the extent *of its interesttS^
therein over its own road. A copy of such
resolution of the board of any company au-
thorizing a change of rates or fares, elc^ wa>
to be immediately forwarded by the company
making the same to the managers of the a»>
sociation, and the change was not to becoms
effective until thirty days after the leoetpl
of such resolution by the managers. Upon
the receipt of such resolution the managers
were ''to act promptly upon the same for the
protection of the parties hereto." It was
further stated in the agreonent that 'Hhe
powers conferred upon the managers shall
be so construed and exercised as not to pcr^
mit violation of the Interstate Commerea
Act, or any other law applicable to the prem-
ises or any provision of the charters or the
laws applicaole to any of the oompanies par-
ties hereto, and the managers shall eo-opt-
rate with the Interstate Commerce Coromit-
sion to secure stability and uniformity in tb«
rates, fares, charges, and rules established
hereunder."
One provision of the agreement was to the
effect that the managers were chanred with
the duty of securing to each company which
was a party to the agreement equitable pro-
portions of the competitive traffic covered by
the agreement, so far as it could be legally
done. The managers were given power te
decide and enforce the course whidi sbooM
be pursued with connecting companies, nsl
parties to the agreement, which mif^t de-
171 U- 1^
1898.
UNITBD StATBS Y. J0IKT*TrAFF10 AfiSOGIATlOH.
607-510
diat or fan to obMrve the rates, etc, estaV
liflhed under it, and the interests of partiee
injurioiiBly affected by such action of the
managers were to be accordevl reasonable
protection in so far as the managers could
waaonably do so. When in the judgment of
the managers it was necessary to the pur-
poses of the agreement, they might deter-
mine the divisions of rates and fares between
connecting companies who were parties to
tbe agreement and connections not parties
thereto, keeping in view uniformity and the
equities involvel
Joint freight and passenger agencies
might be organized by the managers, and, if
established, were to be so arranged as to
g^nre proper representation to each company
party to t^e agreement. Soliciting or con-
tracting passenger or freight agencies were
not to be main&ined by the companies, ex-
6]cept *with the approval of the managers, and
DO one that the managers decided to be ob-
jectionable was to be employed or continued
m an agency. The officials and employees
of any of the companies could be examined,
and an investigation made when, in the judg-
ment of the managers, their information or
anv complaint might so warrant. Any vio-
lation of the agreement was to be followed
by a forfeiture of the offendine company in
t sum to be determined by uie managers,
whidi should not exceed five thousand dol-
lars, or if the eross receipts of the transac-
tion which vi^ated the agreement should
exceed five thousand dollars, the offending
party should, in the discretion of the mana-
gers, forfeit a sum not exceeding such gross
receipts. The sums thus collected were to go
to the payment of the expenses of the asso-
ciation, except the offending company should
■ot participato in the application of its own
forfeiture.
The agreement also provided for assess-
ments upon the companies in order to pay
the expenses of the association, and also for
the appointment of commissioners and arbi-
trators who were to decide matters coming
before them. No one retiring Irom the
agreement before the time fixed for its final
completion, except by the unanimous consent
of the parties, should be entiled to any re-
fund from the residue of the deposits remain-
ing at the dose of the agreement.
It was to take effect January 1, 1806, and
to continue in existence five years, after
which any company could retire upon giving
ninety days' written notice of its desire to do
•0.
The bin filed by the government contained
allegations showing that all the defendant
railroad companies were common carriers
duly incorporated by the several stetes
through which <thej passed, and that they
were engaged as such carriers in the trans-
portation of freight and passengers, separ-
ttcly or in connection with each other, in
trade and commerce continuously carried on
Among the several stetes of the Union and
between the several stetes and territor-
ies thereof. The bill also charged that the
defendants, unlawfully intending to restrain
commerce among the several stetes, and to
prevent competition among the railroads
named, Ia respect to all their *intcnrstate com- [SM]
merce, entered into the agreement referred
to above, and it charged that the agreement
was an unlawful one, and a combination and
conspiracy, and that it was entered into in
order to terminate all competition among the
parties to it for freight and passenger traffic,
and that the agreement unlawfully re-
strained trade and commerce among the sev-
eral stetes and territories of the United
Stetes, and unlawfully attempted to monopo-
lize a part of such interstete trade and rom-
meroe. The biU ended wiilh the ati^;atioo
that the companies were preparing to put
into full operation all the provisions of the
agreement, and the relief sought was' a judg-
ment declaring the agreement void and en-
joining the parties from operating their
roads under the same. The defendant, the
Joint Traffic Association, filed an answer
( the other defendante substentially adopting
it), which admitted the making of the con-
tract, but denied ite invalidity or that it is
or was intended to be an unlawful contract,
combination, or conspiracy to restrain trade
or commerce, or that it was an attempt to
monopolize the same, or that it was intended
to restrain or prevent legitimate competi-
tion among the railroads which were parties
to tftie agreement. The answer, in brief, denied
all auctions of unlawful acte or of an un-
lawful mtent, unless the making of the agree-
ment itself was an imlawful act. The an-
swer then set forth in quite lengthy terms
a general history of the condition of the rail-
road traffic among the various railroads
which were parties to the agreement at the
time it was entered into, and allo^ the ne-
cessity of some such agreement m order to
the harmonious operation of the different
roads, and that it was necessarv as well to
the public as to the railroads themselves.
The case came on for hearing on bill and
answer, and the circuit court, after a hear-
ing, dismissed the biil, and i^n appeal ilte
decree was affirmed by the circuit court of ap-
peals for the second circuit, and the govern-
ment has appealed here.
Mr, Jol&n K. Biohards, Solicitor Qener-
al, for the appellant, the United Stetes:
The agreement violates the anti-trust law
because it creates an association of compet-
ing trunk-line systems, to which is given ju-
risdiction over competitive interstate traf-
fic, with power, through a central authority,
aided by a skilful scheme of restrictions, reg-
ulations, and penalties, to esteblish and
maintein rates and fares on such traffic and
prevent competition, thus constituting a con-
tract in restraint of trade or commerce
among the several stetes, as defined by this
court in United States v. Trans- Missouri
Freight Asso. 166 U. S. 290, 41 L. ed. 1007.
In the Trans-Missouri ease this court held
( 1 ) that the anti- trust law applies to com-
mon carriers by railroad; (2) that it prohib-
ite and renders illegal all agreemente in re*
straint of interstate trade and commerce^
whether the restraint be reasonable or un-
reasonable.
The question, then, is whether the agree-
261
SUPBBMS COUBT OF THB UnITID StATM.
i|
Bint under consideration operates as a
■traint upon interstate trade and commeroe.
The prohibition of the Anti-Tmst Act, aa
construed' by this court, implies to all con-
tracts in restraint of trade or commerce, and
is not confined to those in unreasonable re-
straint.
But as a contract in restraint of com-
merce, the Trans-Missouri agreement is
erude and incffecUve when compared with
the Joint Traffic agreement. The Trans-
Misflouri provides a penalty for competition.
The Joint Traffic «>es further, and contains
provisions desigmm to deprive companies of
the means of competing, while removing the
foducement to compete. Control of the solic-
iting and contracting freight and passenger
agencies is placed in the managers, who are
authorized to organize joint agencies. This
done, the supervision of the sources of secur-
ing business being thereby ffiven to the man-
agers, they are charged with the duty of ap-
portioning the competitive traffic equitably
among the members of the association.
Of course the purpose is to remove the in-
ducement to compete. An agreement to ap-
Sirtion traffic operates the same as one to
vide eajmings. Railroads which pool their
earnings have no inducement to compete.
All the individual company earns goes into
the pool, and it only gets its share after all.
80 where the traffic business is pooled, if a
company by competing gets more than its
share, it must yidd the excess by permitting
a diversion of the traffic from its line to lines
which are short. A strict account is kept of
the traffic carried by each trunk line. If
the traffic of a particular line exceeds its
percentage, the une is deemed "over," and
must account for the excess to the lines
which are "short."
In prohibiting pooling, Congress did not
make it a condition that the rates established
and maintained under a pooling agreement
should be unreasonable. It suffi^ the^
would be arbitrary, uninfluenced by competi-
tion. The public would be placed at the
mercy of the traffic managers.
So, too, in the case 01 a contract in re-
straint of trade prohibited by the anti-trust
law; it is enough if the agreement interferes
with those natural laws which ordinarily
determine rates; it is enough if it restricts
competition ; it is enough if it puts it in the
power of the combined railroaos arbitrarily
to fix rates. We do not havet to inquire
whether the rates fixed are reasonable or un-
reasonable. It is the power through com-
bination to fix rates arbitrarily, which is
prohibited.
The Trans-Missouri. case was elaborately
argued and carefully considered. A petition
for a rehearing was presented and denied.
The decision has been accepted and acted up-
^n by the departments of the government,
and by the courts, both state and Federal, as
-definitively settling the meaning and scope
of the Anti-Trust Act when applied to traffic
associations among competing interstate
railway systems. The decision was not only
* Just, but an eminently salutary one. I
shall not concede that the principles it laid
down remain Questionable. I shall not
•68
admit that it ia neoessarr f or me bj aif*-
meut to fortify the posiuons taken Vy die
court in that ease. The anti-tmat law aa
there oonstmed ia the law of the land.
The wisdom of Con^^resa inpn^ibitiBg aB
agreements in restraint of trade among ia-
terstate railway systems ia even more maai-
feet now than when the Trans-Misaooii ease
was decided. At the time of the argnmeat
of the Trans-Missouri case it was still t»
some extent a mooted question whether the
Interstate Commerce Commission was em-
powered to determine what are £ur and
sonable rates, and to enforce such
This question is no longer open.
Interstate Commeroe Commistiom^ ▼.
oinnati, N, 0. d T. P. R. Co, 167 U. a 47t.
42 L. ed. 243 ; Interstate Commeroe Commi%
sion V. Alabama Midland ML Co. 168 U. S.
144, 42 L. ed. 414.
It will probably be urged that any flkgsl-
ity in the agreement is cured by f 3 of arti-
cle 7, which reads;
"Sec. 3. The powers conferred upon the
managers shall be so construed and exercind
as not to pmnit violation of the Interstate
Commerce Act, or any other law appIieaUe
to the premises, or any provision of tht
charters or the laws applicable to any of the
companies parties hereto; and the manaficn
shall co-operate with the Interstate Com-
merce C<mimission to secure stability and
uniformity in the rates, fares, charges,
the rules established hereunder."
An injunction to construe and
powers conferred so as to permit no vioUtioB
of law is an admission that the powers may
be so construed and exercised as toriolatelav.
If the anti-trust law prohibited only those
contracts in unreasonaole restraint ol trade
or commerce there might be saving fores la
this section. But the anti-trust law prok^
its all contracts in restraint of trade or eom-
merce. Whether the rates be reasonable or
unreasonable, an agreemoit proridiag for
their establishment and maintenance 1^ sa
association of interstate railways is prohib>
ited. The managers can exercise none of tht
essential powers conferred by the ai^recneat
without violating the law. In the matter
of the essential powers it is not a qnestioa
of method or degree; the powers cannot bs
exercised because they are in themselves il-
legal. The association is itself illegal. It
is formed for the purpose of oootrolliaf;
certain competitive traffic The central in-
thorit^, the managers, is given the power to
establish and maintain rates on that trafic
Take away from the association the power to
establish and maintain rates, and it imnedi-
ately falls to pieces. It ceases to have a
raison d'etre.
It will be observed that the mana^cts are
not instructed to co-operate in securing rce-
sonable rates. The latter part of thi« nee^
tion is inserted to support, not the real, bat
ostensible purpose of the association, aame-
ly of aiding tne Interstate Commeroe Gob-
mission to enforce the law. Assuming tht
Commis5^ion powerless to enforce the law, tht
railroads ignored both the Commission sal
the law, and proceeded to form an assofte-
tion outside of the law and in violatioB ef
17i U. 1.
TjHirBD States v. Joint-Traffic Association.
tbt law, to aid in enforcing the law. The
railroads shatter the law, and then combine
to rapport the fragments.
It was oontendM below that the bill was
niiltifsrions. There is but one cause of ac-
tion in the bill, — ^namelY, the affreemeni.
Upon that the bill is based. It sedu to en-
jom the execution of an illmd contract. The
averments of intent in the oill are unneces-
mij and immaterial. At the most th^ are
eondusioDS of law. The court will examine
the agreement and determine the question of
Uw with respect to its meaning and effect;
will determine whether the agreement re-
strains trade or commerce in any way so as
to violate the law. If the agreement is pro-
bibited by the anti-trust law the court will
enjoin its execution; and tUb court will do
tius irrespective of whether the agreement
does or does not also violate the Interstate
Commerce Act, or those general principles
of law which prevent any interference with
iatovtate commerce.
It is not necessary for the government to
insist that the sfreement violates more than
one law. It is ckarly illegal as a contract in
restraint of trade or commerce under the
anti-tmst law. The fact that it also violates
•oms other law, if it does, assuredly will not
ears its illegality under this law, or prevent
the court from enjoining its execution. A
thing yrhidtk is doubly Mid does not, there-
fore, become good. The rule of double nega-
tiTee does not apply. Nor is the government
deprived of the power to restrain the execu-
ti<Ni of a contract in restraint of trade or
oommeroe under the anti-trust law because
the eontimct contains a provision under
whidi individuals have committed, or may
eommit, offenees punishable under the Inter-
state Commerce Act. If a man threatens my
life I am not to be deprived of the right to
pot him under bond to keep the peace be-
euue he has siso stolen my property.
The authority of the government to main-
Uin this suit is sustained in United States
V. Trans-Mi380ur% Freight Abbo, 166 U. S.
290, 343, 41 L. ed. 1007, 1028; citing Re
De6«, 158 U. S. 564, 39 L. ed. 1092; Cvncit^
wit, y. 0. d T. P, R. Co. V. Interstate Com-
WTce CommiBaion, 162 U. S. 184, 40 L. ed.
035, 5 Inters. Com. I^p. 391 ; Tewae d P. R.
Co. V. Interstate Commerce Commission, 162
U. 8. 197, 40 L. ed. 940, 5 Inters. Com. Rep.
405.
Messrs, James O. Carter and Leiois Cass
leiyard, for the Joint Traffic Association,
tppdlee:
The object of the bill is to procure an ad-
jndicatioii that a certain agreement entered
uito between a large number of railroad com-
panies forming most, but not all, of the lines
or systems engaged in the business of rail-
Totd transportation between Chicago and the
Atlantic coast, for the purpose of formin^^
an association for the better regulation of a
^ertab part of the traffic of those lines and
^tenis, is illegal and void, and enjoining its
execution.
Congress in 1887 enacted the Interstate
^^onimeroe Law, the main design of which
vas to abolish discrimination in rates and
*0^Qre a frreatet degree of uniformity, and to
ni XT. 8.
that end it required all railroads engaged te
interstate transportation to file urith the
Commission ana publish schedules of their
respective rates, and forbade the carriage of
gooda for any greater or less compensation
than that specified in the publishea rates.
Even before the passage of the law the ri-
val lines engaged ia an effort to agree upon
the schedules which each should file, and had
reached such agreement in time to file and
publish them in compliance with the provi*
sions of the law.
The agreement in question was believed to
promise great benefits and to make it in the
mterest of all to comply with the Interstate
Commerce Act, and u> detect, expose, and
punish any who, from a mistaken view of
interest, should violate it.
It nmde no effort to prevent competition :
but sought to devise a scheme which would
compel any competition to be fair, lawful,
and open, and enable any rival to meet it
without violating any law.
Unfortunately, large corporations are
viewed with a jealousy which does not con-
fine itself at all times within the bounds of
reason, and this sentiment creates hostilities
to which it is but natural, at least, that
public officials should vidd. Transacti<ms
which, in the absence of political prejudice
and paaBion, would pass unnoticed by those
not immediately affected by them, are sub-
ject to hostile scrutiny; and it was not un-
natural that such an agreement should raise
a clamor that it was designed to raise rate«.
There never was a pretense, however, that
under the agreement there was the slightest
exaction of unreasonable charges. On the
contrary the schedules of rates agreed upon
and filed with the Interstate Commerce Com-
mibsioQ had never been objected to by that
body, and were notoriously lower than. those
imposed for similar services in any other
part of the world.
The answer denies every allegation of un-
lawful act or of unlawful intent, unless the
making of the agreement itself was an un-
lawful act.
It may seem at first that we are aiming to
persuade the court to reconsider its reason-
ing and determinations in the recent case of
United States v. Trans-Missouri Freight As-
sociation.
It may be that one of the questions now
sought to be presented mi^ht have been made
in tiiat case and a decision of it obtained;
but it is ouite certain that the question was
not raisea.
The precise Question which was considered
and determinea in the case above referred to
was this: Assuming that the agreement was
one in restraint of trade, would the circum-
stance that the restraint actually imposed
by it was reasonable relieve it from the con-
demnation of the statute? Or, in other
words, does the statute by a true construc-
tion condemn all agreements in restraint of
interstate trade and commerce, or such only
as were at common law unlawful?
Prior to, and at the time of, the passage
of this law there were, as there still are, cer-
tain tendencies in the industrial world which
drew widespread attention and excited in
263
SUPBBME Ck>UBT OF THB UnITKD StaTKS.
Oct.
some minds nradi alarm. Many industries
were seen or supposed to be under tb« con-
trol of great aggregations of capital, either
in the hands of individuals united under
some form of agreement, partnership or
other, or contributed as the capital of cor-
porate bodies. S<Hne of the most conspicu-
ous were called by the vague name of
"trusts," and this term came to be employed
in a ffeneral way to designate all of them.
For M>viou6 reasons, and quite aside from
the question whether their objects and effects
are mischievous or beneficial, such combina-
tions of capital are not popular, and the
designation "trust" came to oe rather a re-
proachful one.
Undoubtedly it may be possible for a lar^e
•ggfregated capital to wield greater power in
many ways than would be possible for the
same amount distributed among many sepa-
rate owners or managers, and the suspicion
was entertained that such power was em-
ployed in controlling markets, and perhapb
m controlling legislation, and it was also
thought to M an instrumentality by which
the unequal distribution of wealth was fos-
tered and increased. The disfavor thus ex-
cited was, as was natural, turned to pditl-
oal account. Those opposed to a protective
tariff charged upon its advocates that they
were favoring and stimulating trusts, and
the latter felt the need of repelling the
charge by doing something to show that they
were the declared enemies of trusts.
Under such circumstances it was auite
natural that schemes of legislation aime«)
against these supposed public enemies should
be started, and any opposition to them would
naturally draw upon tne authors of it the re-
proach that thev were the friends, and per-
naps the paid defenders, of these powerful
interests.
While, therefore, all, or nearly all, pro-
fessed themselves in favor of repressive 1^-
islation, the question what legislation could
be contrived was a difi\cult one and suggested
some difficult questions. How was a trust
to be legally defined so that a prohibition of
it should not include a prohibition of the ex-
ercise of the clearest constitutional rights?
Congress surely could not prevent the crea-
tion of corporations under state laws, or
limit the capacity of forming partnerships,
or in any manner interfere with the internal
business of states. And was it certain that
these so-called trusts were in every instance
necessarily mischievous? Indeed, sensible
legislators for the most part understood very
clearly that the things complained of were
but the necessary incidents and consequences
of the progress of industry and civilization,
and could not be arretted without checking
the advance of the nation and crippling it in
the fierce competitions with other nations,
and that any useful effort to remedy the sup-
posed evils must be directed against the abuses
of the power of aggregated capital, and not
at the aggregations themselves. Under
these circumstances Congress proceeded very
cautiously, and enacted the only measure
which seemed possible without passing the
plainest constitutional limits. Jt did not
attempt to define "trusts'' or limit aggrecra-
264
tions of capital in any form. The
charge was that these combinations were n
some form monopolies and in restraint of
trade; but Congress did not in the remotest
degree attempt to define what a moDopolj
or restraint of trade was. It was, however,
perfectly safe to declare that if these com-
binations did in any case create monopolies
or restraints upon trade, they should be pro-
hibited from Going so in the future; and
this is what Confess did, and all it did. bj
passing the act m question. It prohibited
contracts and combinations to create monop-
olies or restrain trade, and left it to the
courts, without a word of direction or is-
struction, to determine what contracts did
create monopolies or restrain trade, and
what did not.
It cannot be said that Congress has done
an unwise or imprudent tiling, and that if
calamity occurs tne fault lies at its door. It
has prohibited nothing but contracts and
combinations to create restraints o^ trade
and monopolies. These, when properly de-
fined are, heyond question, public mischiefs
and ought to be prohibited. If any nsefal
thing becomes stricken down by the law. it
must be the result of some erroneous intCT-
pretation.
The first question we design to oonsider it
whether the a^eement violates any of tbs
provisions of the act referred to. To this end
it is of much importance to have in mind the
particular nature of the subject with whick
this act deals, and how that subject has beea
heretofore treated in law and legislatkm.
It is obvious that Congress conceived itstif
to be dealing with acts supposed to be pro-
ductive of injury to the public, and of iojnry
to such an extent as to justify repressive lcf>
islation.
It is not contracts only of a certain ^ar>
acter which are condemned, but they are
coupled together with certain other art9. pr*'
sumably <w a similar nature or tendencv.—
namely, combinations or conspiracies in re>
straint of trade, and monopolies, or combia-
ations or conspiracies to monopolixf. Con-
tracts therefore are dealt with, not w mnrh
as contracts, but as one form of acts reUt-
in^ to trade and commerce, assuin^ to be
injurious in their tenj^cncy and effet't.
That contracts of a certain clajw ins.T be
opposed to sound public policy has been rrr-
ognized in the law from a very earh perio<i
The grounds or reasons of policy on whirh
they are held void or illegal are v^nr do-
merous and varied, but n class embracing nu-
merous instances is formed of such as are sup-
posed to have an injurious effect upon tra^
or commerce; between these, however, tbcrt
is quite a marked distinction observable ia
the way they are treated in the law. One
description embraces simply ordinary bosi-
ness transactions, where tne parties maJct
agreements with each other for supposed b«-
tual profit and advantage, a breach of which
would result in pecimiary loss or damage ts
the one or the other, and a demand for rv-
dress. In such cases the parties expect and
intend to enforce the contract, and look to
the ordinary legal remedies as the mf ni el
enforcintr it. Contracts whereby a busincM
171 V. t.
Unitxd States v. joint-'Fravfic Association.
is told and the seller covenants that he will
not thereafter carry it on, or where a man
takes an i^prentice with an agreement that
he will not set himself up in opposition to his
master in trade, supply familiar examples of
this character.
Inasmuch as such contracts would not be
entered into unless it was believed that the
Uw would afford redress in case of a breach
of them, the repressive purposes of the law,
where th^ are supposed to be opposed to
public policy, are, in general, fully satisfied
Dj dedaring them void and denyin? redress,
sod this is usually the extent of the notice
which the law takes of them. There is no
ocession for criminal legislation, both for
the reason that there is not present, ordinar-
ily, any criminal purpose, and, if there were,
repressioD is sufficiently accomplished with-
Mit a resort to it. The doctrine respecting
ecmtracts of this character belongs, there-
fore, to the law of contracts.
But there is another and much smaller de-
aeription of contracts supposed to be injuri-
ous to trade, of quite a different character.
They are not, properly speaking, business
tramactions. They do not involve the sale,
leasing, or exchange of property, or the hire
of services ; nor does a breach of them usual-
ly result in distinct and ascertainable pe-
niniary loss. They are not, indeed, entered
into by parties in different interests, as in
the case oi buyer and seller, one of which ex-
pects to gain something from the other, but
hf parties in the same interest having in
new an object for the common good of all ;
nor do the parties to them generally look to,
or rely upon, any l^gsl remedies to secure
obedience to them. They spring out of cir-
cumstances which impress the parties to
them with the belief tnat they have a com-
mon interest, or that it is expedient to cre-
ate a common interest among them, and seek
to control or regulate the conduct of each
other in relation to business. Instances of
this description of agreement are found
where laborers or employers unite, in the
form of agreement, to regulate hours of labor
or prices, or where merchants or tradesmen
combine to transact their business in certain
prescribed ways, or to establish uniform
prices for their goods, or to suppress or reg-
nlate competition among themselves; or
where a class of producers or dealers combine
toj^ether to control a product or a business,
with a view of imposing upon others their
own terms as to prices, or other incidents of
the business.
Hie marked distinction between these
cases and the ordinary business transactions
first spoken of is that in the latter there is a
Terence of interest, sometimes regarded as
a hostili^ of interest, between the parties,
cadi seeking to gain the utmost from the
other; whereas in the former the parties are
in the same interest, each seeking the same
end. The term "contract" does not well ex-
press this sort of agreement. It is a uniting
together for a common purpose, — a combina-
tion,—or, when thought to be of an objec-
tionable character, a conspiracy. Such un-
ions always suppose agreement, but it need
Botbe in writing; where it is in writing it is
often called an agreement, or contract; but
in giving it this name we diould not loem
sight of its real character. In reality it it
simply an act, and innocent or guilty accord-
ing as the law may be inclined to regard it.
It is manifest that where the law does re-
gard it as mischievous, and to such a degree
as to call for repression, it is not enough to
simply declare it illegal. The practice may
nevertheless be persisted in, and as it does
not rely for its efficacy upon legal remedies^
the mere withholding of such remedies may
be ineffectual. The action, therefore, whidb
the law usually takes in respect to such so-
called contracts, is in the form of prohibi-
tion and penalty; and the subject oelongs^
not to the law of contracts, but to the crim-
inal law, where it is usually dealt with under
the head of conspiracy.
We do not mean by the above observationa
that there may not be instances which petr-
take to a greater or less deeree of the quali-
ties of both the dasses i3>ove mentioned;
but the distinction between them is so con-
stant and pervading that it will be at onc»
recognized.
As a conclusion to what is said we desire to
point out that the legil doctrine and policy
to which this Anti-Trust Act belongs ia
manifestly the one last described. The cir-
cumstance that contracts are grouped to-
gether with combinations and conspiracies,
and made the subject of criminal treatment^
shows this very plainly.
The inaptitude of some of the language of
this legislation is quite apparent. Undoubt-
edly the object of Congress was to reach that
class of supposed mischiefs which flow from
combinations. But the great bulk of the
cases in which the courts have felt called up-
on to sav anything about contracts in re-
straint of trade has been the business trans-
actions first alluded to, in which an a^ee-
ment has been entered into not to exercise a
particular calling, — as, where the keeper of
a well-patronized tavern sells out his estab-
lishment and goodwill, and covenants not to
further carry on the business. Such agree-
ments at the common law have been ndd
valid or void according to the supposed rea-
sonableness of the covenant; but surely even
when void, there was nothing about them
calling for the intervention of the criminal
law. And yet this statute bunches the valid
and void all together, and makes them all
criminal, when probably there was not the
remotest intention to make any of them
criminal.
These observations, of course, fully admit
that the particular agreement or combina-
tion against which this action is aimed would
be, assuming that the act covers the con-
tracts between railroad companies, obnoxi-
ous to the penalty imposed by the act, pro-
vided it were in fact in restraint of trade or
commerce between the states. That it is in
fact in restraint of trade or commerce must
be shown before this action can be main-
tained, and this is the proper subject for dis-
cussion in this action. This question is
broadly open and unaffected by any decision
of this court, and we expect to show that the
agreement is, not only not in restraint of
265
SUFBSMB COCBT OF THB UmTED STATES.
Oct. Tie3,
cimde and commerce, but highly beneficial to
both; that Congress has never declared or
intended to declare it criminal, and that it
is deserving, not of judicial condenmation,
tat of judicial encouragement and approval.
Unless the act is subject to the interpre-
tation hereinafter maintained, it is open to
grave objections on constitutional grounds,
which will be dealt with Iry other counsel.
The court has no jurisdiction to entertain
this suit unless it can be found in the provi*
aion of some statute.
The bill sets forth simply^ the commission
of a misdemeanor, and an intention on the
part of the defendants to repeat the offense,
j^o principle of the public remedial law of
America or England is more fundamental
than that the ordinary administration of
criminal justice by the ordinary courts of
common law, is smBcient for the repression
of crime, and exclusive adhesion to it neces-
sary for the protection of the citizen.
Courts of equity have no jurisdiction to
restrain the commission of crime, or to en-
force moral obligations and the performance
of moral duties; nor will they interfere for
the prevention of an illegal act merely be-
cause it is illegal.
Hiffh, In June. § 20; Atty, Gen, v. TJtica
Ins. Co, 2 Johns. Ch. 371; Re Deha, 158 U.
a 564, 593, 39 L. ed. 1092, 1106.
In the case at bar nothing whatever is al-
leged except the mere violation of the law and
the intent to continue it. It is not alleged
that such violation does, or will in fact, lead
to the imposition of any unjust or unreason-
able charge for the carriage of merchandise,
or any unjust discrimination, or in any way
diminish or impair any facilities for carry-
ing on interstate commerce. Indeed, the
avowed and apparent purpose of the agree-
ment is to secure justice, equality, and im-
Srovement in interstate transportation ; and
bis purpose stands admitteo. All that is
averred m the bill is that the method chos-
en to accomplish the purpose is prohibited
Vy penal law.
The Anti-Trust Act contained provisions
purporting to create a jurisdiction in equity
to give relief by way of injunction; and
perhaps the decision made by this court in
the suit of United States v. Trans-Missouri
Freight Asso. should be regarded as a de-
termination that the Attorney Ceneral was
jtt liberty, in case of any violation of the pro-
visions of the act, to file a bill for an injunc-
tion, although it would seem necessary, upon
familiar principles, to make out a case for
equitable interposition in order to justify an
appeal to the equitable jurisdiction thus ere- ,
ated. But so far as it is sought to maintain
the present action on the basis of an alleged
violation of the provisions of the Interstate
Commerce Act, no support can be derived
from the decision above referred to. No
euch jurisdiction in equity is given by that
act. And by implication at least it is with-
held; for in certain cases specially men-
tioned in 88 6 and 13 jurisdiction is express-
ly given to courts of equity to grant injunc-
tions. If it is not given in other cases it
must be taken to be for the reason that it
1B66
was not intended. Expreeeio wmms est «-
clusio alteritts.
A clear understanding should be had ti
the outset with the meaning of the terns
with which we are dealing. The cootraels
condemned by the Anti-Timt Act are nch,
and such only, as have the effect of restraii-
ing trade or commerce. The aotnal effect
which the contracts have upon trade or earn-
merce is the material oonsidmition whi^
determines whether (Mr not they are indoM
within the class.
This is sdf-evident. But the poesible sq^
gestion may be made that there is a dus
of contracts called (Mr named ''contracts ii
restraint of trade," and that the statute re-
lates to these irrespective of their real aid
true effect.
There is no foundation for such a sugges-
tion. There is no class of contracts knowa
to the law by the name of contracts in re-
straint of trade irr^(pective of their actual
effect upon trade. Wnenever heretofore the
point has been made in the case of a partioi-
lar contract whether it was in restraint ef
trade, it has been determined bv an inqviry
into its actual effect upK>n trade. No sii|^
gestion would have been indulged that it was
valid or void according aa it might eir might
not be called a contract in restraint of
trade.
Moreover, we are dealing with the eriai-
nal law, which never classes acta and maka
them punishable under arbitrary nanei
without regard to their supposed ^ecti, u
being actually mischievous or othenrita
This would be putting innoccnoe <m a par
with guilt.
Doubtless there are certain eontraets
which readily come to mind where contracts
in restraint of trade are spoken of, aad
which may therefore be taken as good exaa-
ples of the class. They are Budk as direeth
purport and assume to restrain trade, and
which consequently do, in some sense and dt>
gree at least, necessarily restrain it.
Mitchel V. Reynolds, 1 P. Wms. 181 ; De-
vis V. Mason, 5 T. R. 118.
Agreements for ccmibinations among pff^
sons engaged in the same employment to
E remote their supposed interests, — as, of la-
orers and employers, or merdiants. or
tradespeople, have ra^y, if ever, been
styled agreements in restraint of trade.
There seemfl to be no room for diMibt cos-
cerning the meaning of the term "in re-
straint of trade or commerce." To restrain
is to hold back, to check, to prereat, and
thus to diminish. It is the injury to txade
or commerce which the act is aimed to pre-
vent. Unless, therefore, a contract injare*
and thus diminishes, or tends to diminish,
trade or commerce, it cannot be deemed aa
in restraint of trade or commerce.
The agreement under which the Jolat
Traffic Association was formed, and the
carrying out of which is sought to be en-
joined, IS not a contract in rentraint of trade
or commerce within the meaning (Kf the act
of July 2. 1 890.
It does not in terms purport or assume to
restrain or limit trade or eommeree. Ke
one of the parties to it undertakes in any
171 w. i
Unixid Statu y. Joiitt-Traffio Absooiatxoic.
to refrmla from doiiw buBiness. In*
ted, it eridenily Msumes tEat all the par-
tki to it ara to oontinae to do all the busi-
MN which their facilities enable them to do,
and to ftiiYO against each other for a larger
share of the business in every way except
It does, indeed, purport to restrain com-
petition, although in a very slight dmee
and on a sin^^le point. That is one of its
objects; and if competition and commerce
were identical, htAsuf but different names
for the same thing, then indeed, in assuming
to rsstrain competition even so far, it would
be assuming in a corresponding degree to re-
strain commerce; but surely no such iden-
tity will be pretended. Commerce is the in-
tcrehange of commodities. Competition is
€B6 of its incidents only, and but an occa-
sional incident To identify a ^ing with one
of its occasional incidents would be an error.
It is conceivable that a restraint upon
eompetition, although competition is but an
oecssional incident of commerce must still
neesBsarily restrain the latter; but, how-
erer conceivable, it is by no means true.
The contrary is often true; namely, that
•och restraint enlarges, increases, and
benefits it.
Competition is, in general, a good thing;
it is what U called "Uie life of trade;" and
artificial efforts to repress ft may have an
injurious effect <^posed to sound public
{xmey; but to infer from this that it is so
nnder all circumstances, or that it may not
be productive of the mosrt extensive mis-
f^ad, is a ocmdusion of ignorance utterly re-
futed b^ the teachings of experience, and
kng since discarded by alt enlightened
But it is worth while to employ a few
words in pointing what the true and great
benefit of ccHnpetrtion is, and when it ceases
to be beneficial and becomes the source of
mischief.
Tliere is a point beyond which competition
may not only cease to be beneficial, but may
become exceedingly injurious, not only to
private individuals, but to the public also.
When prices have reached the point which
places the profits of a particular industry on
a level with t&e average profits of indus-
tries generally, the further prosecution of
tbe struggle is likely to be injurious to the
commnnity, and the competition becomes de-
Ktmctive and deadly, precisely in proportion
to the difficulty of disengaging tne capital
employed.
A restraint up<m competition does not of
necessity restrain trade, but may even pro-
mote trade.
If the restraint on competition effected
by this agreement is necessarily in the eye
of the law a bad thing in its effect upon trade,
isjnring and diminishing it, then, although
trade is not in terms restrained by it, it is
•0 in fact; and if, on the other hand, it is
in the eye of the law beneficial to trade, or
cannot be seen to be injurious ( for the bur-
to ot proving its injurious tendency is upon
the plaintiffs), it must be held to be unaf-
fected by the statute.
The agreement in question, as a whole,
ard particularly^ so much of It as affeett
competition, is in the highest d^ee pn^
motive of trade and commerce.
The chaiges ot railroad transportation in
the Unitea States have been constantly
diminishing, and th^ are now lower than in
any country In the world ; and it is probably
true that the capital actually invested in
railroads was at the time of tne passage of
the Anti-Trust Act receiving a smaller an-
nual return than capital invested in any
other business, notwithsianding the risk to
cepital invested in railroads is far ^eater
than that which attends many other invest-
ments.
The reason why railroads are greater suf-
ferers than other industries from the de-
structive effects oi free competition is that
the latter have several defenses against it^
while the former have but one.
The only resort open to railroads to save
themselves from the effects of a ruinous com-
petition is that of agreement among them-
selves to check and control it.
The history of railroad transportation
proves that whenever a railroad depends for
its support upon traffic upon which another
railroad is in like manner dependent, and
the competition thus engendered has con-
tinued for any considerable length of time, ^
one competitor has either swallowed up the
other, or, if both survive, it is under soma
modu8 Vivendi established by agreement.
Suppose the case of several rival lines, all
of them much-needed public facilities, and to
support all of wiiich taere is a sufficient traf-
fic at fair rates. The competition between
them waxes fiercer and fiercer until the point '
is reached where there iti no profit for the
road possessing the least natural advantages.
Can a word be said in defense of the propo-
sition that public policy requires that tkis
competition should proceed until iit ends in
the successive destruction oi the weaker par*
ties and the consequent loss of most useful
public facilities?
From this we venture to draw the conclu-
sion that competition is useful only where it
is voluntary. Such a thing as competition
made compulsory by law is utterly abnorrent
to every principle of public policy.
Freedom of contract is, m general, the
beet public policy. Some will always be
found who will abuse freedom, and make
contracts of a mischievous public tendency,
lliese contracte should be declared iH^^al,
and may justify pencil enactmente. The
courte have a broaa jurisdiction to inquire
into aiMl determine what contracts aro and
what are not in conflict with public policy.
The extinction of competition by agree-
ment has always been going on in the indus-
trial world, and to the principal ways in
which it is done no sound lawyers or think-
ers have ever suggested any objection.
An ideally perfect railroad service would
be one in which a shipper was assured that
he could deliver any amount, large or small,
of merchandise at any point in the country,
at any time, destined for any other point,
and have it delivered at its destination in
seiety and with despateh at a price known
beforehand, which would fairly reward the
267
1
SuPRBMB Court of thb Unttkd Stat^.^.
Oct. Tum,
■errioe and be no greater or less than that
exacted from others in similar circumstances.
This would include the following requi-
sitee. (1) Uniformity in rates; (2) stabil-
ity in rates; (3) equality in rates; (4) de-
spatch and safety ; (5) ease and convenience
effected by classification and publicity; (6)
reasonable rates.
It is an assured fact that whenever men
are engaged in performing different ^arts of
the same worktliey will co-operate in it; that
is, thev will agree with each other to the end
that the work of each may be as little trou-
blesome and as effective as possible. Self-in-
terest and benevolence here concur with each
other; and it may with equal confidence be
said that men will under these circumstances
always agree unless they are somehow pre-
vented.
With the progress of railroad extension
the need of stability, equality, and unifor-
mity of rates became increasingly and at
last overwhelmingly apparent, and the lack
of them equally sa Under competitive condi-
tions this was impossible except when
brought about by agreement.
The present agreement was the effort of
honorable men to enyable themselves to car-
ry on the most necessary of all businesses,
without ruin to the property employed and
without crime. The situation was unendur-
able and demanded an earnest effort to dis-
cover whether some agreement, other than
pooling, could not be contrived which could
be enforced and which would be effective.
Whether the one actually devised will be
effective if it is sustained cannot be absolute-
ly aflBrmed. It has not yet been fully tried;
l>ut there is no objection to It of a legal na-
ture, which upon any principle heret<^ore
declared, can be sustained. Ito object is not
in any way to create a monopoly or raise
rates; not, in any degree, to suppress or
check competition other than secret and ille-
gal competition. It punishes no conduct ex-
cept criminal conduct. It seeks no other end
than to maintain and enforce the observance
of the Interstate Commerce Law, and to se-
cure the stability, uniformity, and equality
which are the chief objects of tihat law.
So far as respects adl forms and modes of
competition save one, the agreement saves
and cherishes competition. The improve-
ment of tracks and equipment, increase of
facility, safety and despatch in the conduct
of the service, are all encouraged. The more
these qualities are exhibited by every line
the larger traffic it ^ains, and all these in-
creased rewards are its own. It is competi-
tion in rates only which is aimed at; and
this is not forbidden directly or indirectly.
A temporary adherence to a^eed rates for a
period not exceeding thirty aays is made ob-
ligatory.
If further illustration were needed of the
magnitude of the misdiiefs brought about by
unrestrained competition, of the impossibil-
ity of checking or preventing them in any
other way than by mutual understanding and
iu?reement between the railway lines, of the
efficacy of that method, and of the necessity
for voluntary self-regulation throu^ co-op-
erative agreement aiM asaociation, it will be
268
found in abundance in the often-repeated
declarations of the Interstate Cot^Mnt
Commission.
Boston Chamber of Commerce v. Ldbv
Shore d M. 8. R. Co, 1 Inters. Com. ^
763; Report of the Intestate ComsBerte
Commission (1887) 1 Inters. Com. Rep. C5S,
667-669, 671; Re Passenger Tarif d Bei$
Wars, 2 Inters. Com. Rep. 341.
When competition leads to the tran^orts-
tion of property below the actual cost, fiiiriy
computed, it ceases to be legitimate. Fair
and reasonable competition is a public bene-
fit; excessive and unreasonable competitioa
is a public injury. Competition is to be
regulated, not abMished.
Re Southern R. d S. 8. Co. (1887) 1 I»
ters. Com. Rep. 288.
It is inevitable that the probability tbat
any prescribed rates will be accepted by tbt
public as just shall to some extent be aneet-
ed by the fact that at some previous inm
they have been lower, perhaps considenUy
lower.
Report of Interstate CoiAmerce Coanis*
sion, 1 Inters. Com. Rep. 671, 672; Re Cki'
cago, Si, P. d K, C. R, Co. 2 Inters. Com.
Rep. 148.
Every change in rates affects values; it
disturbs trade and alters to some extent tbt
value of contracts.
Re Chicago, 8t. P. d K. C. R. Co. 2 Inten.
Com. Rep. 149.
Public good is best subserved when all tbt
carriers which the needs of the country r^
quire are suffered to do business at a rean»*
able compensation.
Second Annual Report of Interstate Com-
merce Commission, 2 Inters. Com. Rep. fSC
If it is important to the nublic that a nil-
road once constructed should be maintained,
the ability to make char^ tJiat will rente
its maintenance possible is also of public im-
portance.
Id. 258.
There is nothin^^ in the existence of sncb
arrangements which is at all inconsistent
with earnest competition.
But in order to form them great mataal
concessions are often indispensable, and siieb
concessions are likely to be made when rela-
tions are friendly, but not to be looked for
when hostile relations have been inangvr-
ated.
Id. 263, 264.
The practice of employing sdicitinf
agents, and the somewhat kindml one of es-
tablishing transportation lines. Red, White,
Blue, etc., is in a lar^ defrree fruitful ia
violations of the law, dishonest artifices, and
wa*<teful expenditure.
Re Underhillitiffs, 1 Inters. Cora. Rep. 817.
This agreement is likely to be very emcient
in its operation, for (1) it takes a war the
temptation to violate the law; (2) it biodi
the parties not to violate it, pnd mulct* tb*^
in a severe penalty if they do violate it: and
(8) it makes it to the interest of all except
the guilty parties to detect and expo^ aay
violation, and thus bring it to puni^hmeBt.
Fourth Annual Report of Interstate Cobi-
merce Commission, 3 Inters. Com. Rep. S3>,
340.
171 V. •.
1818.
United bTATSs v. Joint-Traffic Absooiatiu^n.
The deliberate aad solemn declaratione of
Che body oonetituted by Congress itself to
supervise the conditions of interstate com-
merce and the actions of the various rail-
rcMid systems in respect thereto prove every
material assertion made in this brief, of the
unmeasured mischiefs of unfair competition
in rates, and of tiie inability of repressing
them in any other way than by the making
and obeervanoe of such a£p*eements.
Agreements in all fundamental respects
similar to the one in question have been in
foree during the whole history of railroad
competition, and in some instances going
mucA further in doin^ away with competi-
tion by actually pooling traffic or its re-
ceipts; but will anyone say that commerce,
the inttfchanipe of commodities, has been
thereby restrained, that there has been less of
buying and selling by reason of them 7 Every-
one must admit that trade and commerce
have bera prodigiously facilitated by them,
and consequently increased.
The apprehensions of monopoly and op-
pression with which we are dealing have no
foundation in reason, or in experience.
The agreement which this action sedcs to
condemn is not, by reason of any restraint
effected by it upon competition, or otherwise,
a contract in restraint of trade or commerce,
but is on the contrary, highly needful to, and
promotive of, both.
The contract is necessary to the uniform-
ly, the stability, the fairness, and the just-
ness of rates; to the ease, safety, and con-
Tenient despatch cf the enormous transpor-
tation of the country; is necessary as a sup-
pleroentarv aid to the Interstate Ck)mmerce
Law; and necessary to the prevention of
crime, concealment, and perjury, otherwise
rare to be committed to a prodigious extent,
and necessarjr to the preservation of great
Jnblic facilities; and is not a contract, com-
ination, or conspiracy in restraint of trade
within the meaning of the act.
If the Anti-Trust Act is interpreted as for-
bidding agreements such as the one under
discussion, one of three alternatives must
necessarily follow: (1) That all railroad
transportation will be abandoned; or (2) the
consolidation of all competing railroads i.n-
der a single ownership, either governmental
or private; or (3) that all competing rail-
road business must be carried on in constant
and daily violation of criminal law.
It is not possible for competing railrood
transportation to be carried on permanently
withcHit uniformity in rates, fixed either by
express or tacit agreement.
The multitudinous expressions of the In-
terstate Commerce Commission all mean uni-
formity of rates by agreement, either express
or tacit
Congress never intended in enacting the
Anti-Trust Act, to condemn and make crimi-
nal as restraints on trade those regulating
contracts and arrangements respecting rail-
road traffic which, in some form, are every-
where adopted, and without which it is im-
possible the business of railroads could be
carried on in conformity with its own laws.
Church of the Holy Trinity v. Unitetl
Btatts, 143 U. 8. 467, 36 L. ed. 226.
171 V. 8.
The positions taken in this brief are fully
supported by the weight of authority.
Kellogg v. Larkin, 3 Pinnsv, 160, 66 Am.
Dec. 164; Leslie v. Lorillardy 110 N. Y. 519,
1 L. R. A. 466 ; People v. North River Sugar
Ref, Co, 121 N. Y. 682, 9 L. R. A. 33 ; ColWja
V. Locke, L. R. 4 App. Cas. 674; Nationai
Benefit Co. v. ronton Hospital Co, 46 MiniL
276, 11 L. R. A. 437; Perkins v. Lyman, 9
Mass. 522 ; Manchester d Ll R. Co, v. Con-
cord R. Corp. 66 N. H. 100, 9 L. R. A. 689,
3 Inters. Com. Rep. 319; Judfr*^ Oooley*s ar-
ticle in the Railway Review, April 26, 1884,
on the subject of Traffic Pooling; Mitchel v.
Reynolds, 1 Smith, Lead. Cas. pt. 2, p. 608 ;
Perkins v. Lyman, 11 Mass. 76, 6 Am. Dec
158; Pierce v. Fuller, 8 Mass. 223, 6 Am.
Dec. 102; Bowser v. Bliss, 7 Blatchf. 344,
43 Am. Dec. 93 ; Orundy v. Edwards, 7 J. J.
Marsh. 368, 23 Am. Dec. 409; Morgan v.
Perhamus, 36 Ohio St. 517, 38 Am. Rep. 607 ;
Pike V. Thomas, 4 Bibb. 486, 7 Am. Dec. 741 ;
Morse, Tu^i^t Drill d Mach, Co., v. Morse, 103
Mass. 73, 4 Am. Rep. 513; lloyt v. BoUit,
39 Conn. 326, 12 Am. Rep. 3 JO; Huhhard V.
Miller, 27 Mich. 16, 16 Am. Rep. 163; Cook
V. Johnson, 47 Conn. 175, 36 Am. Rep. 64.
The opinion in the Trans-Missouri cate
suggested a distinction between agreements
retraining competition between persons or
corporations engaged in business of a public
nature, and those engaged in private busi-
ness. To show this a passage is quoted from
th«? case of Gihhs v. Consolidated Gas Co.
130 U. S. 396, 408, 32 L. ed. 979, 984, citing
the following cases: New Orleans Oaslight
Co. V. Louisiana Light d H. P. d Mfg. Co.
115 U. S. 650, 29 L. ed. 510; Louisville Gas
Co. V. Citizens* Oas Co. 115 U. S. 683, 29 H
ed. 610; Shepard v. Milvmukee Gaslight Co.
6 Wis. 539; Chicago Gaslight d Coke Co r.
People's Gaslight d Coke Co. 121 III. 530;
8t. Louis V. 8t. Louis Gaslight Co. 70 Mo.
69 : Printing d N. Registering Co. v. Hamp*
son, L. R. 19 Eq. 462; West Virginia Transp
Co. V. Ohio River Pipe JAne Co. 22 W. Va.
600, 46 Am. Rep. 527 ; Western U. Teleg. Co.
V. American XJ. Teleg. Co. 66 Ga. 160, 38
Am. Rep. 781.
The case of Gihhs v. Consolidated Gas Co.
130 U. S. 396, 32 L. ed. 979, furnishes no
color of support to the view that any dif-
ferent rule IS to be applied to the case of
agreements between corporations engaged in
business of a public nature from that which
obtains in relation to agreements between in-
dividuals engaged in uie like business.
The sui^gested distinction between persons
engaged m business of a public nature and
thope engaged in ordinary business, which
forbids the former and permits the latter
to enter into agreements which may restrain
competition merely, has no support in the
authorities referred to.
This question whether agreements between
such persons are Injurious to trade depends
always upon the actual effect of such agree-
ments upon trade, such effect being deter-
mined by the character of the agreements
and the purpose in view as shown by the
agreements themselves and the facts of the
situation which calls them forth and to
which they were to be applied.
269
SUPBBM8 COUBT OF THB UnITKD StATEB.
Oct. Tdm.
People T. Fieher, 14 Wend. 9, 28 Am. Dec
601; Hooker t. Vandevoater, 4 Denio, 34!),
47 Am. Dec 258; Stanton v. Allen, 5 Denio,
484, 49 Am. Dee. 282; Cleveland, 0. 0. d /.
R. Co. V. Cloeser, 126 Ind. 348, 9 L. R. A.
764, 3 Inters. Com. Rep. 387 ; Shretcehury d
B, R. R. Co. r. London d A\ W. R. Co. 17 Q.
B. 662, 6 H. L. Caa. 113; Hare t. London
d y. W. R Co. 2 Johns, k H. 80; Manchester
dL.R. Co. T. Concord R. Corp. 66 N. H. 100,
9 L. R. A. 689, 3 Inters. Com. Rep. 319.
Agreements simply designed and operative
to restrain ruinous competition are not in
any manner objectionable when entered into
by persons engaged in ordinary business,
lliey hare been repeatedly sustained, and, it
is believed, nowhere condemned. But sj^ee-
ments between such parties, when calculated
and designed simply to raise prices by sup-
pressing ordinary ocnnpetition, are equally
obnoxious to the law.
Wiokene v. Evans, 3 Tounge k J. 318;
Skraihka ▼. SoharringJiausen, 8 Mo. App.
622 ; Bayer v. Louisville Union Benev. Asso.
1 DuY. 143, 86 Am. Dec. 613; Collins v.
Locke, L. R. 4 App. Cas. 674 ; Central Shade
Roller Co. ▼. Vushman, 143 Mass. 355;
Gloucester Isinglass d O. Co, v. Russia Ce*
ment Co. 164 Mass. 92, 12 L. R. A. 563.
The agreement is in no manner in viola-
tion of the provisions of § 2 of the act. it
creates no monopoly, nor is it an attempt or
corepiracy to monopolize.
In the attempt made by the bill to array
every possible objection to the agreemeut.
there is an evident purpose to suggest that
iU 8th article, in connection with other sub-
sidiary provisions, constitutes pooling, and
therefore is a violation of § 6 of the Inter-
state Commerce Act. There is no foundav-
tion for. such a charge. The agreement in
no manner violates any provision of the In-
terstate Commerce Law.
Dames v. Davies, L. R. 36 Ch. Div. 359.
Mr, Edward J. Phelps, for the New
York Central k Hudson River Railroad
Company, appellee:
Whether the agreement by its terms vio-
lates the Federal Taw depends entirely on the
inquiry whether it conflicts with any stat-
ute of the United States.
The bill is not based upon any statute, but
proceeds apparently upon common-law
grounds. No statute is referred to or
charged to have been violated.
The United States has no common law.
Wheaton v. Peters, 8 Pet. 691, 8 L. ed.
1055; United States v. Hudson, 7 Cranch,
32, 3 L. ed. 259; Bucher v. Cheshire R, Co.
125 U. S. 555, 31 L. ed. 795.
The only statutes of the United States
that are claimed to be infringed by the terms
of the agreement are the Interstate Com-
merce Act of February 4, 1887, amended by
acts of March 2, 1889, February 10, 1891,
and February 8, 1895, and the Anti-Trust
Act of July 2, 1890.
The agreement violates no provision of
the Interstate Commerce Act.
The only provision in that act which is
claimed to be infringed is contained in 8 5,
which prohibits "pooling."
"Pooling** means a division of the money
270
earnings of traffic whidi thia
not contemplate.
Even assuming that this clause in the
agreement can be construed into a vioIatioB
of § 6 of the Interstate Commerce Act, this
suit would not be maintainable, became it
is not authorized by that act, and is prt-
duded by its eacpress provisions.
This oourt has no power to grant an in-
junction, either interlocutory or upon teal
decree, at the suit of the United Stetes gov-
ernment, against the commission of a enme,
where no other grounds for the injuncikm
exist except that the act sought to be e»-
joined is an offense, unless such power k
speciallv conferred b^ the statute.
Nor does it come within the general equity
jurisdiction of the court, since an injunction
of that character is unknown in equity ju-
risprudence.
United States v. Dehs, 168 U. S. 664, 39
L. ed. 1092.
No power to grant an injunction against
a "poolinff" contract is conferred upon tht
court by the Interstate Commerce Act
The Interstate Commerce Act does not a>-
thorize the oonimencement of any suit until
an inquiry and decision of the CommissioB-
crs has first taken place, which in tiiis
has not taken place.
The Anti-Trust Act of July 2, 1890,
not apply to the business of railroad traat-
portation.
The case of United States v. Trams-Mie'
souri Freight Asso. 166 U. 8. 290, 41 L. el
1007, is by no means controlling in this ease.
The points of difference are clearly pointed
out in the brief of Mr. Edmunds, and atcd
not be restated.
We ask of the court a reconsideration af
the conclusions reached by the majority ef
the judges in that decision, whidi overniks
the judgment of six United States drenit
and district judges who sat in the differoit
stages of that case and this, and is oppose!
to the opinion of four members of this tri-
bunal, and also overrules the decision of Mr.
Justice Jackson in the case Re Greene, 5t
Fed. Kep. 109, which is directly in point.
Its consequences are far-reacning and dis-
astrous. It deprives the citizens of thit
country of the right, never before que«tio»«d
in an English or American court, of making
a large class of just and reasonable eoe-
tracts, often absolutely necessary to the we
of property, the transaction of business, ind
the fair compensation of industry.
Many decisions of this court to this effect
are cited by Mr. Justice White, to whick
many more might be added.
WTiere a sfjeoial statute fully covers ihs
subject to which it is addrcj^sed, and a sob-
sequent genera] statute contains word« thtt
might, if standing alone, receive a construc-
tion broad enough to include the same nat-
ter, the general will always give wav to tht
special statute, and will be regarded as not
intended to intrude on its province, nalew
that intention is clearly manifested. And
especially will this construction be grfrta
{ where, as in the present case, the statutes.
I if taken to relate to the same thing, wooli
not onlv be superfluous, but inconsistent.
171 V. t.
UxmD Statu y. Joxar-Tiuvno Amooiatioi4.
findUdi, Stmt. §§ 113, 137, 22r ; Bishop,
Written Law, § 126; Brewer y. BUmgher,
14 PH. 178, 10 L. ed. 408; Reiche t. Bmyihe,
15 WaIL 164, 20 L. ed. 566; Athma y. Fibre
Diemt^ratmg Co. 18 WaU. 272, 21 L. e(L
841; United Btaiee y. ^Sfaiiiidwv, 22 Wall.
492, 22 L. ed. 736; Towneend y. Little, 100
U. a 504, 27 L. ed. 1012.
SajB Chief Justice Marshall in United
BteUe y. WUtheraer, 5 Wheat 96, 5 L. ed.
42: "The rule that penal laws are to be
construed strictly is perhaps not much less
old than construction itself."
And in United States r. Morria, 14 Pet.
476, 10 L. ed« 548, the court remarked: "It
has been long and well settled that such
[penal] statutes must be construed strict-
In Harriecn y. Vose, 0 How. 378, 13 L.
ed. 181, this court obsei-yed: "In the con-
etruetion of a penal statute, it is well settled
also that all reasonable doubts concerning
its meaning ought to operate in f ayor of the
respondent."
In the case of The Enterprise, 1 Paine,
32, Judge Liyingston said: "It should be
a principle of eyery criminal code, and cer-
tainly bdcmgs to ours, that no person be ad-
jndffed ffuil^ of an offense unless it be cre-
ated and promulgated in terms which leaye
■0 reasonable doubt of their meaning."
''Statutes creating crimes will not be ex-
tended by judicial interpretation to cases
not plaimy and unmistaKably within their
terms. If this rule is lost sight of the
eomts may hold an act to be a crime when
the legblature Dever so intended. If there
is fair doubt whether the act charged in the
indictment is embraced in the criminal pro-
hibition, that doubt is to be resolyed in f ayor
of the accused."
Per Dillon, Justice, in United States
T. Wkittier, 5 Dill. 219. See also United
States y. Sheldon, 2 Wheat 119, 4 L.
ed. 199; United States y. HartweU, 6
Wall. 395, 18 L. ed. 832; United States
T. Shackford, 5 Mason, 445; United States
T. Clayton, 2 Dill. 219; United States y.
Onrretson, 42 Fed. Rep. 22; Dwarris, Stat
641; Hubbard y. Johnstone, 3 Taunt 177.
But if any doubt could still exist on this
point, it is completely set at rest by refer-
ence to the prtM^edings of Congress in both
Houses, on the passage of the Anti-Trust
Act
2 Cong. Record, pt 1, 06; pt. 4, 3153,
3857; pt. 5, 4099, 4104, 4123, 4753, 4837;
pt 6, 5453, 5950, 5981; pt 7, 6116, 6208,
€312.
The Supreme Court of the United States
held in the case of Blake y. National Banks,
23 Wall. 307, 23 L. ed. 119, that reference to
the Congressional Journals may be had, on
a question as to the meaning of the language
f^ a statute.
Gardner y. The Collector, 6 Wall. 511, 18
L e<L 894; Church of the Holy Trinity y.
I'nitfd States, 143 U. 8. 465, 36 L. ed. 230.
Views of indiyidual cannot be taken into
consideration.
Aldridge r, WiUiams, 3 How. 24, 11 L.
^ 476; United States y. Union P, R. Co, 91
t. 8. 79, 23 L. ed. 224 ; District of Columbia
171 V. 8.
y. Washington Market Co. 108 U. 8. 250, 17
L. ed. 717.
Assuming for the purposes of argument
that the Anti-Trust Art does apply u> rail*
way traffic contracts, no proyision of that
law is yioktted by the agreement now under
consideration.
The prohibitions of the act are two : ( 1 >
A|[ainst contracts, oombinations, or conspir-
acies in restraint oi trade or commerce; (2>
the monopoly oi, or the attempt or combi-
nation to monopolize, any part of the trade
or commerce of the states or with foreign
nations.
The agreement in this ease is not "in
restraint of trade or commerce."
The theory of the bill seems to be that the
agreement comes within this deecrij^tion be-
cause it tends to restrict competition, and
because any agreement which restrains com-
petition is ''in restraint of trade." Both these
assumptions are erroneous; the one in twctt,
the other in law.
The agreement does not restrain competi-
tion to any such appreciable extent as would
justify an injunction, except that competi-
tion which is unlawful because it is secret
Assuming, a^n, against the fact, that
a certain restriction of competition is the
necessary result of this a^eement if it is al-
low^ to proceed, it plainly appears by its
terms to be only such restraint of competi-
tion as is necessary to secure "just and rea*
sonable rates."
By the Interstate Commerce Act all ratee
are required to be "reasonable and just**
Every unjust and unreasonable charge is
made unlawful. Schedules of rates are re-
quired to be punished and kept open to the
public inspection, and to be filed wit^ the
Commissioners, and not to be changed with'
out due notice to the public and the Commis-
sioners. Ample remc^es, criminal andciyil,
are provided for the violation of these re-
quirements, the enforcement of which is
made the duty of the Commissioners. And
the companies are also made subject to the
state laws regulating rates.
The precise question, therefore, under this
clause of the Anti-Trust Act, is whether a
ccntract that produces a result which the
Interstate Commerce Act in terms author-
ities and provides for, and helps to repress a
practice which that act forbids, is for that
reason a contract for the unlawful restraint
of trade. Or, in other words, whether it
can be made unlawful by a forced construc-
tion of the general provisions of ene stat-
ute of the United States, for a carrier com-
pany to provide by a traffic contract for the
maintenance of those "just and reasonable
rates" which another statute of the United
States not only authorizes, but creates elabor-
ate means for making permanent, and for
preventing the secret changes of rates which
the Interstate Commerce Act prohibits.
It is the statutes themselves that have
prescribed a definition of this clause of the
Anti-Trust Act, so far as it applies to rail-
way traffic contracts, if it is held to apply
to them at all, whatever its meaning as to
other contracts may be.
That the just and reasonable Vates of
271
SuPRiME Court of the United Statbb.
Oct. i
transportation which the Interstate Com-
merce Act contemplates and provides for are
mtes that are just ard reasonable to the
carriers as well as to the carried cannot be
open to doubt. The very words *'just and
reasonable/' employed in that act, neoes-
sarily imply that meaning. They are words
of comparison and relation, and unless the
riffhts of both parties to a contract are oon-
aidcred there can be no comparison.
It would be preposterous to call a price
just and reasonable, that was not so to one
side as w^l as to the other. This is the
Cfjnstruction which this court has ^iven to
the Interstate Commerco Act in this very
particular.
TeoMs d P. R. Co. T. Interstate Commerce
Commission, 162 U. 8. 197, 40 L. ed. 940, 6
Inters. Com. Rep. 405.
In the same opinion some observations of
Mr. Justice Jackson, in the case of Interstate
Commerce Commission ▼. Baltimore d 0. R,
Co, 43 Fed. Rep. 37, 3 Inters. Com. Rep. 192,
were cited witn approbation.
This decision of Mr. Justice Jackson was
affirmed in the United States Supreme
Court.
Interstate Commerce Commission v. Bal-
tifnore d 0. R, Co, 145 U. S. 263, 36 L. ed.
609, 4 Inters. Com. Rep. 92.
The validity of the agreement here in ques-
tion must be aeterminc^, therefore, not mere-
ly upon the language of the Anti-Trust Act
taken by itself, but by that language con-
sidered m connection with the other statute
of the United States (which if this applies)
is in pari materia, and which deals with
the subject so mudi more exhaustively, and
in words so plain that there can be no am-
biguity raised in respect of them.
Qranting that the Anti-Trust Act in terms
makes all contracts unlawful that are in
anywise "in restraint of trade," however
reasonable and necessary thev may be, is
that to be understood to invalidate a railway
contract made to secure that, and only that,
which the Interstate Commerce Act as con-
strued by this court recognizes as the right
of railway companies to receive, and pro-
vides me»\ns to secure?
It will hardly be claimed that the elabo-
rate provisions of the Interstate Commerce
Act on the subject of reasonable rates are
repealed by the Anti-Trust Act. If both are
to stand as applicable to this case, they must
be read together, the same as if their provi-
sions were contained (so far as they refer
to tlie same subject) in separate sections of
the same act.
Quite aside from the provisions of the In-
terstate Commerce Act giving to the com-
panies the right to just and reasonable rates,
and to use proper means to maintain them,
the same result is reached under the princi-
ples of common law.
The term "restraint of trade" employed in
the Anti-Trust Statute has a common-law
definition. And as the act furnishes no
other, that, upon the general rules of con-
ctruction, must be taken to be intended. To
auJce the agreement an infringement of this
statute, it must therefore be one that would
be void at common law.
272
In the construction of statutes tbe mk is
absolutely without exception, that where a
word or phrase employed has a woU-settied
ooromon-law definition distinct from its lit-
eral meaning, it is assumed to be the mean-
ing intended, unless a different definftiott is
proRcribed in the statute.
Even the Constitution of the United Stats
has been from the outset subjected by tkis
court to this rule of construction.
Cooley, Const. Lim. 75.
The definition at common law, ot a eoa-
tract "in restraint of trade," is settled bj a
long course of decisions, and is no lon^
open to discussion. It is a contract wbick
restricts trade beyond what is reasontblt
and just under the circumstances of the par-
ticular case.
Fotcle V. Parke, 131 U. S. 88, .^3 L. ed. 67;
Oregon Steam Nav. Co. v. Winsor, 20 WtlL
64, 22 L. ed. 315; Mogul 8, 8, Co. v. Jfo-
Gregor, L. R. 21 Q. B. Div. 553, L. R. 23 ().
B. Div. 598 [1892] A. C. 25.
Even if it should be held that the Anti*
Trust Act forbids any contract in restraint
of trade, however just, reasonable, and oec-
esii^ry, the agreement here in question would
not fail within the prohibition, because it
does not tend to restrain trade or oommeroe,
but rather to promote them.
A restraint upon excessive and nnwhole>
some competition is not a restraint npoa
trade, but is necessary to its maintenaaoa
There is no gi'ound whatever for assarts
ing that the agreement infringes the provi-
sions of the Anti-Trust Act against monopo-
lies.
The definition of the word "monopoly *
both in its legal and its ordinary si^ifics-
tion, is the concentration of a business or
employment in the hands of one, or, at most,
of a few. That is the plain meaning of it
as employed in the act. No feature of tbt
agreement, in any view that can be takes
of it, approaches this definition.
So far from tending toward the coneea-
tration of railroad transportation io fe««r
hands, it does not in any possible event with-
draw it from a single road now in existence,
nor throw the least obstacle in the wiy d
the construction of others.
Its effect will be, if it is successful, not ts
diminish, but to increase transportation fs-
•ilities by preserving roads that othervis*
mi^ht be driven from the field.
ff the construction of the Anti-Trwt A«t
which was adopted by the conrt in the Traw-
Missouri case is to stand, the act, so far »
thus interpreted and applied, is in vioUtio«
of the provisions of the Constitution of th^
United. States, since it deprives the dtfnd-
antb in error of their libertr and their prop-
erty without due process of law, and depriTH
them likewise of the equal protection of tke
laws.
This point was not made on the arpDW^*
of the Trans-Missouri case because no v»<-^
construction of the act was anticipated br
counsel. Nor was it considered by the eonrt,
since it is an unvarying rule that no obje«^
tion to the coostitutionalitr of a la* ^*ll
be considered unless raised by the party af-
fected.
171 V. 1.
1
1898.
United States v. Joint-Traffic A8SocIATlo^.
The queBtion thus presented is not whether
the act in general, or in its application to the
manf other cases to which it is obviously ad-
dressed, is unconstitutional, but whether the
Agreement here under consideration is one
toat may be prohibited by legislation with-
out infringing the freedom of contract and
the right ol property, which the Constitution
declares aod protects.
The record before the court conclusively
establishes the fact that the agreement here
in question was designed and intended and is
necessary, as determined by long practical
experiencei, to the maintenance of lust and
reasonable rates, and to the proper discharge
of the business of the companies.
^nd in the Trans-Missouri Case, where
tho contract under consideration was similar
to the one here in controversy, though far
more open to the objections here urged, it
was conceded, both in the majority and mi-
nority opinions of the court, that its sub-
ftintive character and purpose were such as
the answers in the case aver and set forth.
It was for this reaeon believed by the mi-
nority of the judges that it could not have
been the intention of Congress that such a
contract should be made a penal offense.
But it was held by the majority that the
language of tiie act admitted of no other con-
itruction, though it was conceded in the
opinion oi the court that the arsuments
against that conclusion "bear wi& much
Ktee upon the policy of an act which should
prevent a general agreement of rates among
competing railroad companies, to the extent
simply of maintaining those rates which
were reasonable and fair."
^nd in t^e opinion of the minority of the
court, by Mr. Justice White, he remarks,
after stating the general features of the con-
tract: **1 content myself with giving this
mere outline of the contract, and do not stop
tn demonstrate that its provisionjs are rea-
sonable, since the opinion of the court rests
upon that hypothesis."
The accuracy of the statement we have
made above, of the legal effect upon this case
of the Anti-Trust Act as so construed, is
thus both established and conceded.
And the question distinctly arises whether
legislation having such resiut is within the
po^w" of Congress.
The operation of the act as thus inter-
preted does in fact, by prohibiting the con-
tract here in q^uestion, deprive the defend-
ants, whether rightfully or not, of both lib-
erty and proper^ to a very grave and per-
haps ruinous extent.
A just freedom of contract in lawful busi-
ness is one of the most important rights re-
served to the citizen under the general term
of "liberty," for all human industry depends
upon such freedom for its fair reward.
The use of property is an essential part of
it, and when abridged the property itself is
taken. Its use is abridged when the owner
is precluded from any contract that is neces-
sary or desirable in order to secure to him
a just compensation for its employment.
And when any class in the community is
so precluded it is to that extent "deprivea of
the equal protection of the laws."
171 U. 8. U. 8., Book 43. 18
These arc elementary propositions in con-
stitutional law, and have often been asserted
by this court.
Pumpelly v. Qreen Bay d M, Canal Co, 13
Wall. 166, 20 L. ed. 557 ; Stone v. Farmers'
Loan d r. Co, 116 U. S. 307, 29 L. ed. 636;
Chicago, M, d 8t, P, R. Co, v. Minnesota, 134
U. S. 459, 33 L. ed. 982, 3 Inters. Com. Rep.
209; Reagan v. Farmers* Loan d T, Co. 164
U. S. 397, 38 L. ed. 1028, 4 Inters. Com. Rep.
360.
The only authority of Congress over the
agreement in controverfly is such as may be
deduced from its power "to regulate com-
merce," and is limited by the reasonable
necessities of such regulation.
As contracts of this sort are not in them-
selves wrongful, have never before been held
or deemed unlawful, and have been custom-
ary in all kinds of business in which they
have been found useful, the right to prohibit
them, if it exists at all, must arise under
what is called the police power.
But the general power of police regulation
is not vested in Congress. It is reserved to
the states
United States v. E, C, Knight Co. 156 U.
S. 11, 39 L. ed. 329.
No exercise of the police power, whether
the authority on which it rests is general or
special, can be allowed to infringe rights se-
cured by the Constitution of the United
States.
No public good can be attained and no
public necessity relieved by unconstitutional
means.
New Orleans Oas Co. v. LouiMana Light
d H, P, d Mfg. Co. 115 U. S. 661, 29 L. ed.
621; Walling v. Michigan, 116 U. S. 446, 29
L. ed. 691 ; Mugler v. Kansas, 123 U. S. 661,
31 L. ed. 210.
There is no case known to English or
American law, in which any man can main-
tain a claim that the use of property should
be furnished or services performed for ]iii»i
at less than a reasonable compensation, un-
less under a specific contract tor a less sum.
Railway companies, though creations of
the legislatures, from which they derive
their powers and to whose enactments they
are subject, are no exception to this rule.
Though the legislatures may regulate and to
a reasonable extent prescribe their rates, it
has been repeatedly held by this court, and
is now fully settled, that they cannot ha re-
duced below a just and reasonable amount,
fixed in view of all the circumstances of th«
case.
Reagan v. Farmers* Loan d T, Co, 164 U.
S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep.
560; Chicago, M. d 8t, P, R. Co. v. Minne-
sota, 134 U. S. 459, 33 L. ed. 982, 3 Inters.
Com. Rep. 209; Stone v. Farmers* Loan d
T. Co. 116 U. S. 307, 29 L. ed. 636.
The true test of the constitutionality of a
law which abridges the freedom of contract
roust necessarily be found in the reasonable-
ness and justice of the contract abridged.
The legislature cannot create restrictions
upon the freedom of contract which the es-
tablished rules of law and dictates of jus-
tice do not justify, and which result in tak-
273
SUPBRMB Court of thb United States.
Oct. Tnui,
lug one man's property for the unjust bene-
fit of another.
The legislature cannot prohibit all con-
tracts it may desire or attempt to proliibit.
Oihha T. Consolidated Oaa Co. 130 U. S.
409, 32 L. ed. 984; Austin ▼. Murray, 16
Pick. 121; Waters v. Wolf, 162 Pa. 153;
State T. ChodtDill, 33 W. Va. 179, 6 L. R. A.
621; Com. y. Perry, 155 Mass. 117, 14 L. R.
A. 325; Allgeyer v. Louisiana, 165 U. S. 578,
41 L. ed. 832; Shaver v. Pennsylvania Co. 71
Fed. Rep. 931; Re Jacobs, 98 N. Y. 98, 50
Am. Rep. 636; People v. Mara, 99 N. Y. 377,
52 Am. Rep. 34; People v. Oillson, 109 N.
Y. 389; Godcharles ▼. Wigeman, 113 Pa.
431; John Spry Lumber Co. v. Sault Sav.
Bank Loan d T. Co. 77 Mich. 199, 6 L. R. A.
204; Kuhn v. Detroit, 70 Mich. 534; MiUett
V. People, 117 111. 294, 57 Am. Rep. 869;
State V. JuUno, 129 Mo. 163, 29 L. R. A. 257 ;
Low V. Rees Printing Co. 41 Neb. 127, 24 L.
R. A. 702 ; Ex parte Kuback, 85 Cal. 274, 9
L. R. A. 482 ; Loop v. St. Louis, I. M. d S. R.
Co. 58 Ark. 407, 23 L. R. A. 264; Tick Wo v.
Hopkins, 118 U. S. 356, 30 L. ed. 220.
These cases fully support the proposition
that just, reasonable, and lawful contracts
in relation to property or business cannot be
made unlawful by leffislative enactments.
The police power when invoked to prohibit
any act which is otherwise lawful, while it
may fall short of the demands of public ne-
cessity by reason of constitutional limita-
tions upon its exercise, can never exceed
that necessity.
Chy Lung v. Freeman, 92 U. S. 280. 23 L.
ed. 552; People v. Jackson d M. PI. Road
Co. 9 Mich. 285.
The public is not entitled to the alleged
benefit which is claimed to be the result of
theprohibition of this agreement.
Tne alleged public interest which is sought
to be made the basis of this extravagant
measure is not the interest of the piu>lic,
but of one class, which can only be secured
at the expense and unjust loss of anoUier.
Interstate Commerce Commission, 7th
Ann. Rep. 32.
Railroad companies have, for a long time
past, been entirely unable, in consequence of
the number of roads and the excessive com-
petition, to maintain rates that are fairly
remunerative.
Nor is it true thai even the shippers them-
•elvee are interested, in the long run, in ob-
taining the carriage of their goods at rates
unreasonably low.
But such agreements between competing
railway companies are in fact necessary as
has been demonstrated by long and dis-
astrous experience.
Re Southern R. d S. S. Asso. 1 Inters.
Com. Rep. 288; Report of Interstate Com-
merce Commission, 1 Inters. Com. Rep. 663-
671 ; Re Chicago, St. P. d K. C. R. Co. 2
Inters. Com. Rep. 148; iSeoond Annual Re-
port of Interstate Commerce Commission, 2
Inters. Com. Rep. 249, 256; Third Annual
Report of Interstate Commerce Commission,
23, 25, 41 ; Fourth Annual Report of Inter-
state Commerce Commission, 4, 19, 21, 88;
I^fth Annual Report of Interstate Oommeroe
274
Commission, 263; Judge Cooley in Railwiy
Rev. April 26, 1884.
In recapitulation of the points above pre-
sented upon the question of the oonsUtutioih
ality of the Anti-Trust Act, if it is hdd ap-
plicable to the agreement in this case, we
respectfully insist—
1. That the act deprives the defendant of
both liberty and propenty by forbidding a
contract just and reasonable in itself, e^
sential to the use of their property and the
prosecution of their business, and nevo' be-
fore held or claimed to be unlawful or wraq^
and by which they only agree to do wkst
th^ have a ri^t to do.
lliat no such contract can be prohil^ted br
law without a violation of the constitutioast
provision, whatever advantage to the poblie
in keeping down rates of transportatkm
mav be expected to result from it.
And that in aittempting sudi a prohibi-
tion, the case contemplated b^ the Consti-
tution is distinctly presented, in \duch tbe
legislature deems that a public benefit is to
be effected by depriving the citizen of his
liberty or property witmmt due process of
law.
2. That ev«n if such a deprivrntion oould
be justified in any case, the public good in
this case does not in any sense require tt»
because —
(a) Those intended to be benefited are Ml
the public, but only one class ol tiie pobUt
who are seeking a business advantj«e ow
another and much larger dans, mioh k
equally entitled to protection.
(b) Even if su<m a elaae is held to eo»>
9titute the public, R is not entitled Co the
suppression of all restriction upon eompeti*
tion, because such a suppression would be a
plain and oppressive violation of the eqval
rights of the other ekes, inasmudi as H
would compel the latter to serve the fbraMr
by labor and property without a just eoM-
{>ensation.
(o) The le^slation in question is not Bi^
essary, etven if it is admissible. The eo^
plete suppression of all the restrietioa upoa
competition to which the public has a rint
to ot>ject is already effectually provided tor
hy full and careful congresmonal legisla-
tion, in which no defect or insuffieiency eM
be pointed out; so that the farther ouppivi-
sion now proposed only extends to those r^
strictione, just and reasonable in tiiemsdvi^
to which the public have not a right to ob>
ieot And even without that (Mr any kgb*
lation, it would be utterly impoeaible uMr
existiitf facts, notorious ana undispvtii*
for railway companies to restrict eompsCi*
tion to a degree that would result ia %mj in*
jury to the public.
(d) That if all restrietlooa upra eonpt*
tition were prohibited, the result, instead of
a public advantage, would be a public ealaa-
ity, and would injure rather than benefit ^
very elasi in whose behalf it is contended for.
8. That if it were admitted that further
legislation against restriction against cam-
p^ition was both constitutional and neeor
sary, the prorisions of this act in forbidditf
all sueh restrictions are not justly adaptea
to the only sod that is admissible on the
171 V. ^
im.
UmTBD States y. Johtf-Tbaffic Association.
More of the public good, — the maintenance
of just and reasonable rates, — but must result
in an infringement of the liberty and prop-
erty oi the defendants, to a degree far be-
food what is necessary to that end, and in
DO iray conducive to it.
Whatever the merits of the agreement in
oDsstion may be, no case for an injunction
v presented.
Even though the authority to make the
decree sought exists, the bill is insufficient
to invoke it.
Story, Eq. PL f 271, note; Id., 9 27a, note;
Caw^beU v. Maokay, 1 MyL k G. 618.
Jfr. Oeorse F. Edmunds, for the Penn-
i^vania Railroad Company, appellee:
Before the agreement in question was made
the rates of each rosd had been independ-
ently and fairly establisbed by itself, and
duly filed with the Interstate Commerce Com-
■kiesian; and tiiese rates were in truth just,
ressonable, and in conformitv with law in
every resMct, and were in full operation.
This is aiUniUed by the pleadings.
This being true, these rates oould not have
been either raised or lowered, under the ex-
ifting conditions, without injustice to pa-
trons or else injustice to those interested in
the roads, including the people along their
ttnes, as well as through shippers.
To have changed any of them would have
been sgainst justice and reason, disobeving
tiie first commandment of the oommeroe law.
In this state of things the agreement was
made. The presmble contains five distinct
declarations as follows:
(1) To aid in fulfilling the purposes of
the Interstate Commerce Act; (2) to co-
operate with eadi other and adjacent trans-
portation associations; (8) to establish
s^ maintain reasonable and just rates,
fares, rules, and regulations on state and in-
terstate traffic; (4) to prevent unjust dis-
erimination, and to secure the reduction and
concentration of agencies; (5) and ^e intro-
duction of eooaiomies in the conduct of the
freight and passencer service.
Enay one of these declaratioos is ad-
Biitted to have been true in all respects; and
it is admitted that there was no other pur-
pose, and no secret or covert design in re-
spect to the subject. The preamble thus be-
esme, certainly as between the parties to it,
the coMtitutional guide in the interpreta-
tion of the body of the contract.
The parties next declare that they ''make
this agreement for the purpose of carryixig
oat the objects above named."
The first six articles of the contract pro-
fide for organisation and administration, in
respect of which no criticism has been fwg-
ge^ed except as to I 5 of article 6 in con-
nection witb the Solicitor General's conten-
tion in recard to article 7.
Article 7 is the first one that is assailed
in rei«pect of its fundamental character. It
b the fundamental one in resard to rates.
If it violates law it is bad, and must not be
put in execution. If it provides for the full-
est obedience to law and promotes trade,
it must be upheld.
The first section provides: '^Section 1.
The duly published schedules of rates, fares,
171 V. %.
and charges, and the rules applicable there-
to, now in f6rce and authoriised by the com-
panies parties hereto upon the traffic covered
by this agreement (and filed with the Inter-
state Commerce Commission as to such ol
said traffic as is interstate), are hereby re-
affirmed by the companies coroposing the as-
sociation, and the companies parties hereto
shall, within ten davs after this agreement
becomes effective, file with the managers
copies of all such schedules of rates, fares,
and charges, and the rules applicable there-
to."
This section is the immediate and affirma-
tive act of the association. Its essence is
that all parties agree to abide by the pre-
exieting just, reasonable, and lawful rates
then on file with the Interstate Commerce
Commission. It has not been contended by
the learned Solicitor General that this sec-
tion is contrary to law. It is submitted
with confidence that no such contention can
bo made, and that if the association agree-
ment had stopped there, the agreement
would have been simply one to stana by just
and reasonable rates independently fixed, on
file with the Interstate Commerce Commis-
sion, which would be agreeing to do the very
thing that the plain words of the statute
commanded shouid t>e done. The commerce
law does not demand competition; it only
demands justice, reason, and eouality.
Every one of its clauses is devoted directly
to these endsj and the competition that pro-
duces departure from the reason and justice
and equality that the act requires violates
the essential principle upon which it is
founded.
I take it to be plain that if these thirty-
one defendants had united m an engagement
to truly and faithfully adhere to and carry
out in their respective conduct all the re-
quirements of the commerce law, and had
agreed to the imposition of penalties for in-
fraction, it would be manifest that they had
not contracted to restrain trade, either in a
general or a partial sense, or in any sense
whatever. In this first provision of the
agreement, th^ have engaged to do that
ver>' thing, ana that very thing only, in the
form of specific language referring to a
specific and existing just, reasonable, and
lawful state of things which they were then
acting upon.
Section 2, of article 7 is the one upon
which the principal assault of my learned
brother on tiie other side is made. He main-
tains that the language used in describing
the powers and duties of the managers ia
intended to be evasive and to conceal its
real purpose, and to make the managers the
absolute masters, subject to an appeal to th«
board of control (being the presidents of all
the roads), of the changing and fixing of
future rates. The first answer to this is
that the pleadings distinctly admit that
there was no evasive intention, or any other
unjust purpose, in any part of the arrange-
ment. It is therefore not just to maintain
what the record admits to be untrue.
But whatever construction or implication
may exist in respect of the language of this
275
SuFRSMB Court of thb Unitbd States.
Oct. Tsrx,
Motion, it is sufficient to say that the very
next section of the same article declares —
"That the powers conferred upon the man-
agers shall be so construed and exercised as
not to permit violation of the Interstate
Commerce Act, or of any other law appli-
cable to the premises, or any provision of
the charters or the law applicable to any
of the companies parties hereto; and the
managers shall co-operate with the Inter-
state Commerce Commission to secure stabil-
ity and uniformity in the rates, fares,
charges, and rules established hereunder."
Here is, in words as clear and specific as
the English lanp^age is capable of, a distinct
iurisdictional limitation upon the powers of
the managers as described in the preceding
section, ami in terms the clause provides that
the powers conferred upon tne managers
shall be so construed and exercised as not to
permit the violation of the Interstate Com-
merce Act, or any other law, and so forth;
and it commands the managers to co-operate
to these ends with the Interstate Conunerce
Commission.
When the manac^rt, then, come to act un-
der these powers, how do they start?
They start with rates established, not by
the agreement, but before it was made, and
confirmed by it, which were confessedly in
conformity with and in promotion of the
Commerce Act, and which were absolutely
iust and reasonable. The managers are to
have authority to reconunend such changes
in those rates and fares as, by the very words
of the 2d section, may be reasonable and
Just and necessary for governing the traffic
and protecting the interests of the parties.
Beasonableness and justice is the first and
fundamental condition of their startinff to
act at all ; and it is declared that they uiall
not act otherwise than in conformity with
the requirements I have already mentioned,
contained in the Commerce Act.
Can this be an authority to restrain trade,
under any definition of the word "reetraintt"
The only restraint is a restraint against vio-
lation of law by the managers in agreeing
upon unreasonable and unjust rates against
tne requirements of the Commerce Act. If
we af^sume that the restraint of trade men-
tioned in the Trust Act may be a restraint
of innocent and just proceeding, can any-
one maintain that it makes illegal an agree-
ment, not to violate law, but to obey it 7
It was obvious when this agreement was
made, that rates then existins and being in
all particulars reasonable and equal might
in the course of changes in production,
trade, and other conditions over which the
railways could have no control, become unjust
and unreasonable and inapplicable to the
new conditions, and that in such a case both
public and private interests would require
that readjustments should be made in order
io bring the rates into conformity with what
reason, justice, and law should require under
such conditions. It was to provide for this
that §S 2 and 3 of the 7th article were in-
serted. They were inserted in such clear
language that it would be impossible for the
managers to agree upon any rates in lieu of
the just one then existing, that were not, in
tie
the same sense and to the same extent^ Jiiit»
reasonable, and for the public interest, as
those then existing. The managers must act
in that way and to that end, or else thej
were forbidden by the very terms of tlie
agreement to act at all.
If the managers, contrary to their author-
ity, should have agreed upon a new rats
which any one of the independent roads
thought to be wrong in itself as being unrea-
sonable and not in conformity with the r^
quirements of the article and of law. that
company or any number of companies af-
fected could lawfully and justly (as would
be its bounden duty) refuse to conform to
the rate of the managers. But, it is asked,
would not this road thus refusing be sub-
jected to fines and forfeitures provided ia
another part of the agreement, and would
not it be turned out of the association? I
answer «nphatically, no. If any such thing
were attempted under the cireumstances
named, the company could defend itself in a
court of justice against any such wrongful
exaction, and could compel the managers and
its associate roads to obey the contract, and
to give it its just equality of treatment thai
it was before entitled to. The Commeroe
Act itself requires in terms the same rea^
sonable and just conduct by railways
towards each other as it does in thcdr treatp
ment of their customers and the public. I
most earnestly maintain, therefore, that th«
whole and every part of article 7 is perfectly
valid under anyjpossible construction of the
language of the Trust Act, as well as in per^
feet conformity with and in aid of the Com-
merce Act.
I may as well here compare the provisions
of article 7, which contains the great lead-
ing feature of the whole agreements with
the Sfreement in the Trans-Missouri case.
The oifTerence is broad and fundamental. In
this case, as I have shown, the rates agreed
to be adhered to in § 1 of artide 7 had al-
ready been independently established, were
in fact reasonable and just, were on file and
inferentially approved by the Interstate
Commerce Commission and they had becoi
assailed by nobody, and the whole trade of
the country affected was proceeding under
them with advanta^ to the shippers, to the
people along the lines of the roads, to the
railways themselves, and to the general in-
terest of the country. It was an engagement
to stand by that state of things, and
for the express purpose of continuing
that happy state of things,— exactly those
that the law requires, — ^Uiat this engage-
ment was made. Turn now to the Trane-
Missouri agreement on the same part of
the subject. That agreement did not pro-
pose or profess to stand by any then eidsting
rates, it did not indicate that the rates then
existing were just or reasonable, but it pro-
posed to put into the hands of its managers
the power to establish de novo reasonable
rates, etc., and, in the very words of the
agreement, for the purpose of mutual pro-
t^tion and nothing else.
The Trans-MiAsonri agreement imposed
no restriction upon the discretion of its rate-
making board; it did not impose and evi-
171 U. 8.
im
Umitkd Statbs y. Joint-Traffic Association.
de&tly did not intend to impose, the distinct
btrrien of the law between the powers of its
rate board and the people and any one of the
roads conoemed. it did not profess to look
to uay other interest than the exclusive in-
terest of the parties themselves ; and it will
be seen, on a careful study of it, that it was
construed and constructed for the sole pur-
pose of keeping and increasing rates, instead
of for the purpose of (as in the Joint Traffic
Association) of keeping them just and in
conformity with law, wnether by reduction,
increase, or other readjustment.
Other essential differences are stated in
my brief, whidi I need not take the time of
the court to enlarge upon.
These differences are illustrated by what
the pleadings in the two cases show. In our
case, the practical operation of the agree-
ment has been to continue the same compe-
tition that existed before. This is admitted.
It has been to continue the same lust and
reasonable rates previously established, and
to give a co-operative and advantageous serv-
ice upon eqiml terms to everybc^y and of
equal benent to t^e whole public. The bill
in the Trans-Missouri case alleged — ^there be-
ing, it will be remembered, no previously es-
tablished ratee that were agreed upon — that
the parties had refused to establish and
gire their customers just rates. The an-
twer did not meet tiie charge, but evaded it
in the manner that the court wOl see stated
on pa^ 34 of my brief. The practical con-
structions by parties to contracts in their
operations under them has always been con-
sidered an important element in determining
the true character and meaning of the con-
tract What I have now stated shows the
operating difference between the two con-
tracts.
The next principal contention of my
learned brother is that article 8 of the a^ee-
ment violates the Trust Act by restraining
trade.
The words of the artide are as follows:
"Article 8. Proportions of competitive traffic.
Tht managers are charged with the duty of
securing to each company party hereto equit-
able proportions of the competitive traffic
eorered iy this agreement so far as can be
ksally done."
This article provides that the managers
shall endeavor so far, and only so far, as obe-
dience to the law — that is to say, conformity
with the Commerce Act and conformity witii
the Trust Act— will permit, to secure equita-
ble proportions of the competitive traffic to
each one of tiie companies. It is sufficient an-
•ver to my brother's contention to say that
tbs very terms of the article do not require
or invite or allow the managers to act under
it at all otherwise than the law shall permit.
If therefore the Trust Act condemns the ef-
forts referred to, then not to make the ef-
forts. If the Interstate Commerce Act, ei-
ther in terms or spirit, is adverse to such an
effort, the managers are not authorized to
take a step. Does it violate the law to mere-
ly authorize an agent to do something 5n the
coarse of business so far, and so far only, as
the law will permit T
But I ooniend that it was in conformity
171 U. 8.
with the law that each company should havt
an equitable proportion of tne traffic. What
does equitable mean? It means that whidi
right and justice and the public interest re-
quire. What did justice and public policy
require? And what does it still require in
respect of the nine great lines connecting the
western lakes and the valley of tlie ^Iissis-
sippi and the whole continent beyond with
the Atlantic seaboard? Was it not just and
necessary to public interest that each one of
these roads passing through great extents of
country, and having alone them populations
and interests to whose welfare the existence of
each one of these roads was necessary, should
be considered with reference to the through
traffic which should come from beyond? The
Suestion answers itself. It is obvious, then,
liat just so far as each road should be ena-
bled to carry the through traffic that natur-
ally belonged to it, by just so far the people
along the whole length of its line would be
benefited by increasing the income of the line,
and thereby contributing to its support and
to its ability to make lower rates to all its
people from one end of the line to the other.
This provision of the 8th article, then, was
wholesome, lawful, and necessary, and it was
the very thing which one of the clauses in
the Commerce Act and the spirit of all its
provisions reouired.
] may be allowed to say a word in respect
of the objection that no one of the roads
could change its rates without giving thirty
days' notice, and therefore that this was a
restraint of trade in one sense or another. It
will be seen on examining the agreement, that
each road had the absolute right, under the
agreement and pursuant to its provisions, to
chanffe its own raJtes, and still continue a
member of the Association. This being so,
it seems to me impossible to contend that
any part of the agreement was any sort of re-
straint, unless it can be established that the
thirty days' notice was too long. It is a
matter of history that when the Commerce
Act was passed there was inserted in it the
requirement that no rate should be raised ex-
cept on ten days' notice, and none should be
lowered oxcept on three days* notice, publicly
displayed. What was the principle of this?
It was that justice and fair play to custom-
ers and to the public and to all persona di-
rectly or indireotly interested in transporta-
tion required that sufficient and timely
knowledge of changes in rates which, as we
know, affect in a greater or less degree all
commercial and productive transactions,
should be had by every person and commun-
ity interested. I suppose I may properly
state it as a public fact, now known to every-
body engageci in busine^m, that the time fixed
in the Commerce Aot for notice was much
too short, and that un|urit inequalities have
arisen, again and again, from charges in
rates by particular roacU on short notice,
that favored cuatomers and favorite local-
ities, etc.. would get advantages over others,
in violation of the spirit and substance of the
Commerce Act It was for the purpose,
then, and with the effect of producing the
widest fair play and equality among all per-
sons, all roads, and all communities, that
277
SUPRBHE COUBT OF THB UnITKD S'iATl!^.
OoT. Tkbm,
this period of thirty days, instead of ten,
was a^eed upon. It was otmously right,
and being right, it should not be condemned,
unless the rigor of a law that cannot be oth-
erwise construed and applied compels it.
I submit with sdaoere confid^ice, as re-
gards the provision I have just spoken of,
M well as r^^rds all the other provisions of
the contract, that, instead of being even a
partial restraint of trade, they are all pro-
visions of conetrainit in support and in pro-
motion of trade. Trade is a general word,
and its operation, like all other operations
that require oo-operating and associating
forces and arrangement, are advanced by,
and indeed, cannot becarried on truly and hon-
estly for public interest without chedcs and
regulations, some of which may restrain and
regulate the behavior of a particular element
in the whole opeiution, and by doing so do
not restrain, but advance and promote, the
whole ; just as, to take the simplest oi illus-
trations that occurs to nie, in mechanics the
safety valve of a locomotive, with its counter-
weight, regulates and restrains or gives off
the accumulatiBig steam in the boiler, in the
first place conserving it, restraining it from
escape, und in the second place, enafolinjB^ it to
escape. But all this does ncJt restrain tiie
operations of the locomotive; it is necessary
to its best and safest performance of duty.
A hundred illustrations might be given.
My brother on the other side suggests
that the clause in the agreement providing
for abolishing soliciting agencies is a re-
straint of trade. I have stated in my printed
points my answer to this. I may add, how-
ever, that soliciting trade or ceasing to so-
licit trade is not tr£ie itself, and does not be-
long to it even as an incident. Wherever it
is practised it is practised apart from any act
of trade; it precedes it, and sometimes leads
up to it, and sometimes repels it. It was
perfectly competent, therefore, and certainlv
wise, for these roads to agree to abolish
such agencies, and to join, so far as it
might he convenient to do for t^e informa-
tion of the public, in having agencies at
various pointo of importance to assist ship-
pers and manufacturers in the most rapid
and economical transmission of their pro-
ductions. The plan, therefore, substituted
for the old practice is one far more advan-
tag^us to the public who wish for hon-
est and eqntkl dealing than the old prac-
tice. But 1 submit that whatever character
may be imputed to soliciting business, it does
not fall within the authority of Congress to
regulate it at all. While it is goin^ on the
business solicited has not reached the point
of being interstate commerce, and cannot
reach it until its movement has commenced,
or is about to commence, definitely from one
state to another.
I refrain from makin*^ any observation
on the constitutional question arising if the
Trust Aot is to be con? trued as forbidding
innocent contracts promotive of public pol-
icy, which I have insisted upon in my printed
points, for the reason that in the division of
our subjects of discussion this matter will be
left entirely to my brother, Mr. Phelps.
In respect to the meaning of the words of
278
the Trust Act, I beg Your Honor's oareful ■!•
tention to the suggestions I have ventured te
make in my print^ points. Ineednotonlaigt
upon them, and have only to call your atten-
tion, first, to the grammatical construetioD of
the first section, and second to the citatioiii I
have made from law writers, showing a dis-
tinct and separate classification of uie two
phrases, ''restraint of trade" in general, and
''partial restraint of trade.'^ If thsM
writers are correct (as nobody doubts, I
think, they are) , and these two phrases wert
known and treated in the law at the time of
the passage of the aot as separate things,
the one (wnoxious and the other just and
wholesome, then I respectfully and earnestly
insist that the universal rule of oonstruetaoB
requires that the words in the aot shall be
assigned to the first class and not carried
over into the second.
Mr. John K. Rioharda, Solicitor 0«d-
eral, for the United States, appellant in r^
ply:
1 . It is claimed that because nothing has
been done under the agreement, no irrepara-
ble injury has been or can be shown, and
therefore no injunction lies. But the anti-
trust law makes the agreement illegal, and
vests the court with jurisdiction to preteot
violations of the act. The carrying out of
an illegal contract will result in irreparabb
injury to the public, and this suflusiently
appears from the provisions <^ the law de-
claring the illegalify and authorizing the in-
junction proce^inffs.
Mr. Carter said ne would not reargue the
questions considered in the Trans-Missoiiri
case, and then proceeded to discuss what
constitutes an agreement among railroads
in restraint of trade, insistinff that oos
which only prevents competition for the pur*
pose of maintaining reasonable rates b nol
one in restraint of trade.
In the Trans-Missouri case this court hM
that such an agreement is in restraint of
trade, regardless of its purpoee and the •»
tual result of its operation. So, after all,
the argument of Mr. Carter was directed to
a discussion anew of the questions argued
and considered and settled by this court ia
the Trans-Missouri case.
2. It is insisted that an amement in re-
straint of trade must restrain trade, that
is, reduce, or diminish it; that trade mint
bo injured.
An agreement in restraint of trade may or
may not diminish or reduce trade. The ii-
jurv sought to be averted by prohibiting
sucn a^eements is the injury to the onbUe.
The stifiing of competition, the ereatioa ol
a monopoly, may increase the trade in ths
product controlled, but nevertheless to tht
injury of the public To stifle competitioa
is to create a monopoly and place the pablit
at the n^ercy of the monopoly. The beneiti
resulting from cheaper products through no-
nopolies have never been held br oovuts or
legislatures as sufficient to overbalance tht
evils to the government and people from thi
creation of monopolies. It is a questioB of
method, rather than result. Trusts and m^'
nopolies are forbidden in order to preservt
competition, and thereby, as far as po«ible«
171 IT. 1.
1898.
Unitbd States v. JoDfr-TBAinc Asbociatiu^i.
frMdom of action in industrial and commer-
cial life.
3. It is said tliat competition is not trade,
but a mere incident of trade; that wliat pre-
sents competition does not necessarily injure
trade; on the contrary to restrict competi-
tion may benefit trade ; that the whole world
is now groaning under competition ; that the
hard rme of the survival of the fittest bears
hesTil^ upon the masses of the people ; that
there is a spirit of unrest, of dissatisfaction,
and that, to avoid the effects of a ruinous
eompetition among employers and employees,
combination is the rule.
It may be conceded that the law of the sur-
TiTal of the fittest is a hard one; that the
necessity ^f competition under existing cir-
cumstances presses heavily upon the weak.
But, after all, competition is not only the life
of trade, but the underlyin^basis of our so-
cial and industrial life. There may be a
better way, but we have not yet found it.
Competition goes along with freedom, with
independent action. This country was
founded on the principles of liberty and
equality. It sought to secure to every citi-
sen an equal chance under the law. That is
all the people have demanded or do demand,
— a fair show in the race of life. Undoubt-
edly there is unrest, dissatisfaction, tenden-
cies to anaxchy and socialism, but these re-
sult, not from competition, but the throt-
Uwf of competition by trusts and combi-
nations, whicn seek to control the production
and transportation and dominate both work-
ingpien and consumers. Against these the
individual citizen protests. He does not de-
mand no competition, but fair competition.
Combinations of workinjnnen accompany ag-
gregations of capital. Thus the masses are
arrayed against the classes. If combina-
tions of capital were prevented, if competi-
tion among employers of labor were enforced,
the independent demand for labor from com-
peting sources would tend to fair wages, such
aci pnces might warrant.
4. It is insisted that this agreement
among railroads to prevent competition is
not only innocent, but wise and salutary,
because in the case of railroads competition
is ruinous ; that if competition reduces rates
bdow the point of profit for any line, it
must ultimately be bankrupted, for it cannot
stop running nor can the capital invested
in it be withdrawn.
But this argument applies to all great
modem induetries, in manufacture as well
as transportation. Capital fixed in a valu-
tble plant cannot be withdrawn, nor can la-
bor stalled in one industry be readily shifted
to another. Both manufacturers and work-
logmen are subiect to the contingencies of
competition. Tne establishment of a new
plant with modem improvements may de-
stroy some old one, in which both have vir-
tually risked their all.
Why are not men who put their capital
or skill into a manufacturing plant just as
much entitled to protection against ruinous
competition aa those who put their money or
Blnll in a transportation plant? Why
should the raflroads be singlea out from all
the ereat interests of this country, and alone
171 V. B.
be authorized to combine and prevci^t compe-
tition and keep up prices?
Competition drives the weak to the wall;
the fittest survive; but the greatest good to
the greatest number results. The opening of
new mines, the construction of new plants,
the establishment of industries with im-
proved methods of production and greater
natural advantages, lower the cost oi pro-
duction of the commodity to the benefit of
the public; but the person or corporation or
region which cannot lower its cost of pro-
duction to meet the new competition must
suffer. Under competition the most improved
plant, the best trained labor, the most eco-
nomical management, the wisest business sa-
go citv and foresight, is not only encouraged
but demanded for success.
The best railroad, the one constructed and
equipped and managed in the best way, will
|;et the bulk of the competitive business, and
it ought to. It can afford to carry the traf-
fic at lower rates than the poorer roads, and
it ought to be allowed to in the public in-
terest. The poorer reads can get the busi-
ness by putting themselves in shape to do the
business. Roads c<mally fitted to the work
will naturally divide tne competitive busi-
ness in equitable proportions. Competition
for traffic by improved service and lower
rates will result naturally, not in ruining
the roads, but in building them up. Under
competition the best road fixes the rate; un-
der combination the poorest road.
Is it just to make the public pay ratei
from Chicago to the east fijced by the poor-
est system protected by the Joint Trafflo
agreement?
5. It is contended that there is no re-,
straint on trade, because the railways still
exist, with all their facilities for transpor-
tation, ready and willing to serve the public,
and with no inducement for service weak-
ened; that competition in every desirable
a«pect remains, tne railroads being nermitted
to compete, but compelled to do it openly,
under the provision that a deviation from
the association rate cannot be made except
by resolution of the board of managers and
after thirty days' notice to the managers.
It is true that railways exist, with their
original facilities, but the inducement for
improvement by cheaper methods of. trans-
portation is weakened, the motive for compe-
tition removed, the means of competition de-
stroyed, and competition itself absolutely for-
bidden. The natural result of preventing
competition is to keep up rates. An excess
in rates over what would obtain under com-
petition amounts in effect to a tax on the
things transported. This operates as a bur-
den upon commerce and a restraint of trade.
If a state should levy a tax on goods trans-
ported through it, this court would hold
such an act unconstitutional because it has
laid a burden upon interstate commerce.
Moreover, to increase rates and maintain
tbem at a point above what would obtain un-
der competition, decrease.^ the business of
railroads, but enhances the cost of it. and
thus restrains trade or commerce. Lower
rates mean more traffic, both freight and pas-
senger. Higher rates mean less traffic. It
SUPREMB COUBT OF THB UkITICD StaTES.
Oct. Temm^
may be to the inierests of the railroads to in-
erease the rates and lessen the traffic The
frofits may be as much or more, but it is
one at the expense of the public and to the
restraint of trade.
6. It is insisted that rates must bo stable,
not subject to change; that a manufacturer
cannot safely make goods or a dealer buy
them unless he knows the rates for trans-
porting them to market, and may rely upon
these rates continuing; therefore agreements
for main- fining rates at a fixed point should
be encouraged.
It is obvious the manufacturer or dealer
must not only take into account the rates he
will have to pay to market, but the rates his
competitors trom every quarter by land and
water will have to pay. It is impracticable
to attain a cast-iron uniformity of this
kind, and neither the interstate conmierce
law nor the Joint Traffic agreement attempts
it.
Moreover, tiie agreement does not assume to
prevent a change of rates. It virtually takes
the power to change from the companies, Dut
gives it to the managers of the association.
For natural it substitutes arbitrary change.
The protest against any change in rates is a
protest against progress. The history of
railroads fiiows a constant tendency towards
cheaper rates. This has resulted from im-
provements forced by competition. The in-
terest of the public lies, not in maintaining
hut in reducing rates, and to effect such re-
duction competition is essential.
7. Uniformity in rates is declared to be
essential, and it is urged that the provisions
of the interstajte commerce law favoring
uniformity cannot be enforced except by sup-
pressing competition through this agree-
ment ; and, to illustrate the need of uniform-
ity, it is said that without it an industry
in Michigan equidistant from market with a
similar industry in Indiana might be wiped
out of existence by reduced rates in favor of
the Indiana industry.
But neither the Interstate Commerce Act
nor this a^^reement would prevent the alleged
injustice suggested. The case instanced in-
volves a reduction of rates on local traffic,
and the agreement only applies to competi-
tive traffic. There is nothing in the agree-
ment to prevent any mem1>er of the associa-
tion from changing the rates from local
points ; the jurisdiction of the association is
restricted to competitive traffic.
Suppose two similar industries located in
Pennsylvania, each supplying the New York
market, and each equally distant from New
York, but one located on the Pennsylvania
and the other on the Lehiffh Vallejr ffyetem.
For one industry the Lehigh Valley is theonly
line to New York; for the other the Penn-
sylvania. There is nothinfir in the Interstate
Commerce Act, or in the Joint Traffic Agree-
ment, to prevent the Pennsylvania from re-
ducing the rate to New York; nothing to
prevent the Lehigh Valley from reducing
such rate.
The uniformity demanded by the Inter-
state Commerce Act is uniformity in the
treatment by each railroad of its own pa-
trons. The 2d section prohibits a common
2P0
carrier from charging one person more than
another for the same service ; it does not pro-
hibit a carrier from charging one persoa
more or less than another rauroad cnarm
another person for the same distance. Tkt
3d section forbids a common carrier to give
any undue preference or advantage to aay
person or locality over any other. But tliit
only applies to the action of a railroad to-
ward the people or places served by it. And
so, too, with reference to the long and thort
Iiaul provisions in the 4th section.
The interstate commerce law dedarsi
that all charges must be just and reasonaMa.
It provides no means for securing this de-
sideratum except oMnpetition. The only
method of stifling competition when the law
was passed was the pooling a^eement, and
this waa prohibited. Competition between
railroads was preserved, and to secure tlit
benefit of competition to all patrons of ea^
road it was provided that tne oompetitaoa
should be open and above bo«trd, so the peo-
ple might be advised of the existing ratei»
and each railroad waa required to treat iti
patrons with uniformity, without discnmi-
nation and without preierences.
The object of the law was to seeore tbe
benefit of competition to all, and not
a road to charge those shippers for
patronage it does not have to compete
sive rates, while secretly eranung lower
rates to those shippers for wiioee patronage
it does have to compete. The competitian
was to be restricted to where it belongs; W
tween the railroads, and not between the
shippers. If a railroad oan afford to eanj
freight of one dipper for a certain rate, h
can afford to carr^ for the same rate liln
freight under similar conditions for every
other shipper.
Chicago d N. W. R, Co, v. Ogbame, 10 V,
S. App. 430, 52 Fed. Rep. 012, 3 C. C. A. 347,
4 Inters. Com. Rep. 257.
8. It is contended that uniform ratei
should be maintained on the trunk lines fai
order to keep the weaker roads in operation
for the benefit of the sections t^irongn wliidi
they run.
As I have pointed out, the agreement does
not apply to local traffic. As to it eadi reed
has a monopoly, with power to fix iti own
rates. The agreement applies only to eoei-
p<>titive traffic between great centers. TIm
argument, then, amounts to this, that rates
on through traffic are to be kept np in ordv
to preserve the weak roads as going eon-
cems for the benefit of the sections tbrongli
which they run. What is this bot to tax
the many for the benefit of the few? It is not
the function of the government to neutraliit
the advantages of locality. The people pay
for these and are entitled to them. If I settle
in a flourishing region on a ffood line, I pay
for the privilege in the cost of land, in tazasy
etc. If I settle in an undeveloped region on
a poor road, I pay little for either the privi-
lege or the land, and must expect to h^
b€»ir the cost of development.
0. It is said that the Interstate Commeret
Act was passed to suppress competition and
secure uniformity in rates.
It was not passed to suppress eoinpetltloe,
171 Jt. 8.
im.
Uhitbd States v. Joint-Tkavfio Association.
Vot to presenre it and secure its benefits to
iU. Ccmipetitiofn between independent lines
WAS preserved, and unifoimity enforced to
Mcnre tbe benefit of tliis competition to all.
Etch carrier was required to treat its
patrons with uniform fairness, without pref-
erence and without discrimination. The
onlj effective arrangement used at that time
W the trunk lines to stifle competition was
the poolinff a|preement, and this was pro-
hibited. R was recognized that competition
would keep the rates reasonable, and the
long and sh<Ht haul provision was intended
to seeure to all points on each road the bene-
fit oi sudi competition. Unjust discrimina-
tion and undue preferences by a railroad
among Its patrons was prohibited. Thus the
benefits of open competition were insured
to alL The poli<^ was, among the patrons
of each road, uniformity, but between the
roads <»en competition.
First Report of Interstate Commerce Com-
ttiission 1887, p. 33.
10. Hie pcrint is made that railways are
public highways, and the furnishing of rail-
way transportation is a governmental func^
ticn; therefore the government should
eUminate the advantage of locality by en-
iordnff absolute uniformity in rates, or {per-
mit t£e railroads to do it by preventing
eoopetition and maintaining arbitrary
ntes.
It may be conceded that the furnishing of
railroad transportation is a public function,
and therefore the government may regulate
it Qovemment, state and Federal, has done
tbis by forbidding the consolidation of com-
peting lines, by prohibiting pooling con-
tracts, and by making illegal all agreements
in restraint of trade.
The absolute uniformity demanded is nei-
ther practicable nor desirable. Absolute
oniformi^ extending to every rate, from
erery point, on every railroad, means abso-
lute consolidation m control and absolute
arbitrary rates, and this is absolutely incon-
siftent with competition. It admits of no
competition. The desirable uniformity is
that which goes along with competition, and
rapplements it, and secures its beneflts to all
•hippers without distinction. Each railroad
Amud. be required to treat its patrons — per-
sons and places — ^with fairness and e(]uality,
▼ithoot preference or discrimination. It
fbonld not be required, however, to treat its
shippers no better than other lines treat
theirs. On the contrary it should be induced
to treat its shippers tne very best it can, and
thereby make it incumbent upon competing
hnes to treat their shippers as well. It
^uld be induced to do this, not only in rates,
but in service. The ri^d, cast-iron, arbi-
trary rule of absolute uniformity as between
railroads, contended for, would logically pre-
sent all competition, whether in rates or
iwrice,
i««t V. Union P. B, Co. 64 Fed. Rep. 165,
winters. Com. Rep. 935; Inieraiate Com"
•we Oommission v. Baltimore d 0. B. Co.
145 U. R 276, 36 L. ed. 703, 4 Inters. Com.
R«p. 92; Oineinnaii, N. 0. d T. P. B. Co. v.
htentate Commerce Commissioners, 162 U.
8 184, 40 1a cd. 935, 5 Inters. Com. Rep.
ni V. g.
391; Freight Bureau Cases, 167 U. S. 479,
42 L. ed. z43 ; Southern P. Co. v. Bailroad
Commissioners, 78 Fed. Rep. 236.
11. If the railror.ds are not to be permit-
ted to combine and prevent ruinous competi-
tion, and establish and maintain reasonable
rates by arbitrary methods, then, it is said,
they must either abandon transportation, or
consolidate, or persistently violate the law.
There is a virtual consolidation now of
these roads under the agreement. The pub-
lic is not interested in consolidation except
as it affects competition. The Constitutions
and laws of many states prohibit the consol-
idation of railroads, but only of competing
railroads. Lines which do not compete may
consolidate, and the public thus gains the
benefit of broader and more economical ad-
ministration. Railroads which compete
may not consolidate, becavise it prevents
competition and keeps up rates.
Public policy has demanded the prohibi-
tion of the consolidation of competing lines;
for the same reason Congress enacted the
anti-pooling section of the Interstate Com-
merce Act. The pooling of freights and the
division of earnings is not bad in itself. It
is bad because used to stifle competition.
Equally bad is the Joint Traffic Agreement
beiore the court, which operates as effectual-
ly as any pooling arrangement ever devised.
The people have not stopped to inquire
whether consolidation would result of neces-
sity in unreasonable rates; neither have they
stopped to inquire whether pooling would
result necessarily in unreasonable rates. It
is the tendency, not the absolute result,
which has operated to prohibit consolidation,
to prohibit pooling, to prohibit contracts in
restraint of trade.
Pearsall v. Oreat Northern B. Co. 161 U.
S. 646, 676, 40 L. ed. 838, 848 ; Louisville d
N. B. Co. V. Kentucky, 161 U. S. 677, 698^
40 L. ed. 849, 858.
The railroads say that if they are not per*
mitted to prevent competition they will com-
pete, and m doing so will violate the inter-
state commerce law ; that they should be pei^
mitted to combine for the purpose of pre-
venting violations of the law, even if in do-
ing so competition be prevented.
But to prevent competition is in itself ta
violate the law. Better the chance to vio-
late one law than the certainty of violating
another. Better the motive to violate one
law than the mandate to violate another.
If the ability the railroads employ to cir-
cumvent the law were usctl to observe it,,
neither this agreement nor the arguments i»
support of it would be before the court. The
railroads promise to obey one law if the
court will permit them to violate another.
Would they keep the compact, if madet
Respect for the law based solely on self-in-
terest is delusive and evanescent.
12. An attempt is made to distinguish thi»
case from the Trans-Missouri case by say-
ing that here the association simply adopted
the admitted fair and reasonable rates then
in force and filed with the Interstate Com-
merce Commission by the companies; while
in the Trans-Missouri case the association
was given power to fix rates. But in the
2os
SUPRBMB COUBT OF TBB UnTTED StATBS.
Oct. Tebm,
Trans-Missouri Agreement the association
was only given power to fix reasonable rates,
and the fact that the rates fixed by the asso-
ciation during its existence were fair and
reasonable was admitted by the denials and
allegations of the answer, which appear in
the statement of the case. United States ▼.
Tran8'M%880ur% Freight Asao. 166 U. S. 303,
41 L. ed. 1015.
There is no less power in the Joint Traffic
Association than in the Trans-Missouri, in-
deed more power with respect to rates; and
it is with the power alone that the court is
concerned, not how the power has been or
may be exercised.
In the Trans-Missouri case the association
had been dissolved. The only question was
the legal effect of the authority conferred by
the agreement. If there were no power un-
der the Joint Traffic Agreement to chan^
rates, nevertheless the power to maintain
rates arbitrarily would involve the authori-
ty to keep them up after progress and inven-
tion shomd render them excessive and unrea-
sonable. But in point of fact, as pointed
out, the Joint Traffic Agreement vests in the
association, through the managers, with ap-
peal to the board of control, the authorify
to change rates. This authority is more co-
ercive than that conferred by the Trans-Mis-
souri Agreement.
Under the Trans-Missouri Agreement, five
days' written notice prior to each monthly
meeting was required to be given the
chairman of any proposed reduction in rates.
At each monthly meeting the association vot-
ed on all chanffes proposed. All parties
were bound by tiie oecision of the associa-
tion, ''unless tnen and there the parties shall
|;ive the association definite written notice
fiiat in ten days thereafter they shall make
such modification, notwithstanding the vote
of the association. . . . Should any
member insist upon a reduction of rat^
against the views of the majority, and if in
the judgment of said majority Uie rates so
made affect seriously the rates upon through
traffic, then the association may, by a major-
ity vote upon such other traffic, put into ef-
fect corresponding rates to take effect the
same day.' Moreover, each member of the
Trans-Missouri Association might, at its per*
il, make a rate without previous notice to
meet the competition of outside lines, givinff
the chairman notice of its action, so the good
faith of the transaction might be passed up-
on by the association at its next meeting.
Thus, under the Trans-Missouri Agree-
ment each member might, at its peril, make
a rate to meet outside competition, and each
member might, upon giving ten days' notice
make an independent rate notwithstanding
the action of the association. But under
the Joint Traffic Agreement no company can
deviate from the rates as fixed by the man*
jigers except by a resolution of its board of
directors, and thirty days after a copy of
such resolution is filed Avith the managers.
This absolutely prevents competition, and
the intention to prevent competition is plain
from the provision (art. 7, 9 2, dose). The
managers upon receipt of such notice shall
act promptiy upon the same for the
tion of the parties hereto.
Mr. Carter in his argument explained tfas
operation of thiis clause. Thirty days' no-
tice of the intention of any companj, by res-
olution of its board, to deviate from the rates
fixed by the association through its
gers, was required in order that tlie
tion might have time to determine its
of action. If it could meet the rate propossi
by the deviating member, it would oo sa.
If it could not, it would take steps, in Ife.
Carter's language, '^ exterminate^ ikt r^
calcitrant company. In no other way, a^•
cordinff to Mr. Carter, could ruinous compe-
tition De prevented and the interests of sll
members of the association protected.
13. It may be conceded that the pobUe
along each line is interested in the line gsi-
tiiig its fair share of the through tnJRt aad
earnings; and this it will get under competi-
tion. The local public is not entitled, how-
ever, to an arbitrary share of the throofk
tiaffic and earnings. It has a ri^ht to bd
more than the advantages of the line a^
tract. To give it more is to take what be-
longs to another line and another seetioe. A
prosperous section, with an intelligent, pro-
gressive population, makes a good railrosd,
and a good railroad attracts throus4i trafie;
and it Is not just or right to take Uiis traAs
away and give to a poor road, in order to ^
for it what the public along its line ought Is
do.
14. The provisions of the interstate ems-
merce law preventing discriminatSoa aad n»>
due preferences have been diseuaaed; ^^
can be enforced without preventing comp^
tition. The 10th article cif the Joint Traas
Agreement provides that '^tiie mansfcn
shall decide and enforce the eourse w&Bk
shall be pursued with oonneetinff eooipaaim
not parties to this agreement, inii^ mil or
decline to observe the rates, fares, and raki
established under this affreanent,** and it it
contended that this prolusion is neceesary ts
prevent discrimination against one eompa^y
and in favor of another oy oonnecting tarn;
but a reading of the 8d secttoi of the latsr*
state Commerce Act shows that the i**^*^
Bugvested is fully provided for in its eee*
eluding paragraph, whidi provides that
every common carrier shall anord eq[na] fa-
cilities for the interchange of traffic and lor
receiving and forwarding freight or pas
gers from connecting lines, and sh^ not
criminate in their rates and charges
such connecting lines."
15. It is ins&ted that if Coi^rem had li-
tended the anti-trust law to prdhihit «
contract in restraint of trade, whether
tiaX or general, reasonable or ui
it would have used the language
tract in any restraint of trade," ete., "is
hereby declared to be illegaL" It semss ts
me, and I submit to the court, that the m-
pression ''every contract in restraint of
trade" is quite as comprehensive as "iwT
contract in any restraint of trade," aail
much better language.
10. The reply to Mr. Phelps's attack npoa
the constitutionality of the anU-trast kw
as construed by this court in the Traas-]f»
171 V.t.
Critbd States v. Joiht-Traffic Association.
S68, 559
■ouri mat, is to be found in the argiunent of
Mr. Carter that railways are public high-
Fays, and in furnishing public transporta-
tioD perf<Min in a sense a governmental func-
tioii. The right of the government to regu-
late contracts between carriers and shippers
and to place proper restrictions upon con-
trtet« among carriers themselves, m order
to protect the interests of the public, as af-
fected hj these instrumentalities of oom-
meroe, has not heretofore been seriously
qu^Uooed. The states regulate the oonstruc-
ticn, maintenance, and operation of rail-
roads, prescribing and enforcing maximum
rates, preventing the consolidation of com-
peting lines, and securing to the public the
benefit of competition.
The doctrine laid down in the case of Munn
▼ JUtnois, 94 U. S. 113, 24 L. ed. 77, applies.
When a man devotes his property to a public
nse, to that extent hegrants tne public an
interest in that use. The same policy which
fupports the prohibition against consolida-
tion, and the 5th section of the interstate
eommerce law forbidding the pooling of
frei^ts or the division of earnings, is the
jnftifieation for the declaration that all con-
tracts in restraint of trade shall be deemed
illecaL The result of the consolidation, the
pocTinff, or combination in restrainl of trade,
u beside the question. Congress is entitled
to pass ju<^gment upon the tendency of a
contract in restraint of trade. If it deems
snch a contract reprehensible, injurious In
its tendencies, it may prohibit it, whether
the act will result in a particular case in the
establishment of reasonable or unreasona-
ble rates.
17. As to the remedy in case of an imrea-
sonably low rate. Judge Cooley, in a well-
coMidered opinion. Re Chicago, 8t. P. d K.
C.R,Co,2 Inters. Com. Hep. 137, 2 Inters.
Com. C(nn. 231, approved by this court in
Inleritate Commerce Commission v. Cinoin-
"o<t. y. 0. d T. p. R, Co, 167 U. S. 611, 42
L ed. 257, held that under the interstate
commerce law the Commission has no power
to determine that a rate is unreasonably low,
and to ordn* the carrier to refrain from
ebarging such rate on such ground.
18. As to the remedy in case of an unrea-
Bonably high rate.
The common law requires that rates
cbouM be reasonable and fair. So does the
interstate commerce law. But this is a mere
declaration, and there is no adequate remedy
to enforce the right. The Commission has
no power to prescribe a reasonable rate and
oiforee it, or to declare that a rate is unrea-
wnable and prohibit it. The shipper is
therefore left to recover the excess in rate
P^d. I know of no case where the excess
Aarged over a reasonable rate on interstate
wnunerce has been recovered back. The
•mount involved in any particular transac-
tion would be small ; it would require years
to carry the case through the courts, and no
n^ividual shipper would invite the ill will of
> powerful railroad 1^ beginning such a con-
teet
Moreover, the man who actually pays the
if^ight is not the man who suffers from the
p^easonable eharge. Take the case of
grain. The farmer sells to the commlssioB
merchant. If the rates are excessive he gets
so much less for his ^rain, or the purchas-
er from the commission merchant pays so
much more for it. Thp commission merchant
who pays the freight has no real interest in
the cnarge. Of course this is not always
true, but it does apply with respect to th«
great shipments handled by midalemen.
Finally, it is questionable under the Inter-
state Commerce Act whether a suit to re-
cu\er back an excess paid above a reasoiiAble
rate can be maintained, if the rate charged
wab that fixed in the schedule filed with the
commission and published under the inter-
state commerce law.
Van Patten v. Chicago, M. d St, P. R. Co.
81 Fed. Rep. 545.
19. As the law stands the Commission has
no power to prescribe or enforce rates. Com-
petition secures reasonableness; the law en-
force? uniformity.' In Interstate Commerce
Commission v. Cincinnati, N. 0. d T. P. R,
Co. 167 U. S. 470, 42 L. ed. 243, this court,
speaking by Mr. Justice Brewer, held that
it Congress had intended to give the Commis-
sioa power over rates it would have done so
in unmistakable language. So, too, when
Congress sees fit to take the railroads out of
the operation of the natural law of trade it
Will GO so in plain terms, and for independ-
ent competition will substitute governmental
regulation.
Messrs. James A. Jjogan and John Q»
Johnson filed a brief for the Pennsylvania
Railroad Company and other railroad com-
panies, appellees.
Messrs. Robert W. de Forest and David
Willooaf filed a brief for the Central Railroad
Company of New Jersey, appellee.
*Mr. Justice Peekbain, after stating the [568J
facts, delivered the opinion of the court:
This case has been most ably argued by
counsel both for the government and the rail-
road companies. The suit is brought to ob-
tain a decree declaring null and void the
agreement mentioned in the bill. Upon com-
paring that agreement with the one set forth
in the case of United States v. Trans-Mis-
souri Freight Association, 166 U. S. 290
[41 : 1007], the great similarity between them
suggests that a similar result should be
reached in the two cases. The respondents,
however, object to this, and give several rea-
sons why this case should not be controlled
by the other. It is, among other things,
said that one of the questions sought to oe
raised in this case might have been, but was
not, made in the other ; that the point there-
in decided, after holding that the statute ap-
plied to railroad 'companies as common car- [669]
riers, was simply that all contracts, whether
in reasonable as well as in unreasonable re-
straint of trade, were included in the terms
of the act, and the question whether the con-
tract then under review was in fact in re-
straint of trade in any degree whatever was
neither made nor decided, while it is plainly
raised in this.
Again, it is asserted that there are differ-
ences between the provisions contained in
the two agreements, of such a material and
283
559-563
SUFBBMB Ck>UBT OF THB XJHmD StAXML
fundamental naturt that the decision in the
case referred to ought to form no precedent
for the decision of the case now Wore the
court.
It is also objected that the statute, if con-
strued as it has been construed in the
Trans-Missouri case, is unconstitutional, in
that it unduly interferes with the liberty
of the individual, and takes away from him
the right to make contracts regarding his
own affairs, which is guaranteed to him by
the Fifth Amendment to the Constitution,
which provides that ''no person shall be
. . . deprived of life, liberty, or property
without due process of law ; nor shall private
properly be taken for public use without just
compensation." This objection was not ad-
vance in the arguments in the other case.
Finally, a reconsideration of the ques-
tions decided in the former case is very
strongly pressed upon our attention, be-
cause, as IS stated, the decision in that case
is quite plainly erroneous, and the conse-
Suences of such error are far reaching and
isastrous, and clearly at war with justice
and sound policy, and the construction
placed upon the Anti-Trust Statute has been
received by the public with surprise and
alarm.
We will refer to these propositions in the
order in which they have been named.
As to the first, we think the report of the
Trans-Missouri case clearly shows, not only
that the point now taken was there urged
upon the attention of the court, but it was
then intentionally and necessarily decided.
The whole foundation of the case on the part
of the government was the allegation that
the agreement there sert forth was a contract
or combination in restraint of trade, and un-
[060] lawful on that account. If *the agreement
did not in fact restrain trade, the govern-
ment had no case.
If it did not in any degree restrain trade,
St was immaterial whether the statute em-
braced all contracts in restraint of trade, or
only such as were in unreasonable restraint
thereof. There was no admission or conces-
sion in that case that the agreement did in
fact restrain trade to a reasonable degree.
Hence, it was necessary to determine the
fact as to the character of the agreement be-
fore the case was made out on the part of the
government.
The great stress of the argument on both
sides was undoubtedly upon the question as
to the proper construction of the statute,
for that seemed to admit of the most doubt,
but the other question was before the court,
was plainly raised, and was necessarily de-
cided. The opinion shows this to be true.
At page 341 of the report the opinion eon-
tains the following lan^iage:
"The conclusion which we have drawn
from the examination above made of the
question before us is that the Anti-Trust Act
applies to railroads, and that it renders il-
mal all agreements which are in restraint
of trade or commerce as we have above de-
fined that expression, and the question then
arises whether the agreement before ua is
of that nature. •
284
''Does the agreement restrain trmds or eoai-
merce in any way so as to be a ▼iolatkn ol
the act? We have no doubt that it do«u
The agreement on its face reeitee tliat it m
enter^ into for the purpose of nratnal ^xh
tection by establishing and malntainliig rea*
sonable rates, rules, and regulations on all
freight traffic, both through and loeaL
"To that end the association is formed andl
a body created which is to adopt rates for
all the companies, and a violation of whiek
subjects the defaidting company to tte pay-
ment of a penalty, and although the partaes
have a right to withdraw from the agreemcBt
on giving thirty days' notice of a desire so to
do, yet while in force and assuming it to be
lived up to, there can be no doubt that its di-
rect, immediate, and necessary efiTeot is *tD|i
put a restraint upon trade or oommeroe m^
described in the act. For these reaaoos the
suit of the government can be maintained
without proof of the allegation that the
a^eement was entered into for the purpoas
of restraining trade or commerce or for
maintaining rates above what was reasona-
ble. The necessary effect of the agreemeat
is to restrain trade, no matter what the in-
tent was on the part of those who signed iL" i
The bill of the complainants in that ease,
while alleging an ille^ and unlawful intent
on the part of the railroad companies in en-
tering into the agreement, also alleged thtt
by means of the agreement the trade, traiie,
and commerce in the region of eaimlry af-
fected by the agreement nad been and were
monopolized and restrained, hindered, in-
jured, and retarded. These allegatione were
denied by defendants.
There was thus a clear issue made by the
pleadings as to the character of the egret-
ment, whether it was or was not one in r^
straint of trade.
The extract from the opinicm of the eonrt
above given shows that the issue eo made was
not ignored, nor was it asstmned as a eonees-
sion that the agreement did restrain trade
to a reasonable extent. The statement ia
the opinion is quite plain, and it inefritaUy
leads to the conclusion that the onestioa cSf
fact as to the necessary tendency of the agree*
ment was distinctly presented to the mind
of the court, and was consciously, pnrpoady,
and necessarily decided. It eannot, there-
fore, be correctly stated that the opinkm only
dealt with the question of tbtt eonstmctioe
of the act, and that it was assumed that the
agreemoit did to some reasonable extent re-
strain trade. In discussing the question as
to the proper construction of the net, the
court did not touch upon the other aspect of
the case, in regard to the nature of the agree-
ment itself, but when the question of con-
struction was finished, the opinion shows
that the question as to the nature of the
agreement was then entered upon and dis-
cussed as a fact necessary to be decided ia
the case, and that it in fact was decided. Aa
unlawf^ intent in entering into the agree-
ment was held immaterial, *but onlr forthe(l
reason tihat the agreement did in fset and bj
its terms restrain trade.
Second. We have assumed that the
171 v.
United 8ta.te8 y. Joint-Traffic Association.
502-564
■MoU in the two eases were substantially
alike. This the respondents by no means ad-
mit, and they assert that there are such ma-
terial and substantial differences in the pro-
Tisiotts of the two instruments as to necessi-
tate a different result in this case from that
arrived at in the other.
The expressed purpose of the agreement in
this case is, among other things, *'to estab-
lish and maintain reasonable and just rates,
fares, rules, and r^ulations on state and in-
terstate traffic" The companies agree that
the schedule of rates and fares already duly
published and in force and authorized by the
eompanies, parties to the a^eement, and
filed, as to interstate traffic, with the Inter-
state (Commerce Commission, shall be reaf-
firmed, and copies of all such schedules are to
be filed, with tne managers constituted under
the agreement within ten days after it be-
comes effective. The managers may from time
to time recommend changes in the rates, etc.,
and a failure to observe the recommenda-
tioDs is deemed a violation of the agreement.
Ko company can deviate from these rates ex-
€^t under a resolution of its board of direct-
ors, and such resolution can only take effect
thirty days after service of a copy thereof on
the managers who, upon receipt thereof,
"ihall act promptly for the protection of the
parties hereto." For a violation of the agree-
ment the offending company forfeits to the
association a sum to be determined by the
managers thereof, not exceeding five thous-
and £>llars, or more upon the contingency
named in the rule.
So far as the establishment of rates and
fares is concerned, we do not see any sub-
stantial difference between this agreement
and the one set forth in the Trans-Missouri
eafte. In that case the rates were established
by the agreement, and any company violat-
ing the schedule of rates as established un-
der the agreement was liable to a penalty.
A company could withdraw from the associa-
tion on giving thirty days' notice, but while
it continued a member it was bound to charge
'^le rates fixed, imder a penalty for not do-
S] ^g so. In *this case the companies are
•ound to charge the rates fixed upon orig-
inally in the agreement or subsequently
recommended by the board of managers, and
the failure to observe their recommendations
is deemed a violation of the agreement. The
only alternative is the adoption of a resolu-
tion by the board of directors of any com-
pany providing for a change of rates so far
as that company is concerned, and the service
of a copy thereof upon the board of managers
as already stated. This provision for chang-
ing ratesby any one company is absent from
the other agreement. It is this provision
which is referred to by counsel as most ma-
terial and important, and one which oonsti-
tmes a material and important distinction
between the two agreements. It is said to be
Signed solely to prevent secret and illegal
competition in rati^, while at the same time
providing for and permitting open competi-
tion therein, and Uiat unless it can be re-
garded as restraining competition so as to
It is obvious, however, that if such deviation
from rates by any company, from those
agreed upon, be tolerated, the principal ob-
ject of the association fails of accomplish-
ment, because the purpose of its formation is
the establishment and maintenance of rea-
sonable and just rates and a general uni-
formity therein. If one company is allowed,
while remaining a member of the association,
to fix its own rates and be guided by them,
it is plain that as to that companv the agree-
ment might as well be rescinded. This re-
sult was never contemplated. In order,
therefore, not only to prevent secret competi-
tion, but also to prevent any competition
whatever among the companies parties to the
agreement, the provision is therein made for
the prompt action of the board of managers
whenever it receives a copy of the resolution
adopted by the board of directoid of any one
company for a change of the rates as estab-
lished under the agreement. By reason of
this provision the board undoubtedly lias au-
thority and power to enforce the uniformity
of rates as against the offending company
upon pain of an open, rigorous, and relent-
less war of competition against it on the
part of the whole association.
*A company desirous of deviating from the [5641
rates agreed upon and which its associate:^
desire to maintain is at once confronted with
this probability of a war between itself on
t^e one side and the whole association on
the other, in the course of which rates would
probably drop lower than the company was
proposing, and lower than it would desire
or could afford, and such a prospect would
be generally sufficient to prevent the inaugu-
ration of the change of rates and the conse-
quent competition. Thus the power to com-
mence such a war on the part of the mana-
gers would operate to most effectually pre-
vent a deviation from rates by any one com-
pany against the desire of the other parties
to the agreement. Competition would be
prevented by the fear of the united competi-
tion of the association against the particular
member. Counsel for the association them-
selves state that the agreement makes it the
duty of the managers, in case the defection
should injuriously affect some particular
members more than others, to endeavor to
furnish reasonable protection to such mem-
bers, presumably by allowing them to change
rates so as to meet such competition, or by
recommending such fierce competition as to
persuade the recalcitrant to fall back into
line. By this course the competition is open,
but none the less sufficient on that account,
and the desired and expected result is to be
the yielding of the offending company, in-
duced by the war which might otherwise be
waged against it by the combined force of
all the other parties to the agreement. Un-
der these circumstances the agreement, taken
as a whole, prevents, and was evidently in-
tended to prevent, not only secret but any
competition. The abstract riglit of a single
company to deviate from the rates bec^omes
immaterial, and its exercise, to say the least,
restrain trade, there Is not even an appear- |very inexpedient, in the face of this power
ance of restraint of trade in the agreement, of the managers to enlist the whole associa-
171 U. 8. 285
66i-567
SUPBBICB OOUBT OF THB UmTlD STATES.
Oct.
tion in a war upon St. This is not all, how-
ever, for the agreement farther provides that
the managers are to have power to or^janize
such joint freight and passenger agencies as
they may deem desirable, and if established
they are to be so arranged as to give proper
representation to each company, and no so-
liciting or contracting passenger or freight
10611] agency can be maintained by any of the *oom-
panics, except with the approval of the man-
affers. They are also charged with the duty
of securing to each company, party to the
agreement, equitable proportions of the com-
petitive traffic covered by the agreement, so
far as can be legally done. The natural, di-
rect, and necessary effect of all these various
provisions of the agreement is to prevent any
competition whatever between the parties to
it for the whole time of its existence. It is
probably as effective in that way as would
be a provision in the agreement prohibiting
in terms any oompetiUon whatever.
It is also said that the agreement in the
first case conferred upon the association an
unlimited power to fix rates in the first in-
stance, ana that the authority was not con-
fined to reasonable rates, while in the case
now before us the agreement starts out with
rates fixed by each company for itself and
filed with the Interstate Commerce Commis-
sion, and which rat^ are alleged to be rea-
sonable. The distinction is unimportant.
It was considered in the other case that the
rates actually fixed upon were reasonable,
while the rates fixed upon in this case are
also admitted to bo reasonable. B^ this
agreement the board of managers is in sub-
stance and as a result thereof placed in con-
trol of the business and rates of transporta-
tion, and its duty is to see to it that each
company charges the rates agreed upon and
receives its equitable proportion of tne traf-
fic
The natural and direct effect of the two
agreements is the same, vie,, to maintain
rates at a higher level than would other-
wise prevail, and the differences between
them are not sufficiently imporcant or mate-
rial to call for different judgments in the
two cases on anv such ground. Indeed,
counsel for one of the railroad companies on
this arffument, in speaking of the agreement
in the Trans-Missouri case, says of it that
its terms, while substantially similar to
those of the agreement here, were less explic-
it in making it just and reasonable.
Regarding the two a^eements as alike in
their main and material features, we are
brought to an examination of the question
of the constitutionality of the act, construed
[066] as it has *been in the Trans-Missouri case.
It is worthy of remark that this question
was never raised or hinted at upon the argu-
ment of that case, although, if the respon-
dents* presert contention m sound, it would
have furnished a conclusive objection to the
enforcement of the act as construed. The
fact that not one of the many astute and able
counsel for the transportation companies in
that case raised an dbjection of so conclusive
a character, if well founded, is strong evi-
dence that the reasons showing the invalid-
ity oi tiie act as construed do not lie <hi the
186
surface and were not then apparoit to
oounseL
Tho poist ndt being raised aad titt
iioii of thalt ca« faavms proceeded upom mm
assumption of the vali^ty of the act vadsr
either construction, it can, of eoune, eomstt-
tute no authority upon Uiis question. Upoa
the constitutionalitv of the act it is aov
earnestly contended that contracts in t»>
straint of trade are not necessarily prejndi-
cial to the security or welfare of society, aad
that Congress is without power to prokftct
generally all contracts in restraint of trad*.
and the effort to do this invalidates the act
in question. It is urged that it is for the
court to decide whether the mero foet that
a contract or arrangement, whatever tta pw^
pose or character, may restain trade in sobs
degree, renders it injurious or prejudicMLl tm
the welfare or security of society, and if
the court be of opinion that soeh wellare er
security is not prejudiced by a ooiitract el
that kind, then Congress has no power to
hibit it, and the act must be dedarod m
stftutional. It iB claimed that the act
be supported only as an exercise of the pv*
lice power, and that the constitutioaal g«aj^
anties furnished by die FiMh rinmnilMt
secure to all persons freedom in the pmmait
of their vocations and the use of their pto^
erty, and in making sudi contracts or ai^
ransements as mav be necessary therefor.
In awelling upon the far-reaching aatsre of
the !:inguage used in the act as [luitmui
in the case mentioned, counsel eoatOBd that
the extent to which it limiU the freedos aad
destrovs the property of 1^ individnal osa
scarcely be exaggerated, and that ordinary
conUmoU and combinations, whsdi are at the
same time most indispensable, have the cffett
of somewhat restraininf *trada and eaai-r|
merce, although to a very slight extent, bvt
vet, under the construction adopted, tbsy are
Aa examples of the kinds of eontraets which
are rendered illegal by this constmetkm of
the act, the learned counsel suggest all er^
ganisations of mechanics engaged in the
same business for the purpoee of limittaf
the number of persons employed in the hosi-
ness, or of maintainini; wages; tho fniMlha
of a corporation to carry on maj partkmlar
line of business by those already m
therein ; a contract of partnership or
ployment between two persdhs
en^iiged in the same line df bo
appointment by two produeers <tf the
person to sell their goods oa
the purchase by one wholesale
the product of two produowa; the
pur<mase by a farmer, manufactnrar, or
chant of an additional farm,
or shop; the withdrawal from
any farmer, merchant, or maavfactvrer;
sale of the goodwill of a hni
agreement not to destroy its valiM by
inff in similar business; and a ryiTiMiai a
a deed restricting the use of real estate. It
is added that the effect of most basfanes tarn-
tracts or combinations is to restraia tra^t to
some degree.
This makes quite a foimidahle list. It
will be ohservecl, however, that ao ctmirwet
Uhitbd States v. Joint-Traffic Associatioh.
567-570
€i tlte nature above described is now before
the eonrty and there is some embarrassment
la assuning to decide herein just how far the
set goes in the direction claimed. Neverthe-
km, we might sajr that the formation of cor-
porations for business or manufacturing pur-
poses has never, to our knowledge, been re-
garded in the nature of a contract in re-
straint of trade or commerce. The same ma^
be said of the contract of partnership, it
mi^ht also be difficult to show that the ap-
poutment bj two or more producers of the
same person to sell their goods on conunis-
sion was a matter in any degree in restraint
of trade.
We are not aware that it has ever been
daimed that a lease or purchase by a farm-
tr, manufacturer, or merchant of an addi-
tional term, manufactory, or shop, or the
withdrawal from business of an;^ farmer,
merehanty or manufacturer, restrained com-
merce or trade within any legal definition of
K8]Uiat tenn; *and the sale of a goodwill of a
business with an aoccmipanying agreement
not to engaoe in a similar business was in-
stuiced in the Trans-Missouri case as a con-
trtct not within the meaning of the act;
tod it was said that such a contract was
eoUateral to the main contract of sale, and
WES entered into for the purpose of enhanc-
isg the price at which the vendor sells his
business. The instances cited by counsel
bsTs in our judgment little or no bearing
upon the qfuestion under consideration. In
Hopkins v. United States [poat, 290], decided
it this term, we have said that the statute
tpplies only to those contracts whose direct
sad immediate effect is a restraint upon in-
terstate commerce, and that to treat the act
as condenming all agreements under which,
ss a result, the cost of conducting an inter-
stale commercial business may be increased,
would enlarge the application of the act far
bejond the fair meaning of the language
Qsed. The effect upon interstate commerce
must not be indirect or incidental only. An
agreement entered into for the purpose of
promoting tiie Intimate business of an in-
diridoal or corporation, with no purpose to
thereby affect or restrain interstate com-
merce, and which does not directlv restrain
soeh commerce, is not, as we think, covered
by the act, although the agreement may in-
directly and remotely affed; that commerce.
We also repeat what is said in the case
above cited, that ''the act of Congress must
have a reasonable construction, or else there
would scarcely be an agreement or contract
among business men tluit could not be said
to have, indirectly or remotely, some bear-
ing upon interstate commerce, and possibly
to restrain it.'* To suppose, as is assumed
by counsel, that the effect of the decision in
the Trans-lfissonri case is to render illegal
most business contracts or combinations,
however indispensable and necessary they
may be, beeause, as they assert, they all re-
strain trade In some remote and indirect de-
gree, is to make a most violent assumption,
and one not called ior or jusrtified by the de-
<>>ion men'tioiied, or by .any o41her deoasion ol
UBS court
lie qnestioii really before us is whether
171 IT. g.
Congress, in the exercise of its right to regu-
late commerce among the several states, or
otherwise, has the power to prohibit, as in
restraint *of interstate commerce, a oontract[6M]
or combination between competing railroad
corporations entered into and formed for the
purpose of establishing and maintaining in-
terstate rates and fares for the transporta-
tion of freight and passengers on any of the
railroads parties to the contract or combina-
tion, even though the rates and fares thus es-
tablished are reasonable. Such an agree-
ment directly affects and of course is intend-
ed to affect the cost of transportation of com-
modities, and commerce consists, among other
thin^, of the transportation of commodities,
and if such transportation be between states
it is interstate commerce. The agreement
affects interstate commerce by destroying
competition and by maintaining rates above
what competition might produce.
If it did not do that, its existence would be
useless, and it would soon be rescinded or
abandoned. Its acknowledged purpose is to
maintain rates, and, if executea, it does so.
It must be remembered, however, that the act
does not prohibit any railroad company from
charging reasonable rates. If in the absence
of any contract or combination among the
railroad companies the rates and fares would
be less than they are under such contract or
combination, that is not by reason of any
provision of the act which itself lowers rates,
but only because the railroad companies
would, as it is urged, voluntarily and at once
inaugurate a war of competition among
themselves, and thereby themselves reduce
their rates and fares.
Has not Confess with regard to interstate
commerce and m the course of regulating it,
in the case of railroad corporations, the
power to say that no contract or combina-
tion shall be legal which shall restrain trade
and commerce by shutting out the operation
of the general law of competition? We
think it has.
As counsel for the Traffic Association has
truly said, the ordinary highways on land
have generally been established and main-
tainea by the public. When the matter of
the builaing of railroads as highways arose,
a question was presented whether the state
should itself build them or permit others to
do it. The state did not build them, and as
their building required, among other thinfj^n,
the appropriation of *land, private Individ- [670]
uals could not enforce such appropriation
without a grant from the state.
The building and operation of a railroad
thus required a public franchise. The state
would have had no power to grant the right
of appropriation unless the use to which the
land was to be put was a public one. Taking
land for railroad purposes is a taking for a
public purpose, and the fact that it is taken
for a publi^ purpose is the sole justification
for taking it at all. The business of a rail-
road carrier is of a public nature, and in
performing; it the carrier is also performing
to a certain extent a function of government
which, as counsel observed, reouires them to
perform the service upon equal terms to all.
This public service, that of transportation
287
570-578
SUPRBMB CObRT OF THE UnTTRD Bt^TES.
OoT. TKm.
0f passengers and freight, is a part of trade
and commerce, and when transported be-
tween states such commerce becomes what is
described as interstate, and comes, to a cer-
tain extent, under the jurisdiction of Con-
gress by virtue of its power to regulate com-
merce among the several states.
Where the grantees of this public franchise
are competing railroad companies for inter-
state commerce, we think Congress is compe-
tent to forbid any agreement or combination
among them by means of which competition
is to be smothered.
Although the franchise when granted by
the state becomes by the grant the properly
of the grantee, yet there are some regulations
respecting tlie exercise of such grants which
Congress may make under its power to regu-
late commerce among the several states.
This will be conceded by all, the only ques-
tion being as to the extent of the power.
We think it extends at least to the prohi-
bition of contracte relating te interstete com-
merce, which would extinguish all competi-
tion between otherwise competing railroad
corporations, and which would in that way
restrain interstete trade or commerce. We
do not think that when the grantees of this
public franchise are competing railroads
seeking the business of transportetion of men
and goods from one stete to another, Uiat
ordinary freedom of contract in the use and
management of their property requires tiie
|671] right to combine *as one consolidatd and
powerful association for the purpose of sti-
fling competition among themselves, and of
thus keeping their rates and charges higher
than they might otherwise be under the laws
' of competition. And this is so, even though
the rates provided for in the agreement may
for the time be not more than are reasonable.
They may easily and at any time be in-
creased. It is the combination of these large
and powerful corporations, covering vast sec-
tions of territory and influencing trade
throughout the whole extent thereof, and act-
ing as one body in all the matters over which
the combination extends, that constitutes the
alleged evil, and in r^ard to which, so far
as the combination operates upon and re-
strains interstete commerce. Congress has
power to legislate and to prohibit.
The prohibition of such contracts may in
the judgment of Congress be one of the rea-
sonable necessities for the proper rep^ulation
of commerce, and Congress is the judge of
such necessity and propriety, unless, in case
of a possible gross perversion of the princi*
f»le, trie courte might be applied to for re-
ief.
The cases cited by the respondente' coun-
«el in regard to the general constitutional
right of the citizen to make contracts relat-
ing to his lawful business are not inconsist-
ent with the existence of the power of Con-
gress to prohibit contracts of the nature in-
volved in this case. The power to regulate
commerce has no limitetion other than those
prescribed in the Constitution. The power,
however, does not carry with it the right to
destroy or impair those limitations and guar-
anties which are also placed in the Constitu-
288
tion or in any of the amendments to thst ia-
strument. Monongahela Nav. Co. v. UtuUi
States, 148 U. S. 312-336 [87: 463-471]; Im-
teratate Commerce Commistion ▼. BrimMm,
154 U. S. 447-470 [38: 1047-1058, 4 Inters.
Com. Rep. 545].
Among those limitations and guarantiei
counsel refer to those whidi provide that m
person shall be deprived of life, libcarty, or
property without due process ot la«, aal
that private proper^ snail not be taken for
public use without just compensaticm. The
latter limitetion is, we think, plainly irrde>
vant.
*A8 to the former, it is d aimed that tht[^
citizen is deprived of his liberty without due
process of law when, by a general statute, W
IS arbitrarily deprived of the right to naks
a contract of the nature herein involvBd.
The case of A Ugeyer t. Louiaianm^ 165 XI.
S. 578 [41 : 832], is cited as authonty for thi
stetement concerning the right to eontneL
In speaking of the meaning of the word "U^
erty," as used in the Fourteenth Amendmod
to the Constitution, it was said in that can
to include, among other things, the Ubcrtj
of the citizen to pursue any livdihood or vo-
cation, and for that purpose to enter into sB
contraote which mignt be proper, neoesBarv,
and essential to his carrying oat those o^
jecte to a successful condusioii.
We do not impugn the correetneos ol thst
stetement. The citizen may have the right
to make a proper (that is, a lawful) eoa-
tract, one whidi is also essential and mam
sary for carrying out his lawful pnrposM
The question which arises here is, whether
the ooiitnuTt is a proper or lawful one, waA
we have not advanced a step towards its •»>
lution by saying that the dtizen is protected
b^ the Fifth, or any other ameadment, in his
right to make proper contracts to cBahle
him to carry out his lawful purposes. Wt
presume it will not be cont^ded that tht
court meant, in steting the riffht of the dti-
zen," to pursue any hvelifaood or vocsrtnii*
to include every means of obtaining a Irrali-
hood, whether it was lawful or otherwise. Prs*
cisely how far a legislature can go in dedar*
ing a certein means of obtaining a Uvellhoed
unlawful, it is unnecessary ho^ to speak ol
It will be conceded it has power to make soas
kinds of vocations and some methods ol o^
teining a livelihood unlawful, and in rsgard
to those the citizen would have no right Is
contract to carry them on.
Congress may restrain individnals froa
making contracte under certein dreonstas-
ces and upon certain subjects. FrMts v.
United States, 157 U. S. 160 [39: 657].
Notwithstending the general liberty of
contract which is possessed by the dtissa
under the Constitution, we find that thort
are many kinds of contracte whidi, whiW
not in themselves immoral or «i«ia im m.
may yet be prohibited by the ^legislatioii ol[|
the stetes or, in certein cases, by Cong i ess
The question comes back whether the statvtt
under review is a legitimate exercise of tht
power of Congress over interstate rcmiiaum,
and a vklid regulation thereof. The qme
tion is, for us, one of power only, and not of
171 v. S.
iBOi
Unitbd States v. Joint-Traffic AjasociATioM.
678-579
poHej. We think the power exists in Con-
f resa, and that the statute is therefore ralid.
Finally, we are asked to reconsider the
question decided in the Trans-Missouri case,
tnd to retrace the steps taken therein, be-
cause of the plain error contained in that
decision and the widespread ^ alarm with
which it was received and uie serious conse-
quences which have resulted, or may soon
resnlt, from the law as interpreted in that
case.
It is proper to remark that an applica-
tion for a reconsideration of a questicm but
Utely decide by this court is usually based
upon a statement that some of the arguments
employed on the original hearing of the
question have been overlooked or misunder-
stood, or that some controlling authority
has been either misapplied by the court or
passed over without discussion or notice.
While this is not strictly an application for
t r^earing in the same case, yet in substance
it is the same thing. The court is asked to
reconsider a question but just decided after
a careful investigation of the matter in-
TolTed. There have heretofore been in effect
tvo arguments of precisely the same ques-
tions now before the court, and the same ar-
guments were addressed to us on both those
occasions. The report of the Trans-Missouri
eise shows a dissenting opinion delivered in
that ease, and that the opinion was concurred
in by three other members of the court.
That opinion, it will be seen, gives with
great force and ability the arguments against
the decision which was finally arrived at by
the court. It was after a full discussion of
the questicms involved, and with the knowl-
edge of the views entertained by the minor-
ity as expressed in the dissenting opinion,
that the majority of the court came to the
condnsion it did. Soon after the decision
a petition for a rehearing of the case was
made, supported by a printed argument in its
favor, and pressed with an earnestness and
▼igor and at a length which were certainly
commensurate with the importance of the
case.
^4] *This court, with care and deliberation,
and also with a full appreciation of their
importance, again considered the questions
involved in its former decision.
A majority of the court once more arrived
tt the conclusion it had first announced, and
accordingly it denied the application. And
BOW for the third time the same arguments
are employed, and the court is again asked
to recant its former opinion, and to decide
the same question in direct opposition to the
eonclusion arrived ^t in the Trans-Missouri
ease.
The learned counsel while making the ap-
plication frankly confess that the argument
in opposition to the decision in the case above
named has been so fully, so clearly, and so
forcibly presented in the dissenting opinion
cf Mr. Justice White, that it is hardly possi-
ble to add to it nor is it necessary to repesit it.
The fact that there was so close a division
of opinion in this court when the matter was
first under advisement, together with the dif-
ferent views taken by some of the judges of
171 V. 8.
U. 8.. Book 43.
the lower courts, led us to the most careful
and scrutinizing examination of the argu-
ments advanced by both sides, and it was
after such an examination that the majority
of the court came to the conclusion it did.
It is not now allied that the court on the
former occasion overlooked any argument
for tihe respondents or misapplied any con*
trolling authority. It is simply insisted that
the court, notwithstanding the arguments
for an opposite view, arrived at an erroneous
result, which, for reasons already stated,
ought to be reconsidered and reversed.
As we have twice already, deliberately and
earnestly, considered the same arguments
which are now for a third time pressed upon
our attention, it could hardly be expected
that our opinion should now change from
that already expressed.
While an erroneous decision might be in
some cases properly reconsidered and over-
ruled, yet it is clear that the first necessity
is to convince the court that the decision
was erroneous. It is scarcely to be assumed
that such a result could be 'secured by the*[57d
presentation for a third time of the same
arguments whidi had twice before been un-
successfully urged upon the attention of the
COUlT.
We have listened to them now because the
eminence of the counsel engaged, their ear-
nestness and zeal, their evident belief in the
correctness of their position, and, most im-
portant of all, the very grave nature of the
questions argued, called upon the court to
again give to those arguments strict and re-
spectful attention. It is not matter for sur-
prise that we still are unable to see the error
alleged to exist in our former decision or to
change our opinion regarding the questions
therein involved.
Upon the point that the agreement is not
in fact one in restraint of traide, even though
it did prevent competition, it must be ad-
mitted that the former argument has now
been much enlarged and amplified, and a gen-
eral and most masterly review of that ques-
tion has been presented by counsel for the
respondents. That this agreement does in
fact prevent competition, and that it must
have been so intended, we have already at-
tempted to show. Whether stifling compe-
tition tends directly to ree/tmin commerce in
the case of naturally competing railroads, is
a question upon which counsel have argued
with very great ability. They acknowledge
that this agreement purx>orts to restrain
competition, although, they say, in a very
slight degree and on a single point. They
admit that if competition and commerce were
identical, being but different names for the
same thing, then, in assuming to restrain
competition even so far, it would be assum-
ing in a corresponding degree to restrain
commerce. Counsel then add (and therein
we entirely agree with them) that no such
identity can t^ pretended, because it is plain
that commerce can and does, take place on
a large scale and in numerous forms without
competition. The material considerations
therefore turn upon the effects of competi-
tion upon the business of railroads, whether
they are favorable to the commerce in which
10
889
670-578
SUPBBMB COUBT OF THB UNITED StaTBS.
Oct. Temm^
the roads are engaged, or unfavorable and
in restraint of that commerce. Upon that
question it is contended that agreements be-
{6761tween railroad companies of the *natare of
' that now before us are promotive instead of
in restraint of trade.
This conclusion is reached hv counsel after
an examination of the peculiar nature of
railroad proper^ and the alleged baneful
effects of competition upon it and also upon
the public It is stated that the only re-
sort open to railroads to save themselves
from the effects of a ruinous competition
is that of agreements among themselves to
check and control it. A ruinous competition
is, as they say, apt to be carried on until
the weakest of the combatants f^oes to de-
struction. After that the survivor, being
relieved from competition, proceeds to raise
its prices as high as the business will bear.
Commerce, it is said, thus finally becomes re-
strained by the effects of competition, while
at the same time otherwise valuable railroad
Sroperty is thereby destroyed or greatly re-
uced in value. There can be no doubt that
the general tendency of competition among
competing railroads is towards lower rates
for transportation, and the result of lower
rates is generally a greater demand for the
articles so transported, and this greater de-
mand can only be gratified by a utrger sup-
ply, the furnishing of which increases com-
merce. This is the first and direct result of
competition among railroad carriers.
In the absence of any agreement restrain-
ing competition, this result, it is argued, is
neutralised, and the opposite one finally
reached by reason of the peculiar nature of
railroad proper^ which must be operated
and the capital invested in which cannot be
withdrawn, and the railroad managers are
therefore, as is claimed, compelled to, not
only compete among themselves for business,
6ut also to carry on the war of competition
until it shall terminate in the utter aestruc-
tion or the buying up of the weaker roads,
after which the survivor will raise the rates
aJB high as is possible. Thus, the indirect but
final effect or competition is claimed to be
the raising of rates and the consequent re-
straint of trade, and it is ur^ed that this
result is only to be prevented by such an
ai^reement as we have here. In that way
alone it is said that competition is overcome,
. and general uniformity and reasonableness
of rates securely established.
f077] *The natural, direct, and immediate effect
of competition is, however, to lower rates,
and to thereby increase the demand for com-
modities, the supplying of which increases
commerce, and an agreement whose first and
direct effect is to prevent this play of compe-
tition restrains instead of promoting trade
and commerce. Wliether, in the absence of
an agreement as to rates, the consequences
described by counsel will in fact follow as a
result of competition, is matter of very great
uncertainty, depending upon many contin-
gencies and in large degree upon the volun-
tary action of the managers of the several
roads. Railroad companies may and often
do continue in existence and engage in their
lawful traffic at some profit, although they
290
are competing railroads and are not acting
under any aj^reement or combination with
their competitors upon the subject of rates.
It appears from the brief of counsel in this
caae tnat the agreemeat in questicm does not
embrace all of the lines or systems engs^ed
in the business of railroad transportation
between Chicago and the Atlantic coast.
It cannot be said that destructive competi-
tion, or, in other word^, war to the deatii, ia
bound to result unless an agreement or com-
bination to avoid it is entered into between
otherwise competing roads.
It is not onlv possible, but probable, that
good sense and integrity of purpose would
prevail among the managers, and while mak-
ing no aereement and entering into no com*
bination oy which the whole railroad inter-
est as herein represented should act as one
combined and consolidated body, the mana-
gers of each road miffht yet make such rea-
sonable, charges for Uie business done by it
as the facts might justify. An agreement
of the nature of this one, which directly and
effectually stifles competition, must be re>
garded under the statute as one in restraint
of trade, notwithstanding there are poeeibil-
ities that a restraint of trade may also fol-
low competition that may be indulged in un-
til the weaker roads are completely destroysd
and the survivor thereafter raises rates and
maintains them.
Coming to the conclusion we do, in rmrd
to the various questions herein discussed we
think it unnecessarr to ^further allude to [571
the other reasons which have been advanced
for a reconsideration of the decision in the
Trans-Missouri case.
The judgments of the Circuit Court of the
United States for the Southern District of
New York and of the Circuit Court of Ap-
peals for the Second Circuit are reverted and
the case remanded to the Circuit Court with
directions to take such further proceedinsi
therein as may be in conformity with tlue
opinion.
Mr. Justice Gray, Mr. Justice SUvma
and Mr. Justice WMte dissented. Mr. Jus*
tice MoKemna took no part in the daciaJCB
of the case.
HENRY HOPKINS ei dl., AppU^
V,
UNITED STATES.
(See 8. C. Reporter's ed. 67S-604.)
Buying and eeUing live etoeh by membere
if a stock ecDchange ie not inteniaie ooei-
nierce — by-law ae to commieBiont—eioek
sent from another etate — by-law as to fele-
fjrams— agents solioiting oonnignments-'
stock yards partly in one state and partly
in another — refusal to do busihess with
persons not members — when agreement or
comhination is within the statute,
1. The business of bnylng and ■elllnc live stock
at stock yards In a city by members of a stock
excbani^ as commission merchants is not In-
tenitate commerce, although most of the imr-
cbsses and sales are of live stock w«nt frn«a
171 U. S.
18W.
HoFKnni y. XJfitbd Statbs.
579.680
•th^r lUtw, ana the memben of the atock
ezchanse are employed to ■ell by letter from
tlie owners of the stock In other states, and
send agents to other states to solicit business,
and adTance money to the cattle owners, and
pay their drafts, and aid them in making the
cattle lit for market.
X A by-law of the Kansas City LiTe-Stock Bz-
change, which regulates the commissions to
be charged by members of that association
for selling Hts stock is not in restraint of in-
tentate commerce, or a Tiolation of the act
of July 2, 1890, to protect commerce from on-
lawfol restralnta.
1 A commission agent who sells cattle at
their place of destination, which are sent
from another state to be sold, is not engaged
In interstate commerce ; nor is his agreement
with others in the same business, as to the
commissions to be charged for such sales,
▼old as a contract in restraint of that com-
merce.
4. In order to come within the proTislons of
the itatnte, the direct effect of an agreement
of combination most l>e in restraint of trade
or commerce among the seTeral states or with
foreign nations.
%. Restrictions on sending prepaid telegrams
or telephone messages, made by a by-law of a
liTe-stock exchange, when these restrictions
are merely for the regulation of the business
of the members, and do not affect the business
of the telegraph company, are not Told as
regulations of interstate commerce.
1 The huniness of agents in soliciting con-
lignments of cattle to commission merchants
In another state for sale. Is not interstate
commerce ; and a by-law of a stock exchange
restricting the number of solicitors to three
does not restrain that commerce, or Tlolate
the act of Congress.
T. The fact that a state line runs through
ttock yards, and that sales may be made of
a lot of stock In the yards which may be part-
ly in one state and partly in another, has no
effect to make the business of selling stock
interstate commerce.
8. A combination of commission merchants at
■tock yards, by which they refuse to do busi-
sen with those who are not members of their
issociatlon, even if it is illegal, is not subject
to the act of Congress of July 2, 1800, to pro-
tect trade and commerce, since their business
is not interstate commerce.
[No. 210.]
Argued February 28, March 1, 1898, De-
cided October 24, 1898,
ON A WRIT OF CERTIORARI to the Unit-
ed States Circuit Court of Appeals for
the Eighth Circuit to bring up the whole
ease in which that court had certified cer-
tain questions. The suit was brought by the
United States against Henry Hopkins et al,,
members of the Kansas City Live Stock Ex-
change, to obtain the dissolution of the ex-
change and perpetually enjoin the members
from entering into or from continuing in any
combination of a like character. The Circuit
Court of the United States for the District
of Kansas, First Division, granted the in-
junction, and from the order granting it an
tj^peal was taken by the defendants to said
Cirenit Court of Appeals, and upon a writ of
certiorari the whole case was brought here
ITl V.B.
for decision. Reversed, and case remitted to
the said Circuit Conrty with directions to
dismiss the suit with eoets.
See same case below, 82 Fed. Rep. 629.
Statement by Mr. Justice PeeUiAait
*This suit was commenced by the United I W*l
States attorney for the district of Kansas,
acting under the direction and by the au-
thorify of the Attorney General of the Unit-
ed States, against Henry Hopkins and the
other defendants, residents of the state of
Kansas and members of a Toluntarv unincor-
porated association known and desiguated at
the Elansas City Live Stock Exchange. The
purpose of the action is to obtain the dis-
solution of the exchange and to perpetually
enjoin the members from entering into or
from continuing in any combination of a
like character.
As a foundation for the relief sought it
was alleged in the bill that the meml^rs of
this association, known as the Kansas City
Live Stock Exchange, have adopted articles of
association, rules, and by-laws which they have
agreed to be bound by; that the business of
the exchange is carried on and conducted by
a board of directors at the Kansas City stodc
yards, which are situated partly in Kansas
City in the state of Missouri and partly in
Elansas City in the state of Kansas, the
building owned by the stock-vards company
being located one half of it in the state of
Missouri and the other half in the state of
Kansas, and half of the defendants have of-
fices and transact business in these stock
^ards and in that part of the building which
18 within the state of Kansas and the other
half in that part of the buildinswhich is in
the state of Missouri ; that the^ansas City
Stock Yards Company is a corporation own-
ing the stocic yards, where the business is
done by the members of the exchange; that
substantially all the business transacted in
the matter of receiving, buying, selling and
handling their live stock at sSinsas Cit^ is
carried on by the defendants herein and by
the other members of the exchange as com-
mission merchants, and that laige numbers
of the live stock, consisting *of cattle and [580]
ho^s and sheep bought and sold and handled
at the stock yards by the defendants and their
fellow raember» in the exchange, are shipped
from the states of Nebraska, Colorado, Texas,
Missouri, Iowa, and Kansas and the terri-
tories of Oklahoma, Arizona, and New Mex-
ico; that when this stock is received at the
stock yards it if^ sold by the defendants, mem-
bers of the exchange, to the various packing
bouses situated at Kansas City, Missouri,
and Kansas City, Kansas, and it is also sold
for shipment to the various other markets,
particularly Chicago, St. Louis, ana New
York ; that vaat numbers of cattle, hogs, and
other live stock are received annually at
the stock yards and handled by the members
of the exchange.
The bill also alleges that large numbers of
the live stock sold at the stock yards by the
defendante are encumbered by mortgages
thereon, executed by their owners in the vari-
ous states and territories, which mortgages
have been given to various defendants as se-
291
180-688
SUFREMS COURT OF THE UNITSD STATSS.
OoT. Teim,
curitj for money advanced by them to the
different owners to enable them to feed and
prepare the cattle for market, and that when
the live stock so mortgaged are ready for
shipment, they are sent to the defendants
who have advanced the monev and received
the mortgages, and on the sale of the stock
the amount of these advances and interest is
deducted from the proceeds of the sale of the
cattle by the commission merchants owning
the mortgages; that ninety per cent of the
members of the exchange make such ad-
vances, and that the market is largely sus-
tained by means of the money thus advanced
to the cattle raisers by the defendants, and
that Kansas City is the only place for many
miles about which constitutes an available
market for the purchase and sale of live
stock from the lar^e territory located in the
states and territories already named ; that it
is the custom of the owners of the cattle,
many of them living in different states, and
who consini their stock to the Kansas City
stock yards for sale, to draw drafts on the
commission merchants to whom the live stock
is consigned, which the consignors attach to
the bill of lading issued by the carrier, and
the money on these drafts is advanced by the
local bax^ throughout the western states
f58I]*and territories. These drafts are paid by
the consignees and the proceeds remitted to
the various owners through the banks.
The busineas thus conducted is alleged to
be interstate commerce, and it is further al-
leged that if the person to whom the live
stock is consigned at Kansas City is not a
member of the exchange, he is not permitted
to and cannot sell or dispose of the stock at
the Kansas City market, for the reason that
the defendants, and all the other commission
merchants, members of the exchange, refuse
to buy live stock or in any manner negotiate
or deal with or buy from a person or com-
mission merchant who is not a m<>mber of the
exchange, and thus the owner of live stocK
shipped to the Kansas City market is com-
pelled to reship the same to other markets,
and by reason of the unlawful combination
existing among the defendants and the other
members of the exchange the owner is pre-
Tented from delivering this stock at the Kan-
sas City stock yards, and the sale of stock is
thereby hindered and delayed, entailing extra
expense and loss to the shipper, and placing
an obstruction and embargo on the market-
ing of all live stock shipped from the states
and territories to the Kansas City market
which is not consigned to the stock-yards
company or to the defendants, or some of
them, members of the stock exchange.
It is alleged that the defendants, as mem-
bers of the exchange, have adopted certain
rules, among them being rules 9 and 16,
which are particularly alleged to be in re-
straint of trade and commerce between the
states, and intended to create a monopoly, in
contravention of the laws of the United
States in that behalf.
Rule 9 provides as follows:
"Section 1. Commissions charged by mem-
bers of this association for sellins; live
•tock shall not be less than the following
named rates."
Sections 2, 3, 4, 5, 6, and 7 rriate to the
amounts of such commissions, and it is al-
leged that in some instances the oommissioaB
are greater than had theretofore been paid.
Section 8 permits the members to h^idk
the business of 'nonresident commission tnitt[8i
when the stock is consigned directly to or |
from such firm, at half the rates fixed 1^ tht
rule, provided the nonresident oommissioa
firms are established at the markets naasA
in the section.
Section 10 prohibits the employment of
any agent, solicitor, or employee except npoa
a stipulated salary not contingent upon the
commissions earned, and it provides that not
more than three solicitors snail be employed
at one time by a commission firm or corpora-
tion, resident or nonresident of Kansas dtj.
Section 11 forbids any member of the ex-
change from sending or causing to be seat
a prepaid telegram or telephone messsfc
quoting the markets or giving informatioi
as to the condition of the same, under the
penalty of a fine as therein stated. The nik,
however, permits prepaid messages to bi
sent to shippers quoting actual sales of thm
stock on the date made; also to parties de
siring to make purchases on the market
Riue 16 provides, in section 1, ''that ■•
member of the exchange shall transact b3»-
ness with any persons violating any of the
rules or regulations of the exchange, or with
an expelled or suspended member after no-
tice of such violation, suspension, or cxpot-
sion shall have been issued by the jecretary
or board of directors of the exchanj^c"
It is alleged that the defendants in adopt-
ing these rules and in forming the cxchsiigs
and carrying out the same have violated and
are violating the statute of the United
States, approved July 2, 1890, entitled "Aa
Act to Protect Trade and Commerce i^uast
Unlawful Restraints and Monopolies,^ and
it is charged that it was the purpose of tW
defendants, in organizing the exchange aad
in adopting the niles mention«i, to prcmt
the shipment or consignment of aav lirt
stock to the Kansas City market ualeM it
was shipped or consigned to the ^■*^^* City
stock yards and to some one or other of tW
defendants, members of the exchange^ and to
compel the shippers of live stock trooi other
states and from the territories to pay to the
defendants the commissions and chai^get
provided for in rule 0, and to prevent sorb
shippers *from placing their property oasak[U3
at the Kansas City market unless these cos-
missions wero paid.
The answer of the defendants admitted
their forming the exchange and becowiac
members thereof, and Mopting, uaoB$
others, the rules specially mentioned in com-
plainant's bill. Thev denied that the ex-
change itself engaged in any business what-
ever, and alle^^ that it existed simply it
order to prescribe rules and provide facthtie*
for the transaction of business by the miai-
hers thereof, and to govern them by nA
rules and regulations as have beoi evolTed
and sanctioned by the devdopments ot
merce, and which are universally
to be just and fair to all concerned.
Jt was further set up in the answer that
171 V. S.
imi
HOFXIHB T. UnITSD STATES.
98S-6M
mA member of the organization was in fact
left free to compete in every manner and by
tn means recognized to be fair and just for
Us share of the business which comes to the
point at which the members of the orgsuii*
sation do business: that in adopting their
rules they followed in all substantial re-
spects the provisions which had been made
ipon the same subject respectively by the
exchanges theretofore established at Chicago
and East St. Louis, Illinois, and which have
been since established at St. Louis, Omaha,
Indianapolis, Buffalo, Sioux City, and Fort
Worth. That the exchange at no time re-
fused to admit as a member any reputable
person who was willing to comply with the
conditions of membership and to abide by
the rules of the organization.
Various allegations in the bill as to the ef-
fect of the organization in precluding any
•ales or purchases of cattle other than by its
nemhers are denied.
The defendants also deny that the exercise
tf their occupation as commission merchants,
iovDg business as members of the exchange,
constitutes or amounts to interstate com-
nerce within the meaning of the Constitu-
tion or laws of the United States. They al-
\iegfi that they have no part in or control over
the disposition of the live stock sold by them
to others, nor of live stock purchased by
them AS commission merchants acting for
ethers. They allege that the stock-yards
eoropany permits any person whatsoever to
94]tnui8act business at its yards who *will pay
the establitfhed charges of that company for
its sendees, and that in point of fact a very
Isrge part of the business done at said yards
is transacted by persons who are not mem-
hers of the exchange and without the interpo-
sition of such members. It is also alleged in
their answer that they are under no ooliga-
tiotts to extend the privileges of the exchange
to a person who is not a member thereof, who
has violated its rules And been suspended
from membership, and who has voluntarily
withdrawn therefrom and announced his pur-
pose to carry on his business as a competitor
•f the members of such exchange to the de-
struction of said organization and its rules
sad to the injury of his competitors.
It is also set up that defendants cannot be
onupelled to deal with a nonmember of their
•Tganization, or a person violating its rules,
tr with one who has been suspended for such
violation, or who has withdrawn therefrom,
•r who has announced his intention to de-
stroy said organization and to compete with
the members thereof, and the defendants al-
k^ that they cannot be compelled to deal
with any person whatsoever, and that they
^ a right to establish said exchange, and
sow have the rieht to maintain the same,
snd to require uie observance of its rules
sod regulations on the part of their associ-
ates so long as they desire to retain the privi-
leges of membership in the body. They allege
that their rules are in harmony with the
niles and regulations of commercial ex-
changes which have existed for more than a
hundred years, and which are now to be
found in every state almost in the United
States and throughout the world, and that
m v.M. '
such rules and regulations are in all respecta
legal and binding. They deny all general
and special allegations of illegal a^reements»
combinations, or conspiracies to violate any
law of the United States or of the state of
Kansas.
The complainants, in addition to their bill,
used several affidavits, the tendency of which
was to show that by virtue of the adoption
of rules 9 and 16, the members of the ex*
change refused to deal with one who had
violated a rule and had been suspended by
reason thereof, and that by reason of this
refusal to do business, the member thus sus-
pended was ^substantially incapacitated from ( fSBlQ
carrying on his business as* a commission
merchant, and that by this combination de-
fendants, in forming such rule and in adher-
ing to it, have greatly injured the business
of such member.
The defendants read counter-affidavits for
the purpose of sustaining their answer,
which were replied to by the complainants
filing affidavits in rebuttal, and upon these
affidavits and the pleadings above described
an application for an injunction was made
to the circuit court of the United States for
the district of Kansas, first division. That
court, after argument, granted an injunction
restraining the defendants from combining
by contract, express or implied, so as by their
acts, conduct, or words to interfere with,
hinder, or impede others in shipping, trading,
selling, or buying live stock that is re-
ceived from the s&tes and territories at the
stock yards in Kansas City, Missouri, and *
Kansas City, Kansas; also enjoining then
from acting under the rules of the exchange
known as niles 9 and 16, and from attempt-
ing to impose any fines or penalties upon
members for tradinp^ or offering to trade with
any person respecting the purchase and sale
of any live stodc ; and also from discriminat-
ing in favor of any member of the exchanse
bemuse of such membership, and especially
from discriminating against any person trad-
ing at the stock yards, and from refusing, by
united or concerted action, or by word, per-
suasion, threat, or by other means, to deal or
trade with persons with respect to such live
stock who are not members of the associa-
tion, because they are not members of suck
association, or in any manner from interfer-
ing with the riffht and freedom of all and
any persons trading or desiring to trade in
such live stock at the stock yards, the same
as if the exchange did not exist. The defend-
ants were also enjoined from agreeing or at-
tempting to limit the right of any person
in business at the Kansas City stock yards
to employ labor or assistance in soliciting
shipments of live stock from other states or
territories, and from enforcing any agree-
ment not to send prepaid telegrams from
the stock yards to any other state or terri-
tory.
The district judge delivered an opinion
upon granting the * injunction, which will be [580]
found report^ in 82 Fed. Rep. 529. From
the order granting it an appeal was taken by
the defendants to the United States circmt
court of appeals for the eighth circuit, which
court certified to this court certain questions
293
08e-589
BUPBEMB COUBT OF THX UnTTBD STATES.
Oct.
I
«nder the proTisions of section 6 of the a<ft of
Karch 8, 1891, and thereupon a writ of cer-
tiorari was issued from this court, and the
whole case brought here for decision.
Messrs. 1m C. KnvtliofP, Qiuiwtut A.
Koemer, and JoKn 8, MiUer, for appellantB.
Messrs, Samvel W. Moore» Special As-
sistant to the Attorney General, and John JC.
Richards, Solicitor General, for appellees.
C6S6} *Mr. Justice PeekKut, after statinff fh»
facts, delivered the opinion of the court:
The relief sought in this case is based ez-
dusively on the act of Gonmes approved
July 2, 1890, chap. 647, entitled "An Act to
Protect Trade and Commerce against Un-
lawful Restraints and Monopolies," common-
ly spoken of as the anti-trust act. 26 Stat,
at L. 209.
The act has reference only to that trade
or commerce which exists, or may exist,
among the several states or with foreign na-
tions, and has no application whatever to any
other trade or commerce.
The question meeting us at the threshold,
therefore, in this case to. What is the nature
of the business of the defendants, and are the
by-laws, or any subdivision of them above
referred to, in their direct effect in restraint
of trade or commerce among the several
states or with foreign nations; or does the
ease made by the bin and answer show that
any one of the above defendants has monop-
olized, or attempted to monopolize, or com-
• bined or conspired with other persons to mo-
nopolize, any part of the trade or commerce
among the several states or with foreign na-
tions?
[587] 'That part of the bill which alleges that no
one is permitted to do business at the cat-
tle market at Kansas City unless he is a
member of this exchange, does. not mean that
there is any regulation at the stock yards
by which one who is not a member of the ex-
^ange is prevented from doins business, al-
though reaay to pay the established charges
of the stock-yards company for its services;
but it simply means that by reason of the
members of the exchange refusing to do busi-
ness with those who are not members the
nonmember cannot obtain the facilities of a
market for his cattle such as the members of
the exchange enjoy. It is unnecessary at
present to discuss the question whether there
L any illegality in a combination of business
men who are members of an exchange not to
4o business with those who are not members
-thereof, even if the business done were in re-
gard to interstate commerce. The first in-
quiry to be made is as to the character of the
business in which defendants are engaged,
and if it be not interstate commerce, the va-
lidity of this agreement not to transact their
•t>usiness witli nonmembers does not come be-
fore us for decision.
We come, therefore, to the inquiry as to
the nature of the business or occupation that
the defendants are engaged in. Is it inter-
atate commerce in the sense of that word as
it has been used and understood in the deci-
sions of this court? Or is it a business
which is an aid or facility to commerce, and
S94
which, if it affect interstate oommeree st
idl, does so only in an indirect and inridtirtaj
mann^?
As set forth in the record, the main UdM
are that the defendants have entered into a
voluntary association for the purpose of
thereby the better conducting their basiaea,
aod that after th^ entered into si^i
elation they still continued their in
nal business in full eompetition with
other, and that the association itself, as aa
association, does no business whatever, but
is simply a means by and through wiuch ths
indiviaual members who have oeoome thai
associated are the better enabled to tranMet
their business; to maintain and uphold a
proper way of doing it; and to create Hb
means for preserving business int^ffrity is I
the transaction *of ue business itseu. ne[II
business of defendants is primarily and sob-
stantially the buying and selling, in their
character as commission merchants, at tkt
stock yards in Kansas City, live stock whid
has been consigned to some of them for the
purpose of sale, and the rendering of aa sfr^
count of the proceeds arising ther^rooL
The sale or purcnase of live stodc as commtt-
sion merchants at Kansas Cit^ is the busi-
ness done, and its character is not altered
because the larger proportion of the por^
chases and sales may be of live stodc sent is-
to the state from other states or from tbs
territories. Where the stodc came from or
where it may ultimately go after a sale or
purchase, procured through the servicet of
one of the d^endants at the Kansas City
stock yards, is not the substantia] factor is
the case. The character of the business of
defendants must, in this case, be
by the facts occurring at that city.
If an owner of cattle in Nebraska
panied them to Kansas City and there per^
sonally employed one of these defendants Is
sell the catiie at the stock yards for him os
commission, could it be properly said that
such defendant in conducting the sale for his
principal was engaged in interstate con-
merce? Or that an agreement between him-
self and others not to render such serrins
for less than a certain sum was a contract is
restraint of interstate trade or ooramert*?
We think not On the contrary, we rtgsrd
the services as collateral to such eommerei
and in the nature of a local aid or ficflity
provided for the cattle owner toward* tW
accomplishment of his purpose to sell thcs:
and an agreement among those who reader
the services relating to the terms upon wbiA
they wiJl render them is not a contract ia rt»
straint of interstate trade or commerce.
Is the true character of the tranaattios
altered when the owner, instead of cooiisf
from Nebraska with his cattle, sends tH««
by a common carrier consigned to one of tkt
defendants- at Kansas City with directioaf
to sell the cattle and render him an sceoeit
of the proceeds? The services rendersd art
the same in both instances, only in one esis
they are rendered under a verbal contrsrt J
made at Kansas •City personally, whik ir^lU
the other they are rendered under writtfs
instructions from the owner given in aaotkir
171 U. 1.
Hopkins ▼. Umitbd Statbs.
58»-(»l
state. This difference in the manner of mak-
ing the contract for the senrices cannot idter
the nature of the services themsdves.
If the Derson, under the circumstances
stated, who makes a sale of the cattle for the
owner by virtue of a personal employment
at Kansas City, is not engaged in interstate
commerce when he makes such sale, we re-
gard it as clear that he is not so engaged, al-
though he has been employed by means of a
written communication from the owner of
the cattle in another state.
The by-laws of the exchange relate to the
business of its members who are commission
merchants at Kansas City, and some of these
^•laws, it is claimed by the government, are
in violation of the act of Congress because
thc^ are in restraint of that business which
is in truth interstate commerce. That one
of the by-laws which relates to the commis-
sions to be char^^ for selling the various
kinds of stock, is particularly cited as a
violation of the acL In comieotion with
that bv-law it will be well to examine with
some detail the nature of defendants' busi-
It is urged that thev are active promoters
oi the business of selling cattle upon con-
signment from their owners in other states,
and that in order to secure the business the
defendants send their agents into other
states to the owners of the cattle to solicit
the business from them; that the defendsAts
also lend money to the cattle owners and
take back mortgages upon the cattle as se-
curity for the loan; that they make advances
of a portion of the purchase price of the cat-
tle to be sold, by means of the payment of
drafts drawn upon them by the shippers of
the cattle in another state at the time of the
shipment. All tnese things, it is said, con-
stitute intercourse and traffic between the
citizens of different states, and hence the by-
law in question operates upon and affects
commerce between the states.
The facts stated do not, in our judgment,
hi any d^ee alter the nature of the services
performed by the defendants, nor do they
render that particular by-law void as in re-
i90]8traint *of interstate trade or commerce be-
cause it provides for a minimum amount of
commissions for the sale of the cattle.
Objections are taken to other parts of the
bj-laws which we will notice hereafter.
Notwithstanding these various matters
u^ertaken by defendants, we must keep our
attention upon the real business transacted
by them, and in regard to which the section
^ the by-law complained of is made. The
netkm amounts to an agreement, and it re-
lates to charges made for services per-
fenned in sellinir cattle upon commission at
Kansas City. The charges relate to that
hnsiness alone. In order to obtain it the
^eliendants advance money to the cattle own-
er; they pay his dra^^, and they aid him
to keep his cattle and make them fit for the
inarket. All this is done as a means towards
an end; as an inducement to the cattle owner
to frive one of the defendants the business of
selling the cattle for him when the owner
B^ finally determine to sell them. That
Winefts is not altered in character because
of the various things done by defendants for
the cattle owner in order to secure it. The
competition among the defendants and others
who may be enj^ed in it, to obtain the busi-
ness, results m their sending outside the
city, to cattle owners, to urse them by dis-
tinct and various inducements to send their
cattle to one of the defendants to sell for
them. In this view it is immaterial over
how many states the defendants may them-
selves or by their agents travel in order to
thereby secure the ousiness. They do not
purchase the cattle themselves; they do not
transport them. They receive them at Kan-
sas Cfity, and the complaint made is in re-
gard to the agreements for charges for the
services at that point in selling the cattle
for the owner, llius everjrthing at last cen-
ters at the market at Kansas City, and the
charges are for services there, and there
only, performed.
The selling of an article at its destination,
which has been sent from another state,
while it may be regarded as an interstate
sale and one which the importer was enti-
tled to make, yet the services of the individ-
ual employed at the place where the article
is sold are not so connected with the subject
sold as to make them a portion of interstate
commerce, and a ^oombination in regard to [691]
the amount to be charged for such service
is not, therefore, a combination in restraint
of that trade or commerce. Granting that
the cattle themselves, because cominff from
another state, are articles of intersta^ com-
merce, yet it does not therefore follow that
before their sale all persons performing serv-
ices in any way connected with them are
themselves engaged in that commerce, or
that their agreements among each other
relative to the compensation to be charged
for their services are void as agreements
made in restraint of interstate inrade. Ihe
commission agent in selling the cattle
for their owner simply aids him in
finding a market; but the facilities
thus afforded the owner by the agent are
not of such a nature as to thereby make that .
agent an individual engaged in interstate
commerce, nor is his agreement with others
engaged in the same business, as to the terms
upon which they would provide these facili-
ties, rendered void as a contract in restraint
of that commerce. Even all agreements
among buyers of cattle from other states are
not necessarily a violation of the act, al-
though such agreements may undoubtedly
affect that commerce.
The charges of the agent on account of
his services are nothing more than charges
for aids or facilities furnished the owner
whereby his object may be the more easily
and readily accomplished. Charges for the
transportation of cattle between different
states are charges for doing something
which is one of the forms of and which i£
self constitutes interstate trade or com-
merce, while charges or commissions based
upon services performed for the owner in ef-
fecting the sale of the cattle are not direct-
ly connected with, as forming part of, inter-
state commerce, although the cattle may
have come from another state. Charges for
295
SOFBEMS COCBT OF TH< USTTKD StaTEA.
Oct. Tmf.
of tliis mtnre do not immedimtely
tDQch or act upon, nor do thej directly af-
iect, the subject of the trajisportation. In-
directly and as an incident, they may en-
kanoe the cost to the owner of the cattle in
^wHing a markety or they may add to the
price paid by a purchaser, but they are not
chMges whidi are directly laid upon the ar-
ticle in the course of transportation, and
which are charges upon the commerce itself ;
Qthey are diarges for the ^facilities giTcn or
proTided the owner in the course of the
■K>Tement from the home situs of the ar-
\tide to the place and point where it is sold.
The contract oondonned by the statute
it one whose direct and immediate effect is
a restraint u^on that kind of trade or com-
merce whidi is interstate. Charges for sudi
iacilities as we haTe already mentioned are
■ot a restraint upon that trade, although
flie total cost of marketing a subject thereof
may be thereby increased. Charges for fa-
cilities furnished hare been held not a regu-
lation of commerce, even when made for
aervices roidered or as compensation for ben-
efits conferred, ^oii^ ▼. Mamigiee Stiver
im^ropemtemt Compamy, 123 U. S. 288 [31:
149] ; McmomgokeUi yavigatum Compamjf ▼.
United States, 146 U. & 312, 329, 330 [37:
463,469] ; Kentucky d i. Bridge Company
T. LotritrtOtf d 3r . RaUroad Compamy, 37 Fed.
Bra. 567 [2 L. R. A. 289, 2 Intera. Com.
S«p. 351].
To treat as cmdemned by the act all
agreements under which, as a result, the
oost of conducting an intestate eommercia]
badness majr be increased would ailai«
the applicatiOB of the act far b^ond the
^Isir meaning of the language used. There
must be some direct arc immediate effect
«pon intostate commerce in order to eone
within the act. The state ma^ levy a tax
noB the earning of a commissKm merdiant
idiidi wn« realised out of the sales of prop-
arty bdonging to nonresidents, and such a
tax is not one upcm interstate commerce be-
eause it affects it only incidentally and re-
Botdy, although certainly. FidrJcn ▼.
fffteOy Comity ToMmg IKtt. 145 U. a 1
[36:601, 4 Intern. Com. Rq». 79]. Many
agreements suggest themseNsa whidi rdate
•sly to fiadlities furnished eooflnace, or dse
kNMh it only in an indirect way, while pos-
mSkAf enhancing the cost of transacting the
hnaincss, and whidi at the same time we
wnuld not think of as agreements in re-
straint oi interstate trade or commerce.
TWy are agreements which in their ^ect
sperate in furtherance and in aid of com-
merce by proTiding for it facilities, con-
ipeniences. privileges, or serrioes, but which
4o not directly relate to diarges for its
transportaiion. nor to any other form of
intervtate commerce. To hold all sudi
agrecfnents Toid would in our judgment im-
properly extend the act to matters whidi are
not of an interstate commercial nature.
1} *lt is not difficult to iraseine agreements
of the character abore indicated. For ex-
ample, cattle, when transported long dis-
tances by rail, require rest. food, and water.
To gire them these accommodations it is
necessary to take them from the car and put
them in pens or other places for their sa^
receptKm. Would an agreement anumg ths
landowners along the line not to lease their
lands for less than a certain sum be a con-
tract within the statute as being in restraint
of interstate trade or commerce? Would it
be such a contract erai if the lands, or soms
of them, were necessary for use in furnish-
ing the cattle with suitable accommodatknis!
Would an agreement between the dealers ia
com at some station along the line of the
road not to sdl it below a certain price be
coTered by the act, because the cattle must
haire com for food? Or would an agreemeat
anioi^ the men not to perform the sorice
of waterii^ the cattle for less than a cer-
tain compensation come within the restric-
tion of the statute? Suppose the railrosd
company whidi transports the cattle itself
furmshes the facilities, and that its chaneet
for transportation are enhanced because of
an afjeement among the landowners aloof
the line not to lease their lands to the coo^
pany for sudi purposes for less than a
named sum, could it be successfully eon-
tended that the agreement of the Undownen
among thenisdTcs would be a violation of the
act as being in restraint of interstate trs4t
or commerce? Woold an agreement betatea
buOders of cattle ears not to build them vb>
der a certain price be Toid beesnse the effect
might be to increase the price of tranCTorta-
tion of cattle between the sUtes? WoaU
an agreement among dealers in horse blank-
ets not to sen them for less than a certaia
price be open to the diarge of a rioUtioB of
the act because horse blanketa are neeenaiT |
to put on horses to be sent long jonmers hf
rail, and by reason of the agreement the ex-
pense of sending the horses from one ststt
to another for a market might be thcn^
enhanced? Would an agreement among eat-
Ue drivers not to driire the cattle after their
arriral at the railroad depot at their pises
of destinatKm, to the cattle yards where soM,
for less than a minimum siun, cosm withia
the statute? Would an agreement amosr
themsdvcs *by loeomotiTe engincera, treBMa.[SM
or trainmen engaged in the serrice of aa is-
terstate railroad not to woric for less thas a
certain named compensation be iUegal bt>
cause the cost of transporting intcrsUtt
freight would be tlicrd>y enhanced? Agree-
raents similar to these might be indeftaitely
In our opinion all these queries «hooM W
answered in the negative. The indirect ef-
fect of the agreements mentioned might W
to enhanee tlw cost of mailceting the cattle,
but the agreements themsaves wove lot
necessarily for that reason be in restraint of
interstate trade or commerce. As their rf-
fect is dther indirect or due they relate ta
charges for the use of facilities fnmisM,
\ the agreements instanced would be valii f^-
I rided the diarges agreed upon were leasoas-
ble. The dfect upon the commerce spolcea
of must be direct and proximate. Xew V«^
j bale Erie d W. Reilromd fV>wn-»»v v. frmm-
I ^/fyrais, 158 U. S. 431, at 439 [39: IM,
jliM5].
An agreement mav in a varietv nf vttt
171 V. %
Me.
HOPKIMB T. UnITBD 8tATB8.
594-6tf7
•ffeet imterstate commerce, just as state les-
Uauon may, and yet, like it, be entirely
valid, because the interference produced by
iht agreement or by the legislation is not
iirect Sherlock v. Ailing, 93 U. S. 99-103
(23: 819,820] ; United States v. E, O. Knight
Company, 156 U. S. 1, 16 [39:325, 330];
Pittsburg d S, Coal Co, t. Louisiana, 156 U.
S. 590-597 [39: 544-547, 5 Inters. Com. Rep.
18]; Parkersburg d 0, River Transporta-
tion Company t. Parkersburg, 107 U. S. 691
[27: 584] ; Ficklen v. Shelby County Tawing
Dist. supra. Reasonable charges for the use
of a facility for the transportation of inter-
state commerce have heretofore been regard-
ed as valid in this court, even though such
charges might necessarily enhance the cost
of doing tiie business. Northtoestem U.
Packet Company v. St. Louis, 100 U. S. 423
[25: 688] ; Cincinnati, P, B, S. d P, Packet
Company v. Catlettsburg Trustees, 105 U. S.
559 [26:1109]; Parkersburg d 0. River
Transportation Company v. Parkersburg,
107 U. S. 691 [27: 584]; Huse v. Clover,
119 U. S. 543 [30: 487] ; Ouachita d M. R.
Packet Company v. Aiken, 121 U. S. 444 [30:
976, 1 Inters. Com. Rep. 379] ; St, Louis v.
Western U, Telegraph Company, 148 U. S.
•2 [37: 380]. An agreement among the own-
ers of such facilities, to charge not less than
a minimum rate for their use, cannot be con-
demned as illegal under the act of Congress.
The fact tiiat the above-cited cases relate
*o tangible property, the. use of which was
M] harged for, does not alter the *reaaoning
upon whic^ the decisions were placed. The
^rges were held valid because they related
to facilities furnished in aid of the conmierce
and which did not constitute a regulation
thereof. Fadlities may consist in privileges
or conveniences provided and made use of, or
in servioes rendered in aid of commerce, ma
veil as in the use of tan^ble property, and
•0 long as they are facilities and the charges
Bot unreasonable an agreement relating to
their amount is not invalid. The cattle
owner has no constitutional right to the serv-
ioes of the commission aeent to aid him in
the ade of his cattle, and the agent has the
ri^t to say upon what terms he will render
tMm, and he nas the equal right, so far as
the act of Conjgress is concerned, to a«ree
with others in his business not to render those
services unless for a certain charge. The
KTvioes are no part of the commerce in the
cattle.
In Broioii t. Marylwtd, 12 Wheat. 419 [6:
t7S], Chief Justice Marshall, whUe main-
taining the right of an importer to sell his
article in the original package, free from
any tax, recognized the distinction between
tiie importer selling the article himself and
employing an auctioneer to do it for him,
aad.he said that in the latter case the im-
porter could not inject to paying for such
■ervices as for any other, and that the right
to adl might Tory well be annexed to impor-
tation witiiout annexing to it also the privi-
lege ef using auctioneers, and thus to make
the sale in a peculiar way. In such case a tax
ttpcm the auotiofleer'e license would be valid.
The same view is enforced in Bmert v.
171 V. 8.
MissouH, 156 U. S. 296 [89: 480, 5 Inters.
Com. Rep. 68].
The rieht of the cattle owners themselveo
to sell deir own cattle is not affected or
touched bv the agreement in (question, while
the privilege of having their cattle sold
for them at the market place frequented by
defendants, and with the aid of one of them,
is a privilege which they are charged for, and
whicm is not annexed to their right to s^
their own cattle.
It is possible that exorbitant charges for
the use of these facilities might have similar
effect as a burden on commerce that a
charge upon commerce itself might have. In
a case *like that the remedy would probably [6M|
be forthcoming. Parkersburg d 0, River
Transportation Company v. Parkersburg^
107 U. S. 691 [27 :584]. As was said by Mr.
Justice Field, in Sands v. Manistee River
Improvement Company, supra, "should there
be any gross injustice in the rate of tolls
fixed, it would not in our system of govern-
ment remain long uncorrected." Pages 294,
205 [31:151].
But whether the charges are or are not ex-
orbitant is a question primarily of local law,
at least in the absence of any superior or
paramount law providing for reasonable
charges. (107 U. S. [27:] supra.) This
case does not involve that question.
If charges of the nature described do not
amount to a regulation of interstate trade
or commerce bemuse they touch it only iB
an indirect and remote way, or else because
they are in the nature of compensation for
the use of property or privileges as a mere
facility for that commerce, it would for a
like reason seem dear that agreements re-
lating to the amounts of such cSarges among
those who furnish the privileges or facilities
are not in restraint of that kind of trade.
While the indirect effect of the agreements
may be to enhance the expense to those en-
gaged in the business, yet as the agreements
are in regard to compensation for privileges
accorded for services rendered as a facility
to commerce or trade, they are not illegal
as a restraint thereon.
The facilities or privileges offered by the
defendants are apparent and valuable The
cattle owner has the use of a place for his
cattle furnished by the defendants and all
the facilities arising from a market where
the sales and purchases are conducted under
the auspices of the association of which the
defendants are members, and in a manner
the least troublesome to the owners and at
the same time the most expeditious and ef-
fective. Each of these defendants has the
right to have the cattle which are consigned
to him taken to the cattle yards, where, by
virtue of the arrangements made by defend-
ants with the owners of the yards, the cattle
are plaeed in pens, watered and fed, if neces-
sary, and a sale effected at the earliest mo-
ment. It is these facilities and services which
are paid for by a commission on the sale ef-
fected by the commission men. *If, as is[SM|
claimed, the commission men sometimes own
the cattle they sell, then the rules do not ap-
ply, for they relate to charges made for seu-
297
M I
«97-6M
SuFRBMB Court of thb United bxATSb.
Oct.
u
^5
». I
ing cattle upon commission and not at all
to sales of cattle by their owners.
Definitions as to what constitutes inter-
state commerce are not easily ffiven so that
they shall clearly define the fufi meaninj^ of
the term. We know from the eases decided
in this court that it is a term of vei^ large
aignificance. It comprehends, as it is said,
intercourse for the purposes of trade in any
and all its forms, including transportation,
Eurchase, sale, and exchanee of commodities
etween the citizens of different states, and
the power to regulate it embraces all the in-
struments by wnich such commerce may be
eonducted. Welitm v. M%890wr%t 91 U. S. 275
(23: 847] iCounty of Mobile ▼. KimhM, 102
fj. S. 691 [26: 238] ; Olouceaier Ferry Com-
rmy y, Pennsylvania, 114 U. S. 196 [29 : 158,
Inters. Com. Rep. 382] ; Hooper t. Califor-
nia, 155 U. S. 648, at 653 [39: 297, 300, 5
Inters. Com. Rep. 610] ; United States v. B,
C. Knight Company, 156 U. S. 1 [39: 325].
But in all the cases which have come to
this court there is not one which has denied
the distinction between a regulation which
directly affects and embarrasses interstate
trade or commerce, and one which is nothing
more than a charge for a local facility pro-
Tided for the transaction of such commerce.
On the contrary, the cases already cited show
the existence of the distinction and the va-
lidity of a charge for the use of the facility.
The services of members of the different
stock and produce exchanges throughout the
country in effecting sales of the articles they
deal in are of a similar nature. Members
ai the New York Stock Exchange buy and
•ell shares of stock of railroads and other
oorporaUons, and the property represented
by such shares of stock is situated all over
the oountrv. Is a broker whose principal
lives outside of New York state, and who
sends him the shares of stock or the bonds
of a corporation created and doins business
in another state, for sale, engaged in inter-
state commerce? If he is employed to pur-
chase stock or bonds in a like corporation un-
der the same circumstances, is ne then en-
ffaged in the business of interstate commerce?
It may, perhaps, be answered that stocks or
£M8]*bond8 are not commodities, and that dealers
therein are not engaged in commerce.
Whether it is an answer to the question need
not be considered, for we will take the case
of the New York Produce Exchange. Is
a member of that body to whom a cargo of
grain is consigned from a western state
to be sold engaged in interstate com-
merce when he performs the service of
selliiig the article upon its arrival in New
York and transmitting the proceeds of the
•ale less his commissions? Is a New Or-
leans cotton broker who is a member of
the Cotton Exchange of that ci^, and who
receives consignments of cotton from differ-
ent states and sells them on 'chan^ in New
Orleans, and accounts to his consignors for
the proceeds of such sales less his commis-
sion, engaged in interstate commerce? Is the
character of the business altered in either
case by the fact that the broker has advanced
moneys to the owner of the article and taken
a mortgage thereon as his security? We un-
.Wo
derstand we are in these queries
substantially the same facts as tliose
are contained in the case before us, and if
these defendants are engaged in interstate
commerce because of their services in the lale
of cattle which may come f itmi other states,
then the same must be said in regard to the
members of the other exchanges above re-
ferred to. We think it would bs an entirdy
novel view of the situation if all of the mem-
bers of these different exchanges throughout
the country were to be regarded as engtged
in interstate commerce, because they tdl
things for their principals which come from
stat^ different from the one in which the ex-
change is situated and the sale made.
The theory upon which we think the by-
law or agreement regarding commissions ii
not a violation of the statute operates also
in the case of the other provisions of tks
by-laws. The answer hi regard to all ob-
iections is, the defendants are not cagagsi
in interstate commerce.
But special weisht is attached to the oble^
tion raised to section 11 of rule 9 of the bj'
laws, which provides against sending pre-
paid telegrams, as set forth in the statement
of facts herein. It is urged that the purpose
of this section is to prevent the sending of
prepaid telegrams hj the defendants* totSeir[
various customers in the different states
tributary to the Kansas City market, and
that the section is a part of the contract
between the members of the exchange, and ii
clearly an attempt to regulate and restrict
the sendinff of messages by telegraph sad
telephone between citizens of the varioai
states and territories, and operates upon sad
directly affects the interstate business of
communicating between points in different
states by telegraph or telephone.
An agreement among the defendants to ab-
stain from telegraphing in certain cimuih
stances and for certain purposes is so dearlj
not an attempt to rM^late or restrain tbt
general sending of telegrams toat it woaU
seem unnecessary to ar^e the questioa.
An agreement among business men not to
send telegrams in r^^rd to theii businMi
in certain contingencies, when the agreement
is entered into only for the purpose of rtgv-
lating the business of the individuals, is not
a direct attempt to affect the buMnes^ of tht
telegraph company, and has no direct effe^
thereon. Although communication by tele-
graph may be commerce, and if carried on be-
tween different states may be commerce
araonff the several states, vet an agrcemeit
or by-law of the nature of the one under eos-
sideration is not a burden, or a reinilatioe of,
or a duty laid upon, the telegraph compaoj.
and was clearly not entered into tor the pn^
pose of affecting in the slightest difrfe tW
company itself or its traimction off iatsr
state commerce.
The argument of counsel in behalf of the
United States, that because none of tbe
states or territories could enact any law inter
faring with or abridging the right of penosi
in Kansas or Missouri to send prepaid talt-
grams of the nature in question, therefois
an agreement to that effect entered into be-
tween business men as a means towards tho
ITI U. 1.
I
1M&
HOFKQia T. UnITBD BTATBii
690-6aS
proper tmiiBaciioii of their leffiiimate busi-
Beat would be void, is, as we uiinky entirely
nnaomid. The conclusion does not follow
from the f Acts stated. The statute might
be ille^ as an improper attempt to inter-
fere with the liberty of ' transacting lesiti-
mate business enjoyed by the citizen, wnile
the agreement among business men for the
IOO]bettttr conduct of their own 'business, as they
think, to refrain from using the telegraph
for certain purposes, is a matter purely for
their own consideration. There is no simi-
larity between the two cases, and the princi-
ple existing in the one is wholly absent in
tiie other. l%e private agreement does not,
as we have said, regulate conunerce or im-
pose an^ impediment upon it or tax it.
Communication by telegraph is free from any
burden so far as this agreement is concerned
and no restrictions are placed on the oom-
jperce itself.
The act of Congress must have a reason-
able construction or else there would scarce-
ly be an affreement or contract among busi-
ness men Uiat could not be said to have, in-
directly or remotely, some bearing upon in-
terstattt commerce and possibly to restrain it.
We have no idea that the act covers or was
intended to cover such kinds of agreements.
The next by-law which complainants ob-
ject to is section 10 of the same lule 9, which
prohibits the hirins of a solicitor except up-
on a stipulated salary not contingent upon
commissions earned, and which provides tnat
no more than three solicitors shall be em-
ployed at one time by a commission firm or
corporation.
The claim Is that these solicitors are en-
gaged in interstate commerce, and that such
commerce must be free from any state leg-
islation and free from the control or restraint
bv any person or combination of persons.
They also object that the rule is an imlawful
inhibition upon the privilege possessed by
etch person under the Constitution to make
Iswfm contracts in the furtherance of his
bosiness, and they allege that in this respect
these members have surrendered their do-
minion over their own business and permit-
ted the exchange to establish a species of re-
gency, and that the by-law in regard to the
employment of solicitors is one which direct-
ly affects interstate commerce.
McCaU V. California, 136 U. S. 104 [34;
891, 3 Inters. Com. Kep. 181] is cited for the
proposition that the solicitors employed by
these defendants are engaged in interstate
eonunerce. In that case tne railroad com-
ptny was itself en^ged in such commerce,
and its agent in California was taxed by rea-
l01]son of his business in soliciting *for his com-
pany that which was interstate commerce.
The fact that he did not sell tickets or re-
ceJYe or pay out mone^ on account of it was
not regarded as material. His principal was
a common carrier, engaged in interstate com-
merce, and he was engaged in that commerce
because he was soliciting for the transporta-
tion of passengers by that company through
the different s&tes in which the railroad ran
from the state of California. In the case be-
fore us the defendants are not employed in
interstate commerce, but are simply engaged
171 U. »•
in the performance of dutlee or services r^
lating to stock upon its arrival at Kansas
City. We do not think it can be properly
said that the agents of the defendants whom
they send out to solicit the various owners
of stock to consign the cattle to one of the
defendants for sale are thereby themselves
engaged in interstate commerce. They are
simply soliciting the various stock owners ^
to consiffn the stock owned by them to partic-
ular defendants at Kansas City, and until
the arrival of the stock at that point and the
delivery by the transportation company no
duties of an interstate commerce nature
arise to be performed by the defendants. As
the business they do is not interstate com-
merce, the business of their asents in solicit-
ing otJiers to give them such business is not
itMlf interstate commerce. Not being en-
gaged in interstate commerce, the agreement
of the defendants through the bv-law in ques*
tion, restricting the number oi solicitors to
three, does not restrain that commerce, and
does not therefore violate the act of Congress
under discussion.
The position of the solicitors is entirely
different from that of drummers who are
traveling throiigh the several states for the
purpose of getting orders for the purchase of
property. It was said in Rohhina v. Shelby
County Tawing District, 120 U. S. 489 [30:
694, 1 Inters. Coul Rep. 45], that the nego-
tiation of sales of goods which ai'e in another
state for the purpose of introducing them
into the state in which the negotiation is
made is interstate commerce.
But the solicitors for these defendants
have no property or goods for sale, and their
only duty is to ask or induce those. who own
the property to agree that when they send it
to ^maricet for side they will consign it to the [60S]
solicitor's principal, so that he may perform
such services as may be necessary to sell the
stock for them and account to them for the
proceeds thereof- Unlike the drummer who
contracts in one state for the sale of goods
which are in another, and which are to be
thereafter delivered in the state in which the
contract is made, the solicitor in this case
has no goods or samples of goods and negoti-
ates no sales, and merely seeks to eyact a
promise from the owner of property that
when he does wish to sell he will consi^ to
and sell the property through the solicitor's
principal. There is no intestate commerce
m that business.
Hooper v. California, 155 U. S. 648 [99:
297, 5 Inters. Com. Rep. 610], is another il-
lustration of the meaning of the term "com-
merce" as used in the Constitution of the
United States. In that case contracts of
marine insurance are stated not to appertain
to interstate commerce, and cases are cited
upon the nature of the contract of insur-
ance generally at page 663 [39 : 300, 6 Inters.
Com. Rep. 615] of the opinion.
It is also to be remarked that the effect of
the agreement as to the number of solicitors
to be employed by defendants can only be re-
mote and indirect upon interstate commerce.
The number of solicitors employed lias no
direct effect upon the number of cattle trans-
ported from state to state. The solicitors
299
€a»-«04
SOPBBMB COUBT OF THB UmSD SxATBt.
Oct. Tom,
4o not solicit transportation of the cattle.
They are not in the interest of the transpor-
tation company, and the transportation is an
incident only. The^ solicit a consignment
df cattle to their principals, so that the lat-
ter may sell them on commission and thus
transact their local business. The transpor-
tation would take place anyway, and the
cattle be consigned for sale by some one of
t^e defendants, or by others engaged in the
luisiness. It is not a matter of transporta-
iion, but one of agreement as to who shall
render the services of sellins the cattle for
Aeir owner at the place of destination.
We say nothing against the constitutional
right of each one of the defendants, and each
person doing business at the Kansas City
stock yards, to send into distant states and
territories as many solicitors as the business
of each will warrant. This 'original right
is not denied or questioned. But cannot the
citizen, for what he thinks good reason, con-
tract to curtail that right? To say that a
state would not have the right to prohibit a
defendant from employing as many solicitors
as he might choose proves nothing in regard
to the right of individuals to agree upon that
subject in a way which they may think the
most conducive to their own interests.
What a state may do is one thing, and what
parties may contract voluntarily to do among
themselves is quite another thin^.
The liberty of contract as referred to in
Allgeyer v. Louisiana^ 165 U. S. 578, [41:
832], is the liberty of the individual to be
free, under certain circumstances, from the
restraint of legislative control with regard
to all his contracts, but the case has no ref-
erence to the right of individuals to some-
times entor into those voluntary contracts
by which their rights and duties may prop-
erly be measured and defined and in many
cases greatly restrained and limited.
We agree with the court below in thinking
there is not the slightest matoriality in the
fact that the stato line runs through the
stock yards in question, resulting in some of
the pens in which the stock may be confined
tueing partly in the stato of Kansas and part-
ly in the stato of Missouri, and that sales
may be made of a lot of stock which may be
at the time Pj^i^ly in one stato and partly in
the other. The erection of the building and
the putting up of the stock pens upon the
ground through which the stoto line ran
were mattors of no moment so far as any
question of interstate commerce is concerned.
The character of the business done is not
in the least altered by these immaterial and
incidental facte.
It follows from what has been said that
the complainante have failed to show the
defendante guilty of any violations of the
act of Congress, because it does not appear
that the defendante are engaged in inter-
stete commerce, or that any agreemente or
oontracte made by them and relating to
conduct of their business are in restraint of
any such commerce.
Whether they refused to transact business
which is not interstete commerce, except
with those who are members of the exchange,
and whether such refusal is justifiable or
800
not, *are questioos not open for discunonlCO^
here. As defendant's actions or agreemenu
are not a violation of the act of Congress, the
complainante have failed in their case, and
the order for the injunction must dcrevmetf,
and the case remitted to the Circuit Court of
the United Stetes for the District of Kansas,
First Division, with directions to dismiM the
bill with coste.
Mr. Justice MeKeana took no part in thi
decision of this case.
J. C. ANDERSON et al„ Appt9^
9.
UNITED STATES.
(See 8. C. Reporter's ed. 604-4120.)
Agreement among yard traders as to hwi^
ing oat tie — rule of a live-stock e^sdiomge^
u)hen not void,
1. An agreement among persons engaged la tfet
common buslDess, as yard traders, of bajisi
at a city stock-yard cattle which came troa
different states, that they will form an an*-
elation for the better conduct of their boi-
ness* and that they will not transact bcflBWi
with other yard traders who are not membefi.
or buy cattle from those who also sell to yari
traders who are not members of the asMds*
tlon. Is not a violation of the act of July 1
1800, to protect trade and commerce sgaloit
unlawful restralnte and monopolies.
2. A rule of a live-stock exchange, thst Ms
members shall not recognize any yard tradw
who Is not also a member of the eichany. Is
not In restraint of, or an attempt to Boao^
ollze, trade, where the exchange does act lt>
self do any business, and there Is aothlag ts
prevent all yard traders from being meabcrs
of the exchange, and no one Is hindered froa
having access to the yards or having all their
facilities, except that of selling to meabeis
of the exchange.
8. Rules to enforce the purpose and object eC
such exchange. If reasonable and fair, caasot
except remotely, affect Interstate trade sal
commerce, and are not void as vlolatloBS sC
the act of July 2. 1800.
[No. 181.1
Argued February 25, 28, IH98. Decided 0^
toher 24, 1898.
ON A CERTIFICATE from and writ
of certiorari to the United States Cir^
cuit Court of Appeals for the Eighth Cir*
cuit to review an order of the Circuit Conn
of the United SUtes for the Western Divi-
sion of the Western District of Miasovri
in an action brought by the United Stat«
against J. C. Anderson and other meaibsn
of the Traders' Live-Stodc Exchange, that
the defendante be enjoined as assodatcs of
the Traders' live-Stodc Exchange froai
hindering others in selling at the stock
yards at Kansas City, Missouri, live stock
shipped there from other states and terri-
tories, and from interfering with freedoa
of access of others and equal facilitie« to as4
171 U. 1.
Ahdbrson t. United States.
C04-i08
Ib said stock yards, and from enforcing cer-
iain mlflSy etc. The order was taken by
appeal to said Circuit Court of Appeals and
the entire record removed therefrom to this
crort for final disposal. Order reversed,
svd case remanded to said Circuit Court of
the United States for the Western Division
•f the Western District of Missouri, with
directions to dismiss the action, with costs.
Statement by Mr. Justice Peekhamx
IS] *This suit is somewhat similar to the Hop*
kins suit, just decided, and was brought by
the United States af^inst the defendants
named, who were citizens and residents of
the western division of the western district
of Missouri, and members of a voluntarv un-
incorporated association known and desig-
ntted as the Traders' Live Stock .Rlrchange,
the suit being brought for the purpo«te i>f ob-
taining a decree dissolving the excliauge and
enjoining the members thereof from entering
into or continuing any sort of corr.bination
to deprive any people engaged in shipping,
M]»ellinff, buying, and handling *live stocK (re-
ceived from other states and from the ter-
ritories, intended to be sold at the Kansas
City market), of free access to the markets
at Kansas City, and to the same facilities
afforded by the Kansas City stock yards, to
defendants and their ussociste members of
the Traders' Live Stock Exchange.
The bill was filed under the direction of
the Attorney General of the United States by
the United States district attorney for the
western district of Missouri. Tt alleged in
rabstance that the exchange was governed
bj a board of eight directors, who canried
oil the business thereof with the consent and
approbation of the defendants, they person-
illy being members of the exchange. It tben
made the same allegations in relation to the
•took yards being partly in Kansas City,
Kansas, and partly in Kansas City, Missouri,
that are contained in the hill in the Hap-
tim Case, reported amte, 290, and also as to
the sales of nerds or droves of cattle which
were at the time of the sale partly in one
BUte and partly in another. It is further
alle^ that the Kansas City stock yards is
ft public market, and, next to the market at
Chicago in the state of Illinois, is the largest
lire-stock market in the world, and vast num-
bers of cattle, hogs, and other live stock are
received annually at the market, shipped
from various states and from the territories,
and are sold at the market to buyers who re-
side in other states and territories, and who
reship the stock; that the stock is shipped
to the market under contracts by which the
shipper is permitted to unload the stock at
the Kansas City stock yards, rest, water,
and feed the same, and is accorded the privi-
lege of selling the stock on the Kansas City
warket if the pieces prevailing at the time
i^tify the sale, and many head of such stock
are so sold ; that prior to the month of
March, 1897, as alleged, the defendants here-
in were engaged as speculators at the Kansas
City stock yards, and were buying upon the
niarket and reselling upon the same market
ftsd reshipping to other markets in other
171 V. 1L
states the cattle so received at the Kansai
City stock yards; that all the live stock
shipped to and received at these stock yardi
is consigned to commission merchants, wh#
take charge of the stock when it is received,
and who sell the same *to packing houses lo-
cated at Kansas City, Missouri, and Kansas
City in the state of Kansas, and they seQ
large numbers of cattle to the defendants
herein.
The bill then alleges that tha defendanti
"have unlawfully entered into a contract^
combination, and conspiracy in restraint of
trade and commerce among the several states
and with foreign nations, m this, to wit, that
they have unlawfully agreed, contracted^
combined, and conspired to prevent all other
persons than members of the Traders' Live
Stock Exchange, as aforesaid, from buying
and selling cattle upon the Kansas City mar-
ket at the Kansas City stock yards as afore-
said ; that the commission firm, person, part*
nership, or corporation to whom said cattle
are consigned at Kansas City, as aforesaid,
is not permitted to and cannot sell or dis-
pose of said cattle at the Kansas City mar«
ket as aforesaid to any buyer or speculator
at the Kansas City stock yards unless said
buyer or speciilator is a member of the
Traders' Live Stock Exchange, and these de-
fendants, and each of them, unlawfully and
oppressively refuse to purchase cattle, or in
any manner nep^otiate or deal with or buv
from anv commission merchant who shall sell
or purchase cattle from any speculator at
the said Kansas City stock yaros who is not
a member of the said Traders' Live Stock
Exchange; that by and through the unlaw-
ful agreement, combination, and conspiracy
of these defendants the business and traffic
in cattle at the said Kansas City stock yards
is interfered with, hindered, and restrained,
thus entailing extra expense and loss to tha
owner, and placing an obstruction and em-
bargo on the marketing of cattle shipped
from the states and territories aforesaid to
the Kansas City stock yards."
It is further alleged that, acting in pur-
suance of the unlawful combination above
described, the board of directors of the ex-
change have imposed fines upon certain
members of the exchange ''who had traded
with persons, speculators upon the mar-
kets, who were not members of the said
live-stock exchange, and within three
months last past have imposed fines
upon members of said live-stock exchange
who have traded with commission firms at
said Kansas City stock yards *which said[
commission firms had bought from, and sold
cattle to, speculaftors upon said market who
were not members of the said live-stock ex-
change."
It was further stated in the bill that in
carrying out the purposes and aims of this
exchange and hj the conduct of its members
engaged in this alleged combination, con-
spiracy, and confederation, th^ were acting
in violation of the laws of the United States,
and particularly in violation of section 1 of
the act of Congress, approved July 2, 1890,
entitled ''An Act to Protect Trade and Com-
merce against Unlawful Restraints and Mo-
301
MS-611
SUPBBMB COUBT OF THE UnITBD StATBS.
Oct. Tehi,
nopolies,** and in the prosecution of this un-
tawfnl combination they had agreed to hin-
der and delaj the business of buying and
selling cattle at the market named, and
had confederated together in restraint of
trade and commerce between the states,
and that the object of the defendants in
organizing the exchange was to prevent
the sale by any commission merchant
at the Kansas City stock yards of any cattle
to any person who might be a buyer and spec-
idator upon the marlut who is not a member
of the exchan^
Accompanymff this bill were several affi-
davits of individuals not members of the ex-
change, but who were traders or speculators
at the stock yards, and those persons said
^at they were acquainted with the associa-
tion in question and with the officers and
members, and that they did everything in
their power to prevent other persons who
were not members from trading at the stock
▼ards, and a number of instances were given
in which the affiants who wore not members
of the exchange were endeavoring to do busi-
ness witii commission merchants and others
at the exchange in ouestion, when the affiants
were notified that tney could not continue in
business imless they became members of the
association, and where partnerships were
engaged in business where one partner was
a member of the association, the partner who
was a member was notified that he could not
continue in the partnership business with
the other unless such other also became a
member; that they had attempted to buy
cattle from a gpreat many commission firms
and h>om tiheir salesmen at these stock yards,
[MO] *but as soon as they went into the yards where
the cattle were that were consigned u> com-
mission firms, and attempted to purchase
them, some of the defendants would appear,
call the salesman aside, and, after having a
conversation with such salesman, the latter
would invariably return to affiant and say
that he coidd not price cattle to the affiant
or sell tiie same to him, as he had been
warned by members of the exchange not to
do so ; that the Traders' Live Stock Exchange
would not permit other traders and specu-
lators upon the market, and that the ex-
change does not permit commission firms at
the stock yards to sell cattle consigned to
them to any trader or speculator upon the
market who is not a member of the exchange,
and that commission firms had been notified
by the officers of the stock exchange not to
sell to speculators on the market who were
not members of the Live Stock Exchange,
and where commission firms sold cattle to
traders and speculators upon the market who
were not members of the exchange, the asso-
ciation and members thereof would boycott
the commission firm making such sales, and
refuse to purchase any cattle from them, and
refuse to go into the lots and look at cattle
which had been consigned to them.
Upon the bill and affidavits application
was made to the circuit court for tne west-
ern division of the western district of Mis-
souri for an injunction as prayed for in the
bill, in opposition to which application vari-
ous affidavits were reaa on the part of the
808
defendants, and copies of the artides ol tt-
sociation and by-laws of tha exdiange wttn
attached* to the affidavit of the presideat il
the exchange and read on the motion.
Among other affidavits was that of tht f»*
eral superintendent of the stock-yu^ cob-
pany, who said that he had known the oifu-
ization, the Traders' Live Stock Exi^aage,
since its formation, and that it had been a
benefit to the live-stock market at Kshmi
City by furnishing constant buyers for eattle
shipped to the market, no matter how laq^
the receipts for any one day or series of days
mig^ht be, and also by raisins the standard d
business inte^itv among its members, be-
cause it re<fuirea every member to eom|^
with his business promises *and verbal agree- [6li
ments; that no embargo was placed upoo
anyone purchasing or desiring to pnrduus
cattle at the yards, but a free and opoi mar-
ket was offered to all buyers and sellers ; UuU
the members of the oi^nization were en-
gaged in the business of buying and selling
caUle on the market, and were oompetitort
amon^ and against each other; that their
organization £d not restrain or interfere with
interstate or local commerce, and the memberi
did not monopolize or attempt to monopoUn
the business of buying and selling cattle at
Kansas City, nor did the organization in aay
manner tend to limit or decrease the nnmbcr
of cattle marketed at Kansas City, but that
it had the contrary effect ; that about eighlf
five per cent of the total receipts for the
years 1805, 1896, and 1897, at the Kaans
City market of cattle had been billed to the
Kansas City market alone for purposes d
sale there.
Other affidavits were presented to the turn
effect. Also the affidavit of the president of
the exchange. The president denied all alle-
gationa in relation to conspiracies to premt
other persons than members of the exchsage
from buying and selling cattle upon the Kaa-
sas City markets and on the contrary alleged
that in buying cattle the defendants were in
competition with each other, with the
sentative buyers of all the padring 1
with the repro»entatives of the varioos
mission merchants, who buy constantly tm
orders from a distance, and with others who
buy on orders on their own aocoxmt, none of
whom are members of the exchange, and that
with these various classes of buvers the 6i^
fendants constantly deal, and that in sell-
ing cattle they compete with each other aai
with shippers and commission merchants o^
f ering stock for sale on the market , that tbt
business in which these defendants are ca-
gaged is that of buyins and selling eattk
known as "stockers and feeders;** Uist the
business is purely local to that market; that
the defendants do not deal in quarantiBi
cattle subject to government inspectioB or
cattle shipped through to other markets, with
or without the privu^e of the Kansas City
market, nor in fat cattle sold on the kwsJ
market shipped to other states or to forci|ra
countries ; thr t except in rare instance* both
purchases and sales made *by the defeiidaati(^
are made from and to persons not members of
the exchange, and that in the judgment ef
the president about ninety-nine per cent «f
171 U-8.
MB.
ABDBBBOV T. UmITBD BtATBS.
fit
^ trmnsaetioiis hf the defendants are with
persons not members of the exchange.
A eopy of the articles of association is an-
Bsarad to the aiBdaTi^ which contains the fol-
lowmff preamble :
"We, the undersigned, for the purpose of
organizing and maintaining a business ex-
duLnge, not for pecuniary profit or gain, but
to promote and protect all interest connected
with the buying and selling of live stock at
the Kansas City Stock Yards, and to cultl-
▼ate courteous and manlj conduct towards
etch other, and give dignity and responsibil-
ity to yard traders, have associated ourselves
together under Ithe name of Traders' Live
Stodc Exchange, and hereby. aeree, each with
the other, that we will faithfully observe and
be bound by the following rules and by-laws
and such new rules, additions, or amend-
ments as may from time to time be adopted
in conformity with the provisions thereof
from the date of organization.'*
Rules 10, 11, 12, and 13 are as follows:
'^ule 10. This exchange will not recognize
iny yard trader unless he is a member of the
Traders' Live Stock Exchange.
Ilule 11. When there are two or more par-
ties trading together as partners, they snail
escb and aU of them be memben of this ex-
disnge.
'^ule 12. No member of this exchange shall
emDloy any person to buy or sell cattle unless
nidi person hold a certificate of memberi^p
in this exchange.
'^ule 13. No member of this exchange
shall be allowed to pay any order buyer or
salesman any sum of money as a fee for buy-
ing cattle from or selling cattle to such
party."
These are the rules which are spedallv ob-
noxious to the complainants, and are alleged
to be in their effect in violation of the Fed-
ersl statute above mentioned.
Messrs. B. E. Ball, /. P. Ryland, BJkdJohn
I. Peak, for appellants:
' Conceding all the facts charged in the bill,
e?en those in which the bill contradicts it-
self, the appellants are not engaged in, and
their organization does not relate to, inter-
state commerce.
Cos V. Brrol, 116 U. S. 517, 29 L. ed. 715;
Kidd V. Pearson, 128 U. S. 1, 32 L. ed. 346,
2 Inters. Com. Rep. 232 ; Brown v. Houston,
114 U. 8. 622, 29 L. ed. 257 ; Hynes v. BHggs,
41 Fed. Rep. 408; United States v. E, C,
Knight Co, 60 Fed. Rep. 306; Re Oreene, 52
F«Hi. Rep. 104; Broiof^ v. Maryland, 12
Wheat. 419, 6 L. ed. 078; Pittsburg d 8.
Coal Co. V. Bates, 156 U. S. 577, 39 L. ed.
539, 5 Inters. Com. Rep. 30.
No act or agreement of appellants, charged
in the bill, and no act or agreement not so
diirffed, but from the doing or enforcing of
which they are enjoined, constitute any vio-
lation of the act of Congress, or is otherwise
unlawful.
Prescoti d A. C. R. Co. v. Atchison, T, d
8. P. R. Co. 73 Fed. Rep. 438; Mogul 8. 8.
Co. V. McGregor, L. R. 23 Q. B. Div. 544 ;
Toledo, A. A. d N. M. R. Co. v. Pennsylvania
Co, 54 Fed. Rep. 730, 19 L. R. A. 387; Amer-
ican Live 8toclc Commission Co, v. Chicago
171 U. S.
Lft^e Stock Exchange, 143 111. 210, 18 L. It
A. 190; Dueler Watch Case Mfg. Co, t. B^
Howard Watch d Clock Co, 35 U. S. App.
16, 66 Fed. Rep. 637, 14 C. C. A. 14; Unitei
States V. Addyston Pipe d Steel Co. 78 Fed.
Rep. 712.
The decree is violative of the rLrhts secured
by the Fifth Amendment to the Constitution
of the United States, forbidding that any
person be deprived of liberty or property
without due process of law; and, if the act
of July 2d, 1890, is correctly construed by
the circuit court, it is itself violative of said
amendment.
Munn V. llUnoia, 94 U. S. 123, 24 L. ed.
83; Kuhn v. Detroit, 70 Mich. 534; State v»
OoodwiU, 88 W. Va. 179, 6 L. R. A. 621;
Chdoharles v. Wigeman, 113 Pa. 431; State
Y.Loomis, 115 Mo. 307, 21 L. R. A. 789;
Ritchie v. People, 155 HI. 108, 29 L. R. A.
79; Re Jacobs, 98 N. Y. 98, 50 Am. Rep.
636; People v. Oillson, 109 N. Y. 389; Cald-
toell V. Texas, 137 U. S. 697, 34 L. ed. 818 ;
Allgeyer v. Louisiana, 165 U. S. 578, 41 L.
ed. 832.
Messrs, John R. Walker and John JC.
Richards, Solicitor General, for appellee:
The transportation of persons from one
state into another is interstate commerce.
Norfolk d W, R, Co, v. Pennsylvania, 13(1
U. S. 114, 34 L. ed. 394, 3 Inters. Com. Rep.
178; Philadelphia d R, R. Co, v. PennsylvO'
nia, 15 Wall. 232, 21 L. ed. 146; The Daniei
Ball, 10 Wall. 557, 19 L. ed. 999; State,
Wolf, V. Pullman Palace Car Co. 16 Fed.
Rep. 193.
Telegraph messages passing over lines
from one state to another constitute a por-
tion of interstate commerce.
Western U. Teleg, Co. v. James, 162 U. 8»
650, 40 L. ed. 1105; Postal Teleg, Cable Co.
V. Charleston, 153 U. S. 692, 38 L. ed. 871,
4 Inters. Com. Rep. 637; Leloup v. Port of
Mobile, 127 U. S. 640, 32 L. ed. 311, 2 In-
ters. Com. Rep. 134; Western U. Teleg. Co,
V. Raiterman, 127 U. S. 411, 32 L. ed. 229,
2 Inters. Com. Rep. 59 ; Pensacola Teleg. Co.
V. Western U. Teleg. Co. 96 U. S. 1, 24 L.
ed. 708 ; Western U, Teleg. Co. v. Pendleton,
122 U. ?. 347, 30 L. ed. 1187, 1 Inters. Com.
Rep. 306; Western U. Teleg. Co. v. Texas,
105 U. S. 460, 26 L. ed. 1067; Western U.
Teleg. Co. v. Norman, 77 Fed. Rep. 13; St.
Louis V. Western U, Teleg, Co. 39 Fed. Rep.
59.
The right to import from one state into
another carries with it, by necessary impli-
cation, the right of sale at the place whero
the importation terminates.
Lyng v. Michigan, 135 U. 8. 161, 84 L.
ed. 150, 3 Inters. Com. Rep. 143; Leisy v.
Hardin, 135 U. S. 100, 34 L ed. 128, 3 In-
ters. Com. Rep. 36; Brennan v. Titusville,
153 U. S. 289, 38 L. ed. 719, 4 Inters. Com.
Rep. 58 ; Boioman v. Chicago d N, W. R, Co.
126 U. S. 465, 31 L. ed. 700, 1 Inters. Com.
Rep. 823; Cook v. Pennsylvania, 97 U. 8.
566, 24 L. ed. 1015; Welton v. Missouri, 91
U. S. 275, 23 L. ed. 847.
Not until merchandise in the original pack*
ages is once sold by the importer does it b^
come subject to taxation by the state.
30S
«u
SupRBMB Court of the Uhitbd States.
Oct. TniL
WeHng y. Mobile, 8 Wall. 110, 19 L. ed.
•is.
The right to bring an article into a state
fairies with it the riffht to sell it.
Bpellman t. New Orleans, 45 Fed. Rep.
9, 3 Inters. Com. Rep. 575; Re Harmon, 43
Fed. Rep. 372.
The buying, selling, and transportation in-
cident thereto, constitute commerce.
United States v. £?. C, Knight Co, 156 U.
S. 1, 39 L. ed. 325; Lehigh Valley B. Co. v.
Pennsylvania, 145 U. S. 192, 30 L. ed. 672,
4 Inters. Com. Rep. 87 ; Re Rahrer, 140 U. S.
545, 36 L. ed. 572; McGall v. California, 136
U. S. 104, 34 L. ed. 392; Bowman v. Chicago
d N, W. R. Co. 125 U. S. 465, 31 L. ed. 700,
1 Inters. Com. Rep. 823 ; Welton v. Missouri,
•1 U. S. 275, 23 L. ed. 347 ; W. A. Vander-
^ook Co, V. Vance, 80 Fed. Rep. 786.
The statutes of the state intended to regu-
late or tax, or to impose any other restric-
tions upon, the transmission of persons or
property, or telegraphic messages from one
state to another, are void.
Wabash, 8t, L, d P. R, Co, v. Illinois, 118
U. S. 557, 30 L. ed. 244, 1 Inters. Com. Rep.
31; Pickard ▼. Pullman Southern Car Co,
117 U. S. 34, 29 L. ed. 785.
No state can impose a tax on persons en-
l^ged in the sale of snoods in such state,
which* are introduced into the state from
other states
Walling v. Michigan, 116 U. S. 446, 29 L.
«d. 691 ; Cook v. Pennsylvania, 97 U. S. 566,
24 L. ed. 1015; Hall y,DeCuir, 95 U. S. 485,
24 L. ed. 547 ; Hannibal d St, J. R. Co. v.
Husen, 95 U. S. 465, 24 L. ed. 527 ; Welton
▼. Missouri, 91 U. S. 275, 23 L. ed. 347 ;
Ward V. Maryland, 12 Wall. 418, 20 L. ed.
449; Re Lebolt, 77 Fed. Rep. 587.
No state can, under any pretense what-
ever, interfere with the right of any person
who engages in interstate commerce, wnether
in the ^e of goods introduced into the stiCte
from other states, or in soliciting orders for
goods to be so introduced.
Ex parte Loeb, 72 Fed. Rep. 657 ; Southern
R. Co. V. Asheville, 69 Fed. Rep. 359; Em
parte Hough, 69 Fed. Rep. 330, 5 Inters.
Com. Rep. 327 ; Re Minor, 69 Fed. Rep. 233,
5 Inters. Com. Rep. 329: Aultman, M, d Co,
▼. Holder, 68 Fed. Rep. 467 ; Ew parte Scott,
66 Fed. Rep. 45 ; Re Schechter, 63 Fed. Rep.
695, 4 Inters. Com. Rep. 849; Re Mitchell,
62 Frd. Rep. 676, 4 Inters. Com. Rep. 767 ;
Re Worthen, 58 Fed. Rep. 467, 4 Inters. Com.
Rep. 484; Re Rozelle, 57 Fed. Rep. 155; Re
Ware, 53 Fed. Rep. 783; Re Sanders, 62 Fed.
Hep. 802, 18 L. R. A. 549, 4 Inters. Com. Rep.
305; Re McAllister, 51 Fed. Rep. 282; Re
Nichols, 48 Fed. Rep. 164; Re Tyerman, 48
Fed. Rep. 167 ; Re Houston, 47 Fed. Rep.
639, 14 L. R. A. 719; Re Kimmel, 41 Fed.
Rep. 776, 3 Inters. Com. Rep. 114; Adams
Exp, Co. V. Ohio State Auditor, 165 U. S.
194, 41 L. ed. 683 ; Osborne v. Florida, 164
U. S. 650, 41 L. ed. 686; Brennan v. Titus-
wlU, 153 U. S. 289, 38 L. ed. 719, 4 Inters.
Com. Rep. 668: Harman v. Chicago, 147 U.
S. 396, 37 L. ed. 216; Crutcher v. Kentucky,
141 U. S. 47, 36 L. ed. 649; Pullman*s Pal-
mce Car Co. v. Pennsylvania, 141 U. S. 18,
S5 L. ed. 613, 3 Inters. Com. Rep. 595; Ash-
804
er V. Texas, 128 U. S. 129, 32 L. ed. 368, t
Inters. Com. Rep. 241 ; Philadelphia ^ 8.
Mail S. S, Co, V. Pennsylvania, 122 U. 8i
326, 30 L. ed. 1200, 1 Inters. Com. Rep. 308;
Corson v. Maryland, 120 U. S. 502, 30 L.
ed. 699, 1 Inters. Com. Rep. 60 ; Rohbint t.
Shelby County Taxing Dist. 120 U. S. 481,
30 L. ed. 694, 1 Inters. Com. Rep. 45; Monm
V. New Orleans, 112 U. S. 69. 28 L. ed. 653;
Leloup V. Port of Mobile, 127 U. 8. MO, 3t
L. ed. 311, 2 Inters. Com. Rep. 134; Tks
Daniel Ball, 10 Wall. 557, 19 L, ed. 999;
Sinnot v. Davenport, 22 How. 227, 16 L ed.
243 ; Smith v. Turner, 7 How. 283, 12 L. ed.
702; Re Bell, 26 U. S. App. 379, 68 Fed.
Rep. 183, 16 C. C. A. 360.
The conduct and method of doing basioeas
by the members of this Traders* Live StO(dk
Exchange is an interference with interstatt
commerce, and the association is illegal.
Allgeycr v. Louisiana, 165 U. S. 578, 41
L. ed. 832; United States v. Trans-}Iis»<mn
Freight Asso. 166 U. R. 290, 41 L. ed. 1007:
Re Rahrer, 140 U. S. 546, 35 L, ed. 572.
*Mr. Justice Peckhain, after statii^ thei^
facts, delivered the opinion of the court:
There is really no dispute in regard to tht
facts in the case. Although the bill foi»>
tains various allegations in wgard to eov-
spiracies, agreements, and combinations i>
restraint of trade and in violation of thf
Federal statute, yet there is no e\"id«ice of
any act on the part of the defendanu pr*>
venting access to the yards or prevfntinf
purchases and sales of cattle by anyone,otber
than as such sales may be prevented bv tfat
mere refusal on the part of the defenaanti
as **yard traders" to do business with tbost
who are also yard traders, but are not neiB-
bers of the exchange, or with coinipi«i«i
merchants where such commission merchsnb
themselves do business with yard traders wte
are not members of the exchange. In other
words, there is no evidence and really m
charge against the defendants that tbey bs«t
done anything other than to form thi^ ex-
change and adopt and enforce the mle^ men*
tion^ above, and the question is whether b?
their adoption and by peacefully carryisf
them out without threats and without tio-
lence, but by the mere refusal to do bmines
witii those who will not respect their rvAm,
there is a violation of the Feder^ statute.
This case differs from that of HopkiuM t.
United States, ante, 290, in the fact that
these defendants ar& theraselveA ourchaMTf
of cattle on the market, while the aefenJaiti
in the Hopkins Case were only oomniicsiM
merchants who sold the cattle upon oobb^
sion as a compensation for their •eitiw.
Counsel for the government aaeert that
any agreement or combination amons buTin
of cattle coming from other states, of the at-
ture of the by-laws in question, is an afrc**
ment or combination in reetraint of iatn-
state trade or commerce.
The facts first set forth in the oomplAi*-
ants' bill, upon which to base the dain that
the business of defendants is interstate coa-
merce. we have already decided in the Ht
kins Case to be immaterial. The particnU'^
situation of the yards, partly in Kjin«« *^
171 V. t.
18W.
Amdbbson t. Umitbd Btatbs.
61S-619
ptrtly in Missouri, we there held was a fact
without any weight, and one which did not
13] make business interstate 'commerce which
otherwise would not partake of that charac-
ter.
There remain in the bill of the oomplain-
ants the allegations that the cattle come
from various states and are placed on sale
at these stock yards which form the only
available market for many miles around, and
that they are sold by the commission mer-
chants and are bougnt in large numbers by
the defendants who have entered into what
the complainants allege to be a contract,
combination, and conspiracy in restraint of
trade and commerce among the several states,
which contract, etc., it is alleged is carried
oot by defendants unlawfully and oppress-
ively refusing to purchase cattle from a com-
mission merchant who sells or purchases cat-
tle from any speculator (yard trader) who
is not a member of the exchange; and it is
further alleged that by these means the traf-
fic in cattle at the Kansas City stock yards
is interfered with, hindered, and restrained,
tnd extra expense and loss to the owner in-
curred, and that thereby the defendants
have placed an obstruction and embargo on
the marketing of cattle shipped from other
states. All these results are alleged to flow
from the agreement among the defendants as
contained in the by-laws of their association,
particularly those* numbered ten, eleven,
twelve, and thirteen, copies of which are set
forth in the statement of facts herein.
There is no evidence that these defendants
have in any manner other than by the rules
above mentioned hindered or impeded others
in shipping, trading, or selling their stock,
or that they have in any way interfered with
the freedom of access to the stock yards of
any and all other traders and purchasers,
or hindered their obtaining the same facil-
ities which were therein afforded by the
itock-yards company to the defendants as
members of the exchanfi;e, and we think ti^a
evidence does not tend to show that the
above results have flowed from the adoption
and enforcement of the rules and regulations
referred to.
In regard to rule 10, the question is
whether, without a violation of the act of
Congress, persons who are engaged in the
common business as yard traders of buying
I14]eattle at the *Kanea8 City stock yards, Tviiion
come from different states, may agree among
themselves that they will form an associa-
tion for the better conduct of their buei-
ness, and that they will not transact busi-
ness with other yard traders who are not
members, nor will they buy cattle from those
who also sell to yard traders who are r t
members of the association.
It will be remembered that the association
does no business itself. Those who are mem-
bers thereof compete among themselves and
with others who are not members, for the
purchase of the cattle, while the association
itself has nothing whatever to do with trans-
portation nor with fixing the prices for
which the cattle may be purchased or there-
after sold. Any yard trader can become a
member of the association upon complying
171 U. S. IT. 8., Book 43. 20
with its conditions of membership, and may
remain such as lon^ as he comports himself
in accordance with its laws. A lessening of
the amount of the trade is neither the neces-
sary nor direct effect of its formation, and ia
truth the amount of that trade has greatlT
increased since the association was formed,
and there is not the slightest evidence that
the market prices of catue have been lowered
by reason of its existence. There is no fea*
ture of monopoly in the whole transaction.
The defendants are engaged in buying what
are called "stockers and feeders;" being cat-
tle not intended for any other market, and
the demand for which is purely local. Th^
have arrived at their final destination wnen
offered for sale, and there is free and full
competition for their purchase between aU
the members ox the exchange, as well as be-
tween them and all buyers not members
thereof, who are not also yard traders.
With the latter the defendants will not com-
pete, nor will they buy of the commission
men if the latter continue to sell cattle to
such yard traders.
Have the defendants the right to aeree to
conduct their own private business m this
way?
whether there is any violation of the act
of Congress by the adoption and enforcement
of the other rules of the association, above
referred to, will be considered hereatter.
It is first contended on the part of the ap-
pellants that they *are not engaged in inter- [9 IS]
state commerce or trade, and that therefore
their agreement is not a violation of the act.
They urge that the cattle, by being takem
from the cars in which they were trans-
ported and placed in the various pens hired
by commission merchants at' the cattle yards
of Kansas City, and there set up for sale,
have thereby been commingled with the gen-
eral mass of other property in the state, and
that their interstate commercial character
has ceased within the decisions of this court
in Brown v. Houston, 114 U. S. 622 [29:
257], and Pittsburg d d. Coal Company t.
Bates, 156 U. 8. 577 [39:538],
On the other hand, it is answered that th«
cases cited involved nothinfi^ but the general
power of the state to tax all property found
within its limits, by virtue of eeneral laws
providing for such taxation, ^ere no tax
IS levied upon the article or discrimination
made against it by reason of the fact that
it has come from another state, and it is
maintained that the agreement in questioa
acts directly upon the subject of interstate
commerce and adds a restraint to it which ia
unlawful under the provisions of the stat»
ute.
In the view we take of this ease we ar«
not called upon to decide whether the de-
fendants are or are not engaged in interstate
commerce, because if it be conceded they
are so engaged, the agreement as evidenced
by the by-laws is not one in restraint of that
trade, nor is there any combination to mo-
nopolize or attempt to monopolize such trade
within the meaning of the act.
It has already been stated in the Hopkim
Case, above mentioned, that in order to come
within the provisions of the statute the di«
305
615-618
SuPBBMB Court of the United States.
Oct. Tehi;
TMt effect of an agreement or combination
most be in restraint of that trade or com-
merce which is among the scTeral states, or
with foreiffn nations. Where the subject-
matter of the agreement does not directly re-
late to and act upon and embrace interstate
commerce, and where the undisputeu facts
dearly show that the purpose of the agree-
ment was not to regulate, obstruct, or re-
strain that commerce, but that it was en-
tered into with the object of properly and
fairly regulatinff the transaction of the busi-
ness in which the parties to the agreement
were engaged, such agreement will 1^ upheld
I€16]as *not within the statute, where it can be
seen that the character and terms of the
agreement are well calculated to attain the
purpose for which it was formed, and where
the effect of its formation and enforcement
upon interstate trade or commerce is in any
event but indirect and incidental, and not iU
purpose or object. As is said in Smith ▼.
AUAama, 124 U. S. 465, 473 [31; 508, 610,
1 Inters. Com. Rep. 804] : "There are many
cases, however, where the acknowledjs^ed
powers of a state may be exerted and appned
m such a manner as to affect foreign or inter-
state conunerce without beinff intended to
operate as commerdal regulations." The
same is true as to certain kinds of agree-
ments entered into between persons en^Lged
in the same business for the direct and bona
fide purpose of properly and reasonably regu-
lating the conduct of their business among
themselves and with the public If an agree-
ment of that nature, wnile apt and proper
for the purpose thus intendea, should pos-
sibly, thougn only indirectly and uninten-
tionally, affect interstate trade or commerce,
in that event we think the afp*eement would
be good. Otherwise, there is scarcely any
agreement among men which has interstate
or foreign commerce for its subject that may
not remotely be said to, in some obscure way,
affect that commerce and to be therefore
void. We think, within the plain and ob-
vious construction to be placed upon the
act, and following the rules in this regard
alreadv laid down in the cases heretofore
decided in this court, we must hold the agree-
ment under consideration in this suit to be
valid.
From very early times it has been the cus-
tom for men engaged in the occupation of
buying and selling articles of a similar na-
ture at any particular place to associate
themselves together. The object of the asso-
ciation has in many cases been to provide
for the ready transaction of the business of
the associates by obtaining a general head-
quarters for its conduct, and thus to insure
a quick and certain market for the sale or
purchase of the article dealt in. Another
purpose has been to provide a standard of
business integrity among the members by
adopting rules for just and fair dealing
among tiiem and enforcing the same by pen-
alties for their violation. The affreements
[•17]have been voluntary, and the *peniQties have
been enforced under the supervision and by
members of the association. The preamble
adopted by the association in this case shows
the ostensible purpose of its formation. It
3oe
was not formed for pecuniary profits, and a
careful perusal of the whole agreement fsili,
as we tnink, to show that its purpose wst
other than as stated in the preamble. la
other words, we think that the rules adopUi
do not contradict the expressed purpose of
the preamble, and that the result natunlly
to be expected from an enforcement of the
rules would not directly, if at all, affect m-
terstate trade or commerce. The agreement
now under discussion differs radioQly frai
those of United States v. JeUico Monmt^im
Coal d Coke Company, 46 Fed. Rep. 432 [I
Inters. Com. Rep. 626, 12 L. R. A. 753) ;
United States v. Coal Dealers* Association,
85 Fed. Rep. 252, and United States v. i^
dyston Pipe d Steel Company [54 U. S. App.
723], 85 Fed. Rep. 271. The agreement la
all of these cases provided for fixity tlie
prices of the articles dealt in by the different
companies, being in one case iron pipe for
gas, water, sewer, and other purposes, and
coal in the other two cases. If it were eon-
ceded that these cases were well decided,
the^ differ so materially and radically in
their nature and purpose from toe case under
consideration that they form no basis for its
decision. This association does not meddle
with prices and itself does no business. !■
refusing to recognize any yard trader who is
not a member of the exchange, we see no pttr>
pose of thereby affecting*or in any manner
restraining interstate commerce, whidi. if
affected at all, can only be in a very indireet
and remote manner. Ine rule has no direct
tendency to diminish or in any way impede
or restrain interstate commerce in the cat-
tle dealt in by defendants. There is no tend-
ency as a result of the rule, directly or in-
directly, to restrict the competition ainonf
defendants for the class of cattle dealt in by
them. Those who are selling the cattle have
the market composed of defendants, and also
composed of the representative buyers <^ all
the packing houses at Kansas City, and also
of the various commission merchants who are
constantly buying on orders and of Ummo
who are buying on their own aecount. Hiis
makes a large competition wholly outside of
the defendants. The owner of ^cattle for •aW[6U|
is therefore furnished with a market at
which the competition of buyers has a bread
effect. All yard traders have the opportn<
nitv of becoming^ members of the exchaaft,
and to thus obtain all the advantages tb^
of.
The desiffn of the defendants evidently it to
bring all tne yard traders into the associa-
tion as members, so that th^ may bceone
subject to its jurisdiction and be compclM
by its rules and regulations to transact besi-
ness in the honest and straightforward man-
ner provided for by them. If, while enfor^
ing the rules, those members who use i«-
proper methods or who fail to conduct their
business transactions fairly and honestly srt
disciplined and expelled, and thereby the
number of members is reduced, and to that
extent the number of competitors limited,
yet all this is done, not with the intent er
purpose of affecting in the slightest defne
interstate trade or commerce, and such trade
171 U. ••
189a
NOBTHWBSTBBN NATIONAL BaITK T. F&BBMAN.
61&-6M
or oommeroe oan be affected thereby onlj
most ronotely and indirectlj, and if, for tbe
porpoee of compelling this membership, the
association refuse business relations with
those commission merohante who insist upon
bluing from or selline to yard traders who
ire not members pf the association, we see
nothing that can be said to affect the trade
or oommeroe in question other than in the
most roundiUx>ut and indirect manner. The
tgreement relates to the action of the asso*
dttes themselves, and it places in effect no
t&x upon any instnmient or subject of com-
merce; it exacts no license from parties en-
gaged in the commercial pursuits, and pre-
scribes no condition in accordance with
which commerce in particular articles or be-
tween particular places is required to be con-
ducted. Sherlock v. Ailing, 93 U. S. 99 [23:
819] ; Smith T. Alabama, 124 U. S. 465, 473
[31: 508,510] ;Pitt8burg d 8. Coal Company
▼. Louisiana^ 156 U. S. 590, 598 [30: 644,
548, 5 Inters. Com. Rep. 18].
If for the purpose of enlarging the mem-
bership of the exchange, and of thus procur-
ii^ the transaction of their business upon
a proper and fair basis by all who are en-
gaged therein, the defendants refuse to do
business with those commission men who sell
to or purchase from yard traders who are
not members of the exchange, the possible
iSJeffect of such a course •of conduct upon in-
terstate c<nnmerce is quite remote, not in-
tended, and too small to be taken into account.
The agreement lacks, too, every ingredient
of a monopoly. Everyone can b^me a
member of the association, and the natural
desire of each member to do as mu<^ busi-
ness as he could would not be in the least
diminished by reason of membership, while
the business done would still be the individ-
ual and private business of each member,
and each would be in direct and immediate
competition with each and all of the other
members. If all engaged in the business
were to become mem&rs of the association,
yet, as the association itself does no business,
it can and does monopolize none. The
amount and value of interstate trade is not
at all directly affected by such membership ;
the competition among the members and
with others who are seeking purchasers
would be as large as it would otherwise have
heen, and the only result of the agreement
would be that no yard traders would remain
who were not members of the association.
It has no tendency, so far as can be gathered
from its object or from the lan&;uage of its
rules and regulations, to limit the extent of
the demand for cattle or to limit the number
of cattle marketed or to limit or reduce their
price or to place any impediment or obstacle
m the course of the commercial stream which
flows into the Kansas City cattle market.
While in case all the yard traders are not
induced to become members of the associa-
tion, and those who are such members re-
fuse to recognize the others in business, we
can see no such direct, necessary or natural
connection between that fact and the re-
straint of interstate commerce as to render
the agreement not to recognize them void for
171 V.U.
that reason. A claim that such refusal may
thereby lessen the number of active traders
on the market, and thus possibly reduce the
demand for and the prices of the cattie there
set up for sale, and so affect interstate trade,
is entirely too remote and fanciful to be ac-
cepted as valid.
This case is unlike that of Hopkina v. Oa»
ley Stave Company [49 U. S. App. 709] 8S
Fed. Rep. 912, to which our attention has
been called. The case cited was decided with-
out reference to the act of Congress *upon[6SO]
which alone the case at bar is prosecuted,
and the agreement was held void at common
law as a conspiracjr to wrongfully deprive
the plaintiff of its right to manage its ousi-
ness according to the dictates of its own
judgment. It was also said that the fact
could not be overlooked that another object
of the conspiracy was to deprive the public at
large of the b^efits to be derived from a
labor-saving machine which seemed to the
court to be one of great utility. No question
as to interstate commerce arose and none was
decided.
From what has already been said regard-
ing rule 10, it would seem to follow that the
other rules (11, 12, and 13) are of equal va-
lidity as rule 10, and for the same reasons.
The rules are evidently of a character to en-
force the purpose and object of the exchange
as set forth in the preamble, and we thimc
that for such purpose they are reasonable
and fair. They can possibly affect interstate
trade or commerce in but a remote way, and
are not void as violations of the act of Con-
gress.
We are of opinion, therefore, that the
order in this case should he reversed and the
case remanded to the Circuit Court of the
United States for the Western Division of
the Western District of Missouri with direc-
tions to dismiss the complainants' bill with
costs.
Mr. Justice Harlan dissented.
Mr. Justice MoKeaaia took no part in th«
decision of this case. •
NORTHWESTERN NATIONAL BANK,
Riordan Mercantile Company, and Ari-
zona Lumber & Timber Company, Appta.^
V,
B. N. FREEMAN, F. L. Kitaball, and J. H.
Hoskins, Copartners, as the Arizona Cen*
tral Bank, and John Vories.
(Sec S. C. Reporter's ed. 620-681.) I
Chattel mortgage; when valid — notice to
auheequent assignee — mortgage of domes*
tie animals.
1. A chattel mortgage of a given number of
articles out of a larger number is valid as
against those who know the facta
2. The record of a chattel mortgage to other
mortgagees is not notice to an assignee of a
subsequent mortgage: but he la chargeable
with notice of the record of a prior mortgage
on the same property by the same mortgagor
to his assignor.
807
621-023
Supreme Court of the United Stateiw
Oct. ItaEM.
t ■
8. A mortgage of domestic animals coTen
their increase, although it is silent as to snch
Increase.
[No. 18.1
Argued April IS, 18, 1898. Decided October
24, 1898.
APPEAL from the Supreme Court of the
Territory of Arizona to review a judg-
ment of that Court affirming a judgment of
the District Court of that Territory in favor
•f the appdlees, B. N. Freeman et al., decid-
ing the priority of mortgages, etc
Statement by Mr. Justice MoKenna:
[621] *The appellees recovered judgment in the
district court, which was affirmed on appeal
to the supreme court of the territory, from
which an appeal has been taken to this
eourt.
The facts found by the territorial supreme
•ourt are as follows:
•"On July 10, 1890, Harry Pulton, one of
the defendants in the court below, executed
an alleged chattel mortgage for $7,500, pay-
able in one year, in favor of the Arizona
Central Bank, one of the appellees herein
and plaintiffs in the court below; that the
description in said mortgage of the property
purporting to be covered by it is as follows:
'1,200 lainbs, marked, ewes with hole in left
ear and split in right, wethers, hole in right
ear and split in left ear; 1,600 ewes marked
hole in left ear and split in right ear ; 2,200
wethers marked hole in right ear and split
in left ear, makine 5,000 sheep in all with
the Fulton brand."
"That on said day said Fulton executed
another alleged mortgage for $4,000, pay-
able in ninety days, in favor of John Vories,
one of the appellees herein and one of the
defendants in the court below; that the de-
scription in said alleged mortgage is as fol-
lows: 'Wethers and dry ewes to the num-
ber of 1,000, tht wethers marked with a split
in the left ear and a hole in the right ; ewes
marked with a hole in the left ear and a
split in the ri^ht.'
"That on said day said Fulton owned and
possessed 6,200 sheep that were herded and
run together, and this was all he owned,
said sheep being marked as follows: 'Ewes
and ewe lambs split in the risht ear, hole in
the left; wethers and wether lambs reverse;*
and both of the said appellees had knowled^
of this fact at the time they accepted their
alleged mortgages, the one on 5,000 head and
[M2]the other on 1,000 head, 200 head *not being
included in either of said mortgages, all of
said sheep having the same mark and run-
ning in the same herd, and none of them
being capable of identification save only by
the ear mark put on them as aforesaid, ana
that therefore there was no wi^ by which
any of said sheep could be distinguished
from any of the others.
"That said Fulton continued In the owner-
•ship and possession of all of said sheep, save
•only such as died, were sold by him, con*
«umed, or lost, until the 18th December,
1803. At no time did appellees, or eitlier of
them, ever take or ever nave possession of
said sheep, or any of them, or of the increase
308
thereof, nor were any of said sheep or tlie in-
crease thereof ever by anyone identified,
desi^ated, or in any way segregated, ap-
portioned or substituted to the or on aooount
of the said pretended mortgages, or of ^thcr
thereof. From date of said mortgages (July
10, 1890) to Januarv 4, 1893, said Foitoa
from time to time sold of said sheep as fol-
lows: 1,700 head, at $3 per head, that were
by said Fulton accountea for, and the pn>>
ceeds of which he deposited with the ap-
pellee Arizona Central Bank; that both e<
said appellees knew of these sales and coa-
sented to them.
"On January 4, 1893, said Fulton execatcA
a mortgage for $8,885 in favor of Ariaans .
Lumber & Timber Company, one of ap- i
pellants herein and one of the defendanu
m the court below, covering, among other
property, the following described sheep:
^About 3,000 ewes, 1.000 wethers, and 2,00*
lambs, same being all the sheep now owned
by mortgagor, and including all wool and
increase which may be produced by said
sheep marked, ewes, split in right ear, hok
in left; wethers reverse.' At the instance
of appellees said appellant, Arizona Lumber
& Timber Company, permitted the followinf
recital to be inserted in said last-mentioned
mortgage, namely: 'This being subject to a
mortgage on 5,000 of above sheep to Ariioiu
Central Bank, and one on 1,000 head, aad
the residence propertv to John Vories, said
number, as described in mortgages, to W
kept good out of increase.' There was coa-
siaeration for the foregoing recital in the
mortgage of Januarv 4, 1803, namely, that ,
the appellees should forbear *to foredow^i^
their mortgages, and should release tneir
claim on the wool clip of 1893, the wool at
that time not having been shorn.
"That to August 30, 1893, $3,000 of the
amount claimed to be due on the mortgaft
of January 4, 1893, was paid out of ▼»!
proceeds, and that on said day said Fultoa,
tor the purpose of securing a $500 adranct,
and applying the remainaer as a paynwat
on said mortgage of January 4, 18M, txt-
cuted his promissory negotiable note, pay*
able in ninety days, securing the same by a
chattel mortgage for the sum of $6,000 to
the Arizona Lumber k Timber Company.
"That said mortgage was a conveyance, as
a security for the payment of said note, ol
sheep, the same being in said mortgage <W-
scribed as follows, namely: *Aboat Z£0$
ewes, more or less; about 1,300 wethen,
more or less; about 1,400 lamba, moc« or
less, being all the sheep now owned by nort-
ga^or, including all tne wool and ineresst
which may be produced by said sheep,'
marked, ewes and ewe lambs, split in nrtt
ear, hole in left; wethers and wetho^ lam,
reverse.'
'That in said last-mentioned morCgage »
recital or reference was made in any vay,
nor in any manner, to the existence of »if
other mortgage or mortgages wbataoerrr.
"That on the 29th day of September, ISSl.
and prior to the maturity of said last-iw»-
tioned note of $6,000, said appellant Ari»M
Lumber & Timber Company, represcotuif
that said mortgage was a first and prior tin
171 V. t.
^. . I
1898.
NOBTHWEBISBH NATIONAL BaNX T. FbBBMAN.
828-886
•B said described sheep, and bj mtans there-
of, sold, assigned, indorsed, and delivered
said note and mortgase to the Northwestern
National Bank, one of the appellants herein
and one of the d^endants in tne court bdow,
said Northwestern National Bank becoming
an innocent purchaser for value.
'That on December 18, 1803, said Fulton,
being then indebted to Riordan Mercantile
Company, one of the appellants herein and
a defendant in the court below, in the sum of
$810.91, it brought its action in said district
court against said Fulton whereby to collect
the same, and at the same time caused to be
i&sued out of the clerk's office of said court a
writ of attachment, which was then levied
R4J)n the property following, *namely : *A11 the
right, title, and interest of the defendant
Harry Fulton in and to the following-de-
scribed sheep: 2,026 ewes, marked hole in
left ear, split in right; 000 wether sheep,
marked hole in right ear, split in left ear;
1J287 lambs, ewe lambs marked hole in left
ear, split in right, wether lambs marked
hole m right ear, split in left; 118 rams,'
tame being all of the sheep then owned by
laid Fulton.
That on I6th March, 1804, judgment was
rendered in said suit in favor of said plain-
tiff company and a^inst said Fulton, for
said amount, and said attachment lien was
foreclosed; that on the 31st day of March,
1894, the sheriff of said county of Coconino,
by virtue of and pursuant to said judgment,
sold said property and delivered the same to
the appellant Riordan Mercantile Company,
vho then entered into the possession there-
of, was so in the possession thereof when this
cause was tried m the lower court, and are
still in possession thereof.
"That by virtue of said writ of attach-
ment the sheriff attached all the sheep then
owned by said Fulton, and that on said day,
to wit, on the 18th day of December, 1893,
there were of said sheep only 1,000 head of
ewes remaining out of all the sheep that ex-
isted on July 10, 1890, the date of said al-
leged mortgages to appellees; that the re-
mainder of said ewes, all the male sheep and
the lambs, had by that time died, been con-
ffomed, sold, or lost.
'That subsequent to the making of said al-
leged mortgages to said appellees, an oral
agreement between them and the said Fulton
was made that the securities of appellees
were to be kept good out of the increase by
substitution, the consideration therefor be-
ing that said Fulton might sell and dispose
of the said sheep without interference from
appellees.
'^at Sisson, a witness for appellants in
this case, is and was during all of said trans-
actions the treasurer of both the Riordan
Mercantile Company and the Arizona Lum-
ber & Timber Company, appellants herein,
and that these two corporations have prac-
tically the same officers.
'That in said district court said Arizona
Oentral Bank brought its suit as plaintiff
against said Fulton, Vories, Donahue as sher-
^ iff, the Arizona Lumber & Timber Company,
*^^e *Riordan Mercantile Companv, and the
Northwestern National Bank, as defendants,
171 U. 8.
asking for a foreclosure of its said aUesed
mortgage, the same being the above-entiued
'That said action was tried and judgmoit
was rendered foreclosing said alleged mort-
gages of both of appellees herein and also
the said mortage dated January 4, 1803, of
said Arizona Lumber & Timber Company and
the mortgage owned by said Northwestern
National Bank as aforesaid, in which said
i'udgment said court adjudged that appellees
lave a prior and first lien on said property,
tHSf., the Arizona Central Bank upon 5,000
sheep of the Fulton mark by reason of its
said mortgage and the said Vories on 1,000
sheep of uie Fulton mark by reason of his
said mortgage; and said court decreed and
ordered that an order of sale issue for the
sale of all of said property to the sheriff of
said coimty, and that the proceeds arising
therefrom be divided by the sheriff and ap-
plied as follows, namely, at the ratio of five
dollars to said Arizona Central Bank and one
dollar to said Vories; that in case anything
should be left after the payment of said two
mortgages to said bank and Vories, the same
should be applied to the payment of the judg-
ments of said Northwestern National Bamc
and said Arizona Lumber & Timber Company
and Riordan Mercantile Company in the or*
der named."
There are sevateen assignments of errors,
which are somewhat confused. They ar«
grouped and presented by counsel under
seven heads as follows:
"First. In the first assignment of error
it is set forth that the tri^ court erred in
adjudging, and the territorial supreme court
erred in affirming said judgment, that the
mortgages of the appellees were prior liens
on aZZ of the sheep owned by defendant Ful-
ton at the time of the es^ecution of said mort-
gages, even though said mortgages had been
good and prior liens on the sheep specified
therein.
"Second. In the second, third, fifth, and
eighth assi^Timents of error it is set forth
that the trial court, and the territorial su-
preme court in sustaining its holding, erred
m admitting in evidence the mortgages from
defendant Fulton *to the appelleee, marked[626]
Exhibit 'A' and 'B,' against the objections of
the appellants, and in overruling motion of
appellants to strike out of the evidence the
said mortgages, and in holding that said
mortgages were valid and subsisting liens
on all of said property, and in holding and
deciding that the description of said property
in appellees' said mortgages was a sufficient
description.
"Third. In the fourth and seventh assign-
ments it is set forth that the court erred in
admitting, over the objection of the appel-
lants, testimony concerning a conversation
between J. H. Hoskins, John Vor.ies, F. W.
Sisson, and Harry Fulton, and evidence rela-
tive to an alleged agreement, and evidence
tending to prove a breach of contract between
the appellees and appellant Arizona Lumber
& Timber Companv.
"Fourth. The trial court erred, as set forth
in the fifteenth and sixteenth assigmnents,
300
636»627
SUPBBHB COUBT OF THB UnITBD StATXS.
Oct. Tmc,
in adjudging that on the date of its decree
herein the mortgage of said appellee btcnk
covered five thousand head of sheep of the
Fulton herd and mark, such adjudication at-
tempting to substitute five thousand head of
•heep after the making of said two mort-
gages to appellees; the trial court erred in
Al)temptinff aaid saftwtitutlan, and then hold-
ing it good as to appellants Riordan Mercan-
tile Company, and Northwestern National
Bank.
"Fifth. The trial court erredi as set forth
in the eleventh assignment, in adjudging that
si^d mortgages of appellees were mere se-
curities for debts, the legal title to said sheep
remaining in said Fulton, notwithstanding
said mortgaffes, and in adjudging that said
sheep should be sold and the proceeds paid
to said Arizona Central Bank and said Vor-
ies, in the proportion of five dollars to the
former and one to the latter.
"Sixth. The trial court erred, as set forth
in the seventeenth assignment, in adjudging
that appellant Northwestern National Bank
was bound by said pretended agreement of
substitution or was bound by said pretended
mortgages of appellees, or that said mort-
gages were prior liens on said property, or on
any of it, to the mortgage owned by said ap-
pellant.
"Seventh. In the sixth, ninth, tenth,
[627Jtwelfth, thirteenth, *and fourteenth assign-
mente it is set forth that the court erred in
denying and overruling defendante' motion
for a new trial of said cause ; and in decidinjs;
that the mortfi^ige to said appellee, the An-
sona Central mnk, conveyed five thousand
head of sheep, marked: ewes with hole in
left ear and split in right, wethers with hole
in right ear and split in left ear, and that
a thousand more of said sheep were conveyed
by mortgage to said appellee Vories, with the
same marlu ; and in adjudging that the prop-
erty included in the said attachment lien of
the said Riordan Mercantile Company and
sold and delivered to said company thereun-
der was the same property that is conveyed,
or attempted to be conveyed, by the mort-
gages of said appellees; and in adjud^ns
that the rights, title, and interests obtained
bv said Riordan Mercantile Company, by
virtue of said attachment lien and sale, was
subject to the alleged righto of said appellees
by virtue of their said pretended mortgages ;
and in adjudging that appellante Riordan
Mercantile Company and Arizona Lumber ft
Timber Company had actual notice of the
property convoyed by the said alleged mort-
Mtges <n Mid appellees; and in adjudging
&at F. W. Sisson, as the treasurer <n
said Riordan Mercantile Company, agreed
with said appellees that the number of sheep
in said mortgages of appellees bhould be
kept good out of the increase of said
sheep, and that the wool was released
bv said agreement to said company, and that
the consideration thereof was an alleged for-
bearance to foreclose said mortgages of said
appell
t»
Me$9ra, A. B. Browne, B, B. Ellentoood,
and A* T. Briiton, for appellants:
A chattd mortgage must contain terms
810
of description that will serve to distii^mtk
the property embraced therein from lU
other prope^ of tiie same kind.
' Pingree, CAat. Mortg. S 142.
Where there is a larger number of Urn
same kind in the possession of the mort-
gugor, and no particular description olber-
wise than thai applicable to all of thAt
class, nor an^ selection nor delivery, lor
any specification as to which are intended
out of a larger lot on hand, such mortgige
will be ineff^ual to pass any title to toy
particular property, <Hr any interest in tht
property on hand.
Stonebraker v. Ford, 81 Mo. 538; FowUr
V. Hunt, 48 Wis. 345; Richardaon v. IJpAM
Lumber Co. 40 Mich. 203 ; Blak^y v. Ptt-
rick, 67 N. C. 40, 12 Am. Rep. 600; KeOv ▼.
Reid, 57 Miss. 80 ; Parsons 8av. Bwk t.
Sargent, 20 Kblq. 576; Rood v. Wefdk, 28
Conn. 157; Neu?ell v. Warner, 44 Barb. 258;
Payne v. Wilson, 74 N. Y. 348.
There can be no a^eement by the ptrtieiw
which will bind otners, that there thaH
be a substitution of other property for tk&t
first specified.
Button v. Amett, 51 HI. 198; EUiott ▼.
Long, 77 Tex. 467.
That the mortgages were to be kept good
cut of the increase oy substitution, the eoe-
sideration therefor being that PuHon migbt
sell and dispose of the sheep without inter-
ference from appellees, would of itaelf ri»
der the mortgage abeoluteh* vmd.
Peiser v. Pettcolas, 50 Tex. 638, 32 Am.
Rep. 621.
The increase of the sheep attempted to be
mortgaged, if there were increase, woul3
tberMore not be covered thereby.
Winter v. Landphere, 42 Iowa, 471; li^
Hght V. Dodge, 64 Vt 502; Darling v. WO-
son, 60 N. H. 59, 49 Am. Rep. 305; Rogen ?.
Oage, 59 Mo. App. 107.
Substituted properly is not held by virtM
of the mortgage, but by viitue of the a^itf-
ment of the parties, whereby an equiublt
lien, co^izable only in a oourt of eqnitji
arises m favor of the mortgagee.
Pom. Eq. Jur. | 1235; i6fif»iiiwm« v. Jm-
kins, 76 111. 479.
There can be no substitution or exckaagt
of property by the parties to the mortgifrt*
that will bind third parties, unless the mort-
gagee takes actual possession of the rab-
stituted articles before the rights of tkird
parties intervene.
Pom. Eo. Jur. 9 726; Hunt v. BuUocL tS
111. 320; Pou)ers v. Freeman, 2 Lan*. 127:
Titus V. Jf a^^e, 25 111. 257 ; Rhines v. FMf^
8 111. 465.
Where an equitable mortgaffe is cUin^
as the result of an agreement, Uiere must be«
at the time such agreement H made, ncfc
identification of the property that the eqti^-
able mortgagee may see with a reaaonsbit
degree of certainty what property it is tktt
is subject to his lien.
Payne v. Wilson, 74 N. Y. 352; VnMU t.
Warner, 44 Barb. 258.
To be held in equity, the deteriptioa rf
the property mortgaged must be oertaia.
Hughes v. Menefee, 29 Mo. App. 192; If*'"
riU V. yoyes, 56 Me. 458, 9C Am. Dec 481
i7iir.t.
r
im.
NOBTHWSSTEBN NATIONAL BaNK Y. FbBEMAK.
C27-629
Tlie eUim of tiie mortgage is to be enforced
on the identioal property included in the
BM>rtgage.
KOly V. Reid, 57 Mise. 80.
Upon breach of the conditione the mort-
gagee may take possession of the property,
•DQ henceforth treai it as his own. He
may sell it or give it away, squander or des-
troy it.
Eeyland T. Badger, 35 Cal. 404; Wright
T. Bo9s, 3G Cal. 414; Pom. Eq. Jur. 9 1229;
Parskallv. Eggert, 64 N. Y. 18; Blake y.
Corhett, 120 N. Y. 327; Tompkins v. Batie,
11 Neb. 147, 38 Am. Hep. 361.
Messrs, Fred Herrlnston and Case B,
Berrington, for appellees:
A mortgage of a certain number out of a
laiger numMr is not void.
Oauheer t. Watt, 01 Tex. 124; Leighton
T. Stuart, 19 Neb. 546; Frost ▼. Citizens'
Vat. Bank, 68 Wis. 234 ; Chtrley r. Davis, 30
Ark. 394.
Such mortgage is good as to parties hav-
ing notice.
Clapp V, Trowbridge, 74 Iowa, 550.
The rights of appellants are to be deter*
mined by the circumstances existing at the
time their rights were acquired.
Cole ▼. Qreen, 77 Iowa, 307; Interstate
^Qlloway Cattle Co, ▼. MoLain, 42 Kan. 680.
Appellee bank's mortgage covered the in-
crease.
Pyeatt v. Powell, 10 U. S. App. 200, ill
Fed. Rep. 551, 2 C. C. A. 367; Arkansas
VaUey Land d Cattle Co, ▼. Mann, 130 U.
8. 78, 32 L. ed. 857; Fowler v. MerHU^ 11
How. 375, 13 L. ed. 736 ; Cahoon y, Mters,
67 Md. 573 ; Meyer ▼. Cook, 85 Ala. 417 ;
Funk y, Paul, 64 Wis. 35, 54 Am. Rep. 576.
Where two mortgages are of record, one
of which correctly describes the property
and refers to the other as being upon the
Mme property, the description of such other
niort^i^ is rendered definite, and the reoord
M sufficient to impart notice to the world.
Tompson y. Anaerson, 94 Iowa, 554 ; Neuh
mnn y. Tymeson, 13 Wis. 172, 80 Am. Dec
735.
Means of knowledge, with the duty of
ii;ing them, are in equity equivalextt to
knowledge itself.
Cordova ▼. Hood, 17 Wall. 1, 21 L. ed.
587.
The holder of a mortgage "in terms" made
•object to another mortgage cannot defeat
it upon technical grounds.
Eaton y. Tuson, 145 Blass. 218; Flory ▼.
Comstock, 61 Mich. 522; Oammon v. Bull,
86 Iowa, 754 ; Cassidy y, Harrelson, 1 Colo.
App. 458; Clapp y, Halliday, 48 Ark. 258;
Eoagland ▼. Shampanore, 37 N. J. Eq. 588.
A written agreement, although noi signed
bj the parties, will, if orally assented to by
tbem, constitute t^e agreement between
theoi.
Dutch ▼. Mead, 4 Jones & S. 427 ; Farmer
y. Gregory, 78 Ky. 475; Bacon y, Daniels,
37 Ohio St. 279.
A party is presumed to have actual notice
and to have consented to all that appears in
bis own conveyance.
Finley ▼. Simpson, 22 N. J. L. 311, 53 Am.
Dec. 252.
171 U. 8.
*After stating the case, Mr. Justice Mo-[M7]
deliver^ the opinion of the court:
The contest is for priority. The terri-
torial supreme court awarded it to the mort-
gages of the appellees. The appellants *ooa*[6M]
tend that this was error because of the fact
that the mortgages respectively covered
5,000 and 1,000 head of sheep, and that Ful-
ton owned 6,200 head, and that hence the
mortgages were invalid on account of insuffi-
cient descriptions. The mortgages do not
state that Fultcm owned a greater number
than those he mortgaged, but the fact if
found by the court.
The rule is laid down that, as to third
persons who have acquired interests, a de-
scription in a mortgage of a eiven number of
articles out of a larger number is not suffi-
cient. Jones, Chatt. Mortg. 99 ^^ ^* '^'9
and cases cited.
But such a mortgage is valid against those
who know the facts. Cole y, Qreen, 77 Iowa,
307 ; Clapp v. Trowbridge, 74 Iowa, 550.
The mortgage of January 4, 1893, executed
by Fiilton to the Arizona Lumber k Timber
Company was undoubtedly taken by the lat-
ter, not only with actual notice, but it was
expressly made subject to the prior ones to
appellees. The fincunff of the court is: "At
the instance of appellees said appellant,
Arizona Lumber k Timber Companv, per-
mitted the following recital to be in-
serted in said last-mentioned mortgage,
namely: rThis being subject to a mortgi^
on 5,000 of above sheep to Arizona Central
Bank, and one on 1,000 head, and the resi-
dence propertjr to John Vories, said number,
as described in mortgages, to be kept good
out of increase.' There was consideration
for the foregoing recital in the mortgage of
January 4, 1893, namely, that the appdlees
should forbear to foreclose their mor^ges,
and should release their claim on the wool
clip of 1893, the wool at that time not having
been shorn."
The court further finds that on August
30, 1893, Fiilton paid to the Arizona Lumber
k Timber Company $3,000 out of the proceeds
of the wool from the mortgaged sheep, se-
cured from the company an advance of $500,
and for that and the amount due on his noto
"executed his negotiable promissory noto
payable in ninety days, securing the same
by a chattel mortgage for the sum of $6,000.''
In this mortgage there was no recital or ref-
erence to the existence of anv other mort-
gage. On the 29th of September, 1893, and
prior to this 'maturity, the "appellaiit, the[620]
Arizona Lumber k Timber Company, repre-
senting that said mortgage was a first lien,
sold, indorsed, and delivered the note and
mortgage to the appellant the Northwestern
National Bank." It is this note and mort-
gage that are in controversy and which are
claimed as prior liens to the mortgages of
appellees. The bank is found to be an inno-
cent purchaser for value. By this is meant
that it had no actual notice of the prior
mortgages. Did the law impute notice to itt
Certainly not by the record of the mortgages
to appellees. Did it by the record of the
mortgage of January 4, 1893, to the Arizona
811
620-631
Supreme Coubt of the United StatbSw
Oct. TBn^
t '
Lumber & Timber Company? If the bank
was charged with notice of that mortgage it
was charged with notice of its contents. "No-
tice of a deed is notice of its whole contents,
■o far as they affect the transaction in which
notice of the deed is acquired." [Hamilton
T. Royae] 2 8ch. & Lef. 315, cited and ap-
proved in Bogga ▼. Vamer, 6 Watts A S. 473.
A purchaser is charged with notice of every
fact shown by the records, and is presumed
to know every other fact which an examina-
tion suggested by the records would have dis-
closed. Sees. 710 and 710a, Devlin, Deeds,
and cases cited. The mortgage of January
4, 1803, to the Arizona Lumber & Timber
Ck>mpany was by the same mortgagor as that
of August the 30th, the one sold to the North-
western National Bank, and covered the
same sheep, and hence, imder the rule an-
nounced, the bank was charged with notice
of it and of its recitals. It was not given
up or satisfied. It was preserved as an in-
dependent lien.
It was not satisfied, appellants say, be-
cause it covered other property beside the
sheep. This is an insufficient reason. If
the debt it secured was paid there was no
reason for retaining the lien on any property.
But, whatever the reason, it was retained and
affected the title. That is the material cir-
cumstance, and not in whose name it stood.
It was in the chain of the title and affected
it. It would have been found if looked for,
and would have notified the bank of the trans-
actions which conducted to it and caused it
to be made subject to the mortgages of the
[MO]appellees. We therefore think the *territo-
riai courts committed no error where they as-
signed priority to those mortgages. Nor
was it error to subordinate the attachment
and judgment of the Riordan Mercantile
Company to them. That company had, ac-
cording to the finding of the court, actual no-
tice.
The territorial court foimd that on the
18th of December, 1893, there were one thous-
and head of ewes remaining out of all the
sheep which existed on July 10, 1890, the
date of the mortgages to appellees; that the
remainder of the ewes, all of the male sheep
and the Iambs had died, been oonaiimed, sola,
or lost. The findings are absolutely silent as
to whether there were or were not other
sheep in existence at that time, or at the
time the decree was entered. We infer from
the briefs of counsel that there were others,
— the increase of those mortgaged ; and there
is a contention as to whether these are cov-
ered by the lien of the mortgages.
Under the rule that the incident follows
the principal, a mortgage of domestic ani-
mals covers the increase of such ani-
mals, though it is silent as to such increase.
This court said in Arkansas Valley Land d
Cattle Co, V. Mann, 130 U. S. 69 [32: 864],
by Mr. Justice Harlan, . . . "according
to the maxim, partus sequitur ventrem, the
brood of all tame and domestic animals be-
longs to the owner of the dam or mother.**
2 Bl. Com. 390. See also Pyeatt v. Poioell,
decided by the circuit court of appeals for the
ei^tih circmt, 10 U. S. App. 290, and cases
eited.
312
But whatever was doubtful or diBpntsUi
in the mortgages of appellees as to the i»
crease was resolved and settled by agreeaiaift
between all who had interests, and was ex-
pressed in the mortgage of January 4, 18QS.
There is nothing in the record to show a ssIk
stitution except by the increase, and there-
fore we are not called upon to pass npoa
some of the interesting questions argued by
appellants. Nor are we embarrassed by con-
siderations of the increase being in or haviiw
passed out of the "period of nurture." Saek
considerations are only important when a
subsequent purchaser or mortgagna has tak-
en without notice, actual or con^tructiTe,
which we have seen the Northwwtem na-
tional Bank did not.
*The objections to testimony aso^nfd rf[ai]
error in the fourth and seventh aasig^mrrts
of error were not well taken. The teitim'^v
showed the transactions and the ri^tiia%
of the parties to them.
Decree affirmed.
CYRUS A. BROWN, Plff, in Brr^
V,
UNITED STATES.
GEORGE CURLEY, alias George Cully, Fli
in Err.,
V,
UNITED STATES.
(See S. C. Reporter's ed. 6dl-4{38.)
Appellate jurisdiction of tlve United 8t§9m
court for the northern district of the /»•
dian territory — capital case.
1. The appellate Jurisdiction of a capital
from the United States court for the nortben
district of the Indian territory, ^ven by act
of Congress of March 1. 1895, to the appellatt
court of the United States for that territarr.
Is exclusive, and supersedes the prorlsloBi of
the acts of February 6, 1889. and March S,
1891, respecting the jurisdiction of tbt 8a>
preme Court of the United States.
2. This court has no appellate Jariadlctloa of
capital cases from the United States covit
for the northern district of the Indian terri-
tory. Such appellate jurisdiction Is tcstci
exclnslyely In the United States court of sp-
peals in the Indian territory.
[Nos. 249. 250.]
Submitted April 25, 1898, Decided Oetc-
her 24, 1898,
IN ERROR to the United SUtes Court ii
the Indian Territory to reriew judraest*
by which Cyrus A. Brovm and Georj?e Curl«y,
alias George Cully, were severally coovirtw
of murder, and sentenced to death. On
motion to dismiss in each of said cases on tW
ground that this court has no appellate je*
risdiction of said causes. Both cases ^
missed.
Statement by Mr. Justice Skirmat
Cyrus A. Brown, plaintiff in error in «•
No. 249, was indicted in the United Statas
171 U. 1.
18861
Brown v. United States.
6ai-4S84
court for the northern district of the Indian
territory, charged with the crime of murder,
which indictment was filed in the United
States court for the Indian territory, north-
em district, sitting at Muscogee on the 10th
day of Deoemher, a. d. 1896.
On the 17th day of December, a. d. 1897,
be was convicted of the crime of murder in
said court, and the judgment of the court
sentencing him to death was made on the
24th day of December, A. d. 1897 On the
Ist day of February, a. d. 1898, the plaintiff
in error filed a petition in said court for a
writ of error from the Supreme Court of the
United States, and filed an assignment of
errors. On February 8, A. D. 1898, a writ of
error was allowed in said cause, and on the
sinie day a citation was issued in salH cause,
service of which was acknowledged on the
16th day of February, a. d. 1898. Pursuant
to the writ of error in said cause a transcript
of the record in said cause was filed in the
office of the clerk of the Supreme Court of
the United States on the 23d day of Febru-
ary, A. D. 1898. The government has filed its
l]motion to ^dismiss the writ of error in said
cause, for the reason that the Supreme Court
of the United States has no jurisdiction un-
der the law to entertaiasaid writ of error, nor
to pass upoB any of the alleged errors in said
record, because said court has no appellate
jurisdiction of said cause.
George Curley, alias George Cully, plain-
tiff in error in case No. 250, was indicted in
the United States court for the northern dis-
trict of the Indian territory, sitting at Vin-
ita, charged with the crime of murder, which
indictment was filed In open court on the
21st day of October, a. d. 1897. On the same
day the defendant took a change of venue to
the United States court at Muscogee, and a
transcript of the record and the original in-
dictment wa^ forwarded to the clerk of the
United States court at Muscogee, Indian ter-
ritory. On the 13th day of December, a. d.
1897, at the December term of the United
States court for the northern district of the
Indian territory, at Muscogee, the indict-
ment heretofore found was referred to the
grand jury, and upon the same day the grand
jury returned into open court at Muscogee,
Indian territory, a new indictment against
the defendant for murder. On the 22d day
of December, a. d. 1897, the defendant was
found guilty of the crime of murder, and on
the 24th day of December, a. d. 1897, judg
ment of the court was pronounced upon said
defendant, sentencing him to death.
On February 11, 1898, plaintiff in error,
through his attorney, W. H. Twine, filed a
petition for a writ of error from the Su-
preme Court of the United States, and also
filed his specification of error. A writ of
error was allowed, on the 19th day of Feb-
ruary. 1898, and on the 23d day of Febru-
ary. 1398, service of the citation issued out
of this court was acknowledged. A tran-
script of the entire record was filed in the
office of the clerk of the Supreme Court of the
United States on March 1, 1898. The gov-
ernment has filed its motion to dismiss the
writ of error in said case for the reason that
171 U. 8.
the Supreme Court of the United States has
no jurisdiction under the law to entertain
said writ of error, nor to pass upon any of
the alleged errors in said record, because
said court has no appellate jurisdiction of
said cause.
Measra. John K. RioHards, Solicitor
G^eral, and P. I*. Soper, United States At-
torney, Northern District of the Indian Ter-
ritory, for the United States, in support of
the motions to dismiss.
Messrs. Jolin H. Koosler and Jolaia
"Watkiiui for plaintiff in error Cyrus A.
Brown, in opposition to motion to dismiss
in No. 249.
Mr. W. H. Twine for plaintiff in error
George Curley, in opposition to motion to dis-
miss in No. 250.
*Mr. Justice Sldras delivered the opinion [639|
of the court:
By the act of Conffress approved March 1»
1889 (Sup. R. S. vol. 1, 2d ed. 670), there
was established a United States court for
the Indian territory. The act conferred no
jurisdiction over felonies, but by the fifth
section, exclusive original jurisdiction was
conferred over all offenses against the laws
of the United States committed within the
Indian territory, not punishable by death or
by imprisonment at hard labor. Jurisdic-
tion was conferred in all civil cases between
citizens of the United States who are resi-
dents of the Indian territory whAre the value
of the thine in controversy shall amount to
one hundred dollars or more. The final judg-
ment or decree of the court, where the value
of the matter in dispute, exclusive of costs,
exceeds one thousand dollars, may be re-
viewed and reversed or affirmed in the Su-
preme Court of the United States upon writ
of error or appeal, in the same manner and
under the same regulations as the final judg-
ments and decrees of a circuit court.
On March 1, 1895, Congress passed an act
(Sup. R. S. vol. 2, pp. 392-398) dividing the
Indian territory into three judicial districts,
and providing for the appointment of two ad-
ditional judges. This act extended the ju-
risdiction of the United States court in said
territory to capital cases and other infamous
crimes, the jurisdiction over which had
theretofore been vested in the United States
courts at Fort Scott, Kansas, Fort Smith,
Arkansas, and Paris, Texas, and provided
that all such offenses should be prosecuted in
the United States court in the Indian terri-
tory after the first day of September, 1896.
The eleventh section is as follows:
"That the judges of said court shall con-
stitute a court of appeals, to be presided over
by the judge oldest in commission *as chief[684}
justice of said court. And said court shall
have such jurisdiction and powers in
said Indian territory, and such general su-
perintending control over the courts thereof,
as is conferred upon the supreme court of
Arkansas over the courts thereof by the 1%W8
of said state, as provided by chapter forty of
Mansfield's Digest of the Laws of Arkansas,
and tlie provisions of said chapter, so far as
313
«8i-686
8VPBBMB COUBT OF THK UnITBD StATBS.
Oct. Tkim,
they relate to the jurisdiction ancl powers
of said supreme court of Arkansas as to ap-
peals and writs of error, and as to the trial
and decision of cases, so far a» they are ap-
plicable, shall be and they are hereby ex-
tended over and put in force in the Indian
territory.
''And appeals and writs of error from said
eourt in said districts to said appellate court
in criminal cases shall be prosecuted under
the provisions of chapter forty-six of Mans-
field^s Digest, by this act put in force in the
Indian territory."
These enactments clearly provide that
writs of error in criminal cases shall be taken
to the appellate court of the United States
for the Indian territory, and dispose of the
question before us unless there are other pro-
visions of the acts of Congress which prevent
Buch A conclusion.
The counsel for defendants in error con-
tend that the act of February 6, 1889 (Sup.
B. S. vol. 1, 2d ed. 638) , gave to the Supreme
Court the right to review. The sixth section
itf that act is in the following words:'
That hereafter, in all cases of conviction
«f crime, the punishment of which provided
S' law is death, tried before any court of
e United States, the final judgment of such
court affainst the respondent shall, upon the
application of the respondent, be re-exam-
ined, reversed, or affirmed by the Supreme
Court of the Unit3d States upon a writ of
error, under such rules and regulations as
said court may prescribe."
It will be obiserved that when this law was
passed the United States court for the In-
dian territory did not possess jurisdiction
in capital cases. That jurisdiction was auh-
sequenily conferred. But, even if it be con-
ceded that the provisions of the act of Feb-
ruary 0, 1889, might have attached or be-
come applicable to the judgments of the
United States court for the Indian terri-
tory when jurisdiction in capital cases was
[M6]extended *to that court, the intention of Ckm-
gress is manifested to have been otherwise
y the provision above cited from the act of
March 1, 1895^ whereby it is provided that
writs of error in capital cases shall be taken
to the court of appeals of the United States
for the Indian territory.
This court had occasion to consider the
effect of the act of Feruary 6, 1889, in re-
spect to the judgments of tne supreme court
of the District of Columbia in capital cases,
in the case of Cross v. United States, 145 U.
6. 571 [3d: 821], and it was there said:
'It is contended on behalf of the govern-
ment that the writ of error will not lie be-
cause the supreme court of the District of
Columbia is not a court of the United States,
within the intent and meaning of the section.
McAllister v. United States, 141 U. S. 174
(36 : 693] , is cited with the decisions referred
to therein as sustaining that view, but it is
to be remembered that that case referred to
territorial courts only, and, moreover, if the
disposal of the motion turned on this point,
the words 'any court of the United States,'
are so compreliensive that, used ab they aie
in connection with convictions subject to
314
bsa
saek
the penalty of death, the conclusion migkt
be too technical that Congress intended ti
distinguish between courts of one da$s aiil
of the other. But the difficulty with the ii^
tion is tliat it manifestly does not eonten-
plato the allowance of a writ of error to any
appellato tribunal, but only to rerier tlit
final judgment of the court before whidi tiie
respondent was tried, where sudi judgment
cotud not otherwise be reviewed by writ of
error or appeal. It is the final judgment of
a trial court that may be re-examined apoi
the application of the respondent, and it it
to that court that the cause is to be remand-
ed, and by that court that the judgment of
this court is to be carried into executios.
The obvious object was to secure a review br
some other court than that whidi pewed
upon the case at nisi prius. Such review by
two other courts was not within the intea-
tion, as the judiciary act of March 3, 1891.
shows. This is made still clearer by the fur-
ther provision that no such writ of error
'shall be sued out or granted unless a peti-
tion therefor shall be filed with the den of
the court in which the trial shall have
had during the same term or within mek
*time, not exceeding sixty days neoct ifUr Utj
expiration of the term of the court at whidi
the trial shall have been had, jb the court
may for cause allow by order entered of re^
ord.' This langua^ is entir^y inapplies-
ble to the prosecution of a writ of error to
the judgment of an appellate tribunal aflis-
ing the judgment of the trial court. And
the case before us shows this."
It is true that, in the present cases thi
writs of error were sued out directly to the
trial court, whereas in the case of Cms the
Mnrit of error was taken to the judgment of
the suoreme court of the District afRnaiag
the juogment of the trial court, and there-
fore some of the language quoted from the
opinion in the latter case is not stricUj v^
plicable. But the reasoning of the oomt,
showing that it was unlikely that Coagretf
intend^ a review by two other courts tho
the trial court, is applicable. It is not to
be supposed that Congress, when it provided
by the act of March 1, 1895, for a review or
writ of error in the court of appeals for In-
dian territory, regarded the sixth tedioe of
the act of February 6, 1889, as also apptios*
ble.
The counsel for the defendante in error
cite in their briefs the fifth and thirtceatb
sections of the act of March 3, 1^1, estab-
lishing the United States circuit courts of
appeals, providing that appeals or writs of
error may be taken from the district or dr-
cuit courte direct to the Supreme Court of
the United States in cases of capital crises
and providing that appeals and writs of er«
ror may be taken from the decisioiis of tie
United States court in the Indian teriilory
to the Supreme Court of the United Statci.
or to the cirucit court of appeals in the
eighth circuit, in the same manner and under
the same regulations as from the cireuit or
district courte of the United States.
Of course as, when this act was paaaed, tbe
United Stetes court in the Indian territorr
171 U. t.
1896.
Naboun t. Db Oobdoba.
686-488
iMid no Jurisdiction ovpr capital crimes. Con-
gress did not contemplate any appeal or writ
of error in such cases. And when, by the
act of March 1, 1895, jurisdiction of the
United States court in the Indian territory
wu extended to capital cases, and a court of
687]appeal8 was 'eetauished, with power to en-
tertain appeals and writs of error, the act of
Mardi 3, 1891, cannot be regarded as appU-
cable in such cases. Where a statute pro-
rides for a wri€ of error to a specified court
of appeals it must be regarded as a repeal of
any previous statute ^ich provides for a
writ of error to another and different court.
The decisions of the court of appeals of
the United States in the Indian territory are
final except so far as they are made subject
to review by some express provision of
law. In the eleventh section of the act of
Harch 1, 1895, it is provided that "appeals
and writs of error from the final decision of
•aid appellate court shall be allowed and
may be taken to the circuit court of appeals
for tiie eighth judicial circuit in the same
manner and under the same regulations as
appeals are taken from the circuit courts of
the United States;" but it is not claimed b^
the counsel for the plaintiff in error that this
provision applies to capital cases; and see
the case of FoUom T. United States, 160 U.
8.121 [40:363].
It has been held by this court that the
court established in the Indian territory,
though a court of the United States, is not
a district or circuit court of the United
8Utes. Re Mills, 135 U. S. 268 [34: 110].
We accept the contention of the Solicitor
General on behalf of the government, that
the court of appeals in the Indian territory,
being a court of the United States, is anal-
ogous to the supreme court of the District of
Columbia, and bears the same relation to the
trial court in the Indian territonr as the su-
preme court of the District of Columbia bore
to the trial court in the District.
And it was held in Ex parte Bigelow, 113
U. 8. 329 [28: 1006], that no appeal could be
taken or writ of error sued out to the su-
preme court of the District of Columbia in a
capital case, the court saying: "No appeal
or writ of error in such case as that lies to
this court. The act of Congress has made
the jad|^ent of that court conclusive, as it
had a right to do, and the defendant, having
one review of his trial and judgment, has no
■pedal reason to complain." Re Heath, 144
U. S. 92 [36: 358] ; Cross v. Burke, 146 U. S.
84 [36: 897].
M] *Our condusiofi is that we have no appel-
late jurisdiction of capital cases from the
United States court for the northern dis-
trict of the Indian ter ' ory, and that such
appellate jurisdiction iti vested exclusively
in the United States court of appeals in the
Indian territory.
The motion a oUowed, amd ih^ writ* of er-
rorimthoeo
171 V. a.
WILLIAM NAEGLIN, Annie Naegliu, Ad-
ministratrix of Henry Korte, Debased, o$
al,, Appts.,
DOLORITAS MARTIN DE CORDOBA,
Jos6 Manuel Cordoba, Josefita Martia
de Duran, eU al,,
(Bet & C Reporter's ed. 63a-641.)
Appeal from supreme court of territory — r^
lease hy mother of illegitimate children^
wJ^en will not out off inheritance,
1. On appeal from the supreme court of a ter-
ritory, when DO Jury was had and there art
no questions as to the admission or exclosion
of testimony, the only question to consider
is whether the findings of fact sustain the
decree.
2. A release by the mother of Illegitimate
children, in her owe right and for them, of
all claims against the father, without the
sanction of any tribunal, will not cut off a
right of the children to inherit from hioL
8. A natural guardian has no power to re-
lease the claim of a ward to an inheritanee
without the sanction of some tribunal.
[No. 35.]
Argued October tS, 1898. Decided October
tJt, 1898.
APPEAL from the Supreme Court of tbt
Territory of New Mexico reversing th«
decree of the District Court oi the County of
Mora, Fourth Judicial Distiict in said Ter*
ritory, in favor of the defendants, and re-
mandintf the case to the District Court with
instructions to enter a decree in favor of the
Slaintiffs, in an action brought by Doloritaa
lartin de Cordoba et al. against William
Naeglin et al. to establish the ri^ht of th«
plaintiffs as the children and heirs ol oiM
Frederick Metzger. Affirmed.
See same case below, 7 N. M. 678.
Statement by Mr. Justice Brewer t
On March 29, 1886, the appellees, Do-
loritas Martin de Cordoba et al., filed their
bill in the district court of the county of
Mora, fourth judicial district, territory of
New Mexico, to establish their rights as tha
children and heirs of one Frederidc Metzger.
After answer the case was referred to a mas*
ter, who reported findings of fact and con-
clusions of law in favor of the plaintiffs.
Upon a hearinff in the district court a de-
cree was entered adversely to the condusioni
of the master and for the defendants. On
appeal to the supreme court of the territorr
that decree was on August 24, 1895, reversed,
and one entered remanding the case to the
district court, with instructions to enter a
decree in conformity with the findings and
conclusions of the master. Thereupon the d^
fondants appealed to this court.
81S
644r4M7
SUPBSMB COUBT OF THB UnITBD StaTKS.
Oct. Tzjcx,
the new company, under what is claimed to
be due authority of law, issued its bonds on
the first day of July, 1887, to the amount of
$225,000, payable in twenly years from their
date, and to secure pavment of the same
mortgaged its entire railroad from Oakland
to Bingham, forty-one miles. These bonds
were sold by the c(»npany and the proceeds
applied towards the completion of the road.
Tne mortgage f^ven by the Somerset Rail-
road Company m 1871 included the roadbed
from Oakland to the terminus of the road in
Solon. The mortgage given bj the new com-
pany in 1887 embraced the railroad so far as
It had been constructed by the old company,
as well as the sixteen miles constructed by
the new company after it took possession of
the road. The giving of this mortgage in
1887 was a matter of public notoriety, well
known to the trustees of the original mort-
gage, and no objection was made in behalf
of anyone; on the contrary, the trustees
stood by and saw this mortgage of 1887 given
and the bonds sold to innocent parties and
the money e3q>ended in extending the rail-
road sixteen miles, and it was not until more
than five years afterwards, when the road
had been built and completed and was in
operation to Bingham, that the trustees took
action.
[M6] *In December, 1802, the trustees in the
mortgage of 1871 commenced two actions at
law, one in each of two counties in which the
nuilroad was situajtod, in which actions the
president of the new corporation, its superin-
tendent, treasurer, accountant, and various
station agents and conductors, were made
parties defendant because they were in pos-
session of the road, and the plaintiffs, trust-
ees, claimed to recover from the defendants,
as disseisors, the possession of the rail-
road, and from the defendants, as individ-
uals, the sum of' $180,000 as mesne profits.
The ground upon which the trustees based
their SrCtion was that the new company was
never legally organized; l^at by the terms
of the mortgage the trustees alone could take
proceedings to foreclose the mortgace, and
that the wets of the l^slature passed subse-
quently to the execution of the mortgage,
and under which the new company was
formed, could and did have no validity as
I against the contract rights of the plaintiffs,
secured to them by the law as it stood at the
time of the execution of the mortgage of
1871.
Upon these facts and many others which
are not now material to be stated, the new
company commenced this suit in equity
against the trustees in the mortgage of 1871,
who were plaintiffs in the two actions at
law, to enjoin the further prosecution of
those actions, and for other relief as men-
tioned in their complaint. In this suit ^e
new company alleged (among other things)
that the trustees in the mortgage of 1871
and their successors had stood by, al-
lowed, and encouraged the formation of the
new company and the surrendering of the
bonds and the Sisuing of the stock in lieu
thereof, and also the execution of the mort-
gage by the new company to secure the pay-
818
ment of the $225,000 borrowed for the
tension of its road; also tlie contracting of
debte and the expending of large amooBts
of money in useful repairs and improve-
mente; and that all this was done without
the trustees making known to the new com-
pany that they or those whom th^ repre-
sented as bondholders had any claim or caoie
of action against the new company; and the
complainants therefore averred that the trus-
tees and those whom they represented had
been g^lty of such delay and laches as to
estop them *from den^ng the validity of the[64l
new corporation or ite title or possession.
The new company also alleged the entire vm-
lidity of the proceedings resulting in its for-
mation.
Answering that complaint, the trvjtteet
denied that the new company was ever estab-
lished under any law of Maine; they denied
that it ever had any legal organization or
any legal existence; they denied that the
mortgi^ of July 1, 1871, had ever been le-
gally foreclosed, and they alleged that ndther
the original board of trustees named in the
moi*tgage, nor their successors, had ever
taken any steps towards a legal foredosurt,
or had ever determined that there had been a
breach of the conditions of that mortgt^
and that the attempted foreclosure of tMl
mortgage was in violation of the contract
rights secured to the trustees thereunder at
the time of ito execution, and the attempted
foreclosure of that mortffaffe was thcr^Eore
utterly void; they denied Uiat any statnu
of the stete had been enacted, or could be
enacted, which would or could deprive the
bondholders or trustees of the rights secured
to them by virtue of their contract of Julv 1,
1871, and the laws of the state in force ima
the contract was made. They alleged that
the contract righto of all the parties to the
mortgage of Jmy 1, 1871, were fixed by the
laws in force when the mortgage was ezemt-
ed, and that no law of the state of Maine ihm
existing authorized the organization of the
new corporation in the manner attempted
herein, and that the laws then exiKioc
formed a part of the mortgage contract, aad
provided a mode by which the mortgsfs
could be leffally foreclosed and a new eo«*
panv formed for the benefit of all the bond-
holders ; and they alleged that the ri^tt of
the bondholders who took no part in the
formation of the new company were fixed bv
the mortgage contract, and could not be af-
fected in any way except by payment. Vari-
ous other matters were set up in their aa-
swer, which it is not now necessary to men-
tion.
The supreme judicial court of Maine upoa
these issues hela: "(1) That the new com-
pany was Imlly organized ; that the variost
acte of the legislature of Maine, psssed mh-
seouently to the execution of the mortgairu
did not impair the obligations of the coa-
tract contained in tiie mortgage, *but siBply^tll
afforded a more convenient ami quicker rcn*
edy for a violation of the agreement aad for
the foreclosure of the mortice than existed
at the time of ite executfoa.** (2) Hm
court also steted and held as follow*: "Th^
new corporation took possession of the mort*
171 V. 8.
1.
98.
PlBBCK y. S0MXR8BT Railway.
647~64»
nged property on the first day of Septem-
ber. 1883, and hafe ever since held it ana ope-
lated the railroad. This action was author-
ised by the statute, eonsented to hv the Som-
«set ttailroad Company, the mortgagor, a^
tively proposed and aided by one at least of
the trustees, and erer since has been acqui-
flieed in by all the trustees. It is too late
for the tnistees or dissenting bondholders
BOW to object to technical irregularities, if
any exist, especially ae the Somerset Rail-
way has since extended the railroad from
Korth Anson to Bingham, a distance of
aboont sixteen miles ; built a branch railroad
of one mile in length of great importance to
the productiveness of the main line; placed
a mortgage upon the road for $225,000 to
make ue6« extensions and other improve-
ments; and in other ways materially changed
the condition and relations of all parties in-
terested in the road. Their long acquies-
cence, without objection, coupled with the
ehanged conditions and relations resulting
from the possession and management of the
property oy the Somerset Railway, estops
them from now questioning the legality of
tbe organization of the new corporation.'^
The court further held that, under the
•tatntes of Maine, the bondholders who had
refused to take stock in the new company
still retained the same rights under their
bonds as the holders of the stock in the new
company which had been given in exchange
for bonds, and that if any bondholder de-
dined ultimately to exchange his bonds for
•tock he could not be compelled to do so, and
that the net earnings of the eompany when
distributed in the form of dividends or other-
wise must be distributed to its stockholders
and to the holders of anv unexchanged bonds
in equal proportions ; that if the holders of
onexchanged' bonds chose to take ntock they
eould do so at any time, or they might retain
their present possessions and receive their
share of the net earnings pro rata with the
stockholders.
A] *lt is thus seen that there were two ques-
tions determined bv the state court: One
related to the validity of the statutes passed
subsequently to the execution of the mort-
fra^ the court holding them valid, and that
they did not impair the obligation of the con-
tract contained in the mortage. That is a
Federal question. The other related to the
defense of estoppel on account of laches and
acquiescence, which is not a Federal ques-
tion. Either is sufficient upon which to base
and suctain the judgment of the state court.
In such case a writ of error to the state court
cannot be sustained. Euatia v. BolleSf 150
U. 8. 361 [37: nil] ; Rutland Railroad Co.
▼. Central Vermont Railroad Co, 150 U. S.
630 [40: 284] ; BeneoaUaiion v. Christy, 162
U.S. 283 [40:970].
A person may by his acts or omission to
act waive a right which he might otherwise
hare under the Constitution of the United
States, as well as under a statute, and the
question whether he has or has not lost such
right by his failure to act, or by his action,
is not a Federal one.
In the above case of Eustia v. BolUa the
state court held that by accepting his divi-
171 U. 8.
dend under the insolvency proceedings Eustla
waived his legal riglit to claim that the dif
char£[e obtained under the subsequent law»
impaired the obligation of a contract. Thia
court held that, whether that view of the )
case was sound or not, it was not a Federal
Question, and therefore not within the prov*
ace of this court to inquire about.
Mr. Justice Shiras, in delivering the opin-
ion of the court, said:
"The defendant in the trial court de>
pended on a discharge obtained by them un*
der regular proceedings under the insolvency
statutes of Massachusetts. This defense the
plaintiffs met by alleging that the statutes
under which the defendants had procured
their discharge had been enacted after tha
promissory note sued on had been executed
and delivered, and that to ffive effect to a dis-
charge obtained under sucn subsequent laws
would impair the obligation of a contract,
within the meaning of the Constitution of
the United States. Upon such a state of
facts it is plain that a Federal question de-
cisive of the case was presented, and that if
the judgment of *the supreme judicial oourt[649)
of Massachusetts adjudged that question ad-
versely to the plaintiffs it would be the duty
of this court to consider the soundness of
such a judgment.
"The record, however, further discloses
that William T. Eustis, represented in this
court by his executors, had accepted and re-
ceipted for the money which had been
awarded him, as his portion, under the in-
solvency proceedings, and that the court be-
low, conceding that his cause of action could
not be taken away from him, without his
consent, by proceedings under statutes of in-
solvency passed subsequently to the vesting
of his rignts, held that the action of Eustis,
in so accepting and receipting for his divi-
dend in the insolvency proceedings, was a
waiver of his right to object to the validity
of the insolvency statutes, and that, accora-
inely, the defendants were entitled to the-
judnnent.
"The view of the court was that, when the-
composition was confirmed, Eustis was put
to his election whether he would avail him-
self of the composition offer, or would reject
it and rely upon his right to enforce his debt
af^ainst his debtors notwithstanding their
discharge.
"In ito discussion of this question the court
below cited and claimed to follow the deci-
sion of this court in the case of Clay v. Smith,.
3 Pet. 411 [7: 723], where it was held that
the plaintiff, bv proving his debt and taking-
a dividend under the bankrupt laws of Lou-
isiana, waived his right to object that the-
law did not constitutionally apply to hla^
debt, he beinff a creditor residing in another
state. But in deciding that it w&s compe-
tent for Eustis to waive his legal rights, and
that accepting his dividend imder the in-
solvency proceedings was such a waiver, the-
court below did not decide a Federal ques-
tion. Whether that view of the case waa
sound or not, it is not for us to inquire. It
was broad enough, in itself, to support th*^
final judgment, without reference to the Fed-
eral question."
319^
i88-Ml
SUPRBMB COUUT Of THB UnITBD STATES.
Ocv. Tkim,
^^ At the time of entering the decree, and also
|VM]of ovemilinff a 'petition for rehearing, no
■tatement of facts was prepared by the su-
Sreme court, and no other determination of
tie facts than such as appears from the di-
rection to enter a decree in conformity with
the findings and recommendations of the
Blaster. But after the supreme court had
adjourned, an application was made to have
the findings of fact made by the master in-
corporated into the record as a statement
and finding of facts by that court, for the
Surpose of an appeal, and upon that applica-
ion the following order was entered:
And now the foregoing statement and
finding as to the facts proven and estab-
lished by the evidence in each of said causes
are ordered to be incorporated in the record
ef said supreme court as part thereof as fully
as we may be thereunto empowered, the July
term of the supreme court having been ad-
journed on the 26th day of September, a. d.
1896, and this order made and signed by each
of the judges while in his district respective-
ly. Thomas Smith, Chief Justice.
Needham C. Collier, Associate
Justice, Supreme Court of New Mexico.
Signed at Silver City, in the third judicial
district.
Gideon D. Bantz, Associate Jus-
tice of the Supreme Court of New Mexico and
Presiding Judge of the Third Judicial Dis-
trie* Court.
Signed at Santa F6, N. M., in the first ju-
dicial district.
N. B. Laughlin, Associo^te Jus-
tice of the Supreme Court and Judge of the
first Judioifll District.
It appears from the bill, answer, and find-
ings that Frederick Metzger, though an un-
married man, was idie father of bcveral
children by different women, and this
suit is one between the several illegiti-
mate children to determine their re-
spective rights to share in his estate. The
counsel for appellants says in his brief:
"The bill of complaint and the testimony
present for determination of the court two
[MO]Questions: First, What estate *and property
aid Metzger own at the time of his death?
and, second. Who is entitled to that estate?''
Mr, Harrey Spaldins for appellants.
No counsel for B{>pellees.
[#M] *Mr. Justice Brewer delivered the opin-
ion of the court:
No question is made in this record as to the
admission or exclusion of testimony. There
being no jury the case comes here on appeal,
and the only question we can consider is
whether the findings of fact sustain the de-
cree. 18 U. S. Stat. 27 ; Stringfellow v. Cain,
99 U. S. 610 [25:421] ; Cannon v. Pratt, 99
U. S. 619 [26:446] ; Neslin v. Wella, 104 U.
S. 428 [26:802] ; Hecht v. Boughton, 105 U.
S. 235, 236 [26:1018] ; Gray v. Howe, 108 U.
S. 12 [27:634] ; Eilers v. Boatman, 111 U. S.
S56 [28:454] ; Zeckendorf v. Johnson, 123 U.
S. 617 [31 :277] ; 8turr v. Beck, 133 U. S. 541
[33:761]; Mammoth Min. Co, v. Salt Lake
316
Foundry d Machine Co. 161 U. a 47 [S8:
229].
The order signed in vacation by the sererd
members of the supreme court cannot be eoa-
sidered an order of the court. Assnmiog,
however, for the purposes of this case, that,
in view of the general language in the optn-
ion of the court, we may take the findings of
the master as its statement of facts, we ob>
serve that no doubtful <|uestion of law is pre-
sented for our determination. The master
finds that Metzger was the father of the ap-
pellees, and that he owned certain property.
These are questions of fact, resting upon tc^
timony, concluded, so far as this court ii
concerned, by the findings, and into wtuch it
is not our privilege to enter.
While under the common law illegitimttt
children did not inherit from their fttther,
the statutes of New Mexico introduced a nev
rule of inheritance (Comp. Laws New Ma-
ico, 1884, 9 1435, p. 680) : ''Natural diil-
dren, in the absence of legitimate, are beirt
to their father's estate, in preference to the
ascendants, and are direct heirs to the moth-
er if she die intestate." In other words,
under this statute, *there being no legitHMl]
mate children, illegitimate chilf-en inherit
It appears that on March 19, 1875, and
while Metzger was living, the mother of these
plaintiffs, then minors, m her own right and
for the minors, receipted and relinquiflhcd
all claims against him. Without stopping
to consider what was meant by that rucas^
and giving to it all the scope whidi its lan-
guage may suggest, we remark that a natural
guardian has no power to release the daia
of a ward to an inheritance without the mab-
tion of some tribunal. Woemer's Amerien
Law of Guardianship, p. 185, and foUowiif.
The decree is affirmed.
LEWIS PIERCE et al„ Plffe. in Err^
V,
SOMEKSET RAILWAY.
(See 8. C. Reporter's ed. 641-660.)
Federal question — ichen state judgment vtl
not he revicured — Federal right men U
waived — question of waiver ie not FeidertI
question,
1, The question whether a state statute la-
pairs the obligation of a contract li a PedcrtI
qaestlon ; but the question whether the de-
fense of estoppel by laches and acquleecesei
Is established is not a Federal question.
2. A Judgment of the state court, based oe t«t
distinct grounds, each of which Is eufflrtest
to sustain the judgment, and one of vhki
Invoives no Federal question, cannot be r^
viewed on writ of error by this court
8. A person 'may, by his acts or omlssloQ tesA
wnive a right which he ml^t otherwise Uvt
under the Constitution of the United Ststee.
4. Whether or not a person has lost s rtfM
under the Federal Constitution by hit sctM
or failure to act is not a Federal qucstles
which will sustain a writ of error to s Ast*
court.
[No. 12.]
171 U. t.
183S
PiBBCB y. 80MBB8BT Raji^wat.
64d-644
Argued Octoher 11, 12, 1898. Decided Ooto-
ber 81, 1S98.
r\ ERROR to the Supreme Judicial Court
of the State of Maine to review a jud^ent
of that court in favor of the defendant in er-
ror, the Somerset Railway, in an action com-
menced by it against Lewis Pierce ei al. to
enjoin the further prosecution of certain ac-
tions and for other relief. Dismiaaed.
See same case below, 88 Me. 86.
The facts are stated in the opinion.
Messrs. D. D. Stewart and H. B.
Cleaves for plaintiffs in error.
Messrs. JomiBJi H.Dniiiiii&ond, Edmund
F. Webb, and Joseph W. Symonda for de-
fendant in error.
•42] *Mr. Justice Peokbam delivered the
opinion of the court:
This is a writ of error directed to the Su-
preme Judicial Court of the state of Maine,
for the purpose of reviewing a judgment of
that court in favor of the defendant in error,
who was plaintiff below. (88 Me. 86-100.)
The facts necessary to an understanding of
the case are as follows:
The Somerset Railroad Company was or-
ganized in 1871, pursuant to an act of the
legislature of the state of Maine, for the
purpose of building and operating a railroad
oetween Oakland, m the county of Kennebec,
and Solon, in the county of Somerset, in that
state. In order to obtain the money to build
its road, the company, on the first day of
July, 1871, executed a mortgage to three
trustees, covering its railroad and fran-
chises and all its real estate and. personal
property then possessed by it or to be there-
after acquired. By the terms of the mort-
gage the trustees were to hold in trust for
the holders of the bonds of the railroad com-
pany, to be issued by it, payable as therein
mentioned. The company thereupon issued
and sold its bonds, secured by the mortgage,
to the amount of $460,000, with proper cou-
pons for interest attached, payable semi-
annually on the first days of January and
July in each year, at the rate of seven per
cent, the principal of the bonds becoming
due on the first of July. 1801. The proceecLs
of the sale of these bonds were applied to the
building, equipping, and operating of the
road from Oakland to North Anson, a sta-
tion between Oakland and the proposed ter-
minus of the road at Solon. In 1876 the
' road had been completed as far as the village
of Anson, twenty-five miles from Oakland,
and it was opened and its cars conunenced
running in that year between those points.
The company continued to so operate its
road until September, 1883. It had, how-
ever, become insolvent some time prior to
April first, 1883, and at that time its cou-
pons for interest on the bonds secured by the
above-mentioned mortgage had been unpaid
i4S]for more *than three years. At the time
when this mortgage was given, corporations
eould be formed by the holders of bonds se-
cured by a railroad mortgage, in the manner
provided for by the statute. (Rev. Stat. 1871,
<hap. 51.) In 1878, seven years after the ex-
171 U. 8.
ecution of the mortgage, the provision for
the formation of corporations by the holders
of bonds was extended so as to include the
case of railroad corporations where the prin-
cipal of ttie bonds should have remained
overdue for the space of three years, and by
an act of March 6, 1883, the provision was
still further extended so as to apply to the
case in which no interest had been paid
thereon for more than three years.
By virtue of the provisions of the Revised
StatutcHB of 1871, as amended and extended
by the statutes of 1878 and 1883 (both stat-
utes, as will be seen, being subsequent t«
the execution of the mortgage), the holders
of bonds of the Somerset Railroad Company,
following the method provided by those stat-
utes, and on the 15th day of August, 1883,
formed a new corporation under the name
of the Somerset Railway. The capital stock
of this new corporation was $736,048.76,
made up of the principal of $450,000 of the
unpaid outstanding bonds, and $286,648.76
of interest thereon up to the 15 th of
August, 1883. This was in accordance with
the provisions of the statute that the new
company should issue the capital stock to
the holders of the bonds, secured by the
mortgage, in the proportion of one share of
stock for each one hundred dollars worth of
bonds and interest. On the 1st of Septem-
ber, 1883, the Somerset Railway took posses-
sion of the railroad from Oakland to Anson
(which was as far as it had then been com-
pleted), and of all the other property em-
braced in the mortgage, and it has ever since
held and operated the same. Its capital
stock was divided into shares of one hundred
dollars each to the amount of the bonds and
overdue coupons as the law provided. The
stockholders of the old company had pre-
viously and on the 13th of July, 1883, at their
annual meeting, voted that the bondholders
should organize a new corporation under the
statutes of the state, and take possession of
the railroad, and at the same meeting voted
to surrender possession of the road to the
new corporation, the Somerset Railway.
*The holders of a very large majority of [M4|
these bonds, including some held by the
parties in whose interest the plaintiffs in er-
ror now act, participated in the formation
of this corporation, but the holders of all the
bonds did not so participate, a majority
being suificient under the statute for the reg-
ular formation of the corporation. Bonds
largely exceeding a majority of those whiek
were issued under the mortgage were sur-
rendered to the Somerset Railway, and are
now held by it, and the stock issued therefor,
the amount being at the time the suit herein
was instituted $330,400; and the amount of
bonds not surrendered was $110,600, not
counting overdue coupons.
From the time the new company took pos-
session of the railroad it has continuea to
operate it as far as it was then completed,
and it has also extended the same some six-
teen miles, and as extended it has continued
to operate it.
To obtain the funds necessary for the
completion of the sixteen miles of extension
317
644r4M7
SUPBSMB COUBT OF THB UnITBD StATSS.
Oct. TzRic,
the new company, under what is claimed to
be due authority of law, issued its bonds on
the first day of July, 1887, to the amount of
$225,000, payable in twenly years from their
date, and to secure pavment of the same
mortgaged its entire railroad from Oakland
to Bingham, forty-one miles. These bonds
were sold by the company and the proceeds
applied towards the completion of the road.
Tne mortgage ffiven by the Somerset Rail-
road Company m 1871 induded the roadbed
from Oakland to the terminus of the road in
Solon. The mortgage given by the new com-
pany in 1887 embraced the railroad so far as
It had been constructed b^ the old company,
as well as the sixteen miles constructed by
the new conomany after it took possession of
the road, ^e giving of this mortgage in
1887 was a matter of public notoriety, wdl
known to the trustees of the original mort-
gage, and no objection was made in behalf
of anyone; on the contrary, the trustees
stood by and saw this mortgage of 1887 given
and the bonds sold to innocent parties and
the money e3q>ended in extending the rail-
road sixteen miles, and it was not until more
than five years afterwards, when the road
had been built and completed and was in
operation to Bingham, that the trustees took
action.
[M6] *In December, 1892, the trustees in the
mortgage of 1871 commenced two actions at
law, one in each of two counties in which the
railroad was situated, in which actions the
president of the new corporation, its superin-
tendent, treasurer, accountant, and various
station agents and conductors, were made
parties d^endant because they were in pos-
session of the road, and the plaintiffs, trust-
ees, claimed to recover from the defendants,
as disseisors, the possession of the rail-
road, and from the defendants, as individ-
uals, the sum of $180,000 as mesne profits.
The ground upon which the trustees based
their action was that the new company was
never legally organized; that by Uie terms
of the mortgage the trustees alone could take
proceedings to foreclose the mortgeiffe, and
that the wets of the leg^islature passed subse-
quently to the execution of the mortgage,
and under which the new company was
formed, could and did have no validity as
I against the contract rights of the plaintiffs,
secured to them by the law as it stood at the
time of the execution of the mortgage of
1871.
Upon these facts and many others which
are not now material to be stated, the new
company commenced this suit in equity
against the trustees in the mortgage of 1871,
who were plaintiffs in the two actions at
law, to enjoin the further prosecution of
those actions, and for other relief as men-
tioned in their complaint. In this suit the
new company alleged (among other things)
that the trustees in the mortgage of 1871
and their successors had stood by, al-
lowed, and encouraged the formation of the
new company and the surrendering of the
bonds and the Sisuing of the stock in lieu
thereof, and also the execution of the mort-
gage by the new company to secure the pay-
818
ment of the $225,000 borrowed for the
tension of its road; also tlie contracting of
debts and the expending of large amoosti
of money in useful repairs and improve^
ments; and that all this was done without
the trustees making known to the new com-
pany that they or those whom th^ repre-
sented as bondholders had any claim or eaote
of action against the new company; and the
complainants therefore averred that the trus-
tees and those whom they represented bad
been g^lty of such delay and laches as to |
estop them *f rom denying the validity of tbe[6ii
new corporation or its title or possessioiL I
The new company also alleged the entire va-
lidity of the proceedings resulting in its fw-
mation.
Answering that complaint, the trwiteet
denied that the new company was ever estab-
lished under any law of Maine; they denied
that it ever had any legal organization or
any legal existence; they denied that the
mortgi^ of July 1, 1871, had ever been le-
gally foreclosed, and they cdleged that neither
the original board of trustees named in the
moi*tgage, nor their successors, had ever '
taken any steps towards a legal foredosnre, j
or had ever determined that there had been a
breach of the conditions of that mortgt^
and that the attempted foreclosure of tMl
mortgage was in violation of the contract I
rights secured to the trustees thereunder at
the time of its execution, and the attempted
foreclosure of that mortffage was therefoie
utterly void; they denied uiat any statute
of the state had been enacted, or could be
enacted, which would or could deprive the
bondholders or trustees of the rights secured
to them by virtue of their contract of Julv 1,
1871, and the laws of the state in force ima
the contract was made. They alleged that
the contract rights of all the parties to ths ■
mortgage of Jiuy 1, 1871, were fixed by ths !
laws m force when the mortgage was execut-
ed, and that no law of the state of Maine ihm \
existing authorized the organization of the
new corporation in the manner attempted
herein, and that the laws then exisunt
formed a part of the mortffage contract, sal
provided a mode by which the mortgtce j
could be leffally foreclosed and a new earn*
panv formed for the benefit of all the bood-
holders ; and thoy alleged that the ri^ts of
the bondholders who took no part m the
formation of the new company were fixed bnr
the mortgage contract, and could not be af-
fected in any way except by payment. Vari-
ous other matters were set up in their an-
swer, which it is not now necessary to men-
tion.
The supreme judicial court of Maine upoa
these issues held: " ( 1 ) That the new com-
pany was l^ally organized ; that the varioat
acts of the legislature of Maine, passed siib-
seouently to uie execution of the mortga|p,
did not impair the obligations of the con-
tract contained in the mortgage, *but siBpl3r[iiT]
afforded a more convenient and quicker rcn*
edy for a violation of the agreement and for
the foreclosure of the mortem than existed
at the time of its execution." (2) 1>e
court also stated and held as follows : *'1te
new corporation took possession of the mort^
171 V.8.
2^98.
PlBBCB y. S0MXR8BT Railway.
647-64»
nged property on the first day of Septem-
ber. 1893, and haft eyer since held it and ope-
rated the railroad. This action was author-
ised by the statute, consented to bv the Som-
«tet Bailroad Company, the mortgagor, ae-
ixftiy proposed and aided by one at least of
the trustees, and eyer since has been aoqui*
flieed in by all the trustees. It is too late
for the trustees or dissenting bondholders
DOW to object to technical irregularities, if
any exist, especially as the Somerset Rail-
way has since extended the railroad from
North Anson to Bingham, a distance of
aboant sixteen miles ; built a branch railroad
of one mile in length of great importance to
the productiveness of the main line; placed
a morteage upon the road for $225,000 to
make toe6« extensions and other improye-
ments; and in other ways materially changed
the condition and relations of all parties in-
ttfeeted in the road. Their long acquies-
cence, without objection, coupled with the
changed conditions and relations resulting
from the possession and management of the
property oy the Somerset Railway, estops
them from now questioning the legality of
the organization of the new corporation.'^
The court further held that, under the
•tatntes of Maine, the bondholders who had
refused to take stock in the new company
still retained the same rights under their
bonds as the holders of the stock in the new
company which had been g^ven in exchange
for bonds, and that if any bondholder de-
dined ultimately to exchange his bonds for
stock he could not be compelled to do so, and
that the net earnings of the eompany when
distributed in the form of dividenas or other-
wise must be distributed to its stockholders
and to the holders of any unexchanged bonds
in equal proportions; that if the holders of
unexchanged bonds chose to take ntock they
eonld do so at any time, or they might retain
their present possessions and receive their
share of the net earnings pro rata with the
stockholders.
^] *It is thus seen that there were two ques-
tions determined b^ the state court: One
related to the yalidity of the statutes passed
subsequently to the execution of the mort-
frage, the court holding them valid, and that
they did not impair the obligation of the con-
tract contained in the mor^ge. That is a
Federal question. The other related to the
defense of estoppel on aocoimt of laches and
acquiescence, which is not a Federal ques-
tion. Either is suJBcient upon which to base
and sustain the judgment of the state court.
In such case a writ of error to the state court
cannot be sustained. Euatia y. Bollea, 150
U. 8. 361 [37: 1111] ; Rutland RaUroad Co.
▼. Central Vermont Railroad Co. 159 U. S.
630 [40: 284] ; SeneoaNation y. Christy, 162
U.a283 [40:970].
A penion may by his acts or omission to
set waive a right which he might otherwise
hare under the Constitution of the United
States, as well as under a statute, and the
question whether he has or has not lost such
right by his failure to act, or by his action,
is not a Federal one.
In the aboye case of Euatia v. Bollea the
state court held that by accepting his divi-
171 v.n. ^ y^^
dend under the insolvency proceedings Eustla
waived his legal riglit to claim that the dif
char£[e obtained under the subsequent law»
impaired the obligation of a contract. This
court held that, whether that view of the 1
case was sound or not, it was not a Federal
question, and therefore not within the prov-
inoe of this court to inquire about.
Mr. Justice Shiras, in delivering the opin-
ion of the court, said:
'The defendant in the trial court de>
S ended on a discharge obtained by them un-
er regular proceedings under the insolvency
statutes of Massachusetts. This defense the
plaintiffs met by alleging that the statutes
under which the defendants had procured
their discharge had been enacted after the
promissory note sued on had been executed
and delivered, and that to give effect to a dis-
charge obtained under such subsequent laws
would impair the obligation of a contract,
within the meaning of the (institution of
the United States. Upon such a state of
facts it is plain that a Federal question de-
cisive of the case was presented, and that if
the judgment of *the supreme judicial court [640)
of Massachusetts adjudged that question ad-
versely to the plaintiffs it would be the duty
of this court to consider the soundness of
such a judgment.
'The record, however, further discloses
that William T. Eustis, represented in this
court by his executors, had accepted and re-
ceipted for the money which had been
awarded him, as his portion, under the in-
solvency proceedings, and that the court be-
low, conceding that his cause of action could
not be taken away from him, without his
consent, by proceedings under statutes of in-
solvency passed subsequently to the vesting
of his rignts^ held that the action of Eustis,^
in so accepting and receipting for his divi-
dend in the insolvency proc^dings, was a
waiver of his right to object to the validity
of the insolvency statutes, and that, accord-
ingly, the defendants were entitled to the-
jud^ent.
*'The view of the court was that, when the-
composition was confirmed, Eustis was put
to his election whether he would avail him-
self of the composition offer, or would reject
it and rely upon his right to enforce his debt
af^inst his debtors notwithstanding their
discharge.
"In ito discussion of this question the court
below cited and claimed to follow the deci-
sion of this court in the case of Clay v. Smith,,
3 Pet 411 [7: 723], where it was held that
the plaintiff, by proving his debt and taking-
a dividend under the bankrupt laws of Lou-
isiana, waived his right to object that the-
law did not constitutionally apply to hla^
debt, he being a creditor residing in another
state. But m deciding that it w&s compe-
tent for Eustis to waive his legal rights, and
that accepting his dividend under the in-
solvency prooMdings was such a waiver, the-
court below did not decide a Federal ques-
tion. Whether that view of the case was
sound or not, it is not for us to inquire. It
was broad enough, in itself, to support th*^
final judgment, without reference to the Fed-
eral question."
819^
649-652
SUPIIEICB CODIIT OP THE UNITED STATES.
Oct. Ton,
Eustis had a right which was protected by
the Constitulion of the United States. This
riffh't, the state court held, h^ had waived by
hu action, and this court said whether the
state court was right or not was not a Fed-
eral question.
In Seneca Nation ▼. Chrieiy, eupra, it was
|WO]held by *the state court that even if there
were a rieht of recovery on the part of the
plaintiffs in error because the grant of 1826
was in contravention of the Constitution of
the United States, (which the court held was
not the case), yet that such recovery was
barred by the New York statute of limita-
tions, lliis court held that as the jud^ent
of the state court could be maintainecTupon
the latter ground, it was without jurisdic-
tion because the decision of the state court
upon that ground involved no Federal ques-
tion.
In this case there being two distinct
grounds upon which the judgment of the
state court was based, each of which is suffi-
cient, and one of which involves no Federal
question, we must, upon the authority of the
cases above cited, hold that this court is
without jurisdiction, and the writ of error
must be dismiesed.
Mr. Justice Harlan and Mr. Justice
White were of opinion that the decree
ahould be affirmed.
Lewis Piebce et al., Plffa, in Err,,
V.
John Ayeb et oZ.
(See 8. C. Reporter's ed. 650.)
Fierce wMomeraet Railway, ante, p. 816, followed.
[No. 13.]
Argued October 11, 12, 1898, Decided Octo-
ber SI, 1898.
IN ERROR to the Supreme Judicial Court
of the State of Maine.
This case was argued with Pierce v. Som-
erset Railtoay, ante, p. 316.
Messrs, D. D. Stewart and H, B, Cleaves
for plaintiffs in error.
Messrs. Joaiali H. Drnmiaond, Ednmnd
P. Webb, and Joseph W. Symonds for de-
fendants in error.
This writ of error is controlled by the de-
eision in the case just announced. The writ
will, therefore, be dismissed.
THE ST. LOUIS MINING ft MILLING
COMPANY of Montana, and Charles May-
ger, Plffs. in Err.,
V.
MONTANA MINING COMPANY, limited.
(See 8. C. Reporter's ed. 650-668.)
Compromise as to mining claim, iohen valid.
A compromise of a dispute as to a mining
claim, whereby an action to determine the
right thereto Is dismissed. In consideration of
an Interest In the ground when thereafter
820
patented b> the applicant. Is Talld, to the i^
sence of any statutory proyisloo.
[No. 305.]
SuhmiUed October 10, 1898. Decided Oef-
ber SI, 1898.
IN ERROR to the Supreme Court of the
State of Montana to review a decree of
that court affirming the decree of the Db- ■
trict Court of the First Judicial District ci i
the State of Montana in and for theCoontj of j
Lewis and Clarke in favor of the plaintiff, !
the Montana Mining Company, in an aetiot
brought by it against the St. Louis Minlsf
& Milling Company of Montana et al. for i ,
decree that defendants shall convey to pUis* j
tiff by a good and sufficient deed a portioi
of a mining claim. On motion to dismiss or ;
affirm. Affirmed,
See same case below, 20 Mont. S94.
Statement by Mr. Chief Justice FwIUt; j
•This W8UB a suit for specific perform»B«l«|
brought by the Montana Mining Compaay j
against the St. Louis Mining & Milling Ccfat- \
pany of Montana and Charles Mayger in t^ |
district court of the first judicial district of |
the state of Montana, in and for the eonotj I
of Lewis and Clarke.
The complaint alleged that on March 7. a. !
D. 1884, plaintiff's predecessors in interert.
Robinson, Huggins, Sterling, DeCamp, and
Eddy, were the owners of and in poesessioi, j
and legally entitled to the use, occupttioe,
and possession, of a certain portion of the
Nine Hour Lode and Mining Claim. wW«k j
embraced in all an area of 12,844.5 f«et, to- [
gether wi-tti the minerals therein coduumA
That Mayger applied to the United Sut«
land office at Helena for a patent to the Sl !
Louis Lode Mining Claim, owned by him.
and that in the survey he caused to be m«*
of his claim he included that part of the Kiot
Hour Lode Mining Claim deaeribed in the
complaint; whereupon an action was (v>m*
inenced by Robinson and Huggins t^inrt |
Mayger in the district court of the third ji-
diciaS district of the then territory of Mc«>
tana to determine the right to the possessK*
of the particular premises. That on said 7ti
of March, for the purpose of eettliBg mi
compromising that action, and aetdinf uA ■.
agreeing upon the boundary Unes bet«"«*s
the Nine Hour Lode Mining Claim and Uw
St Louis I^e Mning Chum, Mayger msde.
executed, and delivered to Robinson, Hot- i
gins, and Sterling a certaSn bond for a desd. .
whereby, in consideration of the compromht
and settlement of the action and the ffitk* ,
drawal of the protest and adverse chim. k# i
covenanted and agreed that when he shooW
obtain a patent as applied for, he wooM. « |
demand, make, execute, and deliver to Bob^
inson, Huggins, and Sterling, or their mti^
a good 'and sufficient deed for the prtauwH*
described in the complahit; and therecpog
Robinson, Huggins, and Sterling dismwwd
their said action, withdrew their •dmijt ,
claim, and performed all of the oonditioBS « '
t the bond on t^«r part . '
' That Mayger then proceeded with h» ^ ;
18961
81; Loon MiNiNo A IL Co. t. Moiitana Minhto Co.
650-05*
plieitioo tnd o/btained a pvtemt, but that he
gftfe no notice to plaintiff, or anv oi Ita pred-
co680or8 in interest, of the obtaining^ of the
patent until some time in November, 1889.
lliat when the bond for a deed was exe-
eated, plaintiff's predecessors in interest were
in possession of the premises, and have ever
■noe been and sre yet in possession thereof,
heading and nsing the same as a pait of the
Kme Sour Lode Claim; that by meane oon-
Teyances the title to this daim, including
the portion in dispurte in this suit, had oome
to plaintiff; that it la entitled to a convey-
tnee of the premises from Mayger ; that May-
ger, on or about June 10, 1893, assumed to
eonyey aidd piece of ground to the St Louis
Mining & "Uilljng Company, which then had
foil knowledge and notice of the making, ex-
ecution, and delivery of the bond for a deed
Iff Mayger, and of the rif^hts and
equities of the Montana Mining Com-
pany thereunder; that the St. Louis
Company has instituted a number of suits
in the Circuit Court of the United States,
in which it claims that it is the owner of the
premises deecribed.in the complaint, and also
the right to recover ceitadn sums of money
lor ores alleged to harve been wrongfully ex-
tneted therSbram. The bond refenid to was
mended to the oomplaint. The prayer was
that the court shoula decree that defendants
ihoold convey to plaintiff a good and suffi-
cieot deed to the premises in oontroveray.
The answer demed aU (the material allega-
tions of the oomplaint, and affirmatively al-
leged that the adverse ehdm interposed to
the application of Mayger for a patent was
for the purpose of harasaing and hindering
Mayger in obtaining a patent to his mining
diun, and that the bona was given contrary
to equity, good oonsdence, and public policy.
The case was tried by the oactrict court
without a jury, and the court made and filed
findings of fact and oonduakms of law. It
was found that plaintiff's predecessors in in-
mjierest *were at the time mentioned in the
complaint the owners of, in possession, and
entitled to the possession, of the Nine Hour
Lode Mining Claim as described, and that
the strip of ground in dispute was at the time
tad ocnitinQed to be a pait of said daim;
that the bond was execupted and delivered by
Mayger to the parties therein named, binding
Mayger to convey to them or their assigns
the ground in question when Mayger ob-
tiined a patent therefor; that It was given as
a o(»nproaiiee and Mttleinent of the contro-
versy as to the land now in dispute, and then
in litigation between the parties, and for the
pnrpose of fixing and determininff the bound-
ary line beween the Nine Hour Lode Mining
(3aam and the St Louis Mining Claim, aa al-
leged in the complaint, and that Mayser
thereafterwards did obtain a patent covering
the premises in dispute; that plaintiffs in
the adverse mining suit, on the execution to
them of the bond by Mayger, dismissed their
s(*tion and performed all the conditions of
the contraot on their pait; that at 1^ time
of the execution of the bond the predecessors
of plaintiff were In actual possession of the
grotad m dispute, and that they and plain-
ITl V. S. U. a, Boos 48. 21
tiff have ever since remained in possession
thereof, claiming and holding tiie same as a
part of the Nine Hour Lode Mining Claim ;
that at the date of the execution and delivery
of the bond. It was expresdv agreed between
the parties thereto that all of the ground
lying to the east of the westerly line of the
strip should be a portion of lAie Nine Hour
Lode Mining Claim; that plaintiff is the suc-
cessor in interert of RoflHnson, Huggins, and
Sterling, the obligees named in the £md, and
also of De Camp and Eddy, who were co-
tenants with said oblig^ees in the premises at
•the diate of the execution of the bond; that
the mesne conveyances introduced in evi-
dence on the part of plaintiff embraced and
were intended to include the ground in ques-
tion, and conveyed to the grantees therein
named all of the interest, legal and equit-
able, which the grantor or grantors had
in said premises, covering as well their in-
terest in the ground in dispute as in every
other part and parcel of the Nine Hour Lode
Mining Claim.
That in July, 1893, plaintiff dulv demanded
a deed to the *ffround in dispute from defend- [664^
ants, which defendants refused to execute;
that in June, 1893, Mayger assumed
to convey the controverted around to
the St. Louis Mining & Milling Com-
pany, but that at the date of his convey-
ance the St. Louis Company had full
notice and knowledge of plaintiff's equities
in and to the disputed strip, and of its posses-
sion thereof; that defendants wrongfully as-
serted title to the ground in controversy,
and thereby douded plaintiff's title thereto,
which cloud plaintiff had a right to have re-
moved.
The district court concluded as matter of
law that plaintiff was entitled to the con-
veyance prated for, and that defendants
should be enjoined from asserting any right,
title or interest in or to the ground in dis-
pute, and from in any manner interfering
with the possession or enjoyment thereof by
plaintiff.
In accordance with the findings of fact and
conclusions of law, a decree was entered for
plaintiff, and defendants appealed to the su-
preme court of the state of Montana, by
which it was affirmed. [20 Mont. 394] 61
Pac. 824.
This writ of error was theii sued out, and
defendants in error now move to dismiss the
writ, or that the decree be affirmed.
Messrs. diaries J. Hushes, Jr., and W.
E. Oullen for defendant in error in favor
of motion to dinmisB or affirm.
Messrs, W. W. Dixon, Edwin W. Toole,
MoConnell, Clayherff, A Oi«nn, and Thormu
O. Bach for plaintiffs in error In opposition
to motion.
*Mr. Chief Justice FuUer delivered the[664;
opinion of the court:
While it is conceded by plaintiffs in error
that there is no express prohibition on the
transaction involved in the record, it is con-
tended that the contract was contrarv to the
policy of the law, and that the question thus
321
05«-IUT
BcFUEHE CorKT OF THM UniTED Statu.
'aised is necessarily & Federal question.
[WSlGrantins that this is so, and that Qi« 'mo-
tion to dismiss must therefore Im overruled,
we are of opinion that there was color for the
motion, tad that the case maj properly be
disposed of on the motion t4i ^rm.
The supreme court of Montana ruled that,
in the absence of statutory prohibition, there
was no reason in law or equity why the con-
tract sought to be enforced should be held
illegal, and we concur in this disposition of
the Federal question euKgested-
The public policy of t£e government ia to
be found in tne Constitution and the laws,
and the course of administration and deci-
sion. Licmie Tarn Ctuea, 6 Wall. 462 [18:
497] ; United States v. Trantllittoari
Freight Assooiation, 166 D. S. 340 [41:
1027].
The proposition of plaintiffs in error is
that where an application to eDt«r a mining
claim is made, and there is embnMwd therein
land claimed by another, it is the duty of
the latter to file an adverse claim and there-
after bring in some oonrt of competent ioris-
dietion an action to determine the right to
the area in conflict, whi<^ action must be
prosecuted to a Snal judgment or dismissed;
and that no valid settlement can be made by
, which such adverse claimant can acquire any
interest in the ground when thereafter pat-
ented by the applicant. We are not aware
of any public policy of the govemnwnt which
snstalns this proposition.
Where there is a valid location of a min-
ing claim, the area becomes segregated from
the pnblic domain and the property of the
locator. There is no inhibition in the min-
eral lands act against alienation, and he may
sell it, mortgage it, or part with the whole
or any portion of it as he may see fit.
Forbes v. Oraeey, 94 U. B. 766 [24: 314] ;
Manvel v. Wulff, 1S2 U. S. SIO [38:634];
niack T. Elkkom Mining Company, 163 U.
S. 44S [41:223].
The location of the Nine Hour Lode was in
all respects sufficient and valid. When the
dispute afterwards arose between Robinson
and Mayger as to a portion of it, there was
nothing to compel tbe filing of an adverse
claim. The settlement made gave Robinson
an equitable title immediately, and ultimate-
ly he was to have the complete l^al title, to
a piece of ground which, it seems, rightfully
belonged to him. The government was not
fW6]defrauded in any way, nor *was tliere any
legal or moral fraud involved in the transac-
tion. The settlement and adjustment of the
dispute with reference to the right of pos-
session appears upon its face to have been
satisfactory to Uie parties when made, and
should be upheld unless contravening some
statute or some fundamental principle of
law recogniKcd as the basis of public poli<7.
, There was no such statute, and settlements of
matters in litigation, or En dispute, without
recourse to litigation, are generally favored,
and are apparently of fre<juent occurrence
in regard to mining land claims ; nor Is there
anything In the decisions of this court to
throw doubt on their validity.
In f)uoie V. Ford, 138 U. S. 687 [34: 1001],
a contract of the ebaraoter of that under eon-
3S8
sideration was passs
to enforce Its specil
was aesumed that th
as in contravention
United States, or coi
In If yen v. Oroft, 1
this court was asked
bitiott against alieni
clause of the 12th sei
act of 1841 extended
to the actual issue of
declined to do, and di
the act was attainei
went with clean ham
proved up and paid
court said: "Rcstrid
alienation after this
emptor, and would s
pose of public policy.
Eateuts do not Issue
usiness in the genei
eral years after the
given, and equally v
all the valuable land
mitt«d since 1841 ha
the pre-emption lawi
them freely exercise
proved up, the land ]
cats of entry receive
facta we cannot supp
express declaration t
gress intonded to tit
hands of the origina
emment should choo
*In Davenport r. 1
666], a covenant nu
"that if they obtain
property from the eg
Btatee, they woula i
grantee, his heirs or
eral warranty," mai
In Ifomb V. DoMH'
7S9],Ur. JusUcaHi
under that act, aaid
jects of bargain and
parties to such eoni
Tie right of the Uni
their own propertv
make rules by whi<m
ment may be sold or
ednd; but, subject fa
ciples, parties in posi
make valid contract
title, predicated upi
they might therearb
title, except In eases
posed reeb'lctions on
And to the Nine ef
80 Fed. Bep. £T, wh<
sidered by Mr. JustI
judge.
Anderton t. Oarki
272], involved a con
steader to convey a
he should acquire <
United States, and w
ent grounds. It wa
that "the theory of
18M.
Peoflb, m rd, Pabkb, Dayis, & Ca, t. Robsbts.
607-C60
that tlie booMstaad shall be for the exclusive
I ■lit of the honwBtesdor. Section 2^.90 of
the Bevised Gtatstee provides that a person
yrifing lor the cntnr of a homestead daim
Half bsIbb alBdavit that, among oth«r
thhupi, *WQek mftfMmMim is made for his ex>
cham nsa asu. benefit, and that his entry
is Bade lor tiie purpose of actual settleraent
tod eoltivation, and not either directly or
indirectly for the use or benefit of any other
person.' And section 2291, which prescribes
the time and manner of final proof, requires
that the applicant make 'affidavit that no
part of sudi land has been alienated, except
fi]*u provided in section twenty-two hundred
ind dghty-eight,' which section provides for
•lienauon for 'church, cemetery, or school
purposes, or for the right of way of rail-
moB,' Hie law contemplates five years'
eontinuous occupation by the homesteader,
with no alienation except for the named pur-
poses. It is true that the sections contain
DO eomress prohibition of alienation, and no
forfeitnre in case of alienation; yet under
them the homestead ri^ht cannot be per-
fected in ease of alienation, or contract for
tlienation, without perjury by the home-
steader. • . • There can be no (question
that this contract contemplated perjury on
the part of Anderson, ana was designed to
tinrmrt the policy of the government in the
homestead laws, to secure for the benefit of
the homesteader the exdusive benefit of his
homestead right."
In the case at bar there was no statute
iHiieh, in express terms, or by any fair im-
plication, forbade the making of such a con-
tract as that proceeded on here. Decree of'
finned^
PEOPLE OP THE STATE OP NEW YOBK.
egrel PABKE, DAVIS, & COMPANY,
Plff. m Err^
9.
JAMES A. ROBERTS, Comptroller of the
Stote of New York.
(See 8. C. Beporter*s ed. 658-688.)
Tat <m eapital of a corporation — Federal
saesium — queetion of fact — taw valid,
1. The eqoal protection of the laws Is not de-
nied to a foreign corporation which manii-
factoree soods In other states and sends them
into the state for sale, by a tax on the amoont
eC capital employed by It within the state,
l^eeaose of an exemption of corporations
which are wholly engaged In manufacturing
within the state, when the statute makes no
dlserimlnatlon between foreign and domestic
corporations.
1 Krror in the estimate of the amonnt of
etpital employed in a state and subject to
tax therein does not present a Federal ques-
tion on wilt of error to a state court.
t. The rdatlon of a person to the boslness of
s eorpomtlon la one of fact, which Is not
open to Ingolij on writ of error to a state
eoorL
4. A franchlae or business tax on the amount
^ capital stock employed within the state by
a foreLm corporation organized to conduct
171 vTm.
strictly priyate business is not InTalfd be-
cause a portion of Its business is the importa>
tlon and sale of artlelea In orli^naJ padcages.
[No. 21.]
Argwd April td, tl, 1898. Decided Octa-
her 8U 1898.
IN ERROR to the Supreme Court of the
State of New York to review a judgment
of that court entered in pursuance of the de-
cision of the Court of Appeals of that state
quashing a writ of certiorari and confirming
the comptroller's assessment of and tax upon
the capital em|>lo7ed within the state, owned
by Parke, Davis, ft Company, a corporation
of Michigan. Affirmed,
See same case below, 91 Hun, 158, 149 N.
Y. 608.
Statement hj Mr. Justice Shiraat
*Parke, Davis, & Company in the name of[669]
a corporation organized under the laws of
the state of Michigan for the manufacture and
sale of chemical and pharmaceutical prepa-
rations. The factory is situated in the city
of Detroit. The corporation has a warehouse
and depot in the cit^ of New York, and there
keeps on hand varying <]uantities of its man-
ufactured products, which are there sold at
wholesale in original packages. The concern
is represented in New York by John Clay as
manager, who is paid a salary. The busi-
ness of selling the manufactured articles is
carried on in all respects like the ordinary
sales of consigned goods. Clay, in his own
name, but for the use of the company, im-
ports crude drugs from foreira countries at
the port of New York. Such crude drugs
are, in large part, sent to the Detroit factory
for use, but some portions are sold in the
orUnual packsges in the city of New York.
fte corporation pays an annual rental for
its place of business in New York of $12,500,
employs there a force of over fifty persons,
ana expended for the New York branch an-
nually, for the years 1890 to 1894, inclusive,
from $102,000 to $172,000. The property
owned in New York, in the way of business
fixtures, is valued at $15,000; the average
stock of goods sent from Michigan and car-
ried in ^ew York during those years was
$50,000. It also employed in New York
during that period a continuing capital,
used in the purchase and sale of crude drugs,
of from $23,000 to $62,000 per year.
Upon this state oif facts the comptroller of
New York imposed for 1894, and five pre-
vious years, an annual tax based upon the
sum of $90,000 as "capital employed within
the state."
*At the time of the imposition of this tax[660J
the provisions of the statute here drawn in
question were as follows (Laws 1880, chap.
542, § 3, as amended by Laws 1881, chap.
361 ; Laws 1885, chap. 359; Laws 1889, chaps.
193, 353) :
"EveiT corporation. Joint-stock company,
or association whatever, now or hereafter in*
oorporated, organized or formed under, by
or pursuant to law in this state or in any
other state or country, and doing business in
this state, except only savings banks and in*
323
•60,661
Supreme CtOobt of thb Unitko States.
Oct. Tku,
Btitutions for savings, life insurance com-
panies, banks, foreign insurance companies,
manufacturing or mining corporations or
eompanies wholly engaged in carrying on
manufacture or mining ores within thie state,
and agricultural and horticultural societies
or associations, which exceptions, however,
shall not include gas companies, trust com-
panies, electric or steam heating, lighting,
and power companies, shall be liable to and
shall pay a tax as a tax upon its franchise
or business into the state treasury annually,
to be computed as follows."
Then eome provisions grading tne tax ac-
cording to annual dividends. The tax orig-
inally fell upon the entire capital of a cor-
poration, but the statute was amended in
1886 so as to read :
"The amount of tsapital stock which shM
he the hoMs for tax under the provisions of
section three {supra) in the case of every
corporation, joint-stock company, and asso-
ciation liable to taxation thereunder, shall
be the amount of capital itodc employed
within this state."
Parke, Davis, ft Company, throuffh their
said manager, filed a petition in uie New
York supreme court, praying for a writ of
certiorari directed to the comptroller, in or-
der to subject his assessment to correction.
In the petition it was alleged that the only
capital m anv proper sense employed by the
company within the state of New York in
the sale of its products was its leasehold of
the warehouse and the office furniture and
fixtures, not exceeding in value $15,000 ; that
said company, being a manufacturing cor-
poration, was exempt from taxation under
the laws of the state of New York; that the
comptroller erred in deciding that goods
[661]manufactured *by said corporation and
stored at its depot in New York are capital
employed in saia state within the meaning of
the statute; that if said statute was cor-
rectly interpreted by the comptroller, then
said statute was unconstitutional and void
as in contravention of the Constitution of
the United States and the amendments there-
of.
To the certiorari granted upon said peti-
tion the comptroller duly made a return, al-
Icffing that nis acts and proceedings were
Talid.
The cause was heard at the December term,
1895, of said court, and judgment was en-
tered quashing the writ of certiorari, and
confirming the comptroller's assessment.
From tiiat judgment an appeal was taken to
the court of appeals of the state of New York,
and on June 9, 1890, the cause was heard,
the order and judement of the supreme court
were affirmed, ana the record remitted to the
cupreme court. 91 Hun, 158, 149 N. Y. 608.
whereupon the cause was brought to this
court by a writ of error duly prayed for and
allowe<L
Ur. James KeXe6a» for plaintiflr in
error:
The New York statute impoeee a discrimin-
ating tax upon these relators for lellinff in
New York, in the oriffinal packages, their
Sroduets made in Michigan.
184
Tieman v. Rinker, 102 U. S. 123, t6 L. eL
103 : WaUing v. Miohigam, 116 U. a 441, »
L. ed. 691 ; Welton t. MissauH, 91 U. & rs,
23 L. ed. 347 ; Minnesota t. Barber, 136 U.
S. 313, 34 L. ed. 455, 8 Inters. Com. Bsf^
185; Brimmer v. Bebman, 188 U. 8. 78, M
L. ed. 862, 3 Inters. Com. Rm. 48S; 7e^
y. Wright, 141 U. & 62, 35 L. ed. 638; Pm^
tal Teleg. Oable Co. t. Adams, 166 U. & 69,
3!> L. ed. 312, 5 Inters. Ck>m. Rep. 1.
Taxation upon the ''franchiees or busiasa*
of importing goods and once sellins then ii
a power unequivocally surrendered by tbt
states to the Federal govermneni.
Broum v. Maryland, 12 Wheat. 419, • L
ed. 678.
The tax upon the franchise or botiassi if
selling their own goods in New York, is-
posed upon the relators, is nneonatituUoMl
in the absence of permission from CcmpmL
Leisy t. Hardin, 135 U. & 100, S4X sL
128, 3 Inters. Com. Rep. 36;Aob&Mw v. 8kd-
by County Tawing Disi, 120 U. a 489. M
L. ed. 694, 1 Inters. Com. Rep. 45; Cooper
Mfg, Co, V. Ferguson, 113 U. 8. 727, 28 L
ed. 1137.
The tax here in question cannot be Bsii-
tained as one imposed to reimburse the ilsti
for any police supervision am- fbreicn «s^
porations there selling their own goois.
Charlotte, C. d A. R. Co. t. Oikkes, 14t a
a 386, 35 L. ed. 1051.
Where exemptions are so ineorporatsd Is
a tax law as to result in nnconatitntisMl H^
criminaticm the whole law faUa.
Spraigue v. Thompson, 118 U. & 90, 16, II
L. ed. 115, 117; Tick Wo t. Hapkims, 118 U.
a 356, 30 L. ed. 220.
Messrs. Theodore B. Kameeek, Atfe» J
ney General of New York, and WiOiam Fes-
ry Dennis, for defendant in error:
It is not sufficient to show that a Menl
question might have arisen or been appUee-
ble to the case, unless it is farther ihowi m
the record that it did arise and was appM
by the state court to the case.
Hagar t. California, 164 U. a 60, 9«
L. ed. 1044; CroweU t. RandM, 10 Put M.
9 L. ed. 458; Edwards t. EUiott, tl WtH
532, 22 L. ed. 487; Ocean Ins. Co. v. FeOrn,
13 Pet. 157, 10 L. ed. 105; Waiker v. FiOe-
vaso, 6 Wall. 124, 18 L. ed. 853; Eeeter r.
Ashley, 6 Wall. 142, 18 L. ed. 733; Mm Ju
Chouteau, 8 Wall. 314, 19 L. ed. 317 ; Phmm9 ]
Ins. Co. V. The Treasurer, 11 Wall tOl S9
L. ed. 112; Otis t. Oregon B. 8. Oa. Ill U. &
548, 29 L. ed. 719.
The return of the comptroller aMt tai
taken as condusivo as to the facts.
People, Sims, t. New York Fire Oemn.
N. Y. 437 ; People, RoehUnfs Boms Oa
Wemple, 138 N. Y. 582; Pec^li^ ^«it
Co., V. Martin, 142 N. Y. 228.
The tax, although upon the fraackise!
business of a corporation, is measnnd by ^
8 mount of its capital employed ia tht
Horn Silver Min. Co. v. New York, 143
S. 305, 36 L. ed. 164, 4 Inters. Ooa. Bi^ f^
Home Ins. Co. t. New York, 119 U. &
30 L. ed. 350.
Taxation is measured by ike saoM
capital employed in the sts^
Pbofls, ex rel. Pabkb, Datib, & Co.^ t. Robbbtb.
661-661
PmU. Beth ThomoB Oloek Co., t. WempU,
18S N. Y. 323.
The statute is not an inf rinffement of the
faiterttate oommeroe clause ox the Federal
Oonstitution.
People, Amerioan Ooniraoting d D, Co., T.
Fempie, 129 N. Y. 658; Woodruff ▼. Por-
Aom, 8 WalL 136, 19 L. ed. 386; Postal
Tflejo. Cable Co. y. Adama, 165 U. S. 688, 39
L ed. 311, 6 Inters. Com. Rep. 1 ; Pembina
Comal. SUver Mm. d MiU. Co. ▼. Pennaylva-
nia, 125 U. S. 181, 31 L. ed. 660, 2 Inters.
Com. Sep. 24; People, Southern Cotton Oil
Co,, T. Wemple, 131 N. Y. 64.
A corporation^ whether dosnestic or for*
cign, cannot claim exemption because of do-
ii^ a manufacturing business outside of the
state of New York.
People, Tiffany, r. Campbell, 144 N. Y.
106; People, Weetem Electric Co., v. Camp-
kM, 146 N. Y. 687 ; Horn Silver Min. Co. v.
Vew York, 143 U. S. 305, 36 L. ed. 164, 4
Inters. Com. Rep. 67; Southern Cotton Oil
Co. T. Wemple, 44 Fed. Rep. 24.
A state may discriminate in favor of do-
mestic ae against foreign corporations, and
nuij require a franchise or business tax from
the latter as a c(mdition of being allowed
to do business within the state.
Ducat Y. Chicago, 10 Wall. 410, 19 L. ed.
972'; Cooper Mfg. Co. v. Ferguson, 113 U. S.
727, 28 L. ed. 1137; People ▼. Formosa, 131
N. Y. 478; Demarest v. Flack, 128 N. Y.
205, 13 L. R. A. 864; Ashley v. Ryan, 153 U.
S. 437, 38 L. ed. 774, 4 Inters. Com. Rep.
664; Ixtfayette Ins. Co. t. French, 18 How.
404, 21 L. ed. 461.
d] *Mr. Justice Sliirae delivered the opinion
of the court:
The oonstructionput upon the statute of
the state of New York by its courts is, of
course, binding upon this court, and that por-
tion of the contention which questioned the
action of the comptroller on the ground of a
ini^nterpretation of the law is thus disposed
of.
It must be regarded as finally settled by
frequent decisions of this court that, subject
to certain limitations as respects interstate
and foreign commerce, a state may impose
sach conditions upon permitting a foreign
l2}corporation to do ousiness *within its linuts
as it may judge expedient; and that it may
make the grant or privilege dependent upon
the payment of a specific license tax, or a
sum proportioned to the amount of its capi-
tal used within the state. Paul v. Virginia,
8 WalL 168 [19: 367] ; Horn Silver Mining
Co. v. New fork, 143 U. 8. 305 [36:164, 4
Inters. Com. Rep. 67].
Accordingly the counsel for the plaintiff in
error disavows in his brief any wish to bring
those decisions into further review, but his
contention is that this Michigan corporation,
having come within the jurisdiction of New
York hy comj^lianoe with all the provisions
of law imposing conditions for transactinff
business within the state, is denied the equal
protection of the law when subjected to a
tax from which are exempted other corpora*
tions, foreign and domestic, which wnoUy
manufacture the same class of goods within
171 V.U.
the state; that such a tax is an unjust dit*
crimination asainst this corporation, T^hose
place of maniuacture is in the state of Mich-
igan. By this contention it is not meant,
of course, that this particular corporation is,
in terms, discriminated against in the New
York statute, but that all corporations which
manufacture their goods vmolly in other
states^ and send them for sale in New York
are discriminated against in favor of such
corporations, whether foreign or domestic, as
manufacture their goods within the state of
New York.
^ To sustain this contention the well-knowB
line of cases is cited, wherein this court has
had to deal with state legislation imposing
discriminating taxes against the products of
other states. Walling v. Michigan, 116 U.
S. 446 [29: 691] ; Bobbins v. Shelby County
Tawing Diet. 120 U. S. 489 [30: 004] ; Min-
nesota v. Barber, 136 U. S. 313 [34: 456, 8
Inters. Com. Rep. 185].
If the object of the law in question was to
impose a tax upon products of other states
while exempting similar domestic goods from
taxation, tnere might be room to contend
that such a distinction was constitutionally
objectionable as tending to affect or regulate
commerce between the states. Hut we think
that, obviously, such is not the purpose of
this legislation. "Every corporation, joint-
stock company or association whatever, now
or hereafter incorporated, organized or
formed under, by or pursuant tolaw in this
state or in any *other state or country and[668]
doing business in this state . • • shall be'
liable to and shall pay a tax as a tax upon
its franchise or business into the state treas- .
ury annually, to be computed as follows."
It will be ])erceived that the tax is pre-
scribed as well for New York corporations as
for those of ether states. It is true that
manufacturing or mining corporations tDhoU
ly engaged in carrying on manufacture or
mining ores within the state of New York
are cxempte-1 from this tax; but such ex-
emption is not restricted to New York cor-
porations, but includes corporations of other
states as well, when wholly engaged in man-
ufacturing within the state.
In construing this statute it was held in
the case of People, Blackinton Co., v. Rolh
erts, 4 A pp. Div. 388, that a New York cor-
poration which carried on a manufacturing
business in another state was liable to this
tax; and this decision was affirmed by the
New York court of appeals. 151 N. Y. 652.
The tax is graded according to annual div-
idends, and originally was assessed upon the
entire capital of a corporation ; but the stat-
ute was amended in 1885 so as to read: "The
amount of capital stock which shall be the
basis for tax under the provisions of section
three, in the case of every corporation, joint-
stock company, and association liable to tax-
ation thereunder, shall be the amount of
capital stock employed within this state."
So that it if. apparent that there is no
purpose disclosed in the statute either to
distinguish between New York corporations
and those of other states to the detriment of
the latter, or to subject property out of the
state to taxation.
325
In the prcBent case, indeed, complaint ia
made of tue action of thu comptrolleT in de-
termining tha "amount of the capital itock
employed within the state," — that the
kmaunt fixed by him was too lar^ Th« m>-
Uoa of the L-omptroller was subject to revi-
■ion, and the corporation's complainU in re-
■poct thereto were heard and parsed upon br
tae supreme court of New York. The estl-
Rinte of the coinptroller, in determining the
amount of capital employed in the state,
[M4]woiild not be judicially 'interfered with un-
less it wo* cleuily shown that the same was
erroneouB ; ai-.d, eren then, such erron would
not present a i^'ederal question for our con-
nideration.
Nor can we consider the further conten-
tion that portinns of the biuinesd which were
made the basis of the assessment were im-
properly treated as business of the corpora-
tion, whereas they should have been regarded
as pertaiuine to the personal transactions of
Hr. Clay, the company's agent. The tma
relation of Mr. Clay to the corporation's
business was one of fact, in respect to which
ft hearing was afforded to the corporation,
and this court is in no position to ent«r into
■uch an inquiry.
Again, it is said that, even assuming t^t
the importation of crude drugs and their sale
In tlie original packages constitutsd a por-
tion of the corporate luaineas, no tax could
be imposed by the state under the doctrine
of Brovm v. Maryland, 12 Wheat. 419 [6:
W8].
But that case is inapplicable. Here
posed on the business of a corporation, con-
sisting in the storage and distribution of
Tarinus kinds of g<»ds, some products of
their own manufacture and some imported
articles. From the very nature of the tax,
beine laid as a tax upon the franchise of do-
ing busincaa as a corporation, it cannot be
affected in any way by the character of the
property in which its capital stock is in-
vested, Bocietv for Bavingg v. Co!t«, 0 Wall.
604 [18:897}; Provident Inatitution for
Bauingg v. Mataaclitisetia, 6 Wall. 611 [18:
fiD7] ; Pembina Oomol. Silver Mining & Mill.
Co. V. Pennaylvania, 126 U. S. 181 [31:660,
S Inters. Com. Hep. 24] ; ffotne Insurance Co.
T. JVeu Tork, 134 U. S. 664 [33: 1025].
When a corporation of one state, whose
business is that of a common carrier, trans-
acts part of that business in other states,
difficult questions have arisen, and this court
has been called upon to decide whether cer-
tain taxing laws of the resp^tive states in-
fringe upon the freedom of interstate com-
merce. It has been found difficult to pre-
scribe a satisfactory rule whereby the pub-
lic burdens of taxation can be Justly appor-
tioned between the business and agencies of
such i corporation in different states anil tlie
[66S]subject baa been much 'discussed in several
recent cases. Weatem U. Teleg. Co. v.
Atty. Oen. of MaaaaohuaetU, 125 U. 5.
S30 [31:790]; Pittsburgh, Cincinnati, C. d
St. L. B. W. Co. V. Backus, 154 U. S. 421
[38:1031]; PuUman't Palace Car Co. v.
Pennnylvania, 141 V. B. 18 [35:613, S In-
3X6
BO diffleult, h
showtng thee
oraukiud to
aaa having
corporBtlons
private busin
The corpor
litigaUon is i
Virginia, 8 V
sequent eases
ver Mining C
[36: 164, 4 1
specially men
Suestion and
}re us in the
Mining Com]
territory of t
ing ana mai
carried on bui
and was thei
upon its oori
prescribed In
Toit The (
tuc, proceadii
resorted to, ii
brought to
quesuona rail
sidered and
power of the
It is sa^d I
Uon of thu b
business tai
igaged in n
'New York,
corporations
that state to
York. Such
Islatlon, but
restricted to
not perceived
forded to just
eral courts.
The judgm
the Btata of
Mr. Justice
argument, an
of the caae.
Mr. Justice
ment in this
former deeisi<
The comptr
upon the jilal
poration doin,
nual tax for t
five years, np<
tal employed'
thority for tl
of New York
tion, Joiut-st
whatever, nov
189a
People, ex rel. Parks, Davis, <& Co., ▼. Robebtb.
660-669
nnued, or fonned under, by, or pursuant to
uw in this state or in anjr other state or
eountry, and doinff business in this state, ex-
cept only savings oanks and institutions for
ssTings, life insurance companies, bai^,
foreif[n insurance companies, manufacturing
or mining corporations, or companies wholly
mgaged %n carrying on manufacture or min-
ing ores unthin this state, and agricultural
and horticultural societies or associations,
which exceptions, however, shall not in-
dude gas companies, trust companies, elec-
tric or steam heating, lighting, and power
companies, shall be liable to and shall pay
t tax, as a tax upon its franchise or busi-
ness, into the state treasury annually, to be
computed as follows," etc. Laws of N. Y.
1889, n2th Sess. chap. 353, p. 467.
The goods sold by the plaintiff in error,
1^ its agents in New York, are manufactured
in the state of Michigan. If the plaintiff
bad been wholly engag^ in carrying on man-
ufacture in New York it would have been
exempted by the statute from the taxes in
question.
So that the question . In this case is,
whether it is competent for New York to
impose a tax u|>on the franchise or business
67]*ot manuf acturinjf corporations or companies,
foreign or domestic, not '^wholly engaged'' in
carrying on manufacture within its limits,
while at the same time it exempts from such
taxation like corporations or companies
wholly engaged in carrying on manufacture
hi that state.
Is not such legislation an injurious dis-
crimination against the manufacturing busi-
ness and tiie manufactured eoods of other
states, in favor of the manufacturing busi-
ness and the manufactured goods of New
\ork, which is forbidden by the Constitution
of the United States? Let us see. The
question presented for consideration is of
such importance as to justify an extended
reference to our former decisions.
In Woodruff v. Parham, 8 Wall. 123, 140
(19: 382, 387], it was contended that a pro-
rision in the charter of the city of Mobile,
Alabama, authorizing the collection of a tax
on sales at auction, was invalid in its appli-
cation to auctioneers who sold in that state
in the ori^nal packages goods and mer-
chandise tLe product of slates other than
Alabama. This court said: ''The case be-
fore us is a simple tax on sales of merchan-
dise, imposed alike upon all sales made in
Mobile, whether the sales be made by a citi-
zen of Alabama or of another state, and
whether the goods sold are the produce of
that state or some other. There is no at-
tempt to discriminate injuriously affainst
tiie products of other states or the rights of
their citizens, and the case is not, therefore,
an attempt to fetter commerce among the
states, or to deprive the citizens of other
states of any privilege or immunity pos-
' sessed by dtiaens of Alabama. But a law
haying such operation would, in oAr opinion
be an infringement of the provisions of the
Constitution which relate to those subjects,
and therefore void."
At the same term of the court Hineon v.
171 V. U.
Lott, 8 Wall. 148, 150 [19:387, 388], was
decided. That case fhvolved the validity of
a statute of Alabama declaring that ''before
it shall be lawful for any deiuer or dealers
in spirituous liquors to offer any such liq-
uors for sale within the limits of this state,
such dealer or dealers introducing any such
liquors into the state for sale shall first pav
the tax collector of the county into which
such liquors are introduced, a tax of fifty
cents per *gallon upon each and every gallon [668]
thereof." This court said : "If this section
[the one just quoted] stood alone in the leg-
islation of Alabama on the subject of tax-
ins liquors, the effect of it would be that
all such liquors brought into the state from
other states and offered for sale, whether in
the original casks by which they came into
the state, or by retail in smaller quantities,
would be subject to a heavy tax, tohile the
same class of liquors manufactured in the
state would escape the tax. It is obvious
that the right to impose any such discrimi-
natinp^ tax, if it exist at all, cannot be lim-
ited m amount, and that a tax under the
same authority can as readily be laid which
would amount to an absolute prohibition to
sell li(}uors introduced from wimout, while
the privilege would remain unobstructed in
regard to articles made in the state. If this
can be done in reference to liquors, it can be
done with reference to all the products of a
sister state, and in this mode one state can
establish a complete system of non-inter-
course in her commercial relations toith alt
the other states of the Union," Again:
"But while the case has been argued here
with a principal reference to the supposed
prohibition against taxing imports, it is to
be seen from the opinion of tne supreme
court of Alabama delivered in this case, that
the clause of the Constitution which gives
to Congress the right to regulate commerce
among the states was supposed to present a
serious objection to the validity of the Ala-
bama statute. Nor can it be doubted that
a tax which so seriously affects the inter-
change of commodities between the states
as to essentially impede or seriously inter-
fere with it is a regulation of commerce. And
it is also true, as conceded in that opinion,
that Congress has the same right to regulate
commerce among the states that it has to ^ ^
regulate commerce with foreign nations, and
that whenever it exercises that power all
conflicting state laws must give way, and
tnat if (>>ngre8s had made any regulation
covering the matter in question we need in-
quire no further. Tlmt court seems to have
relieved itself of the objection by holding
that the tax imposed by the state of AJa-
bama was an exercise of the concurrent right
of regulating commerce remaining with the
state until some regulation on the subject
had been made *by Congress. But, assuming[669]
the tax to be, as we have supposed, a dis-
criminating tax, levied exclusively upon the
products of sister states, and looking to the
consequences which the exercise of this
power may produce if it be once conceded,
amounting, as we have seen, to a total abo-
lition of all commercial intercourse between
327
069-071
SUPBEMK COUBT OF THK UmITED STATES.
Oct. Tsxm,
the states, under the doak of the taxing
power, we are not prepared to admit that
a state can exercise such a power, though
Congress may have failed to act on the sub-
ject in any manner whatever." Referring to
the. doctrine announced in Oooley v. Ph\la4el'
phia Port Wardens, 12 How. 299 [13: 996],
that there is a class of legislation of a gen-
eral nature affecting the commercial inter-
ests of all the states, which, from its essen-
tial character, is national, and which' must,
so far as it affects those interests, belong
exdusiyely to the Federal government, the
court said: 'The tax in the case before us,
if it were of the character we have suffgested,
discriminating adversely to the products of
all the other states, in favor of those of
Alabama, and involving a principle which
might lead to actual conunercial noninter-
eourse, would, in our opinion, belong to that
dass of legislation, and be forbidden by the
dause of the Constitution just mentioned."
Upon examining the entire revenue statute
of Alabama it was found that it did not in-
juriously discriminate against the products
of other states, and the court said: "As the
effect of the acrt is such as we have described,
and it institutes no legislation which dis-
eriminates against the people of rister
states, but merdy subjects them to the same
rate of taxation whidi sunilar artides pay
that are manufactured within the state, we
do not see in it an attempt to regulate com-
merce, but an appropriate and legitimate
exercise of the tanng power of the stetes." *
In Ward v. Maryland, 12 Wall. 418, 429
[20: 449, 452], the court hdd to be unconsti-
tutional a statute of Maryland, making it
a penal offense for any person, "not being
ajpermanent resident" of that state, to sdf,
offer, or expose for sale, within the city of
Baltimore, any goods, wares, or merchandise
whatever, other than agricultural products
and artides manufactured in the state of
Maryland, without first obtaining a license
I670]so to do, — *such license being fixed at $300
per year, while the license fees or taxes re-
quired of resident traders were from $15 to
$150. The statute was adjudged to be void
because it discriminated aeainst the people
and products of other states. After refer-
ring to some of the former decisions, this
court said: 'Taxes, it is conceded in those
cases, may be imposed by a state on all sales
made within the state, whether the goods
sold were the produce of the state imposing
the tax, or of some other state, provided the
tax imposed is uniform; but the court at
the same time decides in both cases that a
tax discriminating against the commodities
of the citizens of the other states of the
Union would be inconsistent with the provi-
sions of the Federal Constitution, and that
the law imposing such a tax would be uncon-
stitutional and invalid. Such an exaction,
called by what name it ma^ be, is a tax
upon the goods or commodities sold, as the
seller must add to the price to compensate
for the sum charged for the license, which
must be paid by the consumer or by iSe
sdler himself; and in either event the
amount charged is equivalent to a direct
328
tax upon the goods or commodities. Imposed
as the exaction is upon persons not penna-
nent residents in the state, it is not poi " '
to deny that tne tax is discriminating
anj hope that the proposition could be
tained oy the court."
In Welton v. MiascuH, 91 U. S. 275. 27f ,
281 [23: 347, 349, 350], the question wu as
to the validity of a statute of Missouri de>
darinff that whoever should deal in the sdl-
ing of patent and other medicines, goodi,
wares and merchandise, except books, »arti,
maps, and stationery, which were '"not the
growth, produce, or manufacture of this
stete," by goine from plaee te plmee to sdl
the same, should be deemed a peddler, and
prohibiti^ him, under a penalty, from deal-
ing as su(£ without first obtaining a lieeBsa,
no license being required for selling, *^ g>
ing from place to place," the produce er
manufacture of the state. The oonstitatSoB-
ality of that stetute was sought to be mail*
tained upon the ground that it was o&ly a
tax upon a calling. The state eoort took
that view of the statute, and observed that
it was a calling limited teethe sale of ner^^
chandise not the growth or product of Mit-
souri. But this court, after referring te
Broton v. Maryland, 12 Wheat. 419, 444 [•:
678, 687], as holding' an act of Maryland to
be in conflict with the Constitution ol thi
United States because it imposed a lienn
tax upon the importer of tormgn goods, said:
"So, in like manner, the license tax exaetei
by the stete of Missouri from dealers la
?:oods which are not the product or nuMa-
acture of the stete, before th^ can \m sold
from place te place within the state, onst
be regarded as a taw upon suoh goods tktm
selves; and the question presented is,
whether legislation thus oiscrimiBatiaf
against the producte of other stetes in the
conditions of their sale bv a certain daa si
dealers is valid under tne Constitution si
the United Stetes." The question thus pre-
sented was solved by the judgment of thk
court dedaring the legidation of MisMvri
te be unconstitutional. It was further said:
"If Missouri can require a lioense t*x for
the sale by traveling dealers of goods vhiek
are the growth, prcMuct, or manufaetnre si
other stetes or countries, it may require sach
license tax as a condition of their sale fnm
ordinarv inerchante, and the amount of Ok
tax will be a matter resting exdusively ia
ite discretion. The power of the state to
exact a license tax of any amount beiBg ad-
mitted, no authority would remain ia the
United Stetes or in this court te control its
action, however unreasonable or oppressim
Iraposte operatinff as an absolute codniipa
of the go<>ds womd be possible, and all the
evils of discriminating stete legislatSoo, Is-
vorable to the interesU of one stete and i»-
jurious te the intereste of other stetes a»4
countries, which existed previous to the adop-
tion of tl|B Constitution, might foDow, anl
the experience of the last fifteen years show*
would follow, from the action of some ol ths
stetes."
Tlie case of Gtiy v. Baltimore, 100 U. &
434, 439-443 [25: 743. 745, 746], U much in
171 V. &
IML
Pboplb, m rtL Pabkb, Datib, A Oo., ▼. Robbbts.
671-674
point niAi caM involyed the validity of
eertain ordinances of the mayor and council
of Baltimore baaed upon an act of the gen-
ffal ■mwnhljr of Maryland authorizing the
major and city oooncil of Baltimore to regu-
late, eotaMishj charge, uid collect, to the use
of the laid mayor and dty council, such rate
of wharfaffe aa they deemed reasonable, ''of
7S]uid from all ^Teeaeb resorting to or lyink at,
lADding, depoaiting, or transporting gooos or
irtides other iMi ike mroduoHans of this
itate, on any wharf or whanree belonginff to
•aid mayor and dty eouncO, or any piu>lic
wharf in the eaiid dty, other than the
wfaarree belonging to or rented by the state."
This court, aft^ referring to the previous
esses of Woodruff v. Parham, Hinaon v.
Lett, and Ward v. Maryland, said: ''In
Tiew of these and other dedsions of this
eourt, it must be regarded as settled that no
state can, oonsistenUy with the Federal Gon-
ititution, impoee upon the products of other
■tates, brought therdn for sale or use, or
upon dtizens because engaged in the sale
therein, or the transportation thereto, of the
products of other states, more onerous pub-
lie burdens or taxes than it imposes upon
the liice products of its own territory. If
this were not so, it is easy to perceive how
the power of Congress to regulate commerce
with foreign nations and amonff the several
•tates could be practically annmled, and the
equality of conmierdal privileges secured by
the Federal Constitution to atizens of the
•ereral states be materially abridged and
imDaired."
In the argument of that case it was con-
teoded that the dty, by virtue of its owner-
ship of the wharves in question, had the
right, in its discretion, to permit their free
ose to all ressds landing at them witJi the
products of Maryland; and that those oper-
sting veesds laden with the products of otiier
states cannot justly complain so long as they
tre not required to pay wharfage fees in ex-
cess of reasonable compensation for the use
of the dty's property. The court said:
"This propodtion, however ingenious or
I^asible, is unsound both upon principle
and authority. The municipal corporation
of Baltimore was created by the state of
Maryland to promote the public interests
and the public convenience. The wharf at
which appellant landed his vessel was long
sgo dedicated to public use. The public, for
whose benefit it was acquired, or who are
entitled to partidpate in its use, are not
alone those who may engage in the transpor-
tation to the port of BiQtimore of the prod-
ucts of Maryland. It embraces, neces-
sarily, aU eni^aged in trade and commerce
Sppon the public navigable * waters of the Unit-
ea States. Every vessel employed in such
trade and commerce mav traverse those wa-
ters without let or hindrance from local or
state authority; and the national Constitu-
tion secures to all so empIo;^ed, without ref-
erence to the residence or citizenship of the
owners, the privilege of landing at the port
of Baltimore with any cargo whatever, not
exduded therefrom by or under the author-
ity of some statute in Maryland enacted in
the exertion of its police powers. Hie state,
171 V.B.
it will be admitted, could not lawfully im-
pose upon such cargo any direct public bur-
den or tax because it may consist, in whole
or in part, of the products of other states.
The concession of such a power to the states
would render wholly nugatorv all national
control of commerce among tne states, and
place the trade and business of the coimtry
at the mercy of local regulations, having
for thdr object to secure exclusive benefits
to the dtizens and products of particidar
states. But it is claimed that a state may
empower one of its political agencies, a mere
mimidpal corporation representing^ a por-
tion of its dvil power, to burden interstate
commerce by exacting from those transport-
ing to its wharves the products of other
states wharfaf^e fees which it does not exact
from those bringing to the same wharves the
Sroducts of Ma^land. The city can no more
0 this than it or the state could dis-
criminate against the citizens and prod-
ucts of other states in the use of the public
streets or other public hif^hways. . . .
Municipal corporations owning wharves up-
on the public navigable waters of the United
States, and quasi public corporations trans-
porting the products of the country, cannot
DC permittea by discriminations of that
character to impede commercial intercourse
and traffic among the several states and with
foreign nations. In the exercise of its police
powers a state may exdude from its terri*
tory or prohibit the sale therein of any arti-
cles which, in its judgment, fairly exercised,
are prejudicial to the nealth or would endan-
fer the lives or property of its people. But
if the state, under the guise of exerting its
police powers, should make such exclusion
or prohibition applicable solely to articles of
that kind that may be produced or manu-
factured in other 'states, the courts would[674'
find no difficulty in holding such legislation
to be in conflict with the Constitution of the
United States."
In Howe Machine Co. v. Oage^ 100 U. S.
676, 679 [25: 754, 756], a statute of Tennes-
see imposing a license tax upon all peddlers
of sewing machines was sustained, as not in
violation of the Federal Constitution, be-
cause it applied "alike to sewing machines
manufactured in the state and out of it.**
This court said : "In all cases of this class
to which the one before us belongs, it is a
test question whether there is any discrim-
ination in favor of the state or of the citi-
zens of the state which enacted the law.
Wherever there is such discrimination it is
fatal. Other considerations may lead to the
same result. In the case before us, the stat-
ute in ouestion, as construed by the supreme
court of the state, makes no such discrimina-
tion. It applies alike to sewing machines
manufactured in the state and out of it. The
exaction is not an unusual or unreasonable
one. The state, putting all such machines
upon the same footing with respect to the
tax complained of, had an unquestionable
right to impose the burden. Woodruff v.
Parham, Hinaon v. Lott, Ward v. State of
Maryland, Welton t. State of Miaaouri, sii-
praJ*
Wehher v. Virginia, 103 U. 8. 844, 350
329
ff74-«77
CouBT or 1
[26: 66C, S6T], la ftlso vet? much la point.
That cue inTolTed the validity of a gtatute
of Vir^nia providing th&t "any person who
•hall sell or offer for »ale the manutftctured
artiplea or machines of other etatea or ter-
ritories, unless he be the owner thereof and
tuKd as a merchant, or take orders therefor
on eonunission or otherwise, shall he deemed
to be an agent for the sale of manufactured
»Tticles of other states and territories, and
should not act as such without taking out a
license therefor. No such person shall, un-
der his license as such, sell or offer to sell
■uch article through the agency of another,
but a separate license shall be required from
an agent or emploTce who may sell or offer
to sen such articles for another. For any vio-
lation of this section, the person oITending
shall paj a fine of not less than fif^ dollars
nor more than one hundred dollars tor each
offense. The specific lieeuae tax upon an
a^nt for the sale of any manufactured ar-
COTSjticIe or machine of other states or 'territo-
ries shall be twenty-five dollars ; and this tax
thall give to any partv licensed under this
section the right to sell the same witliln the
county or oorporation in which he shall take
out bis license 1 and if he shall sell or offer
to sell the same in any other of the eonntiea
or corporations of this state, he shall pay an
additional tax of ten dollars In each of Uie
counties or corporations where he may sell
or offer to sell the same. All persona olher
than rgaident manufaoturvn or th«ir agoiUt,
telUng artioles manufactured in thit •(al«,
shall pay the specific license tax imposed t^
this section." !9 45, 46.
This court said: "By these sections, read
tt^ther, we have this result: The agent for
the sale of articles manufactured In other
states must first obtain a license to sell,
for which he is required to pay a spedflo tax
for each county in which he sells or offers to
. sell them; while the agent for the sale of
articles manufactured in the state, It acting
for the manufacturer, Is not required to ob-
tain a license or pay any license tax. Here
there is a clear discrimination in favor of
home manufacturers and against the manu-
facturers of other states. Sales by manu-
facturers are chiefly effected through agmtis.
mode to depend upon the foTtign eharaeter
t>f the articles, — that is, upon their having
been manufactured without the state,— Jt Is
to that extent a r^ulation of commerce In
the articles between the states. It mattars
not whether the tax be laid directly upon
the articles sold or in the form of licenses for
their sale. If by reason of their foreign
character the sta'te can impose a tax upon
them or upon the person through whom the
•ales are effected, the amount of the tax will
be a matter resting In her discretion. Bh«
mat/ place the tax at eo high a figurt aa to
«mIiMle the in troduclton of the foreign arti-
ote and precent compettlion toilk the kome
' product. It was against legislation of this
discriminating kind that the framera of the
Constitution intended to guard when they
vested in Congress the power to regulate
mmmerce among the several states."
legit
tend
held
peon
of t1
thus
be •
Fedc
Unit
Whs
Peir-
2961
ffou
[25 1
bdnj
aett
by tl
ofbt
til t
per]
PiOFLB, •> rel. Pabxx, Datii, ft Co.,
t, wd whetb«r Um aeller ahall compeaute
> iaipcetor or not, i* tluu made to depmd
tMf tifKMi tJW place wAotv the onjmal*
MKJUeh (JU t«e^, twal, or mwtton it taJImt,
n *ldw;ht«r«d. Undoubtedly, a BttA» maj
laUIah rd^atiOBB f*r the proteclion of ita
gple agMiist ths aale of unwholesome
wa, prorided auch regnlatioiiB do not con-
et with the powers conferred bj the Con-
tntion upon Congresa, or infringe ri^te
uted or Mcured bj that instrament. But
may not, tuder the guiK of exerting ita
liei powers, or of enacting ioBpectioii laws,
■fee diforiminaHoM djrainst tAe prodvcla
d MKliHfriet of gome ^ the ttatea in favor
lh« prodtiet* and indtutriee of ita ou>n or
itr ttatea. The owner of the meat* here
qnaetion, although they were from ani-
da alanghtered in niinois, had the right,
dar the ComtJtntion, to compete in the
irketa of Virginia upon terms of equality
th the ownera of like meats, from animals
iiiffatered in Virginia or elaewhere within
• hsndred mllee from the place of sale.
7 toeal regulation which, in t«rms or by
ong the states, and therefore void.
I T. Jfiuoun, gi U. B. £75, 281 [23: 347,
1] ; Botmibal d St. J. Railroad Co. t. Hu-
^ 9B n. S. 460 [84: 627] ; Mianeaota v.
rW, abore cited. The fees exacted, nn-
' the Virginia statute, for the inspection
ttcet, veal, and ronttjm, the product of ani-
ls ilangbtered one hundred miles or more
m the place of sale, are in reality a tax;
I "a discriminating tax imposed by a, state,
ntioned state, is, in effect, a regulation
riatraint of commerce among the states,
Buch, is a usurpation of the powers
tMgan, 116 U. 8. 440, 455 [29: 691, 694].
r can this statute be brought into har-
ny with the Constitution by the circum-
nee that it purports to apply alike to the
itois of all the states, Including Virginia;
'a burden imposed by a attite upon inter-
te eommerce Is not to be sustained simply
anse the statute impoaing it applies alike
the people of all the states, including the
•pie of the state enacting such statute.'
snesotd T. Barber, above cited; Robbint
BMby County Taaing Diatriat, 120 U. S.
). 497 [SO: 694, 697, 1 Inetrs. Com. Hep.
. If the object of Virginia had been to
truet the bringing into that state, for use
tiDnuti food, of all beef, veal, and mutton,
rever wholesome, from animals slaught-
1 is distant states, that object will be
oniplMied if the statute before us be en-
ad.'
B ffmert V. MUtovH, 1S6 U. 8. 296, 311
:430, 434, S Inters. Com. Rep. SS], a
laonri statute requiring' the payment of
ieenie tax by peddlers was hdd ta apply
be a regulation of interstate co
decision was placed upon the
the statute made no dlecrimii
the goods of other states as o
domestie goods.
I am unable to reconcile th
judgment in the present ease '
ciples announced in the above
upon the capital employed by tl
log corporation or company i
tax upon the goods manufai
If this lie not so, there are mai
in the former opinions of thii
should be withdrawn or mod
poration or company wholly en
ufacture in New York has an
the sale of ita goods in the mi
state, over a corporation or oo
facturing like goods in other
former is altogether exempted
in respect of its franchise or
the latter subjected to taxatioi
chiee or businesa measured h<
of ita capital employed in
That stat« may unaoubtedl
tal employed within ita lii
Corations or companies of
ut it cannot impose restrict)
necessarily prevent such coi
companies from selling their {
York upon terms of equality
tions or companies wholly eng
manufacturing goods of like k
statute New Yoric says to the n
corporations and companies of
"Eemore your plant to New 1
capital employed by yon in th
be exempt from taxation. Bu
siqt in keeping your plant wher
established, your franchise or I
be taxed upon the basis of th
ployed by you in New York, wh
of similar corporations or com
engaged in manufacturing in
shall l>e exempt from ttucatic
that the statute of New York d
exclusively to corporations,
equally to oompanies.
In my judgment, this stati
sustained in its application to
in error without rec<^niz{ng
New York, so far as the Fed*
tion is ooncerned, to enact sue
will, by their necessary opera
to a tariff protecting gocHls '
in that state against competitic
keta there with goods manufacl
states. And if such legislatioi
ied in the statute in question
consistent with the Federal
why may not New York, whi
from taxation the franchiaes {
corporations or companies wl
in carrying on their manufact
state, put such taxation upon
or business of corporations or <
ing business in ttiat state, bu
engaged in manufacture th
amount to an absolute probibii
sale in New York of the goods )
'~ other states I If each state
fm-982
BUPBBMB COUBT OF THl UkITBD STATES.
Oct. Tbbm,
should enact a Btatute exempting fr<Hn taxa-
tion the franchise and business of corpora-
tions or companies wholly engaged in carry-
i^ on manufacture within its limits, but
taxing the franchise or business of corpora-
[680]tion8 or companies *whose manufacturing is
carried on in other states, it is easy to see
that commerce among the states womd be as
mudi at the merpy of discriminating state
legislation as it was under the Articles of
Confederation, when, as Mr. Justice Story
well said, the government established to con-
serve the interests of the people of all the
states was competent to dcK^are everything,
but was without power to do anything.
While the authority of the National govern-
ment to lay duties upon ^^oods brought from
foreign countries into this countr;^ so as to
build up and protect American industries
has been recognized, I had not supposed it
was competent for any state of the Union
to exert its power of taxation so as to build
up and protect its local industries by means
of injurious discriminations M^inst the in-
dustries of other states. I had supposed
that the Constitution of the United states
bad established absolute free trade among
the states of the Union, and that freedom
from injurious discrimination in the mar-
kets of any state, against goods manufac-
tured in this country, was a vital principle
/ of constitutional law.
The opinion of the court In this case says:
''If the ohfect of the law in question was to
impose a tax upon products of other states,
while exempting similar domestic goods from
taxation, tnere might be room to contend
that such a distinction was constitutionally
objectionable as tending to affect or regulate
commerce between the states. But we think
that obviously such is not the purpose of
this legislation. 'Every corporation, joints
stock company, or association whatever, now
or hereafter incorporated, organized, or
formed under, by, or pursuant to, law in this
state or in any other state or country and
doing business in this state, . . . shall be
liable to and shall pay a tax as a tax upon
its franchise or business into the state treas-
ury annually, to be computed as follows.'
It will be perceived that the tax is prescribed
as well for New York corporations as for
those of other states. It is true that man-
ufacturing or mining corporations wholly
engaged in carrying on manufacture or min-
ing ores within the state of New York are
exempted from this tax ; but such exemption
is not restricted to New York corporations,
[Ml]but includes corporations *of other states as
well, when wholly engaged in manufacture
within the state.''
I submit that the validity of state legisla-
tion as affected by the Constitution of the
United States is not to be determined al-
together by what is supposed to be the "ob-
ject" or "purpose" of such legislation, if by
object or purpose is meant the motive which
controlled members of the state legislature
when they enacted such legislation. In a
legal sense the object or purpose of legisla-
tion is to be determined by its natural and
reasonable effect, whatever may have been
the motives upon which legislators acted.
.332
Henderson v. Mayor of New York, 92 U. 8.
259, 268 [23:643, 548]. This has ofta
been adjudged by this court. There may i
be no purpose," this court has said, 'Hipoa
the part <n a legislature to violate the pro-
visions of that instrument, and yet a statate
enacted by it, under the forms of law, may,
by its necessary operation, be destructive of ,
rights ffranted or secured by the ConsUta-
tion;" m which case, "the courts must sus-
tain the supreme law of the land by deelar- |
ine the statute unconstitutional and void."
Minnesota v. Barber, 130 U. S. 313, 819 [34:
455, 457, 8 Inters. Com. Eep. 185], and !■-
thorities there cited. Can it be doubted
that, whatever may have been the ostensibis
object for which the New York statute was
passed, the natural and reasonable effect of
the statute is to withhold from goods not
manufactured in New York — and heomus
they toere not there tnanufaotwred—ihti
eqimlity in the markets of New York whi^
we have often said, is secured by the national
Constitution to the like products of other
states? If the plaintiff corporation can ba
taxed on its capital employed in New York
in the business of selling its goods, maaa-
factured in Michigan, while capital as-
ployed in New York by a like manuhteturiaf
corporation is exempted from taTation W-
oause, and only because, it is wholly myafd
in manufacture in that state, is it pooaula
to deny that such legislation Injuriottdy dis-
criminates against the manufactures of
Michigan In Wfor of the like manufaetorai
of New York?
My brethren refer to the general mk thai
it is competent for a state to preaeriba the
conditions upon which coporations of other
states may do business within its limits. Bat
I submit *that that rule, however broadIj(M|
stated, has no application here. The Ktv
York statute has not assumed to preMrifaa
any rule applicable alike to all manufaetar*
ing corporationa or companies of other
states. It exempts from taxation all eor-
porationa or companiea, whether of Kev
York or of otlier atatea, that wholly eany
on their manufacturing buainesa in New York,
Thus a distinction is made between maaa*
facturing corporations and companiea by ax*
empting from taxation on their capital en-
ployed in New York those, and those obIt,
that wholly carry on their manufacturing a
that state. Besides, this court has bstv,
in any case, adjudged that the power of a
state to prescribe the conditions upon whidi
the corporations of other states may do baii-
ness within its limits can be exerted by le9*
islation that directly, or by its nueewiry
operation, discriminates injuriously agaia^
the products of other atatea in favor of tbt
products of such state. On the contrary, ia
the caaea above dted, it has directly adjudged
that such legislation was unconstitutioiitL
It is not necessary for me now to ouestioa
the soundness of the general propoaitioB that
a state may prescribe the conditions upoe
which corporations of other states may oo**
within its limits for purposes of buaiaatf-
A good deal may. depend upon the natara of
the business in which the foreign oorporatka
in IT. a
18:)8.
PsoPLB, ex rel. Pabkb, Datib, & Co., ▼. Roberts.
683, 688
is tigaged. But I do question the power of
Kof state to exact a tax from corporations
or companies not wholly engaged in manu-
ftdnriiig within its limits, if it exempts
from such taxation corporations and com-
paisies wholly engaged, and only because
tirey are wholly engaged, in manufacturing
in such state. If Ais be not a sound view
of the Constitution, it follows that local tax
laws may be so framed as to destroy the
principle, frequently announced and often
recognized by this court, that the products
of the respective states may go into the mar-
kets of the country without being discrimi-
nated against because of the place of their
origin.
The only case which seems to give any
support whatever to the opposite view is
Bom Silver Mining Co, v. New York, 143
U. 8. 305 [36: 164, 4 Inters. Com. Rep. 57].
But a careful examination of the report of
that case and of the opinion shows that
1888] counsel did not present, nor did *the court
consider or determine, the precise point here
presented, as to the authority of the state
to exercise the power of taxation so as to
place burdens upon goods, the manufacture
of other states, solely because they were not
produced in the state imposinff the taxation.
Some stress seems to he laid upon the fact
that the exemption given by the statute to
corporations or companies wholly engaged in
carrying on manufactures or in mininj^ ores
witMn the state of New York is not limited
to corporations or companies of that state;
171 U. 8L
but that the exemption is allowed to such
corporations or companies of other states as
may carry on their manufacturing or min-
ing business wholly in New York. This
view falls far short of meeting the difficulty
presented, namelv, that the statute, by its
necessary operation, injuriously discrimi-
nates sfainst goods manufactured in other
states, in that such goods are not permitted
to go into the markets of New York and
compete there upon equal terms with like
gooos wholly manufactured in that state.
This court has often said that the objection
that a local statute was Invalid, as restrain-
ing or bindlnff commerce among the states,
was not met hy the suggestion that it op-
erated equally upon citizens of the state
which enacted it.
I am of opinion that the statute of New
York in its application to the plaintiff in er-
ror is inconsistent with the power of Con-
gress to regulate commerce among the states,
and with that clause of the Fourteenth
Amendment, which prohibits any state from
denying to any person within its jurisdic-
tion the equal protection of the laws. It is
well settled that corporations are persons
within the meaning of that clause of the
Constitution. Smyth v. Amea, 169 U. S. 466,
522 [42:819,840].
For the reasons stated, I dissent from the
opinion and judgment of the court.
Mr. Justice Brown authorizes me to say
that ha eonoars in this dissent.
83S
171 n. S. 30-47 Note* od D. S. Reports.
DlstlDgulsbed In Pat.i[)sco Guano Co. v. Nortli
S. 3C8, IS S. Ct 867, uplioliJing act providing for 1
tllizers; Wright v. State, 88 Md. 441, 443, 444, 446,
798, 799, Bustaining Maryland oleomargarine act, o
Ing made and sold within State; Raecli v. State,
43 Atl. B34, npboldlng prohibition of Bale of oleomi
ApiTOTed In Wright v. State, 88 Md. 4
of trarerser as of "A. rminfy, In Stati
■rerment of dtlMnahIp tn H.
Oommerce.— Kiglit to sell Imported g
Boltabllltr of original package for retail
Approved In Austin t. State, 101 Tens.
48 S. W. 310, where packs of clgaretb
baskets, not packs, are " original package
171 U. S. 30-34, 18 S. Ct 768, COLLINS
Conuneroe.— State law requlFlng adultc
interferes with interstate commerce: e.
Approved In In re Brundage, 96 Fed.
oleomargarine act (18SD) Is void wherein
Dlftlngtilshed In Austin t. State, 101 '
Kep. 706, 707. 48 S. W. 307, cigarettes n<
of commerce, Importation may be prohil
Statutes.— Direct and necessary result
sidered In passing on Its validity, p. 34.
Approved In State v, Jackman, 69 N.
B. A. 440. ordinance reqnirlng owners or
from Bldt) walks Is invalid.
m tr. & 8S-3S, 18 S. Ct 720, POUNDS
Internal rcrreoiue.— Indictment cbargli
cealment and removal of si^rits. In Ian
sufficient, p. 38,
Criminal Iaw.— Stated verdict agreed
tDmed before Jur; separated, is properly
Not cited.
171 D. 8. 38-47. 18 S. Ct 742. HARRISON v. MOI
Supreme Court will not review State court decl
era] question was decided adversely to claimant, p
Supreme Court will not review State decisioi
qaestloQ was not neceesarllf involved, p. 47.
Beafflnned In McQuade t. Trenton, 172 D. S. 64(
i<» D. S. Reports 171 V. B. 4S-0S
732. DETROIT, ETC^ ET. v. DBTBOIT
Michigan CoDsUtattoo Detroit'! pover of
leglBlatnre aod so limited, p. Bl.
: had DO power to grant exclusive prlrl-
' railway purposes, p. S3.
nece8su1l7 implied ** meana " Inevltabl?
oDiut be conatraed with refereoce to pnb-
I gtven In perpetnltj to monopollea moat
Inferred as iDdlspeneable, p. Cfi.
SOfi. DBL HONTB MINING. BTO„ OO.
IN- ETC.. CO.
tatute or contract, owner ot sorfaco owns
arl; undemeath. p. 60.
ge of genera] mining law. district rales
62.
local custom contt mnM follow statute
p. 67.
uplj with coDgreBslona] condlUons to ac>
p. 66.
Mtes rights snperlor to i»-evlona location.
not correspond to permanent snrTeTS.
872 end lines mnst be parallel to bound
rights, p. S4.
■ lode location may be laid within, upon
> location to define consistent undnground
xia of Jnnlor location crosses senior loca-
re not end lines of former, p. 86.
re those crossed by vein. p. 87.
a determines extent of rights below, p. 8A.
punned to an? depth b^Mid aide Udm
] apei lies, p. 89.
t pursuit ot rein; If toIs croasea claim
I. SB.
Itzgwald, ITl U. 8. 9S, 18 8. OL &41, re~
In prindpal cas«; Walnth v. OhuuploB
-07
171 V. 8. 92-108 Notes oa U. S. RepoHa. 10B8
Uii. Co, 171 V. 8. SOT, 18 8. Ct. 915. end Unea of original TMna
■halt be end lines of oil veins fmind withtn Burtace boundaries.
ITlniw. — If apex croasea one end and one aide line, locator may
foUow dip beyond vertical side line, p. 86.
Mfscellaneons.— Cited In Del Muite Mln., etc^ Co^ ▼. iMMt Ghaaca
Uln^ etc» Co., 88 Fed. 986, memoraDdnm dedston.
171 U. a. 92-98, 18 S. Ct. 941, CI.AEK v. FITZGERALD.
AdjDdged In conformity wltb preceding case, q. t.
171 D. 8. 93-100. IS 8. Ct 800, JOHNSON v. DBEW.
Supreme Court will oot review State court's ruling on qtiwtlOB
of State practice, p. 98.
Pabllo landa.— ' Defendant In ejectment cannot effectually aot np
actoal possession wben patent Issued, p. 99.
Publlo lands.— Land department's declsionB npcm queatloiia of
fact are final, tn absence of fraud, p. 99.
Approved In Moore v, Cormode, 20 Wash. 814, S6 Pac 219, de-
partmental withdrawal from settlement, sabBeqnently set aalde,
doea not prevent acQulsitloD of bomeetead before ejection by rail-
road under grant wltbdrawing after selection.
FnbUe lands.— Proceedings culminating In patent confer no title
If contrary to acta of Congress, p. 100.
Pabllo landa.— Congress can make no dlspoaltlMi of land after It
baa passed from United States, p. 100.
171 U. 8. 101-108. 18 8. Ct. 805. TINSLBY v. ANDERSON.
Federal courts will not, except In urgent caeee, exercise Jurlsdle-
tlon to dlscbai^e State court's prisoner by habeas corpus, p. 100.
Approved In MnrkiiBon r. Bouclier, 175 U. 8. 18G. 20 8. CL 77,
and In re O'Brien, 9Q Fed. 132, Federal court will not review State
court's proceedings on habeas corpus where remedy In latter bas
not been exhausted.
Snprame Court will review State court's commitment for con-
tempt In alleged violation of CoostltudtMi, p. 105.
Contempt.— One committed tor contempt, according to general
State law, Is not denied equsl protection, p. 106.
Approved In McDonald v. Commonwealtb, 173 Uasa. S27, 7S Am.
St Rep. 291. 58 N. E. 874. upholding statute making CMivlcted ptr-
sooa, wbo have been twice previously convicted, ponlsbabte ss
habltnal criminals.
Babsas corpus will not r^ease prisoner committed for contempt
by court ot competent Jorlsdlctlon, p. 106.
Contempt.— Officer of corporation, tbougb claiming lien, la la
CMitempt In refusing to deliver books and moneys to recelrsr,
f. 106.
loss Notes OD V. S. Heports. 171 U. S. lOS-lt;!
Vadanl courts will follow Btate ronrts' coostmctloiiB of Stata
■tatntes, p. 107.
Cited In AtcblsoD, ete^ K. R. t. Uatttiews, 174 V. 8. 106, 19 B.
Ct 613, arguendo.
Oonteiapt.— Juy trial la not ueceeaarr to doe proceaa of law on
InqnlT; for coDtempt, p. 108.
A)M>roved In Telegram, etc, Co. T. Commonweelth, 172 Uasa.
296, 70 Am. St. Rep. 281, D2 N. B. 446, 44 L. R. A. 101, power to
ptinJeb for contempt la luberent In courts.
171 U. 8. 108-109, 18 8. Ct 8S7, CENTRAL NATIONAL BANK t.
STEVENS.
Anneal— UotloD to amend mandate In 169 U. a 132, denied,
p. 10ft
Not cited.
171 U. 8. 110-187, 18 B. Ct 817, NORTH AMERICAN COM-
MERCIAL CO. T. UNITED STATES.
Zlsh.— Per capita tax on seels killed In Prlbjlotf Islands was not
aabject to reduction witb rental, where goTemment limited nnm-
ber to be killed, p. 126.
Statntea.— Repeals b7 ImpHcattoD are not favored, p. 130.
Flab.— Act of 1870, fixing annual seal catcb on PrlbyloS Islands,
Is not repealed bj act apportlontng catch, p. 130.
nab.— Leasee of Prlbylt^ Islands Is ^itltled to decrease Id rental
wbere limit ot catcb Is reduced, p. 130.
nsb.— Goremmenf a power to limit seal catch la not affected by
lease of Prtbyloff Islands, p. 1S4
Not cited.
171 D. S. 138-161, 18 8. Ct 80S. PULLMAN'S PALACE-CAR CO.
T. CENTRAL TRANSPORTATION CO.
Equity will not grant complainant leave to dismiss bill If de-
foidsDt would be prejudiced, p. 146.
Appeal.— Equity court's refuse] to discontinue action Is not re-
viewable unless discretion Is abnsed. p. 140.
Oonbaeta.~ Rlgbt to recov^ property delivered under Illegal con-
b«ct Is allowed, npon disaffirmance, If not contrary to public policy.
p. 1B2.
Approved In Bowman v. Foster, etc., Hardware Co., 94 Fed. B97,
rectipt of loan b; private CMDoratlon, becoming stockbtdder In
building and loan association, estc^a it pleading altra vires.
Corporatlona, — Market price of stock of manufacturing corpora-
tJoo Includes more than mere value of property owned, p. 1S4.
Oon&acta.— Leasee, upon dtssffirmsnce of void contract for leasee
must return property or Its value, p. IH.
171 U. S. IGI-:^ Notes on U. S. Beporta.
AnwoTed to Sloox City E. B. v. Trust Co., 173
CL 346, Federal rule la that corporations cannot bi
useitlng corporate act to be ultra vlrea; Louisvl
LonlsTlUe Trust Co., 174 U. S. 567, 19 S. CL S2a
tract to guarantee bonds of another corporatloa
Vergna Ool t. German Sav. Inst, 17D U. 8. S9, 20
can be do recoverr upon ultra vlrea lease, altboi
Ue tor use end occupati<Hi; Hartford Ins. Co. v. Ct
176 U. S. 100, 20 S. Ct 37, arguendo.
Oontracts.— Wbere toW lease reqnlrea renewal
Hon of property court wlU assume value Is sami
contract la disaffirmed, p. 1S7.
Cuibaeta.— Value of patepts and assigned contrs
Con disaffirmance will not be Included In OsiDg am<
Corporations.— Contracts to last during existence
are cot extended with life of ctKporatlon, p. iHR.
3>amag«a.— Party damaged Id business b
of void contract connot recover from the
Miscellaneous. — Columbus Coostr. Co. v. I
1ft S. Ct. 722, dlsmlEsing error to Supreme
was pending In Circuit Court of Appeals.
171 D. 8. 161-179, 18 a Ct 868. DISTRIC
BAILBT.
Arbitaratlon, agreement for, Invtdves powi
If made under rule of court p. 171.
District of Columbia bas only sucb power
statute, p. 176.
Approved in State v. LaBher, 71 Conn. M6. 4
200, election of officer by method not provide*
District of Columbia commissioners have
commoD-law submission of claim to arbitral
171 TI. 8. 179-187. 18 8. Ct 802. TOUNO T. .
Supreme Court cannot re-examine facts In
territories, <Kily legal conclusions and rulings
Followed to Blmms v. SImma, 17S V. S. IC!
171 D. 8. 187-202, 18 a Ct 831. THE IRRA
Shipping.— G«ienl average contribution <
one reap<Hiilble tluongb bl> represmtatioii fo
p. 188.
Approved In The Chattahoochee, 173 U. :
4!M>. where both vesseto are In fault It is
value of cargo trom half value of sunken si
tQ difference; The Stratbdon, 94 Fed. 207.
ITl U. S. 242^76 Notes on D. B. Eepoits. 10G2
1821 Is premtned valid if aercr qnesHoDed 1>7 Mexican govon-
ment, p. 223.
Approved In Faxon t. United States, 171 V. S. »1. IS S. Ct. ®1,
In order to conllnnatlon of claim, Conrt of Prtrate Land Glalmi
innBt be saUsfled that maker of grant had antborltj; Camoa v.
United Statea, m U. & 2S7, 18 8. GL 860, arguendo.
Bonndailas.— Specific descriptloa In grant being sncwtaln, qnan-
tlty named beld of declalTe velght, p. 234.
Public lands.— Snetalnlng Mexican land grant to extent 9f qnan-
tlty paid for. Is compliance irttli treaty of Gnadolonpe, p. 230.
Approved in United SUtee v. Halsb, 171 U. S. 2tiE. 18 B. Ct M&
folltnring principal case; Camon v. United States. 171 D. S. 291,
18 8. Ct 861, govoTiment dlacharges fnll dnt7. nnder Oadsen
treaty, when It recognlees grant as valid to amount <tf land paid
for.
Court of Private Land Claims la not limited, on Hexican claim.
to technical legal rules, bnt proceeda equitably, p. 240.
Cited In AInsa t. New Mexico, etc, B.B.,17D0. S.78,20B.Ot
20; IncldentallT.
Court of Private I«nd Clalma may fix boundaries, where gtant
narrcfwer than ontboundarles named, p^ 241.
171 V. 6. 242-243, 18 S. Ct H& UNITED STATES v. HAISH.
Public lands.— Mexican grant should not be sustained for more
tlian amotmt petitioned and paid tot, p. 243.
Not dted.
171 U. a. 244-200, 18 S. Ot 840, FAXON v. UNITBD BTATBS.
. Court of Private I^nd Claims can confirm claim only when satta-
fied <a regularity, and anthorfty to grant p. 250.
Public lands.— Treasurer of Sononi bad no pover to idl land*
in 1844, p. 261.
Cited in United States ▼. Coe. 174 U. 8. 679. 19 S. Ct 681, re-
f«Tlng to principal case tat review ct Mexican land laws.
Public lands." Pueblo and mission lands abandoned before 1844
wen part of Mexican pnbllc domain, p. 259.
171 U. S. 260^76, 16 S. Ot 794. NORTHERN PAOIFIG R. B. v.
SMITH.
Bailroad taking public land for rlgbt of way can be questioned
only by govonment; preeldenf s approval Is acquleeceoice, p. 208.
AppnTved In United SUtee v. Nortliem Pac. E. R., 96 Fed. S7S.
railroad Is not concluded as to terminus until approval of sdectlon
IV t
1061 Notes on U. S. Reportt. 171 U. 8. 2TT-3M
Pobllo lands. — Bqiuitter caonot maintain poaseseloD acalnat gov-
vnment or grantees, p. 269.
PabUc landa.— NortbwD Faclflc, balldtng under act of 1864, ae-
qnlree snperior title In Ita rlgbt of way, to land company settling
tOFvnslte -vntb Inteot to get patent, p. 270.
DlstlDgulBbed In Jamestown, etc., R. EL t. Jones, 7 N. Dak. 030.
76 N. W. 230, rlgbt^of-way grant attaches c»i approval of profile,
subject to prlmr entry, becoming absolnte on abandonment tbereoL
Efltoppftl arises gainst landowner permitting railroad rlgbt o<
way and large expenditures tbereon, p. 27ES.
Ballroads.— Grant by Congress of 400 feet rigbt-of-way la e<»-
cluslTe determination of neceseity for tbat much, p. 276.
171 ir. S. 277-291, 18 8. Gt 865. CAMOU v. UNITED STATES.
PnbUe lands.— Lands sales by Mexican States In 1833 wlD ba
recognized by United States under Oadsdeo treaty, p. 287.
ApproTed in Perrln t. United States, 171 D. B. 202. 18 S. CL 881.
rollowlug prfDclpal case.
Dlstingnlsbed in United States \. Coe, 174 V. S. B79, 19 8. Gt
881. after adoption of Mexican Constitution of 1836 no power n-
mnlned In several States to make grants,
in D. 8. 292. 18 8. Ct 861, PERRIN t. UNITED STATES.
Camoo T. United States, 171 U. S. 277. followed, p. 292.
Cited in Camou t. United SUtes, 171 U. 8. 279, 18 S. Ct 8BT.
171 U. B. 293-812. 18 8. Ct 909. WALRATH v. CHAMPION ItflN.
CO.
Kin* locatw's rigbt, under acts of 1866, 1872. to pnrsne rein Is
limited by Terticsl end planes, p. 306.
Hlnes.— End lines of vein located by act of 1866 are end llnea
of all later fotind within claim's surface boundaries, p. 308.
Mines Coincidence of lines between mining claims does not
make tbera side or end lines, p. 309.
Evidence.— Mine superintendent's admission as to boundary la
beyond autboritr and does not estop principal, p. 811.
Approved In Butte, etc.. Mining Co. v. MontanB Ore. etc., Co„
21 Mont Ml, 56 Pac. 113, general mnnager of corporation Is not
presumed to bave power to grant easement or license.
lUiMS.— By act of 1866 end lines must be straight tbougb not
parallel, p. 811.
171 D. 8. 812-344. 18 8. Ct 875, NEW ORLEANS t. TEXAS. BTO.
BT.
Oontratfts.— Condition precedent is one going to eotlra snbstance
of contract and whole consideratlcm. p. 8S4.
171 D. 8. 345-378 Notes on U. S. B^ortB.
Btatntea. — Ooiporatlons do not take public gTK
by ImpllcKtloii, p. 343.
Kunlcip*! ordinance^ antborl^ng railroad Una
on conditioD (tf definite termlnaa, tmpoeea c(m
P.S3&
Hauldpal ordinance, proTlding tba
ons establlsbed at certain polote, for
tain Btreeta, createa resolutoi? condltli
Eatoppal. — Payment of rent, nndei
condition, doea not eatop Ita aaaertlon
Not cited.
171 T7. 8. 34S-361. 18 8. Gt 862, PATAE
CAROLINA BOARD.
Statuta repealiDs void law presama
prior law, rendering last act c^en to I
Oommarca. — Recelpta nnd^ Nortb
law are not ao exceastve aa to ataov
p. 364.
CommarcB.— State Inepection lawa,
of commerce, and afterwards aa pollci
Commerca.— State Inapectlon lawa t
tect public beeltb, etc., are ralld, p. 3
Approved In Michigan Td. Co. t. (
alon to tuse post roada doea not ezei
local police r^^latlona.
Commerca, — PreventlfMi of decept
province of Inapectlon law, p. 3SS.
171 D. S. 361-36B, 18 8. CL 888, SMY'
Caniera. — Decree In Smjtb t. Am<
at to permit reduction In ratea on cer
Caxrtera, — Eeaaonableness of rates
facta existing when enforcement atte
Not cited.
171 U. S. 366-378, 18 8. Ct. 917. WHITE ▼. BEB
Conrts.— Federal lawa maintain the ancient dl
Uw and equity, thongh same conrt administers b
Ofilcers.— Jurisdiction of appoiDtment and rem
not Id equity, but In law courts, executive, etc..
Offlcera.— Bxecutlve discretion in appointmeni
officers cannot be controlled by equity court, p. i
171 U.S. 441-466 Notes oD U. S. B«porti. 1066
in V. a. 441-M6, Id 8. Ct 4, CALIFOBNIA. NATIONAL BANE
». THOMAS,
Conrta.— Error wlD iiot U« where Federal qnestloo not ralaed till
after State court* s Judgment, pL 446.
StBt« conrt'a Judgment, baaed on rarlance In proof and reteaaa
of Joint tort-feasor, raises no Fedoal qnestlon. p. 446L
Not cited.
ITl D. 8. 447-449, 19 8. CL «, CALIFOBNIA NATIONAL BANK
T. STATBLBR.
Courts,— Error will not lie nnleaa State conrt's imlar Is a flnal
order, p. 440.
Appeal.— Superior Coort decree, fixing llabllltlen (tf parties, but
referring case to master tar Judicial purpose, is not final, p^ 449.
Not dted.
in D. 8. 460-462, 19 S. Ct 9, THB O. B. BOOTH.
Shipping— Explosion of detonators In ship's htrid, blowing vat
■ide, is proximate cause of damsge br the inroshlng sea water,
p. 460;
Shipping.- Damage by sea water, entering through hole dne ta
explosion in iuAi, Is not peril of the sea, p. 461.
Followed in The O. R. Booth, 62 U. S. App. 400 (see 91 Fed. 16«.
in accordance with Supreme Court's mandate;
Shipping.— Damage to cargo bj explosion after TOj^t CBded, la
not due to ** accidents <tf navigation." p. 461.
171 n. 8. 462-466, 19 8. Ct T, THE SILVIA
Ship's eeawcothlness Is tested b7 her reasi
cargo andertalcen, p. 464.
Approved in The Eate, 91 Fed. 680, to sail
of alterhatcb down and extra weight on fon
der flret section of Harter act; The Sandfleld
App. S91, fact that single rivet was below
not constltnte nnseaworthineas.
Ship leaving port with glass porthole coven
llghta easily scceesible, is not uuBeawortb]
P. 46B.
Approved In Farr, etc., Mfg. Co. v. International NaT. Co^ 94 Fed.
67T, Harter act does not rdease own» from duly to make ship
seaworthy at beginning of voyage.
Shipping— Foreign vessels carrying to or from United States are
within Harter act, Pl 466.
Approved In The Chattahoochee, ITS U. 8. 661, 10 8. Ot 4Mk
Harter act Is appUcable to foreign, aa weU as dMueatle reaada
1087 Notes on D. 8. B<tK»ts. ITl D. S. 466-678
BUpplng— Neglect to close Iron covers of portbolM Is fanlt of
BftTlcatton, not nnBeawortblneea, within Barter act, p. 466.
ApproTod tn Tbe Sandfleld, 92 Fed. 667, 61 IT. B. App. 383, neglect
to iqwn ilnlces emptrlng bllgea during atorm, Is fault In managfr
moit; Farr, etc., Mfg. Co. r. Intemattonal NaT. Co., B4 Fed. 6S0, a
TOT BimllBT case.
171 U. B. 460-474, 19 S. Ot 1, BBIGQ8 t. WALKER.
Xxaeator repreaenta pereon of testator and Is charged with n>
slating nnfoonded clalma, p. 471.
Conrts.— Whether act of Congresa for r^ef of estate of claim-
ant glvea right to execator or next of ktn, U Fednal qneetlon,
p. 471.
Xzacntoffs. — Act for relief of estate of A., anthorlzes payment to
Us execntw which becomes subject to hla debts, p. 473.
Approved In AU^ v. Smith. 178 D. 8. 899, 18 8. GL 4^ manu-
facturer of sogar, not producer of cane, la entitled to bonnty
granted by act of 1896; Price t. Forrest, 178 TJ. 8. 429, IS 8. Ct
441, claim agalnat government ahonld be paid to receiver, not to
heira of deceased claimant
171 D. S. 474-604. 19 S. Ct 14. HUBBABD v. TOD.
Bnprcane Court will, on certiorari, consider 011I7 petitlooer'a ob-
Jectloua to Clrcnlt Conrt of Appeala' decree, p. 4M.
Pledgee's failure to sOBtaln purchase does not affect pledge where
ha was not put to electlcm, p. 486.
Cited In Slonz City, etc.. By. v. Uanbattan Truat Col, 92 Pod.
431, Bubsequcnt phase, same litigation.
Pledge la dlecbarged by voluntary suTrender of poaBcsslon, p. 498.
JTwarj. — Equity will not relieve from usurloas contract without
tend^ of anm advanced, with Interest, p. 601.
OorporntionB That person was officer of corporation does not
raise Inference that he so acted In negotiating securities, p. 498.
Corporatlona.— Dsnry or ultra vires action is not notice ot equltlea
to pnrchaa« In good faltb, p. 603.
171 D. S. BOB-678, 19 8. Ct 86, UNITED 8TATBS v. JOINT
TRAFFIC ASSN.
OommcBce.— Joint traffic aaaoclatlon Is unlawful and In restraint
of trade where rates are Bxed by original agreement or npon recom-
mendation of board of managers, p. 662.
Approved In Bailey v. Association, — Tenn. — . 62 S. W. 8B&, 867.
by-law providing that member working In competition with an-
ether shall pay schedule sum Into association treasury Is void.
Distinguished In Poet v. Southern Ry., 108 Tenn. 228, 62 8. W.
in U.*8. 678-820 Not«8 on V. S. ReporU.
SIO, mere traffic asreement between railroads
dlTlalon of freight cbargea Aoea aot ctHutltute pi
OonuiUToe.— CwtgreBB ms7 prohibit comblnatlo
petltKMi for Interstate commetce. p. KTO.
Approved In Addyston Pipe, etc.. Co. t. Unltei
228. 20 S. Ct 103, " libatf " laclodea right to •
Commerce.— Congresa may problt
teratate commerce rates, although i
Api»vTed In State v. Firemen's 1
W. 608, 4fi L. E. A. 377, upholding
pools and tmets; Bailey t. AbsocIe
bj-Iaw of plumbers' uaodatlMi, cs
la Invalid.
171 V. B. 678-4104, 19 a Ct 40, HO
Commerce.— Commission mercbai
other States are not engaged In Inti
bine to fix charges, p. 6SS.
DIsttDgniBhed Id Addyston Pipe,
U. 8. 243, 20 S. Ct 108, Addyaton
combination.
Commerce.— By-laws of Kansas (
commlasIoDS, etc., are not in reetrt
Approved In Anderson t. United
62. 63. Uke case, dealing with Tr
Eansee City.
Oommerce.— Agreement or State
fecting Interstate commerce la vail'
Approved In United Statea v. Join
8. Ct SI, and AndersMi v. United
64, to come within provlsloDS of at
most be In restraint of Interstate o
Oommerce.— Dealing In .cattle In
partly la another Is not interstate c
Oommerctt.- Ltvo«tock exchange
business with non-members, does ni
171 U. 8. 604-«20, IS 8. Ct 60. AN'
Comnurca.— Dealing In cattle. 1;
partly In Mlssouil. Is not Interstate
Commerce.— Live-stock exchangi
dealtnga with non -members, does n
DistlDgnlabed In Addyston Pipe,
U. S. 244. 20 8. Ct 108. Addyston
combination.
171 U. & 660-683
Notes <m U. & Beporu>.
luiO
171 U. 8. 660-«68» 19 8. Ct 61, ST. LOUIS MINING, BTO* Ca ▼.
MONTANA MIN. CO.
Conrts.-- Where there is color for motioo to dismiss writ to Stats
court, Supreme Court may dispose of case <m motion to dismiss or
affirm, p. 664.
Mines.— Adverse claimant to mining claim may bind hims^ to
coQv^ after patent is issued to him, p. 666.
Mines.— Valid location gives locator right whi<^ ho may mort-
gage or sell at pleasure, p. 666.
Not cited.
171 U. S. 668-683, 19 S. Ct 68, NBW YORK ▼. ROBERTS.
federal courts will follow State court's ctmstructKm of 8ta«s
statute, p. 661.
Tax OB foreign corporatiCMi, estimated on franchise and capital
stock used in State, does not deny equal protection if equality of
exemption is provided, p. 662.
Commerce.— Tax <m corporation, based on amount of capital
used in State, is not regulation of commerce, p. 666.
Approved in Scottish Union, etc., Ins. Co. v. Herrlott, 109 Iowa,
616, 77 Am. St Rep. 666, 80 N. W. 669, tax on business of foreign
corporations, imposed as condition of doing business In State, need
not be uniform on all engaged in same business.
Courts.— Question of individual's rrtation to oorporatkMi ts noc
rederal* p. 604.
CASES
ARGUED AND DECIDED
IN IBB
SUPREME COURT
TTNITED STATES
AT
OOTOBEE TEEM, 1898.
Vol 172.
t
1-5
BuFRBicB Court of tob Uniteo Statks.
Oct. Tkhm,
I
APPEAL from the Cirenit Court of the
United SUtei for the District of Wash-
ington to reriew a decree in a soit in eouity
brought hj the Walla Walla Water Com-
pany against the dty of Walla Walla et aU,
perpetually enjoining said dtf and its of-
fleers from erecting waterworks in pur-
suance of an ordinance of the city, and from
expending moneys of the city or selling its
bonds to erect such waterworks. Affirmed.
See same came below, 60 Fed. Rep. 997.
Statement by Mr. Justice Bro
[S] *This was a bill in equity filedb^ the water
company to enjoin the city of Walla Walla
and its officers from erecting waterworks in
pursuance of an ordinance of the city to that
effect, or from acquiring any property for
the purpose of carrjring out such enterprise,
[S] or from expending the moneys *of the city
or seUing its bonds or other securities for
the purpose of enabling the dty to erect such
waterworks.
The facts are substantiallir as follows:
Ihr an act of the territory of Washington
(Korember 28, 1888), incorporating the city
of Walla Walla, it was enacted (section 11)
that the city should have ''power . . .
to provide ... a sufficient supply of
water ;" and by section 10 "to grant the right
to use the etreete of said city for the pur-
pose of laying |;as and other pipes intended
to furnish the inhabitants of said city with
l^ht or water, to any persons or associa-
tion of nersons, for a term not exceeding
twenty-five years, . . . provided alwajrs,
that none of the rights or privileges herein
granted shall be exclusive, nor prevent the
council from granting the same rights to
others." Other sections are as follows:
"Sec. 11. The city of Walla Walla shall
have power to erect and maintain water-
works within or without the city limits, or
to authorize the erection of the same, for the
purpose of furnishing the city or the inhab-
itants thereof with a sufficient supply of wa-
Itt*. • • • and to enact all ordinances
and regulations necessaiy to carry the power
herein conferred into effect; but no water-
works shall be erected by the city until a
najority of the voters, who shall be those
•Dly who are frediolders in the city, or pay
ft propertv tax therein on not less than five
hundred dollars' worth of propenfy, shall at
a general or special election vote for the
tame.
^Sae. 12. Said dtj is hereby authorised
and empowered to condemn and appropriate
so much private property as shall be neces-
sarv for the construction and operation of
such waterworks, and shall have power to
purchase or condemn waterworks already
erected, or whieh may be erected, and may
mortgage or hypothecate the same to secure
to the persons from whom the same may be
purchased the payment of the purchase price
thereof.**
"Sec. 22. The city of Walla Walla shaU
have power to adopt proper ordinances for
the government of tne city, and to carry into
effect the powers given by this act"
S4S
•"Sec 23. The city of Wafla Walla shaO [«1
have power to establish and regulate the
fees and compensation of all ivs officers,
except when otherwise provided, and have
such other power and privileges not here
specifically enumerated as are incident to
municipal corporations."
"Sec. 24. The power and authority her^
given to the city of Walla Walla by this act
shall be vested in a mayor and council, to-
gether with such other officers as are in this
act mentioned, or may be created under its
authority."
"Sec. 43. The city council shall possess all
the legislative power granted by this act."
"Sec 103. The rights, powers, and duties
and liabilities of the city of Walla Walla
and of its several officers shall be those pr^
scribed in this act, and none others, and this
is hereby declared a public act."
"Sec 106. The limit of indebtedness of
the city of Walla Walla is hereby fixed at
fifty thousand dollars."
Pursuant to these sections of the charter,
the city council, -on March 16, 1887, passed
"An Ordinance to Secure a Supply of Water
for the City of Walla WaUa,^' by which it
granted under certain restrictions to the
water company, for the period of twenty-five
years from the date of the ordinance, "the
right to lay, place, and maintain all neces-
sary water mains, pipes, connections, and
fittings in all the highways, streets, and al-
leys of said city, for the purpose of furnish*
ing the inhabitants thereof with water."
By section 4 the city reserved the right
to erect and maintain as many fire hydrants
as it should see fit, and, in case of fire, that
the city should have all reasonable and nee-
essary control of the water for the extim-
guishment thereof.
The ordinance also contained the following
further provisions:
"Sec 6. The city of Walla Walla shall
pay to said Walla *Walla Water Company W
tor the matters and things above enumerat-
ed, quarter-yearly, on the first days of July,
October, January, and April of each year,
at the rate <n fifteen hundred dollars
($1,600) per annum, for the period of twen-
ty-five (26) years from and after the date
of the passage of this ordinance, the first
quarterly payment to be made on the first
day of October next (October 1, 1887) .
^'Sec 6. The city of Walla Walla shall dur^
ing said period, without expense for water,
be allowcMi to flush any sewer or sewers it
may hereafter construct, at such tiraa dur-
ing the day or night as the water company
may determine, and under the direction and
supervision of such officers as the dty may
from time to time designate, not oftener
than once each week.
"Sec 7. For all the purposes above enu-
merated said Walla Watla Water Company
shall furnish an ample supply of water, and
for domestic purposies, including sprinkUnc
lawns, shall furnish an ample supply of good
wholesome water, at reasonable ratn, to con-
ITS IT. a.
i
1-0 Sufkbub Coort op '
APPEAL from the drcmtt Coort of ths
United SUtM for tbe DUtriet of Wub-
in^D t9 review ■ decree in a mit in eqtiftj
bronglit by tlie WkIU VTtJIm W&t«r Gom-
puij against the dtj of Walla Walla et al.,
perpetually enjolnii^ mU^ dty and ita of-
fleere from electing waterworlu in nnr-
Buanee of an ordinance of the eitf, and from
expending mcne^ of the city or eelling its
bonds to erect such waterworka. Affirmed.
See same caxe below, SO Fed. Rep. SUfl.
Statement bj Mr. Justice Brawni
[■] *Thie was a bill in equity flled^ the water
eompanj t4> enjoin the city of Walla Walla
and its ofBcera from erecting waterworks in
pursuance of an ordinance of the city t9 that
effect, or from acquiring any property for
"- «ea of carrying out such enterprise,
expendiiw the moneys *of the dt?
T sdling its brau or other tecariUaa for
the pnrpoee of enabling the dty to erect ■neb
waterworks.
The facts are substantially as follows;
Bt an act of the t«rritary of Washington
(Korember £8, IS88) , inoorporating the dty
of WalU Walla, it was enacted (section 11)
that the city should bare "power , . ,
to provide ... a enfBdent supply of
water;" and by section 10 "to Troitt t^i right
lit on Ihs ilreelj of mid etiy for the pur-
pose of laying gas and other pi^ intended
to furnish the inhabitants of said city with
light or water, to any persons or associa-
tion of persons, for a term not taoeeding
tv!ent]f'ftve yeart, . . . provided alwsy^,
that none of the rights or privileges herein
granted shall be exclusive, nor prevent the
council from granting the same rights to
others." Other sections are ai follows:
"Sec. 11. The city of Walla Walla shall
have power to erect and maintain water-
works within or without the city limits, or
to aulAorize the erection of the lame, for the
Iiurpose of furnishing the city or the inhab-
tants thereof with a sufficient supply of wa-
tw, . , . and to enact all ordinances
and regulations necessary to carry the power
herein conferred into effect; but no water-
worke shall be erected 1^ the eit; until a
■wjoritT of the voters, who shall be those
•tdy who are frediolders in the oity, or pay
ft property tax therein on not less than five
hundred dollars' worth of j)roperty, shall at
a general or special election vote for the
"See. IE. Said d^ is herebv authorised
•Bd empowered to condemn and appropriate
■o mndi private propwty as shaU be neces-
sary for the eonstmotlon and operation of
such waterworlcs, and ahall have power to
purchase vc condemn waterworks already
•reotad, or whidi may be erected, and may
mortgag* or hypotheoato the same to tecore
to the peraona from whom the same may be
purdiaMd the payment of the parohaae priee
tbereof."
"Sec. tk. The eltj of'Walla Walla shaU
have power to adopt proper ordinanoee for
the gDvwnment of the city, and to carry into
effect the powers given by this act."
u Walla Watbb Co. S, •
be regarded a* Ita principal; Uiarefore tba
state eaimot be charged a« being the actor
in the proceeding, whether it be the maldng
of the ooDtract or the impairiiig of the obli-
gatioD of one.
Western ColUge of BomeopatMe JftfdioHM
T. Cleveland, 12 Ohio St. 377; Kew Orleana
tniHan v. Sew York, 62 N. Y. 160, SO J
Bep. 468; Safety Inxalated Wire <C Cable Oo.
T. Baltimore, 26 U. S. App, 186, 00 Fed. Rep.
140, 13 C. C. A. 377; lUinoie Tnut d Bav.
Bank v. Arkansas CUu, 40 U. 8. App. 857,
76 Ped. Rep. 271, 22 C. O. A. 181, 34 L. R.
A. 618.
A mAnicipal ordinance not pasud under
anppoFed legiilatiTe authority cannot be ra-
garded aa a law of the state within the mean-
ing of the conetittttionaJ prohibition aeainat
•teto laws impairing the obligation oi con-
Murray t. Charleston, 90 V. 8. 432, 24 L.
ed. 760; Lehigh Water Co. t. Eaeton, 121 TJ.
8. 388, 30 L. ed. 1059; Hete Orleans Water-
toorks Co. V. Louisiana Sugar Ref. Co. I2S
V. 8. 18, 31 L, ed. 607.
pririiegee necceearilf implies that the power
ma7 be exercised at the pleasure of the 1^
Close V. Olmteood Cemetery, 107 U. 8.
466, 27 L. ed. 408; fiprJM VaUey Water-
vmrks y. BOtottltr, 110 U. 8. 347, 28 L. ed.
173; PenTtsylvania Ootlege Oases, 13 Wall.
190, 20 L. ed. SGO; TomUnion r. /eseup, IS
Wall. 4G4, 21 L. ed. 204.
The plaintiff had an apparent, fnU, and
adequate 'ramedj at law.
Bmjith T. Sete Orleoiu Canal d Bkg. Co.
141 U. 8. eS6, SB L. ed. 80].
Veto York & V. B. R. Oo. r. Bristol, Ifil
n. 8. 666, SB L. ed. 869; Boston Bmt Co. r.
Uassacluuettt, 97 U. B. 25, 84 L. ed. 989;
Barhier v. Connolly, 113 U. S. 27, 28 L. ed.
02S; Hete Orleona Oatlight Oo, v, Louisiana
Light A B.P.i Ufg. Co. 116 U. 8. OSO, 8»
L. ed. 616 ; Badd v. Vmo York, 143 U. B. 617,
K L. ed. 247, 4 Inters. Com. Rep. 46.
make contracts o ,
cede away, control, (.- .. „
tive or goTemmental powers, or which shall
disable It from performing its public du-
ties.
Qarrison v. Chicago, 7 Biss. 480; Logan r,
Fyne, 43 Iowa, S24, 22 Am. Rep. 261 ; State,
Atty. Gen., v. Cinoinnal* Oaelight A Coke Oo.
18 Ohio St. 862; Uinlum v. Larue, 83 How.
435, 10 L. ed. 674; Norvioli OasHght Co. ».
Nonoioh City Oat Oo. 25 Conn. lD;Slohmon4
County Gaslight Co. v. iSiddMown, 60 N. Y.
231 ; W*io Orleans City B. Oo. -r. Oretomt
City R. Oo. 12 Fed. Rep. 308.
The contract is void as an attempt to ba^
t«r away a part of the governmental power
of the wtj council.
Orant r. Davenport, 36 Iowa, 402; JfwtM
T. Iltinoie, 84 U. 8. 113. 24 L. ed. 77; Late-
349
lO-U
Sup&KMB Court of thb United Staissl
Oct. Tbbii,
App. 683, 646 [26 L. R. A. 329] iMawmUian
▼. Mauar {of New York] 62 N. Y. 160; West-
ern OoUege of Bomeopaihio Medicine v.Cleve-
Umd, 12 Ohio St. 376. In Safety Ineulaied
Wire Co. ▼. Baltimore, 26 U. 8. App. 166, &
eontract to put electric wires under ground
was held to oe for the private adyantase of
the dty as a l^gal personality, distinct from
eonsiderations connected with the govern-
ment of the state at large, and that with
reference to such contracts the city must be
regarded as a private corporation. The con-
tract was held to be one into which the city
could lawfully enter, but no question of juris-
diction was made. In IlUnoia Trust £ 8av.
Bank v. Arkaneae Oity, 40 U. 8. App. 267
[34 L. R. A. 618], the power to contract for
waterworks was held to be for the private
benefit of the inhabitants of the cify, and
that in the exercise of these powers a munici-
pality was governed by the same rules as a
private corporation; but the jurisdiction of
the case was apparently dependent upon cit-
ijEenship.
We know of no case in which it has been
held that an ordinance alleged to impair a
Srior contract with a gas or water company
id not create a case under the Constitution
and laws of the United States. Qranting
that, in respect to the two classes of cases
above mentioned, responsibilities of a some-
what different character are imposed upon
a municipality in the execution of its con-
tracts, our attention has not been called to
an authority where the application of the
constitutional provision as to the impair-
ment of contracts has been made to turn
upon the question whether the contract was
executed by Uie city in its sovereign or pro-
prietsjry capacity, provided the right to make
such contract was conferred bjr tne charter.
We do not say that this question might not
become a serious one; that, with respect to
a particular contract, the municipality might
not stand in the character of a private cor-
poration; but the cases wherein the charter
of a gas or water company has been treated
ntjas fiuling within the constitutional *provi-
sion are altogether too numerous to be now
questioned, or even to justify citation.
2. The argument which attacks the juris-
diction of the court upon the ground that the
complaint is devoid of facts showing any
matter which vests jurisdiction goes rather
to the sufficiency of the pleading than to the
trisdiction of the court. Even if this ob-
^ion had been sustained, the difficulty
could have been easily obviated by amend-
ment. We think, however, that it sufficient-
ly appears that, if the city were allowed to
erect and maintain competing waterworks,
the value of those of the plaintiff company
would be materiallT impaired, if not practic-
eXLj destroyed. Tbe city might fix such
prices as it chose for its water, and might
even furnish it free of charge to its citizens,
and raise the funds for maintaining the
works by a general tax. It would be under
no obligation to conduct them for a profit,
and the citizens would naturally take their
water where they could procure it cheapest.
Tbe plaintiff, upon the other hand, must
carry on its business at a profit, or the in-
vestment becomes a total loss. The question
|346
whether the city should supply itself with
water, or contract with a private corporation
to do so, presented itself when the introduce
tion of water was first proposed, and the ci^
made its choice not to establish works of ita
own. Indeed, it expressly agreed, in con-
tracting with the plaintiff, that until such
contract should be avoided by a substantia]
failure upon the part of the company to per-
form it, the city should not erect, maintain,
or become interested in any waterworks ex-
cept the plaintiff's. To require the plaintiff
to aver specifically how the establislunent of
competing waterworks would injure the
value of its property, or deprive it of the
rent agreed by the city to be paid, is to de-
mand that it should set forth facts of gen-
eral knowledge and within the common ob-
servation of men. That which is patent to
anyone of average understanding need not
be particularly averred.
3. The objection that a court of equity haa
no jurisdiction because the plaintiff has a
complete and adequate remedy at law is
equally untenable. Obviously it has no pres-
ent remedy at law, since the city has done
nothing in violation of its ^covenant not to [IS]
erect competing waterworks, and the water
company has as yet suffered no damage. It
is true that after the city shall have gone to
the great expense of erecting a plant of ita
own and of entering into competition with
the plaintiff company, the tatter would
doubtless have a remedy at law for breach of
the covenant. In the meantime great, per^
haps irreparable, damage would nave been
done to the plaintiff. What the measure of
such damage was would be exceedingly diffi-
cult of ascertainment, and would depend
largely upon the question whether the value
of the plaintiff's plant was destroyed or mere-
ly impaired. It would be impossible to say
what would be the damage incurred at any
particular moment, since such damage m«vht
DC more or less dependent upon whether the
competition of the city should ultimately de-
stroy, or only interfere with, the business of
the plaintiff.
This court has repeatedly declared in af*
firmance of the generally accepted proposi-
tion that the remedy at law, in order to ex-
clude a concurrent remedy at equity, must
be as complete, as practical, and as efficient
to the ends of justice and its prompt admin-
istration as the remedy in equity. Boyoe^e
Esoeoutore v. Orandy, 3 Pet. 210, 216 [7 : 666,
667] ; PKcmim Mui. L. Ins, Co. v. BaUey, 13
Wall. 616, 621 [20: 601, 603]; KUboum v.
Sunderland, 130 U. 8. 606, 614 [32: 1006,
1009]; Tyler v. Bavage, 143 U. 8. 70, 06
[36: 82,80].
Where irreparable injury is threatened, or
the damage he of such a nature that it can-
not be adequately compensated by an action
at law, or IS such as, from its continuance,
to occasion a constantly recurring grievance,
the party is not ousted of his rem«ly by in-
junction. In such a case as this, the remedy
will save to one party or the other a large
pecuniary loss, — ^to the city, if it be obliged
to pay to the plaintiff damages occasioned by
the establishment of its competing works ; to
the plaintiff, if it be adjudged that the dty
has a right to do so.
17t IT. 1.
3-5 DnpREKE Ck>URT or i
APPEAL from tiM Ctrenit Conrt of tbe
United SUtM for Ui« DUtriet of Wuh-
fngton to rerlew ■ deene in a mit la Mtiitj
brought hj a» WftlU W«1U Water Com-
pur agminst the dtj of Walla Walla «t at,
Mrp«tiiall7 eDJoinlng (aid dl? and Ita of-
flcen from erecting waterworlu In par*
■oaoee of ao ordinance of the eit^, and from
expending mcne^s of tbe city or selling ita
bonda to erect tuch waterworka. Afflrmed.
See same case beloir, SO Fed. Bep. B97.
Statement b^ Mr. Justice Brswmi
[S] "This was a bill in equity filed b^ the wat«T
company to enjoin the city of Walla Walla
and ita officers from erecting waterworks la
pursuance of an ordinance of the city to that
effect, or from aeqniring any property for
the parpoaa of carrying out auch
m
or idling
the purpose of enabliug the dty to erect each
waterworks.
The facts are anbatantially aa follows:
By an act of the territory of Waabington
(KoTember 28, 18SS), incorporating the <itj
of Walla Walla, It waa enacted {section 11)
that the dty should have "power . . ,
to proride , , . a sufflcieat supply of
water;" and by sectloD 10 "to grant (ne right
to «M the ttrtttt of taid oily for the pur-
re of laying eas and other pipes intended
furnish the mhabitanta of said ci^ with
light or water, to any persona or asaoda-
tion of persons, for a term nol eosoMdinp
tvi«nty-lh« years, . . . prorided alwaj^,
that none of the rights or privileges herein
granted shall be eiduaive, nor prevent the
coundl from granting tbe same rights to
others." Other aectiona are aa followa:
•■Sec. 11. The city of Walla Walla shall
have power to erect and maintain water-
works within or without the city limita, or
to authorize the erection of the same, tor the
[inrpose of furnishing the city or the inhab-
tants thereof with a sufficient supply of
Itr, . . . and to enact all ordinaiiun
and regulations necessary to carry the power
harein conferred into effect i but no water-
worka shall be erected by the city until a
BaJoriQr of the voters, who shall be those
•oly who are fredioldera in the dty, or My
R propertv tax therein on not less than five
kondred aolUrs' worth of proper^, ahall at
a general or special election rote for the
"Bee. 12. Said d^ ia herebv anthorUad
and ampowerad to oondamn ana appropriate
ao mudi priTato proper^ as shall be aeees-
sarv for ue euutriMtloa and operation of
such waterworks, aad ahall have power to
purchase or oondemn waterworks already
arw!t«d, or whldk may be erected, and may
farebased Uw paymnit of the pordiaae price
hereof."
"Sec. Ze. The dty of Walla WalU shall
have power to adopt proper ordinal *-
the government of the dty, and to ca
•fleet the powers given by this act."
C, t • BoFBEKB CoDBT or 1
ton T. SteeU, 152 U. S. 13S, 38 L. ed. 385;
SloM v: jri««i«nppi, 101 U. S. 614, 26 L. ed.
I0T9; State v. Wfux^r, 44 N. J. L. SS; Safe-
ty IiuuUUed Wire >f Co6I< Co. v. Baltimore,
SB U. S. App. 160, 06 Fed. Rep. 140, 13 C. &
A. 37S; lainoia Tntal <f Bav. Bank - '
Kalamazoo, S3 Mich. 34S, 9 Am. Bep. 80;
Xational Walencorka Oo. r. Kanaaa (My, 28
Fed. Hep. 921 ; /tltnoi* A St. L. B. A Canal
00. T. St. Louit, 2 Dill. 77 ; /oeitfon CMtnty
Eorte B. Co. t. Mter*lats Bapid Trantit Co.
S4 Fed. Rep. 307 ; Saginaui Oaalight Co. ▼.
Saffinaw, S8 Fed. Sep. 529; Btitchert' Un-
ion B. H. A L. a. L. Oo. T. Creicent City L.
8. h. A S. H. Co. Ill U. S. 740, 28 L.'ed. ESS.
The contract is void ui creatins an indebt-
edness ia ezceiB of the duuter limit.
Burlington Water Oo. r. Woodward, 49
low*, 61 ; jSalem Water Oo. ▼. Salem, E Or.
eOj duller T. Chicago, SB HI. 282; Uurjihg
T. EiMl Portland, 42 Fed. Rep. S09.
Ifr. Jok> H. Itltakell, for appellee:
The ef^ of Walla Walla had full poww ta
authoTiie reapondent to conatniet and main-
tain waterworlu.
K'ew Orlaant Oiulight Oo. r. Louitiana
Light A H.P.A Mfg. Co. 115 U. 8. 650, 29
L. ed. S16i Atlantic City Waterwork* Oo. v.
AllanUo City, 39 N. J. Eq. 387.
A contract with a municipal corporation ia
within the protection of Mction 10, artide
1, of the Constitution.
Neu> Jeriey v. Wilton, 7 Craacb, ISO, S L.
•d. 303 ; Fletohm- t. Peck, 0 Cranch, 87, 3 L.
«d. 162.
There was a good and nifBcient considera-
tion for the contract.
Home of the Friendhaa t. Rouse, 8 Wall.
437, 19L.«d. 498.
The ordinance of the cftjr of Walla Walla
approred June 20, 1393, nnd proceedings
thereunder, constitute a law within the
meaning of section 10, article 1, of the Con-
stitution.
Saginaw Ooilight Co. ▼. Saginaw, 28 Fed.
Rep. 529; Citizens' Street B. Co. r. City B.
Oo. 60 Fed. Rep, 748; Citixent' Street R. Co.
T. Uemphit, 53 Fed. Rep. 71G; Santa Ana
Water Oo. t. Son Buenaventura. 58 Fed.
Rep. S39; Copital Cify Oa* Co. v. Dm
Moinei, 72 Fed. Rep. SIB; Sattimore Trust
A Ouarantee Oo. t. Baltimore, 84 Fed. Rep.
1S3; Wright y. Woffle, 10] U. S. 791, 25 L.
«d. 021 ; Tamilian Oatlight Oo. t. Hamilton,
146 U. B. 263, 26 L. ed. 021 ; Baoon v. Tewas,
163 n. B. 207, 41 L..ed. 138; Sou Orlrnna
Waterworks Co. t. New Orlsane, 164 U. S,
471, 41 L. ed. 618; Williama t. BrMffy, 96
n. 8. 170, 84 I^ ed. 716; New Orleans Water-
vmrkt Oo. v. Louisiana Smgar Bof. Oo, 126
V. 8. 18. 81 h. ed. 607.
The circuit court had Jurisdiction, and an
Injunction waa Uie proper and appropriate
Oibom T. Bank of United States, 9 Wheat
733, C L. ed. 204; Crescent City L. S. L. A S.
B. Oo. T. Butchers' Union L. B. L. A 8. H.
Co. 9 Fed. Kep. 743; Yeto Orleans Waier-
vorks Co, T. 8t, Tnmnrany WateriBorks Co.
14 Fed. Rep. 104; Baltimore A O. B. Co. t.
AUen, 17 Fed. Rep. 171; Porson* v. Jfarye,
n-M
SUFBSHB COUKT OF THB UNITED StaTBS.
Oct. Tkrm,
Tooaett of the aocuBed was not discussed.
In tlie cue of Re Bhibuya Jugiro, 140 U.
8. 201, 296 [36: 610^13], tne alleged assign-
ment at Jugiro's trial "of one as his compel
who (idthough he may hare been an attor-
nij at law) had not been admitted or quali-
fied to practice as an attorney or counselor
at law in the oourte of New York" was held
to be matter of error, and not affecting the
jurisdiction of the trial court.
The general rule is that the judgment of a
court having jurisdiction of the offense
charged and of the party charged with its
commission is not open . to collateral
attack. The exceptions to this rule when
some essential riffht has been denied
need not be oonsiaered, for whether this
application was tested on the petition alone,
treating the record as part thereof, or heard,
without objection, as on rule to show cause,
the district court could not have done other-
wise than deny the writ. Re Boardman,
160 U. R. 30 [42:653].
Order affirfned. Mandate to Ueue at onoe.
I
lU] PITTSBURGH, CINCINNATI, CHICAGO,
h ST. LOUIS RAILWAY COMPANY, Appt.,
BOARD OP PUBLIC WORKS OP THE
STATE OP WEST VIRGINIA.
(Bee 8. C Beporter's ed. 82-48.)
' Infunotian againet a tam — adequate remedy
for error — opportunity to he heard,
1. The collection of taxes assessed under the
authority of a state is not to be restrained \tj
Injunction from a Federal court, unless it
clearly appears, not only that the tax Is il-
legal, but also that the owner of the property
taxed has no adequate remedy by the ordinary
processes of the law, and that, there are spe-
cial circumstances bringing the case under
some recognised head of equity Jurisdiction.
% ProTlsion for a rerlew and correction by the
circuit court of s county, of an assessment
for taxes made by the board of public works,
aifords such a conyenlent and adequate rem-
edy for any error in the taxation as will pre-
f»lude an Injunction against collecting the tax.
t. PreTlous notice of a hearing before officers
who make an assessment for taxes Is not nec-
essary If there Is notice of the decision with
a right to appeal to a court and be heard and
offer CTldence before the Taluation of the
property for taxation Is finally fixed.
[No. 8.]
Bubmitted January t5, 1898. Decided No-
vember 28, 1898.
APPEAL from a decree of tha Circuit
Court of the United SUtes for the Dis-
trict of West Virginia sustaining a demurrer
and dismissing a suit in equity brought hy
S64
the Pittsburgh, Cincinnati, Chicago, Sl St.
Louis Railway Company against the board
of public works of West Virffinia et al,, to
restrain the assessment ana collection of
taxes upon a bridge over the Ohio riTsr.
A/firmea.
•
Statement by Mr. Justice Chrayt
The Pittsburgh, Cincinnati, Chicago, 4
St. Louis Railway Company, a corporation
of the state of Ohio, owning and operating a
railway running through the states of West
Virginia, Ohio, Pennsylvania, Indiana, and
Illinois, under the laws of those states, and
crossing the Ohio river, n navigable stream,
forming the boundary between the states of
West Virginia *and Ohio, by means of a [89)
bridge built, owned, and controlled by the
plaintiff, filed in the circuit court of the
United States for the district of West Vir-
tfinia a bill in equity against the Board of
Public Works of the state of West Virginia,
a public corporation, against its members
individually (being the Governor, the audit-
or, the treasurer, the superintendent of free
schools, and the attorney general of the
state), and against one Cowan, sheriff of
Brooke county, all of them citizens of that
state, to restrain the assessment and collec-
tion of taxes upon the bridge under section
67 of chapter 29 of the Code of West Vir-
ginia of 1801.
The bill alleged that, under and by virtue
of that section of the Code, the plaintiff was
required, through its principal officers, to
make return in writing, under oath, to the
auditor of the state, on or before the 1st of
April in each year, and in the manner |)re-
scribed by that section, of its property subject
to taxation in the state ; the auditor was re-
quired to bring the return, as soon as prac-
ticable, before the board of public works;
that board was authorized either to approve
the return, or to proceed to assess and fix
the fair cash value of all the property of rail-
road companies which they were so required
to return for taxation; and it was further
provided that, as soon as possible after the
value of anv railroad property was fixed for
purposes of taxation by one of the ^veral
metnods designated by that section, the au-
ditor should assess and charge such property
with the taxes properly chargeable thereon.
The bill also alleged that the plaintiff's
main line of railway ran through the state
of West Virginia for a distance of 7.11 miles,
of which 6.53 miles were in the ooontf of
Brooke and 0.58 miles in the eoun^ of nan-
cock; that its bridge across the Ohio river
was part of its railway; that the total length
of the bridge, including its abutments, waa
2,044 feet, of which 1,518 feet were in West
Viivinia and 526 feet in Ohio; and that the
plaintiff, before April 1, 1894, as required hy
section 67 of ehapter 29 of the Code, made to
the auditor of the state of West Virginia a
return of its property subject to taxation in
the state for the year 1894 (a copy of which
wma ^annexed to and made part of the Mil, [M)
178 U. ft.
tt(^;iU
SCPUEMB COUBT OF THB UNITED StaTEH.
Oct. Tkrit.
I
Tlie plaintiir further alleged that the
bridge constituted a part of its line of rail-
way, and had no separate earning capacity,
and no greater eamiuff capacity than any
other equal number of &t of its line of rail-
way, and was used exclusively by it in trans-
porting freight and passengers across the
Ohio river to and from the states of West
Virginia and Ohio; and that it was advised
and believed that the bridge was an instru-
ment of interstate commerce, and was not, as
A separate structure from its line of rail-
way, a proper subject for taxation by the
state of West Virginia in the manner above
set forth.
The bill then charged that the tax upon
the bridge was illegal and unjust, and con-
stituted a cloud upon the title to the bridge,
and that by reason of that clause of the Con-
stitution of the United States, which gives
Congress control over interstate conunerce,
the circuit court of the United States for
the district of West Virginia was clothed
with authority and juris£ction to restrain
and to prevent the assessment and collec-
tion of this ill^;al and unjust tax; and
prayed for an injunction against its assess-
ment and collection, and for r^rther relief.
The bill was sworn to March 18, 1805 ; and
was filed March 26, 1805, together with an
affidavit to the effect that, since the bill was
sworn to, the sheriff had levied upon one of
the plaintiff's freight enf^nes for the purpose
of enforcing the collection of the tax upon
the oridge. Upon the filing of the bill, a
temporary injunction was granted as prayed
for.
A general demurrer to the bill was after-
(S7] wards filed and 'sustained, the injunction
dissolved, and the bill dismissed. Tha
plaintiff appealed to this court, under the act
of March 3, 1801, chap. 517, 9 5. 26 Stat,
at L. 828.
Messrs, J. Dnnbar and J. B. Sommer-
▼ille, for appellant.
Messrs. T. S. Riley, Thayer Melvin,
and Edgar P. Rnoker, Attorney General of
West Virginia, for appellee.
[37] •Mr. Justice Gray, after stating the case,
dei'vered the opinion ot the court:
The collection of taxes assessed under the
authority of a state is not to be restrained
by writ of injunction from a court of the
United States, unless it clearly appears, not
only that the tax is ill^al, but that the own-
er of the property taxed has no adequate
remedv by the ordinary processes of the law,
and that there are special circumstances
bringing the case under some recognized head
of eouity jurisdiction. Doios v. Chicago, 11
Wall. 108 [20: 65] ; Hannewinkle v. (George-
town, 15 Wall. 547 [21:231]; State RaO-
road Taw Cases, 02 U. S. 575 [23 : 663] ;
Union Pacific Railway Co, v. Cheyenne, 113
U. S. 516 [28: 1008] ; Miltoaukee v. Koeffler,
116 U. S. 210 [20:012]; Shelton T. Piatt,
130U. S. 501 [34:273].
In Doics V. Chicago a citizen of the state of
New York, owning shares in a national bank
organized and doing business in the city of
Chicago, filed a bill in equity, in the circuit
356
court of the United States for the northera
district of Illinois, to restrain the collection
of a tax assessed by the city of Chicago upon
his shares in the bank, allc^ine, among other
things, that the tax was illegal and void, be-
cause the tax was not uniform and eaual
with taxes on other property as required by
the Constitution of the state, and because
the shares were taxable only at the domicil
of the owner and therefore were not property
within the jurisdiction of the state of Illi-
nois. This court, speaking by Mr. Justice
Field, without considering the validity of the
objections to the tax, held that the bill could
not be maintained, saying: ''Assuming the
tax to *be illegal and void, we do not think [3111
any cround is presented by the bill, justify-
ing tne interposition of a court of equity to
enjoin its collection. The illegality of the
tax and the threatened sale of the shares for
its payment constitute of themselves alone
no ground for such interposition. There
roust be some special circumstances attend-
ing a threatened injury of this kind, distin-
guishing it from a common trespass, and
bringing the case under some recognized head
of equity jurisdiction, before the preventive
remedy of injunction can be invoked. It is
upon taxation that the several states chiefly
rely to obtain the means to carry on their
respective governments, and it is of the ut-
most importance to all of them that the
modes adopted to enforce the taxes levied
should be interfered with as little as possible.
Any delay in the proceedings of the officers*
upon whom the duty is devolved of collecting
the taxes may derange the operations of the
government, and thereby cause serious detri-
ment to the public. Ko court of equity will,
therefore, allow its injunction to issue to re-
strain their action, except where it may be '
necessary to protect the rights of the citi-
zen whose property is taxed, and he has no
adequate remedy by the ordinary processes of
the law," 11 Wall. 100, 110 [20: 66]. "The
party of whom an illegal tax is collected has
ordinarily ample remedy, either by action
against the officer making the collection or
the body to whom the tax is paid. Here such
remedy existed. If the tax was illegal, the
plaintiff protesting against its enforcement
might have had his action, after it was paid,
against the officer or the city to recover back
the money, or he might have prosecuted
either for his damages. No irreparaole injury
would have followed to him from its collec-
tion. Nor would he have been compelled to
resort to a multiplicity of suits to determine
his rights. His entire claim might have been
embraced in a single action." 11 Wall. 112
[20: 67].
In the State Railroad Taw Cases this court,
in a careful and thorough opinion delivered
by Mr. Justice Miller, stated that "it has
been repeatedly decided that neither the mere
illegality of the tax complained of, nor its
injustice nor irregularity, of themselves, give
the right to an injunction in a 'court of equi- [30]
ty;" referred to section 3224 of the Revised
Statutes, which provides that "no suit for
the purpose of restraining the assessment or
collection of any tax shall be maintained in
any court;" and'Baid that "though thi« was
172 U. 8.
UBS.
WaIXA WitLA ¥. WiUJ. WaIJJ, WiTBR Co.
la-aa
lo tha coinpaii;. We think a diKUimer of
thu kind wus within the fair intendment of
the contract, and that a stipulation to that
eject was Buch a one as the cit; might law-
foilj make a* an incident of the principal
undertaking.
iJwes are not infrequent where under a
general power to cause the streets of a city
to be lighted, or to furjiish its inhabitants
with a supply of water, without limitation
as to time, it has been held that the city
hsi DO right to grant an exclusive franchise
for a period of years; but these cases do not
touch upon the question how far the city, In
the exercise of an undoubted power to make
a particular contract, can hedge it about
with limitations designed to do [ittle more
than bind the city to carry out the contract
in good faith and with decent regard for the
rights of the other party. The more promi-
M9it of these cases are jfinfum v. Larue, 23
How. 136 [16:574]; Wright V. HagU, 101
U. fl. 791 [25:921]; Slafe [,ltty. Oen.] t.
CiiMmnati GatUght m Coke Oo. lA Ohio St.
iSE; Logan v. Pynt, 43 Iowa, 5E4 [22 Am.
Bep. ESI] ;/aait«on Cmmty Bone R. R. Oo.
T. Interetale Rapid Transit Co. 24 Fed. Rep.
30fl; Sormch Oailight Co. t. Xonaick City
Oat Co. 26 Conn. 19 ; Saginaw QatHght Oo.
rMaginaui, 28 Fed. Kep. 629; Grand Rapida
Elaoliie Light and Fotoer Co. t. Crand Rap-
id! Ediaon Electric Light A Fuel Oas Oo.
S3 Fed. Rep. 050; Oale y. Kalamaeoo, 23
Mich. 344 [9 Am. Rep. 60]. These casea
furnish little or no support to the proposi-
tion for which they are cited.
If, as alleged in the answer, the water
eampiny fail^ to carry out its contract, and
the supply furnished was inadequate for do-
nwstic, sanitary, or Are purposes, and the
pressure so far insufficient that in many
parts of the city water could not be carried
ibore the first story of the buildings, the
. Tth section of the contract turaisbed sn ade-
[19J')lltte and 'complete remedy by an application
to the courts to declsre the contract void.
7. The objection that the indebtedness cre-
sted hy this contract exceeds the amount au-
tboriied by the chart«r raises a serious,
though by no roeana a novel, question. The
objection is founded upon section 105 of the
charter, which enacts "that the limit of in-
debtedness of the city of Walla Walla is
hereby fixed at fifty thousand dollars," and
upon the allegation in the bill, that the
d^, at the date of the contract, was indebt-
ed in a sum exceeding tie.OOO. The city, by
section 6 of its ordinance and contract with
the water company, agreed to pay .a rental
of $1,600 per annum for twenly-five years,
or an aggregate amount of $37,600, which,
added to the existing indebtedness of tl6,-
000, would create a debt exceeding the lim-
ited amount of tSO,000.
There is a considerable conflict of author-
ity respecting the proper construction of
inch limitations in municipal charters.
There can be no doubt that if the city pro-
posed to purchase outright, or establish a
■ystsn of waterworks of it« own, the sMtion
1T2 V. %.
would apply though bonds were issued there-
for made payable in the futuie. Bachanait
T. Litchfield, 102 U. S. 278 [26: 138] ; Out-
berfton v. Fvlton, 127 111. 30; Coulkon r.
Portland, Deady, 481; Btale IRead'], v. At'
lantio Cits, 40 N. J. L. 568; Spilman v. Par-
k^rilmrg, 35 W. Va. 606; Beard v. Bopkine-
ville, 96 Ky. 236 [23 L. R. A. 402]. Ther«
are also a number of respectable authorities
to the effect that the limitation covers a
ease where the city agrees to pay a certain
sum per annum, if the aggr^ate amount
payable under such agreement exceeds the
amount limited by the charter. Xilea Wo-
terworkt t. Nilea. 59 Mich. 311; [fitate],.
Humphreys, v. Baj/onne, 65 N. J. L. 241;
Salem Water Co. v. Salem, S Or. 29.
But we think the weight of authority, as
well as of reason, favors the more liberal
construction that a municipal corporation
may contract for a supply of water or gas
or like necessary, and may stipulate tor the
payment of an annual rental for the gas or
water furnished each year, notwithstanding
the aggregate of its rentals during the life
of the contract may exceed the amount of the
indebtedness limited by the charter. *Tbere[SO]
is a distinction between a debt and a con-
tract for a future indebtedness to be in-
curred, provided the contracting part} per-
form the agreement out of which Uie o^t
may arise. There is alto a distinction be-
tween the latter case and one where an abso-
lute debt is crent«d at once, as, b; the issue
of railway bonds or for the erection of a pul>-
lic improvement, — though such debt be pay-
able in the future by inatalmeutb. In the
one case the indebtedness is not created un-
til the consideration has been iumished; in
the other the debt is created at Mice, the time
of payment being only postponed.
In the case under consideration the annual
rental did not become an indebtedness within
the meaning of the charter until the water
appropriate to that year had been furnished.
If the company had failed to furnish it, the
rental would not have been payable at all,
and while the original contract provided for
the creation of an indebtedness, it was only
upon condition that the company performed
its own obligation. Wood v. Partridge, 11
Mass. 48S, 493. A different construction
might be disastrous to the interests of the
city, since it is obviously debarred from pur-
chasing or establishing a plant of its own
exceeding in value the limited amount, and
is forced to contract with some company
which is willing to incur the large expense
necessary in erecting waterworks upon the
faith of the city paying its annual rentals.
Smith V. Dedham.\4* Mass. 177 ; Crotndar t.
SuUivan, 128 Ind. 4S6 [3 L. R. A. 647] ; Ba-
leM T. Neoaho, 127 Mo. 627 [27 L. R. A.
769] ; Talparaito v. Gardner, 07 Ind. 1 [49
Am. Rep. 410] : Neie OrlearM OaeUght Oo. v.
Nmo Orleant, 42 La. Ann. 188; Merrill B. A
Ughti^g Oo. t. Uerrilt, 80 Wis. 868; Weston
V. Sgraouee, 17 N. Y. 110; Eatt Bt. Loui* -r.
East 8t. Louis QasUght d OoJce Co. 98 III.
416 [38 Am. Rep. 97] ; Grant t. Davenport,
36 Iowa, SOS; Lott r. WoyoroM, 84 Ga. 681 ;
349
41-44
SurUEME COOIIT OF THE UnITBD STATES.
Oct. Tbiim,
)
its principal officers, to the auditor of the
state, on or before the Ist of April in each
▼ear, a return in writing, under oath, show-
ing, among other things, the following: Ist.
The whole number of- its miles of railroad
within the state. 2d. If the railroad is part-
ly within and partly without the state, the
whole number of miles witiiin, and of those
without the state, including all its branches.
8d. "Its railroad track in each county in
this state through which it runs, giving the
whole number ofmiles of road in the county,
[42] including the *trackandits branches and side
and second tracks, switches, and turnouts
therein; and the fair cash value per mile
of such railroad in each county, including
in such valuation such main track, branches,
side and second tracks, switches, and turn-
outs." 4th. All its rollinff stock, and the
fair cash value thereof, distineuishing be-
tween what is used wholly within the state,
and what is used partly within and partly
without the state, and the proportionate
value of the latter, according to the time
nsed and the niunber of miles run thereby in
and out of the state; "and the proportional
cash value thereof to each county in this
state through which such railroad runs."
5th. "Its depots, station houses, freight
houses, machine and repair shops and ma-
chinery therein, and all other buildings,
structures, and appendages connected there-
to or used therewith, together with all other
real estate, other than its railroad track,
owned or used by it in connection with its
railroad, and not otherwise taxed, including
telegraph lines owned or .used by it; and the
fair cash value of all buildings and struct-
ures, and all machinery and appendages, and
of each parcel of such real estate, including
such telegraph line, and the cash value
thereof in each county in this state in which
it is located."
The return made by the railroad company
to the auditor is to be laid by him, as soon as
fracticable, before the board of public works,
f the return is satisfactory to the Ixmrd, the
board shall approve it, and, by an order en-
tered upon its records, direct the auditor to
assess the property of the company with
taxes, and he shall assess it as afterwards
provided. But if the return is not satisfac-
tory, the board is authorized to proceed, in
Bucn manner as it may deem best, to obtain
the information required to be furnished by
the return; and may compel the attendance
of witnesses and the proauction of papers;
And is directed, as soon as possible after hav-
ing procured the necessai^ information, to
assess and fix the fair cash value of all the
property required to be returned, in each
counter throuffh which the railroad runs;
and, in ascerukining such value, to consider
the return, and all the evidence and informa-
tion that it has been able to procure, and all
such as may be offered by the railroad com-
pany.
[48J *Tbe leeislature evidently intended that the
annual return should include all the real es-
tate owned or used by the railroad company
in connection with its railroad within the
state. The plaintiff's bridge across the Ohio
river between the states of West Virginia
868
and Ohio was real estate. It was a "build-
ing or structure," within the proper meaning
of the words. Bridge Proprietors v. Ho-
hoken Land d Improv, Co. 1 Wall. 116, 147
[17: 671,577]; [State], WhUall, v. Gloures-
ter County Freeholders, 40 N. J. L. 302, 305.
And it had been declared by Congress to be
"a lawful structure." Act of July 14, 1862 ;
12 Stat, at L. 569, chap. 167. The fact that
the bridge was an instrument of interstate
commerce did not exempt so much of it as
was within West Virginia from taxation by
the state. Henderson Bridge Co. v. Hender-
son City, 141 U. S. 679 [35: 900].
According to the facts alleged in the bill
and admitted by the demurrer, the plaintiff
has been assessed by the board of public
works one sum upon the whole length of its
railroad track within the state, and another
sum upon that part of the bridge within the
state, as a separate structure.
The plaintiff alleged in the bill that its re-
turn included, in the number of miles of its
main track, so much of the bridge as lay
within the state; and contended that the
bridge was included in "its railroad track,"
within the meaning of the third subdivision
of the section of the code above quoted, and
therefore should have been assessed only as
so many feet of the railroad. But the re-
turn does not mention the bridge; and, if it
was included in the term "railroad track" in
that subdivision, the increased value of the
track by reason of the bridge might properly
be taken into consideration in estimating the
value of the railroad track, and the assess-
ment of the track and the bridge separately
would seem to be a difference of form rather
than of substance. Pittsburgh, C. C. d 8t.
L. RaiXusay Co. v. Backus, 154 U. S. 421,
429 [38: 1031, 1037]; Robertson v. Ander-
son, 57 Iowa, 165.
If the bridjge was not covered by the third
subdivision, it was certainly included in the
fifth. This subdivision begins by designat-
ing "depots, station houses, freight houses,
machine and repair shops and machinery
therein, and all other buildings, ^structures, (44]
and appendages connected thereto or used
therewith." It was argued that the wordi
"thereto" and "therewitti," in this sentence,
referred to the same antecedent as the pre-
vious word "therein;" and that "therein"
referred to depots, station houses, freight
houses, machine and repair shops, and there-
fore "thereto" and therewith" must be
equally restricted. But if a strictly gram-
matical construction should be adopted, it
may well be doubted whether "machinery
therein" related to anything but machine
and repair shops; and it can hardly have
been the intention of the legislature to limit
the words "buildings, structures, and ap-
pendi^ges connected thereto or used there-
with" to those connected or used with such
shops only. • If the bridge is not a "building
or structure," within the meanii^ of those
words, as here used, it certainly (If not part
of the "railroad track." under the third sub-
division) comes within the words next fol-
lowing, "together with all other real estate,
other than its railroad track, owned or used
by it in connection with its railroad." By
172 U. S.
\
189S.
PiTTSBURon, C. C. & St. L. R. Oa T. Boabd of Fubuc WoUKa.
44-4
a clatiBe near the end of the same section, It
is provided that "all buildings and real es-
tate owned by such company, and used or oc-
cupi«l for any purpose not immediately con-
nected with its railroad/' are to be tax^ like
similar property of individuals.
The same section further provides that the
decision made by the board of public works
feholl be final, unless the railroad company,
within thirty days after such decision comes
tu its knowledge, appeals (which it is ex-
pressly authorized by the statute to do) from
the decision, as to the assessment and valua-
tion made in each county through which the
railroad runs, to the circuit court of that
county. The appeal is to have precedence
over all other cases, and is to be tried as soon
as possible after it is entered. That court,
on such appeal, is to hear all legal evidence
offered by the appellant, or by the state,
coun^, district, or municipal corporation,
and, if satisfied that the valuation is fixed
by the board of public works is correct, to
confirm the same; but, if satisfied that such
valuation is too high or too low, to correct
it, and to ascertain and fix the true value of
[46] the property *acoording to the facts proved,
and cerufy such value to the auditor.
This provision for a review and correction,
by the circuit court of the county, of the as-
sessment made by the board of public works,
affords a convenient and adequate remedy for
any error in the taxation, and has b^n held
by the highest court of the state to be in ao-
eordance with its Constitution. Wheeling
Bridge d T, Raihoay Co, v. PauU, 39 W. Va.
142.
That eonrt has often had occasion to in-
quire how far the action of the circuit court
of the county, in this respect, is adminis-
trative only, and how far it may be considered
as judicial in its nature. Pittsburg, C, d 8t.
L. RaUxcay Co. v. Board of Public Worke,
28 W. Va. 264; Charleston d Southside
Bridge Co. v. Kanawha County Court, 41 W.
Va. 658; State v. South Penn Oil Co. 42 W.
Va. 80. See also Upshur County v. Rich,
13:3 U. 8. 467 [34:196].
But it is not important, in this case, to
purnue that course of inquiry ; since, in mat-
ters of taxation, it is suincieiit that Uie par^
assessed should have on opportunity to be
heard, either before a judicial tribunid, or
before a board of assessment, at some stase
of the proceedings. Kelly v. Pittsburgh,
104 U. 8. 78, [26: 658] ; Pittsburgh, C. C. d
St. L. Railway Oo, v. Backus, 154 U. 8. 421,
[88: 1031].
Even if, therefore, no previous notioe of
the hearing before the board of public works
was requimi by the statute, or was in fact
girmn to this plaintiff (which is by no means
clear) , yet the notice of its decision, with the
right to appeal therefrom to the circuit
court of the county, and there to be heard
and to offer evidence, before the valuation of
ita property for taxation was finally fixed,
afforded the plaintiff all the notioe to which
it was entitled.
The railroad bridge in question being lia-
ble to assessment under section 67, it is un-
necessary, for the purposes of this case, to
172 V. m.
determine whether it should be treated as
"railroad track," or as a building or struct-
ure," or as "other real estate, owned or used
in connection with the railroad." In any
view, its assessment and valuation by the
board of public works, of which the plaintiff
eomplains, w&s subject to review by the *eir- [46]
cuit court of the county upon an appeal sea-
sonably taken bv the railroad company.
The section, indeed, also provides that,
when the return made to the auditor is satis-
factory to the board of public works, or when
an assessment is made by that board, the
auditor shall immediately certify, to the
county court of each county through which
the railroad runs, the value of the property
of the railroad company therein, as valued
and assessed as aforesaid; that that court
shall apportion that value amon^; the dis-
tricts, school districts, and municipal corpo-
rations through which the railroad runs;
and that the clerk of that court,, within
thirty days after it has laid the county and
district levies, shall certify to thQ auditor
the apportionment so made ; that the record-
ing oflScer of each district or municipal cor-
poration through which the road runs shall,
within thirty days after a levy is laid there-
in, certify to the auditor the amount levied;
and that, if any such ofBcer fails to do so. the
auditor may obtain the rate of taxation from
the land books in his office or from any o^her
source.
But the provision directing the auditor to
immediately certify the assessment made by
the board of public works • to the coun^
court of each county must be construed as
subordinate to and controlled bv the next
preceding provision giving the right of ap-
peal from the board of public works to the
circuit court of the county — as clearly ap-
pears from the next succeedinff prorision, by
which it is after the value of uie property of
the railroad company has been "fixed by the
board of public works, or by the circuit court
on appeal as aforesaid" that the auditor is
directed to assess and charge the property
of the company "with the taxes properly
chargeable thereon," in a book to be kept by
him for that purpose.
The statute also contains a provision that
"no injunction shall be awarded by any court •
or judge to restrain the collection of the
taxes, or any part of them, so assessed, ex-
cept upon the ground that the assessment
thereof was in violation of the Constitution
of the United States, or of this state, or that
the same were fraudulently assessed, or that
there was a mistake made by the auditor in
the amount of taxes properly ohargeiU>ls *on [47]
the property of said corporation or company;
and in the latter case no such injunction
shall be awarded unless application be first
made to the auditor to correct the mistake
daimed, and the auditor shall refuse to do
so, which facts shall be stated in the bill."
While this provision cannot, of course, bind
the courts of the United States, it is nearly
in accord with the rule governing the exercise
of the jurisdiction in equity of those courts,
as established by the decisions cited at the
beginning of this opinion.
869
47-49
SUPBBMB COUBT OF THB UnITBD 8tATB8.
Oct. Tbem,
I
The ttatuta fortlier makes it the duty of
the auditor, **aB soon as possible after he
completes the said assessments," to make out
and transmit to the railroad company "a
statement of all taxes and levies so charged;"
and the duty of the railroad company "so as-
sessed and charged" to pay "the whole
amount of such taxes and levies upon its
property" by the 20th of January "next aft-
er the assessment thereof;" and if the com-
pany does not pay "such taxes and levies"
oy that day, the auditor is directed to add
ten per cent to the amount thereof to pay
the expenses of collecting them, and to cer-
tify to the sheriff of each county "the
amount of such taxes and levies assessed
within his county."
In the present case, the bill does not al-
lege that there was any fraud in the assess-
ment; or that the defendants made any at-
tempt to interfere with the plaintiff's owner-
ship or control of its real estate ; or that the
plaintiff either made any application to the
auditor to correct any supposed mistake in
the assessment, or took any appeal from the
decision of the board of public works to the
circuit court of the county; or that, within
the thirty days allowed for such an appeal,
any attempt was made by the defendants,
either to charge the plaintiff with the pen-
alty of ten per cent for delav in payment of
the taxes, or to levy upon its property for
nonpayment of them.
On the contrary, the bill would appear to
have been studiously framed to avoid mak-
ing any such allegation. The bill, which
was sworn to on March 18, 1805, alleged that
on January 19, 1896 (sixty dajrs before) , the
plaintiff received notice from the auditor of
the decision of the board of public works;
that "on the day of , 1895" (which
[AS] might be any day 'before the bill was sworn
to), the auditor added the ten per cent and
certified to the sheriff the amount of the tax
assessed with that addition; and that the
sheriff "since said date" had demanded pay-
ment of both suma from the plaintiff; and
the affidavit filed with the bill on March 25,
1895, shows that the sheriff's levy on one of
the plaintiff's engines was made after the
bill was sworn to.
The only reasonable inference from these
vague allegations of the bill is that the au-
ditor waitM for more than thirty days, after
giving the plaintiff notice of the decision of
the board of public works, in order to af-
ford full opportunity for^ an appeal from
that decision; and that no* penalty was im-
posed for delay in payment of the taxes, nor
any active measure taken to enforce tiiem,
until it had become clear that the plaintiff
did not intend to take such an appeal.
The plaintiff, upon its own showing, hav-
ing made no attempt to avail itself of the
adequate remedies provided bv the. statute
of the state for the review of the assessment
complained of, is not entitled to maintain
this bill.
Decree affirmed. '
S60
TOOTED STATES, Appt.^
V.
MARY A. WARDWELL, Admrx., of Will-
iam V. B. Wardwell, Deceased.
(See 8. C. Reporter's ed. 48-58.)
V. S. Rev, 8tai. 9 1069— §§ 306, ,n08— «ta«-
ute of limitations as to a claim against
the United States,
1. U. S. Rev. Stat, f 1069, it not merely a stat-
ute of limitations but also Jurisdictional lo Its
nature, and limiting the cases of which tbe
court of claims can take cognisance.
2. U. S. Rev. Stat. || 806-308. contain a prom-
ise by the government to hold the money cov-
ered into the Treasury under said sections,
for the benefit of the owner until such time
as be shall call for it. This Is a continuing
promise.
8. A claim against the United States for
moneys carried to the credit of the payee of
a check drawn by a disbursing offlcer In pur-
suance of U. 8. Rev. Stat. | 306. for whlca,
by i 308. the proper officer of the Treasury la
required to give a warrant, does not accrue at
the time the check Is Issued or at the time
when It may be lost or destroyed, so that the
statute of limitations (U. S. Rev. SUt. |
106&> win begin to run, but it will accrue
only when the promise made by | 308 Is
broken, — as, by refusal of an application for
a warrant
[No. 63.]
Argued October 20, 1898, Decided Novem-
ber 28, 1898.
APPEAL from a judgment of the Court
of Claims in favor ol Mary A. Wardwell.
administratrix, etc., against the United
States for the amount of three cheoks drawn
on the Assistant Treasurer of the United
States in payment of daims against it, and
which were subsequently lost and destroyed
and the amounts thereof covered into the
Treasury. Affirmed,
See same case below, 32 Ct. CI. 80.
Statement by Mr. Justice Brewer t
*This is an. appeal from the court of claims. [40]
The facts as found by that court are that in
June, 1860, three checks were dravim in favor
of William V. B. Wardwell, one by Major
W. B. Rochester, paymaster. United States
Army, and two by Major M. I. Ludington,
Suartermaster, United States Army, all
rawn on the Assistant Treasurer of the
United States in New York, and in payment
of lawful claims of Wardwell against the
United States. Subsequently to the issue of
the checks and while still in the poesession
and ownership of Wardwell they were lost
or destroyed, probably in a depredation com*
mitted on his house by Indians in the year
1872. None of the checks having been pre-
sented for payment the amounts thereof were
covered into the Treasury of the United
States and carried to the account of "out-
standing liabilities" in pursuance of the act
172 V.I.
USUI T. Tkbat. 38-^
ordi-
[nary
rhere
id «z-
ittlet
Sast-
it or
filed
itody
Uert
ders, mate of the American Teasel OIIt«
Pecker, and senUoced to death. The ease
was brought to tbU eourt on error and tha
judgment nu affirmed May 0, 1808. 170
O. S. 481 [42: IllS]. The mandate having
gone down, execution of the sentence waa
fixed for August 26, 1898. On that daj (H.
Q. Miller and P. J. Morris assuming to act
aa hie eouneel) , Andersen filed a petition in
the district court of the Uaited States for
the eastern district of Virginia, praying for
a writ of habeas corpus, on the ground that
be was held in custody for execution "in Tio-
lation of the laws and the Constitution of
the United States of America," in that he
had been deprived "of the free exercise of
hid rights to be represented by counsel, in
accordance with article 6 of the Amendment
of the Constitution of the UnitMl Statei."
•Tht petition stated: [)
"Your petitioner represent* that on the
7th day of November, 1897, he was delivered
to the United States marshal for the eastern
district of Virginia, charged with having
committed the crime of murder within the
maritime jurisdiction of the United State*
of America; that as a prisoner of the said
United States marshal be was confined oB
the day of bis delivery in the city jail in tlia
city of Norfollc to await his examination, aa
provided by law, before the United Statea
contmissioner for the eastern district of Vir-
ginia; that on that day, vtf., the Tth day of
November, 18B7, while thus detained in the
city jail of the city of Norfolk, he employed
as counsel to represent him one P. J. Morris,
an attorney at law, residing in the ci^ of
Norfolk, Virginia.
"Your petitioner further represents that
after securing tlie services of the said Mor-
ris, on the same day the said Morris called
at the city jail {the place of tlie detention
of your petitioner), and asked permission ta
see your petitioner to consult with him aa
attom^ and client. Your petitioner repr»-
sente tnat admission was refused my said
attorney, for the reason that the district at-
torney of the United States for the eastern
district of Virginia had instructed the jailer
and others in charge of your petitioner to
allow no one, without exception, to see your
petitioner; whereupon your petitioner repre-
sents that on the Tth day of November, 1897,
my said attorney asked permiasion, t^
phone, of the district attorney for the eas^
em district of Virginia, to permit him to
visit the said jail and consult with your pe-
titioner; that said application was refused,
and that, on account of the order of the dis-
trict attorney lodged with the jailers and
keepers of the prison in which your petitioner
was detained, your petitioner was denied th«
right of the assistance of counsel to repre-
sent your petitioner.
"Your petitioner further represanta that
the district attorn^ for the eastern district
of Virginia informed your petitioner's coun-
sel on the night of the 7ui of November,
1897, that he would let blm know on the
following day whether or not permission
would be granted your patitiouer'a oounsal
351
62-^4
bUPKKME CoUllT OF TH8 UNITED bTAlJi^
Oct. Ts&m,
I
cognizance. Finn t. United States, 123 U.
6.227 [31: 128].
Counsel for the government contend that
the claim against the United States first ac-
crued in 18G9, when the checks were issued,
or, if not then, at least in 1872, when they
were lost or destroyed, and therefore, this
being twenty-four years before the commence-
ment of this suit, that the claim was barred.
If there were nothing to be considered but
the single section referred to, it would be
diflicult to escape this conclusion of counsel.
It is further contended that sectionB 306,
307, and 308 relate to what is simply a mat-
ter of bookkeeping, and do not in any manner
change the scope of the liability of the gov-
ernment. But we are of the opinion ttiat
they mean something more. Wnile it may
be that they do not provide for the creation
of an express trust, liability for which, ac-
cording to general rules, continues until
th'jre is a direct repudiation thereof, yet
they contain a promise by the government to
hold the money thus covered into the Treas-
ury for the benefit of the owner until such
time as he shall call for it. This is a con-
tinuing promise, and one to which full force
And eficacy should be given. If bookkeep-
ing was the only matter sought to be provid-
ed for, there were no need of section 308.
That prescribes payment, and payment in a
particular way. The payee does not simply
surrender his check and receive money. But
"on presenting the same to the proper offi-
cer" ne is "entitled to have it paid by the
settlement of an account and the issuing of a
warrant in his favor." This may be mere
machinery for parent, but it is machinery
not used or required until after the money
|SS]has be6n"cover€Nlintothe*Treasury by war-
rant" and "carried to the credit" of the pay-
ee. The right given is the right to surrender
the check and receive a warrant on the Treas-
ury. It will also be noticed that the pur-
pose of the act of 1866 was, as expressed in
Its title, not merely to "facilitate the settle-
ment of the accounts of the Treasurer of the
United States," not merely to perfect a sys-
tem of bookkeeping, but also "to secure cer-
tain moneys ... to persons to whom
they are due, and who are entitled to receive
the same." And the deposit by the Treas-
urer is not of a n'oss amount to be applied
to any claims that may arise, but of the
amount due for certain specified checks and
drafts. In other words, the purpose of the
government by this statute is to secure to
each partv who holds government paper the
amount thereof, to place it in the Treasury
to his credit, and to prescribe a method by
which whenever he wishes he can obtain it.
No time is mentioned within which he must
apply for a warrant or after which the money
is forfeited to the government. The ordinary
rules for the maturity of negotiable paper
do not control. Congress has directea tnat
the money already once appropriated and
checked against shall be placed in the Treas-
ury and held subject to Uie call of the party
for whose benefit it has been so appropriated
and checked. There is no occasion for suit
until after his application for a warrant is
refused. When the contract created bv the
862
promise made in section 308 Is brokan, then
a claim for the breach of such contract first
accrues, and the limitation prescribed by sec-
tion 1060 begins to run. There is thus no
conflict with that section. Its full force is
not impaired.
In this connection it may be not amiss to
notice those authorities in which it is held
that upon the ordinarjr deposit of money
with a bank no action will lie until a demana
has been made, by check or otherwise, and
that hence the statute of limitations will not
begin to run until after a refusal to pay on
such demand. In Dotones v. Phcenix 6ank
of Oharlestown, 6 Hill, 297, 300, Bronson, J.,
delivered the opinion of the court, and, after
referring to the ordinary rule that where
there is a promise to pay on demand the
bringing of an action is a sufficient demand,
and criticising it as illogical, added:
*"The rule ought not to be extended to [54]
cases which do not fall precisely within it.
Here the contract to be implied from the
usual course of the business is that the bank-
er shall keep the money until it is called for.
Although it is not strictly a bailment, it
partakes in some degree of that character."
See also Johnson v. Farmers* Bank, 1
Harr. (Del.) 117; Watson v. Phcenix Bank,
8 Met. 217-221 [41 Am. Dec. 500].
In Dickinson v. Leominster Savings Bank,
162 Mass. 49, 65, it was held that the statute
of limitations would not begin to run in
favor of the bank and against a depositor
until there had been something equivalent
to a refusal on the part of the bank to pay,
or a denial of liability.
In Oirard Bank v. Bank of Penn Town^
ship, 30 Pa. 92, 98, 99 [80 Am. Dec. 607],
the holder of a certified check was the plain-
tiff, and, the check having been outstanding
more than six years, the statute of limita-
tions was pleaded ; but the plea was not sus-
tained, the court, bv Strong, J., saying, in
respect to the case of an ordinary deposit:
'^Vere this a suit against the Bank of
Penn Township by the original depositor the
statute of limitations woiud be interposed in
vain, not so much because a bank is a techni-
cal trustee for. its depositors, as for the rea-
son that the liabilitv assumed by receiving
a deposit is to pay when actual demand shaU
be made. The engagement of a bank with
its depositor is not to pay absolutely and im-
mediately, but when payment shall be re-
quired at the banking house. It becomes a
mere custodian, and is not in default or lia-
ble to respond in damages until demand has
l)een made and payment refused. Such are
the terms of the contract implied in the trans-
action of receiving money on deposit, terms
necessary alike to the depositor and the
banker. And it is only becSstuse such is the
contract, that the bank is not under the ob-
ligation of a common debtor to go after its
customer and return the deposit wherever he
may be found. Hence it follows that no
right of action exists, and the statute of lim-
itations does not besin to run until the de-
mand stipulated for In the contract has been
duly maoe."
And the rule thus announced in respect to
172 U. I.
Amdkbsbm v. Tkbat.
Dm district oonrt denied the writ of
ba1)«w corpue prayed for, and ordered the
petition to be diuuiaaed, whereupon an ap-
peal wai allowwl petitioner to this court,
and a transcript of the petition, the final
order, and all other proceeding in the cause
were directed to be forward^ to its clerk.
"th* final order concluded in these wordai
"And the conrt further certiSes as a part of
this order that although indictment No. 241,
onder which the petitioner, John Andereen,
■as tried and convicted of murder, waa not
one of the number embraced in the order of
the 14th of December, 1SS7, asEifrniue aaid
Uclntoeh as counsel, that atill aaid Mcln-
toeh, under aaid order and pursuant to the
!0]uugnit)ent nt the court, 'continued to repre-
sent the said Andersen upon his trial in the
eirenit court of the United Statee, and upon
hi* a .•-..-- „ . .K.
Cnitei
Mean. Ttngh O. MUler, F. J. Morria,
end /. G. Bigelov) for appellant.
Mr. Wmimm H.. White, United SUtes
Attorney for the Eoatem District ol Vir-
giaia, for appellee.
9] *Ur. (Aief Justice Fnller delivered the
opinion of the conrt;
The role that the writ of habeas corpus
cannot be made uk of as a writ of en
ins firmly established, the contention
p«Uant's eonnsel is that the juagment of the
drenit court, the judgment of thia court, and
the action of the circuit court in purauance
of our mandate, are wholly void because he
wu denied "the assistance of counsel for
bis defense," that is, the assistance of coun-
ul of Ua own selection.
The petition was insufficient in not setting
forth Uw proceedings, or the essential parts
thereof, prior to August 26, 1688, on which
day [t was preeentetC 9^A it vras very prop-
erly conceded on the hearing of this appeal
that the record of Andersen s trial and con-
viction and the proceedings on error was to
be treated as part of the record, and it was
referred to by counsel on both sides accord-
ingly. Oraemer v. Washington, IBS U, 8.
124, 126 [42:407, 409].
Ihe record disclosed that on Monday, the
tth of November, 1897, the day after Ander-
•en had been delivered into the custody of
the manhal, Qeorge McTntosh, Es(|., waa as-
signed to him as counsel upon hu own re-
Sst and in ac<wrdance with section 1034 of
Revised Statutes; and that Mr. Mcin-
tosh actually represented him from thence
onward contesting everr atep of the way, un-
til, after having obtained a writ of error
fnnn this court, and argued the cause here,
liii petition for a rehearing was denied.
But the petition averred that on Novem-
D]lwr 7 petitioner had '"employed as counsel
to represent him one P. J. Horris;" that on
the same day Morris called at the place of
detention and anked permission to see peti-
tioner for consultation, which was refused;
that petitioner's preliminary eiamination
172 U. S. v. B.. Book 43. 13
was had without the aid o
preseuoe of hia
attorney; and that the district judge and
the district attorney told his said attorney
that, as petitioner's defense waa "inconsis-
tent with the defense of others charged at
the same time with complicity in tne de-
struction of the vessel "Olive Pecker," tba
court would not permit the aame attorn^
to represent them all.
The contention seems to be that petitioner
was denied, at any rate in the first Instance,
the assistance of Uie attorney he had Belect«d,
and that be did not have bis attorney with
him when he told his story November S;
and that, as he waa thereby deprived of fun-
damental constitutional rights, all subse-
quent proceedings were void for want of ju-
risdiction.
The papers introduced b
court, by consent, tended ti
ria had not been employed t
to November 8 ; that the fit
crew other than Andersen
ria on that day to represen
district attorney had bad i
any of the prisoners up to the morning of
November 8, which he informed the attorney
'* was imperatively necessary in view of fu-
re action that he should have, and then if
the prisoners employed him tliey would b*
~* hia diaposal.
Apart from that evidence, however, the
record of the trial showed that examination
before the United States commissioner was
waived by the accused ; that the trial lasted
several days, during which no other counsel
applied to the court for leave to act for An-
dersen, nor did Andersen request the court to •
permit any other counsel to conduct or aasiat
in conducting his defense; that Andersen ad-
mitted that the statement he made on No-
vember 8 was a voluntary one, th^t no such
atatenient waa put in evidence; nor waa any
objection raised to questions propounded to
.r^ndersen when on the stand as to what be
had said on that occasion ; nor were wit-
sen called to contradict hie answers.
'The recoT<d did not show nor waa there tSl]
any pretense that the court was requested
to assign Morris as counsel for Andersen,
and denied the request; and it it were true
that the district judge or district attorney
._j jijgj jj „m,]j 1^ objectionable to
ew of his employment by the other
five members of the crew, even though coup-
tb the intimation that the court would
e on that ground to make such aaeign-
. the fact was not material on this ap-
plication.
In OommonxoeoAth v. Knapp, 9 Pick. 49S
[20 Am. Dec. 491], the supreme judicial
court of Massachusetts refused to make a de-
sired assignment because the person desig-
nated was not a member of the bar of tbat
court, and also because "a person of mors
legal experience ought to be assigned, who
migU render aid to the court as well as to
the prinoner;" but the question under what
circumstances u court may in a given case
decline to assign particular counsel on Iho
3(t3
67-3U
SuPKKME Court op thk United STATi::^.
Oct. Tbiui,
I
the ftrst instance there was a written prom-
ise hy the government, a promise for which
an appropriation had been made and upon
whicn a cause of action existed. But while
there is a difference, we do not think it suffi-
cient to create a different rule or measure of
liability. There is no new deposit when a
check is certified, but as shown bv the opin-
ion in Oirard Bank v. Bank of Penn Toum-
ship, supra, this fact works no change in the
tM]*ruIe. Whether the money to satisfy this
liability was paid in by 9ome third party or
already held by the Treasurer ; whether there
was or not any prior liability on the part of
the government, in each case there was a dec-
laration by Congress that the money thus re-
ceived or covered into the Treasury should
there be held for the benefit of and subject
to the call of the owner, and no time was
specified within which such call must be
made. This was a distinct and separate
promise, creatine a new liability, and the
claim accrued when this new liability ma-
tured. It matured when the claimant pre-
■ented her checks and, calling for warrants,
was refused them.
The judgment ia affirmed.
GREEN BAT ft MISSISSIPPI CANAL
COMPANY, Plff, in Err,,
V,
PATTEN PAPER COMPANY et al
(See 8. C. Reporter's ed. 68-82.)
Federal question — when sufficiently alleged
— water power, when subject to appropria-
tion hy the United States.
1. An explicit allegation that a claim It
founded on certain acts of Congress and a
contract with the United States Is sufficient
to present a Federal question for review by
the Supreme Court of the United States, If
the alleged right Is denied by the state court.
S. No particular form of words or phrases Is
required for the assertion of a claim of Feder-
al rights to present a question for writ of
error from this court to a state court, but It
Is sufficient If such rights were specially set
up or claimed in the state court. In such man-
ner as to bring them to the attention of that
court.
t. Water power Incidentally created by the
erection and maintenance of a dam and
canal for the purposes of navigation in Fox
river. Wisconsin, which by legislation, both
state and Federal, was dedicated to raising a
fund to aid the enterprise. Is subject to con-
trol and appropriation by the United States,
which owns and operates the public works,
and not by the state of Wisconsin, within
whose limits the river lies.
4. A riparian owner on a stream on which
works of public improvement have been
constructed by state and Federal authority
to Improve navigation, whereby an incidental
water power Is created. Is not entitled to have
all the water flow past his land, so as to pre-
vent the diversion of the surplus water power
by grantees of the government, where he was
given reasonable opportunity to obtain com-
864
pensatlon for damages sustained by the
structlon of the Improvement.
[No. 14.]
Argued January IS, H, 1898. Decided No*
vember 28, 1898.
IN ERROR to the Supreme Court of tbe
State of Wisconsin to review a judgment
of that court reversing a judgment of the Su-
perior Court of Milwaukee County in an ao*
tion brought by the Patten Paper Company
et al. against the Green Bay a Mississippi
Canal Company et al. to determine rights in
the waters of Fox river, etc. There was also
a motion to dismiss. Reversed, and case re-
manded for further proceedings.
See same case below, 93 Wis. 283.
Statement by Mr. Justice Sl&irast
This was a suit brought, in 188G, in the
circuit court of Outagamie county, Wiscon-
sin, by the Patten Paper Company and
others, against the Kaukauna Water Com-
gany, the Green Bay & Mississippi Canal
dmpany, and others. The object *of the pro- [601
ceedmg, as set forth in the complaint, was to
have determined what share or proportion of
the flow of Fox river, where the same passes
Islands Nos. 3 and 4 in township No. 21,
north of range No. 18 east, is appurtenant
and of right should be permitted to flow in
the south, middle, and north channels of said
river respectively, and to have the defendants
restrained from drawing from said Fox river
above the head of Island No. 4, and so that
the same shall not come into the middle chan-
nel of said river and into the mill pond of the
plaintiffs, more water flow of said river than
the one-sixth part thereof, or more than the
amount which by nature was appurtenant to
and flowed in the south channel of said
river.
The scope of the investigation was widened
by reason of the answer of the Gfeen Bay &
Mississippi Canal Company, which it was
affreed and stipulated should have the effect
of a cross bill in the action, and which asserted
that any decree to be entered in the suit de-
termining or adjudicating what share or pro-
portion of the flow of the river should be per-
mitted to flow in its several channels, should
be made subject to the right of the canal
company, by reason of the facts stated, to
use all of the water power created by the jgoT-
ernment dam and improvements on the river.
The principal facts disclosed in the case
were the following:
The Fox river is a navigable stream, and
flows through township 21, north of range 18
east, in the county of Outaffamie, Wisconsin,
and in said river, below Lake Winnebago,
there are and always have been rapids and
abrupt falls. To permit navigation through
or by said rapids and falls necessarily re-
quires the building of dams, locks, and ca-
nals at ffreat expense. By an act approved
Auffust 8, 1846, Confess granted to the state
of Wisconsin, on its admission into the
Union, a large amount of public lands for the
express purpose of and in trust for improv-
ine the naviiration of the Fox and WisroTipin
172 V. S.
PimBUBaH, C. U. & St. L. a Co. t. Bouid of Pubuc Woi
uid ii Mt out in tlie margin t). and, in nuk-
iag that retnm, included, In the 7.11 miles
of iti main track, so much of the brida« aa
Ut within the atat«, amounting to 1,618
tccL
Tht bill further alleged that Home time in
Beplember, ISSl, the board of public works,
meeting at Charleston in that state, as pro-
TJded b7 that seotion of the Code, to asaess
[tSluid fix the 'valuation of railroad proper^
for the purposee of taxation, refused to ap-
prOTe Uie plaintiS's return, and proceeded,
among other things, to aaaeaa the plaintiff
with 11.53 milea of main track and 6.63 miles
of Hcond track in the county of Brooke,
which assessment and valuation covered the
entire length of its railroad in the state of
West Virginia, including ho much of the
bridge aa laf within the Htat«; and, in ad-
dition thereto, valued and assessed the
bridge as a separate structure, at the sum
of 1200,000, placing the tax upon the bridge
■t tS.OUO, and the auditor proceed^ to aa-
tees the plaintiff with this sum of 93,060;
thereby assessingjt nitb the entire length
of tiie bridge in West Virginia as a part of
ill railway in the state, and also aBseeaing
it with the bridge as a separate atructure,
thua taxing the plaintiff a second time for
that part of its bridge which lay in West
Virpiiia; whereas the bridge should only
hiTC been assessed aa so many fMt of the
The bill further alleged that neither the
board of public works, nor any member there-
of, nor the auditor, informed the plaintiff of
the Taluation which had been placed upon Its
property by the board of taxation, nor of the
taxes which had been assessed thereon by
the auditor; that «
the plaintiff, not having
the action of the board or of the auditor, ad-
dieased through its chief engineer a letter
to the auditor, inquiring what action had
been taken by the board of public works and
the auditor with r^ard to the asBessment of
taxes on its property for 1804; that the let-
ter was not answered, nor was any inform*^
tion in regard to the taxes given to the
plaintiff until January 19, 1895, when it ro-
ceived from the auditor a statement showine
that the Iward of public works had placed
a separate and additional valuation of 9200,-
000 upon the bridge for the purposes of tax-
ation, and that the auditor had proceeded
to assess and charge the plaintiff with the
sum of «3,0fl0 as a tax for 1804 upon that
valuation; and that on January 19, 1896,
the auditor demanded of the plaintiff pay*
ment of that sum, and the plaintiff refused to
pay it, but paid to the auditor the rest of
the taxes aasesBed, amounting to the sum of
94,187, upon a valuation "of «3I0,830, wUcb [90}
included the plaintiff's railroaJd in the
county of Hancock.
The bill further allied that "on the —
day of , 1805," the auditor added tea
per cent to the sum of 93,060, to pay the ex-
pense of collection, and certified that sum,
with the ten per cent added, to the sheriff of
Hrooke county for eoUectioB; and that the -
sheriff "aiuce said date" had demanded pay*
ment of the sum of 93,060 and Uie ten per
cent additional, and waa threatening to col-
lect them t^ legal process, and would tlius
inflict irreparable injury upon llie plain-
tiff, unless prevented by the interposition of
a court of competent jurisdiction.
tTilution of P.. C C * BL L. B'r Main Une In tbe State of W«tt TIttlnta aa Betaned (M
TaxaUon for tbe Year 1894.
Brooke Connty. Cross Creek district:
as^:::E;:i:::;;;;i:;!!:;:iiili ""^ ■■ IE iV " "
i i8
S
aSS'toS " -
1
M> 00
Hancock Caantj. ButJer district:
119 00
Supplies and*tooi•"^^";^';.';;".""w"..; T.
iW^. B.'
SB5
Stt-iiU fiCPltEMB CODBT OF
TliB plaintiff further alleged that tht
bridge constituted a part of its line of rail-
way, and had no separate earning capacity,
and no greater earning capacity than anj
other equal number of feet of its line of rail'
way, and was used exclusively by it in trans-
Sorting freight and passengers across the
ihio I'iver to and from the states of West
Virginia and Ohio; and that it was advised
and believed Uiat the bridge was an instru-
ment of interstate commerce, and was not, ae
a separate structure from its line of rail-
way, a proper subject for taxation by the
■Ute of West Virginia in the manner above
Mt forth.
The bill then chareed that the tax upon
the bridge was illegal and unjust, and con-
■tituted a cloud upon the title to the bridge,
and that by reason of that clause of the Con-
stitution of the United States, which gives
Congress control over interstate commerce,
the circuit court of the United States for
the district of West Virginia was clothed
with authority and jurisdiction to restrain
and to prevent the asseasment and collee-
tiou ol this ille^ and unjust tax; and
prayed for an injunction against its aaseas-
in«nt and collection, and for r^rther relief.
The bill was sworn to March IS, 1S05; and
was filed March 26, 1B05, together with an
affidavit to the effect that, since the bill was
sworn to, the sheriff had levied upon one of
the plaintiff's freight engines for the purpose
of enforcing the collection of the tu upon
tb'e bridge. Upon the filing of the bill, a
temporary injunction waa granted as prayed
for.
A general demurrer to the bill was after-
[STJwardi filed and 'sustained, the injuootion
dissolved, and the bill dismissed. The
plaintiff appealed to this court, under the act
of March 3, 1891, chap. 617, I 6. £6 SUt.
at L. 823.
Ucsari. J. Dnnfaar and J. B. Bommer-
▼Ule, for appellant.
Messrs. T. 8. Riley, Tbayer HelHn,
and Edgar P. Rnoker. Attorney General of
West Virginia, for appellee.
[37] 'Mr. Justice Ormy, after stating the case,
deriered the opinion ot the court:
The colIectJDD of taxes assessed under the
authority of a state is not to be restrained
Kwrit of injunction from a court of the
lited States, unless it clearly appears, not
only that the tax is ill^al, but that the own-
er of the property taxed has no adequate
remedy by the ordinary processes of the law,
and that there are special circumstances
bringing the case under some recognized bead
of eouity juilsdiction. Dotca v. Chicago, 11
Wall. lOB [20: 65] ; Banneioinkh v. Ooarge-
tovm, 16 Wall. 647 [21:231]; Btate Bail-
road Tata Casee, 02 U. S. 076 [23:883];
Vnion Pacific Railtcay Co. v. Cheyenne, 113
V. S. 616 [28: 109S) ; Milaaakee v. Koe/fler,
116 U. S, 21D [29:012]; Bhelton t. Piatt,
139U. S. 601 [34: 273].
In Dows V. Chicago a citixen of the stat« of
Kew York, owning shares in a national bank
organized and doing business in the city of
Chicago, filed a bill in equity, in the circuit
356
1
18:;8.
Pittsburgh, 0. C. & St. L. R. Co. v. Boabd op Pubug Wobkb.
89-41
intended to apply alone to taxes levied by the
United States, it shows the sense of Congress
of the evils to be feared if courts of justice
couU, in any case, interfere with the process
of •jollecting the taxes on which the govern-
ment depends for its continued existence."
llie court then auoted from Dow8 v. Chicago,
and BaunetoinkU v. Georgetoum, above cited,
uid proceeded as follows: "We do not propose
to lay down in these cases any absolute lim-
itation of the powers of a court of equity in
restraining Um collection of illegal taxes.
Bat we ma^ say that, in addition to illegal-
ity, hardship, or irregularity, the case must
be brought within some of the recognized
foondations of equitable jurisdiction; and
that mere errors or excess in valuation, or
hardship or injustice of the law, or any
grievance which can be remedied by a suit
at law, either before or after payment of tax-
es, will not justify a court of equity to inter-
pose by injunction to stay collection of a tax.
One of the reasons why a court should not
tiius interfere, as it would in any transaction
between individuals, is that it has no power
to apportion the tax or to make a new assess-
ment, or to direct another to be made bv the
proper officers of the state. These ofncers,
and the manner in which they shall exercise
their functions, are .wholly beyond the power
of the court when so acting. The levy of
taxes is not a judicial fun^ion. Its exer-
cise, by the Constitutions of all the states,
and by the theory of our English origin, is
eselusively legislative. A court of equity is,
therefore, hampered in the exercise of its
jurisdiction by the necessity of enjoining the
tax complained of, in whole or in part, with-
out any power of doing complete justice by
making, or causing to hs made, a new assess-
ment on any principle it may decide to be
the ri^ht one. In this manner, it ma^, by
enjoining the levy, enable the complainant
to escape wholly the tax for the ^riod of
time complained of, though it be obvious that
he ought to pay a tax if imposed in the prop-
er manner.'^ 92 U. S. 613-616 [23:673,
674].
t40J •In Union Pacific Railtoay Co, r, Cheyenne,
in which the Union Pacific Railway Company
obtained an injunction against the levy of a
tax b^ the dty of Ch^enne, the facts were
peculiar. The plaintiff, owning many lots of
land in that city, had paid a tax assessed on
all its property by a board of equalization
under a general statute of the territory of
Wyoming, and had also been taxed by the
city of Cheyenne under provisions of its
charter which had been repealed by that stat-
ute; and the bill showed, as stated in the
opinion, that the levy complained of "would
involve the plaintiff in a multiplicity of suits
as to the title of lots laid out and being sold ;
would prevent their sale; and would cloud
the title to all its real estate." 113 U. 8.
526, 527 [28: 1102].
In Shelton v. Piatt, 139 U. S. 591 [36:
273], the president in behalf of himself and
other members of an express company, a
joint-stock company of the state of New
York, filed a bill in equity in a circuit court
of the United States in Tennessee to restrain
the collection of a license tax upon the com-
172 U. S.
pany under a statute of the state of Tennts-
see, alleged to be contrary to the ConBtita-
tion of the United States. The bill averred
that the comptroller had issued a warrant of
distress to a sheriff to collect such taxes for
two years, the sheriff had levied or was
about to levy the warrant on the property
of the company, and the comptroller was
about to issue a like warrant to collect the
tax for a third year; that the property of
the company in Tennessee was employed in in-
terstate commerce in the express business,
and was neoeosary to the conduct of it; and
that the seizure by the sheriff would greatly
embarrass the company in the concuict of
that business and subject it to heavy loss
and damage, and the public served by it to
great loss and inconvenience. This court
held that, even if the statute was unconsti-
tutional and the tax void, the bill could not
be maintained, and, speaJcing by the Chief
Justice, said : "The trespass involved in the
levy of the distress warrant was not shown
to be continuous, destructive, inflictive of
injury, incapable of being measured in
money, or committed by irresponsible per-
sons. So far as appears, complete compen-
sation for the resulting injury cou)d have
been had by recovery of damases *in an ac- [41}
tion at law. There was no allegation of in-
ability on the part of the express company
to pay the amount of the taxes claimed, nor
any averment showing that the seizure and
safe of the particular property which might
be levied on would subject it to loss, dam-
age, and inconvenience which would be in
their nature irremediable." The court went
on to say that another statute of the state
(which had been adjudged by this court in
Tennessee v. Sneed, 96 if. 8. 69 [24: 610], to
afford a simple and effective remedy) pro-
vided that where an officer charged by law
with the collection of a tax took any steps
to collect it, a party conceiving it to be un-
just or illegal might pay it under protest
and sue the officer to recover it back, and
should have no other remedy by injunction
or otherwise. The court observed that "leg-
islation of this character has been called for
by the embarrassments resulting from the
improvident employment of the writ of in-
junction in arresting the collection of the
public revenue ; and, even in its absence, the
strong arm of the court of chancery ought
not to be interposed in that direction, except
where resort to that court is grounded upon
the settled principles which govern its juris-
diction;" and that the jurisdiction exercised
by the courts of the United States to restrain
by injunction the collection of a tax wholly
illegal and void had always been rested on
other grounds than merely the unconstitu-
tionality of the tax. 130 U. 8. 606-698 [35:
276, 277].
In the light of these decisions we proceed
to an examination of the provisions of the
Code of West Virginia of 1891, chap. 29, 9
67, under which the tax upon the plaintiffs'
bridge was assessed.
That section requires every corporation,
owning or operating a railroad wholly or
partly within the state, to make, through
357
41-41
£ CODItT OF T
Ita principal ufllcera, to tbe auditor of tbe
state, on or before the Ist of April in each
war, a return in writing, under oath, show-
ing, among otlier things, the following: 1st.
The whole number of- its miles of railroad
within the state. 2d. If the railroad ie part-
ly within and partly without the state, the
whole number of miles within, and of those
without tbe state, including all its branches.
Sd. "Its railroad track in each county in
thia state through which it runs, giving tbe
whole number of miles of road in the countv,
[42] including the 'trackanditabrazicheB and side
and second tracks, switches, and turnouts
therein; and the fair cash value per roile
of such railroad in each county, iocluding
In such valuation such main track, branches,
■Ids and second tracks, switches, and turn-
outs." 4th. All its rolling stock, and the
fair cash value thereof, distinguishing be-
tween what is used wholly within the state,
and what is used partly within and partly
without the state, and the proportionate
value of the latter, according to the time
nsed and the number of miles run thereby in
and out of the state; "and the proportional
cash value thereof to each county in this
state through which such railroad runs."
Eth. "Its depots, station bouses, freight
bouses, machine and repair shops and ma-
chinery therein, and all other buildings,
structures, and appendages connected there-
to or used therewith, together with all other
real estate, other than its railroad track,
owned or used by it in connection with its
railroad, and not otherwise taxed, including
telegraph lines owned or .used by it; and tbe
fair cash value of all buildings and struct-
ures, and all machinery and appendages, and
of each parcel of such real estate, including
such telegraph line, and the cash value
thereof is each county in this state in which
It is located."
The return made by the railroad company
to the auditor is to be laid by him, as soon as
rracticable, before the board of public works.
f the return is satisfactory to tne board, the
board shall approve it, and, by an order en-
tered upon its records, direct the auditor to
usess the property of the company with
taxes, and he thaU assess it as afterwards
provided. But if the return is not satisfac-
tory, the board is autliorised to proceed, in
sucn manner as it may deem beat, to obtain
the information required to be furnished by
the return ; and may compel the attendance
of witnesses and the production of papers;
■ad is directed, as soon as possible after hav-
ing procured the necessary information, to
assess and fix the fair cash value of all the
property required to be returned, in each
county through which the railroad runs;
and, in ascertaining such value, to consider
the return, and all the evidence and informa-
tion that it has been able to procure, and all
such as may be offered by the railroad com-
pany.
[M] *The legislature evldentlyintMidedtliattlie
annual return should include all the real es-
tate owned or used b^ the railroad company
In connection with its railroad within the
state. The plaintiS's bridge across the Ohio
river between the states of West Virginia
368
and Ohi<
of the
token Li
117:571:
(er Coun
And it b
12 SUt.
the bridj
coramere
was witl
the state
son City,
and adm
has been
The pi
turn incl
within tl
of the se
therefore
so many
turn doe
that sub
be taken
value of
ment of
would sci
than of I
L. Railv!
429 [38:
son, 67 I
If the
siibdivisi
fifth. Tl
ing "dep
machine
therewitl
"thereto"
referred
referred
houses, n
may wel
and reps
been the
shops onl
of the'"r
division )
lowing, "
other th(
by it In
im.
PrrraBUBon, C. C. & St. L. R. Ck>. v. Boabd of Fubuc WouKa.
44-i
^ 1 clause near the end of the same section, it
is proTided that "all buildings and real es-
tate owned by such company, and used or oc-
cupied for any purpose not immediately con-
nected with its railroad," are to be taxed like
similar property of individuals.
The same section further provides that the
decision made by the board of public works
bhall be final, unless the railroad company,
within thirty days after such decision comes
' tu its knowledge, appeals (which it is ex-
pressly authorized by the statute to do) from
the decision, as to the assessment and valua-
tion made in each county through which the
railroad runs, to the circuit court of that
county. The appeal is to have precedence
over all other cases, and is to be tried as soon
as possible after it is entered. That court,
on such appeal, is to hear all legal evidence
offered by the appellant, or by the state,
coun^, district, or municipal corporation,
and, if satisfied that the valuation is fixed
by the board of public works is correct, to
confirm the same ; but, if satisfied that such
valuation is too high or too low, to correct
it, and to ascertain and fix the true value of
[45] the pn^erty ^according to the facts pronred,
and certify such value to the auditor.
This provision for a review and correction,
by the circuit court of the county, of the as-
sessment made by the board of public works,
affords a convenient and adequate remedy for
any error in the taxation, and has been held
by the highest court of the state to be in ac-
cordance with its Constitution. Wheeling
Bridge 6 T. Railway Co, v. Paull, 39 W. Va.
142.
That court has often had occasion to in-
quire how far the action of the circuit court
of the county, in this respect, is adminis-
trative onljr, and how far it may be considered
as judicial in its nature. Pittsburg, C, d 8i,
I. RaUxcay Co, v. Board of Puhlio Works,
28 W. Va. 264; Charleston d Southside
Bridge Co, v, Kanawha County Court, 41 W.
Va. 658; State v. South Penn Oil Co, 42 W.
Va. 80. See also Upshur County v. Rich,
13.1 U. S. 467 [34: 196].
But it is not important, in this case, to
pursue that course of inquiry; since, in mat-
terK of taxation, it is sufficient that t^e party
tssessed should have an opportunity to be
heard, either before a judicial tribunal, or
before a board of assessment, at some stase
of the proceedings. Kelly v. Pittsburgh,
104 U. 8. 78, [26: 658] ; Pittsburgh, C. C, d
8t. h. Railway Co. v. Backus, 154 U. 8. 421,
[38: 1031].
£ven if, therefore, no previous notice of
the hearing before the board of public works
was required by the statute, or was in fact
given to this pl&intiff (which is by no means
clear) , yet the notice of its decision, with the
ri^t to appeal therefrom to the circuit
court of the county, and there to be heard
And to offer evidence, before the valuation of
its property for taxation was finally fixed,
afforded the plaintiff all the notice to which
it was entitled.
The railroad bridge in question being lia
ble to assessment under section 67, it is un-
necessary, for the purposes of this case, to ' beginning of this opinion.
172 U. 8.
determine whether it should be treated
"railroad track," or as a building or struct-
ure," or as "other real estate, owned or used
in connection with the railroad." In any
view, its assessment and valuation by the
board of public works, of which the plaintiff
complains, was subject to review by the *eir- [46]
cuit court of the county upon an appeal sea-
sonably taken bv the railroad company.
The section, indeed, also provides that,
when the return made to the auditor is satis-
factory to the board of public works, or when
an assessment is made by that board, the
auditor shall immediately certify, to the
county court of each county through which
the railroad runs, the value of the property
of the railroad company therein, as valued
and assessed as aforesaid; that that court
shall apportion that value amonff the dis-
tricts, school districts, and municipal corpo-
rations through which the railroad runs;
and that the clerk of that court,, within
thirty days after it has laid the county and
district levies, shall certify to th« auditor
the apportionment so made ; that the record-
ing officer of each district or municipal cor-
poration through which the road runs shall,
within thirty days after a levy is laid there-
in, certify to the auditor the amount levied;
and that, if any such officer fails to do so. the
auditor may obtain the rate of taxation from
the land books in his office or from any q^er
source.
But the provision directing the auditor to
immediately certify the assessment made by
the board of public works * to the coun^
court of each county must be construed as
subordinate to and controlled b^ the next
preceding provision giving the right of ap-
peal from the board of public works to the
circuit court of the county — as clearly ap-
pears from the next succeeding provision, by
which it is after the value of uie property of
the railroad company has been "ued by the
board of public works, or by the circuit court
on appeal as aforesaid" that the auditor is
directed to assess and charge the property
of the company "with the taxes properly
chargeable thereon," in a book to be kept by
him for that purpose.
The statute also contains a provision that
"no injunction shall be awarded by any court •
or ju^e to restrain the collection of the
taxes, or any part of them, so assessed, ex-
cept upon the ground that the assessment
thereof was in violation of the Constitution
of the United 8tates, or of this state, or that
the same were fraudulently assessed, or that
there was a mistake made by the auditor in
the amount of taxee properljr chargeable *on [47]
the property of said corporation or company;
and in the latter case no such injunction
shall be awarded unless application be first
made to the auditor to correct the mistake
claimed, and the auditor shall refuse to do
so, which facU shall be stated in the biU."
While this provision cannot, of course, bind
the courts of the United 8tates, it is nearly
in accord with the rule governing the exercise
of the jurisdiction in equity of those courts,
as established by the decisions cited at the
350
w
tX-tia Sui'iitJiE C'ouuT OF
Am. Dtc.200; Bucl;ii>gham v.SnitiA,100hia
S88; Vruleij v. Ailam, 102 III. 177; Kau
launa W'ufcr PoKer Co. v. Qreen Bay £ M
Canal Co. 142 U. S. 251, 35 L. ed. 1001,
Riparian property cannot be taken for an]
public use except navi^tion, until oconpensA
lion is provided,
Jancsville v. Carpenter, 77 Wis. 288, 8 L
R. A. SOS; HaUey v. Lehigh Valley R. Co
45 N. J. L. 26; Lou>ea v. Boston, 111 Mass
454, 15 .\m. Rep. 39.
Plttintiff in error baa no right aa a ripar
ian owner to divert mtter Irani complain&nti
Webb V. Portland Mfg. Co. 3 Siuun. 189;
Proli T. Lamton, 2 Allen, 275; Vanden
bergh v. Van Bergen, 13 Jobim. 212;
Harding v. Btamford Water Co. 41 Coon
87; Porter v, Oritufold, 17 Conn. 288, 4:
Am. Dec. 739; Blanchard v. Baker, 8 Mg
253, 23 Am. Dec 504; Moullon v. t/ewbtirg^
port Water Co. 137 Maaa. 163; lUintM A M
Canal Tnutem t. Ha^en, 11 111. 554; Corti
Ml IV V. Troy Iron d If ail Factory, 40 N. Y,
191.
Plaintiff in error haa gained no right be
oonvert the water for power, bj prescrip
tion or estoppel.
Prentice v. CMger, 74 N. T. 341 ; BoU-
man v. Boiling Spring Bleaching Co. 14 N.
J. Eq. 335; Norway Plains Co. v. Bradley
5? N. H. 86; Oarlitle v. Cooper, 21 N. J. Eq
576.
There oan be no estoppel to assert a legal
right or title, hj aoquieacence, if the fact)
on which the riglft or title depends were
etjuallf knomi to both pwties; nor unlesi
the acquiescence was fraudulent.
Brant r. Virginia Coal A I. Co. 93 U. S.
326, 23 L. ed. 927 ; Kingman v. Oraham, 5!
Wis. 232; Canning v. Harlan, 60 Mich. 320;
Bobbins V. Potter, 98 Mass. 632; Slael v.
St. Louis Smelting & Ref. Co. 106 U. S. 447,
27 L. ed. 226; PovieU v. Rogers, 105 111. 318,
Eenshaa v. Biuell, 18 Wall. 2SS. 21 L. ed.
83S; WiUiame v. Wadsxcorth, 51 Conn. 277,
[66] *Mr. Justice SUrfts delivered the opinion
of the court :
Firdt for our consideration is the motion
made by the defendants in error to diBmisa
the writ of error because the record does not
disclose that any Federal question was in-
volved in the controversy, and because no
title, right, privilege, or immunity claimed
under the Constitution of the United States,
or any treaty or statute of, or cominiBHion
held, or authority exercised under, the United
States, was specifically set up or claimed in
the trial court or in the supreme court of
the state of Wisconsin by the plaintiff in
error, nor was there an^ decision in either
of said state courts against any such title,
right, privilege, or immunity specially set
up or cmimed by the plaintiff in error.
The contention that no Federal question is
disclosed in the record is sufilcienOy disposed
of, we think, by an inspection of the crosa-
eom^Iaint filed by the Green Bay & Missis-
aippi Canal Company. It was therein
claimed that the water power in question
was created by a dam, canal, and o^er im-
provements owned and onerated bv the Unit-
368
180&
Unitbd States y. Wabdwell.
40-52
of May 2, 186G, now sections 306 and follow-
ing, Revised Statutes, the entry on the books
of the Treasury ( as shown bv a report made
by the Secretary of the Treasury to the
&uae of Representatives) being as follows:
sued by the Treasurer, or by any disbuniag
officer of any department of the government
upon the Treasurer or any Assistant Treas-
urer or designated depositary of the United
*States, or upon any national bank designated [t(l|
Name.
Period.
Biilanoe due
Uuited States.
Balance due from
Uuited Stutes.
W. V. B. Wardwell
William v. B. Wardwell ...
Do.
1872
1872
1872
$461 87
500 00
1,017 30
No part of the same has ever been paid.
Wardwell is dead and the claimant is his
duly appointed and acting administratrix.
An such she in 1890 applied to the Treasury
Department for payment of the checks by the
issue of Treasury warrants, and at the same
time filed a bond of indemnity, with sufficient
sureties, for double the amounts thereof, to
secure Uie United States against a possible
second demand for payment. The First
Comptroller of the Treasury declined to per-
[60] uiit *the settlement of a new account or the
issue of warrants in favor of the claimant.
Thereafter, and on April 10, 1896, she com-
meuced this suit. As a conclusion of law the
court found that the statute of limitations
did not b^in to run until the 14th day of
April, 1890, the time when the accounting
Officers of the Treasury refused to recognize
the claimant's demand, and that she was en-
titled to recover the amount of the three
checks, and on the 11th day of January, 1897,
entered judgment, for that amount. From
such judgment the United States appealed to
thisoouxt.
Section 1069, Revised Statutes, provides:
"Eveiy claim against the United States,
cognizable by the court of claims, shall be
forever barred unless the petition setting
forth a statement thereof is med in the court,
or transmitted to it by the secretary of the
Senate or the clerk of the House of Represen-
tatives as provided by law, within six years
after the claim first accrues: Provided,
That the claims of married women first ac-
crued during marriage, of persons under the
a^ of twenty-one years first accrued during
minority, and of idiots, lunatics, insane per-
fous, and persons beyond the seas at the time
the claim accrued, entitled to the claim,
shall not be barred if the petition be filed in
the court or transmitted, as aforesaid, with-
in three years after the disability has ceased ;
but no other disability than those enumerat-
ed shall prevent any claim from being barred,
nor shall any of the said disabilities operate
cumulatively."
The act of May 2, 1866, is entitled "An
Act to Facilitate the Settlement of the Ac-
counts of the Treasurer of the United States,
and to Secure Certain Moneys to the People
of the United States, or to Persons to Whom
Tliej are Due, and Who are Entitled to Re-
ceive the Same." ( 14 Stat, at L. 41, chap.
70.)
This was carried into the Revised Statutes
as sections 306 and following. Sections
306,307, and 308 read:
"Sec. 306. At the termination of each fis-
cal year all amounts of moneys that are rep-
resented by certificates, drafts, or checks, is- 1
172 U. S.
as a depositary of the United States, and
which shall be represented on the books of
either of such offices as standing to the credit
of any disbursing officer, and which were is-
sued to facilitate the payment of warrants,
or for any other purpose in liquidation of a
debt due from the United Stages, and which
have for three years or more remained out-
standing, unsatisfied and unpaid, shall be
deposited by the Treasurer, to be covered into
the Treasury by warrant and to be carried
to the credit oi the parties in whose favor
such certificates, drafts, or checks were re-
spectively issued, or to the persons who are
entitled to receive pay therefor, and into an
appropriation account to )>e denominated
'outstanding liabilities.'
"Sec. 307. The certificate of the Register
of the Treasury, stating that the amount of
any draft issued by the Treasurer to facili-
tate the payment of a warrant directed to
him for i>ayment has remained outstanding
and unpaid for three years or more, and has
been deposited and covered into the Treas-
ury in tbe manner prescribed by the preced-
ing section, shall be, when attached to any
such warrant, a sufficient voucher in satis-
faction of any such warrant or part of any
warrant, the same as if the drafts correctly
indorsed and fully satisfied were attached to
such warrant or part of warrant. And all
such moneys mentioned in this and in the
preceding section shall remain as a perma-
nent appropriation for the redemption and
payment of all such outstanding and unpaid
certificates, drafts, and checks.
"Sec. 308. The payee or the bona fide hold-
er of any draft or check, the amount of which
has been deposited and covered into the
Treasury pursuant to the preceding sections,
shall, on presenting the same to uie proper
officer of tne Treasury, be entitled to have it
paid by the settlement of an account and the
issuing of a warrant in his favor, according
to the practice in other cases of authorized
and liquidated claims against the United
Stetes.*^
Messrs, Oeorse Hlnes Gonnan and
Louis A, Prodi, Assistant Attorney (General,
for appellant.
Messrs, Oeorce A. Kins and Edward B.
Holman for appellee.
*Mr. Justice Brewer delivered the opin- [6S]
ion of the coutt:
Section 1069, Revised Statutes, is not
merely a statute of limitations but also ju-
risdictional in its nature, and limiting the
cases of which the court of claims can take
361
52-d4
StPKtilE CoUUT OP TAB UNIT£D bTAlKti.
Oct. Tum.
oognlzance. Finn y. United States, 123 U.
6.227 [31: 128].
Counsel for the government contend that
the claim against tne United States first ac-
crued in 18G9, when the checks were issued,
or, if not then, at least in 1872, when they
were lost or destroyed, and therefore, this
being twenty-four years before the commence-
ment of this suit, that the claim was barred.
If there were nothing to be considered but
the single section referred to, it would be
difidcult to escape this conclusion of counsel.
It is further contended that sections 306,
307, and 308 relate to what is simply a mat-
ter of bookkeeping, and do not in any manner
change ttte scope of the liability of the gov-
ernment. But we are of the opinion that
they mean something more. While it may
be that they do not provide for the creation
of an express trust, liability for which, ac-
cording to ffeneral rules, continues until
th«jre is a direct repudiation thereof, yet
they contain a promise by the government to
hold the money thus covered into the Treas-
ury for the benefit of the owner until such
time as he shall call for it. This is a con-
tinuing promise, and one to which full force
and efficacy should be given. If bookkeep-
ing was the only matter sought to be provid-
ed for, there were no need of section 308.
That prescribes payment, and payment in a
particular way. The payee does not sinrply
surrender his check and receive money. But
"on presenting the same to the proper offi-
cer" ne is ''entitled to have it paid by the
settlement of an account and the issuing of a
warrant in his favor." This may be mere
machinery for payment, but it is machinery
not used or required until after the money
f 53] has been "covered into the ^Treasury by war-
rant" and "carried to the credit" of the pay-
ee. The right given is the right to surrender
the check and receive a warrant on the Treas-
ury. It will also be noticed that the pur-
pose of the act of 1866 was, as expressea in
its title, not merely to "facUitate the settle-
ment of the accounts of the Treasurer of the
United States," not merely to perfect a sys-
tem of bookkeeping, but also "to secure cer-
tain moneys ... to persons to whom
they are due, and who are entitled to receive
the same." And the deposit by the Treas-
urer is not of a gross amount to be applied
to any claims that may arise, but of the
amount due for certain specified checks and
drafts. In other words, the purpose of the
government by this statute is to secure to
each party who holds government paper the
amount thereof, to place it in the Treasury
to his credit, and to prescribe a method by
which whenever he wishes he can obtain it.
No time is mentioned within which he must
apply for a warrant or after which the money
is forfeited to the government. The ordinary
rules for the maturity of negotiable paper
do not control. Congress has directed that
the money already once appropriated and
checked against shall be placed in the Treas-
ury and held subject to the call of the party
for whose benefit it has been so appropriated
and checked. There is no occasion for suit
until after his application for a warrant is
refused. When the contract created bv the
362
promise made in section 308 is brokn, tiicB
a claim for the breach of such contract first
accrues, and the limitation prescribed bj M^
tion 1069 begins to run. There is thus no
confiict with that section. Its full force it
not impaired.
In this connection it may be not amiss to
notice those authorities in which it is hdd
that upon the ordinary deposit of moner
with a bank no action will lie until a demand
has been made, by check or otherwise, and
that hence the statute of limitations will not
b^n to run until after a refusal to pay on
such demand. In Downes v. Phoenix Bank
of Charlestovm, 6 Hill, 297, 300, Bronson, J,
delivered the opinion of the court, and« after
referring to the ordinary rule that where
there is a promise to pay on demand the
bringing of an action is a sufficient demand,
and criticising it as illogical, added:
*"The rule ought not to be extended to [M]
cases which do not fall precisely within it
Here the contract to be implied from the
usual course of the business is that the bank-
er shall keep the money until it is called for.
Although it is not strictly a bailment^ it
partakes in some degree of that character."
See also Johnson v. Partners" Bank, 1
Harr. (Del.) 117; Watson v. Phatnia Bank,
8 Met. 217-221 [41 Am. Dec 500].
In Dickinson v. Leominster Savings Bank,
152 Mass. 49, 55, it was held that the statute
of limitations would not begin to run in
favor of the bank and against a depositor
until there had been something equivalcBt
to a refusal on the part €4 the bank to pay,
or a denial of liability.
In Oirard Bank v. Bank of Pemn Towm-
ship, 39 Pa. 92, 98, 99 [80 Am. Dec 607],
the holder of a certified check was the phda-
tiff, and, the check having been ontstandiag
more than six years, the statute of limita-
tions was pleaded ; but the plea was not wm-
tained, the court, by Strong, J., sayinf^, ia
respect to the case of an ordinary deposit:
''Were this a suit against the Bank of
Penn Township by the original depositor tho
statute of limitations would be interposed ia
vain, not so much because a bank is a techii*
cal trustee for. its depositors, as for the rea-
son that the liabili^ assunied by reeeiTtaf
a deposit is to pay when actual demand shall
be made. The engagement of a bank vitli
its depositor is not to pay abeolutdy and i»
mediately, but when payment shall bt re-
quired at the banking house. It beeoaet a
mere custodian, and U not in default or lia-
ble to respond in damages until demaad has
been made and payment refused. Such ax«
the terms of the contract implied in thetraa**
action of receiving money on deposit, tcrvs
necessary alike to the depositor and tbi
banker. And it is only because such h tbi
contract, that the bank is not under the ob*
ligation of a common debtor to go after its
customer and return the deposit wheiefer te
may be found. Hence it follows that w
right of action exists, and the statute of lim-
itations does not beffin to run until the 4^
mand stipulated for In the contract has boa
duly maae.**
And the rule thus annomieed in respect to
1898.
United States v. Waju>well.
54-57
ordinary deposits was held to apply in case
of a certifiea check :
[S5] '''When a check pa;fable to bearer, or order,
is presented with a view of its being marked
'gooQ/ and is so certified, the sum mentioned
in it mast necessarily cease to stand to the
credit of the depositor. It thenceforth pass-
es to tiie credit of the holder of the cneck,
and is specifically appropriated to pay it
when presented, and as the purpose of naving
it BO certified is not to obtain payment, but
to continue with the bank the custody of the
money, the holder can have no greater rights
than those of any other depositor. Certain-
ly he has no ri^ht of action until payment
has been actually demanded and refused."
In Morse on Banks and Banking, page 40,
the author says :
"We have already seen that it is a con-
tract specially modified by the clear legal
understanding that the money shall be forth-
coming to meet the order of the creditor
whenever that order shall be properly pre-
sented for payment. It follows, therefore,
that this demand for payment is an integral
and essential part of the undertaking, it may
be said, even of the debt itself. In short,
the agreement of the bank with the depositor,
as distinct and valid as if written and exe-
cnted under the seal of each of the parties,
is only to pay upon demand; accordingly,
uniil there has been such demand, and a re-
fusal thereto, or until some act of the depos-
itor, or some act of the bank made known to
the depositor, has dispensed vnth such de-
mand and refusal, the statute ought not to
begin to run, nor should any presumptiop of
payment be allowed to arise."
It is not meant to be asserted that the au-
thorities are iinanimous on this question ; on
the contrary, there is a diversity of opinion:
It is sufficient for the purposes of this case
to notice that the rule finds support in the
decisions of many courts of the highest
standing. It is not inconsistent with the
proposition laid down by this court in Ma-
rine Bank v. Fulton County Bank, 2 Wall.
252 [17: 785], and often reaffirmed, PJtosnio
Bank v. Risley, 111 U. S. 125 [28: 374], and
cases dted in opinion, to the effect that the
relation between a bank and its depositor is
that of debtor and creditor and nothing
[S6]uiore, for that proposition throws *no liffht
apon the question when the debt of the debt-
or becomes due, and when the statute of lim-
itations begins to run. Neither is it pre-
tended that the relation of the United
States to this petitioner was that of bank
tod depositor, but the reasoning of the au-
thorities cited strengthens the conclusion
that when Congress declared that this money
should be covered into the Treasury to the
credit of the plaintiff, and that she should,
on presentation of the checks to the proper
officer of the Treasury, be entitled to a settle-
ment of an account and the issue of a war-
rant, it was the intention to recognize a con-
tinuing obligation — one which was available
to the plaintiff at any time she saw fit, that
it was a promise which was not broken until
after demand and refusal.
But authority more in point is not want-
iufT to sustain these views. The direct tax
172 U. 8.
act of August 5, 1861 (12 Stat, at L. 292,
chap. 45), provided, in the thirty-sixth sec-
tion, that, in case of a sale of real estate, and
a surplus remaining after satisfying the tax,
costs, etc., such surplus should be paid to the
owner, or if he be not found, ''then such sur-
plus shall be deposited in the Treasury of the
United States, to be there held for the use of
the owner, or his legal representatives, until
he or they shall make application therefor to
the Secretary of the Treasury, who, upon
such application, shall, by warrant on the
Treasury, cause the same to be paid to the
applicant." In United States v. Taylor, 104
U. S. 210 [26: 721], the owner did not apply
for the surplus until more than six years had
elapsed from the closing up of the sale and
the deposit of the money in the Treasury,
and it was held that section 1069 did not
bar his action, the court observing (p. 221) :
"This section limits no time withm which
application must be made for the proceeds
of the sale. The Secretary of the Treasunr
was not authorized to fix such a limit, it
was his duty, whenever the owner of the land
or his legal representatives should apply for
the money, to draw a warrant therefor with-
out regard to the period which had elapsed
since the sale. The fact that six or any other
number of years had passed did not authorize
him to refuse payment. The person entitled
to the money could allow it to remain in the
Treasury for an indefinite ^period without [67]
losing his right to demand and receive it.
It foUows that if he was not required to de-
mand it within six years, he was not required
to sue for it within that time.
"A construction consistent with good faith
on the part of the United States should be
given to these statutes. It would certainly
not be fair dealing for the government to say
to the owner that the surplus proceeds should
be held in the Treasuiy for an indefinite
period for his use or that of his legal repre-
sentatives, and then, upon suit brought to
recover them, to plead in bar that tne de-
mand therefor haa not been made within six
years.
"The general rule is that when a trustee
unequivocally repudiates the trust, and
claims to hold the estate as his own, and such
repudiation and claim are brought to the
knowledge of the cestui que trust in such
manner that he is called upon to assert his
rights, the statute of limitations will b^n
to run against him from the time such knowl-
edge is brought home to him, and not before.
• •••.•••
"In analogy to this rule the riffht of the
owner of the land to recover the money
which the government held tqx l^ini as his
trustee did not become a daim on which suit
could be brought, and such as was cogniza-
ble by the court of claims, until demand
therefor had been made at the Treasury.
Upon such demand the claim first accrued."
This was reaffiimed in United States v.
Cooper, 120 U. S. 124 [30. 606]. Counsel
distinflfuish those cases from this in that
there the money came into the Treasury sub-
ject to an express trust oreatedvby the act of
Oonffress, which directed that it be there held
for the benefit of the owner, while here in
363
the first instance there was ■ writti
ise by the goTemnient, a promiM fi
an appropriation had been ntade a
wbich a e^use of action existed. B
there is a difference, wg do not thin]
cient to create a different rule or mi
liabilitj. There is no new deposit
chect is certified, but as shown by 1
ion in Oirard Bant t. Bank of Pen
ship, mpra, this fact works no chanj
{M] *rule. Whether the money to sati
liability was paid in by qome third
already held by the Tr^urer ; wheti
was or not any prior liability on thi
the government, in each case there w
laration by Congress tbat the money
ceived or covered into the Treasur;
there be held for the benefit of am
to the call of the owner, and do t
specified within which such call :
madei This was a distinct and
promise, creatinR a new liability,
claim accrued when this new liabi
tured. It matured when the daim
•ented her checks and, calling ioc «
was refused them.
rk« /ud^Menl it affirmed.
PATTEN PAPER COMPANY t
(See S. C Beporter-i ed. SS-8:
Peienl question — ir*eii tufficiemllfi
— icaler pourr, irken mb/eet to ai
turn 6y the United Stale*.
1. Ab explicit Bl legal Ion tbat a
tauaded oa eertaia acts of CoDxrn
contract wltb the Colted States la
to pr(«pDt a Federal qontloB for i
the Supreme Coart of the Cnlted :
the allcced rlfbt li dented b; tb« at
I. No particular form of wordi or [
required far tb* aaertloB at a elaln
al risbta to prf«nt a qoeatloa toi
•rror fron this coart to a state cch
Is infflrtent If aach rtghti reiv ape
op or elalnwd la the stale coort In ■
aer aa to brine them to tbe atlentki
S. Water power lacMeatall? a«atn
•reel loo and laalnteBanfe of a <
canal for tbe porpooeo of naTlfatlc
river. WlaroDslD. which br leflslat
■late and Federal, was dedltatci) to
fund to aid the eat«rp^l•^ Is SBbJei
trol Bad appropriation hj the Ualti
whirli owBt and opemlta tbe poM
and not b; a« Stat* ol WUeoasl
whose llBlta the rlnr Ilea.
4. A riparian owaer on a atrau
wor»« of poblle ImproTeMOt hi
nmstmftrd k> stale and Fvdvral
to ImproTe a*Titni>lon. wberebi- an
water powtr I* rreainl Is BPt *ell(l(
all tbe waier flow past bU land. •■>
reol the dlrerstoa ot (be sorplus wa
^5 (i«Bteea of the foiemnwni. whe
alTea reasoDable oppomioiiT to <>h
364
1S98.
Gbbbh Bat & M. Canal Co. y. Pattbn Papbb Co.
OU-oii
rivers. The state accepted said grant of land
for said purposes, and by an act of its legis-
lature, approved August 8, 1848, undertook
the improvement of said rivers, and enacted,
among other things, that "whenever a water
power shdU he created by reason of any dam
BO] erected ^or other improvements made on any
of said rivers, such water potoer shall belong
to the state, subject to the future action of
the legislature,"
One of the rapids in Fox river, around
which it was necessary to secure slack water
navieation by means of dams, locks, and
eanals, was commonly known as the Kaukau-
na rapids. The state adopted a plan and
system for the construction of a dam and
canal at said Kaukauna rapids, whereby
there was to be built a low dam beginning on
the south side near the head of tne rapids,
extending down stream, on or near the south
bank of the river, across lots 8, 7, 6, and on
to lot 5 of section 22, and thence extending
at about a right angle with the south bank
across Uie river, leaving an opening at the
north end through which the water of the
river could pass, and be conducted by a con-
duit or canal to a certain point at which
should be placed a lock.
The sales of lands granted by Congress not
proving sufficient to carry on the work, the
board of public works were authorized by the
legislature to issue certificates of indebted-
ness, which were declared to be a charge upon
the proceeds of the lands granted by Cbn-
ffress and upon the revenues to be derived
nrom the works of improvement.
In July, 1853, the state legislature created
a corporation under the name of "The Fox
A Wisconsin Improvement Company," to
which, by the second section thereof, were
granted and transferred the uncompleted
\vorks of improvement, together with all and
singular the rights of way, dams, locks,
canals, water power, and other appurte-
nances of said works. The company agreed
to pay the outstanding certificate, and forth-
with undertook the work. Additional lands
were granted by Congress in 1854 and 1855,
to aid the state in tne improvement of the
Pox and Wisconsin rivers. The company
subsequently executed a deed of conveyance
of the works of improvement, the incidental
water powers and all of the lands, in trust
to apply all revenues derived from the im-
erorement and the proceeds of sales of the
mds to the payment of the unpaid certifi-
cates and of bonds issued by the company,
and to the completion of the works,
tl] *In 1864 the company failed, the deed of
trust was foreclosed, and, in 18G6, the prop-
erty of the company, consisting of the works
of improvement, the water powers and the
lands, were sold pursuant to a decree of court
entered February 4, 1864. The purchasers
became incorporated under the name of the
Green Bay & Mississippi Canal Company,
and that company was authorized, by the
third section of an act of the legislature ap-
proved April 12, 1866, to "enlarge and in-
crease the capacity of said works and of the
laid rivers so as to make a uniform steam-
ship navigation from the Mississippi river
to Green Bay, or to surrender the same to the
172 U. S.
United States for such enlarffement, on such
terms as may be approved by the governor
for the time being of the state"
July 7, 1870, Confess passed an act en-
titled "An Act for the Improvement of Wi^
ter Communication between the Mississippi
River and Lake Michigan by the Wisconsin
and Fox Rivers." By this act Congress au-
thorized the Secretary of War to ascertain
the sum "which in justice ought to be paid
to the Qreen Bay & Mississippi Canal Com- .
pany as an eq^uivalent for the transfer of all
and singula)* its property and rights of prop-
erty in and to the line of water communi-
cation between the Wisconsin river and the
mouth of Fox river, including its locks, dams,
canals, and franchises, or so much of the
same as shall, in the judgment of said Secre-
tary, be needed," and to that end he was au-
thorized to "join with said company in ap-
pointing a board of disinterested and impar-
tial arbitrators" — one to be selected by the
Secretary, one by the company, and the third
by the two arbitrators so selected. The act
provided that in making their award the
arbitrators qhould take into consideration
the amount of money realized from the sale
of lands panted b^ Congress to aid in the
construction of said water communication,
which amount should be deducted from the
actual value thereof as found bv the arbitra-
tor. It was further enacted that no money
should be expended on the improvement of
the Fox and Wisconsin rivers until th«
Green Bay & Mississippi Canal Company
should make and file with the Secretary of
War an agreement, in writing, whereby it
shall affree to grant *and oonvev to the [68]
United States its property and franchises
upon the terms awarded by the arbitrators.
By an act approved March 23, 1871, by the
legislature of Wisconsin, the directors of the
Green Bay & Mississippi Canal Company
were authorized to sell and dispose of the
rights and property of said company to the
United States, and to cause to be made and
executed all papers and writings necessary
thereto as contemplated in the act of Con-
gress.
Subseouently, in November, 1871, the arbi-
trators fixed the then value of all the nrop-
erty of the company at $1,048,070, ana tne
amount realized from land sales, to be de-
ducted therefrom, at $723,070, leaving a bal-
ance of $321,000 to be paid to the company.
And, in anticipation that the Secretary
might decide that the personal property and
"the water powers created by the dams and
by the use oi the surplus waters not required
for purposes of navigation," were not needed,
these water powers and the water lots neces-
sary to the enjoyment of the same, subject
to all uses for navigation, were valued at the
t»um of $140,000, personal property $40,000,
and the improvements $145,000.
The Secretary of War recommended to
Congress that it should take the works of im-
provement and not the water powers and per«
sonal property. Congress accordingly, by
act approved June 10, 1872, made the neces-
sary appropriation, and the company, by its
deed of September, 1872, conveyed and grant-
ed to the United States "all and singular its
366
(
0»-66
SuPREMs Court of th£ Umit£o States.
Oct. Tejcm,
)
property and rights of property in and to the
fine of water communication between the
Wisconsin river and the mouth of Fox river,
including its locks, dams, canals and fran-
chises, saving and excepting therefrom, and
reservine to the said company, the following
describea property rights and portion of
franchises which, in the opinion ox the Secre-
tary of War and of Congress, are not needed
for public use, to wit: First. All of the
' personal property of the said company, and
particularly of all such property described
in the list or schedule attached to the report
of said arbitrators, and now on file in the
office of the Secretary of War, to which refer-
ence is hereto made, whether or not such
[€8 J property be appurtenant to *said line of wa-
ter communication. Second. Also all that
part of the franchise of said company, viz,,
the water powers created by the dains and by
the use of the surplus waters not required for
the purpose of navigation, with the rights of
protection and preservation appurtenant
thereto, and the lots, pieces, or parcels of
land necessary to the enjoyment of the same,
and those acquired with reference to the
same, all subject to the right to use the water
for all purposes of navigation, as the same
is reserved in leases heretofore made by
said company, a blank form of which at-
tached to the said report of said arbitrators
is now on file in the office of the Secretary
of War, and to which reference is here made,
and subject also to all leases, grants, and as-
signments made by said company, the said
leases ei oei, being also reserved therefrom."
The leases referred to, and reserved from
the flTftnt, were those granted by the company
to third parties, in consideration of the pay-
ment of annual rents. The use of the sur-
plus water began as early as 1861, and has
extended until now from one quarter to one
half of the flow of the river is utilised at
points near the first lock. The company has
. caused to be erected, at this point, large and
costly mills, and it was found bv the trial
court that the Green Bay ft Mississippi
Canal Companv has leased all of the water
power created bv the dam and canal, or arm
of the dam, to be used over the water lots
abutting on the canal.
The cause haviuff been submitted to the
superior court of Milwaukee county, upon
the pleadinsn and proofs, that court sus-
tained the allegations contained in the cross-
complaint of the Green Bay & Mississippi
Canal Company, and adjudged, among other
things, that "the Green Bay ft Mississippi
Canu Company is the owner of and entitled as
M;ainst all the parties to this action, and
their successors, heirs, and assigns, to th^
full flow of the river, not necessary to navi-
gation, and that all and singular the other
parties to this action are nereby forever
enjoined from interferinff with the said
Green Bay ft Mississippi Canal Company in
so withdrawing and uaing such water; and
it is further considered and adjudged and
decreed as in favor of the Patten Paper Com-
(64] pany affainst all other 'defendants that all of
the water of the river which is permitted by
the Green Bay ft Mississippi Canal Company
to flow over tiie upper dsjn or into the river
866
above Island No. 4, so as to pass down the
river, should be, and it is hereby, divided and
apportioned between the plaintiffs and their
successors and assigns, the Kaukauna Water
Power Company, and its successqrs and as-
signs, and the Green Bay ft Mississippi Canal
Company, and its successors and assifi^, be-
tween and to the south, middle, ana north
channels of the river in the following pro-
portions, ei cet."
The supreme court of Wisconsin reversed
the judgment so rendered by the superior
court, and remanded the case to the superior
court with directions to enter judgment in
accordance with its opinion. [93 Wis. 283.]
That court, in obedience to the mandate of
the supreme court, entered a final judgment
in the case, as follows, omitting recitals:
'IJpon motion of Hooper and Hooper,
plaintiffs' attorneys, it is considered, ad-
judged, and decreed, as in favor of the Patten
Paper Company, Union Pulp Company, and
Fox River Pulp ft Paper Company against all
defendants, that all the water of the river
except that required for purposes of naviga-
tion shall be and is hereoy divided and ap-
portioned between and to the south, middle,
and north channels of the river, in the fol-
lowing proportions, that is to say: 43-200
thereof of right should flow down the south
channel ; 157-200 thereof should of right flow
down the main channel of the river, north of
Island No. 4, and that of the water so of
right floMring down the main channel of the
river, north of Island No. 4, and above the
middle channel, 62-157 thereof should of
right flow down the middle channel and south
of Island No 3, and that of the water fiowing
down the north channel north of Island No.
4, and above Island No. 3, 95-157 part should
of right fiow down the north channel and
north of Island No. 3 ; and each of the par-
ties, to this action, their heirs, successors,
and assies, are forever enjoined from inter-
fering with the waters of said river so as to
prevent their fiowing into said channels in
the proportions aforesaid.
"And it is further adjudged by the court that
said Green *Bay ft Mississippi Canal Com- [66]
pany, its successors and assigns, shall so use
the water, if at all, created by said dam, as
that all the water used for water power or
hydraulic purposes shall be returned to the
stream in such a manner and at such a place
as not to deprive the appellants or those
claiming under or through them of its use as
it had been accustomed to fiow past the lands
of the said appellants on said river and in
the several channels of said river below said
dam as it was accustomed to flow, and that
said appellants shall have the right to use
the water of said river, except such as is or
may be necessary for navigation, as it was
wont to run in a state of nature without ma-
terial alteration or diminution."
From this judgment the Green Bay ft Mis-
sissippi Canal Company, plaintiff in tho
cross bill, appealed to the supreme court of
the state; and on January 10, 1896, the re-
spondente, the present dcfendante in error,
moved to dismiss said appeal for the reason
that tJie Judgment was m exact accord with
the mandate and was in effect the judgment
176 V. m.
1808.
Grexn Bat & M. Canal Co. v. Patten Fapkk Co.
6»
il the supreme court. Upon this motion the
supreme court dismissed the appeal, express-
ing its^ «8 follows :
''After careful consideration we are con-
strained to hold that the judgment entered
is a substantial compliance with the mandate
of this court. Certainly it would have been
improper to allow any amendment to plead-
ings or new litigation. The mandate was
not for a new trial, nor for further proceed-
ings according to law, but with direction to
enter judgment in accordance with the opin-
ion, and the opinion left nothing undeter-
mmed. This left nothing for the trial court
to do in the case except to enter judgment
therein as directed."
B^ that appeal and its decision the juris-
diction of the state courts in the case was
exhausted, and the judgment entered in the
superior court became the final jud^ent of
the highest court in the state in which a de-
cision in the suit could be had. And on May
18, 1896, a writ of error to said judgment by
the Green Bay & Mississippi Canal Company
was taken to this court and allowed b^ the
Chief Justice of the supreme court of Wiscon-
sin.
Meun. William F. ViUa, B. J.
Stereas, and E Mariner, for plaintiff in
error:
The rights and privileges of the plaintiff
are held under the statutes and authority of
the United States, and the decision of the
stste court was affainet the rights and
privileges so claimed and enjoyed.
The Oenesee Chief, 12 How. 443, 13 L. ed.
1058; The Daniel Ball, 10 Wall. 557, 19 L.
ed. 999 ; The Eagle, 8 Wall. 15, 19 L. ed.
3f5; E» parte Boyer, 109 U. S. 629, 27 L. ed.
M56: Re Gameti, 141 U. S. 1, 35 L. ed. 631.
All navigable w«;ters are under the control
of the United States for the purpose of regu-
lating and improving navigation.
Wvictmein v. Duluth, 96 U. S. 387, 24 L.
el 872 ; Korihem Transp. Co, v. Chicago, 99
U. a 636, 25 L. ed. 336 ; Eldridge v. Treze-
vent, 160 U. S. 452, 40 L. ed. 490; Oihbons
V. Ogden, 9 Wheat. 1, 6 L. ed. 23; Sinnoi v.
l?atwipori, 22 How. 227, 16 L. ed. 243; Fos-
ter V. Davenport, 22 How. 244 16 L. ed. 248;
Henderson v. New York, 92 U. S. 259, 23 L.
ed. 543; Chy Lung v. Freema/n, 92 U. S. 275,
22t L. ed. 550; New York v. Compagnie Qh^
4ra2e Traoisatlantique, 107 U. S. 59, 27 L.
el 383 ; The Glide, 167 U. S. 606, 42 L. ed.
296.
Riparian ownership is subject to the obli-
gation to suffer the consequences of the im-
provement ol navigation in the exercise of
the dominant right of the government In
that rmmL
Gibson v. United States, 166 U. S. 276, 41
L ed. 1002; Northern Transp. Co, v. Chi-
cago, 99 U. 8. 635, 25 L. ed. 336 ; Mononga-
kela Nav, Co. v. Coons, 6 Watts A S. 101 ;
Wisconsin River Improv, Co, v. Lyons, 80
Wis. 65 : Arimond v. €hreen Bay d M, Canal
Co. 31 Wie. 888; Cbhn y. Wausau Boom Co.
47 Wis. 322.
Messrs, 0«orse O* Greene, Alfred Ii.
Carj, Ifoeee Hooper, John T. Fish, and
David S, Ordway, for defendants in error:
172 U. S.
No right under the Federal Constitution
was "specially set up or claimed" in the state
court.
Mawwell v. Newhold, 18 How. 511, 15 L.
ed. 506; Brooks v. Missouri, 124 U. S. 394»
31 L. ed. 454; Leeper v. Tetoas, 139 U. S. 462»
35 L. ed. 225; Schuyler Nat. Bank v. BoU
long, 150 U. S. 85, 37 L. ed. 1008; Re Bu-
chanan, 158 U. S. 31, 39 L. ed. 884; Chicago
d N. W. R. Co. V. Chicago, 164 U. S. 454, 41
L. ed. 511 ; Oxley Stave Co. v. Butler County,
166 U. S. 648, 41 L. ed. 1149.
The burden is on the plaintiff in error to
show that the claim was thus set up.
Marrow v. Brinkley, 129 U. S. 178, 32 L.
ed. 654; Kansas Endowment Asso, v. Kan*
sas, 120 U. S. 103, 30 L. ed. 593; Church r.
Eelsey, 121 U. S. 282, 30 L. ed. 960.
Neither the Constitution nor any pro-
vision of it is mentioned in the printed rec-
ord, save in the assignment of errors in this
court.
Anshro v. United States, 159 U. S. 695, 40
L. ed. 310; Butler v. Gage, 138 U. S. 52, 34
L. ed. 869.
Plaintiff in error has no right, as grantee
of the state, to divert from the land or water
powers of the defendants in error any of the
water of the river for power.
Head v. Amoskeag Mfg. Co. 113 U. 8. 9»
28 L. ed. 889 ; Garwood v. New York C. d H.
R, R, Co. 83 N. T. 400, 88 Am. Rep. 452;
DruUy V. Adam, 102 111. 177 ; Emporia v.
Soden, 25 Kan. 588, 37 Am. Bep. 265 ; iTifi**
herly d C. Co. v. Hewitt, 79 Wis. 334 ; Smith
V. Rochester, 92 N. T. 463 , 44 Am. Rep. 393 ;
Halsey v. Lehigh Valley R. Co. 45 N. J. L.
26 ; A. C, Conn Co. v. Little Suamioo Lumber
Mfg. Co. 74 Wis. 652; Grand Rapids v.
Powers, 89 Mich. 94, 14 L. R. A, 498;
Black River Improv, Co, v. La Crosse Boom
Co, 54 Wis. 659; Brooks v. Cedar Brook d
8, River Improv. Co. 82 Me. 17, 7 L. R. A.
460; Delaplaine v. Chicago d N. W. R. Co.
42 Wis. 214, 24 Am. Rep. 886.
The powers of eminent domain and taxa-
tion agree in that they can be exercised only
for a public use.
Cole V. La Grange, 118 U. S. 1, 28 L. ed.
896: Atty, Gen, v. Eau Claire, 37 Wis. 400;
Re Eureka Basin Warehouse d Mfg. Co, 93
N. Y. 42 ; Weismer v. Douglas, 64 N. Y. 91,
21 Am. Rep. 586; Consolidated Channel Co.
V. Central P. R. Co, 51 Cal. 269; Varick v.
Smith, 5 Paige, 187, 28 Am. Dec. 417;
Parkersburg v. Broum, 106 U. 8. 487, 27 lu
ed. 238; Central Branch Union P. R, Co. /
Smith, 23 Kan. 745 ; Bissell v. Kankakee, 64
111. 249, 21 Am. Rep. 554; English v. People,
96 HI. 566; Shell v. German Coal Co. 118 111.
427, 59 Am. Rep. 879 ; Allen y. Jay, 60 Me.
124, 11 Am. Rep. 185; Neweil y. Smith, 15
Wis. 102 ; Curtis v. Whipple, 24 Wis. 850, 1
Am. Rep. 187 ; Osbwm y. Hart, 24 Wis. 89,
1 Am. Rep. 161.
The power incidental to the righit to im-
prove streams for navigation is only the
power of the surplus water not used for navi-
?:ation, at the improvement which intercepts
he flow of the stream to raise a head for
navigation.
Varick v. SmitK 5 Paige, 137, 28 Am. Dec
417; Cooper y. Williams, 5 Ohio, 392, 24
867
Ili-la Bdpbbmb Cuukt a
ture to legalize Buch atmcturea for private
rurpoBes. Sucb a question is for the state
ribunala.
But we have here the case of & water power
incidental to the oonstTuction and mainte-
nance of a public work and, from the nature
of the case, subject to the control of the pub-
lic authorities, in tliiH instance the United
States.
It also appearB that, through the entire
history of this imprOTement, these incidental
water powers were recognized by the l^sla-
ture of the state as a source of revenue for
the promotion and success of tbepublicenter-
pri^, and in aid of its completion. B; the
act of Jul^ 6, 1853, the water powers were
gianted with the rest of the public works to
the Foi i, Wisconsin Improvement Company,
upon a public trust to continue and complete
the partially constructed highway, and the
company was thereby authorized to mort-
gage such water powers, as part of the plant,
to secure bonds issued to raise money for
that pui pose I and, subsequently, upon a fore
The case of Kaukauna Water Poujer Co.
Oreen Bay it Miatiasippi Canal Co. 142 U. E
254 [36: 1004], involved some of the ques-
tions presented in the present case. There a
private riparian owner sought to withdraw
water from this very dam 5) furnish j
to its works. The canal company fll
bill against such owner, the Kaukauna Water
Conipany, to enjoin it from interfering with
the canal company in building and maintain-
ing the dam, and from cutting said dam in
order to permit a flow of water out of the
I77Jpool into the works of the defendant. •The
decree asked for was granted by the circuit
court of Outagamie county, and that judg-
ment was affirmed by the supreme court of
Wisconsin. 70 Wis. 045. The
brought to this court where it wo.
ed,'oii behalf of the Kaukauna Water Power
Conipany, that said company, by reason of
ownership of the bank and of the bed of the
stream, was the owner of the use, while pass-
ing, of all the water which might Sow over
the bed of the stream; in other words, was
the owner of all the water power which could
be utilized upon its land; and that, therefore,
the act of the state of Wisconsin, of August
S, 1B48, was void as an impairment of such
property rights. The judgment of the eourt
below was alltrmed in an opinion by Mr. Jus-
tice Brown, some of the observations of
which are so pertinent to our present pur-
pose that wc quote them at some length:
"The case of tlie plaintiff canal compa
depends primarily upon the legality of t
legislative act of 1848, whereby the state ae-
sunied to reserve to itself any water power
which should be created by the erection of Ibe
dam across the river at this point. No ques-
tion i* made of the jrower of the state to con-
struct cr authorize the construction of this
improvement, and to devote toit theproceeds
of the land grant of the United SUtcs. The
iniprovemetit of the navigatior ' "
372
1896.
Obsbn Bat & M. Canal C!o. y. Patteh Paj^kk cu.
a-bi
The learned judge then proceeds to cite de-
cisions to that eSect renaered in several of
the BUit4> supreme courts.
19 j *A» re^>ected t^e right of the riparian own-
ers in that case to recover compensation for
their property thus taken, this court held
that l^e act of Congress of 1875 (18 Stat, at
L. 506, chap. 166), to aid in the improvement
of the Fox and Wisconsin rivers, made a
proper provision for such compensation, and
that altnough the act of 1875 may have been
repealed in 1888 (25 Stat at L. 4, 21, chap.
4), yet that the lapse of thirteen years had
afford^ a reasonable opportunity for the
KMikauna Water Power Company to have
obtained compensation for the damages sus-
tained by the construction of the improve-
ments.
As previously stated, the state of Wiscon-
un, by its act of October 3, 1856, granted
and conveyed to the Fox & Wisconsin Im-
provement Company all the rights and inter-
est of tiie state in the improvement, includ-
ing the water powers created thereby, and,
in case the sales of the granted lands should
fail to realize a sum sufficient to complete
the intcmded works of improvement and to
pay the outstanding indebtedness of the
state, and redeem the bonds issued by the
eonipany, the state authorized the sale of the
water powers cheated by the said improve-
ments. And, subsequently, by act of March
23, 1871, tbe state authorized the Green Bay
ft Bfississippi Canal Company, which had be-
come the owner of the entire improvement
works, lands, and water powers by purchase
at the foredoeure sale, to sell and dispose of
the same to the United States.
The l^gal effect and import of the sale and
conveTanoe by the canal company were to
▼est absolute ownership in the improvement
and appurtenances in the United States,
which proprietary rights thereby became
added to the jurisdiction and control that the
United States possessed over the Fox river as
a navigable water. By the findings of the
arbitrators . the sum of three hundred and
twenty-five thousand dollars was payable to
the canal company, but, by agreement and
onder the act of (Congress of June 10, 1872,
the United States consented to the retention
by the canal company of certain personal
property and of the water powers, with the
lots appurtenant thereto, m part payment
80] of the sum at which *the entire plant had
been appraised ; and accordingly, in its deed
of conveyance, the company reserved to it-
self sudi personal property and the water
gowers and appurtenances, and the United
tates paid the remaining sum of one hun-
dred and forty-five thousand dollars.
The sulratantial meaning of the transaction
was, that the United States granted to the
canal company the right to continue in the
possession and enjoyment of the water pow-
ers and the lots appurtenant thereto, subject
to the rights and control of the United States
as owning and operating the public works,
snd that the United States were credited
with the appraised value of the water powers
17ZV.B.
and appurtenances and the articles of per^
sonal property. The method by which thii
arrangement was effected, namely, by a
resei'vation in the deed, was an apt one, and
quite as efficacious as if the entire property
had been conveyed to the United States by
one deed and the reserved properties had
been reconveyed to the canal company by an-
other.
So far, therefore, as the water powers and
appurtenant lots are regarded as property,
it IS plain that the title of the canal com-
pany thereto cannot be controverted ; and we
think it is equally plain that the mode and
extent of the use ana enjoyment of such prop-
erty by the canal company fall within the
sole control of the United States. At what
points in the dam and canal the water for
power may be withdrawn, and the quantity
which can be treated as surplus with due re-
gard to navigation, must be determined by
the authority which owns and controls that
navigation. In such matters there can be no
divided empire.
This aspect of the subject was before us in
Wisconsin v. Duluih, 96 U. S. 379 [24: 668],
where the state of Wisconsin sought, by an
original bill in this court, to restrain the
city of Duluth from changing the current
of the St. Louis river and making other im-
provements in the city harbor to the detri-
ment, as was claimed, of the harbor of Su-
perior City within the jurisdiction of Wis-
consin. It, however, was disclosed that Con-
gress had made larse appropriations for the
work complained of, and that the executive
department had taken 'exclusive charge and [81]
control of it. The court dismissed the bill,
and in its opinion, per Mr. Justice Miller,
said:
"Nor can there be any doubt that such ac-
tion is within the constitutional power of
Congress. It is a power which has been
exercised ever since the ^vernment was or-
ganized. The only question ever raised has
been how far and under what circumstances
the exercise of the power is exclusive of its
exercise by the states. And while this court
has maintained, in many cases, the right of
the states to authorize structures in and
over the navigable waters of the states,
which may either impede or improve their
navigation, in the absence of any action of
the general government in the same manner^
the doctrine has been laid down with unvary-
ing uniformity that when Congress has, by
any expression* of its will, occupied the field,
that action was conclusive of any right to
the contrary asserted under state authority.'*
To the same effect is South Carolina v.
Georgia, 93 U. S. 4 [23: 782].
Several cases are cited in the briefs for the
defendants in error, wlierein it has been de-
cided by state supreme courts of high au
thority that whatever leniains of the stream,
beyond what is wanted for the public im-
provement, and which continues to flow over
the dam and down the original channel of the
river, belongs to riparian owners upon the
373
>!:
i
70-7S
SUPBBIUfi COUBT OF THB UnITBD StATBB.
Oct. Term^
I
^Sec. 10. When any lands, waters, or ma-
terials appropriated by the board to the use
ol said improvements shall belong to the
state, such lands, waters, or materials, and
so much of the adjoining land as may be val-
uable for hydraulic or commercial purposes,
shall be absolutely reserved to the state, and
whenever a water power shall be created by
reason of any dam erected or other improve-
{71]ment8 made on any of ^said rivers, such
water power shall belong to the state subject
to future action of tlie legislature."
Sections 17, 18, 19, 20, 21, and 22 provide
for condemnation by the board of such lands,
waters, and materials belongincr to individu-
als, with whom the board coiud not agree,
and for payment of damaees out of the fund.
By an act approved February 9, 1850, the
legislature of Wisconsin enacted as follows:
''The board of public works are hereby au-
thorized and empowered in any future let-
tings of contracts for the improvement of
the Fox and Wisconsin rivers to consider
bids made by any person or persons for im-
provements whid^ will create a water power,
and when such person or persons oner to
perform, or perform and maintain, the work
m consideration of the granting by the state
to him or them, his or tneir assigns, forever,
the whole or a part of such water power:
Provided, That before such bid is accepted
and the contracts entered into it shall receive
the approval of the governor.
'*Wlien lettings have been made for the
improvement of said rivers, whereby a water
power is created, the board of public works
may relinquish to the person or persons who
have performed the same all or a part of
such power as a consideration in full or in
part for such performance or maintenance of
such improvement, or for both.''
The eighth article of the Constitution of
Wisconsin contained the following:
'*Sec. 10. The state shall never contract
any debt for works of internal improvement
or be a party carrving on such works; but
whenever grants of land or other property
shall have oeen made to the state, especially
dedicated b^ the grant to particular works
of internal improvement, the state may carry
on such particular works, and shall devote
thereto the avails of such grants, and may
pledge or appropriate the revenues derived
from such works in aid of their completion."
By the act approved July 6, 1853, the leg-
islature of Wisconsin created a corporation
to supersede the board of public works in the
construction and maintenance of the im-
provements on the Fox and Wisconsin rivers
fT2J under the name of *the "Fox and Wisconsin
Improvement Company," and granted and
surrendered to the said company "the works
of improvement contemplated by the act en-
titled *An Act to Provide for the Improve-
ment of the Fox and Wisconsin Rivers and
Connecting the Same by a Canal/ approved
August 8, 1848, and by several acts supple-
mental thereto and amendatory thereof, and
knoMm as the 'Fox and Wisconsin rivers im-
provement,' together with all and singular
370
H:
the rights of way, dams, locks, canals, water
power, and other appurtenances of said
works; also all the right possessed by the
state of demanding and receiving tolls and
rents for the same, so far as the state pos-
sesses or is authorized to ^prant the same, and
all privileffes of constructing said works and
repairing the same, and all other rights and
privileges belonging to the improvement to
the same extent and in the same manner
that the state now holds or may ezerdse such
rights bjy virtue of the acts above referred
to in this section."
The Fox ft Wisconsin Improvement Com*
any, thus created and empowered, agreed to
~^y execute the trust, and forthwith under*
took the work.
By an act, approved October 8, 1856, en-
titled ''An Act to Secure the Enlargement
and Immediate Completion of the Improve-
ment of the Navigation of the Fox ana Wis-
consin Rivers," etc., it was enacted, by its
second section, as follows:
''Sec. 8. To enable said company to niak«
all the dams, locks, canals, feeders, and other
structures, and to do all the dredging and
other work, and furnish all materius neoes-
sarjr to complete the improvement of the
navigation of the Fox and Wisconsin rivers
and the canal eonnectinff the same, all the
lands now unsold, granted by Congress in
aid of said improvement, as explained by the
same' body (which grsuits are herely a^
cepted), are hereby granted to the Fox ft
Wisconsin Improvement Company, subjed^
however, to the terms and conditions of said
grants by Congress, and to the further terms
and conditions following, that is to say:
That within ninety days after the passage of
this act, the said company shall make a deed
of trust to three trustees to be appointed *as [79]
hereinafter provided, including and convey-
ing to said trustees and their successors tJl
the unsold lands granted to the state of Wis-
consin by the several acts and resolutions of
Congress to aid in the improvement of the
Fox and Wisconsin rivers, and all the works
of improvements constructed or to be con-
structed on said rivers, and all and singular
the rights of way, dams, locks, canals, water
powers, and other appurtenances of said
works, and all rights, privileges, and fran-
chises belonging to said improvement, and
all property of said company, of whatever
name and description."
By the third section it was enacted that,
for raising funds, from time to time, for the
construction, enlargement, and completion
of said works of improvement, and lor the
purchase of materials to be used therein, etc,
said company might issue its bonds, to be
countersigned by said trustees, in sums of
not less than five hundred nor more than one
thousand dollars each, at rates of interest
not exceeding ten per centum per annum,
payable semi-annually, the principal of said
bonds payable at a perioa to be therein
named, not exceeding twenty years from their
date, etc., and that the payment of said bonds
should be secured by the deed of trust afore-
172 V. m.
tm
Mbter t. Richmond.
84-aT
iiMi illegal action rendered said defendants
litl'Ie to your petitioner, as trespasoers on
his property, for all damaffes that he had
ftonUined not common to Uie public; that
the obstructions were in themselyee nui-
sances which the city was charged with the
dutv of abating and moving, and that every
day 8 continuation of the same was a new
oiiense; that the rights, privilcffes, and obli-
gations of said Kichmona ft Alleghany Rail-
way Company had been legally transferred to
and assumed by said Cnesapeake ft Ohio
Railway Company, and that it, the said last-
named company, now maintained the said
obstructions and was therefore liable, jointly
with said city of Richmond, for the said tres-
passes. A plat of the locus in quo and a
copy of said ordinance were made parts of
laid declaration.
[IS] ^Damages were claimed in the sum of fly«
thousand doUare.
On the 9th of September, 1895, the defend-
ants entered a general demurrer to the whole
declaration and each count thereof, in which
the plaintiff joined, and on the 27th of De-
cember, 1895, the court sustained the demur-
ftr uid gaye jud^ent for the defendants,
dismissing the action.
And thereupon the plaintiff, by counsel,
■oved the court to set ^'aside the said judj^-
Bent and enter jud^ent for him on said
demarrer, and it being represented to the
court that it is the intention of the plaintiff
in the case of H. Wythe Dayis affainst the
cit^ of Richmond and the Chesapeuce ft Ohio
Railway Company to apply for a writ of er-
ror to the judgment of this court entered
this dMj in that cause, and the questions in-
ydyed in that case being the same as in this
case, the court takes time to consider of said
motions, and by consent of parties this case
k retained on the docket of this court, and
the determination of said motions to await
the result of the application for a writ of
trror in the ease of H. Wythe Dayis against
the dty of Riehmond and the Chesap^e ft
Ohio Railway Company."
On the 81st day of January, 1896, the fol-
In^ proceedings were had :
TTnis day came the parties again, l^ their
attorneys, and the court, being now adyised
of iti judfpnent to be rendered herein, on the
notion of the plaintiff to set aside the judg-
BMnt rendered on the demurrer to the plain-
tiff's declaration and to each count thereof,
ioth refuse to set aside said judginent.
"And thereupon the plaintiff again moyed
the court to set aside said judgment entered
en the 27th day of December, 1895, sustain-
ing defendant's demurrer to the declaration
and to each count thereof, solely on the
ground that the act of the generid assembly
w Virffinia, approved May 24, 1870, proyid-
ing a charter for the city of Richmond (Acts
1869-70, p. 120), 80 far as it authorized the
PMsage of the ordinance in tlie declaration
mentioned, as well as said ordinance, is un-
constitutional and yoid, because in conflict
with the Fourteenth Amendment of the Con-
ttitution of the United States, tirhich prohib-
cM]it8 any ^state from depiiying any person of
property without due process of law, and
therefore there was no warrant of law for the
172 U. S.
closing of said street as claimed by said de-
fendants; but the court overruled said mo-
tion and refused to grant said motion and to
set aside said judgment; to which action of
the court the plaintiff excepted and filed his
bill of exception, which was signed, sealed,
and enroUea, and made a part of the record."
Tlie plaintiff then presented a petition to
the supreme court of appeals of Virginia,
the court of last resort of that state, askine
for a writ of error to said judgment, but said
court rejected the petition by the following
order:
Virginia :
In the Supreme Court of Appeals held in
the State Library Building, in the city of
Richmond, on Thursday, February 20th, 1896.
The petition of Engelbert Meyer for a writ
of error from a judgment rendered by the law
and equity court ox the ci^ of Ricnmond OB
the Slst day of January, 1896, in a suit in
which the petitioner was plaintiff and the
city of Richmond and the Chesapeake ft
Ohio Railway Company were defendants,
having been maturely considered and the
transcript of the record of the judgment
aforesaid seen and inspected, the court being
of opinion that said jud^ent is plainly
right, doth reject said petition.
The case is here on error to this order.
In his petition to the court of appeals the
plaintiff set up and urged a right under the
Constitution ox the United States as follows:
"Your petitioner now insists that the said
law and equity court erred in sustaining
said demurrer to his declaration, and also
in refusing to set aside its judgment so hold-
inff as set forth in his bill of exception.
^our petitioner therefore humbly sub-
mits—
''That under the Constitution and laws of
this state the free and uninterrupted use of
public highways once dedicated to and ac-
cepted by the public or acquired by right of
eminent domain are for continuous public
use, and thai the right of 'acceae to and use [87]
of such sheets by an abutting property hold-
er is property of which the owner cannot un-
der the Federal Constitution be deprived
without due process of law.
S
"The said law and equity court in sustain-
ing the said demurrer denied to your peti-
tioner his constitutional rights, and special-
ly so did it in refusing to set aside its judg-
ment when its attention was called to the
unconstitutionality of tlie act of the general
assembly of Virginia approved May 24, 1870
(Acts 1860-70, p. 120), 80 far as it au-
thorized the passage of tiie ordinance in the
declaration mentioned, because in conflict
with the Fourteenth Amendment, which pro-
hibits any state from depriving any person
of property without due process of law, there
being no mode prescribed in said act of the
general assembly or in said ordinance for the
evesting him of his said property rishts by
any judicial proceedings whatsoever.''
The following is a .copy of the diagram
showing plaintiff's property and the obstru^
tions complained of :
375
1886.
MkYEB v. UiOUMOND.
87, 89» 91, 9^
The ordinanoe under Y^hich the defendants
jnstified is inserted in the margin; also the
sections of the Virginia Acts of Assembly,
1869-70, under which the ordinance was
passed, are inserted in the margin.t
[89] *Tbe Ck>nstitution of Virginia, so far as in-
volved in this controversy, provides in arti-
cle 5, section 14, that the general assembly
shall not pass "any laws whereby private
property shall be taken for public use with-
out just compensation."
Mr, Henry B. Pollard for plaintiff in
error.
Messrs. H. T. Wiokliaiii and Henry Tay-
lor, Jr,, for defendants in error.
[91] *Mr. Justice MoKeiiAa» after stating the
case, delivered the opinion of the court:
The jurisdiction of this court is challenged.
The defendants in error claim that '*the dec-
laration shows no point is therein raised
which demanded the consideration by the
eourt of any constitutional question," and
th«y insist further that "if it were intended
to ^ise the question that the charter and or-
dinance were unconstitutional, and in conse-
quence thereof plaintiff was deprived of his
property without due process of law, the
same should have been specially set up as
daimed by apt language in the declaration so
IS to bring the question to the attention of
the court when it had to pass on the demur-
rer." This certainly was not done, and if it '
was an indispensable condition to the juris-
diction of this eourt it has none.
But it was done subsequently, as we have
stated, and, whatever the ground of the
court's ruling on the demurrer and on the
first motion to reverse that ruling, the second
motion was unequivocally based on the inva-
lidity of the city ordinance because of its as-
serted conflict with the Fourteenth Amend-
ment of the Constitution of the United
States, and the court's ruling necessarily re-
sponded to and opposed the grounds of the
motion — necessarily denied the right spe-
cially set up by him under the Constitution*
Plaintiff's motion and the special grounds
of it and exceptions to the ruling of the court
were embraced in a bill of exceptions, and al-
lowed and became part of the record on his
petition to the supreme court of appeals of
v'irginia for a review and reversal of the
judgment, and the petition besides explicitly
set up and urged a right under the Constitu-
tion of the United States.
*The court of appeals rejected the petition. [98|
Its order recited . . . that, having ma-
turely considered, and the transcript of the
record of the judgment aforesaid seen and
inspected, the court, being of opinion that
such judgment is plainly right, doth reject
said petition."
Necessarily, therefore, the supreme court
of appeals aid as the court of the city of
Richmond did— -considered the right which
plaintiffs claimed under the Constitution of
fOrdlnance Permitting the Richmond & Alle-
ghany Railroad Company to Close a Certain
Portion of Eighth Street, and Reqnlring Them
to Erect a Foot Bridge. (Approved June 28,
1886.)
Be It ordained by the city council of Rich-
mond, First. So much of Eighth street as lies
betweoi the present southern boundary line of
the property of the Richmond & Alleghany Rail-
road Company, being also the southern bound-
ary line of the right of way of the James River
ft Kanawha Company, and a line drawn across
Eighth street at right angles, sixty feet north
of the face of the north wall of the canal as
•aid wall Is now built, shall be, and the same
la hereby, closed from the 31st day of August,
1886, until it is required to be reopened In ac-
cordance with the provisions of this ordinance :
Provided, that the said Richmond & Alleghany
Railroad Company shall, on or before the said
Slat day of August, begin to erect an overhead
foot bridge across the tracks and canal of said
railroad on that portion of Eighth street above
described, and shall complete the same by the
30th day of September, 1886.
Second. The said bridge and the stairways
thereto shall be twelve feet wide, and shall be
■0 located, and shall be of such material or ma-
terials, design, security, and capacity, as may be
nquh^ by the city engineer; the same shall
always be Icept and maintained in such condi-
tion and repair as may be from time to time re-
quired by the committee on streets of the said
dty council, and always be open to the free use
of the public.
Third. Should the said company fall for the
■pace of ten days to put the said bridge or stalr-
wayi in such condition or repairs, after having
been required so to do by said committee, the:!
the said company shall be liable to a fine of fifty
dollars, to t>e imposed by the police Justice of
Richmond, and each day*s failure to be a sepa-
172 U. 8.
rate offense ; and the city may In all such cases
repair said bridge or stairways when not done
by said company as herein required, and the ex-
pense thereof shall be a debt against the said
company recoverable as debts are now recover-
able by the city of Richmond.
Fourth. The said company, by exercising the
privileges herein granted, doth hereby agree and
bind themselves to indemnify and save harmlesa
at all times the said city from any loss or dam-
age suffered by reason of anyone being Injured
in any manner in using said bridge or stair-
ways, or by reason of the building or existence-
of the same, and shall pay to the city any
amount or amounts recovered against said city
by any Judgment or Judgments given on account
of any such Injuries.
Fifth. The above-described portion of Eighth.
street shall remain closed until the said Rich-
mond & Alleghany Railroad Company shall have-
been ordered by the ordinances of two succes-
sively elected councils to remove the said over-
head bridge and restore the street to Its present
condition, and to the same authority and con-
trol of the city as existed prior to the passage-
of this ordinance. Whenever It Is so ordered to
be reopened, the said company shall be allowed
three months from the date of the passage of
the last of the said two ordinances In which to>
remove said bridge and stairways, and to re-
store said Eighth street to the same condition
in which It was before the passage of this ordi-
nance. And should the said company fail to re-
move said bridge and stairways and to restore-
naid Eighth street to Its former condition, before
the expiration of the said three months, then
the said company shall be liable to a fine of one
hundred dollars, and each day's default shall be
k separate offense ; and the said city may re-
move said bridge and stairways and restore said
Eighth street as above mentioned, when not
done by said company as above required, and
377
i
Mbteb t. Riokmond.
118-96
under the OcmBtitvtion of the United States
was claimed bj plaintiff in error after ver-
dict and in a motion to set aside the verdict
and to grant a new trial. It is true that, in
that case being a proceeding to condemn land
onder the eminent domain act of the state of
Dlinois, no provision was made for an an-
swer, but this accounts for some, but not all,
of the language of the decision. Mr. Justice
Harlan, speaking for the court, said: ''It
is not, tho-efore, important that the defend-
ant ndthar filed nor offered to file an answer
specially setting up or daiminff a right un-
fo the Constitution of the united States.
It is 8u£Beient if it appears from the record
that said right was specially set up or
claimed in the state court in such manner as
to bring it to the attention of that court."
But he said further: '^But this is not all.
In the assigmnent of errors filed bv the de-
fendant in the supreme court of Illinois
these claims of rights under the Constitution
of the United States were distinctly assert-
ed."
The similarity of that case to the case at
bar is apparent. In both, the constitutional
[ti] right was claimed in such manner *as to bring
it to the attention of the lower court, and its
decision was necessarily adverse to such
right In both it was reasserted in the as-
signment of errors to the higher court, and
there again in both the effect of the judg-
ment was to declare the right not infring^
bv the proceedings in the case. This co^,
therefore, has jurisdiction, and we proceed
to the consideration of the merits.
The plaintiff's constitutional claim is un-
der that provision of the Fourteenth Amend-
ment, which prohibits a state from depriving
any person of propertjr without due process
of law, and he avails himself of it by the con-
tention (which we give in his own lan-
guiure) :
'That under the Constitution and laws of
the state of Vir^nia, the free and uninter-
rupted use of highways, once dedicated to
ana accepted by the public, or acquired by the
right of eminent domain, are for continuous
public use, and that, when rel^ng upon that
net, important public and private property
rights have been acquired, the highway can-
not be permanently diverted to a private use
without proper compensation being made to
those injurea, and as a consequence, any per-
son or persons so diverting such highway are
trespassers and liable in cuimages U> the par-
ties injured."
The Droposition is very general. To make
it available to plaintiff in error it must be
held to cover and protect an owner whose
property abuts on one part of a street from
damage from obstruction placed in another
part of the street and not opposite his prop-
erty— ^not only a physical taking of his prop-
erty, but damages to it — not only airect
damages, but consequential damages. All of
these aspects of the proposition seem to be
rejected by the decision of the supreme court
of appeals of Virginia on the plaintiff's peti-
tion for writ of error. The petition sub-
mitted for decision the power of the city of
Bichmond to make or authorize the obstruc-
tion complained of under its charter, and the
17« V. 8.
Constitution and laws of Virginia as well as
the prohibition of the Constitution of the
United States. If the decision necessarily
Sassed on and denied the latter as we hold it
id, and hence entertain jurisdiction to re-
view its judgment, it necessarily passed on
and denied the *former. If under the Coneti- [SSJ
tution and laws of Virginia whatever detri-
ment he suffered was damnum absque inju-
ria, he cannot be said to have been deprived
of any property. Marohant v. Pennsylvania
Railroad Co. 153 U. S. 380 [38: 751].
The plaintiff quotes Western Union Tele-
graph Co. V. Williams, 86 Va. 696 [8 L. R.
A. 420] ; Hodges v. Seaboard d R, Railroad
Co. 88 Va. 666; Norfolk City v. Chamber-
laine, 29 Gratt. 534; Bunting v. Danville, OZ
Va. 200. The case at bar is not within the
principle of these cases. These were con-
cerned with erections immediately in front
of the abutting owner's property, and it was
held that he owned to the middle of the high-
way, subject only to the easement of the lat-
ter; that it was for the easement only for
whidi he was compensated, and that any
other use was an additional servitude and its
authorization illegal unless paid for.
In Home Building do C. Co. v. Roanoke, 91
Va. 52 [27 L. R. A. 551], the city of Roan-
oke authorized the erection of a bridge across
a street in the city and itself constructed the
approaches to it. These approaches were
sixteen feet high and thirty-five wide,
but did not extend to either side of the street,
but left on each side about seven and one-
half feet unoccupied on Randolph street, on
which the complainant's lot was situated,
available for its^use and that of the public.
It was held that* the city was not liable.
The substantial thing is not that one may
be damaged by an obstruction in a i^treet, —
not that one may be specially damaged be-
yond others, — but is such damage a depriva-
tion of Property within the meaning of the
constitutional provision? According to the
Virginia cases an additional servitude may
be said to be another physical appropriation,
and hence another taking, and must be com-
pensated. But the plaintiff's case is not
within this doctrine, nor is there anything in
the decisions of Virginia which makes conse-
c[uential damages to property a taking with-
in the meaning of the Constitution of that
state. Decisions in other states we need not
resort to or review. Those of this court fur-
nish a sufficient guide. Vorthem Transpor-
tation Co. V. Chicago, 99 U. S. 635 [25 : 336] ;
Chicago v. Taylor, 125 U. S. 161 [31: 638] ;
Marohant v. Pennsylvania * Railroad Co. 153 196]
U. S. 380 [38: 751] ; Gibson v. United States,
166 U. S. 269 [41:906].
In Northern Transportation Company v.
Chicago it was decided "that acts done in the
proper exercise of governmental power and
not directly encroaching on private property,
though their consequences may impair its
use, are universally held not to be a taking
within the meaning of the constitutional pro-
vision." Removing any apparent antago-
nism of this proposition to Pumpelly v. Oreen
Bay d M. Canal Co. 13 Wall. 166 [20: 557],
and Eaton v. Boston, Concord d Montreal
Railroad Co. 51 N. H. 504 [12 Am. Rep. 147],
370
I
1 n
l*.'Cdry Btrcttr.
1898.
Mbtbb T. RiOHKOn.
101
Gibson by preventing ingress and egress to
and from the landing on and in front of her
farm to the main or navigable channel of the
river, — Held, damnum absque injuria. The
court by the Chief Justice said : ''The Fifth
Amendment to the Constitution of the Unit-
ed States provides that private property
shall not be taken for public use without
rust compensation." Here, however, the
danoage of which Mrs. Gibson complained
was not the result of the takins of any part
of her property, whether upland or sub-
merKed or a direct invasion thereof, but the
incidental consequence of the lawful and
proper exercise of a governmental power."
/iidgment ia affirfned.
[99] *Mr. Chief Justice Fuller, with whom Mr.
Justice Gray concurred, dissenting on the
qoestion of jurisdiction :
1 am of opinion that this writ of error
should be oismissed. The contention of
plaintiff in error is that the validity of the
act of the General Assembly of Virginia of
Kay 24, 1870, was drawn in question in the
state courts on the ground of repugnancy to
the Constitution of the United States, and
that the decision of the court of appeals was
in favor of its validity.
The validity of a statute is drawn in ques-
tion when the power to enact it is denied,
and a definite issue in that regard must be
distinctly deducible from the record in order
for this court to hold that the state courts
have adjudicated as to the validity of the
enactment under the Constitution.
This case had eone to judgment, and a mo-
tion to set aside the judgment had been
made and denied, before it was suggested
thai the act was inconsistent with the Fed-
eral Constitution. And tliat question was
then attempted to be raised by a second mo-
tion to vacate. But the disposal of motions
of this class is within the discretion of the
trial court, and only revisable by the appel-
late tribunal, if at all, when there is a pal-
pable abuse of discretion.
Whether the trial court, in this instance,
overruled the second motion because a sec-
ond motion of that sort, without special
cause shown, could not be entertained, or be-
100]cau8e *of unreasonable delay, it is impossible
to say, and to impute to that court the deci-
sion of a Federal question when it obviously
may have considered that the point was pre-
sented too late, seems to me wholly inadmis-
sible. And although in his petition to the
court of appeals, plaintiff in error recited
the action ne had taken, and urged that the
trial court had erred in sustaining the de-
murrer to his declaration, and in refusing to
set aside the judgment so that the constitu-
tional question suggested might be passed
on, that court, in the exercise of appellate
jurisdiction onljr, may well have concluded
that the discretion of the court below could
not be interfered with.
It does not follow from the bare fact that
this second motion presented in terms a sin-
gle point that that point was disposed of in
denying the motion, when other grounds for
such doiial plainly existed.
It is thoroughly settled that if the record
172 U.S.
of the state courts discloses that a Fedeial
question has been raised and decided, and an-
other question, not Federal, broad enough to
sustain the judjgment, has also been raised
and 'decided, this court will not review the
judgment; that this is so even when it does
not appear on which of the two grounds the
judgment was based, if the independent
ground on which it might have been based
was a good and valid one; and also where
the record shows the existence of non-Fed-
eral grounds of decision though silent as to
what particular ground was pressed and
proceeded on. In other words, the rule is
that the record must so present a Federal
question that even if the reasons for deci-
sion are not given this court can properly
conclude that it was disposed of by the state
courts. If the conflict of a state law with
the Constitution and the decision by the
state court in favor of its validity are relied
on, such decision must appear on the face of
tlie record before the jutlgment can be re-ex-
amined in this court.
In Klinger v. Missouri, 13 Wall. 257 [20:
(535], a juror had declined ^o take the test
oath prescribed by the sixth section of the
secona article of the Constitution of Mis-
souri of 1865, and was discharged from the
panel. It was insisted here that he wUa
thus excluded for no other reason than that
he refused *to take the oath, and, if this had[ 101]
been so, the question of the repugnancy of
the section to the Constitution of the United
States would have arisen. But as this court
was of opinion that, inasmuch as the grounds
the juror assigned for his refusal manifested
a settled hostility to the government, he
might "well have been deemed by the court,
irrespective of his refusal to take the oath,
an unfit person to act as a juryman, and a
participant in t^e administration of the .
laws:" it was held that "it certainly would
hare been in the discretion of the court, if
not its duty, to discharge him." And Mr.
Justice Bradley, delivering the opinion of the
court, said: "In this case it appears that
the court below had a good and valid reason
for discharging the juror, independent of his
refusal to take the test oath ; and it does not
appear hut that he was discharged for that
ground. It cannot, therefore, with certain-
ty, be said that the supreme court of Mis-
souri did decide in favor of the validity of
the said clause of the state Constitution,
which requires a juror to take the test oath."
There was nothing in the record to show on
what ground the trial court excluded the
juror, or that the point urged in this court
was taken in the supreme court of the state,
and yet because the trial court might have
discharged the juror as matter of discretion,
or because of unfitness in the particular sug-
gested, this court decided that its jurisdic-
tion could not be maintained, and the writ
of error was dismissed. And see Johnson v.
Risk, 137 U. S. 300 [34: 683] ; Dibble v. Bel-
lingham Bay Land Company, 163 U. S. 63
[41:72].
We have held that the question whether a
party has by laches and acquiescence waived
the right to insist that a state statute im-
paired the obligation of a contract is not a
381
i^, 9;;
8uru£M£ Court of the United States.
Oct. Tsrm ,
tlM United States, and denied the right.
Chicago, Burlington d Q. Railroad Oo. t.
Chicago, 166 U. S. 228 [41: 982].
So far the conditions of the power of re-
view by this court existed. A right under
the Constitution of the United States was
specially set up and the riffht was denied.
Was it set up in time? It nas been repeat-
edly decided oy this court that to suggest or
set up a Federal question for the first time
in a petition for a rehearing in the highest
eourt of a state is not in time. Tewas d Po-
cific Railway Co. v. Southern Pacific Rail-
road Co. 137 U. 8. 48, 64 [34:614, 617];
Butler y. Cage, 138 U. S. 62 [34: 869] ; Win-
ona d 8t. Peter Railroad Co^ v. Plainview,
143 U. S. 371 [36: 191] ; Leeper v. Teaaa, 139
U. 8. 462 [35 : 225] ; Loeher y. Schroeder, 149
U.S. 580 [37: 856].
In all of these cases the Federal question
was not presented in any way to the lower
court nor to the higher court until after
Judgment. It is not, therefore, decided that
a presentation to the lower court at some
stage of the proceedings and in accordance
with its procedure, and a presentation to the
higher court before judgment, would not be
flumcient.
In Loeher ▼. Bohroeder the court of appeals
of Maryland, havinff before it for review a
judgment of one of the lower state courts, re-
versed such judgment, and, havinff denied a
rehearing on April 28, 1892, issued its order
for a fieri facias against Loeher for the
amount of the judgment decreed returnable
to the lower court. On April 29, 1802, Loe-
her entered a motion before that court to
quash the writ because the decree on which
tne writ was issued and the writ were void,
because said writ would deprive him of his
property without due process of law, and
because it was issued in violation of the Con-
stitution of the United States and amend-
ments thereto. The motion was denied and
Loeher prosecuted an *appeal whidi aifirmed [99]
the order of the lower eourt, holding that
the state law upon which it had made Its de-
cision was not In confiict with the Constitu-
tion of the United States. From this judg-
ment of the eourt of appeals, Loeber prose-
cuted a writ of error to this court assigning
the unconstitutionality of the state law sus-
tained by the court of appeals.
Mr. Justice Jackson, who delivered the
opinion of the eourt, said: 'The motion te
quash the fi. f a. in this ease on the grounds
that the order of the court of appeals, which
directed it to be issued, was void for tiie rea-
sons assigned, stood on no better footing
than a petition for rehearing would have
done ana sufisested Federal questions for the
first time, wHoh, if they existed at allyShouUl
have been set up and interposed idien the
decree of the court of appeals was rendered
on January 28, 1892.*^ In other wordSy
should have been urged when the ease was
pending and before its decision. It is an in-
ference from the opinion that, if this had
been done, the Federal question would have
been claimed in time.
In Chicago, BurUngUm d Q. R. Co. v.
Chicago, 160 U. S. 226 [41: 979], the right
the expense thereof shall be a debt against the
•aid company recoTerable as debts are now re-
coTerable by the city of Richmond.
tfixth. The said company doth, by exercising
the privileges herein granted, agree and bind it-
self and its assigns to make no claim to the land
now occupied by that portion of Eighth street
to be closed, on account of said dosing or the
prlTlleges herein granted, and doth fnlly rec-
ognise and admit the right of the said city to
reopen the said Blgbth street at any time, ac-
cording to the proTlsions of this ordinance.
Seventli. Nothing in this ordinance shall con-
flict in any way with the ordinance approved
May 12, 1886, granting permission to the Rich-
mond St Chesapeake Railroad Company to con-
struct a tunnel under Eighth street ; and should
the bridge constructed under this ordinance ol>-
struct in any manner the said tunnel or tracks
leading thereto, it shall be changed by the said
Richmond & Alleghany Railroad Company with-
in sixty days after receipt of notice from the
committee on streets of the said city council re-
quiring such change to be made.
A copy. Teste:
Ben. T. August, City Clerk.
Virginia Acts of Assembly, 1869-'70, pp. 120-
146.
Sec. 19. The city council shall have, subject
to the provisions herein contained, the control
and management of tbe flscal and municipal af-
fairs of the city and of all property, real and
personal, belonging to the said city; and may
make such ordinances, orders, and by-laws, re-
la tlnfr to the same, as it shall deem proper and
necessary. Tbey shall likewise have the power
to make such ordinances, by-laws, orders, and
regulations as they may deem desirable to carry
out the following powers which are hereby
vested in them :
878
VIL To close or extend, widen or narrow, lay
out and graduate, pave and otherwise improve
streets and public alleys in the city, and have
them properly lighted and kept in good order;
and they shall have over any street or alley In
the city, which has t>een or may t>e ceded to the
city, like authority as over other streets or
alleys. They may build bridges in and culverts
under said streets, and may prevent or remove
any structure, obstruction, or encroachment
over or under, or in a street or alley, or any
sidewalk thereof, and may have shade trees
planted along the said streets ; and no company
shall occupy with its work the streets of the
city without the consent of the coundL In the
meantime no order shall be made and no injunc-
tion shall be awarded, by any court or judge, te
stay the proceedings of the city In the prosecu-
tion of their works, unless It be manifest that
they, their officers, agents, or servants are tran-
scending the authority given them by this act,
and that the interposition of the court Is neces-
sary to prevent injury that cannot be adequate-
ly compensated in damages.
Sec 22. The council shall not take or use any
private property for streets or other pulUtc pur-
Rpse without making to the owner or owners
thereof just compensation for the same. But In
all cases where the said dty cannot by agree-
ment obtain title to the ground necessary for
such purposes, it shall be lawful for the said
city to apply to and obtain from the drcnlt
or county court of the county in which the land
shall be situated, or to the proper court of the
dty having Jurisdiction of sudi matters, if the
subject lies within this dty, for authority to
condemn the some; which shall be applied for
and proceeded with as provided by law.
178 U. 8.
Mbteb t. Riokmond.
118-96
ante the OcmBtitvtioii of the United States
was claimed by plaintiff in error after ver-
dict and in a motion to set aside the verdict
and to grant a new triaL It is true that, in
that case being a proceeding to condemn land
under the eminent domain act of the state of
DliDois, no provision was made for an an-
swer, but this accounts for some, but not all,
of tlM language of the decision. Mr. Justice
Harlan, speaEing for the court, said: "It
is not, thorefore, important that the defend-
snt ndthv filed nor offered to file an answer
specially setting up or daiminff a right un-
der the Constitution of the Iniited States.
It is sufficient if it appears from the record
that said right was specially set up or
daimed in the state court in such manner as
to brhig it to the attention of that court."
Bat he said further: '^But this is not all.
In the assignment of errors filed bv the de-
fendant in the supreme court of Illinois
these daims of rights under the Constitution
of the United States were distinctly assert-
ed.^
The similarity of that case to the case at
bar is apparent. In both, the constitutional
(H] right was claimed in such manner *as to bring
it to the attention of the lower court, and its
decision was necessarily adverse to such
right. In both it was reasserted in the as-
signment of errors to the higher court, and
there again in both the effect of the judg-
ment was to declare the right not infring^
hj the proceedings in the case. This court,
therefore, has jimsdiction, and we proceed
to the consideration of the merits.
The plaintiff's constitutional claim is un-
der that provision of the Fourteenth Amend-
ment, which prohibits a state from depriving
anv person of propertjr without due process
of law, and he avails himself of it by tne con-
tention (which we give in his own lan-
guage):
'That under the Constitution and laws of
the state of Vir^nia, the free and uninter-
runted use of highways, once dedicated to
ana accepted by the public, or acquired by the
right of eminent domain, are for continuous
public use, and that, when rel^ng upon that
xtct, important public and private property
rights have been acquired, the highway can-
not be permanently diverted to a private use
without proper compensation being made to
those injurea, and as a consequence, any per-
son or persons so diverting such highway are
tresjwssers and liable in &mages to the par-
ties injured.**
The proposition is Yerj general. To malce
ii aTauable to plaintiff in error it must be
held to cover and protect an owner whose
property abuts on one part of a street from
damage from obstruction placed in another
part of the street and not opposite his prop-
erty— ^not only a physical taking of his prop-
erty, but dainages to it — ^not only oirect
damages, but consequential damages. All of
these aspects of the proposition seem to be
rejected by the decision of the supreme court
of appeals of Virginia on the plaintiff's peti-
tion for writ of error. The petition sub-
mitted for decision the power of the city of
Biehmond to make or authorize the obstruc-
tion complained of under its chartor, and the
172 V. S.
Constitution and laws of Vireinia aa well as
the prohibition of the Constitution of the
United States. If the decision necessarily
Sassed on and denied the lattor as we hold it
id, and hence entertain jurisdiction to re-
view its judgment, it necessarily passed on
and denied the *former. If under the Coneti- [9l^
tution and laws of Virginia whatever detri-
ment he suffered was damnum absque infu-
ria, he cannot be said to have been deprived
of any property. Marohant v. Pennsylvania
Railroad Co. 153 U. S. 380 [38: 751].
The plaintiff quotes Western Union Tele-
graph Co. v. Williams, 86 Va. 696 [8 L. R.
A. 420] ; Hodges v. Seaboard d R, Railroad
Co, 88 Va. 656; VorfoUc City v. Chamber-
laine, 29 Gratt. 634; Bunting v. Danville^ 03
Va. 200. The case at bar is not within the
principle of these cases. These were con-
cerned with erections immediately in front
of the abutting owner's property, and it was
held that he owned to the middle of the high-
way, subject only to the easement of the lat-
ter; that it was for the easement only for
which he was compensated, and that any
other use was an additional servitude and iU
authorization illegal unless paid for.
In Home Buildxng d C, Co. v. Roanoke, 91
Va. 52 [27 L. R. A. 551], the city of Roan-
oke authorized the erection of a bridge across
a street in the city and itself constructed the
approaches to it. These approaches were
sixteen feet hiffh and thirty-five wide,
but did not extend to either side of the street,
but left on each side about seven and one-
half feet unoccupied on Randolph street, on
which the complainant's lot was situated,
available for its^use and that of the public
It was held that* the city was not liable.
The substantial thing is not that one may
be damaged by an obstruction in a street, —
not that one may be specially damaged be-
yond others, — ^but is such damage a depriva-
tion of Property within the meaning of the
constitutional provision? According to the
Virginia cases an additional servitude may
be said to be another physical appropriation,
and hence another taking, and must be com-
pensated. But the plaintiff's case is not
within this doctrine, nor is there anything in
the decisions of Virginia which makes conse-
quential damages to property a taking with-
in the meaning of the Constitution of that
stete. Decisions in other states we need not
resort to or review. Those of this court fur-
nish a sufficient guide. Northern Transpor-
tation Co, V. Chicago, 99 U. S. 635 [25 : 336] ;
Chicago v. Taylor, 125 U. S. 161 [31 : 638] ;
Marchant v. Pennsylvania *Railro€id Co, 153 196]
U. S. 380 [38: 751] ; Gibson v. United States,
166 U. S. 269 [41:096].
In Northern Transportation Company v.
Chicago it was decided ''that acts done in the
proper exercise of governmental power and
not directly encroaching on private property,
though their consequences may impair its
use, are universally held not to be a taking
within the meaning of the constitutional pro-
vision." Removing any apparent antago-
nism of this proposition to Pumpelly v. Oreen
Bay d M, Canal Co, 13 Wall. 166 [20: 557],
and Eaton v. Boston, Concord d Montreal
Railroad Co, 51 N. H. 504 [12 Am. Rep. 147],
379
9^f-\f\i
s^uPBEMB Court of the Unitbo 8tat£&.
(JOT. Tkbm»
It was farther said that in those cases "the
cztremest qualification of the doctrine is to
be found, perhaps/' and they were discrimi-
nated by the fact that in them there was a
Dermanent flooding of private propen^,
hence a "taking" — ^"a physical invasion of
the real estate of the owners and a practical
ouster of his possession."
In Chicago v. Taylor, Taylor sued to recov-
er damages sustained by reason of tiie con-
struction by the dtv of a viaduct in the im-
mediate vicinity of his lot. The construc-
tion of the viaduct was directed by special
ordinances of the city council. The facts
were:
"For man^ years prior to, as well as at,
the time this viaduct was built, the lot in
question went used as a coal yard, having
upon it sheds, machinery, engines, boilers,
tracks, and other contrivances required in the
business of buying, storing, and seliinff coal.
The premises were lone so used, ana the^
were peculiarly well a&pted for such busi-
ness. There was evidence before the jury
tending to show that, by reason of the con-
struction of the viaduct, the actual market
value of the lot, for the purposes for which it
was speciallv adapted, or for anv other pur-
pose for which it was likely to be used, was
materially diminished, access to it from
Eighteenth street being ^eatly obstructed,
and at some points practically cut off; and
that, as a necessary result of this work, the
use of Lumber street, as a way of approach
to the coal yard by its occupants and buy-
ers, and as a way of exit for teams carrying
coal from the vard to customers, was sen-
ousl;^ impaired. There was also evidence
(•7] tending to show that one of the 'results of
the construction of the viaduct, and the ap-
proaches on either side of it to the brid^
over Chicaeo river was, that the coal yard
was often flooded with water running on to
it from said approaches, whereby the use of
the premises as a place for handling and
storing coal was greatly interfered with, and
often became wholly impracticable.
"On behalf of the city there was evidence
tending to show that the plaintiff did not
sustain any real damage, and that the in-
conveniences to occupants of the premises,
resulting from the construction ana mainte-
nance of the viaduct, were common to all
other persons in the vicinity, and could not
be the basis of an individual claim for dama-
ges against the city."
There was a verdict and judgment against
the city, and this was sustain^. The tenor
of the decision is, that the damages were con-
sequential, and the difference of the ruling
from that in Northern Transportation Co, v.
Chicago was explained and based upon a
change in the Constitution of the state of Illi-
nois, which enlarged the prohibition to the
damaging as well as to the taking of private
property for public use, and its interpreta-
tion by the supreme court of the state "that
it does not require that the damage shall be
caused by a trespass, or an actutu physi(»d
invasion of the owner's real estate ; but if the
construction and operation of the improve-
ment is the cause of the damage, thougn con-
sequential, the party may recover.*'
880
In Marohant v. Pennsylvania Railroad Co,
the plaintiff owned a lot on the north side of
Filbert street, Philadelphia; the railroad
erected an elevated railroad on the south side
of the street and opposite plaintiff's proper-
fer. It WM held by the supreme court of
Pennsylvania, reversing the trial court, that
for the damages hence resulting the plaintiff
could not recover. The case was brought to
this court by writ of error, the plaintin urg-
ing that her property had been taken wiu-
out due process of law. The jud^ent waa
afllrmed. The court, by Justice Shiras, said:
"In reaching the conclusion that the plain-
tiff, under the admitted facts in the caee,
had no l^al cause of action, the supreme
court of Pennsylvania was aUled upon to
construe the laws and Constitution of that
state. The plaintiff pointed *to the tenth (•8]
section of article 1 of the Constitution, which
provided that 'private property shall not be
taken or applied to public use, without au-
thority of law, and without just compensa'
tion being flrst made or secured;' and to the
eighth s^ion of article 16, which contains
the following terms: 'Municipal and other
corporations and individuals invested with
the privilege of taking private property for
public use shall make just compensation for
property taken, injured, or destroyed, by the
construction or enlargement of their works,
highways, or improvements, which compen-
sation shall be paid or secured before such
taking, injury, or destruction.'
"The flrst proposition asserted by the
plaintiff, that her private property haa
been taken from her without just compen*
sation having been first made or secured,
involves certain questions of fact. Was the
plaintiff the owner of private property, and
was such property, taken, injured, or de-
stroyed by a corporation invested with the
privilege of taking private property for pub-
lic use? The tiUe of the plaintiff to the
property affected was not disputed, nor that
the railroad company was a corporation in-
vested with the privilege of taking private
Property for public use. But it was adjudsed
y the supreme court of Pennsylvania that
the acts of the defendant which were com-
plained of did not, under the laws and Con-
stitution of the state, constitute a taking,
an injury, or a destruction of the plaintiff's
property.
"We are not authorized to inquire into the
grounds and reasons upon which the supreme
court of Pennsylvania proceeded in its con-
struction of the statutes and Constitution of
that state, and if this record presented no
other question except errors alleged to have
been committed by that court in its construc-
tion of its domestic laws, we should be
obliged to hold, as has been often held in like
cases, that we have no jurisdiction to review
the judgment of the state court, and we
should have to dismiss this writ of error for
that reason."
In Oibeon v. United States a dike was con-
structed in the Ohio river under the authori-
ty of certain acts of Congress for the im-
provement of rivers and harbors. The con-
struction of said dike by the United States
substantially destroyed the *]anding of Mrs. 1 98]
178 U. 8.
1898.
Mbtbb T. RiOHKOn.
101
Gibson by preventing ingress and egress to
and from the landing on and in front of her
farm to the main or navigable channel of the
river, — Held, damnum absque injuria. The
court by the Chief Justice said : "The Fifth
Amendment to the Constitution of the Unit-
ed States provides that private property
shall not be taken forpublic use without
just compensation." Here, however, the
danuige of which Mrs. Gibson complained
was not tiie result of the taking of any part
of her property, whether upland or sub-
merged or a direct invasion thereof, but the
inddental consequence of the lawful and
proper exercise oi a governmental power."
judgment ia affirmed.
[§9] *Mr. Chief JusticeFnller, with whom Mr.
Justice Cfrray concurred, dissenting on the
question of jurisdiction:
I am of opinion that this writ of error
should be oismissed. The contention of
plaintiff in error is that the validity of the
act of the General Assembly of Virginia of
May 24, 1870, was drawn in question in the
state courts on the ground of repugnancy to
the Constitution of the United States, and
that the decision of the court of appeals was
in favor of its validity.
The validity of a statute is drawn in ques-
tion when the power to enact it is denied,
and a definite issue in that regard must be
distincUy deducible from the record in order
for this court to hold that the state courts
have adjudicated as to the validity of the
enactment under the Constitution.
This case had eone to judgment, and a mo-
tion to set aside the judgment had been
made and denied, before it was suggested
that the act was inconsistent with the Fed-
eral Constitution. And that question was
then attempted to be raised by a second mo-
tion to vacate. But the disposal of motions
of this class is within the discretion of the
trial court, and only revisable by the appel-
late tribunal, if at all, when there is a pal-
pable abuse of discretion.
Whether the trial court, in this instance,
overruled the second motion because a sec-
ond motion of that sort, without special
cause shown, could not be entertained, or be-
[100]caufle *of unreasonable delay, it is impossible
to say, and to impute to that court the deci-
sion of a Federal question when it obviously
may have eonsidered that the point was pre-
sented too late, seems to me wnolly inadmis-
sible. And although in his petition to the
court of appeals, plaintiff in error recited
the action ne had ^eUcen, and urged that the
trial court had erred in sustaining the de-
murrer to his declaration, and in refusing to
set aside the judgment so that the constitu-
tional question suggested might be passed
on, that court, in the exercise of appellate
jurisdiction onl^, may well have concluded
that the discretion of the court below could
not be interfered with.
It does not follow from the bare fact that
this second motion presented in terms a sin-
gle point that that point was disposed of in
oenying the motion, when other grounds for
such denial plainly existed.
It is thoroughly settled that if the record
172 U.S.
of the state courts discloses that a Fedeial
question has been raised and decided, and an-
other question, not Federal, broad enough to
sustain the judjgment, has also been raised
and 'decided, this court will net review the
judgment; that this is so even when it does
not appear on which of the two grounds the
judgment was based, if the independent
ground on which it might have been based
was a good and valid one; and also where
the record shows the existence of non-Fed-
eral grounds of decision though silent as to
what particular ground was pressed and
proceeded on. In other words, the rule is
that the record must so present a Federal
question that even if the reasons for deci-
sion are not given this court can properly
conclude that it was disposed of by the state
courts. If the conflict of a state law with
the Constitution and the decision by the
state court in favor of its validity are relied
on, such decision must appear on the face of
tlie record before the jutlgment can be re-ex-
amined in this court.
In Klinger v. Missouri, 13 Wall. 257 [20:
635], a juror had declined ^ take the test
oath prescribed by the sixth section of the
secona article of the Constitution of Mis-
souri of 1865, and was discharged from the
panel. It was insisted here that he wtfs
thus excluded for no other reason than that
he refused *to take the oath, and, if this had[ 101]
been so, the question of the repugnancy of
the section to the Constitution of the United
States would have arisen. But as this court
was of opinion that, inasmuch as the grounds
the juror assigned for his refusal manifested
a settled hostilitv to the government, he
might "well have been deemed by the court,
irrespective of his refusal to take the oath,
an unfit person to act as a juryman, and a
participant in V.e administration of the ,
laws:" it was held that "it certainly would
have been in the discretion of the court, if
not its duty, to discharge him." And Mr.
Justice Bradley, delivering the opinion of the
court, said: "In this case it appears that
the court below had a good and valid reason
for discharging the juror, independent of his
refusal to Uike the test oath ; and it does not
appear hut that he was discharged for that
ground. It cannot, therefore, with certain-
ty, be said that the supreme court of Mis-
souri did decide in favor of the validity of
the said clause of the state Constitution,
which requiies a juror to take the test oath."
There was nothing in the record to show on
what ground the trial court excluded the
juror, or that the point urged in this court
was taken in the supreme court of the state,
and yet because the trial court might have
discharged the juror as matter of discretion,
or because of unfitness in the particular sug-
gested, this court decided that its jurisdic-
tion could not be maintained, and the writ
of error was dismissed. And see Johnson v.
Risk, 137 U. S. 300 [34: 683] ; Dibble v. Bel-
lingham Bay Land Company, 163 U. S. 63
[41:72].
We have held that the question whether a
party has by laches and acquiescence waived
the right to insist that a state statute im-
paired the obligation of a contract is not a
381
101-104
BUFBBICB OOUBT OF THB UlflTKD BtATBI.
Oct. TEMMf
Federal question. Pierce ▼. Somerset RaU'
way Compantf, 171 U. 8. 641 [ante, 316].
And, certainly, in view of the careful lan-
guage of 8 709 of the Revised Statutes, we
ouffht not to take jurisdiction to revise a
Judgment of a state court, where a party
seeks to import a Federal question into the
record, after judgment, by am application so
palpaUy open to dedsion on non-Federal
grounds.
I am authorized to state that Mr. Justice
Gray concurs in this dissent.
|tM] A. A. MoCULLOUOH, Plff. in Brr^
COMMONWEALTH OF VIROIKIA.
iSee S. C. Reporter's ed. 102-188.)
Virginia law that coupons of bonds shaU he
received for tawea, etc., is valid^-decision
of state court, when not binding on Fed-
eral ooufi — special tawes — Federal ques»
tiofir^imits of review of state judgments
^-costs — vested right not taken away by
repeal of statute.
1. The coapon provision of Va. act March 80,
1871. providing that the coupons of refund-
ing bonds shall ke receivable for all taxes,
debts, dues, and demands dne the state, which
shall be so expressed on their face, Is valid.
S. The decision of a state court against the
validity of a state statute which constitutes
a contract alleged to be impaired by subse-
quent statutes Is not binding on the Federal
courts.
8. A state statute authorizing state coupons to
be received for all taxes Is not wholly void
because certain special taxes and dues are,
by the existing state Constitution, required
to be paid In cash.
4. The decision of a state court deuylng the
validity of a state statute which creates a con-
tract, and giving effect to subsequent statutes
which Impair the obligation of the contract,
presents a Federal question which this court
may review, although the state court In Its
opinion considers only the statute which It
holds void, and does not discuss the later
statutes.
^"M. In reviewing the Judgment of the courts of
\ a state, this court Is not limited to a mere
I consideration of the language used In the
f opinion, but may examine and determine what
( Is the real substance and effect of the ded-
^•^sslon.
t. Judgment for costs cannot be rendered
against the plaintiff In an action which has
abated.
7. A rightful Judgment against the state gives
a Tested right which cannot be taken away
pending writ of error, by a repeal of the stat-
ute which authorised the state to be sued.
iXo. 3.]
Submitted November t, 1896. Ordered for
oral argument December H, 1896. Ar-
gued February 21, W, 1898. Decided De-
cember 5, 1898.
IK ERROR to the Supreme Court of Ap-
peals of the State of Virginia to review
382
a Judgment of said eonrt i& tefor of tha
Ccnnmonwealth of yirginia, and rerenliig
the Judgment of the (Sreuit Court of tho
City of Norfolk in said State, and ditmiiriiif
the petition of A. A. McCullough to eatab-
lish the genuineness of certain coupons ten*
dered in payment of taxes. Reversed, Mid
case remanded for further proceedings*
See same ease below, 90 va. 697.
Statement hr Mr. Justice Brewort
*0n March 30, 1871, the general assemblytlOSl
of the state of Virginia passed an act for
the refunding of the public debt. (Va. Acts
Assembly, 1870-71, p. 878. See also act of
March 28, 1879; Va. Acts Assembly, 1878-79,
p. 264.) This act, which authorized the is-
sue of new coupon bonds for two thirds of
the old bonds, leaving the other third
as the basis of an eoui&ble claim upon the
state of West Virginia, contained this provi*
sion; 'The coupons shall be payable semi-
annually, and be receivable at and after ms*
turil^ for all taxes, debts, dues, and de»
mands due the state, which shall be so ex*
pressed on their face." Under this act a
large amount of the outstanding debt of the
state was refunded. This provision gave
value to the bonds as affording an easy
method of securing payment of the interest.
This refunding s^eme, however, did not
prove satisfactorv to the people of the state,
and since then there has been repeated leg-
islation tendinff to destroy or impair the
riffht granted py this provision. Among
other statutes may be noticed the followinff :
The act of March 7, 1872 (Acts of Assembhr.
1871-72, p. 141), providing that it should
not be "lawful for the officers charged with
the collection of taxes or other demands of
the state, due now or that shall hereafter
become due, to receive in payment thereof
anything else than gold or silver coin. Unit-
ed States Treasury notes, or notes of the na-
tional banks of the United States." That
of March 25, 1878 (Acts of Assembly, 1878-
73, p. 207 ) , imposing a tax of fifty oents oa
the hundred dollars market value of bonds,
and directing that such amount be deducted
from coupons tendered in payment of taxes
or dues.
Ai the time the act of 1871 was passed and
the new bonds and coupons were issued, the
court of appeals of the state had jurisdiction
to grant a mandamus in any action where
the writ would lie according to the principles
of the common law, and *in Antoni v. WrightSlO^"]
22 Qratt. 883, it was held by that court that
mandamus was the proper remedy to compel
the collector to accept coupons offered in pay-
ment of taxes. On January 14, 1882, the as-
sembly passed an act (Acts 1881-82, p. 10),
which, in effect, provided that a taxpayer
seeking to use coupons in payment of his
taxes should pay the taxes in money at the
time of tendering the coupons, and thereaft-
er bring a suit to establish the fenuinenesa
of the coupons, which, if decided in his fa-
vor, enabled him to obtain from the treasurer
a return of the money paid. The various
features of this act are specifically pointed
out i|i Antoni v. Chreenhow, 107 U. S. 7o9 [27 s
468]. At the same session, and on January
i7t u. m.
1888.
MoCULLOUeH T. COMMONWBALTH OF VlBGlKlA.
lOi-107
M, 1882 ( AcU 1881-82, d. 37) , the assembly
passed a farther act declaring that the tax
eoUeetors should receive in payment of taxes
•nd other dues "gold, silver. United States
Treasury notes, national bank currency, and
Bothin^ dse," with a provision for suit bv
one claiming that such exaction was illegal.
The act contained this proviso : 'There shall
be no other remedy in any case of the collec-
tion of revenue, or the attempt to collect rev-
enue illegally, or the attempt to collect reve-
nue in funds onlv receivable by said officers,
under this law, the same being other and dif-
ferent funds than the taxpayer may tender or
elaim the right to pay, than such as are herein
provided; and no wnt for the prevention of
any revenue daim, or to hinder or dela^ the
eoUeetion of the same, shall in anywise issue,
either injunction, supersedeas, mandamus,
prohibition, or any other writ or process
whatever; but in all cases if for any reason
any person shall daim that the revenue so
collected of him was wrongfully or illegally
collected, the remedy for such person sh^l be
as above provided, and in no other manner."
At the same session, on February 14, 1882,
a new funding bill was passed containing a
proposition to the bondholders (Acts 1881-
82, p. 88) ; and again at the same session,
on April 7, 1882, an act was passed amend-
ing the Code of Vir^nia in respect to roan-
djumus, which provided "that no writ of
mandamus, pronibition, or any other sum-
mary process whatever, shall issue in any
L06]ca8e of the collection, *or attempt to collect
revenue, or to compel the collecting officers
to recdve anything In payment of taxes other
than as provided in chapter forty-one, acts
of assembly, approved «January twenty-six,
eighteen hundrea and eighty-two, or in' any
case arising out of the collection of revenue
in which the applicant for the writ or proc-
^ has any otner remedy adequate for th*
protection and enforcement of his individual
right, daim, and demand, if just." (Acts
1881-82, p. 342.)
On l^rch 15, 1884, the general assembly
passed a generai act in reference to the as-
seaement of taxes on persons, property, and
incomes (Acts 1883-84, p. 661), the one hun-
dred and thirteenth section (p. 603) of
which required that all school taxes should
be paid "only in lawful money of the United
States."
On January 26, 1886 (Acts 1885-86, p.
37 ) , an act was passed providing that in a
Buit in respect to coupons tendered in pay-
ment of taxes, no expert testimony should be
receivable, and that the bonds from which
the coupons were cut should be produced, if
demanded, as a condition precedent to the
right of recovery.
Section 309 of '*the Code of Virginia,"
which was a revision and re-enactment of the
general statutes of the state, adopted May
18, 18S7, reads: **It shall not be lawful for
any officer charged with the collection of
taxes, debts, or other demands of the state
to receive in payment thereof anything else
than gold or silver coin. United States
Treasury notes, or national bank notes."
On May 29, 1892, the plaintiff in error
172 V. 8.
filed his petition in the circuit court of the
city of Norfolk to establish the genuineness
of certain coupons tendered in payment of
taxes. The proceeding was had under th«
act of 1882, and no question is made of a
full compliance with the terms of that stat-
ute. Jud^ent was rendered in his favor by
the circuit court of the city of Norfolk, •
which judgment was, on March 23, 1894,
reversed by the supreme court of appeals of
the state, 90 Va. 597, and a judgment en-
tered in favor of the commonwealth, dismiss-
ing the petition of the plaintiff and award-
ing *to the commonwealth costs. Or [1061
June 13, 1894, a writ of error was allowed,
and the case brought to this court.
Mr. RIel&ard L. Maury for plaintiff in
error on submission of case.
Mr. R. Taylor Scott, Attorney Qeneral
of Virginia, for defendant in error on submis-
sion of case.
Messrs, Bicliard I*. Maury, William
A. Maury, and M. F, Maury for plaintiff
in error on oral argument.
Messrs, A* J. Montague, Henry R.
Pollard, and R, Taylor *Scor(, Attorney Gen-
eral of Virginia, for defendant in error on
oral argument.
*Mr. Justice Brewer delivered the opin-[106J
ion of the court:
Perhaps no litigation has been more
severely contested, or has presented more in-
tricate and troublesome questions, than that
which has arisen under the coupon legisla-
tion of Virginia. That legislation
has been prolific of many cases, both in
the state and Federal courts, not a few of
which finally came to this court. Hart man
V. Oreenhow, 102 U. S. 672 [26:271];
Anioni v. Oreenhow, 107 U. S. 769 [27:
468] ; Virginia Coupon Cases, 114 U. S. 269
[29: 185]; Poindexter v. Oreenhow, 114 U.
S. 270 [29: 185]; Carter v. Oreenhow, 114
U. S. 322 [29: 204]; Moore v. Oreenhow,
114 U. S. 340 [29: 240] ; Marye v. Parsons,
114 U. S. 325 [29:205]; Barry y, Ed-
munds, 116 U. S. 550 [29:729]; Chaffin
V. Taylor, 116 U. S. 571 [29: 728 [; RoyaXl v.
Virginia, 116 U. S. 572 [29: 735] ; Royall v.
Virginia, 121 U. S. 102 [30:883]; Sands
V. Edmunds, 116 U. S. 585 [29:739];
Stewart' Y, Virginia, 117 U. S. 612 [29:
1008]; Re Ayers, 123 U. S. 443 [31: 216]?
McOahey v. Virginia, 135 U. S. 662 [34:
304].
For the first time in the history of this
litigation has any appellate court, either
state or Federal, distinctly ruled that the
coupon provision of the act of 1871 was void.
After the passage of the act of March 7,
1872, which in terms required all taxes to be
paid in cash, the case of Antoni v. Wright
came before the court of appeals of Virginia
(22 Gratt 833), and on December 13, 1872,
was decided. Elaborate opinions were filed,
and the court held the act of 1871 valid ana
the act of 1872 void, as violating the con-
tract embraced in the coupon provision of
the act of 1871. This aecision was re-
affirmed in *Wise Bros, v. Rogers, 24 GrattrilM]
169, decided December 17, 1873; Clarke v.
383
\
107-1U9
tioPKiotE Court of thb Unttod States.
Oct. TK111C9
Tyler, 30 Gratt. 135, decided April 4, 1878,
And affain in Williamson v. Maaaey, 33 Gratt.
237, decided April 29, 1880. In Oreenhow
T. Vashon, 81 Va. 336, decided January 14,
1886, the act requiring school taxes to be
paid in cash was sustained, and such taxes
excepted from the coupon contract on the
. ground of a specific command in the state
Constitution in force at the time of the pas-
sage of the funding act. There was no di-
rect decision that the coupon provision was
entirely void, although the intimation was
clear that such was the opinion of the judges
then composing the court.
In this court the decisions have been uni-
form and positive in favor of the validity of
the act of 1871. There has been no disso-
nance in the declarations, from the first case,
Hartman v. Oreenhow, 102 U. S. 672, 679
t26: 271, 275], decided at the October term,
1880, in which, referring to this act, the
court said, b^ Mr. Justice Field: "A contract
was thus consummated between the state
and the holders of the new bonds, and the
holders of the coupons, from the obligations
of which she could not, without their consent,
release herself by any subsequent legislation.
She thus bound herself, not only to pay the
fconds when they became due, but to receive
the interest coupons from the bearer at and
after their maturity, to their full amount,
for any taxes or dues by him to the state.
This receivability of the coupons for such
taxes and dues was written on their face,
and accompanied them into whatever hands
they passed. It constituted their chief
value, and was the main consideration
ofTered to the holders of the old bonds to
surrender them and accept new bonds for
two thirds of their amount," — to MoOaheif
V. Virginia, 135 U. S. 662, 668 [34: 304,
806], decided at the October term, 1880, in
which Mr. Justice Bradley, delivering the
unanimous opinion of the court, observed:
''We have no hesitation in saying that the
act of 1871 was a valid act, and that it did
and does constitute a contract betweeen the
state and the holders of the bonds issued
under it, and that the holders of the coupons
of said bonds, whether still attached there-
to or separated therefrom, are entitled, by
a solemn engagement of the state, to use
them in payment of state taxes and public
[I08]dues. *This was determined in Hartman v.
Oreenhow, 102 U. S. 672 [26: 271], decided
in January, 1881 ; in Antoni v. Oreenhow,
107 U. S. 769 [27: 468], decided in March,
1883; in the Virginia Coupon Cases, 114 U.
8. 269 [29:185], decided in April, 1885,
and in all the eases on the subject that have
come before this court for adjudication.
This question, therefore, may be considered
as foreclosed and no longer open for consid-
eration. It may be laid down as undoubted
law that the lawful owner of any such cou-
pons has the right to tender the same after
maturity in absolute pa3rment of all taxes,
debts, dues, and demands due from him to
the state."
Since the decision of the court of appeals
of Virginia, in Antoni v. Wright, 22 Gratt.
833, that the act of 1872, providing for the
384
payment of taxes in cash onlv was uncon-
stitutional, the general assembly of Virginia
has from time to time passed acts tending
to embarrass the coupon holder in the exer-
cise of the right granted by the funding act.
Some of these acts appear in the statement
preceding this opinion, but for a more full
review ox the I^slation and the course of
decision reference may be had to the opinion
of Mr. Justice Bradley in the several cases
reported under the title of MoOahey ▼. Ttr*
ginia, Sispra,
We are advised by the opinion of the court
of appeals of Virginia, in 22 Gratt. 833, that
the debt — two thirds of which was proposed
to be refunded and most of which was, in
fact, refunded — amounted to $40,000,000 of
principal. These refunding bonds, amount-
ing to many millions of dollars, have passed
into the markets of the world, and have so
passed accredited, not merelv by the action
of the general assembly of the state of Vir*
ginia, but by the repeated decisions of her
highest court, as well as of this court, for
substantially a quarter of a century, to the
effect that such coupon provision was con-
stitutional and binoing. Now, at the end
of twenty-seven years from the passage of
the act, we are asked to hold that this guar^
anty of value, so fortified as it has
been, was never of any validity, that
the decisions to that effect are of
no force and that all the transactions whidi
have been had based thereon rested u^n
nothing.- Such a result *i8 ao starthng[10O]
that it at least compels more than ordinary
consideration.
We pass, therefore, to a consideration of
the specific questions presented in this reo-
ord.. First. It is insisted that the decision
of the court of appeals was riffht, and that
the coupon provision was void. It were a
waste of time to repeat all the arguments
which have been heretofore presented,
and we content ourselves with reiterat-
ing that which was said bv Mr.
.Justice Bradley speaking for the en-
tire court, in McOahey v. Virginia^
135 U. S. 662, 668 [34:304, 306]: 'This
?[ue8tion, therefore, may be considered as
oreclosed and no longer open for considera-
tion. It may be laid down as undoubted
law that the lawful owner of any such cou-
pons has the right to tender the same after
maturity in absolute pavment o^ all taxes,
debts, dues, and demands due from him to
the state."
Secondly. It is insisted that whatever
may be our own opinions upon the case, we
are to take the construction placed by ths
court of appeals of Virginia upon the act
as the law of that state. While it is un-
doubtedly the ffeneral rule of this court to
accept the construction placed hj the courts
of a state upon its statutes and Oonstitution,
yet one exception to this rule has always
been recognized, and that in reference to the
matter of contracts alleged to have been im-
paired. This was distinctly affirmed in /ef-
ferson Branch Bank v. SkeUy, I Black, 43o,
443 [17: 173, 177], in which the court,
speaking by Mr. Justice Wayne, save thestt
reasons for the exception: "It has never
172 U. ft
1808.
MoOULLOUGH y. COMMONWEAI/TH OF YlBGIKIA.
109-iia
been denied, nor is it now, that the Supreme
Court of the United States has an appellate
power to revise the judgment of the supreme
eoort of a state, whenever such a court shall
tdjndge that not to be a contract which
lias been alleged, in the forms of legal
proceedin|[8, by a litigant, to be one, within
the meamne of that clause of the Constitu-
tion of the united States which inhibits the
•tates from passing any law impairing the
obligation of contracts. Of what use would
the appellate power be to the litigant who
feels nmiself aggrieved by some particular
state legislation, if this court could not de-
cide, independently of all adjudication by
the supreme court of a state, whether or not
I10]the ^phraseology of the instrument in contro-
versy was expressive of a contract and
within the protection of the Constitution of
the United States, and that its
obligation should be enforced, not-
withstanding a contrary conclusion by the
supreme court of a state? It never was in-
t^ed, and cannot be sustained by any
coarse of reasoning, that this court should,
or could with fidelity to the Constitution of
tbe United States, follow the construction of
tbe supreme court of a state in such a mat-
ter, when it entertained a different opinion."
The doctrine thus announced has been uni-
formly followed. Bridge Proprieiora v. Ho-
hoken Land d Improv. Co, 1 Wall. 116, 145
[17:671,576]; Wright v. Nagle, 101 U. S.
791, 793 [25 : 921,922] ; McOahey v. Virginia,
135 U. 8. 665, 667 [34 : 305, 306] ; in which,
in reference to this very contract, it was
said: "In ordinary cases the decision of
the hiffhest court of a state with regard to
the validity of one of its statutes would be
binding upon this court ; but where the ques-
tion raised is, whether a contract has or has
not b^n made, the obligation of which is
allied to have been impaired by legislative
action, it is the prerogative of this court un-
der the Constitution of the United States
and the acts of Congress relating to writs
of error to the judgments of state courts, to
inquire and judge for itself with regard to
the making of such contract, whatever may
be the views or decisions of the state courts
in relation thereto." See also Douglas v.
Kentucky, 168 U. S. 488, 601 [42: 553, 557],
and cases cited therein.
Thirdly. It is urged that our last deci-
sion, that in McCMiey v. Virginia, supra,
lexically leads to the conclusion that the
^ole coupon contract was void, and that the
court of app^s of Virginia rightly inter-
preted the scope of that decision when it so
held. The argument of that court is that
because the (institution of Virginia com-
pels the payment of certain taxes in cash,
and that thereiore the coupon contract can-
not be enforced as against those taxes, the
whole contract must fail, the partial failure
being a vice which enters into and destroys
the entire contract. But the court overlooks
that which was in fact decided in the eight
cases reported under the title of McGahey v.
\irg%nia, for while in two of those cases it
was held that the coupon contract could not
^ ^ 1 ]be enforced against 'certain specific taxes and
dues, it was in others as distinctly held that
172 U. 8. U. S.. Book 43. 2
it could be enforced in respect to general
taxes.
It may be well to here quote the lansuagt
with which Mr. Justice Bradley concludes
his general review of the prior litigation*
and which in its last para^aph shows that
this very matter was considered and deter-
mined, pages 684, 685 [34: 312.] :
"Without committing ourselves to all that
has been said, or even lul that may have been
adjudged, in the preceding cases that have
come Mfore the court on the subject, we think
it clear that the following propositions hav«
been established:
"First, that the provisions of the act of
1871 constitute a contract between the state
of Virginia and the lawful holders of the
bonds and coupons issued under and in pur*
suance of said statute;
"Second, that the various acts of the as-
sembly of Virginia passed for the purpose of
restraining the use of said coupons for the
payment oi taxes and other dues to the state,
and imposing impediments and obstructions
to that use, and to the proceedings instituted
for establishing their genuineness, do in
many respects materially impair the obliga-
tion of that contract, and cannot be held to
be valid or binding in so far as they have
that effect;
"Third, that no proceedings can be insti-
tuted by any holder of said bonds or coupons
against the commonwealth of Virginia, eith-
er directly by suit against the commonwealth
by name, or indirectly against her executive
officers to control them in the exercise of
their official functions as agents of the state ;
"Fourth, that any lawful holder of the
tax-receivable coupons of the state issued un-
der the act of 1871 or the subsequent act of
1879, who tenders such coupons in payment
of taxes, debts, dues, and demands aue from
him to the state, and continues to hold him-
self ready to tender the same in payment
thereof, is entitled to be free from molestation
in person or goods on account of such taxes,
debts, dues, or demands, and may vindicate
such right in all lawful modes of redress-
by suit to recover his property, by suit
against the officer to recover damages for
taking it, by injunction to 'prevent such tak-[llS]
ing where it would be attended with irreme-
diable injury, or by a defense to a suit
brought against him for his taxes or the
other claims standing against him. No con-
clusion short of this can be legitimately
drawn from the series of decisions which we
have above reviewed, without wholly overrul-
ing that rendered in the Coupon Cases and
disregarding many of the rulings in other
cases, which we should be very reluctant to
do. To the extent here announced we feel
bound to yield to the authority of the prior
decisions of this court, whatever may have
been the former views of any member of the
court.
"There may be exceptional cases of taices,
debts, dues, and demands due to the state
which cannot be brought within the opera-
tion of the rights secured to the holders of
the bonds and coupons issued under the acts
of 1871 and 1879. When such cases occur
385
{
112-115
SuPBBHB Court of thb United Statrs.
Oct. Ter^
th^jr will have to be disposed of according to
their own circumstances and conditions/'
Neither is the argument a sound one. It
ignores the difiference between the statute
and tiie contract, and confuses the two en-
tirely distinct matters of construction and
validity. The statute precedes the contract.
Its scope and meaning must be determined
before any question will arise as to the va-
lidity of the contract which it authorizes. It
is elementary law that every statute is to
be read in the light of the Constitution. How-
ever broad and general its language, it can-
not be interpreted as extending beyond
those matters which it was within the con-
stitutional power of the legislature to reach.
It is the same rule which obtains in the in-
terpretation of any private contract between
individuals. That, whatever may be its
words, is always to be construed in the light
of the statute; of the law then in force; of
the circumstances and conditions of the .par-
ties. So, although general language was in-
troduced into the statute of 1871, it is not
to be read as reaching to matters in respect
to which the legislature had no constitution-
al power, but onlv as to those matters within
its control. Ana if there were, as it seems
there were, certain special taxes and dues
which under the existing provisions of the
state Constitution could not be affected by
[118]legislative *action, the statute is to be read
as though it in terms excluded them from its
operation.
Indeed, the court of appeals does not fol-
low what it calls the logic of the decision in
MoOahey v. Virginia to its necessary result.
The scope of its argument is that if a part of
the consideration be illegal, the whole con-
tract fails. But the promise on the part
of the state, written into these coupons and
authorized by the act of 1871, was a promise
to pay so much money and to receive such
promise in satisfaction of taxes. In refer-
ence to this, the court of appeals, in its opin-
ion in this case, uses this language:
''We do not assail that act as unconstitu-
tional as an entirety. We simply hold that
the coupon feature of the act, the coupon con-
tract, which is readily separable from the
rest of the act, is repugnant to sections 7
and $ of the Constitution of Virnnia, and is
therefore an illegal contract. The validity
of the bonds issued under and by authority
of said acts of March 30, 1871, and March 28,
1879, is not denied ; nor is it denied that the
bondholders are entitled to the interest on
the bonds, to be collected in the ordinary
way; but we do deny that it can be collected
through the medium of the ille^l coupon,
which has been most aptly designated the
'cut worm of the treasury.' " 90 Va. 697-
606.
Further, the authorities to which it re-
fers make against the conclusion which it
reaches. Thus, at the end of its argument,
it quotes as a principal authority the follow-
ing:
"The concurrent doctrine of the text-books
on the law of contracts is that if one of two
considerations of a promise be void merely,
the other will support the promise ; but that
if one of two considerations be unlawful the
promise is void. When, however, for a legal
consideration, a party undertakes to do one
or more acts, and some of them are unlaw-
ful, the contract is good for so much as is
lawful and void for the residue. Whenever
the unlawful part of the contract can be sep-
arated from the rest it will be rejected and
the remainder established. But this cannot
be done when one of two or more considera-
tions is unlawful, whether the promise be
to do one lawful act, or two or more acts
part of which are unlawful, 'because the[114]
whole consideration is the basis of the whole
promise. The parts are inseparable. Wi"
doe V. Webb, 20 Ohio St. 431 [5 Am. Rep.
664], citing Metcalf on Contracts, 246; Ad-
dison on Contracts, 905 ; Chitty on Contracts,
730 : 1 Parsons on Contracts, 456 ; 1 Parsons
on Notes and Bills, 217; Story on Prom.
Notes, section 190; Byles on Bills, 111;
Chitty on Bills, 94.
"And in the same case it is said: 'Whilst
a partial want or failure of consideration
avoids a bill or note only pro tanio, illegal-
ity in respect to a part of the consideration
avoids it in toto. The reason of this dis-
tinction is said to be founded, partly at
least, on grounds of public policy, and partly
on the t^hnical notion that the security is
entire and cannot be apportioned ; and it has
been said with much force, that where par-
ties have woven a web of fraud or wrong it
is no part of the duty of courts of justice to
unravel the threads and separate the sound
from the unsound;' citing Story on Prom.
Notes, and Byles on Bills, tupra, and then
adds: 'And, in general, it makes no differ-
ence as to the effMi whether the illegality b«
at common law or by statute.' "
This decision declares that when the con-
sideration is illegal, the promise fails; and
to like effect are the other authorities cited.
But in the case at bar there is no illegality
in the consideration. That was furnished
by the bondholder in the old bond, and that
bond was the sole consideration. It is no-
where suggested that there was any vice or
ille^ity in it; that it was not a valid obli-
gation of the state. When the bondholder
surrendered that he furnished the entire
consideration for the contract, and for that
he received from the state a promise. And
as the supreme court of Ohio said in the case
above cited: "When, however, for a legal
consideration, a party undertakes to do one
or more acts, and some of them are unlaw-
ful, the contract is good for so much as is
lawful and void for the residue." The
court of appeals concedes that the promise
made by the state to pay the interest is
valid, because made upon a sood and lawful
consideration. Does it not logically follow
that the promise of the state is also good as
to all other matters contained within it in
respect *to which it might lawfully make a[115]
promise? It promised to receive the coupons
"for all taxes, debts, dues, and demands due
the state." That promise was necessarily
for each tax and debt, as well as for all taxes
and debts. If it should so happen that any
single tax or debt cannot, under the Con-
stitution of the state, be lawfully discharged
172 u. m
189&
McCULLOUQH ▼• COMMONWBALTH OF YlBGUilA.
116-^117
by €he receipt of the coupon, there is no diffi-
colty in separating that part of the contract
from the balance. And as said by the su-
preme court of Ohio: ** Whenever the unlaw-
ful put of the contract can be separated
from the rest, it wiU be rejected and the re-
mainder established."
To like effect are the decisions of thi^
court In United States v. Bradley, 10 Pet.
343 [9: 44S], suit was brought on a pay-
master's bond, and it was claimed that as
some of the stipulations were in excess of
those required by the statute, and illegally
inserted, the whole bond was void. But the
court overruled the contention, saying (p.
360 [466]):
"That bonds and other deeds may, in man^
esses, be good in part and void for the resi-
due, where the residue is founded in ille-
ffslity but not malum in ae, is a doctrine well
lounded in the common law, and has been
recognized from a very early period. Thus,
in Pigofa Case, 11 Coke, 276, it was said
that it was unanimously agreed in 14 Hen.
VIII., 25, 26, that if some of the covenants
of an indenture, or of the conditions indorsed
upon a bond are against law, and some are
good and lawful, that in this case the cove-
nants or conditions which are against law
are void ah initio and the others s^ind good."
So in Gelpcke v. City of Dubuque, 1 Wall.
221 [17: 531], this court said, in reference to
a similar contention in a suit on a contract
made by the officials of the city of Dubuque
(p. 222 [17:520]):
'^e have not, therefore, considered the
quistions which they present. They relate
to certain provisions of the contract which
are daimea to be invalid. Conceding this
to be so, they are clearly separable and sev-
arable ^om the other parts which are re-
lied upon. The rule in such cases, where
there is no imputation of malum in se, is
that the bad parts do not affect the good.
The valid may be enforced."
^€] *We see no reason to change the views
heretofore and often expressd by this court,
and reiterate, as said in 135 U. S. 668 [34:
306], "this question, therefore, must be con-
sidered as foreclosed and no longer open for
consideration."
Fourthly. It is ur^ed that this court has
no jurisdiction of this case for the reason
that the court of appeals in its opinion does
not consider the subsequent legislation
passed by the state with the view of impair-
ing the contract created by the act of 1871,
but limits itself to a consideration of that
act, and adjudges it void. In support of
tbis proposition the rule laid down in New
Orleans Water Works Co, v. Louisiana Sugar
lUf. Co. 125 U. S. 18, 38 [31: 607,615], re-
affirmed in Huntington v. Attrill, 146 U. S.
657, 684 [36:1123,1134], and Bacon v.
Ttwas, 163 U. S. 207, 216 [41: 132, 136], is
cited.
In this last case the doctrine is summed
Qp in the following statement:
''Where the Federal question upon which
the jurisdiction of this court is based grows
out of an alleged impairment of the obligation
of a contract, it is now definitely settled that
172 v. 8.
the oontraot can only be impaired within the
meaning of this clause in the Constitution,
and so as to give this court jurisdiction oil
writ of error to a state court, by some sub-
seouent statute of the state which has been
uphdd or effect given it by the state court.
Lehigh Water Co. v. Easton, 121 U. 8. 388
[30: 1050]; Nevo Orleans Water Works Co.
V. Louisiana Sugar Refining Co. 125 U. S. 18
[31 : 607] ; Central Land Co. ▼. Laidley, 159
U. S. 103, 109 [40: 91, 04]. ... If the
judgment of the state court gives no effect
to tne subsequent law of the state, and the
state court decides the case upon grounds
independent of that law, a case is not made
for review by this court, upon any ground
of the impairment of a contract. The above
cited cases announce this principle."
It is true^ the court of appeals in its opin*
ion only incidentally refers to statutes
passed subsequent to the act of 1871, and
places its decision distinctly on the ground
that that act was void in so far as it related
to the coupon contract, but at the same time
it is equally clear that the judgment did give
effect to the subsequent statutes, and it has
been repeatedly *held by this court that in re-[117]
viewing the judgment of the courts of a state
we are not limited to a mere consideration of
the language used in the opinion, but may *
examine and determine what is the real sub*
stance and effect of the decision.
Suppose, for illustration, a state legisla^
ture should pass an act exempting the prop*
erty of a particular corporation from all
taxation, and that a subsequent l^slature
should pass an act subjecting that corpora^
tion to the taxes imposed bv the cify in
which its property was locatea, and that, oji
the first presentation to the highest court of
the state of the question of the validity of
taxes levied, under and by virtue of this last
act, that court should in terms hold these
city taxes valid notwithstanding, the general
clause of exemption found in the prior stat-
ute. In that event no one would question
that this court had jurisdiction to review
such judgment, and inquire as to the scope
of the contract of exemption created 'by the
first statute. Suppose, further, that this
court should hold that the first statute was
valid and broad enough to exempt from all
taxation, city as well as state, and adjudge
the last act of the legislature void as in con-
flict with the prior; and that thereafter the
city should a^ain attempt to levy taxes upon
the corporation, and that upon a challenge
of those taxes the state court should say
nothing in respect to the last act, but simply
rule that the original act exempting the'
property of the corporation from taxation
was void, could it fairly be held that this
court was without jurisdiction to review
that judgment, a judgment which directly
and necessarily operated to give force and
effect to the last statute subjecting the prop-
erty to city taxes? Could it be said that the
silence of the state court in its opinion
changed the scope and effect of the decision?
In other words, can it be that the mere lan-
guage in which the state court phrases ita
opi^on takes from or adds to the jurisdic-
387
llT'l.O SnPBEMB Court of
tion of thii court to leview iU judgmentt
Such a conatruction nould always place it in
the power of a state court to determine our
jurisdiction. Such, ceitainlj, has not been
the under Btunding, and such certainly would
[I18>eem to setatnaugfattlie purpooeof the 'Fed-
eral Constitution to prevent a state froni
nullifjiog by its legislation a contract whidi
it ha» made, or authorised to be made. In
Bickie v. Starke, 1 Pet. 94-98 (7:07-40],
Chief Justice Marshall, delivering the opin-
ion of the court, said :
"In the conatruction of that section (the
twenty-fifth) the court has never required
that tb« treaty or act of Congress under
which the party claims, who brings the final
judgment of a state court into review before
this court, should have been pleaded specially
or spread on tlie record. But it has always
been deemed essential to the exercise of ju-
risdiction in such a case that the record
should show a complete title under the treaty
or act of Congress, and that the judgment of
tba oourt ia in violation of that treaty or act."
And in Wilson v. The Blackbird Creek
KartK Oompans, 2 Pet. 246, 260 [7 : 412,
414], the same Chief Justice also said:
"But we think it impossible to doubt that
the constitution aUty of the act was the ques-
tion, and the only question, which could
have been discussea in the state court. That
question must have been discussed and decid-
ed. . . . This court has repeatedly de-
cided in favor of its jurisdiction in such a
case. Martin v. Bunter's Lessee, 1 Wheat.
304 [4: 97] ; Miller v. mckolU, 4 Wheat. 311
[4: S7S] ; and Williams v. Harris, 12 Wheat.
117 [6: 671], are expressly in point. They
establish as far as precedents can establish
anything, that it is not necessary to state in
terms on the record that the Constitution or
a law of the United States was drawn in
question. It is sufficient to bring the case
within the provisions of the twenty- fifth sec-
tion of the judicial act, if the record shows
that the Constitution or a law or a treaty of
the United States must have been miscon-
strued, or the decision could not be made.
Or, as in this case, that the constitutionality
of a stiite law was questioned, and the deci-
sion has been in favor of the party claiming
under such law."
In SatterUe v. Matthewson, 2 Pet. 380,
410 [7:468, 408], Mr. Justice Washington
observed:
"... If It sufBciently appear from the
recorditself, that therepuf^nancyof astatute
of a slate to the Constitution of the United
[tlO]Sta.tee was drawn itttoquestion.orthat 'that
question was applicable to the case, this
court has jurisdiction of the cause under the
eection of tht act referred to; although the
record should not, in t«rms, state a miscon-
«triiction of the Constitution of the United
States, or that the repugnancy of the statutA
«f the state to any part of that Constitution
-was drawn into question."
In Bridge Prnprietors t. Bohoken Land A
Impror. Co. 1 Wall. 110, 143 [17: 671, 876],
«ti act passed by the state in 18S0 wM
claimed to be iu violation of a contract cre-
ated by an act of 1790, and ft was said :
"Now, although there are other decisions
1896.
McCoLLonoH Y, Commonwealth of Vabginia.
120-128
the taxes therein referred to were not to be
levied as against a railroad exempt by law
or charter, yet the supreme court held that
this company is not exempt, and is embraced
within tne act; so that if a contract of ex-
emption is contained in the company's char-
ter, then the obligation of that contract is
impaired by the act of 1888, which must be
eonsidered, under the ruling of the supreme
court, as intended to apply to the company.
The result is the same, although the act of
1888 be regarded as simply putting in force
revenue laws existing at the date of the com-
pany's charter, rather than itself imposing
taxes, for if the contract existed those laws
became inoperative, and would be reinstated
S the act of 1888. The motion to dismiss
e writ of error is therefore overruled."
tl] *In WOmiii^Ofi d Weldon Railroad Co. t.
AUlrook, 146 U. S. 279, 293 [36: 972, 978],
the state court, conceding the validity of a
contract of exemption from taxation, held
that certain property was not within its
terms, and on this ground a motion to dis-
miss the writ of error was made by the de-
fendant In respect to that the Chief Jus-
tice said:
'The jurisdiction of this court is ques-
tioned, upon the ground that the decision of
the supreme court of North Carolina conced-
ed the validity of the contract of exemption
contained in tne act of 1834, but denied that
particular property was embraced by its
terms; and that, therefore, such decision did
not involve a Federal question.
"In arriving at its conclusions, however,
the state court rave effect to the revenue law
of 1891, and held that the contract did not
confer the riffht of exemption from its opera-
tion. If it aid, its obligation was impaired
by the subseauent law, and as the inquiry
whether it dia or not was necessarily direct*
ly passed upon, we are of opinion that the
writ of error was properly allowed."
In Mobile d Ohio Railroad Co, v. Tennes-
Me, 153 U. 8. 486, 492, 493 [38: 793, 796],
Mr. Justice Jackson, reviewing prior deci-
sions, said:
*lt is well settled that the decision of a
state court holding that, as a matter of con-
struction, a particular charter or a charter
provision does not constitute a contract, is
not binding on this court. The question of
the existence or nonexistence of a contract in
cases like the present is one which this court
will determine for itself, the established rule
being that where the judgment of the high-
est court of a state, by its terms or necessary
ration, gives effect to some provisions of
state law which is claimed by the unsuc-
eessfnl jparty to impair the contract set out
and relied on, this court has jurisdiction to
determine the Question whether such a con-
tract exists as claimed, and whether the state
htw complained of impairs its obligation.**
In the case before ns, after the act of 1871
Md in 1872, the general assembly passed an
fct requiring that all taxes should be paid
IB "gold or silver coin. United States Treas-
^ notes, or notes of the national banks of
>S]tbe United States;** and *again, in 1882, a
turther statute commanding tax collectors
to receive bk pftyment of taxes ''gold, silver,
172 U. S.
United States Treasury notes, national bank
currency, and nothing else.** This command
was re-enacted in the Code of 1887. Under
these statutes the state demanded payment
of its taxes in money and repudiated its
promise to receive coupons in lieu thereof.
True, in its opinion, the court of appeals did
not specifically refer to these statutes, but
by declaring that the contract provided for
in the act of 1871 was void it did give full
force and effect to them^ as well as to the
general revenue law of the state. Now, it
IS one of the duties cast upon this court by
the Constitution and laws of the United
States to inquire whether a state has passed
any law impairing the obligation of a prior
contract. No duty is more solemn and im-
perative than this, and it seems to us that
wc should be recreant to that duty if we
should permit the foim in which a state
court expresses its conclusions to override
the necessary effect of its decision.
It must also be borne in mind that this is
not a case in which, after a statute asserted
to be the foundation of a contract, acts are
passed designed and tending to destroy or
impair the alleged contract rights, and the
first time the question is presented to the
highest court of the state it takes no notice
of the subsequent acts*, but inquires simply
as to the vsilidity of the alleged contract.
Here it appears that the state courts had re-
peatedly held the act claimed to create a
contract valid, and had passed upon the va*
lidity of subsequent acts designed and calcu-
lated to destroy and impair the rights given
by such contract, sustaining some and annul-
ling others. Some of those judgments had
beeen brought to this court, and by it the
validity of the original act had been uni-
formly and repeate£y sustained, and the in-
validity of subsequent and conflicting acts
adjudged, and now, at th«« end of many years
of litigation, with these subsequent statutes
still standing on the statute books unre-
pealed by any legislative action, the state
court, with only a casual reference to those
later statutes, ^oes back to the original act,
and, reversing its prior rulings, adjudees it
void, thus in effect putting at naught the re-
peated *deoisionsof this court as well as its[l83]
own. Under such circumstances it seems to
us that it would be a clear evasion of the
duty cast upon us by the Constitution of the
United States to treat all this past litigation
and prior decisions as mere nullities and to
consider the question as a matter de novo.
It would be shutting our eyes to palpable
facts to say that the court of appeals of Vir-
ginia has not by this decision given effect
to these subsequent statutes.
Finally, it is urged that since the judg-
ment in the trial court and prior to the de-
cision in the court of appeals the general as-
sembly of the state of Virginia pamd an act
(Acts Gen. Assembly, 1893-94, p. 381) in
terms repealing the statute authorizing this
particular form of suit ; that no state can be
sued without its own consent ; that such con-
sent has thus been withdrawn, and therefore
the whole proceeding abates and this suit
must be dismissed. It is true that such an
380
(
I2i^-12(5
SUPRBMB COUBT OP THB UNITBD STATBS.
Oct. Txbm,
act was passed, and that in Maury v. Com-
momoecUth, 92 Va. 310, its validity was sus-
tained by the court of appeals, but the judg-
ment in this case did not go upon the effect
of that repealing statute, ft was not noticed
in the opinion, and the decision was not that
the suit abate by reason of the repeal of the
statute authorizing it, but that the judg-
ment of the trial court be reversed, and a
new judgment be entered against the peti-
tioner for costs. If the action had abated it
was error to render judgment against him
for costs.
But there are more substantial reasons
than this for not entertaining this motion.
At the time the judgment was rendered in
the circuit court of the city of Norfolk the
act of 1882 was in force, and the judgment
was rightfully entered under the authority
of that act. The writ oi error to the court
of appeals of the state brought the validity
of that judgment into review, and the ques-
tion presented to that court was whether at
the tune it was rendered it was rightful or
not. If riffhtful the plaintiff therein had a
vested right which no state legislation
could disturb. It is not within the power of
a legislature to take away rights which have
been once vested by a judgment. Legislation
[184]may act on *8ubseqMent proceedinffs, may
abate actions pending, but when those ac-
tions have passed into judgment the power
of the legislature to disturb the rights cre-
ated thereby ceases. So, pjroperly, the court
of anpeals, m considering the Question of the
valiaity of this judgment, took no notice of
the subsequent repeal of the act under which
the judgment was obtained, and the inquiry
in this court is not what effect the repealing
act of 1894 had upon proceedings initiated
thereafter, or pending at that time, but
whether such a repeal devested a plaintiff in
a judgment of the rights acquired by that
juoffment. And in that respect we have no
doubt that the rights acquired by the judg-
ment under the act of 1882 were not dis-
turbed by a subsequent repeal of the stat-
ute.
Even if the repeal had preceded the judg-
ment in the trial court, or if in a proceeding
like this, equitable in its nature, the mere
taking of the case to the court of appeals
operated to vacate the decree, there would
■till remain a serious question. When the
act of 1871 was passed the coupon holder had
a remedy by writ of mandamus to compel the
acceptance of his coupons in payment of
taxes. The form and mode of proceeding
were prescribed by statute. (Ck>de Va. 1873,
p. 1023.) On January 14, 1882, the general
assembly passed the act providing a new rem-
edv for tne coupon holder. This act came
before this court in Antoni t. Greenhow, 107
U. S. 709, 774 [27:468,471], and was sus-
tained, the court holding that while it is true
that, "as a general rule, laws applicable to
the case which are in force at the time and
place of making a contract enter into and
form part of the contract itself, and 'that
this embraces alike those laws which affect
its validity, construction, discharge, and en-
forcement' {Walker v. Whitehead, 16 Wall.
800
314, 317 [21:357, 368] j, but it is equaUy
well settled that changes in the forms of ac-
tion and modes of proceeding do not amount
to an impairment of the obligations of a con-
tract, if an adequate iind emcacious remedy
in left." Upon this ground it was held thai
the new remedy being adequate and effica-
cious, the taking away of the old rieht of
proceeding by mandamus was valid, and
the coupon holder must be content with the
new remedy. Now the statute *creatingthi8[185j
new remedy *.vas. as we have seen, repealed
by the act of 1894. That act doe^ not in
terms revive the former remedy. Indeed,
the right to use the writ of mandamus in tax
cases was specifically taken away, after the
act of January 14, 1882, bv the act of Jan-
uary 26, 1882. It was said, however, in the
argimient of counsel that the former remedy
was one arising under the common law, and
that the settled law of Virginia is that when
an act is passed repealing an act creating a
statutory remedy ft operates to revive the
former common-law remedy. Insurance
Company of Valley of Virginia v. Barley*9
AdmW, 16 Oratt. 363 ; Booth v. The Oommon-
wealth, 16 Gratt. 619, and Moaeley, Trustee,
V. Broitm et al., 76 Va. 419. If this be still
the law of Virginia and applicable to the case
at bar, so that the repeal of the act of 1882
revives the former remedy by mandamus,
then it is undoubtedly true that new suits
can no longer be maintained under the act of
1882 and a party must proceed by manda-
mus. But that is a question yet to be settled
by the court of appeals of Virginia. It is
not decided in the case of Maury v. Common^
wealth, and, so far as we have been advised,
has not yet been determined by that court.
If it shall finally be held by that court that
the remedy by mandamus does not exist,
then it will become a Question for further
consideration whether the act repealing the
act of 1882 can be sustained. But it is not
necessarr now to determine that question,
inasmucn as the judgment in the trial court
was rendered, as we hare seen, prior to the
repealing act, and the right acquired by the
judgment creditor was not and could not con-
stitutionally be taken away.
The judgment of the Court of Appeals will
he reversed, and the case remanded for far-
ther proceedings not inconsistent with tliia
opinion.
Mr. Justice PeeUuMB disnentinff:
I dissent from the opinion and mdffment
of the court in this case because I ttdnE that
the ffround upon which the state court has
based its decision deprives this court of any
jurisdiction. The case having originated in
a state court, we *have no juriadiraon to re-[lS0]
examine its judgment unless there is soma
Federal Question involved therein, the deci-
sion of which by the court below was unfavor-
able to the claim set up, and its decision waa
necessary to the determination of the caaa,
or the judgment as rendered could not haw
been given without deciding it. Buetie t.
Bolles, 160 U. 8. 361 [37: 1111].
Jurisdiction is said to exist herein becauaa
of the alleged violation of the constitutional
178 V. a.
1898.
McCOLLOUGH Y. COMMOMWBALTH OF ViBGIMIA.
126-128
provision denying to any state the right to
pass any law impairing the obligation of a
contract.
In all the litigation arising in the state
courts, by reason of the subsequent legisla-
tion by Virginia upon the subject, the claim
was xnade, on a review cf the judgments in
this court, that the judgments of the state
courts had given effect to statutes which
were passed subsequently to the original cou-
pon statutes, and that the original contract
made by those statutes had been impaired
by reason of those subsequent statutes to
which effect was given by the jud^ents
of the state courts. It was the giving ef-
fect by the judgment of the court to the
subsequent statutes, which' it was alleged
impaired the contract, that gave jurisdiction
to this court to decide for itself whether
there was a contract, and, if so, what the
contract was, as a preliminary to the deci-
sion of the question whether the subsequent
statutes impaired the contract as construed
by this court. The cases in which this court
decides for itself, without reference to the
decision of the state court, what the contract
was, are cases where there has been, not only
subsequent legislation which is alleged to
impair the contract, but also legislation
which has been given some effect to by the
judgment of tJhe state court. Such is the
case of Jefferson Br€Mch Bank v. Shelly, 1
Black, 436, 443 [17:173, 177], and such are
all the other cases decided in this court upon
that subject.
If by the judgment of the state court in
this case no e£^ct has been given to any
statute passed subsequently to either of the
conpon acts, this court is without jurisdic-
tion to review tiiat judgment. Lehigh
Water Company v. Eaeion, 121 U. S. 388
[30: 1050] ; New Orleans Waterworks Com-
pany V. Louisiana Sugar Ref. Company, 125
U. S. 18 [31 : 607] ; St. Paul, M. d M. Rail-
way Co, V. Todd County, 142 U. S. 282 [35:
1014]; Central Land Company v. Laidley,
159 U. 8. 103 [40: 91] ; Bacon T. Teofas, 163
U.S. 207 [41: 132].
[127] *If there had never been any subsequent
legislation regarding these coupon acts, and
the highest court of the state had adjudged
that they were void as being in violation of
the Constitution of the state existing at the
tune of Uieir passage, of course there would
be no jurisdiction in this court to review
that judgment. And the state court might
have decided the case in different ways, at
one time holding the acts valid and subse-
quently holding them void, and still this
court would have no jurisdiction to re-ex-
amine the judgments of that court. This
would be true even if millions of dollars had
been invested in the bonds upon the strength
of the judgment of the state court first giv-
en holding the acts valid.
The cases above cited show that even if
. there has been subseouent legislation, if the
judgment of the state court does not give
that legislation any effect, and decides the
case without reference thereto, this court is
also without jurisdiction to review that
judgment
I do not say that in order to give this
172 IT. 8.
court jurisdiction, the state court must in
words allude to the subsequent legislatioa
and in terms give effect to it. It may be aa-
sumed that if the real substance and neces-
sary effect of the judgment of the state court
was the determination of a Federal question
or the giving effect to subseauent legislation,
this court would have jurisaiction to review
that judgment, notwithstanding the particu-
lar language used in the opinion. But when
the case before the state court could have
been decided upon two distinct grounds, one
only of which embraced a Federal question,
the sole way of determining upon which of
those flp*ounds the judgment waa rested
would be to examine the language used in
the opinion of the state court. If that
language showed the judgment was founded
wholly upon a non-Federal question, this
court would be without power to review it.
Whether the state court has decided this
case wholly without reference to subsequent
legislation can only be learned from its opin-
ion. To this extent it has always been
within the power of the state court to de-
termine the jurisdiction *of this court. If [188]
the former court chooses to decide a case up-
on a non-Federal question, when it might
have decided it upon one which was Federal
in its nature, the effect of such choice is to
deprive this court of jurisdiction, no matter
how erroneous we may regard the decision
of the state tribunal. The power is with
the state court in such cases to deprive us
of jurisdiction to review its determination,
and we are wholly without any power to
control its action in that respect. This is
what has been done, and all that has been
done in this case. The opinion of the state
court shows that the juogment went upon
the original and inherent invalidily of the
coupon statutes and its judgment in that
respect, as I shall hereafter attempt to show,
gave no effect to any subse<]^uent legislation.
That is the material ouestion in this case
upon which the jurisaiction of this court
hangs. Prior decisions of this court in
other cases holding the contract valid, where
we had jurisdiction to determine such cases,
can have no effect upon the question of our
jurisdiction to review the judgment in the
case at bar. Prior decisions in such event
constitute no sround of jurisdiction.
I concede, plainly and fully, the power of
this court to review a judgment of the state
court when effect has b^n given by that
judgment to subsequent legislation claimed
to impair the validity of a contract. But
that vital fact must appear in order to sup-
port the jurisdiction, and without it the ju-
risdiction does not exist, no matter how un-
porta^t the Question may be or how many
times it mav nave been heretofore decided.
To say tnat the duty is cast upon this
court to inquire whether a state has passed
a law impairing the obligations of a prior
contract is but to half state the case. The
inquiry must be further prosecuted to the
extent of learning whether the state court
has, by its judgment, g^ven effect to such
subsequent legislation, and, if it has not,
then no duty or right rests upon this court
to review the judgment.
891
128-llil ^Ul-IU^MK CuORT OP '
Howerer true it ma; be that in manj prior
eaaea this court hu held theie was a valid
contract created by tbe coupon atatutea, so
called, which could not be impaired by any
[IMleubsequent 'legislation, the fact remaiina that
unjeas such sulwequent legislation has been
given effect to by the jud^ent in this case,
there ii not the slightest shadow of ■ claim
for jurisdiction in this court to review that
judgment. Millions or hundreds of milliana
of dollars ma; have been invested in relianoe
upon a judgment of this court declaring the
law to be that there was a valid contract, and
yet a state court might in a eubMquent ac-
tion adjudge that there never was a valid
contract, because the statute which it was
claimed created it was in violation of the
state Constitution. If that judgment did
not, in effect, put in operation any subse-
quent legislation, the solemn adjudications
of this court in some former cases that the
contract was valid, could not affect the judg-
ment in question nor furnish ground for the
jurisdiction of this court to review that judg-
ment. This court is not intrusted with the
duty of supervising alt decisions of state
courts to the end that we may see to it that
such decisions are never inconsistent, contra-
dictory, or conflicting. We supervise those
decisions only when a Federal question aris-
es. It is said this court is not bound to fol-
low the last decision of a state court revers-
ine its prior rulings upon a question of the
validity of a contract, when bonds have been
issued and taken in reliance upon the deci-
sion of the state court adjudging the vatiditv
of the law under which the bonds were issued.
I do not dispute the proposition, but it has
nothing to do with this case. Where an ac-
tion has been brougbt under such circum-
stances in A Federal court, it has been fre-
quently held that such court was not bound
to follovr the latest decision of the state
court which invalidated the law under which
bonds had been issued, at a time when the
state court had held the law valid. In such
case the Federal court would follow the prior
decision of the state court and apply it to all
the securities which had been issued prior to
the time when the state court changed its de-
cision. But such A case raises no <|uestion
of jurisdiction in this court to review the
judgment of a state court. When that ques-
tion of jurisdiction does arise, the right of
review cannot rest upon the fact that the
state court has refused to follow its former
decision, and, on the contrary, has directly
|lSO]*overruled it. The jurisdiction of this oourt
to review the state court in this class of eaaea
is confined in the first instance to an inquiry
as to the existence of subsequent legislation
upon the subject, and if none has been en-
acted to whidi any effect has been given by
the state court, this court cannot review the
decision of the state tribunal, even though
that decision makes worthless a contract
which it had prior thereto held valid.
The cases of Otlpckt v. Oity of Dubuque,
1 Wall. ITS [IT: I>20], and Ohio & U. Rail-
road Company v. UcClurt, 10 Wall. 611 [19:
997]. illustrate this difference between the
powers of this court when reviewing a judg-
ment of a lower Federal court and its now-
392
188b
Ukited Btatkb y« Raklbtt & Slo^K.
lol-ldi(
in this case has never been before this court.
Li some of the former cases this court de-
cided the general proposition that the coupon
Iwislation was valid and created a contract.
After it had thus decided, a case came before
it where a subsequent statute provided that,
in the case of the school tax, coupons should
not be received in payment thereof. The
state court had decided that the coupon stat-
ute was invalid so far as it related to the
school tax, because the Constitution in exist-
ence when the coupon acts were passed re-
quired in substance that such tax must be
paid in lawful money, and consequently the
coupon act was unconstitutional as to such
[ISSjtax. This court *affirmed that judCTaent
Vashon v. Cfreenhoto, 135 U. S. 662, 713 [34:
304, 320]. Part of the coupon statute was
thus held invalid by the state court and also
by this court.
The state had also passed a subsequent
statute providing that the tax for a license
to retail liquor should be paid in lawful
money. This court (affirming in that re-
spect the court below) held that act valid, be-
cause it was in effect a regulation of the li-
Sor traffic, and the state could at all times
jisltte upon that subject, notwithstanding
the coupon acts and the alleged contract
therein created. Huclesa v. Ohildrey, 135 U.
S. 662, 709 [34 : 304, 319]. Both of these de-
cisions were made subsequently to the time
when this court had held the coupon statute
▼slid, and that a valid contract was therein
created.
The state court has now decided in this
ease that as the coupon acts were invalid
IS to the payment of the school tax in cou-
pons (a proposition concurred in by this
court), the result was that the whole acts
were invalid, that they could not stand part-
ly valid and partly void, and that the whole
coupon scheme was unconstitutional. This
phase of the controversy has never before
reached this court, and the court has there-
fore never before decided this particular
point It has said, generally, that
the legislation was valid, but it
said so only in cases where the
general power of the legislature to enact the
coupon statutes was in question, and it has
nerer decided squarely the point that if the
coupon acts be unconstitutional in some
particulars they are nevertheless valid in
all otiiers. The fact is alluded to simply as
matter of history.
But even if it had, that fact confers no
Jurisdiction upon this court to review this
judgment, if it otherwise is without it. In
other words, because this court has hereto-
fore decided the question of the validity of
the contract, in cases where it had jurisdic-
tion, that fact furnishes no foundation for
its jurisdiction in this case, where the state
court has given no effect to any subsequent
legislation. Prior decision is not the
foundation of jurisdiction. What I say is,
that whether uiere have been two or more
decisions, is wholly immaterial ; jurisdiction
cannot be taken because it is said that in a
.. second or subsequent decision the state court
^^^Jdid not follow its first decision *in regard to
the contract, although that decision had been
172 IT. 8.
affirmed, as to that point, by this court. In
this decision now before us it has given no
effect to subsequent legislation, and not hav-
ing done so, but simplj^ decided a question
of local law regarding its own Constitution^
the state court has given no decision which
raises a Federal question, and therefore none
that this court can review.
Under all the circumstances I can only see
a determination to take jurisdiction in this
case simply because this court, as it is said,
has in cases in which it had jurisdiction de-
cided the (}uestion differently from the deci-
sion in this case by the state court. That
^ound does not ^ve jurisdiction, and that
is the only ground that does exist.
The writ of error should be dismissed for
want of jurisdiction.
UNITED STATES, Appi.,
v.
RANLFrr & STONE.
(See S. C. Reporter's ed. 188-148.)
Appraiser of imported goods — when ap*
praisemeni is vftlid — duty on American
hags — foreign-made hags,
1. The judgment of an appraiser atter actual
examination, that Imported goods are not a»
described, but fall within a different classifi-
cation, must stand as against the Importer,
unless reversed on reappralsement, or by the
board of general appraisers on protest filed.
2. An appraisement Is not invaltd as against
the Importer because the examination was not
made in accordance with V. S. Rev. Stat. I
2901, which is Intended for the benefit of the
government.
8. The separation of American-made bags,
which are free from duty, from foreign-made
bags Imported In the same bales, should be
made by the Importer if he wishes to obtain
the exemptions on the former, and he cannot
require the separation to be made by the gov-
ernment.
4. The prima fade showing that bags Imported
are of American manufacture is overturned
when It appears that foreign bags in large
numbers are Included in the same bales witl»
those of American make.
[No. 20.]
Argued and Suhmitted April tO, 1898, Re-
stored to docket, and certiorari to hring up
entire record ordered April 25, 1898. Suh*
mitted Ootoher 11, 1898, Decided Decemher
5, 1898.
ON WRIT of certiorari to the United
States Circuit Court of Appeals for the-
Fiftli Circuit, after certification of questiona
to this court, to review a decree of the Cir-
cuit Court of the United States for the Fifth
Circuit reversing the decision of the board
of general appraisers and decreeing that
certain duties paid by Ranlett & Stone
on imported ba^s be refunded and that
the liquidation of duties before made be set
aside and the duties reliquidated. Reversed^
witli directions to enter a decree for the re>
funding of one fourth of the duties paid.
ia4-i;j7
SUP&EICK COUBT OF THB UNITBD STATBb.
Oct. Tsbm,
)
Statement by Mr. Chief Justice Fullers
[184] ^Ranlett & Stone imported at the port of
New Orleans, from Liverpool, EnglancL 2,926
bales of grain baj^s, known aa cental iMige,
each bale containing one thousand batfs, or
2,925,000 in all, by sereral TesseU, the en-
tries running from August 14, 1893, to Jan-
uary 15, 1894.
The bags were entered free of duty under
paragraph 493 of the act of October 1, 1890
(26 Stat. chap. 1244, p. 603), as bags of
American manufacture returned to the
United States.
That paragraph is as follows:
''Articles the erowth, produce, and manu-
facture of the l^ited States, when returned
after having been exported, without having
been advanced in value or improved in condi-
tion by any- process of manufacture or other
means; casks, barrels, carbojrs, bags, and
other vessels of American manufacture ex-
ported filled with American products, or ex-
ported empty and returned filled with for-
eign products, including shooks when re-
turned as barrels or boxes; . . . but
proof of the identity of such articles shall
be made, under general regulations to be pre-
scribed by the Secretary of the Treasury;
and if any such articles are subject to
internal tax at the time of exportation
such tax shall be proved to have been paid
' before exportation and not refunded: Pro-
vided, That this paragraph shall not apply
to any article upon which an allowance of
drawback has bc«n made, the reimportation
of which is hereby prohibited except upon
J payment of duties equal to the drawbacks al-
owed. . . ."
[186] *The general resnilations prescribed by the
Secretary of the Treasury under this para-
graph contained the following provisions:
''Art. 331. Articles of the growth, produce,
and manufacture of the Umted States, ex-
ported to a foreign country and returned
without having bMn advanced in Talue or
improved in condition, by any process of
manufacture or other means, and upon which
no drawback or bounty has been allowed, are
entiUed to entry free of dutv, but this priv-
ilege does not extend to articles exported in
bond from a manufacturing warehouse and
afterward returned to this country. The ex-
portation must be bona fide, and not for the
purpose of evading any revenue law.
"If returned to the port of original expor-
tation, the fact of regular clearance for a
foreign destination must be shown by the
records of the customs, . . . and by the
declaration of the person making the entry.
But when the reimportation is made into a
port other than that of original exportation,
there shall be required, in addition to the
declaration , a certificate from the collector
and the naval officer, if any, of the port,
where the exportation was made, showing the
fact of exportation from that port.
M.
'Art. 332. To guard against fraud, and to
insure identity, the collector shall require,
in addition to proof of clearance, the pro-
duction of a statement, certified by the
894
proper officer of the customs at the foreign
port from which the reimportation was
made, and authenticated l^ thie consul of the
the United States, that such merchandise
was imported from .the United States in the
condition in which it is returned, and that
it has not been advanced in valfie or improved
in condition by any process of manuiacture
or other means."
"Art. 335. Casks, barrels, carboys, bags,
and vessels of American manufacture, ex-
ported filled with American products, or ex-
ported empty and returned filled with for-
eign products, including shooks when re-
turnea as barrels or boxes, *are free of dutaes,[186]
but in case drawback has been allowed upon
the exportation of any such articles, they
shall on importation be subject to a duty
eoual to the arawback. Proof of the identily
of such articles must be made, and if any of
them were subject to internal tax at the time
of exportation, such tax shall be proved to
have oeen paid before exportation and not
refimded, or duty will accrue.
..... . *
"Art. 336. Before entry, the following
proof shall be re<)uired by the collector :
'*Pir8t, A certificate as follows from the
shipper in triplicate, attested bv a consul or
other proper officer authorizea to take affi-
davits, as follows :
"I hereby certify, under oath, that, to the
best of my knowledge and belief, the t— —
hereinafter specified, are truly of the manu-
facture of the United States, t —or were
exported from the United States, filled with
t , and that it is intended to reship the
same to the port of , in the United
States, 9 on board the , now ly-
ing in the port of
I further certify
that, to the best of mv knowledge and belief,
the actual market value of the articles here-
in named, at this time and in the form in
whidi the same are to be exported to the
United States, is as follows ti ^*
"Sworn to before me, this — day of
*'8eoond, A declaration in the entrj by the
importer of the name of the exporting ves-
sel, the date of the ship's manifest, and the
marks and numbers on the articles for which
free *entry is sought. If the exportation wa8[lS7)
made bv railroad, the way bill may be sub-
stituted as evidence for tiie manifest. The
mark and numbers should be such as to
prove beyond any reasonable doubt the iden-
tic of the article with those entered on the
outward manifest. . . .
•tNsjne ths artidea
**tlt ths paektffss are empty. Insert state-
ment of the facts, as *and were exported from
the United States filled with the prodoes of that
comitry.*
*'|If the packsffee contain foreign merclisii-
dlse. Insert 'filled with* and a description of the
merchandise they contain.
«*ttThls blank Is to be filled only when tke
merchandise contained In the packafee la 8iib>
ject to a daty ad valorem.**
17« V. M.
i»d.
United Btatbs y. IUmlbtt & Btonb.
187>140
Third, An affidavit l^ the importer, at-
tached to the entry, that the artides men-
tioned tiierein are to the hest of his knowl-
edge and belief truly and bona fide manufac-
tures of the United States, or were bags ex-
ported therefrom filled with grain."
"Fifth, Verification after examination, by
the appraiser, with an indorsement stating
whether the articles are of domestic or of for-
eign manufacture.
'*Sach bags and other coverings exported
to be returned should, when practicable, be
marked or numbered, in order that they may
be identified on their return; and the marks
or numbers should appear on the shipper's
manifest upon which tney are exported. '
When the respective shipments arrived in
this country free entry was made by the im-
porter and evidence furnished regarding the
right to free entry and the character of the
gwds. Samples of the respective invoices
were then sent to the appraiser's office and
examined as follows :
From one entry of 600 bales, 70 were or-
dered to the appraiser's store and 18 of that
number were opened by him;
Of another entry of 630 bales, 43 were or-
dered to*the store and 19 were opened;
Of a third entry of 325 bales, 38 were or-
dered to the store and 13 were opened;
Of a fourth entry of 850 bales, 85 were or-
dered to the store and 16 were opened ;
Of a fifth entry of 300 bales, 21 were or-
dered to the store and 14 were opened;
Of a sixth entry of 100 bales, 100 were
ordered to the store and 10 were opened;
And of a seventh entry of 100 bales, 100
were ordered to the store and 10 were
opened.
[138] *I%e examination of the bales was made
by the appraiser, assisted by an examiner.
The appraiser reported as to each importa-
tion that the bales contained bags of foreign
manufacture, subject to duty, and thereupon
the collector, by direction of the Treasury
Department, at the request of the importers,
in order to obtain possession of the goods,
made impost entries, assessing duties at the
rate of two cents per pound on the entire
consignment, under paragraph 366 of the act
of 1890, 26 Stat, at L. 593, as "bags for grain
made oif burlaps." The importers protested
tgainst the '^decision, liquidation, and rate
and amount of duties assessed," on the
ffrounds: lliat the bags were entitled to
free entry under paragraph 493 of the free
list as bags of American manufacture, ex-
ported'filled with American products; that,
if not free under that paragraph, they were
entitled to free entry under the provisions
of section seven of the act of February 8,
1875, and the regulations for the free entry
of bsgs other than of American manufacture,
prescribed by the Secretary of the Treasury
thereunder; and that the goods were not
fairly and faithfully examined by the ap-
praisers; that the assessment of two cents
per pound because the bales contained a mix-
ture of foreign and American bags was in-
correct, and that the soods being all of one
value, whether of fore&n or American make,
172 IT. 8.
did not come under the provisions of section
2910 of the Revised Statutes.
The Board of General Appraisers sus*
tained the action of the collector. General
Appraisers' Decisions, No. 2623.
The importers applied for a review of this
decision to the circuit court of the United
States for the fifth circuit, which, without
taking any additional testimony, reversed
the decision of the board, and entered a de-
cree that the duties paid by Ranlett ft
Stone, namely, two cents per pound on the
several consignments of bags, enumerating
them, be refunded; "that the examination
heretofore made of said bales of bags is void ^
and not in conformity to law or the regula- *
tions of the Treasury Department, and any
liquidation of duties basea on said examina^
tion is illegal and void, and the liquidation
of duties heretofore made be set aside, and
the money ^received from Ranlett ft Stone[139]
as duties be refunded as aforesaid; and the
court doth further order and decree that the
collector direct a re-examination of said
bales of bass to be made according to law,
and on such re-examination to rdiquidate
the duties which may be lawfully due there-
fi
on.
The United States appealed from the de-
cree to the circuit court of appeals, which
certified certain questions to this court,
whereupon a writ of certiorari was issued
and the entire record brought up.
Messrs, Henry IC Hoyt, Assistant At-
torney General, and W. J. Hnsliea for ap-
pellant on firat and second argument and
submission.
Mr, WilUam A* Maury for appellees
on first argument and submission.
Messrs, THomas J. Semmea and Will-
iam A* Maury for appellees on second sub-
mission.
Mr. Chief Justice Fuller delivered the
opinion of the court:
*In respect of these importations, it must[189]
be assumed that the bags were not in fact
all of American manufacture or substantial-
ly so.
The opinion of the General Appraisers
stated that "it was admitted that there were
bags of foreign manufacture and of Ameri-
can'manufacture, all indiscriminately min-
gled together, no attempt beinff made on en-
try or afterwards to separate from these
enormous totals of goods of the same class
those claimed to be relieved from duty ac-
companied by the proof establishinff such in-
dulgence." The examiner testified that he
"in some cases examined every bale of the
whole entire invoice;" that he used his Judg-
ment "to try to open sufficient to get at the
classification of the goods;" and that where
he opened the bales and examined them he
found of foreign make in general "from ser-
enty-five to eighty per cent." Indeed we do
not understand the importers to deny that
these importations contained foreign-made
bags.
Under title 33 of the Revised Statutes a
duty was imposed on min bags, except
those manufactured in the United *State8[140]
395
14U-14J SuPKum ConuT of •
Mid exported containing American products,
declaration having lieen m&de of intent to
return the same empty. R. 8. SI 2504, 2fi05.
Bj lection seven of tbe act of Februarj B,
1675 (le Stat, at L. 307, 308, chap. 30), it
was provided "tfaat bags, other than ot
American manufacture, in which grain shall
hare been actually e;cported from the Unit«d
States, may be returned empty to the United
States free of <iuty, under regulations to be
prescribed b^ tbe Secretary of the Treasury."
Section six of the tariff act of March 3,
18S3 (22 Stat, at L. 488, 489, chap. 121),
provided that on and afUr Jnly I, 1SS3,
"the following sections shall constitute and
be a substitute for title 33 of tbe Revised
Statutes." The provision in regard to
empty returned bass of American manufac-
ture was re-enacted in substance in the free
list, but that of section seven of the act of
1875 was omitted, and bags, excepting b^-
ging for cotton, were made dutiable.
Paragraph 493 of the tariff act of 1690 re-
tained the same exemption from duty upon
returned empty bags of American manufac-
ture and was silent in regard to returned
empty foreign-made bags which were filled
when exporUd.
In view of this l^slation, acUnr Attor-
ney General Maxwell advised the ^cretary
ot the Treasury, July 20, 1893. that the pro-
vision of section seven of the act of 18TG, ex-
empting foreign-made grain hags, was re-
Cled. 20 Opa, Atty. Gen. 630. Thin rul-
^ was followed and approved by the Treas-
ni7 Department, August 22, 1893, Syn. T.
D. 14,281; and the same ruling was made
by the Board of General Appraisers, Febrn-
ary 3, 1894, in Kent v. United Stalet, O. A.
2448, as tt had been in prior decisions; by
Judge Lacombe, in effect, April 21, 1891, in
Re atraui. 40 Fed. Rep. 622; and speciflcally
by Judge Townaend in Kent v. United States,
68 Fed. Rep. 630, June 2, 1805. The tatter
case was carried to the circuit court of ap-
peals for the second circuit and the decree
alTirmed, April 7, 1890, 38 U. S. App. SS4.
The rule applied was that "when a later
statute is a complete revision of the subject
to which the earlier statute related, and the
new legislation was manifestly intended as
|14I]a substitnte *for the former legislation, the
prior act must be held to have been re-
Cled;" and the opinion of Judge Shipman
rea nothing to be added in eupport of the
conclusion reached.
Foreign-made bags, then, being dutiable
at two cents per pound under paragraph 3Bfi
of the act of October 1, 1800, and these bales
being permeated with bags of foreign manu-
facture, the appraiser reported all the bags
OB dutiable and the collector so assessed
But the fmporter* insist that this aseess-
ment was illegal beeanse of the insnfflciencj
I or invalidity of the examination; or of the
absence of a statute specifically applicable;
or because It was not confined t^ foreign-
made bags.
Paragraph 4D3 required proof of the iden-
tity of articles entered us exempt thereunder,
— ^ .wi — i — 1 — epeat«d in the regn-
I required "veriflca-
1896
Unitbd States y. Ranlbtt ft Btohb.
14^145
grdtf the padcage so designated to the pnb-
IIr stores tor examination ; and if any pack-
age he found by the appraisers to contain any
trtide not specified m the invoice, and they
or a majority of them shall be of opinion
tbat such article was omitted in the invoice
with fraudulent intent on the part of the
shipper, owner, or asent, the contents of the
entire padcase in which the article may be,
shall be liable to seizure and forfeiture on
lliSJconriction thereof before anv *court of com-
petent jurisdiction; but if the appraisers
shall be of opinion that no such fraudulent
Intent existed, then the \ alue of such article
shall be added to the entry, and the duties
thereon paid accordingly, and the same shall
be delivered to the importer, agent, or con-
signee. Such forfeiture may, however, be
remitted by the Secretary of the Treasury on
the production of evidence satisfactory to
him that no fraud was intended."
Assuming that fraudulent intent was lack-
ing, these bags were not held for forfeiture,
but the collector, in effect, added them all to
the entries, leaving it to the importers to
prefer such claim to exemption as they might
consider they were entitled to.
Section 2901 was brought forward from
section 32 of the act of March 2, 1861 ( 12
Stat at L. 197, chap. 68), and on December
28, 1868, Mr. Secretary McCulloch made the
following ruling.
At that time the law imposed a duty of
twelve cents per pound on all woolen rags,
and admitted free rags composed of cotton
and linen and intended for the manufacture
of paper, and twenty-one bales of rags
brought into the country from Canada and
containing at least forty per cent of woolen
rags, though imported as containing rags
for the manufacture of paper, had been
seized. The matter being referred to the
Secretary, he ruled in a letter addressed to
tbe collector of customs at Rochester as fol-
lows: "If you are satisfied that there was
no intention on the part of the importers to
conceal the dutiable rags by mingling them
with others free of duty, you will not hold
tbem for condemnation, but will allow the
parties to separate such as are dutiable from
such as are not so, and make entry accord-
""g^Ji paying the proper duty on the form-
er class. These instructions are to be con-
sidered as applicable only to such bales as
contain so large a proportion of woolen rags
as to render it worth while to collect a duly.
Forty per cent of woolen rags is, however,
n>uch too large a percentage to be allowed
entry as free goods."
Again, in July, 1890, it was held by the
Treasury Department that where cargoes of
anthracite and bituminous coal were im-
ported, so mixed as to render it impracti-
ll44]cable to 'separate the free from the dutiable
coal for the purpose of the accurate weigh-
ing of each kind, the whole cargo should be
treated as dutiable. T. D. 10,098, Syn. 1890.
The general policy of the law is indicated
in the statutory requirements that where
Roods of different qualities or different
values are mingled, or are composed of ma-
terial of different values, the highest rate of '
172 V. S.
duty shall be imposed, as in the familiar in*
stances of the classification of articles com-
posed of two or more materials, at the rate
of duty charged on the component material
of chief value; in section 2911 of the Revised
Statutes, that whenever articles composed
wholly, or in part, of wool or cotton, of sim-
ilar land, but different quality are found in
the same packa^ charged at an i^erage '
price, the appraisers shall adopt the value
of the best article as the average value; in
section 2912, that when bales of wool of dif-
ferent qualities are embraced in the same
invoice at the same prices whereby the aver-
age price is reduced more than ten per
centum below the value of the bale of the
best quality, the value of the whole shall be
appraised according to the value of the bale
of the best quality, and that no bale, bag, or
package shall be liable to a less rate of duty
m consequence of being invoiced with wool
of lower value; and in section 2910, that
"when merchandise of the same materiid or
description, but of different values, is in-
voiced at an average price, and not other-
wise provided for, the duty shall be assessed
upon the whole invoice at the rate to whinh ,
the highest valued goods in such invoice are
subject,"
Numerous provisions exist in the statutes
and regulations designed to i)rotect the Pub-
lic Treasury from the bringing in of goods
at a less rate of duty than they ought to pay
under cover of association with goods prop-
erly subject to the lower amount; and the
protection intended to be secured ought, on
principle, eqaally to be accorded in respect
of dutiable goods invoiced indiscriminately
with free goods.
Of these seven importations, according to
the importers, all the bales in two of them,
and ten per cent of those in three of them,
were ordered to the appraiser's store, while
as to two of them, the number taken for ex-
amination fell a little *short of ten per cent; [146]
and of all these bales, one hundred were
opened. It appeared also that all the mer-
chandise covered by all the invoices was of
the same character and description. Since
the bales that were opened were found to
contain foreign-made bags in large numbers
in importations claimed to consist solely of
American made bags, it is not easily seen
how the examination of a larger num-
ber of bales would have affected the result
arrived at by the appraiser. And, as before
observed, if the importers believed that they
had sustained injury because more bales
were not opened, they should have applied
for a re-examination, and they might have
produced evidence before the Board of Gen-
eral Appraisers to maintain their claim that
the bags were American made notwithstand-
ing the return of the examiner and the re-
port of the appraiser, or they might have
protested on the ground that the duty should
have been levied only on part thereof, and
tendered evidence to support that conten-
tion.
If they had furnished evidence of the num-
ber of bags of domestic manufacture and the
number of bags of foreign manufacture, or
3© T
111^148 ' SUFRBUB CODBT OP 1
lud Mnisht > re-eiAmi nation with tbe vievr
to an aajustmcnt by proportion, and thftt
had been had, then the collector mi^ht have
asuased tbe foreign bags so ascertained and
ftdnitted the American bags free from duty.
But It was for the importers, and not for
the Kiivemment, to make the separation on
which BQch a claim for relief would have
rested, or, at least, to have invoked the rule
of proportion based on a re-examination.
The importer* contended that thej had
complied with the law and the Treasury reg-
ulations bjr furnishing certain statements of
the shippers as to the origin of the goods,
and certain certi flea tea as to their exporta-
tion filled with wheat, and that this prima
facie evidence of the bags being of the manu-
facture of this country had not been dis-
proved. Dut if it were admitted that these
papers made a prima facie showing, that
showing was oTeitumed when it appeared
The remedies provided by the act of Juo^
10, 1890. furnish the equivalent for the ac-
[lMI]tioD ogainvt the collector which was •orig-
inally the remedy for an illegal exaction of
duties {United Statet v. Pastavant, IGO U. S.
IB 142: 844]; Bchoenfeld V. Eendriclu, 152
U. S. n91 [33: eOl]) ; and aa in that action,
BO in thiB proceeding, the importer must es-
tablish the ill«ality in order to recover back
duties paid under protest ; and this, in a case
like the present, involves, in substantiating
that contention, the making proof of the
identilr of the merchandise. Eanuhaw v.
CadicaUd«r, 145 U. B. 247, 262 [30: 093,
699] ; Erhardt v. SehrotAer. 100 U. S. 12S
[89; 901.
Moreover, where merchandise liable In
large part to duty is entered as exempt there-
from, the collector has the right to aaaume
that the mingling was intentional and with
design to evade the revenue laws ; and hence
even where the confusion of goods is acci-
dental or not fraudulent in fact, and forfeit-
ure is not incurred, it yet devolves on the im-
porter to show what part of the whole he
contends should not be taxed.
But these importers planted themselves on
the ground that all these bags were exempt
under the act of 1876; or, if not, that the as-
sessment was wbolly void for insufficient ex-
amination; or illeEal except as to foreign-
made bags, which it devolved upon the gov-
•minent to segreMt« from tbe common moss.
In the case of Kent, already referred to, it
was decided by the Board of Qeneral Ap-
praisers, February 3, 1B94 (O. A. 2448),
that the act of February S, 1B75, was not in
force, and a reliquidation was ordered for a
elassiflcation according to the proportion of
foreiiro and American bags found in two
bales which by agreement had been examined
as representative boles, bog by bag. On the
second of Mav, 1894 [Q. A. 2B10) , the Board
of Oeneral Appraisers held, in the matter
of Balfour, Guthrie, A Company, that inas-
much as bags made of burlaps were dutiable,
except such as are described in paragraph
18W.
Habkbadbb y. Wadlbt.
149-100
L R. HABKRADER, Sheriff of Wythe Coun-
ty, Virginia, Appt.,
V.
H. G. WADLET.
(8m & C 9ep<»ter'8 ed. 148-170.)
Unal order diaoharging prisoner from oi»*
tody OH writ of habeas oorpua, appealable
—final order — infunotion against oriminal
pfoseouiioi^-~jwr%sdiction of court of equity
-staying proceedings in state court in
criminal case.
1 A final order OTermllng the retam of the
iheriff end discharging a prisoner from cus-
tody on writ of habeas corpos, made at a
stated term of the circuit court of the United
States, Is appealable, although tke original
order was made at chambers.
1 An order discharging a prisoner on writ of
habeas corpus, which. If yalld, takes away his
custody from the state court and puts an
end to his Imprisonment under the process
of that court, is final for the purpose of an
appeal to this court, although he is dis-
charged only pending an injunction.
1 An injunction against a criminal proeeen-
tkm in a state court under a yalid state law,
of a bank offloer for embesalement, cannot be
granted by a Federal court because It had
' preriously obtained Jurisdiction in equity
eases in which a recelyer of the bank had been
appointed and the cItII liability of such offl-
oer was In litigation.
4. A court of equity, although haying Jurisdic-
tion oyer person and property in a case pend-
ing before it, is not thereby yested with Juris-
diction oyer crimes committed In dealing with
taeh property by a party before the ciyll suit
was brouc^t, and cannot restrain by injunc-
tion proceedings regularly brought in a crim-
inal court haying Jurisdiction of the crime
and of the accused.
6. A circuit court of the United States sitting
In equity In the administration of ciyll reme-
dies has no Jurisdiction to stay by Injunction
proceedings pending in a state court in the
name of the state to enforce the criminal
lawi of such state.
[No. 41.]
Argued October 17, 1898. Decided December
5, 1898,
APPEAL from an order of the Circnit
Court of the United States for the West-
ern District of Virginia discharging H. G.
Wadley, a prisoner, from custody, on writ of
habeas corpus. Reversed and cause remanded
with directions to restore the custody of
said Wadley to the sheriff of Wythe Coun^,
Virginia.
Statement hj Mr. Justice Sl&irast
In the circuit court of the United States
^r the western district of Virffinia, one H.
^Yj. Wadley filed a petition, signM *aDd ewom
to Auffust 10, 1806, praying for the allow-
uoe of a writ of habieas oorpui. The peti-
tion was as follows:
To the Honorable Circnit Court of the United
Statee in and for the Western District of
Virginia^ at Abingdon, Va., Fourth Cir-
cuit
Tour petitioner, H. Q. Wadley, respect
I7«U. £ ^
fully represents and shows to this honorable
court that he is a citizen of the United States
of America and a citizen of the state of North
Carolina, and a resident of the city of Wil-
mington in that state; that he is unjustly
and unlawfully detained and imprisoned in
the county lail of Wythe county, Va., at
Wytheville, Va., in the custody of I. R. Harlc-
rader, sheriff of said county, and as such
the warden and keeper of said Jail, by virtue
of a warrant or oraer of commitment made
by the county court of Wythe county, Va.,
at Wytheville, Va., on Monday, the 10th day
of August, 1806, a copy of which order or
warrant of oommitment is hereto annexed*
marked Exhibit "A."
Your petitioner would now show that on a
petition filed by him before the Honorable
Charles H. Simonton. United States Circuit
Court Judffe for said fourth circuit, em-
bracing said western district of Virginia, on
the 6th of August, 1806, the said honorable
judge, Simonton, enterea an order on said
petition allowing it to be filed in the equity
cause of H. G, Wadley v. Blount d Boynton
et als., pending in said court, and on said
petition, duly verified and sustained by affi*
davits, the said honorable judse, Simonton,
on said 5th day of August, 1806, in accord-
ance to the prayer of said petition, granted
an injunction against Robert Sayers,uie com-
monwealth's attorney of Wythe countv, Va.,
J. A. Walker and C. B. Thomas, special pros-
ecutors, and the creditors embraced in said
petition, together with their counsel, from
all further proceedings in said coun^ court
of Wythe upon an indictment obtained
against the said H. Q. Wadley in said county
court on the 16th day of May, 1804, and es-
pecially from exacting or requiring any bail
or any commitment to imprisonment of said
H. G. Wadley on said indictment in said
county court.
A certified copy of the said petition which
was presented *to Judge Simonton on the 5 th [150]
of August, 1806, is herewith filed, marked
Exhibit "B", and a certified copv of the
said order of Judge Simonton of the 5th of
August, 1806, on said petition is likewise
herewith filed, marked ifxhibit ''C."
Your petitioner, H. Q. Wadley, would fur-
ther show that heretofore, to wit, on the
31st of January, 1805, on an injunction
theretofore awarded by him to your petition-
er in his case of H, Q, Wadley v. Blount d
Boynton et als,, in this court, by the Honora-
ble Nathan Goff, he, by a decree of that date,
fully sustained the contention of ^our peti-
tioner by refusing to dissolve said injunction
and oontinuinff it in full force, and by said
decree enjoined and prohibited all further
proeecution of said indictment in the county
court of Wythe coimty, Va., as shown by
copy of the said decree and the opinion of the
Honorable Nathan Gk>ff, herewith filed,
marked Exhibit "D."
Tour petitioner had hoped that after this
final decree in the United States circuit court
by the Honorable Nathan Qoff on said injunc-
tion, prohibiting all further prosecution of
said indictment, that the order of that hon-
orable court would have been obeyed; but
that was a vain conjecture, as the said Robert
399
100-158
Supreme Coubt of the United STATisUi.
Oct. Tehk,
I
Sayers, commonwealth's attorney of Wythe
«uanty, Va., and said special prosecutors, J.
A. Walker and C. B. 'thomas, persisted and
continued, from term to term or from time
to time, in calling up said indictment in said
county court, and asking for a continuance
of the said indictment and for the conmiit-
ment of the said H. Q. Wadlev to the county
Jail of Wythe county, and he was bailed
with sureties for his appearance before the
said county court to appear on Monday, the
10th of August, 1896, being the first day of
the August term of the said county court.
Your petitioner would now show that not-
withstanding the fact that the honorable
Judge, Simonton, as aforesaid, did on the 5th
of Auffust, 1800, enter said order especially
forbidding any further order in said case in
said court except a mere order of continu-
ance, and although copies of the said order
were duly execute on said oonmionwealth at-
torney, Kobert Savers, and on said special
prosecutors, J. A. Walker and C. B. Thomas,
and all of the creditors named in said peti-
|161]tion and upon their counsel *of record bjrtho
marshal for the western district of Virginia;
which order was duly executed on Saturday,
the 8th of August, 1896 —
Your petitioner, H. G. Wadley, would now
show that in flagrant and contemptuous vio-
lation of both of the orders named, that of
the Honorable Nathan Goff, of the 3 1st of
January, 1895, prohibiting all further prose-
cution of said indictment, and in violation
likewise of the said order of the Honorable
Charles H. Simonton of the 5th of August,
1896, upon the calling of the said indictment
this day in said county court of Wythe
county, Va., the said commonwealth's
attorney and one of the special prose-
* cutors asked for a continuance and stated
that they had nothing to do with the ques-
tion of bail or with the question of the
commitment of petitioner, but that that was
the duty of the court, and thus indirect-
ly accomplished what the order of Judge
Simonton in express words prohibited, for the
said commonwealth's attorney and special
prosecutors, instead of asking a compliance
by the said county court with the order of
Judge Simonton, indirectly asked the court
to commit him by saying it was the duty of
the court to do so, and thereupon W. E. Ful-
ton, the jud^e of the county court of Wythe
county, Va., m violation of said orders of the
United States court, did order the said peti-
tioner, H. G. Wadley, to be committed to the
sheriff of Wythe county, to keep and hold
him over to answer said indictment, which is
now enjoined by the said United States court,
and your petitioner is now in the custody of
the sheriff of Wythe county, at Wytheville,
who is ew officio tne warden and jailer of said
county, and your petitioner is thus deprived
of his personal liberty by the said court on
its own motion committing petitioner to the
custody of the jailer of Wythe county, Va.,
procured as aforesaid.
Petitioner avers that the said indictment
upon which petitioner was committed was il-
legally and improperly obtained, in violation
of petitioner's rights as a citizen of the Unit-
ed States, by the counsel for the said credit-
400
ors having themselves summoned before th«
grand Jury of the county court of Wythe
county, Va., on the 16th of May, 1894, and
carrying *before the grand jury and readin^[162]
to them a copy of the depdsitioii of your peti-
tioner, which had been taken of petitioner in
an equity suit of Blount d Boynton et aU, v.
H. Q, Wadley f et ala,, and thus indirectly by
said record or deposition from the United
States court taken in a cause in that court
indirectly required petitioner to testify
against himseli in a criminal case, and upon
the mere copy of said deposition of petition-
er, illegally taken from the files of the said
cause in the United States court and read to
said ffiand jury of Wythe county, petitioner
was indicted. A copy of said indictment is
fully set forth, with said exhibit, along with
the petition filed on the 5th of August, 1896,
and is here referred to as a part of this peti-
tion.
Petitioner avers that hit term of impris-
onment, now complained of, began on the
10th day of August, 1896, at 12 o'clock m.,
and that such imprisonment still continues,
and that he is now in the custody of the said
sheriff, as such jailer, at Wytheville, Va.
Your petitioner will now show that his de-
tention and imprisonment as aforesaid is il-'
leg&l in this, to wit :
First. That this court, by two decrees, that
of Judge Goff of 3 1st of January, 1895, as
also by the second order of Judge Simonton
of 6th of August, 1896, declares and adjudi-
cates the prior jurisdiction of the said United
States court, both of the person of your peti-
tioner, and also of the subject-matter of the
controversy and of the issues involved in said
indictment, and that said prior jurisdiction
of the said United States court renders such
detention and imprisonment of prisoner by
said county court ill^al.
Second. That, as stated by the Honorable
Nathan Croff in his petition filed with his
order of the Slst of January, 1895, in the in-
junction case, the indictment against peti-
tioner in said county court of Wythe county,
Va., was obtained against him illegally and
in violation of his constitutional rights as
a citizen of the United States, by the misuse
and abuse of the records of the United States
court, in the withdrawal therefrom of a copy
of the deposition of petitioner taken in said
court in said equity cause and read and used
'before the said grand jury of said county[153]
court of Wythe as the foundation of said in-
dictment.
Wherefore, to be relieved from said un-
lawful detention and imprisonment, your
petitioner, H. G. Wadley, prays that a writ
of habeas corpus, to be airected to I. R.
Harkrader, sheriff of Wythe county, Va., at
Wytheville, Va., and keeper of the said jail
of the said county, and in whose custody pe-
titioner now is, may issue in his behalf, so
that your petitioner, H. G. Wadley, may be
forthwith brought before this court, to do,
submit to, and receive what the law may di-
rect, and upon the hearing thereof that your
honor will discharge petitioner from all fur-
ther custody or imprisonment, and that h#
go hence without bail.
172 IT. 8.
1896.
Haiikbapkb v. Wadlbt.
158-lM
There was attached to said petition the
following exhibit:
This day came the commonwealth, by her
attorney, and James A. Walker and C. B.
Thomas, assistant prosecutors, as well as
the accused, in his own proper person, in
discharge of liis recognizance; whereupon
the attorney for the commonwealth moved
the court to continue this cause on the
groond that there are documents, books, and
papers in the possession of I. C. Fowler,
clerk of the circuit court of the United
States for the western district of Virginia,
at Abingdon, and that there are other docu-
ments, papers, and books in the [possession
of H. B. Maupin, receiver of the said circuit
court of ^e United States, in the chancery
cause of Paul Hutchinson, administrator,
against the Wytheville Insurance & Bank-
ing Company, pending therein, which said
papers, bool^, and documents are material
evidence of the commonwealth in the prose-
cution of the said indictment against the
said H. G. Wadley, and that the common-
wealth cannot safely go to trial without the
said papers, books, and documents ; that the
said J. L. Cleaves, then attorney for the com-
monwealth of Virginia for Wythe county
aforesaid, at a former term of the circuit
court of the United States, applied to the
said circuit court for an order directing the
said clerk and the receiver to obey any sub-
poena duces tecum issued from the clerk's
office of this court, requiring said clerk and
I54]said receiver to produce *said papers, books,
and documents before this court on the trial
of this prosecution, and that since said order
was entered in the said circuit court of the
United States the said J. L. Gleaves, attor-
ney for the commonwealth aforesaid, pro-
cured subpoena duces tecum to be regularly
issued from the clerk's office of this court for
said I. G. Fowler, clerk as aforesaid, resid-
ing in Abingdon, Virginia, and H. B. Mau-
pin, receiver as aioresaid, residing in Wythe
county, Virginia, requiring them to produce
said papers, books, and. documents in their
possession as aforesaid ; which said subpoenas
duces tecum were duly executed on the said
I. G. Fowler, clerk, and the said H. B. Mau-
pin, receiver, but that they refused and de-
clined to obey the same or to produce said
papers, books, and documents, because since
said order was entered by the United States
court and since said subpoenas duces tecum
were issued and served, the accused, H. G.
Wadley, had prepared and sworn to a bill
ssking for an injunction restraining the said
I. G. Fowler, clerk, and Ihe said H. B. Mau-
pin, receiver, from obeying any such sub-
iMena duces tecum, which bill was presented
by counsel for the sAid H. G. Wadley to the
Hon. Nathan Goff, one of the circuit judges
of the United States for the fourth circuit,
and on the em parte motion of the said Wad-
ley the said judge awarded an injunction
restraining the said J. L. Gleaves, attorney
for the commonwealth of Wythe county, Vir-
ginia, either by himself or the agreement of
others; I. C. Fowler, clerk of the said United
States circuit court; H. B. Maupin, receiver
172 U. a U. 8.. Book 48. 26
as aforesaid, by themselves oi by their agents
or defendants, from all further proceedings
or participation by them or either of them
in a prosecution now pending in the county
court of Wythe county, in the name of The
Commonwealth v. J9. &. Wadley t for the em-
bezzlement of the assets of the Wytheville
Insurance & Banking Company, restraining
and enjoininff them and all other defendants
named in said bill, including their attorneys,
clerks, agents, eitiier directly or indirectly,
through their own agency or the agency of
others, from in any manner using against
said H. G. Wadley in any other court, stat* or
Federal, in any other case, civil or criminal,
the deposition of the said Wadley * taken in[156]
another case of Paul Hutchinson, Adm*r, v.
The Wytheville Insurance d Banking Com'
pany, pending in the circuit court of the
United States for the western district of Vir-
einia or any copy thereof or extract there-
from.
And the prayer of said bill is in the fol*
lowing words:
Forasmuch as your orator can have no
adequate relief except in this court, and to
the end, therefore, that the defendants may,
if they can, show why your orator should not
have the relief prayed for, and that they
may answer to the matters hereinbefore
stated and charged, the prayer of your ora-
tor is —
That this bill of injunction and for re-
lief be treated as incidental to said suit now
pending in your honor's said court at Abing-
don; that your honor may erant a writ of
injunction issuing out of and under the seal
of this honorable court, restraining and en-
joining, under the penalty for a violation
hereof, all of the defendants to this bill, in-
cluding their attorneys, clerks, and agents,
either directly or indirectly, through their
own agency or through the agency of others,
from in any manner using against orator in
any other court, state or Federal, in any oth-
er case, civil or criminal, the said deposition
of your orator aforesaid taken in said suit
in equity, or any copy thereof, or the report
of Master Commissioner Gray, taken and
filed therein, or any copy thereof, or any of
the books, papers, records or correspondence,
or any copies thereof or extracts therefrom,
of the Wytheville Insurance & Banking Com-
pany, in the possession or that came under
the control of said Gray, commissioner, or
of H. J. Heiiser, late receiver, or of H. B.
Maupin, present receiver, or of I. C. Fowler,
clerk in said equity suit that was brought in
this court by said creditors; that your honor
will likewise enjoin each and all of said de-
fendants, creditors, who are now parties by
the decrees of this court in said suit in equity
now pending in this court, whether they are
parties to the original bill or interveners
by petition or are plaintiffs in the amended,
supplemental and cross bill, or whose claims
have been allowed by or presented to the mas-
ter commissioner. Gray, for allowance, to-
gether with all their attorneys, clerks, or
agents either through their *own agency[169]
or acts or throush the agency or ac^ of
others and also the said J. L. Gleaves, the
401.
16e-158
SonUCMB COUBT OF THB UVITBD BTATES,
Oct. Tbkm,
•ommonwealtli'i Attorocj of Wythe county,
VirginU, either hy himeelf or b;^ the agency
of others, and said oommiesioner Gray,
reoeiyen Heuier and Maupin, and said
fllsrky Fowler, by themselves or their agents
or deputies, from all further prosecution
of or participation by them or by either
of them in the criminal procedure now pend-
ing in the county court of Wrthe county,
Virginia, in the name of The Oommw^
weAih if Virginia t. B. G. Wadley, up-
on an indictment for embezzlement of the
assets of the Wvtheville Insurance & Bank-
ing Company, the said creditors haying al-
ready submitted themselves and their claims
affected by or involved in said criminal
procedure, by their bill in equity, to the
prior Jurisdiction of this court; that your
nonor, upon a final hearing of this cause,
will punish the parties involved for their un-
just and unlawful misuse of the records of
this court in said eauity suit, for the pro-
motion and prosecution by said creditors of
said criminal procedure against your orator,
DOW pending in the said county court of
Wythe oounbr, Virginia, put on foot by said
ereditors and their attorneys.
Copy. Attests L C. Fowler, Clerk.
The restraining order is in the foUowing
words:
This day came H. G. Wadley, one of the
defendants in the above proceedings in
equity now pending in the above-named
court, and he presented his bill for an in-
junction in his name against said Blount
and Boynton et als., and this said bill being
duly sworn to by H. G. Wadl^ and fully
supported by the affidavits of J. H. Gibboney,
H. J. Heuser, and J. B. Barrett, Jr., the
cause came on this day to be heard upon
said bill for injunction, and upon all the ex-
hibits filed thereto, and upon a transcript of
the record of said original bill and said
amended, supplemental and cross bill above
named, and, upon reading said bill and af-
fidavits and the said nchibits and tran-
scripts, the court is of opinion that the
equity Jurisdiction of the United States
court above named first attached to both the
persons and the subject-matter involved in
(157] said suits *in equity, and that it is improper
that the records of the pleadings, proofs,
books, and papers filed in and parts of said
equity suits now in litigation and pendinff
unadjudicated in this court between said
parties, or copies thereof, should be with-
drawn therefrom and used by anyone in any
criminal or other proceedings, in any other
court, against the said party to any of said
suits, in regard to any matters in issue in
said suits In eauity, until the same have
been fully adjudicated by this court; and it
appearing to this court from said bill for
injunction that such has been done, and is
now threatened by parties to said suits in
equity for the use in a criminal proceeding
just begun by them in the county court of
Wythe county, Virginia, against said H. G.
Wadley, for matters involved in and growing
out of said suits in eouity which were first
instituted and are still pending in litigation
40S
and undetermined in this court, it is ordered
that an injunction be awarded to said H. G.
Wadley according to the prayer of his bill;
and it appearhig to the court that the de-
fendants in said bill are quite numerous, it
is further ordered that service of this order
on their counsel shall be equivalent to per-
sonal service on them.
But before this injunction shall take ef-
fect the said H. G. Wadley will execute a
bond before the clerk of the court in the
penalty of $10,000, conditioned according to
law, with N. L. Wadley as his surety, who ii
approved as such surety, proof of her solven-
cy being now made.
June 8, 1804.
To I. C. Fowler, derk United States Cir-
cuit Courty Abingdon, Va.
N. Goff, Circuit Judge.
And thereupon, on motion of the attorney
for the ccmmonwealth, the case is continued
until the next term.
And the court, of its own motion, required
the prisoner to enter into a bond, with se-
curi^, in the penalty of $10,000, and until
such bond is given he is committed to the
custody of the jailer of this county.
Enter. Wul E. Fulton, Judge.
*In pursuance of this petition a writ of[169]
habeas corpus vras issued, on Ausust 11,
1800, directed to I. R. Harkrader, sheriff of
Wythe county, Virginia, and, as such, iailer
of said coun^, commanding him to bring
said H. G. Wadley, together with the day
and cause of his caption and detention, b^
fore Charles H. Simonton, judge of the cir-
cuit court of the United States within and
for said district aforesaid, on August 14*
1896.
On August 14, 1896, I. R. Htrkrader»
sheriff, produced the body of said Wadley
and made the following return :
To the Honorable Judge of the United
States Circuit Court for the Fourth nr-
cuit of the United States:
In the matter of the petition of H. G.
Wadley and the writ of habeas corpus ad
subjiciendum which issued from the clerk's
office of the Circuit Court of the United
States for the Western District of
Virginia on the 11th day of August, 1896,
and returnable on the 14th day of August,
1896, in the town of Wytheville, Wythe
county, Virginia, this respondent, for answer
to the said writ, savs that he here produces
the body of the said H. G. Wadley, the per-
son named in the said petition for the said
writ, in obedience to the command and di-
rection thereof, and for further return and
answer to said writ here avers that he de-
tained in his custody the body of said H. G.
Wadley, under and by virtue of an order of
the county court of Wythe county, state of
Virginia, entered in the case of the Com'
monwealth of Virginia v. said H, G. Wadley
on the 10th day of August, 1896, upon an
indictment for a felony pending in said
court against said Waaley. So much of
said order as relates to the custody of
17S v. a.
Harkbadbb y. Wadlbt.
16S-161
■aid Wtdley U here inserted in the words
isd figures following, to wit:
"Am the court, of its own motion, re-
fuxtd the prisoner to enter into bond, with
ncnrity, in the penalty of $10,000, and un-
til such bond is g[iven he is committed to the
custody of the jailer of this county."
And now respondent, having fully an-
fwered, prays that said writ may be dis-
diarged, and that he may be awarded his
i9]*co8ts about his letum to the writ aforesaid
in this behalf expended; and, in duty bound,
he will ever pray, etc. I. R. Harkrader,
Sheriff of Wywe County, Va., and as such
Jtiler Tliereof.
•
To this return Wadley filed a reply in the
Mowing words:
The petitioner, H. G. Wadley, comes a^d
stys that for auffht contained in the said re-
turn of I. R. &rkrader, sheriff of Wvthe
county, Virginia, to his petition for habeas
oorpus, that petitioner is entitled to his dis-
charge because he denies, as contained in
taid return, said county court of Wythe
eoonty, Virginia, had any jurisdiction of
■lid petitioner or the subject-matter of said
indictment at the time it was found or
BOW has such jurisdiction. Petitioner denies
the validity of the order of commitment of
laid court of petitioner to said sheriff of
10th August, 1896, relied on in said return,
and says that commitment is void, because
said court has no jurisdiction to enter it,
and also because the indictment upon which
the petitioner was so committea was ob-
tained in violation of the Constitution of
the United States by the ill^^ and uncon-
stitutional use of petitioner's deposition
withdrawn from the files of this court and
carried before and read to the said grand jury
which found the said indictment, and hence
•aid custody is unlawful, and petitioner is
deprived illegally of his personal liberty."
He also fil^ the following demurrer :
"And now comes H. G. Wadley in his own
proper person and by his counsel, Blair and
Blair, and having heard the return of said
sheriff read in answer to the writ of habeas
corpus awarded in this cause, he says that
the said return and the matters therein con-
tained and set forth are not sufficient in
law, and that the said return shows no legal
ground for petitioner's detention by said
sheriff, and that it is not sufficient answer
to the matters of law and facts contained in
said petition and exhibits; and this he is
readjr to verify; wherefore, for want of any
sufficient return in this behalf, said H. G.
Wadley, the petitioner, prays judgment
^jtbat the said ^return be held insufficient;
that an order be entered discharging peti-
tioner from the custody of the said sheriff.
The record, as certified, discloses the fol-
lowing proceedings:
On this the 14th day of August, 1896,
came H. G. Wadley, the petitioner, by his
counsel, Blair ft Blair, and this cause cominff
on to be heard upon the petition for a writ
of habeas corpus and for order of discharge,
172 U. S.
with the exhibits filed with the said petition,
and said petition being duly verifiea by th«
affidavit of the petitioner, and upon the writ
of habeas corpus issued on said petition on
the 11th of August, 1896, and dufy executed
upon I. R. Harkrader, sheriff of Wy^e coun-
ty, and as such the jailer and warden of said
countv, in whose custody the petitioner is de-
tained, and upon the return of said sheriff
to said writ of habeas corpus, with the com-
mitment filed therewith as the authority
under which he acts, upon the demurrer of
SetiUoner to said return and joinder in said
emurrer, and upon the answer and denial of
the said petitioner to said return, and upon
the record in said case of H, G, Wadley t.
Blount d Boynton et al., and upon the pro-
duction of the body of said H. G. Wadley be-
fore this court by the said sheriff, the
said sheriff appearing in person, and
also by counsel, attorney general of Vir-
ginia, and after argument of counsel,
and the court being niUy advised in the
premises, the court finds that the said peti-
tioner, H. G. Wadley, is unlawfully re-
strained of his libertjf by the county court of
Wythe county, Virginia, by virtus of an or-
der of the judge thereof, committing him to
custody in default of bail, entered on the 10th
of August, 1896, on an indictment of the
CommaniDealth of Virginia v. H. G. Wadleu,
on a complaint of felony set up in the peu-
tion, notwithstanding the injunction and
writ of this court, it is therefore considered
and ordered by this court that the said H. G.
Wadley be discharged from the custody of
the said I. R. Harkrader, sheriff of Wythe
county, Virginia, and from the custody of
said court, as said court cannot prosecute
said indictment pending said injunction, and
that the said H. G. Wadley hold himself sub-
ject to the further order of this court.
*And it is further ordered that the Unitedl it6I]
States marshal for the western district of
Virginia serve a copy of this order upon I.
R. Harkrader, sheriff of Wythe county, Vir-
ginia, and as such the warden and jailer of
said county, and also a copy thereof upon W.
E. Fulton, judge of said court, and Robert
Sayers, Jr., the commonwealth's attorney for
Wythe coimty, Virginia.
15th August, 1896.
To I. C. Fowler, clerk of this court at
Abingdon, Va.
Charles H. Simonton, Circuit Judge.
The attorney general of Virginia, in his
proper person, states that from this order the
commonwealth of Virginia desires to appeal.
Charles H. Simonton.
Thereafter, I. R. Harkrader, sheriff of
Wythe coun^, Va., by R. Taylor Scott, at-
torney general of Virginia and counsel for
petitioner, filed a petition for an appeal to
the Supreme Court of the United States,
which was, on October 12, 1896, allowed by
the circuit judge of the circuit court for the
western district of Virginia.
Mr, A* J. Montasne, Attorney General
of Virginia, for appellant.
Mr. F. 8. Blair for appellee.
40S
I
SOPRBME CODBT 07
The appellee hu moved the dismissal ol
the appeal because, as is alleged, the ordai
discharging the prisoner on the writ of h»
ft Judge or a court, vu not final, as the pri<
juDction," and waa held'sufiject to the fur
ther order of tlie United Stat«s circuit court
and because there was no certificate from thi
court below as to the distinct question of ju
risdiction inTOlved.
[leS] 'It is, indeed, true, as was dacidedinOar
per T. Fitegerald, 121 U. 8. 87 [30:882]
that no appeal lies to this court from an or-
der of a circuit judge of the United StateS;
and not as a court, discharging the prisonei
brought before him on a writ of habeas cor
pus. But this record discloses that, whil(
the original order was made at chambers, th(
final order, overruling the return of the sher
iS and discharging the prisoner from custO'
dy, was the decision of the circuit court at ■
stated t«rm, and therefore the case falls with-
in Rb PaUiier, 136 U. S. 262 [34: GlTl.
We see no merit in the suggestion that the
order discharging the prisoner was not a fl'
nal judgment. It certainly, if valid, took
awaj the custody of the prisoner from thf
■tate court, and put an end to his imprison-
ment under the process of that court.
That the jurisdiction of the circuit courl
was put in issue by the petition for the writ
of habits corpus and the return thereto, ii
quite evident. The contention made, tiial
such question has not been presented to ui
hj a Hufficiently explicit certificate, we neeii
not consider, for the case plainly involvei
the application of the Constitution of tlu
United States. The division and apportion
meat of judicial power made by that instru-
ment left to the states the right to mak<
and enforce their own criminal laws. Ani
while it is the duty of this court, in the exer-
cise of its judicial power, to maintain th<
supremacy of the Constitution and laws ol
the United States, it is also its duty to guard
the states from any encroachment upon theii
reserved rights by the general government oi
the courts thereof. As we shall presentlj
see, this is the nature of the question raised
by this record.
It is doubtless true, aa urged by the ap-
pellee's counsel, that an assignment of erroi
cannot import into a cause questions of ju-
risdiction which the record dc«s not show dis-
tinctly raised and passed on in the court be-
low; but we think that this record does dis-
close that the assignments of error, which
were embodied in the prayer for an appeal,
set up distinctly the very questions of juris-
diotloB whidi were contained in the record
and passed by the trial court.
""•' "^B further contention on behalf of the
:, that the record does not show that
appeal aa allowed was ever "filed" In
the United States circuit court, and thai
therefore this court is without jurisdiction
to entertain the case, we cannot accept, be-
cause we think the record, as certified to ua
distinctly shows that the petition for appeal
404
appellee
the api
1898.
Uarkradbr y. Wadlbt.
164-167
Bat it is claimed, under the second of the
tboye propositions, that as the circuit court
of the United States had obtained prior and
therefore exclusive jurisdiction of the affairs
sad assets of the Wytheville Banking ft In-
laranoe Company, a corporation of the state
of Virginia, by virtue of two suits in equity
brou^t in said court in October, 1893, by
creditors of the said banking company, in
whidi suits a receiver to take charge of the
property of the bank, and a master to take
til necessary accounts, had been appointed,
it followed that the state court had no ju-
risdiction, pending those suits, to proceed
by way of indictment and trial against an
officer for the offense of embezzlement, as
created and defined by a valid statute of the
stste of Virp;inia. For the state court to so
proceed, it is claimed, constituted an inter-
ference with the Federal court in the exer-
cise of its jurisdiction; and that hence it
WIS competent for the United States court
to grant an injunction against the prosecu-
B]tion of the ^criminal case and to release the
prisoner by a writ of habeas corpus directed
to the sheriff.
It is not denied, on behalf of the appellee,
that by § 720 of the Revised Statutes it is
enacted that the writ of injunction shall not
be granted by any court of the United States
to stay proceedings in an^ court of a state,
except where such injunction may be author-
ized by any law relating to proceedings in
bankruptcy. Nor do we understand that it
is denied tiiat, apart from the effect of § 720,
the general rule, both in England and in this
country, is that courts of equity have no ju-
risdiction, unless expressly granted by stat-
ute, over the prosecution, the punishment or
pardon of crimes and misdemeanors, or over
the appointment and removal of public offi-
ctn and that to assume such a jurisdiction,
or to sustain a bill in equity to restrain or
relieve against proceedings for the punish-
ment of offenses, or for the removal of public
officers, is to invade the domain of the courts
of common law, or of the executive and ad-
ninistrative department of the government.
Re Sawyer, 124 U. S. 200 [31: 402].
But, as respects section 720, it is argued
that it must be read in connection with sec-
tion 716, which provides that "the Supreme
Court and the circuit and district courts
diall have power to issue writs of scire
facias. They shall also have power to issue
all writs not specifically provided for by
statute, which may be necessary for the
exercise of their respective jurisdictions and
agreeable to the usages and principles of
law;" and the cases of French v. Hay, 22
Wall. 253 [22: 858], and Dietsch v. Huide-
fcoper, 103 U. S. 494 [26: 497], are cited to the
alleged effect that the prohibition in section
720 does not apply where the jurisdiction of
a Federal court has first attached.
The cited cases were of ancillary bills, and
were in substance proceedings in the
Federal courts to enforce their own
judgments by preventing the defeated
parties from wresting replevied prop-
erty from the plaintiffs in replevin, who by
the final judgments were entitled to it.
172 V. 8.
As was said in Dietsch v. Huidekoper: "A
court of the United States is not prevented
from enforcing its own judgments *by thc[166]
statute which forbids it to grant a writ of
injunction to stay proceedings in a state
court. Dietsch, the original plaintiff in the
action on the replevin TOnd, represented the
real parties in interest, and he was a party
to the action of replevin, which had been
pending and was finally determined in the
United States circuit court. That court had
jurisdiction of his person, and could enforce
its judgment in the replevin suit against
him, or those whom he represented. The bill
in the case was filed for that purpose and
that only."
Nor was there any attempt made in those
cases to enjoin the state courts or any state
officers engaged in the enforcement of any
judgment or order of a state court.
It is further contended that when the par*
ties sought to be enjoined have, as plaintiffs,
submitted themselves to the court, by a bill
in equity, as to the matter or right involved,
a bill for an injunction wiU lie to prevent
interference by criminal procedure in an-
other court; and the decision of this court
in Re Sawyer 124 U. S. 200 [31: 402], it
cited, where Mr. Justice Gray said: ''Mod*
em decisions in England, by eminent equity
judges, concur in holding that a court in
chancerjr has no power to restrain criminal
proceedings unless they are instituted hy a
party to a suit already pending before it,
and to try the same right that is in issue
there.*' So, also, the case of The Ma^or
of York V. Pilkington, 2 Atk. 302, is cited,
and in that case, where plaintiffs in a chan-
cery bill and cross bill to establish in equity
their sole right of fishing in a certain
stream, while their bill was still pending,
caused the defendant to be indicted at the
York criminal court for a breach of the peace
for such fishing. Lord Hardwicke awarded
an injunction to restrain the plaintiffs from
all further criminal proceedings in other
courts, and said that if a plaintiff filed a bill
in equity against a defendant for a right to
land and a right to quiet the possession
thereof, and after that he had preferred an
indictment against such defendant for a
forcible entry into said land, the court of
equity would certainly stop the indictment
by an injunction.
But the observations quoted had reference
to cases where *the same rights were involved[1671
in the civil and criminal cases, and where
the le^al question involved was the same.
Thus the case of the fishery, both in the civil
and the criminal proceeding, involved the
right of defendant to fish in certain waters
where the plaintiff claimed an exclusive right,
and, as no actual breach of the peace was al-
leged, the public was not concerned. And
when, in the latter case of Lord Montague
V. Dudman, 2 Ves. Sr. 396, where an injunc-
tion was prayed for to stay proceedings in a
mandamus, his ruling in Mayor of York v.
Pilkington was cited. Lord Hardwicke said:
"This court has no jurisdiction to grant an
injunction to 5ttay proceedings on a man-
damus. Tior *o an indictment, nor to an in-
405
(
167-170
BnPBSHB COUBT OF THB UkITED Stj^TBS.
Oct. TsBify
formatioii. As to Mayor of York v. PUk-
ingion, the court granted an order to stay
proceedings because the question of right
was depending in the couix, in order to de-
termine the r&ht, and therefore it was rea-
sonable they should not proceed by action or
indictment until it was determined."
If any case could be supposed in which
a court of eauity miffht look behind the
formal proceeoing, in the name of the state,
to see that its promoters are parties to the
case pending in the court of equity, using
the process of the criminal court, not to en-
force the rights of the public, but to coerce
the defendant to surrender in the civil case,
it is sufficient to say that, in the present
case, the indictment whose prosecution the
circuit court souffht to star, appears to have
been regularly found, and to assert an of-
fense affainst a law of the state, the validity
of whicn is not assailed.
The fallacy in the argument of the appel-
lee in the present case is in the assumpuon
that the §ame riaht was involved in the
criminal case in the state court and in the
equitv case pending in the Federal court.
But it is obvious that the civil liability of
Wadley to indenmify the plaintiffs in the
equi^ suits, by reason of losses occasioned
by his misconduct as an officer of the bank,
is another and verv different question from
his criminal liabilihr to the commonwealth
of Virginia for embezzlement of funds of
the bank. There might well be different
conclusions reached in the two courts. A
jujy in the criminal case might, properly
[168]enough, conclude that, however *foolishand
unjustifiable the defendant's conduct may
have been, he was not guilty of intentional
wrong. The court, in the eauity case, might
rule that the defendant's aisregard of the
ordinary rules of good sense and manage-
ment was 80 flagrant as to create a civil
liability to those thereby injured, without
viewing him as a criminal worthy of im-
prisonment. The verdict and judgment in
the criminal case, whether for or against the
accused, could not be pleaded as res judicata
in the equity suits. Nor could the conclu-
sion of tne court in equity as to the civil
liability of Wadley, be pleadable either for
or against him in the trial of the criminal
case. Surely if, by reason of a compromise
or of failure of proof, the court in equity
made no decree against Wadley, the com-
monwealth of Virginia would not be thereby
estopped from asserting his delinquencies
under the criminal laws of the sta^. Nor
would the court in equity be prevented, by
* favorable verdict and judgment rendered
in the state court, from adjudging a liability
to persons injured by the defendant's official
misbehavior.
And this reasoning is still more cogent
where the respective courts belong one to the
.etate and the other to the Federal system.
Embezzlement by an officer of a bank or-
ganized under a state statute is not an offense
which can be inquired into or punished by
* Federal court. Such an offense is against
the authority and laws of the state. The
fudicial power granted to their courts by
the Constitution of the United States does
406
not cover such a case. The oireuit court of
the United States for the western district of
Virginia could not, in the first instance, have
taken jurisdiction of the offense charged in
the indictment, nor can it, by a biU in
equity, withdraw the case from the state
court, or suspend or stay its proceedings.
In both of the injunctions pleaded in
answer to the return of the sheriff the at-
torney of the commonwealth of Virginia for
Wythe countv was named as such, and was
therebv prohibited from all further prosecu-
tion of toe indictment pending in the county
court of Wythe county in the name of the
Oommontoealih of Viroinia v. 17. (7. Wadley,
charged with •embezzlement of the funds of[160]
the Wytheville Insurance & Banking Com-
pany.
No case can be found where an injunction
against a state officer has been upheld where
it was conceded that such officer was pro-
ceeding under a valid state statute. In the
present case the commonwealth attomcnr, in
the prosecution of an indictment found un-
der a law admittedly valid, represented the
state of Virginia, and the injunctions were
therefore in substance injunctions against the
state. In proceeding by indictment to en-
force a criminal statute the state can only
act by officers or attorneys, and to enjoin
the latter is to enjoin the state. As was
said in Re Ayrea, 123 U. S. 443, 407 [31 :
216, 227] : ''How else can the state be for-
bidden by Judicial process to bring actions in
its name, except by constraining the conduct
of its officers, its attorneys, and its agents T
And if all such officers, attorneys, and agents
are personally subjected to the process of the
court, so as to forbid their acting in its be-
half, how can it be said that the state itself
is not subjected to the jurisdiction of the
court as an actual and rcsd defendant T"
It is further contended, on behalf of the
appellee, that even if the injunctions in the
equity causes, restraining the proceedings in
the coimty court, were erroneous, they could
not be attacked collaterally by this appeal
in the habeas corpus case. The obvious
answer to this is tnat this court is dealing
only with the question of the jurisdiction
of the court below. To the return of the
sheriff, justifying his detention of the pris-
oner by setting up the order of the county
court, the petitioner, Wadley, by way of re-
ply, pleaded the iniunctions. This, of
course, raised the question of the validity of
those injunctions. If they were void, th^
conferred no jurisdiction upon the circuit
court to enforce them as against the officers
and process of the state court.
Again, it is urged that the indictment had
been improperly found by reason of the ad-
mission before the ffrand jury of Wadley's
deposition in the civil case. But, even if
what passed in the grand jury room can be
inquired into on a writ of hab^ corpus, and
this we do not concede, the remedy for ^sudil^^O]
misconduct must be sought in the court
having control and jurisdiction over the pro-
ceedings.
So. too, any offense to the dignity or au-
thority of the circuit court, by the misuse
of its records or papers, by its suitors or
172 V. B.
ia88.
NiEW Mexico y. Unttbd Btatbs Tbust Co.
170-172
tlieir eounsel, can be corrected by that court
without extending its action so as to include
the state court or its officers.
We are of opinion, then, that a court of
equity although having jurisdiction over
person uid property in a case pendins be-
fore it, is not tnereby vested with jurisdic-
tion over crimes committed in dealing with
audi property by a party before the civil
suit was brought, and cannot restrain hj in-
junction proceedings regularly brought in a
criminal court having jurisdiction of the
crime and of the accused. Much more are
we of opinion Uiat a circuit court of the
United States, sitting in equity in the ad-
ministration of civil remedies, has no juris-
d]cti<m to stay by injimction proceedings
pending in a state court in the name of a
state to enforce the criminal laws of such
state.
Therefore the judgment of the circuit court
of the United States for the western district
of Vimnia, discharging said H. G. Wadley
from the custody of ute said I. R. Harkrader,
sherifT of Wythe county. Virginia, and from
the custody of said county court of Wythe
eonnty is herebv
Reversed and the cause is remanded to
that court with directions to restore the
custody of said W. G. Wadley to the sheriff
of Wythe County, Virg^ia.
[ITll TERRITORY OP NEW MEXICO, Appt,
V.
UNITED STATES TRUST COMPANY of
New York, and C. W. Smith, Receiver of
the Property of the Atlantic & Pacific
Railroad Company.
(See S. C Reporter's ed. 171-186.)
Mwemption from tawation of a right of way of
a railroad.
Tlie right of way through the public lands for
100 feet each side of a railroad. Including all
RoccBsary grounds for station buildings, work-
shops, depots, machine shops, switches, side
tracks, turntables, snd wster stations, which
Is exempt from taxation within the territories
of the United States, under the act of Con-
gress of July 27, 1866, does not mean the
right of passage merely, but Is real estate of
corporeal quality, and the exemption Includes
aU that Is erected upon It.
[No. 106.1
Argued October i5, 26, 1898, Decided De-
cember 5, 1898.
APPEAL from the decree of the Supreme
Court of the Territory of New Mexico
reversing an order of the District Court for
Bernalillo County, that the receiver of the
Atlantic & Pacific Railroad Company pay
taxes due upon station houses and other im*
provenients m said oounly and decreeing that
said assessments were illegal and void. De-
cree affirmed.
172 U. S.
Statement by Mr. Justice MeKoniiAt
This case was begun b^ the filing in the
district court for SBrnalillo county, in the .
territorv of New Mexico, by the district at-
torn^ for the territory, of an intervening pe-
tition on behalf of the territorv praying for ' '
an order against the receiver of the Atlantic
& Pacific Railroad Company, requiring him
to pay the amoimt of taxes claimed to be due
upNon the improvements on the right of wsy of
said railroad company in the county of Ber-
nalillo, and upon station houses and other
improvements at seven different stations in
said county. The taxes claimed were for the
years 1893, 1894, and 1895.
The case was submitted upon the following
agreed statement of facts:
"For the purposes of the hearing to be had
upon the intervening petition of the territory
of New Mexico, in the above-entitled cause,
and answers thereto of C. W. Smith, the re-
ceiver of the Atlantic & Pacific Railroad
Company, and the United States Trust Com-
pany, it is hereby stipulated and agreed, by
*ana between saia above-named parties, that[179]
the following facts shall be accepted and re-'
ceived by the judge or court in determining
the questions involved as the facts in the
case.
That on and prior to January 1, 1892, the
Atlantic ft Pacific Railroad Company, under
the provisions of its charter, defimtely lo-
cated its line of road and right of way
through Bernalillo countjr, which said right
of way so located involved all necessary
S rounds for station buildings, workshopiy
epots, machine shops, switches, side tracks,
turn tables and water stations. That upon
said right of way so located through the city
of Albuquerque, in said coimty, was definite-
ly located necessary grounds for station
buildings, workshops, depots, machine shops,
side tracks, turn tables and water stations;'
and there was also located upon said right
of way at the Atlantic ft Pacific Junction at
Chaves or Mitchell, at Coolidffe, at Wingate,
at Gallup, and at Manuelito, necessary
f rounds for station buildings, work shops,,
epots, machine shops, swit<£es, side tracks,
turntables, and water stations.
"That tnereafterwards and prior to 1893
there was built and constructed upon said
right of way by the Atlantic ft Pacific Rail-
road Company from a point of junction with
the Atchison, Topeka, ft Sante F6 Railroad
Company at Isleta, fifteen miles south of Al-
buquerque, a railroad along said right of
way, from said junction point to the Colora-
do river, in the territory of Arizona; that
the Atlantic ft Pacific Railroad Company
has, under an agreement with the Atchison,
Topeka ft Santa F6 Railroad Company, occu-
pied and used the tracks of the last-named
company between the junction of the two
railroads at Isleta and the cibr of Albu-
querque as and for the railroad of the Atlan-
tic ft Pacific Railroad Company to the extent
that its business required the use and opera-
tion of such railroad for itself; or, in other
words, under contract between the two com-
panies the railroad of the Atchison, Topcdca,
ft Santa F6 Railroad (^Jompany through the
city of Albuquerque to the junction at Isleta,
407
(
172-175
bUPBBMB COUBT OF THB UNITED STATES.
Oct.
a distance of about fifteen miles, is jointly
used by the two railroad companies; said
railroad running through the reservations
for machine shops, etc., aforesaid, of the At-
[173]lantic & Pacific Kailroad Company at *Albu-
auerque; that the right of wav so located by
tie Atlantic ft Pacific Railroad Company and
upon which it built its railroad, as aforesaid,
runs through Bernalillo county, and is situ-
ated in Bernalillo county as follows:
"Commencing at the A. ft P. Junction re-
ferred to, it runs thence in a westerly direc-
tion 4 miles 3,780 feet to the division line, be-
tween Bernalillo county and Valencia coun-
ty, and then after crossing a portion of Va-
lencia ooun^ at a point known as station
5,247 it again runs tnrough Bernalillo ooun-
iv p8 miles and 44 feet to the west line of
ti^e county of Bernalillo, being the west line
of the territory of New Mexico; which said
right of way, outside of the reservation for
station grounds, etc., was located, and is of
the widUi of 200 feet, being 100 feet on each
side of the center of Uie railroad track locat-
ed thereon.
"That in due time the former receivers of
the property of the Atlantic ft Pacific Rail-
road Company appointed by this court re-
turned to the assessor of Bernalillo county
as propertv belonging to said railroad com-
pany, taxable in said county, certain proper-
ty, which was and is described in said re-
turns as follows, to wit:
"List of personal property belonging to,
claimed by, or in the possession or under the
control of the receivers of the Atlantic ft Pa-
cific Railroad Company (western division),
a corporation created by act of Congress, hav-
ing its principal place of business at Albu-
querque, New Mexico.
"Tlie line of its road running through the
counties of Bernalillo and Valencia in said
territory of New Mexico ; thence throusfa the
counties of Apache, Navajo, Coconino, Yava-
pai, and Mojave, in the territorv of Arizona,
to the eastern boundary line of the state of
California; thence through the counties of
San Bernardino and Kern, in said state, to
the western end of said line, and its terminus
at Mojave, in said county of Kern, a total dis-
tance of 805.86 miles, the total mileage of
said line owned by said company in said ter-
ritory of New Mexico being 166.6, of which
73.142 are in Bernalillo county, and 93.458
miles are in Valencia county.
"And the receivers of the property of said
[174]company *make a full report of all its per-
sonal property as follows, to wit :
All the locomotlTes, passenger coaches,
express and mail cars, caoooses. box.
flat» and coal cars, push cars, hand
cars, and all other equipments
owned, possessed, or used by said re-
ceivers or said company upon the en-
tire line aforesaid 1452,960
Track tools, and all other persona)
Sroperty not having its situs or
omicil in some other state or terri-
tory. Including office and station
furniture, law library, books, sta-
tionery, supplies and material, etc,
at Albuquerque. Mitchell, Coolldge,
Wingate, Gallup, and Manuelito... 78,000
Personal property within the city lim-
its of Albuquerque 200 000
Personal property within the city lim-
its of Gallup 5,000
408
"That the above and foregoing wma all iht
property returned for taxation in Beraalilto
county bjr said receivers or by the railroad
company itself; and that the same was made
as the assignment of the property of said earn-
pany subject to taxation in said county lor
the year a. d. 1895 ; that the county sgfttttffT
of Bernalillo county in the vear 1895, under
the direction of the board of county commis-
sioners of said county, placed on the asoeas
ment roll an assessment of property against
the Atlantic & Pacific Railroad Company lor
the year 1893. A true and correct copy of
the assessment roll showing such aseessmeDt
so placed thereon is filed with this as a part
hereof, and as 'Exhibit 1,' which said exhibit
shows the taxes levied, together with the
values and penalties. That at the time the
said assessor, under the instructions of said
board, placed upon said assessment roll cer-
tain property claimed to be taxable property
belonging to said railroad oompany, which
was omitted from taxation for the year 1894.
A true and correct copy of the assessmest so
made is shown by 'Exhibit 2,' herewith ftM
and made a part hereof.
''That the said assessor at the same tine
placed upon said 'assessment roU property [175]
claimed to have been omitted and belongiajr
to said oompany for the year 1895, a true sad
correct copy of which said assessment toU,
with said last-named assessment placed upon
it, is shown by 'Exhibit 3,' hereto attached
and made a part hereof and filed here-
with.
"That these exhibits show precisely the dc^
scriptions of {iroperty enterM by tkfe assess-
or, the penalties added, and the values sad
also the taxes levied thereon. 'Exhibit 3*
also shows the description of the property
as returned bv the receivers.
"That all the property so placed upon the
assessment roll by the assessor, outside of
that returned by the receivers, was placed
upon said assessment roll without the knomV-
edffe or consent of the receivers, or of said
railroad company; that the entire property
placed upon the assessment roll by said as-
sessor, outside of the property returned by
the receivers, constituted and constitutes aa
actual part and portion of the roadbed sad
railroad track thereon situated on the rifclit
of way of the Atlantic & Pacific Raflrosd
Ck>mpany in Bernalillo county, in the terri-
tory of New Mexico, and constitutes the rail-
road used and occupied by the Atlantic k
Pacific Railroad Company under its charter
and in accordance with the provisions there-
of; and. the machine shops, station buildincs
water tanks, section houses, and other build-
ings of like character connected with and s
part of the machinery used in the operstioa
of said railroad; that each and every item
of property described in the assessnieot* «(»
placed upon the said assessment roll, outside
of the property returned by the receiver*, is
property that is actually and permanenthr
attached to the right of way and statios
pounds of the Atlantic & Pacific Railroad
Company, and constitutes an actual part sad
portion of the superstructure placed upoa
said right of way by said railroad company
for its railroad and for its machine «Hop«,
17t U. &
1898.
Nbw Mexico v. United States Tudbt Co.
175-17»
tnnUfalles, side tracks, switches, water
tanks, station buildings, and other buildings
of the same class and character actually used
sod needed in the operation of said railroad,
sod that no part of the same was, at the time
of the placing of said assessment upon said
76]A8ees8ment rdls hy the 'assessors, aetached
from the actual rijzht of way and station
noonds of said rauroad company; but, on
ue contrary, was firmly afi&xea thereto ; that
it was described as it was by the assessor in
placing the same upon the assessment roll
for the purpose of escaping the exemption
from taxation contained in the second section
of the act of Congress approved July 27,
1806, known as the charter of the Atlantic &
Psdiic Railroad Company, the assessor desir-
ing to assess eyerrthinff placed on the right
of way separate from the risht of way, no
matter how permanently attached and afl&xed
to the right of way.
That during the year 1803 there were no
receivers in possession of said property, and
that said railroad was beinff operated by the
railroad company itself, and, if any property
was omitted to be returned for taxation
wfaidi ought to have been returned to the
assessor of Bernalillo county, it was the
fault and neglect of the railroad company
itself, and not the fault and neglect of the
receivers afterwards appointed.
That at Albuquerque, upon the reserva-
tions and station grounds, there were situ-
ated the largest madiine shops of the said
raflroad company, the general office building
and such buildings as pertain to the head-
jnarters of a railroad company; said build-
ings and reservation constitute the head-
qnarters of the western division of the At-
lantic k Pacific Railroad Company, and,
since the appointment of receivers, of the re-
ceivers operating the same.
That the assessor, in placing each of these
three assessments upon the assessment rolls
as stated, added to the actual value of the
property one fourth of such value, as a pen-
alty for the failure on the part of the re-
ceiver to return such proper^ for taxation.
That in 1893 the railroad company, and
in 1894 and 1895 the receivers, omitted all
property that was firmly and fixedly at-
tached to the right, of way of said railroad
company and to station grounds, under the
honest belief that the same constituted a
part of the right of way, and was exempt
from taxation."
Subsequently, the case came on to be
heard, upon the intervening petition of the
^territory and the answer thereto •of the
United States Trust Company and of the
receiver, C. W. Smith, and the agreed state-
ment of facts. Upon the hearing the judge
of the district court ordered the receiver to
pay to the treasurer of the county of Bern-
alillo the sum of forty-three thousand
two hundred and fifty-four dollars and sev-
enty cents ($43,254.70), the amount as-
certained by a special master to be the ag-
gregate of the taxes levied upon the addi-
tional asseitsments and penalties. An ap-
peal was taken from this order by the United
States Trust Company, and also by the re-
ceiver. C. W. Smith, who had obtained from
172 V. S.
the court permission to take such an appeal.
The order appealed from was reversed upon
hearing before the supreme court of the ter-
ritory, the court determining that the addi-
tional assessments placed upon the rolls
were ill^^al and void. An application was
made for a reliearing, which the court de-
nied, and an appeal was taken to this court.
The sections of the act of July 27, 1866,
with which we are concerned, are inserted in
the margin;! &1bo sections 2807, 2822, 2834,
tSec 1. I I I And aald corporation ii
hereby authorized and empowered to lay out,
locate, and construct, furnish, maintain, and
enjoy a continuous railroad and telegraph line,
with the appurtenances, namely, beginning at
or near the town of Springfield, In the state
of Missouri, thence to the western boundary
line of said state, and thence by the most eligi-
ble railroad route as shall be determined by said
company to a point on the Canadian river;
thence to the town of Albuquerque, on the River
Del Norte, and thence, by way of the Agua Frio
or other suitable pass, to the head waters of the
Colorado Chlqulto, and thence along the thirty-
fifth parallel of latitude as near as may be
found most suitable for a railway route to the
Colorado river, at such point as may be selected
by said company for crossing; thence by the
most practicable and eligible route to the Pacif-
ic. The said company shall have the right to
construct a branch from the point at which the
road strikes the Canadian river eastwardly,
along the most suitable route as selected, to a
point in the western boundary line of Arkansas
at or near the town of Van Buren. And the said
company Is hereby vested with all the powers,
privileges, and Immuniiles necessary to carry
Into effect the purposes of this act as herein set
forth.
Sec 2. And he ii further enacted. That the
right of way through the public lands be, and
the same is hereby, granted to the said Atlan-
tic & Pacific Railroad Company, Its successors
and assigns, for the construction *of a rallroad[178)
and telegraph as proposed ; and the right, pow-
er, and authority Is hereby given to said corpo-
ration to take from the public lands adjacent to
the line of said road material of earth, stone,
timber, and so forth, for the construction there-
of. Said way Is granted to said railroad to the
extent of one hundred feet In width on each side
of said railroad where it may pass through the
public domain, including all necessary grounds
for station buildings, workshops, depots, ma-
chine shops, switches, side tracks, turntables,
and water stations, and the right of way shall
be exempt from taxation within the territories
of the United States. . . .
Sec. 3. And be it further enacted. That there
be, and hereby Is, granted to the Atlantic &
Pacific Railroad Company, Its successors and
assigns, for the purpose of aiding In the con-
struction of said railroad and telegraph line to
the Pacific Coast, and to secure the safe and
speedy transportation of the malls, troops,
munitions of war, and public stores, over the
route of said line of railway and its branches,
every alternate section of public land, not min-
eral, designated by odd numbers, to the amount
of twenty alternate sections per mile, on each
•Ide of said railroad line, as said company may
adopt through the territories of the United
States, and ten alternate sections of land per
mile on each side of said railroad whenever It
pssses through any state, and whenever, on the
line thereof, the United States have full title,
not reserved, sold, granted, or otherwise appro-
priated, and free from pre-emption or other
409
178-181
SUPRSMS OOUBT OF THB UkITBD 8tATS8.
Oct. Tmbm,
dalms or ligbtt, at tht tlmt tht lint of Mid
toad la designated by a plat thoreot tUed In the
ofllce of tbe Commlasloner of the General Land
Olllce ; and whenever, prior to said time, any of
•aid aectlont or parte of Mctlona shall have been
granted, sold, reserred, occupied by homestead
settlers, or pre-empted or otherwise disposed of,
other lands shall be selected by said company In
Ilea thereof, onder the direction of the Secretary
«f the Interior, In alternate sections, and des-
ignated by odd nombers, not more than ten
miles beyond the llmlte of said alternate sec-
tions and not Including ths reserred num-
bers. • • .
Sec. 6. And 5e it further enacted. That said
Atlantic k Pacific Railroad shall be constructed
fB a substantial and workmanlike manner, with
all the necessary draws, culverts, bridges, via-
ducts, crossings, tumonte, stetlons, and water-
ing places, and all other appurtenances. Includ-
ing furniture and rolling stock, equal In all re-
specte to railroads of the first class when pre-
pared for business, with rails of the best quality,
manufactured from American Iron. And a uni-
form gauge shall be established throughout the
•ntlre length of the road. And there shall be
constructed a telegraph line, of the most sub-
stantial and approved description, to be oper-
ated along the entire line. . . .
Sec 7. And he it further enacted. That ths
said Atlantic k Pacific Railroad Company be,
and is hereby, authorised and empowered to en-
ter upon, purchase, take, and hold any lands or
premises that may be necessary and proper for
the construction and working of said road not
exceeding In width one hundred feet on each
side of the line of Ite railroad, unless a greater
width be required for the purpose of excavation
or embankment ; and also any lands or premises
that may be necessary and proper for turnouts,
|179]*standlng places for ears, depots, station houses,
or any other structures required in the con-
struction and working of said road. And the
said company shall have the right to cut and
remove trees and other material that might, by
falling, encumber its roadbed, though standing
or being more than two hundred feet from the
line of said road. And in case the owner of
such lands or premises and the said company
cannot agree as to the value of the premises
taken, or to be taken, for the use of said road,
the value thereof shall be determined by the ap-
praisal of three disinterested commissioners who
may be appointed upon application by either
party to any court of record in any of the terri-
tories In which the lands or premises to be
token lie ; and said commissioners In their
assessment of damages shall appraise such
premises at what would have been the value
thereof If the road had not been built. And upon
return into court of such appraisement, and
upon the payment into the same of the esti-
mated value of the premises taken for the use
and benefit of the owner thereof, said premises
shall be deemed to be taken by said company,
which shall thereby acquire full title to the
same for the purposes aforesaid. . . .
Sec 8. And be it further enacted. That each
and every grant, right, and privilege herein are
so made and given to and accepted by said At-
lantic k Pacific Railroad Company, upon and
subject to the following conditions, namely :
That the said company shall commence the work
on said road within two years from the approv-
al of this act by the president, and shall com-
plete not less than fifty miles per year after the
second year, and shall construct, equip, furnish,
and complete the main line of the whole road
by the fourth day of July, Anno Domini eighteen
hundred and seventy-eight.
Sec. 9. And be it further enacted. That the I
410
and 2835 of the*CompUed Iaws of 1884 of[180]
New Mexico relating to tazataon4
Mr. Frank W. Olamej* FeUw H. fjeater^
and Thomas N. Wilkenon for appelant.
Moure, Vietor Morawete,0. jJT. Sterrji
B, D, KmanOt and Robert Duihp lor appd-
lees.
*Mr. Justice MoKeim a delivered theopin-[ isl }
ion of the court:
The right of way is granted to the extent
of two hundred feet on each side of tbe rail-
road including necessary grounds for stotion
buildinffs, workshops, etc. What, then, is
meant bjr the phrase ''the right of way?" A
mere right of passage, says appellant.
Per contra, appellee contends that the fee
was granted, or, if not granted, that such a
tengible and corporeal property was
granted that all that was attoched to it be-
came part of it, and partook of ite exemption
from taxation.
United States make the several conditional
gronte herein, and that the said Atlantio k
Pacific Railroad Company accept the same, upon
the further condition that If the said company
make any breach of the conditions hereof, and
allow the same to continue for upwards of one
year, then. In such case, at any time hereafter
the United States may do any and all acte and
things which may be needful and necessary to
Insure a speedy completion of said road.
Sec. 10. And he it further enacted. That all
people of the United States shall have the right
to subscribe to the stock of the Atlantic k Pacif-
ic Railroad Company until the whole capital
named In this act of Incorporation Is taken up
by complying with the terms ef subscription.
Sec 11. And be it further enacted. That said
Atlantic k Pacific Railroad, or any part there-
of, shall be a post route and military road, sub-
ject to the use of the United States for postal,
military, naval, and all other government serv-
ice, and also subject to such regulations as Con-
gress may Impose restricting the charges for
such government transportetlon.
Sec. 20. And he it further enacted. That the
better to accomplish the object of this act,
namely, to promote the public Interest and wel-
fare by the construction of said railroad and
telegraph line, and keeping the same in working
order, and to secure to the government at all
times, but particularly In time of war, the usa
and benefits of the same' for postal, military,
and other purposes, Congress may at any time,
having due regard for the rights of said Atlan-
tic k Pacific Railroad Company, add to, alter,
amend, or repeal this act.
t2807. The terms mentioned In this section
are employed throughout this chapter in the
sense herein defined :
First. The term "real estate*' Includes aU
lands within the territory to which title or
right to title has been acquired : all mines, min-
erals, and quarries, in and under the land, and
all rights and privileges appertaining thereto
and improvemente.
Second. The term ''Improvemente'* Includes
all buildings, structures, fixtures, and fences
erected upon or fixed to land, whether title has
been acquired to said land or not.
Third. The term "personal property" includes
everything which is subject of ownership not
included within the term "real estate."
Fourth. The term "credit" includf^s every
172 U. 8.
1898.
Nbw Mbzico v. Unitbd Statbs Tbust Co.
181-188
To support its contention, appellant urges
the technical meaning of the phrase "right of
way/' and dainis that the primary presump-
tion is that it was used in its technical sense.
Undoubtedly that is the presumption, but
watik p/resumption must yield to an opposing
ttmtat, and the intention of the legislature
otherwise indicated. Examining the statute,
we find that whatever is panted is exactly
measured as a physical thing — ^not as an ah-
straet risht. it is to be two hundred feet
wide, ana to be carefully broadened so as to
Include grounds for the superstructures in-
dispensable to the railroad.
The phrase "right of way," besides, does
sot necessarily mean the right of passage
— rety. Obviously, it may mean one thing
In a grant to a natural person for private
(IMIpiirpoees *and another thing in a grant to a
ralmad for public purposes — as different
as ihe purposes and uses and necessities re-
spectively are.
In Keener v. Union Paoifio Railroad Oo,
81 Fed. Rep. 128, Mr. Justice Brewer defined
the words "right of way" as follows: "The
term Mght of way* has a twofold signifi-
cance. It sometimes is used to mean the
mere intangible right to cross — a right of
crossing, a ri^ht of way. It is often used to
otherwise indicate that strip which the rail-
road companjr appropriates for its use, and
upon which it builds its roadbed."
Mr. Justice Blatchford said in Joy v. Bt,
Louie, 138 U. S. 44 [34:867]: *'Now the
term 'rieht of way* has a twofold significa-
tion. It is sometimes used to describe a
right belonging to a party, a riffht of pas-
sage over any tract; and it ie mo used to
d^oribe that etrip of land which railroad
companies take, upon which to construct
their roadbed." That is, the land itself—
not a right of passage over it. So, this
court in Missouri, Kans<u d Tewas Railway
Co. V. Roberts, 152 U. S. 144 [38: 377], pass-
ing on a grant to one of the branches of the
Union Pacific Railwav Company of a right
of way two hundred feet wide, decided that
it conveyed the fee. The effect of this de-
cision is attempted to be avoided by saying
that the distinction between an easement
and the fee was not raised. The action was
ejectment, and was brought in Kansas, and
under the law of that state title could be
tried in ejectment. Title was asserted by
Roberts, who was plaintiff in the state court,
and this court evidentlv considered it in-
volved in the case. The language of Mr.
Justice Field, who delivered the opinion of
the court, would be unaccountable else. The
difference between an easement and the fee
would not ha^e escaped his attention and
that of the whole court, with the inevitable
result of committing it to the consequences
which might depend upon such difference.
Washburn in his work on Easements, on
gage 10, says: "Whether the thing granted,
e an easement in land or the land itself
may depend upon the nature and use of the
thing sranted." To sustain this view the
learned author cites Jamaioa Pond Aqueduct
Corporation v. Chandler and others, 0 Allen,
150. In that case the court said: "When-
ever a grant ie made of a *riffht or easement[183]
in lan£ which fall within the class some-
times described as 'non-continuous' — that is,
where the use of the premises by the grantee
for the purpose designated in the d^ will
be only intermittent and occasional, and does
not embrace the entire beneficial occupation
and improvement of the land — ^the reason^
able interpretation is, that an easement in
the soil, and not the fee, is intended to be
conveyed. Among the most prominent of
this class of easements is a way." An ordi-
nary way, of course, the court meant, one the
use of which would be non-continuous— only
intermittent and occasional; but a way not
of that character, whose use would be con-
tinuous, not occasional, and which would
embrace the entire beneficial occupation and
improvement of the land, mi^ht require the
fee for its enjoyment — certainly would re-
quire more than a mere right of passage.
"Unlike the use of a private way — that is.
claim and demand for money, .or other valuable
thing, and every annuity or sums of money re-
ceivable at stated periods : but pensions from
the United States and salaries, or payments ex-
pected for services to be rendered, are not In-
cluded In the above term.
2822. The assessor Is required, between the
first day In March and the first day In May of
each year, to ascertain the names of all taxable
Inhabitants and all property In his county sub-
ject to taxation. To ^hls end he shall visit
each precinct In the county, and exact from each
person a statement In writing, or list showing
separately :
First. All property belonging to, claimed by,
or In the possession or under the control or man-
agement of such person, or any firm of wblch
such person Is a member, or any corporation of
which such person Is president, secretary, cash-
ier, or managing agent.
Second. The county In which such property
Is situated, or In which It Is liable to taxation.
Third. A description by legal subdivisions or
otherwise, sufficient to Identify It, of all real
estate of such person and a detailed statement
of his personal property. Including average
value of merchandise for the year ending March
1st : amount of capital employed In manufaot-
172 U. S.
ure; number of horses, mules, cattle, sheep,
swine, and other animals ; of carriages and vehi-
cles of every description ; Jewelry, gold and sil-
ver plate : musical Instruments ; household fur-
niture : moneys and credits : shares of stock of
any corporation or company ; and all other prop-
erty not herein enumerated, with the value of
the different classes of property In detalL
2834. On or before the first Monday In March,
annually, the assessor shall make out an assess-
ment book or roll, with appropriate headlines,
alphabetically arranged. In which must be listed
all the property In the county subject to taxa-
tion. Such book shall contain the names of the
persons to whom the property Is assessed, with
the several species of property and the value as
hereinbefore Indicated, with the columns of
numbers and values as given by the person mak-
ing the return, as fixed by the assessor, and as
decided by the county commissioners. At the
end of such book or roll all property assessed to
**unknown owners*' shall be entered.
2835. EaCh tract of land shall be valued and
assessed separately except when one or more
adjoining tracts sre returned by the same per-
son. In which case they may be valued and
assessed together.
411
(
18a-186
SUPBEME COUBT OF THB UNITED STATES.
Oct. Teem,
discontinuous — ^the use of land condemned
bv a railroad company is perpetual and con-
tinuous." New York 8. d W. R. R, Co. ▼.
Trimmer, 53 N. J. L. 3.
But if it may not be insisted that the fee
was granted, surely more than an ordinary
easement was eranted, one havine the attri-
butes of the fee, perpetuity and exclusive
use and possession; also the remedies of
the fee, and, like it, corporeal, not incor-
poreal, property.
In Smith et al. ▼. HaU et al. [103 Iowa,
05], 72 N. W. Rep. 427, the supreme court of
Iowa says, speaking of the right of way of a
railroad: '^The easement is not that spoken
of in the old law books, but is peculiar to
the use of a railroad which is usually a per-
manent improvement, a perpetual highway
• of travel and commerce, and will rarely be
abandoned by nonuser. The exclusive use
of the surface is acquired and damages are
assessed on the theory that the easements
will be perpetual; so that ordinarily the
fee is of little or no value unless the land is
underlaid by a quarry or mine."
"The right acquired by the railroad com-
pany, though technically an easement, yet
requires for its enjoyment a use of Uie land
permanent in its nature and practically ex-
clusive.'* Hazen v. Boston d Me, R, R. Co.
2 Gray, 580.
[184] *In Southern Pacifio Co, v. Burr, 86 Cal.
279, the supreme coiut of California sus-
tained an action of ejectment for land con-
stituting a part of the right of way granted
to the Central Pacific l^dlroad bv the act
of July 1, 1862, by language similar to the
grant in the case at bar.
Distinguishing the case from Wood v.
Truokee Turnpike Co, 24 Cal. 474, in which
it was held that "a road or right of way is
an incorporeal hereditament, and ejectment
is maintainable only for corporeal heredita-
ments," the court said: '^We think that
case plainly distinguishable from this. Here
tliere was a special grant of a right of way
two hundred feet in width on each side of
the road. This grant is a conclusive de-
termination of the reasonable and necessary
quantity of land to be dedicated to the pub-
lic use and it necessarily involves a ri^ht of
possession in the grantee, and is inconsistent
with anv adverse possession of any part of
the land embraced within the grant. It is
true the strip of land now actually occupied
by the roadbed and telegraph line may be
only a small part of the four hundred feet
granted, but this fact is of no consequence.
The company may at some time want
to use more land for side tracks,
or other purposes, and it is entitled
to have the land clear and un-
obstructed whenever it shall have occasion to
do so." The court quoted and approved the
views expressed in the City of Winona v.
Bufff 11 Minn. 119, that for a mere ease-
ment perhaps an action of ejectment would
not lie; but wherever a right of entry exists
and the interest is tangible so that posses-
sion can be delivered, an action of ejectment
will lie." The same distinction was made
in New York S, d W. R, R. Co, v. Trimmer,
eupra, and the court said that if the inter-
412
est of the railroad company was a naked
right of way it would constitute no sudi right
of possession of the land itself as would sus-
tain the action; for such a right would be
an incorporeal one upon which there could
be no entry, nor could possession of it be
given under an habere facias possessioneoL
In this case it was held that the into^st
taken hj the railroad was not an easement
The interest granted by the statute to
the Atlantic & ^Pacific Railroad CompanjjlSi]
therefore, is real estate of corporeal quality,
and the principles of such apply. One of
these, and an elemental one, is that what-
ever is erected upon it becomes part of it
There are exceptions to the principle,, bat
as we are not concerned with uiem, we need
not state them. Applications of the prin-
ciple to railroads are illustrated by the de
cisions of this court and by those of other
courts. As to rails put down against him
from whom purchasea {Oulveeton H, d H,
Railroad Co, v. Cowdrey, 11 Wall. 459 [20:
199]*; United States v. New Orleans BttH-
road Co, 12 WaU. 362 [20: 434] ; Thompson
V. White Water VaUey R, Co. 132 U. S. 68
[33 : 256] ) , even though the contract of pur-
chase provided that the property should re-
main that of the vendor and he have a right to
remove the same {Porter v. Pittsburg Steel
Bessemer Co. 122 U. S. 267 [30: 1210] and
cases cited) ; in determining the relatimi of
the rails to the right of way, Joy et al. ▼.
City of St. Louis, 138 U. S. 1 [34: 843]. la
this case, Mr. Justice Blat^ord said:
"The track cannot be separated from the
ri^ht of way, the riffht of way being the
principal thine and the track nierdy an ia-
oident A right of way is of no particnlar
use to a railroad without a superstructiirt
and rails; the track is a necessary incideat
to the enjoyment of the right of way.** Ses
also Palmer v. Forbes et al. 23 111. 301 ; ff«M
V. Bay State Iron Co. et al. 97 Mass. 279;
City of New Haven v. Fair Haven d W. B.
R. Co. 38 Conn. 422.
The principle has also illustrations ts
cases of taxation. People [Dunkirk d F. R.
Co.] V. Cassitif, 46 N. Y. 46; Appeal Tsm
Court of Baltimore City v. The Baltitnors
Cemetery Co. 50 Md. 432 ; Osborne v. Hum-
phrey, 7 Conn. 335; Parker v. RedfiiM, !•
Conn. 490; Lehigh Coal and Navigation Ok
V. Northampton County, 8 Watts ft S. 354:
Chicago, Milu:auk€e d St. P. R. R. Co. t.
Crawford County Supers. 48 Wis, 666: Jf»<*-
mofid V. Richmond d D. R. R. Co. 21 Gratt
604 ; Mayor etc. of Baitimnre v. BaltiwKfrf S
O. R. R. Co. 6 Gill, 288 [48 Am. Dec. -•,3]i;
[Osbom V. New York d N. H. R. Co^ 40
Conn. 491 ; [Richmond d D. R. Co. v, Als-
mance Comrs.] 84 X. C. 504; Worcester t.
Western Railroad Corporation. 4 Met 564.
It is urged, however, that the rule of coa-
struction declared in Vicksburg^ S. d P. H
Co. V. Dennis, 110 U. S. 665 [29: 770], aai
•the cases there cited and approved, aid re-[lW
peated in Yazoo d M. Valley RaUroed (V),
V. Thomas, 132 U. S. 184 [33:306]; Wil-
mington d W. Railroad Co. v. Alsbrook. 141
U. S. 294 [36: 978]; Keokuk d W. RaO-
road Co. v. Missouri, 152 U. S. 306 [38 1
453] ; Norfolk d Western R. R. Co, ▼. Pm-
I7t U. &
*
1898.
TnB Elfrida.
186-188
ikUm, 156 U. S. 667 [39 : 574] ; and Coving-
Um d L, Turnpike Road Co, v. Sandford,
164 U. S. 578 [41 : 560],— determines in faror
of appellant's contention. That we do not
think 80 is probably sufficiently indicated,
but we cite the cases to preclude the thought
that they have been overlooked, or that the
rule announced by them is questioned. In-
deed, we regard it as salutary, and not im-
paired by our decision, which simply rests on
the terms of the statute.
The decree is affinned.
Tkbritobt of New Mexico, Appt.,
V.
Bwam States Trust Compaitt of New
York et ah
Same
V,
Same.
(See S. C. Reporter's ed. 186.)
[Nos. 169, 170.]
APPEALS from the Supreme Court of the
Territory of New Mexico.
Mr. Prank W. Clancy for appellant.
Messrs. Victor Moratcetz, C. N. Sterry,
B. D. Kenna, and Robert Dunlap for appel-
lees.
On the authority of the foregoing opinion
the decrees in these cases are affirmed.
THE ELPRIDA.f
(See S. C. Reporter's ed. 186-206.)
Selvage contract, when valid — contract to
pay one fourth the value of the vessel—'
contract as to steatnship Elfrida, vaUd.
L A salvage contract for stipulated compensa-
tion, dependent npon success within a limited
time, although the amount may be much
larger than a mere quantum meruit, will not
be set aside unless corruptly entered into, or
made under fraudulent representations, a
clear mistake, or suppression of important
facts, in immediate danger to the ship, or
under other circumstances amounting to com-
pulsion, or unless its enforcement would be
contrary to equity and good conscience.
t. An agreement to pay one fourth of the value
of a vessel as salvage, although It gives a very
large compensation for the work which ac-
tually proves necessary to be done, will not be
considered unconscionable or exorbitant,
when it was made after a refusal by the mas-
ter of an offer to do the work for such salvage
as the court should award, and after receiving
bids and full advice from the owners of the
TeBsel and the underwriters' agent, who came
to the vessel and saw her situation, and when
the vessel, though in serious danger, was in
fact never In imminent peril.
S. The salvage contract between the steamship
Elfrida and its owners of the one part, and
Charles Clarke & Company of the other part,
by which the former agreed to pay the latter
$22,000 to release the Elfrida. then stranded
~^tThe docket title of this case is ''Charles
Clarke and Robert P. Clarke, Petitioners, v. The
Steamship Elfrida, etc."
172 V. S.
near the mouth of the Braios river, was not
of such character or made under such clrcam*
stances as to require the court to relieve the
Elfrida against the payment of such stlp«-
late<f compensation.
[No. 60.]
Argued November 10, 11, 1898. Decided De-
cember 12, 1898,
ON WRIT of certiorari to the United States
Circuit Court of Appeals for the Fifth
Circuit to review a decree of that court re-
versing the decree of the District Court of
the United States for the Eastern District of
Texas in favor^ of the libellant Charles Clarke
k Co., against the British Steamship Elfrida
for $22,000 and interest, and renmnding the
case with instructions to enter a decree in
favor of libellants for $10,000, with interest
at 6 per cent. Decree of the Circmt Court
of Appeals reversed, and the case remanded
to the District Court for the Eastern Dis-
trict of Texas, with directions to execute its
origimd decree.
bee same case below, 41 U. 8. App. 586.
Statement by Mr. Justice Brown i
*This was a libel in rem by the firm o [187]
Charles Clarke & Co., of Qalveston, Texa&,
against the British steamship Elfrida, to re-
cover the sum of $22,000, with interest and
costs, claimed to be due them for services ren-
dered in the performance of a salvage con-
tract with the master, to release the Elf rida,
then stranded near the mouth of the Brazos
river.
The principal averments of the answer
were m siibstance that the agreement
was signed by the master under a mutual
mistake of fact, or by mistake on his part,
which libellants took advantage of, as to the
danger in which the vessel was, and that it
was improvidently made for an excessive
compensation, 'without a proper understand-[188|
ing by him of the vessel s alleged freedom
from danger; that the master had been pre-
vented from carrying out his instructions to
accept a tender made, if lower impossible, by
infoimation of the cable being conveyed to
the salvors before the master saw it; that the
parties were not upon an equal footing ; that
libellants made an unreasonable bargain
with the master because of the stress of the
situation and that of his vessel, Mid acted
coUusively with other salvors in obtaining
from him the agreement.
On Friday, October 5, 1894, the Elfrida, a
steel steamship of 1454 tons register, 290 feet
long, 38 feet in width, and drawing 11 feet
10 inches, bound for the port of Velasoo,
Texas, in ballast, eroundea on the bar be-
tween the jetties wnich extend from either
bank of the river, about a mile into the
Gulf, the outer end of these jetties, for a dis-
tance of a thousand feet or more, being sub-
merged. The heel of the ship touched, there
being but five inches between the bottom and
the bar, and an easterly wind swung her bow
against the west jetty. The captain ran out
a kedge from the starboard bow, hove taut
with the windlass, put her engine full speed
astern, but could not move the ship. The
413
18&-191
SUFBBMB COUBT OF THB UhITBD BtATB8.
Oer.TBBH,
I
wind and sea inereaaed during the afternoon
and evening, while the ship was straining
and bmnping heavily. The weather moder-
ated somewluit on the following day, ^d the
same dforts were continued unsuccessfully
until the evening, when the sea rose, carrying
her over the submerged outer end of the
jett^, and some distiuice farther shoreward
on the beach. She brought up that night
about a cable's length to uie west of the west
jetty. That part of the jetty which was
above high water projected seaward beyond
her stem and Weltered her from easterly
winds. She lav parallel with the jet^
about four or five hundred feet from the
beach, head on, and about one thousand feet
from water of sufficient depth to float her.
The shore at this point is very flat, the bot-
tom consisting of a layer of quicksand about
ten feet deep. The steamer settled in the
quicksand to her normal draft, rocking and
|M9]moving in it whenever there was a hijgh *sea.
She lay in nine feet of water at high tide.
The weather continued generally favorable
from the 7th to the 17ui, with occasional
gales and high seas. The ship drifted some-
what further on the beadi, but efforts to re-
lieve her b^ her own resources seem to have
bc^n practically abandoned.
On Tuesday, October 0, the master sent the
following letter to the libellants:
Velasco, Oct. 9, 1894.
Oapt Chas. Clarke, re S. 8, Elfrida.
Dear Sir: Please tender for to float and
place in a place of safety, say Oalveston,
where her lK)ttom can be examined, furnish-
ing diver and his apparatus. Also to fur-
nish all material and labor in floating said
steamship Elfrida, also time required. Re-
ply at your earlirat convenience under seal
Co Jas. Sorely, Lloyds' agent, or myself.
No cure, no pay.
Yours truly.
By B. Burffess, Master.
P. S. — ^A convenient time to be laid to get
the ship off, and if at the expiration of uie
time the vessel is still aground, all claim on
this contract to cease ana to be null and void.
B. Burgess, Master.
In repl^ to this libellants submitted a ten-
der, offering to perform the service for the
sum of $22,000, which was accepted by the
advice of Lloyds' agent, who was on board
the vessel at the time, and with the consent
of Pyman, Bell* & Co., of Newcastle^n-Tyne,
owners of the Elfrida.
The following contract, which forms the
basis of the present suit, was thereupon en-
tered into:
The State of Texas, \
County of Brazoria. >
This agreement made and entered into this
15th day of October, 1894, between the
steamship Elfrida and the owners thereof,
represented herein by B. Burgess, master of
said steamship, as party of the first part,
and Charles Clarke ft Co., of Galveston,
Texas, as party of the second part.
Witnesseth, that for and in consideration
[190]of the covenants *and agreements herein con-
414
tained on the part of the said party ot the
first i>arty to be kept and performed,
the said party of the second part hcrcbj
agrees and binds himself, his administra-
tors and assigns, to fioat and plaoe in a
safe anchorage, Quintana or Galvestoa,
as directed, the S. S. Elfrida, whidi is now
stranded west of and near to the west jetty
at the mouth of the Brasos river, in Mid
county and state; to furnish aU labor and
material at the cost of said party of the see-
ond party and to furnish oiver and neees-
sary apparatus to survey or examine the
boUom of said steamship, and to complete
the same within twenty-one (21) days mm
date hereof.
The said party of the first part agrees to
pay to the said party of the second part fair
such service, i . e., when he shall have success-
fully fioated said ship, as above set forth, the
sum of twenty-two thousand dolllars (22,-
000). The said partjr of the first part, how-
ever, reserving the right her^y to abandon
the ship to and in favor of the said seeond
party in lieu of the amount of $22,000 agreed
to be paid as aforesaid.
It is further imderstood and agreed by and
between the parties hereto that a failure to
float and place in a position of safety, as
above stated, said steamship within the
time hereinbefore specified, to wit, twenty-
one days from date hereof, that said party of
the second part shall receive no oompoisa-
tion whatever from said first party for work
performed, labor, tools, or applianess fur-
nished.
Anything that may be disdiarged to eaa-
ble vessel to fioat shall be replaced wben
she is in a position of safey. It is also amed
and understood that the use of crew aiM ea-
gine shall be at the use and disposal of Mid
party.
Witness the hand of B. Burgess, master «f
the steamship Elfrida, for himiself, said shia
and the owners, party of the first part, sad
the hand of Charles Clarke & Co., party of
the second part, this 15th day of October,
1894. B^J. Burgess.
Chaa. Clarke40s.
Witnesses:
M. P. Morrissey.
. J. H. Durkie,
Master S. 8. Lizzie, of Whitby.
*The day before the contract was sigMdiltl]
the libellants, having learned that their tea-
der for the work had been accepted, hired
the schooner Louis Dolsen, of fifteen toot,
for which the^ f-aid $100, to take their pUit
to Qalveston in tow of their tug Josepaiae.
They also hired a large force of men^proeurtd
nearly a month's supplies, cables, chaiai,
anchors, two tuff-boats, two lighters, and two
schooners, fully maimed and equipped.
Some of this plant belonged to them, bat tke
schooners and lighters and their equipaaceti
were hired. For one of the lifters tbcj
agreed to pay $6,500 if she should be loot
Tlieir entire outfit was worth from $30,000
to $50,000. On arriving at Velasco on Us
same or following dav, they en^nged a der-
rick lighter for use in laving the anchors,
nnd on the two following days, Uie 16tli sad
1898.
Thb Blfbida.
191-194
17th, the salvors were at work planting the
iB^rs and connecting cables from them to
the windies of the ship. This work was com-
pleted daring the afternoon of the 17th, the
witer ballast pumped out, when the Elf rida's
sDgines, winches, and windlass werestarted by
her own steam, and in less than half an hour
the began to move herself off. She went slowly
for the distance of about a thousand feet
when she floated dear, but was carried bv
the current asainst the west jetty. The 11-
Mlant's tug ucn for the first time took hold
•f her and towed her away from the Jetty,
ud at 7.40 P. M., four hours after the work
•f hanliog her off was beffun, she was ffee
sad dear of everything, and put to sea under
eontrol of the pilot. Subsequent examina-
tion of her bottom, in the dry dock at New-
S»rt News, showed that she was wholly un-
jnred except for a slight indentation about
a foot long m the bilffe, which was probably
esnsed by contact with the jetty. At the
time she was stranded she was insured for
the sum of £18,000, subsequently reduced to
£16,000.
Upon a full hearing upon pleadings and
procSb, the district court entered a final de-
cree bi favor of the libellants for the stipu-
kted sum of $22,000, witb interest and
costs. Claimants appealed to the circuit
court of appeals, which reversed the decree
of the dintrict court, one judge dissentinff,
9f ]*aiid remanded the case, with instrueUons to
ttiter a decree in favor of libellants for the
ram of $10,000, with interest at six per cent,
41 U. S. App. 685. A petition for rehearing
haying been denied, libdlant applied to this
court for a writ of certiorari, which was
granted.
Me99r9, James B. Stiabba, Oharle$ /.
Btubhs, Joseph H, WiUon, and Henry M.
Marie for libellants and petitioners.
Mr. J. Parker KItUb for appellees and
respondents.
] *Mr. Justice Browm ddivered tlie opinion
of the court:
But a single question is presented by the
record in this case: Was the contract with
the libdlants of such a character, or made
under such circumstances, as required the
court to rdieve the Elf rida against the pay-
ment of the stipulated compensation?
We are aU of opinion that this ques-
tion must 1)e answered in the negative. Sal-
vage services are either (1) voluntary,
wherein the compensation is dependent upon
success; (2) rendered under a contract for
a per diem or per horam wage, payable at all
stents; or (3) under a contract for a com-
pensation payable only in case of success.
Hie first and most ancient dass comprises
cases of pure salvage. The second is the
most common upon the Great Lakes. The
third includes the one under consideration.
Obviously where the stipulated compensa-
tion is dependent upon success, and partic-
ularly of success within a limited tune, it
may be very much larger than a mere guan-
<«m meruit. Indeed, sudi contracts will not
he set aside unless corruptly entered into
or made under fraudulent representations, a
172 V. 8.
dear mistake or suppression of important
facts, in immediate danger to the snip, or
under other circumstances amounting to
compulsion, or when their enforcement would
be contrary to equity and good conscience.
Before adverting *to the facj« of this par-[199|
ticular case, it may be wdl to examine some
of the leading authorities where salvage con-
tracts have been set aside and compensation
awarded in proportion to the merit of the
services.
In the case of The North Carolina, 15 Pet.
40 [10: 653], the master of a vessel which
had struck upon one of the Florida reefs
was improperly, if not corruptly, induced to
refer the amount of salvage to the arbitra-
ment of two men, who awarded thirty-five
per cent of the vessd and cargo. The court
found that under the circumstances the mas-
ter had no authority to bind his owners by
the settlement; that the settlement was
fraudulently made, and that the salvors, by
their contract, had forfeited all claims to
compensation even for services actually ren-
dered.
In The Tornado, 100 U. S. 110 [27: 874],
the owners of three steam tugs which had
pumping machinery were employed by the
master and agent of a ship sunk at a wharf
in New Orleans, with a cargo on board, to
pump out the ship for a compensation of
$50 per hour for each boat, "to be continued
until the boats were discharged." When the
boats were about to be^in pumping the
United States marshal seized the ship and
cargo upon a warrant on a libel for salvage.
After the seizure the marshal took posses-
sion of the ship, and displaced the autnority
of the master, but permitted the tugs to
pump out the ship. After they had pumped
for about eighteen hours, the ship was raised
and placed in a position of safety. The turn
remained by the ship, ready to assist her In
case of need, for twelve days, but their at-
tendance was Unnecessary, and not required
by any peril of ship or carffo. In libels of
intervention, in the suit Tot salvage, the
owners of the tugs claimed each $50 per
hour for the whole time, including the
twelve days, ns salvage. The court held that
as the contract was to pump out the ship for
an hourly compensation the right of the
steam tugs to compensation must be re-
garded as having terminated when the ship
and cargo were raised, and that, as the mar-
shal seized the ship as the tugs began to pump
her out, the authority of the master was dis-
E laced, and the boats must be regarded as
aving been discharged under any fair *in-[lM|
terpretation of the contract. Standing by
for a period of twelve days was found to have
been unnecessary, and not required by any
peril to the Tornado or her cargo. The case
was not one where the contract was set aside
as inequitable, though found to be so, but
where it had been completed by pumping out
the ship and the supersession of the master.
See also Bondiea v. Sherwood, 22 How. 214
[16: 238], where the court overruled an at-
tempt on the part of the salvors to repudiate
their contract as unprofitable and reoov«r
on a qiiantum meruit,
416
194-107
SuPBBMB Court of thb Uhitsd States.
Oct. Tbbm,
These are the only cases in our reports in
'which the question of nullifying a salvage
contract was squarely presented, although
there is in the case of Post v. Jones, 10 How.
150, 160 [13: 018,622], an expression of the
court to the effect that "courts of admiralty
¥rill enforce contracts made for salvage serv-
ice and salvage compensation, where the
ealvor has not taken advantage of his power
to make an unreasonable bargain; but they
will not tolerate the doctrine that a salvor
can take the advantage of his situation and
avail himself of the calamities of others to
drive a barg:tin; nor will they permit the
|>erformance of a public duty to be turned
into a traffic of profit." Indeed, it may be
eaid in this connection that the American
and English courts are in entire accord in
bolding that a contract which the master has
t)een corruptly or recklessly induced to sign
will be wholly disregarded. The Theodore,
Swab, Adm. 351; The Crus. V, 1 Lush. 583;
The Generous, L. R. 2 Adm. ft Ecd. 57, 60.
The intimations of this court have been
followed, except in very rare instances, by the
subordinate courts. Thus, in the case of The
Agnes /. Grace, 40 Fed. Rep. 662, and 2 U. S.
App. 317, a schooner bound for Port Royal,
South Carolina, put into Tybee Roads under
stress of weather. She came up on the'sands
in an exceedingly perilous condition. The
ground was treacherous and dangerous, and
while lying there she was exposea to the full
force of the sea and winds. A towboat com-
pany offered its services, and a contract was
ent^ed into to pay the sum of $5,000 as salv-
age. A portioh of the cargo, amounting to
f496]$7,000, was saved, as well as the 'schooner,
which was sold for $5,030, probably about
one half her value. The contract was sus-
tained. The coui*t put its decision upon the
ground that the case could not be considered
as belonging to that class ''where the master
being upon the high seas or an uninhabited
coast, at a distance from all other aid, is ab-
solutely helpless and without power to pro-
cure assistance other than that offered, and
is compelled in consequence to make a hard
and inequitable contract. He was within
easy reach of Savannah, where, had he de-
sired to assume the risk for his owners, he
could have procured lighters and other tugs
to render the service."
The cases in these courts are too numerous
for citation, but it is believed that in nearly
all of them the distinction is preserved be-
tween such contracts as are entered into cor-
ruptly, fraudulently, compulsorily, or under
a clear mistake of facts, and such as merely
involve a bad bargain, or are accompanied
with a greater or less amount of labor, dif-
Acuity, or danger than was originally ex-
pected.
In the earliest of these (1799), Cowell v.
The Brothers, Bee, 136, the libellant very
properly relinquished his written agreement
and applied to the court for such compensa-
tion as his services appeared to deserve, al-
though the court expressed the opinion that
the contract would have been held void as
having been made under circumstances of
great distress. To the same effect is Schutz
w. The Nancy, Bee, 189.
416
In the case most freauently cited, Tk§
Bmulous, I Sumn. 207, the parties treated
the contract at an end on account of aaex*
pected difficulties, but Mr. Justice Story ex-
pressed the opinion that salvage contncti
were within control of the court, and MtMX
the salvor could not avail hims^ of the ca-
lamities of others to force upon them a eoa-
tract unjust, oppressive, or exorbitant Ii
the subsequent case of Bearse v. Three Bmh
dred and Forty Pigs of Copper, 1 Story, 314,
Justice Story found that no fixed or dfffiaite
contract for the services existed, althoogli be
had previously remarked that it was "one of
the few and excepted cases in whidi there
may be a private contract fixing the rate of
salvage, which will be, and ou«it to be. ob- j
ligjatory between *the parties." We do ■ot^lll
think Uiat a salvage cont^ract should be sus-
tained as an exception to the general mle, i
but rather that it should, prima facie, be es-
forced, and that it belongs to the dciendaat
to establish the exception. The A. D. Petrh'
in, 1 Blatchf. 414; Barley v. Pour Bumdrtd \
and Sixty-seven Bars Railroad Iron, 1 Ssvr. i
1 ; The R. D. Bibber, 33 Fed. Rep. 55; Tht \
WeUington, 48 Fed. Rep. 475 ; The Sir Wm. i
Armstrong, 53 Fed. Rep. 145 ,• The Alert, 5C '
Fed. Rep. 721; The BUver Spray's Boikrt,
Brown, 349.
In Eads v. The H, D. Bacon, Newterr.
274, certain salvors, by the use of their na- j
chinery and diving bell worth $20,000. raised j
a badly bunken steamboat in the Mississippi
valued at $20,000, in twelve hours. It was j
held that the contracted price of $4,000 wu
just and reasonable.
In The J. G, Paint, 1 Ben. 545, an agree-
ment to pay a steamboat $5,000 for toviiif
a vessel worth $8,000, with a cargo of vofv,
for twenty-seven hours, waa sustaiaed br
Judge, subseauently Mr. Justice, Blatdifbrd. |
In most of the cases where the eoatrset i
was held void the facts showed that adrma- j
tage waa taken of an apparmtly hdptcM
condition to impose upon the master aa aa-
conscionable bamiin. Brooks v. Stw^, i^ i
rondack, 2 Fed. Rep. 387 ; The Yowng Awui^ '
ioa, 20 Fed. Rep. 926; The Don Carlos, AT
Fed. Rep. 746.
It must be admitted that some of thsM
courts have exercised a wide discretioa ia«t-
ting aside these contracts, and have laiddwt
the rule that they are to be doeelyaenitiaiMl
and will not be upheld when it appears thst
the price agreed upon bythe master is nareft-
sonable or exorbitant. We do not mdertski
to say that these cases were improperly ^
cided upon their peculiar facta, but we aren-
able to assent to the general propoattioa M
down in some of them, that salvage eoatrart>
are within the discretion of the court, s*^
will be set aside in all cases where, after tW
service is performed, the stipulated eovpcft-
sation appears to be unreasonable. If «k^
were the law, contracts for salvage services
would be of no practical value, and tslrvn
would be forced to rely upon the liberslity
of the courts.
Nor is such a contract objectionable, wWs
prudently entered into, *upon the gromd t^sV^*^
it may result more or less favoiablr to tW
parties interested than was antieipstM wbrs
lit V. a
18d8.
The Elfrida.
197190
the contract was made. A person may law-
fully contract against contingencies; in
fact, the whole law of insurance is based
upon the principle that, by the payment of
a small sum of money, the insured may in-
drauufy himself against the possibility of a
greater loss; or, bv the expenditure of a
trifling amount to-day in the way of pre-
mium, his family may receive a much larger
sum in case of his subsequent death. If there
were ever any doubt with respect to the va-
lidity of such contracts it was long since re-
moved by the universal concurrence of the
courts, and an enormous business has grown
up all over the world upon the faith of their
validity. Indeed, nearly every contract for
a special undertaking or job is subject to the
contingencies of a rise or fall in the price of
labor or materials, to the possibility of
strikes, fires, storms, floods, etc., which may
render it unexpectedly profitable to one party
or the other.
We do not say that, to impugn a salvage
eontract, such duress must be shown as
would require a court of law to set aside an
ordinary contract; but where no such cir-
cumstances exist as amount to a moral com-
pulsion, the contract should not be held bad
simply because the price agreed to be paid
turned out to be much greater than the serv-
ices were actually worth. The presimap-
tions are in favor of the validity of the con-
tract. The Helen and OeorgCy Swab. Adm.
368; The Medina, L. R. 2 Prob. Div. 5, al-
though in passing upon the question of com-
pulsion the fact that the contract was made
It sea, or under circumstances demanding
immediate action, is an important considera-
tion. If when the contract is made the price
agr^ to be paid appears to be just and rea-
sonable in view of the value of the property
at stake, the danger from which it is to be
rek^ued, the risk ^ the salvors and the salv-
ing property, the time and labor probably
necessary to effect the salvage, and the con-
tingency of losing all in case of failure, this
turn ought not to be reduced by an unexpect-
ed success in accomplishing the work, unless
the compensation for the work actually done
be grossly exorbitant.
[198] *While in Englaixi there has been some
8li|ht fiuctuation of opinion, by the great
weight of authority, and particiuarly of the
more recent cases, it is held that if the con-
tract has been fairly entered into, with eyes
open to all the facts, and no fraud or compul-
sion exists, the mere fact that it is a hard
bargain, or that the service was attended
with greater or less difficulty than was antic-
ipated, will not justify setting it aside. The
Mulgrave, 2 Hi^g. Adm. 77 ; The True Blue,
2 W. Rob. 176 ; The Henry, 15 Jur. 183 ; 8. 0,
2 Eng. L. & Eq. 564; The Prinz Heinrioh,
L R. 13 Prob. Div. 31; The Strathgarry
[1896] P. 264.
In The Kingalock, 1 Spinks, Eccl. ft
Adm. 263, an agieement was set aside upon
the ground that when the vessel was taken
in tow the master concealed the fact that she
bad been compelled to slip an anchor and
cable, and that her foresail was split. Dr.
Lushington thought that whether the omis-
sion to htate those fasrts would vitiate the
172 U. S. U. S., Book 43. 2
agreement depended upon whether they
could, with any reasonable probability, affect
the services about to be performed. He
found that the weather was very tempestu-
ous and the task was made much more diffi-
cult for the want of ground tackle, and hence
that the agreement was null and void. Per
contra, in the case of The Canova, L. R. 1
Adm. & Eccl. 54, he held that, as no danger to
property was proved, the agreement would
not be set aside by reason of the fact that a
gieat part of the crew of the vessel was dis-
abled by illness.
In The Phantom, L. R. 1 Adm. & Eccl. 58,
an agreement for eight shillings six pence
as an award for salvage services was set
aside as futile, where it appeared that there
was real danger to the salvors in rendering
the services. The value of the Phantom was
about seven hundred pounds. The case was
certainly a very hard one upon the salvors,
who appeared to have been ignorant beach-
men. But it is somewhat dii^cult to lecnn-
cile that with the prior case of The Firefly,
Swab. Adm. 240, where the court distinctly
held that it would not set aside a salvage
agreement because it neemed to be a hard
bargain; or that of The Helen and George,
Swab. Adm. 363, unless proved to be grossly
exorbitant, or to ha- e been obtained 'by com-[199}
pulsion or fraud. £t was also held in The
Waverley, L. R. 3 Adm. & Eccl. 369, that a
steamer which contracts to render salvage
strvices for a fixed sum will be held strictly
to her agreement, and that it is no ground
for extra salvage remuneration that the serv-
ice was prolonged or became more difficult.
See also The Jonae Andrles, Swab. Adm. 303.
In The Cargo ew Woosung, L. R. 1 Prob.
Div. 260, it appeared that the ship was
wrecked on a reef in the Red sea, and was
in a position oi imminent peril, and sub:ie-
quently went to pieces. A government vessel
was sent to her relief from Aden, and th«
master of the Woosung, "under circumstan-
ces of enormous pressui e," agreed to pay half
of the proceeds of the cargo saved. The
agreement was upheld by the admiralty
court (Sir Robert Phillimore), but was set
aside by the court of appeal upon the ground
that the officers of government ships, while
entitled to salvage, could not impose teims
upon the persons whose property they saved, *
and refuse to render assistance unless these
terms were accepted. The circumstances
showed a clear case of compulsion. So, too,
in The Medina, L. R. 1 Prob. Div. 272 ; S. C.
L. R. 2 Prob. Div. 5, where the master of a
vessel found passengers of another steamer
( 550 pilgrims ) wrecked on a rock in the Red
sea in fine weather, and refused to carry
them to Jeddah for a less sum than four
thousand pounds, and the master of the
wrecked vessel was by such refusal com-
pelled to sign an agreement ' for that sum,
and the service was performed without diflh
culty and danger, the agreement was held in-
equitable and set aside. The compulsion in
this case was even clearer than in the la«i.
In The Silesia, L. R. 6 Prob. Div. 177, a
vessel which with her cargo and freight was
valued at £108,000, on a voyage from New
411^
109-902
dUPBBMB COUBT OF THB UhITBD Bt ATHL
Oct.Tebi^
York to Hambun, became disabled about
S40 miles from Queenstown. The weather
was fine and the sea smooth^ but after toss-
ing about for four or five days, she hoisted
signals of distress. Another steamer bore
down upon her bound from Antwerp to Phil-
adelphia, and demanded £20,000 to take her
to Queenstown. The master of the Silesia
offered £5,000, and finaUy agreed to pay
£16,000, under threat of uie other steamer
to leaye him. The service occupied three
[BMldays. *llke court set aside the agreement as
exorbitant and awarded £7,000. Evidentl;^
advantage was taken of the helpless condi-
tion of the Silesia, and the agreement was
signed under compulsion.
In The Prituf Heinrich, L. R. 18 Prob. Div.
SI, the master of the Prinz Heinrich, which
was in a position of serious danger, and
ashore upon a barbarous and thinly inhab-
ited coast, entered into a written agreement
with Uie master of the salving steamer,
wherebv he agreed to pay £200 a day for
every day the latter stood by and assisted
by towing to get the Prinz Heinrich off, and
in the event of her being got off, or coming
off the rocks durinff the continuance of the
agreement^ to pay £2,000 in addition. The
Prims Heinrich came off the same day,
either owing to the jettison of her cargo or
to the towing of the salving steamer. The
court held the agreement to be reasonable, and
that the saivors were entitled to recover the
full £2,200, although th^ Heinrich was so
much damaged that she was subsequently
sold for £3,600. The cargo was valued at
£14,000. This is a strong case in favor of
sustaining the agreement.
In The Mark Lane, L. R. 16 Prob. Div.
135, a steamer becoming disabled in the At-
lantic Ocean in fine weather, about 350 miles
from Halifax, agreed to pay another steamer
£5,000 to tow her to Halifax, and, in case of
failing in the attempt to reach there, to pay
her for the services rendered. The value of
the properhr saved was somewhat less than
£30,000. Tlie contract was set aside, ap-
parently because of the stipulation in the
agreement to pay for the services rendered
even if they were unsuccessful. The court
found the contract to have been signed un-
der compulsion and threat of the salvage
steamer to leave her if the master refus^.
In The Rialto [1891] P. 175, a steamer in
the Atlantic fell in with another which had
broken her ntain shaft. Her master there-
upon entered into an agreement that the
owner should pay £6,000 for being towed to
the nearest port, believing that imless he
consented to such terms the salvors would
not assist. The distance towed was about
450 miles, and the value of the saved prop-
[t01]erty £38,000. The weather was fine *when
the contract was made. There was no
serious risk to the salvors or their vessel.
Hie court found the contract to be inequita-
14e, that the parties stood on unequal terms,
mnii itdiified the amoimt to £3,000.
The mojt rtucut case in the English courta
Is that of The dtraihgarry [1895] P. 264. In
this CAM a master of a vessel whose cylin-
ders we/e disabled entered into an agree-
418
ment with a passing steamah^ to pay £5M
for half an hour's towage, in ordor to fA
his enirines to work. The nawier broke im-
engines
mediately after the completioii of tlie ai^reed
time, and the steamship rafnaed to eontiniie
the towage. It was held that aHboa^ bo
benefit had resulted from the service, the
agreement had hem duly carried out, and
that it was not, under the drcumstaiieeBy
manifestly unfair and uniuat, and therefore
the stipulated sum must be paid. The ease
was certainly a hard one, but the ecmrt beld
that, notwithstanding the services lasted
but thir^ minutes, Uie whole £600 should
be paid.
In none of these cases, exeept» perliap%
that of The Phantom, was the agieemsat set
aside except upon proof of oom^»tioii, rap>
pression of facts, or circumstanoea amovnt-
ing to a compulsion. In the eaae ol The
Phantom the circumstances were peculiar.
The salvors were seven ignorant loogshore-
men, who agreed for a consideration which
amounted to but little more than a shilting
apiece to undertake the salving of a veasei
worth £700. The salvors labored for two
hours at great risk of their lives, and the
court natiurally held the ocmsideratka to be
merely nomimd.
Unaer the continental system the eoorts
appear to exercise a wider discreUcui, aad
to treat contracts as of no effect when made
while the vessel is in danger. Some ixti-
mations go so far as to say that they will
be disregarded whenever made before the
services are rendered. The doctrine of theae
courts seems to have ariaen from the follow*
ing extract from the fourth artide of the
Rules of Oleront
"And yf it were 80, that the majster aad
the marduiuntes have promised to f6Uce» that
shuld helpe them to save the ahyp aad
the said goodes, the thvrde parte or half «f
the said goodes whidi anuld oe saved for the
peryll that they be in, *the jus^ of th<liq
countrv ought well to regarde what paras
and what Ubour they have done ia sanag
them, and after that payne, notwithataadiag
that promise which the said mayster aad
the merchauntes shall have made, lewaids
them. This is the Judgement"
By the (German Commercial Code, art 74S,
it is enacted that, "when during the ilsiiaii
an agreement has been made aa to the
amount of salvage or payment for asaistp
ance, such agreement may neverthelsas be
disputed on the plea that the amount amed
upon was excessive, and the reduction w the
same to an amount more in accordanee to
the circumstances of the case may be de-
manded."
Under the Scandinavian Code, art. 27, the
master may, within two months, bring the
question of contract before the eourt, whidi
can refuse the amount if considerably in cs>
cess of a reasonable pavment for the serf*
ices performed. Bven if it beagreed that the
amount be settled by arbitratioB, the person
liable to pay may repudiate the agreeBssd if
he does so within fourteen days.
By the Commercial Code of Hona»d, ad
668, every agreement or tranaactioa renr^
ITS V* %
18Ww
Thb IBlisida.
:L0d-2C6
iBg the price of assistance or of salvage mi^
be modified or annulled by the judge, if ft
has been made in the open sea or at the time
•f stranding. Nevertheless, when the danger
Is passed, it shall be lawful for both to man
n^plations or agreements as to the price of
isiistanoe or salva^^e.
J^ the Commereial Ck>de of Portugal, art.
1808, and by that of the Argentine iMpublio,
I 1469, everr agreement for salvage made
^Km the high seas or at the time of strand-
i^, with the captain or other officer, shall
be null both with respect to the vessel and
to the cargo; but after the risk has termin-
ated the price may be agreed upon, although
it will not be binding upon the owners, con-
ngnees, or imderwriters who have not con-
sented to it
The French, Belgian, Italian, Spanish, and
Brasilian Codes have no special provisions
upon the subject, and the question of sus-
taininff or an3ulling them is rather a ques-
tion of fact than of law.
M] *We have examined the cases cited b^ooun-
id in the Revue Internationale de Droit Mar-
* itime, and find that they are more favor-
sUe to the respondent than the English and
American authorities. In short, they ap-
pear to pay much less regard to the
sanctity of contracts than obtains un-
der our system, and we are loath to ac-
eept them as expressing the true rule
ipon tiie subJMt. Indeed, we have had fre-
foent occasion to hold that the maritime
vsages of foreign countries are not obligatory
upon us, and will not be respected as author-
ity, except so far as they are consonant with
the well-settled principles of English and
American jurisprudence. The John O, 8te-
oeiu, 170 U. 8. 113, 126 [42: 969,975], and
orses cited.
The facts in this case are somewhat pecul-
iar, and, in entering into the contract, un-
nsoal precautions were taken. On October
6, the Elf rida in entering the river grounded
ty the stem about mid-channel, her bow
drifting over toward the west jetty. Her
erew were unable to get her off, either upon
that or the following day, when, owing to
the aea rising, she was carried over the jetty
and a very considerable distance further on
to the bea!ch (about 600 feet), where she re-
mained in seven or eight feet of water, n-ad-
nally working inward and making a bed for
herself in the sand, which had a tendency to
bank up about her bows. Shetippears to have
been atnotime in imminent peril, but her sit-
uation could have been hardly without seri-
•09 danger, unless she was released before a
heavy storm came on, which might have
broken her up or driven her so far ashore
tiiat her rescue would have been impossible.
It was shown that in previous years a num-
ber of vessels had eone ashore in this neigh-
borhood, several of which were lost by bad
weather comins on. In other cases the diffi-
culty of gettinff them off had been very
largely increased by similar causes. The
testimony shows that while the Elfrida lay
there the wind was at times blowing a gale
vith a rough sea, in which the ship strained
and bumpra heavily. On Saturday the 6th,
the dav of her final stranding, the master
172 V. 8.
having given up his idea of gettine her off
with her own anchors, telegraphed nis own-
ers and also Lloyds' asent at Galveston, who .
appear to have sent Mr. Clarke, one of the
lioellaiita, *down on Sunday evening. He of-[8M]
fered to undertake the relief of the ship for
what the court would allow him. This of-
fer the master dedined. About the same
time Mr. Sorley, Lloyds ' agent, came down
to the vessel, saw her situation, remained
there two days, and advised the master to in-
vite bids for her relief. He obtained two
bids, one for $24,000 and one made bv the
libellants for $22,000, and on the adviee of
Sorley and of his owners, Pynam, Bell k Co.,
of Newcastle-on-Tyne, with whom he kept in
constant communication by cable, he accepted
libellants' bid, and a contract was entered
into, whereby they agreed to float the El-
frida and place her in a safe anchorage, and
to complete the job within twenty-one days
from date. The master agreed to pay there-
for the sum of $22,000, but reserved the
right to abandon the ship in lieu of this
amount. At the request of the owners he
also inserted a further stinulation that if
the libellants should fail to noat the ship and
place her in a position of safety within twen-
ty-one days, they should receive no compen-
sation whatiever for the work performed, or
the labor, tools, or appliances furnished.
This contract was made at Velasco on Octo-
ber 16. Clarke proceeded at once to get
ready a wrecking outfit, consisting of a tug-
boat and a schooner, with fifteen or sixteen
men, went to the wreck, and spent about two
days planting anchors and connecting cables
from them to the winches of the ship. The
tugboat took no part in the actual relief of
the vessel which was effected by the aid of
the anchors and the steamer's engines, al-
though after the Elfrida was afloat she
drifted against the west jetty and the tug
hauled her off.
For the work actuallv done the stipulated
comjyensation was undoubtedly very large,
and if the validity of the contract depended
alone upon this consideration, we should
have no nesitation in affirming the decree of
the circuit court of appeals ; but the circum-
stances under which the contract was made
put the case in a very different liffht. In
the flrst place, the libellants offered to get
the vessel off for such salvage as the court
should award, but the master declined the
Eroposition, and, acting under the advice of
iloyds' agent and of Moller A Co.» the own-
ers' agents at Galveston, invited bids *for the[205]
sei-vice. This certainly was a very proper
step upon his part, and there is no evidence
showing any collusion between the bidders to
charge an exorbitant sum. The conditions
imposed upon the libellants were unusual
ana somewhat severe. Their ability to get
her off must have depended largely upon the
continuance of good weather. Their ability
to get her off within the time limited was
even more doubtful, and yet under their con-
tract they were to receive nothing — not even
a quantum meruit — unless they released her
and put her in a place of safety within twen-
ty-one days. Further than this, if in get-
ting her off, or after she had been gotten off,
419
805-^ T
SUPKEMB COUBT OF THE UkITED StATEB.
Oct. Tebm,
•be proved to be so much damaged that she
was not worth the stipulated compensation,
the master reserved tne right to abandon
her.
We give no weight to the advice of Pynam,
Bell & Co., her owners, to enter into the con-
tract, since in the nature of things they could
have no personal knowledge of her situation
or of the possibility of relieving her ; but it
shows that her master, though a young man
and making his first voyage as a master,
acted with commendable prudence. He took
no step without the advice of his owners and
that of the underwriters' agent at Galveston,
Mr. Sorley, who was a man over seventy
years of age, perfectly honest, and of large
experience in these matters. Sorlev visited
the vessel, saw her situation, and advised an
acceptance of the bid. The value of the ship
is variously estimated at from $70,000 to
$110,000,, but the sum for which she was in-
sured, £18,000 or $90,000, may be taken as
her approximate value. Under the stringent
circumstances of tins contract, we do not
think it could be said that an agreement to
pay one quarter of her value if released,
could be considered unconscionable or even
exorbitant, and, unless the fact that it
proved to be exceedingly profitable for the
libellants is decisive that it was unreason-
able, it ought to be sustained. For the
reasons above stated we think that the
disproportion of the compensation to the
work done is not the sole criterion. Very
few cases are presented showing a contract
entered into with more care and prudence
than this, and we are clear in our opinion
[806] that it should be sustained. *Had Uie agree-
ment been made with less deliberation or
pendin|^ a peril more imminent our conclu-
sion might have been different.
The decree of the Circuit Court of Ap-
peals must therefore he reversed, and the case
remanded to the District Court for the East-
em District of Texas with directions to exe-
cute its original decree.
UNITED STATES, Plff. in Err.,
V.
CHARLES LOUGHREY et al,
(See 8. C. Reporter's ed. 206-232.)
Mailroad land ffrant to Michigan — timber out
upon the lands — forfeiture of the grant
did not give the United States the right to
recover for timber previously cut — right to
bring the action,
1. The land grant to the state of Michigan in
aid of the construction of railroads, bj the
act of Congress of June 8, 185€. vested the
fee of the lands In the state, subject to a con-
dition sabseqnent that If the roads were not
completed In ten years the lands unsold
shonld revert to the United States.
2. The timber cut apon such lands prior to
the forfeiture onder said act belonged to the
state.
S. The forfeiture of such land grant by the act
of Congress of March 2, 1880. did not operate
by relation to revest Id the United States
title to timber which had been cat prior to
4«0
the act of forfeiture, so as to give the United
States a right of action against a trespasser
who cut the timber.
4. The rule that a mere trespasser cannot de-
feat the right of the plaintiff In trover by
showing a superior title In a third person,
without showing himself In privity or con-
necting himself with such third person, hae
no application to cases wherein the plaintiff
has shown no prima fade right to bring the
action.
[No. 22.]
Argued and Submitted April 21, 1898, De-
cided December 12, 1898,
r^ ERROR to the United States Circuit
Court of Appeals for the Seventh Circuit
to review a judgment of that court affirming
a Judgment of the United States Circoil
Court for the Eastern District of Wisconsin
dismissinff the complaint in an action
brought by the United States, plaintifr,
against George Loughrey et al, to recover the
value of timber cut from lands in the state of
Michigan. Affirmed,
See same case below, 34 U. S. App. 575.
Statement by llfr. Justice Brown t
This was an action originally begun by the
United States in the circuit oourt for the
eastern district of Wisconsin, to recover the
value of timber cut from the north hiUf of
the northwest quarter of the northeast quar*
ter of section tiiirteen, township forty-four
north, of range thirty-five vcest, in the state
of Michiffan. The oomplaint charged the
cutting of the timber oy one Joseph E.
Sauve, and that he removed from the lands
80,000 feet of timber so cut, and left the bal-
ance *skidded upon the lands. The defend-[E07]
ants were charged as purchasers from Sauve.
The amount of timber cut by Sauve was al-
leged to have been 600,000 feet, and the time
of the cuttinff in the winter of 1887-8 and
prior to the first dav of March, 1888.
The case was tried by the oourt without a
jury upon facts stipulated as follows:
First. The defendants, prior to the first
day of March, 1888, cut and removed from
the north half (Vi) of the northwest quarter
(NW. y^), and the northwest ouarter (NW.
%) of the northeast quarter (NE. %), and
the southeast quarter (SE. %) of the north-
east quarter (NE. %) of section thirteen
(13), in township forty-four (44) north, of
range thirty-five (35) west, in the state of
Midniffan, four hundred thousand (400,000)
feet of pine timber, and converted the same
to their own use.
Second. That such cutting and takinff of
said timber bv the defendants from said land
was not a wilful trespass.
Third. That none of the lands in question
were ever owned or held by any party as a
homestead.
Fourth. That the value of said timber shall
be fixed as follows: That the value of the
same upon the land or stumpage, at $2.50
per thousand, board measure ; ^iat the value
of the same when cut and upon the land,
$3.00 per thousand, board measure; that the
value of the same when placed in the riw
was $5.00 per thousana, board measure;
172 U. S.
1888.
United States y. LouGuiiET.
207-210
tliat the Tahie of the same when manufac-
tured was $7.00 per thousand, board meas-
Fifth« That the lands above described
were a part of the srant of lands made to the
state of Michigan by an act of the Congress
of the United States approved June 3, 1856,
being chapter 44 of volume 11 of the United
States Statutes at Large, and that said lands
were accepted by the state of Michigan by an
act of its legislature approved February 14,
1857, being public act No. 126 of the laws of
Middgan for that year, and were a part of
the luids of said grant within the six-mile
limit, 80 called, outside of the common lim-
its, 80 called, certified, and approved to said
state by the Secretaij of the Interior, to aid
in the construction of the railroad mentioned
M]*in said act No. 126 of tiie laws of Michigan
of 1857, to run from Ontonagon to the Wis-
eottsin state line, therein denominated ''The
Ontonagon k State Line Railroad Company."
The findinp; of facts by the court was in ac-
eordance with the foregoing stipulation,
with the additional finding that said rail-
road was never built, and said grant of lands
was never earned by the construction of any
railroad.
And as conclusions of law the court found:
First That the cause of action sued on
fai this case did not, at the time of the com-
mencement of this action, and does not now,
belong to the United States of America.
Second. That the defendants are entitled
to jud^ent herein for the dismissal of the
complaint upon its merits.
No exceptions were taken to the findings
of fact, and no further requests to find were
made. Exceptions were only taken to the
eondosions of law found by the court, and
for its failnre to find other and contrary con-
dnsions.
Upon writ of error sued out from the dr-
niit court of appeals, the Judgment of the
circuit court dismissing this complaint was
affirmed. 34 U. S. App. 575.
Whereupon the United States sued out a
writ of error from this court.
Messrs, Q^orse Hlnes Oomian and
/ok» K, Richards, Solicitor General, for
plaintiff in error.
Mr, W. H. Webster for defendants in
error.
'^l 'Mr. Justice Brown delivered the opinion
of the court :
To entitle the plaintiff to recover in this
action, which is substantially in trover, it is
necessary to show a general or special prop-
erty in the timber cut, and a right to the
possession of the same at the commencement
flf the suit.
There is no question that the lands be-
'''•jlonged to the United 'States prior to June 3,
1S56. By an act of Congress passed upon
that date (11 Stat, at L. 21, chap. 44), it
was enacted that ''there be, and hereby is
granted to the state of Michigan, to aid in
the construction of railroads from Little Bay
de Noqnet to Marquette, and thence to Onto-
nagon, and from the last two named places
to the Wisconsin state line,** with others not
172 U. 8.
necessary to be mentioned, "every alternate
section of land designated by odd numbers;
for six sections in width on each side of each
of said roads; . . . which lands . . .
shall be held by the state of Michigan for
the use and purpose aforesaid: Provided^
That the lands to be so located shall in no
case be further than fifteen miles from the
lines of said roads, and selected for, and on
account of each of said roads : Provided, fur*
ther, That the lands hereby granted shall be
exclusively applied in the construction of
that road for and on accoimt of which said
lands are hereby granted, and shall be dis-
posed of only as the work progresses, and the
same shall be applied to no othet purpose
whatsoever." By the third section it was
enacted that the "said lands hereby granted
to the said state shall be subject to the dis-
posal of the legislature thereof, for tiie pur-
poses aforesaid, and no other." Provision
was made in the fourth section for a sale of
the lands for the benefit of the railroads as
they were constructed. The last clause pro-
vided that "if any of said roads is not com-
gleted within ten years no further sales shall
e made, and the lands unsold shall revert to
the United States."
1. Under this act the state of Michisan
took the fee of the lands to be thereafter
identified, subject to a condition subsequent
that if the roads were not completed within
ten years the lands unsold should revert to
the United States. With respect to this
class of estates Professor Washbume says
that, "so long as the estate in fee remains,
the owner in possession has all the rights
in respect to it which he would have if ten-
ant in fee simple, unless it be so limited that
there is properly a reversionary right in an-
other,— something more than a possibUit^ of
a reverter belonging to a third person, when,
perhaps, chancery might interpose to pre-
vent waste of the premises." *1 Wash. Keal[210]
Prop. 5th ed. 05. As was said in De Peyater
V. Michael, 6 N. Y. 467, 506 [57 Am. Dec.
470], a right of re-entry "is not a reversion,
nor is it the possibility of reversion, nor is
it any estate in the land. It is a mere right
or chose in action, and, if enforced, the
grantor would be in by a forfeiture of a
condition, and not by a reverter. ... It
is only by statute that the assignee of the les-
sor can re-enter for condition broken. But
the statute only authorized the transfer of
the right, and did not convert it into a re-
versionary interest, nor into any other es-
tate, . . . When property is held on con-
dition, all the attributes and incidents of ab-
solute property belong to it until the condi-
tion be broken.'* Had the state through its
agents cut timber upon these lands, an ac-
tion would have lain by the United States
upon the covenant of the state that the lands
should be held for railway purposes only and
devoted to no other use or purpose; but the
state was not responsible for the unauthor-
ized acts of a mere trespasser, and it was no
violation of its covenant that another person
had stripped the lands of its timber.
In the case of Schulenberg v. Harriman, 21
Wall. 44 [22: 551], an act immediately pre-
421
910-818
BUPBSMB COUBT OV THB UHITBO 0TATB8.
Oct. Tbbi^
Mdiog this, granting poblio Uadi to the
•tate of Wisconsin to aid in the construction
of railroads in that state, and precisely simi-
lar to this act in its terms, was constnied by
this court as a grant in pftssenfi of title to
the odd sections designated, to be i^fterwards
located; that when uke route was fixed their
location became certain, and the title, which
was previously imperfect, acquired precision
and became attached to the lands. As it is
stipulated in this case that the lands from
which the timber was cut were a part of the
grant of June 8, 1856, to the state of Midii-
gan, and were a part of the lands within the
six-mile limit, certified and approved to the
state by the Secretary of the Interior, no
question arises with respect to the identic
of the lands.
The case of Sohulenherg r. Harriman was
also an action for timber cut upon lands
granted to the state, against an asent of the
state who had seised tfi logs, whidi had been
cut after the ten years had expired for the
construction of the railroad, but before any
(PIl]action had been taken by Confffees *to forfeit
*^ the grant. The complaint in the case alleged
proper^ and risht of possession in the pliun*
tiffs. It was stipulated by the parties that
the plaintiffs were in the quiet and peacea-
ble possession of the logs at the time of their
seizure bv the defendants, and that such pos-
session should be conclusive evidence of title
in the plaintiffs against evidence of title in
a stranger, unless the defendant should con-
nect himself with such title bv agency, or au-
thority in himself. The title of the plain-
tiffs was not otherwise stated. It was held
that the title to the lands did not revert to
the United States after the expiration of the
ten years, in the absence of judicial proceed-
ings in the nature of an inquest of office, or
a legislative forfeiture, and that until a for-
feiture had taken place the lands themselves
and the timber cut from them were the prop-
erty of the state. Said Mr. Justice Field, in
delivering the opinion of the court, p. 64:
''The title to the land remaining in the state,
the lumber cut upon the land belonged to the
state. While the timber was standing it
constituted a part of the realty; being sev-
ered from the soil its character was dianged ;
it became personalty, but its title was not
idBTecttMi; it continued, as previouslv, the
Eroperty of the owner of the land, and could
B pursued wherever it was carried. All the
remedies were open to the owner which the
law affords in other cases of the wrongful
removal or conversion of personal property."
The same rule regarding the construction of
this identical land grant was applied by this
court in Lake Superior Ship uanal, R, d I.
Co, V. Cunningham, 155 U. S. 354 [39: 183].
Indeed, the principle is too well settled to re-
quire the citation of authorities. The case
of Sohulenherg v. Harrimanf 21 Wall. 44
(22: 551], differs from the one under consid-
•eration in the fact that no act forfeiting the
grant was ever passed ; but it is pertinent as
ahoMring that under a statute preciselv like
the present the title to the timber cut oefore
such forfeiture is in the state, and not in the
general government.
It follows that the United States, having
422
no title to the lands at the time of the treo-
pass, and no right to the possession of tho
timber, are in no position to maintain this
suit. Neither a deed of land nor an assign-
ment of a patont lor an ^inrentioii earraa[SlS]
with it a right of action for prior trespasses
or inf ringemonta. Such rights of action are,
it is true, now assignible aj the statatea of
most of the states, but th^ ouIt pass with
a conveyance of the property itsdf where ths
language la dear and explidt to that effect.
1 Chit^, PI. 68 ; Gardner ▼. Adamg, 12 Wend.
297, 299; Clark ▼. WUton, 108 Mass. 219.
223 [4 Am. Rep. 682] ; Moore ▼. Mareh, 1
Wall. 616 [19:87]; Dibble ▼. Augwr. 7
Blatdif. 86; Mmrriam v. Bmith,U M.
Rep. 588; May ▼. Juneau County, 80 Fed.
Rep. 241 ; Kaolatype Bnyraving Company ▼.
Hoke, 80 Fed. Rep. 444.
So, where a landowner, intrusts aaothsr
with the posMssion of his lands, dther by
lease, by oontract to sell, or otherwise, tho
right of action for trespassee committed dur-
ing sudi tenancy bdongs to the latter, and
except under special drcumstances an action
for a trespass, such as the cutting of timber,
will not lie in favor of the landlord. Oreber
T. Klaokner, 2 Pa. 289; Campbell r. Ar^
nold, I Johns. 611; Tohey v. Websler, t
Johns. 468; CutU r. Spring, 15 Mass. 186;
Lienow r. Bitohie, 8 Pick. 236; Ward ▼.
MaoauUy, 4 T. R. 489; Revett v. Brown, 6
Bing. 7; Harper v. Charleeworth, 4 Bam.
k C. 574; GroAom ▼. Peat, 1 Bast, 244; Lum$
V. Broum, 13 Me. 236; 2 Oreenl. Bv. 9 616.
Although, as was said by Lord Kenyon In
Ward V. liaoauley, 4 T. R. 489, "the distine-
tion between the actions of trespass and tror-
er is well settled; the former are founded on
possession; the latter on property;"— yet
they are concurrent remedies to the extent
that, wherever trespass will lie for the un-
lawful taking and conversion of personal
property, trover may also be maintained.
The plaintiff is bound to prove a riffht of pos-
session in himself at the time of the oonver-
aion, and if the goods are shown to be In the
lawful possession of another by lease or simi-
lar contract he cannot maintain trover for
them. Smith v. Plomer, 15 Bast, 607;
Wheeler v. Train, 8 pick. 256; Gordon ▼.
Harper, 7 T. R. 9 ; Ayer v. Bartlett, 9 Pick.
166; Fairhank v. Phetpe, 22 Pick. 686.
It does not aid the plaintiffs' case to take
the position (the soundness of which we by
no means concede) that the state hdd the
lands as trustee to ddiver them over to the
railroads *upon ccnrtaln contingencies, and to[SlS]
return them to the United States in case the
conditions subsequent were not performed,
since nothins is better settled than that a
trustee has Uie legal title to the lands, and
that actions at law for trespasses must be
brought by him, and by him alone. 1 Perry,
Trusts, 9 828, and cases cited; Fenn ▼.
Holme, 21 How. 481 [16: 198].
Certain cases having a contrarr bearing
will now be considered. Several of these aro
to the effect that if a man leases an estate
for a term of years, and the tenant unlawfully
cuts timber, the lessor may sue in trespass,
and perhaps in trover, upon the ground that
172 U. S.
1898.
UHITBD BTATBB Y. liOUGHKEY.
2ia-216
the title to the land remains in the lessor dur*
Ing the pendency of the lease.
In Biohord Liford^a Case, 11 Coke^ 46,
whidi was an action of trespass by a tenant
•gainst the agent of the owner of the inherit-
mnoe for certain trees cut, it was said "that
when a nmn demises his land for life or
jears the lessee has but a particular interest
in the trees, but the general interest of the
trees remains in the lessor; for the lessee
shall have the mast and fruit of the trees,
and shadow for his cattle; etc., but the inter-
est of the body of the trees is in the lessor
as parcel of his inheritance; and this appears
in 29 Hen. VIII. [Malever ▼. Spinke] 1
I>jer, 36, where it is held in express words
that it cannot be denied that the proper^ of
great trees, soil, the timber, is reserved b^
the law to the lessor, but he cannot grant it
without the termor's license, for the termor
has an interest in it, soil, to have the mast
and fruit growing upon it, and the loppings
thereof for fuel, but the very property of the
tree is in the lessor as annexed to his inherit-
ance." Again, speaJdng of disseisin and tiie
respective rights of the disseisee and disseis-
or when the former regains possession, it is
said: 'That after the regress of the dissei-
iM Uie law adjudges, as to the disseisor him-
sdf, that the freehold has continued in the
disseisee, which rule and reason doth extend
as well to com as to trees or grass, etc. The
same law, if the feoffee, or lessee, or the sec-
ond disseisor, sows the land, or cuts down
trees or grass, and severs, and carries away,
or sells them to another, yet after the regress
of the disseisee he may take as well the corn
as the trees and grass to what place soever
[tl4]they are carried; for the regress *of the dis-
seisee has rdation as to the propertv, to con-
tinue the freehold against them sjl in the
disseisee ah initio, and the carrying them out
of the land cannot alter the property."
In Ckn^Um v. Harper, 1 T. K. 9, it was held
that where goods had been leased as furni-
ture with a house, and had been wrongfully
taken in execution by the sheriff, the landlord
eould not maintain trover against the sher-
iff, pending the lease, because he did not
have the nght of possession as well as the
right of property at the time. The case was
distinguished from one where the thinff was
attached to the freehold, and the doctrine of
Liford^a Case was reiterated, that where
timber is cut down by a tenant for years the
owner of the inheritance may maintain
trover for the timber notwithstanding^ the
lease because the interest of the lessee in it
remained no longer than while it was grow-
ing on the premises, and determined instant-
ly when it was cut down. See also Meara v.
London d 8. W, Rtoy, Co. 11 C. B. N. S. 850;
RandaU r. Cfleaveland, 6 Conn. 328 ; Elliot v.
8mUh, 2 N. H. 430; Starr v. Jaokaon, 11
Hass. 619.
These cases obviously have no application
to one where there has been a conveyance of
the fee of the land prior to the cutting of the
timber, and no re-entry or analc^ous pro-
ceeding on the part of the vendor for a
breach of a condition subsequent.
The same distinction was taken in Farrant
T. Thompson, 6 Bam. k Aid. 826, in which
172 U. 8.
certain mill machinery, together with the
mill, had been demised for a term to a ten-
ant, and he, without permission of his land-
lord, severed the machinery from the mill^
and it was afterwards seized under execu-
tion bv the sheriff and sold by him. It was
hdd that no property passed to the vendee,
and the landlord was entitled to bring trover
for the machinery, even during the continu-
ance of the teiTU, upon the ground that the
machinery attached to the mill was a part
of ^e ii&eritance which the tenant had a
right to use, but not to sever or remove.
So, in United States v. Cook, 19 Wall. 691
[22: 210], It was held that timber standing
upon lands occupied by Indians cannot be
cut by them for the purposes of sale, although
it may be for *the purpose of improving the[215] '
land, as the Indians had only the right of
occupancy, and the presumption was against
their authority to cut ana sell the timber.
In such case the property in the timber does
not pass from the United States by severance,
and they may maintain an action for unlaw-
ful cutting and carrying it away. To the
same effect is E. E. Bolles Wooden-Ware Co.
V. United States, 106 U. 8. 432 [27 : 230]
In Wilson v. Hoffman, 93 Mich. 72, the
same principle was extended to a plaintiff
in ejectment, who was held entitled to main-
tain an action for trover for logs cut by the
defendant durinff the pendency of the suit,
which had been determined in the plaintiff's
favor, although the defendant was in pos-
session of ^e land under a bona fide claim
of title adverse to the plaintiff. This is but
another application of the doctrine which al-
lows the plaintiff in ejectment to recover
mesne pronts upon the theory .that the land
has always been his, and that the defendant
illegally obtained possession of it. See also
Morgan v. Varick, 8 Wend. 587; Busch v.
Nester, 62 Mich. 381, 70 Mich. 525.
In Moores v. Wait, 3 Wend. 104, a person
entered into possession of wild lands under a
contract of sale giving him the right of entry
and occupancy, reserving to the landlord the
land as security until the payment of the
consideration by withholding the deed. It
was held that he had a right to enter and en-
joy the land for agricultural purposes, but
that he had no right to cut timber for any
other purpose than for the cultivation, im-
provement and enjoyment of the land as a
farm ; and that the owner of the inheritance,
who had never parted with his title, might
maintain an action of trover for it against
anyone in possession, although a bona fide
purchaser under the occupant. This was al-
so upon the principle that the vendor had
never parted with title to his land. But «»ee
Scott V. Wharton, 2 Hon. A M. 26; Moses
Bros, V. Johnson, 88 Ala. 517.
In Burnett v. Thompson, 51 N. C. (6 Jones,
L.) 210, the plaintiff had a life estate pur
autre vie in a lease of Indian lands for nine-
ty-nine years, and also a reversion after the
expiration of the term. A stranger entered
and cut down •cypress trees and carried them[216]
off. The plaintiff was permitted to recover. It
was held that "if there be a tenant for years
or for life, and a stranger cuts down a tree,
4Z3
81^218
bupBUMB Court of thb United States.
Ckrr. Tksm,
the particular tenant may bring trespass,
and recover damages for breaking his close,
treading down Lis grass, and the like. But
the remainderman, or reversioner in fee, is
entitled to the tree, and, if it be converted,
may bring trover and recover its value. The
reason is, the tree constituted a part of the
land, its severance was waste, which is an in-
jury to the inheritance, consequently the
party in whom is vested the first estate of
inheritance, whether in fee simple or fee tail
(for it may last always), is entitled to the
tree, as well after, it is severed, as before;
his right of property not being lost by the
wron^ul acts of severance by which it is
converted into a personal chattel." See also
Halleck v. Mixer, 16 Cal. 574.
While these cases run counter to some of
those previously cited, they are all distin-
l^ishable from the one under consideration
m the fact that the plaintiff was the owner
of the inheritance, and had the legal title to
the land at the time the trespass was com-
mitted. We see nothing in them to disturb
the doctrine announced by this court in
Schulenberg v. Harriman, 21 Wall. 44 [22:
651], that timber cut upon the lands prior
to the forfeiture belongs to the state. The
fact is that nothing remained of the original
title of the United States but the possibil-
ity of a reversion, a contingent remainder,
which would be an insufficient basis for an
action of trover. (Gordon v. Lotother, 75 N.
C. 193; Matthews ▼. Evdson, 81 Q^, 120;
Farahow v. Green, 108 N. C. 339; 8ager v.
Oallotoay, 113 Pa. 500. To sustain this ac-
tion there must be an immediate right of
possession when the timber is cut. This
might arise if the severance of the timber in-
volved a breach of obligation on the part of
the tenant, but if the timber were cut by a
third person, the question would be as to
the rignt to the timber so cut as against the
trespasser, and unless the case of Schulen-
berg ▼. Harriman is to be overruled, it must
be held to be that of the state.
2. As the United States can take title to
[S17]the timber involved *in this case only through
its ownership of the lands, it remains to con-
sider whether the act of March 2, 1889, (25
Stat at L. 1008, chap. 414), forfeiting the
lands pn^nted by this act to aid in the con-
struction of a railroad from Marquette to
Ontonagon, operated by relation to revest in
the United States title to the timber which
had been cut during the winter of 1887 and
1888 and prior to the act of forfeiture. This
act provided that "there is hereby forfeited
to the United States, and the Unittd States
hereby resumes title thereto, all lands here-
tofore granted to the state of Michigan
. . . which are opposite to and cotermin-
ous with the uncompleted portion of any
railroad, to aid in the construction of which
said lands were granted or applied, and all
such lands are hereby declared to be a part
of the public domain."
The position of the plaintiffs must neces-
sarily be that this act of forfeiture not only
revested in the United States the title to the
lands as of a date prior to the cutting of the
timber in question, but also revested them
424
with the property in the timber whidi kad I
been cut while Uie lajids belonged to the
state of Michigan, ^sui this act of forhttr
ure not been massed, there could be no ques-
tion that, unaer the case of Schuleiiberg v.
Harriman, 21 Wall. 44 [22:551], this timber
would have belonged to the state of Midi-
igan, and no other action therefor could have
been brought by the United States.
But conceding all that is contended for by
the plaintiffs with respect to the revestiturt
of the title to the lanos by this act, it does
not follow that the title to the timbo* whitk
had been cut in the meantime was also re-
vested in the United States. As was said ia
Schulenherg v. Harriman, the title to the
timber remained in the state after it had beea
severed. But it remained in the state as a
separate and independent piece of property,
and if the state had electea to sdl tt a good |
title would have thereby passed to the par-
chaser, notwithstanding tne subsequent act
of forfeiture. It did not remain the proper^
ty of the state as a part of the lands, but as !
a distinct piece of property, although the
state took its title thereto throu^^ and ia
consequence of its title to the lands. Fran
the moment it was cut the state was at liber- \
ty to deal with 'it as with any other pSeee o([tiql
personal proper^. Brothen v. Hurdle, 32
N. C. (10 Ired. L.) 490 [51 Am. Dee; 400].
We know of no principle of law under
which it can be said that timber whiA was
the property of the state when cut beeones
the property of the United States I7 aa set
of Congress resuming title to the luid horn
which it was cut, althot^ the timber nay
in the meantime have been removed hundren
of miles from the lands, and passed into the
hands of one who knew nothing ef the souret
from which it was derived. It may be, hi
such a case, that if the state sues for and r»>
covers the value of such timber, it might be
accountable to the United States f6r the pro-
ceeds in case the government resumed Utit tt
the lands.
Two cases cited by the Solicitor QcBsral
lend support to the doctrine Uiat the re8iiBip>
tion of title by the United States operate
upon the timber already cut, as w^ as upoa
the lands. In the first of these, Hmth v.
Rosa, 12 Johns. 140, the action was in trofor
for a quantity of timber cut upon lands fer
which the plaintiff had applied for a patoil
before the timber was cut. The patent was
not granted until after the timber was e«t
The patent was held, upon well-settled prte-
ciples, to relate back to the date of ap|Hica-
tion. The defendant knew he had do titk
to the lot or right to cut the timber. Ths
plaintiffs were held entitled to recover.
The other case is that of M%u9er v. McMm,
44 Minn. 343. In that case an act of Ooe-
gress granting lands to the state of Wiaeoe-
sin in aid of the construction of railroMk
provided that it should be lawful for the
agents appointed by the railway eonpaay,
entitled to the grant, to select, subject to tW
approval of the Secretary of the Interkr,
from the public lands of the United Statet,
"deficiency" lands within certain indemaity
limits. It was held that the issuance of s
patent to the railway company for the landt
17« U. 1^
Ksa
UmITSO bTATKB V. LoiMiUUIfiY.
;tfid-2;»4
fo selected was evidence that the company
had complied with all the conditions of the
grant, and was entitled to the lands described^
therein, and that the title passed from the*
United States at the date of the selection.
Aid it was farther held that where, after the
lands had been so selected, but prior to the
lliliirae of tha patent, 'timber had oeen wrong-
fnlJj cut and removed by trespassers, the
titie acquired by the patents must be held to
relate bade to the selection of the lands, so
u to save the purchasers to whom the lands
had been granted, a right of action for the
timber wrongfully removed from the land, or
iti value.
Tliese easea are distingulahable from the
ene imder consideration in the fact that the
^ahitiffs had an inchoate title to the lands,
^« title which no one could disturb, and
whidi the state waa bound to perfect by the
issue of a patent, provided the plaintiffs
followed up their application, ^e do not
i^ttk the doctrine of these cases ought to
be extended.
3. Mor are the plaintiffs entitled to avail
themadves of the rule that in an action of
trover a mere trespasser cannot defeat the
plaintiff's right to possession hy showing a
saperior title in a third person without show-
ing himsdf in privity or connecting^ himself
with sudi third person. The cases in which
thb prindple ia applied are confined to those
where the plaintins were either in possession
of the property or entitled to its immediate
possession, and thus showed a prima facie
riffht thereto. It has no application to cases
wherein the plaintiff has shown no such right
to bring the action. Jeffriea v. Great West-
am RaUway Co. 6 El. A Bl. 802; Weymouth
V. Chiemgo 4 V. W. Railway Co. 17 WU. 650
[84 AuL Dec 768] iWheeler v. Latoson, 103
N. T. 40; HaUeck r. Mixer, 16 Cal. 674;
Terry v. Metevier, 104 Mich. 50; Stevens v.
Gwrdon, 87 Me. 664; Fieke v. Small, 25 Me.
453. Counsel are mistaken in supposing
that the plaintiffs had an immediate right to
the possession of this timber. They had no
Tight to Uie possession of the land until Con-
frees passed the act of March 2, 1880, forfeit-
ug the grant. Up to that time the title was
hi the state, and until then the United States
had no more right to enter and take posses-
lion than they would have had to take pos-
session of the property of a private individu-
al
As the plaintiffs failed to show title to or
right of possession to the timber in ouestion,
tMre was no error in the action of the court
of appeals, and its judgment is therefore
eflirmed,
W] *Mr. Justice IXTblte, with whom concur
Mr. Chief Justice Fwller and Mr. Justice
Havlaa, dissenting:
The United States donated the land from
which the timber was cut to the state of
Michigan in aid of a contemplated railroad.
The donating act dedicated the property thus
eonveyed to the state, for the sole purpose of
aiding in the construction of the railroad,
and it contained a provision that if the road
was not built within a designated period tlie
land conveyed waa to revert to the United
172 V. m.
States. The road was never built, and the
granted land was forfeited by act of Con-
gress, because of noncompliance with the con-
ditions contained in the grant.
The issue presented for decision is the
right of tlie United Stater, to recover in an
action of trover the proceeds of timber cut
from the land by a trespasser while the le^al
title was in the state, but after the period
had elapsed when the right in the united
States to assert a forfeiture had arisen. The
decision of the court is that a recovery can-
not be had, because at the time of the sever-
ance of the timber by the trespasser the le-
§a] title was in the state. It is thus in effect
ecided that it was in the power of a tres-
passer, while the l^al title to the land and
its incidents was in the state, to destroy the
value of the land by severing and appropriat-
ing the timber, and that there exists no rem-
edy by which the right of property of the
United States can be protected. Such a con-
sequence strikes me as so abnormal that I
cannot bring my mind to assent to its cor*
rectness; and, thinking as I do that it in*
volves a grave denial of a right of property,
not only harmful in the case decided, but
harmful as a precedent for cases which may
arise in the future, I state the reasons for
my dissent.
At the outset it becomes necessary to de-
termine the nature of the rights of tiie state
and those of the United States created by
and flowing from the act of donation. That
the land from which the timber was cut be*
longed to the United States at the time of
the grant goes without saying. It was con*
vey^ by the act of Congress to the state,
not for the use and benefit*of the state, but[Ml]
for the sole purpose of aiding in the con-
struction of a railroad. The state had no
right to dispose of the land except for the
declared object; and while it is triAi that a
power to sell the land was vested by the
act in the state, it was a power which the
state could only call into being as the work
progressed, and, to quote from the act, "for
the purposes aforesaid and no other,"—
that IS, the specific object stated, namely, the
construction of tlie railroad referred to.
The granting act clearly imported that in
the event of a forfeiture before the land had
been earned and conveyed by the Rtate. the
land should be restored to tlie United States
in its integrity.
I submit that the efTect of the act of Con-
gress was to create a trust in the land and
to vest the legal title thereto, with incidents
such as timber, in the state of Michigan for
the purposes of the trust, to hold, primarily,
for the benefit of the owners of a line of
railroad if confltructed, and, secondarily, for
the benefit of the United States, in the con-
tingency that a forfeiture was declared for
a breach of the condition subsequent as to
the time of completion of the road. The
Htate, in all reason, was bound to rcfttore the
land and timber which passed to its posses-
hion to the United States, upon the declR ra-
tion of the forfeiture, retaining no beneOt
whatever from the land for itpelf by ren«^on
of such otistody and control. Beinf; clothed
with tlie legal* estate in the land, the stnte,
425
J21-824
SUPUKMB COUBT OF TU UVITSD 8TATI8.
while i% 80 held the land, "possessed aU the
power and dominion over it that belonged
to an owner." Statdey ▼. Colt, 5 Wall. 167
[18: 610]. As the timber when severed be-
longed to the true owner of the land^ the
•tate, as the trustee of an express trust mad
representing such owner, was the proper
party, during tne continuance of the trust,
to recover any portion of the inheritance
wrongfully converted by a trespasser, and
^is would have been the case even if the
United States had stipulated to retain pos-
session until a conveyance of the land by
the state. Wooderman v. Baldock, 8 Taunt.
676; White v. Morris, 11 C. B. 1015; Barker
▼. Furlong [1891] 2 Gh. 178; Myers v. Hale,
17 Mo. App. 204. Clearly this was so, be-
cause, to maintain replevin or trover, it is
|0St]essential that the pUintiff *have ai the time
of euit brought the legal title to the prop-
erty, and, until the enactment of the forfeit-
ing act, the Ic^al title to this timber was in
the state of Michigan.
It was manifestly because the legal title
was in the state that this court in Sohulen"
lera r. HarHman, 21 Wall. 44 [22: 661],
declared that a state was the owner oi tim-
ber which had been wrongfully cut by tres-
passers from land granted in aid of a rail-
road by a statute similar to the one above
referred to. The Schulenberg action was In-
stituted, however, at a time when no for-
feiture had been declared, and the contro-
versy was simply between a trespasser and
the state as to their respective rights in tim-
ber which had been unlawfully severed from
the granted land. That land so conveyed,
with all that formed part thereof, was
deemed to be held upon trust is manifest
from the opinion, for, speaking through Mr.
Justice Field, the court said, p. 69 [22: 664] :
^fhe acts of Congress made it a condition
precedent to the conveyance by the state of
any other lands that the road should be con-
structed in sections of not less than twenty
consecutive miles each. No conveyance in
violation of the terms of those acts, the road
not having been constructed, could pass any
title to the company.*
And this view was reiterated by this court,
epeaking through Mr. Justice Brewer, in
Lake Superior Ship Canal R. 4 I, Co. v.
Cunningham, 155 U. 8. 354 [30: 183], when,
in interpreting the very statute now under
oonsideration, it was said, p. 373 [39: 190] :
"Further, the grant to the state of Mich-
igan was to aid in the construction of a rail-
road. Aflirmatively, it was declared In the
acts of Congress that the lands should be
applied by the state to no other purpose,
ifven if there had been no such declaration
euch a limitation would be implied from the
declaration of Congress that it was granted
for the ffiven purpose. As the state of Mich-
igan haa no power to appropriate these lands
Ui any other purpose, certainly no act of
any executive officer of the state could ae-
compliBh that which the state itself had no
power to do."
To reason, however, to establish that, In so
far as the granting act restricted the state
|Md]to the use of the land and that *which ad-
hered in it for a particular purpose, it en-
426
gendered an ezpreee trust. It whoUj
essary, since it is admitted that bad te
the state through its agents cut tinnbor npoa
the land before the passage of the IdrfeitarB
aet, a right of action ¥rould have aiiaen oa
behalf of the United States agafaifli the
state as upon a covenant by the state that
it would keep the land and its ineideata lor
railway piirposee only. This condualon ne&>
essarily carries with It as a legal reeoltaat
the proposition that the granting aetoontaiaei
an express trust. How, then, I sobmit, eaa
it In reason be held that there waa a rl^
which could only exist upon the hypothesis
of an express trust arising from tha craai>
inff act, and yet It at the same tinea be d»>
cided that there was no tmst whatever Ib>
plied in the act, or that the r^^ts which
would obtain If there were a tnist have at
belngT It cannot be doubted that the act
restricted the use to a partlcolar parpee%
nor can it be gainsaid that the right cf re-
entry was stipulated only as leepecte te
non-completion of the railroad. Bat te
failure to preserve a right of re-entry In
case of the misuse of the property did net
destroy the terms of the act reetrktiig te
use, and as, therefore, the reetrictioa as te
use was unaccompanied with a davae ef re-
entry, the effect was to sive rise to a t
upon the grantee with rwerence to enA
This last principle, I rabndt. Is
by authority. Stanley t. Ooit, 6 WaD. lit,
166 [18:502, 609]; Paehard r. Ames, !•
Gray, 829, and cases dted; Sokier ▼. Ttkdtg
Church, 100 Mass. 1, 19.
As the state held the land with power sIb* <
ply to sell on the happening of a partladar
event, until the occurrence of that event ths
state had no greater riffhts In the land then
would have existed In favor of one who wu
entitled to the mere use and ocdmaney ef
the land. It could not therefore eeli the tte-
her for purposes of mere profit^ for, ae sati
in United States r. Cook, 19 WalL 601 [tt:
210] :
"The timber while standing It a nart ef
the realty, and can only be edd as the leal
could be. The land cannot be edd^ . . •
consequentlv the timber, until rightfnDy ssr
ered, cannot be.**
If, therefore, the state could not rMtfmDy
acquire the 'absolute ownenhip. In Its e«i(ili]
rignt, of timber, the cutting of whidi it hsi
authorized, it is dear that It would not be-
come such owner by reason of the nnlawfsl
act of an unauthorised pereon. As the state
of Michigan was without power to have s«-
thorised a sale of t)ie timber contrary to tbs
purpose of the trust. It Is obriooe that tki
act of a mere trespasser, without authority
from the state, In denuding the land d iti
timber, could not operate to vest the state m
the trespasser with the aheolute oweenhip»
in its or his own right, of said timber; sm
it Is the settled doctrine of this court thst
the sale of timber by a trespasser does ed
devdst the title of the real owner, and thst
a purchaser, even though acting la ged
faith, is liable to respond to the true emwst
for the timber or its value. United fit«$m
V. Cook, 19 Wall. 601 [22: 210] ; E. E. Balto
Wooden-u^are Co, v. United States, ^(^r.X
UvmD Statm y. Loughrbt.
tt4-2f7
a [27: 280]; Stone r. UfUied Biatm, W!
V. & 192, 196 [42: 188, 184].
The simple auestionpresented, then, is
%hu, snd tnis alone: Where the legal title
to land, with its incidents, is in one person
hardened with an express trust in favor of
anotha*, ean the cestui que truet, upon the
cassation of the trust, when the Utle to the
land and its incidents has revested in him,
Tseover from a wrongdoer the value of timber
cot, without color of right and unlawfully
removed from the land while the legal title
and possession thereto was in the trustee?
Tms question is, I think, fully answered
hj the rulings of this court in Sohulenberg
T. Herriman and LoJbe Superior Ship Canal
B,4 L€h.yf.ihmmingkemteupTa, because, as
aheady stated, in the first case it was said
tiiat ^te conveyance in violation of the terms
of these acts, the road not having been con-
structed, could pass any title to a mntee
of the state;" and in the second, that,^<as the
state of Midiigan had no power to appropri-
ate these lands to any other purpose, certain-
ty no act of any executive officer of the state
could accomplish that which the state itself
had no power to do." Now, no one will gain-
say that this court in those cases declared
that if the land was conveyed in violation of
, the terms of the act of Congress, an occupant
under such an unlawful grant might be
ousted by the United States, either forcibly
[SS6]«or 1^ suit in ejectment. With this doctrine
thus settled by this court in opinions which
are now approvingly cited, is it jet to be held
that if the occupant under a void grrant from
the state before forfeiture denude the land
of aU its timber, — that is, of one of its mate-
rial incidents,— 4he land might be recovered
by the United States from the trespasser, but
not the timber or its value? I submit that,
upon general considerations, as between the
wrongdoer and the cestui que trusty the bet-
ter right is in the latter, that such right can
be enforced, and that though ordinarily in
an action of trover it is essential that the
plaintiff should have had at the time of the
uidawful conversion the legal title and risht
of possession to the proper^ claimed by him,
yet, under such circumstances as I have in-
dicated, a titie by relation is a sufficient basis
for the action.
Belation is a fiction of law, adopted solely
for the purposes of justice {(Hhson v. Ohou-
teau, 18 Wall. 100 [20: 537] ) , and by it one
1^0 equitably should be so entitled is enabled
to assert a remedy for an injury suffered,
which otherwise would go unrearessed. The
doctrine is considered at much len^^ in
Butler V. Baker, 3 Coke, 25, in resolutions of
the Justices of England and the Barons of
the Sxchequer, and ''many notable rules and
cases of relations" (p. 356) are there stated.
The action was trespass, and the refusal of a
wife, after the death of the husband, to ac-
cept a jointure by which an estate tail had
vested in her nrior to the death of the hus-
band, was hda to relate back as to certain
lands, and not as to others. It was laid
down (p. 28b) ^hat relation is a fiction of
law to make a nullity of a thing ab initio (to
a certain intent) which in rei veritate had
essence, and the rather for necessity, ut res
ITS IT. S.
magis valeat quam pereat.'' And in Lord
Coke's comments on the case he observes (p.
30a) : "The law will never make any fio-
tion, but for necessity and in avoidance of a
mischief."
Early in England the doctrine of relation
was applied in favor of the King in cases
where, until office found, the title or risht of
possession to proper^, real or personal, was
not in the Crown, xnus, Viner in the eight-
eenth volume of his Abridgment, at page
202, title Relations, states the following
case:
"2, In quare impedit, where the King is en-
titled to the *advow8on by office by death of[289]
his tenant, the heir being within age and in
ward of the King by tenure in oapite, this of-
fice shall have relation to the death of the
tenant of the King; so that if there be a
mesne presentment the King shall avoid it hj
relation. (Br. Relations, pi. II. cites 14 H.
Vn. 22.)"
Several instances of the application of the
doctrine in favor of the King are referred to
at lenffth in the report of the case of Nichols
V. Nichols, 2 Plowa. 488 et sea,, one of which,
I submit, is preciselv paralld to the case at
bar, and is tnus stated in the report:
"In an action of trespass brought in 19
Edw. IV. for entering into a close and taking
the grass, the defendant pleaded that it was
found by office that the tenement escheated
to the iing before the day of the trespass,
and there it seems that, as to such things as
arise from the land, as the ffrass, and the
like, the action which was well given to the
plaintiff was taken away by the office found
afterwards, which by its relation entitled the
Kinff thereto; but, as to the entry into the
land, or breaking of fences, which don't arise
from the land, nor are any part of the annual
encrease of it, the action was not taken away
by the office.'*
This last case is reviewed, ai>provingly, in
the opinion of Bayley, J., in Harper v.
Oharlesworth, 4 Barn. A, C. 587, where, in an
action of trespass brought by one in the pos-
session of lands under a parol license from
agents of the Crown, which possession was
not good as against the Crown because not
^antod in comorroi^ to statute, it was ad-
judffcd that, as the Kins had not proceeded
against the occupant, the action might be
maintained, though the right of such occu-
pant to recover tor the trees was denied in
the opinion of Holroyd, J., presumably be-
cause they form part of the inheritance.
The doctrine was early enforced in Eng-
land to vest a right of action in trover in an
administrator. In 18 Viner's Abr., title R^
lation, p. 285, it is said:
"(1* If tt man dies possessed of certein
goods, and after a stranger takes them and
converte them to his own use, and then ad-
ministration is granted to J. S., this admin-
istration shall relate back to the death of the
testator, so that J. S. *may maintein an ac-[227J
tion of trover and conversion for this con-
version before the administration granted to
him. Trin. 10 Car. B. R. between Locksmith
and Creswell adjudged, this being moved in
arrest of judgment, after verdict for the
plaintiff. Intratur. Hill, 0 Car. Rot. 729.)"
427
827-C29
SuPHEMB Court of thb United States.
Oct. Tebm,
In the marginal note it is stated: ''For
this is to punish an unlawful act; but rela-
tions shall never devest any right legally
Tested in another between the death of the
intestate and the commission of administra-
tion."
An administrator has likflfwise been held,
by relation, to have such constructive riffht
of possession in the goods of the intestate he-
fore grant of letters as to be entitled to main-
tain an action of trespass. Tharpe v. Stall-
wood, 5 Mann. & O. 760, and cases there
cited. And, in Foster v. Bates, 12 Mees. A
W. 226, Parke, B., said (p. 233) :
"It is clear that the title of an adminis-
trator, though R does not exist until the
grant of administration, relates back to the
time of the death of the intestate; and that
he may recover against a wronedoer who has
seized or converted the goods of the intestate
after his deatii, in an action of trespass or
trover. All the authorities on this subject
were considered by the court of common
Eleas, in t^e case of Tharpe v. 8tallu)oodf 12
k J. C. P. N. S. 241 (a) , where an action of
trespass was held to be maintainable. The
reason for this relation given by Rolle, C.
J., in Long v. Hehh, Style, 341, is, that other-
wise there would be no remedy for the wrong
done."
The title of an assignee in bankruptcy was
also early held to relate back, for the purpose
of maintaining trover, to the time of tne com-
mission of the act of bankruptcy. See the
subject reviewed in BtUme v. Button, 9 Bing.
471, particularly pages 524, 525, where Tin-
dal, C. J., observed that in Brassey v. Daw-
son, 2 Strange, 078, Lord Hardwicke, then
chief justice of the King's bench, stated this
relation to be a fiction of law, but that, sub-
sequently, when chancellor, in Billon v. Hyde,
2 Yes. 8r. 330, he seemed to be of opinion tiiat
the terms of the bankrupt act, by necessary
construction, imported that such relation
was intended.
Another illustration of the application of
[828]the doctrine is *where a fprantee or mortga-
gee ratifies an unauthorized delivery of a
conveyance or mortfa^e to a third person, in
which case it is held that the title may relate
back to the unauthorized delivery, except as
to vested rights of third persons. See a re-
view of numerous authorities in Rogers v.
Heads Iron Foundry Company, 51 Neb. 30
[37 L. R. A. 420]. See also Wilson v. Hoff-
man, 03 Mich. 72, where it was held that a
successful plaintiff in ejectment might main-
tain an action of trover for logs cut by the
defendant from standing timber and re-
moved from the land during the pendency of
the suit, and while in possession of the land
under a bona fide claim of title adverse to
the plaintiff. In that case the court said
(p. 75) :
"In the present ease the true owner brings
trover against the party who cut the logs,
under a bona fide claim of title adverse to the
owner, after the title to the land has been de-
termined in favor of the plaintiff. . . .
If in the present case the logs had been upon
the land when the ejectment suit was deter-
mined, that determination would have estab-
lished the title in the plaintiff. Suppose,
428
however, that before the determination of fka
ejectment suit the logs had been skidded up-
on adjoining land, would the ownership or
right of possession depend upon whidi party
first reached the skiosT As is said in tlie
Busoh Case, as between the wrongdoer UMi
the true owner of the land, the titk to what
is severed from the freehold is not ehangei
by the severance, whatever may be the caM
as to strangers. If the true owner may keep
his own pro[>erty when he cets it, why may
not he get it if another has it?"
Many decisions of this and other eoorta fl-
lustrate the application of the doctrine to
various conditions of fact. Thus, where oat
has claimed land under a donation act, or
has entered upon land under homestead er
pre-emption statutes, the legal titie suhee-
quently acquired by patent mm been hdd to
relate bade to a prior period, to quote the lan-
guage of this court in Otbson t. Chouteau, \t
Wan. 100 [20: 536], ''so far as H is neeet-
sary to protect the riffhts of the claimant to
the lana, and the riffhts of parties deriving
their interests from him."
Among the cases recognizing and Mplyiag
the doctrine *that the legal title when ae{2f9)
quired mav be held, for certain purpoess, to
relate back to the inception of an indioatt
right in the land, which, however, was in ao
sense an estate in the la^d, may be dted the
following: Ross v. Barland, 1 Pet 666 [7:
302] ; Landes v. Brant, 10 How. 348 [IS:
440J ; Lessee of French t. Bpemeer, 21 How.
228, 240 [16: 07, 100] ; Orisar t. JfeOoiMll,
6 Wall. 363 [18: 863]; Beard v. Feiery, 3
Wall. 478 [18: 88] ; Lynch v. Bemal, 0 Wafl.
315 [10: 714] ; Stark t. Biatrre, 6 WaU. 461
[18: 025] ; Oibson v. Ohcuteam, 13 Wall ft,
100 [20: 534, 537] ; Shepley t. Oow9n, SI U.
S. 330 [23 : 424] ; Heath r. Roes, 12 Jehan
140; and Musser v. MoRae,'44 Minn. S4S. As
was said in Oibson t. Cfhoutmu, suprm, IS
Wall. 101 [20: 537], the doctrine of rdatioa
is "usually" applied in tills class of eases, but
is so applied '^for the purposes of justies."
I submit it is clear that the inchoate ri^rts
in land held in the cases above dted to be
sufiicient to warrant the application of the
doctrine of relation were of no greater legal
or equitable merit or efficacy than the illtc^
est or expectant right in land with its inci-
dents reserved to the United States by virtM
of the granting act of 1856 here eaamA'
ered, ana this it strikes me is patent wbta it
is borne in mind that it is conceded that the
interest of the United States in the land was
such that, if the timber had been cut hj tks
state, the United States had the better ri^
to the avails, and might, by an action for
breach of covenant, recover the msi
from the state. But if the state, whi^ WU
the legal title subject to an express trvt.
can be hdd to account by war of danagfi
in an action of covenant for timber cut va-
der its authority, why "for the purposei «f
justice" should not the doctrine of rabr
tion be applied in favor of the United Statsi»
at this Ume when, otherwise, a naked tis»>
passer, who had no title of any kind, uA
whom the state, while it was trustee, eboM
not to sue and cannot now sue, will escspt
liability and the United States be defranM
17« V. 9^
1886.
Umtkd States v. Louuhkky
22^;^
•f the Talue of its property? To deny relief
under such a state of facts is, I submit, to
hold that if A conveys land in fee to B in
trust, to be held for C until the happening
of a certain event, and, after the contin-
gency has happened, and the land has been
oonvqred to G and the trust thus terminated,
the former cestui que trust discovers that
the luid had been stripped of all its timber
[ISO] bv a trespasser and rendered practically
valueless, he ie without remedy, and must en-
dure the pecuniary injury without com-
plaint
If, as it seems to me is clearly the fact, the
state of Michigan held title to the timber
merely as an incident to the land, and could
only exercise such powers with respect to the
timber as it was entitled to exercise as re-
spects the land itself, it results that the state
did not stand in the attitude of a gran-
tee ot land upon condition subsequent,
to whom an absolute conveyance had been
made, for its sole use and benefit. Authori-
ties, therefore, to the point that in the case
of such a conveyance, the only right of the
grantor b to receive back, upon re-entry, the
granted land in the condition in which it
might then exist, have no pertinency in a
case like the present, where the grant was to
the state, not as absolute owner, but as a
mere trustee So, also, I submit ^at deci-
sions which hold that upon the commission of
a trespass upon land where the legal title and
possession is in the real owner, or upon an
infringement of a patent the lesal title to
which is in the real owner, a right of action
to recover damages for the trespass or in-
fringement immediately vests in such owner
and becomes personal to him, so as not to
pass upon a subsequent conveyance of the
land or assignment of the patent, have no
relevancy in cases like that at bar, where at
the time of the trespass or infringement oom-
plained of the legal title and the possession
were held by one who was a trustee for an-
otiier, and had no real, beneficial interest in
the land.
Nor can I see the appositeness of the cita-
tion of authorities hoioing that, during the
existence of a trust, the trustee, and not the
cestui que trust, is the proper person to sue.
This is readily conceded, and such was the
decision of this court in Schulenberg v. Ear-
riman and in Lake Superior Ship Canal, R.
d I. Oo. V. Cunningham, The question here
is not, Who may sue during the existence of
the trust? but, What are the rights of the
cestui que trust when the power of the trus-
tee has ended and the property has reverted
under the terms of the trust?
The decisions are uniform, that even where
land is in the possession of a lessee, upon an
[S81]ananthorized severance of *growiiig timber,
the title and right of possession to the sev-
ered timber is at once vested in the owner of
the land, or, as it is sometimes expressed, the
owner of the inheritance; and the latter may
resort to the appropriate remedies against
one who unlawfully removes the severed tim- '
172 U. 8.
her from the land. Liford's Case, 11 Ooka^
4(56, 48a; Ward v. Andrews, 2 Chitty, 636 ; 8.
C. 4 Kent, Com. 120; United States v. Cook^
19 Wall. 591, 594 [22: 210,211]; Burnett v.
Thompson, 51 N. C. (6 Jones, L.) 210, 213;
Mathers v. Ministers of Trinity Church, 3
Serff. & R. 515 [ 8 Am. Dec. 663], and cases
cited; Moores v. Wait, 3 Wend. 104, 108; '
Gordon v. Harper, 7 T. R. 13; 1 Chitty, '
Plead. 16th ed. 217, star paging 168; 1
Wash. Real Prop. 5th ed. 498, note T, star
paging 314; and the same principle applies
to whatever is part of the inheritance and
is wrongfully severed and removed from the
land. Farrant v. Thompson, 5 Barn. &'Ald.
820, 828.
To summarize, therefore: The state of
Michigan was not the beneficial owner of the
land from which the timber in question was t
severed,, but held the legal title merely as a
trustee, though, by virtue of being vested
with the legal estate, the state was entitled
to enforce, for the benefit of the real owner,
such remedies as the latter might have re-
sorted to had he held the legal title. But
if the ownsr, the United States, is not per*
mitted to maintain the present action, it
loses property which it had a clear right to
receive, and the wrongdoer goes unpunished.
These circumstances present all the elements
which justify resort to the fiction of law by
which a person who, in equity and good con-
science, was the real owner at the time of an
unlawful conversion, is to be regarded, as
against the wrongdoer, to have had the legal
title and possession, by relation, in him at the
time of such conversion, and therefore as
having had such a title and possession as,
when nis disability to assert his rights no
longer exists, will entitle him to maintain
an action of trover.
Indeed, it seems to me that in reason it is
impossible to deny the right of the true
owner to recover the timber, without involv-
ing the mind in irreconcilable propositions
and in addition making use of a complete
nonsequitur, that is to say, first, that there
was no trust, and j^et that rights existed
*which could only arise by reason of a trust ;[238|
and second, that the trustee alone could sue
during the existence of the trust, therefore,
on the termination of the trust, the same
doctrine applies. Reduced to its last analy-
sis, the doctrine now announced is, I submit,
really this: That the United States could
not recover whilst the trust existed because
the trustee must assert the right, and that
it likewise could not recover after the ter-
mination of the trust, and, hence, could not
recover at all. The result in effect concedes
the existence of aright of property, but holds
that it cannot be protected because the law
affords no remedy. The maxim, Vbi jus,ib%
remedium, lies at the very foundation of all
systems oJt law, and, because, as has been
stated at the outset, I cannot believe that the
common law departs from it, I refrain from
giving my assent to the conclusions of the
court, and express my reasons for dissenting
therefrom.
429
98»-985
SUPBBMB OOURT OV THB UhITBD 8TATB8.
Oct. Tb&m,
WHJJAH GRANT, Receiver of the Eetata
of Oliver J. Morgan, Plff. in Brr.,
V.
JOHN A. BUGKNER.
(See & C Beporter'e ed. S83r289.)
Date of pre-^wisting right — eet-o/f of
9uit in state oourt ov receiver appointed
by Federal court — oUofoonoe of eet^f.
S. An adjudication that a party la entitled
onder a conTejanoe to one half the eetate Is a
determination of a pre-exletlng rlfht which
dates from the time of the conTejance.
X One half the rent paid to a recelTer by one
who took a leeae from him rather than be dla-
poteeased, but who Is i nbeequently adjudfed
to be' the owner of one half the estate, may
be set off against the rent thereafter accruing
for the half that Is subject to the recelTer.
i. A recelTer In a Federal court who Tolun-
tartly goes Into a state court cannot ques-
tion the right of that court to determine
the controTorsy between himself and the
ether party.
C A counterclaim or set-off comes within the
spirit of the act of Congrees of August 18,
1888, allowing a recelTer of a Federal court
to be sued In a state court without leave of
the court appointing him.
[No. 89.]
Submitted Vovemher t9, 1898. Decided Do-
oeniber 19, 1898.
IK ERROR to the Supreme Court of Looia-
iana to review a judgment of that court
aflSrming a judgment of the District Court
of the Seventh Judicial District for Bast
Carroll Parish, Louisiana, in favor of the
defendant, John A. Budmer, allowing his set-
off for rent to the claims of William Grant,
receiver of the estate of Oliver J. Morgan,
plaintiff in an action brought by him to
recover one half the stipulated rent of the
Melbourne plantation m that state. A/-
firtned.
See same case below 40 La. Ann. 688.
The facts are stated in the opinion.
Mr, J. D. Bouse for plaintiff in error.
Mr, Tbonuta Marshall HUler for de-
fendant in error.
[883] *Mr. Justice Brewer delivered the opin-
ion of the court:
This case comes on error to the supreme
court of the state of Louisiana. It is per-
haps the last step in a litigation which nas
been going on for a quarter of a century, and
which has twice appeared in this court.
Johnson v. Waters, 111 U. S. 640 [28: 547] ;
Mellen v. Buckner, 139 U. S. 388 [35: 199].
In those cases the full story of the litigation
is told. For the present inquiry it is suffi-
cient to note these facts: Prior to the late
civil war Oliver J. Morgan was the owner of
five plantations in the state of Louisiana.
His wife died intestate in 1844, leaving two
children as her sole heirs. The property
standing in his name was conununity prop-
ertv. In 1858 he conveved the plantations
to his children and grandchildren. The pur-
pose of this conveyance was, first, to secure
430
to the granteit their shares in the property
as the heirs of hia wife, and sooondly, to make
a donation from himself. He died in 1860.
In 1872 certain *orediton of Morgan, oredit-t'^S^l
ore of him individuallv, and not of tiie com-
munity, brought suit In tho oircolt oourt of
the United States to set aside the eonvey-
ance and subject his interest in the property
tothe payment of their debts. Their oonten*
tion waa sustained by the dreoit court, and
its decree was substantiidly aifirmed by thia
court. Ill U. 8. 640 [28: 6471. Thereaf-
ter, and in May, 1884, the oiromt court ap-
pointed a reoeiver to take ehargt of all too
property conveyed 1^ Morsan. Mellxmma
plantation was at the time in the possession
of the present defenduit in error, claiming
under tne oonv^ance made by Morgan in
1868. After the appointment of the receiver
the defendant in error, rather than be dis-
possessed, leased from him the plantation.
The litigation oontinued, and, new parties
being named, came to this court arain in
1891. 139 U. S. 388 [35: 199]. It waa
then decided that one undivided half of tlio
Melbourne plantation belonged to the defend-
ant in error, and that on^ the remaining
half waa subject to the debts of Morgan.
The language of the decree waa: "The said
heirs are entitled to have and retain a cer-
tain portion of said Oliver J. Morgan's es-
tate free from the claims of bis ereutors, as
follows, to wit: two fifths of the four plan-
tations, Albion, Wilton, Westland, and Mor^
ffana, are directed and decreed to be reserved
for the benefit of the heirs of Julia Morgan,
deceased; and one half of Melbourne planta-
tion is directed and decreed to be reserved
for the benefit of the heirs of Oliver H. Kel-
1am, Jr., deceased; and that the remaining
interest in the said plantations la decareea
and adjudged to be subiect to the payment
and satisfaction of the aebts due to de ad-
ministrator of said William Gav," etc; and
further, after providing for other matters^
"but if the heirs shall not desire a sever-
ance of their portions, then the whole pro^
erty to be sola and th^ to receive their re-
spective portions of the proceeds, but no al-
lowance for buildings. Any moneys in the
hands of the receiver, after paying his ex-
Knses and compensation, are to be divided
tween the oreditors and heirs in the pro-
portions above stated, applying tiie amount
due to the heirs, so far as may be requisite,
to the costs payable by them." Two years
thereafter the interest of 'Morgan in the[836]
plantation was sold in accordance witib the
terms of the decree. The defendiuit had paid
to the receiver the rent of the entire planta-
tion from 1884 up to the decree in 1891, but
paid nothinff thereafter. This action waa
commenced by the receiver in the district
court of the seventh judicial district for East
Carroll parish, Louisiana, to recover one half
the stipulated rent of the Melbourne planta-
tion for the years 1891 and 1892, as well aa
one half of the taxes thereon for those years.
The defendant answered, not questioning his
liability for the matters set forth in the peti-
tion, but alleging that between 1884 and
1891 he had paid the receiver rent for tiie
entire plantation, one half of which had been
178 U. 8.
isoa.
ObaMT y. BUOXNBR.
280-288
tsaJlj »djQdg«d to be his propertj, and not
■abject to the dainis of creditors of Morgan,
and prayed to set off the one half of the rent
wrongfully collected between 1884 and 1801
against the one half due for the years 1891
and 1892, and for a Judgment over against
the receiver for any surplus. The trial court
sustained his defense so far at to decree afull
set-off to the claims of the receiver. The
supreme court of the state affirmed the trial
court in this respect, but amended the Judff-
ment so "as to resenre the defendanrs
right to demand of and recover from the
plaintiff the residue of the amount of the
rents he has collected in excess of the sum ac-
tually due bv the defendant, after a suffi-
cient thereof has been used to extinguish by
compensation the donandsof said receiver in
this suif 49 La. Ann. 668. Whereupon
the receiver sued out this writ of error.
Two questions are presented: First, Was
the defendant entiUea to set off against the
rent unquestionably due for the undivided
half of the plantation for 1891 and 1892, one
half of the amount paid by him for rent be-
tween 1884 and 1891, on Uie ground that it
had been finally adlud^ed that he was the
owner of one undivided half of the planta-
tion, and therefore that the receiver had im-
properlT collected the rent therefor and, sec-
ond, if he was entitled to such set-off, was he
precluded from obtaining the benefit of it
in the state courts by the fact that the re-
ceiver was an officer of the Federal court, or
by any proceedings had in that court?
tS86] *Tbe contention of the receiver is that the
defendant's right to one half of the planta-
tion dates from the decree in 1891, while the
defendant insists tiiat it dates from the con-
veyance 4n 1868, and that the decree only
determined a pre-existing riffht. We concur
in the latter view. As a riue courts do not
create, but simply determine rights. The
adjudication that the defendant was enti-
tled to an undivided one half of the planta-
tion was neither a donation nor an equitable
transfer of property in Ueu of other claims.
It was a aetermination of a pre-existing
right, and that right dates and coidd only
date from the convevance in 1858.
The conclusions of the circuit court of the
United States, as expressed in an opinion
and passed into a decree, — a decree not a
the
pealei from, and therefore final between the
parties, — are to the same effect. Such opin-
ion and decree appear in the record. In the
opinion, which was announced after the de-
cision of this court in 139 U. S. 388 [35 :
199], it was said: "From this last opinion
and decree of the supreme court in the mat-
ter, we are forced to conclude that the por-
tions of lands set off and adjudged to the
heirs of Julia Morgan and heirs of 0. H.
Kellam, Jr., were so set off and adjudged to
them as the owners thereof in their own
right as the heirs of Julia Morgan and 0. H.
Kellam, Jr., who were the heirs of Narcisse
De^n.the vrife of Oliver J. Morgan, and not
to them in any wav as the heirs of Oliver J.
Morgan or as creditors or claimants of his
estate. . . . The heirs of Julia Morgan
and Oliver H. &ellam, Jr., participated in
the fund recovered in the original case of
172 U. 8.
Oay, Administrator, v. Morgan, ExwmtOTp
et al,, but the carefid reading and considera-
tion which we have given the opinions and
decrees of the supreme court, and particu-
larly the supplemental decree in all tne cases
consolidated, give us the firm impression
that the court intended to hold and declaro
that the portions recovered by said heirs
were thein of right, and that they were to
have them, not only free of the claims of
creditors of the estate of Oliver J. Morgan,
but free from all costs and claims except as
in the several decrees adjudged, and as tnere-
after miffht be necessary in effecting parti-
tion." And in the decree it was amonff
*other things adjudged that "so much of saia[281f
decree of June 2, 1893, as the same is of rec-
ord herein, as charges or attempts to charse
the said John A. Buckner and Etheline Buck*
ner as the owners of one half of Melbourna
plantation, or that attempts to charge their
said one half of said Melbourne plantar
tion vrith lien privilege to contribute or to
recuse the contribution of the sum of seven
thousand three hundred and forty-seven
.30 dollars to the payment of costs, disburse-
ments, and solicitors* fees allowed by the
court in and fbr the prosecution of the bill
and action in case No. 6612 of the casee
herein consolidated, be, and the same are,
canceled, abrogated, annulled, and taken
from said decree, and that the said John
A. Buckner and Etheline Buckner, be.
and are now decreed to take and hold
said one half of the said Melbourne plan-
tation allotted to them free from said
charge and liability for said costs, disburse-
ments, and solicitors' fees charged against
them in said decree of June 2, 1893, as con-
tribution to the expenses of the prosecution
of said cause No. 6612 and of the causes
herein consolidated." Obviously, the effect
of this last decree was to materially modify
the terms of prior orders and decrees, and to
change the relations of the defendant as the
owner of one half of the Melbourne planta-
tion to the receivership.
The provision in the decree of this court
in reference to the division between the cred-
itors and the heirs of the moneys in the hands
of the receiver after paying his expenses and
compensation is one evidently applicable in
case of the sale of the entire property, and
cannot be construed as charging against the
defendants, the heirs of Mrs. Morgan, any
share of the costs incurred by the creditors
of Mr. Morgan, in their efforts to subject his
property to the payment of their debts.
Rents follow title, and the owner of the
realty is the owner of the rent. So that from
1884 to 1891, and while the question of title
was in dispute, the defendant was paving to
the receiver rent for an undivided half of the
plantation, property which was absolutely
nis own, and which the receiver ought not to
have had possession of. The rent thus col-
lected belonged to defendant, and could not
be taken *by creditors of Morgan or appro-[83f|
priated to pay the cost of their lawsuits. So
it is that the receiver, having in his posses-
sion money belonginff to the defendant, to
wit, the rent of one naif the property from
1884 to 1891, now asks a Judgment which
431
38^985
SUPBBMB OOURT OV THB UhITBD STATBS.
Oct.
WHJJAH GRANT, Receiver of the Estate
of Oliver J. Morgan, Plff. in Err.,
V,
JOHN A. BUGKNER.
(See & a Beporter'e ed. S83r289.)
Date of pre-ewieting right — eet-o/f of rent —
$uit in state oourt oy receivor appointed
by Federal court — oUoiaafioe of eet-off.
S. An adjudication that a party Is entitled
nnder a conTcjenoe to one half the estate is a
determlDatlon of a pre-ezlstlng rl|;ht which
dates from the time of the conTejsnce.
S. One half the rent paid to a recelTer bj one
who took a lesse from him rather then be dis-
possessed, bat who is subseqaently adjadfed
to be the owner of one half the estate, maj
be set off sgalnst the rent thereafter aecmlng
for the half that Is subject to the recelTcr.
i. A receiver In a Federal court who volun-
tarily goes into a state court cannot ques-
tion the right of that court to determine
the controversy between himself and the
ether party.
4, A counterclaim or set-off comes within the
spirit of the act of Congrees of August 18,
1888, allowing a receiver of a Federal court
to be sued In a state court without leave of
the court appointing him.
[No. 89.]
Submitted November t9, 1898. Decided De-
cember 19, 1898.
IK ERROR to the Supreme Court of Louis-
iana to review a judgment of that court
aflSrming a judgment of the District Court
of the seventh Judicial District for East
Carroll Parish, Louisiana, in favor of the
defendant, John A. Buckner, allowing his set-
off for rent to the claims of William Grant,
receiver of the estate of Oliver J. Morgan,
plaintiff in an action brought by him to
recover one half the stipulated rent of the
Melbourne plantation in that state. A/-
firmed.
See same case below 49 La. Ann. 688.
The facts are stated in the opinion.
Mr, J. D. Bouse for plaintiff in error.
Mr, Tbonutfl Marshall HUler for de-
fendant in error.
[S83] *Mr. Justice Brewer delivered the opin-
ion of the court :
This case comes on error to the supreme
court of the state of Louisiana. It is per-
haps the last step in a litigation which nas
been going on for a quarter of a century, and
which has twice appeared in this court.
Johnson v. Waters, 111 U. S. 640 [28: 547] ;
Mellen v. Buckner, 139 U. S. 388 [35: 199].
In those cases the full story of the litigation
is told. For the present inquiry it is suffi-
cient to note these facts: Prior to the late
civil war Oliver J. Morgan was the owner of
five plantations in the state of Louisiana.
His wife died intestate in 1844, leaving two
children as her sole heirs. The property
standing in his name was conununity prop-
ertv. In 1858 he conveved the plantations
to his children and grandchildren. The pur-
pose of this conveyance was, first, to secure
430
to the granteit their shares in the jwopeity
as the heirs of his wife,and sooondlr, to make
a donation from himsdf. He died fai 1860.
In 1872 certain *erediton of Morgaa, orcdttl'tti]
ors of him individually^ and not of the oqm-
munity, brought suit in tha dreoii eovrt ei
the United States to set aside the oobvct-
anoe and subject his interest in the imiyeit/
tothe payment of thdr debts. Their eo»t—
tion was sustained by the drenit ooort, aai
its decree was substantially affirmed bj tkm
court. Ill U. S. 640 [28: 5471. ~
ter, and in Kay, 1884, the eireoit ooait m-
pointed a reoeiver to take diargt of all no
propertT conveyed by Morpan. MdbooiBt
plantation was at the time in the poeeaBsiw
of the present defenduit in error, Haimi^
under tne conveyance made by Morgan in
1858. After the appointment of the reeeiver
the defendant in error, rather than be die-
possessed, leased from him the plantatioB.
The litigation continued, and, new parties
being named, came to this court again ii
1891. 139 U. S. 888 [85: 199]. It was
then decided that one undivided half of the
Melbourne plantation belonffed to the defend-
ant in error, and that only the remaini^f
half was subject to the diwts of Morgan.
The language of the decree was: 'Tlia said
heirs are entitled to have and retain a cer-
tain portion of said Oliver J. Moigan's es-
tate free from the claims of his eredutora, as
follows, to wit: two fifths of the four plan-
tations, Albion, Wilton, Westluid, and Mor-
ffana, are directed and decreed to be leeened
for the benefit of the heirs of Julia Morgaa,
deceased; and one half of Melbourne ^aat^
tion is directed and decreed to be leeened
for the benefit of the heirs of Oliver H. Kel-
lam, Jr., deceased; and that the remainiv
interest in the said plantations is decreed
and adjudged to be subiect to tha psraMBi
and satisfaction of the aebts due to the ad-
ministrator of said William Oar," etc ;
further, after providing for otMr
"but if the heirs shall not deeire a
anoe of their portions, then the whola pro^
erty to be sola and th^ to receive theu' re-
spective portions of the proceeds, but bo al-
lowance for buildings. Any moneys in the
hands of the receiver, after payiiw his ei-
penses and compensation, are to be divided
between the creditors and heirs in the pro-
portions above stated, applying the *"»**■«*
due to the heirs, so far as may be requisite,
to the costs payable by them.^ Two yean
thereafter the interest of 'Morgan in ths[iM
plantation was sold in accordance vrith lbs
terms of the decree. The defenduit had paid
to the receiver the rent of the entire planta-
tion from 1884 up to the decree in 1891, bat
paid nothinff thereafter. This action wss
commenced oy the reoeiver in the district
court of the seventh judicial district for East
Carroll parish, Louisiana, to recover onehslf
the stipulated rent of the Melbourne planta-
tion for the years 1891 and 1892, as well ss
one half of the taxes thereon for thoee yean.
The defendant answered, not questioning his
liability for the matters set forth in the peti-
tion, but allying that between 1884 and
1801 he had paid the receiver rent for the
entire plantation, one half of whidi had been
172 U. t.
1896.
ObaKT y. BUCKNBR.
280-288
iBaUj Adjudged to be his propertj, and not
snlnoet to the daims of creditors of Morgan,
•■d prayed to set off the one half of the irent
wrongfully collected between 1884 and 1891
sgainst the one half dne for the years 1891
end 1802, and for a Judgment over against
the receiver for any surplus. The trial court
sustained his defense so far as to decree afull
set-off to the claims of the receiyer. The
supreme court of the state affirmed the trial
court in this respect, but amended the Judff-
ment so ''as to reserve the defendiBint's
right to demand of and recover from the
plaintiff the residue of the amount of the
rents he has collected in excess of the sum ac-
tually due 1^ the defendant, after a suffi-
ciency thereof has been used to extinguish by
eompensaUon the donandsof said receiver in
this suit" 49 La. Ann. 668. Whereupon
the receiver sued out this writ of error.
Two questions are presented: First, Was
the defendant entitled to set off against the
rent unquestionably due for the undivided
half of the plantation for 1891 and 1892, one
half of the amount paid by him for rent be-
tween 1884 and 1891, on the ground that it
had been finally adjudged that he was the
owner of one undivided half of the planta-
tion, and therefore that the receiver had im-
properlv collected the rent therefor and, sec-
ond, if be was entitled to such set-off, was he
r eluded from obtaining the benefit of it
the state courts by the fact that the re-
ceiver was an officer of the Federal court, or
bj any proceedings had in that court?
186] *Tlie contention of the receiver is that the
defendant's right to one half of the planta-
tion dates from the decree in 1891, while the
defendant insists that it dates from the con-
▼eysnoe in 1858, and that the decree only
detennined a pre-existing riffht. We concur
in the latter view. As a riue courts do not
create, but simply determine rights. The
tdjudioation that the defendant was enti-
tled to an undivided one half of the planta-
tion was neither a donation nor an equitable
transfer of property in lieu of other claims.
It was a aetermination of a pre-existing
right, ai^ that right dates and coidd only
date from the conveyance in 1858.
The conclusions of the circuit court of the
United States, as expressed in an opinion
and passed into a decree, — a decree not ap-
pealed from, and therefore final between the
parties, — are to the same effect. Such opin-
ion and decree appear in the record. In the
opinion, which was announced after the de-
ebion of this court in 139 U. S. 388 [35:
199], it was said: "From this last opinion
and decree of the supreme court in the mat-
ter, we are forced to conclude that the por-
tions of lands set off and adjudged to the
heirs of Julia Morgan and heirs of 0. H.
Kellam, Jr., were so set off and adjudged to
them as the owners thereof in uieir own
right as the heirs of Julia Morgan and O. H.
KeUam, Jr., who were the heirs of Narcisse
I)ee8on,the wife of Oliver J. Morgan, and not
to Uiem in any wav as the heirs of Oliver J.
Morgan or as creditors or claimants of his
estate. . . . The heirs of Julia Morgan
and Oliver H. fellam, Jr., participated in
the fond recovered in the original case of
172 U. 8.
Oay, Administrator, v. Morgan, Ea«iUtor,
et al,, but the carefid reading and considera-
tion which we have given the opinions and
decrees of the supreme court, and particu-
larly the supplemental decree in all tne cases
consolidated, give us the firm impression
that the court intended to hold and declare
that the portions recovered by said heirs
were theirs of right, and that they were to
have them, not only free of the claims of
creditors of Uie estate of Oliver J. Morgan,
but free from all costs and claims except as
in the several decrees adjudged, and as tnere-
after miffht be necessary in effecting parti-
tion." And in the decree it was amonff
*other things adjudged that "so much of saia[SS1t
decree of June 2, 1893, as the same is of rec-
ord herein, as charges or attempts to charse
the said John A. Buckner and Ethdine Buck-
ner as the owners of one half of Melbourne
plantation, or that attempts to charge their
said one half of said Melbourne plantar
tion vrith lien privilege to contribute or to
recuse the contribution of the sum of seven
thousand three hundred and forty-seven
.30 dollars to the payment of costs, disburse-
ments, and solicitors' fees allowed by the
court in and fbr the prosecution of the bill
and ^ action in cisise No. 6612 of the cases
herein consolidated, be, and the same are,
canceled, abrogated, annulled, and taken
from said decree, and that the said John
A. Buckner and Ethdine Buckner, be.
and are now decreed to take and hold
said one half of the said Melbourne plan-
tation allotted to them free from said
charge and liability for said costs, disburse-
ments, and solicitors' fees charged against
them in said decree of June 2, 1893, as con-
tribution to the expenses of the prosecution
of said caiise No. 6612 and of the causes
herein consolidated." Obviously, the effect
of this last decree was to materially modify
the terms of prior orders and decrees, and to
change the relations of the defendant as the
owner of one half of the Melbourne planta-
tion to the receivership.
The provision in the decree of this court
in reference to the division between the cred-
itors and the heirs of the moneys in the hands
of the receiver after paying his expenses and
compensation is one evidently applicable in
case of the sale of the entire property, and
cannot be construed as charging against the
defendants, the heirs of Mrs. Morgan, any
share of the costs incurred by the creditors
of Mr. Morgan, in their efforts to subject his
property to the payment of their debts.
Rents follow title, and the owner of the
realty is the owner of the rent. So that from
1884 to 1891, and while the question of title
was in dispute, the defendant was paving to
the receiver rent for an undivided half of the
plantation, property which was absolutely
nis own, and which the receiver ought not to
have had possession of. The rent thus col-
lected belonged to defendant, and could not
be taken *by creditors of Morgan or appro-[28^
priated to pay the cost of their lawsuits. So
it is that the receiver, having in his posses-
sion money belonginff to the defendant, to
wit, the rent of one naif the property fron
1884 to 1891, now asks a Judgment which
431
S88,289
Supreme Codst of the Umitbd States.
Oct.
shall compel defendant to pay him a further
Bum. This cannot be. This is not a case
in which a defendant indebted to an es-
tate which is insolvent and can therefore
pay its creditors only a pro rata amount
seeks to set off a claim ac^inst the estate in
absolute payment of a debt due from him to
the estate, thus obtaining a full payment
which no other creditors can obtain. For
here one undivided half of the plantation was
never the property of the estate vested in the
receiver. It was wrongfully taken posses-
sion of by him. The rent therefor all the
while belonged to the defendant, and the re-
ceiver holds it, not as money belonging to the
«state, but to the defendant. To allow him
to keep that money, and still recover an ad-
ditional sum from the defendant, would be
manifestly unjust.
It is said in the brief that the court first
Acquiring jurisdiction has a rieht to continue
its jurisdiction to the end. We fail to see
the application of this. The receiver volun-
tarily went into the state court, and, having
voluntarily gone there, cannot question the
right of that court to determine the contro-
Ter^ between himself and the defendant.
A similar proposition was often affirmed in
cases of bankruptcy, although by S 711, Re-
vised Statutes, the courts of the United Stat^
are given exclusive jurisdiction ''of all mat*
ters and proceedings in bankruptcy." Maya
V. Fritton, 20 Wall. 414 [22:389]; Win-
chester V. Ueiskell, 119 U. S. 450 [30: 462],
and cases cited in the opinion. The same
rule applies here. The question presented is,
not how the estate belonging to the receiver
shall be administered, but what is the estate
belonging to him. The two questions are en-
tirely distinct. Further, the right to sue a
receiver appointed by a Federal* court with-
out leave of the court appointing him is
granted by the act of August 13, 1888, chap.
866, S 3. 25 Stat, at L. 436. A counterclaim
or set-off comes within the spirit of that act.
And certainly no objection can be made to
the allowance of a set-off, when, as here, it
|S80]i8 *8imply in harmony with the decrees of the
Federal court, and in no manner questions
their force or efficacy.
The jurisdiction of the state court is there-
fore clear, and the judgment of the Supreme
Court of Louisiana ie affirmed.
C. 0. BLAKE, ROGERS, BROWN, ft CO.,
and Hull Coal ft Coke Co., Plffs, in Brr,,
V.
CALVIN 3f. McCLUNG, William P. Smith,
William B. Keener, Franklin H. McClung,
Jr., and Charles J. McClung, Jr., Partners
as C. M. McClung ft Co., et al,
(See S. C Reporter's ed. 289-269.)
JStaie statute, when unconstitutional— equal
privileges and immunities to citizens — cor-
poration, when not a ctfiren — participa-
iion in assets — due process of law — corpo-
ration^ when not tcithin jurisdiction of
state — Tennessee statute of March 19,
1S77.
432
1. A state statute glYlng to residents et ttat
ptate a priority over nonresidents ta tke di»
trlbutlon of the assets of a forelfn eoipor»>
tlon wliicb, ^7 filing its charter or srtklM
of association In the state Is deemed s cor-
poration of that state, is, so far as It dti-
criminates against dtlaens of other ststea. Is
▼loiatlon of U. 8. Const, art. 4« glTinc eqssl
privileges and Immnnltlea to the tlUssM et
the several states.
2. The constltQtIonal goaranty of OQiial pftt^
leges and immunities to dtlsens fOxMds salj
such legislation affecting citiaens of the it-
spective states as will substantlaUj or prse-
tically put a citlsen of one state In a
tlon of alienage when he Is within or
he removes to another state, or when
log in another state the rii^ts that
ly appertain to the people, by and for
the government of the Union ^
8. A corporation Is not a citlsen within tht
meaning of the constitutional prorlaioB tM
«*the ciUsens of each sUte shall bs «stltisi
to all privileges and Immnnltlea of tltl— i
of the several states.**
4. A corporation of another state canBoC Is-
voke the constitutional guaranty of sqsal
privileges and Immunities of dtlaens la cMi
of a discrimination against It tn favor of tht
residents of a state, tn respect to parttHp^
tlon In the assets of an Insolvent oorporatk^
5. A corporation of another state Is not 4t>
prived of property without doe procesi if
law by denying It equality with rssMsts if
the sUte In the distribution of the assits if
an Insolvent corporation.
6. A corporation not created by tbo laws sf s
state, nor doing business In tkat stats s^
der conditions that subject It to process fna
the courts of that state. Is not within ^
Jurisdiction of that sUte. within the ana-
ing of the constitutional provision thst as
state shall "deny to any person wlthls lis
Jurisdiction the equal proteetloo of the lava**
7. The Tennessee statute of March 19, 187T.
so far as It subordinates the dalau of pHvsts
business corporations of other statsa, who sis
creditors of a corporation doing bnslnwi Is
that state under that statute, to the datasi
against the latter corporation of crtdttocs
residing In Tennessee, la not a dental of t^
"equal protection of the laws," sscarcd ly
the 14th Amendment to the Federal Constlts-
tlon to persons within the Jurisdiction sf ths
state.
[No.e.]
SuhmUUd Vavmnher 8, 1897.
cember it, 1898.
DmideiDe-
IN ERROR to the Supreme Ooart of Os
state of Tennessee to review a jndg—t
of that court adjudging that the TIbbbsssss
law of March 19, 1877, wma ooBstitiitionI,
and that creditors of an insolTent eooipaaj,
residents of the state of Tennessee, are en-
titled to priority of pajment out of ths as-
sets of said companT o?er aU other ersditors
of said company, who do not reside in saM
state, etc Affirmed as to the (kmi 4 Cokt
Company, and reversed as to other yfsisfifs,
citizens of Ohio, and cause remaiided for fiir^
ther proceedings.
The facts are stated in the opinion.
Jfessrs. Heber J. Mmy and TeXtf &
Coraiek for the plaintiffs in error.
17tV. &
18W.
Blake y. McCluno.
840-d4ft
Messn. Henry H. InsersoU, John W.
Green, and Charles Seymour for defend-
ants in error.
10] *Mr. Justice Harlan delivered the opin-
ion of the court:
This writ of error brings up for review a
final judgment of the supreme court of Ten-
nessee sustaining the validity of certain pro-
visions of a statute of that state passed
Harch 10th, 1877.
The chief object of the statute was declared
to be to secure the development of the min-
eral resources of tiie state, and to facilitate
the introduction of foreign capital. S 7.
It provides, among other things, that
''corporations chartered or organized under
the laws of other states or countries, for the
purpose of mining ores or coals, or of quar-
(41 jrying stones *or minerals, of transporting the
same, or erecting, purchasing, or carrying
on works for the manufacture of metals, or
of any articles made of or from metal, tim-
ber, octton, or wool, or of building dwelling
houses for their workmen and others, or gas
works, or waterworks, or other appliances
designed for the promotion of healtn, good
order, or general utility, in connection with
inch mines, manufactories, and dwelling
hooses, may become incorporated in this
state, and may carry on in this state the
business au^orized by their respective char-
ters, or the articles under which they are or
may be organized, and may enjoy the rights
and do the things therein specified, upon the
terms and conditions, and in the manner and
mder the limitation herein declared." S 1.
The second section provides for the filing
in the office of the secretary of state by
"each and every corporation created or or-
ganized under or by virtue of any govern-
ment other than that of the state, of the
character named in the first section of this
act, desiring to carry on its business" in the
state, of a copy of its charter or articles of
association, and the recording of an abstract
of the same in the office of the re^^ister of
each county in which the corporation pro-
poses to carry on its business or to acquire
any lands. 9 2.
The third section declares that, ''such cor-
porations shall be deemed and taken to be
corporations of this state, and shall be sub-
ject to the jurisdictions of the courts of this
state, and may sue and be sued therein in
the mode and manner that is, or may be, by
law directed in the case of corporations
created or organized under the laws of this
state." 5S.
The fifth section provides:
**l 5. That the corporations, and the prop-
erty of all corporations coming under the
provisions of this act, shall be liable for all
the debts, liabilities, and engagements of the
said corporations, to be enforced in the man-
ner provided by law, for the application of
the property of natural persons to the pay-
ment of their debts, engagements, and con-
tracts. Nevertheless, creditors who may
be retidents of this state shall have a prior-
iiy in the distribution of assets, or subjec-
tion of the same, or any part thereof, to the
172 n. 8. U. 8., Book 43.
payment of debts over all simple *contraet[S4m
creditors, being residents of any other coun-
try or countries, and also over mortgage or
judgment creditors, for all debts, engage-
ments, and contracts which were made or
owing by the said corporations previous to
the filing and registration of such valid
mortgages, or the rendition of such valid
judgments. But all such mortgages and
judgments shall be valid, and shuall consti-
tute a prior lien on the property on whick
they are or may be charged as against all
debts which ma^ be incurred sub^uent to
the date of their registration or rendition.
The said corporations shall be liable to tax-
ation in all respects the same as natural per-
sons resident in this state, and the property
of its citizens is or may be liable to taxa-
tion, but to no higher taxation, nor to any
other mode of valuation, for the purpose of
taxation; and the said corporations shall be
entitled to all such exemptions from taxa-
tion which are now or may be hereafter
granted to citizens or corporations for the
purpose of encouraging manufacturers in
this state, or otherwise." Acts of Tenn.
1877, p. 44, chap. 31.
The case made by the record is substan-
tially as follows:
The Embreeville Freehold Land, Iron, ft
Railway Company, Limited, — ^to be hereafter
called the Emoreeville Company, — ^was a cor-
poration organized under the laws of Great
Britain and Ireland for mining and manu-
facturing purposes. In 1890 it registered
its charter unaer the provisions of the above
statute, and establish^ a manager's office in
Tennessee. It purchased property and did
a minine and manufacturing business there,
transacting its affairs in this country at and
from its Tennessee office.
On the 20th day of June, 1803, C. W. Mc-
Clung ft Co. and others filed an original gen-
eral creditors* bill in the chancery court of
Washington county, Tennessee, against this
company and others, alleging its insolvency
and default in meeting and discharging its
current obligations; barging that it had
made a conveyance in trust of certain per-
sonal property in fraud of the rights of its
other creditors, and asking the appointment
of a receiver and the administration of its
affairs as an insolvent corporation. The
court took jurisdiction of the corporation,
sustained the bill as a general creditors' bill,
appointed a 'receiver of its property in Ten-UMS]
nessee, administered its affairs in that state^
and passed a decree adjudicating the rightt
and priorities of certain creditors.
No question is made in respect of the
amount due to any one of tne creditoKt
whose claims were presented.
The company maintained its home office im
London, its managing director resided there«
and after this suit was instituted liquidatioa
under the companies' acts of Great Britain
was there ordered and begun.
There were holders of debentures executed
by the British company whose claims were
not specifically adjudicated in the decree be-
low. The original debenture issue amounted
to $500,000, and another issue, subsequent
£8 433
S43-246
SuPUEMB Court op thb Uxitkd States.
Oct.
In time, and in respect of which priority in
right was d&imed, amounted to $125,000.
AU the holders of those issues are nonresi-
dents of Tennessee and of the United States.
There was also a general trade indebtedness
aggregating about $90,000 due b^ the com-
pany to residents of Great Britain. Those
fc claims were specifically adjudicated by the
decree.
Among the creditors of the company at
the time this suit was instituted were the
plaintiffs in error, namely: C. G. Blake,
whose residence and place of business was in
Ohio; Boffers, Brown, k Company, the mem-
bers of widch also resided in Ohio and car-
ried on business in that state; and the Hull
Cioal k Coke Company, a corporation of Vir-
ginia. In the intervening petitions filed by
those creditors it was averred that the plain-
tiffs in the general creditors' bill, residents
of Tennessee, claimed priority of right in the
distribution of the assets of the insolvent
corporation over other creditors of the cor-
poration "citizens of the United States, but
not of the state of Tennessee;" and that the
said statute was unconstitutional so far as it
gave preferences and benefits to the plain-
tiffs or other citizens of Tennessee over the
petitioners or other citizens of the United
States.
By the final decree of the chancery court
of Washin|^n county, it was, among other
things, adjudged that the act of 1877 was
constitutional; that all of the creditors of
the Embreeville Company residing in Tennes-
CM4]see were entitled to priority *of satisfaction
out of. its assets (after the payment out of
the proceeds of the real estate of the claim
of the Pittsburgh Iron & Steel En^neering
Company) as against its other creditors who
were "residents and citizens of other states
of the United States or other countries;"
that tiie creditors who were **oitizens of other
states of the United States, and who con-
tracted with the company as located and do-
ing business in Tennessee, are entitled to
share ratably in its assets, being adminis-
tered in this cause next after the payment
of the Pittsburgh Iron ft Steel Engineering
Company and tne Tennessee creditors,"
Upon appeal to the chancery court of ap-
peals the decree of the chancery court was re-
versed in certain particulars. In the find-
ings of the chancery court of appeals it was
stated that the chancery court of Washing-
ton county adjudged, among other things,
that "under the Mt of 1877 (which was ad-
judged constitutional) all the creditors of
said Embreeville Company residing in Ten-
nessee are entitled to priority of satisfac-
tion out of the assets of the ^Cmbreeville
Company ( after the payment out of the pro-
ceeds of the real estate of the claim of the
Pittsburgh Iron ft Steel Engineering Co.)
as against the other creditors of said com-
pany who are nonresidents and citizens of
other states of the United States or other
countries; that the other creditors of the
Embreeville Company who are citizens of
other states of the United States, and who
contracted with the said Embreeville Com-
pany as located and doing business In the
434
state of Tennessee, are entitled to share rat-
ably in the assets of the defendant Embree-
ville Company being administered in this
cause after the payment of the Pittsborgli
Iron ft Steel Engineering Company and tib*
Tennessee creditors (except the coke stopped
in transitu) ." And the decree in the du»-
cery court of appeals contained, among other
provisions, the following: "That all of the
holders and owners of the debenture bonds
of the company are simple-contract creditors
of said company, and stand upon the taae
footing in reference to the distribution M
the assets of the company as all other of its
creditors residing out of the state of Tennes-
see;" and that the "portion of the chancel-
lor's decree giving priority of payment ts
such of the creditors of *said company who[lll
reside in the United States of America, bat
not in the state of Tennessee, and to vack
creditors now residents of Tennessee wbo
dealt with the company in relation to its
Tennessee office, over all alien creditors of
said company, be, and the same is hereby,
reversed, it being here adjudged that all \is
creditors of said company residing out of
the state of Tennessee must share equally
and ratably in the distribution of the funds
of said company after the Tennessee
ors shaU have been paid in fuU.**
The cause was carried to the supi
court of Tennessee, and so far as the pUiii-
tiffs in error are concerned was heard in ihst
court upon apoeal from the court of chanoery
appeals, as well as upon writs of error to the
chancery court.
It was adjudged by the supreme court of
the state that the act of March 19th, 1877,
was in all respects a valid enactment, sad
not in contravention of paragraph 2 of tr^
tide IV. or of the Fourteenth AmendsMBt
of the Constitution of the United States, nor
in contravention of an^ other provision of
the National Constitution; that all of tks
holders and owners of the debenture beads
of the Embreeville Company were tia)pl«>
contract creditors *of the company, and stood
upon the same footing with reference to the
distribution of its assets as all of its other
creditors who "reside out of the state of Tea*
nessee, whether they be residents of otk«r
states or of the Kingdom of Great BriUin;
that all of the creditors of the Embrcfritls
Company" who resided in the state of Tn*
nessee are entitled to priority of psjmnt
out of all the assets of said company. boU
real and personal, over all of the other ertd-
itors of said company who do not reside ts
the state of Tennessee, whether they be reai*
dents of other states of the United Statci
or of the Kin|^om of Great BriUin; tkit
all of the creditors of the Embreerille Fnt-
hold Land, Iron, ft Railway Ccmnpanv wko
reside out of the state of Tennessee, wsetlwr
they reside in other states of the V^'*^
States or in the Kingdom of Great Britais,
have the right and must share eanally tsd
ratably in the distribution of said foMf of
the said company after the residents of Um
state of Tennessee shall havo been flnt fsii
in full.
I *The plainUffs in mor oooteBd Ost M^
1698.
Bulks y. HoCluhq.
24ft-M8
Judgment of the state court, based upon the
itatate, denies to them rights secured by the
sseond section of the fourth article of the
Gonstitution of the United States providing
that *^e citizens of each state shall be en-
titled to all privileges and immunities of cit*
iMns in the several states," as well as by the
first section of the Fourteenth Amendment,
declaring that no state shall "deprive any
person of life, liberty, or property without
due process of law," nor ''deny to any per-
son within its Jurisdiction the equal protec-
tion of the laws."
We have seen that by the third section of
the Tennessee statute corporations organized
under the laws of other states or countries,
and which complied with the provisions of
the statute, were to be deemed and taken to
be corporations of that state; and by the
fifth section it is declared, in respect of the
property of corporations doing business in
Tennessee under the provisions of the stat-
ute, that creditors who are residents of that
state shall have a priority in the distribu-
tion of assets, or the subjection of the same,
mr any part thereof, to the payment of debts,
over all simple-contract creditors, being resi-
dents of any other country or countries.
The suggestion is made that as the statute
refers only to ''residents," there is no occa-
sion to consider whether it is repugnant to
the provision of the National Constitution
relating to citizens. We cannot accede to
this view. The record shows that the liti-
gation proceeded throughout upon the the-
ory that the plaintiffs in error, Blake and
the persons composinff the firm of Roffers,
Brown, ft Co., were citizais of Ohio, in \m\ch
state they resided, transacted business and
bad their offices, and that the plaintiff in
error, the Hull Coal ft Coke Company, was
a corporation of Virginia. The intervening
petition of the individual plaintiffs in error,
as we have seen, states that they were resi-
dents of Ohio, engaged in business in that
state, their residence, offices and places of
business being at the city of Cincinnati, and
that they were citizens of the United States,
and not citizens of Tennessee. Although
these allegations miffht not be sufficient to
ihow that those parties were citizens of Ohio
[247] within the meaning of the statute * regulating
the jurisdiction of the circuit courts of the
United States (Boheriaon v. Cease, 07 U. 8.
6M [24: 1057]), they may be accepted as
sufficient for that purpose in . the present
case, no question having been made in the
state court that the inSvidual plaintiffs in
error were not citizens, but only residents of
Ohio. Looking at the purpose and scope of
the Tennessee statute, it is plain that the
words "residents of this state" refer to those
whose residence In Tennessee was such as in-
iicated that their permanent home or habi-
tation wa^ there, unthout any present inten-
tion of removing therefrom, and having the
intention, when absent from that state, to
return thereto; such residence as apper-
tained to or inhered in citizenship. And the
words, in the same statute, ''residents of any
other country or countries" refer to those
whose respective habitations were not in
172 17. 8.
Tennessee, but who were ettisensy not simply
residents, of some other state or country.
It is impossible to believe that the statute
was intended to applv to creditors of whoa
it could be said that they were only residenti
of other states, but not to creditors who wer«
citizens of such states. The state did not in-
tend to place creditors, citizens of other
states, upon an equality with creditors, citi-
zens of Tennessee, and to give priority only
to Tennessee creditors over creditors who re-
sided in, but were not citizens 4>f, other
states. The manifest purpose was to give to
all Tennessee creditors priority over all cred-
itors residing out of that state, whether the
latter were citizens or only residents of some
other state or country. Any other inter-
pretation of the statute would defeat the ob-
ject for which it was enacted. -We must
therefore consider whether the statute in-
fringes rights secured to the plaintiffs in er-
ror, citizens of Ohio, by the provision of the
second section of artide IV. of the Consti-
tution of the United States declaring that
the citizens of each state shall be entitled to
all privileges and immunities of citizens in
the several states.
Bevond question, a state may throuffh ju-
dicial proceedings take possession of the as-
sets of an insolvent foreign corporation with-
in its limits, and distribute such assets or
their proceeds among creditors according to
their respective rights. But may it exclude
citizens of other states from such dis^ibu-
tion *until the claims of its own citizens shall [M8]
have been first satisfied? In the administra-
tion of the property of an insolvent foreign
eorporation by the courts of the state In
which it is doinff business, will the Consti-
tution of the United StatM permit discrim-
ination against individual creditors of such
corporations because of their being citizens
of other states, and not citizens of the stat*
in which such administration occurs?
These questions are presented for our de-
termination. Let us see how far they have
been answered by the former decisions of this
court.
This court has never undertaken to give
any exact or comprehensive definition of the
words ^privileges and immunities" in article
IV. of the Constitution of the United States.
Referring to this clause, Mr. Justice Cur-
tis, speaking for the court in Conner v. El^
liott, 18 How. 591, 503 [15: 497, 498], said:
''We de not deem it needful to att^pt to
define the meaning of the word 'privileges' in
this clause of the Constitution. It is safer,
and more in accordance with the dut^ of a
judicial tribunal, to leave its meaning to
oe determined, in each case, upon a view of
the particular rights assertea and denied
therein. And especially is this true when we
are dealing with so broad a provision, involv-
ing matters, not only of great delicacy and ^
importance, but which are of such a charac-
ter that any merely abstract definition could
scarcely be correct ; and a failure to make it
so woiud certainly produce mischief." Nev-
ertheless, what has been said by this and
other courts upon the general subject will
assist us in determining the particular ques-
tions now pressed upon our attention.
435
i^^ZoL
SUPBBMB CX)URT OF THB UnITKD bTAItS.
Oct.
One of the leading cases in which the gen-
eral question has been examined is Corfield
▼. OoryeU, decided by Mr. Justice Washing-
ton at the circuit. He said: 'The inquiry
is, What are the privileges and immunities
of citizens in the several states? We feel no
hesitation in confining these expressions to
those privileges and inmiunities whieh are,
in their nature, fundamental; which belong,
of right, to the citizens of all free govern-
ments, and which have, at all times, iSen en-
joyed by the citizens of the several states
which compose this Union from the time of
their becoming free, independent, and sover-
CM9]eign.^ 'What these fundamental principles
are, it would perhaps be more tedious tnan
difiicnlt to enumerate. They may, however,
be comprehended under the following general
heads: Protection by the government; the
enjoyment of life and liberty, with the right
to acquire and possess property of every
kind, and to pursue and obtain happiness and
safe^; subject, nevertheless to such re-
straints as the government may justly
prescribe for the general good of the whole.
The riffht of a citizen of one state to pass
through or to reside in any other state for
the purposes of trade, agriculture, profes-
sional pursuits, or otherwise; to claim the
benefit of the writ of habeas corpus; to in-
stitute and maintain actions of any kind in
the courts of the state; to take, hold, and
dispose of property, either real or personal;
and an exemption from higher taxes or im-
positions than are paid by the other citizens
of the state, — ^majr be mentioned as some of
the particular privileges and immunities of
citizens, which are clearly embraced by the
general description of privileges deemed to be
fundamental; to which 'may be added the
elective franchise as regulated and es-
tablished by the laws or Ck>nstitution
of the state in which it is to be ex-
ercised. These, and many others which
might be mentioned, are, strictly speaking,
privileges and immunities, and the enjoy-
ment of them by the citizens of each state
in every other state was manifestly calcu-
lated (to use the expression of the preamble
to the corresponding provision in the old
Articles of Confederation) 'the better to se-
cure and perpetuate mutual friendship and
intercourse among the people of the different
states of the Union."* 4 Wash. C. C. 371,
S80.
These observations of Mr. Justice Wash-
ington were made in a case involving the
validity of a statute of New Jersey regulat-
ing the taking of oysters and shells on banks
•or beds toithin that state and which exclud-
<«d inhabitants and residents of other states
from the privilege of taking or gathering
•clams, oysters, or shells on any of the rivers,
bays, or waters in New Jersey, not wholly
•owned by some person residing in the state.
The statute was sustained upon the ground
that it only regulated the use of the common
'(MO] property* of the citizens of New Jersey, which
could not be enjoyed by others without the
tacit consent or the express permission of the
sovereign having the power to regulate its
use. The court said: "The oyster beds be-
436
longing to a state may be abundantly
cient for the use of the citizens of that state,
but might be totally exhausted and destrojed
if the legislature could not so regulate the
use of them as to exclude the citizens of the
other states from taking them, except under
such limitations and restrictions as the laws
may prescribe."
Upon these grounds rests the decision in
McCready v. Virginia, 94 U. S. 391, 395 [24:
248, 249], sustaining a statute of VirgiiiiA
prohibiting the citizens of other states from
planting oysters in a river in that stats
where the tide ebbed and fiowed. Chief Joa-
tice Waite, speaking for Uie court in that
case, said: 'These [the fisheries of the state]
remain under the exclusive control of the
state, which has consequently the right in
its discretion, to appropriate its tide waters
and their beds to be used by its people as a
common for taking and cultivating fish, ao
far as it may be done without obstructiitf
navigation. Such an appropriation is in ^
feet nothing more than a regulation of the use
b^ the people of their common property. Tlie
right which the people of the state thus ae-
qmire comes, not from their citizenship alone^
but from their citizenship and property com-
bined. It is in fact a prop^ty rifffat, and
not a mere privilege or immunity of dtizeii-
ship.'' ^ Consequently, the decision was that
the citizens of one state were not invested by
the Constitution of the United States "with
an^ interest in the common property of the
citizens of another state."
In Paul V. Virginia, 8 WaO. 168 188
[19: 367, 360], the court observed that "It
was undoubtedly the object of the clause in
question to place the citizens of each state
upon the same footing with citizens of other
states, so far as the advantages resulting
from citizenship in those states are con-
cerned. It relieves them from the disabili-
ties of alienage in other states; it inhibiti
discriminating le^slation against then Iff
other states; it gives them the right of fres
ingress into other states, and egress from
them ; it insures to them in other states the
same freedom 'possessed by the citizens ofl^M
those states in the acquisition and enjoy-
ment of property and in the pursuit of hap-
piness; ana it secures to them in other
states the equal protection of their laws. It
has been justly said that no provision in tks
Constitution has telided so strongly to eoa-
stitute the citizens of the United States am
people as this. Lemmon v. 7^ Feopie. 20 K.
Y. 607. Indeed, without some provision of
the kind, removing from the citizens of eMk
state the disabilities of alienage in the othtr
states, and giving them equality of pririlcft
with citizens of those states, the RepabHt
would have constituted little more thaa t
league of states; it would not have oowti*
tuted the Union which now exists,**
Ward V. Maryland, 12 Wall. 418, 430 ffOi
449,453], involved the validity of a sUtata
of Maryland requiring all traders, not beinr
permanent residents of the state, to take o«t
licenses for the sale of goods, wares, or ner*
chandise in Maryland, other than agriml-
tural products and articles there manafi^
ITt IT. fc
im.
BiiAKB T. McCluno.
251-25«
tored. This court said: "Attempt will not
be made to define the words 'privileges and
immunities/ or to specify the rights which
they are intended to secure and protect, be-
yond what may be necessary to the decision
•f the case before the court. Beyond doubt
those words are words of very comprehensive
meaning, but it wiU be sufficient to say that
the clause plainly and unmistakably secures
and protects the right of a citizen of one state
to pass into any other state of the Union for
the purpose of engaging in lawful conmierce,
trade, or business without molestation; to
acquire personal property, to take and hold
real estate, to maintain actions in the courts
of the states, and to be exempt from any
higher taxes or excises than are imposed
by the state upon its own citizens. Compre-
hensive as the power of the states is to lay
and coUect taxes and excises, it is neverthe-
less dear, in the judgment of the court, that
the power cannot be exercised to any extent
in a manner forbidden by the Ck)n8utution ;
and inasmuch as the Constitution provides
that the citizens of each state shall be en-
titled to all privileges and immunities of
citizens in the several states, it follows that
the defendant might lawfully sell, or offer or
expose for sale, within the district described
ltSt]in the ^indictment, any goods which the per-
manent residents of the state might sell, or
effer or expose for sale in that district, with-
out being subjected to any higher tax or ex-
cise than that exacted by law of such perma^
nent re? idents."
In the Blaughier-Eouse Cases, 16 Wall.
S6, 77 [21: 394, 409], the court, referring
to what was said in Paul ▼. Virginia,
above cited, in reference to the scope
and meaning of section two of artide
ly. of the Constitution, said : 'The constitu-
tional provision there alluded to did not cre-
^ ate those rights which it called privileges
and immunities of citizens of the several
states. It threw around them in that clause
BO seenrity for the citizen of the state in
iHiich they were claimed or exercised. Nor
£d it profess to control the power of the
state governments over the rights of its own
citizens. Its sole purpose was to declare to
the several stat^ that whatever those
rights, as you grant or establish them to
Tonr own citizens, or as you limit or oualify,
•r impose restrictions on their exercise, the
same, neither more nor less, shall be the
measure of the riffhts of citizens of other
slates within your Jurisdiction."
In Cole V. Cunningham, 133 U. S. 107, 113,
114 [33: 538,542], this court cited with ap-
proval the language of Justice Story, in his
Commentaries on the Constitution, to the
effect that the object of the constitutional
foaranty was to confer on the citizens of the
several states ''a general citizenship, and to
communicate all the privileges and immuni-
ties whidi the citizens of the same state
wonld be entitled to under like circum-
stances, and this includes the right to insti-
tnte actions.**
These principles have not been modified by
any subsequent decision of this court.
The foundation upon which the above
172 V. 8.
cases rest cannot, however, stand, if it be ad-
judged to be in tiie ^wer of one state, when
establishing regulations for the conduct of
private business of a particular kind, to give
its own citizens essential privileges con- •■
nected with that business which it denies to
citizens of other states. By the statute in
Suestion the British company was to h%
eemed and taken to be a corporation of Ten-
nessee, with authori^ to carry on its busi-
ness in that state. It was the right of cit-
izens of Tennessee to deal with *it, as it was[26S]
their right to deal with corporations created
by Tennessee. And it was equally the right
01 citizens of other states to deaf witii that
corporation. The state did not assume to
declare, even if it could legally have de-
clared, that that company, being admitted to
do business in Tennessee, should transact
business only with citizens of Tennessee, or
should not transact business with citizens of
other states. No one would question tho
right of the individual plaintiffs in error,
although not residents of Tennessee, to sell
their goods to that corporation upon such
terms in respect of payment as might be
agreed upon, and to ship them to the cor-
poration at its place of business in that
state. But the enjoyment of these rights
is materially obstructed by the statute in
question; for that statute, by its necessary
operation, excludes citizens of other states
from transacting business with that corpo-
ration upon terms of equality with citizens
of Tennessee. By force of the statute alone,
citizens of other states, if they contracted at
all with the British corporation, must hav%
done so subject to the onerous condition that
if the corporation became insolvent its as-
sets in Tennessee should first be applied to
meet its obligations to residents of that
state, although liability for its debts and en-
gagements was "to be enforced in the manner
provided bv law for the application of tiio
property of natural persons to the payment
of their debts, engagements, and contracts."
But, dearlv, the state could not in that mode
secure exclusive privileges to its own citi- '^
zens in matters of business. If a state should
attempt, by statute regulating the distribu-
tion of the property of insolvent individuals
among their creditors, to give priority to
the daims of such individual creditors as
were dtizens of that state over the claims of
individual creditors dtizens of other states,
such legislation would be repugnant to the
Constitution upon the ground that it with-
held from dtizens of other states as such,
and b^ause they were such, privileges
granted to citizens of the state enacting it.
Can a different principle apply, as between
individual citizens of the several states, when
the assets to be distributed are the assets of
an insolvent private corporation lawfully
engaged in business and having the *power to[254)
contract with citizens residing in states
other than the one in which it is located?
It is an established rule of equity that
when a corporation becomes insolvent It is
so far civilly dead that its property may be
administered as a trust fund for the benefit
of its stockholders and creditors ( Oraham v.
254-956
SUPBEKS COUKT OF THS UnITBD STATka.
OCT.
La Oro88e d M. Railroad Co. 102 U. S. 148,
161 [26:106, 111]),— not simply of stock-
bolders and creditors residing in a particular
state, but all stockholders and creditors of
whatever state they may be citizens. In
Wahaah, 8t, L. d F, Railway Co. v. Ham,
114 U. 8. 587, 594 [29: 235, 238], it was said
that the property of a corporation was a
trust fund for the payment of its debts, in
the sense that when the corporation was law-
fully dissolved and all its business wound up,
or when it was insolvent, all its creditors
were entitled in equity t* have their debts
paid out of the corporate property before
anv distribution thereof among the stock-
holders. In Hollin8 v. Brierfield Coal d Iron
Co, 150 U. 8. 371, 385 [37:1113, 1117],
it was observed that a private corporation,
when it becomes insolvent, holds its assets
subject to somewhat the same kind of equi-
table lien and trust in favor of its creditors
that esdsi in favor of the creditors of a part-
nership after becoming insolvent, and that
^ in such case a lien and trust will be enforced
by a court of equity in favor of creditors.
Theae principles obtain, no doubt, in Ten-
nessee, and will be applied by its courts in
all appropriate cases between citizens of that
state, without making any distinction be-
tween them. Tet the courts of that state
are forbidden, by the statute in question, to
recognize the right in equity of citizens re-
siding in other states to participate upon
terms of equality with citizens of Tennessee
in the distribution of the assets of an in-
solvent foreign corporation lavrfully doing
business in l£at state.
We hold such discrimination against citi-
zens of other states to be repugnant to the
second section of the fourth article of the
Constitution of the United States, although,
generally speaking, the state has the power
to prescribe the conditions upon which for-
eign corporations may enter its territory for
Surposes of business. Such a power cannot
e exerted with the effect of defeating or
[M6] impairing rights secured to citizens *of the
several states by the supreme law of the land.
Indeed, all the powers possessed by a state
must be exercised consistently with the priv-
ileges and immunities granted or protected
by the Ck>n8titution of the United States.
In Lafayette Ins. Co. v. French, 18 How.
404, 407 [15: 451, 453], Mr. Justice Curtis,
■pealdng for this court, said: "A corpora-
«on created by Indiana can transact business
in Ohio only with the consent, express or im-
Slied, of the latter state. This consent may
s accompanied by^ such conditions as Ohio
may thinlc fit to impose; and these condi-
tions must be deemed valid and effectual by
other states and by this court, provided they
are not repugnant to the Constitution and
laws of the United States, or inconsistent
with thoAe rules of public law which secure
the jurisdiction and authority of each state
from encroachment by all others, or that
principle of natural justice whidi forbids
condemnation without opportunity for de-
fense." It was accordingly adjudged in Bar-
ron V. Bumeide, 121 U. 8. 186, 200 [30: 915,
920, 1 Inters. Com. Rep. 295], that an Iowa '
488
statute requiring eveiy foreign oorporataoa
named in it, as a condition of obtaining a li-
cense or permit to transact business in that
state, to stipulate that it would not remore
into the Federal courts suits that were re-
movable from the state courts under the laws
of the United States, was void because it made
the right to do business under a licoise or
permit dependent upon the surrender by the
corporation of aprivilege secured to it l^ the
Constitution, lliis principle was recog-
nized in Barrow Bteamahip Co. v. Kane, 170
U. S. 100, 111 [42: 964, 968], in which, after
referring to the constitutional and statutory
provisions defining the jurisdiction of the
circuit courts of the United States, this
court said: 'The jurisdiction so conferred
upon the national courts cannot be abrid^
or impaired by any statute of a state. Hyde
V. Stone, 20 How. 170, 175 [15: 874, 876];
Smyth V. Amee, 169 U. 8. 466, 516 [42: 819,
838]. It has therefore been decided that a
statute which requires all actions against a
county to be brought in a counnr court does
not prevent the circuit court of the United
States from taking jurisdiction of sudi an
action; Chief Justice Chase saying that *bo
statute limitation of suability can defeat a
jurisdiction given by the ConstitutioB.'
Cowlea V. Mercer •County, 7 Wall, 118, 122ltMl
[19: 86, 88] ; Unooln County v. Lunmg, 133
U. 8. 529 [33 : 766] ; Chicot County v. Sker-
wood, 148 U. 8. 529 [37: 546]. So statntei
requiring foreign oornorations, as a eond^
tion of being permitted to do business withii
the state, to stipulate not to remove into the
courts of the united States suits brought
against them in the courts of the state, ha?e
been adjudged to be unconstitutional tad
void. Home Ine. Co. v. Jf orse, 20 WalL 445
[22: 365] ; Barron v. Bumeide, 121 U. 8. 186
[30: 915, 1 Inters. Com. Rep. 295] ; Southern
Pacific Co. v. Denton, 146 U. 8. 202 [SC*
943]." See Ducat v. Chicago, 10 WalL 416,
415 [19:972,973].
We must not be understood as sayins thit
a citizen of one state is entitled to enjoj ii
another state every privilege that mtr be
given in the latter to its own citizens. Iliert
are privileges that may be accorded hf s
state to its own people in which citizens of
other states may not participate except is
conformity to such reasonable regnlatioBi
as may be established by the state. Fbr fs-
stance, a state cannot forbid citizens of othtr
states from suing in its courts, that Hfbt
being enjoyed by its own people; but it intj
require a nonresident, although a citizen of
another state, to give bond for costs, il-
though such bond he not required of a rai*
dent. Such a regulation of the internal af-
fairs of a state cannot reasonably be ^ar*
acterized as hostile to the fundamental
rights of citizens of other states. So. a
state may, by rule uniform in its operatioa
as to citizens of the several <)tat«^ require
residence within its limits for a given tine
before a citizen of another state who bfcoew*
a resident thereof shall exercise the riffht rf
suffrage or become eligible to office. It l»»»
never been supposed that regulations of tkat
character materially interfered with th* *■•
17t V. f.
BULKB T. MoClUNO.
S5e-269
jpjjnent hj citizens of each state of the priy-
ileges and immunities secured by the Con-
stitution to citizens of the several states.
The Constitution forbids only such legisla-
tion flJTecting citizens of the respective states
as will substantially or practically put a
dtizen of one state in a condition of alienage
when he is within or when he removes to an-
other state, or when assertins in another
state the rights that commomy appertain
to those who are part of the political com-
munity known as the people of the United
iS7]State8, by and *for whom the government of
the Union was ordained and established.
Kor must we be understood as saying that
a state may not, by its courts, retain within
its limits the assets of a foreign corporation,
in order that justice ma^ be done to its own
citizens; nor, by appropriate action of its ju-
dicial tribunals, see to it that its own citi-
zens are not uniustly discriminated against
by reason of the administration in other
states of the assets there of an insolvent cor-
poration doing business within its limits.
For instance, if the Embreeville Company
had property in Virginia at the time of its
insolvency, the Tennessee court administer-
ing its assets in that state could take into
mcoount what a Virginia creditor, seeking to
participate in the distribution of the com-
pany's assets in Tennessee, had received or
would receive from the company's assets in
Virginia, and make such order touching the
assets of the company in Tennessee as would
protect Tennessee creditors against wrong-
ful discrimination arising from the partic-
ular action taken in Virginia for the benefit
of creditors residing in Siat commonwealth.
It may be appropriate to observe that the
^ objections to the statute of Tennessee do not
necessarily embrace enactments that are
found in some of the states requiring foreign
insurance corporations, as a condition of
their coming into the state for purposes of
business, to deposit with the state treasurer
funds sufficient to secure policy holders in
its midst. Legislation of that character does
not present any question of discrimination
t^inst ciUzens forbidden by the Constitu-
tion. Insurance funds set apart in advance
for the benefit of home policy holders of a
foreign insurance company doing business in
the state are a trust fund of a specific kind
to be administered for the exclusive benefit
of certain persons. Policy holders in other
states know that those particular funds are
Bcgregated from the mass of property owned
by the company, and that they cannot look to
them to the prejudice of those for whose spe-
^1 beDefit they were deposited. The pres-
ent ease is not one of that kind. The stat-
.^-^^te of Tennessee did not make it a condition
I'Wjof the right of the British corporation 'to
come into Tennessee for purposes of business
that it should, at the outset, deposit with
the state a fixed amount to stand exclusively
or primarily for the protection of its Ten-
nessee creditors. It allowed that corpora-
tion, after complying with the terms of the
statute, to conduct its business in Tennessee
ts it saw fit, and did not attempt to impose
&ny restriction upon its making contracts
1T2 V. 8.
with or incurring liabilities to oitizens of
other states. It permitted that corporation
to contract with citizens of other states, and
then, in effect, provided that all such oon«
tracts should be subject to the condition (IB
case the corporation became insolvent) tliat
creditors residing in other states should
stand aside, in the distribution by the Ten-
nessee courts of the assets of the corpora-
tion, until creditors reeidinj^ in Tennessee
were fully paid— not out of any funds or
property specifically set aside as a trust
fund, and at the outset put into the custody
of the state, for the exclusive benefit, or for
the benefit primarily, of Tennessee creditors,
but — out of whatever assets of any kind the
corporation might have in that state when ^
insolvent occurred. In other words, so
far aa Tennessee legislation is concerned,
while this corporation could lawfully have
contracted with citizens of other stateSy
those citizens cannot share in its general as* *
sets upon terms of equality with citizens of
that state. If such legislation does not de-
ny to citizens of other states, in respect of
matters growing out of the ordinary trans-
actions of business, privileges that are ac-
corded to it by citizens of Tennessee, it Is
difficult to perceive what legislation would
effect that result.
We adjudge that when the general prop-
erty and assets of a private corporation
lawfully doing business in a state are in
course of adminstration by the courts of
such state, creditors who are citizens of oth-
er states are entitled, under the Constitution
of the United States, to stand upon the same
plane with creditors of like class who are
citizens of such state, and cannot be denied
equality of right simply because they do not
reside in that state, but are citizens residing
in other slates of the Union. The individual
plaintiffs in error were entitled to contract
with this British corporation, lawfully do-
ing business in Tennessee, and deemed, and
taken to be a corporation *of that state; and[M9]
no rule in the distribution of its assets amonff
cerditors could be applied to them as resi-
dent citizens of Ohio, and because they were
not residents of Tennessee, that was not ap-
plied by the courts of Tennessee to credit-
ors of like character who were citizens of
Tennessee.
As to the plaintiff in error, the Hull Coal
ft Coke Company of Virginia, different con-
siderations must govern our decision. It
has long been settled that, for purposes of
suit by or against it in the courts of the
United States, the members of a corporation
are to be conclusively presumed to be oiti-
zens of the state creating such corporation
{ Louisville, Cincinnati d Oharleatonkailrofid
Co. V. Letson, 2 How. 497 [11: 353]; Cov-
ington Drawbridge Co. v. Shepard, etc, 20
How. 227, 232 [15: 806, 898]; Ohio d Mia-
sisaippi R, R. Co, v. Wheeler, 1 Black, 286,
206 [17 : 130, 133] ; National Steamship Co,
V. Tugman, 106 U. 8. 118, 120 [27: 87, 88];
Barrov) Steamship Co, v. Kane, above cited) ;
and therefore it has been said that a corpo-
ration is to be deemed, for such purposes, a
citizen of the state under whose laws it was
439
B59-202
SUPREHB COUBT OF THB UnITSD StATES.
Oct. Tnii.
•rganized. But it is equally well settled,
and we now hold, that a corporation is not a
eitizen within the meaning of the constitu-
tional proyision tluit ''the' citizens of each
state snaU be entitled to all privileges and
immunities of citizens in the several
states." Paul v. Virginia, 8 Wall. 168, 178,
179 [19:357, 369, 360]; Ducat v. Chicago,
10 WaU. 410, 415 [19: 972, 973]; Liverpool
Ina, Co, V. Mas8aohu8ett8, 10 Wall. 566, 573
[19: 1029, 1031]. The Virginia corporation,
therefore, cannot invoke that provision for
protection against the decree of the state
court denying its right to participate upon
terms of equality with Tennessee creditors
in the distribution of the assets of the Brit-
ish corporation in the hands of the Tennessee
aourt.
Since, however, a corporation is a "per-
son" within the meaning of the Fourteenth
Amendment {Santa Clara County y, Southern
Pacific Railroad Co. 118 U. S. 394, 396 [30:
118] ; Smyth ▼. Ames, 169 U. S. 466, 522
[42 : 819, 840] ) , may not the Virginia corpo-
ration invoke for its protection, the clause
el the Amendment declaring that no state
shall deprive any person of property without
due process, nor aeny to any person within
its jurisdiction the equal protection of the
laws?
We are of opinion that this question must
]receive a ne^tive *answer. Although this
court has adjudged that the prohibitions of
the Fourteenth Amendment refer to all the
instrumentalities of the state, to its legisla-
tive, executive, and judicial authorities {Ex
parte Virginia, 100 U. S. 339, 346, 347 [25 :
676, 678, 679] ; Tick Wo, v. HopHns, 118 U.
8. 356, 373 [30: 220, 227] ; Scott v. McNeal,
154 U. S. 34, 45 [38: 896, 901] ; and Chicago,
Burlington d Q, R'd Co, v. Chicago, 166 U.
S. 226, 233 [41 : 979, 983] ) , it does not fol-
low that within the meaning of that Amend-
ment the judgment below deprived the Vir-
ginia corporation of proper^ without due
process of law, simply because its claim was
subordinated to the claims of the Tennessee
creditors. That corporation was not, in any
legal sense, deprived of its claim, nor was its
right to reach the assets of the British cor-
poration in other states or countries dis-
puted. It was only denied the ri^ht to par-
ticipate upon terms of equalil^ with Tennes-
see creditors in the distribution of particu-
lar assets of another corporation doine' busi-
ness in that state. It had notice of the pro-
ceedings in the state court, became a party
to those proceedings, and the rights asserted
by it were adjudicated. If the Virginia cor-
poration cannot invoke the protection of the
second section of article IV. of the Constitu-
tion of the United States relating to the
privileges and immunities of citizens in the
several states, as its coplaintiiTs in error
have done, it is because it is not a dtlcen
within the meaning of that section; and if
the state court erred in its decree in ref-
erence to that corporaton, the latter cannot
be said to have been thereby deprived of its
properly without due process oi law within
the meaning of the Constitution.
It is equally clear that the Virginia cor-
40
poration cannot rely upon the dause dedar*
mg that no state shall "deny to any penon
within its jurisdiction the e^ual protectioa
of the laws." That prohibition manife^^Jy
relates only to the denial by the state of
equal protection to persons "within its ju-
risdiction." Observe that the prohibituia
against the deprivation of propoty withoot
due process oi law is not qualified by tha
words "within its jurisdiction," while those
words are found in the succeeding daose re-
lating to the equal protection of the laws.
The court cannot assume that those words
were inserted 'without any object, nor is it(M3j
at liberty to eliminate them from the Con-
stitution and to interpret the clause in qoes-
tion as if they were not to be found in that
instrument. Without attempting to state
what is the full import of the words, "withn
its jurisdiction," it is safe to say that a eor-
poration not created by Tennessee, nor doiag
business there under conditions that sub-
jected it to process issuing from the eoorts
of Tennessee at the inst^mce of suitors, is
not, under the above clause of the Fourteenth
Amendment, within the jurisdiction of that
state. Certainly, when the statute in qiies-
tion was enacted the Virginia corpon^xm
was not within the jurisdiction of Tennessee.
So far as the record discloses, its daim
against the Embreeville Company was on ae>
count of coke sold and shipped from Virginia
to the latter corporation at its place of bosi-
ness in Tennessee. It does not appear to
have been doing business in Tennessee under
the statute here involved, or under any statp
ute that would bring it directly jodt^ the
jurisdiction of the courts of Tennessee hf
service of process on its oflScers or agents.
Nor do we think it came within the janadi^^
tion of Tennessee, within the meaning of the
Amendment, simply by presenting its dain
in the state court and thereby beeoBiBf a
party to this cause. Under any other inur^
pretation the Fourteenth Amendment wooM
be given a scope not contemplated by its
framers or ^ the people, nor justified bj its
language. We adjudge that the statute, so
far as it subordinates the daims of privtti
business corporations not within the juris-
diction of the state of Tennessee (althoqgli
such private corporations may be creditors
of a corporation doing business in the ststs
under the authority of that statute) , to tks
claims a|[ainst the latter corporation of cred-
itors residing in Tennessee, is not a dcnid of
the "equal protection of the laws" seewsl
by the Fourteenth Amendment to persosi
within the jurisdiction of the state, howefff
unjust such a regulation may be deemed.
What may be the effect of the judinMst
of this court in the present ease upoa Um
rights of creditors not residing in the Unitf^
States, it is not necessary to decide. Hmm
creditors are not before the court on tbb
writ of error. ^
*The final judgment of the Supreme Ooirt(tV'
of Tennessee must be affirmed as to the HsH
Coal ft Coke Company, because it did not it
ny to that corporation any right, privikf*.
or immunity secured to it by the Conttits-
tion of the United SUtes. (Ker. Stat f
189&
Blake y. MgCluno.
261-26*
709.) As to the other plaintiffs in error,
dtizeiis of Ohio, the judgment must be re-
▼ersed, and the cause remanded for further
proeeedings not inconsistent with this opin-
ion.
It is 00 ordered.
(262] *Mr. Justice Brewer, with whom the
Chief Justice concurred, dissenting:
I am unable to concur in the opinion of the
eourt in this case. In my judgment it mis-
conceives the language of the statute, the is-
faes presented by the pleadings, and the de-
dsion of the state court. The act does not
discriminate between citizens of Tennessee
and those of other states. Its language is
creditors ''residents of this state shall nave
a priority . . . over all simple contract
creditors being residents of any otiier coun-
try or countries." The allegation of the
amended bill is, "your orators are all resi-
dents of the state of Tennessee, and were
such at the time the various debts sued on
in this cause were created," and that by vir-
tue of the statute they are entitled to prior-
ity over the "defendant, Rogers, Brown, &
Co., and all other creditors of said insolvent
corporation who do not reside in the state of
Tennessee, or did not so reside at the time
their credits were given." The intervening
petition of the plaintiffs in error, Blake and
ttogers, Brown, & Co., allies "that they are
residents of the state of Ohio, and were at
the times and dates hereinafter named en-
in business in said state, tiieir resi-
ices, offices, and places of business being
at the city of Cincinnati." The decree of
the court of chancery appeals adjudges "that
all of the creditors of said company who re-
sided in the state of Tennessee are entitled to
priority of payment out of all of the assets of
the company of every kind over all of the
creditors of said company who do not reside
in the state of Tennessee." And the decree
of the supreme court of the state is in sub-
[263]8tantially the *same language, adjudging
"that all of the creditors of the Embreeville
Freehold Land, Iron, & Railway Company,
Limited, who resided in the state of Tennes-
lee, are entitled to priority of payment out
of all of the assets of said company, both
real and personal, over all of the other cred-
itors of said company who do not reside in
the state of Tennessee, whether they be resi-
dents of other states of the United States or
of the Kingdom of Qreat Britain." So that
neither the statute, the pleadings, nor the
decree raise any question of citizenship, or
give any priori^ of right to citizens of Ten-
nessee over citizens of other states, but only
discriminate between residents, and give res-
idents of the state a priority. I think it
hnproper to go outside of a case to find a
question which Is not in the record simply
because it may be discussed by counsel for
one party, who apparently decline to recog-
nize any difference between residence and
citizenship. For all this record discloses,
the plaintiffs in error other than the corpora-
tion may have been citizens of the state of
Tennessee, temporarily residing and doing
bu'^iness in Ohio, and the controversy one
172 U. 8.
simply between citizens of the same state.
It is not necessary in this court to refer t»
the difference between residence and citizen*
ship. Neither is synonymous with th#
other and neither includes the other. A
British subject or a citizen of Ohio may b«
a' resident of Tennessee, and entitled to th#
benefit of this statute. A citizen of Tennes*
see may, like these plaintiffs in error, be »
resident of and doing business in Ohio and
not entitled to its benefit. It will be time
enough to consider the question discussed in
the opinion when it aj^pears that a state has
attempted to discriminate between its own
citizens and citizens of other states, and the
courts of the state have affirmed the valid-
ity of such discrimination.
Taking the statute as it reads, and assum-
ing that the legislature of Tennessee meant
that which it said, the question is whether
a state, permitting a foreign corporation
which is not engaged in interstate commerce
to come into its territory and there do busi-
ness, has the power to protect all persons re-
siding within its limits who may nave deal-
ing with such foreign corporation, by re-
quiring it to give them a prior securify on
its 'assets within the state. The principle[264|
underlying this statute is that a state,
which can have no jurisdiction beyond its
territorial limits, has the power in reference
to foreign corporations permitted to do busi-
ness therein to protect all persons within
those limits, whether citizens or not, in re>
spect to claims upon the property thereof
also within those limits. That a state may
keep such a corporation out of its territory
is conceded; and that, in permitting it to
enter, the state may impose such conditions
as it sees fit, is, as a general proposition,
also admitted. In Crutcher v. Kentucky,
141 U. S. 47, 50, [35: 649, 653], it was said:
"The insurance business, for example, can-
not be carried on in a state by a foreign cor-
poration without complying with all the con*
ditions imposed by the legislation of that
state. So with regard to manufacturing
corporations, and all other corporations
whose business is of a local and domestio
nature, which would include express com-
panies whose business is confined to points
and places wholly* within the state. The
cases to this effect are numerous. Bank cf
Augusta v. Earle, 13 Pet. 519 [10:274];
Paul V. Virginia, 8 Wall. 168 [19 : 357] ; Lifh
erpool d L, L, d F. Insurance Company v.
Massachusetts, 10 Wall. 566 [19:1029];
Cooper Manufacturing Company v. Ferguson,
113 U. S. 727 [28: 1137] ; Philadelphia Fire
Association v. New York, 119 U. S. 110 [30:
342]."
Everyone dealing with a foreign corpora-
tion is bound to take notice of &e statutes
of the state imposing conditions upon that
corporation in respect to the transaction of
its business within the state, just as he must
take notice of any mortgage or other encum-
brance placed by the corporation upon its
property there situated. A state may, and
often does, provide that persons furnishing
supplies to and doing worK for a corporation
shall have a Hen upon the property of that
441
S6i-2e7
SUPBBMB COUST OP TIIS UNITED StaTEIB.
Oct. Tsn^
eorporation prior to any mortgage. The
yalidity of such legislation has always been
sustained, and they who loan their money to
the corporation do so with notice of the
limitation, and have no constitutional riffht
of complaint if their mortgage is thereafter
postponed to simple-contract obligations. If
Toluntarilythe corporation placed a mortgage
upon all its assets within the state to secure
a debt to a single creditor residing within
(S66]*the state, and such mortgage was duly re-
corded, no one would have the hardihood to
say tiiat a resident or citizen of another state
could challenge its validity or its priority
over his unsecured debt simply because he
was a citizen of another state, or did not, in
fact, know of its existence. And that which
is tnie in case of a mortgage to a single cred-
itor would be equally true in case such for-
eign corporation placed a mortgage upon its
assets to secure every creditor witmn the
state. The number of creditors secured does not
change the validity of the security or affect
, the matter of notice or relieve the foreign
creditor from the consequences of notice.
If the corporation may vountarily place a
mortgage upon all its assets within the state
to E>ecure its creditors within the state, wh^
may not the legislature require as a condi-
tion of its doing business that it give such a
mortgage? Is the corporation more power-
ful than the state? Is a voluntarily exe-
cuted mortgage more valid than a statute?
If, in fact, m pursuance of such a statute a
mortgage to each separate creditor was given
and recorded as fast as the corporation came
under obligation to him, could a nonresident
creditor question the validity of the mort-
eage or the priority given thereby? And
M the effect of the s&tute in controversy
anything other than the imposition upon the
assets of the corporation within the state of
a single mortgage in favor of home creditors?
If written out and recorded, who could ques-
tion its validity or its priority? The stat-
ute in its spirit and effect does nothing more.
That it is prospective in its operation is im-
material— statutes generally are. The va-
lidity of an after-acquired property clause in
a mortgage has become setUed; none the less
valid is it in a statute.
It is conceded in the opinion of the court
that a foreign insurance corporation might
be required to make a special deposit with
the state treasurer to secure local policy
holders, but if it is within the constitutional
power of the state to re<|uire such special de-
posit, and when made it becomes in fact a
security to the home policy holders, I am un-
able to appreciate why the state may not re-
quire a general mortgage on all the assets
within the state as like security. Looking
(S60]at it *8imply as a question of power on the
part of the state, what difference can there
be between a pledge of a special fund and a
mortgage of the entire fund within the
state? And that which is true in respect to
an insurance corporation must also be true
of any other corporation not engaged in in-
terstate commerce business.
Indeed, aside from the demand made by
the statutes of certain states of deposits by
442
foreign corporations to secure home eredilp
ors, there are frequent illustrations of dis-
crimination based upon the matter of resi-
dence. Often nonresident plaintiffs are re-
quired to give security for costs when none
IS demanded of resident suitors. Attadi-
ments will lie in the beginning of an actkm,
authorizing the seizure of property upon the
ground that the defendant is a nonresident,
when no such seizure is permitted in ease
of resident defendants. These and many
similar illustrations, which might be sug-
gested, only disclose t^t it has been accepted
as a general truth that a state may diaoim-
inate on the ground of residence, and that
such discrimination is not to be condemned
as one between citizens ; and yet, if the doe-
trine of the opinion of the court in this csm
be correct, I cannot see how those statates
can be sustained, for surely they discrimi-
nate between nonresident and resident suit-
ors in the matter of fundamental rights, to
wit, the right of equal entrance into the
courts and equal security in the possestios
of property.
It may not be uninteresting to notice the
case of PHtU ▼. Palmer, 132 U. a 282 [33:
317]. That case came from Colorado. Ite
statutes of that state, as ouoted in the opin-
ion of the court, provided, among other
things —
''^. 260. Foreign corporations shall, be-
fore they are authorized or permitted to do
any business in this state, make and iUe a
certificate signed by the president and see-
retarv of such corporation, duly acknowl-
edged, with the secretary of state, . . .
and no corporation doing business ia
the state, incorporated under the laws of
any other state, shall be permitted to
mortgage, pledge, or otherwise encmnber
its real or personal property situated in thii
state, to the injury or exclusion of any dt*
izen, citizens, or corporations of this stat«
•who are creditors of such foreign oorpor»-ll*Tl
tion, and no morteage by any foragn eorpo-
ratioU; except railroad and telegraph cobh
panies. given to secure any debt created la
any other state, shall take effect as against
any citizen or corporation of this state u-
til all its liabilities due to any person or cor-
poration in this state at the time of record-
ing such mortgage have been paid and cz-
tinguished."
Commenting upon this section, and oth-
ers, this court said (p. 288) :
''No question is made in this ease— Indeed,
there can be no doubt — as to the validity of
these constitutional and statutory prori*
sions, so far, at least, as they do not direeth
affect foreign or interstate commerce. Is
Cooper Manufacturing Co. v. Perguton, 11 J
U. S. 727, 732 [28: 1137, 11381, this eoort
said that 'the right of the people of a state
to prescribe generally by its Constitntion
and laws the terms upon which a foreifs
corporation shall be allowed to carry oa Hi
business in the state, has been settled by tkb
court.* "
It will be perceived that the statute of Ool*
orado restrained a foreign corporation tnm
i mortgaging, pledging, or otherwise eneiv
1808.
NOBWOOD T. BaKEB.
2e7-9M
kriog its propertjr situate in the state to the
injury or exclusion of any citizen of the
state, creditor of such corporation, and fur-
ther provided tJiat no mortgage given by
Midi foreign corporation to secure a debt
ereated in another state should take effect
acainst any citizen of the state until all li-
abilities due to any person or corporation
in the state had been paid and extinguished.
But this court said, and I think correctly,
that there could be no doubt of the validity
of these statutory provisions. It may be
said, and said truthiully, that the attention
of the court was not specially directed to
this particular portion of the statute, and
hence tbat the aecision cannot be taken as
anthority. Yet the section was spread be-
fore the court, it is ouoted in its opinion,
and it was so obviously constitutional that
neither counsel nor court had any doubt
thereof. I note this case in order to suggest
the objectionable evolution of the thought
that a state ma^ not protect those persons
who are within its jurisdiction in respect to
property also within its jurisdiction, or im-
Jpose conditions on 'foreign corporations doing
Dusiness therein, which amount to such pro-
tection. Ten years ago a statute of Colorado
guaranteeing priority to citizens of the state
orer all other creditors, even those by mort-
gage, was by all parties, counsel, andbvcourt,
conceded to be free from objection, wnile to-
daj a statute of Tennessee, in no way dis-
enminating between citizens, but only be-
tween resi&nts and in respect to foreign cor*
porations, is declared to be so plainly at va*
rianoe with the Constitution of the United
States that it must be adjudged void.
The doctrine of this opinion is that a state
has no power to secure protection to persons
within its jurisdiction, citizens or nonciti-
tens, in respect to property also within its
jurisdiction, because, forsooth, such protec-
tion may in some cases work to the disad-
vantage of one who is not only a nonresident
bnt also not a citizen of the state. It seems to
me that the practical working out of this doc-
trine will be, not that the state may not dis-
criminate' in favor of its own residents as
against nonresidents, but that the state
must discriminate in favor of nonresidents
and against its own residents. Take this il-
Ins^ation: A corporation organized and
liaTinff its home office in New York comes in-
to Califomia to do business. The state of
California attempts to require that its as-
sets within the state shall be kept as a pri-
mary security for home creditors, 'fiiis
eonrt declares that such requisition is un-
constitutional. The solvency or insolvency
of that New York corporation will be known
in New York by those who are nearer to its
home office sooner than by people in Cali-
fornia. Insolvency is impending. The cred-
itors in New York, near the home office, and
familiar therefore with its exact condition,
tsoertaining its approaching insolvency, send
to California, where there are assets, and,
availing theinselves of the ordinary statu-
tory provisions of that state, seize by at-
tachment all the assets there situated. The
insolvency is thereafter made public, and
172 U. S.
the Califomia creditors find that all the
sets of the corporation within their stata
have been seized by creditors outside the
state, and they are driven to the state of
New York, where the corporation was or-
ganized, where its home *omce and home a8-[2M]
sets are, to see what share in the unappropri-
ated assets they can obtain, while the New
York creditors, by reason of their early in*
formation, secure full payment. Practically,
the effect is to compel the state to discrinu*
nate in favor of the New York against the
home .creditors. The suggestion that after
the New York creditors have perfected their
liens upon the assets in Califomia, the courts
of that state will stay proceedings until they
see that the New York courts have given full
protection to the Califomia creditors in Hhb
assets in New York, is visionary and imprao*
ticable. There may be assets in twenty
states, and there is no control by the oourts
of one state over proceeding's in the courts of
other states. Of course, if the Califomia
courts can wait till the New York courts
have acted, the converse is also true, and so
a game of seesaw may be established between
the courts of the two states. For these,
among other reasons, I am constrained to
dissent from this opinion and ludgment.
I am authorized to state uiat the Chlel
Justice ooncurs in this dissent.
VTLLAaE OP NORWOOD, Appt^
V,
ELLEN R. BAKER.
(See 8. 0. Reporter's ed. 269-808.)
Due process of law— cost of public improve
ment — special assessment, when invalid^
injunction — special benefits — taking of
private property for public use, without
compensation,
1. Due process of law requires compensation
to be made or secured to the owner of private
property when It Is taken by a state, or un-
der Its authority, for public use.
2. The exaction from the owner of private
property, of the cost of a public Improvement
In substantial excess of the special benefits
accruing to him. Is, to the extent of such ex-
cess, a taking, under the guise of taxation,
of private property for public use without
compensation.
8. A special assessment upon abutting prop-
erty by the front foot, without taking spe-
cial benefits Into account, for the entire cost
and expense of opening a street. Including,
not only the amount to be paid for the land,
but the cost and expense of the proceedings,
is a taking of private property for public use
without compensation.
4. An injunction against a special assessment
which is illegal because It rests upon a basis
that excludes any consideration of benefits
should enjoin the whole assessment, without
considering whether the amount Is in excess
of the special benefits to the property, or not.
5. Payment or tender of the amount of bene-
fits received from an Improvement Is not
necessary In order to obtain an Injunction
443
1
•70-878
SUPBEMS COUBT OF THS wMITBD 8tAT£&
Oct. Tum,
agalnft an Illegal asaetsment which la baaed
•n a nila or ayatem that haa no reference to
special beneflta.
[No. 34.]
tuhmitted May S, 1898. Decided December
it, 1898.
APPEAL from a decree of the Cirenit
Court of the United States for the South-
em District of Ohio adjudging that a certain
assessment for opening a street is in viola-
tion of tiie constitutional amendment forbid-
ding deprivation of property without due
process of law. Affirmed.
See same case below, 74 Fed. Rep. 997.
The facts are stated in the opinion.
Mr. William E. Bundy for appellant.
Mr, Cn&arlea W. Baker for appellee.
nivO] *Mr. Justice Harlan delivered the opin-
ion of the court:
This case arises out of the condemnation
•f certain lands for the purpose of opening a
gtreet in the village of Norwood, a municipal
eerporation in Hiunilton county, Ohio.
The particular question presented for con-
sideratiOB involves the validity of an ordi-
|n^l]nance of that villaj^, assessing upon *the ap-
pellee's land abutting on each side of the new
street an amount covering, not simply a sum
equal to that paid for the land taken for the
sb'eet, but, in addition, the costs and ex-
penses connected with the condemnation pro-
ceedings.
By the final decree of the circuit court of
the United States it was adjudged that the
assessment complained of was in violation of
the Fourteenth Amendment of the Constitu-
tion of the United States forbidding any
state from depriving a person of property
without due process of law; and the village
was perpetually enjoined from enforcing the
assessment. 74 Fed. Rep. 997.
The present appeal was prosecuted direct-
ly to this court, because the case involved the
oonstruction and application of the Consti-
tution of the United States.
It will conduce to a clear understanding of
the case to ascertain the powers of the vil-
lage under the Constitution and statutes of
Ohio, and to refer somewhat in detail to the
proceedings instituted for the opening of the
ftreet through appellee's property.
Bv the Constitution of Ohio it is declared:
Trivate property shall ever be held invio-
late, but subservient to the public welfare.
When taken in time of war or other public
exigency imperatively requiring its immedi-
ate seizure, or for the purpose of making or
repairing roads, which shall be open to the
gUDlic, without charge, a compensation shall
e made to the owner, in money, and in all
other cases, where private property shall be
taken for public use, a compensation therefor
shall first be made in money; and such com-
pensation shall be assessed by a jury, with-
out deduction for benefits to any property of
the owner." Const. Ohio 1851, art. 1, S 19,
Bill of Rights; Bates's Anno. Ohio Stat vol.
3, p. 3525.
Cities and villages in Ohio are by statute
given power to lay off, establish, open, widen.
444
narrow, straighten, extend, keep in order,
and repair, and light streets, alleys, public
grounds, and buildings, wharves, landing
places, bridges, and market spaces witiiin tka
corporation, and to appropriate private prop-
erty for the use of the corporation. And
"each city and village may appropriate, enter
upon, and hold real ^estate within its eor^tyiZti
knf m^
rate limits for the following purposes, but
more shall be taken or appropriated thsa Is
reasonably necessary for the purpose to
which it is to be applied: 1. For opening,
widening, straightening and extending
streets, aJleys, and avenues; also for obtain-
ing gravel or other material for the improve-
ment of the same, and for this purpose the
right to appropriate shall not be limited to
lands lying within the limits of the corpora-
tion. ..." 1 Rev. SUt. Ohio (1890) 9 1092,
subdiv. 18 and 33, and S 2232, pp. 429, 439,
title, Oities and Villages; Enumteratiim ef
Poivere, and p. 572, title, Appropriatiim If
Oities and Villages of Private Property te
Public Use,
Other provisions of the statute preKribt
the steps to be taken in the appropnati<m by
a municipal corporation of private property
for public purposes. 9S 2233 to 2261 «►
elusive.
It is further provided by the statates of
Ohio (1890) title XII. Assessments, ets^
chap. 4, as follows:
"9 2263. When the corporation appropri-
ates, or otherwise acquires, lots or lands for
the purpose of laying off, opening, extend-
ing, straightening, or widening a street, al-
ley, or other public highway, or is possessed
of property which it desires to improve for
street purposes, the council may assess tht
cost and expenses of such appropriation or
acouisition, and of the improvement, or of
either, or of any part of either, upon the
general tax list, in which case the same shall
be assessed upon all the taxable real and psr»
sonal proper^ in the corporation.
''9 2264. In the cases provided for in ths
last section, and in all cases where an i»
provement of any kind is made of an exist*
ing street, alley, or other public highvtj,
the council may decline to assess the eooli
and expenses in the last section mentioosd or
any part thereof, or the coots and expoMSi
or any part thereof of such improvencnt,
except as hereinafter mentioned, on the gcft-
eral tax list, in which event such costs ssd
expenses, or any part thereof which maj not
be so assessed on the general tax list, s^
be assessed by the oouncfl on the abottiif
and such adjacent and contiguous or otWr
benefited lots and lands in the corporttka,
either in proportion to the benefits wkich
may result from the improvaneot,*orseoord'{'^
ing to the value of the property assesssH, «r
by the front foot of the property to—diM
and abutting upon the improvement^ ss tko
council by ordinance setting forth speciScaHy
the lots and lands to be assessed, msj de*
termine before the improvement is made, ud
in the manner and subject to the restrictioes
herein contained; and the assessments sksll
be payable in one or more instalments. t»i
at such times as the council may preoeriba
..." 1 Rev. Stat. Ohio, p. 681.
17t IT. fc
1806.
Norwood t. Bakes
27g-275
Section 2271 provides: "In cities of the
first grade of the first class, and in corpora-
tions in counties containing a city of the first
grade of the first class, the tax or assess-
Hient especiallj levied or assessed upon any
lot or land for B,ny improvement smill not,
except as provided in 9 2272, exceed twenty-
five per centum of the value of such lot or
land after the improvement is made, and the
cost exceeding that per centum shall be paid
by the corporation out of its general revenue;
. . and whenever anv street or avenue
is opened, extended, straightened, or widened,
the special assessment for the cost and ex-
pense, or any part thereof, shall be assessed
only <m the loU and lands hounding and
abutting on 8uoh part or parts of said street
or avenue so improved, and shall include of
such lots and lands only to a fair average
depth of lots in the neighborhood, but nhall
also include other lots and parts thereof and
lands to such depth; and whenever at least
one half in width of any street or avenue has
been dedicated for such purpose from the lots
and lands lying on one side of the line of such
street or avenue, and such street or avenue
is widened l^ tiJdng from lots and lands on
the other side thereof, no part of the cost and
expense thus increased [incurred] shall be
assessed upon the lots and lands lying on
said first-mentioned side, but only upon the
other side, and as aforesaid, but said special
assessment shall not be in any case in excess
of benefits." 1 Rev. Stat. Ohio, p. 613.
Section 2272 relates to assessments for im-
provements made in conformity with the pe-
tition of the owners of property.
By section 2277 it is ijrovided that <in
eases wherein it is determined to assess the
whole or anv part of the cost of an improve-
noent upon the lot or lands bounding or abut-
(t74]tinff *npon the same, or upon any other lots
or lands benefited thereby, as provided in S
2264, the council may require the board of
improvements, or board of public works, as
the case may be, or may appoint three dis-
interested freeholders of the corporation or
vicinity, to report to the council an estimated
assessment of such cost on the lot or lands
to be charged therewith, in proportion, as
nearly as may be, to the benents which may
result from the improvement to the several
lots or parcels of land so assessed, a copy of
which assessment shall be filed in the office
of the clerk of the corporation for public in-
spection."
Section 2284 is in these words: 'Th« coft
172 V. 8.
of any improvement contemplated in this
chapter shall include the purchase money of
real estate, or any interest therein, when the
same has been acquired by purchase, or the
value thereof as found by the jury, where the
same has been appropriated, the costs and
expenses of the proceedings, the damages as-
sessed in favor of any owner of adjoining
lands and interest thereon, ine costs and ex-
penses of the assessment, the expense of the
preliminarv and other surveys, and of print-
ing, publishiiif the notices and ordinances re-
quired, including notice of assessment, and
serving notices on property owners, the cost
of construction, interest on bonds, where
bonds have been issued in anticipation of the
collection of assessments, and any other nec-
essary expenditure."
By an ordinance approved October 10th,
1891, the village declared its intention to con-
demn and appropriate, and by that ordinance
condemned and appropriatea, the lands or
grounds in question for the purpose of open-
ing and extending Ivenhoe avenue; and in or-
der to make such appropriation efiTectual, the
ordinance directed the institution of the nec-
essary proceedings in court for an inquiry
and assessment of the compensation to be
paid for the property to be condemned.
The ordinance provided that the cost and
expense of the condemnation of the property,
including the compensation paid to the own-
ers, the cost of the condeiNiation proceedings,
the cost of advertising and all other oosts
and the interest on bonds issued, if any,
should be assessed "per front foot upon the
property bounding and abutting on that
part of Ivenhoe *avenue, as condemned andtSTSj
appropriated herein" — ^the assessments paya-
ble in ten annual instalments if deferrec^ and
the same collected as prescribed by law and
in the assessing ordinance thereafter to be
passed.
Under that ordinance, application was
made by the village to the probate court of
Hamilton county mr the empaneling of a ju-
rv to assess the compensation to be paid for
the property to be taicen. A jury was accord-
ingly empaneled, and it assessed the plain-
tifrs compensation at $2,000, declaring that
they made the ''assessment irrespective of
any benefit to the owner from any improve-
ment proposed by said corporation."
The assessment was confirmed by the court,
the amount assessed was paid to the owner,
and it was ordered that the village have im-
mediate possession and ovmership of the
44S
275-277
SUPREMB Ck>1JBT OF THS UmTBD STATES.
Oct.
g remises for the uses and purposes specified
1 the ordinance.
The property condemned is indicated by the
folio wing plat:
ing the same from year to year in an
of about $13 per annum; and the TiUsge ad-
mitted that the assessment had been ^aesd
upon the tax duplicate, and sent to the
D
er
s
Hopkins
Aye.
•
soft.
BLLBN B.
Land tmeated to
pay for atrip.
i»
JgQft
BA.EER.
Land cmeaaed to
pay for atrip.
'WUltams
Ave.
[S76] *After the finding of the Jury the Tillage
council nassed an ordinance lei^ying and as-
sessing "on each front foot of the several lots
of land bounding and abutting on lyenhoe
ayenue, from Wifliams avenue to a point 300
feet north/' certain sums for eacn of the
years 1892 to 1901 inclusive, ''to pay the cost
and expense of oondenming property for the
extension of said Ivenhoe avenue between the
points aforesaid [from Williams avenue to
a point 300 feet north] together with the in-
terest on the bonds issuea to provide a fund
to^y for said oondemnation.^
the same ordinance provision was made
for issuing bonds to provide for the payment
of the cost and expense of the oondemnation,
which induded the amount found l^ the Jury
as compensation for the property taken, the
costs in the condemnation proceeilinffs, solio-
itor and expert witness feep, adverti8Uig,ete. ;
in aU, $iMsM.
The present suit was brought to obtain a
decree restraining the village from enforcing
the assessment in question against the abut-
tinff property of the plaintiff.
n was conceded that the defendant assessed
back upon the plaintiff's 300 feet of land up-
on either side of the strip taken (making 600
feet in all of frontage upon the strip con-
demned) the above sum of $2^18.58, paya-
ble In instalments, with interest at six per
cent, the first instalment bein^ $354.97 and
the last or tenth Instalment $235.17, lessen-
446
ty treasurer for collectioii, os • Um m§
charge aaainat the abutting property owitd
by the plaintiff.
But the village alleged that the appropri-
ation proceedings and consequent asseMmeat
were all in strict conformity with the Uwi
and statutes of the state of Ohio and in pw
suance of due process of law; that the opca-
inff and extemnon of Ivenhoe avenue oootti-
tuled a public improvement for which Um
abutting property was liable to assesHMBt
under tae laws of Ohio; that the coonl
fees, witness fees, and costs induded In sadi
total assessment were a part of the ledthBSla
expenses *pf such improvement; and tibst
any event an expense had ben ineurrsd by
the munidpal corporation in qpenlng ths
street ''equal to the full amount of the waid
assessment, which is a proper charge agaiMt
the complainant's abutting property.
It was affreed at the heanng oi the pnaani
case that Uie sum awarded by the veraieC of
the jury was paid to and reoeived by Um
plaintiff, and that it was that sum, togrthsr
with the costs and diarges, that the viUs|t
undert6ok to assess bade upon the land upoe
dther side of said strip of land.
The plaintiff's suit proceeded upoa the
ground, distinctly stated, that the asMS*
ment in question was in vIolMion oftheFw^
teenth Amendment providing Uiat no stsli
shall deprive anv person of proper^ wHheet
due process of law nor deny to any pertoe
iTtir.t.
1898.
NOBWOOD T. BAKBB.
Vt7-2m
within itR jurisdiction ilie equal protection
id the law8, as well as of the bill of rights of
the Ck)nstitution of Ohio.
It has been adjudged that the due process
of law prescribed by that Amendment re-
quires compensation to be made or secured
to the owner when private proj^rty is taken
bj a state or under its autnority for public
use. Chicago, Burlington d Q, R, R. Co, y.
Chicago, 166 U. S. 226, 241 [41 : 079, 986] ;
Long Island Water Supply Co. v. Brooklyn,
166 U. S. 685, 605 [41: 1165, 1168].
The taking of the plaintiff's land for the
street was under the power of eminent domain
— a power which this court has said was the
offspring of political necessity, and insep-
arable from sovereign^ unless denied to it
hj the fundament^ law. Searl y. Lake
County School District No. 2, 133 U. S. 553,
562 [33: 740,746]. But the assessment of
the abutting property for the cost and ex-
pense incurrea by the village was an exer-
cise of the power of taxation. Except for
the provision of the Ck>iistitution of Ohio
shove quoted, the state could have author-
ized benefits to be deducted from the actual
value of the land taken, without violating
the constitutional injunction that compen-
sation be made for private propertj^ taken for
public use; for the benefits received could
be properly regarded as compensation pro
tanto for the property apj^lropriated to public
It78]u8e. But *does the exclusion of benefits from
the estimate of ccxnpensation to be made for
the property actually taken for public use au-
thorize the public to charge upon the abut-
ting property the sum paid for it, together
wiUi the entire costs incurred in the condem-
nation proceedings, irrespective of the ques-
tion whether the property was benefited by
the opening of the street?
Undoubtedly abutting owners may be sub-
jected to special assessments to meet the ex-
penses of opening public highways in front
of their property— such assessments, accord-
ing to well-established principles, resting
upon the ground that special liirdens may be
imposed S)r special or peculiar benefits ac-
eruing from public improvements. MohUe
County y. KimbaU, 102 U. S. 691, 703, 704
[26: 238, 242] ; lUinois Central Railroad Co.
V. Decatur, 147 U. 8. 190, 202 [37 : 132, 136] ;
Bauman v. Boss, 167 U. S. 548, 580 [42 : 270,
288], and authorities there cited. And ac-
cording to the weight of judicial authority,
the legislature has a large discretion in de-
fining the territory to he deemed specially
boiefited by a public improvement, and
which may be subjected to special assessment
to meet the cost of such improvements. In
WiUiams v. Eggleston, 170 U. 8. 304, 811
[42: 1047, 1050], where the only question, as
this court stated, was as to the power of the
legislature to cast the burden of a public im-
provement upon certain towns, which had
been judicially determined to be towns ben-
efited by sudi improvement, it was said:
'T^either can it be doubted that, if the state
Constitution does not prohibit, the legisla-
ture, speaking generally, may create a new
taxing district, determine what territory
shall belonff to sueh district and what prop*
172 U. •/
erty shall be considered as benefited by a pr4»>
posed improvement."
But the power of the legislature in these
matters is not unlimited. There is a point
beyond which the legislative department,
even when exerting the power of taxation,
may not go consistently with the citizen's
ri^ht of propertn^. As already indicated, the
principle underlying s]^ecial assessments to
meet the cost of public improvements is that
the property upon which tney are imposed is
peculiarly benefited, and therefore the own-
ers do not, in fact, pay anything in excess of
*what they receive by reason of such improve-[279}
ment. But the guaranties for the protection
of private property would be seriously im-
paired, if it were established as a rule of
constitutional law, that the imposition by
the legislature upon particular private prop-
erty of the entire cost of a public improve-
ment, irrespective of any peculiar benefits
accruing to the owner from such improve-
ment, could not be questioned h^ him in the
courts of the country. It is one thing for
the l^slature to prescribe it as a general
rule uiat property abutting *on a street
opened by the public shall be deemed to have
been speciallybenefited by such improvement^
and therefore should specially contribute to
the cost incurred by the public It is quite
a different thing to lay it down as an abso-
lute rule that such property, whether it is
in fact benefited or not by the opening of
the street, may be assessed by the front foot
for a fixed sum representing the whole cost
of the improvement, and without any right
in the property owner to show, when an as-
sessment of that kind is made, or is about to
be made, that the sum so fixed is in excess of
the benefits received.
In our judgment the exaction from the
owner of private property of the cost of a
public improvement in substantial excess of
the special benefits accruing to him is, to the
ewtent of such eofcess, a taking, under the
guise of taxation, of private property for
public use without compensation. We say
''substantial excess/' because exact equality
of taxation is not always attainable, and for
that reason the excess of cost over special
benefits, unless it be of a material character,
ought not to be regarded by a court of equity
when its aid is invoked to restrain the en-
forcement of a special assessment.
In Illinois Central Railroad Go. y. JDeoo-
tur, 147 U. S. 190, 202 [37 : 132. 136] ,— whei#
it was held that a provision in the charter
of a railroad company exempting it from
taxation did not exempt it from a municipal
assessment imposed upon its land for grad-
ing and paving a street, — ^the decision rested
upon the ground that a special assessment
proceed! on the theory that the property
charged therewith derives an increased value
from the improvement, "the enhancement in
value beinff the oonsideraUonfor tnecharffe.**
*In CoM«^ on Taxation (2d ed. chap. 20)[f80)
the author, m oonsidering the subject of tax-
ation by special assessment, and of estimat-
ing benefits oonferred upon property by a
public improvement, sayi that while a gen-
eral levy of taxes reete upon the ground that
447
&)0-:i32
SuPBEHB Court op thb United Stxtes.
OCT.TII1I,
ihs citizens may be required to make contri-
bution hi that mode in return for the general
benefits of goyemment, special assessments
mre a peculiar species of taxation, and are
made upon the assumption that "a portion
of the community is to be specially and
peculiarly benefited, in the enhancement of
the value of property peculiarly situated
as regards a contemplated expenditure of
public funds; and, in addition to the general
levy, they demand that special contribu-
tions, in consideration of the special benefit,
shall be made by the persons receiving it.
The justice of demanding the special contri-
bution is supposed to be evident in the fact
that the persons who are to make it, while
they are made to b^ir the cost of a public
work, are at the same time to suffer no pe-
cuniary loss thereby; their property being
increased in value by the expen&ture to an
amount at least equal to the sum they are
required to pay." Again, the author says:
**There can^ no justification for any pro-
ceeding which charges the land witi^ an as-
sessment greater than the benefits; It is a
plain case of appropriating private property
to public uses without compensation."
In Macon v. Patty, 57 Miss. 378, 386 [34
Am. Rep. 451], the supreme court of Missis-
sippi said that a special assessment is un-
like an ordinary tax, in that the proceeds
of the assessment must be expended in an
improvement from which ^a benefit clearly
exceptive and plainly perceived must inure
to the property upon which it is imposed."
So, In the Matter of Canal Street, 11
Wend. 156, which related to an assessment to
meet the expenses of opening a street, the
court, after observing that the principle that
private property shall not be taken for public
use without just compensation was found in'
the Constitution and laws of the state, and
had its foundation in those elementary prin-
ciples of equity and justice which lie at the
root of the social compact, said: 'The cor-
{Mllporation may see the extent of the 'benefit of
any improvement, before proceedings are
commenced ; but the extent of injury to
be done to individuals cannot be known to
them until the coming in of the report of the
commissioners; they may then be satisfied
that the property which is to be benefited
will not be benefited to the extent of the as-
sessment necessary to indemnify those whose
property is taken from them. What are
they to doT If they proceed, they deprive
some persons of their property unjustly; if
the report of the commissioners is correct,
the amount awarded to the owners of prop-
er^ taken cannot be reduced without in-
justice to them. If the assessment is con-
firmed and enforced, the owners of the adja-
cent property must pay beyond the enhanced
value of their own property, and all such ex-
cess is private property taken for public use
without just compensation."
In McCormack v. Patchin, 53 Mo. 36 [14
Am. Hep. 440], the supreme court of Mis-
souri said: "The whole theory of local tax-
ation or assessments is that the improve-
ments for which they are levied afford a re-
muneration in the way of benefits. A law
448
which would attempt to make one person, or
a given number of persons, under the gum
of local assessments, pay a general reveBoe
for the public at large, would not be
an exercise of the taxine power, but as act
of confiscation." See also ZoeUer v. Kd-
logg, 4 Mo. App. 163.
In State, Hohoken Land d Imp. Cc, v.
Eohoken, 36 N. J. L. 293, which was the ca^
of the improvement of a street and a spe^rial
assessment to meet the cost, — such cost be-
ing in excess of the benefits received by the
property owner ,-^it was held that to the
extent of such excess private property vta
taken for public use without compensa
tion, because that received by the landowiMr
was not equal ^o that taken from him.
It will not escape observation that if the
entire cost incurred by a municipal ccrpora-
ticn in condemning land for the purpose of
opening or extending a street can be assessed
back upon the abutting property, without ia-
quiry in any form as to the special benefits
received by the owner, the result will be more
injurious to the owner than if he had beea
required, in the first instance, to open the
street at his own cost, without ^compensatioiffSf 1
in respect of the land taken for the street;
for, by opening the street at his own cost be
might save at least the expense attending
formal proceedings of condemnation. It eaa-
not be that any such result is consistent with
the principles upon which rests the power to
make special assessments upon property ii
order to meet the expense of public improffir^
ments in the vicinity of such nroperty.
The views we have expressea are supported
by other adjudged cases, as well as by reaaoa
and by the principles which must be recot-
nized as essential for the protection of pri-
vate property against the arbitrary action of
government. T%e importance of the questioa
before us renders it appropriate to refer to
some of those cases.
In State, Agens, v. Mayor, etc., of Newark,
37 N. J. L. 416, 420-423, the question arose
as to the validity of an assessment of the ei*
penses incurred in repairing the roadbed of
a portion of one of the streets of the city of
Newark. The assessment was made in ooa-
formity to a statute that undertook to fix,
at the mere will of the legislature, the ratio
of expense to be put upon the owners of prop-
erty along the line of the improvement
Chief Justice Beasley, spoiking for the ooart
of errors and appeals, said: "The doetrint
that it is competent for the legislatnre to
direct the expense of opening, paving, or im-
proving a public street, or at least some pert
of such expense, to be put as a special bnrd«
on the property in the neighborhood of sack
improvement, cannot, at this day, be draws
in question. There is nothing in the Ooostl-
tution of this state that requires that til
property in the state, or in any partienlsr
subdivision of the state, must be embraced in
the operation of every law levying a tsx.
That the effect of such law<< may not exieni
beyond certain prescribed limits is perfectly
indisputable. It is upon this principle tbst
taxes raised in counties, townships, and citi«
are vindicated. But while it is thus flesr
171 U.f.
UK).
^OBWOOD y. Bakek.
28d-2aft
tluit the burden of a particular tax may be
S laced on any political district to whose bene-
t such tax is to inure, it seems to me it is
equally clear that, when such burden is
sought to be imposed on particular lands, not
In themselves constituting a political sub-
division of the state, we at once approach
lt83]the *line which is the boundary between acts
of taxation and acts of confiscation. I think
it impossible to assert, with the least show
of reason, that the legislative right to select
the subject of taxation is not a limited right.
For it would seem much mor^ in accordance
with correct theory to maintain that the pow-
er of selection of the property to be taxed
cannot be contracted to narrower bounds
than the political district within which it is
to operate, than that such power is entirely
illimitable. If such prerogative has no tram-
mel or circumscription, Uien it follows that
the entire burden of one of these public im-
provements can be placed, by the force of the
legislative will, on the property of a few
enumerated citizens, or even on that of a
sinsle citizen. In a government in which the
l^slative power is not omnipotent, and in
which it is a fundamental axiom that private
property cannot be taken without just com-
risation, the existence of an unlimited right
the lawmaking power to concentrate the
burden of a tax upon specified property, does
not exist. If a statute should direct a cer-
tain street in a cit^ to be paved, and the»ex-
pense of such paving to be assessed at the
Ikouses standing on the four corners of such
street, this would not be an act of taxation,
and it is presumed that no one would assert
it to be such. If this cannot be maintained,
then it follows that it is conceded that the
legislative power in question is not complete-
ly arbitrary. It has its limit; and the only
inquiry is, where that limit is to be placed."
After referring to a former decision of the
same court, in ^ich it was said that special
assessments could be sustained upon the theo-
ry that the party assessed was locally and pe-
culiarly benefited above the ordinary benefit
which as one of the community he received in
all public improvements, the opinion pro-
ceeds: "It follows, then, that these local as-
sessments are justifiable on the ground above,
that the locality is. especially to be benefited
by the outlay oi the money to be raised. Un-
less this is the case no reason can be assigned
why the tax is not general. An assessment
laid on property along a city street for an
improvement made in another street, in a dis-
tant part of the same city, would be universal-
i284]ly condemned, *both on moral and legal
grounds. And yet there is no difference be-
tween such an extortion and the requisition
upon a landowner to pay for a puolic im-
provement over and above the exceptive bene-
fit received by him. It is true that the power
of taxing is one of the high and indispensa-
ble prerogatives of the government, and it
can be only in cases free from all doubt that
its exercise can be declared by the courts to
be illegal. But such a case, if it can ever
arise, is certainly presented when a property
18 specified, out of which a public improve-
ment is to be paid for in excess of the value
specially imparted to it by such improve-
172 U. 8. U. S.. Book 48.
ment. As to such excess I cannot distis-
guish an act exacting its payment from the
exercise of the power of eminent domain. In
case of taxation the citizen pays his quota of
the common burden ; when his land is seques- ^
tered for the public use he contributes more
than such quota, and this is the distinction
between the effect of the exercise of the tax-
ing power and that of eminent domain.
Wnen, then, the overplus beyond benefits
from these local improvements is laid upon a
few landowners, such citizens, with respect
to such overplus, are required to defray more
than their snare of the public outlay, and the
coercive act is not witnin the proper scope
of the power to tax."
So, in Bogert v. Elizaheth, 27 N. J. Eq.
568, 569, which involved the validity of a
provision in the charter of a city directing
the whole cost of special improvements to be
put on the property on the tine of the street
opposite such improvements, the assessment!
to be made in a just and equitable manner
by the common city council, the court said:
''The sum of the expense is ordered to be put
on certain designated property, without re-
gard to the proportion of benefit it has re-
ceived from the improvement. The direction
is perfectly clear ; the entire Durden is to be
borne by the land along the line of the im-
provement, and the ratio of distribution
among the respective lots is left to the judg-
ment of the common council. Such a power,
according to legal rules now at rest m this
state, cannot be executed. The whole clause
is nugatory and void, and all proceedings un-
der it are not mere irregularities, but are
nullities."
*In Hammeit v. Philadelphia, 65 Pa. 146,[285J
150-153 [3 Am. Rep. 615], fhe court, speak-
ing by Judge Sharswood, said that it was a
point fully settled and at rest in that state,
that the legislature has the constitutional
right to confer upon municipal corporatione
the power of assessing the costs of local im-
provements upon the properties benefited,
and that on the same principle the validity
of municipal claims assessing on the lots
fronting upon streets their due share of the
cost of grading, curbing, paving, building
sewers and culverts, and laying water pipes,
in proportion to their respective fronts, nas
been repeatedly recognized, and the liens for
such assessments enforced. ''These cases,"
the court said, "all fall strictly within the
rule as originally enunciated — local taxation
for local purposes— or, as it has been else-
where expressed, taxation on the benefits con-
ferred, and not beyond the ewtent of tho90
benefits, . . If the sovereign breaks open
the strong box of an individual or corpora-
tion and takes out money, or, if not being
paid on demand he seizes and sells the lands
or goods of the subject, it looks to me very
much like a direct taking of private property
for public use. It certainly cannet alter the
case to call it taxation. Whenever a local as-
sessment upon an individual is not grounded
upon and measured by, the extent of his par-
tioular benefit, it is, pro tanto, a taking of his
private property for public use without any
provision for compensation.
In Barnes v. Dyer, 56 Vt. 469, 471, which
29 440
285-288
Supreme Court of the Uritbd States.
Oct. Tbh^
involved the validity of a statute relating to
the construction and repair of sidewalks in
a city of Vermont, under the authority of its
common council, and directing the expense to
be assessed on the owners of property through
which or fronting which such sidewalks
«hould be constructed, it was said: ''The
act in question made no express allusion to
assessment on account of benefit; neither does
it limit the assessment to the amount of
benefit; vet, as we have seen, the right to as-
sess at all depends solely on benelic, and must
be proportioned to and limited bv it. An im-
Srovement might cost double tiie benefit to
le land specially benefited."
In Thonia$ v. Gain, 35 Mich. 155, 162 [24
Am. Rep. 535], Chief Justice Cooley, speak-
ing for the supreme court of Michigan, said :
[j|S6]*'^t is generally agreed that an assessment
levied without regard to actual or probable
benefits is unlawful, as constituting an at-
tempt to appropriate private property to
public uses. This idea is strongly stated in
The Tide-Water Co, ▼. Ooeter, 18 N. J.Bq.519
[00 Am. Dec. 634], which has often been
cited with approval in other cases. It is ad-
mitted that the legislature may prescribe
the rule for the apportionment of benefits,
but it is not conceded that its power in this
regard is unlimited. The rule must at least
be one which it is legally possible may be
Just and equal as between the parties as-
sessed; if it is not conceivable that the rule
rrescribed is one which will apportion the
urden justly, or with such proximate jus-
tice as IS usually attainable in tax cases, it
must fall to the ground, like any other mere-
ly arbitrary action which is supported by no
principle."
In the case of The Tide-Water Co. v. Ooeter,
18 N. J. Eq. 527-8 [90 Am. Dec. 634], re-
ferred to by the supreme court of Michigan,
it was said : ''Where lands are improved by
legislative action on the ground of public
utility, the cost of such improvement, it has
frequently been held, may, to a certain de-
gree, be imposed on the parties who, in con-;
sequence of owning the lands in the vicini^
of sudi improvement, receive a peculiar ad-
Tanti4j;e. By the operation of such a system
it is not considered that the property of the
individual or any part of it is taken from
him for the public use, because he is com-
pensatcNl in the enhanced value of such prop-
erty. But it is dear this principle is only
applicable when the benefit is commensurate
to the burden — when that which is received
by the landowner is equal or superior in value
to the sum exacted; for if the sum exacted
W in excess, then to that ewtent, most incon-
testably, private property is assumed by the
public. 'Not, as to tnis excess, can it b« suc-
cessfully maintained that such imposition it
legitimate, as an exercise of the power of taxa-
tion. Such an imposition has none of the es-
sential characteristics of a tax. We are to
b^r in mind that this projected improvement
Is to be regarded as one in which the public
has an interest^ The owners of these lands
have a snecial concern in such improvements
so far as particular lands will be in a pecul-
rj|37]iar manner benefited. *Beyond this their situ-
ation is like the rest of the community. Th«
450
consideration for the excess of the cost of
improvement over the enhancement of the
property within the operation of the act is
the public benefit. The expenditure of ihh
portion of the cost of the work can only be
lustified on the ground of benefit to the pob-
lic I am aware of no principle that will
permit the expense incurred in oonferriiig
such benefit on the public to be laid in the
form 01 a tax on individuals."
In Dillon's Treatise on Municipal Corpo-
rations there is an extended discussion of this
whole subject. - In section 761 he states the
general results of the cases in the sevenl
states concerning special assessments for lo-
cal improvements. After stating that a' lo-
cal assessment or tax upon the property ben-
efited by a local improvement may be au-
thorized by the legislature, he says: "Speeisl
benefits to the property assessed, that is, bet-
efits received by it in addition to those re-
ceived by the community at large, is the trot
and only just foundation upon which local
assessments can rest; and to the extent of
special benefits it is everywhere admitted
that the legislature may authorize kwal
taxes or assessments to be made." Again, the
author says: "When not restrained by tho
Constitution of the particular state, the leg-
islature has a discretion, commensurate wiUi
the broad domain of legislative power, in
malting provisions for ascertaimng what
property is specially benefited and how tb*
benefits shall be apportioned. This propo-
sition, as stated, is nowhere denied. But tb#
adjudged cases do not sgree upon the extent
of legislative power." While recognizing the
fact that some courts have asserted that ths
authority of the legislature in this regard
is quite without limits, the author observes
that "the decided tendency of the later ds>
cisions, including those of the courts of New
Jersey, Biichigan, and Pennsylvania, is Is
hold that the legislative power is not uslia-
ited, and that these assessments must bt ap-
portioned by some rule capable of prodnctsc
reasonable equality, and that provisions of
such a nature as to make it legally impo^
sible that the burden can be apportioesl
with proximate equality are arbitrary ex-
actions and not an exercise of legislative au-
thority." He further says: ""Whether it fe(Ml
competent for the legislature to declare that
no part of the expense of a local improve-
ment of a public nature shall be borne by a
general tax, and that the whole of it shall be
assessed upon the abutting property and oth-
er property in the vicinitv of the improivt-
ment, thus for itself conclusively deter«i>>
ing, not only that such property is specially
benefited, but that it ie thus benefited to the
extent of the cost of the improvement sW
then to provide for the apportionment of the
amount by an estimate to be made by dene*
nated boards or officers, or by frontsfe or
superficial area, is a question upon whidi the
courts are not agreed. Almost all of the
earlier cases asserted that the Imslativt di*>
cretion in the apportionment of public bv^
dens extended this far, and such Icglslstifle
is still upheld in most of the states. Bvt
since the period when express profWoss
1896.
Norwood t. Baxbr.
388-291
lure been made in many of the state Con-
stitutions requiring uniformity and equal-
ity of taxation, several courts of great re-
spectability, either by force of this re<^uire-
ment or in the spirit of it, and perceiving
that special benefits actually received by each
parcel of contributing property was the only
princtple upon which suck assessments can
justly rest, and that any other rule is un-
equal, oppressive, and arbitrary, have denied
the unlimited scope of legislative discretion
and power, and asserted what must upon
princtple he regarded as the just and reason-
able doctrine, that the cost of a local im-
provement can be assessed upon particular
property only to the extent that it is spe-
ciaUy and peculiarly benefited; and since the
emcess beyond that is a benefit to the munic-
ipality at large, it must be borne by the gen-
eral treasury."
It is said that the judgment below is not
in accord with the decision of the supreme
eourt of Ohio in City of Cleveland v. Wick,
18 Ohio St. 304, 310. But that is a mis-
take. That case only decided that the own-
er whose property was taken for a public
improvement could not have his abutting
property exempt from its due proportion of
an assessment made to cover the expense in-
curred in making such improvement; that
his liability in that regard was not affected
by the fact that he was entitled to receive
[889]oompensation for his property actually 'tak-
en for the improvement without deduction on
account of benefits to his other property.
That the decision covered no other point is
shown by the following extract from the
opinion of the court: 'The mischief which
existed under the old Constitution was, that
the benefits which were common to his neigh-
bors, without charge, were deducted from the
price paid to the owner of land taken. The
evil might well be denominated inequality of
benefits and burdens among adjoining land-
owners. You paid for the owner's land in
privileges, and left him still liable, equally
* with his neighbors whose lands were untak-
en, to any and all local assessments that
might afterwards be imposed. This was un-
equal, and therefore aeemed unjust. Ex-
perience proved, moreover, that it led to
much abuse of the power of condemnation.
A full remedy is to be found for these evils
in the provision in question, without at all
making it to interfere with the power of as-
sessment. Construed thus, it is in perfect
accordance with the leading principle of tax-
ation in the new Constitution — uniformity
and equality of burdens. It simply guar-
antees to the owner of land condemned a full
price. When that is paid, he stands on a
perfect equality with all other owners of ad-
joining lands, equally liable, as he ought to
be, to be taxed upon his other lands with
them. He has the full price of his land in
his pocket, and is an equal participant with
them in benefits to adjoining lands. To
throw the whole burden upon the others, in
such a case, would be to do them the precise
injustice which was done to him under the
old Constitution. To do so, would be to avoid
one evil only to run into another. It would
172 V. 8.
be to avoid the evil of withholding from him
a full and fair price for his lands, only to run
into the equal evil of paying him two prices
for it, the second price being ai the expense
of his neighbors."
If the principles announced by the author*
ities above cited be applied to the present
case, the result must be an affirmance of the
judgment.
We have seen that by the Revised Statutes
of Ohio relating to assessments, that the vil-
lage of Norwood was authorized to place the
cost and expense attending the condemna-
tion of the plaintiff's land for a public street
on the eeneral tax list of the 'corporation, ([200]
2263; but if the village declined to adopt
that course, it was required by section 2264
to assess such cost and expense "on the abut-
ting and such adjacent and contiguous or
other benefited lots and lands in the corpo*
ration, either in proportion to the benefits
which may result from the improvement or
according to the value of the property as-
sessed, or by the front foot of the property
bounding and abutting upon the improve-
ment;" while by section 2271, whenever any
street or avenue was opened, extended,
straightened, or widened, the special assess-
ment for the cost and expense, or any part
thereof, "shall be assessed only on the lots
and lands bounding and abutting on sudi
part or parts of said street or avenue so im-
proved, and shall include of such lots and
lands only to a fair average deptii of lots in
the neighborhood." It thus appears that the
statute authorizes a special assessment upon
the bounding and abutting property by the
front foot for the entire cost and expense of
the improvement, without taking special
benefits into account. And that was ths
method pursued by the village of Norwood.
The corporation manifestly proceeded upon
the theory that the abutting property could
be made to bear the whole cost of the im-
provement, whether such property was ben-
efited or not to the extent of such cost.
It is said that a court of equity ought not
to interpose to prevent the enforcement of the
assessment in question, because the plaintiff
did not show nor offer to show by proof that
the amount assessed upon her property was
in excess of the special benefits accruing to
it by reason of the opening of the street. This
suggestion implies that if the proof had
showed an excess of cost incurred in opening
the street over the special benefits accruing
to the abuttinff property, a decree might
properly have Seen made enjoining the as-
sessment to the extent simply that such cost
exceeded the benefits. We do not concur in
this view. As the pleadings show, the vil-
lage proceeded upon the theory, justified by
the words of the statute, that the entire cost
incurred in opening the street, including the i
value of the property appropriated, could,
when the assessment was oy the front foot,
be put upon the ^abutting property, irrespec-[20I)
tive of special benefit. The assessment was
by the front foot and for a specific sum rep-
resenting such cost, and that sum could not
have been reduced under the ordinance of the
village even if proof had been made that the
costs and expenses assessed upon the abutting
281-293
Supreme Coubt of thb Unitbd States.
Oct. Tesx.
property exceeded the special benefits. The
assessment was in itseli an illegal one be-
cause it rested upon a basis that excluded
any consideration of benefits. A decree en-
joining the whole assessment was therefore
the omf appropriate one.
Nor is the present case controlled by the
general principle announced in many cases
that a court of equity will not relieve a party
against an assessment for taxation unless he
tenders or offers to pay what he admits or
what is seen to be due. That rule is thus
stated in German National Bank v, Kimball,
103U.S.733[26:469]: <*Wehaye announced
more than once that it is the established rule
of this court that no one can be permitted to
ffo into a court of equity to enjoin the col-
lection of a tax, until he has shown him-
self entitled to the aid of the court by paying
•o much of the tax assessed against him as it
can be plainly seen he ought to pay; that he
shall not be permitted, because his tax is in
excess of what is just and lawful, to screen
himself from payinjg^ any tax at all until the
precise amount which he ought to pay is as-
certained by a court of equity; and that the
owner of property liable to taxation is bound
to contribute his lawful share to the current
expenses of government, and cannot throw
that share on others while he engages in an
expensive and protracted litigation to ascer-
tain that the amount which he is assessed is
or is not a few dollars more than it ought
to be. But that before he asks this exact and
scrupulous justice, he must first do eauity
by paying so much as it is clear he ought to
pay, and contest and delay only the remain-
der. State Railroad Tax Cases, 92 U. S. 675
[23:669]. The same principle was an-
nounced in Northern Pacific Railroad Co. v.
Clark, 153 U. S. 252, 272 [38: 706, 714, 4 In-
ters. Com. Rep. 641].
In Cummings v. Merchants* National
Bank, 101 U. S. 163, 157 [26:903, 906],
which was the case of an injunction against
the enforcement in Ohio of an illegal assess-
ment upon the shares of stock of a national
bank, this court, after observing that the
[292]bank held a trust 'relation that authorized a
court of equity to see that it was protected
in the exercise of the duties appertaining to
it, said: "But the statute of the state ex-
pressly declares that suits may be brought to
enjoin the illegal levy of taxes and assess-
ments, or the collection of them. { 5848 of
the Revised Statutes of Ohio 1880; vol. 53
Laws of Ohio, 178, §§ 1, 2. And though we
have repeatedly decided in this court that
the statute of a state cannot control the
mode of procedure in equity cases in Fed-
eral courts, nor deprive them of their sepa-
rate equity jurisdiction, we have also held
that, where a statute of a state created a
new right or provided a new remedy, the Fed-
■eral courts will enforce that right either on
the common-law or equity side of its docket,
as the nature of the new right or new remedy
requires. Van Norden v. Morton, 99 U. 8.
378 [25: 453]. Here there can be no doubt
ihat the remedy by injunction against an il-
legal tax, expressly granted by the statute,
is to be enforced, and can only be appropri-
ately enforced, on the equity side of the
452
court." Again: ''Independently of ihUa
statute, however, we are of opinkm that
when a rule or system of valuation is adopted
by those whose duty it is to make the assess-
ment, which is designed to operate unequally
and to violate a fundamental principle of the
Constitution, and when this rule is applied,
not solely to one individual, but to a large
class of individuals or corporations, that
equity may properly interfere to restrain the
operation of this unconstitutional exercise of
power." These observations are pertinent to
the question of the power and duty of a court
of equity to interfere for the plaintifi^s relief.
The present case is one of illegal assessment
under a rule or system which, as we have
stated, violated the Constitution, in that the
entire cost of the street improvement was im-
posed upon the abutting property, by the
front foot, without any reference to special
benefits.
Mr. High, in his Treatise on Injunctions,
says that no principle is more firmly estab-
lished than tnat requiring a taxpayer, who
seeks the aid of an injunction against the en-
forcement or collection of a tax, first to pay
or tender the amount which is conceded to be
legally and properly due, or which is ♦plainlylfW)
seen to be due. But he also says: "It is
held, however, that the general rule requiring
payment or tender of the amount actually
due as a condition to equitable relief against
the illegal portion of the tax, has no applica-
tion to a case where the entire tax faus l^
reason of an ille^l assessment. And in soA
case an injunction is proper without pay-
ment or t^der of any portion of the tax,
since it is impossible for the court to deter-
mine what portion is actually due, there be-
ingno valid or legal tax assessed."
The present case is not one in which — as ia
most of the cases brought to enjoin the collec-
tion of taxes or the enforcement of special as-
sessments— it can be plainly or clearly seen,
from the showing made by the pleadings, thai
a particular amount, if no more, is due from
the plaintiff, and which amount should bs
paid or tendered before equity would inter-
fere. It is rather a case in which the entirt
assessment is illegal. In such a case it was
not necessary to tender, as a condition of re-
lief being granted to the plaintiff, any snm ai
representing what she supposed, or miglit
guess, or was willing to concede, was the ex*
cess of cost over any benefits accruing to tht
property. She was entitled, without making
such a tender, to ask a court of equity to en-
join the enforcement of a rule of assessment
that infringed upon her constitutional
rights. In our juogment the circuit court
properly enjoined the enforcement of the a»-
sessment as it was, without going into prooh
as to the excess of the coet of opeoiag tbt
street over special benefits.
It should be observed that the decres di4
not rdieve the abutting property fron liabili-
ty for sutsh amount as could be properly as-
sessed against it. Its legal effect, as we now
adjudge, was only to prevent the (mfmraMit
of the particular assessment in questSon.
It left the village, in its discretion, tt
take such steps as were within ita power
to take, either under existing statntM,
172 V. I.
1888.
Norwood t. Bakbb.
293-296
or under any authority tliat might there-
after be conferred upon it, to .make a
new assessment upon the plaintifT's abut-
ting property for so much of the ex-
pense of opening the street as was found
upon due and proper inquiry to be equal to
[S94}the special benefits accruing to *the property.
By the decree rendered the court avoided the
performance of functions appertaining to an
aasfssing tribunal or body, and left the 8ub>
ject under the control of the local authorities
designated by the state. Such a decree was
more appropriate than one enjoining the as-
sessment to such extent as, in the judgment
of the circuit court, the cost of the improve-
ment exceeded the special benefits. The de-
cree does not prevent the village, if it has or
obtains power to that end, from proceeding
to make an assessment in conformity with
the view indicated in this opinion, namely:
That while abutting property may be special-
ly assessed on account of the expense attend-
ing the opening of a public street in front of
it, such assessment must be measured or
limited by the special benefits accruing to it,
that is, by benefits Uiat are not shared
by the general public; and that taxation of
the abutting property for any substantial
excess of such expense over special benefits
will, to the extent of such excess, be a taking
of private property for public use without
compensation.
It has been suggested that what has been
said by us is not consistent with our decision
in Parsons v. Distriot of Columbia, 170 17.
6. 45, 52, 56 [42: 943, 946, 948]. But this
is an error. That was the case of a special
assessment against land in the District of
Colombia, belonging to the plaintiff Parsons,
as a water-main tax, or assessment for lay-
ing a water main in the street on which the
land abutted. The work was done under the
authority of an act of Congress establishing
a comprehensive system for the Distriot, ana
regulating the supply of water and the erec-
tion and maintenance of reservoirs and water
mains. This court decided that ''it was com-
petent for Congress to create a general sys-
tem to store water and furnish it to the In-
habitants of the District, and to prescribe the
amount of the assessment and the method of
its collection ; and that the plaintiff in error
cannot be heard to complain that he was not
notified of the creation of such a system or
consulted as to the probable cost thereof.
He is presumed to have notice of these gener-
al laws regulating such matters. The power
conferred upon the Commissioners was not to
make assessments upon abutting properties,
[ISSpor to give notice to the proper^ *owners of
such assessments, but to determine the ques-
tion of the propriety and necessity of laying
water mains and pipes, and of erecting fire
plugs and hydrants, and their bona fide exer-
cise of such power cannot be reviewed by the
courts." One of the points in the case was
presented by the cont^tion that "the assess-
ment exceeded the actual cost of the work."
But that objection, the court said, overlooked
"the fact that the laying of this main was
part of the water system, and that the assess-
ment prescribed was not merely to put down
the pipes, hut to raise a fund to keep the sys-
172 U. 8.
tern in efficient repair. The moneys raised
beyond the expense of laying the pipe are
not paid into the general treasury of the
District, but are set aside to maintain and
repair the system; and there is no such dis^
proportion between the amount assessed and
the actual cost cw to show any abuse of leg-
islative power. A similar objection was dis-
posed of by the supreme judicial court of
Massachusetts in the case of Leominster y.
Oonant, 139 Mass. 384. In that case the
validity of an assessment for a sewer was
denied because the amount of the assessment
exceeded the cost of the sewer; but the court
held that the legislation in question had
created a sewer system, and that it was
lawful to make assessments by a uniform
rate which had been determined upon for the
sewerage territory." If the cost of laying
the watermains in question in that case had
exceeded the value of the property specially
assessed, or had been in excess of any bene-
fits received by that property, a different
question would have been presented.
Nor do we think that the present case is
necessarily controlled by the decision In
Spencer v. Merchant, 125 U. S. 345, 351, 357
[31:783, 766, 768]. That case came
here upon writ of error to the highest
court of New York. It related to an as-
sessment, by legislative enactment, upon
certain isolated parcels of land, of a
named aggregate amount which remained
unpaid of the cost of a street im-
provement. In reference to the statute, th«
validity of which was questioned, the court
said: "By the statute of 1881 a sum equal
to BO much of the original assessment as re-
mained unpaid, adding a proportional part
of the expenses of making that assessment,
and interest since, was 'ordered 1^ the 1egis-[206]
lature to be levied and equitably apportioned
by the supervisors of the county upon and
among these lots, after public notice to all
parties interested to appear and be heard up- «
on the question of such apportionment; and
that sum was levied and assessed accord-
ingly upon these lots, one of which was
owned by the plaintiff. The question sub-
mitted to the supreme court of the state was
whether this assessment on the plaintiff's
lot was valid. He contended that the stat-
ute of 1881 was unconstitutional and void,
because it was an attempt by the legislature
to validate a void assessment, without giving
the owners of the lands assessed an oppor-
tunity to be heard upon the whole amount of
the assessment." Again: "The statute of
1881 afforded to the owners notice and hear-
ing upon the question of equitable apportion*
ment among them of the sum directed to be
levied upon all of them, and thus enabled
them to contest the constitutionality of the
statute ; and that was all the notice and hear-
ing to which they were entitled." The point
raised in that case — ^the only point
in judgment — ^was one relating to proper
notice to the owners of the property as-
sessed, in order that they might be heard
upon the question of the equitable apportion*
ment of the sum directed to be levied upon
all of them. This appears from both the opin-
453
2»G-2y9
SUPREMK COUUT OF THE UnITHD StATKS.
Oct. Tsnc,
ion and the dissenting opinion in that case.
We have considered the question presented
for our determination with reference only to
the provisions of the National Constitution.
But we are also of opinion that, under any
view of that question different from the one
taken in this opinion, the requirement of the
Ck>nstitution of Ohio that compensation be
made for private property taken for public
use, and that such compensation must be as-
sessed "without deduction for benefits to any
property of the owner," would be of little
Practical value if, upon the opening of a pub-
c street through private property, the
abutting property of the owner, whose land
was taken for the street, can under legisla-
tive authority be assessed, not only for such
amount as will be equal to the benefits re-
ceived, but for such additional amount as
will meet the excess of expense over benefits.
[S97] *The judgment of the Circuit Court must
he affirmed, upon the ground that the assess-
ment against the plaintiff's abutting proper-
ty was under a rule which exeludea any in-
quiry as to special benefits, and the neces-
sary operation of which was, to the extent
of the excess of the cost of opening the street
in question over any special benefits accruing
to the abutting property therefrom, to take
private property for public use without com-
pensation.
It is so ordered.
Mr. Justice Brewer dissenting:
I dissent from the opinion and judgment
of the court in this case, and for these rea-
sons:
First. The taking of land for a highway
or other public uses is a public improvement,
the cost of which, under the Constitution of
Ohio, may be charged against the property
benefited. Cleveland v. Wick, 18 Ohio St.
804.
Second. Equally true is this under the
Constitution of the United States. Shoemak-
er V. United States, 147 U. S. 282, 302 [37 :
170, 186] ; Bauman v. Rose, 167 U. S. 548
[42:270].
Third. The cost of this improvement was
settled in judicial proceedings to which the
defendant in error was a party, and having
received the amount of the award she is es-
topped to deny that the cost was properly
ascertained.
Fourth. A public improvement having
been made, it is, beyond question, a legisla-
tive function (and a common council duly
authorized, as in this case, has legislative
powers), to determine the area benefited by
such improvements, and the legislative deter-
mination is conclusive. Spencer v. Merchant,
100 N. T. 585, in which the court said:
'The act of 1881 determines absolutely and
eonclusively the amount of the tax to be
raised, and the property to be assessed and
upon which it is to oe apportioned. Each of
these things was within tne power of^ the 1^-
islature, whose action cannot be reviewed m
the courts upon the ground that it acted un-
justly or without appropriate and adequate
reasons. ... By the act of 1881 the leg-
islature imposes the unpaid portion of the
eost and expense, with the interest thereon,
454
upon that portion of the property benefited
which has thus far borne *none of thebardeD.[t96]
In so doing, it necessarily determines two
things, vis., the amount to be realized, and
the propertv specially benefited by the ex-
penditure of that amount. The lands might
have been benefited by the improvement, and
so the legislative determination that they
were, and to what amount or proportion of
the cost, even if it may have been mistakenly
unjust, is not open to our review. The ques-
tion of special benefit and the property to
which it extends is of necessity a question of
fact, and when the legislature determines it
in a case within its general power, its deci-
sion must of course m final."
Same case 125 U. S. 345, 355 [31 : 763.
767], in which the judgment of the court of
appeals of the state of New York was af-
firmed, and in which this court said:
"The legislature, in the exercise of ita
power of taxation, has the right to direct the
whole or a part of the expense of a public im-
provement, such as the laying out. grading,
or repairing of a street, to be assessed upon
the owners of lands benefited thereby; and
the determination of the territorial district
which should be taxed for a local improvement
is within the province of legislative di«4cre-
tion. Willard v. Preshury, 14 Wall. 676 [20:
719] ; Davidson v. New Orleans, 96 U. S. 97
[24: 616] ; Mohile County v. Kimhall 102 U.
S. 691, 703, 704 [26:238, 242]; Hagar v.
Reclamation District No. 108, 111 U. S. 701
[28:569].
Williams V. Eggleston, 170 U. S. 304, 311
[42: 1047, 1050], in which this court de-
clared :
"Neither can it be doubted that, if the stata
Constitution does not prohibit, the legisla-
ture, speaking generally, may create a new
taxing district, determine what territory
shallbelong to such district and what prop-
erty shall t>e considered as benefited by a
proposed improvement."
Parsons v. District of Columbia, 170 U. 8.
45 [42 : 943] , in which this court sustaiiwd
an act of Congress in respect to the District
of Columbia, not only determining the ares
benefited by a public improvement, to wit,
the ground fronting on tne street in whick
the improvement \?a8 made, but also asseaut-
ing the cost of such improvement at a sped-
ficS rate, to wit, $1.25 per front foot on voA
area.
In this case we quoted approvingly from
Dillon's Municipal 'Corporations, 4th edi [Iti]
tion, volume 2, section 752, in reference to
this matter of assessment:
"Whether the expense of making such im-
provements shall be paid out of the funeral
treasury, or be assessed upon the abutting
property or other property specially benefit-
ed, and, if in the latter moae. whether the as-
sessment shall be upon all property found to
be benefited, or alone upon the abutten^ «e*
cordinff to frontage or according to the area
of their lots, is according to the present
weight of authority considered to be a ques-
tion of legislative expediency."
In the case at bar the question of appor>
tionment is not important because the party
charged owned all of the land within the area
17t XT. a.
ims.
NoBWOOD T. Bakes.
2»0-80a
described, all of the land abutting upon tbe
improvement. The rule would be the same
if one hundred different lots belonging to as
many different parties faced on the new
street
The legislative act charging the entire cost
of an improvement upon certain described
property is a legislative determination that
the property described constitutes the area
benented^nd also that it is benefited to the ex-
tent of such cost. It is unnecessary to inquire
how far courts mi^ht be justified in interfer-
ing in a case in which it appeared that the leg-
islature had attempted to cast the burden of
a public improvement on property remote
therefrom and obviously in no way benefited
thereby, for here the property charged with
the burden of the improvement is that abut-
ting upon such improvement, the property
prima facie benefited thereby, and the au-
thorities which I have cited declare that it is
within the legislative power to determine the
area of the property benefited and the extent
to which it is benefited. It seems to me
strange to suggest that an act of the legisla-
ture or an ordinance of a city casting, for in-
stance, the cost of a sewer, or sidewalk in a
street, upon all the abutting propert^r, is in-
valid unless it provides for a judicial inquiry
whether such abutting property is in fact
benefited, and to the fml cost of the improve-
ment, or whether other property mieht not
also be to some dcCTee benefited, and there-
fore chargeable with part of the cost.
[300] *Again, it is a maxim in equity that he who
i^eeks equity must do equity, and as applied
to proceedings to restrain the collection of
taxes, that the party invoking the aid of
a court of equity must allege and prove pay-
ment, or an offer to pay such portion of the
taxes or assessment as is properly chargeable
upon the property. This proposition has
been iterated and reiterated in many cases.
In State Railroad Taw Cases, 92 U. S. 676,
617 [23: 860, 676], it was laid down "as a
rule to govern the courts of the United States
in their action in such cases." Further, the
mere fact that tax proceedings are illegal
has never been held sufficient to justify re-
lief in equity. These propositions have been
uniformly and consistently followed. See,
among late cases, Northern Paoifio Railroad
Co. V. Clarky 153 U. S. 252, 272 [38:706,
714, 4 Inters. Com. Rep. 641]. There is
nothing in Cummings v. Merchants' Nation-
lUBaiOc, 101 U. S. 153 [25: 903], in conflict
with the foregoing propositions. In that
case it appeared uiat the local assessors of
Lucas county, in which the bank was situ-
sted, agreed upon a rule of assessment
by which money or Invested capital was as-
sessed at six tenths of its value, while the
shares of national banks were assessed at
their full cash value. It was held that an
unequal rule of assessment having been
^opted by the assessors, and that rule "ap-
{>Hed, not solely to one individual, but to a
ar^e class of individuals or corporations,**
equity might properly interfere. But in
that case the bank had paid to the county
treasurer the tax which it ouffht to have paid
u shown by the closing words of the opinion
of the court: The complainant having
172 V. 8.
paid to defendant, or into the circuit court for
his use, the tax which was its true share of
the public burden, the decree of the
circuit court enjoining the collection
of the remainder is affirmed." If that
creates an exception to the general equity
rules in respect to tax proceedings, I am un-
able to perceive it.
Here the plaintiff does not allege that her
property was not benefited by the improve-
ment and to the amount of the full cost there-
of; does not allege any payment or offer to
pay the amount properly to be charged up-
on it for the benefits received, or even ex-
press a willingness to pay what the
courts shall determine ought to be paid.
On the contrary, *so far as the record[801]
discloses, either by the bill or her
testimony, her property may have been en-
hanced in value ten times the cost of the
condemnation. Neither is it charged that
any other property was benefited in the
slightest degree. It is well to quote all that
is said in the bill in this respect:
"Your complainant complains of the de-
fendant corporation that the said corpora-
tion, through its officers, its council, clerk
and mayor, undertook and has undertaken
to assess back upon this plaintiff's 300 feet
upon either side of the said strip so taken,
not only the said two thousand dollars, the
amount adjudged to this plaintiff as the
value of her property so taken, but also
counsel fees, expenses of the suit, expenses
and fees of expert witnesses, and other costs,
fees, and expenses to this complainant un-
known, and has proceeded to assess for open-
ing and extending the said Ivenhoe street
or avenue for the 300 feet upon each side
upon her premises, making 600 feet in all of
frontage upon the said strip so condemned
by the defendant corporation, the sum of
$2,218.58, payable in instalments, with In-
terest at SIX per cent, the first instalment
being $354.97 and the last or tenth instal- *
ment $235.17, lessening the same from year .
to year in an amount of about $13 per an-
num.
''That is to say, the said defendant corpo-
ration has undertaken to take 300 by 50 feet
of this complainant's property, and, fixing
the valuation upon it by proceedings at law
now undertakes to assess upon the com-
plainant's adjacent property, 300 feet upon
each side, the said $2,000, the value of the
same as adjudged by the court in the said
condemnation proceedings, with all of the
costs incidental thereto, including counsel
and witness fees, so that in effect the prop-
erty of this complainant has been taken and
is sought to be taken by the defendant corpo-
ration for the uses of itself and the general
public without any compensation in fact to
the complainant therefor, but at an actual
expense and outlay in addition, — that is to
say, the corporation purposes by assessment
to* make this complainant not only pay for
her own property taken for the benefit of the
defendant, but also to pay the costs of so
taking it without compensation.
^"Wherefore she invokes her remedy g!ven[8Mj
455
80^-804
SupBEMB Court of the Ukiteo States.
Oct
her by statute by iniunction. She avers that
tiie said seizure and taking of her said prop-
erty and the pretended condemnation of tbe
same and assessment of the same with added
costs back upon her own property for
the benefit of the defendant corporation
and the general public is a seizure
of her property without compensation;
not only that, but at costs to her be-
sides, in that the defendants have under-
taken to make her pay for the taking of her
property without a compensation in addition
to the value of the property, and that she is
without remedy and powerless unless she
may have and invoke the e<^uitable interfer-
ence, as the statute authorizes her, of this
honorable court."
The testimony is equally silent as to the
matter of damages and benefits. There is
not only no averment, but not even a sug-
gestion, that any other property than that
abutting on the proposed improvement, and
belonging to plaintiff, is in tlie slightest de-
gree l^nefited thereby. Nor is there an aver-
ment of a suggestion that her property, thus
improved by ute opening of a street, has not
been raised in ^ue far above the cost of im-
provement. So that a legislative act charging
the cost of an improvement in laying out a
street (and tiiesame rule obtains if it was
the grading, macadamizing, or paving the
street) , upon the property abutting thereon,
is adjudged, not only not conclusive that such
abutting property is benefited to the full cost
thereof, but further, that it is not even
prima facie evidence thereof, and that before
such an assessment can be sustained it must
be shown, not simply that the legislative
body has fixed the area of the taxing dis-
trict, but also, that by suitable judicial in-
quiry, it has been estii^lished that such tax-
ing district is benefited to the full amount
of the cost of the improvement, and also that
no other property is likewise benefited. The
suggestion tnat such an assessment be de-
. dared void because the Fule of assessm^t is
erroneous implies that it is prima facie er-
roneous to cast upon property abutting upon
an improvement the cost thereof; that a leg-
islative act casting upon such abutting prop-
erty the full cost of an improvement is prima
{MS] facie void; *that, being prima facie Toid, the
owner of any property so abutting on the
improvement may obtain a decree of a court
of equity canceling in ioio the assessment
without denying that his property is bene-
fited by the improvement, or paying, or offer-
ing to pay, or expressing a willingness to
pay, any sum which may be a legitimate
charge upon the property for value of the
benefit to it by such improvement.
In this case no tender was made of any
sum, no offer to pay the amount properly
chargeable for benefits, there was no allega-
tion or testimony that the legislative judg-
ment as to the area benefited or the
amount of the benefit was incorrect, or that
other property was also benefited, and the
opinion goes to the extent of holding that the
l^islative determination is not only not con-
clusive, but also is not even prima facie suf-
ficient, and that in all cases there must be
a Judicial inquiry as to the area in fact
456
benefited. We have often held the contrary,
and I think should adhere to those oft-re-
peated rulings.
Mr. Justice Crray and Mr. Justice SUraa
also dissent.
CHARLES WINSTON
17.
UNITED SPATES.
WILLIAM M. STRATHER
V.
UNITED STATES.
EDWARD SMITH
v.
UNITED STATES.
(See 8. C. Reporter's ed. 30S-S14.)
Verdict in murder cote.
A verdict of guilty **withoat capital
ment" may be rendered in a marder cue aa-
der the act of Congress of January 15. 1897.
chap. 29, even if there are no mltlgitlag ev
palliating drcnmstancea.
[Nos. 431, 432, 433.]
Argued November 28, 1898. Decided Jmmk
ary S, 1899.
WRITS OP CERTIORARI to the Court of
Appeals of the District of Columbia to
review the judgment of the Court of Appeals
of the District of Columbia affirming the
judgment of the Supreme Court of that Dis-
trict in each of the above cases, adjudging
Charles Winston, William M. Strather, and
Edward Smith severally to be guilty of mar*
der in the first degree and sentencing each of
them to death. Revereed, and the ease re-
manded to the Court of Appeals of said Dis-
trict, with directions to reverse the jodgmeat
of the Supreme Court of said Dutrict and to
order a new trial.
Same case below, 1 8 App. D.C.I 32, 165, 1 57.
Statement by Mr. Justice Orayt
*These were three cases of indietanents, rt^ JM)
turned and tried in the supreme court of the
District of Columbia, for murders commiv
ted since the passage of the act of CongrtM
of January 15, 1807, chap. 29, by tbe irtt
section of which, ''in all cases where the Ac-
cused is found guilty of the crime of morte
or of rape under sections fifty-three hundrei
and thirty-nine or fifty- three hundred aa<
forty-five. Revised Statutes, the jury nsj
qualify their verdict by adding thereto SritV
out capitid punishment;' and whenever tke
jury shall return a verdict qualified as afcfe*
said the person convicted shall be sentenced
to imprisonment at hard labor for life.** 9
Stat, at L. 487.
Winston was Indicted for the murder d
his wife by shooting her with a pistol on !)»•
cember 13. 1897. At the trial, the goterw
ment introduced testimony that while tiM
17t V. t.
Winston v. IJnitbd Btatbs.
804-807
defendant and his wife were together in their
bedroom about noon, with the door fastened,
a pistol shot was heard, followed by a loud
cry from her, and by two or three other
pistol shots; that, on breaking open the
door, the wife was found lying on the bed,
killed by a pistol ball in the brain, and the
defendant lying near her, unconscious, badly
wounded by a pistol ball in the side of the
head, and with a pistol near his hand; that
earlier in the day he had taken a pistol from
a place where he had left it; that lie had pre-
riously threatened to kill her ; and that he
afterwards confessed that he had killed her,
and said that he »hot her because he was
jealous of her and another man, and wanted
to shoot both her and her lover, and taat he
afterwards shot himself. The defendant, be-
ing called as a witness in his own behalf,
testified that he and his wife lived happily
together, except that she was jealous of him ;
that be did not shoot her, and never said
that he had shot her ; that she shot him, and
1m hnmediately became unconscious, and so
remained for a week after.
The judge instructed the jury that if they
believed from the evidence that the woman
(t061took her own life, or that the 'defendant did
not fire the fatal shot, their verdict must be
not guilty; but that if they were satisfied be-
yond a reasonable doubt that she met her
death from a pistol ball fired from a pistol
held in the hand of the defendant, and that
her death was caused by him, their verdict
should be guilty as indicted, "for there would
be a presumption of malice arising from the
fact that her death was accomplished by the
firing of a pistol ball by the defendant from
a pistol held in his hand; and as there is
no evidence that has been adduced which
tends to show any palliating or mitigating
circumstances, there could be but one rea-
sonable inference from the fact of the shoot-
inii^, and that would be that the act was com-
mitted with malice aforethought.''
The judge further instructed the jury as
follows: "You have been told, and it is the
law since the act of Congress, passed in Jan-
narv, 1897, that a jury is authorized, when
they shall have reached the conclusion that
a defendant on trial is guilty of murder, to
qualify their verdict by adding thereto the
words ^without capital punishment.'
'^rnisel has endeavored to impress upon
t*!-! jury the fact, not only that this right
exists, but that ft is the duty of the jury to
so qualify their verdict in every given case;
that because they have the opportunity of
extending mercy, therefore the duty follows
the right; that because it Is your privilege
or opportunity to oualify the verdict by add-
ing^ the words Svitnout capital punishment,'
it is your duty so to do. But the law was
not so intended. It was intended to serve
some useful purpose. Tliere are many shades
of rircumstances that make up the crime of
murder In different cases. In some In-
stances, the circumstances might be such aft
to bring the crime within the definition of
murder, and yet those circumstances might
not indicate that degree of wantonness, wil-
fulness, and heinousness that^ the clrcum-
^nces In other cases would indicate. I
172 U. 8.
think that it was intended by Congress that
in cases where the crime is clearly murder
within the definition of the crime of murder,
and yet there are circumstances which tend
to mitigate the offense, — ^palliatinp; circum-
stances that tend to show that the crime is
not heinous in its 'character, — ^the jury may[806j|
add the words 'without capital punishment,'
and the law then makes the penalty impria-
onment for life.
"That qualification cannot be added unless
it be the unanimous conclusion of the twelve
men constituting the jury. I think that it
should not be added unless it be in cases that
commend themselves to the good judgment
of the jury, cases that have palliating cir-
cumstances which would seem to justify and
require it.
"The penalty for the crime of murder has
not been abrogated by Congress. The law-
making power has seen fit to allow that pen-
alty to remain; and it is only in those cases
where the circumstances indicate to the jury
that propriety, and the necessity, perhaps, or
the duty of making such qualification, that
the jury should add the qualifying words
'without capital punishment.' In all other
cases, the law speaks. The jury need not
qualify the penalty. It is not their duty to
qualify it. It is their right and privilege in
a proper ease to qualify it."
"If the defendant did not commit this
crime, he should be returned by your verdict
not guilty. If he did commit the crime, then
he Is responsible for these conditions, not
you. Your simple duty is to declare whether
he is guilty or not guilty. If guilty, then
your verdict should oe either ^ilty as in-
dicted, or guilty with the qualification."
Strather was indicted for the murder with
a hatchet on October 15, 1897, ot a woman
with whom he lived as his wife, but who was
the wife of another man. At the trial, tha
government introduced evidence tending to
prove these facts, and that for several nights
oefore the homicide she failed to join the de-
fendant, and he threatened to kill her. Ths
testimony of the defendant and of other wit-
nesses called by him tended to prove the de-
fendant's previous reputation as a peaceful
and law-abiding citizen, and the deceased's
previous reputation as a Quarrelsome and
violent woman ; that she had on previous oc-
casions assaulted him, on one occasion throw-
ing at him a beer mug, and on another occa-
sion cutting him with a 'penknife; that Bhe[807]
had previously threatenea his life, and he
knew of the threat; that immediately befors
the homicide there had been a quarrel bs*
tween them; and that upon his arrest, im*
mediately after the homicide, there was m
bleeding wound upon his face. The defend*
ant, in his testimony, admitted that he in-
flicted upon the woman the wounds which
caused her death: but denied that he had
ever threatened her life; and aflSrmed that
he inflicted those wounds while under fear of
his life, and during the heat and excitement
of the quarrel, and while suffering pain from
a blow by her on his left jaw, where there
was an ulcerated sore at the time he received
the blow.
At the close of the evidence, the defendant
457
^7-309
Supreme Court of toe United Statra.
Oct. Tnn,
requested the judge to give certain instruc-
tions to the jury, including this one: **In
case the jury find the prisoner guilty of mur-
der, they are instructed that they may qual-
ify their verdict by the words 'without capi-
tal punishment/ no matter what the evidence
may be." The judge declined to give that
instruction, and, after defining murder and
manslaughter, and the right of self-defense,
instructed the jury aa fmlows:
''If you should reach the conclusion that
Tour verdict should be 'guilty as indicted,' it
is your right, under a recent act of Congress,
passed in January, 1897, to add to this ver-
dict 'without capital punishment.' The jury
have this power in any given case. The court
cannot control your act at all. The court can
only advise ^ou as to the law. The
responsibility is entirely with you, and you
can render such verdict as you please. I
mean that you have the power to do it. Tou
«an render a verdict of not guilty in a case
where the evidence clearly shows guilt. Of
course such action on the part of the jury
would be a direct violation of their oaths.
If the jury believe a man was guilty, and,
simply out of pity or sympathy or mercy.
Tendered a verdict of not guilty, they would
Tiolate their oaths.
"I have no doubt that this act of Congress
was intended to serve some useful purpose.
The penalty for murder has not been dis-
turbed by this act of Congress; it is fixed
by law; the jury neither make nor unmake
(808]it. Doubtless the intention *of the l^sla^
ture was this: that if, in a case in which the
jury reach the conclusion that the party on
trial is guilty of murder, circumstances are
shown by the evidence that are of a palliat-
ing nature, they may give the defendant the
benefit of those palliating circumstances, and
say in their verdict 'without capital punish-
ment.' If, however, the jury believe that
there are no palliating circumstances, it is
their duty not to add anything, but to leave
the ^nalty as it stands. It may be that a
provision of this kind in the law was in-
tended to apply to a case somewhat like that
suggested by the district attorney. Suppose
a man knowing that his wife had been in
improper relations with another man, and
roused to anger by such knowledge, but post-
poning from time to time, while he meets
this man, the execution of his vengeance upon
, him, he finally concludes to and does kill
him, that would be murder, a clear case of
murder under the law; but those circum-
■tances might be such as would convince the
jury that the extreme penalty of the law
ought not to be inflicted. There may be
other cases. I simply give that as an illus-
tration. But the object of this penalty,
gentleman of the jury, is to protect society ;
and the jury should not interfere with it un-
der any circumstances, unless the circum-
stances* are such as to satisfy them that this
provision should be added to the verdict.
"If you reach the conclusion of guilt, 'guil-
ty as indicted,' it is your duty to return that
irerdict; and. unless you unanimously agree
that the verdict should be qualified as the
statute provides you may qualify it, there can
458
be no qualification. It must b^ the uniai-
mous conclusion of the ^ury. The questioa
for you to ask yourself is this: Are the «r-
cumstances in this case such, if you reach tht
conclusion that the defendant is guilty u
indicted, as to require you, upon your oathi,
to interfere with the penalty fixed by law!"
. Smith was indicted for the murdier witk
a hatchet on November 15, 1897, of the wife
of another man. At the trial, the goren-
ment introduced circumstantial evideoet
tending to support the indictment ; and also
evidence that the defendant hired a room ti
the dwelling house of the husband and wife:
*that some time before the homicide, the twt)[IOI|
men had a quarrel about her, and both were
arrested, convicted, and imprisoned oa
charges of assault; that the defendant at obs
time threatened to kill her if she ever re-
sumed living with her husband ; and that the
defendant was quarreling with her just h^
fore her death.
The judge instructed the jury as followi:
"Under a recent statute the jury are authm*-
ized, in returning a verdict of guilty of nuir^
der, if the evidence justifies Uiem on their
consciences in so doing, to qualify the verdiet
by the addition of the words 'without capi-
tal punishment.'
"The law infiicting the penalty of deatil
for murder has not been repealed. That It
the penalty which the law fixes." "The leg-
islature probably intended that in csms
where there were some mitigating or pal-
liating circumstances, where it was apparent
from the evidence that the crime was not
the most heinous crime of murder, or wbert
there was doubt whether the drcumstanees
indicated premeditation, perhaps, that the
jury might oualify their verdict by adding
the words 'without capital puni^hmfst?
But it WAS evidently contemplated by Coa-
gress that there would be cases in which iv-
ries would not be justified in so qualifring
their verdicts, and therefore the law remaiBS,
and unless the verdict is so Qualified the pes-
alty of the law is unchangea."
"If ^ou find that the defendant it guHty,
you will vindicate the law and uphold it br
returning a verdict of 'guilty as indicted.'
Whether you qualify it or not is a matter
for YOU to determine. If you conclude to
<^ualify it, it must be by the ananimoQa deci-
sion of the twelve jurors."
In each case, the defendant excepted to tht
instructions of the court concerning the act
of Congress of January 15, 1897, and. after
verdict of "guilty as indicted," and Moteses
of death, appealed to the court of appeals
of the District of Columbia, which afflrmed
the judgment. Justice Shepard dissenting.
Writs of certiorari wore thereupon grmoted
by this court under the act of CongreM ol
March S. 1897. chap. 390. 29 8Ut st L.
692. 171 U. a 090.
Me8sr9. 0«orfre Kaarmay and Ch^Htt 9.
Turner for Charles Winston.
Me88r$. 8am«el D. Trmitt and frscy L
Jeffords for William M. Strather.
Mr, F. 8. Ker 8»itli for Edward SmHk
Messrs. Henry E. Dawla, Attomev of the
lit U. 1^
1898.
WnraroN y. Unttbd States.
810-813
United States in and for the District of Co-
lumbifti and James E, Boyd, Assistant At-
torney General, for the United States.
110] *Mr. Justice Gray, after stating the cases,
delivered the opinion of the court :
By section 5330 of the Revised Statutes,
re-enacting earlier acts of Congress, "every
person who commits murder" "within any
fort, arsenAl, dockyard, magazine, or in any
other place or district of country under the
exclusive jurisdiction of the United States/'
"shall suffer death."
The act of January 15, 1897, chap. 29, en-
titled ''An Act to Keduce the Cases in Which
the Penalty of Death May be Inflicted,"
Provides, in section 1, that in all cases in
which the accused is found guilty of the
crime of murder under section 5330 of the
Revised Statutes "the jury may qualify their
verdict by adding thereto 'without capital
punishment;' ana whenever the jury shall
retam a verdict qualified as aforesaid the
person convicted snail be eelitenced to im-
prisonment At hard labor for life." 29 Stat,
at L. 487.
The question presented and argued in each
of the three cases now before the court is of
the construction and effect of this aot of Con-
gress.
The hardship of punishing with death
every crime coming within the definition of
murder at common law, and the reluctance of
jorors to concur in a capital conviction, have
induced American legislatures, in modem
times, to allow some cases of murder to be
Sunished by imprisonment, instead of by
eath. That end has been generally attained
in one of two ways :
First In some states and territories, stat-
utes have been passed establishing degrees
'lljof the crime of murder, requiring *the de-
gree of murder to be found by the jury,
and providing that tKe courts shall pass sen-
tence of death in those cases only m which
the junr return a verdict of guilty of mur-
der in the first degree, and sentence of impris-
onment when the verdict is guilty of murder
in the lesser degree. See Hopi v. Utah, 104
U. 8. 631 [26: 873], and 110 U. S. 574 [28:
262] ; Davis v. Utah, 161 U. 6. 262, 267-260
[38: 153, 156].
For instance, the statutes of the territory
of Utah contained the following provisions :
^very murder perpetrated by poison, l^ng
in wait, or any other kind of wuful, deliber-
ate, malicious, and premeditated killing; or
committed in the perpetration of, or attempt
to perpetrate, any arson, rape, burglary or
robbery; or perpetrated from a premeditated
design unlawfully and maliciously to effect
the death of any other human being, other
than him who is killed; or perpetrated by
Any act greatly dangerous to the lives of
others, and evincing a depraved mind regard-
less of human life, is murder in the first de-
cree; and any other homicide, committed un-
der such circumstances as would have consti-
tuted murder at common law, is murder in the
•econd degree." *^very person guilty of mur-
der in the first degree shall suffer death, or,
npon the recommendation of the jury, ma^ be
imprisoned at hard labor in the penitentiary
172 U. 8.
for life, at the discretion of the court; and
every person guilty of murder in the second
degree shall be imprisoned at hard labor in
the penitentiary for not less than five nor
more than fifteen years." Compiled Laws of
UUh of 1876, 99 1010, 1020, pp. 585, 586.
In the leading case of Hopt v. Utah this
court held that evidence that the accused was
in a state of voluntary intoxication at the
time of the killing (which would not hav«
been competent in defense of an indictment
for murder at common law) was competent
for the consideration of the jury upon the
question whether he was in such a condition
as to be capable of deliberate premeditation,
constituting murder in the fii^t degree under
the sUtute. 104 U. S. fiSl [26: 873]. Upon
a second trial of the same case, the territorial
court, in charging the jury, having used this
language : 'That an atrocious and dastardly
murder has been committed bv some person
is 'apparent, but in your deliberations you[31S]
should be careful not to be influenced by any
feeling," — the conviction was again reversed
by this court, saying that this observation
was naturally regarded by the jury as an
instruction that tne offense, by whomsoever
committed, was murder in the first degree;
whereas it was for the jury, having been in-
formed as to what was murder, by the laws
of Utah, to sa^ whether the facts mi^de a
case of murder in the first degree or murder
in the second degree. 110 V. S. 582 [26:
266]. And in Calton v. Utah, 130 U. S. 88
[32: 870], a sentence of death upon a con-
viction of murder in the first degree was re-
versed, because the judge had not called the
attention of the jury to their right, under the
statute, to recommend imprisonment for life
at hard labor in the penitentiary in place of
the punishment of death ; and without a rec-
ommendation of the jury to that effect tha
court could impose no other punishment than
death. While those decisions have no direct
bearing upon the question now in judgment,
they are important as illustrating the stead-
fastness witn which the full and ne& exercise
by the jury of powers newly conferred upon
them by statute in this matter has been up-
held and guarded by this court as against the
possible effect of an^ restriction or omission
in the rulings and instructions of the judge
presiding at the trial.
Second. The difficulty of laying down exact
and satisfactory definitions of degrees in the
crime of murder, applicable to all possible
circumstances, has led other legislatures to
prefer the more simple and flexible rule of
conferring upon the jury, in every case of
murder, the right of deciding whether It shall
be punished by death or by imprisonment.
This method has been followed by Congress
in the -act of 1807.
The act of Congress confers this right upon
the jury in broad and unlimited terms, by en-
acting that ''in all cases in which the accused
is found guilty of the crime of murder," the
jury may Qualify their verdict by adding
thereto 'witnout capital punishment;'" ana
that, "whenever the jury shall return a ver*
diet qualified as aforesaid," the sentence shall
be to imprisonment at hard labor for life.
The right to qualify a verdiot of guilty, bv
459
Si:-815
SUPBBMB COUBT OF THS UNI^ZD StATES.
Oct. TiMi,
[818]addiiiff the wordft ^''without capital punish-
ment," it thus oonferred upon the jury in all
eases of murder. The act does not itself pre-
ieribe, nor authorize the court to prescribe,
any rule definins or circumscribing the exer-
cise of this right; but commits the whole
matter of its exercise to the judgment and
the consciences of the jury. The authority
of the jury to decide that the accused shall
not be punished capitally is not limited to
cases in which the court, or the jury, is of
opinion that there are palliating or mitigat-
ing circumstances. But it extends to ever^
case in which, u^n a view of the whole evi-
dence, the jury is of opinion that it would
not be just or wise to impose capital punish-
ment. How far considerations of age, sex,
ignorance, illness, or intoxication, of human
passion or weakness, of sympathy or clemen-
cy, or the irrevocableness of an executed sen-
tence of death, or an apprehension tiiat ex-
planatory facts may exist which have not
been brought to light, or any other considera-
tion whatever, should be allowed weight in
deciding the question whether the accused
should or should not be capitally punished,
is committed by the act of Ck>ngress to the
sound discretion of the jury, and of the jury
alone.
The decisions in the highest courts of the
8ever|il states under similar statutes are not
entirely harmonious, but the general current
of opinion appears to be in accord with our
conclusion. State v. Shields, 11 La. Ann.
395; State v. Melvin, 11 La. Ann. 535; Hill
y. State, 72 Ga. 131; Cyrus v. State [102
Gki. 616] 29 8. E. 917; Walton v. State,
57 Miss. 533; Spain v. State, 59 Miss. 19;
People V. Batoden, 90 Cal. 195; People y.
Kamaunu, 110 Cal. 609.
The instructions of the judge tp the jury,
in each of the three cases now before this
court, clearly eave the jurjr to understand
that the act of Congress did not intend or
authorize the jury to qualify their verdict
by the addition of the words "without capi-
tal punishment," unless mitigating orpailiat-
ingcircumstances were proved.
This court is of opinion that these instruc-
tions were erroneous in matter of law, as un-
dertaking to control the discretionary power
vested by Congress in the jury, and as attrib-
uting to Congress an intention unwarranted
[•14]either by the express *words or by the appar-
ent purpose of the statute; and therefore
in each of these cases -
Judgment must he reversed, and the case
remanded to the Court of Appeals with direc-
tions to reverse the judgment of the Supreme
Court of the District of Columbia, and to or-
der a new trial.
Mr. Justice Brew«r and Mr. Justice Mo-
Kenma dissented* ,
460
BELLINGHAM BAY ft BRITISH COLUX.
BIA RAILROAD COMPANY, Pig. m
Err,
V,
CITY OP NEW WHATCOM.
(See 8. a Reporter's ed. 814-«2a)
Federal question — statutory
process of law.
1. An allegation In an answer, that tke aotiet
of a reassessment was Insufficient, and tkat
by reason thereof defendant's property wis
sooght to be taken without doe proccH of
law and In conflict with the Federal Coosdta-
tion, raises a Federal question.
2. Only In a clear case will a notice aothortoi
by the leglslatore be set aside as wboUj ta-
effectoal on account of the ahortneas of tha
time.
8. A notice of reassessment for a
provement, allowing ten days only for «^
jections, is not insufficient for doe proecsi ef
law because the time is im> short,— espediUy
in case of a property owner doing boslnesi la
the city» and when there is nothing to sar
gest any injustice.
[No. 96.]
Argued December 16, JS98, Decided Jmmt
ary 5, 1899.
rr ERROR to the Supreme Court of tht
State of Washington to review a decree of
that court afiBrming the decree of the Sope
rior court of Whatcom County in favor of us
City of New Whatcom against the Belliaf-
ham Bay & British Columbia Railroad Cois-
pany for the foreclosure of liens created by a
reassessment. Affirmed.
See same case below, 16 Wash. 131.
Statement by Mr. Justice Bi«w«rt
Prior to February 16, 1891, there woe ii
the state of Washiiu[ton two cities known ss
Whatcom and New Whatcom. On that date
they were consolidated in eonformity *wit]i,gi|^
the general laws of the state, the ooBsoli-'
dated city taking the title of the ''dtj of
New Whatcom." In July, 1890, aad prior
to the consolidation. New Whatcom orvrcd
the improvement of Elk street, between Eft
street east and North street. The contnct
therefor was let in August, 1890. Thit eoa-
tract was completed and the improremcat
accepted by the citv, and in October, 1890,
an assessment was levied upon the abattiag
property. After the consolidation the pres-
ent citv of New Whatoom commenced trt-
eral suits in the superior court of WbaUea
counly affainst various defendants owniii
lots abutUng on the improvement, and sonit^
to obtain decrees foreclosins the liens cr^M
by the asseesment. On «Minuary IS. 18K
17t U.&
169&
Bi£LLiNGHA3( Bat & B. C. R. Co. v. Nsw Whatcom.
815-;Sl(i
the superior court entered decrees anvulling
the assessment, and these decrees were af-
firmed by the supreme court of the state on
February 14, 1895. The ground of the deci-
sion was, as stated by the trial court in its
etmdusions of law, "that said assessments
were not made or apportioned in accordance
with the benefits received by the property,
but were made upon an arbitrary rule, irre-
spectiye of the benefits." On March 9, 1893,
the I^:i8lature passed a general act provid-
ing for the reassessment of the cost of local
improvements in case the original assessment
•hall have been or may be directly or indi-
rectly set aside, annulled, or declared void
by anjr court. Laws Wash. 1893, p. 226.
Sections 4, 5, and 8 bear upon the matter
of notice, and are as follows :
''Sec i. Upon receiving the said assessment
roll the clerk of such city or town shall ^ve
notice by three (3) successive publications
in the official newspaper of such city or
town, that such assessment roll is on file in
his office, the date of filing same, and
said notice shall state a time at which the
council will hear and consider objections to
said assessment roll by the parties aggrieved
by such assessment, ^e owner or owners of
any property which is assessed in such as-
sessment roll, whether named or not in such
roll, may within ten (10) days from the last
publication provided herein, file with the
elerk his objections in writing to said as-
sessment.
S16] •*'Sec. 6. At the time appointed for hearing
objections to such assessment the council
shall hear and determine all objections which
have been filed by any party interested, to
the regularity of the proceedings in making
such reassessment and to the correctness of
the amount of such reassessment, -or of the
amount levied on any particular lot or par-
cel of land; and the counsel shall have the
power to adjourn such hearing from time
to lime, and shall have power, in their dis-
cretion, to revise, correct, confirm, or set
aside, and to order that such assessment be
made de novo, and such council shall pass an
order approving and confirming said pro-
ceedings and said reassessment as corrected
by them, and their decision and order shall
be a final determination of the regularity,
validity, and correctness of said reassess-
ment, to the amount thereof, levied on each
lot or parcel of land. If the council of any
such city consists of two hou«5es the hearing
■hall be had before a joint session, but the
ordinance approving and confirming the re-
ttsessment shall be passed in the same man-
ner as other ordinances."
"Sec 8. Any person who has filed objec-
tkms to such new assessment or reassessment,
M hereinbefore provided, shall have the right
to appeal to the superior court of this state
»nd county in which such city or town may
be situated."
On March 18, 1895, the city council passed
tn ordinance prescribing the mode of proced-
ure for collecting the cost of a local reas-
sessment upon the property benefited there-
by. On.June 10, 1895, it ordered a new as-
sessment upon the blocks, lots, and parcels
172 V. B.
of land benefited by the improvement on Elk
street, hereinbefore described, and directed
the various officers of the city to take the
steps required by the general ordinance of
March 18. These steps were all taken in
conformity to such ordinance, and on August
7, 1895, a further ordinance was passed re-
citing what had been done, approving it and
confirming the reassessment.
The recital in that ordinance in respect to
notice was as follows:
"Whereas, said city council did on the 8th
day of July, 1895, order said assessment roll
filed in the office of the city *clerk, and fixed[8171
Monday, July 22d, 1895, at 7:30 p. M., as a
time at which they would hear, consider, and
determine any and all objections to the reg-
ularity of the proceedings in making such as-
sessments, or to the amount to be assessed
upon any block, lot, or tract of land for said ,
improvements; and
''Whereas, notice of such hearing was duly
published in the official paper of the city of
New W^*^^co™i to wit: in the Daily Re-
veille, in three consecutive issues thereof, the
same being the issues of July 9th, 10th, and
nth, 1895."
The Bellingham Bay & British Columbia
Railroad Ck>mpany was a private corporation
organized under the laws of the state of Cali-
fornia, but authorized to do business in the
state of Washington, and having its princi-
pal office in the city of New \^aiatcom. It '
was the owner of certain property abutting
upon the Elk street improvement, and which
by the proceedings of the city council was
held benefited by such improvement and
charged with a portion of the cost. Failing
to pay this charge, the city of New What-
com instituted suit in the superior court Of
Whatcom county to foreclose the liens creat-
ed by the reassessment. A decree was ren-
dered in favor of the city, which, on appeal,
was affirmed by the supreme court on Decem-
ber 8, 1896, 16 Wash. 131, whereupon this
writ of error was sued out.
Messrs. lu T. Miohener, TT. W, Dudley,
and John B. Allen for plaintiff in error.
No counsel for defendant in error.
•Mr. Justice Brewer delivered the opin-[317]
ion of the court:
By its answer the defendant raised a Fed-
eral question, inasmuch as it alleged that
the notice of the reassessment was insuffi-
cient, and specifically that by reason thereof
its property was sought to be taken without
due process of law and in confiict with the
terms of the Fourteenth Amendment to the
Constitution. This court, therefore, has ju-
risdiction of the case.
*That notice of reassessment was esseutial[3181
is not questioned. (Davidson v. "New Or-
leans, 96 U. S. 97, 106 [24 : 616, 620] ; Hagar
V. Reclamation District No. 108, 111 U. S.
701, 710 [28:569, 673]; Coolev, Taxation,
266 ) , and that constructive notice by publi*
cation may be sufficient is conceded (Lent v.
Tillson, 140 U. S. 316, 328 [36:419, 426];
Paulsen v. Portland, 149 U.S. 30 [37; 637]) ;
but the contention is that the notice, which
461
dl»-a2U
SUPUKMU COUBT or THE UmITBD bTAil:::^
Oct. TttM,
was provided for, and which was in fact
given, was insufficient, because it was only a
ten days' notice. We quote from the brief of
eounsel:
"While we concede in the first instance to
the legislature the authority to prescribe the
time of the notice, we assert that this is not
an absolute authority relieved from judicial
review. The shortening of the time and the
limiting of opportunity to be informed
through constructive notice may be such as
to render the notice unavailing for the pur-
pose for which notice is designed. If that
be Uie case it is not notice. To prescribe that
within ten days after the contingency^ of a
three days' publication the landowner is left
without redress for any kind of burden that
may be placed upon his property in the way
of taxation amounts to a taikinff of property
^ without due process of law. I&der the pre-
tense of prescribing and r^gulatins notice, all
practical notice cannot be ta^en away.
There is a limit to legislative power in shorts
ening the time of notice, and if that limit is
transcended the courts will hold it void."
We are unable to concur in these views.
It may be that the authority of the legisla-
ture to prescribe the length of notice is not
absolute and beyond review, but it is certain
that only in a clear case will a notice au-
thorized by the legislature be set aside as
wholly ineffectual on account of the short-
ness of the time. The purpose of notice is
to secure to the owner the opportunity to
protect his property from the lien of the pro-
posed tax or some part thereof. In order to
DC effectual it should be so full and clear as
te disclose to persons of ordinary intelli-
gence in a genend way what is proposed. If
service is niade only by publication, that
publication must be of such a character as to
create a reasonable presumption that the
owner, if present and takinff ordinary care of
his property, Mrill receive the information of
[810]what is proposed *and when and where he
may be heard. And the time and place must
be such that with reasonable effort ne will be
enabled to attend and present his objections.
Here no question is made of the form of the
notice. It was publish^ in three success-
ive issues of the official pftper of the city.
80 the statute required. What more appro-
priate way of pubiishii^ the action of a cily
than in its official paper? Where else
would one interested more naturally look for
information? And is not a repetition in
three successive issues of the paper sufficient?
How seldom is more than that required!
Indeed, we do not understand that any chal-
lenge is made of the sufficiency of the publi-
cation. But when that is maae and is suffi-
cient, notice is given. The fact that the
owner after being notified is required to ap-
rtr and file his objections within ten days,
thus the sole ground of complaint. But
how many days can the courts fix as a mini-
mum? How much time can be adjudged nec-
essary as matter of law for preparing and
filing objections? How many and intricate
462
and difficult are the questions invohred? B»>
gard must always be had to the probable
necessities of ordinary cases. No hardship
to a particular individual can invalidate a
general rule. A reassessment implies, not
merely the fact of the improvement, bat sho
that one attempt had been made to eoUeet
the cost and failed. Inquiry had been bad
in the courts, and the one assessment set
aside. The facts were known. Ten days'
time, therefore, does not seem unreasonabtj
short for presenting objections to a reassess-
ment.
And there is nothing in the case of this
plaintiff in error to suggest any injustice.
It, though a corporation of the rtate of Ct^
ifomia, was doine business in the state of
Washington, and Jiaving its principal offict
in the city of Whatcom. In other wordi, it
was* domiciled in the city in which the im-
provement was made. The improveneiit
made on tiie street, on which its lots abutted,
consisted in grading, planking, and sidewtlk-
ing. It is, to say the least, highly improb-
able that it could have been ignorant of tb«
fact that they were made. It most bsft
known also tiiat such improvements bare ts
be paid for, and that the ordinary method of
payment is by local *assessment on the prop-;
erty benefited — the abutting property heisf
primarily the property benefited. A pre-
vious assessment had been made for the co«t
of these improvements. Litigation followrd.
which was carried to the supreme court of
the state, and resulted adversely to the city.
It is true this plaintiff in error was not s
party of record in that litigation, and pow
sel criticise a statement in the opinioo of
the supreme court in this case, that "it ap-
pears that the appellant has been oooteftiof
the proceedings to collect the cost of tbe«
improvements for several years past ssd
that no hardship has resulted in conseqneact
of the shortness of time prescribed:" yH it
may be that the court was advised by eoat-
sel that it had contributed to the cost of tkst
litigation, and at any rate it is difficult t»
believe that it was ignorant all lhe«? tcstv
of what was going on.
In view, therefore, of the character of tbt
improvements, the residence of the pUiitif
in error, the almost certainty that it mmA
have known of the improvements and tbst it
would be expected to pay for them, it i» im-
possible to hold that a ten days' notice wu
so short as to be absolutely void. And m^
dally is this true when the supreme coart d
the state in which the proceedings were bsd
has ruled that it was sufficient. Before pt*-
ceedings for the collection of taxes ism-
tioned by the supreme court of a stats srt
stricken down in this court it most dssrly
appear that some one of the fmdsMBOl
guaranties of right contained in the Mv*)
Constitution has been invaded.
The judgment of the Supreme Oomri e( «*•
State of Washington %$ agirmei.
J
1896.
UsiTBD States v. Bliss.
820-823
iBJUHQHAM Bat Impboyement Compant,
Plff. in Err.p
V.
G^TT OP Nbw Whatoom.
8aics
V.
Sauk.
<8m S. C. Reporter's ed. 820.)
[No8. 97, 98.]
Argued (with No, 36 ante, p. 460) Decern'
her 16, 1898. Decided January S, 1899.
Measn, W. W. Dudley, L. T. Miohener, and
John B. AUen for plaintiff in error in both
No counsel for the defendant in error.
These cases involve the same questions,
and the same judgments of affirmance will be
sntered in them.
ni]
UNITED STATES, Appt.,
V,
SDWARD P. BLISS, Executor of Donald
McKay, Deceased.
(See S. C Reporter's ed. 821-820.)
Additional compensation under government
contract — rea judicata — findings of fact.
1. Aa adTsnce of prices during the term of the
eoDtrsct cannot be allowed to a claimant un-
der an act of Congress providing for ad-
ditional compensation to him for additional
cost caused by changes or alterations re-
quired by the government, but declaring that
no allowance for any advance In the price of
labor or material shall be considered, unless
SQch advance occurred daring the prolonged
term for completing the work, rendered nec-
essary by delay resulting from the action of
the government.
1 A prior Judgment cannot be used as res
judicata without pleading or proof of what
was decided by the court In the case In which
the judgment was rendered.
8. The lindlngs of fact made In a case which
are set up as res judicata cannot be changed
by stipniatlon
[No. 394.]
Submitted December 12, 1898. Decided Jan-
uary 5, 1899.
APPEAL from a judgment of the Court of
Claims in favor of Edward P. Bliss, Ex-
•cutor of Donald McKaj, deceased, against
tfte tlnited States for the increased cost of la-
bor and material in the construction of a gun-
boat. Reversed, and case remanded with di-
rections.
Statement by Mr. Justice Brewer t
On August 22, 1863, Donald McKay con-
tracted with the United States for the con-
•truction of tiie gunboat Ashuelot, the con-
tract to be completed in eleven months from
17t U. 8.
that date. On account of changes and addi-
tional work required by the government, and
other details for which it was responsible,* [328]
the completion of the vessel was delayed from
Jul:^ 22, 1864, to November 29, 1865, a period
of sixteen months and seven days beyond the
contract term. Full payment of the contract
price was made, and uso of an additional
sum for changes and extra work. On Au-
gust 30, 1890, Congress passed an act (26
Stat, at L. 1247) submitting to the court of
claims the claims of the executors of Donald
McKay for still further compensation. Such
act contains this proviso:
"Provided, however, That the investigation
of said claim shall be made upon the follow-
ing basis: The said court shall ascertain
the additional cost which was necessarily in-
curred by the contractors for buildins^ tho
light-draught monitors Squando and ^uset
and the side- wheel steamer Ashuelot in tho
completion of the same, by reason of any
changes or alterations in the plans and spec-
ifications required and delays in the prosecu-
tion of the work: Provided, That such ad-
ditional cost in completing the same, and
such changes or alterations in the plans and
specifications required, and delays in th»
prosecution of the work were occasioned by
the government of the United States ; but na
allowance for any advance in the orice of
labor or material shall be considerea unless
such advance occurred during the prolonged
term for completing the work rendered nec-
essary by delay resulting from the action of
the government aforesaid, and then only
when such advance could not have been avoid-
ctl by the exercise of ordinary prudence and
diligence on the part of the contractors."
Ihider this act this suit was brought.
Upon the hearing the court of claims, in ad-
dition to the facts of the contract, perform-
ance, time of completion and payment, found
that—
"During the contract period of eleven
months, and to some extent during the suc-
ceeding sixteen months and seven days, the
government made frequent changes and al-
terations in the construction of the vessel
and delayed in furnishing to the contractor
the plans and specifications therefor, b^ rea-
son of which changes and delay in furnishing
plans and specifications, the contractor, with-
out any fault or lack of diligence on lii^ part,
could not anticipate the labor, nor could he
know the *kind, quality, or dimensions of ma-[388}
terial which would be made necessary to be
used in complying with said changes.
"While the work was so delayed during
and within the period of the contract at
aforesaid the price of labor and material
greatly increased, which increased price
thereafter continued without material change
until the completion of the vessel sixteen
months and seven days subsequent to the ex-
piration of the contract period. The in-
creased cost to the contractor as aforesaid
was by reason of the delays and inaction tf
the government and without any fault on
his part."
— ^And rendered judgment in favor of th«
petitioner for, among other things, the In-
voS-
«23-;>2t5
d^FBBMS COVTRT OV THE UNITED bTATlLb.
Oct. Tjchm
«reased cost of tb« labor &?4 material fur-
nished by him, consisting of two items of
$12,608.71 and $14,315.66. From this judg-
ment *Jie United States appealed to this
«Crurt.
Messrs. Xionis A. Pradt, Assistant Attor-
ney General, and diaries C. Binney for
the appellant.
Mr, John S. Blair for appellee.
(823) *Mr. Justice Brewer delivered the opin-
ion of the court:
No question is made except as to so much
of the judgment as is for the increased cost
of labor and material. The allowance for
that is challenged under the clause of the act
of 1890, ''but no allowance for any advance
in the price of labor or material shall be con-
fiidered unless such advance occurred during
the prolonged term for completing the work
rendered necessary by delay resmting from
the action of the government aforesaio." The
finding is that there was an advance in the
price of labor and material during the con-
tract term of eleven months, and that such
increased price continued thereafter without
material change during the sixteen months
and seven days between the close of the con-
tract term and the actual completion of the
vessel. Of course, but for the act of Au^st
30, 1890, no action could be maintained
|324]against the ^government. The statute of lim-
itations would have been a complete defense.
The petitioner's right, therefore, is measured,
not by equitable considerations, but by the
language of that statute. Beyond that the
court may not go. If equitably the peti-
tioner is entitled to more compensation, it
must be sought by direct appropriation of
further legislation of Congress.
It seems to us clear that the court of claims
was not permitted to consider any advance in
the price of labor or material during the term
named in the contract, to wit, eleven months.
Evidently Congress thought that the con-
tractor took the risk of such advance when
%e signed the contract. The contract term
■^ one thing; the prolonged term another,
if Congress intended to allow for all ad-
vances in the price of labor or material at
4ny time between the execution of the con-
tract and the completion of the work, the
proviso quoted was unnecessary. The fact
that the proviso discriminates as to the term,
an advance during which entitles to allow-
ance, is conclusive upon the question. There
are no terms to be aistinguished except the
contract term of eleven months and the sub-
sequent prolonged term of sixteen months
and seven days. Of course, no change in
the price of labor and material after the work
was finished could have been considered, and
if Congress intended to either permit or for-
bid an allowance for any advance in the price
of labor and material during the entire prog-
ress of the work, it was easy to have said so.
That it qualified such a <]:eneral provision by
limiting it to a particular term, and that
term one created by the action of the govern-
ment, excludes all doubt ns to the meaning
of the word^ "prolonged term." Obviously
the petitioner himself understood that they
464
refer to the period commencing at the time
fixed in the contract for the completion of the
work, for in his petition it is said that ''dur-
ing the term specified by the contract, sad
also through the prolonged term, there wis
a continuous rise in the prices of all labor
and material entering into said vessel sad
machinery." He did not then doubt the
meaning of the statute, and the only diffi-
culty is that according to the findings of th«
court of claims his proof did *not eBtablish.Sti
all his allegations. We deem it unnecessary
to follow the investigation made by cooiuel
of the various proceedings before Congress to
see if there cannot be disclosed some nsei-
pressed intent on its part to authorixe ptf*
ment for every advance in the cost of labor
and material. The language of the act is too
plain to justify such investigation.
One other matter requires considerttioo:
Attached to the record certified to us by the
court of claims is a stipulation signed l^ the
counsel for both parties, which stipulatioa
commences in these words:
"It is hereby agreed by and between the
parties to this cause that the following facts
appear in the records of the court of cUimi,
and that they may be added to the record is
this cause and be treated upon the beariiig
with the same effect as if they had beeo hh
cluded in the facts found by the conrt of
claims."
This stipulation seeks to introduce into
the record of this case the proceedings of the
court of claims in another suit brought im-
der the same act of 1890, by the same peti-
tioner, to recover additional compensatios
for the construction of a vessel other thss
the one described in the present suit, aid
this notwithstanding that this court is, at
least in other than equity cases, limited to a
consideration of the facts found by the coort
of claims. This additional record contain
the findings of facts in that case, the cooehh
sion and judgment, which was in favor of
the petitioner, and states that such jodf-
ment was not appealed from by either party.
The tenth finding of fact reads as follovs;
"The cost to the contractor becaune of the
enhanced price of labor and material which
occurred during the prolonged term for torn-
pleting the work is $61,571.67. Said pro-
longed term resulted from the delay* of thf
defendants. The exercise of ordinary pn*
dence and diligence on the part of the cos-
tractor would not have avoided said m*
hanced price of material and labor."*
The final clause in this stipulattoe of
counsel seeks to explain this tenth fiodiatr
in this way:
"The $61,571.67 set forth in the tenth of
the final findings "in the Nauset case * m* \P^
finding above) was composed of $24,634 ce
hanced cost after February 10, 1864, the «
pi ration of the contract term for the «•■
structon of the Nauset, and the remainder.
$36,937.67, was enhanced cost of labor aid
material furnished by Donald McKay withii
the contract term (June 10, 1863, to Ffh-
ruary 10, 1864), but the court did not ttf-
arate the allowance in its findings.**
Upon this the doctrine of rst indict ^
171 V. 9.
1888.
U^llTlfiD tiTATlfiS Y. lUtilCAM.
»26-328
IbtoM to uphold the judgment. A suffi-
deiit answer is that neither by jpleadings nor
evidence were the proceedings in this other
ease brought before the court of claims in
the present suit. If a partj neither pleads
nor proves what has been decided bj a court
of competent jurisdiction in some other ease
between himself and his antagonist, he can-
not insist upon the benefit of res judicata,
and this although such prior judgment may
have been rendered by the same court.
Southern Pacific Railrcad Co, y. United
States, 168 U. S. 1 [42: 356], suggests noth-
ing contrary to this, for there the prior judg-
ment was offered in evidence, and the only
question considered and decided by this
court was the effect of an alleged failure to
fully plead res judicata.
But further, not only did the petitioner
fail to either plead or prove the former judg-
ment, but also the record when produced dis-
dosed that the court found that the advance
In price was during the prolonged term.
Counsel propose by stipulation &> change
that finding so as to make it show that part
of the sum named therein wka for the ad-
vance during the contract term, and the
other part for the advance during the pro-
longed term. In other words, counsel seek
without pleading or proof to use a prior judg-
ment as res judicata, and also by stipula-
tion to change the findings of fact which
were made in that case. It is dear this can-
Bot be done.
The judgment cf the Court of Claims will
4e reversed, and the case remanded to that
eourt with directions to enter a judgment for
the daimant, less the two amounts of $12,-
608.71 and $14,815.66, the increased cost of
labor and material.
WJ UNITED STATES, Appt.,
WILLIAM F. INGRAM.
(See 8. C Reporter's ed. 327-384.)
Desert land act — recovery of money paid for
m^try of public lands,
t Falld entries can be made under the desert
lind act, of land within the place limits of
a land srant to railroad corporations.
i One who volantarllj abandons a valid en-
try of public lands under the desert land act
cannot recover back the monej which he paid
to the local land officers to Initiate It.
[No. 82.]
December 9, J898, Decided January
3, 1899.
k PPEAL from a judgment of the Court of
.lL Claims in favor of the claimant, William
T. Ingram, for the recovery from the United
States of money which he had paid to the
local land officers under the desert land act to
initiate his entry, the entry having been aft-
erwards abandoned. Rei^ersed, and case re-
172 V. 8. U. a. Book 43. 30
manded, with directions to enter a judgment
for the defendant.
See same case below, 32 Ct. CI. 147.
Statement by Mr. Justice Brewer t
On August 2, 1890, the appellee, William
F. Ingram, applied to the local land office at
Salt Lake City, Utah, under the desert land
act of March 3, 1877 ( 19 Stat, at L. 377, chap.
107), to reclaim and enter a tract of land
containing 236.55 acres. The land so sought
to be reclaimed and entered waB a part of aa
even-numbered section of lands within the
limits of the grant to the Union Pacific Rail-
way Company. The entry was approved by
the local land office; the claimant paid the
sum of $118.28, being 50 cents per acre, the
preliminary payment thereon, and received
an ordinary certificate of entry. He failed,
however, to reclaim the land by conducting
water on to it, as provided by the desert land
act, and abandoned his entry, which, on De-
cember 19, 1805, was canceled. Thereafter
this suit was brought to recover the money
which he had paid to the local land officers.
The court of claims, while expressing an
opinion, on a demurrer to the petition, ad-
versely to the contention of the petitioner
(32 Ct. CI. 147), finally entered a decree in
his favor, from which decree the United
States appealed to this court.
Messrs. George Hines Gorman and Lou-^
is A, Pradt, Assistant Attorney General,
for appellant.
Messrs, Russell Dnane, Barvey Spald-
ing, and E, W, Spalding for appellee.
*Mr. Justice Brewer delivered the opin-[328]
ion of the court:
The contention of the appellee is that no
valid entry can be made under the desert
land act of land within the place limits of a
land grant to railroad corporations; that
therefore the attempted entry was absolutely
void, and that if he had fully complied with
the provisions of that act he could not have
acquired a good title to the lands entered;
that he was therefore justified in abandon-
ing the entry which he had attempted to
make; that the government had received
money which it had no right to receive, and
was under an implied obligation to return it
— ^an obligation which could be enforced by
action in the court of claims. His main re-
liance is on United States v. Healey, 160 U.
S. 136 [40:360], but the singular fact is
that in that case a title by patent to an
even-numbered section within the limits of
a railroad .land grant acquired under the
desert land act was not questioned, and a
claim of the patentee to recover the differ-
ence between $2.50 per acre» which he had
paid in accordance with the statute in re-
spect to railroad land grants, and $1.25
which he insisted was all he was required to
pay under the desert la^io act, was rejected.
Counsel for appellee pick out a sentence or
two in the opinion in that case, and severing
them from the balance, insist that this court
decided that land within the place limits of
a railroad land grant is wholly removed from
465
4!Ao-^iil
SUl'KBMB CODBT OF THJB UmITKD STATIfiS.
OCT. TKM^
the operation of the desert land law, as much
•o as if it had already been conveyed to a
private owner, and conclude that, being so
wholly separated from the reach of that law,
an attempted entry thereunder is absolutely
▼oid, and may he abandoned by the entry-
man at any time. It seems a little Strang
to have this contention pressed upon us in
view of the fact that a patent for lands with-
in a railroad land grant was not disturbed
by that decision, and a claim to recover an
excess payment was repudiated. Nowhere
C920]in the 'opinion is there an intimation that
the patentee did not acquire a perfect title,
no suggestion that the whole proceeding was
void and the land patented still the property
of the government, or even that it. had the
right to maintain a suit to set aside the pat-
ent as a cloud upon its title. And certainly
if the title conveyed by the patent was abso-
lutely void, then the patentee had paid, not
only the half which he sought to recover, but
the entire purchase money for nothing, and
should at least have been allowed to recover
the half which he sued for.
It may be well to refer to the several stat-
utes of Coneress. The general policy in re-
spect to railroad grants, expressed in the
many statutes making sudi grants, and finally
carried into the Revised SUitutes in section
, 2357, is that while the ordinary price of pub-
lic lands is $1.25 an acre, "the price to be
f^aid for alternate reserved lands, along the
ine of railroads within the limits granted
by any act of Congress, shall be $2.50 per
acre." One hundr^ and sixty acres might
• be pre-empted at that price, or eighty acres
homesteaded. Rev. Stat. 8 2289. In other
words. Congress, in no manner limiting eith-
er the right of pre-emption or homestead,
■imply declared that these alternate reserved
lands should be considered as worth $2.50
instead of $1.25, the ordinary price of pub-
lic lands. All appropriations by individuals
were based upon that valuation, but the
right to appropriate was in no manner
changed. The reason for this addition to
the price of alternate reserved sections with-
in a railroad grant has been often stated by
this court, and is referred to in the opinion
in United Siaiea ▼. Healey, 8upra, It is that
a railroad ordinarily enhances the value of
contiguous lands, and when Congress grant-
ed only the odd sections to aid in the con-
struction of one it believed that such con-
■truction would make the even and reserved
"* sections of at least double value.
This difference in price was based, as will
be perceived, solely on the matter of location,
and not at all upon any distinction in the
character or quality of the land, and the
difference in price was the only matter that
distinguished between an entry of lands
(880]within and those without the place 'limits of
a railroad. Such being the general policy of
the government in respect to public lands.
Congress in 1877 passed the desert land act.
This act, while limited in its operation to
certain states and territories, in terms ap-
plied to "any desert land" within them. It
provided for reclamation by irrigation, gave
three yean in which to accomplish audi reo*
466
lamation, and permitted the oitry of aoc
exceeding 640 acres. The only substsntisl
advantages of an entry under the desert Uatf
act over an ordinary pre-emption were in the
amount of land and the time oi payraoiL
Six hundred and forty acres could he takei
under the one, and only one hundred sad
sixty under the other. The price was the
same, but under the one only twenty-fiie
cents per acre was payable at the time of the
entry, and the balance was not required wm-
til, at the end of three years, the redamataoa
was complete; while under the other the «-
tire $1.25 was payable at the Ume of the «-
try. These advantages were offered to t»
duce reclamation of desert and arid laadi.
Now, it is a well-known fact that aloag
the lines of many land-grant railroads art
large tracts of arid lands-* desert lands with-
in the very terms of the statute. ladesd,
nearly every transcontinental line nias for
loi^ distances through these doNert laada
Did Congress act on Uie supposition that m
inducement was necessary to secure the rse-
lamation of the arid public lands withia
the place limits of those grants? Do not the
reasons for le^slation in respect to lands re-
mote from railroads have the same potca^
in respect to lands contiguous thereto? u
Congress had intended to exdude lands with-
in tiae place limits of railroads from the
scope of this act would it have said ""a^y
desert land," or defined "desert lands" as
broadly as it did by section 2, which reads:
"Sec. 2. That all lands, exclusive of the-
ber lands and mineral lands, which win Mt«
without irrigation, produce some agricoltmrsl
crops, shall be deemed desert lands withia
the meaning of this act, which facts tkaSi
be ascertained by proof of two or more cred-
ible witnesses unaer oath, whose aifidaviti
shall be filed in the land office in whidi nid
tract of land may be situated."
*The reasons which esUblished and )«iti-{tt]I
fied the policy of double price for the fonncr
apply as fully to lands which had to be rs>
claimed before th^ could be cultivated as
to lands which needed no reclamation. Coe-
tiguity to the railroad is the same fact ii
each. The significance of this was reeof^
nized in the Healey Case, Indeed, the wboh
controversy in that case was as to the matt«
of price, and grew out of the fact that after
the passage of the desert land act the Inte-
rior Department at first ruled that Its effect
was to reduce the price of even sections with-
in railroad place limits, entered nader it,
from 1^.50 to $1.25 an acre, while in 1881 a
change was made in its niUngs, and it «ss
thereafter held that the act worked no saeh
reduction. Secretary Noble, in TUtotCe OaM,
decided March 25, 1880 (8 Land Dee. M.
369), said, and hit language was quoted Ii
our opinion:
"Under such construction, eeetSon 23S7 of
the Revised Statutes and the desert land ael
do not eonfiict, but each has a separate aal
appropriate field of operation; the lonMr.
regulating the price of desert lands lusuiil
to the United States along railway Uass;
and the latter, the price of other desert laa^
' not so located. There is nothing in th# v**
17t U. i^
1886.
Olabk y. Kansas Crrr.
881-384
tan ot the case whieh renders it prc^r that
4«8ert lands be made an exception to the
rral rule any more than lands entered un-
tiie pre-emption laws. Lands reserved
to the United States along the line of rail-
roads are made double minimum in price be-
fsose of their enhanced value in consequence
of the proximity of such roads. Desert lands
subject to reclamation are as much liable to
be mcreased in value by proximity to rail-
roads as any other class of lands, and hence
the reason of the law applies to them as well
as to other public lands made double min-
imum in price. To hold desert lands an ex-
ception to th* general rule regulating the
price of lands reserved along the lines of
railroads would be to make the laws on this
subject inharmonious and inconsistent."
Other rulings of the land department were
sited, in no one of which was there any de-
nial of the right to enter lands along a rail-
road under the desert land law. It was after
these citations that the language referred to
[i82]by eonnsd was used. *That languaffe must
be interpreted in view of the fa^ uiat the
only contention was as to the price. It means
simply that the court did not consider the
desert land act applicable as a whole and
solidly to the reserved sections along a rail-
road so as to subject them to all its provisions.
In other words, the desert land act did not
supersede and destroy the proviso of section
2357 in reference to a double price for such
reserved sections. We closed the discussion
in reference to this matter in these words:
"Giving effect to these rules of interpreta-
tion, we hold that Secretaries Lamar and
Noble properly decided that the act of 1877
did not supersede the proviso of section 2357
of the Revised Statutes, and therefore did
not embrace alternate sections reserved to
the United States by a railroad land grant.
"It results that prior to the passage of the
act of 1891 lands such as those here in suit,
although within the general description of
desert lands, could not properly be disposed
of at less than $2.50 per acre. Was a dif-
ferrat rule prescribed by that act in rda-
tion to entries made previously to its
passage?" 160 U. S. 147 [40: 373].
The first of these paragraphs is one of the
sentences referred to by counsel and quoted
in their brief. In it we do say "that Secre-
taries Lamar and Noble properly decided
tiiat the act of 1877 ... did not em-
brace alternate sections reserved to the
United States by a railroad land grant," but
the full meaning of that language Is disclosed
only when we replace the omitted words "did
not supersede the proviso of section 2357 of
the Remed Statutes, and, therefore." And
when we turn to what Secretaries Lamar
and Noble decided, we find that they ruled,
not that lands within the place limits of a
railroad land erant could not be entered un-
der the desert land law, but simply that they
could not be entered for the price named in
that law, $1.25 per acre, but were subject to
the general provision of double price. The
other sentence referred to by counsel is sim-
ilar, and, while taken literally and discon-
nectedly, may give some countenance to their
contentions, yet, when read in the light of
172 U. S. *
the entire opinion, manifestly was intended
*to mean no more than that the desert land[888]
act was not applicable in the matter of price
to the reserved sections within a railroad
land grant. This conclusion appears also in
the last paragraph above quoted, where we
say that "lands such as those here in suit,
although within the general description of
desert lands, could not properly be disposed
of at less than $2.50 per acre." Not that
they could not be disposed of at all under the
desert land law, but only not at the prica
fixed by that law.
The same conclusion appears subsequent-
ly, when, reviewing the act of 1891, it was
held that it had no effect upon the price of
lands entered before its date, our language
being —
"We are of opinion that cases initiated
under the original act of 1877, but not com-
pleted, by final proof, until after the passage
of the act of 1891, were left bv the latter act
— at least as to the price to be paid for the
lands entered — to be governed by the law in
force at the time the entry was made. So
far as the price of the public lands was con-
cerned, the act of 1891 did not change, but
expressly declined to change, the terms and
conditions that were applicable to entries
made before its passage. Such terms and
conditions were expressly preserved in re-
spect of all entries initiated before the pas-
sage of that act." 160 U. S. 149 [40: 374].
We may remark in passing that the entry
in this case was before the act of 1891, and
therefore, under the language pust quoted, it
is unnecessary for us io notice any of its
provisions.
It follows from these considerations that
if the petitioner Ingram had fully complied
with the terms of the desert land act he
could, bv the payment of $2.50 an acre, have
acquired title to the lands he sought to en-
ter. Voluntarily abandoning his entry, he
has no cause of action for the sum which he
paid to initiate it. There is nothing in
Frost V. Wenie, 157 U. S. 46 [39: 614], ^ich
conflicts with this conclusion, for there the
decision simply was that lands which Con-
gress held under a trust to sell for the bene-
fit of Indians could not be given away under
the homestead law. and hence that such law
must be limited, *in Its application to the[334]
Fort Dodge reservation, to such lands as
were not covered by the trust.
The judgment of the Court of Claima is re-
versed, and the case remanded to that court,
with directions to enter a judgment for the
defendant.
S. H. H. CLARK et ol.. Receivers of the Un-
ion Pacific Railway Company, Plffa, in
Err.,
V.
CITY OF KANSAS CITY, Kansas, et al
(See S. C. Reporter's ed. 834^38.)
What is not a final judgment.
The reversal of a judgment, with directions to
sustain a demnrrer, Is not a final judgment on
which a writ of error will He to a state court
467
984-337
SUPRSMB C;oURT OF THS UMTfcJ) bTAlB;i.
OCT. I'm.
from the Supreme Court of the United States.
If the lower court has power to msike a new
caae by amendment of pleadintik
[No. 402.]
Argued December IS, 1898, Decided Janu-
ary S, 1899,
r\ ERROR to the Supreme Court of the
State of Kansas to review a judgment of
that court reversing the judgment of the
Court of Common Pleas of Wyandotte, Kan-
sas, and ordering that court to sustain a de-
murrer in an action brought by S. H. H.
Clark ei al., receivers, etc., against the City
of Kansas City. Writ of error dismissed.
The facts are stated in the opinion.
Itessrs, A. Ii. 'Williams, WinsUno 8,
Pierce, and N. H, Loomis for plaintiffs in
error.
Messrs, T. A. PoUoelc and F. D. Hmtek-
IbS* for defendants in error.
[934] *Mr. Justice MeKemam delivered theopiB-
ion of the court :
This is a writ of error to the supreme court
of the state of Kansas to review a judgment
of that court overruling a demurrer of the
nisi prius court to the petition of plaintiffs
in error for an injunction to restrain the col-
lection of taxes, levied by the city of Kansas
City, on lands brought into that city under
act of the legislature of Kansas authorizing
cities of the first class having a population
of 30,000 or more, which shall be subdivided
into lots and blocks, or whenever any unplat-
ted tract of land shall lie upon or mainly
[S35]within any such *city, or is so situated as to
be bounded on three fourths of its boundary
line by platted territory of or adjacent to
such city, or by the boundary line of such
city, or by both, the same may be added to
and made part of the city by ordinance duly
passed. There was a provision in the law as
follows: ''But nothing in this act shall be
taken or held to apply to any tract or tracts
of land used for agricultural purposes when
the same is not owned by any railroad or
other corporation.*'
An ordinance was passed, pursuant to the
statute, extending the city boundaries so as
to include lar^ tracts of land belonging to
the Union Pacific Railway. A portion of the
lands were used for right of way and other
railroad purposes, and a large part of them
were vacant and unoccupied, which were held
by the company for its future uses.
Tans were levied by the d^ upon the
property, and the suit was brought to enjoin
their collection. The petition presented the
facts, and contained the following allega-
tion:
'*Xor shall any state deprive anr person
of life, liberty, or prc^erty witlioat one mxM-
ess of law, nor d^iy to aay person within
its jurisdiction equal protection of the laws."
"And plaintiffs are advised, and so diarse
the fact to be, that in so far as said statim
attonpts to authorise the taking of said
lands within the limits of Kansas City, Kan-
sas, as attempted in said ordinance, l^dubit
'A,' it is uneonstitational, null, and void, in
this, to wit:
""Tliat by reason of that portion of the aet
468
which excepts from its operation any tract
or tracts of land used for agricultural per-
poses, when the same is not owned by saj
railroad or other corporation, it is in viola-
tion of that part of the Fourte^ith Amend-
ment to the Constitution of the Uaitei
States, which reads as foUows: 'Nor shall
any state deprive any person of life, liberty,
or property without due process of law, sot
deny to any person within its juriadietiaB
the equal protection of the laws.' "
The defendants, other than the towashis
of Wyandotte and school district Ko. t, ttri
a general demurrer to the petition, whi^
was overruled. The defeiniants, the tows-
ship of Wyandotte and sdiool district Na I,
did not plead in any way. *The demarriiffM]
defendants electing to stand upon their ^
murrer, a perpetual injunction was grailad
as prayed for against them. They anpttlsl
to the supreme court, ^Hiere the jndgBflft
of the lower court was reversed, and an orte
was made directing that court to sustain tht
demurrer.
The question of the eonstitntloasliftj «t
the statute was presented to the iiimMss
court of Kansas, and that eourt held that il
violated neither the Federal nor state Con-
stitutions. The same question is puisUJ
here in six assignments of errors. TW
specific contention is that the ^•■^■^^ statate
violates that portion ei the riwitMsth
Amendment which provides: "Nor ^al
any state deprive any person of life, Iftcrty,
or property without due proeess of law, nor
deny to any person within its jnrisdieCiQS
the equal protection of the laws.*
The defendants in error, however, objtet
to the jurisdiction of this eoort, and mtft
that the judgment appealed from is not a
final one, and is not therefore reviewshlt is
this court.*
It is further urged that tk% reeord do«
not show that anything was done is tht
lower court after decision im tke sopi—i
court, but that error is prosecuted dinctly
to the judgment of the supreme eoortjaad that
that determined only a questioin of pliniliM
and that its direction has not yet bees sctA
on, and that no judsment of aay kind his
been entered against Wyandotte towmhipcr
school district No. 9.
The law of Kansas prescribiw action «i
demurrer is as follows: *If thedcniuiiw ht
sustained, the adverse party may um^mL i
the defect can be remedied by way of emud-
mexkU with or without costs, as the eomt, is
its discretion, shall direet."
In Bostwiek ▼. Brimk^hof, 106 U. & S
[27: 79], it was decided that «ths rait h
wdl settled and of long ■***r!iiy that a jnir
ment or deeree to be imJ, within the a«>*
ing of that term, as Qssd in tteaelief Q»>
gress giving this oovt JnriadktioB on ir
peals and writs of error, nraat tanniaalt Iht
litigation between tiie parties ob the Mrtta
of tk% ease, so that if ten dMmM be ss sf-
finnanee here, the oovt bdow wovU ksve
nothing to do but to execute tiie indgMK •^
deerae it had ^already r«ndsrad.*-4or tt<19f|
eopport of which many eases w«r» eitei; aad
haiherz «n the jndgms^ is not one wUA
ITt V.t>
i8oa
UVITBD 8TATE8 Y. BUFTALO NaTUBAL QaI FVESL Co.
887-8;i9
diBpo6» of the whole case on its merits, it is
not fioiL Consequently, it has been uni-
ionrlj held that a judgment of reversal,
with leave for further proceedings in the
court below, cannot be brought here on writ
of error;" also citing oases.
This case and those it cites have been ap-
plied manv times, but we will confine our
notice to instances of demurrer. DeArmaa
?. UfUied States, 6 How. 103 [12: 361], was
of this kind, but the grounds of demurrer
urged there made Uie rule when applied to
tbem not very disputable, and the case is not
of mcch aid.
In Meagher v. Minnesota Thresher Mfg,
Co. 143 U. 8. 608 [36:834], the demurrer
was overruled with leave to answer over.
Upon appeal to the supreme court the order
overruling the demurrer was affirmed with
eoets. The rule of the supreme court pro-
Tided that "upon the reversal, affirmance, or
modification of any order or judgment of the
District court by this court, there will l»e a
lemittitur to the district court, unless other-
wise ordered." Held, that the plaintiffs in
error upon the return of the case to the court
eould plead over, and hence judgment was
not final.
In Werner v. Charleston, 161 U. S. 360
[38: 192], the announcement by the Chief
Justice was: 'The writ of error is dis-
missed. Meagher v. Minnesota Thresher Co.
145 U. 8. 608 [36 : 834] ; Rice v. Sanger, 144
U. 8. 197 [36: 403] ; Hume v. Bou?ie, 148 U.
8. 246 [37: 438]."
The statement of the case shows that it
wts analogous to the case at bar. The mo-
tion to dismiss stated that —
The judgment brought here by writ of er-
ror for review is a juc^ment of the supreme
court of the state of &>uth Carolina, which
simply affirmed a decision of the lower court
overruling a demurrer, and thereby re-
manded the case to the court below for a
hearing on the merits. It is therefore an in-
terlocutory jud^gment, and is in no sense a
final decree.
To this the plaintiff in error replied:
The judgment brought here by writ of error
for review is the judgment of the supreme
court of the state of South Carolina, holding
that a certain act of the general assembly of
the state of 8outh Carolina, entitled, "An Act
8]to Authorize ti^e City Council *of Charles-
ton to Fill up Low Lots and Grounds in the
City of CHiarieston in Certain Cases and for
Other Purposes," approved on the 18th of
December, 1830, Is not in violation of the
Constitution of the United States, thereby
affirming the judgment of the trial court and
so ending the constitutional defense inter-
posed by the plaintiff in error.'
"An examination of the record will show
that the main ground of the demurrer, in-
terposed in the court below by the plaintiff
in error, was the unconstitutionality of the
act of 1830. It was claimed both there and
in the court above, as well as in this court,
to be in violation of due process of law."
Rice V. Banger and Hume v. Boune, cited by
the Chief Juiitice, were not rulings on de-
murrer, and we have confined our notice to
172 V. n.
cases of that kmd, not because they are sep-
arable in principle from the other cases de-
cided, but to obsi^rve and explain the rule in
its special applia tion. That rule is in its
utmost generality v'hat no judgment is final
which does not teri^inate the Iitigs.tion be
tween the parties to the suit. If anything
substantial remain to be done to this end,
the judgment is not filial. The law of the
case upon the pleadings, and hence as pre-
sented by the demurrer, may be settled, but
if power remain to make a new case, either
bv the direction of the supreme court or in
tne absence of such direction by the statutes
of the state, the judgment is not final.
The statute of Kansas permitted such
amendment, and the order of the supreme
court did not take it away. Its order pro-
ceeds no further than a direction to sustain
the demurrer to the petition. That done,
the lower court had and has all of its power
under the statute, and may exercise it at the
invocation of plaintiffs in error. What they
may be advised to do we cannot know. We
can only consider their right and the power
of the court. These existing, if we should
affirm the judgment of the supreme court,
that court, and maybe this court, may be
called upon to determine other issues be-
tween the parties.
It follows from these views that the judg-
ment of the supreme court is not final, and
the writ of error must he dismissed, and it is
so ordereo.
UNITED STATES, Petitioner, [339]
V.
BUFFALO NATURAL GAS FUEL COM-
PANY.
(See 8. C Beporter's ed. 88^-848.)
Natural gas free from duty under the tariff
act of 1890,
Natural gas Imported for nse as fuel and for
lllomlnatlng purposes is free from duty un-
der If 496 (p. 604) of the tarlflP act of October
1, 1800, as crude bitumen, or under t 651 (p.
607) as crude mineral.
[No. 64.1
Submitted December £, 1898, Decided Jan^
ary 5, 1899,
ON WRIT OF CERTIORARI to the United
States Circuit Court of Appeals for the
Second Circuit to review a decision of that
court affirming the decision of the Circuit
Court of the United States for the Northern
District of New York which affirmed the de«
cision of the Board of General Appraisers
that natural gas was exempt from duty un«
der the tariff act of 1890. Affirmed,
See same case below, 45 U. S. App. 345.
The facts are stated in the opinion.
Messrs, Henry M. Hoyt, Assistant At^
tomey General, for the United States, peti-
tioner.
Mr, Herbert P. Bissell for the Buffalo
Natural Gas Fuel Company, respondent.
460
830-343
SXTPRBMB COUBT OF THE UnITBD 8TA1S8.
Oct. Tekm,
[PM] *lir. Jnstloe PeokkAm delivered the opin-
ion of the court:
The defendant gas company, doing busi-
neet at Buffalo, in the state of New York,
Imports natural gas from the Dominion of
Canada, for the purpose of supplying its cus-
tomers with that article. The gas is brought
in pipes under the Niagara river, and is used
for consumption as fud and for illuminating
purposes.
In 1893 the gas imported by the company
was assessed for duty by the collector of the
port of Buffalo as a nonenumerated unmanu-
factured article at ten per cent, under sec-
tion 4 of the tariff act of October 1, 1890.
20 Stat, at L. 507, at page 013.
The importers claimed that the gas was en-
titled to free entry under section 2 of the
above act, providing for a free list, either un-
der paragraph 490 (page 004), as crude bi-
tumen, or under paragraph 051 (page 007),
as a crude mineral, not advanced in value or
condition by refining or grinding, or by any
other process of manufacture, not specially
[MOJprovided for *in Uie act. The importmmade
S roper protest, and obtained a review of the
ecision of the collector by the board of gen-
eral appraisers. That board, on a seoond
bearing, after testimony had been ffiven as
to the character of the ffas, decided Uiat nat-
ural gas was a crude mineral, and the board
on that ground sustained the claim that it
was exempt from duty under paragraph 051
of the tariff act of 1890.
The circuit court affirmed that decision,
and upon a review bv the circuit court of ap-
peals for the second circuit (45 U. S. App.
345), the decision was again affirmed. The
latter court, by Circuit Judffe Lacombe, said :
"We do not undertake in this case to decide
whether or not natural gas is a 'crude bitu-
men.' If it be such, tne provisions of para-
graph 490 would control its classification,
being more specific than those of paragraph
051. Both paragraphs are in the free list,
and since natural gas comes fairly within
the general provision for crude minerals, and
is therefore free, it is unnecessary now to
inquire whether it is also within the more
specific description 'crude bitumen,' which is
also free. The board of general appraisers
properly reversed the collector's assessment
of the article for duty; it is not a 'raw or
wimanufactured article not enumerated.'"
Circuit Judge Wallace, while concurring
in the affirmance of tne decision of the cir-
cuit court, was of the opinion that the im-
portaUon in controversy ought to be classi-
fied under paragraph 490 as crude bitumen,
and exempt from duty on that ground.
The decision having been duly entered, this
«ourt upon the petition oi the government is-
sued a writ of certiorari, and the case baa
been brought here for review.
We are. of opinion that the circuit court
<}{ appeals was right in its disposition of
the case. The substance that is taken from
the bo!^om of the earth and which bums
brightly wiinout any further labor put upon
it, is popularly designated as. natural gas.
This name is not contained in the tariff act,
but there are two paragraphs thereof which it
is claimed do properly and sufficiently char-
470
acterize and embrace natural gas, and they
are in the free list, and are known as para-
graphs 490 and 051. *The language used in[841]
each, when taken in its popular and common-
ly received sense, or according to the sense
in which it is used commercially, would
cover and include the substance generally
spoken of and loosely described as natural
gas. The fact that it is not thus named in
the act compelled the collector to aasees it
as a raw or unmanufactured article not enu-
merated, a deeoription which does not fit
nearly so well as that which is contained in
each of the paragraphs mentioned above. Wo
think the evidence shows that natural gaa
is included in the language of one or botk
those paragraphs.
The rule is familiar that in the interpreti^
tion of laws relating to the revenues tho
words are to be taken in their commonly ro-
ceived and popular sense, or according to
their commercial designation, if that differs
from the ordinary understanding of tho
word. Two Hundred Cheats of Tea, Bmiih,
Olaimani, 9 Wheat 430 [0: 128].
Mr. Justice Story, in that ease, in dellv*
ering the opinion of the court, said: "Tho
object of the duty laws is to raise revenu6»
and for this purpose to class substances ao-
cording to the general usage and known d^
nominations of trade. Whether a particular
article were designated by one name or an-
other in the country of its oriffin, or whether
it were a simple or mixed substance, was of
no importance in the view of the legislature,
[t did not suppose our merchants to be nat-
uralists, or geologists, or botanists. It ap-
plied its attention to the description of ar-
ticles as they derived their appellations ia
our own markets, in our domestic as well at
our foreign traffic." See also Luist v. ifo-
gone, 153 U. 8. 105 [38:0511, and eaaea
there cited.
Prior to 1890 natural gas had not been im-
ported, although its existence in this country
and in foreign countries was well known.
After the passage of the tariff act of 1890,
this corporation commenced its importation
from Canada as stated. It appeared in tho
evidence that an analysis of the gas thus
imported had been made by competent chem-
ists, and it was found to contain methane, or
marsh gas, to the extent of 95.0 per cent, the
balance being made up principally of hydro-
carbons other than methane.
In the opinion of some of the witnesses the
natural gas thus ^examined was a erudebitu<{84S]
men. It was stated "that bitumens are mix-
tures of hydrocarbons of various kinds, mixed
with other materials in varying proportions :
a crude bitumen as found in nature is mixed
with other materials." It was also testified
that this natural gas contains 97.2 per cent
of natural hydrocarbon, and the balance of
2.8 per cent is composed of substances usu-
ally found with the hydrocarbons in crude
bitumen; that the term "bitumen" does not
refer to any substance of definite chemical
composition, but is distinctively a generie
term applied to a large number of natural
substances which consist larsely or chiefiy
of hydrocarbons. These substances may be
gaseous, as natural gas or marsh gas; fluid,
178 U. 8.
1898.
SooTT T. Uhitbd States.
842-84ft
at Deiroleum or naphtha; viscous, as the
•enuflaid asphaltum; elastic, as elaeterite,
foond in Utan, and elsewhere; solid, as some
lonns of asphaltum, bituminous or anthra-
cite eoal; that the conunon compositions of
enide bitumen are naturally classified as
ibore stated. The deposits of bitumen oc-
cur in various portions of the earth's crust;
ihef differ naturally In appearance, in oon-
listency, in various physical and chemical
properties ; but they are everywhere found to
consist essentially of hydrocarbons, and they
tre correctly designated as crude bitumens.
Hist natural gas should be designated as a
cmde bitumen was the opinion of some of
tiic witnesses.
Evidence on the part of the government
WIS given by witnesses who were conneisted
with the Government Geological Survey, and
their evidence would tend U> show that the
word 'Minerals" in the mineralosical sense
ol the word almost invariably refers to sol-
ids; that in the mineralogical definition
gues would not be included, but that there
WIS a wider definition, which, according to
lome authorities, includes all the constituents
of the earth's crust, and that would include
gises. It was also stated that if a scientific
man wants to be precise he confines his use
of the term "mineral" to a certain homogene-
. 008 substance, a chemical entity, having a
definite oompMition, just as the mineralogist
does. But nevertheless minerals are lx>th
lolids and liquid, according to most defini-
tions, and that some authorities include
gues among minerals and others exclude
theni.
MS] *One witness for the government said if you
exclude from the mineral kingdom the gases
included in the atmosphere, you must set up
some fourth class of substances ; the division
being, generally, the vegetable kingdom, the
animal kingdom, and the mineral kingdom;
but no such fourth division is ordinarily des-
ignated, and the constituents of the atmos-
phere are not vegetable and they are not
animal, and ordinarily they are included in
the mineral kingdom.
We think the evidence In this case shows
that, within the language of paragraph 051
of the act of Congress, interpreting that lan-
guage in accordance with the rule above
mentioned, natural gas would fairly come
under the head of a crude mineral, if there
were no more limited classification in the
act; but that the classification as crude bi-
tumen is more limited, and we are of opinion
that, upon the evidence, natural ^as is prop-
erly thus described. If it be within the more
specific classification, it would be controlled
thereby. It is not important in this case to
conclusively decide which classification cov-
ers it, because both are on the free list. As
the gas is described in one or both of the
paragraphs, it cannot come under section 4
of the act, which provides for the levy, col-
lection, and payment on the importation of
all raw or unmanufactured articles, not
enumerated or provided for in the act, a duty
of ten per centum ad valorem.
The judgment of the Circuit Court of the
United Statee for the Northern District of\
yeic York uxu right, and should he affirmed,
172 V. n.
HENRY W. SCOTT, Plff, in Err.,
V.
UNITED STATES.
(See S. C. Reporter's ed. 348-351.)
Testimony in criminal action — decoy letter.
1. Testimony of the persons named by the ac-
cused as his enemies, that they have no HI
will against him, Is not collateral to the main
Issue, or a contradiction of what the prosecu-
tion has brought out, where the accused on
his direct examination said that enemies had
placed In his pocket stolen money that was
found there, and their names were brought
out on cross-examination.
2. The fact that a letter stolen from the malls
was a decoy addressed to a fictitious person
Is not a defense to an indictment under U. S.
Rev. Stat. | 5467, when the letter had been
delivered Into the Jurisdiction of the post-
ofllce department by dropping It Into a letter
box.
[No. 80.]
Submitted Deoemher 5, 1898. Decided Jat^
uary 5, 1899.
IN ERROR to the Circuit Court of the
United States for the Southern District
of New York to review a judgment of that
court convicting Henry W. Scott of stealing
a letter and its contents from the mail, under
U. S. Rev. Stat. 8 5407. Affirmed.
The facts are stated in the opinion.
Mr. T. O. Campbell for plaintifiT in er-
ror.
Mr, James E. Boyd* Assistant Attorney
General, for defendant in error.
*Mr. Justice Peokham delivered the opin-[34C]
ion of the court :
Henry W. Scott, the plaintiff in error, was
indicted under section 54G7, Revised Stat-
utes, for stealing a letter and its contents
from the mail, and the indictment alleged
that he unlawfully and wilfully secreted and
embezzled a certain letter intended to be con-
veyed by mail and directed to Miss Mary
Campbell, Cottonwood, Yavapai county,
Arizona, he beine a letter carrier in the city
of New York and the letter having been in-
trusted to him and having come into his pos-
session in his capacity as such carrier. The
letter contained $3.50 in two silver certifi-
cates of the United States, each of the de-
nomination of one dollar, and a United
States Treasury note of the denomination of
one dollar, and a fifty-cent piece of the silver
coinage of the United States. The evidence
showed that the letter was what is termed a
decoy letter; that the money was placed
therein by one of the inspectors of the Post-
ofSce Department; that it was sealed,
stamped, and addressed as above mentioned,
and deposited about 2:30 o'clock p. M. in
one of the street letter boxes in the city of
New York, in the district from which the de-
fendant collected such letters. Within a few
moments after it was deposited in the letter
box by the inspector, he saw the defendnnt
come to the box, unlock *it, take out its con*[345]
tents, put them in his bag and continue on
471
945-347
Sin*REMB Court of thb United States.
Oct. Tmc,
Ids route. The carrier returned to the
branch postoffice, station E, where he was
employed, a little after three o'clock, turned
the contents of his bag upon the proper table
for distribution, and nung the bag and also
bis coat on a peg, and left the room and was
gone about half an hour. One of the clerks
of the department had been told before the
defendant's arrival with his letter bag to
look out for a letter addressed as above de-
scribed, and withdraw it from the mail, and
in obedience to such instructions and during
the defendant's absence he looked through
the letters thus taken from his bag, and tat
letter was not to be found. Upon the de-
fendant's return to the distributinff room,
he took his coat and bag and started on his
route for another collection of letters, and
while on the street he was met by the officers
of the government about five minutes after
four o'dock p. ic., and was then arrested and
brought to the station. He was charged with
having the letter, and was asked to show
what he had in his pockets. The letter was
not found, but the defendant took from his
right-hand trousers pocket, among other
things, the three bills which had been placed
in the letter. The fifty-cent piece was found
loose among other coins in another pocket.
The officers identified the bills bj marks
which had been placed on them, and also by
reason of the nimibers of the bills, a mem-
orandum of which had been taken. The coin
had been marked and was identified by the
<^cerd.
In relation to the letter, it appears that It
was prepare by the inspector oi the depart-
ment, who addressed the same to Miss Mary
Campbell. The inspector wrote the body of
the original letter. He did not know Maty
Campbell, and never saw her; it was ad-
dressed to her at Cottonwood, Arizona, at
which place there is a postoffice, but there
was no one of the name of Miss Mary Camp-
bell residing at Cottonwood, Arizona, to his
knowledge. The address on the letter was to
a fictitious person ; the money placed in the
letter was the money of Mr. Morris, one of
the inspectors.
Upon the trial the defendant was sworn
in his own behalf, and upon his direct exam-
IMS] {nation testified that when he was ^arrested
and the money found upon him, he said to
the inspectors, "SomelK>dy has done me a
dirty trick;" to which one of the inspectors
replied. ''Do you think I am concerned in
thatT" The defendant says that he answered
bim, 1i did not think or did not know
whether he was; but if he was not, some
enemy of mine in that office was." He de-
nied on the witness stand, that he ab-
stracted, or took from the collection table,
or at all, any letter such as is described in
the indictment, or any money belonging to
any other person in the world.
Upon cross-examination the district attor-
ney endeavored to obtain a fuller statement
from the defendant as to what he meant when
be said on his direct examination that some-
body bad done him a dirty trick, and that
some enemy of his in the office was concerned
in it, and to that end the district attorney
478
asked him: "Have you any enemies amoag
the employees at that station?" and the de-
fendant answered that he had one l^ the name
of Augustus Weisner and another named
John D. Silsbee, his fonner superintoident;
that he was an enemy of his uid so was Wen*
ner, and that those two were all that he re-
garded as enemies in that office, both be^
employed in the same branch office as the de-
fendant, and he said that for a month befm
he was arrested he was not on speaking tenM
with Weisner.
The court asked the defendant: ''What a
the trick that vou mean to sumst to the
jury that was played upon you T^and the de-
fendant answered: "The only solution thst
I can give of it is that that two dollars hsd
been abstracted from my pocket and tbsM
marked three dollars put in the place of it
Three dollars and a half placed there; fifty
cents in with this change.^ The witness hH
just previously stated Uiat he left two om-
dollar bills beldtaging to himself in his eoat
pocket at the time he bung his coat upon tibe
p^ in the sorting ro<Mn and 1^ it ttiere to
go down stairs, and fnmi which nxun be wts
absent about twenty-five minutes.
When the defendant rested the govemmsil
called as witnesses John D. Silsbee and Ai-
ffustus Weisner, the two men named by the
defendant as his enemies, both of whom tes-
tified *under the objection and exe^tiQa ctfMT]
defendant's counsel, that they bad no ill-will
whatever towards the defendant, and that
th^ had never had any quarrels with hia,
and Weisner said, on the ocMitranr, that hs
bad liked the man. The coimad for the de-
fendant objected to' this testimcHiy on te
ground that the evidence d defendant npsa
this subject was collateral, brongbt out ly
the government on his eross-exmminatica,
and that the government was bound by \k
answers.
After the evidence was all in tiie epnistl
for the defendant requested Uie eowt te
charee, 'that a lettcor intended to be eoa-
veyed by mail, under the statute, nrast be
addressed to an existing person, at an exist-
ing place, or to a real and genuine addresa*
The court refused so to charge, and the de-
fendant excepted.
The defendant's counsel farther requested
the court to charge, "that a letter with ta
impossible address, which can never be d»>
livered and which the sender, acting eoa-
jointly with postoffice officials, deter-
mined should be intercepted in the mail, it
not such a letter as was, in the meaninfr of
the statute, 'intended to be conveyed br
mail.'" This was also refused, and* an ex-
ception to such refusal takoi by defendants
counsel.
The jury having convicted the defendsat
he has brought the case here try writ of tr-
ror.
Regarding the objections taken by the de-
fendant to the evidence of Silsbee and Wcif>
ner, above alluded to, we think they were
properly overruled. The evidence objeettd
to was not irrelevant, and the gorenuBot
was not bound by the answers of the defced-
ant as to Silsbee and Weisner beinc bi< c**
17« IT. 9.
Scott v. Ukited Statbs.
a47-ado
When arrested the defendant had up-
en hlf person the three bills and the fifty-
ent piM0 which had been marked by the
poetoffioe inspectors and placed in the letter
and deposited in the letter box, addressed as
stated. Appreciating his position, the de-
foadant endeavored then and there to ac-
count for his possession of the money, and he
aoooonted for it by saying that someone, some
enemy of his at the office, had done him a
dirty trick, by which, as he testified, he meant
to say that someone had deposited that money
M81in *his coat pocket while his coat hung up in
the sorting room, and while he was absent
from that room. This evidence of defendant
was an attempt to raise a suspicion, at least,
that some enemy of his in the building had
pUced itds money in his coat, and thereby to
relieve himself from the suspicion of having
stolen it and to show his own innocence. It
was an attempt at an explanation showing
an honest possession of the money. It was
therefore admissible, uoon cross-examina-
tion, for the purpose of showing the improb-
ability of the explanation, to obtain from the
witness all the circumstances which might
throw light upon the subject. For that pur-
pose he was asked if he had any enemies in
the department, and be said that he had,
naming two eAiployees at this particular
station, one the superintendent and the
other a fdlow letter carrier.
If this were true, it might have been ar-
ffoed to the jury that the explanation of de-
fendant was strengthened, and the inference
that one or both of these enemies had done
this trick might for that reason have been
maintained with more plausibility. To
show that no such inference could properly be
drawn, the government proved that the men
the defendflmt named as enemies were not
such in fact. The evidence was not collateral
to the main issue of guilt or innocence, nor
was the subject first drawn out by the gov-
ernment. Tlie district attorney on the cross-
examination simply obtained the names of
those upon whom the defendant attempted
to east a suspicion by his statement in
ehief. He could not escape from the possi-
bility of being contradicted, by the failure
to name the enemies on his direct examina-
tion. That examination suggested an ex-
planation which, if believed, showed an in-
nocent possession, and however improbable
it was, the government had the right to pur-
rae the subject and to show that it was un-
founded. The objection to the evidence
cannot therefore be sustained.
We think the court below was also right
in its refusal to charge as above requested
regarding the deco^ letter. The correctness
of the ruling has in substance been already
upheld in this court.
19] *In Montgomery t. United States, 162 U.
S. 410 [40: 1020], we not only decided that,
upon an indictment against a letter carrier,
charj^ with secreting, etc., a letter con-
taining money in United States currency,
the fact that the letter was a decoy was no
defense, but it was also held that the further
fact that the decoy letters (mentioned in the
ease) and the moneys inclosed therein, al-
though belonging to the inspectors who
172 U. S.
mailed them and by whom they were to be
intercepted and to be withdrawn from the
mails before they reached the persons to
whom they were addressed, was no defense,
and that such letters were in reality in-
tended to be conveyed by mail within the
meaning of the statute on that subject. In
that case the court, speaking through Mr.
Justice Shiras, said:
''Error was likewise assigned to the refusal
of the court to charge that there was a fatal
variance between the indictment and proof
in respect to the description of the letters,
for the stealing or embezzling of which the
defendant was indicted.
"In the indictment it was averred that the
letters in question had come into the defend-
ant's possession as a railway postal clerk,
to he conveyed hy mail, and to be delivered to
the persons addressed. It was disclosed by
the evidence that the letters and money thus
mailed belonged to the inspectors who mailed
them, and were to be intercepted and with-
drawn from the mails by them before they
reached the persons to whom they were ad-
dressed.
''There is no merit in this assignment.
The letters put in evidence corresponded, in
address and contents, to the letters described
in the indictment, and it made no difference,
with respect to the duty of the carrier,
whether the letters were genuine or decoys
with a fictitious address. Substantially
this question was ruled in the case of Ooode
V. United States, above cited."
In the last-cited case, which is reported in
159 U. S. 663 [40: 297], the court said, at
page 671 [40:301], speaking through Mr.
Justice Brown:
"It makes no difference, with respect to
the duty of the carrier, whether the letter be
genuine or a decoy, with a fictitious address.
Coming into his possession, as such carrier it
* is his duty to treat it for what it appears to[35(^
be on its face — a genuine communication ; to
make an effort to deliver it, or, if the address
be not upon his route, to hand it to the prop-
er carrier or put it into the list box. Cer-
tainly he has no more right to appropriate
it to himself than he would have if it were
a genuine letter. For the purposes of these
sections a letter is a writing or document,
which bears the outward semblance of a gen-
uine communication, and comes into the pos-
session of the employee in the regular course
of his ofiicial business. His duties in re-
spect to it are not relaxed by the fact or by
his knowledge that it is not what it purports
to be — in other words, it is not for him to
judge of its genuineness."
In this case the letter was addressed al-
though to a fictitious personage, yet to a
postoffice within the territory of Arizona. It
was properly stamped, and it was placed
and came within the jurisdiction and au-
thority of the Postoffice Department by be-
ing dropped into a United States street let-
ter box, m the city of New York. The duty
of the defendant was, as above stated pre-
cisely the same in regard to that as to any
and all other letters that came into his pos-
session from these various letter boxes. The
intention to convey by mail is sufficiently
473
950-353
SuFRSME Court of the United bTAxts.
Oct.
proved in such a case as this, by evidence of
the delivery of a letter into the jurisdiction
at the Postoffice Department by dropping it
in a letter box as described herein.
Section 5468, Revised Statutes, . provides
that the fact that any letter has been de-
posited in any postoffice, or branch postoffice,
•or in any authorized depository for mail
matter, etc., shall be evidence that it was
intended to be conveyed by mail, within the
meaning of the two preceding sections.
This prima facie evidence is not contradicted
or modified by proof, as in this case, that the
letter was a decoy and addressed to a ficti-
tious person. It was deposited in a proper
letter box, and it was intended that it should
be taken and conveyed by defendant, a mail
carrier, and his duty as such carrier was to
convey it to the station postoffice, and while
so being carried it was being conveyed by
mail, and was under the protection of the
Postoffice Department, ana its safety pro-
vided for by the statute under consideration.
f851]An intention to have the ^letter thus conveyed
by the carrier is, within the statute, an in-
tention to have it conveyed by mail. Hie
difficulties of detecting this kind of crime
are very great, and the statute ought not to
be so construed as to substantially prevent
a conviction under it. A decoy letter is not
subject to the criticism frequently properly
made in regard to other measures sometimes
resorted to, that it is placing temptation be-
fore a man and endeavoring to make him
commit a crime. There is no temptation by
A decoy letter. It is the same as all other
letters to outward appearance, and the du^
of the carrier who takes it is the same.
The fact that it is to a fictitious person is
in all probability entirdy unknown to the
carrier, and even if known is immaterial.
Indeed, if suspected by the carrier, the bus-
picion would cause him to exercise particular
care to insure its safety, under the belief
that it was a decoy.
The other objections taken upon the trial
we have examined and are of opinion they
are without merit, and the judgment is there-
fore affirmed.
MISSOURI, KANSAS, ft TEXAS TRUST
COMPANY, Petitioner,
V.
THEODORE M. KRUMSEIG and Louiae
Krumseig.
(See 8. C. Reporter's ed. S51-861.)
Contract void for usury — when there need
not he an offer to repay — public poiicy of a
state obligatory on Federal courts — right
given by state statute,
1. A contract nnder which $1,070 Is actually
received by a borrower who gives ten notes
of $360 each, payable In monthly Instalments
of $30 each, with a proviso that In case of his
death all the debt remaining unpaid shall be
released If he Is not then In default, — Is a
scheme or colorable device to cover nsnry.
fl. A plalntlflP suing to cancel a Minnesota con-
tract for usury need not offer to repay the
474
money loaned, tmder Minn. Gen. Stat. ISM,
I 2217. providing that sneli contract shall he
canceled and given np.
8. The public policy of a state with respect
to contracts made within the state and aongM
to be enforced therein Is obligatory on the
Federal ooorts, whether acting In equity «r
at law.
4. The rlg^t given by a state statute to have
a contract eanceled for usury without repay-
ing the money loaned ean ha enforeed la a
Federal eourc
[No. 66.]
Argued Deoemjier 2, 189S. Decided /<
8, 1899.
0
N WRIT OF CERTIORARI to tkm UBttai
States Circuit Court of Appeala for tha
Eighth Circuit to review a oecree of that
court in an action brought Ij llieodorB )L
Krumseig et al, against the Mlssoari, Kan-
sas, & Texas Trust Company, tMrmag tht
decree of the Circuit Court of tho XJnitad
States for the District of Minnesota declar-
ing a certain mortgage and notea to bo void
and enjoining their enforcement Afjini
See same case below, 71 Fed. Rop. 36^
Statement by Mr. Justice
•In May, 1894, Theodore M. ^ ^
Louise Krumseig filed in the district court of
the eleventh jucQcial district of
bill of complaint against ti&e Ifiaaouri,
sas, & Texas Trust Company, a oo
of the state of Missouri, praying t]iat»
reasons alleged in the bill, a eertain moriga^
made by complainants on the 5th day of
September, 1890, and delivered to tho d
ant, and by it recorded, and cortaim
therein- mentioned, might be ^^iw^led,
the defendant be permanently enjoined htm
enforcing the same. The defendant therea^
on, b^ due proceedings removed the eaoee le
the circuit court of the United Statea for the
district of Minnesota, where the Unkm TnMt
Company of Philadelphia waa made a eode>
fendant, and the case was eo proceeded ia
that, on October 22, 1895, a fimaa deeree wm
entered, granting the prayers of the
plainants, declaring the said mortgi
notes to be void, and enjoining the
ants from ever talcing any action or proceed-
ing for their enforcement. 71 Fed. Rnx SMi
From this decree an appeal waa tana te
the circuit court of appeals for tlie eighth
circuit, where, on November 5, 18INK, the de-
cree of the circuit court was attnned. Oa
March 20, 1897, on petition of the Miesoari.
Kansas, & Texaa Trust Company, a writ eff
certiorari was awarded whereby the reeori
and proceedings in said cause were hiomht
for review into this court.
Mr. William O. Wkito for petitioaer.
if r. J. B. Bieharda for reepondeata.
*Mr. Justice Skiraa delivered tka opiaki^lStl
of the court:
The bill ot complaint alleged that on July
27, 1800, Theodore M. Krumseig. one of ths
complainants, made a written *apfdicatloa to^SiS]
defendant, a corporation of the statr of Ifi^
ITS V. t.
Missouui, E. A T. Trust Ca v. Ebumsbiu.
>;53-85d
•ovri, for a loan of $2,000, to be secured upon
rttl ettate in the dt^ of Duluth, Minnesota,
and among the conditions in the said appli-
estion was the following :
*ln consideration of the above premises, I
igres to execute and deliver to the said com-
ptnj ten promissory notes, each of the sum
of $860, payable in montMy instalments of
ISO, commencing at date of signins contract.
The said notes aver principal sum loaned, in-
terest and coat of guaranty to caned debt
in case of death, ana shall he secured by good
and sufficient deed of trukv or mortgage exe-
coted by myself and wife on said ground and
improvements. The contract hereafter to be
entered into, if my application shall be ac-
eepted and contract entered into in writing
between myself and said companv, shall pro-
fide that the mortgage or deed of trust given
to secure the above note4 shall contain a
dause guarantying in case of my death be-
fore payment of any unpaid instalments, a
, release of unpaid portion of debt, if I shall
have promptly paid previous instalments and
kept other conoitions. As part of foregoing
condition I agree, before acceptance ox this
application and the execution of said con-
tract, to pass such medical examination as
may be required hy said company, and to pay
saia oompany the usual $3 fee therefor, and
to pay all fees for recording deed of trust or
mortgage."
The bill further alleged that thereupon
Kmmseig passed the medical examination
required, paia the fee demanded, and com-
plainants then executed ten certain promis-
iory notes, each for the sum of $360, dated
September 6, 1890, payable in monthly in-
•talments of $30, with interest at ten per
cent after due, forty-one of which instal-
ments, amounting to $1,230, have been paid;
on the same day, in order to secure these
notes, they executed and delivered to the de-
fendant a mortgage on the premises, with the
usual covenants of warranfy and defeasance,
reciting the indebtedness of $3,600, in manner
and form aforesaid, and containing the fol-
lowing clause:
"And it is further understood and agreed
by and between the said parties of the first
part, their executors, administrators, or as-
signs, and the said party of the second part,
[954]the Missouri *Kansas, ft Texas Trust Com-
^y, that in case the said Theodore A,
Krumseiff, one of the parties of the first part,
should die after the execution and delivery
of the said notes and this mortgage, and
within ten years thereafter, each and every
of the said notes remaining unpaid at the
said date shall be surrendered to the execu-
tors or' administrators of the said Theodore
M. Krumseig, one of the parties of the first
part, and this mortgage shall be canceled and
satisfied; provided, however, that said par-
ties of the first part shall have promptly paid
each monthly instalment that shall have be-
come due prior to his death according to the
terms of the notes hereinbefore mentioned,
and that he has not committed suicide within
two years, and has not without written con-
sent of the party of the second part visited
the torrid zone, or personally engaged in the
business of blasting, mining, or submarine
172 V. 8.
operations, or in the manufacture, handling,
or transportation of explosives, or enter^
into the service of any railroad train, or on
a steam or sailing vessel for two years."
The bill further idleged that the sole con-
sideration for the notes and mortfBLg^ was:
1st, the sum of $1,970, together with the in-
terest thereon from date until maturity of
the instalment notes; and, 2d, the clause in
the mortgage last referred to, which latter
was in fact an arrangement between the re-
spondent and the Prudential Life Insurance
Company of Newark, N. J., to save the for-
mer narmless from any loss that might oc-
cur to it in case of the death of the complain-
ant, Theodore M. Krumseig, during the term
covered by the mortgage, it was also alleged
that the defendant company had not complied
with the laws of the state of Minnesota gov-
erning life insurance companies, and that the
contract was therefore void. The bill prayed
that the mortgage be canceled of record and
the remaining notes should be delivered up
to them.
The answer denied that the contract was
usurious, and alleged that the sum of $1 .970.
received by complainants, with the legal in [355)
terest thereon and the cost of the guaranty
of defendant to cancel the loan in case of the
death of Theodore M. Krumseig during the
continuance of the contract, constitute *a
full and ample consideration for the notes
and mortgage in question, and that the same
was so unaerstood and agreed to by complain-
ants at the time of the execution of the con-
tract.
The circuit court did not consider it neces-
sary to pass upon the (question whether the
contract was one of life insurance, and hence
void, for the admitted fact that the defendant
company had not complied with the laws of
Minnesota respecting life insurance compan-
ies; but regarded the contract as one for the
security and payment of borrowed money,
and, under the facts, as usurious and void
under the statute of Minnesota ; and granted
the relief prayed for in the bill. 71 Fed.
Rep. 350.
The circuit court of appeals affirmed the
decree of the circuit court. Two of the
judges concurred in holding that the con-
tract was usurious, and that the complain-
ants were therefore entitled to the relief
prayed for. One of the two judges so hold-
ing construed the contract as one of life
insurance, and hence also void under the Min-
nesota laws. The third judge, while ap-
parently concurring in the view that the
contract was usurious, thought that the com-
plainants were not entitled to a remedy for
a reason which we shall presently consider.
40 U. 8. App. 620.
Usury is, of course, merely a statutory of-
fense, and Federal courts in dealing with
such a question must look to the laws of the
state where the transaction took place, and
follow the construction put upon such laws
by the state courts. De Wolf v. Johnson^ 10
Wheat. 367 [6 : 343] ; Scuddcr v. Union No'
Honal Bank. 91 U. S. 406 [23: 246].
Section 2212, Qeneral Statutes of Minne-
sota of 1894, provides that upon the loan of
47 &
155-858
SUPRBME COUBT OF THB UNITED tiTATEflL
Oct. Tmii
noney anj charge above ten per cent shall
tie usurious; and section 2217 provides that
Whenever it satisfactorily appears to a
Qourt that any bond, will, note, assurance,
pledge, conveyance, contract, security, or evi-
wmce of debt has been taken or received in
Tiolation of the provisions of this act, the
court shall declare the same to be void, and
enjoin any proceedings thereon, and shall or-
der the same to be canceled and given up/'
As was said in De Wolf v. Johnson, above
f956]cited, it does not, *in general, comport with
a negotiation for a loan of money that any-
thing should enter into the views of the par-
ties, but money, or those substitutes which,
from their approximation to money, circu-
late with corresponding, if not equal, facil-
ity. Still, however, like every other case, it
is open to explanation, and the question al-
ways is whether it was or was not a sub-
terfuge to evade the laws against usury.
The books contain many cases where artful
contrivances have been resorted to, whereby
the lender is to receive some other advantage
or thing of value beyond the repayment of
the loan with legal interest. Sometimes the
T cement has taken the form of the purchase
an annuity. More frequently there is a
collateral agreement whereby the borrower
is to purchase an article of ])ropert^ and to
fiay tiierefor more than its intrinsic value,
t has been frequently held that to constitute
usury, where tne contract is fair on its face,
there must be an intention knowingly to con-
tract for or to take usurious interest, but
mere ignorance of the law will not protect a
Sarty from the penalties of usury. Lloyd v.
co«, 4 Pet. 205 [7:833].
The precise character of the contract be-
tween the present parties is not clear. It
has some of the features of a loan of money;
in other respects it resembles a contract of
life insurance. But our examination of Its
various provisions and of their legal import
has led us te accept the conclusion of courts
below, ^hat the scheme embodied in the ap-
plication, notes, and mortgage was merely
a colorable device to cover usury. The su-
preme court of Minnesota has more than
once had occasion te consider this very ques-
tion. In the caae of Missouri, Kansas, d
Texas Trust Co. v. McLaohlan, 59 Minn.
468, that court said:
"The peculiar and unusual proyislons of
this contract themselves constitute intrinsic
evidence sufficient te justify the finding pf
the c^stence of every essential element of
usury, tn2r., that there was a loan; that the
money was te be returned at all evente, and
that more than lawful interest was stipu-
lated to be paid for the use of it. The only
one of these which could be seriously claimed
to be lodcing was that the money was not to
be paid back at all events, but only upon a
[857]contingency, *to wit, the continuance of the
life of McLachlan ; but the facts warrant the
inference that this contingency was not bona
fide, but was itself a mere contrivance to
cover usury. The mere fact that the contract
has the form of a contingency will not ex-
empt it from the scrutiny of the court, which
is bound to exercise ite judgment in deter-
476
mining whether the continmicy be a reil
one, or a mere shift and device to cover
usury."
Similar views were expressed in the sub-
sequent case of Mathews v. Missouri, Earn-
sas, d Texas Trust Co, [69 Minn. 318], 72 N.
W. 121, where the supreme court of Minneso-
ta again reached the oonduaion that the
notes and mortgage, forming a contract be>
tween the same trust company mnd one Mith-
ews, were usurious and void.
The next question for our consideratioB it
one not free from difficulty. Can a borrow
of money upon usurious interest BOceemtfoiQj
seek the aid of a court of equity in eaae»'
ing the debt without making an offer to r»>
pay the loan with lawful interest?
Undoubtedly the general rule it thai
courte of equity )iave a discretion on tUt
subject, and have prescribed the terms oa
which their powers can be brought into a^
tivity. They will give no relief to the bor^
rower if the contract be executory, exoqit oa
the condition that he pay to the lender the
money lent with legal interest. Nor, if the
contract be executal, will they enable Ima
to recover any more than the excess he htt
Said over the legal interest. Tiifam^ v.
boatman's 8av, Inst. 18 Wall. 375 [22: 868].
But what, in such a case, is held to be te
law by the courte of the state of MJnnetotaT
Under the stetutory provision already dted,
that whenever' it satisfactorily appears to a
court that any bond, bill, note, assuraaea
pledge, conveyance, security or erideBce of
debt has been taken or received In violatioa
of the provisions of this act the court sktll
declare the same to be void, and enjoin aij
proceeding thereon, and shall order the saat
to be canceled and given up, the suprcnt
court of Minnesote has repeatedly hM that
a plaintiff suing to caned a MinneBota eoa-
tract for usury need not offer to repay ^
money loaned. Boott ▼. Austin, 36 Ifiaa.
460; Exley v. BerryhiU, 37 Minn. 182; Metk-
ews V. Missouri, Kansas, d Tewas Trust Os,
[69 Minn. 318] 72 N. W. 121.
*Under stetutes providing that, in easeiol[3iQ
usurv, the borrower is entitled to rdief with-
out being required to pay any part of tkt
usurious debt or interest as a euaditioi
thereof, it has been hdd by the eourtt ol Nftr
York and of Arkansas that oourte of eqmitj
are constrained by the stetutes, aad mtt
grant the relief provided for therdn witk*
out applying the general rule that a bill tr
other proceeding in equity, to set adde or tf
feet a usurious contract, cannot be aaii-
teined without paying or offering to pay tkt
amount actually owed. WtZltome ▼. fit*'
hugh, 37 N. Y. 444; Lowe t. LoowUs, SS Ark.
454.
But it is strenuoudy argued, and of that
opinion was Circuit Judge Sanborn ia tht
present case, that Federal courte, in the a*
ercise of their equity jurisdiction, do Bot r»>
ceive any modification from the lep^tios
of the stetes or the practice of their eoartt
having similar powers, and that eovmqste^
ly no acl of the legislature of Miniiuota
could deprive the F^eral courte dttinf ia
equity of the power or relieve them of tkt
^ ^ *^ 17«U.^
MiatouBi, E. & T. Tbust Co. y. Erumskig.
858-801
Mj to enforce and apply the established
prindple of equity jurisprudence to this
esse, that he who seeks equity must do
cqiiity, and to require the appellees to pay
to the appellant what they justly owe for
principal and lawful interest as a condition
of granting the relief they ask.
We thimc it a satisfactory reply to such
t proposition that the complainants in the
present case were not seeking equity, but to
aTsil themselves of a substanUve nght un-
der the statutory law of the state. It seems
to be conceded, or, if not conceded, it is
plainly evident, that if the cause had re-
mained in the state court where it was origi-
ntlly brought, the complainant would have
been entitled, under the public poli<^ of the
state of Minnesota, manifested by its stat-
utes as construed by its courts,. to have this
UBorious contract canceled and surrendered
without tendering payment of the whole or
any part of the original indebtedness. The
defendant company could not, by removing
the case to the Federal court, on the ground
that it was a citizen of another state, de-
prive tiie complainants of such a substantive
I69]agfat With the policy of the state *legisla-
tion the Federal courts have nothing to do.
If the states, whether New York, Arkansas,
Minnesota, or others, think that the evils of
usury are best prevented by making usuri-
ous contracts void, and by giving a right to
the borrowers to have such contracts uncon-
ditionally nullified and canceled by the
courts, such a view of public policy, in re-
spect to contracts made within the state and
sought to be enforced therein, is obligatory
on the Federal courts, whether acting in
eouity or at law. The local law, consisting
of the applicable statutes as construed by
the supreme court of the state, furnishes the
rule of decision.
In Clark et at. ▼. Smith, 13 Pet. 195 [10:
123], it was said that "when the legislature
declares certain instruments illegal and void,
there is inherent in the courts of equity a
jurisdiction to order them to be delivered up,
and thereby give effect to the policy of the
legislature; that the state legislatures have,
certainly, no authority to prescribe the forms
or modes of proceeding in the courts of the
United States; but having created a right,
and at the same time prescribed a remedy
to enforce it, if the remedy prescribed is
substantially consistent with the ordinary
modes of proceeding on the chancery side of
the Federal courts, no reason escists why it
should not be pursued in the same form as
in the state courts; and that the undoubted
truth is that when investigating and decree-
ing on tities in this country the court must
deal with them in practice as it finds them,
and accommodate the modes of proceeding
to the nature of the case, and to the charac-
ter of the equities involved in the contro-
versy, so as to give effect to state legislation
and state policy; not departing, however,
from what Intimately belongs Ui the prac-
tice of a court of dumeerj."
The question in Brine v. Eartford F, In-
furance Co, 96 U. S. 627 [24:858], was
whether a state statute which allowed to the
172 V. 1.
mortgagor twelve months to redeem, after a
sale under a decree of foreclosure, and to
his creditor three months after that, con-
ferred a substantial right; and it was so
held, and that such right of redemption aft-
er side was as obligatory on the Federal
courts ^sitting in equity as on the state[360]
courts ; and .that their rules of practice must
be made to conform to the law of the state
so far as may be necessary to give full effect
to the right. The opinion of the court was
delivered by Mr. Justice Miller, who said:
"It is denied that these statutes of Illinois
(giving the right to redeem) are of any force
in cases where the decree of foreclosure is
rendered in a court of the United States, on
the ground that the equity practice of these
courts is governed solely by the precedents of
the English chancery court as they existed
prior to the Declaration of Independence, and
by such rules of practice as have been estab-
lished by the Supreme Court of the United
States, or adopted by the circuit courts for
their own guidance. And treating all the
proceedings subsequent to a decree which are
necessary for its enforcement as matter of
practice, and as belonging solely to the
course of procedure in courts of equity, it is
said that not only do the manner of conduct-
ing the sale under a decree of foreclosure, and
all the incidents of such a sale, come within
the rules of practice of the court, but that the
effects of such a sale on the rights acquired
by the purchaser and those of the mortgagor
and his subsequent grantees are also mere
matters of practice to be regulated by the
rules of the court, as found in the sources we
have mentioned.
"On the other hand, it is said that the ef-
fect of the sale and conveyance made by the
commissioner is to transfer the title of real es-
tate from one person to another, and that all
the means by which the title to real property
is transferred, whether by deed, by will, or by
judicial proceedings, are subject to, and may
be governed by, the legislative will of the
state in which it lies, except where the law of
the state on that subject impairs the obliga-
tion of a contract. And that all the laws of a
state existing at the time a mortgage or any
other contract is made, which affect the
rights of the parties to the contract, enter
into and become a part of it, and are obliga-
tory on all courts which assume to give reme-
dy on such contracts.
"We are of opinion that the propositions
last mentioned *are sound ; and if they are in [361]
conflict with the general doctrine of the ex-
emption from state control of the chancery
practice of the Federal courts, as regards
mere modes of procedure, they are of para-
mount force, and the latter must to that ex-
tent give way. It would seem that no argu-
ment is necessary to establish the proposition
that where substantial rights, resting upon a
statute which is clearly within the legislative
power, come in conflict with mere forms and
modes of procedure in the courts, the lat-
ter must give way, and adapt themselves to
the forms necessary to give effect to such
rights. The flexibility of chancery methods,
by which it molds its decrees so as to give
477
861-864
SUPBEMB COUBT OF THE UnITSD StATBS.
Oct. Tom,
appropriate relief in all cases within its ju-
risdiction, enables it to do this without vio-
lence to principle. If one or the other must
give way, good sense unhesitatingly reauires
that justice and positive rights, founded both
on valid statutes and valid contracts, should
not be sacrificed to mere questions of mode
and form.'* See also, to the same effect, the
ease of Holland v. Chdllen, 110 U. S. 15 [28:
52]. . ^^
Of course, these views are not applicable
to cases arising out of interstate commerce,
where the policy to be enforced is Federal.
Nor has it been found necessary to consider
whether the agreement between these parties
was, as a contract of life insurance, void be-
cause the defendant had not complied with
the statutes of Minnesota.
The decree of the Circuit Court of Appeale,
affirming that of the Circuit Court, it ao-
oordingly affirmed.
WASHINGTON MARKET COMPANY,
App*.,
V.
DISTRICT OF COLUMBIA.
(See 8. C. Reporter's ed. 361-871.)
Rules of Washington Market Company—
power to incur pecuniary liahiUtiee — etat'
ute of frauds,
1. The power to establish mlee and regola-
tions with respect to the Washington Market
Company, Incorporated by the act of Congress
of May 20, 1870, is given by | 16 to the city
government, and not to tho market company.
1. The governor, either with or without the
sanction of the board of public works of the
District of Colombia, had no authority un-
der the organic act of February 21, 1871, to
Incur a pecmlary liability with respect to
the Improvement of the market grounds, the
erection of market buildings, and the opera-
tion of the market, which were within the
province of the legislative assembly.
8. A conrt of equity will not release an In-
dividual from the operation of the statute
of frauds, which requires that interest In
lands be created by an instrument in writing,
and impose an equitable lien upon land In
favor of one who makes improvements there-
on, knowing that the title Is In another, —
especially where the money is expended under
an express understanding with reference there-
to, had with the owner, — but will leave the
party to the remedies. If any, which a court
of law provides.
[No. 83.]
Argued December 9, 12, 1898. Decided Fan-
uary S, 1899,
ON APPEAL from a decree of the Court of
Appeals of the District of Columbia af-
firming the decree of the Supreme Court of said
District dismlRsing a suit m equity brought
by the Washington Market Company against
the District of Columbia, seeking a decree
against the District for losses occasioned by
it to the market company by the abolition of
478
tolls, etc., and to restrain the District fron
prescribing regulations for such market, ele.
Affirmed,
See same case below, 6 App. D. C Si.
Statement by Mr. Justice IXnkltes
*The Washington Market Company wis iB-[3tt]
corporated by act of Congress approved May
20, 1870 (16 Stat at L. 124, chap. 108). As-
thority was conferred up<m the company ti
construct suitable buildings and operate a
public market on the site of the ''OtAa Mar^
ket Space," situated in the northwest «eetiflB
of the citT of Washington, between Seveotk
and Ninth streets and B street and Pen*
sylvania and Louisiana avenues. With tht
exception of the sixteenth section, the pfo*
visions of the statute related solely to te
public market thus authorised, and the op«*
ation and duration of the franchise.
The sixteenth section is as follows:
''Sec 16. And he it further enaeied. That
the city government of Washington shaD
have the right to hold and use, under soek
rules and r^ulaiions as the said corporatioi
may prescrioe, the open space at the iidv^
section of Ohio and liouisiana avenues witt
Tenth and Twelfth streets, as a market lor
the purchase and sale of the following artr
ides: to wit> hay, straw, oats, corn, eon
meal, seed of all kinds, wood for sale tnm
the wagon, cattle on the hoof, swine on te
hoof, country produce sold in quaatitisi
from the wagon, and such other bulky and
coarse articles as the said corporation nay
designate. And from and after sixty diyi
from the passage of this act markedif
of the proaucts named herein ehall be tf-
duded from Penn^lvania and Louisiaas
avenues and the sidewalks and pavenMte
thereon."
The present litigation was begun on Jan-
uary 17, 1892, by the filing, on behalf of tht
Washington Market Companjr, of a Un ii
the supreme court of the District, the it; _^
fendant *named therein being the District if[9n
Columbia. The bill averred that the com-
plainant was vested by the 8ecti<Hi aboft
quoted with authority to establish the nks
and regulations therein referred to for te
government of the wholesale market anther*
ised to be established. It was also averrti
that, under authority of what was dainisd Is
be a contract arising from oorrespoodswi
had with the District, oomplainant, in 1871.
entered into possession of a part of the op«
market spai» referred to in said seetioB li
and, in 1886, of the entire space. TW co^
respondence relied on is set out in tt*
margin.t It *was alleged that ttt% eomplafa^lKI
tWashlngton Market Compuaj,
November 8, Wl.^
Hon. Henry D. Cooke, Qovemor of tke DIsKrM
of Columbia.
Sir : In section 16 of the barter of tMi em-
pany of May 20. 1870. the open space at tfet to*
tersectlon of Ohio and Louisiana avenMS vtt
Tenth and Twelfth streets Is aaslgBed as •
market for cattle and ¥ulky and coarse aitldis
to be sold In quantities from the wacoa. and tto
marketing of such products In Pcnnsylvaali
and Louisiana avenues Is prohibited.
Notwithstanding this prohibition dcelert an
continuing to occupy Louisiana av«tt* to ^
17t 1I*»
WAMEXseroK Mabkbt Go. ▼• District of Coluhbia.
864,
•at graded the grounds and made valuable
irtruGtares thereon ; that it had operated and
wu still operating a wholesale market there-
on, and tfaiat it had received and was receiv-
WSJng the sources of revenue mentioned *in the
alleged contract, except as to certain charges
which, it was averrecC defendant had wrong-
fully abolished.
It was charged that, not only by the aboli-
tion of tolls, above referred to, but by other
acts of interference by the District and also
b^ recent public 'assertions of an exclusive
right to possess and regulate said market^
the receipts from the operation of the same
had been greatly diminished, so that the ex-
penses of maintaining the market had been
largely in excess of the sum received from its
operation. It was prayed that an account
might be taken and the District decreed to
pay the losses occasioned by it; that the
linee of law and to the great injury of prop-
«rt7 holders on that avenne. This company
hai been onable to enforce the prohibition be-
came the open space above referred to has not
been properly prepared to enable dealers to oc-
cop7 the gronnda for market purposes as pro-
Tided in the law.
B7 the act of Congress the Washington Mar-
ket Company is entitled to establish the rules
tnd regulations which shall govern the market
upon the open space, but it is a question whether
or not It was the intention of Congress that
thli company ahould derive any income there-
from.
Under these circumstances, to meet a press-
ing public necessity, this company proposes,
with your permission, properly to grade the
grounds and to place thereon suitable platforms
of inexpensive construction, which will enable
tile marketmen to do business on the open space
u contemplated by the act, charging them for
the use of their stands such sums as you and
the District authorities may prescribe, not to
exceed the interest on the actual outlay and
the actual expenditures for keeping the market
hi order.
There can be no possible objection to this
course of action, and we trust you will give it
yonr approval at once, as there Is a necessity
for immediate action.
We have the honor to be, very respectfully,
T. C. Connelly,
Hallett Kllboum,
Adole Cluss,
Wm. B. Chandler,
Committee of the Waahlngton Market Company.
Approved, subject to such regulations as the
legislative assembly may hereafter prescribe.
H. D. Cooke, Governor.
Washington Market Company,
April 8. 1872.
To the Governor and Board of Public Works of
the District of Columbia :
The Washington Market Company is now in
possession of the open space at the intersec-
tion of Ohio and Louisiana avenues with Tenth
tnd Twelfth streets. In accordance with the six-
teenth section of the act of Congress of May 20.
1870, and the arrangement made with the gov-
ernor of the District, as per agreement of No-
vember 8, 1871, as followa
(Here follows a copy of the letter and ap-
proTsl printed above.)
Since taking possession of the open space thus
■uigned for a wholesale market the company
haTe purchased from the District authorities
the buildings thereon belonging to the city of
Wishlngton, have suitably graded the surface,
ind have also commenced the erection of struc-
tares thereon necessary for wholesale market
purposes, having already completed an open
mtrket or platform shed on the north side of
B street over 200 feet long : also an open plat-
form shed 200 feet long on the north side of
the grounds, with eating-house and storehouses,
tad have In addition made arrangements to
«rect a large open building for loads of hay,
ITS IT. 8.
grain, and wood, and suitable stables, pens, and
cattle yards, as soon as the concrete paving com-
pany, now occupying the western portion of
said ground, shall vacate the same: all to be
done to the satisfaction of the District authori-
ties, and in such manner as to furnish credit-
able accommodations for a wholesale market.
In order to more effectually carry out the
foregoing arrangement, entered Into November
8» 1871, the company now propose to the gov-
ernor and to the board of public works, which
by law has control of the streets and avenues
of the District, that the said company shall be
allowed to collect of dealers In said wholesale
market the following sums :
Amount
per day.
Each one-horse team $0.10
Each two-horse team if^
Each three-horse team 20
Each four-horse team 2&
Each head of neat cattle 20
Each cow- and calf 25
Bach swine 05
Each sheep 01^
The market company also to charge such rea-
sonable rent for storage as may be agreed upo&
with the parties using their buildings.
The company will also keep an office open at
all hours of the day and night for the accommo-
dation of dealers, where produce can t>e meas-
ured and weighed, and will furnish suitable
watchmen to take charge of the market and
collect the revenues thereof.
BYom the revenues collected the market com-
pany will retain sufficient to pay all expenses
of managing and keeping in repair and good
condition the buildings and grounds, with ten
per cent annually on the cost of Improvement*
(which are to be made at the company's charge),
and the company shall pay over to the District
authorities the residue or balance of the reve-
nue by them collected.
If by authority of Congress the company
should at any time be dispossessed of the use
and occupancy of the market grounds, it shall
be entitled to receive a fair compensation for
its buildings and improvements thereon.
Washington Market Company,
By M. G. Emery, President.
Board of Public Works. District of Columbia^
Washington. April 26, 1874.
The Washington Market Company:
In reply to your communication of April 8,.
1872, I have to inform you that the board have
this day passed the following vote: "To ap-
prove the arrangement with the Washington
Market Company proposed in the pompany*s
letter of April 8, 1872, relative to the open space
at the intersection of Ohio and Louisiana ave-
nues and Tenth and Twelfth streets, used as a
wholesale market : this arrangement not to
prejudice any lawful future action of the board*
of the legislative assembly, or of Congress."
Very respectfully,
Alex. R. Shepherd,
TIce President.
47»
il5-8(»
Supreme Coubt of thb Unitbd Statbii.
Oct.
District might also b« restrained from pre-
scribing or attempting to prescribe rules and
regulations for said market, from interfering
with the sources of revenue mentioned in the
contract, and from forcibly ousting or resort-
[366]ing to legal proceedings to obtain 'possession
of the premises. General relief was also
prayed.
The answer of the District asserted the
invalidity of the alleged contract; averred
that the District alone was entitled to occupy
said market space and to establish rules and
regulations respecting the conduct of the
market; and further averred the legality of
any action taken by or on its behalf respect-
ing said market space and the tolls imposed
in the operation of the market.
The court entered a decree dismissing the
bill ; and, on appeal, its action was affinned
by the court of appeals of the District.
6 App. D. C. 34. An appeal was then taken
• to uiia court.
Mr. William Bin&ey for appellant.
Messrs. S. T. TJ&onuM and A. B. DuvaU
for appellee.
[866] *Mr. Justice Wliite, after making the
foregoing statement, delivered the opinion
of the court:
It is difficult to determine precisely the
theory upon which appellant predicates its
right* to relief at the hands of a court of
equity. In the bill what is termed a "title
to possession" of the market grounds is as-
serted to be in complainant, and its right
not only to prescribe rules and regulations
with r€«pect to the market is averred, but
also a right to the sources of revenue men-
tioned in the alleged contract. Despite,
however, the position thus taken in the plead-
ings, and the fact that the complainant de-
manded that the District be compelled to ac-
count for the losses which, it is alleged, the
complainant had sustained by ^ claimed
wrongful interferences of the District, coun-
sel, in the argument at bar, bases the right
to relief solely upon the prayer for general
relief contained in the bill. In consequence
of this abandonment of the specific gp*ounds
stated in the bill, the argument at bar is
that while the market company, under the
[867]section above referred to, had not 'obtained
a general power to r^^late and control the
market, it was by said section vested with
the power to locate and assign stands there-
in, and that the facts averred and shown by
the proofs established an implied contract
by which the District constituted the com-
pany an agent to mana^ge and control the
market and collect and disburse the revenues
therefrom. And it is then argued that from
these facts such a situation resulted as that
it would be inequitable to permit the Dis-
trict to interfere in any wise with the posses-
sion, control, and management of the market
without antecedently "reimbursing appellant
for moneys expended as its agent in the ad-
ministration of the wholesale market of
Washington city."
Disregarding the fact that the claims as-
serted in the pleadings on the one hand and
at bar on the other are divergent, we shall
480
examine the contentions urged in the
in which they have been made.
As to the claim that the market eompeuf
is the corporation empowered 6y sectiom 19
of the charter to establish rtUes and refills-
tions tvith respect to the market therein «••
thorized.
We do not find in the text of the statvtc
anything justifying a constmetion of tht
words ^^rules and regulations" as empkyBd
in section 16, which would attach to them a
less broad signification than is ffiven to tht
word "regulations" in the second sectioii, is
which section, with reference to the pnblk
market authorised to be constmetea smA
maintained by the Washington Market Com-
pany, it was provided that "the municipal
government of said citr shall at aU tins
have the power to make and oiforee soek
r^^ations with regard to said market sad
the management thereof as in their Judg-
ment the convenience, health, and saftSy of
the community may require." The fact that
the power to establish and enforce regaU-
tions with respect to the market to be ereettd
by the market company was vested in tht
municipality, and the further fact that s
voice in the establishment of the amomt of
rent to be paid fer stidls in the market of
the company was expressly conferred vom
the District authorities, prevents the ianr
ence that, with reference to the market wUck
the city itself was "to hold and use," the rftj J
was deprived *of the power to make rales aiM[l8
regulations, or that a broad and comprehcflh
sive authority to establish such rules vad r^
ulations was vested in the market eompaay.
The grammatical structure of the soncBei
also supports the view that the eorporatke
referrea to in the sixteenth section was tht
city government, for the neiu^st anteeedtat
to the word "corporation" is the city goven-
ment of Washington, the market conpaiy
not being named at all in the section.
As respects the alleged oonirmet stated to
the }nU to have been imHaied in 1971 md
perfected in 1874.
By the written propoeal concerning tie
use and occupancy of the open market tpaaa
bearing date November 8, 1871, addratttd ti
the governor of the District, the Wathiagiti
Market Company stated: "This company pr»>
poses,with your permission, properly to crsdi
the grounds and to place thereon snltablcpbi'
forms of inexpensive construction, whSeh vfl
enable the marketinen to do husineas oa ttt
open space as contemplated by the act, ^^'T
ing them for the use of their stands tea
sums as you and the District authoritiet ws^
prescribe, not to exceed the interest oa tie
actual outlay and the aetn^ ezpenditnei Iff
keeping the market in order." And it «st
added: "There can be no poesible ohjccCiti
to this course." Upon this letter was p!*"'
the following indorsement : "Approved, t^
ject to such regulations as the lefidativt se*
sembly may hereafter preeerihe. H. B*
Cooke, governor,"
Irrespective of what may have beai tie
power possessed by the governor
the market grounds or market, it is
there is noUiing in this proposal of the aa^
ket company, or in the qualified approval ^
178 U.*
1898.
Washington Market Co. y. Distbict of Columbia.
808-371
the wrernor^ linporting a surrender by the
legislative a?senibly of any rights which by
Itw were vested in it, such as the power to
establish and alter at pleasure the rules and
regulations with respect to the manner of oc-
eupaocy and the tolls to be exacted for the
use of stands. Certainly no easement was at-
temoted to be created in favor of the market
company in the land; at most, there was a
mere revocable license to hold and use the
grounds. So, also, the language of the com-
NO^unication was carefully *framed to permit
no inference that the District would incur
any pecuniary liability for the cost of grad-
ing or the erection of the "inexpensive" plat-
forms. The market company was evidently
ioterested in the placing of the ffrounds in
suitable condition for occupancy by dealers,
and was willing to assume the risk of mak-
ing expenditures, in reliance upon fair treat-
ment and good faith on the part of the Dis-
trict authorities.
The communication of April 8, 1872, evi-
denced the fact that the market company had
gone into possession of the gp*ound8, had
graded the surface, and erected two plat-
forms, one of which contained an eatinghouse
and storehouses. The company solicited au-
thority to collect certain tolls and charges,
including storage fees, and agreed to keep an
office upon the grounds and furnish suit-
able watchmen, and after applying the reve-
nues to the expenses of management and keep-
ing in repair and gdod condition the grounds,
with ten per cent annually on the cost of im-
provements, promised to pay over the balance
of revenue, if any, to the District. That the
company did not consider itself in the li^ht
of an agent or employee of the citv in making
improvements on the grounds is shown in the
communication. Thus, the buildings for the
use of which it solicited authority to charge
storage rent are referred to as "their" build-
iujgs. It is expressly stated in connection
with the stipulation that the company might
retain from the revenue ten per cent annually
on the cost of improvemente, that such im-
provements were "to be made at the com-
Siny's charge;" and it is also stated that
e company should be entitled to receive a
fair compensation for "its" buildings and im-
provements on the market grounds, if bv au-
thority of Congress the company should at
any tune be dispossessed of the use and oc-
cupancy of the grounds. While this latter
arrangement is said to have been orally ac-
quies^ in, it was not until April 6, 1874,
that formal official action was teken approv-
ing the same, with the proviso, however, that
the arrangement was not to prejudice any
lawful future action of the board, of the leg-
islative assembly, or of Congress."
Assuming that authority was vested in the
70]govemor and *board of public works to enter
into the arrangement suggested in the second
proposition of the company, it is clear that
thereby no easement was created in the land
in favor of the market company, and the com-
pany recognized the fact that Congress might
lawfully dispossess the market company
from the use and occupancy ot the grounds.
The qualified acceptance of the proposal at
most only constituted an implied assurance
172 V. 8. U. S., Book 43. 81
on the part of the governor and board of pulw
lie works that the company, so far as those
oflicials had the power, would not be disturbed
in ite possession without just cause. There
was no agreement that a source of revenue
would be supplied adequate to meet the ex-
penditures, or that the District assumed lia-
bility for any deficit in the revenue. If, how-
ever, the correspondence and action taken
thereon could be construed as importing an
agreement to impose a pecuniary liabili^ on
the District, an inspection of the terms of tha
organic act of February 21, 1871 (16Stet. at
L.419,chap.62) ,proyiding a government for th«
District of Columbia, clearly establishes that
it was without the power of the officials un*
dertekin^ to enter into the arrangement.
The making of regulations with respect to th«
use of the market grounds and the esteblish-
ment of a teriff of charees, with the power to
subsequently alter or abolish the same, and
the authority to incur a pecuniary liability
with respect to the improvement of the mar-
ket grounds, the erection of market buildinffiy
and the operation of the marked were, be-
yond question, within the province of the leg-
islative assembly; and any/ assumption on the
part of the governor, either with or without
the sanction of the board of public works, of
authority to conclude the legislative assem-
bly in such matters, would have been purely
ultra virea.
There was nothinff in the conduct of the
District subsequent to 1874; which, if it pos-
sessed the power, could be construed as a rat-
ification of the alleged contract or as import-
ing binding efficacy upon the District.
There was certeinly no recognition of the
market company as a mere employee making
expenditures and disbursing revenues solely
as the agent of a principal, and the Dis-
trict authorities were never notified that the
*market company would look to it for repay-[3Ti]
ment of any deficit in revenues. So long as
the company was willing to care for the
grounds and to operate the market, while the
annual revenues were less than the ordinary
expenses of management, as appears to have
been the case, without calling upon the Dis-
trict to assume the responsibilify for a def-
icit, there was no occasion for the District
to take decisive action. The furnishing of
accounts, beginning with 1888, possesses no
weight, as manifestly the Distrid; was inter-
ested in the ascertainment of the fact wheth-
er or not there was any surplus revenue to
which it was entitled.
The facte in the case at bar bear no analo-
gy to those which were present in the cases
referred to in Pomeroy*8 Eouity Jurispru-
dence (vol. 1, i 390), to whicn our attention
has been directed by counsel for the appel-
lant. There individuals, acting on the sup-
position that they had a title to or interest
in lands, expended money in erecting buildings
or other improvements thereon, while the
real owner stood by and made no protest.
No ground exists for the pretense that Buch
was the case here. A court of equity will not
relieve an individual from the operation of
the statute of frauds, which requires that in*
terest in lands be created by an instruroeni
of writing, and impose an equiteble lien up*
i71-a74
Supreme Ck>URT of the United States.
Oct. Term,
«n land in favor of one who makes improver
ments thereon, knowing that the title is in
another,— especially where the money is ex-
pended under an express understanding with
reference thereto had with the owner, but will
leave the party to the remedies, if any, which
a court of law provides.
These views dispose of the case and require
an affirmance of the decree of the Court of
Appeals of the District of Columbia. Decree
affirmed,
[872UAMES £. SIMPSON, James E. Simpson,
Jr., Alfred H. Simpson, and Willie E.
Simpson, Copartners under the Firm
Name of J. E. Simpson ft Co., AppU.,
V.
UNITED STATES.
(See 8. a Reporter's ed. 872-888.)
€hiaranty, token not implied in a written con-
tr<ict,
A gaaranty of the nature of the soil onder the
site of a proposed dock is not Implied in a
written contract to construct for the United
States a dock according to specifications, with-
in a designated time, for an agreed price,
upon an "available" site to be selected by the
United States, where the bidder knows that
a test of the soil has t>een made, but does not
require a warranty that the ground selected
shall be of a defined character.
[No. 51.]
Argued October 19, 20, 1898, Decided Janu-
ary 5, 1899.
APPEAL from a judgment of the Court of
Claims rejecting a claim of James E.
Simpson et al. for extra services rendered
and material furnished in the construction of
a dry dock for the United States. Affirmed.
See same case below, 31 Ct CI. 217.
Statement by Mr. Justice Whites
This appeal presents for review the action
of the lower court rejecting a claim of the ap-
pellants. (31 Ct.Cl. 217.)
The essential facts as found by the court
below are summarized as follows: Pursuant
to an act of Congress appropriating a stated
^ sum for building two "timber dry docks to
be located at such navy yards as the Secre-
tary of the Navy may indicate" (24 Stat, at
L. 484), the Navy Department on April 19,
1887, advertised for proposals for the build-
ing of two dry docks to be located, one at
the Brooklyn and the other at the Norfolk
Navy Yard. The advertisement, whilst
pointing out the general nature of the struc-
tures and their dimensions, contained no de-
[373]tailed plan of *the contemplated work, but
announced that "dry-dock builders are in-
viterl to submit plans and specifications with
proposals for the entire construction and
their completion in all respects," and, more-
over, it was said "bidders will make their
plans and specifications full and clear, de-
scribing the kinds and qualities of the ma-
terials proposed to be used." Besides, the
482
advertisement stated that "for informatSoi
in regard to the location and site of tL*
docks bidders are referred to the command-
ants of the Brooklyn and Norfolk Navy
Yards/' On May the 23d, pending the pub*
lication, the Navy Department addressed to
the commandant of the Brooklyn Navy Yard
the following letter :
"To enable the dry-dock builders ^dio may
apply at the yard under your command for
information concerning the proposed new
timber dry dock, particularly regarding the
foundation of the site selected for the dock,
I am instructed by the chief of the bureaa
to request you to direct the civil engineer
of the yard to have the necessary borings
made at once with a view of ascertaining the
nature of the soil to be excavated for Um pit
or basin of the dock, as well as to what depth
if any, below the line of water mark it will
be necessary to have the piling driven to te>
cure a proper foundation for the structure."
Conforming to these instructions, Mr.
Asserson, a civil engineer attached to the
Navy Department, made an examination of
the soil, making borings to a depth of fnM
thirty-nine to forty-six feet at a distance of
fifty feet along a certain length in the mid-
dle of a portion of the ground of the nary
yard. The result of these borings was de-
lineated on a profile plan purporting ta
show the character of the underlying soil
It may be conceded that this plan incucated
that the soil at the point referred to was
stable and contained no quicksand. Sirap-
son A Co., who were experienced dock build-
ers, applied for information^ as to the pro-
posed site, and a copy of the plan was hand-
ed to the firm. Simpson A Uo. never knev
of the above letter until after this suit wti
brought, and they did not intimate to any-
one niat the bid which they proposed to sub-
mit for doing the work was to be conditioned
on the existence *in the soil of the site to bt{8TI!
selected of the characteristics indicated by
the profile plan. It is true, however, thst
Simpson ft Co. in making up their estimate
and m preparing their specifications took into
view the presumed conaition of the soil, sod
that the amount of their bid was made up
upon the assumption that the soil nnderi^n^
the dock would prove to be like that indi-
cated by the plan.
In June, 1887, Simpson k Co. bid for the
construction of the docks. Tlie first tvo
sentences of their proposal were as follow*:
"The undersigned, J. E. Simpson k C^
contractors and builders of Simpson's patent
timber dry docks, of the city of New York,
in ^e state of New York, hereby offen to
furnish, under your advertisement, dstid
April 19, 1887, and subject to all the recre-
ments of the same, and of the specifies tioM,
instructions, and plans to which it rcfcnih
two timber dry docks of like dimensions, bi
be built in accordance with plans and tprct-
fications herewith submitted. One of laid
dry docks to be located at the United Ststfs
navy yard, Brooklyn, in the port of K*w
York, and the other at the United Ststei
navy yard, Portsmouth, in the port of Xor*
folk, Va., upon available sites to be prond*
1610.
Simpson v. Ukiteo States.
^74-877
ed bj tbe gorermncgt, for the sum of one
miDion and sixty-one thousand six hundred
($1^1,600) dollars. United States cur-
ItBCJ."
The price asked for the two docks was
Tery near the sum authorized by Congress
to be expended for the purpose.
The specifications referred to were pre-
pared by the firm, and contained the follow-
ing recital:
^TiOcation. — ^These dry docks shall be lo-
cated as follows : One at the United States
nayy yard, Brooklyn, in the port of New
Tone, and the other at the United States
navy yard, Portsmouth, in the port of Nor-
folk, Va., upon available sites to be provided
by the government. The length of each dry
dock, respectively, shall be five hundred
(500) feet inside of he^id to outer gate sill.''
Such other portions of the Specifications
as are material to be noticed are contained
in the subdivision headed '^General Construc-
tion/* and are as follows:
75] •**Piles. — ^All foundation, brace, and cross-
cap piles shall be of sound spruce or pine,
not less than twelve inches diameter at butt
and six inches at top, and of such length as
may be required for the purpose, and well
driven to a firm bearing.
"Sheet piling for cut-offs shall be of sound
spmce, pine, or other suitable material, four
inches and five inches in thickness, as shown
on plans, dressed to a uniform thickness,
grooved and fitted with white-pine tongues,
driven close and to such depths as may be
found necessary to make good work, and
doeely fitted to square piles at intersections.
• ....•..
"Should the character of -the bottom be
found such as to warrant a modification of
the pile system of floor construction, a con-
crete bed of not less than six feet in thick-
ness may be substituted for the foundation
piles, and the floor stringers and cross tim-
bers imbedded therein and flrmly secured
thereto with iron bolts and anchors."
The bid was accepted and a written con-
tract was executed. In this contract recital
was made of the advertisement for propos-
als, the making of the bid with accompany-
ing specifications and the acceptance there-
of, and these documents thus r^erred to
were annexed and nmde a part of the con-
tract
The contract contained in Its flrst clause
the following:
"The contractors will, within twenty days
after they shall have been placed in pos-
session and occupancy of the site by the party
of the second part, which possession and occu-
pancy of the said site during the period of
cons^cUon, and until the completion and
delivery of Uie work hereinafter mentioned,
shall be secured to the contractors by the
party of the second part, commence, and
within twenty-four calendar months from
Budi date, construct and complete, ready to
receive VMsels, at timber dry dock, to be lo-
cated at suc^ place on the water line of the
navy yard, Brooklyn, New York, as shall be
designated by the party of the second part;
and will, at their own risk and expense,
172 V. 8.
furnish and provide all labor, materially
tools, implements, and appliances of every
description — all of which shall be of the best
kind and quality adapted for the work as de-
scribed in the ' specifications — ^necessary *or[876]
requisite in and about tiie construction of
said dry dock."
The seventh clause of the contract is stai*
ed in the margin.f
In addition, penalties were stipulated for
delay in the performance of the work, and a
discretion was vested in the Secretary of the
Navy to allow an extension of time for any
failure to complete the dock within the con-
tract period.
The work was to be paid for in instalments
upon proper estimate, as it progressed, and
ten per cent was to be retained by the gov-
ernment until its final completion.
The construction was commenced in No-
vember, 1887, and 'after considerable labor 1 377]
had been expended and material used, ''about
August 31, 1888, it first became apparent
that a portion of the dry dock structure had
sunk and moved inward towards the exca-
tTbe construction of the said dry dock and
Its accessories and appurtenances herein con-
tracted for shall conform In all respects to and
with the plans and specifications aforesaid,
which plans and 8i>eciflcatlon8 are hereunto
annexed, and shall be deemed and taken as
forming a part of this contract, with the like
operation and effect as If the same were incor-
porated herein. No omission In the plans or
specliicatlons of any detail, object, or provision
necessary to carry this contract Into full and
complete effect. In accordance with the true In-
tent and meaning hereof, shall operate to the
disadvantage of the United States, but the
same shall be satisfactorily supplied, performed,
and observed by the contractors, and all claims
for extra compensation by reason of, or for or
on account of, such extra performance, are here>
by and In consideration of the premises, ex-
pressly waived; and It Is hereby further pro-
vided, and this contract Is upon the express
condition, that the said plans and specifica-
tions shall not be changed In any respect when
the cost of tuch change shall exceed five hun-
dred dollars, except upon the written order of
the Secretary or acting Secretary of the Navy ;
and If changes are thus made the actual cost
thereof, and the damage caused thereby, shall
be ascertained, estimated, and determined by a
board of naval officers appointed by the Secre-
tary of the Navy, and the contractors shall be
bound by the determination of said board, or a
majority thereof, as to the amount of Increased)
or diminished compensation, which tkey (the
contractors) shall be entitled to receive, i( vui.v.
In consequence of such change or changes; (t
being further expressly understood and agreed
that such working plans and drawlngSr
and such additional detailed plans and speclfl'
cations as may be necessary, shall be fur*
nished by and at the expense of the contractors^
subject to the approval of the chief of the
Bureau of Yards and Docks, and that If dikrlng
the prosecution of the work It shall be found
advantageous or necessary to make any change
or modification In the aforesaid plans and speci-
fications, such change or modification must be
agreed upon In writing by the contractors ar.il
by the officer In charge of the work, the agree-
ment to set forth fully the reasons for sueh
change and the nature thereof, and to be subject
to the approval of the party of the second part.
483
3 1 7-^79
SUPREMB COUBT OF THE UNITED SXATaib.
Oct. Teim.
Tfttion, and had thereby sustained damage,
and that this damage was caused by encoun-
tering a stratum of water-bourne sand, in
the excavation, which flowed from beneath
and undermined the banks forming the side
of the dock excavation." Thereupon it was
ascertained that the "sand stratum herein-
before described underlay the entire area of
the site of the dock, and beginning at a depth
of from twenty-six to thirty feet below the
grade of the side extended to a depth of sev-
enty feet below the same. . . .Between
August, 1888, and October, 1889, portions of
the dry-dock structure completed by the
plaintiffs during that period continued to
settle and move inward towards the excava-
tion. . . . This was caused by the pres-
ence of the said sand stratum which con-
tinued to undermine the side of the dry-dock
excavation; hence, portions of the dry-dock
structures were destroyed or gp*eatly dam-
aged. . . Durinff the period aforesaid the
sand flowed into fiie excavation made for the
dry dock, delaying the completion thereof, and
increased the cost of the dock. The charac-
ter of the soil underlying said site was not
as it appeared in the proflle plan in the re-
port of the said Asserson, in so far as the
said sand stratum is concerned, and both
parties were surprised in encountering the
difficulty and expense caused by the presence
of the said sand stratum. After the discov-
ery of the said sand stratum, as aforesaid.
Commodore Harmony, Chief of the Bureau
of Yards and Docks, inspected the work upon
the site of the dry dock, and directed the
plaintiffs to complete the dock. By reason of
the presence of the said stratum of sand and
the difficulties caused thereby the completion
of the dock was delayed seven months."
Simpson & Co. in the meanwhile addressed
a letter to the Navy Department, stating
that, owing to ^'circumstances beyond our
control," the existence of the quicksand, they
had been unable to complete the dock with-
in the time flxed by the contract, and re-
questing an extension of four months. This
request was granted.
[378] *''During the entire period in which the
plaintiffs were engaged in the construction
of the work they did not at any time give
notice of any claim or claim or demand any
sum of money on account of any extra work
or materials furnished by them in or about
the construction of the said dry dock; nor
was any officer or agent of the government
apprised of such a claim until the receipt
of the letter of Messrs. Goodrich, Deady, &
Goodrich, attorneys for the assignees of the
plaintiffs, dated April 11, 1893."
As the work progressed estimates thereof
were made as required by the contract, and
the amount, less the ten per centum reserved,
was regularly paid to the contractors. More-
over, additional piling being required, a sup-
plementary estimate thereof was made, the
price for the same flxed, and the amount was
paid ix) the contractors.
The dock was completed May, 1890, and a
board ^as appointed to inspect it, and upon
a favorable report the dock was finally re-
ceived by the United States, and a claim for
484
ten per cent, which had been retained xm tkt
amount of the whole work, was presented If
the contractors, was audited and paid, ad s
full and flnal receipt was given on Jose 17.
1890. The relations between the eoDtnet-
in^ parties in reference to the dock then ter
minated, and no question was raised betwta
them as to any extra claim or allowance id-
til nearly three years after the final settle-
ment, that is, on April 11, 1893, when the tt-
torn^s of the Simpson Di^ Tkxk Company,
as assignees of the daim of J. E. Simpson 4
Co., addressed a letter to the Secretary of Um
Navy, claiming for extra services Tendered
and material furnished in the constmetiae
of the dry dock. This claim was based opoa
the theory that the site of the dry dock «ti
not "available, owin^ to the unfavorable sad
uTistable character of the soil," and henee
that the government was liable to the eon-
tractors in the sum of $174,322. This de-
mand not having been complied with, the
present suit was Drought, the claim being for
a much larger sum than that stated in the
letter of the attorneys, and being made on
behalf of the members of the firm of J. S.
Simpson ft Co., as owners tiiereof.
* Messrs, James H. Hajdem and /oeepk
K. McCammon for appellants.
Messrs, Creorse HImes Gonnam %Mi
Louis A, Prodi, Assistant Attorney GeMrsl,
for appellee.
*Mr. Justice Wkite, alter making the[
foregoing statement, ddivered the opiaka
of the court:
Considering the facts above stated, it is
at once apparent that the claim against the
United States can only be allowed upon the
theory that it is sustained by the writtea
contract, since if it be not thereby sancUoned
it is devoid of legal foundation. The mk
by which parties to a written contract an
bound by its terms, and which holds thai
they cannot be heard to vary by parol its ex-
press and unambiguous stipulations, or m-
pair the obligations which the contract ca-
genders by reference to the negotiatiom
which preceded the making of the costraet
or by urging that the pecuniary result whkh
the contract has produced has not come nf
to the expectations of one or both of the par-
ties, is too elementary to reouire anvthiar
but statement. The principle wax ckariT
announced in Brawley v. United 8Utm, H
U. S. 173 [24: C24], where it was Mud:
''All this is irrelevant matter. The wrA-
ten contract merged all previous negotiatioa^
and is presumed, in law, to express the final
understanding ojf the parties. If the cds-
tract did not express the true agreemcnU H
was the claimant's folly to have signed it
The court cannot be governed by any nA
outside considerations. Previous and eoa-
temporary transactions and facts maj he
very properly taken into consideration to a**
certain the subject-matter gf a contract, asd
the sense in which the parties mav han
used particular terms, but not to alter «r
modify the plain language which thej have
used."
17t U &
189&
SiMPMnr Y. Unttbd Statss.
879-882
Before measuring the claim by the con-
tract, it is essential to clearly define the ex-
act predicate upon which the demand neces-
•arily rests. Reducing all the contentions of
I80]the claimant *to their ultimate conception,
tliey amount simply to the proposition that
the United States by the written contract
guaranteed the nature of the soil under the
nte of the proposed dock, and assumed the en-
tire burden which might arise in case it should
be ascertained, during the progress of con-
structing the dock, that the soil under the se-
lected site differed to the detriment of the con-
tractor from that delineated upon the profile
plan which had been made bv an officer of the
United States. Considering tne contract itself,
it is clear that there is nothing in its terms
which supports, even by remote implication,
the premise upon which the claimant must
rest their hope of recovery. The contract im-
posed upon the contractors the obligation to
construct the dock according to the specifica-
tions within a designated time for an agreed
grioe upon a site to be selected by the United
tates. We look in vain for any statement
or agreement or even intimation that any
warranty, express or implied, in favor of the
contractor was entered into concerning the
diaracter of ^e underlying soil. The only
word which it is claimed supports the
contention that a warranty was un-
dertaken by the United States as to the con-
dition of the soil is the statement found in
the opening portions of the specifications,
that the dock was to be built in the navy
yard upon a site which was "available," and
great stress was laid in the argument at bar
upon this word. But the word "available"
intrinsically has no such meaning as that
sought to be given it. It certainly cannot
be said that tl£ site selected for the dock was
not available for the purpose, since one has
been actually erected thereon. It is conceded
in argument that the word "available" has
not naturally the meaning which must be at-
Mbuted to it in order to support the con-
tention that there was a warranty as to the
condition of the soil. But it is said the word
should be construed as having such significa-
tion, because bidders were referred to the
commandants of the navy yards for informa-
tion as to the sites of the docks, and the plan
showing the result of the examination made
upon a portion of the yard was submittod to
them. In other words, whilst admitting the
rule that the contract is the law of the case,
8I]and *tibat the rights and obligations of the
parties are to be alone determined from its
context, the argument invokes a departure
from that rule, and asks that the contract be
so construed as to creato a ri^ht in favor of
one of the parties in conflict with the natural
significance of the language of the contract,
because of antecedent negotiations which
took place be^een the parties.
Aside from the conU'adiction which this
contention involves, Uie meaning now claimed
for the word "available" cannot be adopted
without departing from the intention of the
parties as manifested by the terms of the con-
tract, and the documente forming part of it,
and such meaning cannot moreover be sanc-
tioned without aoing violence to the con-
172 V. 8.
text of the contract. The advertisement for
bids was made in April, 1887. The bid and
specifications which accompanied it were
drawn by the firm, and were siQimitted in
June, 1887. The advertisement to which
they were an answer called for a full and
explicit statement of what was proposed to
be done by the contractor and what were the
requiremento upon which ^ey expected to re-
ly. The contractors were experienced and
competent dock builders. If it had been
their intention to only undertake to build the
dock for the price stipulated, provided a
guaranty was afforded them by the United
States that the soil upon which the dock was
to be constructed was to be of a particular
nature conforming to a plan then existing, a
purpose so important, so vital, would neces-
sarily^ have found direct and positive expres-
sion in the bid and specifications, and would
not have been left to be evolved bv a forced
and latitudinarian construction of the word
"available," used onljr in the nature of a re-
cital in the specifications, and not in the con-
tract. The fact that the bidders knew tiiat
a test of the soil in the yard had been made,
and drew the contract providing that the
dock should be located on a site to be desig-
nated b^ the United States witiiout any ex-
press stipulation that there was a warranty
m their favor that the ground selected should
be of a defined character, precludes the con-
ception that the terms of the contract im-
posed such obligation on the government in
the absence of a full and dear expression *to[8M]
that effect, or at least an unavoidable impli-
cation. This is made clearer bv other por*
tiohs of the contract and specifications.
The seventh paragraph of the contract con-
tained a stipulation that "the construction of
the said dry dock and its accessories and ap-
purtenances herein contracted for shall con-
form in all respecte to and with the plans and
specifications aforesaid." Now, the recital in
the specifications as to an "available" site is
only contained in the opening clause thereof,
and naturally suggeste only that it relates
solely to some place in the yard which should
be selected in the discretion of the govern-
ment suitable for the erection of a dry dock.
Se, also, in the specifications as to the mate-
rials to be furnished, which follow the recital
as to the location of the dock, there is not
conteined a word implying that a particular
piece of ^ound in the navy yard, having soil
of a specially stable character, was to be the
site on which the dock was to be placed. The
contrary, however, is clearly implied from
the provisions as to foundation and other pil-
ing which were to be used in supporting and
enclosing the structure. The foundation,
brace and cross-cap piles, it was stipulated,
were to be "of such length as may be required
for the purpose, and well driven to a firm
bearing," while it was stipulated that the
sheet piling should be "driven close and to
such depth as may be found necessary to
make good work;" and these provisions were
followed by a clause reciting that "should the
character of the bottom be found such as to
warrant a modification of the pile system of
fioor construction, a concrete bed of not less
485
9HZ-^iH-k
SuPUEME Court of tub Umt£0 Stati:^.
Oct. TfiEM,
than six feet in thickness may be substituted
lor the foundation piles/'
. Light is thrown upon the plain meaning of
the contract by the conduct of the parties in
the execution of the work. It is not pre-
tended that when the character of the subsoil
was discovered that the slightest claim was
preferred that this fact gave rise to an extra
allowance. The fact is that the contractors
proceeded wi^h the work, obtained delay for
its completion, made their final settlements
and received their last payment without ever
asserting that any of the rights which they
now claim were vested in them. Without
[983]deciding that such conduct *would be decisive
if the claim was supported by the contract, it
is nevertheless clear that it affords a just
means of adding forceful significance to the
unambiguous letter of the contract and the
•elf-evident intention of the parties in enter-
ing into it.
Judgment affirmed.
HOME FOR INCURABLES, Appt,,
V.
HART SPENCER NOBLE et al.
EMELINE COLVILLE, Appt,,
V,
AMERICAN SECURITY ft TRUST COM-
PANY.
(See S. C. Reporter's ed. 388-400.)
OodioUf when effective — construction of codi-
cil and will. *
1. A codicil which makes the testator's intent
reasonably clear may be given efFect, though
It is not so free from ambiguity as the provi-
sions of the will which are affected by it.
S. A codicil revoking a ''bequest" to a home
for incurables, and beqneathing to a friend
**the $5,000 (heretofore in my will bequeathed
to said Home for Incurables)/' does not re-
voke the provision in the will by which all
the residue and remainder of the estate, of
whatever kind. Is given (using words **devise
and bequeath") to the Home for Incurables,
bat does revoke a bequest of $5,000 to a cer-
tain hospital, which Is the only bequest of
that amount in the will, both those gifts be-
ing declared to be for the establishment of
beds In memory of a son of the testatrix.
[Nos. 67, 61.]
Argued and Submitted November 9 d 10,
1898. Decided January S, 1899,
APPEALS from a decree of the C:k>art of
Appeals of the District of Columbia
holding that the effect of the codicil to a will
wai to revoke the bequest and devise of the
residue of the estate, and that after paying
the legacies, such residue should be distril^
uted among the heirs at law, and reversing
H decree of the Supreme Court of that Dis-
trict holding that the codicil substituted the
legatee to a bequest made in favor of the hos-
pital of the University of Pennsylvania. De-
cree of the Court of Appeals of said District
reversed, and cause remanded to that court,
486
with directions to affim the deeraa oi lb
Sunreme 0>urt of the District.
See same case below, 10 App. D. C. S6.
Statement by Mr. Justice l)inblt«t
Mary £. Ruth died on the 16th of Jqm,
1892, having on the first day of the ssat
month and year executed both a will *ajid s{38l|
codicil. After revoking all previous wills
and codicils, and directing the payment U
debts and funeral expenses, the will be-
queathed all the real, personal, or mixf4
property to the American Security & Tnut
Company for the benefit of a granddaugbter,
Sophia Yuengling Huston, during her nat-
ural life. On the death of the granddaught-
er the will provided that the trust should end,
and that it should be the duty of the tm-
tee to pay oyer to the Hospital of tbs
University of Pennsylvania the sum of five
thousand dollars for purposes stated, and ts
deliver all the "residue and remainder of the
estate of whatever kind'* to the Home for la-
curables, to which corporation such residut
was bestowed for a stated object. The codi-
cil unquestionably gave to Emeline Colvills
a bequest of five thousand dollars. The wiD
and codicil are printed in full in the mar-
gin.t
tl, Mary Eleanor Ruth, reaidinf in tke dty
of Washington snd the District of ColmWs.
being of sound and disposing mind and atmory.
do make and publish and declare this to be ay
last wlli and testament, hereby revoking ssi
making null and void any and all former wHU
snd codicils by me at any time made.
First. I direct my executor hereinafter aiaitf
to first pay out of my estate my ftuieral ci-
penses and all just debts.
Second. I give, devise, and bequeath all tt
my estate, real, personal, or mixed, whether li
possession, reversion, or remainder, now sc^
quired or hereafter to be acquired, and wh«t-
soever situate, to the ''American Security ft
Trust Company*' of Washington City, DIstrlcC ti
Columbia, Its successors and ssslgns. la tnit
nevertheless for the following uses and parposM
only, that is to say —
To Invest and to reinvest the proceeds of ay
said estate In its discretion from ttsw to rtat
In any of the following classes of seceritits,
that is, either in United SUtes bonds, or Is
municipal or state bonds, or in flrst-flMrtssit
bonds of dividend-paying railroads, or is losst
secured by first trusts upon real estate Is (h*
District of Columbia, said loans not to tircoi
three-fourths market value of said real cststt.
snd to psy over so much of the annual is coat
from said investments and reinvestmcatt to (h*
guardian or gnardians of my graaddsifMv
Sophia Yuengling Huston as may be •u>c]<st
to provide for her maintenance, edncstioa. sai
support until she becomes of the fall agr tf
twenty-one years : after which period th» osdn
income so annually received from said laf«i'
ments and reinvestments shall be paid one W
said trustee to my said granddan^ter tor ft*
sole use and benefit for and during tbe ptrM ^
her natural life. Provided, however, tist tto
Income thus provided for my aald graadtfeagb-
ter for and during the term of her astunJ
sball sooner cease and determine at say
when it is ascertained by my aald trascst
any part of mv said income shall bsrt imm
given by said granddaughter, or In OJ*^""^
pended by or througb her for the ast or t<a^
of Robert J. Huston, from whom btr aSfMf*
1898.
Home for Incttbarlbs y. Noblb.
885-887
[S88] *Iii October, 1895, the American Security
k Trust Company, alleging the death of the
granddaughter and the termination of the
trust, filed a bill to obtain a construction of
the will and codicil, to the end that it might
be enabled to distribute the estate, and thus
[386]be l^all^ discharged from all 'obligations in
the premises. The bill charged that, consid-
ering the will and codicil together, there was
uncertainty whether the five thousand dol-
lars dven by the codicil to Mrs. Colville re-
Toked the bequest in favor of the University
of Pennsylvania, or substituted Mrs. Colville,
in whole or only in part, in the place and
fitead of the Home for Incurables, as to the
gift in the will to that institution.
The Hospital of the University of Pennsyl-
fania, the Home for Incurables, Emeline Col-
▼ille, and the heirs at law of the decedent,
were made parties to the bill. The Hospital
of the University of Pennsylvania by its an-
swer denied that there was any ambiguity in
the will in regard to the bequest made to it,
and averred that such bequest was in no
wise impaired by the codicil. The Home for
Incurables, although conceding by its an-
swer that there was an ambiguity arising
from the will and codicil considered in juxta-
position, yet alleged that the codicil did not
in any respect diminish the bequest and de-
mise of the residuum made to it by the will,
or, if it did, operated to do so only to the
amount of five thousand dollars. Emeline
Colville, by her answer, while admitting that
there was ambiguity in the will and codicil
considered together, averred that such am-
biguity was patent and was resolvable by
settled rules of construction. She averred
that, applying such rules, it was clear
that the codicil operated to revoke th«
bequest and devise of the residuum of the
estate made in favor of the Home for Incura-
bles; and *had substituted Mrs. Colville a8[387]
the residuary devisee after the payment of the
amount of the bequest in favor of the Penn-
svlvania institution. The heira at law hj
their answer, while admitting that the codi-
cil gave Emeline Colville five thousand dol-
lars, also asserted that the gift of the resi*
due made by the will, in favor of the Home
for Incurables, was revoked by the codicil,
and therefore that, after payment of the
legacy of five thousand dollars given to the
Hospital of the University of Pennsylvania,
and a like amount due to Mrs. Colville un-
der the codicil, the remainder of the estate
passed to them, since as to such remainder
the decedent was intestate.
The trial court found that the codicil gave
Emeline Colville five thousand dollars, and
substituted her to the bequest made in favor
of the Hospital of the University of Penn-
sylvania; hence, it decreed Mrs. Colville en-
titled to the five thousand dollars, and that
the Pennsylvania corporation took nothing.
It further decreed that the other provision
of the will — that is, the disposition of the
residuary estate in favor of the Home for In-
curables— was unaffected by the codicil.
The court of appeals, to which the contro-
versy was taken, while agreeing that the
codicil gave Mrs. Colville nve thousand dol-
lars, and that she was entitled to this sum,
held (the Chief Justice dissenting) that the
my daughter, obtained a divorce with custody
of said Sophia Yuengling Huston given abso-
lutely to her said mother. In case the Income
shall so cease and determine before the death of
my said granddaughter, then said Income, and
all accumulations thereof, and the entire prin-
cipal of said trust estate, shall be disposed of as
proTlded In the next succeeding Item of this
my last will and testament.
I further authorize my aforesaid trustee to
sell any portion of the estate herein conveyed
to It In trust as aforesaid, and to Invest and re-
Inreet the proceeds as hereinbefore provided,
glTtng to purchasers good and sufficient deeds
or other evidences of title, without obligation
upon the part of said purchasers to see to the
application of the purchase money.
Third. In the event of the death of my said
granddaughter Sophia Yuengllng Huston, or of
the occurrence of the prior contingency for the
determination of said trust hereinbefore pro-
Tided in item two, then the trust hereinbefore
created and vested In the American Security ft
Trust Company shall cease and be determined,
and so much of my said estate shall thereupon
be conveyed and delivered over by said Ameri-
can Security ft Trust Company to the Hospital
of the University of Pennsylvania as amounts
to five thousand dollars, said five thousand dol-
lars to be used by said hospital to endow and
forever maintain a first-class perpetual bed In
said hospital In the city of Philadelphia, said
bed to be In the name and memory of my be-
loved son Malancthoa Love Ruth.
All the residue and remainder of my said es-
tate, of* whatever kind, after the payment of
said five thousand dollars for the establishment
of said perpetual bed In said hospital, I give, de-
vise, and bequeath to the *'Home for Incur-
172 V. 8.
ables** at Fordham, New York city. In the state
of New York, Its successors and assigns, for-
ever to be used by said Home for Incurables to
endow and forever maintain one or more beds
In said home. In the name and memory of my
beloved son Malancthon Love Ruth.
Fourth. I nominate and appoint Mary Robin-
son Wright, wife of J. Hood Wright, of New,
York city, and Mary Robinson Markle, wife*
of John Markle, of Hazleton, Pennsylvania,
and the survivors of them, to be the guardians
or guardian of the property and the person of
my said granddaughter Sophia Yuengllng Hus-
ton, they and each of them being my valued
friends and having consented to act In that be-
half.
Fifth. I hereby nominate and appoint the
American Security ft Trust Company of Wash-
ington city, District of Columbia, to be the sole
executor of my estate.
I, Mary Eleanor Ruth, being of sound and
disposing mind and memory and understanding,
do make and publish this codicil to my last
will and testament — I hereby revoke and annul
the bequest therein made by me to the Home for
Incurables at Fordham, New York dty, In the
state of New York, and I hereby give and be-
queath the five thousand dollars (heretofore Ib
my will bequeathed to said Home for Incur-
ables) to my friend Emeline Colville, the widow
of Samuel Colville, now living in New York dty,
said bequest being on account of her kindness
to my son and myself during his and my illness
and my distress.
In witness whereof I have hereto afllxed my
name this first day of June, In the year of ooi
Lord eighteen hundred and ninety-two, and I
In all other things ratify and aflirm my said
will.
487
J.
887-390
SUPKSSCB OOUBT OF THB IJhITBO StaTU.
Oct. Tkbk,
effect of the codicil was to revoke the be-
auest and devise of the residuum in favor of
be Home for Incurables, and therefore that
Mrs. Ruth, as to the entire remainder of her
estate, after paying the legacies to the Uni-
▼ersi^ of Pennsylvania and Mrs. ColviUe,
had died intestate, consequently that the res-
idue of the estate should be distributed
among the heirs at law. 10 App. D. G. 59.
Messrs. Creorse H. Teamaa, J. Bpald-
1ms TUkMMerjf and Otorge C. Kohhe for the
Home for Incurables.
if r. Heaiy P. Blair for the Hospital of
the University of Pennsylvania.
Messrs, Hearj Tonpsom and Edwin
Sutherland for Emeline Colville.
Messrs, Hemrj Randall Webb and
JobB Sidmey Webb for Mary Spencer No-
ble ei dl.
Mr. Willlaas A. MeKesmey for Ameri-
can Security ft Trust Company.
[888] *Mr. Justice Wliite, after making the
foregoing statement, delivered the opinion
of Uie court:
It will subserve clearness of understanding
to accurately define at the outset the real
contentions which underlie the issues pre-
sented.
It is not gainsaid by either of the benefici-
aries under the will that the plain intention
of the testatrix expressed in the codicil was
to give Mrs. Colville the sum of five thousand
dollars. Indeed, assertion that there was
doubt on this subject could not reasonably be
made in view of the explicit terms of the codi-
cil. The uncertainty which, it is alle^, ex-
ists in Uie codicil, is solely as to which one
of the beneficiaries named in the will is to
be affected by the pavment of the sum given
by the codicil. Each of those benefited by
tne will in substance asserts that the codicil
. is certain in so far as it manifests the inten-
• tion of the testatrix to give, and that it is
equally certain as to the nind from which the
payment is to be made, provided such fund
IS found to be the provision made by the will
in favor of the other. The arguments hence
at once resolve themselves into the single as-
sertion that, although the gift made by the
codicil is certain, its enforcement may or may
not be possible, depending on the particular
fountain from which it may be concluded the
testatrix intended the stream of her benefac-
tion should flow. And, although differing in
form of statement, the contentions upon
which the legal heirs and Mrs. Colville base
their claim of riffht to the residuary estate
substantially conduce to a like, although more
aggravated, result. The first (the l^iS heirs)
concede the certainty of the intention of the
testatrix as expressed in the codicil to give
a specific sum to Mrs. Colville, but claim that
in the execution of this defined purpose the
[880]testatrix * brought about uncertainty as to the
entire residuum of her estate, since intestacy,
it is claimed, was created in that r^^rd. The
second (Mrs. Colville) while equally gp*ant-
inff the clear purpose of the testatrix, bv the
codicil, to give her only the sum of five
thousand dollars, yet argues that this pur-
pose has been so expressed as not only to
488
give the sum intended, but the entire r»>
mainder of the estate besides.
Before approaching the text <rf the wfll
and codicil we will nraee an erroneous stated
ment of the rule of law by whidi it is daoMi
the assertion that the codicfl is uneertaia is
to be tested, and will also state the geaenl
scope of the power which courts of equity
will exert to correct mistakes in wflU, aid
the cardinal rule of ocHistruction whidi tJbtj
adopt in so doing.
It is strenuoudy argued that, unless it be
found that the codicil takes away from eae
of the beneficiaries named in the will the
whole or a portion of what the will gives, by
language as clear and as free from ambi^-
ity as that contained in the will, the codidl
is void for uncertainty and the provisioiis ol
the will remain unaffected. This broad
proposition is unsound, and the authority by
which it is apparently supported has been
explained or qualified. Thus in RandfieU v.
Randfield, 8 H. L. Cas. 225, Lord Campbdl
(p. 235) stated the rule as follows:
"The ratio decidendi, upon which it is aaii
that the vice chancellor held that no opera-
tion is to be given to the limitation over oa
the death of the son without issue, 'If yoa
have a clear gift it shall not be cut down by
anything subsequent, unless it is equally
dear,' appears to me to be insufficieat. If
there be a clear gift, it is not to be cut down
by anything subsequent which does not with
reasonable certainty indicate the intcntioa
of the testator to cut it down, but the maxia
cannot mean that you are to institute a oob-
parison between the two clauses as to la-
ddity."
And in the same case. Lord Wendeydale,
at page 238, said :
"The gift, being in terms absolute, eaaaot
be cut down unless there is a suflfeieatly
clear indication oi an interest ( intent? t to
defeat it by the subsequent dause. I qnite
agree with the Lord CJhancdlor in the om
struction of those words * to which ht rtfcrfeiL(IH|
that you need not have a dause equally dear
but it must be reasonably dear, and the
dause to which that effect is attributed by^s
respondents is capable of a construction eoa-
fining its effect to the real estates ooly."
And this rule of reasonableness is applies
ble, wi^ peculiar potency, to a case like the
one now b^ore us, where the effect of de-
feating the codicil for uncertainty will coa-
fessedlv frustrate the dear intention of the
testatrix. In this connection the li
Lord Brougham, concurred in by the
of Lords in Doe, Winter, v. Perratt, 6
ft Q. 314, 359, is pertinent:
"We ought not, without abeolute
to let oursdves embrace the alternative el
holding a devise void for uneertaistj.
Where it is possible to give a meaning, «e
should give it, that the will of the teitatar
may be operative; and where two or aore
meanings are presented for consideration. «e
must be well assured that there is no vort d
argument in favor of one view rather thaa
another, before we reject the whole. It ii
true the heir at law shall only be dlsiaheiHsl
by clear intention ; but if there be ever m
171 v. t.
180&
HOMS FOB LfCUIUBLBS Y. NOBLS.
390-398
litUe reason in favor of one constmction of a
derise rather than any other, we are, at
leut, rare that this is nearer the intention
of the testator than that the whole should be
▼Old and the heir let in. The cases where
eourts hare refused to give a devise any ef-
fect, on the ground of uncertainty, are those
whore it was quite impossible to say what
was intended, or where no intention at all
had been expressed, rather than cases where
several meaninffs were suggested, and seemed
equally entitled to the preference. . . .
On this head, it mav further be observed
that the difficulty of arriving at a condu-
non, e?en the grave doubt which may hang
around it, certainly the diversity and the
eonilict of opinions respecting it, and the cir-
cnmstances of different persons having at-
tached different meanings to the same words,
form no ground whatever of holding a devise
Toid for uncertainty. The difficult must be
80 great that it amounts to an impossibility;
the doubt so great that there is not even an
inclination of the scales one way, before we are
entitled to adopt the conclusion. Nor have
ll]we any right to 'regard the discrepancy of
(minions as any evidence of the uncertainty,
while there remains any reasonable ground
of preferring one solution to all the rest. The
books are full of cases, where every shift, if
I may so speak, has been resorted to, rather
than hold the ffift void for uncertainty."
No less dearly marked out is the conceded
authority of a court of equity to correct mis-
takes in wills and to enforce the real inten-
tion of the testator by giving that construc-
tion which accomplishes such purpose. Story
(1 £q. Jur. 12th ed. p. 174) says:
"Sec. 170. In regard to mistakes in wills,
there is no doubt fiiat courts of equity have
jurisdiction to correct them when they are
apparent upon the face of the will, or may be
made out hy a due construction of its terms;
for in cases of wills the intention will pre-
vail over the words. But then, the mistake
must be apparent on the face of the will,
otherwise there can be no rdief; for, at
least since the statute of frauds, which re-
quires wills to be in writing (whatever may
have been the case before the statute) , parol
evidence, or evidence dehors the will, is not
admissible to vary or control the terms of
the will, although it is admissible to remove
a latent ambiguity.
''Sec 180. But the mistake, in order to
lead to relief, must be a clear mistake, or a
dear omission, demonstrable from the struct-
ure and scope of the will. Thus, if in a will
there is a mistake in the computation of a
legacy, it will be rectified in equity. So, if
there is a mistake in a name, or description,
or number of the legatees intended to take,
or in the property intended to be bequeathed,
equity will correct it."
In Bardenhergh v. Ray, 151 U. S. 112, at
page 126 [38: 03, 07], the court, through Mr.
Justice Jackson, thus stated the doctrine :
'The cardinal rule for the construction of
wills, to which all other rules must bend,
as stated by Chief Justice Marshall in Smith
V. BeU, 6 Pet. 68, 76 [8: 322, 325], is, that
the intention of the testator expressed in
172 V. 8.
his will shall prevail, provided it be consis-
tent with the rules of law.' This principle
is generally asserted in the construction of
every testamentary disposition. It is em-
phatically the will of the person who makes
it, and is 'defined to be 'the lesal declaration [808]
of a man's intentions, which ne wills to be
performed after his death.' These intentions
are to be collected from his words, and ought
to be carried into effect if they be consistent
with law." See also Colton v. Oolton, 127
U. S. 300 [32: 138].
We come, then, to the text of the will and
codicil, in order to consider, first, whether
the bequest and devise of the remainder,
which the will makes, is in whole or in part
affected by the codicil; and, second, if not,
whether the codicil substitutes Mrs. Colville
to the bequest in favor of the Hospital of the
University of Pennsylvania, thereby revok-
ing the ffift of five thousand dollars made to
the said hospital and conferring that sum
upon Mrs. Colville.
The language of that portion of the will
with which we are now concerned is as fol-
lows:
"Third. In the event of the death of my
said granddaughter Sophia Yuen^ling Hus-
ton, or of the occurrence of the prior contin-
gency for the determination of said trust
hereinbefore provided in item two, then the
trust hereinbefore created and vested in the
American Security & Trust Company shall
cease and be determined, and so much of my
said estate shall thereupon be conveyed and
deliveied over by said American Security ft
Trust Company to the Hospital of the Uni-
versity of Pennsylvania as amounts to five
thousand dollars, said five thousand dollars
to be used by said hospital to endow and for-
ever maintain a first-class perpetual bed in
said hospital, in the city of Philadelphia,
said bed to be in the name and memory of my
beloved son Malancthon Love Ruth.
"All the residue and remainder of my said
estate of whatever kind, after the payment of
said five thousand dollars for the establish-
ment of said perpetual bed in said hospital, I
five, devise, and bequeath to the Home for
ncurables at Fordham, New York city, in
the state of New York, its successors and as*
signs forever, to be used by said Home for
Incurables, to endow and forever maintain
one or more beds in said home in the name
and memory of my beloved son Malancthon
Love Ruth."
The codicil says:
*"I, Mary Eleanor Ruth, being of sound and[808]
disposing mind and memory and understand-
ing, do make and publish this codicil to my
last will and testament — I herebv revoke and
annul the bequest therein made by me to the
Home for Incurables at Fordham, New York
city, in the state of New York and I hereby
give and bequeath the five thousand dollars
(heretofore in my will bequeathed to said
Home for Incurables) to my friend Emdine
Colville, the widow of Samud Colville, now
living in New York city, said bequest being
on account of her kindness to my son and my-
sdf during his and my illness and my dis-
tress.
489
393-396
SuFBSMS Court of thb United States.
Oct Tbbm,
"In witness whereof I have hereto affixed
my name this first day of June, in the year
of our Lord eighteen hundred and ninety-two,
and I in all other things ratify and affirm my
said wiU."
It is apparent that the portions of the will
which are in question contain but two provi-
sions. First, a be<}uest of five thousand dol-
lars to the Hospital of the Universitv of
Pennsylvania, and, second, a bequest and de-
vise of the entire remainder of the estate to
the Home for Incurables. This is so self-evi-
dent as to require nothing but statement.
The codicil, it is obvious, makes one bequest
only, — ^that is, five thousand dollars to Mrs.
Colville. It points out the source whence
this sum is to be taken, by designating the
particular fund created by the will from
which the same is to be obtained. This des-
ignation is made, in & twofold way: First,
by naming the person in whose favor the will
?:ives a right, thereby pointing out that it is
he fund given to such person which is to be
drawn on in order to execute the gift in fa-
Tor of Mrs. Colville. Second, it also desig-
nates the source whence the five thousand
dollars is to be taken, by describing the char-
acter of the beauest in the will which is to
be used to pay the legacy created by the codi-
cil. As a result the codicil revokes the .be-
quest in the will upon which it operates, and
substitutes the beneficiary named in the codi-
cil for the beneficiary under the will. The
controversy arises from the fact that there
is conflict between the two designations made
by the codicil, the name on the one hand and
the character of the thing given on the other.
[804]*This conflict plainly appears from a consid-
eration of the text of the codicil : "I hereby
revoke and annul the bequest therein" (that
is, in the will) "made by me to the Home for
Incurables at Fordham, New York city, in
the state of New York, and I hereby give and
bequeath the flve thousand dollars (hereto-
fore in my will bequeathed to said Home for
Incurables) to my friend Emeline Colville."
That these words show a chanee of purpose
as to a gift of flve thousand dollars found iti
the will, and a substitution of the new bene-
ficiary for the one mentioned in the will, is
beyond reasonable doubt demonstrated by the
text. The revocation made by the codicil is
but consequent on the ^ift to the new legatee
of "the" sum "heretofore in my will be-
queathed," and thus makes it patent that the
revocation and the gift are truly one and the
same act of volition, and that th^arise from
and depend one on the other, which, then,
of the two designations in the codicil con-
tained is the controlling one, or, otherwise
stated, which was mistakenly used by the tes-
tatrix?
The language revoking and annulling in
the codicil is ''the bequest therein (that is in
the will) made by me." The gift by the cod-
icil is a beauest of "the five thousand dol-
lars heretofore in my will bequeathed."
Now the only clause in the will to which this
description can possibly apply is the single
and only specific bequest found in the will,
that is, the flve thousand dollars given by the
will to the Hospital of the University of
Pennsylvania. It follows that the only poe-
400
sible subject to which the codicil can apply ii
the only one found in the will to whicd tW
description can possibly relate, and which it
defines with certainty and clearness. Tq
adopt the designation which the codicil givet
when it states the name of the beneficiary of
the provision in the will would absolntely de-
stroy the description of the character of the
thin^ stated in the codicil, since there is
nothing given by the will to the Home for Is*
curables which comes under or can potsibly
be embraced within the specific descriptioi
contained in the codicil of the object of gift
to be affected. Now, as it is manifest from the
codicil that the purpose of the testatrix was
but, in making the codicil, to chan^ the ben-
efit by her ^conferred under the will onW to[3tf]
the extent of the bequest found in the will of
five thousand dollars, and that her sole intent
was to confer this gift on a new person, it
would follow, if the mention by tne oodkil
of the name of the supposed recipient of the
gift were allowed to control, that the thine
revoked would be dominated by the mere
name, the representative would be greater
than the thing it stood for, and the puun in-
tent and purpose of the testatrix, apparett
on the face of the codicil, would be fmstratel
Moreover, a yet more serious departure fron
the words and intention of the testatrix
would result. It is plain from the will thtt
the fixed design of the testatrix was to pro-
vide for the disposition of her entire estate:
that is, that she assiduously sought to aroid
intestacy as to any portion thereof. Bat if
the name mentioned in the codicil be allowed
to destroy the accurate description of the na-
ture of the thing upon which the codicil oper*
ates, intestacy as to the remainder of the c*>
tate would arise, since such result must ilov
from the assumption that the revocation
made by the codicil relates to the devise of
the remainder of the estate made by the will
To hold that the name in the codicil eon-
trolled the description would be iantamoont
to saving that, although the testatrix in-
tended, and had stated such intention in ckar
language, to dispose of all her estate, yet by
writing the codicil she had become intestate
to the full limit of all the remainder. B^
sides, to thus construe the will would be te
declare that the greater portion of the eodiefl
was wholly unnecessary and meaningless, for
if the intention had been that the vom ^iv«
should be paid by diminishing tbn rtmainder,
then all reference to the particular fift
which was to be operated npon wan snpern-
ous.
The intention of the testatrix as shown hf
the entire codicil is gmatlr fortified br con-
sidering that the context of thn will aad eofr
cil establish, beyond cavil, that they ««t
written by one familiar with thn tnchnimJ
legal terms, and hence that the provisions
found in both instruments were earcfnlly
made to conform to legal phraseology. Ko«.
the thing revoked is called in the oodieO nht
bequest*^ made in the will, which oontmdit-
tinffuishes it from the bequest and devise of ^^
"all *the residue and remainder^ of the m-[S^
Ute of the tesUtrix "of whalcmr kinl'
which the will contains.
I1ie reasoning by which it is contended
im.
HOMB FOB InCU&ABLBB Y. NoBLU.
896-898
tiiat the designation by name found in the
eodidl most be held as dominant, and must
be oonstmed as obliterating the dear and
IcfftUj precise indication of the thin^ intend-
ed to be revoked, which the codicil itself af-
fords, does not commend itself to oar ap-
proraL That reasoning thus proceeds:
The codicil contains a revocation and a eift.
The two are wholly distinct, the one from
the other. As, therefore, the revocation re-
fers by name to the bequest made to the
Home for Incurables, and revokes it, there-
fore the provision made by the will for tes-
tacy ai to the entire remainder is destroyed,
even although the gift made by the codicil is
only of five thousand dollars, and despite the
fact that it plainly, by its terms, refers
solely to a bequest of that amount made in
the win. But to adopt this view compels a
distortion of the language of the codicil, a
mutilation of its context, and a division of
its provisions into two distinct and substan-
tive matters, when in fact on the face xyt the
codicil it contains but one provision, a revo-
cation and a gift, the one dependent upon the
other, the one caused by the othar; that is
to say, a revocation made in order to give
and a gift made solely of the thing revoked.
Indeed, to support the view that because the
name of the Home for Incurables is stated in
the codicil, tihat instrument had reference to
the bequest and devise of the remainder of
the estate made by the will, requires not
only the arbitrary division of a single sen-
toice in the codicil into two parts, although
they are indissolubly connected, but also ne-
cessitates a misconstruction of another por-
tion of the will. This follows from the fact
that even although the revoking part of the
sentence be alone taken into view, dissevered
from that with which it is connected in the
codicil by a union of thoughts and of words
which cannot be disassociated, the codicil
cannot be said to apply to the gift of the re-
mainder without destroying the signification
of its language. The thing annulled and re-
voked by the codicil is not the bequest and
devise of the remainder, but the bequest by
the will made. The language of the codicil
[897]*i«: *1 hereby revoke and annul the bequest
therein made by me." But only one "be-
quest," that is, the one for five thousand dol-
lars, existed in the will. To cause the word
''bequest" to refer to the remainder is to en-
large its scope and significance beyond its
legal import. True, to justify the construc-
tion that the word ''bequest" is synonymous
with a bequest and devise of the remainder,
it is said that the testatrix by her will "di-
rected" the trustee to sell the real property
and to convert all the estate into personal
property, and therefore that it might well
have been contemplated by her that when the
time arrived for a distribution of the estate
that the remainder would consist solely of
personal property, and therefore, in mental
contemplation, the testatrix may naturally
have assumed that the transmission of the
remainder would be but a bequest exclusively
of personal property. This overlooks the
fact that the will and codicil were written
on the same day; that the period when the
178 V. 8.
life estate was to cease and the gifts made by
the will were to become operative was neces-
sarily wholly uncertain, and, that the terms
of the will and codicil evidently relate to
the condition of the estate at the time that
they were made, and not to that which might
exist at a subsequent and uncertain period.
The reasoning, moreover, must rest on a sdf-
evident disregard of the terms of the will,
which does not, as is expressly asserted to
be the case, **direct" the trustee to convert
the real estate into personal property, but
simply "authorized" it to so do.
And this analysis, which demonstrates
that the terms of the codicil do not apply to
the bequest and devise of the remainder so
as to bring about intestacy, also with equal
conclusiveness shows t£at the codicil cannot
be construed as reducing the bequest and de-
vise of the remainder to the extent of the
five thousand dollars which the codicil gives.
To so construe would be to obliterate the
words "the five thousand dollars heretofore
in my will bequeathed." It would be to as-
sume that a revocation of a gift in the will
had been made by the codicil when there was
no necessity for so doing, for if the testa-
trix had intended simply to give five thou-
sand dollars out of the residue, the mere ex-
pression of an intention to give*fivethoueand[308]
dollars would have been entirely sufilcient in
law to effect such purpose without the slight-
est necessity of any revocatory clause what-
ever. This is but to state in another form
the abounding reason we have already men-
tioned, that the express result of the words
of the codicil was not alone to revoke a pro-
vision of the will, but to do so solely to the
extent and for the purpose of executing the
new intention conceived by the testatrix by
dedicating a particular and named bequest
made by the will to the new purpose, and,
hence, that the thing selected for revocation
and substitution was accurately described in
the codicil, omitting the name of the benefici-
ary thereof, as "the bequest" . . . "of
five thousand dollars heretofore in my will
bequeathed." Considered in its ultimate as-
pect, the proposition that the codicil gave
five thousand dollars to the legatee named
therein out of the remainder necessarily af-
firms that the codicil relates to the remain-
der, and therefore asserts that the testatrix
intended, not simply to revoke in order to
substitute the new beneficiary to the specifie
sum revoked, but to create an independent
provision wholly disconnected from the be-
quest made by the will. But this cannot be
maintained without striking out the major
part of the codicil, and thus frustratinff the
plain intention of the testatrix unambigu-
ously expressed in the letter and obviously
within the spirit of the instrument.
As, then, the codicil does not, in whole or
in part, refer to the bequest and devise of all
the residue and remainder made by the will
in favor of the Home for Incurables, it re-
mains onlv to consider whether it operates
upon the bequest of five thousand dollars
made by the will in favor of the Hospital of
the University of Pennsylvania. If it does,
it substituted the legatee named in the codi-
^ 491
89&-4UL
Soi-KKMB COUBT OF THB Un1T£0 StaTKa.
Oct. Tkkm,
dl for the institution in question. If it does
not, the codicil is void for uncertainty, since
there is no other source from which the sum
to execute the gift which it makes can be
taken. Conversely it results that all the
reasoning by which it has become manifest
that the codicil did not applv either to the
gift or the remainder, establishes that it does
so apply to the gift made by the will in favor
of the Hospital of the University of Pennsyl-
P09]vania. In *the first place, the gift to that
corporation is the only specific bluest found
in the will, and, in the second place, it is of
the same amount as that named in the codi-
cil. It is therefore embraced within the
strictest letter of the description given by
that instrument, "the bequest therein (in the
will) made by me," and "the five thousand
dollars heretofore in my will bequeathed."
And a consideration of the whole scope of the
will strengthens the force of the language of
the codicil. The bequest of five &ousand
dollars given by the will to the Hospital of
the University <^ Pennsylvania was to be
used by it "to endow and forever maintain a
first-lass perpetual bed in said hospital in
the city of Philadelphia, said bed to be in the
name and memory of my beloved son Mal-
ancthon Love Ruth." The bequest and de-
vise of "all the residue and remainder of my
said estate of whatever kind" in favor of the
Home for Incurables was "to endow and for-
ever maintain one or more beds in said home
in the name and memory of my beloved son
Malancthon Love Ruth." The purpose, then,
of both gifts was the same. Now, the de-
clared motive generating the making of the
codicil in favor of Mrs. Colville was "on ac-
count of her kindness to my son and myself
during his and my illness and my distress."
The natural interpretation of the intention
upon which the three provisions rest is
reasonably as follows: Having provided
for the perpetuation of the memory of the
son by the execution of works of charity of
substantially the same nature by two differ-
ent institutions, the one by the use of five
thousand dollars to support one bed, and the
other and more important ^y the application
of all the residue and remainder of the estate
to support one or more beds, when the mind
of the testatrix came to the conclusion that
her tenderness to the memory of her son
should be manifested by a gift to one who
had befriended him, the means of executing
this thought which she selected was this, not
the revocation or impairment of the greater
provision made by the will for honorinff the
memory of the son, but the transfer of the
previous and lesser provision of five thou-
sand dollars to the new legatee. By this
means the general plan expressed by the will
|400]wa8 unaltered, *despite the execution of the
conception which the codicil embodied. It
may, in consonance with reason, be consid-
ered that the testatrix, whose mind, as tiie
codicil shows, was charged with the recol-
lection of the i^urposes expressed in her will,
should have inadvertently used a wrong
name, especially as each of the beneficiaries
under the will was to apply the thing given
to a like good work. It cannot, however,
492
without denying the reason of things, be
cessfully asserted that although the tesUr
trix specifically pointed out the clause in her
will which she revoked, nevertheless by th«
mere mistaken use of the name of the penoa
she destroyed or intoided to destroy the
plain and specific description whidi ska
vividly embodied in the very sentence wImts
the name was inadvertently stated.
From the foregoing it results that the «se
of the name Home for Incurables, in the codi-
cil, was but a mere mistaloen designatioB,
dominated and controlled by the de&enptioa
of the character of thing to be affected oy the
codicil stated therein. Guide«l by the pris-
ciples enunciated in the autliorities to wkidi
reference at the outset was 'made, sudi mere
mistake may be corrected, in oonstmiog the
will, by disregarding the error and foUowing
the full and accurate description whidi wffl
then be contained in the instrument; aad
hence that the effect of the codicil was to r»>
voke the bequest of five thousand dollars
made b^ the will in favor of the Hospital of
the University of Pennsylvania, and to sub-
stitute therefor the legatee named ib the
codicil.
The decree of the Court of AppeaU of the
District of Columbia muet he reversed^ aad
the cause remanded to that court, witli di-
rections to affirm the decree of the Soprene
Court of the District, the ooets of all partSes
to be paid out of the estata. And H is w
ordered.
Mr. Justice Gray, not having haard tbt
ar^ment, took no part in the decisioa of
thi4 case.
JACOB SONNENTHEIL, Plff, m Brr^ [Ml}
V,
CHRISTIAN MOERLEIN BREWINO COM-
PANY et al.
(See S. C. Reporter's ed. 401--416.)
Suit against a United Statee
against him and attachment oreditt
acceptance of deed of trust 6y crediton,
when question for the jury — Jtnoirtod^ of
fraudr-dedarations of grantors, wh^n evi-
dence,
1. A suit against a marshal of the UBJt«4
States for acts done In his offldal capadtr
Is a suit arising under the laws of tbe Ualta<
States.
2. A salt against a marshal of the tTaltt4
States and his sureties, and also attackatat
creditors for whom he has setaed gooda li
not one In which the jndgment of tbe dralt
conrt of appeals Is final, under tbe act sf
Congress of Mardi S, 1891. | 6, as tbe fmrw
diction does not depend entirely npoa ctUsta
ship, although a separate suit against tbe at-
tachment creditors would have eoaie wltbla
that section.
8. Under the laws of Texas tbe i q^eetiiia ef
the acceptance of a deed of trust by credltoffs
may be left to the Jury, notwithstandiag tbdr
positive oral testimony to the acetptaaea
where this question Is closely connected vltb
a question of their partldpattoa wttb tbt
debtor In defrauding other credltora.
ITS U.S.
1801.
BONNINTHSIL Y. CHRISTIAN MOBRLBIN BREWING CO.
401-408
4 TIm knowledge of local eredltort who have
teeepted a deed of trust, that it it frandalent,
mtj be left to the Jury, where the debtors are
•hown to have remained in practical control
of the bnsineM, obtained credit on false rep-
resentations to commercial agencies, and
made large purchases of goods on credit just
before an assignment, and where the rumors
of their insolvency could hardly have escaped
the ears of such creditors.
I. Declarations by persons who have made a
deed of trust, which are not mere admissions
of prior facts, but are propositions for a con-
tlnaance of their business after settlement
with their creditors, «re admissible against
them, — at least in an action attacking the
deed as a fraud upon creditors. In which there
Is other oTldence of a common purpose of the
▼endon and vendee to defraud, when the
rights of the secured creditors are carefully
gnaided in the charge to the jury.
[No. 46.]
Irytiod October 18, 19, 1898. Deoided Janu-
ary S, 1899,
Pr ERROR to the United States Circuit
Court of Appeals for the Fifth Circuit to
review a judgment of that court affirming a
judgment of the Circuit Court of the United
States for the Eastern District of Texas in
favor of the defendsmts the Christian Moer-
lein Brewing Cmnpany ei al, in an action
brought by Jacob Sonnentheil to recover the
value of a stock of goods seixed by the mar-
shal of said district, under writs of attach-
ment in favor of the Brewing Company.
Judgment of the Circuit Court of Appeals
<t0inned.
See same case below, 41 U. S. App. 491, 76
Fed. Rep. 350.
Statement by Mr. Justice Browns
This was an action at law, brought by
Sonnentheil, trustee under a deed of trust
executed December 16, 1892, by Freiberg,
Klein, k Co., of Galveston, Texas, against the
Christian Moerlein Brewing Company, an at-
taching^ creditor, and one Dickerson, whose
Christian name is unknown, marshal of the
United States for the eastern district of Tex-
as, to recover the value of a stock of goods
seized by the marshal under writs of attach-
ment in favor of the brewing company.
Prior to December 16, 1892, Moses Frei-
berg, Sam Klein, and Joseph Seinsheimer
were under the firm name of Freiberg, Klein,
A Co., conducting a wholesale liquor and ci-
gar business at Galveston, Texas. Having
become embarrassed and unable to meet their
liabilities upon the date above named, they
conveyed by deed of trust to the plaintiff
Sonnentheil their stock of goods, together
with their other property and the debts due
them, authorizing him to take immediate
possession thereof, to sell the property and
collect the debts, and apply the proceeds to
the payment of certain creditors named in
the deed of trust. This deed was filed as a
*02]*chattel mortgage with the county clerk of
Galveston county, Texas, on the day it was
executed, and the plaintiff in error as trustee
took immediate possession of the property
therein conveyed.
172 U. S.
Another deed of trust, dated December IT*
was executed by the same parties to the same
trustee to secure the same debts. This deed
differed from the first only in inserting some
words which had been erased from the first
deed, in givins the trustee the power to com-
promise or sell the debts due the firm, and in
binding the grantors, and each of them, in
the name of the firm, to make such further
assurances as to the property conveyed as
would speed the execution of the trust.
Sonnentheil was holding the property in
Question under both of these deeds when, on
>ecember 23, 1892, a United States deputy
marshal seized and took it from his posses-
sion against his protest. This seizure and
dispossession were made by virtue of a writ
of attachment from the circuit court for the
eastern district of Texas, in a suit for debt
hy the brewing company against Freiberg,
Klein, & Co., and the seizure was directed by
an agent of the company. The brewing com-
pany was not secured m the deeds of trust.
This suit was brought by Sonnentheil, the
trustee, against the marshal and the brewing
company to recover the value of the goods
thus seized and taken from him.
The defendant demurred to the jurisdic-
tion of the court; pleaded a general denial,
and attacked the deeds of trust as void on
their face, and as not having been accepted
by the trustee or preferred creditors, and as
having been made with the intent to defraud
the unpreferred creditors of the firm, of
which fraud they allied the trustee and pre-
ferred creditors had knowledge. The spe-
cific objections urged to the deeds were that
a provision allowing the trustee to compound
and compromise doubtful debts due the mak-
ers was erased from the first deed before fil-
ing, as well as one authorizing each of the
makers to make further assurances of title
and transfer with the same effect as if made
by each in person. That the makers of the
first deed had, a short time prior to its exe-
cution, represented to two commercial agen-
cies that *they were solvent, and had ther^y[403]
deceived the defendant company into selling
them a large amount of goods on credit ; that
the deeds conveyed property exceeding in
value the debts secured ; that the claims pro-
vided for in the deeds were also secured by
solvent indorsers; that the makers had, not
long before the execution of the first deed,
conveyed to L. Fellman a lar^e amount of
real estate for a feigned consideration and
in secret trust for demselves, and for the
purpose of removing the same from the reach
of their creditors, and had conveyed to oth-
ers a large amount of assets to hold for their
benefit; that they had made to H. Kempner
a deed of trust to secure a pretended debt;
that the makers of the deeds had long prior
to tJieir execution, and whilst insolvent, en-
tered into a conspiracy with L. Fellman, who
was indorser on a large amount of Freiberg,
Klein & Co.'s paper, and, with other per-
sons, to remove the then present embarrass-
ments of the firm and to continue business i
and then, after enlarging their stock by pur-
chases to a sufficient amount, to fail ana se-
cure Fellman and other home creditors, and
403
40a-406
SUPREHB COUBT OF TUB UNITED STATES.
Oct. TEtt,
that the deeds of trust were the result of
this conspiracy.
The plaintiff replied, denying the allega-
tions of the answer, and alleging acceptance
of the deed of trust before levy of the at-
tachment. Upon the trial it was shown that
the deeds of trust under which Sonnentheil
claimed were duly executed; that the first
was duly filed for record, and that Sonnen-
theil was in possession of the property as
trustee at the time the second deed was ex-
ecuted ; that the debts preferred in the deeds
amounted to about $140,000, all of which,
except $10,000, were secured by the accom-
modation indorsement of Fellman & 6rum-
bach, and none were secured otherwise ; that
several of the creditors had accepted the
deed of trust before the levy of the attach-
ment, and some of the secured debts were
paid thereafter.
The jury returned a verdict for the de-
fendants, whereupon the case was taken by
the plaintiff to the circuit court of iippeals,
and the judgment of the court below was
there affirmed. [41 U. S. App. 491], 75 Fed.
Rep. 350. Thereupon the plaintiff sued out
a writ of error from this court.
Messrs. A. H. Willie and J. B£. Wilson
for plaintiff in error.
Mr. F. Charles Hnnie for defendants in
error.
[4Ct4] *Mr. Justice Brown delivered the opinion
of the court:
1. At the last term of this court motion
was made to dismiss the writ of error upon
the ground that under section 6 of the act of
Congress of ^Tarch 3, 1891, establishing the
circuit couri.s of appeals, the judgment of
the court of appeals affirming the jud^ent
of the circuit court was final. By this sec*
Hon the judgments or decrees of the circuit
courts of appeals shall be final in all cases
in which the jurisdiction depends entirely
upon the opposite parties to the suit being
aliens and citizens of the United States, or
citizens of different states. In this case the
plaintiff Sonnentheil was a citizen of the
state of Texas; the defendant brewing com-
pany was a corporation created by the laws
of Ohio, and a citizen of that state, and Didk-
erson a citizen of the state of Texas; but it
also appears upon the face of the original
petition that Dickerson was marshal or the
united States for the eastern district of Tex-
as, and that he made Uie seizure of the goods
in question through his deputy, John H.
Whalen, and under a writ of attachment
sued out bv the brewing company against
Freiberg, Klein, A Co, as defendants. It thus
appears that the jurisdiction of the circuit
court did not depend entirely upon diversity
of citizenship between the plaintiff and the
brewing company, but upon the fact that one
of the defendants was marshal of the United
States, and was acting in that capacity when
he seized the goods in question.
Had the a<Sion been brought against the
marshal alone there can be no doubt that the
circuit court would have had jurisdiction of
the case as one arising under the Constitu-
494
tion and laws of the United States. Ftibd-
mann v. Packard, 109 U. S. 421 [27:984],
Bachrack v. Norton, 132 U. S. 337 [33: 377].
It is true that in these cases the action wis
a^inst the marshal and *the sureties apoii[4Qq
his bond, but there is no difference in prioci-
pie. The right of action in both cases is
given bv the laws of the United States, which
make the marshal responsible for trespisaes
committed by him in his official character.
Bock V. Perkins, 139 U. S. 628 [35:314];
Buck V. Colbath, 3 Wall. 334 [18:257];
Texas rf P. R, Co. v.jCox, 145 U. S. 593 [3«:
829]. If suits agafnst a bank or railwtjs
chartered by Congress are suits arising under
the laws of the United States, as was held in
Oshom V. The Bank of U. 8. 9 Wheat 738
[6: 204], and The Pacific Railttay Remov^
Gases, 115 U. S. 1 [29: 319], with even grett-
er reason must it be considered that a suit
against a marshal of the United States for
acts done in his official capacity falls withia
the same categorv.
The joinder of another defendant, ^urif-
diction over whom was dependent upon direry-
ity of citizenship, deprived the marshal of
no right he otherwise would have possesesed.
Though there are two defendants, the ca«e
wa9 one, and that a ease in which the juris-
diction was not dependent entirely upon the
opposite parties to the suit being citizens of
different states. Had two suits been brought,
one of them would undoubtedly Juts
been dependent upon citizenship, and the
other a case arising under the laws of the
United State*^. But as the plaintiff chose to
join both defendants in a single action, jo-
risdiction of that action was not xthoUy de-
pendent upon either consideration. Had the
jurisdiction of the circuit court been orig:i-
nally invoked solely upon the ground of di-
versity of citizenship as applied to the brew-
ing company, the case would have fallen with*
in the Colorado Central Consol. Mining Com^
pany v. Turck, 150 U. S. 138 [37 : 10301, b«t
as the original petition declared agaimt
Dickerson as marsnal, for an official act u
such, that case has no application.
The record contains twenty-three asuip*-
ments of error, most of which it will be un-
necessary to consider separately. For tht
purposes of this decision they are rednn'Mf
to three.
2. Several of theseassignmenta are based Df»-
on an alleged error of the court in submittiBf
to the jury the question whether the deed of
trust was accepted by any of the preferred
creditors before the levy of the attachment
•Under the laws of Texas it is conceded thtt[4di
the instruments in Question were deeds of
trust, in the nature of chattel mortgages, ai-
der which the proceeds of the property sold
were, after paying expenses, to ne appro-
priated to the payment of the debts enu»
erated in the deeds, and any surplus rents it-
ing to be turned over to the makers of tht
instrument, and that such a deed of tni«t
must be accepted by some bona fide creditor
secured therein in order to give it effect.
In this connection the plaintiff requevtri
the court to charge that "the deed of tnwt ta
question in this case is valid upon itsfs^
and the debts secured therein are «hown to
17t V, a
18ML
SONNENTHBIL Y. ChBISTIAK MoERLEIM BbEWIKO Co.
406-40»
hajt bem, at the time of its execution, bona
fide debts of the makers, Freiberg, Klein, &
Co. It has been further shown that some of
the creditors named therein accepted said
deed before the levy of the attachment of the
Ifoerlein Brewing Company, and it has. not
been ^own that at the time of such accept-
ance such creditors had knowledge of any
fraudulent intent in the making of such deed,
or had any cause to suspect that the same
was made with fraudulent intent."
This the court refused, and in lieu there-
of charged tJiat the deed, upon its face, was
a legal instrument; that it aiffered under the
laws of Texas from an assignment in the fact
that an assignment presumes that "all the
creditors named accepted it. In order to
make a deed of trust operative it is necessary
that the parties for wnose benefit it is made
should accept it. It is not necessary that the
acceptance should be in writing, nor is there
any particular form of acceptance. By the
term 'acceptance' it is simply meant that
when they understand what has. been done,
they consent to it; they agree to it, no mat-
ter in what form that may be done. Atiy-
thin^ that shows that after being informed
of what has been done, that with a knowledge
of these facts, they assent to it, or they agree
to it, constitutes and is, in fact, an accept-
ance. ... I hold as a matter of law that
if you find as a matter of fact that if any
creditor accepted the terms of this instru-
ment before the levy of the attachment, and
you do not find that debt to be infected with
fraud, as I shall hereafter instruct you, in
that event you are instructed that the entire
U)7]property named in this deed *passed to the
trustee, and in this action he may recover
for whatever it is shown the property was
worth at the time and place it was taken.''
To the charge as thus given exception was
taken upon the ground that it left the ques-
tion of the acceptance of the deed of trust by
the beneficiaries to the determination of the
jury, when such acceptance was a question
of law which shoiild have been determined by
the court ; tiiat the entire and uncontradicted
proof showed that before the levy of the at-
tachment, the deed of trust had been accepted
by a portion of the beneficiaries named there-
in, and also by the trustee, and that there
was no question of fact for the jury to deter-
mine.
The evidence upon this point was that the
deed was made on December 16, 1802, and filed
in the county clerk's office the same night,
and that the goods were seized by the mar-
shal under the attachment of the brewing
company on December 23 ; that one Fry was
one of tne creditors secured in the deed ; that
he was informed of the deed of trust the night
it was executed, and that he was secured in
it He answered that it was all right, and
repeated the same thing next day.
Of the firm of Adoue A Lobit, who were al-
to bona fide creditors secured by the deed^
Adoue testified as follows: 'The assignee,
Sonnentheil, came to our office in the morning
before twelve o'clock and told me that we
were one of the secured creditors in the trust
deed, and he would expect me to give him mv
assistance in the management of the busi-
172 V. 8.
ness. I said I would, and for that purpose
he would call a meeting later on. That was
my notice of the failure. I answered him in
a few words. Cannot exactly recall them. I
said it was all right; very glad he was as-
signee ; hoped we woidd get our money back.
I attended two or three meetings. . . .
I did more than indicate my acceptance of the
security that was given me by the deed of
trust. We acted there as if it were our own
property. We were discussing how it was
best to dispose of it so as to get our money
out of it ; uiat was my idea."
Lobit, his partner, testified as follows:
*'When I learned of the failure I also learned
that the notes which we held were secured by
the deed of trust. This I also learned from
the 'newspaper. I also talked with Mosee
Freibere a few days after the deed of trust
was made. He regpretted the failure and was
sorry. I told him that I was satisfied, inas-
much as they had protected us in the deed of
trust, and that I supposed they had done the
best they could, ana we were satisfied with
it."
One Marx, the Galveston agent of S. A.
Walker, a creditor of the firm, also testified:
**I learned of it next morning after it occurred. [408]
Did not know of it before. I talked to Fell-
man about the deed of trust. He was in-
dorser of Walker's paper; did not talk par-
ticularly to any member of the firm of Frei-
berg, Klein, &. Co. ; I accepted under the deed
of trust, probably the next day, I think to
Joe Seinsheimer. I assented to the deed of
trust securing Walker. I was authorized
to do so for Walker."
Of course, if the acceptance had been in
writing, the construction of such writing
would nave been a question for the court.
With reference to parol understandings, the
rule is that if there be any conflict as to the
words used, or if the words themselves be
ambiguous, the question of intent must be
left U) the jury. Notwithstanding the testi-
mony of these witnesses was so positive to
the effect that they accepted the trust, we
are of opinion that it was not improper to
submit the question to the jury, lii its
charp;e the court instructed the jury that the
creditors who accepted the deed of trust must
themselves be free from the taint of fraud,
and the question of fraud was so connected
with that of acceptance that it was possible
for the jury to have found that the accepting
creditors had knowledge of the fraud at the
time of their acceptance. They were all ap-
parently interested in sustaining the deed,
and in denying all knowledge of a fraudulent
intent, and while the jury has no ri^ht to
arbitrarily disregard the positive testimony
of unimpeached and uncontradicted witness-
es {Lomer v. Meeker, 25 N. Y. 361, 363; El-
wood V. Western U. Teleg, Co, 45 N. Y. 549,
553 [6 Am. Rep. 140] ) , the very courts that
lay down this rule qualify it by saying the
mere fact that the winiess Is interested in the
result of the suit is deemed sufficient to re-
quire the credibility of his testimony to be
submitted to the jury as a question of fact.
*Munoz v. WUaon, 111 N. Y. 295, 300; Dea fir409I
V. MetropoUtan Elev, R, Co, 119 N. Y 540,
550; Canajoharie Nat, Bank y. Diefendorf,
495
409-411
SuPBEMB Court of the United States.
Oct. Tibm,
123 N. Y. 191, 200 [10 L. R. A. 676] ; Volk-
mar v. Manhattan R, Co. 134 N. Y. 418, 42Z;
Rumaey v. Bouttoell, 61 Hun, 165, 168; Rose-
berry v. Nixon, 58 Hun, 121; Poathoff v.
Schreihery 47 Hun, 593, 698.
3. Upon the trial it was insisted that
the deeds were void upon their face, but the
court held them to be valid, and we see no
reason to question the correctness of its con-
clusion. Upon the question of actual fraud,
which was the main issue in the case, the
court charged the jury as follows: '*lf ^ou
find from the evidence that any one creditor
had accepted the deed of trust before the levy
of attachment, and that such creditor was
not guilty of fraud himself and was not
aware of fraud in the makers of said instru-
ment, or was not in possession of such infor-
mation as would have put a reasonably pru-
dent person upon inquiry, you will find for
the plaintiff; but, on the other hand, if you
find that the creditor or creditors had ac-
cepted said deed of trust before the levy of
said attachment, and were either guilty of
fraud themselves or were possessed of infor-
mation that would have led a reasonably pru-
dent person to infer that fraud did exist,
you will find for the defendant."
This instruction was excepted to by the
E' ' itiff upon the ground that it left to the
the fact whether any of the creditors
knowledg of the fraudulent intent— if
any there were — ^in the making of the deed
of trust, when there was no evidence whatso-
ever to show that the beneficiaries who ac-
cepted said deed of trust either had knowl-
edge of any such fraudulent intent — ^if it ex-
isted—or that they were put upon inquiry as
to such fraudulent intent by any circum-
stances which had been given in evidence;
but, on the contrary, the uncontradicted evi-
dence was that they had no knowledge of any
audi fraud, if any there was, or of any fact
that would have put them upon inquiry with
reference to the same.
With regard to the Question of fraud in
fact there was considerable testimony, but it
[4101wafl insisted by the plaintiff that, *so far as
concerned the creditors who accepted the deed
of trust, there was not a scintilla of evidence
tending to show either direct knowledge of
the fraud, or such information as would put
a reasonably prudent person upon inquiry
AS to the existence of such fraud.
It may be said in general that there is no
elass of cases which are more peculiarly with-
in the province of the jury tnan such as in-
volve the existence of fraud. So much de-
pends upon the character of the business
transacted by the insolvent firm, the circum-
stances under which the deeds are executed,
the relation of the parties to one another and
to the preferred creditors, the manner in
which the business is subsequently conducted,
the opportunities the preferred creditors had
of informing themselves of the facts, that it
is rarely safe to withdraw the question from
the jury. Parties contemplating a fraud fre-
quently pursue such devious courses to con-
ceal their designs, and resort to such subtle
practices to mislead their unsecured credit-
ors, that the fraud becomes impossible to de-
tect, unless the door be swung wide open for
496
the admission of all testimony having iiy
possible bearing upon the question. Ficti
which to the court might seem of no perti-
nence and be rejected as having no Icsal tend-
ency to show loiowledge of the fraud, might
be considered by the jury as significant sad
indicative of a guiliy^ participation. Eva
negaUve evidence in.y«ometim« hare • pod.
tive value.
The testimony in this case indicates that
as early as February, 1891, it had been di*-
covered by Freiberg that the firm had lott
considerable sums of money through Seia-
sheimer, one of the partners, and was in o
embarrassed condition; and arrangemcBtt
were made with the principal creditor of tht
firm, a kinsman of Freiberg, by which it
was hoped to extricate themsdves. Thii
proving ineffectual, a meeting was called at
the residence of one Fellman, in Qalvestoo,
which was attended by the members of tht
firm and by Fellman, Kempner, and Qrat
bach, indorsers for the firm. Seinsheimer aad
Grumbach. married sisters and were sont-ia-
law of Fellman; Kempner was a brother-
in-law of Seinsheimer. At the time of thk
meeting Felliran and Qrumbach, who were
partners ♦in the dry-goods business were i»-[4il]
dorsers for Freibei|^, Klein, & Co. to the ex-
tent of $135,000. At this and other meetingi
which were held, the question of the solvency
of the firm, and the means which should be
used to protect it from failure, were eonsid-
ered, and arrangements were made to reduei
their debts so that they could continue biui-
ness. After these meetings the firm eoi*
tinned business as before, buying and sdliag
goods for cash and upon credit. At then
meetings it was determined that the fim
should endeavor to carry on their bnsiocM,
but if it had to fail that Fellman should bt
protected at all hazards. There was also evi-
dence to the effect that a short time prior to
the failure Fellman promised to buy out their
goods and let them carry on the business ii
his name. The testimony also tended to
show that before making the deeds, a oobtct-
ance of land for something less than its valot
was made by the firm to Fellman for csak
paid by him. Also that Seinsheimer, one of
said firm, had kept from the trustee some ol
the bills receivable by the firm, but that the
trustee, upon finding this out, had made Kia
turn the bills over to him.
In March, 1801, a request for a report of
the financial condition of the firm by a earn-
mercial agency was answered by a statefont
made under the direction of SeinsheiBMr.
showing that the assets of the firm exceeded
its liabilities by $200,000, when in truth the
firm was insolvent. The business of the ftia
was continued by the purchase and sale of
goods, and the Fellman indorsements were
continued by extensions and renewals.
In February, 1892, it was discovered tbst
the firm was hopelessly insolvent, but sa-
other call from tne commercial agencies fer
an annual report was again met by a fsbe
statement, showing assets in excess of lisbfl-
ities of more than $200,000. Fellnsa.
Grumbach, and Kempner had full notice trtm
members of the firm of all these matters.
In the summer of 1892 the failure of the
17t V. S.
SONNBNTHBIL Y. CHBISTIAN MoKBLEIN BbSWIKO CO.
411-41«
Ann became evident, and goods were pur-
chased and placed in stock, with a Knowieujge
that Uiey could not be paid for. The credits
of the firm were restricted ; in some instances
entirely cut off, and rumors of its insolvency
ilSldreulated throughout the community. *The
dangerous condition of the firm became a
matter of discussion among business men in
GMyeston, and inquiries continued to be made
from abnMui of the local commercial agencies
ts to their solvency. A demand was again
made by a commercial agency in September,
1892, at the instance of the defendant brew-
ing companv, and was answered by another
statement, showine an excess of $200,000 over
all liabilities ; and the brewing company was
thereby induced to extend a further credit
to the firm.
Notwithstanding the apparently desperate
condition of the firm, during the months of
September, October, and November and up
to the 16th day of December, 1892, the day
of its failure, the firm made large purchases
npon credit, and, early in December, Fell-
mtn, who was then in New York, was called
home to participate in and direct the busi-
ness. He came immediately and assumed
the practical superintendence of affairs.
Upon consultation with attorneys, he had the
original purpose of the firm to transfer its
property directly to him changed to a trust
deea in favor of the creditors whose paper
he had indorsed. At his request Sonnen-
theil, a relative of his wife, was employed as
trustee, at a salary of $150 per montn. He
had been a business man in Gralveston, but
was without knowledge or experience in the
particular business for which he was select-
ed. A deed of trust was thereupon executed
to Sonnentheil, as trustee, to secure home
creditors and two who were not home credit-
ors, already secured, save in a few and rela-
tively unimportant instances, by the indorse-
ments of Feilman and Qrumbach. The prop-
erty covered by the deed of trust, which ex-
ceeded in value the secured debts by about
$75,000, was turned over to the trustee in
Sorsuanoe of an arrangement between the
nn and Feilman that the business should
be continued either in Fellman's name or in
the name of someone else, until a settlement
. could be obtained, when it was to revert to
the firm.
The possession of the trustee consisted in
his having the key to the storehouse in which
the goods were situated, and in attending at
the store some hours every day. He signed
all the letters and checks, and kept control of
18]the general* cash. The three members of the
firm were each employed at a salary of $300
Sir month, Seinsneimer as correspondent,
e also had the keeping of the daily cash re-
ceipts. The other two acted as collectors.
All the employees of the firm, including the
drummers, were retained in their respective
positions, and at their former salaries. The
firm's sign, prominently displayed over the
door of the storehouse, was not removed.
The business (exclusive of the purchase of
goods) was conducted, with the consent of
Uie bnieficiaries, in the usual way, by selling
in small parcels, sometimes on credit and
sometimes for cash, to the regular customers
172 V. 8. U. S., Book 43. 32
of the firm. Such customers consisted large-
ly of barrooms throughout the state of Texas,
and the purpose of the trustee was in accord-
ance with the wish of the beneficiaries to
keep these barrooms going in the usual way
by selling them goods on time, so as not to
interrupt their usual business, and. gradu-
ally collect what they owed.
The books of the firm, the trustee claimed,
were in his charge, but he admitted that all
entries made in the books after the date of
the failure were made therein by Seine-
heimer, and not under his (the trustee's) di-
rection, but in his capacity as a member of
the firm. In fact, he claimed to be ignorant
of such entries, although they showed that
the books had been regularly kept just as
though no change had l^n made in the own-
ership of the property.
While there is nothing in all this which
proves either direct knowledge of the fraud
to the accepting creditors, or positive knowl-
edge of facts which necessarily put them upon
inquiry, there is a strong probability that
these creditors, who were all business men
resident in Galveston, were possessed of the
same information that others had r^arding
the failinf^ condition of the firm. As one
of the witnesses stated: ''Rumors were
afloat that they were slow in pajrments,
owing largely to banks and individuals;
credit refused them in some quarters, and
generally that their business was not health-
ful. Inquiries as to the financial standing
of the firm came from northern and eastern
cities, local banks, and firms. There were
rumors in Galveston, general in their charac-
ter and discussed* among brokers, banks, and[414]
merchants." It is scarcely possible that
these rumors could have escaped the ears of
their local creditors. It is not improbable
that the peculiar relationship of the firm to
Feilman was known to these creditors, as
well as the fact that the assignment was in-
tended primarily to protect Feilman, and
secondarily to secure a settlement with the
creditors upon terms favorable to the firm,
and the subseouent return of the property to
them. It is oy no means impossible that
they knew that the firm were making larse
purchases of goods on credit just before their
assignment; that false representations had
been made to commercial agencies of their fi-
nancial standing; that the debts secured by
the deed of trust were already secured by
Fellman's indorsement; that the firm stiu
remained in open possession of the stock and
practically retained direction of the business,
and that to the public at large there was no
apparent change in its conduct or headship,
under the peculiar circumstances of this
case it was not error to submit this question
to the jury; and there is no criticism to make
of the charge of the court in that particular.
Indeed, in another case arising out of the
same failure the supreme court of Texas
held that the question of fraud was properly
left to the jury. Sonnentheil v. Texcie Guar-
anty d T, Co. [10 Tex. Civ. App. 274], 30
S. W. 945.
4. Error is also assigned in admitting the
statement of one Werner as to interviews
had between him and Freiberg and Seine*
407
1
414-^17
ScpRKHB Court of thi United States.
Oct.
hcimer subsequent to the execution of the
deeds of trust, in which Freiberg is said to
have asked Werner, as agent of the Moerlein
Brewing Company, to give him, Freiberg, the
agency for the sale of the beer, saying that
"after they got a settlement they would go
right ahead; the beer would not change
hands at all; go to the same customers; and
that the firm was in such a shape that they
had to fail." This evidence was objected to
upon the ffround that it related to statements
made by the firm after the execution of the
deeds of trust, and was not known or assent-
ed to by the trustee or the beneficiaries of the
trust deed, and was incompetent to affect
their interests.
Werner, the witness, was agent for the
[415]brewing company,* living in Cincinnati.
Hearing of tiie failure, he left home and
reached Galveston three or four days after
the assignment. He went immediately to
the office, and met Seinsheimer and Freiberg.
At this interview Freiberf^ made the state-
ment in question. There is no doubt of the
l^neral proposition laid down by this court
, m Winchester d Partridge Mfg. Co. t. Creary,
116 U. S. 161 [29: 591], that in an action
by the vendee of personal property against
an officer attaching it as the property of the
vendor, declarations of the vendor to a third
party, made after the delivery of the prop-
erty, are inadmissible to show fraud or con-
spiracy to defraud in the sale, unless the al-
leged eoUusion be established by independ-
ent evidence, and the declarations fairly form
part of the rea geata.
The same question was i^in considered in
Jones V. Simpson, 116 U. S. 609 [29: 742],
in which declarations of the vendor made aft-
er delivery of the property to the vendee, but
on the same day and fairly part of the res
gestWy were held to be admissible to show in-
tent to defraud the vendor's creditors by the
sale, it being also shown by independent evi-
^ dence that the vendee shared the intent to
defraud with the vendor.
In the case under consideration there was
independent evidence that the vendors, Frei-
berg, Klein, k Co., and the vendee, Sonnen-
theil, were engaged in a common purpose to
defraud the creditors of the vendors, and the
declarations in question were net mere ad-
missions of what had already taken place,
but were propositions for a further continu-
ance of business with the brewing company,
upon a basis which indicated that after
they had obtained a settlement with their
creditors, they would assume their owner-
ship, and charge of the stock, and continue
business as they had done before. While
the propriety of admitting these declarations
as against the plaintiff l^nnentheil and the
secured creditors may be open to seme doubt,
it is entirely clear that they were admissible
against Freiberg, Klein, k Co., and the
rights of the secured creditors were so care-
fully guarded in the charge to the iury that
we think no harm could have resulted from
allowing the jury to consider them.
We have examined the remaining assign-
f416]ments of error, of* which there are a large
number, but the disposition we have made
408
of the others rendera it nmieoessary to eofr
sider them. While the propriety of aoneaf
the rulings may admit of doobt, tlie objes>
tions maoe were extremely fjw%hTii#>^| in their
character, and the majority cKf the eoort art
of opinion that no error was committed prej-
udicial to the plaintiff and to the secmd
creditors, and that the judgment of the Cit'
cuit Court of AppedU -must therefore he ef-
firmed,
JAMES L. UTTER et al., Appf^
V.
BENJAMIN J. FRANKLIN et eL
(See 8. C. Reporter's ed. 416-425.)
Void bonds, when may he made valid — jwif'
ment, tohen not res judicata.
1. Bonds Issued by a coanty In a territory,
which were void becaase not aatborUcd tv
act of Congress, may be made valM by a n^
sequent act of Congress.
2. A judgment holding bonds Invalid is at!
res judicata as to their validity after a ss^
sequent statute has cured their defect.
[No. 94.1
Argued and Submitted December It, iML
Decided January 5, 1889.
APPEAL from an order of the Snpraee
Court of the Territory of Arizona day-
ing a petition for a writ of mandamus te
compel the defendants, Benjamin J. Frank-
lin, Governor of said Territory, et oL, actiaf
as loan commissioners, to issue certain beads
in exchange for bonds issued by the eoonty
of Pima in aid of a railroad company. Me^
versed^ and case remanded for further pi^
ceedings.
Statement by Mr. Justice Browni
This was a petition for a writ of
mus to compel the defendants, who wen r»>
spectively governor, auditor, and etecreCary rf
the territorr, acting aa loan conuniasioacfii
to issue certain bonds in exchai^^e tor beodi
issued by the county of Pima in aid of tte
Arizona Narrow Gauge Railroad CocnpaaT.
The petition set foHh that plaintiffs vrrt
the bona fide holders for value of evtsia
seven per cent bonds and coupons iaraed ia
July, 1883, in compliance with an aet of ths
territory '*to promote the oonstruetioa of s
certain railroad/' approved February SI,
1 883, aggregating, including principal and ia>
terest thereon, the sum of f289,964.50. TWi«
was a further allegation in the petitkia t^
it waa the duty of the defendants to prondt
for the redeeming of such indebtedness $si
to issue refunding bonda therefor ; that plaia*
tiffs had made demanda for the eanw, whkk
defendants had refused.
Defendants demurred to tlie potion, ui
for answer thereto averred that the boeii _^
now held by the plaintiffs* had beeBdedai«l(tff
both by the supreme court ol the leiiiiery
and by this court, to be void, aad thsnian
the petition of the rdatora ilKmld to ^
missed.
Utter v. Franklin.
417-41»
The petition beinff denied by the supreme
eourt of Arizona, tne relators appealed to
this court. No opinion was filed in the su-
preme coui*t of the territory.
Messrs. Jol&n F. DUlon, Harry Huhhard,
John M. Dillon, and William H. Bamea for
appellants.
Mr. C* W. Wiislftt for appellees.
17] •Mr. Justice Brown delivered the opinion
of the court:
The bonds now held by the relators were
declared to be invalid by this court in Lewis
y. Pima County, 155 U. S. 54 [39: 67], upon
the ground that bonds issued in aid of rail-
ways could not be considered debts or obliga-
tions ''necessary to the administration of the
internal affairs" of the county, within the
meaning of the act of June 8, 1878. 20
Stat at L. 101, chap. 168.
Whether the loan commissioners of the
territory can be require to refund these ob-
ligations, and issue new bonds to the holders
thereof, depends upon the effect |^iven to cer-
tain legislation upon this subject, both by
congressional and territorial statutes. These
statutes were enacted both before and after
the decision in Letoia v. Pima County, supra.
It seems that doubts were entertained as to
the validity of bonds issued in aid of rail-
roads, in view of the fact above steted, that
under the congressional act of 1878 the power
of municipalities to incur debts or obligations
was limited to such as were necessary to the
administration of their internal affairs. To
put this question at rest, C!ongress on July
30, 1886, passed an act to limit territorial in-
debtedness (24 Stat, at L. 170) in the second
section of which it was declared "that no ter-
ritory of the United Stetes now or hereafter
to be organized, or anv political or munici-
pal corporation, or subdivision of any such
territory, shall hereafter make any subscrip-
^^jtion *to the capital stock of any incorporate
company, or company or association having
corporate powers, or in any manner loan ite
credit to or use it for the benefit of any such
company or association, or borrow any money
for the use of any such company or associa-
tion." This section was undoubtedly de-
signed to put a stop to the practice, which
had grown quite common in the territories, of
incurrini^ debte in aid of railway and other
corporations.
The fourth section provided for a limit of
municipal indebtedness, and then declared
"that nothing in this act conteined shall be
so construed as to affect the validity of any
act of any territorial legislature heretofore
enacted, or of anv obligations existing or con-
tracted thereunder, nor to preclude the issu-
ing of bonds already contracted for in pursu-
ance of express provisions of law, nor to pre-
vent any territorial legislature from l^aliz-
ing the acte of any county, municipal corpo-
ration, or subdivision of any territory as to
any bonds heretofore issued or contracted to
be issued." This section evidently left the
law where it stood) before. It did not assume
to pass upon the validity of any territorial
act previously enacted, or of any obligations
thereunder incurred: nor preclude the issua
172 V.M.
at bonds already contracted for under en>resa
provisions of law, leaving the courte to aeieT*
mine the validity of such acts and obliga*
tions and the further question whether such
bonds had been contracted for in pursuanoa
of empress provisions of law. It simply with-
held ite assent to, as well as ite negative up-
on, such transactions, and declined to com-
mit itself one way or the other. Nor did it
assume to prevent the territorial legislature
from legalizing the acte of any subordinate
municipality as to bonds theretofore issued
or contracted to be issued, leaving it to the
territorial legislature to determine whether
thej should attempt to legalize such issues,
and to the courte to pass upon the question
whether this could be lawfully done. The
bonds theretofore issued were left precisely
where they stood before, and no attempt was
made either to legalize or avoid them. Con-
gress merely stayed ite hand, and left the
matter open for future consideration.
In this state of affairs the legislature of
Arizona^ on March 10, 1897, passed *an act(419)
(Rev. Stet. Arizona, p. 361), constituting
the governor, auditor, and secretary of the
territory loan commissioners of the terri-
tory, with the duty of providing "for the pay-
ment of the existing territorial indebtedneds,
due and to become due, and for the purpose of
paying, redeeming, and refunding all or any
part of the principal and interest, or either,
of the existing or subsisting territorial leffal
indebtedness,'^ with power to issue negotiable
bonds therefor. This power, however, was
limited to the legal indebtedness of the terri-
tory, and apparently had no bearing upon the
indebtedness of ite municipalities, certeinly
not upon indebtedness which had been ille-
gally contracted. Indeed, the act is only per-
tinent as showSng[ the authority under which
the loan commissioners were appointed.
On June 25,1800 (26SUt.atL. 175), Con-
gress passed an act approving with amend-
mente this funding act of Arizona, "subject to |
future territorial legislation," the second
section of which declared it to be the duty
of the loan commissioners "to provide for the
payment of the existing territorial indebted-
ness due, and to become due, or that is or may
be hereafter authorized by law, and for the
purpose of paying, redeeming, and refunding
. . . the existing and subsisting terri-
torial indebtedness, etc." The tenth section
of this act provided that the boards of super-
visors of the counties, and the municipal
and school authorities, should report to the
loan commissioners of the territory their
bonded and outstending indebtedness, and
that said loan commissioners should **provide
for the redeeming or refunding of the county,
municipal, and school district indebtedness,
upon the official demand of said authorities,
in the same manner as other territorial in-
debtedness, and they shall issue bonds for
any indebtedness now allowed, or that may
hereafter be allowed by law to said county,
municipality, or school district, upon ouicial
demand by said authorities."
In compliance with the permit thus given
by Coneress for future territorial legislation,
the legislature of Arizona on March 18, 1891
(Laws of 1891, p. 120), enacted a new fund-
409
419-123
SopRKME Court of tob United Statsq.
Oct. Tnfe,
ing act, onlv the following sectiona of which
are material :
[420] *"Sec. 1. That the act of Congress entitled
'An Act Approving with Amendments the
Funding Act of Arizona/ approved June 25,
1890, he, and the same is hereby, now re-en-
acted as of the date of its approval, subject
to the modifications and additional provisions
hereinafter set out, and to carry out the
purpose and intention of said act of Congress
the loan commissioners of the territory of
Arizona shall provide for the liquidation,
funding, and payment of the indebtedness ex-
isting and outstanding on the 31st day of
December, 1890, of the territory, the counties,
municipalities, and school districts within
said territory, by the issuance of bonds of
said territory, as authorized by said act, and
all bonds issued under the provisions of this
act and the interest thereon shall be payable
in sold coin of the United States."
'^Sec. 7. Any person holding bonds, war-
rants, or other evidence of indebtedness of
the territory or any county, municipality, or
school district within the territory, exist-
ing and outstanding on the 31st day of De-
cember, 1890, may exchange the same for the
bonds issued under the provisions of this act
at not less than tbeir face or par value and
the accrued interest at the time of exchange ;
but no indebtedness shall be redeemed at
more than its face value and any interest
that may be due thereon/'
It seems, however, that the existing legis-
lation upon the subject was not deemed ad-
equate by the territorial legislature, since
In 1895 it adopted a memorial (Laws of
1895, p. 148), to the effect that, under va-
rious acts of the assembly, the counties were
authorized lo, and did, issue railroad aid
bonds, which were sold in the open market
at their face value, and were then held at
home and abroad by bona fide purchasers;
that the validity of these bonds, though ques-
tioned, was acknowledged by the payment of
interest thereon; that a repudiation of the
same would work a great hardship to the
holders and affect the credit of the territory,
and therefore the general assembly urged
upon Congress the propriety of passing such
curative legislation as would protect the
holders of all bonds issued under authority
of its acts, the validity of which had been
acknowledged, and relieve the people from
|ttl]*the disastrous effects of repudiation. The
memorial is printed in full in the margin,t
and in construing the act of Congress paaed
in response thereto it may properly be eoh
sidered as* bearing upon the intoitios af[4|
Congress and the exigencies the act wu
designed to meet.
In compliance with this memorial Congreii
on June 6, 1896 (29 Stat, at L. 262)^, paini
an act extending the provisions of the act
of June 25, 1890, and the ameBdatofT
act of 1892 (not here in question) , the ftriC
section of which provide that the sbon
acts ''are hereby amended and extended m
as to authorize the funding of all outstaod-
ing obligations of said territory, and tbe
counties, municipalities, and echoed districts
thereof, as provided in the act of Cos^roi
approved June 25, 1890, untU January 1,
1897, and all outstanding bonds, warraatt,
and other evidences of indebtedness of tte
territory of Arizona, and the counties, atih
nicipalities, and school districts thereof,
heretofore authorized by legislative eoaH-
ments of said territory bearing a higher rstf
of interest than is authorized by the afore-
said funding act approved June 25, 1890, aai
which said bonds, warrants, and other efi>
dences of indebtedness have been sold or ex-
changed in good faith in compliance with thi
terms of the acts of the legislature by wbidi
they were authorized, shall be funded witk
the interest thereon which has aocmed ud
may accrue until funded into the lower ia-
terest-bearing bonds as provided by this set
"Sec. 2. That all bonds and other erideMH
of indebtedness heretofore funded by the loaa
commission of Arizona under tiie promkni
of the act of Congress approved June 25,
1890, and the act amendatory thereof sad
supplemental thereto approved August 3,
1894, are hereby declared to be valid tad
legal for the purposes for which the? «vn
issued and funded; and all bonds and other
evidences of indebtedness heretofore imrnti
under the authority of the legislature of laid
territory, as hereinbefore authoriasd to be
funded, are hereby confirmed, approved, aad
validated, and may be funded as in thit act
provided until January 1, 1897: J^roiidsl
That nothing in this act shall be so eonstrwd
as to *make the govemment of the UBitid.4fl
States liable or responsible for the pajwat
of any of said bonds, warrants, or other fvi-
dences of indebtedness by this act apprond.
confirmed, and made valid, and authoraidii
be funded."
This is the act upon whidi the rtblan
tMlMOBIAL.
To the Senate and House of Re$>re»entative9 of
the United Btatee of America in Congreee
aeeemhled:
Your memorialists, the legislative assembly
of the territory of Arlsona, beg leave to submit
to your honorable bodies : that —
Whereas^ under various acts of the legisla-
tive assembly of the territory of Arlsona, cer-
tain of the counties of the territory were au-
thorized to Issue In aid of railroads and other
quasi public Improvements and did under such
acts Issue bonds, which said bonds were sold In
open market. In most Instances at their face
▼alue, and are now held at home and abroad
by persons who In good faith Invested their
money in the same, and, save and except such
knowledge as the law Imputes to the holder of
500
bonds Issued under authorised acta, art
of the same: and
Whereae, the validity of tbeee boods tor
years after their Issuance was uaqucstloMd. ni
acknowledged by thf payment of the tatmit
thereon as It fell due : and
Whereat, there has recently been ralni •
question as to whether these acta of tkt
tlvc assembly were valid nader tht
law of the territory, which had led to a
ment looking to the repndlatioB of tkt
edness created under and by vlrtoe of
and
Whereas, we believe that sock
would, under the clrcnmstancea, woct
wrong and hardship to the boldifs «f h^
bonds, and at the same time seriovstr ai^ ^
I8ttl
UTTSR Y. F&AinLLIN.
42d-425
place their chief reliance. Its evident pur-
poM was to autiforize the funding of aU out-
ttanding hands of the territory, and its mu-
nicipalities, which had been authorized by
legiilaiive enactments, whether lawful or
not, provided such bonds had been "sold or
exchanged in good faith and in compliance
with this terme of the act of the l^islature
by which they were authorized." The sec-
(md section deals with the original bonds
which had not been theretofore funded, and
provides that all such at had been thereto-
fore issued under the authority of the l^is-
latnre, and which bv the first section were
aathorized to be funded, should be confirmed,
approved, and validated, and might be fund-
ed until January 1, 1807.
We think it was within the power of Con-
gress to validate these bonds. Their only de-
fect was that they had been issued in excess
of the powers conferred upon the territorial
monicipalities by the act of June 8, 1878.
There was nothing at that time to have pre-
vented Congress from authorizing such mu-
nicipalities to issue bonds in aid of railways,
and that which Congress could have orig-
inally authorized it might subsequently
confirm and ratify. This court has repeat-
edly held tiiat Congress has full legislative
power over the territories, as full as that
which a state legislature has over its munic-
ipal corporations. American Ins, Co, v. [S56
Bales 0/ Cotton] Canter, 1 Pet. 611 [7:
242] ; National Bank v. County of Yankton,
101 U. 8. 129 [25: 1046].
Curative statutes of this kind are hy no
means unknown in Federal legislation. Thus,
in National Bank v. County of Yankton,
supra, this court sustained an act of Con-
gress nullifying a legislative act of the ter-
ritory of Dakota authorizing the issue of
raflway bonds, but validating action there-
tofore taken by tiie county voting subscrip-
tion to a certain railroaid company, hold-
ing it to be ''equivalent to a direct grant of
power l^ Congress to the county to issue the
bonds in dispute." • In Thompson v. Perrine,
]103 U. 8. 806 [26: 612], we* also sustained
a similar act of the state of New York rati-
fying and confirming the action of conunis-
sioners in issuing similar bonds. In Read v.
Plattsmouth, 107 U. S. 568 [27: 414], a simi-
lar ruling was made with r^ard to an act
of the legislature of Nebraska validating an
issue of bonds by the city of Plattsmouth for
the purpose of raising money to construct a
high-school building. See also New Orleans
V. Clark, 95 U. 8. 644 [24: 521]; Grenada
County Supervisors v. Brogden, 112 U. S.
261 [28: 704] ; Otoe County v. Baldwin, 111
U. 8. 1 [28: 331]; 1 Dillon, Municipal Cor-
porations, S 544; Cooley, Const. Lim. 6th ed.
456; Bolles v. BHmfield, 120 U. S. 759 [30:
786] ; Andevson v. Santa Anna, 116 U. 8. 356
[29:633]; Dentzel v. Woldie, 30 Cal. 138,
145.
The fact that this court had held the orig-
inal Pima county bonds invalid does not sS-
feet the question. They were invalid be-
cause there was no power to issue them.
They were made valid by such power being
subsequently given, and it makes no possi-
ble dinerence that they had been declared to
be void under the power originally given.
The judgment in that case was res judicata
only of the issues then presented, of the facts
as they then appeared, and of the legislation
then existing.
Nor was the act intended to be confined to
the outstanding legal indebtedness of the
county. The first section of the act requires
the funding of all outstanding obligations of
said territory and its municipalities, and all
outstanding bonds, etc., of the territory and
its municipalities, "heretofore authorized by
legislative enactments of said territory, bear-
ing a higher rate of interest than is author-
ize by the aforesaid funding act, approved
June 5, 1890," which said bonds, etc., "have
been sold or exchanged in good faith in com-
{diancewith the terms of the acts of the legis-
ature by which they were authorized; "and
the second section confirms, approves, and
validates all bonds and other evidences of
indebtedness theretofore issued under the au-
thority of the legislature, and authorized to
be funded by the first section, and declares
that they "may be funded, as in this act
provided, until January 1, 1897." Constru-
ing this in the light of the surrounding cir-
cumstances, and, particularly, in view of the
memorial, it *is entirely clear that it was in-[4M]
tended to apply to bonds issued under au-
thority of the legislature, and purporting on
their face to be l^al obligations oi the coun-
ty, whether in fact legal or not; and to put
tne matter still further beyond question, tnev
are expressly declared to be legal and valid.
It is true that, by the tenth section of the
.act of Congress of June 25, 1890, the loan
commissioners were authorized to refund
municipal bonds "upon the official demand of
credit and standing of onr people for honesty
and fair dealing and bring ns into disrepute :
Wherefore; we most strongly urge upon yonr
most honorable bodies the propriety and justice
of passing inch curative and remedial legisla-
tion as win protect the holders of all bonds
Issued nnder the aathorlty of acts of the legis-
lative assembly, the validity of which has here-
tofore been acknowledged, and that yon further
legislate as to protect all Innocent parties hav-
ing entered Into contracts resulting from induce-
ments offered by onr territorial legislation, and
relieve the people of the territory from the dls-
astroos effects that most necessarily follow any
repudiation of good faith on the part of the
territory, and that you may so further legis-
late as to validate all acts of the legislative as-
•einblj of the territory which have held out In-
172 V. 8.
ducements for the Investment of capital within
the territory, and which have led to the Invest-
ment of large sums of money In enterprises di-
rectly contributing to the development and
growth of the territory, and thus relieve the
honest people of the territory from the disas-
trous effects that must necessarily follow any
violation of good faith on the part of our peo-
ple.
Reaolvedf That our delegate to Congress be,
and he Is hereby. Instructed to use all honor-
able means to bring this subject to the earnest
consideration of Congrress : that the secretary
of the territory be, and he Is hereby, requested
to transmit a copy of the foregong to each
house of Congress and to our delegate In Con-
gress.
501
425-438
8DP&SMS COUBT OF THB UkITEO SXATli^
Out.
■aid authorities*' of the municipalities, but
there is no limitation of that kind in section
seven of the territorial funding act of March
10, 1891, which declares that ''any person
holding bonds, etc, . . . mav exchange
the same for tiie bonds issued under the pro-
Tisions of this act at not less than their face
•r par value and the accrued interest at the
time of the exchanffe."
In addition to uiis, however, the act of
Congress of June 6, 1896, declsj'ed that all
the outstanding bonds, warrants, and .other
evidences of indebtedness of the territoi^
and its municipalities shall be funded wi^
the interest thereon, etc
We are therefore of opinion that it was
made the dutv of the loan commissioners by
these acts to fund the bonds in question, and
that the order of the Supreme Court of the
Territory must he reversed, and the case re-
manded to that court for further proceeding
not inconsistent with the opimon of this
•ouri.
CAPITAL NATIONAL BANK OF LIN-
COLN, NEBRASKA, and John W. Mc-
Donald, Receiver thereof, Plffa, in Err.,
V,
FIRST NATIONAL BANK OF CADIZ,
omo.
(See a C. Beporter'B ed. 425-484.)
Federal question, when raised too late — that
a judginent is contrary to law is not a Fed-
eral question — a decision on general equit-
able principles does not involve such a
question,
1. ▲ Federal question Is raised too late for
writ of error to a state court when presented
on applIcatlOD to the state snpreme coart
for a rehearing.
S. A claim that a judgment holding a receiver
of a national bank to be a trustee Is '*con-
trary to law** dees not raise a Federal qaes-
tlon.
t. A decision that money In the hands of a
receiver of a national bank Is held In trust
and has never been a part of the assets of
the bank, when rendered on general equitable
principles, does not Involve any Federal ques-
tion which will sustain a writ of error to the
state court
[No. 72.]
Argued Deoemher 2, 5, 1898. Decided Jan-
uary, S, 1899.
IN ERROR to the Supreme Court of 'the
State of Nebraska to review a judgment
'Of that court affirming the judgment of the
District Court of Lancaster County in that
•atate adjudging that the plaintiff, the First
National Bank of Cadir., Ohio, recover from
the defendant, the Capital National Bank of
Lincoln, Nebraska, tne amount of a trust
iund found to belong to plaintiff, and that
Kent K. Hayden, receiver of said defendant,
nay the plaintiff the amount of said trust
nind, with interest, out of any money in his
hands. Writ of error dismissed.
See same case below, 49 Neb. 705.
602
Statement by Mr. Chief Justice
*This was an action brought by tbm Fizai
National Bank of Cadiz, Ohio, aninat the
Capital National Bank of IJncoln, Nrfwmska,
and Macfarland, the receiver thereof, in tks
district court of Lancaster county, Kebraaka.
The petition contained five counts for
moneys belonging to plaintiff received by de- i
fendfl^t from notes transmitted to it for col-
lection and remittance.
Each of the counts concluded thus:
"Plaintiff further says that on or befoca
the 2l8t dav of January, 1893, the amid de-
fendant bank then and there became, mad for
some time prior thereto had been, iaeolTcnt,
and that under and in pursuance of tbe laws
of the United States the said defendant, Mae-
farland, was duly appointed, and ia now act-
ing, as a receiver thereof, and that all the as-
aeU and trusts in and belonging to said baak
and the beneficiaries thereof pasaad l»to theC^
possession of, and are now held bv, the aaid
Macfarland for the said bank, and all trusts
or money held or obtained by said bank ia a
fiduciary capaci^ passed into the hands ol
said defendant, Macfarland, and he now holds
the same in the same capacity that the said
bank did before he took posoeaeion thereof.
"That in the collection of said note the said
Capital National Bank was acting aa the
agent of this plaintiff for the purpoea atee-
said, and the money* so collectea wms the
property of and belonged to thia plaintiff;
that said amount ao collected never was a
{>art ot the assets of said bank and never be-
onged to the stockholders thereof; thst
whether or not said amount waa ever nuasi
or mingled with the true assets of said baak
plaintiff is' unable to state, but doea aUcge
that if the same was mixed or mingled with
the assets of said bank that the same was
done wrongfully and f raudulenUy by the oA-
cers of said bank and without the taiowledgs
or consent of this plaintiff ; that a part ol the
business and powers of said bank wma tbt
collection and remittance of moneys for pcr^
sons and corporations, and that the aaid de-
fendant bank was acting aa Agent for that
purpose as hereinbefore alleged.
The prayer was **that an account may be
taken of the trust funds to which the plainttf
may be entitled, and that a decree be entered
against the said Capital National Bank and
the said John D. Macfarland, directing tW
payment or delivery to plaintiff of the
amount of said collections, and that the said
amount be decreed to be a trust fund in tbe
hands of said bank and receiver to be first
paid to this plaintiff, together with intcrert
thereon, as damages, out of any money that
may have passed to or afterwards coasc into
the possession of said bank or receiver as a
preferred or special claim, and that plaintiff
may have sucn other or further rdief aa ia
equity it may be entiUed to.**
Macfarland having resigned the lenltm-
ship, Hayden was appointed to succeed hi^
ana filed an answer (stating preliminarilv
that he answered "as well for the said dilen*
ant bank as for and on his own account aa re-
ceiver thereof"), admitting the in«ol»enrv of
the defendant bank, the appointaieat*of Mae-^tf^
farland as receiver and his taking pt*Mf
17t V. t.
1886.
CUpral Nat. Bavk of Linooln t. Fibst Nat. Bank ov Cadiz. 42tM30
ifa& of Um bank, ''with all and sin^ar its
ikhti, eredits, effects, trusts, anu duties/' and
mmg up L.6 own subsequent appointment.
With the exception of the admissions, the
•iHWV amounted to a general denial, there
bdog a special denial of the receipt or col-
ketion hy the bank or the receiver of the note
mentioneiii in the first count.
The cause came on for hearing, and, after
the default of the bank was taken and en-
tered, was tried by the court, which made
certain findings of fact, and entered the fol-
lowing judgment: "It is therefore consid-
ered, ordered, adjudged, and decreed by the
court that the said plaintiff, the First Nation-
al Bank of Cadiz, Ohio, do have and recover
of and from the said defendant, the Capital
KtUonal Bank of Lincoln, Nebraska, the
amount of the trust fund hereinbefore found
. to belong to plaintiff, to wit, eight thousand
' and fif^ ($8,050) dollars, with interest there-
on, at the rate of seven per cent per annum
from January 20, 1893, principal and inter-
CBt amounting to the sum of eight thousand
and seven hundred and twenty-two and .95
(18,722.95) dollars at the date of this de-
eree. And it is further ordered, adjudged,
and decreed by the court that the said defend-
ant, Kent K. Hayden, receiver of the said
defendant, the Capital National Bank, be,
and he is hereby, ordered to pay the plain-
tiff the amount of said trust fund in his
bands, as hereinbefore found, to wit, the sum
of eight thousand and fifty dollars, together
with seven per cent interest thereon from
January 20. 1893, as dama^ for the deten-
tion tbereoi, the said principal and interest
at the date of this decree amounting to the
sum of eight thousand seven hundred twenty-
two and .95 ($8,722.96) dollars, out of any
monev now in his hands or that may oome
bto his hands as such receiver; that when
■aid money or any part of it is paid under
this order, the same shall apply on the above
judgment against said defendant bank; that
tbe said de&idant bank and said defendant,
Hayden, pay the costs of this action, taxed
at $50.03.^
Thereupon the defendant bank, ''by Kent
K. Hayden, its receiver," moved for a new
trial on these grounds: "1. The judgment
is not sustained by sufficient evidence. 2.
•wJTbe judgment ♦is contrary to law. 8. Errors
of law occurring at the trial duly excepted to.
4. There is error in the assessment of the
amount of recovery in this, that the judg-
ment allows the plaintiff interest on his claim
from and after tne failure of the Capital Na-
tional Bank." The motion was overruled, a
bill of exceptions duly taken, and the cause
carried to tne supreme court of Nebraska on
error.
The application to that court for the writ
of error assigned twenty-seven errors. Some
of tiiese asserted that certain enumerated
findings of fact were not "sustained by the
law;" and the 2l8t, 22d, 23d, 24th, 25th,
Wth, and 27th were:
'*21. The court erred in rendering iudg-
ment against the plaintiff in error for inter-
est upon the amounts collected by the plain-
tiff in error for the defendant in error.
172 U. S.
t*<
'22. The court erred in rendering judgment
against the plaintiff for costs.
"23. The court erred in holding that money
collected by the Capital National Bank was
a trust fimd in the nands of the receiver for
the benefit of the defendant in error.
"24. The court erred in rendering judg-
ment against the plaintiff in error for the full
amount of the notes coUeoted by the Capital
National Bank.
"25. The court erred in rendering a judg-
ment which had the effect of making the de-
fendant in error a preferred creditor over
the other creditors of the Capital National
Bank.
"26. The court erred in ordering that the
amount of the judf^ent should be paid out
of any money then m the hands or that might
thereafter come into the hands of the plain-
tiff in error.
"27. The court erred in rendering a judg-
ment which woiild become a lien upon all the
assets of the Capital National Bank.**
The supreme court affirmed the judgment
of the district court, and, its judgment hav-
inff been entered, the receiver applied for a
rehearing, assigning five reasons therefor, of
which the fifth was as follows: "Because
said judgment and decree of said district
court so affirmed by said judgment and de-
cree of this court adludged the amount found
due the* plaintiff theron to be a lien upon [480]
the properly and assets now in the possession
of tne appellant or which shall hereafter
come into his possession, and to be paid out
of the proceeds thereof in preference and pri-
ority to other creditors of siaid bank, and is in
violation of the provisions of the 'national
bank act' of the United States under whose
authority this appellant was appointed and
is acting."
The petition for rehearing was denied,
and thereafter this writ of error was allowed.
After the case had been docketed, the
death of Hayden was suffgrated, and the ap-
pearance of John W. McDonald, appointed
his successor as receiver, was entered.
Messrs, A* E. Hftrrey, John H. Aaaaa,
and Amasa Oohh for plaintiffs in error.
Messrs. Hewton c. Abbott and Arthur
W, Lane for defendant in error.
*Mr. Chief Justice FnUer ddivered the[430]
opinion of the court:
The writ of error from this court to revise
the judgment of a state court can only bo
maintained when within the purview of sec-
tion 709 of the Revised Statutes.
If the denial by the state court of a right
under a statute of the United States is re-
lied on as justifying our interposition, before
it can be held that the state court thus dis-
posed of a Federal question, the record must
show, either by the words used or by dear
and necessary intendment therefrom, that
the right was specifically claimed ; or a defi-
nite issue as to the possession of the right
must be distinctly deaucible from the record,
without an adverse decision of which the
judgment could not have been rendered.
Moreover, even though a Federal question
503
450-4;ia
SuPRi^MB Court op thb United Statkb.
Oct. Tom,
may have been raised and decided, yet if a
question, not Federal, is also raised and de-
cided, an<f the decision of that question is
sufficient to support the judgment, this court
will not review the judgment.
[481] *In our opinion no Federal right was ape-
' dally set up or claimed in this case at the
proper time or in the proper way; nor was
any such right in issue and necessarily de-
termined; but the judgment rested on non-
Federal grounds entirely sufficient to support
it.
The record discloses no Federal question
asserted in terms save in the application to
the supreme court for a rehearing, when the
BUfl^estion came too late.
Tike petition did, indeed, allege that the
Capital National Bank was organized under
the bankinff act, and that a receiver was ap-
pointed, who took possession of the bank's
assets and of all trusts and moneys held by
it in a fiduciary capacity, and the answer
admitted these averments, respecting which
there was no controversy, yet no right to ap-
propriate trust funds was claimed by defend-
ant under any law of the United States, nor
was it asserted that any judgment which
might be rendered for plaintiff would be in
contravention of any provision of the bank-
ingact.
The motion for new trial pursued a com-
mon formula, and one of the grounds as-
signed was that the judgment was ^contrary
to law," but this cannot be construed as hav-
ing a single meaninp^, and distinctly referring
to the denial of a right claimed under an act
of Congress, consistently with the require-
ments of section 709 of the Revised Statutes
as expounded by numerous decisions of this
court.
California Bank t. Kennedy, 167 U. 8.
362 [42: 198], is not to the contrary, as
counsel seem to suppose. There the question
was whether a national bank could purchase
or subscribe to the stock of another corpora-
tion, and the answer averred that if the stock
in question appeared to have been issued to
the national bank, it was "issued without
authority of this corporation defendant, and
without authority of law." The grounds pre-
sented on motion for new trial, and in tiie
specifications of error which formed the basis
of the appeal to the supreme court of the
state, asserted the want of power under the
laws of the United States; and the Califor-
nia supreme court said in its opinion that
the bank appealed on the ground "that, by
[488]virtue of the statutes under which it is* or-
ganized, it had no power to become a stock-
holder in another corporation." The general
rule was not questioned that if the alleged
right was not claimed before judgment in the
highest court of the state, it could not be as-
serted in this court.
This rule was not complied with here, nor
, was any Federal question in terms decided,
while, on the contrary, the judgment was ex-
plicitly rested on non-Federal gprounds.
The cont^tion of plaintiff was that the
Capital National Bank had money in its
hands which belonged to plaintiff, did not i
604
belong to the bank, had never formed part «f
its assets, and was held by the bank in trwt
for plaintiff.
The right to the money was considered bj
the trial court in the light of general cqvit-
able principles applicable on uie facts, sad
the court adjudged that the money ooasti-
tuted a trust fund to which plaintiff vu
entitled.
The decision did not purport to affect tW
assets of the bank, or attempt to direct tW
distribution thereof, or in any way to t»-
terfere with the disposition of assets actpsl-
ly belonging to the bank; nor did it affect
the receiver as receiver; or his appointant
or authority under the banking act. As the
trial court found that certain moneys held
by the bank in trust for plaintiff had eoai
into the receiver's hands, ne was directed te
return them, for he had no strong title te
the trust fund as against the plaintiff thai
the bank had.
When the case came to the supreme court,
that court, finding no reversible error in thi
record, affirmed the judgment of the district
court, and filed an opinion (49 Neb. 795)
stating: ''This case is of the same geaera]
nature as Capital Nat, Bank et oL r. CoU-
water Nat, Bank, 49 Neb. 786. It was soh-
mitted upon the same argument, and, gov-
erned by the result reached in that case, this
is affirmed." From the opinion in the
thus referred to, it appears that that
now on our docket and numbered 73, wai
mitted to the supreme court of Nebrmdn
with thib case numbered 72, and with three
others, also brought here, and numbered T4»
75, and 76, and that the five case
posed of by the opinion in No. 73.
The supreme court there held that:
^''A fund which comes into the
of a bank with respect to which the baak
had but a single duty to perform, and that is
to deliver it to the jMLrty thereto entitled, is
a trust fund, and is therefore incapable of
being commingled with the general anots of
such bank siUMequently transferred to ils
receiver.
"Under the circumstances above indicated,
the receiver of the bank is merelv substitated
as trustee, and its funds in his hands «hodd
be devoted to discharging such tmct belort
distribution thereof is made to the fcseral
creditors of the bank."
Among other things, the court said: "ft
is conceaed by the plaintiff in error that tte
relief granted by the district court vas is
conformity with the views expresaed won «
less directly by this court in WUaon t. (V
hum, 35 Neb. 530 ; An^ey«er-B«adk Hmriof
Association v. Morris, 36 Neb. 31 : Gn0^ ▼•
Chase, 36 Neb. 328 ; and State v. Ststt BmH
of Wahoo, 42 Neb. 896, but it is urged that •
re-examination of the principles i■vo^Pod
should satisfy us that these cases piwaedrf
upon an erroneous view of the l^w as bov «<-
tied. A very careful examinatioa hu biA
made of all caseA cited in respect to the
pivotal question which has already been nfr
ciently indicated as having been acted nvca
by the district court," And after rerie^nil
these cases the court announced that it w
17t V.t
1896.
Keck y. Unitxd States.
438, 48i
Mt eonTinoed that it should recede from the
line of its former decisions.
We know of no provision of the banking
let which assumes to appropriate trust fundS
in the possession of insolvent banks, or other
property in their possession to which they
hare no title, and it is clear that the state
eoorts had jurisdiction to determine whether
this money was or was not a trust fund be-
lonffing to plaintiff.
The receiver made no effort to remove the
litigation to the circuit court, contested the
iflsiies on a seneral denial, and set up no
daim of a right under Federal statutes with-
drawing the case from the operation of gen-
srallaw.
In ihese circumstances the result is that
this court has no jurisdiction to revise the
IMjjodgment of the supreme court of *Nd>raska,
and we, necessarily, intimate no opinion in
respect of the views on which the case was
disposed of.
Writ of
Capital National Bank of Linoqln, Nb-
BKA8KA, et ol.,
V.
OouDWATSB National Bank of Coldwatkb,
MiOHIOAN.
Capital National Bank of Linooln, Ne-
braska,
V,
Coldwatkb National Bank of Coldwatbb,
MiOHIOAN.
John W. McDonald, Receiver,
V,
Samuel Ouffles Wooden Wabe Oo.
John W. McDonald, Receiver^
V,
Genesee Fbuit Oo.
(See 8. C. Reporter's ed. 484.)
[Nos. 73, 74, 76, 76.]
Me$9r9. JoKn H. Ames, Andrew E.
Rarrey, O. M. Lamheriaon, and Amaaa Oohh
for plaintiffs in error in all the cases.
Messrs, Idonel O. Burr and Charles L,
Burr for defendants in error in Nos. 73 and
74.
Mr, O. A* Brandenbnrsh for defendants
in error in Nos. 75 and 76.
The Chief Justice :
For the reasons given in the opinion in
Capital National Bank v. First National
Bank of Cadiz, Ohio, just decided [ante,502],
the writs of error in these cases are severally
dismissed.
172 V. S.
HERMAN KECK, Plff, in Err.,
V,
UNITED STATES.
(See S. 0. Reporter's ed. 434-465.)
Insufficient ifidictment — tariff act of i8P|—
attempts to smuggle, not '* smuggling*'— ^
word ''smuggling" in U, 8. Rev, Stat. |
2865.
1. An indictment for unlawfully Importing
and bringing into a certain port of the United
States diamonds of a stated value, "contrary
to law/ with intent to defraud the United
States, but not Indicating what Is relied on
as violative of the law, is insufficient, al-
though it charges the offense substantially in
the words of U. S. Rev. Stat. I 8082.
2. The word "diamonds,** followed by a semi-
colon, at the head of t 467 in the free list of
the tariff act of 1894, does not put all
diamonds on the free list; but that word Is
plainly designed as a heading, and the semi-
colon following it should be read as though
a colon.
8. The offense of smuggling or clandestine in*
troduction of goods into the United States in
violation of U. S. Rev. Stat I 2865, does not
include mere attempts to commit the same,
and is not committed by the concealment of
goods on a ship entering the waters of the
United States, with Intent to smuggle them,
where the goods are not taken through the
lines of customs authorities, but are deliv-
ered to the customs officer on board the ves-
sel itself at the time when or before the obli-
gation to make entry and pay the duties
arisea
4. The word "smuggling" nsed in U. S. Rev.
Stat. I 2865, is not extended beyond the com-
mon-law meaning by reason of the provision
in the anti-moiety act of June 22, 1874, re-
specting the rewards of Informers, that, for
the purposes of that act, smuggling shall in-
clude attempts to bring dutiable articles into
the United States without passing through
the customs house or submitting them to the
revenue officers.
[No. 15.]
Argued December 18, 1896. Ordered for
reargument January 18, 1897. Reargued
January 19, 20, 1898, Affirmed by divided
court March 7, 1898, Rehearing granted
March 21, 1898. Ordered for Reargument
April 25, 1898, Reargued November 10,
1898, Decided January 9, 1899.
IN ERROR to the District Court of the
United States for the Eastern District of
Pennsylvania to review a judgment of that
court adjudging the defendant, Herman
Keck, to be guilty of smuggling under the
laws of the United States and sentencing him
to pav to the United States a Ane of $200
and that he be confined in the eastern pen-
itentiary of the commonwealth of Pennsyl-
vania for the period of one year. Judgment
reversed, and case remanded, with directions
to set aside the verdict and grant a new trial.
The facts are stated in the opinion.
Messrs. Francis Bacon Janies and
Rankin Dilworth Jones, for plaintiff in er-
ror on first argument and on all reargu-
ments:
Where a statute which provides for the
505
ScrREMB CoURt OP THE UmITKD STATES.
OOT. T
punishment of a crime does not enumerate
the facts constituting the crime, an indict-
ment which follows the language of the stat-
ute, and does not allege the facts constitut-
ing the crime, is fatally defective, and a de-
murrer thereto should be sustained.
United States y. Kee Ho, 33 Fed. Rep.
333; United States t. Claflin, 13 Blatchf.
178; United States v. Thomas, 4 Ben. 370,
2 Abb. (U. S.) 114; United States v. Cruik-
shank, 92 U. S. 542, 23 L. ed. 588; United
States V. Mann, 95 U. S. 580, 24 L. ed. 531 ;
United States v. Simmons, 96 U. S. 360, 24
X. ed. 819; United States v. Carll, 105 U. S.
4iU, 26 L. ed. 1135; United States y. Hess,
124 U. S. 483, 31 L. ed. 516; Pettihone v.
United States, 148 U. S. 197, 37 L. ed. 419;
Bute y. United States, 153 U. S. 308, 38 L.
«d. 725.
Under the tiUe of the "Free List" is found
the following schedule, to wit :
** f 467. Diamonds; miners', glaziers', and
^ngrayers' diamonds not set, and diamond
4lust or bort, and jewels to be used in the
manufacture of watches or docks." This
specific provision takes diamonds out of the
general class of precious stones, and makes
them nondutiable.
Authur V. Rheims, 96 U. S. 148, 24 L. ed.
318; Arthur t. Lahey, 96 U. S. 112, 24 L.
«d. 766.
It is a rule of interpretation that you are
to ascertain, not what a legislative body
meant, but what it meant by what it said.
United States v. Schilling, 11 U. S. App.
603, 53 Fed. Rep. 81, 8 C. C. A. 440.
A court cannot inject into a statute a pro-
▼ision because it is the court's belief that
euch provision accords with the seUIed p<^-
icy of Oongress.
Bate Refrigerating Co. T. SiUxherger, 157
U. S. 1, 39 L. ed. 601.
Taxation can onl^ be imposed by direct
and positive provision of law, and not by
implication, construction, or conjecture.
Every doubt must be resolved in favor of the
eitizen.
American Net d Ttoine Co, v. Worthing-
ion, 141 U. S. 468, 35 L. ed. 821 ; Henderson
T. United States, 26 U. S. App. 538, 66 Fed.
Rep. 53, 18 C. C. A. 328; Hartranfi v. Wieg-
mann, 121 U. S. 609, 30 L. ed. 1012; United
States y. Isham, 17 Wall. 496, 21 L. ed. 728 ;
Poioers y. Barney, 5 Blatchf. 202; United
States v. Wigglesworth, 2 Story, 369; Adams
▼. Bancroft, 3 Sumn. 384.
The offense of smuggling is not complete
imlees some goods, ^^'ares, or merchandise
Are actually brought on shore, or carried
from shore, contrary to law.
6 Bacon's Abr. (5th cd.) 286; Dunbar v.
United States, 156 U. S. 185, 39 L. ed. 390;
People v. Murray, 14 Cal. 159; Mulligan v.
People, 5 Park. Crim. Rep. 105; Seeherger
T. Schweyer, 153 U. S. 609, 38 L. ed. 840;
Kelly V. Com. 1 Grant Cas. 484 ; Sherman v.
Robertson, 136 U. S. 670, 34 L. ed. 540; State
v. Wilson, 30 Conn. 600 ; Hartranft v. Oliver,
125 U. 8. 525, 81 L. ed. 813 ; United States
T. Vowell, 5 Cranch, 868, 3 L. ed. 128.
Criminal statutes are to be accurately and
strictly construed, and cannot be extended
606
bv implication to cases not falling withia
their terms.
United States v. Wiltberger, 5 Wheat 76,
5 L. ed. 37 ; United States v. Morris, 14 Pet
464, 10 L. ed. 543 ; Tiffany v. National Bank,
18 WaU. 409, 21 L. ed. 862; Tea>as v. Chiles,
21 WalL 488, 22 L. ed. 650; Lewis v. United
States, 92 U. 8. 618, 23 L. ed. 618; United
States V. Reese, 92 U. 8. 214, 23 L. ed. 563;
United States v. Chase, 135 U. 8. 255, 34 L.
ed. 117; Sarlls v. United States, 152 U. S.
570, 38 L. ed. 556.
Mr. EdwArd B. Wliltiiey, Assistant
Attorney (General, for defendant in error on
first argument:
The second count in the indictment is
good.
Cram v. United States, 162 U. 8. 625, 40
L. ed. 1097; Dunbar v. United States, 156
U. 8. 185, 39 L. ed. 390; United States t.
Cook, 17 Wall. 168, 21 L. ed. 638.
Mere lack of particularity is not sufficient
ffround for annulling an indictment De-
fendant's remedy is by application for a bill
of particulars.
Durland v. United States, 161 U. 8. 306,
40 L. ed. 709; Cochran v. United States, 157
U. 8. 286, 39 L. ed. 704.
It was originally claimed by the Treasury
Department that goods are imported into
the United States as soon as they arrive
within the limits of a collection district
This contention was overruled by the courts,
but it was always admitted that the impor-
tation was complete when the goods reached
a port of entry.
United States v. VoweU, 6 Cranch, 868,
3 L. ed. 128; Arnold v. United States, 9
Cranch, 104, 3 L. ed. 671; Meredith t.
United States, 13 Pet. 486, 10 L. ed. 258;
Harrison v. Vose, 9 How. 372, 13 L. ed. 179;
United States v. Lytnan, 1 Mason, 482;
United States v. Ten Thousand Cigars, 2
Curt C. C. 436.
Messrs, Heniy M. Hojrt, Assistant At-
torney Qeneral, and Janes B£. Beok, for
defendant in error on first reargument:
Where the offense is purely statutory it
is, as a general rule, suincient in the indict
ment to charge the defendant with acts com-
ing fully within the statutory description,
in the substantial words of thestatute, with-
out any further expansion of the matter.
Dunbar v. United States, 156 U. 8. 185,
39 T^ ed. 390; Connors v. United States, 158
U. S. 408, 39 L. ed. 1033; Evans v. United
States, 153 U. 8. 584, 38 L. ed. 830.
Messrs, Janes B£. Beok and Henry Jf.
Hoyt, Assistant Attorney General, for de-
fendant in error on second rearffument :
The crimes and offenses aimed at by 9 3082
plainly include the acts established in this
case.
United States v. Nine Trunks, Fed. Cas.
No. 15,885; United States v. Sijtty-seven
Packages of Dry Goods, 17 How. 85, 15 L.
ed. 54 ; Wilson v. Saunders, 1 Bos. A P. 267 ;
Atty, Gen. v. Towns, 6 Price, 198; Atty. Gen,
V. Tomsett, 2 Cromp. M. A R. 170; United
States V. Gates, 2 Fed. Cas. No. 15,191;
United States v. Martin, 1 Hask. 166;
United States v. The Express, Fed. Cas. No.
15,066; United States v. Nolton, 5 Blatchf.
172 V. a
im
Ebok y. UiHTiD Statbi.
i8e-48»
127; Uniied Staiea ▼. anUth, 2 Blatchf. 127;
Th$ EmUy, 9 Wheat. 381. 6 L. ed. 116;
United States T. Quinoy, 6 x'et. 446, 8 L. ed.
468.
[486] *Mr. Justice White delivered the opinion
of the court :
The nlaintiff in error was prosecuted un-
der an indictment consistinf of three counts.
The first was intended to (marge a violation
of I 3082 of the Revised Statutes, by the al-
leged unlawful importation into the port of
Philadelphia of certain diamonds. The
leeond averred a violation of section 2865 of
the Bevised Statutes, by the smuggling and
dspdcstine introduction, on the like date,
tnd into the same port, of the articles which
were embraced in tne first count. The third
eoont need not be noticed, since as to it the
trial judge, at the dose of the evidence, in-
itmeted the Jnry to return a verdict of not
guil^.
The sufficiency of the first and second
eounts was unsuccessfully challenged by the
aeeused, both by motion to quash and by de-
murrer. The jurr returned a general verdict
of guilty; and, after the court had overruled
motions for a new trial and in arrest of judg-
ment, the accused was duly sentenced. Er-
ror was prosecuted, and the case is here for
review.
The assifl^nments of error are numerous,
hut we need only consider the questions as to
the sufficiency of the first and second coimts
of the indictoient and the propriety of the
oonviction under the second count.
[437] •Woe the firet count euffloientr
This count was based upon that portion of
section 3082 of the Revised Statutes, which
made it an offense to "fraudulently or know-
ingly import or bring into the United States,
or assist in doing so, any merchandise, con-
trary to law."
It was charged in the count that Keck, on
the date named, "did knowingly, wilfully,
and unlawfully import and bring into the
United States, and did assist in importing
and bringing into the United States, to wit,
into the port of Philadelphia," diamonds of
a stated value, "contrary to law and the pro-
▼isions of the act of Congress in such cases
made and provided, with intent to defraud
the United States."
As is apparent, the alleged offense
averred in this count was charged sub-
stantially in the words of the statute.
In the argument at bar counsel for the
United S.tate8 conceded the vagueness of
the accusation thus made; and, tested
hy the principles laid down in United States
V. Oarll, 106 U. S. 611, 612 [26: 1136], Unit-
ed Stutea V. Heaa, 124 U. S. 483 [31: 616],
and Evans v. United States, 163 U. S. 684,
587 [38: 830, 832], the count was clearly in-
sufficient. The allegations of the count were
obviously too eeneral, and did not sufficiently
inform the defendant of the nature of the ac-
cusation against him. The words, "contrary
to law," contained in the statute clearly re-
late to legal provisons not found in section
3082 itself, but we look in vain in the count
for any indication of what was relied on as
violative of the statutory regulations con-
172 IT. 8.
coming the importation of merchandise. Th«
generie expression, "import and bring into
the United States," did not convey the neoea-
sary information, because importing mer-
chfljidise is not per ae contrary to law, and
could only become so when done in violation
of specific statutory requirements. As said
in the Hess Case, at pase 486 [31 : 617] :
"The statute upon which the indictment
is foimded only describes the ffeneral nature
of the offense prohibited, and uie indictment,
in repeating its lanjguage without averments
disclosing fiie particulars of the alleged of-
fense, states no matters upon which issue
could be formed for submission to a jury."
As to the suffioienoy of the second count,
*In this count it was cnarged in substance [M8]
that Keck "did knowingly, wilfully, and un-
lawfully, and with intent to defraud the rev-
enue of the United States, smuggle and clan-
destinely introduce into the United States,
to wit, into the port of Philadelphia," cer-
tain "diamonds" of a stated value, which
should have been invoiced and duty thereon
paid cr accoimted for, but which, to the
knowledge of Keck and with intent to de-
fraud the revenue, were not invoiced nor the
duty paid or accounted for.
Two objections were urged against this
count: first, that diamon£, under the law
then in force, were on the free list, and hence
not subiect to duty; and, second, that if all
diamonds were not on the free list, at least
some kinds of diamonds were on such list,
and the coimt should therefore have specifio-
ally enumerated the kinds or classes of dia-
monds which were subject to duty by law.
With respect to the first objection, coun-
sel for plaintiff in error contends that all
diamondiB were free of duty, because of the
following provision contained in the free list
of the tariff act of 1804, to wit:
"Par. 467. Diamonds; miners', glaziers',
and engravers' diamonds not set, and dia-
mond dust or bort, and jewels to oe used in
the manufacture of watches or clocks." <
Paragraph 338 imposes duties as follows t
"Precious stones of all kinds, cut but not
set, 26 per cent ad valorem; if set, and not
specially provided for m this act, including
pearls set, 30 per cent ad valorem; imita-
tions of precious stones, not exceeding an
inch in dimensions, not set, 10 per cent ad
valorem. And on uncut precious stones of
all kinds, 10 per cent ad valorem."
It is apparent that it was not the inten-
tion of Confess to put one of the most valu-
able of precious stones on the free list, while
all others were made dutiable. The word
"diamonds," which is but the commencement
of paragraph 467, was plainly designed as a
heading, for convenient reference, and the
semicolon following should be read as though
a colon.
The other ground of objection to the sec*
ond count is controlled* by the decision iri(439]
Dunhar v. United States, 166 U. S. 186 [30:
300]. In that case, paragraph 48 of section
1 of the tariff act of 1800 provided that
opium containing less than nine per cent of
morphia, and opium prepared for smoking,
should be subiect to a duty of twelve cento
per pound. Counto charging the smuggling
607
4SSM41
SupREMs Court op thb Umitbo States.
Oct. Tkiii,
of ''prepared opium . . . subject to duty
by law, to wit, the duty of twelve cents per
pound," were held to sufficiently describe the
smuggled goods. Here, as in the Dunhar
C<ue, the words of description made clear
to the common understanding what articles
were charged to have been smuggled; and,
for that reason, we hold the objection just
considered to be without merit.
Was the conviction under the second count
of the indictment proper?
The principal witness for the government
was one Fra?k Loesewits, a resident of Ant-
werp, Belgium, isnd captain of the steamer
Rh3n[iland, of the International Navi^tion
Company, which vessel plied between Phila-
delphia and Liverpool. He testified, in sub-
stance, that on January 21, 1896, late in the
afternoon, ^iiile at the residence of one Franz
Von Hemmelrick, a jeweler in Antwerp, he
for the first time met the accused; that in
his company and that of Von Henunelrick he
went to a caf6 in the neis^hborhood ; that dur-
ing the conversation vmich followed Von
Hemmelrick took from his pocket a small
package and handed it to the witness wiUi
the statement, made in tiie hearing of Kedc,
that it belonged "to that gentleman here"
(Keck) ; that it did not contain any valu-
ables, and Von Hemmelrick asked the witness
to oblige him by taking it over to America.
The captain further testified that Keck also
said that the package did not contain any
valuables. The witness asked Keck where he
wished the padcage sent, whereupon he tore
off a piece of a card which was lying on the
table, and wrote on it the address of a person
in Cincinnati, who, it subeeciuently de-.
vel(^>ed, was associated in the diamond busi-
ness with Keck. The card and the package
in question were produced in court and iden-
tified by the witness. Subseouently, on leav-
ing the place, Keck requested the witness to
[440]send the package to Cincinnati from *Phila-
delphia by Adams .Express. There was no
address upon the package, and the card
handed by Keck to the witness was placed by
him in his pocketbook or card case. Soon
after, the witness crossed to Liverpool and
joined his vessel there. The package was by
him placed in a drawer in his ( the captain's )
room, where it remained undisturbed until
the arrival of the ship at her dock in Phila-
delphia. Just as the vessel was approaching
her moorings, a special agent of the Treasury
Department boarded her. This special agent
thus describee in his testimony wnat then en-
sued:
"Acting on information received that, at
the instance of Herman Keck, the captain of
the Rhvnland had endeavored to smuggle
diamonds, I met the steamship Rhynland
upon her arrival here on the eleventh day of
last February, about four or five o'clock in
the afternoon. I went aboard and examined
the passenger list to see if Keck was on
board, or anyone under that name, and I al-
so examined the manifest to find if there was
any diamonds. I found no one particularly
on the passenger list corresponding to the
name of Herman Keck, and no diamonds ap-
peared on the manifest.
"The weather was very rough that day,
608
and the boarding officers boarded just as ike
was coming into the dock. I then asked one
of the custom inspectors to examine dosdy
the baggage of one or two of the cabin pM-
engers, whom I suspected, to ascertaia
whether they had any large quantity of jew-
elry, after which I went into the chart room
where the captain was with Special Agent
Cummiiigs."
What occurred in the chart rocmi betwecs
the captain and the special agent of the
Treasury Department is thus testified to bj
the captain:
"When I reached the port of Philadelphia^
after the passengers were landed, two gentle
men entered my room, and they said they
had information from Antwerp tJiat I had a
package to a friend to send it to Cindiuati.
I said right awav, 'Yes.' I thought thoae
gentlemen came for the padcage, and that
uiey were sent by Mr. Kedc, and naturally^
on my part, I asked them who they were.
They said tJiey were Treasury agents, and
said, 'Captain, that's a package of diamoadt
*vou have got, to be sent to CSncinnati,' aiid(441]
if I didn't deliver it I would be arrested.
After awhile I went down in my room and
brought the package up and delivered it over
to the Treasury agents. That's all that ha^
pened."
The spedal agent thus states what piswd
in the chart room :
"I spoke of the weather and other topiei»
and then I said: 'Captain' — to whom I was
unknown — ^'you have a packase for the Co^
terman Diamond Company, Uie Coetennan-
Keck Diamond Company, 24 West Fonrth
street, Cincinnati, Ohio?' I repeated the
name of the company. He said, 'No ; I have
no such package.' I said, 'I beg leave t*
differ with you;' and indicating with mj
fin^rs, I said, 'You have a small paekage
which you received while in Antwerp. He
said, 1 have a package for Van Reeth, of 81
West Fourth street, Cincinnati, Ohio, and I
will give it to you if you have an order for
it'
"At that time, I understand you to mj
he did not know you were a Treasury ageatt
"No, sir; I was unknown.
"Had you ever met him before?
"Never met him before to know him.
"I then said, 'Captain, I have an order far
them.' He said, 'Show me the order, and I
will go and get the package.' I replied,
'Captain, I would like to see the packi|Ee
first before delivering the order, and I waat
to speak to you in private.'
"Was there anything on your dothes like
a badge or anything else to show what jva
were?
"No, sir; none whatever. He was doiag
some writing at the time — I think flmshivf
the log — and he asked me to wait until Vt
finish<3, and I said, 'certainly.' After the
lapse of about fiv^ minutes the captain aroM
and said, 'You remain here, and I can go aad
get the package.' As soon as the captaia
left the chart room I ouietly and uapcr^
ceived by him followed him, and saw m
enter his room, and just as he emergtd W
had a package in his hand. As 9oovk a* I
I7t U. 1^
im.
Keck y. UiOTBD States.
441-444
«w it I said, 'Captain, that is the package
I wint* He said, *Where is your order?' I
produced my card as United States Treasury
[44S]tgent *He refused to let me have it until I
was identified as a custom house officer. A
young man (being) present at the oonversa-
tion opposite the captain's room, who repre-
sented the steamship company, we agreed to
go back to the chart room, where I again in-
UBted on getting this package, and this
young man who represented the steamship
OMnpany, who was present, advised the cap-
tain to give the package to me, which the
eutain did."
The package referred to was found to con-
tain fire hundred and sixty-three cut dia-
monds of the value of about seven thousand
dollars, which were subject to a duty of
twenty-five per cent. The diamonds were
lubsequently sold under forfeiture proceed-
ings instituted by the government, and no
daimant for them appeared.
Exception was taken on behalf of the ac-
cused to the following instruction given by
the trial judge to the jury: "If the state-
ments made here under oath by Captain
Loesewitz respecting his receipt of the pack-
age of diamonds m Antwerp and brin^-
i^ them here are true, the defendant is
guilfy of the offense charged." An excep-
tion was also noted to the refusal of
the court to direct the jury to return
a verdict of not guilty upon the sec-
ond count, and the questions reserved by
these two exceptions are pressed as clearly
giving rise to reversible error.
The contention on behalf of the accused is
that there was error in refusing to instruct
a verdict and in the instruction given as to
the captain's testimony, because, even al-
though all the acts of the captain of the
^y^nd done in relation to the package of
diamonds were believed by the jury to be
imputable to Keck, they did not constitute
the offense of smuggling within the intend-
ment of the stetute. At best, it is argued,
the legal result of the testimony was to show
only dn unexecuted purpose to smuggle, a
concealment of the diamonds on the ship,
aad a failure to put them on the manife^
of the vessel, all of which, although admit-
ted to be unlawful acte subjecting to a pen-
alty and entailing forfeiture of the goods,
were not, it is claimed, in themselves alone
the eqnivalent of the crime of smuggling or
M]dandestine introduction *which the indict-
ment charged. This crime, it is insisted, is
a specific offense arising from the evasion
of custom djity by introducing ^oods into
the United States without making entry
thereof and without payinff or securing pay-
ment of the duties, and thus passing them
beyond the line of the customs authorities,
where the obligation to pay the dutv arose,
and is not, consequently, eetablished by
proving antecedent acte of concealment pre-
paratory to the commission of the overt act
of smugglinff when these antecedent acte
were not followed by the introduction of
the eoods into the United Stetes, but where,
on the contrary, the goods, before or at the
time when the obligation to pay the duty
172 IT. 8.
arose, were surrendered to the customs au-
thorities.
The United Stetes, on the contrary, main-
teins that the facte were sufficient to justi-
fy a conviction for smuggling or clandestine
introduction, as those words embrace all un-
lawful acte of concealment or other illegal
conduct tending to show a fixed intent to
evade the customs duty by subsequently pass-
ing the goods throuj^h the jurisdiction of the
customs officials without paying the duties
imposed by law thereon, it is hence con-
tended by the prosecution that the crime of
smugfflin^ or clandestine introduction was
complete if the acte of concealment were in
existence when the vessel entered the waters of
the United Stetes, even although at such time
the period for making entry and paying or se-
curing the duties had not arisen, and even
although subsequently and before or at the
time vnien the obligation to make entry and
pay duties arose the jgoods were delivered to
the customs authorities.
The questions for determination, therefore,
are: Did the testimony of the captein justi-
fv the court in giving the instruction that
there was a legal duty to convict, if the jury
believed such testimony? and, Did the court,
admitting the testimony of the special agent
to be true, err in refusing to instruct a ver-
dict as requested?
The charge of smuggling was based on sec-
tion 2865, Revised Stetutes, which is as fol-
lows:
"If any i>erson shall knowingly and wil-
fully, with intent to defraud the revenue of
the United Stetes, smujggle, or* clandestinely[444]
introduce, into the United Stetes, any goods,
wares, or merchandise, subject to duty by
law, and which should have been invoiceo,
without paying or accounting for the duty,
or shall make out or pass, or attempt to pass,
through the custom house, any false, forced,
or fraudulent invoice, every such person, his,
her, or their aiders and abettors, shall be
deemed guilty of a misdemeanor, and on con-
viction thereof shall be fined in any sum not
exceeding five thousand dollars, or impris-
oned for any term of time not exceeding two
years, or both at the discretion of the court."
This section in ite complete stete is but a
reproduction of section 19 of the teriff act of
August 30, 1842. 9 Stet. at L. 565, chap.
270. That portion of the section which
made it an offense to smuggle or clandestine-
ly introduce articles into the United Stetes
was omitted in the revision of 1874, but the
act of February 27, 1877 (19 Stet. at L. 247.
chap. 69), which recites that it was enacted
"for the purpose of correcting errors and sup-
plying omissions in the revision," reinsteted
the omitted clause by an amendment to sec-
tion 2865.
Whatever may be the difficulty of deducing
solely from the text of the stetute a compre-
hensive definition of smuggling or clandestine
introduction, two conclusions arise from the
plain text of the law: First That whilst
it embraces the act of smuggling or clandes-
tine introduction, it does not include mere at-
tempte to commit the same. Nothing in the
stetute by the remotest possible implication
can be found to cover mere attempte to com-
609
444-447
SUPRB^IE COUBT OF THB UNITED StATBS.
Oct. Tnif,
mit the offense referred to. It was indeed
argued at bar that as the concealment of
goods at the time of entering the waters of
the United States tended to render possible
a Bubseauent smuggling, therefore such acts
shoidd be considered and treated as smuff-
fflinff ; but this contention overlooks the plain
oistinction between the attemp^t to commit an
offense and its actual commission. If this pre-
mise were true, then every unlawful act which
had a tendency to lead up to the subse-
Suent commission of an offense would become
he offense itself; that is to say, that one
would be guilty of an offense without having
done the overt act essential to create the of-
fense, because something had been done which,
[445]if* carried into further execution, might have
constituted the crime. Second. Tnat the
smuggling or clandestine introduction of
goo£ referred to in the statute must be
^without paying or accounting for the duty,"
is also beyond question.
From the first of the foresoing conclusions
it follows that mere acts of concealment of
merchandise on entering the waters of the
United States, however preparatory they may
\ be and however cogently they may indicate
an intention of thereafter smuggling or clan-
destinely introducing, at best are but steps
or attempts not alone in themselves consti-
tuting smuggling or clandestine introduction.
From the second, it results that as the words,
"without paying or accounting for the duty"
imply the existence of the obligation to pay
on account at the time of the commission of
the offense, which duty is evaded by the guil-
ty act, it follows that the offense is not com-
mitted by an act done before the obligation to
pay or account for the duties arises, although
such act may indicate a future purpose to
evade when tne period of paying or securinff
the payment of duties has been reached. Ii
this were not a correct construction of the
statute, it would result that the offense of
smuggling or clandestine introduction might
be committed as to goods, although entry of
such goods had been made and all legal du-
ties had been paid before the goods had been
unshipped. Tne soundness of the deductions
which we have above made from the statute
is abundantly demonstrated by the line of
argument which it has been necessary to ad-
vance at bar to meet the dilemma which the
contrary view necessarily involves. For, al-
though it was contended that the offense was
complete the moment the concealment existed
when the ship arrived within the waters of
the United States, it was yet conceded that if
in legal time the duties were subsequentlv
paid or securcfd, there would have been no of-
fense committed. But the contention and
the admission are completely irreconcilable,
since if the subsequent act becomes necessary
in order to determine whether an offense has
been committed, it cannot in reason be said
that the offense was complete and had been
committed before the subsequent and essen-
tial act had taken place.
[446] *These conclusions arising from a consider-
ation of the text of the statute are rendered
yet clearer by taking into view the definite
legal meaning of the word smuggling. That
term had a well understood import at com-
610
mon law, and, in the absence of a partielll■^
ized definition of its significance in the ita^
ute creating it, resort may be had to the eaat
mon law for the purpose of arriving at tht
meaning of the word. Stoearingen v. UnUei
States, 161 U. S. 446, 451 [40: 765, 766];
United States v. Wong Kim Ark, 169 U. S.
649 [42:890].
Russell, in his work on Crimes (Vol L f.
277, 6th English edition), thus speaks of tht
offense :
"Amonff the offenses against the revenue
laws, that of smuggling is one of the princi-
pal. It consists inoringinff on shore, or car-
rving from the shore, goo&, wares, or mer-
chandise for which the du^ has not bees
paid, or goods of which the importation of
exportation is prohibited. An offense pr»>
ductive of various mischiefs to society."
This definition is substantially adoptei
from the opening sentence of the title **Smiic-
gling and Customs" of Bacon's Abridgmcm,
and in which, under letter F, it is further
said:
"As the offense of smuggling is not coa-
Slete unless some goods, wares, or merGbsA-
ise are actually brought on shore or carrM
from the shore contrary to law, a person may
be guilty of divers practices, which have a
direct tendency thereto, without being gnihj
of any offense.
"For the sake of preventing or putting a
stop to such practices, penalties and forfeits
ures are infiicted by divers statutes ; and in-
deed it would be to no purpose, in a case of
this kind, to provide against the end witkovt
providing at the same time against the mesas
of accomplishing it."
So, also, Bladcstone defines smuggliv ta
be "the offense of importing goods withost
paying the duties imposed thereon by tbt
laws of the customs and excise." 4 Black.
Com. 154. The words "importing withovl
paying the duties" obviously unplyins the ex-
istence of the obligation to pay the datieB st
the time the offense is committed, and wkkb
duty to pay is evaded by the eonunissioi «f
the guil^ act.
A reference to the English statutes **^ ....
tains the statement* of the textwritert abovit^^';
quoted, that the words "smuggling^ and
"clandestine introduction," so far, at least,
as respected the introduction of dotiahlt
goods from without the Kingdom, ai^M
the bringinff of the goods on land, witho«t
authority of law, in order to evade the pay-
ment of duty, thus ille^ly crossing the lias
of the customs authorities. Thus, in Wl,
by statute 12 Car. II. chap. 4, sec 2, dutiabk
goods were to be forfeited if brought ists
anv port, etc, of the Kinfrdom umI '*u3t
shipped to be laid on land" without paymcal
of duties, etc. So, in 1710, by sUUtc 8
Anne, chap. 7, sec 17, dutiable goods, *«*
shipped, with intention to be laid on laa^
without the payment of duties, etc, wan (•
be forfeited, treble the value of the goods «ai
to be forfeited by those concerned in sock ■••
shipping, and the vessels and boats nude s»
of "for landing*' were also to be forfeiui
In 1719, by statute 6 Geo. I. chap. 11. eiU-
tied "An Act against the aandeatinc R»
ninff of Uncustomed Goods, and for the Mo««
* 17« U. *
1898.
Kbok t. Umit£d States.
447-450
Sffeetnal Preyention of Frauds Belating to
the Customs/' provision was made in tlis
fourth section for the seizure and forfeiture
of goods concealed in ships from foreign parts
"la order to their bein^ landed without pay-
mest of duties;" and in section 8 ships of a
eertain burden, laden with customable and
prohibited ffoods» hovering on the coasts
Srith intention to run the same privately on
dtore," might be boarded, and security ex*
tcted against a violation of the laws. In
1722, by statute 8 Geo. L chap. 18, a forfeit-
ure of twen^ pounds was imposed upon those
receiving or buying any soods, etc., "dan-
deetinely run or imported," before legal con-
denuisticm thereof, knowing the goods to
htve been clandestinely run or imported into
the Kingdom; while in 1736, by statute 9
Geo. II. chap. 31, sec 21, watermen, etc., em-
ployed in carrying goods, "prohibited, run,
or clandestinely imported," and found in
possession of the same, were to forfeit treble
the value of the same; and by section 23 of
the same statute penalties were provided to
remedy the evil recited in the preamble of
unshipping goods at sea, without the limits
of any port, "with intent to be fraudulently
landed m this Kingdom." In 1786, by stat-
ute 26 Geo. III. chap. 40, sec. 15, bond was
required to be given by the master and mate
tt]of a *vessd before dearinff the vessel for for^
eign parts, not "to land ille^ly any goods,
or take on board any goods with that intent."
In 1763, by statute 3 Geo. III. chap. 22, the
object of tiie statute, as recited in the title,
was, among other things, "for the prevention
of the clandcBtine running of goods into any
part of his majesty's dominions;" while the
preamble of the first section recited the ad-
visability of increasing the share of customs
and excise officers in Forfeited goods so tiiat
they should have "equal encourag^ement to
be vigilant in the execution of their duty,
to suppress the pernicious practice of smug-
gling;^ and in the fourth section, "for the
more effectual prevention of the infamous
f>ractioe of smuggling," provision was made
ooking to the proper distribution among the
officers and seamen of public vessels and
ships of war of the moiety allowed of the
proceeds of goods, etc., seized and condemned.
The statutes just referred to and cognate
statutes make it clear, as said above in the
passage cited from Bacon's Abridgment, al-
thou^ the^ contained no express penalty
for smuggling eo nomine^ that the aim was
to prevent smuggling, and that to accomplish
this result every conceivable act which inight
lead up to the smuggling of dutiable go^,
that is, their actual passaee throu|^h the
lines of the custom house without payinff the
duty, and every possible act which could fol-
low the unlawful landing, was legislated
against, and each prohibited act made a dis-
unct and separate offenae, entailing in some
cases forfeiture of goods and in others pe-
cuniary penalties and criminal punishments,
the forfeitures and punishments varying in
nature and extent according as it was deemed
that the particular offense to which they
were applied was of minor or a heinous
character (such as armed resistance to cus-
toms officers) , or was calculated to bring
172 IT. 8.
about the successful smugglinff of the gooda^
and so defraud the revenue and cause injurw
to honest traders. Hence it is, that al*
though the statute law of England made it
clear that smuggling was the clandestine
landing of the goods within the Kingdom in
violation of law, Parliament sought to pre-
vent its commission, not by the specific pun-
ishment of smuggling, but by legislation
*aimed at all acts whidi could precede or fol-[^M| .
low the consummation of the unlawful land-
ing of the Boods. In other words, the stat-
utes establish, not only what was meant by
smuggling, but, to use the language of Bacon,
also make it certain that provision against
the "end," smuggling, was made by the en-
actment of numerous distinct and separate
offenses "against the means of accomplishing
Iv.
This theory upon which the English law
rested is indicated by a statute enacted in
1558, 1 Eliz. chap. 11. The statute contained
twelve sections, and provided specific and
distinct penalties for various acts tending
to lead up to the carrying from English sou
of goods prohibited to be exported, and the
introduction bv clandestine landing of goods
prohibited to be imported or of customable
goods without the payment of duties thereon.
Numerous provisions of the same nature are
contained m a statute, consisting of thirty-
eight sections, enacted in 1662, 13 and 14
Car. n. chap. 11. Other statutes may be
found referred to in 6 Geo. IV. (1826) chap.
105, which specifically and separately refers
to 442 statutes, and repeals so much and
such parts thereof "as relates to the trade
and navigation of this Kingdom or to the
importation and exportation of goods, wares,
and merchandise, or as relates to the colleo*
tion of the revenue of customs or prevention
of smuggling."
The distinction between smuggling — the
ultimate result — ^and the various means by
which it might be accomplished or by which
its accomplishment could be made beneficial,
is aptly shown by the recital of a statute en-
acted in 1736 (9 Geo. II. chap. 35), by which
all penalties and forfeitures were remitted
which had before a date named in the act been
incurred "in, by or. for the clandestine run-
ning, landing, unshipping, concealing, or re-
ceiving any prohibited goods, wares, or mer-
chandise, or any foreign goods liable to the
payment of the duties of customs and excise,
or either of them, and who«are or may be
subject to any information or other prosecu-
tion whatsoever for the duties of such goods,
or for the penalties for the running, landinff»
unshipping, concealing, or receiving thereof,
as also for many other offenses specifically
enumerated which had been enactea with the
object of preventing the illegal* exportation [450]
of goods or the importation of prohibited
goods or the illegal landing of customable
goods. And it is highly suggestive to ob-
serve that the modern English statutes serve
but to make clear the purport of the English
revenue laws from the beginning concerning
the smuggling of dutiable goods. By the
statute of 1876 to consolidate the customs
laws (39 and 40 Vict. chap. 36), in a sub-
division headed, "As to the restrictionn on
611
460-452
SupREMifi Court of ths Unitxo States.
OoT. Ton.
ftmall craft and the regulations for the pre-
vention of smuggling,'" it was made a spe-
cific oflfcnse, by section 186, to "import or
bring, or be concerned in importing or bring-
ing into the United Kinp;dom any prohibited
Roods, or any goods the importation of whicn
is restricted, contrary to such prohibition or
restriction, whether the same he unshipped
or not" While the bringing of dutiable
goods within the juris£ction of Great
Britain, that is, into the waters of the King-
, dom, with an intent to smuggle or clandes-
tinely introduce the same, was not declared
to be punishable, but in the same section, im-
mediately following the auoted clause, it was
made an offense to ''unship, or assist or be
otherwise concerned in the unshipping of
. . . any goods liable to duty, the duties
JFor which have not been paid or secured."
In other words, this statute demonstrates
that where goods might by law be introduced
into the Kingdom on paying duties, a viola-
tion of the obligation to pay the duties was
not committed by the mere entry of the ves-
ad into the waters of the Kingdom before the
period for the payment or securing the pay-
ment of the duties had arisen.
A review of the principal statutes enacted
in this country regulating the collection of
customs duties establishes that f/o far as
they embraced legislation designed to pre-
vent the evasion of duties they proceeded up-
on the theory of the English law on the same
subject, that is, that they forbade all the
acts which were deemed by the lawmaker
means to the end of smuggling or clandes-
tinely introducing dutiable goods into the
country in violation of law, and which were
likewise considered as efficient to enable the
offender to reap the expected benefits of his
wrongful acts. Therefore, they forbade and
prescribed penalties for everything which
[461]couldprecede*smuggliiiff or follow it, without
specinciUly making a distinct and separate
offense designated smuggling or clandestine
Introduction.
The act of July 81, 1789, chap. 6 (1 Stat,
at L. 29) , was entitled "An Act to Regulate
the Collection of the Duties Imposed by Law
on the Tonnage of Ships or Vessels and on
Goods, Wares and Merchandises Imported
into the United States." The act consists
of forty sections, and, among other things,
establishes ports of entry and delivery. By
section 10 masters of vessels from foreign
ports were required to deliver a manifest of
the cargo to any officer who should first
come on board; by section 11 the master,
etc., was required within forty-eight hours
after arrival of the vessel witiiin any port
of the United States, etc., to make entry,
and td\o make oath to a manifest, and a for-
feiture of $500 was imposed for each refusal
or neglect; by section 12 goods unladen in
open day or without a permitr— except in
case of urgent necessity — subjected the ves-
sel, if of Sie value of $400, and the goods,
to forfeiture, and the master or commander
of the vessel "and every other person who
shall be aiding or assisting in landing, re-
moving, housing, or otherwise securing the
same" were to forfeit and pay $400 for each
C12
offense, and were disabled for the terra of
seven years from holding any office of tzmt
or profit under the United States; by lee-
tion 22 goods fraudulently entered by mean
of a false invoice were to be forfeited; hj
section 24 authority was given to c
officials to make search of ships or*
dwelling houses, etc., for dutiable goods
pected to be concealed, which when iool
were to be forfeited; by section 25
concealing or buying goods, wares, or
chandise, knowing them to be liable to
ure under the statute, were to "forfeit sad
pay a sum double the value of the goods m
concealed or purchased;" and by sectioo 40
dutiable goods of foreign growUi or maae-
facture brought into the United 8tat€$ ex-
cept by sea and in certain vessds and Uad-
ed or unladen at any other place than wbert
permitted by the act, were to be forfeited,
together with the vessels conveying them;
and it was further provided that **M goods,
wares and merchandises brought into tkt
United States hf land contrary* to this set[
should be forfeited, together with the car-
riages, horses, and oxen that sluiil be era-
ployed in conveying the same."
The act of August 4, 1790, chap. 35 (IStat
at L. 145), consists of seventy-five seetioM,
and repealed the act of 1789, chap 5. Ths
act was entitled "An Act to Provide More
Effectually for the Collection of the Dntiei
Imposed by Law on Goods, Wares, and Mer-
chandise Imported into the United States,
and on the Tonnage of Ships or Vceseia*
The provisions of the prior act were wak'
stantially re-enacted. Further offenses wvt
also defined, some of which only will now hs
referred to. Thus, by section 10, when ira-
ported goods were omitted from or improp*
erly described in a manifest, the person n
command of the vessel was subjected to a
forfeiture of the value of the goods so orait^
ted; by section 12 a penalty of not to ai-
ceed $500 was declared for the faflure, on ar>
rival within 4 leagues of the coast, ete.. t»
produce upon demand to the proner oOev a
manifest and furnish a oopy of tiie sane, or
to refuse to give an account of or to raakt a
false statement as to the destination of the
ship or vessel ; by section 13 a penalty sf
$1,000 and forfeiture of goods was anther
ized for unlading goods before a vewd AeM
come to the proper place for the dis^aift
of her cargo ana until the unahippinf M
been duly authorised by a proper oOetr sf
the customs; by section 14 vessds in wVkk
goods were so imladen were subieeted tofer*
feiture'and the master was to forfeit trcMt
value of the goods ; by sectioo 28 goodi it^
quiring to be weighed or gauged in ordtr te
ascertain the duties due thereon^ if leuw'id
from the wharf or place upon which Undid,
without permission, were subjected to fcr
feiture; by section 30 inspectors were sa-
thorized to be kept on board oi vcaseb satil
they were unladen, and among other ditira
specified enjoined upon such inspectors w
one that they were not to **suffer any goo^
wares, or merchandise to be landed or vabd-
en from such ship or vessel without a pn>ptf
permit for that purpose;" by section M «•*•
1898.
Kbok t. Unttbd STATSei
453-459
ton of vessels or others who should take a
hilse oath were made liable to a fine of
$1,000 and to be imprisoned for not exceed-
ing twelve months; and by section 23 mani-
^Ifests *under oath were required to be fur-
nished by vessels bound to a foreign port,
and the person in charge of the vessel de-
parting without so clearing was to forfeit
The act of March 2, 1790» chap. 22 (1 Stat
•t L. 627), was entitled "An Act to R<^pi-
kto the Collection of Duties on Imports and
Tonnai^'' It consisted of 112 sections, re-
fttW the aet of 1790, ehap. 85, and sub-
stantially re-enacted the provisions of that
act, though amplifying those provisions, par-
tieolarly by the insertion of forms of mani-
fssts, entries, certificates, etc By section
82 the master in charge of a vessel in which
bad been brought go^ destined for a for-
eign port was required, before departing
fi^ the district in which he first arrived,
to give bond "with condition that the said
goods, wares, or merchandise, or any part
thereof, 9haU not be landed within the Unit-
ed States unless due entry thereof shall have
been first made, and the duties thereupon
paid, or beeured to be paid accorcung
to law.'* In section 46 provision was made
for the entry of baggage and mechanical im-
plements, which were exempted from du^,
and for Uie examination of such baggage;
the section ending as follows :
**±nd provided, . . . that whenever
any article or articles subject to duty, accord-
ing to the true intent and meaning of this
act, shall be found in the baggage of any per-
son arriving within the United States, which
iball not, at the time of making entry for
*^ baggage, be mentioned to the collector
before whom such entry is made, by the per-
son making the same, all such articles so
found shall be forfeited, and the person in
whose bagffaffe they shall be found shall,
noreover, forfeit and pay treble the value of
inch articles."
This proviso, it may be stated, has ever
•inee remained on the statute books, being
now section 2802 of the Revised Statutes.
By sections 49 and 62 of the act of 1799,
entiy was required to be made and duties
paid or secured to be paid before permission
to land goods, wares, and merchandise should
be eranted; by section 103, provision was
maoe as to vessels and padcages in which
certain articles were thereafter to be im-
ported, a violation to entail a forfeiture of
»*]the vessel and^goods ; by section 106 and suc-
ceeding sections authority was given to im-
port goods and merchandise into districts es-
tablished and to be established on the north-
cm and northwestern boundaries of the
United States, and on the rivers Ohio and
Mississippi, "in vessels or boats of any bur-
then, and in rafts or carriages of any lund or
nature whatsoever;" and like report was to
be made, like manifests furnished, and entry
made as in the case of goods imported into
the United States in vessels from the sea,
and, except as specially provided in the act,
mch importations were to be subject to like
regulations, penalties, and forfeitures as in
other districts.
172 U. S.
U. S., Book 43.
33
The requirements as to the production of
invoices upon entry of goods subject to an
ad valorem duty were supplemented by acts
of April 20, 1818, chap. 79 (3 Stot. at L.
433), and March 1, 1823, chap. 21 (Id. 729),
whidi later statute was enacted to take the
place of the former, then about to expire by
limitation. Original invoices were required
to be furnished as a prerequisite to an entry;
specific provisions were enacted as to the
manner of making entry ; in the case of non-
residents, invoices were required to be veri-
fied by the oath of the owner, unless such re-
quirement was dispensed witii by the Secre-
tary of the Treasury; and the appointment
of appraisers was provided for ana the pro-
cedure by which the true value of goods was
to be determined set forth; and a number of
offenses relating to the subject declared.
When the act of 1842, heretofore referred
to, was enacted, the provisions of the acts of
1799, as amended or supplemented by the act
of 1823, were, in the main, in force, as they
still are.
As we have seen, it was not until 1842
that a specific penalty for smuggling or clan-
destine introduction, eo nomine, was enacted.
When the significance of the word "smug-
gling," as understood at common law, is
borne in mind, and the history of the Eng-
lish l^islation is considered and the develop-
ment of our own is brought into view, it be-
comes manifest that the statute of 1842 was
not intended to make smugs^ling embrace
each or all of the acts there to&re prohibited
which could precede or which might follow
smuggling, *and which had been legislated [455}
against by the imposition of varying penal-
ties; in other words, that it had not for its
Eurpose to cause the means to become the end,
ut to supplement the existing provisions
against the means leading up to smuggling,
or which might render it beneficial, by a sub-
stantive and criminal statute separately pro-
viding for the punishment of the overt act of
passing the goods through the lines of the
customs authorities without paying or se-
curing the duties ; that is, the statute was in-
tended not to merge into one and the same
offense all the many acts which had been pre-
viously classified and punished by different
penalties, but to legislate against the overt
act of smuggling itself. And this view
makes clear why it was that the statute of
1842 related, not generally to acts which pre-
cede smuggling or which might follow it, but
to the concrete offense of smuggling alone.
That this was the purpose which controlled
the enactment of the act is cogently mani-
fested by the use of the words "clandestinely
introduce," since they, in the common law»
were synonymous with smuggling. Indeed,
in the English statutes the word "smuggling"
and clandestine importation, clandestine run-
ning and landing, were constantly made use
of, one for the other, as purely convertiblt
terms, all relating to the actual passing of
the goods across the line where the obligation
to pay the duty existed, and which passing
could not be accomplished except in defiance
of the duty which the law imposed. The in-
ference that the common-law meaning of the
word "smuggling" is to be implied is cogent*
518
455-458
SuPBEMR Court of thb United States.
Oov. Tbsm,
ly augmeiited by the fact that the statute
also uses in connection with it words gener-
ally known in the law of £2ngland as a par-
aphrase for smuggling. In reason this is
tantamount to an express adoption of the
common-law si^ification. Moreover, this
view is fortified Dy the concluding portion of
the statute, which supplements tne smug-
gling or clandestine introduction, by impos-
ing a similar penalty upon every person who
"shall make out or pass, or attempt to pass,
through the custom house, any false, forged,
or fraudulent invoice ;" all of which were acta
connected with the actual entry of the goods,
which, if the object intended to be acoom-
[466]pli8hed was effected, would^result in the suc-
cessful introduction of the goods into the
•country, without payment, in part at least,
of the duties reauired by law. This rela-
tion of the act of 1842 to the then existing
legislation and the remedy intended to be ac-
complished thereby were referred to and
elucidated by the court in Untied States t.
Siwty-seven Packages of Dry Ooods, 17 How.
85 [15:54]. In that case, after observing
that the provision making criminal the pass-
ing or attempting to pass foods through the
custom house by means of false, forged, or
fraudulent invoices (now a part of section
2685) was manifestly directed against the
production and use of simulated invoices and
those fraudulently made up for the purpose
of imposing upon the officers in making the
entry, the court said (p. 93) [15: 55] :
''The whole scope of the section confirms
this view. It first makes the smi^gling of
dutiable goods into the country a misdemean-
or; and, secondly, the passing or attempt to
pass them through the custom house, witn in-
tent to defraua the revenue, by means of
false, forged, or fraudulent invoices. The
latter is an offense which, in effect and result,
is verv much akin to that of smuggling, ex-
cept done under color of conformity to the
law and regulations of the customs."
It was then, therefore, in effect declared
that the smuggling or clandestine introduc-
tion of dutiable eoods into the United States
with intent to defraud the revenue of the
United States, against which the act of 1842
provided, was an act committed by passing
the goods in defiance of and without conform-
ity to the laws and r^ulations of the cus-
toms, or by preparing, attempting, or act-
ually passing the same through tne custom
house by means of false or fraudulent in-
voices.
The fact that the smuggling or clandestine
Introduction into the United States referred
to in the act of 1842 had substantially the
foregoing significance is also shown by the
case of United States v. Jordan, 2 Low. Dec.
537 (1876), where Lowell, J., in considering
the act of 1842 and other statutes, said:
"Under the statutes, smuggling, or bring-
ing in, or introducinff eoods, nas oeen held by
both the circuit and district courts for this
district for a long course of years to be
proved by evidence of the secret landing of
[467]goods witiiout paying or* securing the duties,
which, according to the argument here, would
be quite inadmissible if the importation in
the sense contended for had no element of con-
514
ceaJment about it. I have never
case of smuggling in which any
on board the vessel was relied on by the gQV>
emment. The gist of the offense ie the eva>
sion or attempted evasion of the datsea, aad
they, to be sure, are due when the veeed ar-
rives; but they are not payable until mmm
time after, and it is the default in paying
which is the fraud, or in omitting the acta
which immediately precede the paynwet
... A bringing on shmre without malrinc
entry, etc, is part of the importation or in-
troduction of the goods, and makes it illegal.*
It was earnestly contended in tiie argnsaft
at bar that the successful administration ol
the revenue laws would be frustrated vnlcM
the pains and penalties of smuggling be held
to be applicable to all unlawfm acts antece-
dent to the actual introducticm of the goods
into the United States. But this argmncnt
amounts onl^ to the contention that by an
act of judicial legislation the penalties for
smugglinff should be made applieaUe to a
vast numoer of unlawful acta not brooght
within the same by the law-making power.
And the result would be to eontrol all acts
done in violation of the revenue laws by a
highly penal criminal statute, although the
law has classified them into man^ diitinci of-
fenses according to their gravity, and t»-
posed different penalties in one ease than in
others.
The contention that because the portion ef
the act of 1842, now found in section 286S,
was omitted in the revision, and was only re-
enacted in 1877, therefore its langnage shoaM
be given a wider meaning than was oonvcyed
by the same words when used in the act ef
1842, is without merit When the re-enaei*
ment took place the act of 1848 in the par>
ticular in question had been oonsidered by
this court, and had been enforced in the
lower courts as having a spedfie pnrpoee and
meaning. The re-enactment without cbsaes
of phrMeology, by implication, earned the
frevious interpretation and nractiee with iL
ndeed, the re-enactment of the provisions ef
the act of 1842 is the best indication of the
judgment of Congress that the^portioo of tM^^I
statute restored should not have been dropped
in the revision, and that its Tn**w'*»g shovM
stand as though it had never been so ooutted,
but had always continued to exist.
It is settled that the rate of customs doty
to be assessed is fixed by the date of importap
tion, and is not to be determined by the tias
when entry of the m«*chandise is made
But this throws no light on the meaning «l
^e word "smugglinff,^ since that word, both
at common law and under the text of the
acts of Congress, is an act by whi^ tbs
goods are introduced without paying or m-
curing the payment of the duties, and henes
concerns, not the mere assessment of duty,
but the evasion oi a duty already aasessed»
by passing the line of the enstoms antbori-
ties in defiance of law.
There remains only one farther
tion for consideration, that is, the
that whatever may have been the
of the term "smuggling^ at
and its significance at the time
statute of 1842 was adopted, that that
ITS V. &
tbs
16M.
Keck v. Ukitkd tiTATJos.
408-461
u now found in section 2805 of the Revised
St&tutes is to have a more far-reaching sig-
Bifcinee, because it must be interpreted by
the meaning affixed to the word in section
4 of the anti-moiety act of June 22, 1874 ( 18
SUt at L. 186, chap. 391). The section re-
lied on is as follows :
**Sec 4. That whenever any officer of the
customs or other persons shall detect and
mu goods, wares, or merchandise in the act
of being smuggled, or. which have been smug-
glad, he shall be entitled to such compensa-
tion therefor as the Secretarv of the Treas-
ury shall award, not exceeding in amount
one half of the net proceeds, if an^, resulting
from such seizure, after deducting all du-
ties, costs and charges connected therewith :
PwMed, That for the purposes of this act
■muggling shall be construed to mean the
set, with intent to defraud, of bringing into
the United States, or, with like intent, at-
tempting to bring into the United States,
dutiable articles without passing the same,
or the package containing the same, through
the custom house, or submitting them to the
officers of the revenue for examination."
It suffices to say in answer to this conten-
tf •]tion that if the *anti-moiety act had the
meaning claimed for it, by the very terms of
that act such meaning was restricted to "the
purposes" of that act alone. That statute
had in view the reward to be reaped l^ in-
formers under the revenue laws of the Unit-
ed States, and the words, "for the purposes
of this act," can in reason only be construed
as oontemplatinff a more enlarged construc-
tion of the word "smuggling," for the pur-
pose of stimulating efforts at detecting of-
fenders against the revenue laws, and can-
not be held applicable, in the absence of the
dearest expression by Congress of a con-
trary intent, to a different and. criminal
statute. Indeed, if the word "smuggling"
in the act of 1842 embraced, as asserted,
every unlawful act which might lead up to
smuggling, then the explanatory words found
in the anti-moiety act would be wholly su-
perfluous. Their insertion in the statute
was evidently, therefore, a recognition of the
hd that smugglinp^ had at the time of the
passage of the anti-moiety act a defined le-
gal and restricted significance, whidi it was
the intent of Congress to enlarge for a par-
ticular purpose omy, and which enlargement
would be absolutely without significance if
the term before such enlargement had meant
exactly what Congress took pains to state it
intended the word should be construed as
meaning for the exceptional purposes for
which it was legislating.
Examining the case made by the record, in
the light of the foregoing conclusions, it re-
sults that, whether we consider the testi-
mony of ^e captain alone or all the testi-
mony contained in the record, as it unques-
tionably establishes that there was no pas-
sage of the packages of diamonds through
the lines of the customs authorities, but
that on the contrary the package was deliv-
€red to the customs officer on board the ves-
■d itself, at a time when or before the obli-
{ation to make entry and pay the duties '
7« U. 8.
arose, that the offense of smuggling was not
committed within the meaning of the stat-
ute, and therefore that the court erred in in-
structing the jury that if they believed the
testimony of the captain they should con-
vict the defendant, and in refusing the re-
quested instruction that the jury upon the
whole testimony should return a verdict for
*the defendant. This conclusion renders un-[460]
necessary a consideration of the other ques-
tions of alleged error discussed in the argu-
ment at bar.
The judgment must therefore be reversed,
and the case remanded, with directions to
set aside the verdict and grant a new trial.
*Mr. Justice Brown, with whom were the [460]
Chief Justice, Mr. Justice Harlan ^nd Mr.
Justice Brewer, dissenting:
I find myself unable to concur in the opin-
ion of the court in this case, and particularly
in a definition of smuggling, which requires
that the goods shall be actually unladen and
carried upon shore.
This definition rests only upon the author-
ity of Hawkins' Pleas of the Crown (a. d.
1716), repeated in Bacon's Abridgment (▲.
D. 173G), and copied into Kussell on Crimes
(A. D. 1810), and Qabbet's Criminal Law, a
work but little known. The diligence of
counsel has failed to find support for it in a
single adjudicated case in England or this
country. If it were ever the law in England,
it never found a lodgment in its standard
dictionaries, either general or legal, and has
never been recognized as such by writers up-
on criminal law, with the exceptions above
stated. It was never treated as the law in
America. The truth seems to be that smug-
gling 00 nomine was formerly, whatever it
may be now, not a crime in England, but a
large number of acts leading up to an unlaw-
ful unlading of goods were made criminal.
Smuggling appears to have been rather a
popular than a legal term, and the fact that
it was usually accompanied by the landing
of ^oods on shore may have led to the defi-
nition made use of by Bacon and Hawkins.
Indeed, in all the old English statutes cited
in the opinion of the court it is recognized
that the ultimate object of all smugglers is
to set their goods ashore without payment
of duties.
If, as stated by these authors, the actual
unlading and carriage of the goods to the
shore were an essential ingredient of the of-
fense, it is somewhat singular that it Hhoi'Id
have escaped* the notice of so learned a writer [44 ij
as Sir William Blackstone, who defines it,
in accordance with the views of the other
writers upon the subject, as "the offense of
importing goods without paying the duties
imposed thereon by the laws of the customs
and excise." 4 Black. Com. 164. Dr. John-
son, with his customary disregard of conven-
tionalities, defines the verb "to smuggle'* as
"to import or export goods without paying
the customs,'' and a smuggler as "a wretch
who, in defianco of justice and the laws, im-
ports or exports goods, either contraband or
without paying the customs." In Burns's
Law Dictionary (1792) smugglers are said
to be "those who conceal prohibited gnods
516
401-464
SUFBBMB OOUBT OF THB UnIISD StATIS.
Ooi:
and defraud the King of his cuslxmis on the
seacoast by running of goods and merchan-
dise." In Brown's Law Dictiox^ry (Eng.
1874), smugglinff is defined as ''importing
goods which are liable to du^ so as to evade
payment of duty;" and in McClain's Crim-
inal Law (§ 1351), as importing dutiable
goods without payment. There are similar
definitions in the Encyclopaedic and also in
the Imperial Dictionary. In the Encyclo-
paedia Britannica, ''smuggling*' is said to de-
note "a breach of the revenue laws, either by
the importation or the exportation of pro-
hibited goods, or by the evasion of customs
duties on goods liable to duty;" and Stephen,
in his Summary of the Criminal Law^ page
80, defines smu^linff as the "importing or
exporting of go(% without paying the duties
imposed thereon by the laws of custcmis and
excise, or of which the ixxiportation or expor-
tation is prohibited." similar definitions
are s^ven by Lord Hume in his C<Hnmentaries
on the Laws of Scotland, as well as in Bell's
Dictionary of Scottish Law, page 225. In
Torolin's Law Dictionary, where smuggling
is defined as "the offense of importing or ex-
porting goods without paying the duties im-
posed thereon by the custom or excise laws,"
a list of some thirty or forty acts connectbd
with the unlawful and fraudulent importa-
tion of goods is given, but in none of them
is the word "smuggle" mentioned as an of-
fense. In the sixth edition of his work on
Crimes, Sir William Russell gives as his au-
thority for the definition Hawkins, Bacon,
and Blackstone, the last of whom is against
him, and also sets forth a large nunmer of
[46S]acts "for 1^ prevention of ^smuggling,"
passed during the present reign, none of
which mention the word "smuggle" as a dis- .
tinct crime. Indeed, the word seems to be a
popular summing up of a large number of of-
fenses connected with the clandestine intro-
duction of goods from foreign ports.
But conc^ing all that is claimed as to the
law of England in that particular, the Ques-
tion is not, what was the law of Ens^and
during the last century, nor what it is to-
day, but what was the law of the United
States in 1842, when this act was passed, and
in 1 877, when it was incorporated in the Re-
vised Statutes? If we are to rely for a defi-
nition upon our lexicographers and legal
gp*ammarian8, there can be no doubt upon
the subject, as by Webster, Worcester, the
Century, and the Standard Dictionaries, and
in all the law lexicons, the offense is defined
in somewhat varied phraseology as the clan-
destine importation of goods without the pay-
ment of duties. I know of no American au-
thority, except the dictum of Judge Lowell
in United States v. Jordan, 2 Low. Dec. 637,
to the contrary.
It would seem from that case and from cer-
tain expressions in the opinion of the court
in the case under consideration, tJiat the of-
fense is not complete even when the goods
are unladen and put upon the shore, and that
ft failure to pay duty upon them is a neces-
sary element to justify an indictment, or
that, as the words "without paying or ac-
counting for the duty" imply the ^stence
of the obligation to pay or account at the
516
time of the oommissioii of the offenee,
du^ it evaded hj the guilty met, it :
that the offense is not committed bj
done before the obligation to pay or t .
for the duties arises, although audi act
indicate a tutnre purpose to evade when tke
Seriod of paying or securing the paymeBt «f
uties has heeai reached. It foUowa firoHi
this that if , at is the cuiitom upon the arrival
of trans-Atlantie tteamerty a pamrngiii'i
baggage is landed upon the wliarf, aad the
trunks are filled with goods dandeetlBcly
imported, the owner cannot be convicted ol
smuggling them under this statute, ainee the
obligaticm to pay the duties upoii them does
not arise until an attempt is made to carry
them off the wharf. *In my view the act oH4M9[
smuggling is complete when the goods arc
brought within the waters d a certain port,
with intent to land them withoot pajuunt
of duties. Whether, if the duties be sab>
sequentljr paid, such payment would be a
condonation of the offense is a question noon
which it is unnecessary to express an opinion.
It might depend upon tiM motives wbM in-
duced the importer to pay the duties. If they
were paid after detection, it might not be
considered sufficient; if before <MCeetion it
would be strong evidence of a ehanM of par*
pose. If the t^imonv of the capwn 4n this
case is to be believed, he brought the pndcacs
of diamonds into port wholly ignorant of t£s
fact that it contained dutiable articles. De-
fendant himself was not on board Urn
er, but took passage on another ship to ar>
rive later at another port» thus pnttii^ H
out of his power to pay or account for tts
duty. The guilty intent with whi^ tts
package was delivered in Antwerp to m In-
nocent party for transportation to this eonn-
try must be held to have oontinned, sinee de-
fendant had deliberately deprived himself ef
any looua pmitentuB by handing the package
to the captain for transportation and <Uiwy.
But we think it is unnecessary to look he»
yond the language of the statute itadf to ~
termine what is meant by the word ~
gle," since it is there defined as the (
tine introduction into the United States ef
"any goods, wares, or merchandise snbjeeC
to duty by law, and which should have bw
invoiced, without paying or aeoonntii^ for
the duty." If the words "dandeetinely in-
troduce" are not intended as a deflnitloa ef
the prior word "smuggle," they are
ed as a separate offense, and in eitlier
the defendant would be liable if he dai^ .
tinely introduced the goods without payt^
or accounting for the duty thereon. What«
then, is meant by a clandestine introdoction?
In at least two cases in this eourt (l7iMlei
States V. Vowell, 5 Cranch, 868. [S: IMl;
Arnold ▼. United States, 9 Craadi, 164,
[3:671]) an "importation" to w^iek tbi
government's right to duty attadiea wns dt>
fined to be an arrival within the lindts «f
some port of entry. Or, as stated by Mr.
Justice Curtis in United Staim ▼. Twm Tka^
sand Cigars, 2 Curt. C. C. 436, an iapoita-
tion is complete when the goods are *bronekl[6i^
within the limits of a port of entry, witk
the intention of unlading thsm Hmtsl* A
ITS V.M.
1898.
Chappsll Chemical & F. Ca y. Sulfhur Morss Oo.
464-466
dmflar definition of an importation is given
in the following cases: Harrison ▼. Vose,
9 How. 372, 381 [13:179, 183]; United
States v. Lyman, 1 Mason, 499 ; McLean v.
Eager, 31 Fed. Rep. 602, 606; The Schooner
Marjf, 1 Gall. 206, wherein it was said by
Hr. Justice Storv that "an importation is a
ftdimtary arriyal within soma port, with in-
tent to unlade the car^."
Siidi being the meaning of the word "im-
part," a clandestine importation would be
the brin^png of goods into a port of entry
with design to evade the duties. Should a
Bsrrower meaning be given to the words
"clandestinelT introduce T" I think not. The
word '^introduce" would strike me as enti-
tled to an even broader meaning than the
word "import." To introduce goods into
the United States is to fetch them within
the jurisdiction of the United States, or at
leist within some port of entry, and the re-
quirement that the^ should be unladen or
brought on shore is to import a feature
which the ordinary use of language and the
object of the act does not demand. If the
eanstraction of tiie words "clandestinely in-
troduce'' adopted by the court be the correct
one, it woula follow that a vessel loaded
with goods, which the owner designed to im-
port without payment of duty, leaving a
Koropean port, might be navieated up the
St Lawrence and ti&ough the (main of Great
Likes to Chicago (a voyage by no means un-
known), or up the Mississippi to St. Louis,
and be moored to a dock, and yet the goods
be not introduced into the United States, be-
cause not actually unladen upon the wharf.
I cannot give my consent to such a narrow
definition.
Confirmation of the above meaning of the
word "smuggle" may, I think, be found in
the act of «Jmie 22, 1874 ( 18 Stat, at L. 186,
chap. 391), commonly known as the "anti-
moiety act." In section 4 of that act it is
provided that the Secretary of the Treasury
shall award to oflScers or others detecting or
seizing smugsled goods a proportion of their
proceeds, and that "for the purposes of this
act smuggling shall be construed to mean
the act with intent to defraud or bringing
into the United SUtes, or with like intent
66]attempting to bring into the United "States
dutiable goods without passing the same, or
the package containing the same, throuffh
the custom house, or submitting them to the
officers of the revenue for examinaUon." It
is true the definition is given "for the pur-
poses of this act," and evidently with the
object of including within its provisions, not
ooJy the act of smuggling proper, — that is,
the act of importii^ with intent to defraud
dutiable artides without passing, etc., — ^but
of an attempt to do the same, which would
probably not be construed as smuggling un-
der the provisions of other acts. It is scarce-
ly poesmle that Congress should have con-
t^plated wholly difiTerent interpretations
of the same words in different acts.
But it is useless to prolong this discussion.
The whole question turns upon the meaning
of the cordis "smuggle" and "clandestinely
introduce." I have given my reasons for be-
172 U. 8.
lieving that th^ include an importation of
goods with an intent to evade the duties,
the right to which has already attached;
and 1 am at a loss to understand why an
obsolete definition of the English law should
be rehabilitated to defeat the manifest inten-
tion of Congress.
CHAPPELL CHEAnCAL ft FERTILIZER
COMPANY, Pllf, in Err.,
V,
SULPHUR MINES COMPANY OP VIR-
GINIA.
(See 8. C. Reporter's ed. 465-471.)
Federal question.
When the decision of a state court rests apoB
grounds other than those dependent npon a
Federal question, it Is not reviewable here,
although a Federal question was also raised
In the state court.
[No. 91.]
Argued December 16, 1898. Decided Jan-
uary 9, 1899.
IN ERROR to the Court of Appeals of the
State of Maryland to review a decree of
that court affirming a decree of the Circuit
Court No. 2 of Baltimore City sustaining a
demurrer to the bill of the plaintiff, the
Chappell Chemical ft Fertilizer Company,
and to review a decree of that court affirm-
ing an order of Circuit Court No. 2 of Balti-
more City refusing the plaintiff leave to file
an ancillary bill of complaint. There was
also a motion to dismiss. Dismissed.
See same case below, 85 Md. 681.
Tlie facts are stated in the opinion.
Mr. Thomas C. Cliappell for plaintiff
in error.
Messrs. James M. Ambler, Randolpli
Barton, Skipwith Wilmer, and Randolph
Barton* Jr., for defendairt in error.
*Mi. Justice MoKenna delivered the[466]
opinio.i of the court:
This is a suit in equity to restrain the en-
forcement of a certain writ of attachment
and execution issued on a judgment recov-
ered aeainst plaintiff in error. The original
bill alWes that the judgment is absolutely
void. Ti\e following are some of its allega-
tions :
''That the said purported judgment was
recovered by the said defendant against your
orator in the superior court for Baltimore
citv, before the judge at large, and that said
judgment is rendered coram non judice^ and
your orator herewith files a certified copy of
the docket entries in said case, marked 'Com-
plainants' Exhibit B,' reference being had
thereto.
"That the entry on said docket, that the
case was submitted to the judge, is absolute-
ly fraudulent, and that there is a motion
pending in said case to correct said fraudu-
lent docket entry.
"That your orator is advised that the said
617
466-469
SuPRBMB Court of thb Umitbd States.
case was not before said judge at large when
said jud^ent was rendered, and said judge
had no jurisdiction or authori^ at law to
render said jud^ent.
'That the said Judgment was made abso-
lutely by the said judge at large, while there
was pending a motion to strike out the ver-
dict and the judgment thereon, and your
orator insists that said judgment is abso-
lutely void, and rendered ultra vires, and
said motion to strike out the judgment is
still pending in said superior court.
It is also allied that there was pending in
the case a motion to ouash the attachment.
There were exhibits filed with the bill. A
demurrer was interposed. Subsequently an
amended and supplemental bill was filed, con-
taining additional allegations of proceedings,
and the prayer was also broadened.
To this bill a demuirer was again filed,
and the ground of it stated 'to be that the
bill did not state such a case as entitled
plaintiff to any relief in equity.
[467] *Thc demurrer was sustained, and the bills
dismissed on the 2d of June, 1896.
On the 22d of August, 1896, the plaintiff
presented a petition for leave to file an an-
cillary bill in the following words :
The said plaintiff, by Thomas C. Chappell,
its attorney, reserving every manner of ad-
vantage and exception whatsoever, shows to
this honorable court:
1. That since the decree was passed in
this case dismissing the bill of complaint
herein, the motions of the said Chappell
Chemical Fertilizer Company in the case of
The Sulphur Mines Company of Virgima v.
The Chappell Chemical d Fertilizer Com-
pany, which said motions are referred to in
the oririnal and supplemental bills filed
herein, nave been overruled.
2. That an appeal from the order of the
eourt in said acuon at law is not an adequate
reme(^, and that under art. 16, sec. 69, Code
Pub. Gen. Laws of Maryland, tiie said plain-
tiff herein is entitled to an injunction to en-
join the said plaintiff herein from reaping
any benefit from the said purported judg-
ment, and from occasioning tnis plaintiff anv
damase by any proceedings in said pretend-
ed ju^ment.
8. That while the filing of an amended or
an ancillary or supplemental bill is in thedis-
eretion of the court, that discretion is to be
exercised within prescribed lesal and equit-
able limitations, according to we decision of
the court of appeals.
4. That the property of this plaintiff is
tied up and renaered evtra oommeroium, and
placed in such a position and its title so
clouded by this invalid and ill^l judgment
delivered in a oourt without jurisdiction, and
coram non fudioe, and in violation of the
Seventh Amendment and the Fourteenth
Amendment of the Constitution of the United
States, under whic^ the said nlidntiff spe-
cially seta up and claims a riffnt, privilege,
and immunil^, that the said plaintiff is en-
titled to file an amended, supplemental, and
ancillary bill herein, fully setting forth all
the facts and insists that said illegal and in-
valid judgment should be canceled by this
618
honorable courts whose province la to niefcrt
wrong and to do ri^ht uid the *8aid ^aiatifl[4iq
claims that it is being deprived of its liberty
and its property without due proee» of lav,
and that under the Declaration of Rifi^ds of
the state of Maryland, art. 6, and the Consti-
tution of the state and law of the state u
laid down by the court of appeals of Mary-
land, it was entitled to a trial by jury ii
said case at law, having demanded siidi trial,
and that the action of the judge at large ii
denying that riffht and in tr^ng said cast
after an appeal from an order affecting a
constitutional right, without a jury and cs
parte and without notice to tms plaintiif,
and without an opportunity to be h^ud, aad
without any trial of the facts, and the find-
ing of a verdict by the judge at larse upon
the false and fraudulent testimo^ of the of-
ficer of the said Sulphur Bfines Compai^ of
Virginia, at said ex parte trial, all of mA
this plaintiff char^, is the enforcement of
law and a regulation of the state abridginr
a privilege and immunity of this plaiatiB,
which is a citizen of the United States, aaf
is repugnant to the Fourteenth Amcndmeift
of the Constitution of the United States, aai
every judfie and all the pe<^le are bound bf
the Constitution of the United States, art t,
Declaration of Rights of the state of Mary-
land, article 6, (institution of the Unitel
States. Wheitsfore your petitioner ptmyi
leave to file an ancillary bill of oomplaiit
herein, and speciallv sets up and daims tbt
privilege, ana specially seta up and daias
that anv denial of the said privilege win bs
a denial of the equal protection of the lam
and repugnant to the Fourteenth Anead-
ment of the Constitution of the Unitei
States. Thos. C Chappell,
Att> for PUUntiff.
On the same dav leave to file the bill wm
refused, and the plaintiff, on ih» 26th of Ai*
gust, 1896, filed the following:
The said plaintiff, by Thomas C Chaopsll,
attorney, reserving every manner nt aava»
taffe and exception whatsoever, ezoepts to thi
order of court requiring the demurrer Uti
in this case to be argued before all of Um d^
fendants had been served with anhpcna, sad
to the order of court dismissing the orifinsl
and supplemental bills of oomplaliit hmla.
and to *the order of court Twrntof to tM^
plaintiff the risht and privilege to Ue an H^
ciliary bill, ana specially seta im aad date
that said order abridges a prmjese aad ia*
munilT of the said plaintilr, a d&Mi of the
United States, and are repugnant to the
Fourteenth Amendment of the OunsUUitioa
of the United States, under whldi laid plaia-
tiff specially set up and datm a right, prifi-
lege, and immunll^.
Thoc. C Chapi^.
4^ttonM(y for FiaiatiC
And on the same day the foUowiag :
Mr. Clerk: Please eiBtsr aa amal fNB
the decree in this ease dated the ad diy W
August, 1896.
Thoe. C. ChappeD,
Attorney for Plaintiff.
i7t ir.&
189^.
ChaPPELL CUBMICAL <& F. CO. Y. SULPHUB MlNES CO.
461^-471
Then follow in the record certain papers
which presumably were necessary to perfect
the appeal.
The record contains two opinions and two
judgments of the court of appeals, all dated
the dame day. The one which comes first in
the record considers and affirms the decree
of the lower court sustaining the demurrer
and dismissing the bills entered June 2,
189C; the other aJSrms the order of the 22d
<A August, 1896, refusing leave to file the an-
cillary bill.
The following is the opinion of the court
<m the latter:
The decree of the court sustaining the de-
murrer and dismissing the original and sup-
plemental bills of the Ghappell Chemical &
Fertilizer Company a^inst the Sulphur
MiuHes Company of Virginia et al. was passed
June 2, 1896. On the next day an appeal
was entered, which we have just considered.
On the 22d day of August, 1896, over two
months and a half after the appeal was
taken and while it was still pending, the ap-
pellant filed in the original case a petition
asking leave to file 'an ancillary bill of com-
plaint herein.' The court very promptly and
properlv refused to allow it to be done.
Fnnn that order this appeal -was taken.
"Even after a court of equity has sustained
a demurrer to a bill, it can grant leave to
,70]aroend if it can be seen that the defects *can
be remedied by amendment, and the court is
of the opinion that substantial justice re-
2 aires it. But when an application to amend
I not made within a reasonable time and the
bill is dismissed, it is out of court, and
tiiere is nothing to amend. In this case, in-
stead of asking the court to strike out the
decree dismissing the bill so it could amend,
the appellant took an appeal. The case was
thus beyond the right of the plaintiff to
amend or to file a supplemental or 'ancillary'
bill. But, in addition to that, the reasons
assigned in the petition were not sufficient
to authorize the interposition of a court of
equity. The order of the court in refusing
to allow the plaintiff to file an 'ancillary bill'
must be affirmed.
"Order affirmed, with costs to the appel-
lee."
There is more confusion when we come to
the petition for writ of error. It does not
distinguish between these judgments except
by a reference to the assignment of errors.
Tlie petition recites "that on or about the
6th aay of June, 1897, this court [court of
appeals] entered a decree herdn in favor of
the defendant, the appellee, and against this
plaintiff." It then recites that there was
drawn in question the validitv of a statute
or an authority exercised under the United
States, and the decision was against
the validity, and also the validity
of a statute or an authority ex-
ercised under the state, on the ground of
repugnancy to the Constitution of the United
States, and the deciaion was ia favor of the
ITS V. S.
validity; and that "certain errors were com-
mitted to the prejudice of this complainant,
the appellant, all of which will more fully
appear from the assignment of errors, which
will be duly filed herein."
The assignment of errors is as follows :
"Afterwards, to wit, on the first Monday
of October, in this same term, before the
Justices of the Supreme Court of the United
States, at the Capitol, in the city of Wash-
ington, comes the Chappell Chemical & Fer-
tilizer Company by Thomas C. Chappell, its
attorney, and says that in the record and pro-
ceedings aforesaid there is manifest error
in this, to wit, that the demurrer
aforesaid and the matters therein con-
tained are not sufficient in law for the Sul-
phur Mines Company •of Virginia to have or[471]
maintain its aforesaid decree against the
said the Chappell Chemical ft Fertilizer Com-
pany. There is also error in this, to wit,
that by the record aforesaid it appears that
the decree aforesaid given was given for the
said the Sulphur Mines Company of Virginia
against the said the Chappell Chemical &
Fertilizer Company, whereas by the law of
the land the said decree ought to have been
given for the gaid the Chappell Chemical &
Fertilizer Company against the said the Sul-
phur Mines Company of Virginia; and the
said the Chappell Chemical ft Fertilizer Com-
pany prays the judgment and decree afore-
said may be reversed, annulled, and held for
nothing, and that it may be restored to all
things which it has lost by occasion of said
judgment, etc."
The writ of error, therefore, is directed to
the decree of the court of appeals affirming
the decree of the lower court of the 2d of June,
1896, while the only appeal that the record
contains is from the decree of the latter of
the 22d of August, 1890.
^ut passing by this confusion, and regard-
ing both decrees before us, we come to the
motion to dismiss made by the defendants in
error on the ground that no Federal ques-
tion was raised in the state court.
This it true as to all the pleadings and
papers, except the petition of the 22d of Au-
rt, 1896, for leave to file an ancillary bill,
however, a Federal Question was raised
by the petition and on the appeal from the
order denying it, the motion to dismiss must
nevertheless be granted, because the decision
of the court of appeals rests on grounds other
than those dependent on Federal questions.
Simmerman v. Nehraakay 110 U. S. 64 [29:
535] ; Eustis v. Bolles, 160 U. S. 301 [37 :
1111]; California Powder Works v. Davit,
151 U. S. 380 [38: 200] : MisaouH P. R. H.
Co, V. Fitzgerald, 100 U. S. 560 [40: 530] ;
Fowler v. Laimon, 104 U. S. 252 [41: 424].
See also Iowa Central R, R. Co, v. Iowa, 100
U. S. 389 [40: 407] ; Long Island Water Sup-
ply Co. V. Brooklyn, 100 U. S. 085 [41:
1105] ; and Miller v. Cornwall R, Co. 108 U.
S. 131 [42:409].
The writ of error it dismissed,
619
472-474
SUFBB3CB Court op thb UmrBD Statu.
Oor. Torn,
i4*»]CaaULFPELL CHEMICAL ft FERTILIZER
COMPANY, Plff. in Err.,
V.
6ULPHUR MINES COMPANY OF VIR-
GINIA.
(See 8. C. Reporter's ed. 472, 478.)
Federal question,
Vhe tftmletal of an appeal on the ground that
it la prematurely taken does not present a
Federal qnestlon.
[No. 92.]
Argued December 16, 1898, Decided Jan-
uary 9, 1899.
IN ERROR to the Court of Appeals of the
State of Maryland to review a judgment
of that court dismissing an appeal from the
Superior Court of Baltimore Ci^ brought by
the defendant, the Chappell Chemical ft Fer-
tilizer Ccmipany. There was a motion to
dismiss. Writ of error dismissed.
See same case below, 85 Md. 683.
The facts are stated in the opinion.
Mr. Thomas C. Climppell for plaintiff
in error. •
Messrs. James II. Ambler, Randolph
Bartoi^ Skifywith WUmer, and Randolph
Barton, Jr., for defemlaot in error.
Thfis cause was argued with No. 91, the
preceding case.
[47S] *Mr. Justice MoKemaa delivered the
opinion of the court:
This is a writ of error to the court of ap-
peals of the state of Maryland to review a
judgment made by it, and whidi is hereafter
set out.
^ The action was at law for the recovery of
eight thousand dollars for money payable,
?;oods sold, and work done, and materials
urnished by defendants in error (plaintiffs
in the court below) to plaintiff in error (de-
fendant in the court below), and was
brouffht in one of the city courts of
I473]Baltmiore, *Md. To the declaration a plea
was filed February 12, 1895, averring that
the defendant was never indebted and never
promised as alleged. On January 13, 1896,
under the Maryland practice, upon the sug-
gestion of the defendant (plaintiff in error)
that it could not have a fair trial, the ease
was "transmitted" to the supreme court of
Baltimore, Md.
The record contains a number of motions
and exceptions to the ruHngs on the motions.
One of these exceptions was that the ruling
of the court deprived plaintiff in error of a
jury trial under a law of Maryland and the
rules of court made in accordance therewith,
which law and rules plaintiff in error alleges
are repusrnant to the Constitution of fiie
United States. Another objection was to
an order made on the 6th of February, 1896,
requiring plaintiff in error to employ new
counsel, the cause under tiie practice of the
eourt having been peremptorily set for trial
on the 20th of February, 1896, after having
been twice postponed for the alleged sickness
of counsel.
620
An appeal was entered from this order aai
perfected. The court of appeals ^gmmd
it December 8, 1896, saying:
"The appeal in this caseWTl]^ bem »>
maturely taken, the motioa to ^^■■■W it
must prevaiL
"The defendant, long after the time izsi
by the rule of court, demanded a jury trid,
and without waiting for the actum of tk
court upon his motion, and indeed befon
there was any trial of the case v^rai its oflriti
and before any judgment, final or otherwise
was rendered, this appral was taken fnm
what the order of i^peal calls the order ef
court of the 6th of February, 1896, demw
the defendant the right of a jury trial; bS
no such order appears to have been paid.
On the day mentioned in the order of appeal
there was an ordo- passed by the eout be-
low fixinff the case for trial, bat there wm m
action taken in pursuance of sadi order m-
til subsequent to this appeaL There Is a»
ottier appeal pending here from the erdsn
which were ultimatdy passed.
"Appeal dismissed.^
Ko Federal question was dinposcd ef If
this decision.
Writ of error dismissed.
CHAPPELL CHEMICAL k FEBULBBf^
COMPANY, Plff. ia
V.
SULPHUR MINES COMPANY OF ▼»-
OINIA.
(See 8. C. Reporter's ed. 4T4. 4TB.>
Removal of oausosqual proleoKoa ef tike
laws.
1. The loss of the jorisdletloa of a state eMit
by the pendency of a petttkm tor reaoral ef
the cause to a Federd court is not aWva If
a record on writ of error which does Ml
contain the gronnds of the petltloa fir t¥
moval or the petition Itself, and wh«* t^
fact that this was filed appears only If
al and by the opinion of the conrL
2. The equal protection of tb% laws to
denied by a state statute abrldflBf tke riflt
of trial by jnry In the courts of a dty,
out making a similar provfsloB tst the
.ties of the state.
[No. 09.]
Argued Deeemher 16, 189B. Deeiisi
Mary 9, 1899.
IN ERROR to the Cowrt of Appesb ef thi
State of Maryland to review a jndgBVl
of that court affirming a JudcBMnt ef the
Superior Court of Baltimore City in Iner
of the plaintiff, the Sulphur Mines C
of Vliginia. Also on motion to
Judgment affirmed.
See same case below, 86 Md. 684.
The facts are stated in the opinion.
Mr. Thomas O. Ckappell for ~
in error.
Messrs. James II. AmUar, _
Bartom, Skipunth WOmer, and .
Barton, Jr., for defendant In error.
17S1L&
1886. OoLTTMBiA W. Power Go. v. Columbia Elbotbig Stbbbt R. L. & P. Co. 474-477
This cause wvis argued wHh Nos. 91 and
92, preeeding it.
174] 'Mr. JusUce MeKemam delivered ihe
opimon of the court:
This is an action at law brought by plain-
tiff in error against defendant in error and
another, for causes growing out of the mat-
ters sued on in No. d2. Here, as in No. 02,
there was a series of motions which we do
not thmk it is necessary to notice.
The case, on the appeal of plaintiff in er-
ror, reached and was passed on by the court
of appeals of the state, and to its judgment
siBrming that of the lower court this writ
of error is directed.
The Judgment must be affirmed.
Claims under the Constitution of the
^lUnited States were set *up in several of the
motions and denied by the court. One daim
was that the Constitution of Maryland
sbridged the right of trial by jury in the
courts of Baltimore city without making a
similar nrovision for the counties of the
state, ana that this denies to litigants of the
titj the equal protection of the laws. This
is not tenaole. Mi$$auri v. Lewis, 101 U. S.
22 [25: 989] ; Eayes ▼. UUaowri, 120 U. S.
68 [80: 578].
Ilie other daim was that the state courts
lost jurisdiction by reaeon of the pendency
of a petition filed under section 641 Revised
Statutes, to remove the case to the United
States dreuit court. The petition for removal
is sot in the record, and we onl^ know that
it was filed bv reason of the recital in other
motions and its notice in the opinion of the
eoort of appeals, and the grounds of it do
not appear in any part of uie record.
In ail other matters the judgment of the
court of appeals depends on questions of
state practice and state laws.
Juigmeni affirmed.
COLUMBIA WATER POWER COMPANY,
Plff. in Err.,
V,
COLUMBIA ELECTRIC STREET RAII-
WAY, LIGHT, ft POWER COMPANY.
(See 8. C Rep<Mrter's ed. 475-498.)
Federal question — reservation of a right 9v
water potoer by a state — Federal question.
L A Federal question snfflclently appears, al-
though the complaint does not mention the
Constitution of the United States, where the
iHiole theory of the case Is the Impairment
toy statute of a contract created by a prior
statute, and the pres^itatlon and decision of
this question appear from the record and
opinion of the state conrt.
2. The rl^t of the state to lease such por-
tion of the water power reserved as It does
not require for the use of a penitentiary Is
Included In the rights reserved to the state
under S. C. act December 24, 1887, authoriz-
ing the transfer of a canal, but providing
that the state shall be furnished free of
charge 500 horse power of water power **for
the use of the penitentiary and for other pur- 1
poees.*' and declaring that **the right of the
ifZV. 8.
state to the free use of the said 500 horse
power shall be absolute."
8. Questions as to the legal title to land, and
the right to erect a steam plant for use when
water power Is unavailable, as an Incident
of a right to put an electric plant on the
banks of a canal for the use of water power,
are not reviewable on writ of error from the
Supreme Court of the United States to a
state eourt.
[No. 67.]
Argued December 6, 7, 1898. Decided Jan^
uary 9, 1899.
IN ERROR to the Supreme Court of the
State of South Carolina to review a de-
cree of that court affirming a decree of the
Court of Common Pleas for Richmond Coun-
ty dismissing the complaint of the plaintiff,
the Columbia Water Power Company, for an
injunction against using its watcur power and
trespassing upon its banks. Decree of the
Supreme Court affirmed.
See same case below, 43 S. C. 154.
^Statement by Mr. Justice Brown t [^76]
lliis was a complaint in the nature of a
bill in equity, filed in the court of common
pleas for Richmond county by the Columbia
Water Power Company as plaintiff, to en-
join the Columbia Electric Street-Railway
Light ft Power Company from using certain
water power for the propulsion of its cars,
lighting its lamps, and furnishing power mo-
tors; also from entering upon plaintiff's lands
and erecting thereon its buildings, works, and
machinery ; and also requiring the defendant
to remove such as had already been erected;
and for the payment of damages.
The bill set forth that a structure known
as the Columbia canal begins above the city,
passes throuffh the city near the western
boundary, and empties into the Congaree
river just beyond tne limits of the city, pass-
ing around the shoals and falls in said river»
and when constructed and in use made a con-
tinuous communication between the Broad
and Congaree rivers; that the canal was be-
gun by the state as a public work in the year
1824, and for the purpose of its construction
^certain lands were purchased within the lim-[47^
its of the city, through which the canal was
to be carried and constructed ; that the canal
was used for purposes of navigation for some
time, and remained, with the lands described,
the property of the state until February S,
1882, when the general assembly of the state
by an act of that date authorized and direct-
ed the canal conmiission to transfer the
canal, with the aforesaid lands, to the board
of directors of the state penitentiary, with
all the rights and appurt^ances thereto ac-
quired by the state; that the board was au-
tnorized and directed and subsequently did
take possession of the canal and lands, and
proceeded with the work of enlarging and
developing the canal, expending large sums
of monev for that purpose, and widened and
enlarged its banks, and remained in the full
possession thereof until December 24, 1887,
when the general assemblv passed an act
(the material portions of which are printed
521
477-479
SUPRBKB COUBT OV THB UHITSD STAnS.
Oor. Tbx.
in the marginf) ''to incorporate the board of
trustees of the Columbia canal, to transfer
[478]to said board the Columbia *canal with the
lands held therewith, with its appurtenances,
and to develop the same" (19 S. C. Stat.
1090) ; that by section 1 of the act the board
of directors of the penitentiary was author-
ized to transfer and release to the board of
[47 9] trustees of the *canal the canal properly and
its lands, with their appurtenances, and that
the same should vest m the trustees for the
. use and benefit of the city of Columbia ; that
such transfer was made and possession taken
by the board of trustees, and the property
so remained in their possession until the date
and year hereinafter mentioned.
That by section 21 of the aboTe act the
board of trustees was declared a corporate
body, and was authorized, among other tnings.
to purchase, sell, or leue Uadi adjaioiigai
canal, useful for the porpoees of the eaisl,
to seU or lease the water power of thtt cud
subject to such rules ana rggnlitioi m H
should prescribe; and that b^ Tirtoe of wtA
act the trustees became entitled to the ck-
dusiye franchise and right to scD or Issm
the water power developed bjr the caail for
manufacturing and other mdustrial |Mr>
poses, without let or hindranoe, and inth-
out the right of any person or ecnporation ts
interfere or intemipt in any manner thm w
of such water power, saTe and ezeept it
should provide a certain amount oi watv
power to certain persons and partSes in said
act nominated and mentioned, and thai no
person or corporation had a r^t to divot,
disturb, impede, or interfere wnh the Bow of
water down the said canal.
fAct of December 24. 1887.
Section 1. Be it enacted 5y the Benate and
Houee of Repreaentatives of the State of South
Carolina, now met and sitting in General Aa-
eemhly, and hp the authority of tT^e eame. That
the board of directors of the Sooth Carolina
penitentiary are hereby authorised, empowered,
and required to transfer, assign, and release to
the board of trustees of the Colombia Canal,
hereinafter created and provided for, the prop-
erty Icnown as the Colombia Canal, together
with the lands now held therewith, acqoired on-
der the acts of the general assembly of this
state with reference thereto or otherwise, all
and singular the rights, members, and appur-
tenances thereto belonging; and opon soch
transfer, assignment, and release all the right,
title, and Interest of the state of Sooth Caro-
lina in and to the sa'd Colombia Canal and the
lands now held therewith, from its soorce at
Boll's Sluice throogh Its whole length to the
point where it empties Into the Congaree river,
together with all the apportenances thereonto
belonging, shall vest in the said board of tros-
tees for the ose and benefit of the city of Co-
lombia, for the porposes hereinafter In this act
mentioned, sobject. nevertheless, to the perform-
ance of the conditions and limitations here-
in prescribed on the part of said board of
tnistees and their assigns: Provided, That
•hoold the said canal not be completed to Ger-
vais street within seven years from the passage
of this act, all the rights, powers, and privileges
goaranteed by this act shall cease, and the said
property shall revert to the state.
Sec 2. That the said board of trostees are
hereby aothorlsed and directed, for the develop-
ment of the said canal, to take into their pos-
session the said property with all its appor-
tenances: and for the porpose of navigation,
for $>roviding an adequate water power for the
uee of the petiiientiary, and for other purpoeee
herein named, they are hereby aothorlsed, em-
powered, and directed to Improve and develop
the same.
Sec 7. That the board of trostees shaU,
within two years from the ratification of this
«ct, complete the said canal so as to carry a
tody of water 150 feet wide at the top. 110
feet wide at the bottom, and 10 feet deep from
the soorce of the canal down to Gervals street,
and fnmieh the etate, free of charge, an tt^e Une
ef the canal, 890 horte power, af water
power, to SoUivan Fenner or assigns
600 horse power of water power, onder
bis contract with the canal commission,
and to furnish the city of Coiambla 500 horse
power of water power at any x»olnt between the
source of the canal and Gervals street thm dty
may select : and shall, as soon as Is practlcsWi,
complete the canal down to the Coaigarsc rtnr
a few yards above the month of Bocky Braadh :
Provided, That the right of the etmte ta the frm
uee of the eaid 109 horee power ekmU kt e/bee-
lute, and any mortgage, ssslgnmsnt. er eckv
transfer of the said canal by the said boexd il
trostees or their assigns shall always be
to this right.
Sec 21. The said board of
and Is hereby, declared a body potlttc and
porate. Its corporate name diall be
Trostees of the Colombia CanaL** Its
shall be a chairman and a eeeretary
nter. It shall have a corporate seal :
and enforce Its by-laws for Its govemmcat :
porchase, sell, or lease lands •^j*>iiiti>y ^t
usefol for the porpoees of the canal
or lease the water power ef the
to 9%u!h mist Olid re^nloMoat me it
ecribe, having fkret provided for tha
500 horee power of wmter power at the
tiary, and 500 horse power of
Solllvan Fenner or his asstga
power of water power for the dty of
may soe and be sued, plead or be Impleaded
their corporate name, and
powers as are hereinbefore
fix soch compensation for the servleso of tke
retary and treasurer as tbev asaj
Section 28 as amended by act of
189a (20 8. C. But. 867.)
Sec 28. That the said board of
soon as they have fnlly developed the said
and secured the payment of the debts
by them In Its development, they skall
the canal, with all Its appnrtSDanesa. to tke
of Colombia. But the said board of
shall have foil power and anthortty,
said canal has been fully developed
pleted and turned over to the cttf of
to sell, alienate, and transfer the
its appurtenanosa, the
and all the rights and franehless
this act on said board of trusUwi, to
son or corporation, subject,
duties and llabllltlea Impoesd
ject to all contracts, UabUltlei^
made and entered Into by
soch sale and tranafte.
consent of nine members of the dty
the city of Columbia;
alienation, and tranafte Is
notice of the offer to
thereof shall be given to tka bimlM of the «I
of Columbia.
Approved December 84* a. n. 18Mi
189d. OoLUiiBiA W. Power Co. v. Columbia Electiuc Htrbbt R. L. <& P. Co. 479-482
That by the 23d section of this act, as
amended by tiie subsequent act of December
24, 1890 (20 S. C. Stat. 967), the board of
trustefls was given full power and authority
to sell, alienate, and dispose of the canal, its
linds and appurtenances, to any person or
eorpontion, subject to all duties and liabil-
ities imposed by the act, and to all contracts
made by the board, prior to such transfer, up-
}0]on the approval and consent *of nine mem-
bers of tne council of the cit^ of Columbia ;
that in pursuance of such section, the trustees,
before tne completion of the canal, and on
January 11, 1891, conveyed all of said prop-
erty to the Columbia Water Power Company,
the phtintifT, including the canal and all of
the lands held therewith, easements, rights
of ^ay, rights of overflow, and appurtenances
acQuired bv Hie board of trustees, with their
rignts and franchises; that the plaintiff
went into possession of all the property, and
80 remained in possession without any claim
or assertion of an adverse right, and thereby
became entitled to all the franchises, privi-
leges, and immunities conferred upon the
brard of trustees.
That the act of December 24, 1887, pro-
Tided that upon the development and com-
pletion of the canal the board of trustees
should furnish the state free of charge 500
horse power of water power ; and the 23d sec-
tion of the act as amended provided that
this duty should be imposed upon any person
or corporation to whom the board of trustees
shouM sell or transfer the property; that in
March, 1892, the development and enlarge-
ment of the canal was completed, and on said
date, and ever since, the plaintiff was and is
ready to furnish the state with the 500
horse power of water power as required by
the act aforesaid.
That the defendant, a South Carolina cor-
poration, was organized by the consolidation
of three prior companies, and was authorized
to construct through the city a street rail-
way, and also to maintain a system of elec-
tric lighting; that in May, 1892, the plain-
tiff was informed by the board of directors
of the penitentiary that the defendant com-
pany had been authorized by the said board
to buOd a power house, with forebay, flumes,
and water wheels, for the purpose of utiliz-
ing the 500 horse power to be furnished to
the state, and that it was the purpose of such
company to erect works under 9uch authori-
ty to develof) such power, and to furnish to
the state, within tne walls of the peniten-
tiary, so much of said power as had been
agreed upon by and between the board of di-
rectors of the penitentiary and the said com-
pany; that the plaintiff eave immediate no-
]^oe to the said ooard and to the ^defendant
that it would object to the use of any of its
lands or embankments on the west side of
^e eanal by any person or corporation, ex-
cq>t 80 mudi as would be necessary for tibe
erection of the power house to furnish 500
horse power for the use of the state; that the
state should have full liberty to buUd such
works upon the embankment of the canal as
were necessary in fumishinff such water pow-
er; but that such works should be strictly
confined to such portion of the property of
172 V. 8.
the plaintiff as should be necessary for that
purpose; and that the plaintiff wculd not
recognize the right of the state to assign such *
horse power, or any part thereof, to any cor-
poration to be used for private purposes,
outside of the walls of the penitentiary or
any public institution of the state; and that
it was under no obligation to furnish water
power from the canal to be used by private
corporations for private enterprises.
That subsequently the defendant, acting
through the board of directors of the peni-
tentiary, submitted plans and speciflcations
for the erection of works for making the state
water power available, and plaintiff ap-
proved of the same as not taking more of the
land than was necessary for the development
of the 500 horse power for the use of the
state, and allowed the defendant to proceed
with its work, which was completed in ac-
cordance with the plans and specifications
so submitted ; but that thereafter the defend-
ant, against the protests and objections of
the plaintiff, proceeded to place in such
works machineiy intended solely for the pur-
pose of running its electric lights and street
railway, and furnishing power to divers per-
sons in the city for their industries, against
which plaintiff protested, and gave notice
that proceedings would be taken to prevent
such misapplication by the electric company,
which, notwithstanding such protests, con-
tinues to place such machinery in its power
house for its own private purposes ; ana that
plaintiff is wholly without power to prevent
the action of the defendant in such misap-
plication of such power for its private pur-
poses, owing to the duty of the plaintiff to
furnish powei' for the use of the state and
its penitentiary, as such power is furnished
and made available at and by the same * water [468]
wheel; and that, unless such use be en-
joined, it will suffer irreparable injury and
damage, and its franchise to sell and lease
water power for purposes of manufacturing
and other industrial purposes will be af-
fected and materially injured.
That the said defendant also in February,
1893, against the protest of the plaintiff, en-
tered upon its premises on the western em-
bankment of the canal and at the southern
end of the power house above mentioned,
and excavated and removed the earth, rock,
and works composing the foundation of such
embankment, to the great danger of the canal
and embankment, and began erecting the
foundations for the steam engine to be used
in running generators, dynamos, etc., as
above stated, and has placed portions of its
machinery in such structure to be used in
producing electric power, and in May, 1893,
commenced to erect a boiler house and coal
house for use in the same business.
The complaint further alleged that the
plaintiff had performed all its obligations to
the state, ana stood ready to continue the
performance of the same, but the defendant
in disregard of its rights has trespassed up-
on its property, excavated its embankment,
and has interfered with the enjoyment of the
franchises granted to it by the state ; that a
iudgment at law affainst the company would
be worthless, and hence the plaintiff prayed
523
477-479
SUPRBKB COUBT OV TBM UnITBD STAnS.
Oor. Tbx.
in the marffinf) ''to incorporate the board of
trustees of the Columbia canal, to transfer
[478]to said board the Columbia *canal with the
lands held therewith, with its appurtenances,
and to develop the same" (19 S. C. Stat.
1000) ; that by section 1 of the act the board
of directors of the penitentiary was author-
ized to transfer and release to the board of
[479]tru3tees of the *canal the canal property and
its lands, with their appurtenances, and that
the same should vest in the trustees for the
.use and benefit of the city of Columbia; that
such transfer was made and possession taken
by the board of trustees, and the property
so remained in their possession until the date
and year hereinafter mentioned.
That by section 21 of the aboTe act the
board of trustees was declared a corporate
body, and was authorized, among other tnings.
to purchase, sell, or lease Uadi adJoiBi^gOi
canal, useful for the porpoees of the eusl,
to seU or lease the water power of thtt csmI
subject to such rules ana rsgalstioM as It
should prescribe; and that b^ Tirtiie of Mck
act the tmstees became entitled to the es-
dusive franchise and right to scD or ]mm
the water power developed hj the euial for
manufacturing and other mdustrial jmt-
poses, without let or hindranoe, and mh-
out the right of any person or corporation te
interfere or interrupt in any iw^iwmw ^ «m
of such water power, saTe and ntepi it
should provide a certain amount df water
power to certain persons and parties in said
act nominated and mentioned, and that no
person or corporation had a r^t to divert,
disturb, impecte, or interfere with the flow of
water down the said canal.
fAct of December 24. 1887.
Section 1. Be it enacted 5y the Benate and
Houee of Repreeentatives of the State of South
Carolina, now met and sitting in General Ae-
aembly, and by the authority of IM eame. That
the board of directors of the Sooth Carolina
penitentiary are hereby authorised, empowered,
and required to transfer, asslgnf and release to
the board of trustees of the Colombia Canal,
hereinafter created and provided for. the prop-
erty known as the Colombia Canal, together
with the lands now held therewith, acqolred on-
der the acts of the general assembly of this
state with reference thereto or otherwise, all
and slngolar the rights, members, and appor-
tenanees thereto belonging; and opon socfa
transfer, assignment, and release all the right,
title, and Interest of the state of Sooth Caro-
lina In and to the sa^d Colombia Canal and the
lands now held therewith, from Its soorce at
Boll's Sluice throogh Its whole length to the
point where It empties into the Congaree river,
together with all the apportenances thereonto
belonging, shall vest In the said board of tms-
tees for the ose and benefit of the city of Co-
tombia, for the porpoees hereinafter In this act
mentioned, subject, nevertheless, to the perform-
ance of the conditions and limitations here-
in prescribed on the part of said board of
tmstees and their assigns: Provided, That
shoold the said canal not be completed to Ger-
vais street within seven years from the passage
of this act. all the rights, powers, and privileges
goaranteed by this act shall cease, and the said
property shall revert to the state.
Sec 2. That the said board of tmstees are
hereby aothorised and directed, for the develop-
meot of the said canal, to take into their pos-
session the said proi^erty with all Its appor-
tenances: and for the porpose of navigation,
for providing an adequate water power for the
use of the penitentiary, and for other purpoeee
herein named, they are hereby aothorised, em-
powered, and directed to improve and develop
the same.
Sec 7. That the board of tmstees shall,
within two years from the ratification of this
act. complete the said canal so as to carry a
tody of water 150 feet wide at the top. 110
feet wide at the bottom, and 10 feet deep from
the scarce of the canal down to Gervals street,
and fumieh the etate, free of charge, an the line
ef the canal, 500 horte power, of water
power, to SoUlTan Fenner or assigns
600 horse power of water power, onder
bis contract with the canal coomilsslon,
and to furnish the city of Colombia 500 horse
power of water power at any point between the
source of the canal and Gervals street tbt dty
may select : and shall, as soon as Is practicably
complete the canal down to the CongarM rfw
a few yards above the month of Bocky Brtach :
Provided, That the right of the state to the free
uee of the eaid SOO horee power ehaU »t stes-
late, and any mortgage, assignment, or oCh«
transfer of the said canal by the said board of
tmstees or their assigns shall always be ssbiscf
to this right.
• • • • • • «
Sec 21. The said board of tiusteus Shan be.
and Is hereby, declared a body polltle and ew>
porate. Its corporate name diall be *'Boari of
Tmstees of the Columbia CanaL** Its
shall be a chairman and a eeeretary
nret. It shall have a corporate seal ;
and enforce Its by-laws for its government :
purchase, sell, or lease lands adjolnlac the csaal
nsefol for the purposes of the canal :
or lease the water power ef the eaaai
to euch rales oiid re^olatioiit at it sball pre^
eeribe, having fltret provided for the
500 horee power of wmter power at the
ttory. and BOO horse power of
SnlUvan Fenner or his asslgm
power of water power for the dty of Ooli
may soe and be sued, plead or be Impleadsdi
their corporate name, and exercise
powers as are hwelnbefore granted,
fix such compensation for the servless of the sw>
retary and treasurer as thev may deem proptf^
Section 28 as amended by act of Deesmhv K
189a (20 8. C. SUt. 867.)
Sec 28. That the said board of tmstsia is
soon as they have fully developed tiie said esasl
and secured the payment of the debts contrsctsi
by them In Its development, they ^all tan ew
the canal, with all Its appnrteataaess, to the cilf
of Colombia. Bot the said board of tiesCsM
shall have foil power and authority, boteie tte
said canal has been fully developed
pleted and turned over to the d^ of
to sell, alienate, and tranafer the aaam sad sM
Its appurtenanose, the lands held thstsstl,
and all the rights and franehless eositersd Ir
this act on said board of Uustsss, to aay P^
son or corporation, subject, however, to aD tbt
duties and llabUltlea Impoosd thsreby. sal s^
ject to all contracts, UaUlttles^ and ubUji^l— '
made and entered Into by said beard fritf •»
such sale and tranafbr, upon the appfoval sei
consent of nine members of the dX$ eoMdl eC
the dty of Colombia; and befbrs sack ssia
alienation, and tranafbr Is made thlity isi^
notice of the offer to purchase and the tmm
thereof shall be given to the eonncU of tbs il9
of Columbia.
Approved December 84, a. n. 188iL
189d. Columbia W. Power Co. v. Columbia Electric Htrbbt R. L. <& P. Co. 479-482
Thtt by the 23d section of this act, as
amended by the subsequent act of December
24, 1890 (20 S. C. Stat. 967), the board of
trostefs was given full power and authority
to 8dl, alienate, and dispose of the canal, its
hisds and appurtenances, to any person or
corporation, subject to all duties and liabil-
ities imposed by the act, and to all contracts
mtde by the board, prior to such transfer, up-
80]oo the approval and consent *of nine mem*
bers of tne council of the city of Columbia ;
that in pursuance of such section, the trustees,
before tne completion of the canal, and on
January 11, 1891, conveyed all of said prop-
erty to the Columbia Water Power Company,
the plaintiff, including the canal and all of
the lands held therewith, easements, rights
of ^-ay, rights of overflow, and appurtenances
a<<aaired by the board of trustees, with their
rights ana franchises; that the plaintiff
ynaat into possession of all the property, and
80 remained in possession without any claim
or assertion of an adverse right, and thereby
became entitled to all the franchises, privi-
leges, and immunities conferred upon the
brard of trustees.
That the act of December 24, 1887, pro-
Tided that upon the development and com-
pletion of the canal the board of trustees
should furnish the state free of charge 500
horse power of water power ; and the 23d sec-
tion of the act as amended provided that
this duty should be imposed upon any person
or corporation to whom the board of trustees
should sell or transfer the property; that in
March, 1892, the development and enlarge-
ment of the canal was completed, and on said
date, and ever since, the plaintiff was and is
ready to furnish the state with the 500
horse power of water power as required by
the act aforesaid.
That the defendant, a South Carolina cor-
poration, was organized by the consolidation
of three prior companies, and was authorized
to construct through the city a street rail-
way, and also to maintain a system of elec-
tric lighting; that in May, 1892, the plain-
tiff was inrormed by the board of directors
of the penitentiary that the defendant com-
pany had been authorized by the said board
to bond a power house, with forebay, flumes,
and water wheels, for the purpose of utiliz-
ing the 500 horse power to be furnished to
the state, and that it was the purpose of such
company to erect works under 9uch authori-
ty to develo{> such power, and to furnish to
the state, within tne walls of the peniten-
tiary, so much of said power as had been
•greed upon by and between the board of di-
rectors of the penitentiary and the said com-
pany; that the plaintiff save immediate no-
il ]tioe to the said board and to the ^defendant
that it would object to the use of any of its
lands or embankments on the west side of
the canal by any person or corporation, ex-
cept eo mudi as would be necessary for the
erection of the power house to furnish 500
horse power for the use of the state; that the
state should have full liberty to build such
works upon the embankment of the canal as
were necessary in fumishinff such water pow-
er; but that such works should be strictly
confined to such portion of the property of
172 U. 8.
the plaintiff as should be necessary for that
purpose; and that the plaintiff wculd not
recognize the right of the state to assign such '
horse power, or any part thereof, to any cor-
poration to be used for private purposes,
outside of the walls of the penitentiary or
any public institution of the state ; and that
it was under no obligation to furnish water
power from the canal to be used by private
corporations for private enterprises.
That subsequently the defendant, acting
through the board of directors of the peni-
tentiary, submitted plans and specifications
for the erection of works for making the state
water power available, and plaintiff ap-
proved of the same as not taking more of the
land than was necessary for the development
of the 500 horse power for the use of the
state, and allowed the defendant to proceed
with its work, which was completed in ac-
cordance with the plans and specifications
so submitted ; but that thereafter the defend-
ant, against the protests and objections of
the plaintiff, proceeded to place in such
works machineiy intended solely for the pur-
pose of running its electric lights and street
railway, and furnishing power to divers per-
sons in the city for their industries, against
which plaintiff protested, and gave notice
that proceedings would be taken to prevent
such misapplication by the electric company,
which, notwithstanding such protests, con-
tinues to place such machinery in its power
house for its own private purposes ; ana that
plaintiff is wholly without power to prevent
the action of the defendant in such misap-
plication of such power for its private pur-
poses, owing to the duty of the plaintiff to
furnish powei' for the use of the state and
its penitentiary, as such power is furnished
and made available at and by the same * water [468]
wheel; and that, unless such use be en-
joined, it will suffer irreparable injury and
damage, and its franchise to sell and lease
water power for purposes of manufacturing
and otner industrial purposes will be af-
fected and materially injured.
That the said defendant also in February,
1893, against the protest of the plaintiff, en-
tered upon its premises on the western em-
bankment of the canal and at the southern
end of the power house above mentioned,
and excavated and removed the earth, rock,
and works composing the foundation of such
embankment, to the great danger of the canal
and embankment, and began erecting the
foundations for the steam engine to be used
in running generators, dynamos, etc., as
above stated, and has placed portions of its
machinery in such structure to be used in
producing electric power, and in May, 1893,
commenced to erect a boiler house and coal
house for use in the same business.
The complaint further alleged that the
plaintiff had performed all its obligations to
the state, ana stood ready to continue the
performance of the same, but the defendant
m disregard of its rights has trespassed up-
on its property, excavated its embankment,
and has interfered with the enjoyment of the
franchises granted to it by the state ; that a
judgment at law affainst the company would
be worthless, and hence the plaintiff prayed
523
48^-485
SUFBBMB COUBT OV THS UHITED &IA1B8.
for an injunction against such use of the
water power and against farther trespasses
upon its lands.
The answer put in issue the tiUe of the
plaintiff to the lands occupied by the defend-
ant; denied that the board of trustees of the
canal ever became entitled to the exdusiye
franchise and right to sell or lease water
power developed by it for purposes of indus-
trial enterprises; denied that the 500 horse
power reserved to the state was provided
solely for the individual use of the state in
its public institutions; denied any intent on
its part to injure the plaintiff in its fran-
chise and property by the erection of its
works, and alleged tiiat the state, beinff
seised in fee simple of the land and entitled
to the unrestricted use of the 500 horse power
referred to in the complaint, but being with-
[488]9ut means to ^develop the same, entered into
a contract dated May 26, 1802, with the de-
fendant, whereby it was stipulated that the
defendant should erect suitable works and
machinery for the development of such horse
power, furnish to the penitentiary so much
as was necessary for its purooses, and as a
consideration for tiiis should be allowed to
make use of the surplus power for its own
purposes; that such contract was thereafter
ratified and confirmed by an act of the gen-
eral assembly, approved December 24, 1802
(21 S. C. Stat. 04) ; and that the defendant
was entitled under such contract to the unre-
stricted use of such horse power for the pur-
poses contemplated by the contract.
The attornev general, appearing on behalf
of the state, nl^ a suggestion to the effect
that, if the injunction were granted, defend-
ant would be prevented from carrying out
its agreement with the state, and the state
would bo deprived of the water power it was
entitled to in the manner contracted for,
and of the revenue it had secured under the
contract. He did not, however, submit the
rights of the state to the jurisdiction of the
court, but insisted that the court had no ju-
risdiction of the subject, and asked that the
complaint be dismissed.
The case came on for hearing upon the
complaint, answer, the suggestion of the at-
torney general, and the articles of agree-
ment, and resulted in a decree dismissing tiie
complaint. An appeal was taken to the su-
preme court of the state, which affirmed the
decree of the court below (43 8. C. 160),
whereupon plaintiff sued out a writ of error
from this court, assigning as error the de-
cision of the suprone court affirming the va-
lidity of defendant's contract with uie board
of directors of the penitentiary, and the act
of the general assembly ratifying the same.
Mr. IioRoy F. Tovmans for plaintiff in
error.
Messrs. William K. Lyles and John T,
Sloan for defendant in error.
**,
{484] *Mr. Justice Brown delivered the opin-
ion of the court:
1. A preliminanr motion was made to
dismiss this writ of error upon the ground
that no Federal question was involved, and,
even if there were such question, it was not
524
spedaUy aet up and dAimad" !■ tbt
court, as required hy Beriaed Statatei,
tion 700.
An examination of the iwmplatrt
that the plaintiff rdies upon tbm aet of fkm
general assembly of December 24, 1887. lUi
statute (sec 1) authorizes the board of fi-
rectors of the South Carolina peniteatbiT,
which had acquired the ownership of ii^
canal under a previoua aet of Fdnnary 8.
1882, to transfer the property to tke board
of trustees of the Columbia canal, and (aee.
7) required the completion oi the
a r9servaUan to ike state, free of
the Une of the canal, of 500 horae power of
vMter power, with a further proviso ttmt the
right of the state to the free use of tbe said
5<)0 horse power should be ottolttle, and aay
mortgage, assignment, or other transfer of
the said canal by the said board of trostasi
or their assignees should always be mAjedt
to this nght. In secUon 21 this reaervatifla
is described as a provision for the state, with
500 horse power of water power at th« pca-
itentiary. Ihr section 23 as amended in 18Ml
the board of trustees was given authority ta
seU, alienate, and transfer the ooaol, with its
appurtenances, lands, uid fraaddaea, to aay
person or corporation, subject, howvver, ta
all contracts, liabilities, and oblicatieas
made and entered into by said board prior
to such sale and transfer. Pursuant to this
authority, the board of trustees, oa Jaanary
11, 1802, conveyed the canal and its afpu
tenances to the plaintiff.
The gist of the complaint is that !■ 1881
the de&idant, acting as the agent of the
state through the boiird of direetora of the
penitentianr, submitted plans and i
tions for the erection of worin for
the said 500 horse power of water
available, to which the plaintiff made
jecUon; but that th«resiter, against its
tests, proceeded to ^construct in saeh t
machinery intended for the purpoee of
ning its electric lights and street nSkwn
and furnishing power to the dtlaiBa of ObI-
umbia for divers industries ; and entered up-
on the premises of the plaintiff aad Um
foundations for a steam engine to be vsed ia
running its generators, etc., and b^gaa the
erection of an engine house, boQer hooae, aai
coal house for the purpoee of estahliihtnf a
steam plant.
The complaint did not aet up the eoatraif
of the board of directors of the penftaatiaiy
with the defendant and the act of the gae-
eral assembly of December, 1802, eoafif tag
the same, but these were both aet forth ia
the answer and relied upon bj the dofoad-
ant as its authority for the ereetioB ef its
works. In this contract the defwidiat
agreed to erect, on the weatern bank of tbo
canal opposite the penitentiary, saitaUs
water wheels of sufficient eapaei^ to ntiOia
and develop the 500 horse power of wafesr
power, and to transmit acroaa the oaaal ta
some convenient point within the walk ef
the penitentiary not to exceed 100 hone so^
er for the use and benefit of the peaitoatiary.
In consideration of this the board of diie^
tors agreed to allow the defendant the not
ITS v. &
IM. CoLXTMBiA W. PowEB Co. V. COLUMBIA Blbotric St&ebt R. L. & P. Ck>. 48CM88
«f an their right, title, and interest to the
hid on the west side of the canal and also
to allow it the free and uninterrupted use of
tiie said 500 horse power of water power
nserred to the penitentiary, with the excepr
turn of the 100 horse power so reserved for
Its private use. This contract was subse-
taently ratified and confirmed by an act of
tne general assembly approved December 24,
1892. .
While no special mention is made in the
eomplaint of the Constitution of the United
States, the whole theory of the plaintiff's
€Me taken in connection with the answer is
that the rights which it acquired to the 500
horse power in question under the act of
1887 were impaired by the subsequent act of
December 24, 1802, ratilhring and approving
the contract of the board of directors of the
state penitentiary with the defendant. The
eontract of the defendant is set up in the
complaint, and although the act of Decem-
ber, 1892, ratifying the same, is not set up
there, it appears in the answer and is reliea
upon as validating the contract; so that,
S6] <^ding *th6 complaint and answer together,
(be question whether the contract of the
plaintiff was impaired by subsequent state
acdon ap|>ears on the face of the pleadings.
In passin|[ upon the case the supreme
eonrt, speaking through Mr. Justice Gary,
held that one of the objects of the plaintiff's
action was to have the contract between the
state and the defendant as to the 500 horse
power declared null and void on the ground
that the state could not lease the same. In
▼iew of an intervening suggestion filed by the
attorney general, to the purport that the
state had interests which would be affected
hf granting the relief prayed for, he held
that the state, being an inaispensable party
and refusing to become a partV, the cause of
action on the equity side of the court could
not be sustained; and in considering the
eanse of action on the law side of the court
he reached the conclusion that the state was
not an indispensable party. He then pro-
ceeded to consider whether the contract be-
tween the state and the defendant relative to
the 500 horse power was null and void, and
held that the proviso to section 7 of the act
of 1887 being that the right of the state to
the free use of this horse power ^should be
ohsolutey the construction given to it by the
legislature in the act of 1892 was correct,
and that the word "absolute" was used for the
Surpose of creating a right in the state to
iiis horse power separable and distinct from
the ownership in other lands, and not de-
pendent upon any particular lands to which
it might be appurtenant. It followed that
the contract between the state and the de-
fendant was not null and void.
He further held that the right of the de-
fendant to erect the steam plant depended
tpon the fact whether it was merely inciden-
tal and essential to the enjoyment of the
water power plant; that the parties had a
right to trial by jury as to these issues, but
ts no demand was made therefor the court
tSBumed that the circuit court properly de-
cided aU questions of fact upon which its
Jndsfment rested. The other justices con-
172 TT. S.
curred in the result, the Chief Justice saying
that he was not satisfied that the plaintiff
ever acquired title to the land upon which
the works in question had been erected.
There is nothing to ^indicate that either of[48T]
them dissented from the views expressed by
Mr. Justice Gary, who presumably spoke for
the court, with respect to the Federal ques-
tion.
In holding that the contract with the de-
fendant ana the legislative act confirming
the same were valid, the court proceeded up-
on the idea that the act of 1887 authorizing
the transfer of the property to the board of
trustees of the Columbia canal made the res-
ervation to the state of the 500 horse power
an absolute one; that the directors of the
penitentiary could do with it as they pleased,
and hence they had the right to turn it over
to the defendant if, in their judgment, such
course was warranted by a due regard for
the interests of the state. While, in so hold-
ing, the court disposed of the case upon the
construction of the contract under which the
plaintiff asserted its right, such construction
IS no less a Federal question than would be
the case if the construction of the contract
were undisputed, and the point decided upon
the ground that the subsequent act confirm-
ing the contract with the defendant did not
impair it. The question in either case is
whether the contract has been impaird, and
that question may be answered either by
holding that there is no contract at all, or
that tne plaintiff had no exclusive rights
under its contract, or, granting that it
had such exclusive rights, that the sub-
sequent legislation did not impair it.
These are rather differences in the form of
expression than in the character of the ques-
tion involved, and this court has so frequent-
ly decided, notably in the very recent case of
McCullough v. Virginia, 172 U. S. 102 [ante,
382,] that it is the duty of this court to de-
termine for itself the proper construction of
the contract upon which the plaintiff relies,
that it must be considered no longer as an
open question. Vevo Orleans Water Worka
Co, V. Louisiana Sugar Ref. Co. 125 U. S. 18
[31 : 607] ; Bridge Proprietors v. Hohoken
Land d Improv, Co, 1 Wall. 116 [17: 571].
To the argument that the Federal right
was not "specially set up and claimed" in
the language of Revised Statutes, section
700, it is replied that this is not one of the
cases in which it is necessary to do so. Un-
der this section there are three classes of
cases in which the final decree of a state
court may be re-examined here:
♦ ( 1) "Where is drawn in question the va-[4881
lidity of a treaty, or statute of, or author-
ity exercised under, the United States, and
the decision is against their validity;"
(2) "Where is drawn in question the
validity of a statute of, or an authority ex-
ercised under, any state on the ground of
their being repugnant to the Constitution,
treaties, or laws of the United States, and
the decision is in favor of their validity ; "
(3) "Or where any title, right, privilege,
or immunity is claimed under the Constitu-
tion, or any treaty or statute of, our commis-
sion held or authority exercised under, the
525
48fr-A90
SUFBEMB COUBT OV THB UnITBD StATBS.
United States, aod the decision is againai
the title, right, priyilege, or immunity 9pe-
ciaUy set up and elaimtd by either party un-
der such Constitution, statute, commission,
or authority."
There is no doubt that under the third
class the Federal right, title, privilege, or
immunity must be, with possibly some rare
exceptions, specially set up or damied to grfve
this court jurisdicuon. Spies ▼. Illinois, 123
U. S. 131, 181 [31 : 80, 91] ; French ▼. Hop-
kins, 124 U. S. 524 [31 : 536] ; Chappell v,
Bradshaw, 128 U. 8. 132 [32 : 360] ; Baldr
win y. Kansas, 129 U. S. 52 [32:640];
Leeper v. Tewas, 139 U. S. 462 [35:225];
Owley Stave Co. w. Butler County, 166 U. S.
648 [41 : 1149].
But where the validity of a treaty or stat-
ute of the United States is raised, and the
decision is against it, or the validity of a
state statute is drawn in question, and the
decision is in favor of its validity, this court
has repeatedly held that, if the Federal ques-
tion appears in the record and was decided,
or such decision was necessarily involved
in the case, and the case could not have been
determined without deciding such question,
the fact that it was not specially set up and
claimed is not conclusive against a review of
such question here. MiUer v. Nicholls, 4
Wheat. 311 [4:578]; Willson v. Blackbird
Creek Marsh Co. 2 Pet 245 [7 : 412] ; Sat-
terlee v. MattheuMon, 2 Pet. S80, 410 [7:
458, 468] ; Fisher's Lessee v. Cookerell, 5
Pet. 248 [8:114]; Crowell v. BandeU, 10
Pet. 308 [9: 458] ; Harris v. Dennie, 3 Pet
292 [7 : 683] ; Famey v. Towle, 1 Black, 350
[17:216]; Hoyt v. Shelden, 1 Black, 518
[17: 65]; Mississippi d M. Railroad Co. v.
Rock, 4 Wall. 177 [18:881]; Furman v.
^to^Z, 8Wall. 44 [19:370]; Kaukauna
Water Potoer Co. v. Oreen Bay d M. Canal
Co. 142 U. S. 264 [35: 1004].
The case under consideration falls within
[489]the second class, *and as it appears from the
record and from the opinion of the court
which may be examined for that purpose
{Kreiger v. Shelby R. R, Co. 125 U. S. 39
[31: 675],) that the question was presented
and decided, that the act of 1892 affirming
the validity of defendant's contract with the
board of directors of the state penitentiary
did not impair the obligation of plaintifiTs
contract, evidenced by Uie act of 1887, be-
cause that act properly construed conveyed
no exclusive rights, we think the Federal
question sufficiently appears.
2. Upon the merits the case presents
but little difficulty. The argument of the
plaintifT is that under the act of 1887 the
board of trustees of the Columbia canal, of
which plaintiff is the successor, took an abso-
lute title to the canal and appurtenant
lands, with the riffht to ''purchase, sell, or
lease lands adjoining the canal useful for
purposes of the canal," and to "sell or lease
the water power of the canal, subject to such
rules and regulations as it shall prescribe,
having first provided the state with 500
horse power of water power at the peniten-
tiary," for the individual use of the peniten-
tiary alone, and with no right to lease or
«nblet it to others for private gain. In sup-
526
port of this contention, plaistiir
only upon the act of 1887, undflr wbick it
takes title, but upon certain prior mdm «f
the general assembly.
, Thus, under section 2 of the met of
her 21, 1866, "to Provide for the
ment of a Penitentiary" (IS 8. C. Stat.
4797), it was made the duty of tba eon
sion "to select and procure a proper oifeft, aft
s<Hne point if practicable where water pow
may be made available for manufaeaiiiqg
purposes within the indoenre, oo wkich te
erect suitable penitentiary baHdiaga.** Ami
by a subsequent act, approved DeeeB&fc«r 19,
1866 (13 S. C. Stat. 398) . the nnninilaiir— ■,
who had been authorized by a previoiM act
of December 18, 1865, to uXL and conwey tke
Ck>luirtbia canal, were authorised to aeD it at
public or private sale, at their
provided that at any sale that may be
by said commissioners there be made a
vation to the state of water power
for the purposes of the state pewifawfiTf fer
all time free of charge. In a imbernwc at ael
of *September21,1868(14S.C. Stat.83)Aka
commissioners were vested by secUoa 4 with
like authority to sell at public or privmte
sale, with a similar reservation to the statt
of water power sufficient for the pnrpooes of
the state penitentiary for all time, free of
charge. In another act, approved ICardb 12,
1878 (10 Stat. 445), to provide for
posal of the Columbia canal, there
a proviso in section 4 that, 'in all _
that may be made, sufficiant power ehall be
reserved to the state for the use of thm pe»>
itentiary and the city of Oolumbia." 80, tee,
in an act of February 8, 1882 (17 Stat. 865),
to authorize the canal company to traadiir
the canal and lands to the board of diroetan
of the penitentiary, it was provided tkat tiM
board of directors should take poieewlua ca
behalf of the state of the eanal with its a»>
purtenances, and, for the purpose of prerS
tng an adequate toater power for tie mee ef
the penitentiary, were authoriied to iaapnyve
and develop the same. By seetioa 6 of the
same act tnev were authorised *^ fiii niifc
to the cit}r of Columbia, for the pvrpoee of
operating its waterworks and for other par*
poses, 5(K) horse power of water power ; .
. . and after reserving for the aee of the
penitentiary a power sufficient to laeet tim
demands of its ordinary operaiione mmd etfcsr
industries conducted and emrried oa wffMe
its walls, they are further authoriasd,
with the comptroller general on behalf of the
state, to lease to other persons or eorpeca-
tions water power upon such terms aad npoa
such annual rental per horse power as ia
their judgment may ne proper, aad also te
lease such mill sites along the liae of the
said eanal as may be owned by the stat^
upon such terms as may be deemed moet ad-
vantageous to the interest of the state.*
It will be observed that these acts are pr»>
gressively liberal to the state; that the
earlier ones contemplated the use of the w^
ter power only for manufaetnrintr pa
within the walls of the penitent M17.
the latter ones indicatea that sa^
was also reserved for the use of the
Columbia, for the purpose of operating its
m It &
1898. CoLmcBiA W. Powbb Ca v. Columbia Electric Street R. L & P. Co. 490-^93
waterworks and other purposes, as well -as
for leasing to others. But however cogent
these acts might be to indicate that the ob-
l91IJeet of the state ^was to reserve to the indi-
▼idnal use of the penitentiary the 500 horse
power, it is equally clear that the act of 1887
18 dedfiive of a chan^ of purpose in that re-
gard; and in providing that the right of the
state to the free use of its amount of water
power should be absolute, it meant that the
directors of the penitentiary should make
sudi use of it as they pleased, regardless of
prior acts and the immediate requirements
of the penitentiarpr. The clearer the reser-
vation for the individual use of the peniten-
tiary may have formerly been, the clearer
the change of purpose becomes manifest by
the use of the word "absolute." The theory
of the plaintiff is that by the use of this word
was meant simply the right of the state to
the free use of the said 5% horse power, un-
affected by any mutations of ownership.
This, however, was already secured to the
state by the previous clause of section 7, re-
quiring the board of trustees 'to furnish to
tne state, free of charge, on the line of the
eanal 500 horse power of water power." Nor
are the requirements of this word met by
treating it as the equivalent of "perpetual"
or "for all time." In construing statutes,
words are taken in their ordinary sense. No
authority can be found for such a definition
of the word "absolute;" nor does the context
snmst it. Its most ordinary signification
Is Tmrestricted" or "unconditionw." Thus,
an absolute estate in land is an estate in fee
ifanple. 2 Black. Com. 104; Johnson v. M'ln-
tosh, 8 Wheat. 543, 588 [5: 681, 602] ; Fuller
T. Missroon, 35 S. C. 314, 330; Johnson's
Admrs, v. Johnson, 32 Ala. 637 ; Converse v.
KeUogg, 7 Barb. 590, 597. In the law of in-
surance, that is an absolute interest in prop-
erty which is so completely vested in the in-
dividual that there could be no danger of
his being deprived of it without his own con-
sult Hough V. City Fire Ins. Co. 29 Conn.
10; Reynolds v. State Mutual Ins. Co. 2
Grant, Gas. 326; Washington Fire Ins. Co.
V. KeUy, 32 Md. 452 [3 Am. Rep. 149].
We have no doubt that, in providing that
the right of the state should oe absolute, it
was intended to permit the board of direct-
on to do exactly what was done in this case,
i a., to lease such portion of the 500 horse
power as was not required for the individual
^]iise of the penitentiary. Indeed, *we perceive
00 other reason for the insertion of this
dause. The right to use it in the peniten-
tiary was alreiuly amply secured by clauses
so frequently inserted in prior acts that no
question of construction oould be raised up-
on them, and when the act of 1887 went
still further it was evidently upon the idea
that the power not necessary for the peni-
tentiaiv should not be wasted, but should
be applied to such other uses as were con-
ducive to the interests of the state. While
the leasing of the same to the defendant may
have been for private gain, the lighting of
the city by electricity and the establishment
178 V.B.
of street railways was manifestly a publle
purpose.
If plaintiff's theory were sound the peni-
tentiary would be unable to make use of its
reserved water power unless it were also pos-
sessed of the requisite means to establish a
plant, while under its actual arrangement
with the defendant it grants to the latter
its surplus water power, and in considera-
tion thereof receives all such power as is nec-
essary for its own purposes, and in addition
thereto a substantial annual revenue for its
other needs.
3. The remaining question as to injuries
threatened and inflicted upon plaintiff's
property by the entry of the aefendant upon
the western embankment of the canal, the
digjring, excavating, and removal of the
earth, and the erection of buildings and
machinery thereon, does not demand an ex-
tended consideration. The court of common
pleas found that plaintiff was owner of the
property upon which these works were
erected, but that the state, having the right
to the 500 horse power, had also the inci-
dental right to lease the same to the defend-
ant, which took thereby the right to put its
electric plant upon the banks of the canal,
as well as the supplementary right to put
in a steam plant to be used at times when the
water power was unavailable, by reason of
freshets or by necessary repairs to the canal
or other causes. The supreme court did not
expressly pass upon the validity of plaintiff's
title to the land, but held that whether the
contract conferred upon the defendant the
right to erect a steam plant depended upon
the fact whether it was merely incidental to
or essential to the enjoyment of the water
•plant, and that, no jury having been de-[408]
manded, the court must assume that the cir-
cuit judge decided this question properly;
and, even if there were error on his part in
the finding of fact, it was not the subject of
review by the supreme court in a law case.
It needs no argument to show that neither of
these rulinps involved a Federal question.
Whether plaintiff had a legal title to the
lands was purely a local issue, and whether
the erection of a steam plant by the defend-
ant was an incident of its contract with, the
state penitentiary is, for the reason stated
by the supreme court, not reviewable here. ,
In addition to this, however, the deed *
through which the state and the plaintiff de-
rived their title is not in evidence before us.
The answer admitted that the state did ac-
3uire a strip of land lyinc within the boun-
aries described in the bill, but denied that
tho buildings erected by the defendant "at
any point touched upon said strip of land."
The state appeared to have derived title from
one Rawls, whose deed was filed in the state
court, but does not appear in the record be-
fore us, and the supreme court of the state
foimd that it could not review the finding of
the court below to the effect that the plain-
tiff was the owner in fee of the land.
The decree of the Supreme Court of South
Carolina is therefore affirmed,
627
4t8-496
SUFBBICB COUBT 09 THB UHUBD STATn.
Oor.
PITTSBURGH, CINCINNATI, CHICAGO,
ft ST. LOUIS RAILWAY COMPANY,
Plff. in Err.,
V.
LONG ISLAND LOAN & TRUST COM-
PANY, Executor of the Last Will and Tes-
tament of Charles R. Lynde, Deceased*
(See 8. C Beporter's ed. 49S-615.)
Federal question — pendency of a euii in a
FedenU court.
1. A claim that a lien on property was wholly
deTested by foreclosure proceedings In a Fed-
eral court Involves such an assertion of a
right and title under an authority exercised
under the United States as gives the Supreme
Court of the United States jurisdiction to
re-examine the final judgment of the state
court.
2. The pendency of a foreclosure suit In a Fed-
eral court. In which the decree saves the
rights secured by a prior mortgage, does not
interfere with the negotiation of bonds se-
cured by such prior mortgage, or impair in
any degree the Hen thereby created.
[No. 16.]
Argued April 11, 12, 1898. Decided Janu-
ary 9, 1899.
r' ERROR to the Supreme Court of the
State of Ohio, to review a judgment of that
court affirming a judgment of the Circuit
Court of Franklin County, in that state, in
favor of the plaintiff adjudging that, unless
certain sums found due be paid by the defend-
ant to the plaintiff, a certain mortsa^ secur-
ing certain bonds held by the plaintiff be
foreclosed, and the defendant barred of its
equity of redemption in the premises em-
braced by the mortgage. Judgment of the
Supreme Court affirmed.
The facts are stated in the opinion.
Meeara. Iia'wrenoe Marwell, Jr., and
Cl&arles E. Burr for plaintiff in error.
Messrs. E. W. Kittredse and Josepk
Wilby for defendant in error.
{494] *Mr. Jtistice Harlan delivered the opin-
ion of the court :
This writ of error brings up for review a
• final judgment of the supreme court of Ohio
affirming a judgment of the circuit court of
Franklin county, in that state.
14951 *The general question presented for deter-
mination is whether certain railroad prop-
erty may be sold in satisfaction of a judi-
ment obtained in 1891 by Charles R. Lynde
in the circuit court of the United States for
the southern district of Ohio for the amount
of 36 coupon bonds, part of 1,000 bonds is-
sued by tne Columbus & Indianapolis Cen-
tral Railway Company, an Ohio corporation,
in the year 1864.
The bonds were secured by a deed of trust,
and were made payable to William D.
Tliompson or bearer, on the 1st day of No-
vember, 1904, each bond reciting, among
other thin^, that it was one of an issue of
not exceeding $1,000,000, and had a special
lien on all of the railway property, equip-
ments, and franchises of the company, as
528
mentioned in the ahaw deed ef liHt» mIU*^
to prior mortgage liena of $3,20IMNW; tut
it &ould "be transferase bj delH^«l^ «r ^
may be registered as to its avoeiiliip cm a
registry to be kept bj the eompaaj, aad be>
ing so registered, it shall than be tnaslBr-
Me only on the books of the eomtjaay waUL
released from such registry on said books hy
its owner;" also, that it ''shall not beeoas
obligatory until it shall have been aulbcsill-
cated by a certificate annexed to H, 4aij
si^ed by the trustee."
To eadi bond was attached this eertfiretet
''I herebj certify that this bond is one of tbs
series of bonds described in and seeuiei hy
the deed of trust or mortgage abof« bsb*
tioned. A. Parkhurst, Trustee."
The property and rights eorered bj tbe
above ie&d. of trust, and which were ordered
to be sold by the decree in this caaft if tbs
Columbus, dnicago, & Indiana Ceotral Ball-
way Companv did not, hj a named day, pay
the amount found due to the plaintiif, was
a line of railroad extending from ODiiiinbM,
Ohio, to Indianapolis, Indlaiia, indttdlBS a
branch from Covington to TJnioii, icgetig
with the frandiises, equipment, property,
tolls, and interests appertalninff thereto.
The case made by the reeord is set ibrtt
in an extended finding of facts eoverins dx-
teen pages of the present transeripi. Ma^y
of the facts so found are not neeesaary to he
here stated. Those which bear more or
upon the present inquiry may be tbns
marized:
*The Columbus ft Indianapolis OMknI{
Railway Company prepared, signed, sal
sealed the 1,000 bonds referred to (part «f
which were the 36 bonds held bw Lvnde) , aai
to secure the same executed and ddiverad the
mortgage or deed of trust to Arddbald Paife-
hurst, as trustee.
The above deed recited the etmaolidatisa
of the Columbus k Indianapolis Railroad
Company and the Indiana Coitral Railway
under tlbe name of the Columbus 4 Indisn>
apolis Central Railway Company, the eon-
solidated companv becoming liable for aai
assuming all tne just debts and Uabflitlss of
the respective constituent oomi»anies: ^at,
for certain purposes, a new aeriea of bonds,
1,000 in number, and each for $1,000, sboold
be issued, dated November Ist, 1864, to to
secured by a deed of convmLnce eofeiiagr tto
mortgagor company's road, its appuittass
ces, franchises, equipments, property^ toDs,
income, and interest, to a trustee to seem
the payment of said bonds and interest war-
rants. Such a deed was madeu and eonviysA
to A. Parkhurst, trustee, for tiie *^pvrpost al
of tbessid
assuring the punctual payment
1,000 bonds and each of them to
every person who may become tbe boldv of
the same or any of them," the mortgafer
company's entire railroad from Colianbnt ts
Indianapolis, including the bran^ froB O^
ington to Union, its franchises, ete^ in trart
to secure the bonds about to be issued by It
The deed contained all the provisions
ly found in such instrumenti.
Parkhurst accepted the tmat,
mortgage or deed of trust was duly
in Ohio and Indiana.
and tto
1896. PiTTflBUBGH, C. C. «fe St. L. R. Co. 7. Long Island Loan <& T. Co. 49 >-49\)
Shortly after the signing and sealing of
the 1,000 bonds they were all duly certified
by the trustee in the form above stated.
Prior to January 1st, 1867, of the 1,000
bondi 790 had been duly issued in ewohange
for a like number and amount of the exist-
ioff seoond and third mor^raffe bonds of the
CMumbuB 4 Indianapolis Railroad Company
as provided in said mortgage, and 31 of said
bonds had been duly issued and sold by the
railway company. The highest serial num-
ber of the 821 bonds so exchanged and sold
was No. 833. The remaining 179 of the
],000 bonds, including the 36 bonds described
in the petition, having been delivered prior
i7]to 1870, by the trustee, Parkhurst, *to Benja-
min E. Smith, as president of the companj^,
remained in the latter's jpossession as presi-
dent, and the companies into which the same
was successively consolidated as hereinafter
set forth, until the months of November and
December, A. D. 1875, and the happening in
those months of the events to be presently
stated.
On or about the 11th day of September,
1867, the Columbus & Indianapolis Central
Railway Company, which made the above
mortgage of 1864, was consolidated with the
Union & Logansport Railroad Company and
the Toledo, Lq^nsport, k Burlington Rail-
road Company, and became the Columbus &
Indiana Central Railway Company; and on
or about the 12th day of February, 1868, the
latter company and the Chicago & Great
Eastern Railroad Company were consolidated
and became the Columbus, Chicago, & Indi-
ana Central Railway Company, one of the
defendants in this action.
No authority or consent was thereafter
ffiven by the board of directors of the Colum-
bus, Chicago, (k Indiana Central Railway
Company £>r the issue or sale of the above
179 bonds, or any of them.
The Columbus, Chicago, & Indiana Central
RaUway Companv on or about the 20th day
of February made and executed its 15,000
bonds of that date, each for the sum of
$1,000, bearing interest at the rate of seven
per cent per annum ; and in order to secure
their payment executed and delivered its
mortgage or deed of trust of that date to
James 1. Roosevelt and William R. Fosdick,
trustees, conveying to them all its property,
— such conveyance including the property
formerly belonging to the Columbus & In-
dianapolis Central Railway Company that
had been previously conveyed to Parkhurst,
tnistee. That mortgage was recorded in the
states of Ohio, Indiana, and Illinois immedi-
ately after its execution.
Afterwards and before Roosevelt and Fos*
di^, trustees, began the foreclosure suit here-
hiafter mentioned, the Columbus, Chicago
A Indiana Central Railway Company issued
and sold of the 15,000 bonds so secured,
bonds to the amount of $10,428,000 or more.
On or about the 15th day of December, ▲.
8]p. 1868, the *Columbus, Chicago, & Indiana
Central Railway Company made and execut-
ed its 5,000 bonds, each for the sum of
11,000, of that date and due upon the 1st
day of February, A. D. 1909, with interest at
seven per cent per annum, and for the pur
Sose of securing their payment executed and
elivered its second mortgage or deed of
trust to Frederick R. Fowler and Joseph T.
Thomas, trustees, conveying to them all its
property, indudinff the property described
in the petition; whidi mortgage was imme-
diately thereafter duly recorded in Ohio, In*
diana, and Illinois.
It was set forth in the latter instrument
that the mortgagor, in addition to the $15,-
000,000 of first-mortoage bonds, was then
indebted for outstan£ng bonds as follows,
to wit: Second-mortgage bonds of the Col-
umbus ft Indianapolis C^tral Railway Com-
pany, $821,000; income bonds of the Colum-
bus i Indiana Central Railway Company,$l,-
243,000; and Chicago & Great Eastern Rail-
way Company construction and equipment
bonds, $400,000; total, $2,464,000; and that
it was further indebted in other liabilities in
the estimated sum of $2,500,000. It was pro-
vided in the Fowler-Thomas mortgage that,
of the issue of $5,000,000 of bonds, Uie sum
of $2,600,000, being bonds numbered 2501 to
5000 inclusive, should be set aside and used
only in exchange for and to satisfy the above
$2,464,000 of bonds.
The 821 second-mortffage bonds of the
Columbus & Indianapolu Central Railway
Company referred to in said mortgage were
part of the bonds secured by the mortgage
to Parkhurst, trustee.
On or about the 22d day of January, 1869,
the Columbus, Chicago, & Indiana Central
Railway Company leaised to the Pittsburgh,
Cincinnati, & St. Louis Railway Company
its entire railroad and property, induding
the railroad and proper^ here in question,
for the term of mnety-nme -years from the
1st day of February, a. d. 1869, renewable
forever. And on or about the ist day of
February^ 1869, possession of the leased
railroad and property was delivered to the
Pittsburgh, Cincinnati, & St. Louis Railway
Company, which continued to hold posses-
sion thereof and to operate the same *as lee-[499]
see till after the sale to which reference
will be presently made.
It was provided in that lease that no
bonds beyond the $15,000,000 of first-mort-
gage bonds secured by the mortgage to
Roosevelt and Fosdick, and the $5,000,000
of second-mortgaffe bonds secured by the
mortgage to Fowler and Thomas, and the
said $2,000,000 of income bonds, should be
issued by the lessor company without the
consent of the board of directors of the re-
spective parties to the lease. This lease
was duly recorded in the states of Ohio, In-
diana, and Illinois on or about the 29th day
of May. 1873.
On tne 1st and 2d days of February,
1875, Roosevelt and Fosdick commenced
their actions concurrently in the circuit
courts of the United States for the southern
district of Ohio, the district of Indiana and
the northern district of Illinois, for the fore-
closure of the mortgage made to them as
trustees, and for other purposes, **but," the
finding states, "not affecting the Parkhurst
mortgage aforesaid or the b^nds thereby ■•-
cured."
172 U. 8.
U. S., Book 43.
34
529
49^-502
SupRBsca CouBT ov THS Unitbd States.
Oct. Tdv.
In those actions William L. Scott ap-
peared and filed a cross bill in October, 1881,
•laiming to be the owner of certain bonds se-
cured by the mortgage to Roosevelt and Fos-
dick, and praying, among other things, for
its foreclosure. But he asked no relief
against the Parkhurst mortgage or the
bonds secured thereby. Prior to the begin-
ning of th0 foreclosure suit ThcMuas re-
tigned his trust under the mortgage made to
Fowler and himself, and thereafter that
trust was administered by Fowler alone.
In said actions the Columbus, Chicago, &
Indiana Central Railway Company, Fowler,
and others were made parties defendant, and
were duly served witn process or entered
their appearance therein.
In the bills of foreclosure the plaintiffs,
among other things, prayed for the ap-
pointment of a receiver or receivers of all
the railroad, equipment, and appurtenances
and other mortgaged premises, and of the
earnings and income, rentJs, issues, and
profits thereof; that the net amount of such
eaminffs should be first applied to the pay-
PMIO]mentof the interest on all the bonds ^issued
under the mortgage to the plaintiffs, and to
the pavment of the interest on all mortgaf^
bonds having prior liens on the property, m
such order as the court might direct; and
that the balance should be applied to the
payment of the sums due and in arrears to
and for the sinking fund provided for in the
mortgage to them for the redemption of the
bonds issued under said mortgage.
Such proceedings were had in the fore-
dosure suits brought in the circuit courts
of the United States that, on the 2d and 3d
days of February, 1875, Roosevelt and Fos-
dick were duly appointed receivers of the
railroad, equipment, and appurtenances and
other mortgaged premises embrace in and
covered by said mortgage, and of the earn-
ings, income, roits, issues, and profits there-
of; and they were directed not to disturb
the possession of the mortgaged premises by
the Pittsburgh, Cincinnati, & St. Louis Rail-
way Company under the lease to it, but
should collect and receive the rental payable
by the lessee, and apply the same as provid-
ed by the further oroiers of the court. And
in the order of appointment it was further
directed that the Columbus, Chicago, & In-
diana Central Railway Company forthwith
transfer and convey to the receivers the said
railroad equipment and appurtenances and
other mortgaged premises embraced by tJie
mortgage, and including the income, rents,
issues, and profits thereof. The conveyance
so ordered was duly executed and delivered
to Roosevelt and Fosdick as receivers, on or
about May 25th, 1875. That deed was not
recorded, and the plaintiff Charles R. Lynde
had no actual knowledge of its existence un-
Ul the commencement of this action in 1801.
Inmiediately after their appointment the
receivers, in pursuance of the above order,
took possession and control of all said rail-
road and property, its income, rents, issues,
and profits, subject, however, to the physi-
cal possession and operation of the railroad
by tne lessee. They continued in possession
530
and control until after the sale of the rail-
road and the property hereinafter set fortk.
Such further procc^ings were had in the
foreclosure suits that on Uie 15th, 16th, and
23d days of November, 1882, in the *i
circuit courts similar decrees were entered,
wherein it was adjudged that in eue the
Columbus, Chicago, ft Indiana Central Rail-
way Company failed for ten days to pay the
sum found due in the decree the mortgant
should be foreclosed and the property con-
veyed by it — ^which, as we have seen, imWii^
ed dU the property described in the peiitkm
herein — should be sold for the payment of
the principal and interest of said bonds, «sl-
feot to the outetanding sectional h<md$ prior
in lien to the mortgage to Rooeev^ and Fos-
dick, and to aU other, if any, parawKmmt Items
thereon, but free from the lien of the moitr
gage to Roosevelt and Fosdick; that the de-
cree should not in any manner affect, preju-
dice, or preclude the holders of the para-
mount liens or any of them, but should be
without prejudice to the right of them and
each of them. It was also adjudged that
the purchaser of the mortgaged preini«<^
should be invested with, and should bold,
possess, and enjoy the same and all the
rights, privileges, and franchises appertaia-
ing as rally and completely as the Colum-
bus, Chicago, ft Indiana Central Railway
Company at the commencement of the smit
hy Roosevelt and Fosdick held or them hfU
and enjoyed, or was entitled to hold or n»-
joy, hut free from Hens then represented hf
any party to said cause.
In that decree it was further adjudged that
the sale decreed to be made, and the eoovey-
ance, after confirmation thereof, to be exe-
cuted and delivered, should be valid and ef-
fectual forever, and that thereby the defemi-
ants in said suits, respectively, and all per-
sons claiming or to claim under them or aay
of them, suMequent to the beginning of the
suits by Roosevelt and Fosdick, as purduw-
ers, encumbrancers, or otherwise, howsorrtr,
should be forever barred and foredoeed ol
and from all rights, estate, and interest, cUim,
lien, and equity of redemption of, in or to tbt
premises, property, rights, and interests m
sold and every or any part thereof.
On or about the 10th day of January. 18^,
in conformity with the decree, the said prop-
erty and every part thereof was sold by mss^
ten theretofore appointed to execute the
order of sale, to Wiliiam L. Scott, Charle* J.
Osbom, and John S. Kennedy, for the sub of
$13,500,000, whidi sum was insnfiScieol *t»;M|
pay the outstanding bonds and interest tt-
cured by the mortgage to Roosevelt and Fos-
dick.
Afterwards, and on or about the 30th dsy
of Januarv, 1883, the circuit courts for tW
northern district of Dlinois and the district
of Indiana, and on the 3l8t day of Jaansry.
1883, the circuit court for the southen di**
trict of Ohio, — ^the said purchase monaij hsr-
ing been paid, — by orders ento^ in thoM
causes, duly confirmed and approved the mi%
and ordered said premises and propcrtr,
rights and franchises, to be conveved to t>s
purchasers in fee simple, in accordsiMv vith
17t U. *
iMML PiTTSBUBen, C. C. & St. L. R. Co. y. Lokg Islasd Loah & T. Co. 502-505
tkt foimer decrees of those oourts. Such
a eanreTaiioe was made February 21st,
1883.
Sobseauently, on or about the 17th day of
Msreh, 1883, Scott, Osborn, and Kennedy,
with their respective wives, executed and de-
liTered their deed of that date, conveying
•aid premises and property, rights and fran-
diifles, to the Chicago, St. Louis, & Pittsburgh
Rtilroad Company, which was authorized to
parchase and own the same.
On or about the 10th day of June, 1890,
tiie Chicago, St. Louis, & Pittsburgh Railroad
Ccnnpany was duly consolidated with the
Pittsburgh, Cincinnati, & St. Louis Railway
Company, together with other railway com-
panies, under the name of and thereby became
the Pittsburgh, Ciiyrinnati, Chicago, & St.
Louis Railway Company.
The latter company was, at the conmience-
ment of this suit, — and through its predeces-
sors in title has been ever since the convey-
anee to Scott, Kennedy, and Osborn, — in the
actual, peaceable, and undisputed possession
of all said railroad, premises and property,
rights and franchises, including that de-
scribed in the petition.
The history of the 36 bonds in suit is as
follows :
On and before the 1st day of November,
18^4, Benjamin £. Smith was the president
of the Columbus ft Indianapolis Central
Railway Company. He continued to be pres-
ident of that corporation and of its succes-
sors into which it was successively consoli-
dated, until the sale of the railroad hereinbe-
fore mentioned in 1883.
In the months of November and December,
iS]1875, Smith borrowed *for his own purposes
$48,000 from W. H. Newbold, Son, & Co.,
brokers in Philadelphia, executing and deliv-
ering to than his individual not^. At that
time he had, as president of the Columbus,
Chicago, & Indiana Central Railway Com-
pany, the custody and possession of the 170
beronbefore described; and, without the
knowledge, authority, or consent of that com-
panv, but falsely pretending to W. H. New-
bold, Son, ft Co. that he was individually the
owner of such bonds, delivered certain of
them, including the 36 described in the plain-
tiff's petition, as collateral security for the
payment of his notes. He subsequently re-
newed his notes, with the same collateral,
from time to time until about the 14th day of
January, 1878, when the 36 bonds were sold
by W. n. Newbold, Son, ft Co., and the pro-
ceeds applied to the payment of Smith's
notes. The balance was paid over to him or
for his use, and no part of it was used for the
benefit of the railway company.
At the time the bonds were so pledged all
the past-due coupons had been cut off, and
while they were so held as collateral security
the sulraequent coupons, as they fell due, were
cut from the bonds and delivered to Smith,
but were never presented for payment.
At the sale of the bonds, Newbold, Son, ft
Co. themselves became the purchasers of the
36 bonds, paying the full market price and
buying them in good faitl^ without knowledge
of any defect in them; and thereafter they
vnt them to New York for sale.
172 U. 8.
In the months of May, July, and August,
1878, Lynde purchased the 36 bonds in good
faith, in the usual course of business, for valu-
able consideration (being about ninety cents
on the dollar, which was at the time the usual
market price for them), without knowledge
or notice of the unauthorized or fraudulent
acts of Smith, and without any knowledge or
notice that the bonds had not been sold by the
Columbus ft Indianapolis Railway Company,
and therebv became the bona fide holder and
owner of the bonds and the coupons thereto
belonging. Before the 30 bonus had been
purchased by him the railway company had
not made default ini the payment *of intere8t[504]
on them, and no holder prior to Lynde had
elected that the principal sum should become
due.
At the time Lynde purchased the bonds the
coupons due May 1st, 1878, were still at-
tached to the bonds and were unpaid.
On or about the 27th day of August, 1878,
Lynde presented the 36 bonds for registration
to the secretary of the Union Trust Company,
New York, which had been designated by the
Columbus, Chicago, ft Indiana Central Rail-
way Company as registerinff agent for such
bonds in the city of New 'i^rk, — ^to put the
bonds in the name of the par^ registering
them and taking them out of the register and
making them & bearer; and the secretary
then caused the same to be registered in the
name of Lynde. At the time of such regis-
tration no inquiry was made by the secre-
tary as to whether or not the bonds had been
regularly issued by the Columbus ft Indian-
apolis Central Railway Company.
The coupons maturing May 1st, 1878, on
these 36 bonds, which were attached to them
when Lvnde purchased, were naid to the lat-
ter by tne firm of A. Iselin ft Co., Wall street,
New York, upon presentation by Lynde of the
coupons in October, 1878; and the 36 coupons
maturing November 1st, 1878, were paid to
Lynde by the same firm upon the presenta-
tion of the coupons in Apru, 1870. Iselin ft
Co. were acting for the receivers and a bond-
holders' committee, — that committee fur-
nishing the money for taking up the coupons,
and being afterwards reimbursed by the re-
ceivers. In October, 1870, Lynde presented
the coupons falline due May Ist, 1870, on the
36 bonds, but Iselin ft Co. then declined to
pay them, which was the first knowledge or
notice of any kind that he had of any dis-
crimination against or difference between
those bonds and any other bonds of the same
series. And he has never received payment
of any coupon on the 36 bonds or any of them
since the payment to him as aforesaid of the
coupons maturing in November, 1878. At
the time the May and November, 1878, cou-
pons were paid, Iselin ft Co. had no knowl-
edge but that the 36 bonds had been regular-
ly issued and sold by the Columbus ft Indian-
apolis Central Railway Company.
From the year 1871 until after the pur-
chase by him of the 36 bonds, *L3mde heldand[506]
owned other bonds secured b^ the mortgage
of the Columbus ft Indianapolis Central Rail-
way Company to Parkhurst, trustee, above
referred to, being some of the 821 bonds be-
fore described.
531
•01^-507
SUPBBMB COUBT OF THB UnIIBD BftA^tEB.
Ooc Tbv,
The Columbus, Chicago, & Indiana Cen-
tral Railway Company made default in the
payment of the interest coupons upon said
821 bonds due on the Ist day of Blay, 1875,
and on the 1st day of November, 1875, and
the interest coupons were not paid until after
Juno 30th, 187o, when they were paid by or
on behalf of the receivers nereinbefore men-
tioned, all which facts were known to Lynde
at the time he purchased the 36 bonds de-
scribed in the petition.
At the time of the demand made by Lynde
upon Parkhurst, trustee, hereinafter set
forth, and at the time of the commencement
of this action, interest coupons which had
theretofore faUen due upon more than 700
of said lOOO bonds described in said mort-
gaffe had been paid.
On or about the 27th day of June, a. d.
1801, at Newark, in the state of New Jersey,
Lynde made a personal request and demand
in writing of Parkhurst, as trustee, to com-
mence an action for the foreclosure and sale
of the premises in accordance with the pro-
Tisions of the deed of trust, for and on ac-
count of the default made by the Columbus
k Indianapolis Central Railway Company in
the payment of the coupons upon the 36
bonds ; and then and there offered to the trus-
tee sufficient security and indemnity to pro-
tect him against all expenses and personal
responsibility by him to be made and in-
curred in the commencement and prosecu-
tion of an action for the foreclosure and sale
of the premises. Parkhurst as such trustee
refusea to take the action requested.
The Columbus, Chicago, & Indiana Central
Railway Company and the Pittsburgh, Cin-
cinnati, Chicago, ft St. Louis Railway Com-
pany have neglected and refused to pay the
coupons due upon each of the bonds described
in the petition, being coupons from and in-
cluding coupon maturing May 1st, 1870, to
and including coupons maturing Bfay 1st,
1802, the last two of which fell due since the
commencement of this suit.
[506] •On the 1st day of October, 1800, the Pitts-
burgh, Cincinnati, Chicago, & St. Louis rail-
way Company made its mortgage to the Far-
mers' Loan i Trust Company of New York,
and to W. N. Jackson of Indiana, as trustee,
for the purpose of securing an issue of bonds
to be made by that company to amount in
the total to 75,000 bonds at the ^r value of
$1,000 each, to be issued as in said mortgetge
set out, and upon the property described m
the answer and cross petition of the said
Farmers' Loan ft Trust Company filed in this
cause, including the line of railroad and
other property connected therewith, described
in the petition of the plaintiff herein; that
said mortgage was duly recorded as required
by law in all of the counties in the several
states through or into which that line runs;
that by virtue of that mortgage there have
been issued bonds to the total number of
5,318, being the bonds numbered from 1501
to 6818, both inclusive, and amounting in
the total to $5,318,000; and that said bonds
are now outstanding and in full force, and
no default has been made in the payment of
interest thereon.
As conclusions of law from the foregoing
582
facts, the court of common |,teas foimd te
equities of the case in favor of Lynde. It
held that the 36 bonds and the coupons then-
to annexed were the valid and binding obli>
gations of the Columbus ft Indianapohs Cen-
tral Railway Company and of the Cdlamboi
Chicago, ft Indiana Central Railwmv Cob-
pany ; that Lynde was the owner and holder
of those bonds and coupons, and each of
them, as well as the eonpons that aeervei
May 1st, 1870, to May 1st, 1891, induife;
that there was due to him on saeh
coupons, down to the entry of the decree,
the sum of $47,673.37; and that, nnder
and by virtue of the said mortgage or
deed of trust described in the petltiaa,
Lynde had a valid and subsisting lica,
to secure said bonds and coupons, upon th«
railroad property deserioed in the pctitioB
as of November 1st, 1864, and was entitled
to a decree for the payment of the sum to
found due. A decree was subsequently ca-
tered in eonformity to these eondusioaa.
Upon a writ of error to the drcoit court of
Franklin county that judgment was af-
firmed. The judgment of Uie latter eovrt
was *also affirmed upon writ of error to the[541
supreme court of Ohio.
while the cause was pending in tlie vm-
preme court of the state, Lynde died, and the
Long Island Loan ft Trust Company quali-
fied as his executor.
The first question to be considered rcUtei
to the jurisdiction of this court to leiic*^
the final judgment of the supreme court of
Ohio.
Tlie contention of the defendant in error
is that the record presents no Federal ques-
tion which this court will review; and that
the state court based its decision upon sa
independent ground, not involving a Federal
question, but depending upon principles ol
general law and broad enough to sustain iti
judgment. Its further contention is that the {
supreme court of Ohio rightly held that nei-
ther Lynde nor the trustee, Parkhurst, wert
affected by the proceedings in the foreclos-
ure suits instituted im the dreuit courts ol
the United States.
Upon looking into the record, we find that
the defendant railway company claimed is
its answer that, if a lien at any tine at
tached to the property in question to secvt
the 36 bonds purchased by Lynde, such liee
was wholly devested and dischanred bv the
above proceedings in the Federal courts, ai-
der which that company claims title. Tkn,
it would seem, was such an afMertioa of •
right and title under an "authority txtrwti
under the United States" as ffive^ this coort
jurisdiction to reexamine ue final todf
ment of the state court. Rev. Stat. I iQi
In Dupasseur v. Rocher^au, 21 Wall 1)1
134, 135 [22: 588, 590, 591], whidi vss »
suit to subject certain lands in satiAfsrtiea
of a debt secured by a mortgage, and for tW
amount of which debt ju<^^ent had bHS
obtained, — the defense was rested upoa tW
ground that the defendant purchased tW
property at a sale made under a judfwst
of tne circuit court of the United State* fv
the eastern district of Louisiana, in a atwJ
case, "free of all mortgages and ewv^
ITS 1L&
1896.
PrrrsBUROH, C. C. & St. L. R Co. y. Loire Island Loan & T. Co. 607-510
brances and especially from the alleged
mortgage of the plaintiff." This defense
WIS not recognized by the supreme court of
Louisiana, and the case was brought to this
eourt by writ of error. One of the questions
^I'oonsidered was as to the jurisdiction of this
court under the act of February 5th, 1867,
iHiich gives a writ of error to the highest
ooort of a state in which a decision in the
suit could be had, "where any title, right,
privilege, or immunity is claimed under, or
authon^ exercised under, the United States,
and the decision is against the title, right,
pririleffe, or immuni^ specially set up or
claimed under . . . such authority.^' U.
S. Rev. Stat 709, 14 Stat, at L. 385, chap. 28.
Mr. Justice Bradley, delivering the opinion
of the court, said: ''Where a state court
refuses to give effect to the judgment of a
eourt of the United States rendered upon the
point in dispute, and with jurisdiction of
the case and the parties, a question is mi-
doubtedly raised which, under the act of
1867, inay be brought to this court for re-
vision. Tne case would be one in which a ti-
tle or right is claimed under an authority
exercised under the United States, and the
decision is aeainst the title or right so set
up. It would thus be a case arising under
the laws of the United States establishing
the circuit court and vesting it with juris-
diction : and hence it would m within the ju-
dicial power of the United States as defined
hy the Constitution; and it is clearly with-
in the chart of appellate power ffiven to this
court, over cases arising in and decided by
the state courts." Having disposed of the
question of jurisdiction, the court then in-
quired whether the state court in overrul-
ing the defense, had given proper validity
and effect to l^e judgment of the circuit
eourt of the United States. Upon this point
the court said: "The only effect that can
be justly claimed for the judgment in the
circuit court of the United States is such as
would belong to judgments of the state
courts rendered under similar circumstances.
Dupasseur &, Co. were citizens of France,
and brought the suit in the circuit court of
the United States as such citizens; and con-
sequently that court, deriving its jurisdic-
tion solely from the citizenship of the par-
ties, was in the exercise of jurisdic-
tion to administer the laws of the state, and
its proceedings were had in accordance with
the forms and course of proceeding in the
state courts. It is apparent, therefore, that
no higher sanctity or effect can be claimed
09^or the judgment of the*circuit court of the
United States rendered in such a case under
such circumstances than is due to the judg-
ments of the state courts in a like case and
under similar circumstances. If by the
laws of the state a judgment like that rend-
ered by the circuit court would have had a
binding ^(ect as against Rochereau, if it
had b^n rendered in a state court, then it
should have the same effect, being rendered
by the circuit court. If such effect is not
eonceded to it, but is refused, then due va-
lidity and effect are not given to it, and a case
is nuide for the interposition of the power
of reversal conferred upon this court. We
ITS U. 8.
are bound to inquire, therefore, whether the
judgment of the circuit court thus brought
m question would have had the effect of
binding and concluding Rochereau if it had
been rendered in a state court. We have ex-
amined this question with some care, and
have come to the conclusion that it would
not."
The same question was again before this
court in Crescent Live Stock L. d 8, H. Co,
V. Butchers* Union 8, E, d L, 8. L. 120 U.
S. 141, 146 [30: 6l4, 617], which was an ae-
tion for malicious prosecution, the defense
being that the existence of probable cause
had oeen previousl;^ determined by a judg-
ment in tne circuit court of the Unitd
States. It was contended that the supreme
court of the state failed to give proper effect
to that judgment, and thereby denied to the
defendant a right arising under the author-
ity of the United States. The case came
here upon writ of error, and the jurisdiction
of this court to review the final judgment
was sustained. Mr. Justice Matthews, -
speaking for the court, said: "It must
therefore be conceded that the sole question '
to be determined is. Did the supreme court
of Louisiana, in deciding against the plain-
tiffs in error, give proper effect to the decree
of the circuit court of the United States,
subsequently reversed by this court? It is
argued by the counsel for the defendant in
error that this does not embrace any Federal
Question ; that the effect to be given to a
udgment or decree of the circuit court of
the United States sitting in Louisiana by
the courts of that state is to be detennined
bv the law of Louisiana, or bv some princi-
ple of general law as to which the decision
of the state court is final; *and that the rul-[510]
ing in question did not deprive the plaintiffs
in error of 'any privilege or immunity spe-
cially set up or claimed under the Constitu-
tion or laws of the United States.' But this
is an error. The question whether a state
court has given due effect to the judgment
of a court of the United States is a question
arising under the Constitution and laws of
the United States, and comes within the jur-
isdiction of the Federal courts by proper
process, although, as was said by this court
in Dupasseur v. Rochereau, 21 Wall. 130,
135 [22: 688, 501], 'no hiffher sanctity or ef-
fect can be claimed for the judgment of the
circuit court of the United States rendered
in such a case, under such circumstances.'
Emhry V, Palmer, 107 U. 8. 3 [27:346].
It may be conceded, then, that the judgments
and decrees of the circuit court of the Unit-
ed States, sitting in a particular state, in
the courts of that state, are to be accorded
such effect, and such effect only, as would be
accorded in similar circumstances to the
judgments and decrees of a state tribunal of
e^ual authority. But it is within the juris-
diction of this court to determine, in this
case, v.'hether such due effect has Ix^n given
by the supreme court of Louisiana to the
decrees of the circuit court of the United
States here drawn in question. The decree
of the circuit court was relied upon in the
state court as a complete defense to the ac-
tion for malicious prosecution, on the groiiTid
533
010-OlS
SUPBBMB COUBT OV TBM UhTTBD StaTBB.
Oct. Tbm,
that it was oonclusive proof of probable
cause. The supreme court of Louisiana, af-
firming the judgment of the inferior state
court, denied to it, not only the effect
claimed, but any effect whatever."
According to these decisions and in yiew
of the statute givinff this court authority to
re-examine the finiu judgment of the Ydgh-
est court of a state denying a right speciuly
■et up or claimed under an authority exer-
cised under the United States, it is clear
that we have jurisdiction to inquire whether
due effect was accorded to the foreclosure
proceedings in the circuit courts of the Unit-
ed States under which the plaintiff in error
daims title to the lands and property in
question.
The plaintiff in error contends that the
■tate court did not give due ^ect to the de-
crees of the circuit court of the United
States in the suits instituted by Roosevelt
(•ll]and Fosdick,* in that it did not recognize as
Saramount the rights acquired under those
ecrees by the purchasers of the property in
question, but postponed or subordinated
those rights to a lien upon such property,
which it is alleged, was created or attempt-
ed to be created while those suits were pend-
ing, and while the property was in the actual
custody of those courts, by receivers, for pur-
pose of being administered.
Did Lynde, under the circumstances stated
In the finding of facts, acquire a good title,
as between himself and the mortgagor com*
pany, and the companies which succeeded it
by consolidation, to the 86 bonds purchased
mr him from Newbold ft Son, as well as the
right to claim the benefit of the mortgage
executed to Parkhurst? Referring to the
facts recited in the finding, the supreme court
of Ohio said: Tlaintiff in error contends,
amonff other things, that the facts thus
stated show that neither the maker of these
bonds nor the consolidated companies into
which it became merged consented to the
tale or delivery of the bonds, and, as an
owner cannot be deprived of his property
without his consent, no title passea. It is
true that these bonds were negotiated to
Newbold k Son without the knowledge or
consent of the company; but such consent
and knowledge is not indispensable to pass
the title to negotiable instruments. Wnere
this class of paper, complete in form and
transmissible by delivery, is placed by the
maker or owner in the custo^ of one who
is thereby clothed with an apparent power of
disposition, and the custodian avails him-
•dx of the opportunity thus afforded him to
negotiate it to an innocent party, the title
of the holder is not to be tMted by Jprind-
pies applicable to stolen securities, but by
prindples properly applicable to the transac-
tion as it actually occurred. That the title
to negotiable securities may pass by virtue
of sudi a transaction as the finding of fad
diows occurred in respect to the negotiation
of the bonds in question is, we think, dear
upon principle and sustained by authority.
Indiana d i. O, Railway Co, v. Sprague, 103
U. S. 766 [26:654]; Fearina v. Olark, 16
Gray, 74. Independently of the rules of law
designed to protect and give currency to ne-
^tiable paper, those prindples of ■atnral
justice universally *appUoabie to the aflain{Sll)
of mankind, when applied to this traasae-
tion, would t»eem to demand the protectioa of
the ddcndant in error as against the maker
of the bonds and all who stand in its shosL
He was wholly free from fault in connectioa
with the transaction. Each bond ^r^^f^i^f^
a declaration of its transmissibility fron
hand to hand by mere delivery. He found
them for sale, before the^ were due, in tks
market, where such securities are usuaUy of-
fered for sale, and bought them at thdr fair
market value without notice of any infirmity
in their title. Soon thereafter he took thcB
to the Union Trust Company, in New York
dt^, the agents of the makers, specially ap-
pointed to register its bonds, an^ ea«sed
them to be registered in his name on its
books. What more could even the highest
degree of prudence or diligence demand of
him? The maker of the bonds, a railway
company, capable of acting through mfmU
only, placed these bonds in the custody of its
president, an agent dothed with high,
thouffh possibly not dearly defined, powerm.
The bonds were perfect oUintiotts, bearing
on thdr face a certificate m authenticatioa
by the trustee, and containing an expies*
declaration of thdr transmisribllity froai
hand to hand by mere ddivery. He was, np
to and long after the time these bonds were
negotiated, continued as preddent of the dif-
ferent consolidated companies as they wen
successivdy formed. The companies thns
held him out to the world as one who coaM be
trusted to transact matters of Importaaea
Under these drcumstancea, what can be
found tendinff to exdte a doubt in the nnst
cautions mind respecting his power to dispose
of bonds so entrusted to him? If the iiMtsr
of these bonds and those who must abide by
its title can shift the respoi^lbility and cos-
sequent loss resulting from this traasacCioa
from themsdves to the.holder of the boads. It
must be by the application of some atcn
of law founded upon condderatloas of
lie policy.'' 66 Ohio St. 23, 46.
Tlie state court adjudged that there wm
no rule of law arising out of the public pol-
icy of the state, as manifested by state kfie-
latlon, that required it to deny to the boMers
of these bonds the rights and privileges pcr^
taining to commercial *paper purchaeed ia[SlK
good faith in the ordinary course of bttslBess.
Assuming thai this qoestloa of fSBeral law
was correcUv determined by that court* we
are now to inquire what effect, if any, the
proceedings In the foredosure s«Hs insti-
tuted by Roosevdt and Foediek in the dr
cult courts of the United States had npsa
the right of Lynde, as the booA fide hoMsr
of the 36 bonds, to the security fmlalMd If
the Parkhurst mortgage.
We have seen that when I^ynde
the 36 bonds to secure whidi. ^th
bonds, the Parkhurst mortgage had
viously executed, the property des
that mortgage and here in ooestlon
the adual custody of the circnit covrts of
the United States by reodvert appotntsd k
the foredosure sulU brought by RuussnH
and Fosdick. The contentuNi of the ■■■inlit
17ft «.&
1896.
FiTTfl T. McGhBB.
513-510
in error is that the property was a fund in
those courts to abide the event of the litiga-
tion in them, and that, pending the prooeid-
ings in those courts ana their actual posses-
uon of the properly, it was impossible that
Lynde, by purchasing the 36 bonds, could
luiTe acquired any lien thereon whioh the law
would recognize and enforce.
The principal authority cited in support of
this contention is Wisvmll v. Sctrnpson, 14
How. 52, 68 [14: 322, 329], in which it was
held that while real estate is "in the custody
of the court as a fund to abide the result of
a suit pending, no sale of the property can
take place, eitner on execution or otherwise,
without the leave of the court for that pur-
pose." If the rule were otherwise, the court
said, the whole fund might pass from its
hands before final decree, and the litigation
become fruitless. We do not perceive that
the principle announced in WiauxUl y. fifomp-
9(m controls the determination of the present
case. If there had been any attempt oy suit
to enforce the lien given by the Farkhurst
mortgage by an actual sale of the property
in question pending the proceedings in the
foreclosure suits, it may be that the princi-
ple announced in that case could have been
invoked, and the sale would have been inef-
fectual to pass title to the purchaser. But
nothing was done by Lynde, after the insti-
tution of the foreclosure suits and pending
I4]prooeedings 'therein, which was inconsistent
with or tended to defeat the object of those
suits. He only purchased the bonds in ques-
tion, and sucn purchase was not hostile to
the possession ij the circuit courts in the
foreclosure suits of the property mortgaged
to secure them, simply because by such pur-
chase he succeeded to an interest in the Fark-
hurst mortgage. The foreclosure suits pro-
eeeded to a final decree without any attempt
to interfere with the custody and control of
the property for the purposes avowed in those
suits; for the bill filed by Roosevelt and Fos-
dick showed upon its face, that no relief was
asked as against tiie Parkhurst mortgage or
the bonds secured by it. It was distinctly
found, and it is not disputed, that the Roose-
velt-Fosdick suits were for the foreclosure of
the mortgage in which they were nama^i as
trustees, "but not affecting the Parkhurst
mortffage aforesaid or the bonds thereby se-
cured" And by the final decree in those
suits the mortgaged property was directed
to be sold subject to the outstandinff bonds
prior in lien to the Roosevelt-Fosdick mort-
gage, and to all other, if any, paramount
liens. thereon. The Parkhurst mortgage was
prior in date to the Roosevelt-Fosdick mort-
gage; and the decree in the foreclosure suits
eiq>ressly declared that nothing contained in
it should "in any manner affect, prejudice, or
' preclude the holders of said paramount liens
or any of them, but that said decree should
he without prejudice to the rights of them
and each of them." Thus the decree express-
ly saved the rights of those who held bonds
secured by mortgage prior in date to the
mortgage to ItMseveft and Fosdick. It
bound only the defendants in the foreclosure
suits, and all persons claiming or to claim
Qnder them or any of them, subsequent to the
172 V. S.
institution of those suits. Strictly speaking,
the lien that attended the 36 bonds purchased
by Lynde did not arise after the institution
of the foreclosure suits, although Lynde's
purchase • was pending the proceeding in
those suits and while the property was in the
hands of receivers. That lien had its origin
in the execution and delivery of the Park-
hurst mortgaffs and the authentication by
the trustee of the bonds named in it, and
when any of those bonds became the property
of a bona fide *holder, the liengiven to secure[51S]
them related back to the date of the mort-
gaffe, which was lon^ prior to the institution
of the foreclosure suits. Besides, Parkhurst,
the trustee in the prior mortgage, was not
made a party to tne foreclosure suits, and
neither he nor those whose interests he was
appointed to represent were bound by the de-
cree or any of its provisions. The rule is weU
settled that a sale of real estate under judi-
cial proceedings concludes no one who is not
in some form a party to such proceedings.
United Lines Telegraph Co, v. Boston Safe
Deposit d Trust Co, 147 U. 8. 431, 448 [37 :
231, 237]. It would seem, therefore, clear
that the pendency of the foreclosure suits
did not interfere with the negotiation or
transfer of the bonds secured by the prior
Parkhurst mortgage, nor did the decree in
those suits impair m any degree the lien cre-
ated by the Parkhurst mortgase, which ante-
dated the mortgage to Roosevelt and Fosdick
The mere purchase of the 36 bonds by Lynde,
and the acquisition by him, in consequence of
such purchase, of an interest in the Park-
hurst mortgag^, cannot be r^^arded as hostile
to the possession taken by the circuit courts
of the United States of the property embraced
by the Robsevelt-Fosdick mortgage for the
Surpose of selling it in satisftu^ion of the
ebts secured by that mortgage, but subject
to prior paramount liens, such as the lien cre-
ated by the Parkhurst mortgage.
We are of opinion, for the reasons stated,
that the state court did not fail to give due ef-
fect to the several decrees in the circuit courts
of the United States in the foreclosure suits in-
stituted by Roosevelt and Fosdick, when it
held that those decrees did not prevent the
defendant in error from claiming the benefit
of the lien created by the mortgage to Park-
hurst to secure the payment of the bonds
purchased by Lynde from Newbold k Son.
The judgment helow is affirmed.
WILLIAM G. FITTS, as Attorney General of[61«]
the State of Alabama, A. H. Carmichael,
as Solicitor of the Eleventh Judicial Cir-
cuit of the State of Alabama, and William
H. Gilliam, Appts,,
V,
CHARLES MoGHEE and Henry Fink, as
Receivers of the Memphis ft Charleston
Railroad, and the Memphis k Charleston
Railroad Company.
(See 8. C. Reporter's ed. 516-588.)
Suit against a state — injunction to restraim
criminal proceedings in a state court — hO'
heas corpus.
636
516-^18
SUFBBMB COUBT OF THS UmITBD StATBS.
Got. Tm,
1. A suit to restrain offlcera of a state from
taking any steps by means of judicial proceed*
Ings, In execution of a state statute to which
they do not hold any special relation. Is
really a suit against the state within the
prohibition of the 11th amendment of the
Federal Constitution.
2. The circuit court of the United States sit-
ting In equity Is without jurisdiction to en-
join the Institution or prosecution of crim-
inal proceedings commenced In a state court
t. The power of the Federal courts to Inter-
fere by habeas corpus with the trial of In-
dictments found In state courts, on the
ground that the state statutes under which
the Indictments are found are repugnant to
the Federal Constitution, laws, or treaties,
will not be exercised In the first Instance, un-
less there are exceptional or extraordinary
circumstances to require It, but the party will
ba laft to make his 4ef ense In the state court.
[No. 130.]
Argued October 26, 1898. Decided January
S, 1899.
APPEAL from a judgment of the Circuit
Court of the United States for the North-
em District of Alabama in favor of the
plaintiffs, the appellees in this court, making
perpetiial certain injunctione against taking
any steps under a statute of A&bama fixing
the tolls to be charged on a bridge across
the Tennessee river, and providing penalties
in case of violation, on the ground that the
said statute was repugnant to the Federal
Constitution. Judgment of the Circuit
Court reversed, with directions to dissolve
the injunction restraining the . institution
or prosecution of indictments or other
criminal proceedings in the state court, and
to dismiss the suit brought by the receivers
against the Attorn^ General of the State of
iaabama and the Solicitor of the Eleventh
Judicial Circuit of the State, etc.
Statement bv Mr. Justice Harlan t
An act of the general assembly of Alaba-
ma, approved February 9th, 1895, prescribed
curtain maximum rat^ of toll to be charged
on the bridge across the Tennessee river oe-
tween the counties of Colbert and Lauderdale
in that state, and known as the Florence
bridge. It also declared that ^ould the
owners, lessees, or operators of the brid^,
by themselves or agents, demand or receive
from any person a liigher rate of toll than
was prescribed, he or they should forfeit to
such person twenty dollars for each offense,
to be recoverable before any justice of the
peace or notary public and ew officio justice
of the peace of either of the cotmties named.
When that act was passed the cases of
Samuel Thomaa v. Memphis d Charleston
Railroad Company and Central Trust Com-
pany of New York v. Memphis d Charleston
Raiiroad Company were pending in the court
below; and on the 14th day of February,
1895, Charles M. McGhee and Henry Fink,
receivers of the Memphis k Charleston Rail-
road in those causes, — ^bavins first obtained
(S17]leav)e to do wo. — *filed a. bill In the name of
themselTM and the railroad company against
536
"the SUte of Alabama, William 0. Oatn. u
Governor of the State of Ai^ham^ uid Will-
iam C. Fitts, as Attorney General of tht
State of Alabama."
After setting out their appointment as re-
ceivers, the order of the court bdow authoris-
ing the institution of the present svit» tlie
official character of the several defendants,
the ownership by the Memphis k Chariestoa
Railroad Companv of the bridge in qnestioB,
the above act of February 9th, 1895, the
manner in which that company aoquired the
ri^ht to construct and own the FkvcMe
bridge, the charters of the railroad eoBpaay
granted bv Tennessee and Alabama, the p«^
chase in 1850 of the bridge by the railroad
company tmder the charter granted by Ala-
bama, and its management of the bri^ em-
der the charter of the Florence Bridge Com-
pany, the plaintiffs averred that the act ia-
oorporating the bridge company was a con-
tract between the state and the owners of the
bridge; that the rights acquired bj that
companv under its charter passed to tte
Memphis k Charleston Railroad Company:
that the rates of toll fixed by the act were
arbitrary, unreasonable, and amounted vir*
tually to the confiscation of the plaintilTs'
property, and that the act was in vioUtioB
of the Constitution of the United States is
that such a legislative mactment deprived
the owners of the bridge of their property
without due process of law, and denied to
them the equal protection of the laws.
It was further alleged that the daose b
the act imposing a penalty for demauoding or
receiving higher rates of toll than those pre-
scribed was intended and had the effect to de-
ter the plaintiffs from questioning by le|:ml
proceedings the validity of such legislstioo.
After stating that thev were remedika
except by a bill m equity, tne plaintiffs prayed
that "process of subpoena be issued to aad
served upon the state of AUham^^ the said
Wm. C. Oatee, as governor of the state «f
Alabama, and Wm. C. Fitts, as the attoracy
general of the state of Alabama," reqoiriaf
Uiem, ''in behalf of the state," to answer the
bill, and that "an injunction be granted pre
hibiUng and restraining the 'said Wm, 0(511
Gates, IM governor of the state of Alabaaa
and the said Wm. C. Fitts, as the attonwv
general of the state of AlalMima, and all pcr^
sons whomsoever from instituting any pro-
ceeding against the complainants or chbrr
of them tmder the forfeiture daose sbc***
set out in the 2d section of said act of tie
general assembly of Alabama."
Subpoenas to appear, answer, or deonr ts
the bill, were issued and served upon defeat
ant Gates, as governor, and upon d^ieodaat
Fitts, as attorney general of the stata A
subpoena was also issued against the stata*
and served upon the defendsSit Gates, as pf^
emor.
A temporary injunction was issocd. re*
straining and enjoining William C. Oate». sa
governor of Alabama, and William C Fitts.
as attorney general of the state, and *aB
persons whomsoever, from instituting or
prosecuting any proceedings" against the
plaintiffs, or either of them, under the ior^
i7t u. a
im.
Pitts v. McGhbb.
518-531
feiture clause contained in the above act of
February 9th, 1895.
The defendants appeared specially for the
purpose of moving, and did move, that the
bill be dismissed upon the grotmd that the
luit was one a^inst the state, and prohib-
ited by the Constitution of the united
SUtes.
The plaintiffs, by leave of the court,
amended their bill by adding thereto para-
graphs to the effect that frequent and numer-
ous donands had been maoe by persons on
foot, ou horseback and in vehicles, of the
toll-gate keeper at the bridge to pass them
over at the rate of toll fixed by the act, and
upon the refusal of the toll-gate keeper to
permit them to pass by the payment of the
rates so fixed, and his requiring them to nay
the rates of toll fixed by the plaintiffs, they
had paid the tolls so required of them under
protest and had threatened to institute suit or
suits against the plaintiffs under the penalty
dause of the act, and had also threatened to
procure proceedings to be instituted in the
eourts by the eovemor and attorney general
in the name of the state, by a mandamus or
otherwise, to compel the plaintiffs to pass
people o^er the bridge at the rates fixea by
the act; that those persons had also threat-
ened to procure proceedings to be instituted
in the name of the state for a forfeiture of
•^•Ithc franchise of the Memphis •& Charleston
Railroad Company in and to the bridge prop-
erty because of the failure and refusal tq ob-
serve and obey the requirements of the act
in reference to the rates of toll to be charged
over the bridge; and that the persons so pro-
testing and threatening suits were too nu-
merous to be made parties to that suit. Spe-
cial reference was made to William H. Gill-
iam, a resident citizen of Colbert county, Al-
abama, as one of the parties or persons .who
had made threats of such suits and proceed-
ing
The bill was amended by making Gilliam
a party defendant, and by adding, before the
prayer for general relief, a prayer "that an
injunction be granted prohibiting and re-
straining the said William C. Gates, as the
governor of the state of Alabama, and the
■aid Wm. C. Fitts, as the attorney general
of the state of Alabama, and the said Wm.
H. Gilliam and all persons whomsoever, from
instituting or procuring the institution of
•ny proceedings against these complainants,
or either of them, by mandamus or other-
wise, to compel the observance and obedi-
ence of said act in reference to the rate of
V)ll8 fixed thereby over the said bridge, and
tiso from instituting or procuring to be in-
stituted any proceeding against these com-
plainants, or either of them, for the forfeit-
ore of the franchise of the Memphis k
Charleston Railroad Company in and to the
said bridge on account of the refusal to charge
the rates of toll over it fixed by said acC"
Subsequently an order was made, enjoining
and restraining William C. Fitts, as attor-
ney general of the state of Alabama, and
William H. Gilliam and all persons whomso-
erer, until the further order of the court,
from instituting or procuring the institution
of any proceeding against the plaintiffs or
either of them, by mandamus or otlierwise,
to compel the observance and obedience of
the act in reference to the rate of tolls fixed
thereby over the Florence bridge, and from
instituting or procuring to be instituted any
proceedings against the plaintiffs or either
of them for the forfeiture of the franchise of
the Memphis k Charleston Railroad Com-
pany in and to the bridge on account of the
refusal to charge the rates of toll over it
fixed by the act.
*At a later date in the progress of the cause[6M]
the plaintiffs, by leave of the court, inserted
the following averments in the bill :
"Complainants would further show unto
your honors that at the fall term 1895 of the
circuit court of Lauderdale county, Ala-
bama, a larce number of indictments — some
one htmdred in number — were found by the
grand jury of said court against Thomas
Clem and G. W. Brabson, who are the toll-
gate keepers at the public crossing of said
bridge for complainants, the receivers of the
Memphis & Charleston Railroad Company.
These indictments were found under section
4151 of the Criminal Code of Alabama, which
reads as follows: '4151 (4401). Any person
who, being or acting as an officer, agent»
servant, or emi>loyee of any turnpike com-
pany, macadamised road company, or other
incorporated road or bridge company, takes,
receives, or demands any greater charge or
toll for travel or passage over such road or
bridge than is authorized by the charter of
such company, or, if the cnarter does not
specify the amotmt of toll to be charged or
taken, fixes, prescribes, takes, receives, or
demands any unreasonable charge or toll, to
be determined by the jury, must, on convio-
tion, be fined not more than one hundred dol-
lars.' Complainants allege and show unto
your honors that these indictments were im-
properly and wrongfully found against said
toll-gate keepers, and they are being im-
properly prosecuted thereby, because the rata
of toll which they have charged is only the
rate which has heretofore been fixed by the re-
ceivers, which was fixed by them before the
passage of said unconstitutional act of the
general assembly of Alabama reducing the
tolls, and is the same rate of. tolls which
have been charged for more than twenty
years by the Memphis k Charleston Railroad
Company for the use by the public of said
bridge, and the tolls so charged by said toll-
gate keepers were authorized by this court,
and said indictments have been found and
are being prosecuted in violation of the au-
thority of this court and of its orders in the
premises, and in violation of the constitu-
tional rights and privileges under the Con-
stitution of the United States, secured* to[6Sl]
the owners of said bridge in the charging of
tools before crossing it. A. H. Carmicnael it
the solicitor for said judicial circuit, and at
such is engaged in tJie prosecution of said
indictments."
The plaintiffs asked that Carmichael, mm
such solicitor, be made a party defendant;
that all needful process issue against him;
and that a restraining order be issued en-
637
<521-528
SUPRBMB Ck>nBT OF THB UHITED STATES.
CCT.TBIM,
joining him and all other peraoDB from the
prosecution of said indictments.
By a supplemental bill it was averred that
writs of arrest had been issued upon the
above indictments against Clem and Brab-
son, and placed in the hands of tiie sheriff,
who in execution thereof had arrested or
would arrest the said employees of the re-
ceivers. It was further alleged that these
criminal proceedings were in contempt of the
order of the court below appointing the re-
ceivers, as well as in violation of the injunc-
tion which the court had issued, and which
still remained in force, "enjoining the said
governor, attorney ^neral, and ul persons
whomsoever from instituting any suits or
proceedings" under the above act of the state.
After referring to the indictments and the
purpose on the part of the state officers to
proceed under tnem, the plaintiffs prayed
that the act of February 9th, 1895, oe de-
clared repugnant to the CSonstitution of the
United States, and invalid, inoperative, null,
and void, and that an injunction be granted,
^prohibiting and restraining Wilnam C.
Oates, as governor of the state of Alabama ;
William C. Fitts, as attorney general ot the
state of Alabama, W. H. Gilliam, and A. H.
Carmichael, solicitor as aforesaid, and all
other persons whomsoever, from instituting
ftny proceeding against these complainants
or either of them, their servants or agents,
under the forfeiture clause set out in said
2d section of said act of the general assembly
of Alabama;" that said officers "and all per-
sons whomsoever be restrained and enjoined
from instituting or procuring the institution
•f any proceeding against these complainants
or either of them, their agents, servants, or
employees, by a mandamus or otherwise, to
compel the observance and obedience to said
act in reference to the rate of tolls fixed
thereby over said bridge, and also from insti-
|MS]tuting *or procuring to be instituted any pro-
ceeding against these complainants or either
of them for the forfeiture of the franchise of
the Memphis k Charleston Railroad Com-
pany in and to said bridge on account of the
refusal to charp^e the rates of toll over it
fixed by the said act;" and that "the said
defendants and said Carmichael, solicitor as
aforesaid, and all persons whomsoever, be
restrained and enjoined from prosecuting
said indictments against the said servants,
agents, and employees of the complaintnts,
or from interfering in any way, under and by
virtue of the color of said unconstitutional
act, with the rights, privileges, and fran-
chises and property of the complainants,
their servants or agents, with regard to said
bridge."
At this staffe of the proceedings the plain-
tiffs dismissed the cause so far as the state
was made a party defendant, and amended
ihe bill by striking out its name as a defend-
ant, as well as the words "in behalf of the
state." The cause was then heard upon a
notion by the ffovemor and attorney general
to dismiss the bill upon the ground ^t the
suit was one against the state in violation of
ihm Constitution of the United States.
Upon the filing of the last amendment to
the original bill, it was ordered by the court
638
that A. H. Carmichael, as solicitor for tks
eleventh judicial circuit oi Alabama, be s»
joined and restrained tempcnarily aiid wEtfl
the further orders of the court "from iasti'
tuting or prosecuting as such solicitor aay
indictments or criminal proceedings sgaimt
anyone for a violation of the aimed aneaa-
stitutional act of the legislature ot Alihsas
described in the biU."
The next step in the proceedings was tks
suing out of writs of habeas corpus by CIcb
and Brabson, who were under arrest oo proe-
ess issued on the above indictments. Eadi of
the petitioners was released upon his ova
recognizance in the sum of $150, conditioasd
that he would appear in court froai day to
day until discharged.
Gilliam filed an answer, insisting upon the
validity of the act of the legislature which bad
been assailed by thebiUas unconstitntiofiaL
*A decree pro canfeaso was taken agaiast[US]
the governor and attorney eeneral of the
state, as well as Carmichsd, as «o1iHtor
aforesaid, all in their respective official ca*
padties. But that decree was set aside, and
the cause was heard ajpoa demurrers by the
various defendants. The demurrers were
overruled, and answers were filed by the gor-
emor and attomej general of the state aad
by the solicitor of the eleventh judicial cir-
cuit. There were also motions, to dissolve
the injtmction granted in the ease, npoo the
ground that there was no equity in toe bill,
and that the injunctions were in violation of
the* Constitution and statutes <rf the United
States.
The final decree in the case was as foUovt:
"This cause coming on to be heard, the sab-
mission at the former term of the eo«irt is
hereby set aside, and, it being made toaa-
pear to the court that the defendant Will-
iam C. Oates has ceased to be the goftiaor
of the state of Alabama, it is thereapoa
ordered that the said cause be diseooUnnsd
as to him, and the cause is now resubodttsd
at this term of the court for final deeres ip-
on the pleadings and testimony offered if
the parties, and upon due cowdcratMa
thereof it is considered by the court thai tht
complainants are entitled to relief. It is
thereupon ordered, adjudged, aad dem»<
that the act of the legislature of the statt sf
Alabama referred to and set up in ths origi-
nal bill of complaint in the cause, wfM
act was approved February 9th, 189S, sai
entitled 'An Act to Fix the ICaxinam «f
Tolls to be Charged by the Owasra, hmmm,
or Operators of the Road Bridge across thi
Tennessee River, between the Cooatlss sf
Colbert and Lauderdale, aad Known as thi
Florence Bridge, and to Fix the Penalty 1m
Demanding or Receiving a Higher Bale sf
Tolls,' is violative of the coastitatioMl
rights of the owners of said bridge and of thi
complainants as their representatifss^ Is
that it fixes a rate of tolls for said bri4|t
which are not fairly and reasonably eoBM*
satory, and it is thm^ore hereby dedand li
be invalid and inoperative, and tbs ii^t*^
tions heretofore granted im tbs eaass sit
hereby made p«i>etuaL It Is fvttav
ordered, adjudged, and decreed that tht d»>
171 V. &
1888.
FiTTS V. McGuKS.
528. 524
fendants pay the costs of this proceeding,
lorwhidi let execution issue.*'
Mestrt. WmUm J. Wood and William
C. Fitts, Attorney General of Alabama, for
appellants:
In cases where state is a party on the rec-
ord the question of jurisdiction is decided by
iosDection.
Oilom y. Bank of United States, 9 Wheat
852, 6 L. ed. 231.
A suit affainst the officers of a state as rep-
resentinff tne staters action and liability, and
thus making it the real party against which
ilie jud^ent will so operate as to compel it
. to specrfically perform its contracts, cannot
be maintained.
Reagan t. Farmers* Loan d T. Co, 154 U.
8. 389, 38 L. ed. 1021, 4 Inters. Com. Rep.
560; Pennoyer v. MoConnaughy, 140 U.. S.
1, 35 L. ed. 363 ; Covington i L. Tump, Co.
T. Sandford, 164 U. S. 578, 41 L. ed. 560; 8t,
Louis d 8. F. R. Co. v. Oill, 156 U. 8. 649,
39 L. ed. 567 : Chicago d O. T. R. Co. v. WeM-
flUMi, 143 U. S. 339, 36 L. ed. 176.
A court of equity has no supenrisory
power or jurisdiction over public officials or
public bodies, and only takes cognizance of
actions against or concerning them when a
esse is made coming within one of the ac-
kno^edged heads of equity jurisdiction.
People V. Canal Board, 55 N. Y. 894;
Moses V. Mobile, 52 Ala. 198.
Injunction will not lie to restrain the ac-
tion or discretion of executive officers of the
■Ute.
Mississippi v. Johnson, 4 Wall. 475, 18 L.
ed. 437; State, Taylor, v. Lord, 28 Or. 498;
People, Sutherland, v. The Governor, 29
Mich. 320, 18 Anu Rep. 89.
The present doctrine of this court is that
the charge for rates must be reasonable, the
rights of the public considered, and that
eadi case must be examined in the light of
its peculiar facts and circumstances.
Smith ▼. Ames, 169 U. S. 466, 42 L. ed.
819; Covington d L, Tump. Co. V. Sandford,
104 U. 8. 578, 41 L. ed. 560 ; Chicago d O. T.
R. Co, ▼. Wellman, 143 U. S. 339, 36 L. ed.
176; Budd v. New York, 143 U. S. 517, 36 L.
ed. 247,4 Inters. Com. Rep. 45; Chicago, M.d
81. P, R, Co. V. Minnesota, 184 U. S. 418, 33
L ed. 970, 3 Inters. Com. Rep. 209 ; Dow ▼.
Beidehnan, 125 U. S. 680, 31 L. ed. 841, 2
Inters. Com. Rep. 56.
Messrs. MUtoA Humes and Paul Speaks,
for appellees:
The suit is clearly brought in the proper
fomm, regardless of the amount involyed or
the citizenship of the parties.
Rs Tyler, 149 U. S. 164, 37 L. ed. 689;
Re Swan, 150 U. S. 637, 37 L. ed. 1207;
White y. Ewing, 159 U. S. 36, 40 L. ed. 67;
Bat parte Chamberlain, 55 Fed. Rep. 706;
Ledouw V. La Bee, 83 Fed. Rep. 761 ; Clark
▼. McOhee, 59 U. S. App. 69, 87 Fed. Rep.
791, 81 C. C. A. 821.
A bill of this character is the method
best calculated to test the constitutionality
of the act, and thu9 to settle litigation and
prevent a multiplicity of suits.
Chicago, M. d St, P, R. Co, v. Minnesota,
134 U. S. 459, 460, 33 L. ed. 982, 983, 3 Inters.
IT2 V. 8.
Com. Rep. 209 ; St, Louis d S. F, R. Co. v.
Gill, 156 U. S. 049, 39 L. ed. 567.
The suit is not one against the state with-
in the meaning of the 11th Amendment to
the Federal Constitution.
Davis Y. Cray, 16 Wall. 203, 21 L. ed. 447;
Tomlinson v. Branch, 15 Wall. 460, 21 L.
ed. 189; Litchfield v. Webster County, 101
U. S. 773, 25 L. ed. 925; Allen v. Baltimore
d 0. R. Co. 114 U. S. 311, 29 L. ed. 200;
Board of Liquidation ▼. McComb, 92 U. S.
531, 23 L. ed. 623; Poindexter v. Oreenhow,
114 U. S. 270, 29 L. ed. 185; Re Tyler, 149
U. S. 164, 37 L. ed. 689 ; Smyth v. Ames, 169
U. S. 466, 42 L. ed. 819; Scott ▼. Donald,
165 U. S. 58, 41 L. ed. 632.
An injunction will lie against officers of
the state to prevent the execution of laws
which violate rights under the Constitution
of the United States.
Central Trust Co. v. Citizens' Street R. Co,
82 Fed. Rep. 1; Indianapolis Oas Co. v. /«-
dianapolis, 82 Fed. Rep. 245 ; Mutual L. Ins.
Co. V. Boyle, S2 Fed. Rep. 705.
The act of February 9, 1895, impairs the
obligation of the contract embraced in the
chan;er of the Florence Bridge Company,
whereby that company and its successors are
granted the right to fix rates within a cer-
tain limit, that is, not to exceed "the present
rate of ferriage at said ferry."
Stone V. Yazoo d M. Valley R. Co, 62 Miss.
642, 52 Am. Hep. 103 ; Railroad Commission
Cases, 116 U. S. 307, 29 L. ed. 636.
The act of February 9, 1895, is in violation
of the Federal Constitution, in that it de-
S rives appellees of their property witiiout
ue process of law.
Stone V. Farmers' Loan d T. Co. IIQ U. S.
330, 29 L. ed. 644; Covington d L. Tump.
Road Co. v. Sandford, 164 U. S. 578, 41 L
ed. 560; Smyth v. Ames, 169 U. S. 466, 48
L. ed. 819.
*Mr. Justice Harlan, after stating the[6M]
facts as above reported, delivered the opinion
of the court:
The principal question before us Is
whether this suit is one of which a circuit
court of the United States may take cogni-
zance consistently with the Constitution of
the United States.
From the history given of the proceedings
below it appears that the circuit court aid-
judged—
lliat the legialative enactment of Febru-
ary 9th, 1895, was unconstitutional and void
in that it did not permit the owners of th«
Florence bridge, and the plaintiffs as their
representatives, to charge rates of toll that
were fairly and reasonably compensatory;
and.
liiat the defendants Fitts and Carmichael,
holding respectively the offices of attorney
general of Alabama and solicitor of the
eleventh judicial circuit of the state, should
not institute or prosecute any indictment or
criminal proceeding against anyone for vio-
latinff the provisions of that act.
Is tnis a suit against the state of Alabama?
It is true that Uie Eleventh Amendment of
the Constitution of the United States does
not in terms declare that the judicial power
539
(
59i-587
SUPBBMB OOUBT OF THB UnITKD &rATK8.
Oct. Tbsh.
of the United States shall not extend to suits
against a state hj citizens of such state.
But it has been adjudged by this court upon
full consideration that a suit against a state
by one of its own citizens, the state not hay-
ing consented to be sued, was unknown to
and forbidden by the law, as much so as
suits against a state by citizens of another
state of the Union, or by citizens or subjects
of foreign states. Hans y. Louisiana, 134
U. 8. 1, 10, 15 [88: 842, 846, 847]; North
Carolina y. Temple, 134 U. 8. 22 [33: 849].
It is therefore an immaterial circumstance, in
[685]*the present case that the plaintiffs do not
appear to be citizens of another state than
Alabama, and may be citizens of that state.
What is and what is not a suit against a
state has so frequently been the subject of
consideration by this court that nothing of
importance remains to be suggested on either
tide of that question. It is only necessary
to ascertain, in each case as it arises, whether
it falls on one side or the other of the line
marked out by our former decisions.
We are of opinion that the present case
comes within the principles annotmced in
Re Ayera, 123 U. 8. 443, 485, 49G-500, 505
[31:216, 228, 226-228, 230]. It appears
from the report of that case that the circuit
court of the United 8tates for the eastern dis-
trict of Virginia, in Cooper y. Marye, made
an order forbidding the attorney general of
Virginia and other officers of that Common-
wealth from brin^n^ suits under a certain
statute of Virginia, in its name and on its
behalf for the reooyery of taxes, in payment
of which the taxpayers had preyiously tend-
ered tax-receiyable coupons. The state offi-
eers did not obey this order, and haying
been proceeded against for contempt of
court, they sued out writs of habeas corpus,
and asked to be discharged upon the ground
that the circuit court had no power to make
the order for disobeying which the proceed-
ings in contempt were commencea. This
court said that the question really was
whether the circuit court had jurisdiction to
entertain the suit in which that order was
made, the sole purpose and prayer of the bill
therein being by final decree to enjoin the
defendants, officers of Virginia, from taking
• any steps in execution of the statute the
yalidity of which was questioned.
It was adjudged that, although Virginia
was not named on the record as a party de-
fendant, neyertheless, when the nature of
the case against its officers was considered,
that Commonwealth was to be regarded as
the actual party in the sense of de consti-
tutional prohibition. The court said: '^t
follows, tiierefore, in the present case, that
the personal act of the petitioners sought to
be restrained by the order of the circuit
court, reduced to the mere bringing of an
[6S6]action *in the name of and for the state
against taxpayers, who, although they may
haye tendered the tax-receiyable coupons,
are charged as delinquents, cannot be al-
leged against them as an indiyidual act in
yiolat^n of any legal or contract rights of
such taxpayers." Again: "The reli^ sought
it against the defendants, not in their indi-
540
yidual, but in their representattye, capacity
as officers of the state of Virginia. TW
acts sought to be restrained are the brisf*
ing of suits by the state' of Virnnia in ka
own name and for its own use. If the state
had been made a defendant to this bill by
name, charged according to the aUegations
it now contains — supposing that sudi a sait
could be maintained — it would haye beea
subjected to the jurisdiction of the eonrt by
process senred upon its goyemor and attor^
ney-general, according to the preoedents in
such cases. New Jersey y. New York, 5
Pet. 284, 288, 290 [8: 127, 128, 129] ; Kem-
tuoky y. Dennison, 24 How. 66, 96, 97, [16-.
717, 725]; Rule 5 of 1884^ 108 U. S. 574
[20: 901]. If a decree could haye been rea-
dered enjoining the state from bringing
suits affainst its taxpayers, it would have
operated upon the state only through the
officers who by law were required to repre-
sent it in bringing such suits, vie., the pres-
ent defendants, its attorney general, and
the commonwealth's attorneys for the tertTml
counties. For a breach of such an injnae-
tion, these officers would be amenaUe to the
court as proceeding in contempt of its au-
thority, and would be liable to punishneiit
therefor by attachment and impriaomDcmt
The nature of the case, as supposed, is ideo-
tical with that of the case as actually pre-
sented in the bill, with a single exceptioa
that the state is not named as a defeartitt
How else can the state be forbidden bj j«-
dicial process to bring actions in its sbjm.
except bjr constraining the conduct of its
officers, its attorneys, and its amits? Aad
if all such officers, attorneys, and agents are
personally subjected to the process of the
court, so as to forbid their acting in its he-
half, how can it be said that t£e state it-
self is not subjected to the jurisdicikm of
the court as an actual and r^ defendaat**
One of the arguments made in the Aytn
Case was that the circuit court had jv^i^v..^
diction to restrain by injunction oflleers •aftiH
the state from executing the proyisloas o<
state enactments yoid by reascm of rtpur
nancy to the Constitution of the United
States. In support of that positios refer-
ence was made to Oshom y. Bank of tht
United States, 9 Wheat 738 [6: 204]. Bet
this court said: "There is nothing, thefr-
fore, in the judgment in that cause, as ftaaOr
defined, which extends its authority htyrm
the prevention and restraint of the s^enftr
act done in pursuance of tho uncoosiitotioa-
al statute of Ohio, and in yiolatioB of tbe
act of Congress chartering the bank. whir4
consisted of tiie unlawful seixure aad dHee-
tion of its property. It was eoncrM
throughout that case, in the aigiiaiitl st
the bar and in the opinion of the covrt thsl
an action at law would lie, either of tree-
pass or detinue, against the defeadaato m
indiyidual trespassers guilty of a wroa^ ia
taking the property of the compUinaat iBt^
gaily, vainly seeking to defend thcooehei
under the authority of a void act of the p*-
end assembly of Ohio. One of the peiaafsi
questions in the case was whether e^aity
had jurisdiction to restrain the t^mmmim
179 «.&
1896L
Fms T. MgGhbb.
527-580
U nich a mere trespass, a jurisdi'^tion whieh
WIS upheld upon tne circumstances and na-
tore of the case, and which has been repeat-
edly exercised since. But the very ground
on which it was adjudged not to be a suit
■gainst the state, and not to be one in which
tie state was a necessary party, was that
the defendants personally and individually
were wrongdoers, against whom the com-
plainants mid a dear right of action for the
recovery of the property taken, or its value,
and that ther^ore it was a case in which no
other parties were necessary. The right as-
taUd and the relief asked were against the
defendants as individuals. They sougiit to
protect themselves against pergonal liability
Dj their official character as representatives
of the state. This they were not permitted
to do, because the authority under which
they professed to act was void.*' ^nd these
wtn stated by the court to be the grounds
upon which it had proceeded in other cases,
— dting Allen v. Baltimore d Ohio Railroad
Co. 114 U. 8. 311 [29: 200] ; Poindemter v.
Qreenkow, 114 U. S. 270, 282 [29: 185, 190] ;
Umted Btatea v. Lee, 106 U. S. 196 [27 :
171], The court further said: "The veiy
I8]objeot and purpose of t^e ^Eleventh Ameoa-
meot were to prevent the indignity of sub-
jecting a state to the coercive process of ju-
didsl tribunals at the instance of private
parties. It was thought to be neither be-
coming nor convenient that the several
states of the Union, invested with that
large residuum of soverei^ty which had not
been delegated to the Umted States, should
be summoned as defendants to answer the
complaints of private persons, whether citi-
zens of other states or aliens, or that the
course of their public policy and the admin-
istration of their public affairs should be
subject to and controlled by the mandates
of judicial tribunals without their consent,
and in favor of individual interests. To se-
cure the manifest purposes of the constitu-
tional exemption ^aranteed by the Eleventh
Amendment requires that it should be in-
terpreted, not literally and too narrowly,
but fairly, and with such breadth and large-
ness as effectually to accomplish the sub-
stance of its purpose. In this spirit it must
be held to cover, not only suits brought
sgainst a state by name, but those tuso
sgainst its officers, agents, and representa-
tires, where the state, though not named as
saeh, is, nevertheless, the only real party
sgainst which alone in fact the relief is
ssked, and against which the judgment or
decree effectively operates. But this is not
intended in any way to impinge upon the
principle which justifies suits against in-
dividual defendants, who, under color of the
authority of unconstitutional legislation by
the state, are guilty of personal trespasses
and wrongs, nor to forbid suits against offi-
cers in their official capacity either to arrest
or direct their official action by injunction
or mandamus, where such suits are author-
ized by law, and the act to be done or omit-
ted is purely ministerial, in the performance
or omission of which the plaintiff has a le-
gal interest."
172 U. 8.
It was accordingly adjudged that the suit '
in which injtmctions were granted against
officers of Virginia was in substance and in
law one aj^inst that commonwealth, of which
the circuit court of the United States could
not take cognizance.
If these principles be applied in the pres-
ent case there ia no ^escape from the conclu-[BS9]
sion that, although the state of Alabama was
dismissed as a party defendant, this suit
against its officers is really one ap^ainst the
state. As a state can act only by its officers,
an order restraining those officers from tak-
ing any steps, by means of judicial proceed*
inffs, in execution of the statute of February
9tn, 1895, is one which restrains the state
itself, and the suit is consequently as mudi
against the state as if the state were named
as a partv defendant on the record. If the
individual defendants held possession or were
about to take possession of, or to commit any
trespass upon, any proper^ belonging to or
under the control of the plaintiffs, in viola-
tion of the latter's constituticmal rights, ^ey
could not resist the judicial determination,
in a suit against them, of the question of the
right to such possession, by simply asserting
that they hela or were entitled to hold the
property in their capacity as officers of the
state. In the case supposed they would be
compelled to make good the state's claim to
the proper^, and could not shield themselves
against suit because of their official charac-
ter. Tindal v. Wesley, 167 U. S. 204, 222
[42: 137, 143]. No such case is before us.
It is to be observed that neither the at-
torney general of Alabama nor the solicitor
of the eleventh judicial circuit of the state,
appears to have be^i charged by law with
any special dutv in connection with the act
of Feoruary 9th, 1895. In support of the
contention that the present suit is not one
against the state, reference was made by
counsel to several cases, amone which were
PoindeoBter v. Oreenhow, 114 U. S. 270 [29:
185] ; Allen v. Baltimore d Ohio Railroad Oo,
114 U. S. 311 [29: 200] ; Pennoyer v. McCon-
naughy, 140 U. S. 1 [35 : 363] ; Re Tyler,
149 U. S. 164 [37 : 689] ; Reagan v. Farmers*
Loan and Trust ^o. 154 U. S. 362, 388 [38 :
1014, 1020, 4 Inters. Com. Rep. 560] ; Soott
V. Donald, 165 U. S. 58 [41 : 632] ; and Smyth
V. Ames, 169 U. S. 466 [42:819]. Upon
examination it will be fotmd that the defend-
ants in each of those cases were officers of the
state, specially charged with the execution
of a state enactment alleged to be unconsti-
tutional, but under the authority of which, it
was averred, they were committing or were
about to commit some specific wron^ or tres-
pass to the injury of the plaintiff°s rights.
There is a wide difference between a suit
'against individuals holding official positions[530]
under a state, to prevent them, under
the sanction of an unconstitutional stat-
ute, from committing by some positive
act a wrong or trespass, and a suit against
officers of a state merely to test the constitu-
tionality of a state statute, in the enforce-
ment of which those officers will act only by
formal judicial proceedings in the courts of
the state. In the present case, as we have
said, neither of the state officers named held
541
{
630-582
SUPBBMB OOUBT OF THB UnTTBD StATBS.
Oct. Tkbh,
any special relation to the particular stat-
ute alleged to be unconstitutional. They
were not expressly directed to see to its en-
forcement. If, because they were law officers
of the state, a case could be made for the
purpose of testing the constitutionality of
the statute by an injunction suit brought
against them, then the constitutionality of
every act passed by the l^slature could be
tested by a suit a^inst the governor and the
attorney general, based upon the theory that
the former as the executive of ttie state was,
in a general sense, charged with the execu-
tion of all its laws, and the latter, as attor-
ney jB^eueral, might represent the state in lit-
igation involving the enforcement of its stat-
utes. That womd be a ver^ convenient way
for obtaining a speedy judicial determination
of questions of constitutional law which may
be raised by individuals, but it is a mode
which cannot be applied to the states of the
Union consistently with the fundamental
principle that they cannot, without their
assent, be brought into any court at the
suit of private persons. If their officers com-
mit acts of trespass or wrong to the citizen,
they niay be individually proceeded against
for such trespasses or wrong. Under the
view we take of the question, the citizen is
not without effective remedy when proceeded
against under a legislative enactment void
for repugnancy to the supreme law of the
land; for, whatever the form of proceeding
against him, he can make his defense upon
the n-ound that the statute is unconstitu-
tionfS and void. And that question can be
ultimately brought to this court for final de-
termination.
What has been said has reference to that
part of the final decree whidi holds the act
of February 9th, 1895, to be invalid and in-
operative. Whether the owners of the
bridge, and the plaintiffs as their representa-
tm]tives,were denied by thestatute*fair and rea-
sonable compensation for the use of the prop-
erty by the public, was a question that could
not be considered in this case. That is not a
matter to be determined in a suit against the
state; for of such a suit the circuit court
could not take cognizance. '
It remains only to consider the case so far
M the final decree assumes to enjoin the offi-
cers of the state from instituting or prosecut-
ing any indictment or criminal proceedings
having for their object the enforcement of
the statute of 1895. We are of opinion that
the circuit court of the United States, sitting
in equity, was without jurisdiction to en-
join tibe institution or prosecution of these
oriminalproceedings commenced in the state
court. Tnis view is sustained by Re Sawyer,
124 U. S. 200, 209, 210 [31: 402, 405]. It
was there said: "Under the Constitution
and laws of the United States, the distinc-
tion between common law and equity, as ex-
isting in England at the time of the separa-
tion oi the two countries, has been main-
tained, although both jurisdictions are vest-
ed in the same courts. Fenn v. Holme, 21
How. 481, 484-487 [16:198, 199, 200];
Thompson v. Central Ohio Railroad Oo, 6
Wall. 134 [18: 765] ; Heine v. Levee Commis-
sioners, 19 Wall. 655 [22:223]." Again:
542
"The office and jurisdiction of a court «(
equity, unless enlarged by expren statsti^
are limited to the protection of rights ol
property. It has no jurisdiction over tibt
prosecuti<Hi, the punishment^ or the pardoa
of crimes and misdemeanors, or ofer the ap-
pointment and removal of puWc officers, xii
assume such a jurisdiction, or to sustain a
bill in equity to restrain or rdieve against
proceedings for the punishment of oacnsei,
or for the removal of public officers, is tt
invade the domain of the coorts ol *^mw— «
law, or of the executive and administrative
departments of the government." At the
present term of the court, in HarkruSer v.
Wadley, 172 U. S. 148, 169, 170 [mUe, Sffl,
we said: "In proceeding by indictment to
enforce a criminal statute the state can obIv
act by officers or attorneys, and to en jotii the
latter is to enjoin the state." Again: '^odi
more are we of opinion that a drenit court
of the United States, sitting in equity in tht
administration of civil remedies, has no j«-
risdiction to stay by injunction proeeedi^
pending in a state court in the name of s,.^
state to ^enforce the criminal lawi of Mch[^
state." Undoubtedly, the courts of the Unit-
ed States have the power, under existing \t^
islation, by writ of habeas corpus, to dis-
charge from custody any person hdd hj state
authorities tmder criminal proeeedii^ ia-
stitnted under state enactments, if such i»
actments are void for repunian^ to the Ooa-
stitution, laws, or treaties of the VmUi
States. But even in such case we have hsM
that this power will not be exercised, in the
first instance, except in extraordinary cases,
and the party will be left to make his i»>
fense in the state court. E9 parte M^ftU,
117 U. S. 241 [29: 868] ; Kew York v. Bm,
155 U. S. 89 [89: 80] ; WhitUn t. TVmluMoe,
160 U. S. 231 [40: 406) ; Baker v. GHot. \m
U. S. 284 [42: 748]. But the existence sf
the power in the courts of the United Stats
to discharge upon habeas corpus by no mmm
implies that they may, in the exercise sf
their equity powers, interrupt or enjoin pr»>
ceedings of a criminal character in a ststs
court. The plaintiffs state that the toll-
ffatherers in their service had been iBdi<tt4
in a state court for violating the provisket
of the act of 1895 in respect of tolls. Ltt
them appear to the indictment and defved
themselves upon the ground that the ttstt
statute is repugnant to the Con«titutioa of
the United States. The state court it earn-
potent to determine the question thus rsi^
and is under a duty to enforce the maadstas
of the supreme law of the land. fCohk ▼.
Connolly, 111 U. S. 624 [28: 542]. And Utlw
question is determined adversely to the del«9^
ants in the highest court of the state in whM
the decision could be had, the judgment asv
be re-examined by this court upon writ m
error. That the defendants may be freqwat-
ly indicted constitutes no reason why a Ft^
eral court of equity should assume to ivuh
fere with the ordinary course of criminal ^
cedure in a state court.
It appears from the record that ClcfB ssi
Brabson were indicted in the state ccart ■»
der section 4151 of the Criminal Co^r rf
160a
Washington Gasught Co. v. Lanbden.
i83-584
AI^K^wifc Having been arrested under those
indictments, they sued out, as we have seen,
writs of habeas corpus upon the ground that,
they were indicted for taking tolls in viola-
tkoi of the above act of February 9th, 1895,
which they alleged to be unconstitutional,
M]aiid that their arrest was in disregard *of the
injunction of the circuit court restraining
tlw institution and prosecution of indict-
ments or other criminal proceedings in execu-
tion of that act The circuit court dis-
charj[ed the petitioners upon their own re-
cognizances. It was error to discharge them
simI thereby interfere with their trial in the
state court. As already indicated, the cir-
cuit court, sitting in equity, was without ju-
risdiction to prohibit the institution or prose-
cution of Uiese criminal proceedings in the
state court. Further, even if the circuit
court regarded the act of 1895 as repugnant
to the Constitution of the United States, the
custody of the accused by the state authori-
ties should not have been disturbed by any
order of that court, and the accused should
have been left to be dealt with by the state
court, with the right, after the determination
of the case in that court, to prosecute a writ
of «rror from this court for the re-ezamina-
tion of the final judgment so far as it in-
volved any privileges secured to the accused
W the Constitution of the United States.
Em parte RoyaU, New York v. Eno, Whit-
lea V. Tomlinaon, and Baker v. Orioe, above
dted. There were no exceptional or extra-
ordinarv circumstances in these cases to have
JusUfled the interference by the circuit court,
nder writs of habeas corpus, with the trial
of the indictments found in the state coiirts.
The judgment of the Circuit Court is re-
vsrsed, wiUi directions to dissolve the injunc-
tion restraining the institution or prosecu-
tion of indictments or other criminal pro-
ceedings in the state court, to dismiss the
suit brought by the receivers against the At-
torney General of Alabama and the Solicitor
of the Eleventh Judicial Circuit of the
State, and to remand Clem and Brabson to
the custody of the proper State authority.
Reversed,
»4]THE WASHINGTON GASLIGHT COM-
PANY, Charles B.Bailey, and John Leetch,
Plffe, in Err,,
V.
THOMAS G. LANSDEN.
(See S. C. Reporter's ed. 534-657.)
Principal's liability — agent's authority — lia-
UHty of principal in libel suit against
agent — intention to furnish information
fir a libel — liability of the writer of a
letter — evidence in libel action— charge to
jury — power of court to reverse judgment
ta toto.
L To hold a corporation liable for the torts
of any of Its scents the act In Question most
be performed In the coarse and within the
scope of the agent's employment In the busi-
ness of the principal.
1 The antborlty to act for another party Is
a \em\ question for the court to decide, If
172 V. S.
only one inference can be drawn from the evi-
dence, and that Is want of autbority.
8. A gas company Is not liable for tbe act ef
Its general manager In writing a personal let-
ter, which he copied Into the official copybook
In the company's office, and which was used
as the basis of a libelous publication respect-
ing the testimony of the former manager of
the company as to the price of gas.
4. An Intention to famish Information for the
publication of a libel cannot be inferred by a
mere guess from the fact that a mem-
orandnm of flgares which Is used for that
purpose was furnished without knowing what
was wanted of It.
5. The writer of a letter which is used as the
basis of a libel and Is written for that pur-
pose cannot escape liability therefor because
of the fact that other matters, not contained
in his letter, are included in the same article
as published.
6. Evidence of the wealth of one of the defend-
ants In a libel case, ottered as bearing on the
allowance of exemplary damages, is inadmis-
sible In a case when the verdict must be for
one .entire sum against all the defendants
found guilty, and might be collected from any
one of them, who woold have no right of con-
tribution.
7. Merely charging the jnry that punitive
damages cannot be recovered will not cure the
erroneous admission of evidence, in a libel
case, of the wealth of one of the defendants*
when this evidence is not specifically with-
drawn.
8. On reversing a judgment for error as to
some of the defendants, the court has power
to reverse It 4» toto and grant a new trial la
regard to all the defendants. If It might work
injustice If left Intact as against one of the
defendants only.
[No. 43.]
Argued October 17, 18, 1898, Decided Jat^
uary 16, 1899.
IN ERROR to the Court of Appeals of the
District of Columbia to review a judg-
ment of that Court affirming a judgment of
the Supreme Court of the District of Colum-
bia upon a verdict rendered in favor of the
plaintiff, Thomas G. Lansden, for $12,500
for an alleged libel in a periodical published
in the city of New York, and known as The
Progressive Age. Judgment reversed, with
dir^ions to the Court of Appeals to reverse
the judgment of the Supreme Court of the
District of Columbia, and to grant a new
trial to the plaintiffs in error.
See same case below, 9 App. D. C. 508.
The facts are stated in tne opinion.
Messrs. R. Rom Perry and Walter D»
DftTidKe, for plaintiffs in error:
Where it is sought to charge any party
for the act of anotner, agency or authority
on the part of the former in respect of the
specific act complained of must be as clearly
shown as is required when it is sought to
make a party liable for his own act, instead
of that of another. The foundation of lia*
bility is that the evil intention of a wrong*
doer finds expression through the act of an*
other, insteaa of his own act, and henoe he
is properly held responsible.
Farkes v. Prescott, L. R. 4 Exch. ICD;
Cochran v. Butterfield, 18 N. H. 115, 45
Am. Dec. 363; Adams v. Kelly, Ryan & M.
54S
(W
SUPBBMB COUBT OF THB UmiTKD StATRS.
Oct. Twmm^
167; Queen v. Cooper, 8 Q. B. 533; King ▼.
Johnson, 7 East, 65..
Republication is not, in law, the natural
and proximate consequence of the original
•lander or libel.
¥^ard y. Weeks, 7 Bing. 211; Tunnicliife
T. Moaa, 3 Car. ft K. 83 ; Bameti y. Allen, 1
Fost. & F. 125; Stevens y. Eartwell, 11 Met.
542; Terwilliger y. Wond*, 17 N. Y. 54, 72
Am. Dec. 420; Gough y. (ToldsmitA, 44 Wis.
262, 28 Am. Rep. 579; Haeiinge y. Stetson,
126 Mass. 329, 30 Am. Rep. 683; Shurtleff
y. Parker, 130 Mass. 293, 39 Am. Rep. 454.
The word "tenor" in the complaint im-
ports identity, and wheneyer that is de-
stroyed, either by the omission or adoption
of any one word, howeyer slightly the sense
may be affected, it will be regarded as a fa-
tal yariance.
State y. Toumsend, 86 N. C. 676; State
y. Bonney, 34 Me. 383 ; People y. Warner, 5
Wend. 271; Com, y. Wright, 1 Cush. 65;
State y. Johnson, 26 Iowa, 407, 96 Am. Dec.
158; Com, y. Stevens, 1 Mass. 203.
Any allegation which narrows and limits
that which is essential becomes descriptiye,
and must be proyed as alleged.
Greenleaf, Eyidenoe, §§ 58-60; Perry t.
Porter, 124 Mass. 339; Crotty y. Morrissey,
40 ni. 477 ; Chapin y. White, 102 Mass. 139 ;
Gates y. Botoker, 18 Vt. 23 ; Strader y. fifny-
der, 67 111. 404; Pa/rkes v. Prescott, L. R. 4
Ezch. 169; Adams y. Kelly, Ryan & M. 157;
Whiting y. Smith, 18 Pick. 371.
The admission of eyidence as to the finan-
cial condition of the gaslight company, and
the failure to withdraw the same and to cau-
tion the jury, were errors.
Pennsylvania Co. y. Roy, 102 U. S. 451, 26
L. ed. 141 ; Howe Mach. Co, y. Rosine, 87 111.
105; Lycoming F, Ins. Co. y. Rubin, 79 111.
402; Erhen y. Lorillard, 19 N. Y. 299-, Furst
y. Second Ave. R. Co. 72 N, Y. 542.
In case of priyileged commtmication, mal-
ice must be proyed, and therefore its i^sence
must be presumed until such proof is giyen.
Somerville y. Hawkins, 10 C. B. 588 ; £fm-
mons y. Holster, 13 Minn. 249.
The law demands as a prerequisite to the
responsibility of the master for the senrant's
wrongful acts, that the particular matter in
which the senrant has aone wrong shall be
one which the master has intrusted to the
servant
Sleaih y. Wilson, 9 Car. & P. 607 ; Phila-
delphia d R, R, Co, y. Derby, 14 How. 468, 14
L. ed. 502 ; "Sew Jersey S. B. Co. y. Brockett,
121 U. S. 637. 30 L. ed. 1049; Hawes y.
Knowles, 114 Mass. 518, 19 Am. Rep. 383;
Fogg y. Boston d L. R. Corp. 148 Mass. 513 ;
Freehom y. Singer Sevoing Mach. Co. 2 Mani-
toba Rep. 253; Southern Exp. Co, y. Fitzner,
59 Miss. 581, 42 Am. Rep. 379; Harding y.
Oreening, 8 Taunt. 42; Illinois C. R. Co. y.
Downey, 18 111. 259 ; Isaacs y. Third Ave. R.
Co. 47 N. Y. 122, 7 Am. Rep. 418.
Messrs. J. J. DarlinstoA and J. Altheus
Johnson, for defendant in error:
If enough of the words stated in the dec-
laration are prored to constitute substantial-
ly the charge imputed to plaintiff, the jury
■nould find for the plaintiff.
Casey y. Auhuchon, 25 Mo. App. 91 ; Pur-
pie y. Horton, 13 Wend. 9, 27 Am. Dee. 167;
Barr y. Gaines, 3 Dana, 258; Dufreane ▼.
Weise, 46 Wis. 290; Scott y. McKimmish, 15
Ala. 662; Miller v. Miller, 8 Jc^ins. 74; Pwr-
sell y. Archer, Peck (Tenn.) 317; MeCUm-
took y. Crick, 4 Iowa, 459; Oompagnon t.
Martin, 2 Wm. BL 790; Baker y. Young, 44
111. 42, 92 Am. Dee. 149; Nestle y. Van Slyck,
2 HiU, 282.
A corporation may be liable for punithre
damages for the wilful and malieioiit acts of
its officers and agents.
Cleghom y. New York C. d H. R. R. Co. H
N. Y. 44, 15 Am. Rep. 375; MerrOs y. Torif
Mfg. Co. 10 Conn. 384, 27 Am. Dec 682;
Maynard y. Fireman's Fund Ins. Co. 34 CaL
48, 91 Am. Dec. 672; Denver d R. O. R.
Co. y. Harris, 122 U. S. 597, 30 L. ed. 114<;
JeffersonviUe R. Co. t. Rogers, 38 Ind. 126,
10 Am. Rep. 103; New Orleans I d O. N. M.
Co. y. Hurst, 36 Miss. 660, 74 Am. Dee. 78S;
Atlantic d G. W. R. Co. y. Dunn, 19 Ohio St
162, 2 Am. Rep. 382; Goddard y. Gromd
Trunk R, Co, 57 Me. 202, 2 Am. Rep. 39.
An objection to eyidence on the grouad
that it is "irrelerant, inoxnpetent, and im-
material," is too general, and the specifica-
tion of the real grounds comes too late wfaca
made for the first time in the appellate court.
Lake Erie d W, R, Co. y. Parker, 94 Ind.
91; McCullough y. Davis, 108 Ind. 292;
Washington Gaslight Co, t. Poore, 3 App.
D. C. 127 ; Patrick y. Graham, 182 U. 8. (W.
33 L. ed. 460 ; District of Columbia y. Wood-
bury,>nQ U. S. 450, 34 L. ed. 472.
Ilie jury may infer from circumstaiieH
that an act of a corporation's employee it
done in the course m his basineas as Iti
seryant.
Fogg y. Boston d L. R. Corp. 148 Man.
513 ; Denver d R. G. R. Co. y. Harris, 122 U.
S. 597, 30 L. ed. 1146; Salt Lake City ?.
Hollister, 118 U. 8. 256, 30 L. ed. 176; Laka
Shore d M. S. R. Co. y. Prentice, 147 U. S.
113, 37 L. ed. 103 ; WiUiams y. Planter^ Ins.
Co. 57 Miss. 764, 34 Am. Rep. 494; PUIs-
delphia d R. R. Co. y. Derby, 14 How. 468,
14 L. ed. 502 ; First Nat. Bank y. Orahem,
100 U. S. 702, 25 L. ed. 751 ; l7fiMm Mut. L
Ins. Co. y. Thomas, 48 U. S. App. 575, 83 Fed.
Rep. 803, 28 C. C. A. 96.
*Mr. Justice
opinion of the court:
This action was brought by the defendAst
in error, plaintiff below, in the supreme covrt
of the District of Columbia, against tlw
Washington Gaslight Company, John R. Uc-
-Lean, its president, Charles B. Bailey, iti
secretary, William B. Orme, its assistant «^
retary, and John Leetch, its general maasfw.
The action was brought to recover dama^
for an alleged libel whidi the plaintiff ttatd
the defendants had published, or camd to be
published, of and concerning him, in a period
ical printed in the city of New York, calW
the Progressive Age. The plaintiff lewiwei
a verdict of $12,500 against the coqwratios
defendant, its secretary Bailey, and its itaw
al manager Leetch. There seems to ka^
been no finding as to the other defendaata
Those defendants against whom the nr
diet was rendered brought the ca«e br sf'
^ 171 tr. 4
Mt»
Wabhihgton Gaalight Co. ▼• Lanbdkm.
6ad-diW
pitl to the court of appeals for the Distriety
vlMort the jadgment was affirmed, and the de-
loidsiits then brought the case here on writ
•f OTor.
It sppears from the declaration that a com-
mittee ol the House of Representatives, in
January, 1893, hayins in charge the sundry
eivil appropriation hifi, had therein provided
that not more than seventir-fiye cents per
tlioiiBand feet should be paid for ^s usea in
the goremment buildings in the District of
Colombia. The gas oompanv desired to de-
feat this provision in the bill, and the pres-
ident, Mr. McLean, sent for the plaintiff be-
low, who was general manager of the
eompanv, for the purpose of inquiring what
the plaintiff could testify to in regard to the
price of gas if called before the conmiittee.
The president asked the plaintiff to furnish
i|iim with a written ^memorandum showing
generally what he could testify to, and which
he miffht use as a basis for questions to be
put tohim hy some member of the committee.
The plaintifiT wrote out such a memorandum,
but aid not mention therein the cost of gas to
the defendant company, and when the presi-
dent noticed the omission he asked the plain-
tiff what the cost would be, and plaintiff
stated that that was a matter which should
come from the chief officers of the company,
and which was unknown to him.
The plaintiff did not testify before the com-
mittee at that session of Congress.
Thereafter and in February, 1894, and
when not requested by the president of the
oompany or any of its officers or agents, the
^aintiff did appear before a committee of
Con^gress, and aid testify to figures at which
Jlaintiff supposed gas could be actually pro-
ttoed and lumishM in the city of Washing-
ton.
The plaintiff then alleged that the defend-
ants in the month of February, 1894, pub-
lished or caused to be published in a news-
paper or periodical called the Progressive
Age, which was printed in the city of New
York, and widely circulated as an organ de-
voted to the interests of gas producers and
manufacturers throughout the country, the
libel in question.
The article states in substance as follows :
The plaintiff had once filled the position of
senem manager of the gas company, which
be had resigned in June, 1893, and that in
his testimony before the congressional com-
mittee in 1894 the plaintiff hiui arrayed him-
self within the ranics of those who sought to
tear down and lay waste the business and
emoluments of his former employers. He
gave testimony which was reported through
the land, and was of such a nature as was
calculated to do the utmost harm to ffaa in-
terests everywhere. The figures supplied by
Mr. Lansden of the cost of gas were start-
ling, and only a year ago (in 1893) a similar
inquiry emanating from the same quarter
was instituted before a congressional com-
Tnittee against the Washington Gaslight
Company, and plaintiff appeared as a wit-
ness in behalf of the company; that he then
r]occupied the position *of general manager of
the company, and his testimony then, as com-
pared with that given subsequently, was
172 V. 8. if. S., Book 43. 86
sadly at variance;- that ha had there testi*
fied before the committee that it cost 48.38
cents per thousand to manufacture gas in
the holder, and 40.09 cents per thousand for
distribution, and that he knew of but one
way that a small amount could be saved, and
that was by reducing the salaries of th*
clerks and the price paid to the laborers,
which the company would not like to do. In
1894, before a committee of Congress, the
plaintiff testified that, from his knowledge of
the business and the condition of affairs at
Washington, the gas company could sell gas
and pay a reasonable profit at a dollar a
thousand. He stated that in his opinion the
gas could be manufactured and put in the
holder for about thirty-two cents a thousand
feet, and that it ought to be distributed for
from twenty to twenty-two cents a thousand,
which would make the whole cost from fifty-
two to fifty-four cents per thousand. The
article then continued:
"From the foregoing extracts of this wit-
ness's testimony only one of two conclusions
can be arrived at, and we are too sensible of
the reader's power of analysis and feel too
keenly for the witness to heap coals of fire
on the head of one who, it is only too evident,
has allowed his sense of lustice to be distort-
ed by real or fancied grievances. The testi-
mony given by Mr. Lansden in 1893 states
in eyelet that there is no way open to his
oompany by which it could reduce the cost of
manufacturing gas. In 1894 he tells the
committee thatr--taxes and repairs added,
items not considered in the inquiry of the
previous year — ^the cost of gas delivered to
the consumer could be brought within seventy
cents, or about eighteen and one half cents
less per thousand uian he quoted as the low-
est manufacturing and distributing cost the
year before ; and yet Mr. Lansden must know
that the generating apparatus at the Wash-
ington works is tM same as when he filled
the position as superintendent; that the cost
of all materials used, coal, and labor, are
just the same, save only naphtha, which is
now higher in price than when he testified
a year ago."
*For publiflliiiu^ or causing to be published[6881
this article the plaintiff brought this action.
The defendants joined in their plea of not
guilty, and the plaintiff joined issue thereon.
After verdict a motion for a new trial was
made and denied, and judgment entered upon
the verdict.
The questions which present themselvies In
this record relate primarily to the liability
of each of the plaintiffs in error, and those
questions depend for their proper solution
upon the evidence set forth in the record.
And first in regard to the liability of the
corporation. From the evidence it appears
that at the time of the publication ox the
libel John Leetch was the general manager of
the gas company. After the plaintiff had
been sworn before the congressional commits
tee, in February, 1894, one E. C. Brown, who
was the publisher of the periodical called
The Progressive Age, and who lived in the
city of New York, wrote a letter, under date
New York, February 12, 1894, addressed on
the inside to the Washington Gaslight Com-
545
{
dd8-541
Sdprsmb Coubt of thb Unitsd States.
Oct. Tekm,
pany, Washington, D. C That letter reads
as follows:
Gentlemen :
I have watched with great interest the con-
tinued reports of the proceedings against
your company, as published in the local news-
papers of your city, and I have been some-
what surprised at the character and extent
of Mr. Lansden's testimony. Was his state-
ment correctly reported in the Washington
Star of 3d inst.T Newspapers all over the
country are taking up his figures and using
them to suit their own en£ against home
companies. Any information you would care
to give us concerning the object of Mr. Lans-
den's attack will be considered confidential
at to source of information.
Very truly yours,
E. C. Brown.
The envelope enclosing this letter was ad-
dressed to "John Leetch, Manager Washing-
ton Gaslight Co.**
In reply to that letter, Mr. Leetch wrote
[BtO]*the following:
Washington, D. C, Feb. 13, 1894.
K. C. Brown, iSq., Publisher Prc^essive
Age, 280 Broadway, N. Y.
Dear Sir: —
I have Just now received yours of the 12th
instant, relative to the statement made by
Mr. T. G. Lansden, former sup't of the Wash-
ington Gaslight Company, before the investi-
gating committee of Congress to reduce the
price of gas in this city.
As Mr. Lansden is no longer in the employ
of the gas company, the motive was generally
understood that prompted his statement.
As the newspapers m Washington gave a
correct version of his statement, there is no
doubt he said that gas could be furnished
at the meter for seventy cents and to the con-
sumer for $1.00 per 1,000 cubic feet. This
price at the meter was exclusive of repairs,
services, etc
Under a former resolution of Congress,
bearing date of February, 1893, Mr. Lansden
was ciuled upon to answer certain questions
bearing upon the reduction of price of gas in
Washington, and made the following replies :
"Q. What does gas cost to manu&cture at
your works T
"A. It costs us 48.38 c. per thousand in
the holder and 40.09 c. per tnousand for dis-
tribution.
"Q. Can you in any way reduce the cost of
gas in the manufac&ring so your company
could sell for less to the consumer?
''A. I know of but one way that a small
amount could be saved, — that is, by reducing
the salaries of our clerks and the price paid
to our laborers. This we would not like to
do.
"Q. How do the prices charged for lamps
in Washington compare with other cities?
"A. They are as low as any where the same
amount of gas is burned to the lamp and the
same num^r of hours lighted in the year,
and when the company lights and cleans the
lamps."
546
You will notice that he makes a diff<
of about 18 V^ cents per 1,000 feet then u |
compared with his staiement now, 'altiiovg^M
he must know that the material used, coal,
and labor, is just the Mime now as then, ex- i
cept price of naphtha, which is higher. Yoa
can try to reconcile the two statements.
Very truly yours,
John Leetch, General Manager.
There is no evidence that any other officfr
of the company or any member of its boani
of directors advised or requested Mr. Leetc%
to send this letter or was cognizant of his
intention in that regard. Mr. Leetdi swort j
that the letter was written by him unaided,
and that the letter from Brown was a per-
sonal letter, and he answered it as sock.
After Leetch received the letter, and W
fore he answered it, he had a conversatioa
with Mr. Bailey, the secretary, in i^ich he
informed the secretary that he had leeciygd
such a letter, and he then showed it to Bai-
ley, who read it and returned it to Leetrit
Bailey then said to Leetch that he < Bailer i
had a paper in plaintiff's handwriting, when
he stated "that the price of gas was ao aad
so, and that the price of distribution was »
and so,'' and he then gave Leet<^ the paper.
Bailey said he did not know what Leetch
wanted with it, and he thought nothi^
more about it; that Leetch to^ the papfr
and went off to his room, and Bailey new
saw it again or heard of it untu after
Leetch's letter was written and sent. Baiky
swore he knew nothing about Leet^'s letter
in answer to Brown until after it was wmU
and that he gave no data to Leetch to reply
to the letter, but simply told Leet^ as nat-
ter of fact the plaintiff had said that n«
could be made and sold at a profit at a ool
lar a thousand.
On the 14th of February, 1894, Mr. Brova
wrote another letter, addressed to Jo^
Leetch, general manager, Washingtoa Gas-
light Company, Washin^n, D. C, in whic%
he asked for more details in regard to the
testimony of plaintiff before the committet
of Congress. Receiving no reply. Mr. Brewa.
under date of February 19, again «Tt4a
Leetch, asking for the details as meotinwd
in his preceding letter of the 14th. Tht«
letter was answered as follows:
*E. C. Brown, Esq., Publisher PiugiewiwtWl
Age, 280 Broadway, N. Y.
Dear Sir: —
I am in receipt of yours of the 14th aa4
19th instant. This delay in reply wa# bit
inability to secure a copy of report of pro-
ceedings before investigating committee of
Congress. Only about twenty copies ka«»
thus far been printed for use of conumtt**^
To-dav I received a copy, which I beieait*
indoea for your use.
Respectfully,
John Leetch, General Manafv.
There is no evidence showing that thit hft^
ter was ^ther written by authority of aay
officer or director of the company, or thai
any such officer or director had any knowl-
edge in regard to it.
1^
Washington Gaslight Oo. t. Lanbdin.
541-544
It appeared in evidenoe that some time al-
tflr Leetch answered the letters he placed them
among papers of the company in the secre-
tarj's oflSoe, and they were so placed, be-
cause, aa 1^. Leetch testified, it was a mat-
ter that had then assumed a position when
it was necessary to save the letters, and he
therefore placed them in the care and cus-
tody of the secretary.
Mr. Leetch further testified that none of
the letters written by him was written in
hU capacity as g^ieral manager of the com-
pany; that they were written by him as a
mere personal matter, altogether exclusive
of any duty that he owed the gas company ;
that the gas company had no interest in the
matter, and that he merely wrote them as
an act of courtesy, statins tne facts.
It also appeared that all the letters writ-
ten by Mr. Leetch to Mr. Brown were copied
by Leetch into the letter book of the com-
wnj kept in the secretary's office, all the
lettent in which book were written either by
the secretary, the assistant secretary, or the
general manager. Mr. Leetch did not know
of any letters of personal or individual mat-
ters in that book prior to March 1, 1894, or
^]that did not relate to the affairs of *the gas
company, except those of the same nature as
those letters above referred to.
The testimony also showed that Mr.
Leetch, at the tmie he was made manager,
was appointed senerally to take care of the
works and to do the best he could for the
company; that he was a gas engineer, and
Uxk care of the works and took uie place of
what used to be the engineer, and after his
appointment they had two en^^eers, one at
each end, who were subordinate to Mr.
Leetch.
As bearing upon the duties of Mr. Leetch,
the record also contains evidence in the
shape of a letter signed by the president by
the authority of the board of directors of the
gas company, dated Washington, March 1,
1865, and addressed to Mr. Qeorge A. Mc-
nhenny, by which the latter was appointed
superintendent of the gas works, ana his du-
ties were therein stat^ to be to take charge
of every portion of said works pertaining to
the manufacture, distribution, and consump-
tion of gas, and all persons employed in
those departments; contracts for purchasing
coal and selling tsjr were to be made by the
president, but the superintendent was au-
thorized to contract for other supplies to the
works, the contracts to be submitted to the
president for approval. The superintendent
was to fix the price of coke, but all coke was
to be purchased and paid for at the office.
The superintendent was to have stated hours
for being at the office in town and five at-
tention to all complaints of leaky mains, etc.
His special attention was directed to certain
points regarding the standard for gas and
increasing its product per pound of coal ; in-
creasing the coke sold; saving of refuse
coke; reduction of men employed at the
works; number of thousand feet of gas pro-
duced, and all other points which need cor-
rection; the letter closing with the state-
ment: "The welfare of the company de-
172 V. n.
mands economy in its management, and that
the gas produced shall be uniformly good.''
From that time until the year 1886 there is
no evidence regarding the duties of superin-
tendeut or manager of the company.
In September, 1Q86, at a meeting of the
board of directors, the president called at-
tention of the board to the necessity *of em- [64(9]
ploying a competent man to fill the position
of superintendent of the company ( said posi*
tion being formerly designated engineer )»
and Mr. Mclhenny (the president) was au-
thorized to employ such person for the posi*
tion. Pursuant to that authority the presi-
dent wrote to Mr. Lansden (the plaintiff)
stating : "Our board of directors has author*
ized me to employ a superintendent, and I
have concluded to offer you the position at a
salary of $5,000 per annum, payable month-
ly, the condition being that you will give
satisfaction, presuming that vou are a first-
class gas-woi'ks superintendent, otherwise
this agreement may b^ revoked at any
time." The plaintifif was at this time a gas
engineer, who is, as plaintiff testified, a man
who constructs and manufactures gas works
and manufactures gas. His duties as super-
intendent would not enable him precisely to
know the cost of the manufacture and dis-
tribution of gas.
Mr. McLean, president of the company,
testified on this trial in regard to the posi*
tion of Mr. Leetch: That he first had a
reco^ized position with the company after
Mr. Lansden (plaintiff) had left the service
of the company; that he thought Leetch was
on the pay roll of the company at that time;
he was just generally employed there and
familiarized himself with the company, but
had no positive employment until after Mr.
Lansden, the plaintiff, left; that Mr. Leetch
was not put in exactly the position Mr.
Lansden had occupied, but that in fact he
was appointed generally "to take care of the
works and do the best he could do for the
company; that he was a gas engineer and
took care of the works."
This is all the evidence contained in the
record bearing upon the duties of Mr. Leetch
as general manager of the company and of
his right to act for it in the above mat-
ter.
The question arises whether, upon these
facts and the legitimate inferences which
may fiow from them, the corporation defend-
ant can be held liable for the publication of
the libelous article in the Progressive Aee.
That a corporation mav be hdd responsible
in an action for the publication of a libel is
no longer open for discussion in this court.
PhiUidelphia, W. d B. Railroad Company v.
^Quigley, 21 How. 202 [16: 73]. In that case[544]
the company was held liable in damages to
the plaintiff, Quigley, for the publication of
a libel regarding the plaintiff's skill and ca-
pacity as a mechanic Quigley brought his
action against the company beeause the com-
pany published a letter addressed to it in
the course of an investigation by its board of
directors in regard to the conduct of some of
its subordinates. The letter contained libel-
oub matter in regard to the plaintiff, and
647
(
M4-546
BUPREICE COUBT OF THE UMmCD STATES.
Oct. Tkbm.
with much other testimony was printed and
published by the board of directors, and the
court decided that the corporation could be
held liable for the publication. In that case
Mr. Justice Campbell, in delivering the opin-
ion of the court, said: 'That for acts done
by the agents of a corporation, either in con-
iraotu or in delicto, in the course of its busi-
ness and of their employment, the corpora-
tion is responsible as an individual is re-
roonsible under similar circumstances." The
doctrine of this case has been approved and
reaffirmed in many cases in this court since
that time.
The result of the authorities is, as we
think, that in order to hold a corporation li-
able for the torts of an} of its aj;ents the act
in question must be performed in the course
ftna within the scope of the agent's employ-
ment in the business of the principal. The
corporation can be held responsible for acts
whush are not strictly within the corporate
poweri, but which were assumed to be per-
ienned for the corporation and by the cor-
Srate agents who were competent to emploj
• corporate powers actually exercised.
Iliere need be no written authority under
■eal or Tote of the eorporation, eonstituting
the agency or authcMrisinff the act. But in
the Msence of evidcoice of this nature there
must be evidence of some facts from which
the authority of the agent to act upon or in
relation to the subject-matter involved may
be fairly and legitimately inferred by the
eourt or jury. Salt Lake City v. EoUisterf
OoUeotor, 118 U. 8. 256, 260 [30: 176, 177] ;
Denver d Rio Orande Railway Co, v. Harria,
122 U. 8. 697, 600 [30: 1146, 1148]; Lake
Shore d M. S. Ratkoay Co, v. Prentice, 147
U. 8. 101, 109 [37: 97, 102], and cases cited
at page 110 [87:102].
In this case no specific authority was pre-
[946]teiided to have *been given the gei»Nral mana-
ger, Leetch, to write the letters which he
sent to Brown, or to authorize the publication
of anything whatever in the periodical
named. We are, then, limited to an inquii^
wheUier the evidence is sufficient upon which
a jury might be permitted to base an infer-
ence that Leetch had the necessary authority
to act for the company in this business. It
di/ferent inferences might fairly be drawn
from the evidence by reasonable men, then
the jury should be permitted to choose for
themselves. But if only one inference could
be drawn from the evidence, and that is a
want of authority, then the question is a
legal one for the court to decide. We do not
mean that in order to render the company
liable there must be some evidence of author-
ity, express or implied, given to the manager
to publish or to authorize the publishing of
M libel, but there must be some evidence from
which an authority might be implied on the
part of the manager to represent the com-
pany as within the general scope of his em-
ployment, in regard to the subject-matter of
the correspondence between Brown and him-
eelf. There is no evidence of an express au-
thority, or of any subsequent ratification of
fjeetch's conduct by the company. Can any
authority be inferred from the evidence as
648
to the nature of the duties and powers of ths
manager? Were the acts of Leetch withia
the general scope of his employment as maa-
agei? Upon a careful peru^sal of the wbok
evidence we find nothing upon which sudi sa
inference can be based : nothing to show thst
any correspondence whatever, upon the sob'
ject in hand, was within the scope of tte
manager's employment. Commencing witk
the time when a superintendent was c»
ployed in March, 1865, down to the employ-
ment of Leetch, no such power eould be is-
ferrcd from the evidence regarding the dntici
of a superintendent or manager. In March,
1866, the duties of such an officer were plain-
ly stated. Th^ were: '^o take dia^ «f
every portion of said works pertaining to thi
manufacture, distribution, and consninptioa
of gas, and all persons employed in thoee de-
partments." Further details of his dstia
were mentioned in the writinff wfirh>g the
appointment, but they all rdated to the
carrying on of the business of the eompasr.
From ail *that appears in the reeord the dn [M
ties of superintendent of the gas works re-
mained as stated in the eommunicatioa u
above mentioned, with possibly a diange ii
the name from superintendent to enginssr,
until 1886, when under authority of tht
board of directors, Mr. Lansden, the plaia-
tiflT, was employed as superintendent vpoa
the presumption, as stated, that he was s
first-class gas-works superintendents Then
is nothing from whidi we eould infer thst
the character or scope of the duties ci snpv^
intendent was enlarged or changed, at the
time the plaintiff accepted the position, tnm
what those duties were stated to be in ths
letter appointing a superintendent in 186i.
From tfie evidence in the case no presaBp-
tion could be indulffed that the duties of the
general mana^r of the corporation in ns^*
tion included m their geneiml scope or a«r>
acter the right to represent the corpormtiM
in any business such as is referred to ia ths
letters of Brown or in the letters of Leetch b
answer thereto. The letters of Mr. Browi
had nothing whatever to do with the tnae*
action of the business of the corporation, sr
with anything relating thereto which ths
superintendent was authorized to perfara.
It was an in<|uiry relative to a past irvm-
action regarding the testimony soppoted ts
have been given before a committee of Ose-
^ess, having, among other things, the se^
lect of the price of gas in the city of Wssh-
ington before it for coubideration. Prom the
evidence in this case it is plain that it «es
no part of the duty of the general
even to anpear before that committee
summoned so to do by the committee, or
cially directed by the company to so
In no view of the evidence can we set ths
least basis for an inference that the asaifv
had authority to represent the eampeMf is
any matter connected with third partict
relating to the character of the
given by the plaintiff before tbe
of Congress.
llie manager did not himsdf rsgsrd tie
correspondence as one of an official satami
and he swears that he answered tht UitF^
I7t U.«^
1898.
WA8HINGTOV GaBUOHT Oa T. LaHBDSN.
546-549
M a mere personal matter, altogether ex-
clu^ive of any duty that he owed to the gas
&7]oomptny; that the gae^company had noinw-
est in it, and he merely wrote the letters as
an act of courtesy stating the facts, and that
none of the officers of the company was in-
formed as to the contents of the letters that
he wrote, and they were ignorant regarding
them.
The plaintiff, of course, would not be
bound by the evidence of Mr. Leetch as to
how he regarded the letters or in what capac-
ity he thought that he was answering them,
if there were other evidence in the case from
which a contrary inference could properly be
drawn,-Heyidenoe from which it could be in-
ferred that the manager was acting within
the scope of his employment as manager. In
tnch case it woula be proper to refer the
question of fact to the jury to ascertain
whether the letters were written within the
scope of his employment, notwithstanding
his assertion that he wrote them in his per-
sonal capacity. But there is no such evi-
dence.
The fact that the manaffer copied his let^
ters to Brown into the official copy book kept
in the office of the secretary is not material
npon this question. It was the act of Mr.
Leetch, unknown to the officers of the com-
pany, so far as the record shows, and the com-
pany cannot be held liable for the original act
of Leetch by such evidence. It does not tend
to show that his action was within the scope
of his employment as manager.
If we set aside for a moment the testimony
in regard to the duties to be performed by the
superintendent, as stated in the communica-
tion of March, 1865, and look simply at the
other facts in the case, we are still without
any evidence from which it might be inferred
that the aet on the part of the manager was
within the scope of his employment. The
burden is upon tne plaintiff to show this fact.
From the use of the term "general man-
ager" we should not be authorized to infer
any such authority, nor would it be permis-
sible to allow the jury to make a mere guess
that it existed. A general manager of a
bnainess corporation, such as this gas com-
pany is, woiild not be presumed to nave this
power. The term, in our judgment, when
used in connection with such a corporation,
BJcannoty intheabeence of any ^evidence on the
subject, be presumed to mean anything more
than that ttie person filling the position has
general charge of those business matters for
8ie carrying on of which the company was in-
corporated. These might include the buying
of material, the employment of laborers, the
supervision of their labor, the manufacture
of ns, its distribution, and the general wavs
ana means of accomplishing the object of the
corporation, — all these in subordination to
tiie board of directors and such superior offi-
cers as the board should provide.
We are of opinion that the court erred in
submitting to the junr the question whether
Leetch, in respect to the subiect of the letters
written by him to Brown, had authority to
bind the company. The court should have
directed a verdict for the corporation on the
fH'ound that there was an entire lack of evi-
172 V. 8.
dence upon which to base a verdict against it.
The next question arises in regard to the
defendant Bailey.
The only evidence is regard to this defend*
ant is that he was secretary of the company
at the time in question; that after Mr. Ijans-
den, the plaintiff, had made the memorandum
in preparation for his being called as a wit-
ness before the congressional committee in
1893, and in which memorandum he had
stated the cost of gas (althou|gh,a8 he says, he
took that cost from the president, and did not
Eretend to state it as of his own knowledge) ,
e gave the memorandum to Mr. McLean, the
president of the defendant company, who
Save it to Mr. Bailey, the secretary, who had
ept it in his possession from that time;
that after Mr. Leetch received Mr. Brown's
first letter relating to the plaintiff's t^ti-
mony before the congressional committee of
1894, Mr. Leetch showed him (Bailey) the
letter, and that Mr. Bailey then read it, and
stated: "I have a paper in Mr. Lansden's
own handwriting, wnere he stated that the
Srice of ffRB was so and so and the price of
istribution was so and so;" and he then
gave Leetch the paper ; that he then knew that
the items therein, so far as they regarded the
cost of distribution, did not rest on plaintiff's
personal knowledge, but that they came from
the books ; that he did not know what Leetch
wanted with the paper; that he thou^hi.
nothing about it; that Leetch had asked him,
*<<Whei« is the paper T" and he then got itlM9t
and Leetch asked him to let him take it; aivl
that Leetch did take it and went off to hfs
room, and that Bailey never ss.w it again or
heard of it until after the letter was writ-
ten ; that Bailey did not ffive Leeteh any data
te reply te the letter, and he thought nothing
about writing the letter, and that he simply
said, as a matter of fact, that he (Lansden)
had said that gas could he made and sold at
a profit at a dollar. He never knew that the
first letter of Brown had been answered until
he saw it in the Progreosive Ase.
This is all the evidence conne<^nf^ Mr. Bai-
ley in any way with the publication of the
libel, and we think it wholly insufficient for
that purpose. We think there is nothing in
this evidence from which the inference can
reasonably and fairly be drawn that there
was any intention on the part of Mr. Bailey *
to furnish Mr. Leetch with the figures in the
memorandum so that he might answer the
letter from Mr» Brown, and have the figures
or any other matter published in his paper.
A finding by the jury that Mr. Bailey fur*
nished the information contained in this
memorandum to Mr. Leetch for the purpose
of having him communicate it to Mr. Brown,
and for the purpose of having Mr. Brovm
publish the same, would not be supported by
any evidence in this case. Such a finding
would be a pure guess, unsupported by any
evidence, and the jury should not be offered
the opportunity te make it. The judgment
shoula therefore be reversed as against Mr.
Bailey.
The third question relates to the judgment
against Leetcn.
We are of the opinion that the judgment
ought also to be reversed and a new trial
649
(
64»-552
8UPKEHB Court of the United States.
Oct. Tebh,
awarded as against bim. We do not think it
would constitute a defense in his case that
there were other matters contained in the ar-
ticle published by Mr. Brown, not pertaining
to and which were no part of the subjectr
matter upon which Mr. Leetch wrote his let-
ters. For anytbing appearing in that publi-
cation, which was outside and bevona the
■cope of the subject-matter of the letters of
Mr. Leetch, he would not be responsible, be-
cause he could not be charged with authoriz-
ing the publication of such matter in anj
form; but if upon all the evidence on an-
[550]other trial the jury should be saUsfled *he
furnished the publisher, Mr. Brown, with in-
formation of a libelous character regarding
the plaintiff, for the purpose and with the
intention of having the same published by
Mr. Brown, we think that the defendant
might be held liable for such publication on
the ground that it was published by his aid
and procurement and substantially by his
agent Of course, the evidence would have
to be sufficient to justify a jury in finding the
fact of such intention and that the informa-
tion was 80 furnished to Mr. Brown.
There are, however, two grounds upon
which we think this judgment should be re-
versed, and no judgment entered upon the
verdict, even as against Mr. LcKetch, one of
which rests upon an exception to evidence,
and the other is based upon the substantial
injustice which we think might be the result
if we were to permit judgment to be entered
upon the verdict as against him alone.
When the plaintiff was on the stand, upon
direct examination, he testified that the total
capital stock of the company defendant was
$2,000,000. He was then asked as to the divi-
dends tha/ had been paid upon the stock
within his Knowledge. This was objected to
by counsel for defendants, who said it was
perfectly well known that the £[as company
was able to pay the amount claimed in this
libel case, and what dividends they pay is a
matter private to the comi>anv.
Counsel for plaintiff said he was seeking
to show only its earning capacity. To which
counsel for defendants said they would ad-
mit that the company was able to pay this
amount claimed. ''The Court: Stall, they
have the ru^ht to show the volume of the
* property of the company, and any evidence
tending to show the volume of the property
would be competent." To which ruling of
the court counsel for the defendants ex-
cepted.
The witness then testified that the com-
pany had paid the last two regular divi-
dends of ten per cent upon its capital stock.
The court then said to counsel: ''That
the admission of the fact that the company
was able to respond in damages amounted
to nothing; that the object of the evidence
[551] was *to furnish the jury a basis upon which
they might calculate exemplary damages if
they were entitled to exemplary damages, as
was claimed. If the jury were going to give
exemplary damages they might give much
larger damages against a very wealthy per-
son than they would against a person of or-
dinary circumstances.'' Counsel for the de-
650
fendants said that their claim was only $SI^
000. To which the court responded: "If
you admit that if they are entitled to a ver^
diet at all they are entitled to $56,-
000, that does away with the neeeasitj of
the evidence; otherwise I think it would be
admissible." And under the objection and
exception of the defendants' oounis^ the wit^
ness then testified that he knew what diri-
dends had been paid by the gas oompaaj
since 1800, but did not know lidiat had beta
earned: that every year they had paid 10
per cent; that in 1893 they had paid 15 per
cent; that was an extra dividend; that ii
1895 they had paid $400,000,— an extra dir-
idend; that from 1890 down to the presot
time they had paid the regular 10 per eeat
dividend every year, and that in 1890 they
had issued $600,000 of interest-bearing cer-
tificates to the stockholders, whidi wmiM
make it 40 per cent for that year, and in
1893 there was a special dividend paid of S3
per share in addition to the 10 per ceet;
that in 1894 he did not know of anything be>
ing paid but the r^ular dividend; that ia
1895 they paid $4 a share, and that it takes
$200,000 to make the regular dividend, lai
the^ paid $400,000 extra in $600,000 alto-
gether. The court did not directly instriMt
the jury that the evidence was only admisi-
ble for the purpose stated by him in his re-
Sly to the objection made by counsel for tiM
efense. In his final charge to the jury and
upon the request of the counsel for the de-
fendants, the court instructed the jury that
the plaintiff was not entitled to recover poiii-
tive damages against the defendant company
or against either of the other defendaoto,
but only such damages as the evideaee
proves that he has sustained on acoomit d
the action of the defendants, if any.
The plaintiff in bringing his action ttw
fit to join the ^ks company and Pcvwal of
its officers as individual defendants. Be
could, had he so chosen, have brought hi«
action against *the company alone. All thqi^
defendants joined in a plea of not f]>ultT.
and the jury could not find a verdkt of
guilty against all, and apportion the dam-
ages among the several defendants by gtriw^
a certain amoimt as against the compaay
and a certain other amount as Sfaiast the
individual defendants. Those of Uie wroaf-
doers who are sued together and found gniltj
in an action of tort are liable for the whole
injurv to plaintiff, without examining the
Suestion of the different demes of culpabil*
ty. And if but one is sued, he is liable for
aU the damages inflicted by the most c^
pable. Cooley on Torts, 133, 135, 136; (V^
Her V. 8u>af^ 63 Me. 323 ; Berry v. yittcktr,
1 DUl. 67 ; Pardridge v, Brad^, 7 111. Apf.
639; McCarthy v. De ArmU, 99 Pa. <3-:i
The rule is different in Sooth OsroUaa.
where the juiy can apportion tha daasfv
among the different deraKdaata found guilty.
It is acknov*ledged to be a d^arture horn
the rule at common law. White v. Jr^Alf
and others, 1 Bay, 11.
As between thunselvea, there is no costri-
bution among several tort feasors, tf crry^
weather v. Nijfan, 8 T. R. 186; F^r^kreiktr
1898.
Wabhinoton Gaslight Co. t. Lamsdbh*
(M»H»5
T. Analep, 1 Campb. 343; Wilson t. Milner,
2 Campb. 452 ; Cooley on Torts, pp. 148,
149. A verdict might, therefore, be rendered
against all defen£int8 and collected out of
one, and he would have no right of coniribu-
Uoa. i^nd the verdict enhanced by the evi-
doice of the wealth of one defendajit, might
be ooUected from the defendant the least
able to respond and the l^;st culpable of all,
who would thus be mulcted in punitive dam-
ages, the amount of which might have been
measured by the evidence of the wealth of
another defendant.
In this case the jury was bound to give
one entire sum against all the defendants
found guilty, and that sum would be includ-
ed in the judgment against each of them.
The object of the evidence in rdation to the
capital stock of the corporation and the divi-
dends declared by it was, as stated by the
court to counsel, for the purpose of furnish-
ing the jury tiie basis upon which they
might calculate exemplary damages, yet it
is not plainly limited to that purpose by any
direction given to the jury by the court. If
8]Uie evidoioe would be admissible *for the
purpose stated by the court to counsel, in a
case against the corporation alone, can it be
that it would be admissible also in a case
like this, where individual defendants are
joined by the voluntary act of the plaintiff?
We are of opinion that the evidence in re-
gard to them would be inadmissible. It
would form no basis for any verdict against
the individual defendants. While a defend-
int who is least to blame is still liable for
all the damages suffered by plaintiff, he is
not liable to respond in punitive damages,
the amount of which may be based upon par-
ticular evidence of the wealth of some other
defendant.
Punitive damages are damages b^ond
and above the amount which a plaintiff has
really suffered, and they are awarded upon
the theory that they are a punishment to the
defendant, and not a mere matter of compen-
sation for injuries sustained by plaintiff.
While all defendants joined are liable for
compensatory damages, there is no justice
in allowing the recovery of punitive dam-
tges in an action against several defendants,
based upon evidence of the wealth and abil-
ity to pay such damages on tJie part of one
of the defendants only. As the verdict must
be for one stun against all defendants who
are guilty, it seems to be plain that when a
plaintiff voluntarily joins several parties as
defendants, he must be held thereby to waive
sny right to recover punitive damages against
all, founded upon evidence of the ability
of one of the several defendants to pay them.
This rule does not prevent the recovery of
punitive damages in all cases where several
defendants are joined. What the true rule
is in such case is not, perhaps, certain. 7
ni. App. 639; 09 Pa. 63. But we have no
doubt it prevents evidence regarding the
wealth of one of the defendants as a founda-
tion for computing or determining the
Amount of such damages against all.
In many cases against several defendants
it frequently happens that evidence is c(»n-
petent and is admitted as against one of the
defendants only, and the court, on its own
motion or on the request of the other defend-
ants, would charge the jury that such evi-
dence could not be taken into consideration
as against the defendants to whom it did
not appl^. But here such a *power cajmot[654]
be exercised. The court cannot say to the
jury that the evidence of the wealUi of the
corporation is only received in regard to it
and as furnishing a basis for a computation
of exemplary damages a^inst it. If received
at all it must be received against all the
defendants, as but one verdict can be given
against all who are found guilty, when in
truth in regard to all of them but the corpo-
ration it is evidence which is absolutely in-
competent. Yet if the evi(^snce is received
on the assumption that it is material in re-
lation to the corporation, the other defend-
ants are affected by it the same as the corpo-
ration, and a verdict may very probably \m
enlarged against them because of the evi-
dence as to the ability of the corporation de-
fendant to pay. The jury is thus permitted
to take into consideration the wealth of one
defendant upon the question of the amount
of the verdict against all of them.
Objection to the evidence was taken by
counsel, and we think under the circumstan-
ces was well taken, and the exception is good
in behalf of the individual defendants who
were necessarily affected by its introduction.
But it is said that this error, if any, was
cured by the ruling of the court in response
to the request of defendants' counsel that
punitive damages should not be granted. We
are not certain as to that. As we have said,
the court gave no instruction to the jury that
it could onlv consider the evidence in connec-
tion with the question of punitive damages.
The remark of the court as to the object of
the evidence was made to counsel, and the
court did not, in any instructions given,
plainly limit tJie jury to its consideration
for that purpose alone. The evidence was
never withdrawn by the court, nor was the
jury directed to take no notice of it. If the
court admitted the evidence for one purpose
only, and vet did not afterwards in terms
withdraw it from the consideration of the
jury, it was of such a nature that it still
might affect the jur^, even though the basis
for its admission originally had disappeared.
It is true the defendants aid not in so manv
words ask the court to withdraw the evi-
dence from the jury. It was, however, duly
objected to when received, and it was *errori
to receive it. Under such circumstances, in
order to cure the error, the court, when de-
ciding that punitive damages could not be
recovered, should have plainly and in dis'
tinct language withdrawn this particular
evidence mm the jury. We cannot be cer-
tain that its effect was removed by this action
of the court. In a case of this character,
where the line between oompensatoiy and
punitive damages is quite vague, and com-
pensatory damages may be based upon the
injury to the f^inss and good name of a
plaintiff, and where the amount even of such
compensatory damages rests so largely in the
discretion of a jury, we think it Is utterly
66 X
{
655-557
SUPUBMS CODUT OP THE (JnITED StATES.
Oct.
impossible to say that, by merely charging
the jury that punitive damages cannot he
recovered, the effect of the incompetent evi-
dence as to the wealth of one of the defend-
ants was thereby removed, or that the verdict
of the jury can be held to have been based
solely upon the competent evidence in the
ease.
We are also of opinion that, even upon the
assumption that no error was committed
upon the trial as against the defendant
Ijeetch, which in itself would call for a re-
versal, yet the judgment should be wholly re-
versed and no judgment entered upon the
verdict as to him, because the original ver-
dict was against the three defendants, and
it was given under such circumstances that
we might well fear the amount was enlarged
by the evidence as to the wealth of the cor-
poration, and it is possible, if not probable,
that if a verdict had been renderea against
the individual defendant alone it would have
been for a materially less amount. At any
rate, the jury has never been called upon to
render a verdict against a sole defendant,
and while it may m said that, whether
against one or against all the defendants,
the plaintiff suffers the same damage and
should be entitled to a verdict for the same
sum, still the question arises whether a jury,
in passing upon the several liability of the
individual defendant, would give a verdict
of the same amount as it would if both the
other defendants remained. We cannot say
it would, and as the jury has never rendered
a verdict against Mr. Leetch individually and
solely, and as the case is one where damages
are so largely in the sole discretion of the
jury, we think it unjust and improper to
[556]permit this ^verdict to stand against Leetch
alone while we set it aside as against the
other defendants.
Where the judgment is based upon a cause
of action of such a nature that it might work
injustice to one party defendant if it were to
remain intact as against him while reversed
for error as to the other defendants, then we
think tiie power exists in the court, founded
upon such fact of possible injustice, to re-
verse the judgment in toto and srant a new
trial in regard to all the defendants.
The question is discussed with much full-
ness in Albright v. McTighe and others, 40
Fed. Bep. 817, and the same conclusion is
arrived at.
The provisions contained in the judgment
in Pennsylvania Railroad Company v. Jones,
166 U. S. 333, at 354 [39: 176, at 183], indi-
cate the opinion of this court that it was
right to reverse the entire judgment in that
case for error in regard to one of several de-
fendants ; but the court held that as the error
did not affect the others the plaintiff should
have liberty to become nonsuit as to the one
defendant, and to then have judgment upon
his verdict against the others. In that case
there was a failure to prove a cause of action
against the one defendant, while no such fail-
ure existed as to the others, and there were
no special reasons for a total reversal, but,
on the contrary, justice seemed to require
that plaintiff should have the liberty of en-
652
tering judgment upon his verdict against iht
other companies.
In regard to the defendants, MrT^eaii, tW
president, and Orme, the assistant secretary,
the judge charsed the jury that there waa ■•
prayer granted or aslced by plaintifTs eooa-
sel dir^ted specially to informing tlie jvfy
whether it might or might not find againrt
those defendants ; tiiat he did not uDdentaad
that the plaintiff's counsel earnestly insisted
upon a verdict against them personally ; ani
he could only say that the evidence tfnding
to show that they were personally liable was
slight, and he submitted the case to the jvy
with that expression, leaving it to their dis-
cretion to find for or against them as they
might think best. There was no ftndinc by
the jury against those defendants, and bo
judgment was entered against them, and tbrv
have not brought error. In reversing *thf(ilt
judgment we do not intend to reverse what
may be considered a finding of the jury ia
their favor.
For the reasons given, toe reverse the jwif
ment of the Court of Appeals of the Distritt
of Columbia, with directions to that ooort
to reverse the judgment of the Supie—
Court of the District of Columbia^ and to
grant a new trial to the three defendants who
are plaintiffs in the writ of error sued onl
from this court.
ORIENT INSURANCE COMPANY of Hart*
ford, Connecticut, Plff. in Brr^
V.
ROBERT E. DAGOS.
(See 8. C. Reporter's ed. 557-66T.)
Wh^i a corporation is not regarded me • nl-
izen — eqwU protection of the laws — 9eU4
ity of state statute.
1. A corporation Is not a dtlsen wfthla the
meaning of the constlttitlona) provltSon es ts
privileges and Immanltles of dttsena.
2. A fire Insarance company Is not d— Isd tkt
equal protection of the laws bj a statst* sp-
pllcable to fire Insarance onlj. whlck matas
the entire amount of the Insurance payaM*
In case of total loss, except as reduced toy ^
predatlon of the property after It
sured.
8. A state statute compelling lire
companies In esse of total loss to pay
amount for which the property wi
less depreciation between the time of
the policy and the time of loss, docs not dr^
prlve the Insurer of property withovt das
process of law, as It leaves the partlss to ts
the valuation of the property as they
but makes their action In this SMttcr
duslve.
[No. 8U
Argued December 8, 189B. Decided /
16, 1S99.
IN ERROR to the Supreme Court of tkt
State of Missouri to review a jndgMnit «l
that court affirming a judgment of the Or^
cuit Court of Scotland County in said stast
in favor of the plaintiff, the defcndaat in
17t ILft.
vm.
Obibnt Ihschahoi Co. t. DAoea.
557-^60
•rrar In this oourt, sustaining a demurrer
to tlie answer of ttte defenda^ and giving
tiie plaintiff judgment for $876, being the
inxrant o€ a poli(nr of insurance, and ooets.
Judgment affCrtnei,
See same case below, 136 Mo. 382, 36 L. R.
A. 227.
Statement by Mr. Justice MeKemuis
;58] *This is an action at law upon a policy of
insurance issued by the plaintiff in error, a
corporation organiised under the laws of the
state of Connecticut. The policy was issued
in June, 1893, insiiring the defendant in er-
ror sgainst loss or damage by fire to a certain
btm situated in Scotland county, Missouri,
in a sum not to exceed $800. The barn was,
within less than three months after the is-
suing of the policy, entirely consumed by fire;
and an action was brought upon the contract
to compel the payment of the entire sum of
$800.
The petition filed in the case avers the de-
livery of the policy of insurance to the de-
fendant in error, and says that the company,
bv virtue of said policy, promised to pay the
plaintiff the sum of $800 in case said bam
should be destroyed by fire, and attaches a
copy of the policy to the petition as the basis
of the action.
The answer filed by the company stated
that the ''defendant is a corporation, organ-
ized and existing under and by virtue ot the
laws of the state of Connecticut, doing a gen-
eral fire insurance business in the state of
Missouri, and avers it has been doing such
business oontinuallv since and prior to the
first day of June, 1873, and that said defend-
ant was and is fully authorized to do such
business in the state of Missouri.'' The answer
admitted the deliverv of the policy and the
total destruction of the barn by fire; that the
plaintiff was the owner thereof, and that
proofs of loss had been made.
The defendant, further answering, stated
that the contract of insurance sued on in the
case was the contract between the parties,
and that it provided that "said insurance
company shall not be liable beyond the actual
cash value of the property at th^ time any
loss or damage occurs, and that the loss or
damage shall he ascertained or estimated ac-
cording to the actual cash value of the prop-
erty at the time of the fire, and shall in no
case exceed what it will cost to replace the
same, deducting therefrom a suitable amoimt
for any depreciation of said property from
age, use, or location, or otherwise."
S9] *The answer further averred that at the time
of the burning of the building in question it
was not worth te> exceed $100, which amount
the plaintiff in error then offered to pay, with
interest from the date of the fire, and to re-
turn the premium. The answer of the de-
fendant further averred as follows:
"The defendant says that section 6807 of
chapter 89, artide 4, Revised Statutes of the
ttate of Missouri, compiled in the year 1889,
provides as follows: 'In all suits brought
upon policies of insurance against loss or
damage by fire, hereafter issued or renewed,
the defendant shall not be permitted to deny
that the property insured thereby was worth
172 17. 8.
at the time of the issuing of the policy the
full amount insured therein on said proper-
ty; and in case of total loss of the property
insured, the measure of damages shall be
the amount for which the same was insured,
less whatever depreciation in value below the
amount for whi<m the property is insured the
property may have sustained between the
time of issuinff the policy and the time of the
loss, and the ourden of proving such depre-
ciation shall be upon the defendant' . . .
And that section 6898 of said chapter pro-
vides that no condition in any policy of in-
surance contrary to the provisions of this ar-
ticle, meaning thereby article 4, shall be le-
gal or valid. The defendant says that said
statute was enacted prior to the issuing of
said poller^ and has not been repealed."
The derandant pleaded that seid s^^tute is
contrary to the Constitution of Missouri, and
that the same is imconstitutional, null and
void, and proceeded to aver as follows :
"The defendant, further answering, says
that sections 6897, and 6898 of chapter 89,
article 4, of the statutes of Missouri are con-
trary to and in contravention of the Consti-
tution of the United States, which provides
that no state shall pass any bill of attainder
or eof post facto law, or laws impairing the
obligation of contracts.
"Defendant, further answering, says that
said sections, and each of them, are contrary
to and in contravention of article 14 of the
Constitution of the United States, commonly
called the Fourteenth Amendment, and par-
ticularly of article 1 of said amendment,
which is as follows:
*" 'AH persons bom or naturalized in the[560|
United States, and subject to the jurisdic-
tion thereof, are citizens of the United States
and of th3 state wherein they reside.
No state shall make or enforce any laws
which shall abridge the privileges or immuni-
ties of citizens of the United S&tes ; nor shall
any state deprive any person of life, liberty,
or property without due process of law; nor
deny to any person within its jurisdiction the
equal protection of the laws.'
"And that said sections 6897 and 6898 of
chapter 89, article 4, of the Revised Statutes
of Missouri are unconstitutional and con-
trary to the Constitution of the United
States, and are null and void.
"That the defendant has the constitutional
right to limit its liability by contract to act-
ual damages caused by fire."
To this answer the plaintiff and assured
filed a demurrer, which demurrer the court
sustained, and the defendant, decting to
stand upon the ruling upon said demurrer^
judgment was entered in favor of the plain-
tiff, and in due course the cause was appealed
to the supreme court of Missouri. At Octo-
ber term, 189G, the supreme court of Mis-
souri rendered an opinion in said case, af-
firming the judgment of the court below.
136 Mo. 382 [36 L. R. A. 227]. The case
then came to this court in due course upon
petition in error.
There are twenty-three assignments of er>
ror which present the claim of plaintiff in
error under the Constitution of the United
553
060-568
SUFBEia OOUK OF THB UVITBD STATES.
Oct. Tkbm,
States, and the alleged error ci tilt
court denying the claim.
Mr, Alfred H. MoVey for plaintiff In
ror.
No counsel for defendant in error.
[660] *Mr. Justice MoKemui deliT«red the
opinion of the court:
The statute of Missouri is alleged to vio-
late the Fourteenth Amendment of the Con-
stitution of the United States in the follow-
ing particulars: (1) That it abridges the
privileges or immunities of citizens of the
[661 ]tjni ted States; (2) denies to "^persons within
its jurisdiction the equal protection of the
laws; and (3) deprives persons of property
without due process of law.
( 1 ) It is not clear that this ground is re-
lied on. It is, however, not available to
plaintiff in error. A corporation is not a
citizen within the meaning of the provision,
and hence has not ''privileges and immuni-
ties" secured to "citizens" a^inst state leg-
islation. This was decided in Paul v. Vir-
ginia, 8 Wall. 168 [19: 357], against a cor-
poration upon which were imposed conditions
for doing business in the state of Virginia,
and has been repeated in many cases since,
including one at the present term. Blake v.
McClung, 172 U. S. 239 [ante, 432].
(2) It is not easy to make a succinct state-
ment of the objections of pinintiff in error
under this provision. Coun says: "The
business of insurance includes insurance
against damages on account of death, acci-
dent, personal injury, liability for acts of
employees, damages to plate glass, damages
by hail, lightning, high wind, tornadoes, and
against damages to personal property on ac-
count of fire or casualty by other dements,
as well as insurance against loss or damage
to building on accoimt of fire. ... No
other business is subject to the discrimina-
tion, in case such business is involved in liti-
gation, of having the damages assessed with-
out due process of law. The statute singles
out persons engaged in fire insurance as
against all other kinds of insurance, and as
against all other kinds of business, and im-
poses the onerous and unusual conditions pro-
Tided in the statute, against such persons."
And again: "The statute thus discrimin-
ates as to the subject-matter, as to the par-
ties, as to the mode of trial of actions at law
and equity, and imposes upon this particu-
lar class of underwriters, as distinguished
from all the rest of the world, conditions
which abrogate its contracts, compels it to
pay damages never sustained, and prevents
it from having an investigation upon the
trial by due process of law."
This mingles grounds of objection, and con-
founds the prohibitions of the provision we
are considering with that of the next provi-
sion. Whether the statute of Missouri pro-
vides for "due process" we shall consider
[662]hereafter, and upon that consideration *de-
termine how much of the complaint against
it in that regard is true. Now we may con-
fine ourselves to the more specific contention
that it discriminates between fire insurance
664
It
eorporations or companies and time cngagci
In other kinds of insurance.
It is not necessary to state the reasoai^
upon which classification by legislation is
based or justified. This court has had many
occasions to do so, and only lately reviewed
the subject in Magoun v. lUinait Trutt 4
Savings Bank, 170 U. S. 283 [42 : 1037] . We
said in that case that "the state nrnv distis-
gnish, select, and classify objects of legisla-
tion, and necessarily the power must have a
wide range of discretion." And this beeaoe
of the function of legislation and the pur-
poses to which it is addressed. Classifieatiaa
for such purposes is not invalid beeai
depending on scientific or marked diff(
in things or persons or in their relat'
suffices if it is practical, and is not
able unless palpably arbitrary. The dassi-
fication of the Missouri statute is eertaialy
not arbitrary. We see many differenees be-
tween fire insurance and other insnraaee;
both to the insurer and the insured,— -differ-
ences in the elements insured against and the
possible relation of the parties to them, pn>-
ducing consequences which may justify. If
not demand, different legislative treatmeaL
Of course it is not for us to debate the pol-
icy of any particular treatment ; and the tree^
dom of discretion which we have said the
state has is exhibited l^ analosoos, if not
exact, examples to the Missoon statute la
Missouri P, Railway OomjHmy ▼. Jf edbev,
127 U. S. 205 [32: 107] ; and in MitmemmSs
A nt, L, RaUwag v. BeohwUk, 129 U. sTfl
[32:586].
In Missouri P, Railway OowMnmy ▼. Maek^
ey, 127 U. S. 205 [32: K^], a Uw of KasMS
was passed which abrogated as to railroadi
the rule of the common law exempting mas-
ters from liability to one servant for the Mf^
ligence of aYiother. It was sustained as a
valid classification, notwithstanding that it
did not apply to other carriers, or evca to
other corporations using steam. The lav
was objected to, as the statute of Miaeoari H
objected to, on the sround that it violated tht
provisions of the Constitution which we are
now considering.
*To the first contention the court, by Mr jSa|
Justice Field, said: "The plain answer ta
this contention is that the liability impoMJ
by the law of 1874 arises only fen* injnrici
subsequently committed; it has no applka-
tion to past injuries, and it cannot be lar
cessfully contended that the state may ast
prescribe the liabilities under which corps-
rations created by its laws shall conduct their
business in the future, where no limitatm
is placed upon its power in this respect W
their charters. Leffislation to this oTcct h
found in the statute books of every state*
And after further comment added: **nsi
its passage was within the oompeteacy of the
legislature, we have no doubt.*^ To the tar-
ond contention it was said: "It sensai ti
rest upon the theory that legislation whiA
is special in its character is neccMsrOy with-
in tne constitutional inhibition; but aethnf
can be further from the faet.** The ImiiIs
tion was justified by the diaraeter oi the
business of railroad companies, and it ev
declared to be a matter of legislattw db-
17S IL&
1896.
Obibnt LffUBAjrcB Ck>. v. Dagos.
568-560
cretkm whether the emme liability should or
ikonld not be applied to other carriers, or to
' persons and corporations using steam in
■annfsctares.
In Minneapolis d Bt. L. Railtoay Company
f. Beckwith, 129 U. S. 26 [32: 585], a law
of Iowa making a class of railroad corpora-
lions for special legislation was sustained.
(8) "What it is for a state to deprive a
person of life, libertjr, or property without
due process of law" is not much nearer to
precise definition to-day than it was said to
be bv Mr. Justice Miller in Davidson ▼. New
Orleans, 96 U. 8. 97 [24: 616].
The process "of judicial inclusion and ex-
ehision" has proceeded, and yet this court,
in Holden v. Hardy, 169 U. S. 366 [42: 780],
tg&in declined specific definition. Mr. Jus-
tice Brown, speaking for the court, said :
''This court 1ms never attempted to define
with precision the words *due process of
law/ nor is it necessary in this case. It is
suflScient to say that there are certain immu-
table principles of justice which inhere in
the very idea of free government, which no
membor of the Union may disregard, — as,
that no man shall be condemned in his per-
son or property without due notice ana an
opportunity of beine heard in his own de-
fense." These principles were extended to
^Ithe right *to acquire property and to enter
into contracts with respect to property; but
it was said "this right of contract, however,
is itself subject to certain limitations which
the state may lawfully impose in the exer-
cise of its police powers."
The legislation sustained was an act of
the state of Utah making the employment of
workingmen in all underground mines and
workings and in smelters and all other in-
stitutions for the reduction and refining of
ores or metals eight hours per day, except
in cases of emergency, where life or proper-
ty should be in imminent danger. The viola-
tion of tiie statute was made a misdemeanor.
It was undoubtedly a limitation on the
right of contract, — ^that of the employer and
that of the employed,--«nforoed bv a crim-
inal prosecution and penalty on the former
and on his agents and managers. It was
held a valid exercise of the police powers of
the state. These powers were not defined
except by illustration, nor need we now de-
fine them. The case is a precedent to sup-
port the validity of the Missouri statute
now under consideration.
The statute provides as follows: '^n all
soils brought upon policies of insurance
sgainst loss or damage by fire, hereafter is-
sued or renewed, the defendant shall not be
permitted to deny that the property insured
thereby was wortii at the time of the issuing
ot the policy the full amount insured there-
in on said property ; and in case of total loss
of the property insured, the measure of dam-
ages shaU be the amount for which the same
wu insured, less whatever depreciation in
value below the amoiuit for which the prop-
erty is insured the property may have sus-
tained between the time of issuing the policy
and the time of the loss; and the burden of
provin? such depreciation shall be upon the
172 U. S.
defendant." It is also provided that no
condition in any policy of insurance con*
trary to such provision shall be legal or
valid.
The specific objections which, it is claimed^
bring the statute within the prohibition of
the Constitution, in the last analysis, may
be reduced to the following: That the stat-
ute takes away a fundamental ri^ht and pr^
dudes a judicial inquirv of liability on pol-
icies of fire insurance by a conclusive pr^
suinption of fact.
*The right claimed is to make contracts of [666]
insurance. The essence of these, it is said,
is indemnity, and that the statute converts
them into wager policies, — into contracts (to
quote counsel) having for their bases specu-
lation and profit, "contrary to the course of
the common law." The statement is broad,
and counsel in making it ignores many
things. The statute tends to assure, not to
detract from the indemnity of the contracts,
and if elements of chance or speculation in-
trude it will be on account of carelessness or
fraud. It is admitted that the effect of the
statute is to make valued policies of those
issued; and the conclusive effect which has
been ascribed to their valuation has never
been condemned as making them wager poli-
cies or as introducing elements of specula-
tion into them.
The statute, then, does not present the al-
ternative of wager policies to indemnity pol-
icies. The change is from one kind of in-
demnity policy U> another kind, from open
policies to valued policies, both of which are
sanctioned bv the practice and law of in-
surance; and this change is the only com-
pulsion of the law. It makes no contract
for the parties. In this it permits absolute
freedom. It leaves them to fix the valuation
of the property upon such prudence and in*
quiry aS they choose. It only ascribes es-
toppel after this is done,— estoppel, it must
be observed, to the acts of the parties, and
only to their acts in open and honest dealing.
Its' presimiptions cannot be urged, affainst
fraud, and it permits the subsequent depre-
ciation of the property to be shown.
We see no risk to insurance companies in
this statute. How can it comeT Not from
fraud and not from change, because, as we
have seen, the presumptions of the statute
do not obtain against mud or dianse in the
valuation of the property. Risk, &en, can
onlv come from the failure to observe care,
— ^that care which it might be supposed,
without any prompting from the law, un-
derwriters would observe, and which, if ob*
served, would make their policies true con-
tracts of assurance, not seemingly so, but
reallv so; not only when premiums are pay-
ing, but when loss is to be paid. The state
surely has the power to determine that this
result is desirable, and to ^accomplish itjeven[666}
by a limitation of the right of contract
claimed by plaintiff in error.
It would be idle and trite to say that no
right is absolute. 8io utere tuo ut alienum
non ksdas is of universal and pervading ob-
ligation. It is a condition upon which all
property is held. Its application to particu-
666
06fr-568
SUPBBMB COUBT OF THE UnITBD StATBS,
Oct. Tbbx.
lar conditions most necessarily be within
the reasonable discretion of the legislative
power. When snch discretion is exercised
in a given case by means approi>riate and
which are reasonable, not oppressive or dis-
criminatonr, it is not subject to constitu-
tional objection. The Missouri statute
comes within this rule.
The cases cited by plaintiff in error, which
hold that the legislature may g[ive the ef-
fect of prima facie proof to certain acts^^ut
not conclusive proof, do not apply. They
were not of contract nor gave effect to con-
tracts. It is one thin^ to attribute effect to
the convention of parties entered into under
the admonition of the law, and another thing
to give to circumstances, maybe accidental,
conclusive presumption and proof to estab-
lish and force a result against property or
liberty.
The statute is not subject to the condem-
nation that it regulates contracts made or
rights acquired prior to its enactment; and
we mav repeat the language of Mr. Justice
Field, in Missouri P, Railway Oo, v. Maokey,
that "it cannot be successfully contended
that the state may not prescribe the liabili-
ties under which corporations created by its
laws shall conduct their business in the fu-
ture, where no limitation is placed upon its
power in this respect by their charters. Leg-
islation to this effect is found in the statute
books of every state."
That which a state may do with corpora*
tions of ite own creation it may do with for-
eign corporations admitted inte the state.
This seems to be denied, if not generally, at
least as to plaintiff in error. The denial is
extreme and cannot be mainteined. The
power of a stete to impose conditions upon
foreign corporations is certeinly as exten-
sive as the power over domestic corpon^ons,
and is fully explained in Hooper v. Calif oT'
nia, 156 U. S. 648 [30: 297, 5 Inters. Com.
Rep. 610], and need not be repeated.
[M^/] *It is urged that the statute is not made a
condition upon foreign corporations. Gut
this view is not open to our acceptance. The
supreme court of Missouri, exercising ite
function of interpretetion, decides that it is.
But we do not care to enter fully into the
subject of conditions on corporations, foreign
or domestic The stetute is susteined on
the grounds that we have given.
The other contentions of plaintiff in error
we do not consider it is necessary to review.
Judgment affirmed.
UNITED STATES, Plff. in Err.,
V.
WALTER S. HARSHA.
. (See 8. C. Reporter's ed. 567-578.)
Judgment, when reviewable hy circuit court
of appeals — vacancy in office of clerk of
circuit court,
1. A judfonent rendered under the act of Con-
gress of March 8, 1887. providing for bring-
ing salts against the United States In an ac-
556
tlon at law In the district eonrt U the Uattre
States for fees due the derk of the Ualtci
States eircnlt conit. Is reviewable b7 the
United States drcnlt ooort of appeals
writ of error.
whick
MkU-
of
if
if
%. The act of July 81, 1894. that
holding an office the annaal salary of
ambonts to $2,500 shall hold any other
did not, f« pmprio vigore, create
In the office of the clerk of the United
eircnlt court for the eastern district of
gan, by reason of the fact that at the
Its taking effect the then lawfol
of that office was also holding tlie
clerk of the United SUtes drcalt
appeals of the sixth circuit.
[No. 127.]
Bulmitted January 11, 1899. Decided Jm^
uary £3, 1899.
CERTIFICATE from the United SUtes Or-
cult Court of Appeals for the Sixth Cir-
cuit certifying certein questions to this court
for instruction in an action brought hj Wel-
ter S. Harsha in the District Court of ths
United Stetes for the Eastern District of
Michigan for his fees as clerk of the Cireait
Court of the United Stetes for that district,
in which action the District Court rendered
judgment in favor of the said Harsha, which
judgment was brought up for review to mid
Circuit Court of Appeals by writ of error.
First question answered in the o/fEnnaties;
second question anstcered im the negmties.
Stetement by Mr. Justice Gvmji
On May 24, 1897, the circuit court of a^
peals for the sixth circuit, upon a writ d er-
ror from that court to review a judspMst
rendered by the district court of the Uaitsd
Stetes for the eastern district of Midiigma in
favor of Walter S. Harsha in an sctioa
brought by him asainst the United Ststss
under the act of March 3, 1887, diap. }$•,
to recover fees as clerk of the circuit eoort
of the United Stetes for that district, lor
services rendered during the first qusrtcr of
the *year 1896, oerUfied to this eoort theUKM^
lowing stetonent of facte and quest ioiw of
law:
''Walter 8. Harsha was dulv appoioted
clerk of the circuit court of the United Ststei
for the eastern district of Michigan, Jvat t,
1882, took the oath of office and filed his ofr
cial bond in the sum of $20,000 on the nat
day, and is now and has from that time ws^
til the present been continuously, under nid
appointment by the judges of said court, ssd
with their continued assent and appmil»
actinff as derk of said court under s boss
fide claim of title to said office, no other ptr>
son having at anv time made aoy daiai rf
title thereto ; nor has his title been othcrtriM
questioned than as hereafter stetcd.
'The said Harsha is now, and has bea coe-
tinuously since his appointment as ckrfc, s
permanent resident of the dtj of Detroit, is
the eastern district of Michigan, where kv
official duties as such clerk are to be p0*
formed, and has durins the whole of md
time, from June 6, 18S2, to the date horsaC
fiven his actual personal attention to tmk
uties, and has net at any time leiuoffd tnm
said district.
ITtV. 1
18N.
Ukitbd Btatbs y. Harsha.
568-871
The aooounts of Hanha as such derk, for
tki Ant quarter of the calendar year 1896,
iMNOitiiig to $482.90, were made, presented,
profed, and allowed by the drcuLt court of
tt0 United States for the eastern district of
Ifidiiffan, as provided by law; said accounts
wert for services actuallv rendered, and were
eorraet, and were duly forwarded to the At-
torney General for examination under his su-
porvision, as provided by statute.
The said Harsha was duly appointed
derk of the United States circuit court of
^^peals for the sixth circuit, June 16, 1891,
wk his oath of office and filed his official
Imid in the sum of $20,000 on th6 same day,
tnd continued to perform tiie duties of the
office of clerk of said court from June 16,
1891, aforesaid, to and including October 2,
1804, and received salary as such derk at the
nte of $3,000 per annum for that time.
'Vn February 24, 1894, Harsha presented
to the judges of said court of appeals his
resignation as such clerk, which resijrnation
WM accepted by said judges October 2, 1894.
19] *npon the presentation at the Treasury
Department of said accounts so for-
warded to the Attorney General, the Comp-
troller of the Treasury, upon his construction
of tbe act of Congress of July 31, 1894, de-
cided ^t a vacancy occurred in the office of
Mid dcork of the circuit court of the United
States, banning August 1, 1894, for the rea-
un that luFter tmit date Harsha continued to
hold the office of clerk of the United States
drenit court of appeals for the sixth circuit,
the annual compensation of which office was
13,000, and that such .vacancy continued
thereafter until the expiration of said first
4niarter of the calendar year 1896, and, upon
tbe ground of such vacancy, disallowed the
said accounts of petitioner as clerk of the
United States circuit court for the eastern
district of Michigan for the said first quar-
ter of the calendar year 1805.
This action was brought by Harsha to re-
cover his fees earned as clerk of the drcuit
court, in the district court of the United
StatM for the eastern district of Michigan,
under the second section of the act of March
3, 1887, entitled*<An Act to Provide for the
Bringing of Suits against the (Government of
the United States;' and after making a find-
ing of facts and stating its conclusions of law
the district court filed the same, and entered
judgment for the petitioner Harsha in the
sum of $482.90. The United States, by its
attorney, then applied to the district judge,
holding the district court for the allowance of
a writ of error from this court fo the district
court. The writ was allowed, and was is-
eued by the derk of this court to the district
•court
"The instruction of the supreme court is
respectfully requested on certain questions of
law arising on the foregoing statement of
facts as follows, to wit:
'^rst question. Can such a judgment
rendered under the act of March 3, 1887, in
the drcuit or district court, be brought be-
fore this court for review in any other mode
than as provided in section 707 of the Re-
vised Statutes for the review by the supreme
172 V. S.
court of judgments of the court of dainu, to
wit, by appeal T
"Secona question. Did the act of July 31,
1894, above referred* to, «• propHof?{yore,ere-[67<^
ate a vacancy in the office of derk of the cir-
cuit court for the eastern district of Michi-
gan, by reason of the fact that at the time
of its taking effect the then lawful incumbent
of that office was also holding the office of
derk of the circuit court of appeals of the
sixth circuit?
''Third question. Does the general rule
that officers de facto may not recover by suit
compensation for services rendered as such
apply to a case in which the incumbent holds
his office by the continued assent and approv-
al of the sole appointing power, under a oona
fide claim of title to the office, when no other
person has at any time oAde any claim of
title thereto, and when the only defects in
his title are a failure on the part of the
appointing power to make a formal reap-
pointment and a failure on the part of the
incumbent formally to requalify after a tech-
nical vacation of the ofBce originally held
by him under a valid appointment and quali-
fication T**
Me89ra. Is, A* Pradt, Assistant Attorney
General, and B. 0. Brandenburg for plain-
tiff in error.
Mr. Edwin F. Oonelj for defendant in
error.
*Mr. Justice Gsmj ddivered the opinion[570]
of the court:
This suit bdng an action at law under the
act of March 3, 1887, chap. 359, the judg-
ment of the district court tnerein was, as has
been directly adjudged by this court, review-
able bv the circuit court of appeals upon
writ Of error. 24 Stat, at L. 605 ; Okaae t.
United States, 166 U. S. 489 [39:234];
United Btatee v. King, 164 U. S. 703 [41:
1182]. The first question certified must
therefore be answered in the affirmative.
Mr. Harsha was appointed and qualified
as derk of the circuit court on June 6, 1882,
and has ever since performed all his duties
as such.
On June 16, 1891, he was appointed and
qualified as clerk of the drcuit court of
appeals. On February 24, 1894, he present-
ed to the judges of that court his resigna-
tion of the *(%ce of clerk thereof; and his[6711
resignation was accepted bv them on October
2, 1894. From his appointment until the
acceptance of his resi^ation he performed
all the duties and received the salary of the
derk of that court.
In 1893 it was adjudged by the drcuit
court of appeals, affirming a judgment of the
circuit court, in an action brought by Mr.
Harsha against the United States for serv-
ices as derk of the drcuit court during the
last half of 1801 and the first half of 1892,
that his acceptance of the office and receipt of
the salary as clerk of the circuit court of ap-
peals during that period did not vacate the
office of derk of the circuit court, or deprive
him of the right to the compensation then
sued for. United States v. Haraha, 16 U. S.
A pp. 13.
657
671-574
SoPBBMS Court of the United Statss.
Oct. Tebi,
The subject of the present suit is the right
of Mr. Harsha to recover compensation for
his eervices as clerk of the circuit court dur-
ing the first quarter of the year 1895.
On July 31, 1894, Congress, by a provision
inserted in the middle of a general appropria-
tion act, and as an addition to a section re-
lating to the pay of assistant messengers,
firemen, watchmen, laborers, and charwomen,
enacted as follows: "No person who holds
an office, the salary or annual compensation
attached to which amounts to tlie sum of
two thousand five hundred dollars, shall be
appointed to or hold anv other office to which
compensation is attached, unless specially
heretofore or hereafter specially authorized
thereto by law; but this shall not apply to
retired officers of the Army and Navy when-
ever they may be elected to public office or
whenever the Presidmt shall appoint them to
office by and with the advice and consent of
the Senate." Act of July 31, 1894, chap.
174, S 2, 28 Stat, at L. 162, 205.
Tlie second question certified b^ the cir-
cuit court of appeals to this court is whether
this act, em praprio vigore, created a vacancy
in the office of clerk of the circuit court, "by
reason of the fact that at the time of its
taking effect the then lawful incumbent of
that office was also holding the office of derk
of the circuit court of appeals."
The provision of the act in question, so far
as concerns the question now before this
£S72]court, is simply this: "No person *who holds
an office, the salary or annual compensation
attached to which amounts to the sum of
two thousand five hundred dollars, shall be
appointed to or hold any other office to which
compensation shall be attached." If the ap-
pointment to the other office were made after
the passage of the act, it might well be held
to be void, leaving the person in possession
of the first office. But when, at the time of
the passage of the act, a person is holding
two offices, to each of which compensation is
attached, and the compensation of either or
both of which is by an annual salary, the act
does not say which of the two offices he shall
be deemed to have resigned, or which of the
two he shall continue to hold. If the com-
pensation of each office were a fixed salary
of two thousand five hundred dollars or more,
an election by the incumbent would be the
only possible method of determining which
office ne should continue to hold. He must
have the same right of election between the
two offices, when one is paid by a fixed salary
and the other by fees. The act. while it
makes the two offices incompatible for the
future, does not undertake to compel the de-
fendant to give up the office which is paid by
fees, when ne prefers to hold that office and
to give up the one which is paid by a salary.
At the time of the taking effect of the act,
Mr. Harsha was actually holding under law-
ful appointments, and was performing the
duties of, two offices, that of clerk of the cir-
cuit court, paid by fees, and that of derk of
the circuit court of appeals, paid by a salary
of three thousand dollars. He never showed
any intention of resigning or abandoning the
former office; and he had done all that he
onnld to get rid of the latter office, by pre-
858
senting his formal resignation thereof to tk
judges Hve months before the passage of the
act, and never attempting to recall that re»>
ignation. Even if his resignation of this of-
fice could not take full effect until aeeepted,
yet such resignation, coupled with his va-
equivocal intention to retain the otbo- oftee,
prevented the act of Congress from creatiBg,
of its own force and independently of any ac-
tion of his, a vacancy in that office. The hti
that so long as his resignation of the one of-
fice had not been accepted, and while he *eas{ST3
tinned to perform the duties of both oflkca,
he claimed the compensation attadwd to
both, — ^whAher this was owin^ to his ofir-
looking the provision in question, or to kit
own understanding of its effect, — has w
tendency to show that he elected to retail
the office which he had resigned, and to gh%
up the other.
The second question certified must tiwre-
fore be answered in the negative, and ths
third question becomes immateriaL
Ordered accordingly.
FIRST NATIONAL BANK of Grand FW^
North Dakota, Plff. in Err^
V,
ALEXANDER ANDERSON.
(See 8. C. Reportefa ed. 57S-57C)
National hank, when liahU for motet feih
chased by it.
A national bank which Itself porduses
that It holds as collateral eecsrlty.
has been directed to sell them to s tklrd pv^
ty. may be held liable for their valiM at fur
a eonverslon, even thoush It Is not wItUa the
powers of the bank to sell them as the
er'a ajcent.
[No. 223.]
Submitted January 5, J899, Decided /
ary W, 1899.
IN ERROR to the Supreme Court of tht
State of North Dakota to review a jtid;^
ment of that court affirming the judfmrst rf
the district court for the first judicial £t-
trict of North Dakota in favor of AleraBier
Anderson in an action brought by himataiHl
the First National Bank of Qraad rabk
North Dakota, for the balance of the rtim
of certain notes belonging to the plaiatiff.
which the bank had converted. On mo^km to
dismiss or affirm. Affirmed.
See same case bdow, 4 N. D. 18t, 5 K. D-
80, 461. 6 N. D. 497.
The facts are stated in the opinion.
Mr. Henry "W. Plielpa for defeadaat ii
error in favor of motion to dismiss or aflm
Messrs. Burke Corbet and W. M. M^
for plaintiff in error in opposition to sete-
•Mr. Chief Justice FmUer driivmi «Kntl
opinion of the court:
This was an action at law brovrtt If A^
derson against the First Natknd Bsik «
GrandForka, NortiiDakota. la «tkedlitrM[If<i
court for the first Judicial diatriel of Hirtk
Dakota, to recover the belaaea of thi nlM
lit IT. i^
1888.
Unitbd States, «s rek Bebnabdin, ▼. Dubll.
574-075
of eertain notes belonging to Anderson, which
he alleged the bank Imd converted.
The notes amounted to seven thousand dol-
Itn, secured by mortgage, and had been in-
dorsed, and the mortage assigned, to the
bank as collateral security for a loan of two
thousand dollars, and Anderson had author-
ized the bank to sell the notes to a third par-
ty, take up the loan, and remit the balance.
But, instead of doing this, the bank, accord-
ing to Anderson, n&d undertaken to pur-
chase the notes itself, and had not accounted
for Uieir value.
The cause was tried four times, and four
times carried to the supreme court of North
Dakota. 4 N. D. 182, 5 N. D. 80, 451, 6 N.
D. 497. On the fourth appeal a judgment in
fsYor of Anderson was affirmed by the su-
preme court, and this writ of error to revise
It was allowed, which defendant in error now
moves to dismiss, or, if that motion is not sus-
tained, that the judspnent be affirmed.
By exceptions to Uie admission of certain
testuuony, taken on the trial, and by the as-
liffnment of errors in the supreme court, plain-
tiff in error raised the point that, under the
statutes of the United States in respect of na-
tional banks, it was not within its power to
become the agent of defendant in error to sell
the notes in question to a third person, and
not within the power of its cashier, who con-
dacted the transaction, to bind the bank by
such contract of agency.
On the third appeal (5 N. D. 451) the su-
preme court ruled that 'Vhen a national
bank holds notes of its debtor as collateral
to his indebtedness to the bank, it may law-
fully act as a^ent for him in the sale of such
notes to a third person, such agency being
merely incidental to the exercise of its con-
ceded power to collect the claim out of such
collateral notes." But further, that even
thouffh the act of agency were ultra vires,
yet if the bank, instead of selling the notes
to a third person, had, without the owner's
Imowledffe, sold them to itself, it would be
guilty of conversion, and could be held re-
sponsible therefor. As to the cashier, the
7S]court hdd that on the *pleadinffs and facts
in the case hie act was the act m the bank.
The supreme court in its opinion on the
fourth appeal (6 N. D. 407, 509), among
other things, said: "The question of ultra
vires has been already discussed in a previ-
ous opinion. See 5 N. D. 451. We have
nothing to add on that point. The recent
decision of t^e Federal Supreme Court cited
by counsel for appellant ( California Bank v.
Kennedy, 167 XL S. 362 [42 : 198] ) , does not
^appear to us to call for any change of our
former ruling on this Question. What we
said in our opinion on tne third appeal, on
the subject of the authority of the cashier to
bind the defendant by creating the relation of
Srindpal and agent between plaintiff and
efenaant, is stiU applicable to the case on
the record now before us. In its answer and
the brief of its counsel the defendant admits
that the writing of the letters referred to
was its act, and not the act of an unauthor-
ized agent. By its own pleading and admis-
sions it has precluded itself from raisins the
point that the cashier had no power to bind
172 U. 8.
it by agreeing that the bank would act as
agent for the plaintiff."
The arj^ument urged in support of the mo-
tion to dismiss is, principally, that the judg-
ment of the state supreme court rested on
two grounds, one of which, broad enough in
itself to sustain the judgment, involvSi no
Federal question.
This contention is so far justified as to
give color to the motion, although under our
decision in Logan County National Bank v.
Totonsetid, 139 U. S. 67 [35: 107], we must
decline to sustain it, while at the same time
that case affords sufficient authority, if au-
thority were needed, for an affirmance of the
judgment.
lliere, bonds had been sold and delivered to
a national bank at a certain price, under an
agreement that the bank would, on demand,
replace them at that or a less price; a^d the
bank had refused compliance. In an action
against the bank, its defense was in part
that, by reason of want of authority to make
the alleged agreement and purchase, it could
not be held liable for the bonds on any
ground whatever. It was decided, however,
that the national banking act did not ffive
*a national bank an absolute right to retiBin[6701
bonds coming into its possession by purchase
under a contract which it was without legal
authority to make, and that although the
bank was not bound to surrender possession of
them until reimbursed to the full amount
due to it, and might hold them as security
for the return of the consideration paid, yet
that when such amount was returned, or ten*
dered back to it, and the return of the bonds
demanded, its authority to retain than no
longer existed; and from the time of such de-
mand and its refusal to surrender the bonds
to the vendor or owner, it became liable for
their value on gprounds of implied contract,
apart from the original agreement under
which it obtained them.
Here, the bank was found to have itself
purchased notee which the owner had author-
ized it to sell to a third party, and on general
principles of law it was hdd liable for their
value as for a conversion, even though it was
not within its powers to sell them as the
owner's agent.
We are of opinion that the Supreme Court
of North Dakota committed no error in th9
disposition of any Federal question, and ito
judgment is affirmed.
UNITED STATES, 00 rel ALFRED L»
BERNARDIN, Plff. in Err.,
V.
CHARLES H. DUELL, Commissioner «f
Patents.
(See 8. C. Reporter's ed. 576-689.)
Appeal from Commissioner of Patents ta
court of appeals of the District of Co*
lumhia.
The Commissioner of Patents In deciding an In-
terference case exerdses jadldal fanctlons,
and therefore the provisions of the act j^
559
676-0 :d
Supreme Court of the Uiotid States.
Oct. Tbbm,
Oonfrress of February 9. 1893, glTing an ap-
peal from hl8 decisions to the court of appeals
of the District of Columbia is not onconstitii-
tlonal on the ground that It proTidea for the
reTlsion of an exeeatlTe act bj a Jodldal
trlbonaL
[No. 444.]
Argued December 1, t, 1898, Decided Jamh
ary tS, 1899.
IN ERROR to the Court of Appeals of the
District of Columbia to review a judg-
ment of that court afilrming the judgpent of
the Supreme Court of that District in favor
of the defendant, Charles H. Dudl, Commis-
sioner of Patents, dismissing a petition for a
writ of mandamus filed hjr Alfred L. Bemar-
dhi to compel the commissioner to issue a
patent to hun. Affirmed,
See same case Mow, 7 App. D. C. 452, 10
App. D. C. 294, 11 App. D. C. 91, 13 App. D.
C. 379. See also 169 U. S. 600 [42: 873].
Statement by Mr. Chief Justice Fullers
In an interference proceeding in the Patent
Office between Bemardin ana Northall, the
Commissioner, Seymour, decided in favor of
Bemardin, whereupon Northall prosecuted
an appeal to the court of appeals of the Dis-
trict of Columbia. That court awarded
Northidl priority and reversed the Commis-
sioner's decision. 7 App. D. C. 452. Ber-
nardin, notwithstanding, applied to the Com-
missioner to issue the patent to him and
tendered the final fee, but the Commissioner
refused to do this in view of the decision of
the court of appeals, whidi had been duly
certified to him. Bemardin then applied to
the supreme court of the District of Colum-
bia for a mandamus to compel the commis-
sioner to issue the patent in accordance with
his prior decision, on the ground that the
statute providing for an appeal was uncon-
stitutional and the judgment of the court of
appeals void for want of jurisdiction. The
application was denied, and Bemardin ap-
{578]pealed to *the court of appeals w4iich c^f-
firmed the Jud^ent 10 App. D. C. 294.
Seymour resigned as Commissioner and
was succeeded by Butterworth, and Bemar-
din recommenced his proceeding, which
again went to judgment in the supreme court,
and the court of appeals. 11 App. D. C. 91.
The case was brought to this court, but
abated in consequence of the death of Butter-
worth. 1 69 U. S. 600 [42 : 873] . Bemardin
thereupon brought his action affainst Duell,
Butterworth's successor, and judgment
against him was again rendered in the Dis-
trict supreme court, that judgment affirmed
1^ the court of appeals, and the cause
brought here on writ of error.
The following sections of the Revised Stat-
utes were referred to on the argument:
"See. 4906. The clerk of any court of the
United States, for any district or territory
wherein testimony is to be taken for use in
any contested case pending in the Patent
Office, shall, upon the application of any par-
-(^ thereto, or of his agent or attorney, issue
M subpcBna for any witness residing or beini^
within such district or territory, command -
1160
inff him to appear and testify b^ore any
officer in such district or territory authorised
to take depositions and affidavits, at any
time and place in the subpcsna stated. B«t
no witness shall be required to attend at aay
place more than forty miles from the fribet
where the subpoena is served upon him.
"Sec 4907. £very witness duly subpcnaei
and in attendance shall be allowed the mmm
fees as are allowed to witnesses attending tte
courts of the United States.
"Sec. 4908. Whenever any witness, alter
being duly served with audi sobpoaa,
n^lects or refuses to appear, or after appear-
ing refuses to testify, the judge of the ooort
whose clerk issued the subjKena may, on proof
of such neglect or refusal, enforre obedtfw
to the process or punish tbe disobedieoee, as
in other like cases. But no witness shall bt
deemed guilty of contempt for disobcyinf
such subpoena, unless his fees and traTriiar
expenses in going to, returning from, aad
one day's attendance at, the place of ezaai-
natlon, *are paid ortendered him at tl^tim^i^
of the service of the subpoena ; nor lor rsfot-
ing to disclose any secret invoition or Sb-
covery made or owned by hims^.
"Sec. 4909. Every applicant for a patast
or for the reissue of a patent, any of ths
claims of which have been twiee rejected, aal
every parbr to an interferenee, may appeal
from tne decision of the primary examiner,
or of the examiner in chai^ of interferencei
in such case, to the board of examiners in
chief; having once paid the fee for sn^ ap>
peal.
"Sec. 4910. If such party to dissatisiel
with the decision of the examiners in chief,
he may, on payment of the fee prescribed, ap-
peal to the Commissioner in person.
"Sec. 4911. If such party, except a party
to an interference, is dissatisfied with the it-
cision of the Commissioner, he may ^PP^ to
the supreme court of the District of ColeB-
bia, sitting in banc.
"Sec. 4912. When an appeal is taken to the
supreme court of the District of Cobmbia.
the appellant shall give notice thereof to th*
Commissioner, and file in the Patent OAce.
within such time as tbe CommissSoner shall
appoint, his reasons of appeal, spedfieaDy «(
forth in writing.
"Sec. 4913. The court shall, before heari^r
such appeal, give notice to the Coinmi9fQ<n«r
of the time and place of the hearing, end ea
receiving such notice the Commifwioner ^all
give notice of such time and place ia rark
manner as the court may prescribe, to aB
oarties who appear to be interested tbcrvfe.
The party appealing shall lay before the
court certified copies of all the oHgiiu] pe-
pers and evidence in the case, and the Ons-
missioner shall furnish the eonrt with the
grounds of his decision, fully set forth is
writing, touching all the points inrolTcd W
the reasons of appeal. And at the request ti
any party interested, or of the courts tht
Commissioner and the examiners may be tK>
aroined under oath, in exptanation ef the
principles of the thing for which a pateat ii
demanded.
**Sec. 4914. The court, on petition, Aal
ITt IT. «.
i8ia
UiiiTBD States, m reL Bbbnardin, y. Duell.
579-583
betr and determine such appeal, and reviea
the decision appealed from In a simmiary
way, tm the evidence produced before the
Comnuasioner, at such early and convenient
IO]tiiiie as the court may *appoint; and the re-
Tition shall be confined to the points set forth
in the reasons of appeal. After hearing the
etae the court shall return to the Gommis-
•ioner a certificate of its proceedings and de-
cision, which shall be entered of record In
the Patent Oflfice, and shall govern the fur-
ther proceedings in the case. But no opin-
ion or decision of the court in any such case
•hall preclude any person interested from
the right to contest the validity of such pat-
ent in any court wherein the same may be
called in ouestioB.
"Sec. 4916. Whenever a patent on applica-
tion is refused, either by the Commissioner of
Patents or by the supreme court of the Dis-
trict of Columbia upon appeal from the Com-
missioner, the applicant may have remedy
hy bill in equity; and the court having cogni-
sance thereof, on notice to adverse parties
and other due proceedings had, may adjudge
that such applicant is entitled, according to
law, to receive a patent for his invention, as
sp«dfied in his daim, or for any part thereof,
as the facts in the case may appear. And
such adjudication, if it be in favor of the
right of the applicant, shall authorize the
Conmiissioner to bsue such patent on the ap-
plicant filing in the Patent Office a copy of
the adjudication, and otherwise complying
with the requirements of law. In all cases,
where there is no opposing party, a copy of
the bill shall be served on the Commissioner;
and all the expenses of the proceeding shall
be paid by the applicant, wnether the final
decision is in his favor or not."
Section 780 of the Revised Statutes of the
District of Columbia reads thus:
"Sec 780. The supreme court, sitting in
banc, shall have jurisdiction of and snail
hear and determine all appeals from the deci-
sions of the Commissioner of Patents, in ac-
eordanoewith the provisions of sections forty-
nine hundred and eleven to section forty-nine
hundred and fifteen, inclusive, of chapter one,
title IX of the Revised Statutes, Tatents,
Trademarks, and Copyrights.' "
Section nine of the ^'act to establish a court
of appeals tor the District of Columbia, and
for other purposes,** approved February 9,
1893 (27 Stat, at L. 434, chap. 74), is—
1] •**8ec 9. That the determination of appeals
from the decision of the Commissioner of Pat-
ents, now vested in the general term of the
supreme court of the District of Columbia,
in pursuance of tiie provisions of section
seven hundred and eighty of the Revised
Statutes of the United States, relating to the
District of Columbia, shall hereafter be and
the same is herol^ vested in the court of ap-
peals created by this act; and, in addition,
any party aggrieved hv a decision of the Com-
misitoer intents m any interference case
may Mpeal therefrom to said court of ap-
Ifetsfv. Jnliaa O. Dowell and Oeovse
0. HaMlton for plaintiff in error.
Mr. Jolka K. RioliAras, Solicitor Gen-
eral, for defendant in error.
Mr. Jeremiah M. Wilson submitted a
brief for Assignee of William H. Northall,
by special leave of court.
*Mr. Chief Justice FnUer delivered theff^Sl]
opinion of the court :
The court of appeals for the District of
Columbia adjudged that Northall was enti-
tled to the ppitent. By section eight of the
act establishing that court (27 Stat, at L.
434, chap. 74), it is provided that any final
judgment or decree thereof may be revised by
this court on appeal or error in cases wherein
the validity of a statute of the United States
is drawn m question. The validity of the
act of Congress allowing an appeal to the
court of appeals in interference cases was
necessarily determined when that court went
to judflpnent, yet no attempt was made to
bring uie case directly to this court, but the
relator applied to the district supreme court
to compel the commissioner to issue the pat-
ent in disregard of the judgment of the court
of appeals to the contrary, and, the applica-
tion having been denied, the court of ap-
peals was called on to readjudicate the ques-
tion of its own jurisdiction.
The ground of this imusual proceeding, by
which the lower court was requested to com-
pel action to be taken in defiance *of the oourt[68S]
above, and the latter court was called on to
rejudge its own judgment, was that the de-
cree of the court of appeals was utterly void
because of the unconstitutionality of the stat-
ute by which it was empowered to exercise
jurisdiction.
Nothing is better settled than that the .
writ of mandamus will not ordinarily be
granted if there is another legal remedy, nor
unless the duty sought to be enforced is clear
and indisputable; and we think that, imder
the circumstances, the remedy by appeal ex-
isted; and that it is not to be conceded that
it was the duty of the Commissioner to diso-
bey the decree because in his judffment the
statute authorizing it was unconstitutional,
or that it would have been consistent with .
the orderly and decorous administration of
justice for the District supreme court to
hold that the court of appeals was absolutely
destitute of the jurisdiction which it had de-
termined it possessed. Even if we were of
opinion that the act of Congress was not in
harmony with the Constitution, every pre-
sumption was in favor of its validity, and
we cannot assent to the proposition that it
would have been competent for the Commis-
sioner to treat the original decree as absc
lutely void, and without force and effect at
to all persons and for all purposes.
But as, in our opinion, the court of appeals
had jurisdiction, we prefer to affirm the
judgment on that grround.
The contention is that Congress had no
power to authorize the court of appeals to re-
view the action of the Commissioner in an
interference case, on the theory that the Com-
missioner is an executive officer ; that his ac-
tion in determining which of two claimants
is entitled to a patent is purely executive}
and that therefore such action cannot be Hub-
jected to the revision of a Judicial tribunal.
Doubtless, as was said in [Dm,] Murray,
17t V. S.
U. 8., Book 4S.
86
661
182-585
S'/FBEMS Court of the United IdrATBa.
Li '
y
▼. Roboken Land d Improv. Company, 18
How. 284 [15: 378], GoDgress cannot bring
under the judicial power a matter which,
from its nature, is not a subject for judicial
determination, but at the same time, as Mr.
Justice Curtis, delivering the opinion of the
court; further observed, "There are matters
l68S]involving pi^lic *rights, which maj^ be pre-
sented in such form that the judicial power
is capable of actinff on them, and which are
susceptible of judicial determination, but
which Congress may or may not bring within
the cognizance of the courts of the United
States, as it ma^ deem proper/' The instan-
ces in which this has been done are numer-
ous, and many of them are referred to in
Fong Yue Ting v. Untied States, 140 U. S.
714, 715, 728 [37: 913, 915, 918].
Since, under the Constitution, Confess
has power '^ promote the progress of science
and useful arts, by securing for limited times
to authors and inventors the exclusive right
to their respective writings and discoveries,"
and to make all laws which shall be neces-
sary and proper for carrying that expressed
power into execution, it follows that Con-
gress mav provide such instrumentalities in
respect of securing to inventors the exclusive
right to their discoveries as in its judj^ent
will be best calculated to effect that object.
And by reference to the legislation on the
subject, a comprehensive sketch of which
was given by Mr. Justice Matthews in But-
tenvarth v. [United States,] Hoe, 112 U. S.
50 [28: 656], it wiU be seen that from 1790
Congress has selected such instrumentalities,
varying them from time to time, and since
1870 has asserted the power to avail itself
of the courts of the District of Columbia in
that connection.
The act of 1790, chap. 7 (1 Stat, at L.
109), authorized the issue of patents by the
Secretary of State, the Secretary for the De-
partment of War, and the Attorney Ceneral,
or any two of them, "if the^ shall deem the
invention or discovery sufficiently useful and
* important," and this was followed by the act
of 1703, chap. 11, 1 Stat, at L. 318, authoriz-
ing them to be issued by the Secretary of
State upon the certificate of the Attorney
General that they were conformable to the
act. The ninth section of the statute pro-
vided for the case of interfering applications,
which were to be submitted to the aecision of
three arbitrators, chosen one by each of the
parties and the third appointed by the Secre-
tary of State, whose aecision or award, or
that of two of them, should be final as re-
spected the granting of the patent.
Then came the act of 1836, chap. 357 (5
(584]Stat. at L. 117), creating *in the Department
of State the Patent Office, "the chief officer
of which shall be called the Commissioner of
Patents," and "whose duty it shall be, under
the direction of the Secretary of State, to su-
perintend, execute, and perform all such acts
and things touching and respecting the
granting and issuing of patents for new and
useful discoveries, inventions, and improve-
ments as are herein provided for, or shall
hereafter be by law directed to be done and
performed." ... By that act it was de-
clared tu be the duty of the Commissioner to
662
issue a patent if he "shall deem it to be
ciently useful and imnortant;" and, in
of his refusal, the applicant was (sec 7) m>
cured an appeal from his decision to a board
of examiners, to be composed of three dun-
terested persons appointed for tliat porpoae
by the Secretary of State, one of wbooi, at
least, was to be selected, if practicable
convenient, for his knowledge and akOI
the particular art, manufacture, or bra
of science to which the allege! inventioa
pertained. The decision of this board ~
certified to the Commissioner, it wi
that "he shall be governed thereby im tbs
further proceedings to be had on siiicli appli-
cation." A like proceeding, b^ way of a^
peal, was provide in cases of intcrfcrenea.
By section 16 of the act a remedy by Inll m
equity, still existing in sections 4915, 4Ml^
Revised Statutes, was given as between inters
fering patents or whenever an appUentun
had been refused on an adverse decisioa of a
board of examiners. By section 1 1 of the ad
of 1839, chapter 88 (5 Stat at K 354), m
modified by the act of 1852, chapter 107 (19
Stat, at L. 76), it was providea that in a&
cases where an appeal was thus allowed by
law from the decision of the Commimtiama
of Patents to a board of examiners, the party,
instead thereof, should have a right to ■ppra 1
to the chief judge or to ^ther of the aaais-
tantjud^of the circuit courted the Distrkt
of Colunu>ia ; and by section 10 the proriaaoas
of section 16 of the act of 1836 were extcadsi
to all cases where patents were refnaed Iv
any reason whatever, either l^ the Coima»
sioner or by the chief justice of the DistrkI
of Columbia upon appeals from the derisioa
of the Commissioner, as well ak where the
*same shall have been refused on aeeonai o^Hl
or by reason of interferenee with a pitiiuas
ly existing patent.
By the act of 1849, chapter 106 (9 StaL at
L. 395), the Patent Office was transferred ts
the Department of the Interior. The act si
1861, diap. 88 (12 Stat, at L. 246),
the office of examiners in chief, ''for the
pose of securing greater uniformity dm
m the grant and refusal of lettera patvl
. . . to be composed of persons of eone*
tent leffal knowledge and scientific abfliCT,
whose duty it shall be, on the written petf-
tion of the applicant for that purpoae htiaf
filed, to revise and determine upon the valif
ity of decisions made by examiners wht
verse to the iprant of letters patent ; am
to revise and determine in like manner
the validity of the decisions of examiners ia
interierence cases, and when req[uired hf the
Commissioner in applieaUons for the czti»
sion of patents, and to periorm such othg
duties as may be assigned to them bj tbe
Commissioner; that from their deciiio— ap>
peals may be taken to the Conunissioaer si
Patents m person, up<m payment of the ffss
hereinafter prescribea ; that the said
ers in chief shall be governed in their
b^ the rules to be prescribed by the
sioner of Patents.*^
The act of July 8, 1870 ( 16 SUt at L. IM.
chap. 230) , revised, consolidated, and
ed tiie statutes then in force on the
and by section 48 an appeal to the
17t
. Uhitbd States, ex reh BsRNABDm. v. Dxtell.
:: 83-588
court of the District of Colombia sitting in
btne was provided for, whose decision was
to go?em tne further proceedings in the case
(i 50) ; and the provisions of the act mate-
rial to the present inquiry were carried in
fubfisnoe into the existing revision*
^ the act of February 0, 1893, the deter-
mination of appeals from the Commissioner
of Patents, which was formerly vested in the
ffcneral term of the supreme court of the
District, was vested in the court of appeals,
and, in addition, it was provided that "any
party aggrieved by a decision of the Com-
mimoner of Patents in any interference case
mav appeal therefrom to said court of ap-
As one of the instrumentalities designated
^JbyCongrenin *ezecutionof the power granit-
ed, the office of Commissioner of Patents was
ereated, and though he is an executive officer,
geiierally speaking, matters in the disposal of
which he exercises functions judicial m their
nature may properly be brought within the
coenizance of the courts.
Now, in deciding whether a patent shall
issne or not, the Commissioner acts on evi-
dence, finds the facts, applies the law, and
decides questions affecting not only public
bat private interests; and so as to reissue,
or extension, or on interference between con-
testing claimants; and in all this he exer-
cises judidal functions.
In Butterworth v. [United Siatea,'] Hoe,
tupra, Mr. Justice Matthews, referring to the
constitutional provision, well said:
The legislation based on this provision
regards the right of property in the inventor
as the medium of the public advantage de-
riTed from his invention; so that in every
grant of the limited monopoly two interests
are involved, that of the public, who are the
grantors, and that of the patentee. There
are thus two parties to every application for
a patent, and more, when, as in case of inter-
fering daims or patents, other private inter-
ests compete for preference. The questions of
fact arising in this field find their answers
in every department of physical science, in
every brancn of mechanicfu art; the ques-
tions of law, necessary to be applied in the
settlement of this class of public and private
rijghts, have founded a special branch of tech-
nical jurisprudence. The investigation of
erery daim presented involves the adjudica-
tion of disputed questions of fact upon sci-
entific or legal principles, and is tnerefore
essentially judicial in its character, and re-
quires the intelligent judgment of a trained
body of skilled ofncii^s, expert in the various
branches of science and lurt, learned in the
history of invention, and proceeding by fixed
mles to systematic conclusions."
That case is directly in point and the ratio
decidendi strictly applicable to that before
ns. The case was a suit in mandamus
brought by the claimant of a patent in whose
favor the Commissioner had found in an in-
terference case, to compel the Commissioner
to issne the patei^t to him. The Commis-
^Woner *had refused to do this on the ground
that the defeated party had appealed to the
Secretary of the Interior, who had reversed
the Commissioner's action, and found in ap-
172 U. 8.
pellant's favor. This court held that while
the Commissioner of Patents was an execu-
tive officer and subject in administrative or
executive matters to the supervision of the
head of the department, yet that his action
in deciding patent cases was essentially ju-
dicial in its nature and not subject to review
by the executive head, an appeal to the
courts having been provided for. And among
other things it was further said:
"It is evident that the appeal thus given
to the supreme court of the District of Col-
umbia from the decision of the Commissioner
is not the exercise of ordinary jurisdiction
at law or in equity on the part of that court,
but is one in the statutory proceeding under
the patent laws whereby that tribunal is in-
terposed in aid of the Patent Office, though
not subject to it. Its adjudication, though
not binding upon any who choose by litiga-
tion in courts of general jurisdiction to ques-
tion the validity of any patent thus
awarded, is nevertheless conclusive upon the
Patent Office itself, for, as the statute de-
clares (Rev. Stat. § 4914), it 'shall govern
the further proceedings in the case.' The
Commissioner cannot question it. He is
bound to record and obey it. His failure or
refusal to execute it by appropriate action
would undoubtedly be corrected and supplied
by suitable judicial process. The decree of
the court is the final adjudication upon the
question of ri^ht; everything after that de-
pendent upon it is merely in execution of it;
it is no longer matter of discretion, but has
become imperative and enforceable. It binds
the whole Department, the Secretary as well
as the Commissioner, for it has settled the
question of title, so that a demand for the
signatures necessary to authenticate the
formal instrument and evidence of grant
may be enforced. It binds the Secretary by
actinff directly upon the Commissioner, for
it miuces the action of the latter final by re-
quiring it to conform to the decree.
"Congress has thus provided four tribun-
als for hearing applications for patents, with
three successive appeals, in which the Secre-
tary of the Interior is not included, giving
jurifldiction *in appeals from the C<mimi8-[588]
sioner to a judicial body, independent of the
Department, as though he were the highest
authority on the subject within it. And to
say that under the name of direction and su-
perintendence the Secretary may annul the
decision of the supreme court of the District
sitting on appeal from the Commissioner,
by directing the latter to disregard it, is to
construe a statute so as to make one part re-
I»eal another, when it is evident both were
ntended to coexist without confiict.
* • . . * •
'^o reason can be assigned for allowing
an appeal from the Commissioner to the Sec-
retary in cases in which he is bv law required
to exercise his judgment on aisputed ques-
tions of law and fact, and in whicn no appeal
is allowed to the courts, that would not
equally extend it to those in which such ap-
CIs are provided, for all are eaually em-
ced in the general antliority of direction
and superintendence. Thar includes all or
563
688-591
SuPBEMB Court of toe IJnitbp Statks.
Oct. Tov
doeB not extend to anv. The true conclu-
sion, therefore, is that in matters of this de-
scription, in which the action of the Com-
missioner is quasi-judicial, the fact that no
appeal is expressly given to the Secretary is
conclusive that none is to he implied."
We perceive no ground for overruling that
ease or dissenting from the reasoning of the
opinion; and as the proceeding in the court
of appeals on an appeal in an interference
controversy presents all the features of a
dvil case, a plaintiff, a defendant, and a
judge, and deals with a Question judicial in its
nature, in respect of inddt the judgment of
the court is final so far as the particular ac-
tion of the Patent Office is concerned, such
judgment is none the less a judgment ''be-
cause its effect may be to aid an administra-
tive or executive body in the performance of
duties legally imposed upon it by Congress
in execution of a power granted by the Con-
stitution." Interstate Commerce Commission
T. BHmson, 154 U4.8. 447 [38: 1047, 4 In-
ters. Com. Rep. 545].
It will have been seen that in the gradual
development of the policy of Congress in
dealing with the subject of patents, the rec-
o^ition of the judicial character of the ques-
tions involved became more and more pro-
nounced.
680] *By theactsof 1839 and 1852 an appeal was
given y not to the circuit court of the District
of Columbia, but to the chief judge or one
of the assistant judges thereof, who was thus
called on to act as a special judicial tribu-
nal. The competency of Congress to make use
of such instrumentality or to create such
a tribunal in the attainment of the ends
of the Patent Office seems never to have been
questioned, and we think could not have be^
successfully. The nature of the thing to be
done being judicial, Congress had power to
provide for judicial interference through a
rsial tribunal {United States v. Ooe, 156
S. 76 [39 : 76] ) ; and a fortiori existing
courts of competent Jurisdiction might be
availed of.
We agree that it Is of vital importance
that the line of demarcation between the
three great departments of government
should be observed, and that each should be
limited to the exercise of its appropriate
powers ; but in the matter of this app^ we
and no such encroachment of one department
on the domain of another as to Jnsufy ua In
lK>lding the act in question onoonstitutioiial.
Judgment afirmed.
NORTHERN PACIFIC RAILWAY COM-
PANY, Appt..
V,
WILLIAM V. MYERS, Treasurer of Jeffer-
son County, Montana.
(See 8. C. Reporter's ed. 589-608.)
Lands included in grant to Northern Pa-
cifio Railro€id Oompamg, when suhfeet to
state tawation.
Lands Incladed In the grant to the Northern
Tficlfic Rallrosd Company by the act of Con-
564
gress of July 2, 1864. are subject to state
taxation for their value ss acrlceltoral laaia
aithoaffh they have not been patentai to tbs
railroad company and their mineral or ■■•
mineral character is under invest Igitkm ■■-
der tlie provisions of the act of Cnrngrnts et
February 26, 1895, chap. 181.
[No. 214.]
Argued October tl, 1898, Deeidmd J
29,1899.
APPEAL from a decree of
States Circuit Cooxi of Appeals
the Ninth Circuit reversi^ the aeeree
the Circuit Court of the United States
the District of Montana in favor oi
Northern Pacific Railway Company,
enjoined the enforcement and collortioa
certain taxes levied under the laws of "'
tana against lands within the grant to
Northern Padfie Railroad Oompaij.
firmed.
See same case below, 48 U. 8. App. BUL
tks
If
Statement hy Mr. Justioe MrnKmrnmrnt
rrhis suit involves the vaUdity of a «ai(li
levied under the laws of the Stato ci MaB>
tana ag^nst certain lands lying witUa the
grant to the Northern Pacific Railroad Qmt^
pany, made by the act of Congress, approved
July 2, 1864, chap. 217 (18 SUt. at L 3«»).
It was brought in the etreuit oovrt of the
United Stateslor the distriei of MoateM Iv
the receivers of the Northom Faoiie Bai-
road Company, a Federal eorpormtioa» aai
the receivers were appointed Jij a doeree el
the Federal court.
The suit proceeded in the eireoit eovt ii
the name of said receivers to a bearing ea
demuri*er, and to a sobmissioii oi the eMe
upon bill, answer, and stipulated faefea. Oa
the twelfth of November, 18M» H was ettr
ulated and represented to the otmrt tkat tie
Northern Pacific Railway Oompaay
chased the property in question peading
litigation, and it was agreed ana tiMrei
ordered by the court that the NoitJwia
cific RaUwau Company be eobi ~
plaintiff in plactof the reedvera.
on a decree was passed on the rixteeaUi mf
of December in favor of the eomplaiasat* m-
joining the enforcement and coUeetioa eltts^^
taxes. From thia«deereethe defeadaaL Wn4W
iam Myers, county treasurer, appealed to Ifts
circuit court of appeals, whidi revied thi
decree of the dreuit court. Jfyert t. Verl^
em Paeifie Ry. Co. 48 U. a App. AM. tte
plaintiff raRwar company takea Hds -^.
It was agreed 'Hhat the sole qaestiea
sired to be submitted upon tha ' ^'
and this stipulation, fa irhathei
described in the biU were eobieet to tnaUsi
under the laws of the United SUtai aai el
the state of Montana." This beli^ te mkf
question submitted, the aUegatioas ef Hit
pleadings and statements of m sUpelitlw
not bearing on that ouestioB seed net Is
stated ; and it is sufficient to note that Iki
bill and f^tipulation showed the {neorperatka
of the Northern Pacific Railroad Oiiyay
by the net of July 2. 1864 ; its power le sea
struct a railrmid from LaJte Saperior le ^
iTt ir. fi^
1886L
NoBTHBBN Pacific R. Co. ▼. Mtsbs.
501-504
g«i nimd; the grant of land to it by section
S, which is quoted hereafter; the perform-
ance by the railroad company of all the con-
ditions of the grant, both provisional and
final, including the construction of the road
and its acceptance by the United States; and
the freedom of the lands from pre-emption
daims and rishts.
Prior to the attempted assessments and
tax levies assailed, the lands were surveyed
by the United States or its authority, and
were reported by the surveyors making such
nzrvm to be agricultural lands, nonmin-
eral m character; and the company pre-
pared, in the manner prescribed by the Sec-
retary of the Interior, lists of the lands
dahned by it under the grant, including the
linda in controversy, and filed them in the
proper district land office, paying the fees
Qiareon; and attached to each of said lists
WIS an affidavit of the land commissioner of
the railroad company, in which it was af-
firmed "that the foregoing list of lands
which I hereby select is a correct list of a
portion of the public lands claimed by said
Northern Pacific Railroad Company as inur-
ing to the said company" under its grant by
the act of Congress of July 2, and a loint
rsiplution approved May 31, 1870, and 'Hhat
the said lauds are vacant, unappropriated,
sad are not interdicted mineral or reserved
lands, and are of the character contemplated
ijsf the ^grant, being within the limdt of forty
miles on each side of the line of route for a
continuous distance of , being a portion
of said lands for a section of ^miles of
•aid railroad, commencing at and end-
ing at .*'
The said lists were duly filed, and their ao-
eoracy tested by the district land officers,
and so certified, and it was also certified that
the filing was allowed ; that they were sur-
veyed public lands within the limits of the
grant, "and that the same are not or is any
part thereof returned and denominated as
mineral land or lands." It was also certified
that no claims were on file against the lands,
and that the fees were paid."
The lists were transmitted to the office of
the Commissioner of the General Land Office.
The stipidation shows the manner of ex-
amination in the land office, and "that such
lands are not patented or certified to the
eompany until clear lists are approved by the
secretary." And the lists have not yet been
examined or passed or patented to the com-
pany, and that the mineral or nonmineral
diaraeter Is under investigation under the
provisions of the act of Congress of February
26. 1895, chap. 131 (28 Stat, at L. 683).
The company has such right, title, inter-
est, and property in the lands as was con-
ferred upon it by the act of July, 1864, and
the act and Joint resolutions amendatory
thereof, and acquired by a compliance with
their terms.
One Thomas O. Merrill, a citizen of Mon-
tana, transmitted to the Secretary of the In-
twior a letter signed by Thomas G. Miller
as diairman citizens' executive committee,
declaring that tibe selections of the
raOroad company embraced thoudanda of re-
172 V. 8.
corded mineral claims and extensive minina
properties being prospected, developed, and
worked, "and in view of the irreparable in-
jury which would be caused to the people and
state of Montana by the premature or un-
lawful conveyance of title to such lands to
the railroad company, I beg leave to formally
file the following requests:
"That the Commissioner of the General
Land Office be directed to suspend the pat-
enting of lands in Montana to the Northern
Pacific R. R. Company until the mineral or
nonmineral •chaiucter of the lands 8elected[5981
by said company shall have been investigated
and definitely ascertained and adjudicated
bv proper proceedings, and until mineral
claimants and the state of Montana shall
have opportunity to be heard before the de»
partment on questions of law and fact.
**2. That the commissioner be directed to
cause to be noted on the lists of the oom^
pany's selections the tracts and townships al<*
leged to be mineral in character by affiaavita
now on file in the Department of the Interior,
"Very respectfully,
'Thomas G. Miller,
Tlhairman CiUsene* Executive Conunittee."
Ifovember 4, 1880, the Secretary of the In- '
terior referred said letter to the Commission-
er of the General Land Office, with the fol-
lowing indorsement:
Referred to Commissioner of Geni Land
Office, with approval of within requests and
direction to comply thereunto. Please noti^
me when done.
Nov. 4, '89. J. W. Noble, Sec^.
This order was not revoked prior to 1895.
The company and its receivers have been
diligent to prosecute the identification of th«
lands, and the defendant, conceding this, de-
nies that they have not been or are not fully
defined and identified as part of the grant to
the company.
Three commissioners were appointed as
provided in the act of February 26, 1895. and
commenced the examination and classifica-
tion of said lands during the year 1895, and
have classified certain of the lands as min-
eral, a list of which is inserted, and that the
remainder of the lands have not been exam-
ined and classified. And it was admitted
that other lands, a list of which is given, are
in contest in the Interior Department, and
that a certain section of land was decided in
1894, but subsequent to the assessment, to be
mineral, and excepted from the grant, and
that there were other lands to which there
were claims, but which were disputed by the
company, and that some contests were de-
cided in favor of the company.
In ttic year 1894 the assessor of JcfTerson
county, Montana,* proceeded to and did a88ess[604]
the lands described in the complaint herein,
in the manner and form prescribed by law,
and described and includea said lands in the
assessment book of said county of Jefferson
for said year.
The receivers appeared before the board of
equalization and oojected to the assessment,
S6S
SH-Wt
SUPRBKB CODIIT OF THE UNITED StaTM.
S^
and tiie board refused to strike the lands
from the assessment roll, and the taxes were
assessed and levied against the lands with the
ether lands of the county; that the tax pro-
eeedings were in manner and form in all re-
spects as required by the laws of Montana;
that the taxes amounted to $3,000, and that
the treasurer of the county was proceeding
to collect the same by sale, and would so col-
lect the same if not enjoined and restrained
by the order of the court.
As a ground of relief by injunction the bill
alleges: ^And TOur orators show that said
tax levies cloud the title to said described
lands, and impair the value thereof as an as-
set in the hands of your orators; that said
certificates and deeds when issued, as your
orators .believe and show they will be, will
constitute further clouds upon the title there-
to. That if said lands be sold a multiplicity
of suits will be neoessair to quiet the title
thereto and to remove &e clouds thereby
ereated."
Among the things which were ajdced to be
adjudged at the final hearins were:
''I. That the lands described in schedule
'A' hereunto annexed, and each and all there-
of, were not subject to assessment and taxa-
tion by said county of Jefferson or state of
Montana for the vear 1894, and until the
United States shall issue to said railroad
company patents therefor.
**2. That it may be ordered, adjudged, and
decreed that said pretended and attempted
aesessments and tax levies were and are null
and void, and constitute a cloud upon the
title to said described lands.**
Section three of the act of July 2, 1864, is
as follows:
•TTiat there be, and hereby is, gpranted to
the Northern Pacific Railroad Company, its
successors, and assigns, for the purpose of
aiding in the construction of said railroad
[505]and ^telegraph l<ne to the Pacific Coast,
. . . every alternate section of public
land, not mineral, designated by odd num-
bers, to the amount of twenty alternate sec-
tions per mile, on each side of said railroad
line, as said company may adopt, through the
territories of the United States, and ten al-
ternate sections of land per mile on each side
of said railroad whenever it passes through
any state, and whenever on the line thereof
the United States have full title, not re-
served, sold, granted, or otherwise appropri-
ated, and free from pre-emption or other
claims or riglits at the time the line of said
road is definitely fixed and a plat thereof filed
in the oflRce of the Commissioner of the Gen-
•eral Land Ofl^ce ; and whenever, prior to said
time, any of said sections or parts of sections
fihall have been granted, sold, reserved, occu-
pied, by homestead settlers, or pre-empted or
otherwise disposed of, other lands shall be se-
lected by said company in lieu thereof, under
the direction of the Secretary of the Interior,
in alternate sections, and designated by odd
numbers, not more than ten miles beyond the
limits of said alternate sections. . . . Pro-
Tided, further, that all mineral lands be, and
the same are hereby, excluded from the opera-
tions of this act, and in lieu thereof a like
566
quantity of unoccupied and onappropriatrf
agricultural lands, m odd sections, nearest ts
the line of said road, may be selected m
above provided; and further provided, tkst
the word 'mineral,' when it occurs in this lefc,
shall not be held to include iron or eosl.*
Section four provides for the issuing «f
patents on the completion and aceeptaaee «f
each twenty-five consecutive mUes of aM
railroad and telegraph line.
The assignment of errors is as tcSOowM:
"The said court held that the lands ^
scribed in the bill of complaint in said rntHm
were subject to taxation, althougli it appesn
from the pleadings and stipulatioa in said
cause:
"(a) That said lands were at tbm Umtt d
the assessments and tax levies eompIaiMd ti
unpatented, and were involved in ., ■■
pending before the Interior Department sfv
questions of fact between said railway eo»
pany and various settlers and the Viilbd
States.
*"(&) Although it further appears bm(B
the pleadings and stipulation in said essM
that said lands were not, at the time of tht
assessment and tax leHee eomplained oC
identified and defined as lands psiming vadv
the act of Congress approved July 2, 1861
so as to be segregated nom the piSUie htmk
of the United States.
*'{o) Although it farther wpmn tnm
the pleadings and stipulations ni said eams
that the g^ntee, under the act of Ooa-
Sress approved July 2, 1864, oititled 'An AM
ranting Lands to Aid in the CoastnietioB if
a Railroad and Tel^raph Line fron I^kt
Superior to Puget %und, cm the Psdit
Coast, by the Northern Route,' was not enti-
tled to patents for said lands atthetne el
the assessment and tax levies eomplahied of.
"(d) Although it appears from th« plcai-
ings and stipulation in said eanm that tkt
United States possessed at the time of the se*
sessment and tax levies complained (tf an i»>
terest in said lands, and ea^ and all thus
of, and that the said lands were sobjeet Is
exploration for minerals as pnblie laads ef
the United States.
"The said court failed and refused to hM
that the lands described in the oonplaial
were not at the time of the asseasmeiit ani
tax levy complained of subjeet to smssom^
or taxation.
''The said court entered an order ieniits|
the decree of the United States cirrait «oait
for the district of Montana, and ranasdai
said cause with an order to the United SUlm
circuit court for the district of Mootsas ts
enter a decree in favor of the
appellant.**
Meaars, O. U7.
and A. T. Brit ion for appelant.
Mr, C. B. Nolan, Attomsj
Montana, for appellee.
Q«Mn] 9i
•Mt, Justice MeKeman deKtsrri ^Wi
opinion of the court:
The nvormentft in the bill of eoniplaistttd
the stipulation •of facts show a urtiliu'^VlW
between the railroad com pan v and tht I»<^
rlor Department as to the charart^ ^ **•
i7t r. 8^
1888.
NoRTHSBN Pacific R. Co. y. MvEiib.
bMl-boM
lands, whether mineral or nonmineral, taxed
bj the state of Montana; and the company
ayers 'Hhat at the time of said attempted as-
sessments and tax levies said lands . . .
had not been and are not now certified or pat-
ented to said railroad company, and the said
lands were not ascertained or determined to
be a part of the lands granted to said com-
iwny, nor were they s^^ated from the pub-
lic lands of the United States, and the said
railroad company had and has but a poten-
tial interest therein." And part of the re-
lief prayed for was "that the lands be ad-
judged not subject to assessment and taxa-
tion by said county of Jefferson or by the
state of Montana for the year 1894, and un-
til the United States shall issue to said rail-
road company patents therefor."
A similar daim was denied by the circuit
court of appeals for the ninth circuit, in
}iorthem Pacific Railroad Co, ▼. Wright, 7
U. S. App. 502, and by this court in Central
Pacific Rathoay Company ▼. Nevada, 162 U.
8. 512 [40: 1057]. It is, however, now con-
ceded that the railroad has a taxable inter-
est, counsel for appellant saying:
The question for decision is not whether
the railway company has any interest in its
grant, or in the lands in question, which
may be subjected to some form of tsjcation ;
but whetiier the lands themselves are taxa-
ble; whether the present assessment, which is
on the lands themselves, can be sustained.
We mav well concede that the taxing power
is broad enough to reach in some form the in-
terest of the railway company in its grant;
that interest becomes confessedly a vested in-
terest upon construction of the road. It then
becomes property, and may well be held sub-
ject to some form of taxation.
"But here the legislature authorizes a tax
upon, and the assessor makes an assessment
upon, the land itself by specific description ;
the whole Ic^l title to each parcel being spe-
cifically and separately assessed. When the
plain fact is, that neither the assessor nor the
railway company can place its hand on a sin-
gle specific parcel and say whether it belongs
to the company or to the United States."
8] *The question which was submitted, there-
fore, by the stipulation, — ^namely, "whether
tbe lands described in the bill were subject
to taxation under the laws of the United
States and of the State of Montana," — if not
c^ed b^ the concession of appellant, has
changed its form ; but even in the new form
it seems to have the same foundation as the
contention rejected in the Nevada case, supra,
that because title may not attach to some of
the lands it tjoesnot attach as to any. Wheth-
er it has such foundation we will consider.
In Kansas P, Railroad Company v. Pres-
cott, 16 Wall. 603 [21 : 373] ; Union P. RaiU
road Conhpany v. McShane, 22 Wall. 444
[22:747]; and Northern Pacific Railway
Company V. Traill County, 115 U. S. 600 [29:
477], — it was decided that lands sold by the
United States might be taxed before tliey had
parted with the legal title by issuing a pat-
ttt; but this principle, it was said, must be
Qnderstood to be applicable only to cases
^here the right to the patent was complete,
and the equiUible title was fully vested in the
172 XT. 8.
party without anything more to be paid or
anv act to be done going to the foundation
of nis right. In the first case the court said
two acts remained to be done which might
wholly defeat the right 'to the patent: (1)
the payment of the cost of surveying; (2) a
right of pre-emption which would accrue if
the company did not dispose of the lands
within a certain time. The dependency of
the right of taxation on the first condition
was affirmed with the principle announced in
Union P, Railway Company v. McShane.
The dependency of the right of taxation on
the second ground was expressly overruled.
Embarrassment to the title of the United
States bv a sale of the land for taxes seems
to have been the concern and basis of those
cases. This embarrassment was relieved,
and Confess permitted taxation by the act
of July 10, 1886. By that act it is provided:
''That no lands granted to any railroad cor-
poration by any act of Congress shall be ex-
empted from taxation by states, territories,
and municipal corporations on account of the
lien of the United States upon the same for
the coats of surveving, selecting, and convey-
ing the same,*or because no patent has been
issued therefor ; but this provision shall, not
apply to lands unsurveyed: Provided,
*ljiat any such land sold for taxes shall be[500)
taken bv the purchaser subject to the lien for
costs of surveying, selecting, and conveying,
to be paid in such manner oy the purchaser
as the Secretary of the Interior may by rule
provide, and to all liens of the United States,
all mortgages of the United States, and all
rights of the United States in respect to such
lands: Provided further, Tha,t this act shall
apply only to lands situated opposite to and
coterminous with completed portions of said
roads and in organized counties: Provided
further, That at any sale of lands under the
provisions of this act the United States mav
become the preferred purchaser, and in such
case the land sold shall be restored to the
public domain and disposed of as provided
by the laws relating tnereto." 24 Stat, at
L. 143, chap. 764.
This act was interpreted in Central Pacific
Railroad Co. v. Nevada, supra. The lands
involved were classified in the opinion as fol-
lows: (1) Those patented; (2) those un-
sur>^eyed; (3) those surveyed but unpat-
ented, upon which the cost of surveying had
been paid ; and ( 4 ) like lands upon which the
cost of survey had not been paid. Applying
the statute, Mr. Justice Brown, speaking for
the court, said: "The principal dispute is
with regard to the fourth class. ... In
view of the statute, it is difficult to see how
these lands, which are the very ones provided
for by the statute, can escape taxation if the
state chooses to tax them."
This case establishes that the state mav
tax the surveyed lands, mineral or agricul-
tural, within the place limits of the grant,
and there is nothing in the case or its prin-
ciple which limits the assessment to an inter-
est less than the title; that distinguishes the
lands from a claim to them. • The statute of
Nevada defined the term "real estate" to in- •
elude "the ownership of, or claim to, or pos-
session of, or right of possession to, any
567
(
d^U-5s;2
ScpiixicE Court of thb United States.
Oct.
lands;" and the supreme court of the state
had decided that to constitute * possessonr
daim actual possession was necessary, and,
on this account, distinguished in some way
surveyed from unsurveyed lands. It was
urffed that the distinction was not justified,
and that the necessity of actual possession
applied alike to bbth kinds and exempted
hoth kinds from taxation, and hence it was
[MO]insisted there was nothing to *tax unless the
title was taxed, and that this could not be
done under the decisions of this court. To
this contention the opinion replied that how
the interest of the railroad should be defined
was not a Federal question, nor did inapti-
tude of definition by the supreme court of the
state or in the application of the definition
raise a Federal question. "Taxation of the
lands by the state," it was said, "rested upon
some theory that the railroad had a taxable
interest in them. What that interest was
does not concern us so long as it appears that,
so far as Congress is concerned, express au-
thority was given to tax the lands."
If this case leaves us any concern it is only
to inquire what assessable interest passed by
the grant. It is not necessary to aetail the
cases in which this court has neld that rail-
road land grants are in pr€Ment% of land to be
afterwards located. Their principle reached
the fullest effect and application in Deserei
Salt Company v. Tarpey, 142 U. S. 241
[35 : 999], in which it was held that the legal
title passed by such grants as distinguished
from merely equitable interests, and an ac-
tion of ejectment was sustained by a lessee
of the Central Pacific Railroad Company
before patent was issued. But in Borden v.
Northern Pacific Railroad Company, 154 U.
S. 288 [38: 992], in a similar action, recovery
was denied to the Northern Pacific Railroad
Company on the n-ound that mineral lands
were not conveved by the grant to it, but
were "specifically reserved to the United
States and excepted from the operations of
• the grant."
The accommodation of these cases Is not
difficult. In the Barden Case there was a
concession that the land was mineral, and
there was an attempted recovery of valuable
ores. In the Deaerei Case there was no such
concession, and the primary effect of the
grant prevailed. In tne case at bar there is
no sucn concession, and theprimary effect of
the g^nt must prevail. There is no pre-
sumption of law of what kind of lands the
grant is composed. Upon its face, therefore,
the relation of the railroad to every part of it
is the same, and on the authority of Deseret
Salt Co. V. Tarpetf ejectment may be brought
for every part of it. The action, of course,
[Ml]naay be 'defeated, but it may prefvaO ; and a
title which may prevail for the company in
ejectment surdv may be attributed to it for
taxation, to be defeated in the latter upon the
same proof or concession by which it would
be defeated in the former. An averment that
there is a controversy about the character
of lands not yielded to, an expression of doubt
• about it not acted on, is not sufficient. This
view does not bring the railroad company to
an unjust dilemma. The company has the
568
title or nothing. In response to its obliga-
tions to the state it must say whidu If it
have the title to any of the landsy Ais title
cannot be diminished to a claim or an inter-
est because it has not or may not lyive title
to others. If there is uncertainty, it
be resolved by the railroad. Suppose, to
the language of counsel, "Neither the
sor nor the railway company can fdmee its
hand on a single specific parcel* and say
whether it belongs to the company or to the
United States." We neverthJev amy agaia,
as we said by the Chief Justice in Worthen
Pacific Railroad Co. v. Patiereon, 154 U. 8.
130 [38 : 934] : "If the legal or equitable title
to the lands or anv of them was in the rafl-
road, then it was liable for the taxes on sB
or some of them^ and the mere fact tliat tke
title mif^ht be in controversy would not ap-
pear in itself to furnish sufficient reason ^if
the railroad should not determine ehtithig
the lands or some of them were wortk payiag
taxes on or not."
That the Barden Case docs not
state taxation of the lands is slso
from its expression. Mr. Justice ^eld,
delivered the opinicm of the court, in
to the contention that its doctrine woald have
that effect, said : "So also it is said that the
states and territories through whidh tbe road
passes would not be able to tax the pioyeity
of the company unless they eoaM tax the
whole profNBrty, minerals as well ae laafe
We do not see why not. The authority ts
tax the property granted to the comoany did
not give authority to tax the minerals wUeh
were not g^nted. The property eovld he
appraised without including any fonsidsia'
tion of the minerals. The ^ue of the pree-
ertv, exdudinff the minerals, eould be as wsD
estimated as its value 'including thi TWM
property could be taxed for its valve to the
extent of the UUe which is off the laad."
The averment of the answer is that tUs
was done; that the lands were aseeseed aal
taxed for their value as agricnltoral laads
without including the minerals in than. The
replication put this in issue, but the stipida*
tion of facts does not explidtly notlee n, hel
probably was intended to eover it by the
agreement that the assessment was made ia
the manner and form required by the laws el
Montana.
We are referred to the act of OoBgress el
F^ruary 2fi, 1896, diap. ISl, entitM 'Am
Act to Provide for the Examinatioa aad
Classification of Certain Mineral Lands li
the States of Montana and Idaho" (28 Slat
at L. 688), as strenfftheninc the eontaatke
of appellants. We £> not Uink it does. It
was ps^wed after the time at whidi the vaHd-
ity of the assessment complained of nnit It
determined. Besides, it does not purport ts
define the rights of the railway eompaay tai
any particular with which we are now tm^
cemed. It furnishes the Secretary of the I»>
tenor with another instrumentality,— est
bringing the lands to a different JudgUMirf,
but to an earlier judgment
Discovering no error in the deeres of t*t
Circuit Court of Appeals, it is alfrmed.
ITt V.%
r
OOHITBOTICITT MUTUAL LiFB IlfS. Ca ▼• SPBATLBT.
603-605
Ifr. Jusilee Brewer, Mr. Justice Shirae,
Mr. Jostioe Wldlte, and Bir. Justice Peek-
dissented.
CONNECTICUT MUTUAL LIFE INSUR-
ANCE COMPANY, Pllf. in Err.,
V.
LINDA Y. SPRATLEY.
(See a C. Reporter's ed. 602-622.)
of jMTOoess upon agent of foreign cor-
pofafion—v)hat agent may he served — cor-
peration doing hii^ineee within tht' state-^
contract vnth the etate.
1 Serrlce of process upon an agent of a for-
eign corporation doing business In a state
Bast be npon some airent so far representing
tbe corporation In the state that he may
properly be held In law an agent to receive
such process In behalf of the corporation ; bnt
sa express authority to receive process is not
slways necessary.
1 A nonresident agent of a foreign Insurance
company, who comes Into a state to Investl-
gste a claim for a loss, with power to com-
promise It within stated terms, leaving him
certain discretion as to the amount, when he
Is not a mere special agent for that par-
ticular case, bnt Is employed generally on a
sslary, t^ act In all cases of that kind, suf-
fideatly represents the company for the serv-
ice of process la an action on the claim he Is
investigating, where the company Is doing
business within the state.
S. A foreign Insurance company which assumes
to withdraw from a state In which It has
feen Issolng policies, and thereafter refuses
to tske any new risks or Issue any new pol-
icies therein, hot continues to collect pre-
miums on its outstanding policies and to pay
losses arising thereunder. Is still doing busi-
ness within the state within the meaning of
the statote respecting service of process upon
sn sgent.
4. A foreign Insurance company availing Itself
of the permission to do business within the
state under the provisions of the Tennessee
act of 1876 giving permission therefor on
condition that the company appoint the sec-
retary of state as Its agent to receive proc-
eis, does not thereby create a contract with
tbe state which will prevent the state from
thereafter passing another statute In regard
to the service of process which will be ap-
plicable to such company.
[No. 183.]
Submitted January S, 1899, Decided Janu-
ary SO, 1899.
IN ERROR to the Supreme Court of the
State of Tennessee to review the judgment
of that court reversinf the decree of the
Chancery Court of Shelbjr County, Tennes-
iee, granting a perpetual injunction against
the enforcement by Linda Y. Sj^ratlcy of a
judgment against the Connecticut Mutual
Life Insurance Company. The judgment of
tbe Supreme Court was in favor of said
Spratlsy for the amount of the judgment
against the insurance company, with inter-
est and ooats. Affirmed,
See same ease below, 99 Tenn. 322.
17« V. 8.
The facts are stated in the opinion.
Meaera, B. IC Eetea and Francis Fen^
trees for plaintiff in error.
Mesara. Tkonuui B. Turle j and Lnke B.
Wright for defendant in error.
*Mr. JiMtice Peekham delivered the[603]
opinion of the court: •
The plaintiff in error filed its bill against
the defendant in error in the chancery court
of Shelby county, Tennessee, for the purpose
of enjoining her from taking any proceedings
under a judgment by default which she had
obtained in the state of Tennessee, against
the corporation, upon certain policies of in-
surance, and also tor the purpose of obtain-
ing a *deoree pronouncing the judgment void[604]
and releasing the corporation therefrom.
The ground set forth in the bill, and upon
which the complainant sought to have the
judgment against it set asiae, was that the
complainant was a nonresident of the state
of Tennessee, had no office or agent there at
the time the process was served, and was do-
ing no business in the state, and the person
upon whom the process in the action had
been served in behalf of the corporation was
not its representative in the state, and no
process served upon him was in any way ef-
fectual to give jurisdiction to the state court
orer the corporation. The bill also alleged
that the judgment, if enforced, would result
in tiJcing ccmiplainant's property without
due process of law, and would violate the
Fifth and Fourteenth Amendments of the
Constitution of the United States.
The defendant in error herein appeared
and answered the bill, and alleged that the
judgment she had obtained was a valid and
proper judgment, and she denied the allega-
tion in the bill tiiat complainant was doing
no business in the state at the time of the
service of process, and alleged, on the con-
trary, that it was then doing business there-
in. She asked that the preliminary injunc-
tion theretofore granted should be dissolved.
The court oi chancery upon the trial gave
judgment in favor of the complainant, and
decreed that the preliminary injunction
granted in the cause should be made perpet-
ual. The defendant appealed to the supremo
court of the state, where the decree of the
court of chancery was reversed, the injunc-
tion dissolved, and a judgment grantee the
defendant in error on the bond executed by
the company in obtaining the injunction, for
the amount of the original judgment, with
interest from its date, together with the
costs of the suit for the injunction. The
complainant thereupon brought the case here
by writ of error.
In addition to the objection that the per-
son upon whom process was served was not
such a representative of the company that
service of process upon him was sufficient to
^ive the court jurisdiction, the company al-
leges that under the act of 1875, wluch will
be referred to hereafter, the company *ap-[505]
pointed an agent pursuant to its provisions,
and that any act subsequently passed relat-
ing to the service of process upon any otiier
than the person so appointed could not af-
569
y
«05-608
Supreme Couut of the United States.
Ooc
feet the company, because Buch act would
impair the contract which it alleges was cre-
ated between the state and the company
when it appointed an agent, by its power of
attorney, pursuant to the provisions of such
act of 1875.
The material facts are as follows: The
corporation is a life insurance company in-
corporated under the laws of, and having its
principal office in, the state of Connecticut.
It did a life insurance business in the state
of Tennessee from February 1, 1870, until
July 1, 1894. On March 22, 1875, the state
of Tennessee passed an .act to regulate the
business of life insurance in that state, and
by section 12 of the act it was enacted that
a company desiring to transact business by
any agent or agente in the state should file
with the insurance conunissioner a power of
attorney authorizing the secretary of state
to acknowledge service of process for and in
behalf of such company at any and all times
after a company had first complied with the
laws of Tennessee and been regularly admit-
ted, even though such company may subse-
quently have retired from the state or been
excluded; and it was made the duty of the
secretary of state, within five days after
such service of process by any claimant, to
forward by mail an exact copy of such notice
to the company. Pursuant to that statute
the company duly filed a power of attorney
as required, and appointed therein the sec-
retary of state to receive service of process,
and that power of attorney the ccmipany
never in terms altered or revoked.
In 1887 the legislature of Tennessee passed
an act, appro v^ March 29, 1887, entitled
"An Act to Subject Foreign Corporations to
Suit in This State." The first section of this
act provided that any foreign corporation
found doing business in the state should be
subject to suit there, to the same extent that
said corporations were by the laws of the
state liable to be sued, so far as related to
any transaction had in whole or in part
within the state, or to any cause of action
arising therein, but not otherwise.
£606] *The second section provided that any cor-
poration that had any transaction with per-
sons or concerning any property situated in
the state, through any agency whatever act-
ing for it within the state, should be held
to be doing business within the meaniiig of
the act.
The third and fourth sections of the act
are set forth in full in the margin.f
The company continued to do business in
the state after the passage of this act, and
on the 12th day of December, 1889, it in-
sured the life of Benjamin B. Spratlej» tl
husband of the defendant in error, for tW ;
term of his life, in the sum^of $5,000, for tke(6if^
benefit of his wife, the defendant in error
or, in case of her death before payment, to
his children, etc. The company also insored
the life of Mr. Spratley on the 25th day of
February, 1893, in the sum oi $3,000 in fa-
vor of his wife and for her sole use uid bei-
efit, with other conditions not material here.
These policies were issued through the so-
licitation and by the procurement of the
agent of the company for the states of Tn-
nessee and Kentudqr, and i^o had head-
quarters at Louisville, Kentudcy. He eeae
to Memphis and solicited Mr. Spratlcj te
take the policies, and the applieataon te
them was taken by such agent at if<ipiiW.
The defendant in error alleges in her ■ii«^ii
that the premiums were paid tho^on in Tn-
neesee up to the death of Mr. Spratlcj in
February, 1896, but that fact does not oth-
erwise appear. It does appear that all pf»>
miums had been paid at the time iA the itneth
of Mr. Spratley.
On July 1, 1894, the company oeased Isn-
ing any new policies in the state of Tmnsi
see, and withdrew its agents from the stal%
and on July 21, 1894, notified the state in-
surance commissioner to that effeet. It Ind.
however, a number of policies, other than
those issued on the life of M^. Spratlcj, o«fe>
standing in the state at the tune it with-
drew (how many is not stated), and tt es»-
tinned to receive the premiums on theae pofr'
cies through its former agent for that snfe^
and to seUle, bv payment or otherwise, the
claims upon policies in that state aa thej Ml
due.
The former agent resided in Lonisvilii
when he received payment of the premioH^
and it does not appear that alter Jaly,
1894, he was in the st^kte of Tennessee whes
any payment of nremiums was made to hhs
bv Tennessee policy holders. He reecivei
tnese payments as agent of the oompany, aad
it recognized such payments as sufBetcat.
Mr. bpratley died in the city of Mcn^iB,
in the state of Tennessee, on the 28Ui of f£
ruanr, 1896, leavinjf his widow, the defeai-
ant m error, survivinff him. The two polidsi
were in force at the time of his death. The
company, being notified of the death of Mr.
Spratley, sent its agent to Memphis to ael
under its instructions in the investigmtiae
and adjustment *of the daim. Mr. Chaff«(
was the agent employed, and he had been em-
ployed in the service of the company ainee tht
first day of July, 1887. The writing i
which he was employed stated that &
tSec 8. Be it further enacted^ That process
may l>e served upon any agent of said corpora-
tion found within the county where the suit Is
brought, no matter what character of agent
such person may be ; and in the absence of such
an agent it shall be sufficient to serve the proc-
ess upon any person, if found within the county
where the suit is brought, who represented the
corporation at the time the transaction out of
which the suit arises toolc place, or, If the
agency through which the transaction was had
be itseii a corporation, then upon any agent of
that corporation upon whom process might have
570
■ If
tte
t>een served 1/ It were the defendant,
cer serving the process shall state th« facta
upon whom Issued, etc. In bis rstnm, aad
ice of process so made shall be as effectoaJ i
a corporation of this state were soed aad
process had t>een served as required by I
but, in order that defendant corporatloa
also have effectual notice. It shall be tW
of the clerk to <'*>*ned lately mall a copy of
process to the home office of the corporatftoa
registered letter, the postage and fees for
shall be taxed as other costs. Tke dcrt
file with the papers In the can
17t U.
th*
%9
a cetMcat» «f
IML
CoNNBcnouT Mutual Lifb Ins. Co. y. Spratlet.
608-010
ptnj employed him "for special service in
ADj matters which may be referred to you,
with instructions, during the pleasure of the
directors of the company and under the di-
rection of the executive officers; to have your
entire time and services except upon
leave of absence; to pay the necessarv trav-
eling and hotel expenses incurred in tne line
of your duty, and to pay you for your time
and services at the rate of $2,500 per annum ;
this agreement terminable on the part of the
company ai the pleasure of the directors, and
on your part by thirty days' written notice."
The company sent Mr. Chaffee specially to
thestateof Tennessee for the purpose of inves-
tigating into the circumstances of the death
of Mr. Spratley and into the merits of the
daim maoe by Mrs. Spratley, and while there
he was authorized by the company to com-
promise the claim made by her upon terms
stated in a telegram from the vice president
of the company. While Mr. Chaffee was en-
nged in negotiations with Mrs. Spratley and
ner brother in relation to her claims, and
after she had refused to accept the compro-
mise offered hv him in behalf of the com-
pany, and on April 15, 1896, he was served,
m Memphis, wiui process against the corpo-
ration m an action upon the policies above
mentioned.
The attorneys for the plaintiff also sent
a notice addressed to the president and direc-
tors of the company, together with a copy
of the process issued out of the circuit court
oi Sheloy county, which notice and copy of
process were sent to Mr. Dunham, an attor-
ney at law in the city and county of Hart^
ford, in the state of Connecticut, who, on
May 8, 1896, at Hartford, served them upon
the company by leaving them in the hands of
its vice president, and an affidavit of that
fact was made by Bir. Dunham, and filed at
the time of tbe entry of judgment by default
in the clerk's office at Memphis. A copy of
the writ was also sent by registered letter by
John A. Strehl, clerk of the court, addressed
M)0]to the Coimecticut Mutual Life ^Insurance
Company, Hartford, Connecticut, and an ac-
knowledgment of the receipt of such regis-
tered letter, signed by William P. Green on
behalf of the Connecticut Mutual Life Insur-
ance Company, was also filed with the judg-
ment.
On July 2, 1896, judgment by default was
entered against the defendant, and the judg-
ment recited the above facts in relation to the
service of process on Mr. Chaffee, the sending
of the registered letter from the clerk of the
court, and the notice and copy of process to
the attorney, Mr. Dunham, and his service
thereof upon the vice president of the com-|
pany at its office in Hartford, Connecticut.
It recited also the fact that the defendant was
doing business in Shelby county, Tennessee,
but that it had no office or agency therein,
and that it had wholly failed to make any ap-
pearance, and thereupon the default was en*
tered and judgment went against the defend-
ant for the sum of $8,000, being the total
amount due on the life insurance contracts
or policies described in the declaration, and
also for costs.
Upon these facts the question arises as to
the validity of the jud^ent, to set aside
which the company has filed this bill. With-
out considering, for the moment, the objec-
tion that there was a contract between the
state and the company which could not be
impaired, was the service of process upon Mr.
Chaffee sufficient to give the court jurisdic-
tion over the corporation?
When the process was served, the act of
1887, above mentioned, was in force.
The third and fourth sections of that act
have already been set forth, and they provide
that process may be served upon any agent
of the corporation, found within the county
where the suit is brought, no matter what
character of agent such person may be. We
are not called upon to decide upon the entire
validity of this whole act. The Federal
question with which we are now concerned is
whether the court obtained jurisdiction to
render judgment in the case against the
company, so that to enforce it would not be
taking the property of the company without
due process of law. Even though we might
be unpreparcwi to say that a service of proc-
ess up(m *"any agent" found within the coun-[610]
ty, as provided in the statute, would be suffi-
cient in the case of a foreign corporation, the
?[uestion for us to decide is whether upon the
acts of this case the service of process upon
the person named was a sufficient service to
give jurisdiction to the court over this corpo-
ration. If it were, there was due process of
law, whatever we might think of the other pro-
visions of tlie act in relation to the service upon
any agent of a corporation, no matter what
character of agent the person might be. If
the person upon whom process was served in
this case was a proper agent of the company,
it is immaterial wnether the statute of the
state also permits a service to be made on
some other character of agent which we
might not think sufficiently representative to
give the court jurisdiction over the corpora-
tion. If the service be sufficient in this in-
stance, the corporation could not herein raise
the question whether it would be sufficient in
some other and different case coming under
the provision of the state statute.
In a suit where no property of a corporation
is within the state, and the judgment sought
the faet of such liiaillng, and make a minute
thereof upon the docket, and no Judgment shall
be taken in the case until thirty (30) days after
tbe date of such mailing.
Sec 4. Be it further enacted. That it shall
be the duty of the plaintlflf to lodge at the home
omce of the company, with any person found
there, a written notice from him or his attor-
ney, stating that such suit has heen brought,
iceompanled by a copy of the process and the
Ktnm of the officer thereon, of which fact affl-
daTlt shall be made by the person lodging the
172 V. 8.
same, stating the facts and with whom tbe no-
tice was lodged, or else the plaintiff or his attor-
ney shall make an affidavit that he has. been pre-
vented from serving such notice by circum-
stances which should reasonably excuse giving
It. which circumstances the affidavit of the
plaintiff or his attorney shall particularly
state; and no judgment shall be taken until
one or the other of these affidavits shall be filed
and the '»ourt be satisfied that the notice has
been given the defendant, or that the excuse for
not doing so be sufficient. ^.,
571
610-tflJ
^UPKEMB Court of the United Staieb.
Oct.
■A
,1
is a personal one, it is a material inquiry to
ascertain whether the foreign corporation is
engaged in doing business within the state
(Goldey ▼• Morning News, 156 U. S. 518
[39 : 517] ; Merchants' Manufacturing Co. ▼.
Orand Trunk Railujay Co. 13 Fed. Bep. 358),
and if so, the serrice of process must be upon
some agent so far representing the corpora-
tion in the state that he may properly be
held in law an agent to receive such process
in behalf of the corporation. An express au-
thority to receive process is not always neces-
sary.
We think the evidence in this case shows
that the company was doine business with-
in the state at the time of this service of
process. From 1870 until 1894 it had done an
active business throughout the state by its
agents therein, and had issued policies of
ii^urance upon the lives of citizens of the
state. How many policies it had so issued
does not appear. Its action in July, 1894,
in assuming to withdraw from the stiLte, was
simply a recall of its agents doing business
therein, the giving of a notice to the state in-
[^H-lburance commissioner, and *a refusal to take
any new risks or to issue any new p^icies
within the state. Its outstanding policies
were not affected thereby, and it continued
to collect the premiums upon them and to
Sa^ the losses arising thereunder, and it was
oing so at the time of the service of process
upon its agent.
The corporation alleged in its bill filed in
this suit that the defendant herein was tak-
ing garnishee proceedings against its pollen^
holders in the state for the purpose of col-
lecting, as far as possible, the amount of the
judgment she had obtained against the cor-
poration, and it gave in its bill the names of
some thirteen of such policy holders against
whom proceedings had been taken by ims de-
fendant. It cannot be said with truth, as
we think, that an insurance company does
no business within a state unless it have
agents therein who are continuously seeking
new risks and it is continuing to issue new
policies upon such risks. Having succeed-
ed in tiding risks in the state through a
number of years, it cannot be said to cease
doing business therein when it ceases to ob-
tain or ask for new risks or to issue new pol-
icies, while at the same time its old policies
continue in force and the premiums thereon
are continuously paid by the policy holders to
an agent residing in another state, and who
was once the agent in the state where the
policy holders resided. This action on the
part of the company constitutes doing busi-
ness within the state, so far as is neces-
sary, within the meaning of the law upon
this subject. And this business was con-
tinuing at the time of the ser/ioe of process
on Mr. Chaffee in Memphis.
It is admitted that the person upon whom
process was served was an agent of the
company. Was he sufficiently representative
in his character? He was sent into the
state as such agent to investigate in regard
to this very daim, and while there he was
empowered to compromise it within certain
stated terms, leaving him a certain discre-
672
tion as to the amount. He was authorised tm
settle the claim for the amount of tiie re-
serve, "or thereabouts." He did not leav»
his character as agent when he entered ths
state. On the contrary, it was as agait» aaA
for the purpose of representing the eoi&-
pany therein, that he entered the stata, aaA
as aeent he was *seekizig a eomiHronilaa oflCU^
the claim by the authority of the eompaay,
and therein representing it. Why wma bt
not such an agent as it would be ^oper to
serve process upon? He had been appolBtii
an agent by the company; his wIiom timm
and services were given to the companj v^
der an appointment made years previcNuly;
he received a salary from the ocmipaiij aot i
dependent upon any particular serriee at
any particular time. The company lie;viH
issued policies upon the life of an indhridail
who luui died, and a daim having been nyidt I
for payment in accordance with the ter^ I
of tnose policies, the company dotbed Ua i
with authority to go into the state mnd in
its behalf investigate the facts anrroinidt^ i
the daim, and authority was given !>*»■ te
compromise it upon terms whi<A left to Ua i
discretion to some extent as to the ■tw^ft^ |
of payment. He was not a mere amit a^
pointed for each particular ca8e.^He vm
employed senerally, by the eompany, to net
in Its behalf in all cases of this kind mnd m
directed by the company in each eaan. ]^
tering the state with this anthoritj, and
acting in this capadty, the eompany itself
doiitt business within the state, ft eeeoM te
us that he suffldently represented the eea^
pany within the principle which ealle te
the service of process upon a pereon vHm is
in reality suffident of a representative ie
give the court jurisdicUmi over the eonspan^
e represents. In view oi all the faeta, we
think it a proper case in whidi the lav
would imply, from his appointment mud an*
thority, the power to receive service of pr^
cess in the case whidi he was attendii^ tei
Taken in connection with, the further feet
of sendinj^ (as provided for in the statnte)
a copy ot the process and notice thereof by
registered letter to the home ofBee of the
company, and also the personal service open
the company of a copy of the prooees and
notice thereof at its home office, it mnet he
admitted that one of the chief d>jeetB of all
sudi kinds of service, namely, notlee and
knowledge on the part of the omnpany of
the commencement of suit against it, is ev^
tainly provided for. We do not intjists
that mere knowledge or notice ae thus pr»>
vided would be sufficient without a seiitis
^on the affent in the state where suit wetfftlS]
commenced, but we refer to it ae a part oT
the facts in the case.
In I*afayette Insurance Ooipeajr v.
French, 18 How. 404 [15: 451], it anpeared
that a statute of Ohio made provision te
service of process on foreign insurance eos-
panies in suits founded upon contracts af
insurance there made l^ them with dtiasaa
of that state. One of those provisions wee
that service of process on a resident aciat
of a foreign corporation should be ae ate
tuftl as thoui^h the same was served upon the
17t V. &
CoNMBcnoiTT Mutual Lifb Ins. Co. ▼. Spratlby.
(>i;i-OU
priadpftL In a suit commenced in Ohio
■gainst a foreign corporation by sendee up-
on its resident agent, the company objected
to the validity of that service, and that
Question came before this court, and Mr.
Justice Curtis, in delivering the opinion of
the court, said :
"^e And nothing in this provision either
nnreasouable in itself or in conflict with
any principle of public law. It cannot be
deemed unreasonaole that the state of Ohio
should endeavor to secure to its citizens a
remedy, in their domestic forum, upon this
important class of contracts made and to be
performed within that state and fully sub-
ject to its laws; nor that proper means
should be used to compel foreign corporations
transacting this business of insurance with-
in the state for their benefit and profit, to
answer there for the breach of their con-
tracts of insurance there made and to be per-
formed. Nor do we think the means adopt-
ed to effect this object are open to the ob-
jection that it is an attempt improperly to
extend the jurisdiction of the state beyond
its own limits to a person in another state.
Process can be served on a corporation only
by making service thereof on some one or
more of its agents. The law may, and or-
dinarily does, designate the agent or officer
on whom process is to be served. For the
purpose of receiving such service and being
bound by it, the corporation is identified
with vneh a^nt or officer. The corporate
power to receive and act on such service, so
far as to make it known to the corporation,
is thus vested in such officer or agent. Now,
when this corporation sent its agent into
Ohio, with authority to make contracts of
insurance there, the corporation must be
taken to assent to the condition upon which
l^lalooe sndi busineea *could be there tnuns-
aeted by them; that condition being that
an agent to make contracts should also be
the aoent of the corporation to receive serv-
ice of process in suits on such contracts;
and in legal contemplation the anpointaient
of sudi an agent olc^hed him witn power to
receive notiee for and on behalf of the cor-
poration as effectually as if he were deeig-
■ated in the eharter as the officer on whom
proeeos was to be served ; or as if he had re-
ceived from the president and directors a
power of attorney to that effect. The pro-
eeos was served within the limits and juris-
diction of Ohio, upon a person qualified by
law to represent the corporation there in re-
spect to sueh service; and notice to him was
Bodce to the corporation which he there
represented and for whom he was empowered
to take notice."
The act did not provide for an express con-
suit to receive such service, on the part of
the company. The consent was implied be-
eauoe m the company entering the state and
doing business tnerein subject to the pro^-
sions of tiie act
It is true that in the above case the person
vpon whom service of process was made is
•tated to have been a resident agent of the
eompany; but the mere fact of residence is
■ot material (other things being sufficient),
172 V. 8.
provided he was in the stato representing the
company and clothed with power as an agent
of the company to so represent it His
agency might be sufficient in such event, al-
though he was not a resident of the state.
It is also true that the agent in that case was
an agent with power to make contracts of
insurance in behalf of the corporation in
that state, and from that fact, in connection
with the statate, the court inferred the fur-
ther fact of an implied power to receive serv-
ice of process in oehalf of the corporation.
The agent had not, so far as the case shows, .
received any express authority from the com-
pany to receive service of process. The court
does not hold, nor is it intimated, that none
but an agent who has authority to make con-
tracts ofinsurance in behalf of the company
could be held to represent it for the purpose
of service of process upon it. It is a ques-
tion simply whether a power to receive serv-
ice of process can reasonablv and fairly be
implied from the kind and character •of[6l5]
agent employed. And while the court held
that an agent with power to contract was,
in legal contemplation, clothed with power
to receive notice for and on behalf of the cor-
poration as effectually as if he were desig-
nated in the charter as the officer upon whom
process was to be served, we think it is not
an unnatural or an improper inference, from
the facts in the case at bar, to infer a power
on the part of this agent, thus sent into the
state by the company, to receive notice on its
behalf in the same manner and to the sanM
extent that the agent in the case cited was
assimied to have. In such case it is not ma-
terial that the officers of the corporation
deny that the agent was expressly ffiven such
power, or assert that it was withneld from
him. The question turns upon the charac-
ter of the agent, whether he is such that the
law will imply the power and impute the au-
thority to him, and if he be that kind of an
agent, the implication will be made notwith-
s&nding a denial of authority on the part of
the other officers of the corporation.
This case is unlike that of 8t, Clair v. Oom,
106 U. S. 350 [27: 103]. There the record
of the iudgment, which was held to have been
properly excluded, did not (and there is no
evidence which did) show that the corpora-
tion was doing business in the state at the '
time of the service of process on the persim
said to be its agent. Nor did it appear that
the person upon whom the process was served
bore such relations to the corporation as
would justify the service upon him as its
agent. In the course of the opinion in that
case, Mr. Justiee Field, speaking for the
court, said:
"It is sufficient to observe that we are of
opinion that when service is made within the
state upon an agent of a foreign corporation,
it is esi<ential, in order to support the juris-
diction of the court to render a personal
iudgment, that it should appear somewhere
in the record— either in the application for
the writ, or accompanying its service, or in
the pleadings or in the finding of the court
— ^that the corporation was engaged in busi-
ness in the state. The transaction of .buai-
573
(
J
01&-618
ScpRBMB Court of the Ukitku States.
Oct. Tkbx,
I,
Hess by tbe corporation in the state, general-
ly or specially, appearing, and a certificate
[616]of service of process by the proper officer *on
a person who is its agent there, would, in our
opinion, be sufficient prima facie evidence
that the agent represented the company in
the business. It would then be open, when
tte record is offered as evidence in another
■tate, to show tiiat the agent stood in no
representative diaracter U> the company,
that his duties were limited to those of a
subordinate employee or to a particular
I. transaction, or that his agency had ceased
when the matter in suit arose."
Here we have the essentials named in the
above extract from the opinion of the court
in 8t. Clair v. Cow, We nave a foreign cor-
poration doing business in the state of Ten-
nessee. We have its agent present within
the state, representing it by its authority In
r^ard to the very claim in dispute, and with
authority to compromise it within certain
limits, and his general authority not limited
to a particular transaction. On the con-
trary, as seen from his written appointment,
his agen(nr for the company was a continuous
one, and had been such since 1887, although,
of course, his agency was limited to a certain
department of the business of the corpora-
tion.
The case does not hold that a foreign cor-
poration cannot be sued in any state unless
it be doing business there and has appointed
an agent expressly that process might be
served upon him for it. Speaking of the
service of process upon an agent, the learned
justice thus continued:
''In the state where a corporation is
formed, it is not difficult to ascertain who
are authorized to represent and act for it.
Its charter or the statutes of the state will
indicate in whose hands the control and man-
agement of its affairs are placed. Directors
are readily found, as also the officers ap-.
pointed by them to manage its business. But
the moment the boun&ry of the state is
passed, difficulties arise; it is'not so easy to
determine who represents the corporation
there, and under what circumstances service
on them will bind it"
This language does not confine the service
to an agent who has been expressly author-
ized to receive service of process upon him
in behalf of the foreign corporation. If that
were true, it would he easy enough to deter-
mine whether the person represented the cor-
[617]poraition, as, unless he had been so *author-
ized, he would not be its agent in that mat-
ter. In the absence of any express author-
ity, the question depends upon a review of
the surrounding facts and upon the infer-
ences which the court might properly draw
from them. If it appear that there is a law
of the state in respect to the service of proc-
ess on foreign corporations, and that the
character of the agencv is such as to render
it fair, reasonable, and just to imply an au-
thority on the part of the agent to receive
service, the law will and ought to draw such
an inferrace and to imply such authority,
and service under such circumstances and
upon an agent of that character would be
sufficient.
574
It was held in Pennoyer v. ffeff, 95 U. 8.
714 [24: 565], that a service by publieatiQa
in an action in personam against an individ-
ual, where the defendant was a nonresideit
and had no property within the state, mad
the suit was brought simply to determine hit
personal rights and obligations, was ineScc-
tual for any purpose. 'Die case has no bear-
ing upon the question here presented.
In Mexican Central Railvxiy Co, v. Pimk-
ney, 149 U. S. 194 [37 : 699], it was held that
the person upon whom process was saved ia
the state of Texas was not a "loeal tgest*
within the meaning of that term as coetiiafd
in the Texas statute. It was also hAd tlMt
the special appearance of the company for tht
purpose of objecting that the service of pra^
ess was not ^ood did not, in the FMml
courts, confer jurisdiction as in ease ol a gm-
eral appearance. There is nothing in tkt
case affecting this question.
In MamoeU v. Atchison, T, d 8. F. Smkvai
Company, 34 Fed. Rep. 286, the opinioa ta
which was delivered by Jud^ Brown, XJvtd
States District Judj^e of Michigan, now eat
of the justices of this court, the decisioB was
placed upon the ground that the bosiaea
which the defendant carried on in Michign
was not of such a character as to Bttke it
amenable to suits within that Jvriedietaea,
— especially where the eauae of aetioB ia thi
case arose within the state of Kansas; aai
the court also held that the individual
whom the process was served was not aa
cer or managing agent of the railroad <
pany within the meaning of the aet of tkt
legislature, nor was *he ecven a tlekat af<tU|
of the company; that he was a mere rmav,
and that service of process upon him for a
cause of action uising in KtmriT gaft m
jurisdiction to the court.
In United Statea v. AmaricM Bett Na*
phone Company, 29 Fed. Rep. 17, Jn^ Jack-
son stated the three condiuona Deceaaarr ta
give a court juriadiction in
foreign corporation: First, it nraat aapaar
that the corporation was earryii^ on iteha^
ness in the state where prooeaa waa acrvad aa
its agent; second, that the buaiiieaa «aa
transacted or managed by some asent or ofr
cer appointed by or representing^^ oorpora-
tion in such state; third, the eodataaet a(
some local law making andi eorpon^
amenabla to auit there aa a f^Htdiww, a^
press or implied, of doing huninfaa fm tta
state.
In this ease the ocunpany waa doiw tail-
ness in the state. The agent waa ta tta
state under the authority and by the af*
pointment of the company. He waa weAsh
ized to inquire into and oompromiat the pa^
ticular mattera in diapute hcitweau the «»>
poration and the policy holder, aad he w
mere special employee engaged by the
pany for this particular purpoae. And
was a local law, that of 1887, providiag !■
service. It has been recently Md ia tifa
court, that aa to a circuit court of the IhM
States, where a corporation ia doii^
in a state other than the one of its
ration, service may sometimes be
itA regularly appointed agents there.
the absence of a state statute eoBferriacMek
18I8L
CONNIBOTICXTT MUTUAL LiFB InB. Oa ▼. SpKATLBT.
618-621
•Qthoritj. Barrow Steatnahip Co, ▼• Kane,
170 U.S. 100 [42:964].
Although the legislature by the act of 1875
provided tor service of process upon a par-
tiealar person — ^the secretary of state — in be-
half of a foreign corporation, and the com-
pany had, pursuant to tlie provisions of the
set, duly appointed that officer its agent to
receive process for it, nevertheless the legis-
lature provided by law in 1887 for service
upon other agents, and the company con-
tmued thereafter to do business in the state.
Continuing to do business, the company im-
pliedly assented to the terms of that statute,
at least to the extent of consenting to the
9]9ervice of process upon an ^agent so far repre-
sentative in character that the law would
imply authority on his part to receive such
lervioe within the State. Merchants' Manu-
facturing Co, T. Orand Trunk Railway Co.
13 Fed. Rep. 358-359. When the service of
which plaintiff in error complains was made,
the act of 1875 had been repealed by chapter
160 of the Laws of 1895, and the company
had never appointed an agent under chapter
166 of the laws of that year. There was,
therefore, no one upon whom process could
be served in behalf of the company, excepting
ttDder the act of 1887, unless the plaintiff in
error be right in the claim that, by appoint-
ing the secretary of state its agent to receive
process under the act of 1875, a contract was
created and the secretary of state remained
fodi agent, notwiUistanding subsequent stat-
utes regulating the subject or even repealing
the ac£ We will refer to that claim here-
after. If by the statute of the state provi-
sion were made for the appointment of an
ag^ent by the company, upon whom process
mi^ht be served, and the company. had ap-
pomted such an agent, and there was no
other statute authorizing service of process
opon an agent of the company other tnan the
one so appointed, we do not say that service
upon any other agent of the company would
be good. This is not such a case, and the
question it not here open for discussion.
A vast mass of business is now done
throughout the country by corporations which
are chartered by states other than those in
which the^ are transacting part of their busi-
ness, and justice reauires that some fair and
reasooable means snould exist for bringing
such corporations within the jurisdiction of
the eouiis of the state where the business
was done out of which the dispute arises.
It was well said in Baltimore d 0. Railroad
Company v. Harris, 12 Wall. 65, at 83 [20:
354, at 359], by Bir. Justice Swayne, in
speaking for the court, in regard to service
on an agent, that: 'MVhen this suit was com-
menced, if the theory maintained by counsel
for the plaintiff in error be correct, however
large or bmall the cause of action, and
whether it were * proper one for legal or
equitable cognizance, there could be no legal
redress short of the seat of the company in
>]aiiotlwr Btate. In many instances the *co8t
of the remedy would have largely exceeded
the value of its fruits. In suits local in their
character, both at law and in equity, there
could be no rdief. The result would be, to a
large extent, immunity from all legal respon-
172 XT. 8.
sibility.*' The court in view of these facta
was of opinion that Congress intended no
such result.
In holding the service of process upon this
particular agent sufficient in this instance
and so far as the character of the agent is
concerned, we do not, as we have already in-
timated, hold that service upon any agent
mentioned in the act of 1887 would be good.
That question is not before us.
Upon the question relative to the alleged
creation of a contract between the state and
the company, by the appointment of the sec-
retary of state as its agent under the act of
1875 to receive process for it, we have no
doubt.
The act of 1875 stated the term upon com-
pliance with which a forei^ corporation
should be permitted to do business within the
state of Tennessee. There was, however, no
contract that those conditions should never
be altered, and when, pursuant to the provi-
sions of the act of 1875, this power of attor-
ney was ffiven by the corporation, the state
did not thereby contract that during all of
the period within which the company mi^ht
do business within that state no alteration
or modification should be made regarding the
conditions as to the service of process upon
the company. When, therefore, in 1887 the
legislature passed another act, and therein
provided for the service of process, no con-
tract between the state and the corporation
was violated thereby, or any of its obligations
in any wise impaired, for the reason that no
contract had ever existed. Instead of a con-
tract, it was a mere license given by the
state to a foreign corporation to do business
within its limits upon complying with the
rules and regulations provided for by law.
That law the state was entirely competent to
change at any time by a subsequent statute
without being amenable to the charge that
such subsequent statute impaired the obliga-
tion of a contract between the state and the
foreign corporation doing business within its
borders under the former act.
'Statutes of this kind reflect and execute[621]
the general policy of the state upon matters
of public interest, and each subsequent legis-
lature has equal power to legislate upon the
same subject. The legislature has power at
any time to repeal or modify the act granting
such permission, making proper provision
when necessary in regard to the rights of
property of the company already aa^uired,
and pi^tecting such rights from any illegal
interference or injury. Douglas v. Ken-
tucky, 168 U. S. 488 [42: 553]. The cases
showing the right of a state to grant or re-
fuse permission to a foreign corporation of
this kind to do business within its limits are
collected in Hooper v. California, 165 U. S.
648, at 652 [39: 297, at 299, 5 Inters. Com.
Rep. 610].
Having the right to impose such terms as
it may see fit upon a corporation of this kind
as a condition upon which it will permit the
corporation to do business within its borders,
the state is not thereafter and perpetually
confined to those conditions which it made at
the time that a foreign corporation may have
availed itself of the right given by the state,
57(V
{
62i-e2d
SUPRBUB COUBT OF THB UmITBD 8rATl3:ii.
Oct. ToBi,
■■)
but it may alter them at its pleasure. In
all such cases there can be no contract spring-
ing from a compliance with the terms of the
act, and no irrepealable law, because they
are what is termed "governmental subjects/'
and hence within the category which per-
mits the legislature of a state to legislate
upon those subjects from time to time as the
public interests may seem to it to require.
Ad these statutes involve public interests,
legislation regarding them are necessarily
public laws, and as stated in Tfewton v. Com-
mis^onera, 100 U. S. 548, at 559 [25: 710, at
711].
"Every succeeding legislature possesses
the same jurisdiction and power with respect
to them as its predecessors. The latter have
the same power of repeal and modification
which the former had of enactment, neither
more nor less. All occupy, in this respect,
a footing of perfect equidity. This must
necessarOy be so in the nature of things. It
is vital to the public welfare that each one
should be able at all times to do whatever
the varying circumstances and present exi-
gencies touching the subject involved may
require. A different result would befranght
with evil.'*
(M2] *The same principle is found in the follow-
ing cases: ifnrihweatem Fertilizing Com'
party v. Hyde Park, 97 U. S. 659 [24: 1036] ;
Butchers' Union 8. H, d L. S, L, Company v.
Crescent City L, S, L, d S. H. Co, 111 U. 8.
746 [28 : 585] ; Boyd v. Alabama, 94 U. a
e45 [24 : 302] ; Douglas v. Kentucky, 168 U.
8. 488 [42:553].
When the legislature of Tennessee, there-
fore, permitted the oompanv to do business
within its state on appointing an agent
therein upon whom process might be senred,
and when in pursuance of such provisions
the company entered the state and appointed
the agent, no contract was thereby created
which would prevent the state from there-
after passing another statute in regard to
service of process, and maldne such statute
applicable to a company already doing busi-
ness in the state. In other words, no con-
tract was created by the fact that the com-
pany availed itself of the permission to do
business within the state under the pro-
▼isions of the act of 1876.
Upon the case as presented in this record,
we are of opinion that the service upon the
person in question was a good service in be-
lalf of the corporation. The judgment of
the Supreme Court of Tennessee is thfirefere
mtr^rmed,
Mr. Justice Harlan did not sit in and took
no part in the decision of this case.
FREDERICH HOENINQHAUS €t ^
Appts.,
V,
UNITED 8TATBa
(See 8. a Beporter's ed. 622-680.)
Tariff act of laOJ-^-cdditional duty.
1. Under the provisions of t 887 of the act of
Jnlf 24, 1897 and I 7 of the act of Jane 10.
576
1890. as amended bj f S!! of the act of Jttj
24. 1S97. Imported woven fabrics composed sf
silk and cotton are rabject to an ad vaJarea
duty ; or to a dutj bsaed upon or recolated la
some manner bj the value tbereoC
t. The additional duty of 1 per cemtmm of tki
total appraised vi^ae of soch merchaadlat te
each 1 per centum that such appralaei vste
exceeds the value declared In the 9mtrj a^
cmed on such articles when imdervalasd Is
the Invoice aeeordlng to the provlsloas of | T
of the act of June 10, 1890. aa aasndii lv
I 82 of the act of July M, 1807.
[No. 341.]
Argued January 11, 1899.
30, 1899.
0
N CERTIFIOATB from tbe XMbtk
States Circuit Ck>urt of Appeals te thi
Second Circuit oertityiqg certain unsstlnM
of law to this eonrt on an *ppoal to tkeX
court from a judgment of the CArcoH Govt
of the United States for the Southern Dh-
trict of New York affirming tbe deetskm sf
the board of seneral appriieara afirming thi
decision of the collector that eertaia goodi
imported by Frederich Howiiitthaaa et sL
were subject to the additiooml anty inoMi
under | 7 of the act of Jime 10, IMO, ss
amended by i 82 off theaot of Jv^ t4. 18if.
Questions answered im the afinnatiee.
Statement by Mr. Jostiee
*0n September 16, 1897, Fvotekk Bmi0
inghaus and Heniy W. Cutlaa imported, st
the Dort of New York, certain woren fatete
in tne piece, composed of aUk and eotloi.
Such fabrics were provided for in parsgraak
387, schedule d of the tariff aei ol Jo^ K
1897, which contains an elaborate eAme el
speciflo duties for goods of this dttractar.
the rates, varring from 60 ewts to fiM Mr
pound, depending upcm tbo weight off tli
fabric, the percentage of sUk ooatoinsdtajt
its oolor, its mode m manufaetiire, ela; sal
concludes with a proriaioii vbkli rmdi si
follows: *^ut in no ease shall any off te
foregoing fabrics in this paragraph pny s
less rateof duty than 60 pw ei
valorem."
The appraiser returned the
as manufaetnres of silk aad ootton is thf
gum, — tilk under 20 per e«it; and the «l-
lector assessed upon tne merehandJss • M
of 60 cents a pound, under tba p*ni**r
above mentioneo. On the last Hem of v
invoiee the appraiser inereased the vslmte
made in the invoiee to make market vetea
thus making the appraised Talne enesd tk
value thereof declared in the entrr. Tkef-
upon the ooUeetor leried aa addftmel ii^
of 1 per oentum of the total ^^rsissd fit*
for eaeh 1 ner oentum that sud appniM'
value egeeeaed the value dedarad ea mH
item in the entry, under Urn prorisiom i^
section 32 of the act of July 24, 1817, «M
is in the following terms:
'That the owner, consignee, or agent el dV
imported merchandise whi^ kas bsm i^
tually purchased, mav, at the time wImb Ij
shall make and verify his written eaCry «
such merchandise, but not afterwards, vi
18I8L
HOBNINeHAUS ▼. UMIT£D Statbs.
63d-620
nidi addition to the entry to the cost or
nine given in the invoice or pro forma in-
foiee or statement in form of an invoice,
wilieh he shall produce with his entry, as in
his opinion may raise the same to the actual
market value or wholesale price of such met-
chandise at the time of exportation to the
United States in the principal markets of
the country from whidi the same has been
imported; but no such addition shall be
(i]made upon entrv to the ^invoice value of any
imported merchandise obtained otherwise
than by actual purchase; and the collector
within whose district any merchandise nuiy
be imported or entered, whether the same
has beoi actually purchased or procured
otherwise Uian by purchase, shall cause the
tetnal market value or wholesale prioe of
rach merchandise to be appraised; and if
the appraised value of any article of im-
ported merchandise subject to an ad valorem
duty, or to a duty based upon or regulated
t» any manner by the value thereof, shall ea^
eeed the value declared in the entry, there
ikaU be levied, collected, and paid, in addi-
tion to the duties imposed by law on such
merchandise, an additional duty of one per
centum of the total appraised value thereof
for each one per centum that such appraised
value exceeds the value declared in the en-
try, but the additional duties onlj apply to
the particular article or articles in each in-
voice that are so undervalued, and shall be
limited to fifty per centum of the appraised
▼alne of such article or articles. Buoh addi-
tumal duties shaU not be construed to be
pemU, and shall not be remitted, nor pay-
m«it thereof in any way avoided, except in
cases arising from a manifest clerical error,
nor shall they be refunded in case of expor-
tation of the merchandise, or on any other
account, nor shall they be subject to the ben-
efit of drawback : Provided, that if the ap-
praised value of any merchandise shall ex-
ceed the value declared in the entry by more
than fifty per centum, except when arising
from a manifest clerical error, such entry
<htll be held to be presumptively fraudulent
and the collector of customs shidl seize such
merchandise and proceed as in case of for-
feiture for violation of the customs laws, and
in any \egsl proceeding that may result from
inch seizure the undervaluation as shown by
the appraisal shall be presumptive evidence
of fraud, and the buraen of proof shall be
<m the claimant to rebut the same, and for-
feiture shall be adjudged unless he shall re-
but such presumption of fraudulent intent
V Bufiicient evidence. The forfeiture pro-
vided for in this section shall apply to the
whde of the merchandise or the value there-
in in the case or packa|;e containing the par-
ticular artide or articles in each invoice
which are undervalued: Provided, further,
^]that all additional duties, 'penalties, or for-
feitures, applicable to merchandise entered
by a duly certified invoice, shall be alike ap-
plicable to merchandise entered by a pro
t<*rma invoice or statement in the form of an
isvoioe, and no forfeiture or disability of
•oy kind incurred under the proviaijns of
thb section shall be remitted or mitigated
172 V. 8. U. 8., Book 43. 3
bv the Secretary of the Treasury. The duty
shall not, however, be assessed in any case
upon an amount leas than the invoice or en-
tered lvalue."
Thereupon the importers filed a protest,
daiming that said merchandise, haiang re-
gard either to its invoice, entered, or ap-
praised value, was not subject to an ad va-
lorem duty, or to a duty based upon or in
any manner regulated by the value thereof,
but, on the contrary, was subject only to a
specific duty.
The board of general appraisers, under
the provisions of section 14 of the act of
June 10, 1890, afiOrmed the decision of the
colleetor, and hdd that such goods were
properly subject to the additional duty im-
posed under section 7 of the act of June 10,
1890, as amended by section 32 of the tariff
act of July 24, 1897.
From this decision of the board of general
appraisers the importers appealed to the
circuit court of the United States for the
southern district of New York, and after, iu
pursuance of an order of said court, the
board of general appraisers had made a re-
turn of the record and proceedings before
them, that court affirmed the decision of the
board of general appraisers. From the
judgment of the drcuit court an appeal wae
taken to the circuit court of appeals for the
second drcuit; and that court thereupon cer-
tified to this court the following questions
of law:
''First. Under the provisions of pariBLgraph
387 of the act of July 24, 1897, and section
7 of the act of June 10, 1890, as amended by
section 32 of the act of July 24, 1897, was
the merchandise in suit subject to an Ikd
valorem duty, or to a duty based upon or
regulated in any manner by the value there-
of.
"Second. Did the additional duty of one
per centum of the total appraised value of
said merchandise for each one per centum
that such appraised value exceeded the value
declared in *the entry, as applied to the par-[ra8]
ticular artide in said invoice undervalued
as aforesaid, accrue accordinff to the provi-
sions of section 7 of the act of June 10, 1890,
as amended by section 32 of the act of July
24, 1897."
Messrs, D7. Wlekluun Smltli and
Oharles Curie for appellants.
Mr. JohM K. Rleharda, Solidtor Gener-
al, for appellee.
*Mr. Justice Slilrae ddivered the opln-[686)
ion of the court:
The tariff legislation in question recog-
nizes three classes of merchandise subject to
duty. One is where the duties are purely
spedfic, another where the duties are wholly
based on valuation, and the third where the
duties are "regulated in any manner by the
value thereof."
All importations of merchandise must be
accompanied with an invoice stating the )co8t
or market value. The third section of the
act of June 10, 1890 (26 Stat at L. Ill),
provides that all such invoices shall have in*
T 577
{
05-689
SUFBBMB OOTJBT OF THB UHITBD 8tATE8.
doned thereon a declaration signed by the
purchaser, manufacturer, owner, or agent,
setting forth that the invoice is in all re-
spects correct and true, and was made at
the place from which the merchandise is to
be exported to the United States; that it
contains, if the merchandise was obtained by
purchase, a true and full statement of the
time when, the place where, the person from
whom, the same was purchased, and the ac-
tual cost thereof, and, when obtistined in any
other manner than by purchase, the actual
market value or wholesiale price thereof at
the time of exportation to the United States
in the principal markets of the country from
whence exported; that such market value is
the price at which the merchandise described
in tne invoice is freely offered for sale to all
purchasers in said markets, and that it Is
the price which the manufacturer or owner
making the declaration would have received,
and was willing to receive, for such merchan-
dise sold in the ordinary course of trade, in
|€B7]*the usual wholesale quantities; the actual
quantity thereof; and that no different in-
voice of the merchandise mentioned has been
or wUl be furnished to anyone; that, if the
merchandise was actually purchased, the dec-
laration shall also contain a statement that
the currency in which such invoice is made
out is that which was actually paid for the
merchandise by the purchaser.
The seventh section as amended by section
32 of the act of July 24, 1897, provides that
the importer, at the time he makes his en-
try, ma^ make such addition to the cost or
value given in the invoice as in his opinion
may raise the same to the actual market
value or wholesale price of such merchan-
dise in the principal markets of the country
from which imported; but no such addition
shall be made to the invoiced value of any im-
ported merchandise obtained otherwise than
by actual purchase.
These and other provisions contained in the
acts of June, 1890, and July, 1897» compel us
to perceive the importance attached by Con-
gress to the obligation put upon the importer
to furnish the appraisers and the collector
with a true valuation of the imported mer-
chandise; and also the care taken to relieve
the importer from a hasty or ill-considered
inUuation contained in the invoice, by giving
him an opportunit^r to raise such valuation
1^ voluntarily making such addition thereto
as to bring Uie same to the actual market
value, and by providing for an appeal by the
importer, if dissatisfi^ with the appraise-
ment, to the board of general appraisers, and
from the decision of the board to the courts.
The contention on behalf of the importers
is, in effect, that there are onlv two classes
of merchandLn to be considered,— one where
the duties are purely specific, and where it
is claimed no appraisement is required and
none is made, and the other where the mer-
ehandise is subject to an ad valorem rate of
du^; and that the merchandise in question
In this case belongs to the former class.
Without deciding whether, even in the
578
case of an importation of merdiaiidias wd
ject only to a specific duty, it is lawful I
dispense with an appraisement, our optsia
is that, in finding *the duty properlj mmam
able upon this merchandise, it wms oUigi
tory on the government officials to inquu
into its value, and that therefore tbe dot
was one regulated in some »"*"»»^«' W tib
value thereof. The fact that it tmned ort
in the present case, that the goods did ■§
pay a lesB rate of duty than ftf^ per ecnta
ad valorem, did not relieve the ^prai«
from inquiring into and detenninuig tk
value of the foods. And if it was the doq
of the appraiser, in order to raable him ta
fix the duty, to inquire into the value of tk
imported merchandise, he was entitled M
the aid afforded him in such an inquiry ^
the production of a true and correet invoiee.
^e cannot accept the contention of the is-
porters that, where articles of merrhawKw
are entered and appraised, the iaqanj
whether the appraised value exceeds the o-
tered value is immaterial, unless, as a i*>
suit of such inquirv, such articles have in-
posed upon them ad valorem duties.
The importers had no right to detemiis
for themselves in advance whether a ^>ect5e
duty or an ad valorem duty should be imti
The dut^ was to be regulated by the valor d
the goods. A duty at least equivalent to la
ad valorem duty of fifty per centum had ta
be levied, and to determine what du^ vu
leviable it was necessary for the ooUectar
and appraisers to be truthfully advised of tbt
value of the goods.
It is urged that, as specific duties were ae
tually assessed in the present case, itthcrrfon
appears that the importers were not boi^tac
by the undervaluation ; that the revenue btf
not and could not suffer anything by the n-
dervaluation; and that a mere differcnor oi
opinion between the importer and the m^-
praisers as to the value of the floods ahea*^
not subject the former to an additional dorr.
But what might seem to be the hardship <i
such a case cannot justify the appraisers or
the courts in dispensing with the rcesim
ments of the statutes. Tne meaning and pet-
icy of the tariff laws cannot be ma& to piU
to the supposed hardship of isolated eue*-
Nor is it apparent that the enforeemcst U
the statutory requirements can be ioftlr
termed a hardship to importers who takt tl«
risk of an undervaluation. The burden *<-fJ
furnishing a true and correct invoice in n^
a case is no greater than that impoacd oa
other importers where goods are oonfcMrilT
within the category of goods subject to aa m
valorem assessment.
The administration of such laws caaaot to
narrowed to a consideration of every csit «
if it stood alone, and as if the only qiwirtna
was whether there was an actual iatcBtke
to defraud the government. Wide sad kat
experience has resulted in the rwnnias< tkat
all importations of merchandise msst W i^
companied with a true and oorrect iivoic*
stating the cost or market value. liks 9^
importers, the present appdlants msit ^n*
ply with thi^ command, and if the? ks«
Mabhhaij. ▼• BuBm.
«W-08I
llted to do 10 th^ must be held to be subject
0 the additional intj imjposed by the statute.
f tbm statutory regulations are found to be
oo ■trincent, the remedy cannot be found
ith«r in ue courts, whose duty is to construe
hem, or in the executive officers appointed to
arrr them into effect, but in Ck^ngress.
We h&Te been referred to no decision of this
ourt directly applicable to the case in hand,
iut Pings T. United Stales, 38 U. S. App. 250,
b cited. That was a case arising under the
ariff aet of October 1, 1890 (26 Stat at L.
Mt7 ) , whereglores were imported into the port
if New York uid were dutiable at $1.75 per
lozen, unless their value exceeded $3.50 per
kaen, in which case they would be dutiaole
it fifty per centum ad valorem. The ap-
[»raiser advanced their value in excess of ten
per centum of the value declared in the entry
and the propriety of this advance was not
inestionea. The appraised value, however,
was not in excess oi $3.50 per dozen. The
collector held the merchandise liable to the
additional duty prescribed by section 7 of the
customB administration act of June 10, 1890.
The importer's contention, that the addition-
al duty should not be exacted because gloves
of the Kind imported pay a specific duty, and
bemuse the advance, although in excess of the
ten per centum, was not siuScient to require
him to pay the ad valorem duty exacted by
the last proviso of paragraph 458 of the tariff
act of October 1, 1890, was sustained by the
hoard of ffeneral appraisers. But the circuit
I'comt httd otherwise, and on appeal the cir-
cuit court of api^eals for the second circuit
affirmed the decision of the circuit court
The court of appeals reviewing the provisions
of the act of June 10, 1890, held that where
the indue of the goods determines the ques-
tion whether they are to pav specific or ad
valorem duty, appraisement is essential, and
that it is to be expected that the statute
should require the importer himself to state
the value of his goods faithfully and truth-
fully, and to enforce that requirement by ap-
propriate penalties. The court said: "We
Bes no reason for restricting the broad Ian-
pu^ of the statute, and concur with the
jud^ who heard the case in the circuit court,
that the statutes require that all imports be
entered at fair value, and that the provision
for increasing duties for undervaluations of
inore thsm t^ percentum makes no distinc-
tion between specific and ad valorem duties,
or between undervaluations that may affect
the amount of regular duties and those that
wiUnot"
This case was under another statute, in
somewhat different terms, but the reasonins
upon which that decision went is that which
we have pursued in the present case, and
meets with our approval.
Our conclusion is that the questions certi-
/!ed to us by tiie judges of the Circuit Court
of Appeals shovMhe anstoered in the afprma-
tive, and it is so ordered.
Hr. Justiee PeeUuun dissented.
172 V. M.
NOBTON MAKSHALL^ Apff .,
PETER T. BURTI8.
(See 8. a Reporter's ed. esO-eSS.)
Appeal from supreme court of territory.
On appeal from the supreme coort of a t«^
rltory. If there is no flnding of facts or state-
ment of facts In the natore of a spedal ver-
dict it must be assumed that the Judgment
was Justified by the evidence.
[No. 118.]
Submitted January 10, 1899, Decided Jath
uary SO, 1899.
APPEAL from a judgment of the Supreme
Court of the Territory of Arizona affirm-
ing the judgment of the District Court of
that Territory in favor of the plaintiff ad-
juds;ing that the plaintiff is owner of certaim
real estate in Maricopa County in tliat terri-
tory. Affirmed,
The facts are stated in the opinion.
Messrs, It. E. Payson and HamUtan S
Armstrong for appellant
Messrs, A. H. Garland, B. O. Garland,
and E, P, Budd for appellee.
*Mr. Justice MoKenna delivered the [681]
opinion of the court:
This is a suit to ^uiet title to a lot in the
dty of Phoenix, Arizona, described as lot 8
in blodc 1 in Neahr's addition to said city.
The appellee was plaintiff in the court below
and the appellant was defendant, and we
shall so desiffnate them.
The plaintiff alleged that he was in pos-
session as owner in fee, deriving it from one
Friday Neahr, commoiUy known as Mary F.
N^ihr, an unmarried woman over twenty-one
years of age, by a deed dated October 14,
1892. That the defendant, contriving to de-
fraud him (the plaintiff) and doud his title
to the property, induced said Friday Neahr,
by false and fraudulent pretenses, and with-
out consideration, to sijp and acknowledge
an instrument in writing, the contents of
which were unknown to her, which instru-
ment was a conveyance to him from her of
the property, and in which she was induced
to frauoulently state that she was not of law-
ful age when she executed the deed to the
plaintiff, and that said instrument was re-
corded in the office of the county recorder of
Maricopa County, "all to the great injury of
this plaintiff in the sum of five thousand dol-
lars.'' Judgment was prayed that the in-
strument to Marshall be delivered up and
canceled, and that plaintiff have damages in
the sum of five thousand dollars, and for gen-
ataI relief
The answer admits that Friday M. Neahr
was seised in fee of the property) cuid ex-
ecuted a deed therefor to the pluntiff, and
that he entered into and was in possession
thereof, and ti^at he (the defendant) ob-
tained a deed therefor on the 26th day of
October, 1894.
The answer puts in issue all other aver-
579
681-684
SuPREMB Court of thb tlNiTBD States.
Oct. Tbd^
ments, and alleees hj w&j of cross complaint
that when Friday M. Neahr executed the
deed to plaintiff she was under twenty-one
[MSJvears, to ^ wit, nineteen years, which plaintiff
knew. That Friday M. Neahr derived the
property from her uither by a deed of sift,
in which it was expressly provided and lim-
ited that she should have no power of dispo-
sition of said premises until she arrived at
the age of twenty-one years, which plaintiff
knew. That she attained the age of twenty-
one on the 7th of September, 1894, and on the
24th of October, 1894, she "executed, ac-
knowledged, and delivered to this defendant,
for a valuable consideration, then and there
paid to her by the defendant, a deed of con-
veyance in writing, with full covenants of
seisin and warranty, conveying to this de-
fendant the lands and premises described in
the plaintiff's complaint herein, and therein
and thereby said Friday M. Neahr expressly
reyoked and disaffirmed the aforesaid at-
tempted conveyance of said premises to the
plaintiff, and this defendant thereupon be-
came, ever since has been, and now is the law-
ful owner of said premises and the whole
thereof, and elltitled to possession thereof;
that said plaintiff has no riffht, title, claim,
or interest whatsoever in said premises, and
the claim of the plaintiff to ownership there-
of is without foundation and against the
rights of this defendant, and is a doud upon
the title of this defendant to the said prem-
ises." Wherefore the defendant prayea that
the deed to plaintiff be declared invalid and
he be enjoined from setting up any claim to
the property, and that defendant be adjudged
the owner.
A trial was had on these issues before the
court without a jui7> and judgment was
given for the plaintiff.
The judgment recited that —
"Evidence upon behalf of the respective
parties was introduced and the cause was
submitted to the court for its consideration
and decision, and, after due deliberation, the
court orders that plaintiff have judgment.
''Wherefore, by reason of the law and the
premises aforesaid, it is ordered, adjudged,
and decreed that the plaintiff Peter T. Bi:^8
is the owner of the foUowimr described real
estate, situate in Maricopa County, Arizona
Territory, to wit [describing it] ; and that
said defendant Norton Marshall is not the
[6M]owner of ^said lot number eight (8) in blodc
number one (1) of Neahr's addition or of
any part thereof, and that the deed of said
8 remises heretofore executed by Friday Mary
Feahr to said Norton Marshall, of date Octo-
ber — , 1894, and recorded on the 29th day
of October, 1894, in book 37 of deeds, pase
65, in the office of the county recorder of said
county of Maricopa, is inyeilid and of no ci-
feet, and the same is hereby annulled and
canceled, and the said defendant Norton
Marshall has acquired no claim, title, or
right by virtue of said deed in or to the prem-
ises described therein, to wit, said lot num-
ber eight (8) in block number one (1) of said
Neahr's addition to the city of Phcsnix, and
said defendant is hereby forever restrained
and enjoined from asserting any claim or
title to said premises or any part thereof \f
virtue of said deed.
"And it is further ordered, adjudged, aad
decreed that said defendant Norton M^^i^***"
take nothing by his cross complaint tkd.
herein, and that said plaintiff Peter T. Bnrta
do have and recoyer of and from the said de-
fendant Norton Marshall his costs and dis-
bursements herein, taxed at $53.30."
A motion for a new trial was made tad
denied, and an appeal was then taken to tkt
supreme court of the territory, whi^ li-
firmed the judgment of the district court.
To review the judgment of the suprem
this appeal is prosecuted.
There are fourteen assignments of
some of which attribute error to the tiidf^
ment, some to the supposed finding ci tk
court of the validity of the deed to plaistif
and invalidity to that of defendant, aad m-
signing ownership of the property to tJbt
former and nonownership to the latter. The
second and third assignments of error are m
follows :
2. "The said court erred in refssing ts
sustain the errors assigned on tlw appsB t»
it from the district court.
3. "The said court erred in refuainff to iv-
verse the said cause for the errors oiOt db>
trict court assigned."
Adverting to the errors mucgntd oa a^
peal to the district court, those which wt
iMLsed on the action of the court other tei
the judgment were in refusing a new tml
and "generally in admitting improper ev>
dence offered by the ^plainuff, to whkk t^i
defendant duly objected and took excaptina,
as appears fully in the bill of exeeptioaa*
There is no other specification ol error is
the admission of testimony and there it b»
specification in the briefs as required by rik
21. Lucas v. Brooks, 18 WalL 436 [tl
779] ; Benites v. HampUm, 123 U. S. 51f
[31 : 260]. Indeed, error on adinittin| Uttt-
mony is not urged at all and probal^f «ai
not intended to be. The statement of eon*
sel is:
"The errors assigned reach every powftli
phase of the case, and need not be spectimlly
referred to here.
"The judgment appealed from, being |«-
eral, requires an analysis of the case.
'^e only possible questions may be •i'
to be —
"1. That Neahr was of full age whm iht
made the deed to Burtis, October 14, 18IL
"2. U not, that she teiled to dimSm
within a reasonable time after sttsistig kr
majority.
<^3. That she ratified her deed to Bvtii
before deeding to Marshall and after atu»-
ing majority.
"4. That she was estopped to diaaffm. ^
her own act in averring her majority ia mt
cuting the Burtis deed.
"5. That she was bound to restore tkt em*
sideration to Burtis before an effeetift dt^
affirmance.
"6. That MarshaU, knowing the priar 4mi
to Burtis, could not take title to luww
in October, 1894.
"The first three propositions praaoK fsif
\nv.t
vm.
MCQUADB T. TBBNTOH.
It qnettioiiB of fact, and upon this record it
i nnpoasible that the court below could
ktfe based its judgment upon an affirmance
sf dther of the three.
The last three propositions present solely
fOMtions of law, and these it is confidently
rabmitted are only to be resolved in favor of
^pdlant.'*
We are not required, therefore, to review
tbe rulinffs of the disMct court on admission
er rejeouon of testimony. Does the record
msent anything else for our determination T
In Idaho d Oregon Land Improv. Oo. v. Brad-
^, 1S2 U. S. 609 [33 : 433], this court said,
bj Mr. Justice Gray, that "Congress has pre-
scribed that the appellate jurisdiction of this
Jeoort over ^'judgments anddeoreeB' of the ter-
ritorial courts 'in cases of trial by juries
ibaU be ezerdsed by writ of error, and in all
other cases by appeal; 'and 'on appieal, instead
ef the evidence at large, a statemoit of the
fteti d the case in the nature of a special
Terdict, and also the rulings of the court on
the ad^ussion or rejection of evidence when
excepted to, shall be made and certified to
by the court below,' and transmitted to this
court with the transcript of the record. Act
of April 7, 1874, chap. 80, § 2 (18 Stat, at
L. 27, 28). The necessary effect of this en-
tctnient is that no judgment or decree of the
highest court of a territory can be reviewed
by this court in matter of fact, but only in
matter of law. As observed by Chief Justice
Waite: 'We are not to consider the testi-
BOBy in any case. I^^n a writ of error we
are confined to the bill of exceptions, or ques-
tions of law otherwise presented by the rec-
ord; and upon an appeal to the statement of
fkcts and rulings certified by the court be-
low. The facts set forth in the statement
which must come up with the appeal are con-
dnsiTe on us.' Hoohi v. Boughton, 106 U. S.
235, 236 [26: 1018]." See also B<Mna Btook
Go, V. Salina Oroek Irrig. Oo. 163 U. S. 109
[41: 00] ; OUderaloeve v. New Mewioo Mining
Co. 161 U. S. 573 [40: 812] ; Hawa v. Vtoto-
ria Copper Mining Oo. 160 U. S. 303 [40:
436] ; San Pedro d OatUm Del Agua Oo. v.
United atatee, 146 U. S. 120 [36:912];
Mimmoth Mining Oo. v. Bali Lake Foundry
end Machine Oo. 161 U. S. 447 [38: 229].
There were no findings of facts by the dis-
trict court or 1^ the supreme court, hoice no
'"itatement <rf facts in tne nature of a 8|wcial
nrdict," and we must assume that the judg-
Bent <j the district court was justified by t&
eridence, and the judgment of the Supreme
Court euataining it is affirmed,
^ JOHN MoQUADE, Plff. in Err.,
V.
INHABITAirrS OF THE CITY OP TREN-
TON.
(See t. C. Beporter's ed. 68^-4140.)
Federal queBii4m.
As lajimctten by a state court against Inter-
ference with the constmetion or maintenance
of a sidewalk and curbing in front of d«f end-
•afs premises, where he has forcibly Inter-
fered, claiming that his property is being
taken wlthoot compensation, does not present
t Federal question, when the coort assumes
Uf right to damages, bnt holds that he has
172 v.n.
684-687
resort to ai^
mistaken his remedy and mnst
ether proceeding for damages.
[No. 126.]
Argued January 12, 1899. Decided Januairy
SO, 1899.
IN ERROR to the Court of Errors and Ap-
peals of the State of New Jersey to review ,
a decree of that court dismissing the i^ppeal '
in this case and remanding the case for aa
execution of the decree of the Court of Chan-
eery of that state perpetually enjoining the
defendant^ John McQuade, in a suit by the
inhabitants of the city of Trenton from in-
terfering with or removing a sidewalk and
curbing. Writ of error diamieaed.
See same case below, 52 N. J. Eq. 669.
Statement by Mr. Justice Browns
TliiB was a bill in equity filed in the court
of chancery of the state of New Jersey by
the Inhabitanto of the City of TrentCHi
against John McQuade, to enjoin him from
interfering with the relayinff of a certain
pavement and the resetting of the curb and
gutter in front of bis premises, in the ci^
of Trenton.
The bill averred in substance that a change
of grade on the street in front of the premisea
of the defendant was made by a city ordi-
nance, at the special request of the Pennsyl*
vania Railroad Company, upon an agre^
meut by the latter to make the changes, to
carry off all the surface water diverted or
chanffcd by the alteration, and to indemnify
the dty; but that the defendant, McQuade,
who owned a lot upon the street m question.
not only notified the workmen to desist from
changing the grade, but forcibly interfered
with their work by throwing hot and cold
water on the men engaged in such work, and
thus tried to prevent its being carried on;
and that after the pavement had been relaid
in front of his property he tore it up, and
rendered it nearly impassable for pedestrians
bv digging a hole in the sidewalk in front of
his premises, and keeping the same filled
with water.
In his answer, defendant denied that the
railroad company had provided means to
carry off the surface water, and alleged that
the provisions made were utterly inadequate,
and that his property had been damaged hj
the overfiow of water ^into his cellar. He[687)
further averred that the change of grade au-
thorized by the dty ordinance was not a
proper change of grade, but that the altera-
tion related to the construction of approach-
es to an elevated bridge, and was a matter
over which tttt common council could not ex-
ercise any legal authority whatsoever; thai
by the attempted alteration of the grades,
the surface water, instead of passing through
the street, was caused to accumulate immedi*
ately in front of the defendant's property,
and was likely to overfiow the side-
walk and into the defendant's cellar;
that if the sidewalk in front of defendant's
groperty were raised to the grade mentioned
I the ordinance, the cellar windows of his
house would be practically doeed up and his
free access to the street greatly impaired;
that the alteration of the grade was a woj*
581
1
6t7-«40
SUPBBMB COUBT OF THB UkITSD 8tATB8.
Oct. Tbh,
Cttrrkd on at tha ezpeuaa of and for the lole
bflooftt of tho railroad company; that inch
oompany had no aathority under the law to
do tBo work and thereby damage^ def aidant's
property without first making compensation
for the damage he would sustain by reason
of such work; and that he had a right to pre-
. Tent the completion of the work until he
should haTO received full compensation for
all damages he would sustain by such work,
and hence that complainants were not en-
titled to the relief prayed for. Further an-
swering, he insisted that under the Consti-
tution of the state he had a right to free ac-
cess to the street from his property and to
the free admission of light and air ; and that
no alteration in the grt^e of the street could
be lawfully made until a proper method of
procedure should have been prescribed by the
legislature for the exercise of the power of
eminent domain, ^herebv this oefendant
may receive proper and aaeauate compensa-
tion for the damage that will result to him
by said alteration of grades and eandusion
A light and air.**
The case was heard upon the pleadings and
proofs, and a decree rendered that the defend-
ant be perpetually enjoined from interfering
with the completion of the sidewalk and
cnrbinff, and from removing or interfering
with the pavement, sidewalk, or curbing a£
ter the same shall have been completed.
[6M] *In his opinion the vice chancellor put the
case upon the ffrounds that the defendant had
no right to take the law into his own hands
and bid defiance to the dty authorities; that
the city being liable for damaffee sustained
because of the want of repaired streets, and
having undertakm to repair them according
to the grade which had oeen prescribed, the
court was justified in enjoining defendant
from any interference; that the only Question
at issue was one with respect to the oamages
to which McQuade was entitied; that he
might have ascertained these before the dty
or railroad company took any steps, but tiiat
he allowed the company to go on and make
all the chanj^es necessary without taking di-
rect proceedings to compel them to ascertain
the oamsges and compensate him; and that
he has stul an ample remedy for a redress of
his grievances without Interiering with the
right of the public to the use of the street In
front of his dwelling.
From this decree McQuade appealed to the
court of errors and appeals upon the ground
that under sudi decree the complainants
were permitted to take and damage his prop-
erty for public use without compoisation, be-
cause no procedure for taking and injuring
his property in the manner set forth had been
prescribed by the legislature, and "because
the decree is in sund^ other respects contra-
ry to the Constitution of the XJnited States
and to tiie law of the land." The petition
of appeal was dismissed by the court of er-
rors and appeals and the case remanded for
an execution of the decree. No written opin-
ion was ddivered.
Hr, David MeCliire for plaintiff in error.
Ko oounsd for defendants in error.
*Mr. Justice Br«wm delmrad Iks epM
ion otf the court: " "^
The prindpal contention of tiM plalalif
in error (the defendant bdow) is that» as kij
had never been ooii^>eneated in ^dasMSs la|
the injury to his wsftstj by lOtarag tki i
grade of the street in mmt of hla lot. he hiA
a right to abate the nuisance caused by tk
proposed dianges, and that in the rctesl d
the state court to recoenise this priadfii
he had been deprived of his piopeii? witlMl
due process of law within the mf ning of tk
Fourteenth Amendment to the Federal Osa-
stitution.
But no sudi question was raised ia tb
pleadings, unless the aUesation <rf the la-
swer that the plaintiffs had no ri|^t to aib
the alterations in question without first eo»
pensating defenduit for his damagM b
treated as equivalent to an alkntia
that his propeo^ had been taken nittsat
due process of law. The right of the drfiai
ant to damages was, however, aaamned ia tb
opinion of the vice diancellor, who dlspod
of the answer \tw saying that the defaaisir
had mistaken his remray, and must xmmX
to another proceeding against the dty fcr
his damages. This was beyond all dealt t
ruling broad enough to support the dseni
rofardless of any Federal oueatioa tbl
mQ^ht posdbly have been raiaea froas tht al-
legation of the answer. In hia pelltioa fv
an appeal, defendant repeated hla aDvata
that lua property had been damaged aitkiat
compensation, and averred gaaSrallv ttst
the decree was contrary to XSm Ooasatatia
of the United Statea, but made no spariif il-
legation of any coadBlet therewith. At tkt
court of errors and appeals deliverad it
opinion, It is impossible to st^te dcfiaittiy
upon what ground the decree of the vi«
ohancdlor was affirmed. The presaspte
is that it was satisfied with the opiaiN 4.
the court bdow, and affirmed the dsent fv
reasons stated in the opinion of the vies
cellor; but, however tnis may be, it is
evident that a Federal question was an
necessarily involved in the caae, and hatt
that this court has no jurisdietloB. tm-
kawna Water Poioer Compamy v. Orwm Bt^
d M. Canal Co. 142 U. 8. 254 [35: IM]:
Chicago Life Ine, Co. v. Needlee, US U. 8.
674 [28: 1084] ; Eureka Lake d 7. Cmiei Ol
V. Tuba Co%mtf Buper. Ci. 116 U. 8. 411
[29:671].
We have repeatedly hdd that even tbt ir
dsion by the state court of a Federal fa»
tion will not sustain the jurisdiction d tka
court, if another question not Fsdenl aw
also raised and dedded against the pl^,^
tiff in error, and the decision thereof ^bsfm**
dent, notwithstanding the Federal qasite.
to sustain the judgment. Mndi man it tka
the ease where no Federal question is ibsvi
to have been dedded, and the ease vfl^
have been, and probably waa, dlipnsd if
upon non-Federal grounds. Hmrrimm v.
Morton, 171 U. 8. S8 [43 : 6S] ; Assm «•
Tewaa, 163 U. 8. 207 [41: 132], and mm
dted.
The wrU of error in thie emee smmI Cft«»
fore he diemieeed,
inv.t
CLXXII UNITED STATES.
m U. 8. 1-28, 19 8. Ct 77, WALLA WALLA T. WALLA WALLA
WATBBOO.
Oosurtltutional law.— Franchise to supply water to city is con-
tract within obligation danse aft^ conditions performed, p. 9.
ApproTed in Iron Mountain R. R. v. Memphis, 96 Fed.' 126, 128,
181, municipal resolution forfeiting franchise for breach of con-
dltlcm is a law within constitutional meaning.
Distinguished in North Springs Water Go. v. Tacoma, 21 Wash.
632, 58 Pac. 778, under facts.
Constitatlonal law.— State legislature may delegate portion of
•orereignty to Inferior bodies for local purposes, p. 9.
Municipal corporations may be empowered to grant franchises
for public utilities, pw 9l
Courts.— Allegation that city, by erecting water works, would im-
pair yalue of plaintHTs property, raises Federal questicm, p. 11.
Equity.-% Remedy at law, to exclude concurrent remedy in equity,
must be complete, practical, efficient and prompt, p. 12.
Approved In Chesapeake, etc., Tel. Ca v. Baltimore, 89 Md. 717,
48 AtL 789, enjoining city officials from interfering with construc-
tion of underground conduits.
Equity has jurisdiction to enjoin erection of city water works
In violation of contract, p. 11.
Followed in Defiance Water Co. v. Defiance, 90 Fed. 754.
H^nopolj is not created by grant of right, for twenty-five years,
to lay and maintain water pipes, p. 15.
Municipality's contract with water company to furnish water
for specified period Is valid, p. 17.
Constitation.— Mere fact that supply <^ water is Inadequate gives
city no right to disregard contract, p. 18.
Distinguished in Bienville Water, etc., Ca v. Mobile, 95 Fed. 543,
Presldoit, etc., Colby University v. Canandaigua, 96 Fed. 452, and
Vorth Springs Water Co. v. Tacoma, 21 Wash. 535, 58 Pac. 779,
under language of franchise grant
XiiiiicipalitT'a contract to pay certain amount per annum for
w^ter Is not void because total payments exceed limit of lndebt«
p. 19.
1071
V. S. Notes 172 U. S. 43 L. ed. 582—14 r.
172 U. S. 24-82 Notes on U. 8. Reports. 1072
Approved In Defiance Water Co. v. Defiance, 90 Fed. 754, con-
tract for hydrants for series of years, exceeding statutory limit ii
void only as to excess.
^ Denied in City Council of Dawson y. Dawson Water-Works Go,
!i 106 6a. 714, 717, 82 S. E. 914. Distinguished in Hel^a v. MOls,
'vJ 04 Fed. 919, 920, where yearly amount to be raised exceeded statn-
t(N7 debt limit
172 U. 8. 24-81, 19 S. Ct 67, ANDBRSEN v. TREAT.
Habeas corpus cannot be used as writ of error, p. 29.
Criminal law.— Refusal to allow prisoner to see attomej of Ui
own selection, before preliminary hearing, h^d proper under facti»
p. 80.
Not cited.
172 U. a 32-48. 19 8. Ct 90, PITTSBURGH, ETC.. RT. T. BOARD
OF PUBLIC WORKS.
Federal court will not enjoin State tax unless It Is Illegal and at
adequate remedy at law exists, p. 87.
Followed in Arkansas Bldg. Assn. t. Madden, 175 U. 8. 272, )D
S. Ct 120.
Taxation.— Bridge is realty and part within State Is taxabk^
p. 43.
Followed in Henderson Bridge Co. t. Henderson* 17} U. S. 6B,
19 S. Ct 565.
Taxation.— Proyisi<Hi for review of assessment by County Court
affords adequate remedy and precludes injunction, p. 46.
Taxation.— Notice of decision of State board on asseimeot sf
railroad, with right to appeal, is sufficient p. 45.
172 U. & 48-^ 19 8. Ct 86, UNITED STATES T. WARDWBLU
Courts.— Secti<Hi 1069, R. S., limits cases cognizable in Court ef
Claims, pc 62.
United States is bound by continuing promise in \\ 806-Mk
R. S., to h<^dars of its pap^ , p. 68.
Courts.— Limitation prescribed by | 1069 runs from breach of
c<Hitinuing contract betwe^i government and claimant p. 68.
Not cited.
172 U. S. 68-82, 19 8. Ct 97, GREEN BAY, ETO, Oa T. PATTIH
PAPER CO.
Courts.— Denial of alleged rights, under contract with Ualtid
States, raises Federal question, p. 66.
Courts.— No particular form oC wocds Is necessary to calse FiA-
eral question, p. 67*
1078
Notes on U. S. Reports.
172 U. S. 82-148
Approved In Dewey v. Des Moines, 173 U. 8. 199, 19 8. Ct 381,
and Citizens' Sav. Bank v. Owensboro, 173 U. 8. 644, 19 8. Gt 633,
disregarding Federal questions not raised below.
Water power created on Fox river in Wisc<Hisln, dedicated by
United States and State, is within control of former, p. 68.
Reaffirmed in 8. O^ 173 U. 8. 189, 19 8. Gt 316, denying petitlim
for rehearing.
172 U. 8. 82-101, 19 8. Ct 106, MEYER v. RICHMOND.
Supreme Court may review State decision where Federal ques-
tion raised on motion to set aside demurrer, p. 91.
Higliways.— Consequential damage, through imposition of addi-
tional easement on street, is not deprivation of property, p. 94.
Not cited.
172 U. 8. 102-133, 19 8. Ct 134, McCULLOUGH v. VIRGINIA.
Tender.— Virginia act of 1871, malsing coupons of refunding
bonds receivable for debts due State, is valid, p. 109.
Federal courts will follow State courts* construction of State
statutes unless contracts thereunder are alleged impaired, p. 109.
Taxation.— Provision for payment of taxes in coupons is not
void because certain taxes are payable in cash, p. 110.
Approved in Columbia Water-Power Co. v. Columbia Electric,
etc.. Power Co^ 172 U. 8. 487, 19 8. Ct 251, Supreme Court con-
strues for itself contract alleged to be impaired.
Snpreme Court may examine and determine real substance and
effect of State decision, p. 117.
Courts.— State decision, giving effect to statutes impairing con-
tract under prior act raises Federal question, p. 116.
Costs cannot be taxed against plaintiff in abated suit p. 128.
Judgment is not affected by later change of remedy for enforce-
ment of right involved, p. 123.
172 U. 8. 133-148, 19 8. Ct. 114, UNITED STATES v. RANLETT.
Cnstoms.— Appraisers' decision that goods are not as invoiced is
final until reversed, p. 141.
Customs.— Appraisement is valid as against importer, although
not in accordance with § 2901, R. 8., p. 142.
Customs.— It is for importer, and not government to separate
free from dutiable goods, p. 145.
Approved in United States v. Brewer, 92 Fed. 844, 68 U. 8. App.
266, onus is on importer to show part of commingled goods not
dutiable.
Customs.— Highest rate applies where goods of different TSlues
or qualities are commingled, p. 144.
V<HU XII —
172 U. S. 14S~239 Notes <hi U. S. Reportt. 1074
172 U. S. 14g-17a 19 S. Ct 119, HABERADBR t. WADLET.
AppaaL— Final order In habeas corpiis, made by Circuit Court at
stated term, is appealable, p. 162.
Federal court, which has appointed receiver for bank, cannot «-
Join State prosecntlon for ^nbezzlement, p. 164.
Approved in Fitts v. McGhee, 172 U. & 531, 19 S. Ct 275, Fed-
eral court cannot enjoin State officers ht>m enforcing bridge toD
reduction.
Vedaral court, in equity, having Jurisdiction over person and
property, is not thereby vested with criminal Jurisdiction, p. 170.
Distinguished in Rodgers v. Pitt, 96 Fed. 670, assignee of plaln-
titr in State court may sue in Federal court
172 U. S. 171-186, 19 S. Ct 128. NEW BiBXICO V. UNITED
STATES TRUST CO.
Zntemal revenue — Ballroads.— Act exempting right-of-way OTtf
public lands from taxation, exempts improvements, p. 181.
Modified in S. C, 174 U. S. 545, 19 S. Ct 784, right-of-way ac-
quired from private owners is not exempt
172 U. S. 186, 19 S. Ct 881, TERRITORY T. UNITED STATES
TRUST CO.
Adjudged in conformity with preceding case, q. v.
172 U. S. 186-206, 19 S. Ct 146, THE ELFRIDA.
SalTage contracts will not be set aside because compensation li
unreasonable, unless exacted under compulsion, p. 196.
Salvage contract is not objectionable because resulting more or
less favorably to party than anticipated, p. 197.
Salvage.— Contract for payment of one-quarter of value of vend
if saved, otherwise nothing, upheld, p. 205.
Not cited.
172 U. S. 206-232, 19 & Ct 153, UNITED STATES T. LOUGH-
RET.
Public lands.-* Act of 1856 vested fee in Michigan on cooditioD
subsequent that railroad be built, p. 209.
Poblio lands.— Timber cut before breach of such condition bt>
longed to State, p. 211.
Trover.— Plaintitf must show possessi<Hi or right thereto^ to dt*
feat trespasser's allegation of title in strangw, pw 219l
Not cited.
172 U. S. 232-239, 19 S. Ct 168, GRANT v. BUCENER.
Judgment that person is entitied to undivided half under dMd
determines pre-existing right dating from deed, p. 286.
1075 Notes on U. S. Reports. 172 U. S. 23^-303
Beceiver collecting rents from party afterwards adjudicated to
have undiTlded Interest must account to him, p. 238.
Federal court recelyer, going into State court, cannot questioB
latter's authority to decide pending question, p. 238.
B«c«iT«n.— Set-off Is contemplated by act allowing suit against
Federal court's recelyer without obtaining leave, p. 238.
Cited In note in 71 Am. St. Rep. 867.
172 n. S. 289-269, 19 S. Ct 166, BLAKE v. McCLUNG.
Constitution.— State law giving residents priority in distribution
of Insolvent corporation's assets violates privilege and Immunity
clause, p. 247.
Approved in Belfast Sav. Bank v. Stowe, 92 Fed. 102, 108, 104, 68
U. S. App. 17, 19, 20, common-law rule that foreign assignment does
not affect local attachment is not enforceable against non-resident
creditors; Maynard v. Granite State Provident Assn., 92 Fed. 438,
annulling preference given local stockholders en assets of n<Hi-resl-
dent building association; McClung v. Embreeville, etc., Ry., 103
Tenn. 402, 404, 62 S. W. 1002, non-resident citizens do not share in
preference given to local creditors over foreigners; Wilson v. Keels,
64 S. C. 656, 71 Am. St Rep. 821, 32 S. E. 706, and Williamson v.
Eastern Bldg., etc., Assn., 64 S. C. 699, 71 Am. St Rep. 831, 82 S. B.
771, arguendo.
Corporations.— Power to impose conditions upon foreign corpora-
tions cannot be used to impair privileges and immunities, p. 264.
Constitution.— Privilege and immunity clause forbids only such
laws as practically render n<Hi-residents aliens, p. 266.
Approved in Comm<mwealth v. Hilton, 174 Mass. 32, 64 N. E. 368,
45 L. R. A. 478, upholding municipal regulation restricting p«*mits
for dam-digging to residents.
Corporation is not citizen within privilege and immunity clause.
p. 269.
Followed in Orient Ins. Co. v. Daggs, 172 U. S. 661, 19 S. Ct 282.
Constitution.— Law subordinating claims of foreign corporaticms
to those of citizens does not vi<^ate fourteenth amendment, p. 269.
172 U. S. 269-303, 19 S. Ct 187. NORWOOD v. BAKER.
Eminent domain.- Due process of law requires that owner be
compensated for land taken, p. 277.
Constitution.- Exaction of cost of public improvement in excess
of benefit Is taking of property without compensation, p. 279.
Cited in note in 68 Am. St Rep. 717.
* Taxation.- In levying special assessment for public improTement
regard must be had to benefit to accrue, p. 290.
172 U. B. 803-^20 Notes on U. S. Reports. 1076
Approved in Loeb v. Trustees Columbia Tp^ 91 Fed. 46, Pay ▼.
Bpringfl^d, 94 Fed. 410, 413, 414, Sears y. Street Ck>mmis8loDen,
173 Mass. 352, 353, 53 N. E. 877, and Hutcheson y. Storrie, 92 Tex.
691. 692, 693. 71 Am. St Rep. 887, 888, 880. 51 S. W. 849. 850. 45
L. R. A. 291. 292, annulling acts authorizing assessm^it of abut-
f/ ting property regardless of benefits. See note in 68 Am. St Bep.
^ 719.
Distinguished in Ck>hen t. Alameda, 124 GaL 506. 57 Pac. 377,
where assessments were based on benefits; Sears y. Boston, 173
Mass. 76, 78, 79, 53 N. B. 138, 139, 140, 43 L. R. A. 836, 837, uphold-
ing act authorizing assessment for sprinkling certain streets, od
abutting property; Allen y. Portland, 35 Or. 451. 58 Pac. 518, and
Oook y. Portland, 35 Or. 385, 58 Pac. 354, wh^re question was not
seasonably raised or properly presented; GleascHi y. Waukesha Co^
108 Wis. 237, 79 N. W. 253, upholding statute assessing cost of sewer,
etc, connections on abutting owners.
Injunction.— Equity may enjoin entire assessment leyied, witboat
regard to benefits, p. 290.
Followed in Fay y. Springfield, 94 Fed. 414, and Hutcheson ▼.
Storrie, 92 Tex. 698, 71 Am. St Rep. 895, 51 S. W. 853, 45 L. B. A
29i.
Taxation.— Rule requiring tender of amount legally due has do
application where entire assessment is yoid, p. 293.
172 U. S. 303-314. 19 S. Ct 212. WINSTON y. UNITED STATES.
Homicide.— Charge that act of 1895 did not authorize qualifica-
tion of verdict by words ** without capital punishm^it.'' unless miti-
gating circumstances were proved," is error, p. 813.
Not cited.
172 U. S. 314-320, 19 S. Ct 205, BELLINGHAM BAY. ETC.. B. B.
y. NEW WHATCOM.
Courts.- Defense that reassessment operated to take property
without due process, involves Federal question, p. 317.
Taxation.— Three days* publication of notice of reassessmei^^ ^*
fords due process to owner in possession, p. 318.
Taxation.— Statute allowing ten days to file objection to •nets-
ment, affords due process, p. 319.
Notice, duly authcMized, will not be held ineffectual except ^
clear case. p. 818.
Not cited.
172 U. S. 320, 19 S. Ct 873, BELLINGHAM BAY IMPROYBBflNT
CO. y. NEW WHATCOM.
Adjudged In conformity with preceding case.
1077 Notes on U. S. Reports. 172 U. S. 321--361
172 U. S. 321-326, 19 S. Ct. 216, UNITED STATES v. BLISS.
TXnited Statae.— Statute giving right to sue on outlawed claim
must be strictly c<mstrued, p. 324.
Judgment.— Res Judicata cannot be relied upon by party neither
pleading nor proving what was decided, p. 826.
Not cited.
172 U. S. 327-334. 19 S. Ct 177, UNITED STATES V. INGRAM.
Public lands.— Valid entries under desert-land act may be made
within place limits of railroad grant, p. 328.
Publio lands.— Person abandoning valid entry cannot recover
money paid government, p. 328.
Not cited.
172 U. a 834-^388, 19 S. Ct 207. CLARE v. KANSAS CITY.
Appeal.— Judgment of Kansas Supreme Court reversing order
overruling demurrer, is not final, p. 838.
Followed in Rogers v. Morgan, 173 U. S. 702, 19 S. Ct 879.
172 U. S. 339-343, 19 S. Ct 200, UNITED STATES v. BUFFALO
NAT. GAS FUEL CO.
Customs.— Under act of October 1. 1800. natural gas is entitled
to free entry, p. 339.
Not cited.
172 U. S. 343-351, 19 S. Ct 209, SCOTT v. UNITED STATES.
Fost-offlce.— Testimony of persons charged with having Ill-will
against accused, and putting marlced coins in his poclcet is admis-
sible, p. 347.
Post-office.— Indictment for stealing letter may be founded on
decoy letter, p. 349.
Not cited.
172 U. S. 351-361, 19 S. Ct 179, MISSOURI. ETC., TRUST CO. v.
KRUMSEIG.
Vederal courts will follow State court's construction of State stat-
ute regarding usury, p. 355:
Federal courts will follow State statute allowing cancellation of
usurious contract without return of money paid, p. 368.
Federal courts have nothing to do with policy of State legislation,
p. 359.
Followed in Hartford Ins. Ca v. Chicago, etc., Ry., 176 U. S.
100. 20 S. Ct. 37.
Usury.— Collateral contract which is mere devise to cover usury
Is void in Minnesota, p. 866.
I\
172 U. S. 361-425 Notes on U. 8. Reports lOTS
Approved in Union Sav. Bank t. Dottenhcfm, 107 Ga. 616* 34 S. E.
221, wti«« interest for whole period was made payable with priih
dpal in Installments,
172 U. S. 861-371, 19 S. Ct 218, WASHINGTON MARKET CO. ▼.
i^ DISTRICT OF COLUMBIA.
District of Colnmbiay and not Market Company, is empowered to
make rales authorized by act of 1870, p. 367.
District of Columbia.— Correspondence between city and market
company created no easement in fSTor of lattar, p. 870.
Frauds, Statute of.— Equity will not relieve one having knowl-
edge of facts, from operation of statute of frauds, p. 871.
Not cited.
172 U. & 872-388, 19 S. Ct 222, SIMPSON v. UNITBD STATBS.
United States, in designating " available " site for dry ds^ midflr
contract, does not warrant conditi<Hi of soil, p. 880.
Not cited.
172 U. S. 883-400, 19 & Ct 226, HOMB FOR INCURABLES ?.
NOBLB.
Wilis.— Reasonably clear codicil will be given effect, although
not so clear as clause of will affected, p. 800.
Not cited.
172 U. S. 401-416, 19 S. Ct 233, SONNBNTHBIL v. CHRI8TIAM
MCERLEIN BREWING CO.
Assignment for creditors.— Jury determines whether trust deed
was accepted by creditors, in suit to annul it p- 406.
AssignmeKit for creditors.— Question of fraudulent knowledge oo
part of {deferred creditors may be submitted to Jury, p. 409.
Courts.— Suit against United States marshal, in official capacity,
arises under United States laws, p. 404.
Approved in Auten v. United States Nat Bank, 174 U. S. 141,
19 S. Ct 684, suit against national bank receive.
Supreme Court having Jurisdlcti^Hi en error over one defendtiit
in Circuit Court of Appeals, cannot be deprived of It by joinder of
another, p. 405.
172 U. S. 416-425, 19 S. Ct 183, UTTER v. FRANKLIN.
Territories.- Congress had power to validate issuance and refund-
ing of municipal bonds authorized by Arizona legislature, p. 43^
Approved in Central Baptist Church v. Manchester, 21 R. L '^
48 AtL 846, uphc^ding legislative validation of deed made to cl^urck
socieCy before incorporation; Simms v. Simma» 170 U* 8. 168» ^ 8>
Ct 60, arguendow
J
1079 Notes on U. S. Reports. 172 U. S. 425-471
Miscenaneous.— Cited In Brayin t. Mayor, etc, — Aris. — , 66
Pac. 720, as to remedy of warrant holders entitled to bonds.
172 U. S. 425-434, 19 S. Ct 202, CAPITAL NAT. BANK T. FIRST
NATIONAL BANK.
Suprems Court will not reyiew State decision on ground broad
enough to eliminate Federal question, p. 430.
Followed in Capital Nat Bank y. Coldwater Nat Bank, 172 U. S.
434, 19 S. Ct 878, Dewey y. Des Moines, 178 U. S. 199, 19 S. Ct
881, and Allen y. Southern Pac. R. R., 173 U. S. 489, 10 S. Ct 521.
Courts.-- Federal question is raised too late if not until on appli-
cation for rehearing, p. 431.
Approyed In Bausman y. Dixon, 173 U. S. 114, 19 S. Ct 317, dis-
missing Federal receiyer's writ of emMr to State Supreme Court;
Citizens* Say. Bank y. Owensboro, 173 U. S. 644, 19 S. Ct 533, de-
clining to reyiew questions not raised below.
Distinguished in Gilbert y. McNulta, 96 Fed. 84, national bank
receiyer is suable in Federal court en contract made as such.
Courts.— Moti<Hi for rehearing, on ground that Judgment was con-
trary to law, raises no Federal question, p. 431.
Courts.— State Judgment as to capacity in which national bank
holds funds, raises no Federal question, p. 432.
172 n. S. 434, 19 S. Ct 873, CAPITAL NATIONAL BANK y. COLD-
WATBR NAT. BANK.
Adjudged in ccmformlty with preceding case, q. t.
172 U. 8. 434r465, 19 & Ct 254, KECK y. UNITED STATES.
Customs.— Indictment under | 3082, R. S., must disclose particiH
lars of offense, p. 437.
Customs.— Congress did not intend, in act of August 1894, to put
diamonds on free list P* 438.
Custosuk— IndictmeKit under | 2865, for smuggling diamonds,
held sufElcient, p. 438.
Customs.— Mere acts of concealment on entering port do not con-
stitute smuggling within | 2865, R. 8., p. 445.
Not cited.
172 U. a 465-471, 19 S. Ct 265, CHAPPELL CHEMICAL, ETC,
CO. y. SULPHUR MINES CO.
Supreme Court will not reyiew State decision based on grounds
broad enough to ^minate Federal question* pw 471.
Not cited.
.\
172 U. 8. 472-683 Notes on U. 8. Reports. 1060
172 U. 8. 47^-473, 19 8. Ct 268, CHAPPELL GHBMICAL, BTC^
CO. T. SULPHUR MINES CO.
Courts.— State court's dismissal of appeal because not properly
taken raises no Federal question, p. 473.
Not cited.
172 U. 8. 474-175, 19 8. Ct 268, CHAPPELL CHEMICAL, BTO,
CO. V. SULPHUR MINES CO.
Constitution of Maryland does not discriminate ai^ainst Baltimore
in abridging right of Jury trial, p. 475.
Appellate court will not consider matters not presented in reoort,
p. 475.
Not cited.
172 U. S. 475-^493, 19 8. Ct 247, COLUMBIA WATEB-POWBR Ca
V. COLUMBIA ELECTRIC, ETC., POWER CO.
Courts.— State court's decision that act did not impair obllgatioo
of plaintiflTs contract raises Federal question, p. 489.
Courts.— When Supreme Court may review State decisions under
I 709, R. 8., stated, p. 488.
Supreme Court will not decline Jurisdiction because Federal ques-
tion was not specially set up, if necessarily involyed, p. 491.
Distinguished in Telluride Power Co. y. Rio Grande, etc, Ry^
175 U. S. 647, 20 S. Ct 248, declining to reyiew questions of fact
which might be basis of Federal question.
State, haying absolute right to specified hwse power, may dis-
pose of it as it sees fit p. 491.
Courts.— Whether plaintiff in suit in State court has legal title,
inyolyes no Federal question, p. 492.
Approyed in Scudder y. Comptroller of New York, 175 U. 8. 88»
20 8. Ct 27, where Federal question was not raised below.
172 U. S. 493-515, 19 S. Ct 238, PITTSBURGH, ETC., RY. y. LONG
ISLAND LOAN, ETC., CO.
Courts.— Whether due effect was accorded foreclosure In Federal
court is Federal question, p. 507.
Courts.— State court gave due efTect to Federal court's forclosure
of second mortgage, in allowing holder of first mortgage bonds to
enforce security, pu 615.
Not cited.
172 U. S. 616-<^33, 19 8. Ct 269, FITT8 T. McGHBB.
Federal court cannot restrain State officer from suing to enforce
State statute, p. 629.
Approyed in Ball t. Rutland R. R., 93 Fed. 518. where railroad
1081
Notes on U. S. Reports.
172 U. S. 534-^7
sued State's attorney to restrain enforcement of mileage-book law;
Miller V. State Board, 46 W. Va. 194. 76 Am. St Rep. 814. 32 S. B.
1008, mandamus does not lie against State officers to enforce con-
tract
Circiiit Oourt cannot enjoin criminal prosecution in $tate court,
PC 531.
Federal court will not release State court's prisoner on habeas
corpus, except under unusual circumstances, p. 533.
Approved in United States ▼. McAleese. 93 Fed. 658, and In re
O'Brien. 95 Fed. 132. prisoner must exhaust State court remedies.
172 U. S. 534-557, 19 8. Ct 296. WASHINGTON GAS-LIGHT CO.
V. LANSDBN.
Corporatioii is not liable for agent^s torts, not committed in course
and within sco];>e of employment, p. 544.
Approved in Williamson v. Eastern Bldg., etc., Assn., 54 S. O.
595. 71 Am. St Rep. 828. 32 S. E. 769. building association, which
secures money by misrepresentation, is liable in tort.
Agent's ajithority to act is determinable by court where evidence
leads to but one conclusion, p. 544.
Corporation is not liable for unauthorized act of manager In send-
ing libellous letter, although copied in its books, p. 547.
LlbeL— It is no defense that published article contained other
matter than that supplied by defendant p. 549.
Damages.— Punitive damages against Joint defendants cannot be
based on evidence of ability of one to pay. p. 553.
TriaL— Error in admitting evidence of wrath of one of several
joint defendants is not cured by instruction not to award punitive
damages, p. 554.
Appellate court may reverse Judgment in toto where injustice
would result from reversal as to some parties, p. 556.
172 U. S. 557-^567. 19 S. Ct 281, ORIENT INS. CO. v. DAGGS.
Corporation is not citizen within fourteenth amendment p. 561.
Approved in TuUis v. Lake Erie, etc.. R. R.. 175 U. S. 851, 20 S.
Ct 137. upholding railroad employees* liability act
Insurance.— Missouri statutes providing that for total loss, in-
surer must pay amount of policy, is constitutional, p. 561.
Corporations.— State may prescribe liabilities to which corpora-
tions doing business within it shall be subject p. 563.
Ai^>roved in St Louis, etc.. Ry. v. Paul. 173 U. S. 409. 19 S. Ct
421, and TuUis v. Lake Erie. etc. R. R., 175 U. S. 352, 20 S. Ct
137, both uph<ddlng railroad employees' liability acts; Cravens v.
n
172 U. S. 567-<630 Notes on U. S. Reports. lOB
New York, etc, Ins. Co., 148 Mo. 604, 614, 50 S. W. 524^ 827* Heboid-
Ing law proTlding for extended insurance after lapse.
|^ 172 U. S. 667-«73, 19 S. Ct 294, UNITED STATES v. HAR8HA.
^] Circuit Court of Appeals may rerlew action to recover compemi-
V tioD as clerk of Circuit Court, p. 570.
United States.— Act of 1894, regarding holding of more than ooe
salaried position, does not, ex proprio yigore, create vacancy wbcn
incumbent's resignatl<Hi from other is pending, p. 572.
Not cited.
172 U. & 57a-576, 19 & Ct 284, FIRST NATIONAL BANK ▼. AN-
DERSON.
National bank, purchasing notes it was authorised to seO to third
persons, is liable as for conversioii, p. 576.
Not cited.
172 U. 8. 576-4»9, 19 8. Ct 286, UNITED STATES T. DUBLL
Patent commissi<Hier acts Judicially in deciding interferenoe cti%
and act creating reviewing court is valid, p. 582.
Not cited.
172 U. S. 589-602, 19 S. Ct 276, NORTHERN PACIFIC BY. ▼.
MYERS.
Taxation.— State may tax land granted to railroad before pstvt
and while character is in dispute, p. 607.
Not cited.
172 U. & 602-^22, 19 8. Ct 808, CONNECTICUT MUT. LOT nf&
CO. V. SPRATLBY.
Corporations.— FcHreign corporation's agent need not have tspnm
authority to receive binding process, p. 610.
Corporations.— Adjuster represents insurance company suffldeotlj
to receive service of process in State to which he is sent P 612.
Constitution.— State law requiring corporati<Hi8 to appoint W^
to receive service, creates no contract and may be changed, p. 821
Corporation writing insurance in State does not cease to do im^
nees by merely withdrawing agent, p. 611.
Not cited.
172 U. S. 622-680, 19 8. Ct 805, HCBNINGHAU8 T. UNITBD
STATES.
Customa.— Woven fabrics in the piece, composed 0t lUk ni
cotton, are dutiable according to value, p. 680.
Customs*— Such goods are subject to addition of 1 per cmL My
for each 1 per cent of value above entry, p. 680,
Not cited.
?^
/
1068
Notes on U. S. Reports.
172 U. S. 680-64ft
1T2 U. B. 630-685, 19 & Ct 290, BiARSHALL y. BURTia
SuiKremo Court wOI assume that territorial Judgment was
talned by erldence In absence of findings, p. 635.
FoUowed in Gohn y. Daley, 174 U. S. 544, 19 S. Gt 804.
172 U. 8. 686-4M0, 19 a Gt 292, McQUADB ▼. TRENTON.
Suinrems COnrt wtll dismiss writ to State coort where Federal
qnestloo was not necessarily inyolyed, p. 640.
FoUowed In Allen y. Southern Pac R. B., 173 U. S. 489, 19 ft. Ot
621.
ITS U. a 6€1, 19 a Ot 879, ROSS ▼. KINO.
Followed in Keokuk, etc* Bridge Ca y. Illinois, 178 U. a 702, 19
a Ot 87a
1T2 U. a 641, 19 a Ot 874, OLIFFORD y. HBLLBR.
Followed in Clifford y. Ruempler, 176 U. a 728, 20 a Ot 1024.
l*ra U. 8. 642, 19 S. Ot 879. SIOUX CITT, ETC, RY. y. MANHAT-
TAN TRUST CO.
Approved in Missouri, etc, Ry. ▼. McCann, 174 U. a 686, 19 a Ct
768, upholding State construction of statute making railroad liabls
for loss of freight
172 U. a 644, 19 a Ot 8n, HARMON ▼. NATIONAL PARK
BANK.
Olted in Robinson r. Southern Nat Bank, 94 Fed. 967, obiter.
172 U. a 644, 19 a Ct 87a KINNBAR y. BAUSMAN.
Followed in Rogers y. Morgan, 178 U. a 702, 19 a Ot 8791
172 U. a 644-646, 19 8. Ct 878, BLTTHB CO. ▼. BLYTHB,
Approved in Blythe y. Hinckley, 178 U. 8. 507, 19 8. Ot 499,
daioB that remedy Is at law, not In equity. Is not Jurisdlctlooal.
)
Tht OUations in the forgoing annototions imolvde tlH from
the foDowing RepcnrtB and all preoeding them in each State
or aenea;
U.S. 17i
Law. Bd. 42
F«d. Befb 96
U. & Ap. 63
(•BOtptiiig 16)
Ala. 119
Aria. 1
Aik. 66
CaL 126
Colo. 26
Colo. Af^ 12
Conn. • 71
6
1
39
107
2
181
162
Dak
Del PennewUl
Fla.
Qa.
Ida.
Ill
Ind
Ind. Af^ 22
Iowa •••. 107
Kana. 60
Kana. Ap. 7
Ky 101
La. Ana. • 61
Md 69
Me 92
Maaa. 173
Bilch. IIT
Mina. 73
Min. 76
Mo. 160
Mo. Apf^ 7t
Mont. 22
Neb. 66
Nev 23
N.H. 67
N. J. Eq 67
N. J.L. 62
N. M. 8
N. Y. 160
N. a 123
N. D.
Ohio .
Or. ..
Pa. ..
R.L .
8. C.
8. D.
8
60
33
192
, 19
64
10
Tenn 102
Tex
Tex. Civ.
Tex. Cr.
Utah ...
Vt
Va.
92
19
38
18
70
96
Wash r. 20
W. Va.
Wis. ,
Wyo
Am. Dee. ...
Am. Bep. ...
Am. St. Repu
L. A. A. . . . <
45
102
6
100
60
71
46
with doplioate referBneea to the Reporter System and later
caaea, inoliidi^g
8up.Ct 19 N. B.
Atl 43 N. W.
Pae. 68 S. B.
So 26 S.W.
8-12
80
33
63
CASES
AUGUBD AND DEOIDED
(
SUPEEME COUET
OF TBI
UNITED STATES
AT
OOTOBEE TEEM, 1898.
YdLin,
I
THE DECISIONS
Supreme Court of the United States
AT
OOTOBEB TERM, 1898.
lAotlMDtleAted 99DJ of opinion rtooxd ttrieUy fOllowod, exeept an to raeh reference wordi nnd
flforeo an are Incloied In bracken.)
[1] FRANK H. PIEROB, PeMUmmr,
TENNESSEE GOAL, IRON ft RAILROAD
COMPANY.
(8ea a C. Beportar'a od. 1-17.)
iMilmn^nt of raUroad companif wUh mt^
pioyee for injuriea — cantraot for ferma^
fMiH emploifment — damaget for iU hr&teh.
1. When a railroad company promlaed to pay
one of Its employeea, who had been Injured
by Its cars, certain wages and to fomlah him
with certain snpplles so long ss his dlsabUlty
to do foil work continued by reason of his
Injary, In settlement of his claim for snch
Injury : and In consideration of these promises
the employee agreed to do for the company
sndi work as he was able to do and to releass
the company from all liability for damages
for snch Injuries, which caosed his disabil-
ity,— the company cannot at Its own wlU and
pleasure cease to perform Its obligations
which wore the consideration of the rslsass.
S. finch contract Is sufficiently definite ss to
tlme^ and binds the railroad company to Its
performance so long as the employee shall be
disabled by reason of sudi Injuries, whldi. If
he Is permanently disabled, will be fbr life.
8. Where the railroad company after a time
abandoned the contract and discharged the
employes without cause, the latter may main-
tain an action, once for all, as for a total
breach of the entire contract, and may reeoTor
all he would haye recelTed In the future, as
well as In the past. If the contract had been
kept, deducting any sum he might hSTo earned
In the past or might earn In the future, and
any loos the company had sustained by loss
of his ssrrloes without Its fault
[No. 174.]
AiyiMtf tmd BuhmUted January 19, tO, 1899.
Decided Ffihruary tO, 1899.
CERTIORARI to the United States ar-
ooit Court of Appeals for the Fifth Oir-
eiilt to reriew a Judffment of that court re-
▼ersiitt a iudgment ox the United States Cir-
enlt Court for the Southern Division of the
178 V. S.
Northern Distriet of Alabama in favor oi
Frank H. Pieroe, the plaintiif. for the sun
of 96308. The plaintiff sued in the arouit
Court of Jefferson County, Alabama, which
eonrt sustained a demurrer to his oomplaint,
hut upon appeal to the Supreme Court of thi
State of Alal>ama the iud^nent was reversed
and the ease remanded to the County Courti
and upon motion of the defendant the cass
was removed to the Circuit Court of thi
United States for the Southern Division oi
the Northern Dietriot of Alahams* Judg^
ment of the Circuit Court of Appeals and ol
the Circuit Court of the United States re>
oersed, and the case remeoded to eaid Ok^
cuit Court for further proceedings in cob*
f ormitj with the opinion of this court.
See same ease below, 110 Ala. 98$, 62 U.
S. App. S66, S66.
Statement 1^ Mr. Justice Omyi
This was an action hrouffht January 28,
1802, in the circuit court m Jefferson coun*
ty in the state of Alabama, 1^ Frank H.
Aerce, a dtisen of the state it AlabanuL
sgainst the Tennessee CoaL Iron, ft Railroad
Companr, a corporation of the state of Ten^
nsssee, ooing business in the state of Ala>
bama, upon a written contract, signed 1^ ths
parties, and in the following terms:
Pratt Wnes, Ala., 4th June, 1800.
Whereas I. F. H. Pierce, while in the em-
ploy of the Tennessee Iron. Coal k Railroad
Company, Pratt Ifines Division, as a ma-
chiniBt, was seriously hurt 1^ a trip of tram
cars on the main slope of the mine loiown ai
Slope No. 2. and operated 1^ the Tannessei
Coal, Inm s RsUroad Company, under cir*
cumstanees which I daim render the said
company liable to me for damages; bul
whereas th^ disclaim any liabili^ for said
accident or uie injuries to me resulting from
same; and both parties beinff desirous ol
settling and oompromising said matter; and
whereas the said Tennessee Coal, Iron d
Railroad Company did make me a prcraMei
tion on the day of November, I88S
said accident having occurred on the 2l8l
691
y
J
Tht OUations in the forgoing annototions inohide iH from
the foDowing BapofrU and all preceding Ihem in each State
or aenea;
U.S. 17i
Law. Bd. 42
F«d. Bef^ 96
U. & Ap. 63
(«ietptiiig 9%)
Ala. 119
Aria. 1
Ark. 66
CaL 126
Colo. 26
Colo. Ap^ •••••••••••••••••. 12
Conn. •••• ••• 71
6
1
S9
107
2
181
162
••••••••
Dak.
Del PennewUl. . . .
Fla.
Qa. ,
Ida.
Ill
Ind.
Ind. Ap. •••••••. 22
Iowa 107
Kana. 60
Kana. Ap. 7
Ky 101
La. Ana. 61
Md 69
Me 92
Maaa. 173
Bilch. IIT
Mina. 73
Min. 76
Mo 160
Mo. Apfw 7t
Mont. t2
Neb. 66
Nev. 23
N.H. 67
N. J. Eq 67
N. J.L. 62
N. M. 8
N. Y. 160
N. a 123
N. D. 8
Ohio 60
Or S3
Pa. 192
R.1 19
8. C. 64
8. D. 10
Tenn. 102
Tex. §2
Tex. CIt 19
Tex. Cr. 38
UUh 18
Vt 70
Va. 96
Wash .•'. 20
W. Va. 45
Wis 102
Wyo 6
Am. Dee. 100
Am. Bep 60
Am. St. Rep. 71
L. R. A. 46
with doplioate leferBneea to the Reporter System and later
caaes, including
8up.Ct 19 N. B.
Atl 43 N. W.
Pae. 68 S. B.
So 26 S.W.
8-12
33
CASES
ARGUED AND DECIDED
SUPKEME COUKT
OF TBI
UNITED STATES
AT
OOTOBEE TEEM, 1898.
VoLlTai
THE DECISIONS
r
Supreme Court of the United States
AT
OGTOBEB TEBM, 1898.
LitbtBtleated eopy of opinion reeord strietly followod, except u to inch reference worde nnd
flgoree at are Incloied In bracken.]
FRANK H. FIERCE, PeHtUmer,
COAL, IRON 4 RAILROAD
COMPANY.
(8ao 8. C. Reporter's ad. 1-17.)
It cf raUroad eampany with emr
for injuriea — contract for ferma-
'nmt omplopment — damages for ita oreaoh.
When a railroad company promlaed to pay
one of Its employeea, who bad been Injnred
by Kt cars, certain wages and to famish him
with certain sopplles so long as his disability
to do foil work contlnned by reason of his
injury, in settlement of his claim for snch
Injury : and In consideration of these promises
the employee sgreed to do for the company
radi work as he was able to do and to release
the company from all liability for damages
tor snch Injuries, whldi caused his disabil-
ity,— the company cannot at Its own will and
pleasoro cesse to perform Its obligations
which were the consideration of the releasa.
Sndi contract Is sufficiently definite as to
tlme^ and binds the railroad company to Its
performance so long as the employee shall be
disabled by reason of snch Injuries, which. If
he Is permanently disabled, will be for life.
Whera the railroad company after a time
absndMied the contract and discharged the
employse withont caose, the latter may main-
tain an action, once for all, as for a total
breadi of the entlra contract, and may reeorer
all he wonld haTo recelTed In the fntnre, as
well as In the past. If the contract had been
k«pt» dednctlBg any snm he might hSTO earned
la the past or might earn in the future, and
say loss the company had sustained by loss
ef his serrlees withont Its fault
[No. 174.]
^rpud «Ml BubwUtted January 19, tO, 1899.
Decided February 20, 1899.
CKBnORARI to the United States Cir-
cuit Court of Appeals for the Fifth Cir-
cuit to reriew a Juoffinent of that court re-
^vsSitt a judgment ox the United States Cir-
euit Court for the Soathem Division of the
178 V. M.
Northtem Diitriet of Alabama in f aror oi
Frank H. Pieroe, the plaintiff, for the sun
of 95398. The plaintiff sued in the Circuit
Court of Jefferson Coun^, Alabama, which
eoort sustained a demurrer to his complaint,
but upon appeal to the Supreme Court of the
State of Alabama the judgment was reversed
and the case remanded to the County Court,
and upon motion of the defendant the cas«
was removed to the Circuit Court of thi
United States for the Southern Divisi<m oi
the Northern District of Alabama. Judg*
ment of the Circuit Court of Appeals and ol
the Circuit Court of the United States re-
versed, and the case remanded to said C^*
cuit Court for further proceedings in con*
f ormity with the opinion of this court.
See same case below« 110 Ala. 583, 62 U.
S. App. 855, 865.
Statement l^ Mr. Justioe Omjrt
This was an action brought January 22,
1892, in the circuit court ox Jefferson couu'
ty in the state of Alabama, l^ Frank H.
Fierce, a dtixen of the state of AUbams.
a«ainst the Tennessee Coal, Iron, 4 Railroad
Companir, a corporation of the state of Ten«
nessee, aoing business in the state of Ala-
bama, upon a written contract^ signed by tbM
parties, and in the following terms:
Pratt lOnes, Ala., 4th June, 1890.
Whereas I. F. H. Pierce, while in the em*
of the Tennessee Iron. Coal k Railroad
ipany, Pratt Ifiaes Division, as a ma*
ohinist, was seriously hurt by a tzip of traa
can on the main slope of the mine known ai
Slope No. 2. and operated 1^ the Tennessei
Coal, Iron k Railroad Company, under cir*
cumstances which I claim render the said
company liable to me for damages; bul
whereas they disclaim any liabilibr for said
accident or uie injuries to me resulting from
same; and both parties beinff desirous oi
settling and compromising said matter ; and
whereas the said Tennessee Coal, Iron 8
Railroad Ccnnpany did make me a proposi-
tion on the day of November, 188S
said aecidoit having occurred on the 2l8l
691
2-5
SUPBEMB Ck>UBT OF THE UkITED STATES.
Oct.
day of May, 1888, tliat they would famish
me such supplies f rcnn the commissary at
No. 2 prison, as I miffht choose to take, pay
me r^ular wages while I was disabled, and
five me my eSaX and wood for fuel at my
wellinff, and the benefit of the convict gar*
den at No. 2; and whereas said proposiuon
was accepted by me, and carried out by the
said company; and whereas in May, 1889,
after I had resumed work, a further proposi-
tion was made to me to giro me work, such
%ft I could do, paying me therefor the wues
paid me before said accident, that is, $60
per month, and in addition free house rent
[or in Hen of *house rent a certain amount of
supplies from the convict commissary at No.
t prison, which supplies were to amount to
about the sum paia by me for house rent] ;
and whereas said agreement has been faiUi*
fuUy kept by both parties; and whereas on
the 4tb day of June, 1890, it is mutually
amed between mysdf and the said company
that it will be better to ffive me the house
rent than the supplies of about equal amount
from tiie commissary; now thcorefore it is
agreed, in view of uie above propositions,
midi have been faithfully earned out, that
my wages frmn this date are to be $65 a
month, and in addition I am to have, free of
charge, my coal and wood necessary for my
household use at my dwelling, and the same
benefit from the garden as is had by others
who are allowed the garden privilege; and
I on my part agree and bind myself to re-
lease the said company from any and all
liability for said accident, or from the in*
Juries resulting to me from it or from the
effects of it, and agree that this is to be a
full and satisfactory settlement of any and
an claims which I might have against said
company.
The complaint set out the contract, SKoept
tiie dause above printed In brackets; and
alleged that by this contract the defendant
becune liable to pay the plaintiff monthlv
during his life the wi^es tnerein stipulated,
and to furnish him with coal and VFOod and
allow him the privilege of the garden, as
therein agreed; that the plaintiff had always
been reao^ and offered to do for the defend-
ant sudi work siven to him as he was able
to do, and had labored at the same for such
reasonable time as he was able to work and
bound to work under this contract; that b^
the injuries received by him from the acci-
dent mentioned therein he was permanently
disabled in the use of his legs and hands,
and otherwise so injured as to be incapaci-
tated to do more work than he had done and
had offered to do; but that the defendant,
without any reasonable ground for so doing,
abandoned the contract and refused to carry
it out, daimin^ that the defendant was un-
der no obligation to pay to the plaintiff the
wages therein stipulated longer than suited
its pleasure; and had wholly and purposely
disr^^ded and refused to abide by tne ob-
[4] ligations of the contract *for the period of
six months next before the commencement of
the suit, and had entirely abandoned the
contract and discharged the plaintiff from
its service. The plaintiff claimed damages,
692
in the sum of $50,000, for the defendaat^
breach and abandonment of the ocmtraeL
The defendant demurred to the
upon the ground that the eontraet
therein was one of hiring, terminable at tta
will of either party, and not one ol hiriw
for life, as alleged in the complaint; aai
that it appeared from the oMigatiens of the
complaint, that the defendant, in '
ing the contract of hii^Dg, had vdj
ciMd its Iceal riffht under tha eoBtrael
court snstainad me demurrer, aad tta
tiff declining to amend his cwnplaJntj
dered Judgn^t for the detoadant; smI te
plaintiff on Fd>ruary 21, 1894, ippwki
ht>m that judgment to the mpreme eont if
Alanamai
The record transmitted to this eovt tas
not show any further proceedings in the aa-
preme court of Alahaina, But the ofteU
reports of its decisions show that at Nef«»
ber term, 1895, it reversed that jnilf MT.
and remanded the case to the eoaaty eavt
Pierce v. Tenneeeee OoaL /. dl £. Oa IM
Ala. 588. And the record before this emit
necessarily implies that fact, bj eeWam Ivft
that in March, 1896. on motion of &a ir
fendant, suggesting tnat from prejodioe sid
local influence it would -not be aUe to ebtita
Justice in the state courts, the eaae waa it>
moved from the oountj court into the d^
cult court of the United Staftea for Oeaasft-
em diviaion of the northern dSetriet if ih^
bama; and a motion to remand the eaae ti
the atate court was made l^ the plaiitif
(on what ground did not appear in the lar
ord) and was overruled.
In the drcuit court of the United Qbk^
on January 4, 1897, the following uiuiarf
inga took place: The demurrer to ua «»
plaint was renewed l^ the defendaBl, ail
overruled by the court The plaintiff tte
amended his complaint l^ tnaiitiug, in tia
copy of the contract set fbrth therah, tIa
worda above printed In bradwta; aad a 4^
murrer to the amended complaint waa fW
and overruled. In aaawar to thia eomffM
the defendant filed two pleaa : lat A mM
of each and every allegatloB of tte ftm-
plaint; 2d. rThe defendant, *f6r fu^v n-Pl
awer to the complaint, aaya that the plair
tiff, under and t^ the terma of the ooBtraci
set out in the complaint, contracted to pt^
form for the defendant duriog the t«s
thereof such service as he was able to pif
form, in consideration for the promiaaa
by Pendant therdn; and the
avera that the plaintiff tbareaflar
able to perform aervice for the del
and did in fact perform audi aerviee for •<■>
time thereafter, and that, while sagH*' ^
the performance of auch aervice, the plits*
tiff voluntarily and without eKcnaa thirafi'
refused to further perform audi aerviei ti
he was able to perform, and was in fact ft-
forming for the defendant, as mvaxnA If
said contract, and the defendant tiwnef^J
discharged the plaintiff from its •enriee;^'
the defendant avers that the plaintiff f>9*
to comply with the conditions imposed «^
him by said contract." The plaintiff Joiirf
issue on the first plea ; and demurred lo ^
second plea, upon the ground that it did ij^
1899.
PiBROB ▼. Tbnkbsbbr Coal, L & R. Co.
5-7
go to the whole consideration of the contract,
and was no answer to the entire action; and
the court sustained his demurrer. The de-
fendant, for further answer, and hy way of
recoupment, pleaded that on May 3, 1801,
the plaintiff, voluntarily and without excuse,
refused to perform such lahor as he was able
to perform and was in fact performing for
the defendant, as required by the contract;
and since that time nad continued to refuse
to perform and had not in fact performed
such service, or any part thereof; to the
damage of the defendant in the sum of
$50,000.
A bill of exceptions, tendered by the plain-
Uflf and allowed by the court, showed that
at the trial before the jury the following
proceedings were had:
The plaintifT introduced and read in evi-
nce tne contract sued on, and introduced
evidence tending to prove the allegations of
the complaint. He also offered evidence
that, at the time of his discharge by the de-
fendant from its employment in May, 1801,
he was fifty-five years of age, and that he
was then and had since been in ffood health,
and addicted to no habits of drinking or
otherwise, affecting his health and expect-
ancy of life ; and Introduced the American
tables of mortality *used by insurance com-
panies, showing his expectancy of life at the
time of bis discharge, and at the time of the
trial.
But the court ruled that no recovery could
be allowed on the contract, beyond the in-
stalments of wages due and in default up to
the date of the trial ; and, upon the defend-
ant's motion, excluded all evidence of the
plaintiff's age, health, and expectancy of
life, ''on the ground that it was immaterial
and irrelevant, and because damages for the
expectancy of life was a matter too vague
and uncertain to be allowed."
The plaintiff duly excepted to the ruling
and to the exclusion of evidence; and, to
present the same point, asked the court to
give, and duly excepted to its refusal to give,
the following instruction to the jury: 'If
the defendant, after making the contract sued
on and before the suit, refused further to
pav the plaintiff and to furnish the articles
stipulatM to be furnished, and refused to
employ the plaintiff, and discharged him, the
plaintiff is entitled to the full benefit of his
contract, which is the present value of the
numey agreed to be paid and the articles to
he furnished under the contract for the
period of his life, if his disability is perma-
nent, less such sum as the jury may find the
plaintiff may be able to earn in the future,
and may have been able heretofore to earn,
and less such loss as the defendant mav have
sustained from the loss of the plaintiff's
service without the defendant's fault."
The defendant also tendered and was al-
lowed a bill of exceptions, presenting sub-
stantially, though in different form, the
questions involv^ in the plaintiff's case, and
the contents of which therefore need not be
particularly stated.
The jury returned a verdict for the plain-
tiff in the sum of $5,803, upon which judg-
ment was rendered. Each party sued out quitting work were such as to make it a ques-
173 V. 8. U.S.. Book 43. 38 593
a writ of error from the circuit ooort of a^
peals for the fifth circuit.
That court was of opinion that the con-
tract sued on was for ''an employment by
the month, and, therefore, like every other •
such employment, subject to be discontinued,
at the will of either party, at the expiration
of any month, or at any time for adequate
cause ; and consequently that there was error
*in overruling the demurrer to the complaint; [7]
and upon that ground, without passing upon
any other question in the case, reverb the
judgment of the circuit court of the United
States, and remanded the case to that court
for further proceedings, Judge Pardee dis-
senting. 52 U. S. App. 355, 365. The plain-
tiff thereupon applied for and obtained a
writ of certiorari from this court. 168 U.
a 700.
Mr. VI. A. Gunter, for the petitioner:
On the total renunciation of a contract by
a party thereto, the person against whom
it IS renounced, if in other respects entitled
to damages, is entitled to recover full and
final damages in one action.
Bchell V. Plumb, 66 N. Y. 692; Howard
College v. Turner, 71 Ala. 434; yickshurg
d U, R, Co, V. Putnam, 118 U. S. 646, 30 L.
ed. 257; Shover v. Myrick, 4 Ind. App. 7;
Pennsylvania Co, v. Dolan, 6 Ind. App. 109;
Kentucky d I, Cement Co, v. Cleveland, 4
Ind. App. 171.
The usual measure of damages upon a
breach of a contract is ^tne amount that
would have been received if the oontract
had been kept."
Benjamin v. Billiard, 23 How. 149, 16 L.
ed. 618.
Tne standard life and annuity tables,
showing at any age the probable duration of
life and the present value of a life annuity,
are competent evidence.
Vickshurg d M, R. Co, v. Putnam, 118 U.
S. 645, 30 L. ed. 257 ; The D, 8, Gregory, 2
Ben. 226, Fed. Cas. No. 4,100; Foster v.
Billiard, 1 Story, 77, Fed. Cas. No. 4,972;
Cooke V. Cook, 110 Ala. 567; Bauter v. Veu>
York C, d B, R, R. Co, 66 N. Y. 60, 23 Am.
Rep. 18; Parker v. Russell, 133 Mass. 74;
Amos V. Oakley, 131 Mass. 413 ; Remelee v.
Ball, 31 Vt. 682, 76 Am. Dec. 140; MuUaly
V. Austin, 97 Mass. 30; People v. Security
L, Ins. d Annuity Co. 78 N. Y. 128, 34 Am.
Rep. 522.
Messrs. "WAlker Perey and WUUam /•
Oruhh, tor respondent:
The contract sued on was for an Indefinite
time, and terminable at the will of either
party thereto.
Franklin Min. Co, v. Barris, 24 Mich. 115;
Parsons on Contracts, 519; Boward v. Boat
Tennessee, V. d G. R, Co. 91 Ala. 270; dark
V. Ryan, 96 Ala. 409 ; De Briar v. Mintwm,
1 Cal. 450; Tatterson v. Suffolk Mfg. Co. lOd
Mass. 56.
The wrongful quitting of the work imposed
upon plaintiff by the terms of the contract
sued on would justify the defendant in refus-
ing to proceed with the contract, and in de-
clining further to pay the compensation pro-
vided for in it. The facta as to plaintiff's
7-9
SupREMB Court of the United States.
Oct.
tion for the Jury as to whether such quit-
ting was with lesal excuse.
Darai t. Mathteaon Alkali Works, 81 Fed.
Hep. 284; Pape v. Lathrop, 18 Ind. App. 633;
Norris v. Moore, 3 Ala. 677; Spain v. Ar-
nott, 2 Starkie, 256 ; Lantry v. Parks, 8 Cow.
63; Winn v. Bouthgate, 17 Vt. 355; Posey
T. Qarth, 7 Mo. 94, 37 Am. Dec 183; Renno
T. Bennett, 3 Q. B. 768; Turner v. Mason,
14 Mees. ft W. 112; Ford v. Danks, 16 La.
Ann. 119.
In an action which treats the contract as
completelT broken, and goes for damages for
the breach of it in soUdo, the measure of
damage is the loss suffered bv the servant
up to the time of the trial, deducting there-
from what wages he earned, or could by the
exercise of reasonable diligence have earned,
in the interim, in a similar character of em-
ployment.
Davis v. Ayres, 9 Ala. 293 ; Fowler v. Ar-
mour, 24 Ala. 194; Strauss t. Meertief, 64
Ala. 306, 38 Am. Rep. 8; Wilkinson v. Black,
80 Ala. 329 ; Liddell v. CMdester, 84 Ala.
508; Everson t. Poxoers, 89 N. Y. 527, 42
AuL Rep. 319; MoDaniel v. Parks, 19 Ark.
671; Rogers t. Parham, 8 GkL 190; Bassett
T. French, 10 Misc. 672; Eamilton v. Love
(Ind.) 43 N. £. 873; Zender v. Seliger Toot-
kill Co. 17 Misc. 126; Gordon v. Brewster,
7 Wis. 356 ; Sutherland t. Wycr, 67 Me. 64 ;
Prichard v. Martin, 27 Miss. 305; Darst v.
Mathieson AlkaU Works, 81 Fed. Rep. 284.
[7] *Mr. JuffUce Gray, after sta4ing the case
as above> delivered the opinion of the court:
In the circuit court of the United States, a
verdict and judgment were rendered for the
Slaintiff for a less amount of damages than
e claimed; and each party alleged excep-
tions to rulings and instructions of the
Judge, and sued out a writ of error from the
circuit court of appeals. That court held
that the defendant's demurrer to the ocnn-
plaint should have been sustained and there-
fore reversed the judgment of the circuit
court, and remanded the case for further pro-
ceedings. A writ of certiorari to review the
Judgment of the circuit court of appeals was
thereupon applied for by the plaintiff, and
was granted by this courU
The fundamental question in this case is
whether the contract in suit, made by the
parties on June 4^ 1890, is a contract in-
tended to last durinff the plaintiff's life, or
is a mere contract of hiring from montli to
month, terminable at the pleasure of either
party at the end of any month.
The facts bearing upon this question, as
appearing upon the face of this contract, are
as follows: In May, 1888, the plaintiff,
while employed as a machinist in the defend-
ant's coal mine in Alabama, was seriously
hurt bv a trip of tram cars on the main
slopo of the mine, under circumstances which
the plaintiff claimed, and the defendant de-
nied, rendered it liable to Lim in damages.
The parties were desirous of settling and
X8] *compromising the plaintiff's daim for dam-
ages for the injuries, and had repeated nego-
tiations with that object. In November,
1888, they made an agreement (which does
not appear to have been reduced to writing)
594
b^ which the defendant was to pay ^kt
tiff regular wages while he was disabk
also to furnish him with such suppUcs is
might choose to get from a commissaiy, i .
to give him coal and wood for fod at his
dwelling house, and the benefit <vf a girdca
belonging to the defendant. That agieuBeat
was carried out by the defendant until Ifaj.
1889, and was then, after the pUintiff hU
resumed work, modified by stipulitios that
the defendant should give the plaintm wmdk
work as he could do, should pay him there-
for wages of $60 a month, as before the ae-
cident, and should give him the rent of Ui
house, or, in lieu of house rent, an eqnirakat
amount of supplies from the cummiiiaTy;
and the agreement, as so modified, was faith-
fully kept by both parties until June 4, 189Qi
Finally, on that day, the parties entered iafta
the written contract sued on, by whidi, aftv
reciting the plaintiff's claim for damifSB aai
the earlier agreements, it was agreeu 'ia
view [evidently a misprint for **in lien'H of
the above propositions, which hive bea
faithfully carried out," that the plamtiirt
"wages from this date are to be $65 a wkmA'
(the increase of wages being apparcBtl^* ia-
tended as an equivalent for tue pravuioii,
now omitted, for house rent or supplies btm
the commissary), and that he was to hsTi,
free of charge, his fuel and the benefit of tte
garden ; and the plaintiff, on his part •P^
to release the defendant from any and tfi lia-
bility for the accident, or for the injnriei r»'
suiting to him from it or from the effect! d
it ; and that this should be a full and ssti»-
factory settlement of all claims whidi ha
might have against the defendant.
The effect of the provisions and reeitab if
the contract sued on may be vumnsd wf
thus: The successive agreements bctwoa tki
parties were all made with a view to scttk
and compromise the plaintifTs daim igaial
the defendant for personal injuries, eaosid ti
him by the defendant's ears while he was it
its service as a machinist, and seriously i»
pairing his ability to work. By ea^ sfr«e>
ment, the defendant was *to pay him eertaiiffl
wages, and to furnish him witli i^ertaia isf
5 lies. The supplies to be furnished were ev>
ently a minor consideration, and require w
particular discussion. The more iraportait
matter is the wages. The defendant st int
agreed to pay the plaintiff ''re^lar wif«
while he was disabled." The agreemeat is
that form, would clearly last ^ long sf ^
continued to be disabled, and coald not ha^
been put an end to by the defendant witkoot
the plaintifTs consent By the next aat'
ceeding agreement, made after the pUistif
had resumed work, the defendant wu "i*
give him work, such as he could do. pariH
liim therefor the wages paid before said •^
cident, that is, $60 a month." That trric-
ment must be considered as a mere modiiei-
tion of the first, requiring the plaintifi to ds
such work as he could do, but thowisf tkt
he was still much disabled by his iajin^
By the final agreement in writing of Jim ^
1890, after reciting the plaintiff's dais fcr
damages for these injuries, aa trdl u tk«
earlier agreements, his wages were iauMii^
by a stipulation that his "wages froa ^
18ML
PiSBCB >«
OoAL» L & R. Co.
9-18
dat« are to be $65 a month/' and he eTpraiely
released the defendant from all liabiuty m
the injuries resulting to him from the me-
ddent or from the efifects thereof, and agreed
that this should be a full and satisfaetoiy
settlement of all his claims against the de-
fendant.
The onlj reasonable interpretation of this
contract is that the defendant promised to
pay the plaintiff wages at the rate of $65 a
month, and to allow him his fuel and the
benefit of the earden so long as his disability
to do full work continued; and that, in con-
sideration of these promises of the defend-
ant, the plaintiff agreed to do such work as
he could, and to rdease the defendant from
all liability Ujpon his claim for damages for
his personal miuries. An intention of the
parties that, while the plaintiff absolutely
released the defendant from that claim, the
defendant might at its own will and pleas-
ure cease to perform all the obligations which
were the consideration of that release, finds
no support in the terms of the contract, and
is too unlikely to be presumed. Carnig v.
Carr, 167 Mass. 544, 547 [35 L. R. A. 512],
1 *llie supreme court of Alabama, when the
case at bar was before it on appe:il from the
county court, and before the removal of the
case into the circuit court of the Unitrd
States, expressed the opinion that '*tbe con-
tract is sufficiently definite as to time, and
bound the defendant to its performance, so
long as the plaintiff should be disabled by
reason of the injuries he received, which,
under the averment that he was permanent-
ly disabled, will be for life;'' and upon that
ground reversed the judgment of the county
court sustaining the d^urrer to the com-
?]aint, and remanded the case to that court.
10 Ala. 533, 536. As we concur in that
opinion, it is unnecessary to consider how
far it should be considered as binding upon
us in this case. See WilliariM v. Conger, 125
U. S. 397, 418 [31 : 778, 788] ; Gardner v.
Michigan Central Railroad Co, 150 U. S. 349
[37: 1107]; Qreai Western Teleg, Co, v.
Bumham, 162 U. S. 339, 344 [40:091,
993], and cases cited; Moulton t. Reid, 54
Ala. 320.
It follows that the judgment of the United
States circuit court of appeals in this case
was erroneous, and must oe reversed.
It appears to us to be equally c^ear tiiat the
circuit court of the United states erred in
exclnding the evidence offered by the plain-
tiff, in restricting his damages to the wages
due and unpaid at the time of the trial, and
in declining to instruct the jury as he re-
quested.
Upon this point the authorities are some-
what conflicting; and there is little to be
found in the decisions of this court, having
any bearing upon it, beyond the affirmance
of the general propositions that "in an ac-
tion for a personal injury the plaintiff is
entitled to recover compensation, so far as
it is susceptible of an estimate in money, for
the loss and damage caused to him by the
defendant's negligence, including, not only
expenses incurred for medical attendance,
and a reasonable sum for his pain and suf-
fering, but also a fair recompense for the
173%. 1.
Ion of what he would otherwise have earned
in his trade or profession, and has been de-
prived of the capacily of earning by the
wrongful act of tne defendant,*' and ''in or-
der to assist the jury in making such an es-
timate, standard life and annuity tables,
showing at any age the ^probable duraition [11]
of life, and the present value of a life an-
nuity, are competent evidence" (Vickehurg
d M, Railroad Co. v. Putnam, 118 U. S. 545,
554 [30: 257, 258]) ; and that in an action
for breach of contract "the amount which
would have been received, if the oontract
had been kept, is the measure of damages if
the contract is broken." Benjamin v. Hih
liard, 23 How. 149, 167 [16: 518, 522].
But the recent tendency of judicial deci-
sions in this country, in actions of contract,
as well as in actions of tort, has been
towards allowing entire damages to be re-
covered, once for all, in a single action, and
thus avoiding the embarrassment and an-
noyance of repeated litigation. This espe-
cially appears by well-considered opinions in
cases of agreements to furnish support or to
pay wages, a few only of which need be re-
ferred to.
In Parker v. RusseU, 133 Mass. 74, the dec-
laration alleged that, in consideration of a
conveyance by the plaintiff to the defendant
of certain red estate, the defendant agreed
to support him during his natural life; and
that the defendant accepted the conveyance,
and occupied the real estate, but neglectea
and refused ta perform the agreement. The
plaintiff proved the contract; and intro-
duced e>'iaence that the defendant did sup-
port him in the defendant's house for five
years and until the house was destroyed by
fire, and has since furnished him no aid or
support. The jury were instructed that "if
the defndant for a period of about two
years neglected to furnish aid or support to
the plaintiff, without any fault of tne plain-
tiff, the plaintiff might treat the oontract as
at an end, and recover damages for the
breach of the contract as a whole; and that
the plaintiff would be entitled to recover
compensation for the past failure of the de-
fend!ant to furnish him aid and support, and
full indemnity for his future support." Ex-
ceptions taken by the defendant to this in-
struction were overruled by the supreme ju-
dicial court of Massachusetts. Mr. Jusuce
Field, in delivering judgment, said : ''In an
action for the breach of a contract to sup-
port the plaintiff during his life, if the con-
tract is regarded as still subsisting, the dam-
ages are assessed up to the *dateof the writ, [12]
and not up to the time when the verdict is
rendered. But if the breach has been such
that the plaintiff has the right to treat the
contract as absolutely and finally broken by
the defendant, and he so elects to treat it,
the damages are assessed as of a total breach
of an entire contract. Such damages are
not special or prospective damages, but are
the damages naturally resulting from a to-
tal breach of the contract, and are suffered
when the contract is broken, and are assessed
as of that time. From the nature of the
contract, they include damages for not per-
forminfir the contract in the future, as well
695
18-14
Supreme Court of the Uioteo States.
as in the past. The value of the contract
to the plaintiff at the time it is broken may
be somewhat indefinite, because the duration
of the life of the plaintiff is uncertain; but
uncertainty in the duration of a life has not,
since the adoption of life tables, been re-
garded as a reason why full relief in dam-
ages should not be afforded for a failure to
perform a contract which ty its terms was
to continue during life. When the defend-
ant, for example, absolutely refuses to per-
form such a contract, after the time for en-
tering upon the performance has begun, it
would be a great hardship to compel the
Elaintiff to be ready, at all times during his
ife, to be supported by the defendant, if the
defendant should at any time change his
mind; and to hold that he must resort to
successive actions from time to time to ob-
tain his damages piecemeal, or else leave them
to be recovered as an entirety by his personal
representatives after his death. Daniels v.
NeiDion, 114 Mass. 530 [19 Am. Rep. 384],
decides that an absolute refusal to perform
a contract, before the performance is due by
the terms of the contract, is not a present
breach of the contract for which any action
can be maintained; but it does not decide
that an absolute refusal to perform a con-
tract, after the time and under the condi-
tions in which the plaintiff is entitled to re-
quire performance, is not a breach of the
contract, even although the contnvot is by its
terms to continue in the future." 133 Mass.
7f>, 7G. It is proper to remark. that the point
decided in Daniels v. Newton was left open
in Dingleij v. Oler, 117 U. S. 490, 503,[29:
984, 988], and has never been brought into
judgment in this court.
[18] •So in Sohell v. Plumb, 55 K. Y. 592, the
action was by a woman, for a breach of an
oral contract, by which the defendant's tes-
tator agreed to support the plaintiff during
her life, and she agreed to render what serv-
ices she could towards paying for her sup-
port. The contract was carri^ out for some
years; and the defendant then turned her
awav, and refused to support her. At the
trial the judge, against the defendant's ob-
jection, aamitted in evidence the Northamp-
ton tables of life annuities, to show the prob-
abilities of life at the plaintiff's sge; and in-
structed the jury that, if the plaintiff was
turned out in violation of the contract, with-
out any misconduct on her part, she was en-
titled to recover damages from the breach of
the contract to the time of trial, deducting
what wages she miffht have earned during
that time; and also to recover for her future
support and maintenance, as to which the
Jury were instructed as follows: **Your
verdict is all she can ever recover, no matter
how long she may live. That ends the con-
tract between these parties; and you will
decide, considering her age, her health, her
condition in life, and the circumstances un-
der which she is placed, how long she will
probably live, and how much service she can
Erobably perform in the future, and say
ow much more it will cost her to support
herself than she will be able to earn, ana al-
low her to recover for such sum." The ver-
dict was for the plaintiff, and Judgment
696
WES rendered thereon. The defcBdaflt a^
pealed, contending that, if the pLaiBtiff was
entitled to recover at all, she could only n-
cover for the time prior to the eoosBKaet-
ment of the action, or, at most, to the tinK «l
trial ; and that, as to the future, it was »-
possible to ascertain the damages, as tJhe de-
ration of life was uncertain, and a further
uncertainty arose from the future pliyskal
condition of the person. But the eonrt wi
appeals, in an opinion delivered by Jadce
Grover, affirmed the judgment, wmjia^-
"Here the contract of tne testator was to
support the plaintiff during her life. T%at
was a continuing contract during thai
period; but the contract was entire, aad a
total breach put an end to it, and gave ths
Slaintiff a ri^ht to recover an eqaivalcat ii
amages, which equivalent was the presest
value of her contract." 'I^may be *farther[U
remarked that in actions for peraonal inje-
ries the constant practice is to allow m recoT-
ery for such prospective damages as the jvy
are satisfied the party will sustain, notwith-
standing the uncertainty of the duratkm ef
his life and other contingencies whldi nay
possibly affect the amount." 55 N. T. 597,
598. See also Remelee v. ffoU, 31 Vt. 56S
[76 Am. Dec 140] ; Sutherlamd ▼. Wyer, C
Me. 64.
In East Tennessee, V, d O. RaQroad Co, r.
Stauh, 7 Lea, 397, the facts were sin^larfy
like those in the case at bar. Hie plaintiff,
having, while in the employ of the defendaat
railroad company as an engineer, and in tke
discharge of his duties as such, received
serious injuries by a collision between hit
locomotive engine and another train, aad
having brought an action to recover das-
ages for those injuries, an agreement, by
way of compromise, was ent^ed into, by
which, in consideration of the nlaiattff's
agreeing to dismiss his suit, the defeodant
agreed U) pay the costs thereof and the plain-
tiff's attorney's fee and physician's btDs;
and further agreed to retain him in its ^
ploy, the plaintiff working when, in his own
opinion he was able to do so, and perfont-
ing only such services as in hb disabled con-
dition he might be able to perform; the de>
fendant agreed to pay him a certain spetifcd
sum per day, regular wages paid to ma-
chinists, whether he laborM or not ; and tke
contract was to continue as long aa the i>>
juries should last. For some time after this
agreement, the plaintiff continued, at inter-
vals, to perform light work for the defend-
ant, receiving pay, however, only for the tine
he actually worked ; and the defendant then
denied any liabili^ under the agrccsMet^
and refused to allow the plaintiff to coatims
the service under it. The supreme court «f
Tennessee held Uiat the plaintiff was entitled
to recover in one action the entire daaufEcs.
not only for wages already due and unpaid,
but also damages to the extent of the benrft
that he would probably have realised under
the contract; and, speaking by Judge He-
Farland, said: *^t is a mistake to sapposs,
as has been done in argument, that becava.
in estimating the damages, we look Id the
probable course of events after the suit ii
brouffht, we are therefore allowinc daMagM
179 v. &
18M.
TowsoN y. MooRB.
14-17
that accrue after the action is ^brought. The
right to recover damages accrues upon the
breach of the contract. But the rule of dam-
ages in such cases is what would have come
to the plaintiff under the contract had it
continued, less whatever the plaintiff might
earn by the exercise of reasonable and prop-
er diligence on his part; and, of course, tn
ascertaining this, we must look to a time
subsequent to the breach, and in some cases to
a time sulKsequent to the bringing of the suit.
Nor is it any objection to the recovery, that
in this case the damages are difficult to ascer-
tain, depending upon contingent and uncer-
tain events. There are many cases in which
the damages are uncertain and difficult to .as-
certain, and, in fact, cannot be ascertained
with certainly, but this has never been re-
garded as a sufficient reason for denying all
relief." 7 Lea, 406.
These cases appear to this court to rest
vpon sound principles, and to afford correct
roles for the assessment of the plaintiff's
damages in the case at bar.
The legal effect of the contract sued on,
as has Iwen seen, was that the defendant
promised to pay the plaintiff certain wages,
and to furnish him with certain supplies, so
long, at least, as his disability to work
&hoidd continue; and the consideration of
these promises of the defendant was the
plaintiff's agreement to do for the defend-
ant such work as he was able to do, and his
release of the defendant from all liability
in damages ior the personal injuries which
Wid cauMd his disability.
The comi>laint allesed, and the plaintiff at
the trial introduced evidence tending to
prove, that by those injuries he was perma-
nently disabled; that he was always ready
and offered to do for the defendant such work
as he was able to do, and labored at that
work for such reasonable time as he was able
to work and bound to work under the con-
tract: and that the defendant, without any
reasonable ground therefor, denied its obli-
gation to pay the plaintiff the stipulated
wages longer than suited its pleasure, and,
ioT six months before the commencement of
the action, disregarded the contract, and re-
vised to abide by it, and entirely abandoned
the contract, and dismissed the plaintiff
from its services.
'] *If these facts were proved to the satisfac-
tion of ^e jury, the case would stand thus :
The defendant committed an absolute breach
of the contract, at a time when the plaintiff
wag entitled to require performance. The
plaintiff was not bound to wait to see if the
defendant wotdd change its decision, and
take him back into its service ; or to resort
to successive actions for damages from time
to time; or to leave the whole of his dam-
ages to be recovered by his personal represen*
tative after his death. But he had the right
to elect to treat the contract as absolutely
and finally broken by the defendant; to
niaintain this action, once for all, as for a
total breach of the entire contract; and to
recover all that he would have received in
the future, as well as in the past, if the
contract had been kept. In so doing, he
would simply recover the value of the con-
mti.s.
tract to him at the time of the breach, in-
cluding all the damages, past or future, re-
sulting from the toUl breach of the con-
tract. The difficulty and uncertainty of es-
timating damages that the plaintiff ma^ suf-
fer in the future is no greater, in this ac-
tion of contract, than they would have been
if he had sued the defendant, in an action of
tort, to recover damages for the personal in-
juries sustained in its service, instead of
settling and releasing those damages by the
contract now sued on.
In assessing the plaintiff's damages, de-
duction should, of course, be made of any
sum that the plaintiff might have earned in
the past or might earn in the future, as
well as the amount of any loss that the de-
fendant had sustained by the loss of the
plaintiff's services without the defendant's
fault. And such deduction was provided for
in the instruction asked by the plaintiff and
refused by the judce.
The questions of law presented by the de-
fendant's bill of exceptions, allowed by the
circuit court of the united States, are sub-
stantially like those, above considered, and
require no further notice.
The result is that the judp^ent of the cir-
cuit court of appeals, sustaining the demur-
rer to the complaint, and reversing the judg-
ment of the circuit court of uie Unitd
States, must be reversed ; that the judgment
of the circuit court of the ^United States [17]
must also be reversed, because of th^ rulings
excepted to by the plaintiff; and that the
case must be remanaed to that court, with
directions to set aside the verdict and to
order a new trial.
Judgments of the Circuit Court of Appeals
and of the Circuit Court of the United States
reversed, and case remanded to said Oirouii
Court for further proceedings in conformity
with the opinion of this court.
BLANCHE K. TOWSON, Edith G. Graham.
Nannie C. Towaon, J. C. Kennedy Camp-
bell, Mary L. I. Campbell, and Mary Ken-
nedy Campbell, Committee of William H.
Campbell, Appts.,
CHRISTIANA V. MOORE, Frederick L.
Moore, Julia A. Russell, Alexander W.
Russell. Gertrude Pry, and Edith Fry.
(See 8. c. neyorcers ea. ii-:&u.;
Burden of proof or undue influence — gift
from parent to child — recital in declarO"
tion of gift.
1. The burden of proving undue Influence In a
gift from an aged woman to daughters with
whom she lives alternately rests upon the
plaintiff who brings the action to set the gift
aside.
2. In case of a gift from a parent to a child,
the circumstances should be vigilantly and
carefully scrutinized to ascertain whetber
there has been undue Influence In procuring
It : but it cannot be deemed prima fade void ;
and In order to set It aside, the court must
be satisfied that It was not the voluntary act
of the donor. _^__
697
17-19
SUPBBMB Ck>URT OF THE UnITEO STATEB.
tb A recital In a written declaration of gift
to the donor's dangbtera, that It was made
**ToIantarIly, without suggestion from any-
one/' and the failure to disclose the gift to
other relatlTes, will not create a suspicion of
nndne Influence, where the donor had pre-
Tlously learned of the charge by one of the
other relatives, that she had been unduly In-
luenced In making a wUL
[No. 198.]
Argued January 25, t6, 1899. Decided Feb-
ruary 20, 1899.
APPEAL from a decree ol the Court of
Appeals of the District of Columbia af-
flrming a decree of the Supreme Court of the
District dismissing a bill in equity of the
plaintiffs, who are the appellants in this
court. The bill was filed to set aside a cer-
tain gift made by Bfarjr I. Campbell to her
two daughters, Christiana V. Moore and
Julia A. Russell, of United SUtes bonds,
worth about $15,000. Afflrmed.
See same case below, 11 App. D. 0. 877.
The facto are stated in the ooinion.
Meeera. Franklin K. Maokey, A. K.
CNurlandyt and R. O. Garland, for appel-
lanto:
Whenever any person stands in the rela-
tion of special oonlidence toward another, so
as to acquire an habitual influence over him>
he cannot accept from him a personal ben-
efit without exposing himself to the risk, in
a degree proportion^ to the nature of their
eonnection, of having it set aside as unduly
obtained.
Adams, Eq. 7th Am. ed. 184; Boud v. De-
La Montagme, 78 N. Y. 498, 29 Am. Rep.
197; Story, Eq. Jur. 9 810.
The party taking a benefit under a volun-
tary settlement or gift containing no power
of revocation has thrown upon him the bur-
den of proving that there was no deception
or undue influence.
Coutta V. Acworih, L. R. 8 Eq. 668; Dar-
lington*8 Appeal, 86 Pa. 612, 27 Am. Rep.
726.
A gift obtained where a confldential rela-
tion existo is prima facie void, and the bur-
den is on the donee to establish to the full
satisfaction of the court that it was the free,
voluntary, and unbiased act of the donor.
Brooke v. Berry, 2 Gill, 83; Highherger
w. Biiffler, 21 Md. 838, 83 Am. Dec. 693;
Todd V. Chrove, 33 Md. 188; Potro v. Vickery,
87 Md. 467 ; Clierhonnier v. EviiU, 66 Md.
276.
Mr. Charles K. Crasim, for appellees:
The two eleraento necessary to constitute
a perfect gift are the intention to give and
^he delivery of the thing given.
Pickslay v. Starr, 149 N. Y. 482, 32 L. R.
A. 703.
Where the gift is from the parent to the
child, the presumption is that it was caused
t>y the ordinary promptings of affection, and
was an intended oeneflt.
Jenkins v. Py^, 12 Pet 241, 9 L. ed. 1070;
Saufley v. Jackson, 16 Tex. 679; Teakel v.
MoAtee, 166 Pa. 600; Bayre v. Hughes, L.
tWhlle arguing this case Mr. Garland was
stricken with apoplexy and soon after died.
598
R. 6 Eq. 376; Teegardm v. Lewie, 145 laL
98.
From the relation of the parties, no nek
construction as claimed bv Uie oomplaiujtfa
is placed upon the acts of those who occsu
somewhat similar rdations with the doasr
to those which existed here.
Hunter v. Athine, 3 MyL ft K. 118; Ssfrt
V. Hughes, L. R. 6 Eq. 376; Leddd v.
Starr, 20 N. J. Eq. 274 ; CotOey v. VaOcr, HI
U. S. 127, 30 L. ed. 112 ; Mackatt v. JTsetsO.
136 U. 8. 167, 34 L. ed. 84; Murray v. ffO-
ton, 8 App. D. C. 281; Hepworth v. Btp-
worth, L. R. 11 Eq. 10; Saufley v. Jaekao^
16 Tex. 679; MiUioan v. MiUiemm, 24 To.
426; Eakle v. Reynolds, 64 Md. 306; Muk
V. MiUer, 72 Iowa, 686; Orr v.
98 Va. 268.
*Mr. Justice Graj delirered Um opiiisB;!
of the court:
""This was a biU in equity, filed Apifl 14[l
1S96, in the supreme court of the Di^rict «l \
Columbia, by dijldren of L«>nidas C. Cemf-
bell, the son of William H. Campb^ aniMt
the two daughters of William H.CampUl aai
against their husbands, who were also ex-
ecutors of the wills of William H. OaapM
and of Mary I. Campbell, his widow aai
residuaij devisee and legatee, to set aside s
gift made by her to their two daughters, of
thirteen United SUtes bonds for $ljm
each (five bearing interest at four aad s
half per cent, and eiffht at four per enit) st
having been obtained from her by nndiie ia>
fluenoe of themselves uid their hushaadi;
and for an account, and for further relitf.
After the fllinff of answers fully aad li^
solutely denying the undue influence t^Mipi
in the bill, and of a general replicatioa, tk
case was heard upon pleadinss and proafi^
and a decree was entered dismissing the IhZL
The plaintiffs appealed to the court of a^
peals of the District of Columbia, which U-
firmed the decree. 11 App. D. C. 377. Th»
plaintiffs then appealed to this eourt. 1W
leading and undisputed facts of the cut
were as follows:
William H. Campbell, an old residcit d
the city of Washington, died Mav 21, ISSI.
leaving a will dated March 16. 1878, anH dvly
admitted to probate, by which, after redtisi
that he had provided for his son, Leoaidtf
C. Campbell, by establishing him in busiaoi.
he gave a Icj^acy of $6,000 to eadi of bu^ tiM
daughters, Julia, wife of Alexander W. Rw-
sell, and Christiana, wife of Prcdcrick L
Moore, and an annui^ of $600 for lilt to Ui
sister, Eloise A. Campbell ; and devfafd ui
bequeathed all the rest aiid residiie of ^
estate in fee to his wife, Mary L OuBpMDL
or, if she should not survive him, to ^
three children as t^iants in eomsoa tk
children of any child dying before kia to
take their parent's share ; and appolatsd kit
son and his son-in-law Moore ejiecutori d
his will. His son died August 16. 1871 sai
the testator, by a codicil &ted Septonkr 7.
1878, and likewise admitted to probate, n^
ified and confirmed his will in all refpf^
except in appointing both his loos^s^*
and one Maury executors thereof. ^^
•His wife and daughters survived Kin W^.*^
im.
TowaoN y. Moo&b.
l»-dl
ton had died intestate, and leayinff a widow,
Ifarr K. Campbell, and seven cbildreny six
of whom wore the plaintiffs in this bilL
The seventh child had died, leaving two
children, who were made defendants, but
were never served with process or otherwise
brought into the case.
Upon the death of William H. Campbell,
his executors for the purpose of pa^ng the
annuity bequeathed bv him to his sister, set
Apart the aforesaid united States bonds, of
the par value of $13,000, and kept them in-
tact during the life of the annuitant. She
died October 1, 18S5, and the bonds then be-
came part of the residue of the estate, be-
oueathed to his widow, Mary I. Campbell.
On October 5, 1885, the bonds ^ere toans-
ferred to her on the books of the Treasury
Department; and on the next day, October
a, 1885, their market value then being about
115,000, she made a gift of them in equal
shares to her two daughters, Mrs. Russell
and Mrs. Moore.
After the death of her husband in 1881
Moore was her business agent; and she re-
sided alternately with one or the other of
her two daughters, living on affectionate and
eoofldential terms with them and their hus-
bands; and at the times of the sift in ques-
tion, and of her death, was at the house of
Mr. and Mrs. Moore, in G^rgetown. She
died Auffust 6, 1893, aged ninety-one years,
and leaving a will, dated May 26, 1882, and
duly admitted to probate, by which, after
some small legacies, she devised and be-
queathed all the residue of her estate, in
equal thirds, to her two daughters and the
seven children of her deceased son, and ap-
pointed her sons-in-law, Russell and Moore,
executors of her will.
It was contended by the plaintiffs that the
court of appeals erred in holding tliat the
burden of proving undue influence was up-
on them; and it was argued that by reason
of the confidential relations between the
donor and the donees the burden of proof was
shifted upon the latter to prove the validity
of the gift of the bonds. But the ruling
of the court of appeals in this respect is
rapported by the decisions of this court, as
will appear by an examination of those
decisions.
^] *In the leading case of JenkvM v. Pye^ 12
Pet 241 [0: 1070], in which this court, at
January term, 1838, declined to set aside for
Qodue influence a deed of real estate made
hy a daughter, shortly after comine of age,
to her father, tiie court, speaking by Mr. Jus-
tice Thompson, said : "The grounds mainly
^ied upon to invalidate the deed were that
being from a daughter to a father rendered
it, at least prima facie, void ; and if not void
^ this ground, it was so because it was ob-
tained by the undue influence of paternal
authority. The first ground of objection
■mIcs to establish the broad principle that a
deed from a child to a parent, conveying the
r^l estate of the child, ought, upon consid-
erations of public poli(7 growing out of the
relations of i^e parties, to be deemed void;
tod numerous cases in the English chancery
We been referred to, which are supposed to
establish this principle. . . It heoomes
178 U. 8,
the less necessary for us to go into a critical
examination of the English chancery doo*
trine on this subject, for should the cases be
found to countenance it, we should not be
disposed to adopt or sancti(m the broad prin-
ciple contended tor, that the deed of a child
to a parent is to be deemed prima facie void.
It is undoubtedly the duty of courts care-
fully to watoh and examine the circum-
stances attending transactions of this kind»
when brought under review before them, to
discover if any undue influence has been lex-
ercised in obtaining the conveyance. But to
consider a parent disqualifled to take a vol-
untary deed from his tshild without consid-
eration, on account of their relationship, is
assuming a principle at war with all mial,
as well as parental, duty and affection, and
acting on the presumption that a parent, in-
stead of wishing to promote the interest and
welfare [of], would be seeking to overreach
and defraud his child. Whereas the pre-
sumption ought to be, in the absence of all
8 roof tending to a contrary conclusion, that
lie advancement of the interest oi the child
was the object in view, and to presume the
existence of circumstances conducing to that
result." 12 Pet. 253, 254 [0 : 1075].
Mr. Justice Story (who had concurred in
that judgment) in tiie last edition of his
Commentaries on Equity Jurisprudence,
which underwent his revision, and whidi
was published *inl846, after his death, steted ftl]
the doctrine on the subject as follows : "The
natural and lust influence which a parent
has over a child renders it peculiarly imr
portant for oourte of justice to watoh over
and protect the intereste of the latter; and
therefore all contracte and conveyances
whereby benefits are secured by children to
their parente are objects of jealousy, and if
they are not entered into with scrupulous
good faith, and are not reasonable imder the
circumstances, they will be set aside, unless
third persons have acquired an interest un-
der them, — especially where the original pur-
poses for which they have been obteined are
perverted or used as a mere cover. But we
are not to indulge undue suspicions of jeal-
ousy, or to make unfavorable presumptions
as a matter of course in cases of this sort."
And he supported this statement by large
qiiotetions from the opinion of Mr. Justice
Thompson in Jenhvna v. Pye. 1 Story Bq«
Jur. (4th ed.) § 309.
In Taylor v. Taylor, 8 How. 188 [12: 1040],
decided at January term, 1850, after the
deaths of Justices Thompson and Story, the
opinion of Mr. Justice Tnompson in Jenh^ni
V. Pye and the passage in Justice Story's
Commentaries (omitting the last clause,
which was not in the earlier editions) were
quoted by Mr. Justice Daniel as laying down
the true rule upon the subject. While some
expressions of that learned jud^ mleht
seem to construe those authorities too
strongly in favor of presuming undue in-
fluence, the decision in that case, setting
aside a deed made by a daughter to her fath-
er soon after her coming of age, ultimately
proceeded upon overwhelming proof of undue
influence, derived in part from the testimony
of witnesses to significant facte ; in part from
699
31-24
SupREMB Court of thb Uhitsd 8tatk&
Oct. Tnoi.
i:
evidence conclusivelj^ showing that nearly
all the statements in the d^ itself were
utterly false, and in part from a letter writ-
ten to the father hy the daughter a few days
before executing the deed and while they
were livinff under the same roof, which, as
the court declared, clearly appeared upon its
face to be "a fabrication, designed to conceal
the very facts and circumstances which it
palpably betrays," and "not the production
of an inexperienced girl, but of a far more
practised and deliberate author."
It has since, more than once, been recog-
] nized by this court, *that "the influence for
which a will or deedvrill be annulled must be
such as that the party making it has no free
wiU, but stands in vincults." Conley ▼.
VaUor (1886) 118 U. S. 127, 134 [30: 112,
115]; RaUton ▼. Turpin (1889) 129 U. S.
663, 670 [32 : 747, 750]. See also MackaU y.
MaokaU (1890) 135 U. S. 167, 172, 173 [34:
84, 87].
In Ralston ▼. Turoin, Just cited, in which
the object of the bill was to set aside deeds
made to an agent by his principal, this court,
speaking by Mr. Justice Harlan, recognized
tlie rule of law that "gifts procured by
agents, and purchases made by them, from
their principals, should be scrutinized with
a dose and vigilant suspicion," and conceded
that in the case then before the court the
agent held such relations, personal and oth-
erwise, to the principal, as would enable
him to exercise great influence over the lat-
ter in respect to the mode in which his prop-
erty should be managed; that the principal
trusted the agent's judCTient as to matters
of business more than uie judgment of any
other man ; and that he had an abiding con-
fidence in the agent's integrity, as well as in
his desire to protect his interests. Notwith-
standing all this, the bill was dismissed, be-
cause l£e plaintiff had failed to show that
the deeds were obtained by undue influence,
but, on the contrary, it appeared by the great
preponderance of the evidence that "al-
though their execution may have been in-
duced, not unnaturally, by feelings of friend-
ship for, and gratitude to, the defendant
Turpin, the erantor acted upon his own in-
dependent, deliberate judgment, with full
knowledge of the nature and effect of the
deeds. It was for the donor, who had suffi-
cient capacity to take a survey of his estate,
and to dispose of it according to an intelli-
gent, fixed purpose of his own, regardless of
the wishes of others, to determine how far
such feelings should control him when se-
leoting the objects of his bounty." 129 U.
8. 67^77 [32:752].
In MackaU v. MaokaU, above cited, in
which it was attempted to set aside a deed
from a father to his son, it appeared that for
twenty 3rears the father and mother had been
separated, and this son had remained with
the father, taking his part, and assisting him
in his affairs, and the other children had
gone with the mother and taken her part in
[M]tb^ *family differences. This court, in the
opinion ddivered by Mr. Justice Brewer,
speaking of the contention that the execu-
tion of the deed was induced by undue in-
fluence, sai^: '^n this respect, reference was
600
made to the long intimacy b^weea father
and son, the alleged usurpation by the Wtr
ter of absolute control over the liu, hafaitife
and property of the former, efforta to pre-
vent others during the last aiekneaa of the
father from seeing him, and the snbjeetion ac
the will of the f auier to that of the k», nas-
ifest in times of health, natunlly atroa^
in hours of sickness. A confidential relaiMMi
between father and son is thus dedoggd,
which, resembling that between client ma4
attorney, principal and agent, pariahioaer
and priest, compels proof of valuable eam-
sideration and bona fides in order to snstaia
a deed from one to the other. But while the
relationships between the two suggest iais-
ence, do they prove undue influence?" U
giving a negative answer to thatqaestlos, the
court affirmed the following propomtJot
"Influence gained bv kindness and i
will not be regarded as undue, if do
tion or fraud be practised, even though it
duce the testator to make an uncqoa] aa4
unjust disposition of his property in faior
of those who have contributed to his comlort
and ministered to his wants, if such diafo-
sition is voluntarily made. Oooftdential rt-
lations existing between the testator aai
beneficiary do not alone furnish any pn-
sumption of undue influence. . . . Thst
the relations between this father wnA hm
several children, during the score of yeart
preceding his death, naturally indined hia
towards the one and against the otKers, is
evident and to have been expected. It woeld
have been strange if such a result had waH
followed; but such partiality towards the
one, and influence resulting therefrom, sre
not only natural, but just and reasoaahle.
and come far short of presenting the uidw
influence which the law denounces. Right er
wrong, it is to be expected that a parest vifl
favor the child who stands by him, aad givt
to him, rather than the others, his property.
To defeat a conveyance under those drniB-
stances, something more than the natural i>-
fluence springing from such reUticBship
must be shown; imposition, fraud, inpor-
tuniity, duress, or something *of that natarv. ',Wli
must appear ; otherwise, that dispcnitioa U
property which accords with the natural ia-
Minations of the human heart must be nr
tained." 135 U. S. 171-173 [34: 86. ST].
The principles established by thcK a«*
thorities may be summed up as follows: Is
the case of a child's gift of its property t» s
?arent, the circumstances attendiiif tht
ransaction should be vigilantly and cart-
fully scrutinized by the court, in order to
ascertain whether there has been nndat i»-
fluence in procuring it; but it canaoC ki
deemed prima facie void ; the pre^nnnpUoa fii
in favor of its validity; and, m order to w<
it aside, the court must be satisfied that it
was not the voluntary act of the donor. TW
same rule as to the burden of proof app^
with equal, if not greater, force to the esM
of a girt from a parent to a child, erco if tht
effect of the gift is to confer upon s chiU
with whom the parent makes his nome aadis
in peculiarly close relations a larfrer *barr U
the parent's estate than will be leecirtd if
other children or grandchildren.
1896.
LOMAX T. PiCEBBINe.
34^86
A{>pl^ixig theae principles to the case at
kar, it IS beyond doubt that the relations in
which Mary I. Campbell stood to her daush-
ters and their husbands afford no CTound lor
putting upon them the burden of oisproving
undue influence.
Upon the ouestion whether undue influ-
ence was in fact exercised, the record con-
ttins a mass of conflicting testimony, which
is satisfactorily considered in the opinion of
the court of appeals, and whidi it would
serve no useful purpose to discuss anew.
A series of decisions of this court has es-
tablished the rule that successive and con-
current decisions of two courts in the same
case, upon a mere question of fact, are not to
be rerersed, unless clearly shown to be er-
roneous. This rule, more often invoked in
admiraltjr cases, is yet equally applicable to
appeals m equity. Dravo v. Fahel, 132 U.
S. 487, 490 [33 : 421, 422] ; Stuart v. Hay-
den, 169 U. 8. 1, 14 [42 : 639, G44] ; Baker
T. Cumming9, 169 U. S. 189, 108 [42: 711,-
71C].
There is one document, however, in the
record, which was the subject of so much ar-
S]gUTnentatthebar,thatabrief notice *of it,
and of the circumstances under which it was
drawn up, will not be out of place.
The defendants, at the hearing, introduced
in evidence a writing signed by Mary I.
Campbell, and in uie following terms:
'Hjeorgetown, D. C, October 6th, 1886. I
have to-day voluntarily, without suggestion
from anyone, given to my two daughters the
4V1> and 4 per cent United States Irands com-
ing to me from the estate of my husband,
tinounting to thirteen thousand dollars at
par, thus equaling their share with the
amount received by their brother and his
family." There was evidence tending to
show that this writing was drawn up and
signed at the request of Mrs. Moore, and de-
livered to her, on the day of its date, and had
since been kept by her.
It was argued, in behalf of the plaintiffs,
that the procuring of this paper, containing
the unusual and suspicious declaration that
the gift of the bonds was made 'Voluntarily,
without suggestion from anyone," together
with the long concealment of the paper from
the plaintiffs, was strong evidence of an in-
tent to back up a f raudiuent transaction.
But this argument is fully met b^ evi-
dence that the reason for the execution of
this paper was that, three or four years be-
fore, MEury K. Campbell, the mother of the
plaintiffs, had made an unfounded charge
that Mrs. Moore had by undue influence pro-
cared the insertion of the legacies to herself
and her sister in her father^s will, and had
only desisted from that charge upon receiv-
ing from Mary I. Campbell a written state-
ment that it was "false in every particular."
Under such circumstances, no suspicion of
undue influence can arise out of the execu-
tion of the writing of October 6, 1885, or out
of its not having been disclosed to the plain-
tiffs, which may well have been in oraer to
prevent stirring up anew a family quarrel.
In this respect, as in most othern, uie case
wholly differs from that of Taylor v. Taylor,
173 V. 8.
8 How. 183 [12: 1040], on which the plain-
tiffs rely.
Upon a careful examination of the whole
evidence, aided by the able and thorough ar^
guments of counsel, no sufficient ground ajp*
Eears for reversing the decree dismissing th«
ill.
Decree affirmed.
JOHN A. LOMAX, Plff. in Err^ [8e|
AQUILA H. PICKERING.
(See 8. C Reporter's ed. 26-82.)
Record of Indian's deed, when notice of title*
The record of a deed from an Indian without
the approval of the President, which is nec-
essary for a valid conveyance, constitutes
notice of the title to subseQaent purchasers,
under the Illinois conveyancing act, | 80,
making an unrecorded deed void as to cred-
itors and subsequent purchasers.
[No. 123.]
Submitted January It, 1899. Decided
February tO, 1899.
F ERROR to the Supreme Court of the
State of Illinois to review a judgment of
that court affirming the judgment of the
Superior Court of Cook County in that State
in favor of the plaintiff, Aquila H. Pickering,
for the recovery of lands which had origi-
nally been panted by the United States to
certain Indians under the treaty of Prairie
du Chien. Affirmed,
Sm same case below, 166 HI. 431 : also se«
same case, 145 U. S. 310, 36 L. ed. 716.
Statement by Mr. Justice Browns
This was an action of ejectment brouffht
by Aquila H. Pickering against John A. Lo-
max and William Kolze to recover possession
of two parcels of land in Cook county, Hli-
nois, which had originally been panted by
the United States to certain Indians under
the treaty of Prairie du Chien, of July 20,
1829.
This case was before this court upon a for-
mer hearing {Pickering v. Lomax, 146 U. 8.
310 [36: 716]), the report of which contains
a full statement of the facts, which need not
be here repeated. Upon that hearing the
judgment of the supreme court of Illinois
was reversed, and the case remanded for a
new triflJ, which resulted in a judgment for
Pickering, the plaintiff, and in an affirmance
of t^at judgment by the supremo court of
Illinois. Lomaao v. Pickering, 1G5 111. 431.
To review this judement a second writ of
error was sued out from this court.
Meeera. John H. Hr Burgett, Jamee
Maker, and A. W, Broume for plaintiff in er^
ror.
Mr. John P. Ahrens for defendant la
error.
601
27-13
SUFBBXB COUBT OF THK UNITED STATES.
Oct.
PI7J *Mr. Justice Brewm dtUrwed tlie opin-
ion of tlie court:
The common source of titie in this esse
was AleiLander Robinson, an Indiap, to
wliom tiie lands were patented by President
Tyler, December 28, 1843, under the proyi*
noiM» of art. 4 of the treaty of Prairte du
Chien (? Stat, at L. 320), subject to the
following proviso: "But never to be leased
or oonveyM by him" (the grantee), "them,
his or their heirs, to any persoh whatever,
without the permission of the President of
the United States." The lands were subse-
gently allotted and set off to Joi<cph Robin-
son, one of the patentee's children, by a de-
cree in partition of the Cook county court
of common pleas.
Pidcerinff claimed title through a deed
from Joseph Robinson and wife to John P.
Horton, dated August 3, 1858, recorded July
16, 1861 but wiUiout the approval of the
President indorsed thereon. The deed was,
however, submitted to and approved by the
President, January 21, 1871, and a certified
«opy of the deed ^th such approval recorded
March 12 1873.
Loman title was by deed from Jos^h
Bobinson to Alexander McClure, date! No-
Tember 22, 1870, submitted to and appioved
by the President, February 24, 1871, and re-
corded March 11, 1871, in Cook county.
Upon the first trial, plaintiffV chain of
title being proved, the defendant Lomax in-
troduced no evidence,* but at the close of
plaintiff's testimony moved that the case be
dinnissed ujpon the ground that the deed of
August 8, 1858, from Joseph Robinson and
wm to Horton was made in direct violation
€i the terms of the patent, which required
the approval of the President to the convey-
aooe. This motion was granted, the court
being of opinion that Kobinson had no
anthority to convey without obtaining prior
permission of the President, and t^t the
subsequent approval of the deed was invalid.
Thereupon judgment was rendered for the
defendant, which was affirmed by the su-
preme court of Illinois. 120 lU. 293.
The case was reversed by this court upon
[M] the ground thait *the approval subsequenUy
given by the President to the conveyance was
retroactive, and was eouivalent to permis-
sion before execution ana delivery. Tne case
went back for a new trial, when Lomax put
in evidence the titie above stated, relying
upon a sentence in the opinion of tnis court
to the effect that "if, after executing this
deed, Robinson had given another to another
person with the permission of the President,
A wholly different ouestion would have
arisen." Judgment having been rendered
for the plaintiff, the case was again taken to
the supreme court of the state, which was of
opinion that the defendant did not stand in
the relation of a bona fide purchaser to tue
propertv.
It will be observed that the deed to Horton
of August 3, 1858, antedated the deed to Mc-
Clure of February 22, 1870, by more than
twelve years, and was recorded July 16, 1861,
while the deed to McClure was recorded
March 11, 1871, nearly ten years thereafter.
The deed to Horton also antedated the deed
602
to McClure in the i^proval of the
by about a month, rur. : Hortoo, Jaaaaiy tl,
1871; McClure, Fd>ruary 24, 187L
Defendant, however, reUes upon ttt hA
that the McClure deed was recorded with tki
approval of the President indoned tWnoi
Maich 11, 1871, whUe plaintirs deed vitk
such approval was not recorded nortil MtrA
12, 1873. The real Question then is whetkr
the recording of the Horton deed of July If,
1861, without the approval of the Presi4at
indorsed thereon, was notice of platatirfe
titie to subseouent purchasers.
By section 30 of the conveyaneiv set (f
Illinois, it is provided that "all <fee£, mrV
ga^, and other instruments in vntii|
which are authorized to be recorded skAll
take effect and be in force from and after tte
time of filing the same for reeord, ami aot
before, as to all creditors and subee qnent per-
chasers without notice, and all sock dm
and titie papers shall be adjudged void ss tt
all such creoitors and subsequent purchsjcn
without notice until the same shall be iki
for record."
The supreme oourt of Illinois [16S DL
436] was of opinion that the deed to Hrctos
was entitied to record, although it had sot
received *the approval of the President b[a
deliverinj^ the opinion of the court Mr. Jus-
tice Craie observed: ''As reisperts tkc ip-
proval of the President, required by tW
treatv and the provision in the patent to rei-
der the deed effectual, we do not think tkt
recording laws have any bearing npoa it
There was a record of the approval cf tbt
President in the Department at Washinptos.
and that record was notice to all comcemi
from the time it was made, and we do we
think the recording laws of the 9tstf Tt>
quired a copv of that record to be reeordrl
in the recoroer's office where the land » W-
cated. A record of that diara?ter is *iah
lar to a patent issued by the I*r««]deat kf
lands that belong to the govemmeat ^hiA
is not required to be recorded in the waxj
where the land is located."
Even if this be not a oonstmetioa ef tbt
state statute binding upon us, and decisnt
of the case, we regard it as a eorreeC expv
sition of the law.
The deed is an ordinary warranty dctd
upon its face, signed by the parties. uA
regularly acknowledged before a justice of
the peace. There was nothins to sppn**
the recorder of any want of authority to cfe^
vey, or to justify him in refusing to pot tW
deed on record. Whether the graotort hU
authority to make the dc«d as betwecs th^
selves and the grantees, or sutwequcst p«^
chasers, is a matter which did not cooetn
him. Though the deed might be impescM
by showing that the grantor had no rack ss-
tnority, the record was notice to subM^vRt
purchasers that they had at least attcnptW
to convey their interests.
A deed may be void by reason of the o^
fancy or coverture of the grantors, sadrrt
may be, under the laws of the state, catioi'
to record and notice to subsequent pwthse-
ers. While the record of a void deed is ^
no greater effect than the deed iimiU sai ^
not such notiee as will give protertiea t* s
ITS v. i"
isia.
WiLBON T. EUBEKA. ClTT.
2»-«8
bona fld« purchaser, yet it may, under cer-
tain drcumatances, be a notice to intending
purchasers, or third persons^ that the grant-
or has intended and undertaken to convey
his title. Thus, in Morrison v. Broum, 83
ni. 562, a deed of trust executed by a mar-
ried woman, her husband not unitins there-
M)] in, *to secure the purchase money of the prop-
erty, though void as a conveyance, was never-
thdess h Jd to be an instrument in writing
rekting to real estate within the statute m
Illinois, and, when recorded, constructive no-
tice to all subsequent purchasers of the lien
of the oriffinid vendor upon the same for the
unpaid price. The court took the ground
that while married women had no force or
power to create a lien, subsequent purchas-
ers occupied the same position as they would
hate done had the instrument been read to
them before they became interested in the
question.
So, in Teffi v. Munaon, 67 N. Y. 07. the
record of a mortgage prior to the acquisition
of title by the grantot was held to be con-
structive notice to a subsequent purchaser in
food faith, and, under the recording act, f^iv-
uig it priority to the title. See also United
States Ins. Co. v. Shriver, 8 Md. Ch. 381;
Alderson v. Ames, 6 Md. 62; Stevens ▼.
Eampton, 46 Mo. 404.
In this case, however, it appears from Mc-
Clure's own statement that when Robinson
ctme to him in 1870 to sell him his riffht to
the land, he told him that he had already
Bold the premises, but without the approval
of the President, and that McClure sent his
own attorneys to examine the record. He
thus had not only constructive, but actual,
notice of the Horton deed.
The approval of the President was no
proper part of the deed. The language of
the restriction in the original patent was "but
never to be leased or conveyed bv him [the
grantee], them, his or their helra, to any
person whatever, without the permission of
the President of the United States." How
that permission should be obtained or ex-
pressed is left undetermined by the proviso.
We see no reason why it might not have been
by a memorandum at the foot of the petition
for approval, or even by a letter to that ef-
fect. The essential fact was that oermission
should be obtained and expressea in some
form, of which, in all probability, a record
was kept in the Department.
Indeed, we think it sufficiently appears
that at the time the deed to McClure was ap-
proved by the President, February 24, 1871,
!81]*therewasonfilein Washington the approval
of the President of the prior deed to Horton.
There was put in evidence a certificate of the
Conmiissioner of Indian Affairs, signed
March 7, 1896, to a certified copy of the Hor-
ton deed, with an affidavit as to the loss of
the original, a further affidavit that the sale
was an advantageous one for Robinson, and
the approval of Uie President, dated January
21, 1871. It does not directly appear when
the approval of the President was put on file
in the office of the Commissioner, but we
think the presumption is that it was filed as
of its date. There was nothing requiring
that this approval should be filra in the re-
173 U. 8.
corder's office in Cook county, and when M^
Clure took his deed of November 22, 1870,
and obtained the approval of the President
of February 24, 1871, he took it with th«
.chance that the Horton deed had already
been approved and that the power of the
President had been exhausted. The approval
by the President of his deed was doubtless an
inadvertence, and, in view of the fact that he
had already approved the Horton deed, a
nullity. Bv his approval of the first deed
the title of Robinson was wholly devested,
and there was nothing left upon which a
subsequent approval could operate, unless
we are to assume that such subsequent ap-
proval in some way revested the title in Rob-
inson and passed it to McClure. No new de-
livery was necessary to pass the title to Hor-
ton. United States v. Sehurtg, 102 U. S.
378 [26: 107] ; Bioknell v. Oomstook, 113 U.
S. 149 [28: 962]; Gilmore v. Bapp, 100 HI.
297 ; Oallipot, Bruner, v. Manlove, 2 111. 166.
No injustice was done to McClure, since he
alreadv had notice, both by the record and
by Robinson's statement, that he had con-
veyed the land, and an examination of the
record in Washington would doubtless have
shown that the prior deed had received the
approval of the President. The two deeds
stand in the relation of two patents for the
same land, the second of which is uniformly
held to be void.
There is nothing in the fact that the par-
tition proceedings, under which Robinson ob-
tained title to uie land in dispute, were not
approved by the President. Kot only were
th^ partition proceedings set forth as a
part of the record of the case at the time he
approved the Horton deed, but as already
•held in the prior case (p. 816 [36: 719]), [31]
such approval was retroactive, and operated
as if it had been indorsed upon the deed when
originally given, and inurea to the benefit of
Horton and his grantee, ^ot as a new title
acquired by a warrantor subsequent to his
deed inures to the benefit of the erantee, but
as a deed, imperfect when executed, may be
made perfect as of the date when it was de-
livered."
The Judgment of the Supreme Court ol
Illinois is tiierefore affirmed.
ROBERT G. WILSON, Plff. in Err^
V.
EUREKA CITY,
(See 8. C. Reporter's ed. 82-87.)
City ordinance, when not unconstitutional.
An ordinance requiring the written permission
of the mayor or president of the city conncll,
or, In his absence, of a coancllor, before any
person shall move a bnlldlng on the streets.
Is not unconstitutional as a denial of the
equal protection of the laws or of due process
of law.
[No. 142.]
Submitted January 17, 1899. Decided Feb-
ruary to, 1899.
603
SZ^o
SupRBHB Court of thb Uhitrd States.
Oct.
IN EKROR to the Supreme Court of the
State of Utah to review a judgment of
that court affirming a judgment of the Fifth
Judicial District Court of the State of Utah,
County of Juab, which affirmed the judgment
of a Justice's Court of Eureka City, Utah,
convicting plaintiff in error, Robert G. Wil-
son, of a violation of an ordinance of that city
upon which he was sentenced to pay a fine.
Affirmed,
See same case below, 16 Utah, 53.
Statement by Mr. Justice MoKennas
Section 12 of ordinance number 10 of Eu-
reka City, Utah, provided as follows:
''No person shall move any building or
frame of any building, into or upon any of
the public streets, lots, or squares of the city,
or cause the same to be upon, or otherwise to
obstruct the free passage of the streets, with-
out the written permission of the mayor, or
president of the city council, or in their ab-
sence a councilor. A violation of this sec-
tion shall, on conviction, subject the offender
to a fine of not to exceed twenty-five dollars."
The plaintiff in error was tried for a vio-
lation of the ordinance in the justice's court
|B3]of the dty. He was convicted and *8ein-
tenced to pay a fine of twenty-five dollars.
He appealed to the district court of the first
judicial district of the territory of Utah.
On the admission of Utah into the Union
the case was transferred to the fifth district
court of Juab county, and there tried on the
24th of October, 1896, by the court without
a jury, by consent of the parties.
Section 12, supra, was offered and ad-
mitted in enridence. Plaintiff in error ob-
jected to it on the ground that it was repug-
nant to section 1 of article 14 of the Consti-
tution of the United States, in that it dele-
gated an authority to the mayor of the city,
<»' in his absence to a councilor.
There was also introduced in evidence an
ordinance establishing fire limits within the
city, providing that no wooden buildings
should be erected within such limits except
by the permission of the committee on build-
ing, and providing further for the alteration
and repair of wooden buildings already
erected. The ordinance is inserted in the
margin.f
[M] *The evidence showed that the plaintiff in
error was the owner of a wooden ouilding of
the dimensions of twenty by sixteen ^t,
which was used as a dwelling house. It was
constructed prior to the enactment of the
ordinances Move mentioned. The evidence
further showed that plaintiff in orror appliei
to the mayor for permission to more the
building along and across Main street in the
city, to another place within the fire liniti.
The mayor refused the permissioii, statzig
that if the desire was to move it ontiide of
the fire limits permission would be
Notwithstanding the refusal, the
error moved the building, using liloeks aad
tackle and rollers, and in doing so
the time between eleven a. m. and three f
At the place where the building stood or%-
inally the street was fifty feet from the
houses on one side to those on the other —
part of the spaoe being occupied by side-
walks, and the balance by the traveled high-
way. The distance of removal was two hm-
dred and six feet along and across Utn
street. Eureka City was and is a mining
town, and had and has a population oi abcvt
two thousand. It was admitted that the
building was moved with reasonable diH*
gence.
The plaintiff in error was a^n oonvietel
From tnejudgment*of conviction he appealed [94
to the supreme court of the state, whiek
court affirmed the jud^ent, anA to the jad^
ment of affirmance this writ oi error n £•
rected.
Eureka City has no special charter, bet
was incorporated under tne graoal inooqw*
ration act of March 8, 1888, and amoog the
powers conferred by it on dty couBcils az«
the following:
"10. To regulate the use of streets, aDcvi,
avenues, sidewalks, crosswalks, parks flM
public cnrounds.
"11. To prevent and remove obstmctioM
and encroachments \np>n the same."
The error assigned is that the ordinaaee fii
repugnant to the Fourteenth Amendmcat ef
the Constitution of the United States, be-
cause "thereby the citizen is deprived of hit
property without due process of law.** aid
"the citizen is thereby denied the equal pro-
tection of the law."
Mr. J. W. H. Wliiteeotton for plaiotif
in error.
Mr, P. Ii. Williama for defendant is cr
ror.
delivered thi.SSi
*Mr. Justice MeKei
opinion of the court :
Whether the provision* of the charter *••
abled the council to delegate any power to
the mayor is not within our competeiKT to
decide. That is necessarily a state qucsttaa.
tSection 1. That the following boumdaries
are hereby established as the fire limits of
Eureka City, to wit: Commencing at a point
on Main street of said city, where said street
crosses the Union Pacific Railway track, and op-
posite or nearly opposite the Keystone hoisting
works, thence running In an easterly direction
along said Main street to a point where said
street Intersects the road or street easterly of
the site now occupied by the Bi. E. Church bond-
ing . the northerly and southerly boundaries of
said fire limits to be two hundred feet on each
side of said Main street for said distance.
Sec. 2. fevery building hereafter within the
fire limits of said city shall be of brick, stone.
Iron, or other substantial and Incombustible
604
material, and only the following woodei boitA
Ings shall be allowed to be erected. eir«fC
as hereinafter provided, via.: Sheds to fadi
Itate the erection of authorised bvUdlap^
coal sheds not exceeding ten feet In belgki, ui
not to exceed one hundred feet In area. uA
privies not to exceed thirty feet In area and tta
feet In height, and all such ahedt and prtrM
shall be separate stmctdree: Prori4e4, TUt
any person desiring to erect a balldlng of otktr
material than those above specified withta mH
fire limits, shall first apply to the cooiinittM m
building within said fire limits of the dty Nr
permission so to do. and If the conaeat of tte
committee on building within said fire ttatti
shall be given, they shall issue a permit, tad R
ITS V, 1
Wilson t. Extbeka City.
85-17
ftod we are confined to the consideration of
whether the power conferred does or does
not violate the Constitution of the United
States.
It is contended that it does, because the
ordinance commite the rights of plaintiff in
error to the unrestrained discretion of a
single individual, and thereby, it is claimed,
removes them from the domain of law. To
support the contention the following cases are
cited: Matter of Frazee, 63 Mich. 396; State,
ex rd. Oarrabad, v. Bering, 84 Wis. 685 [19
L. R. A. 858] ; Anderson v. City of Welling-
ton, 40 Kan. 173 [2 L. R. A. 110] ; Mayor of
Baltimore v. Rndecke, 49 Md. 217 [33 Am.
Rep. 239] ; City of Chicago v. Trotter, 136
111. 430.
Q *With the exception of Baltimore t. Rod-
eeke, these cases passed on the validity of
city ordinances prohibiting persons parading
ntreets with banners, musical instruments,
etc., without first obtaining permission of the
mayor or common council or police depart-
ment. Funeral and military processions
were e^^cepted, although in some respects
they were subjected to regulation. This dis-
crimination was made the basis of the deci-
sion in State, ew rel. Oarrahad, v. Bering,
bat the other cases seem to have proceeded
upon the principle that the right of persons
to as-semble and parade was a well-estab-
lished and inherent right, which could be
regulated but not prohibited or made de-
pendent upon any officer or officers, and that
its regulation must be by well-defined con-
ditions.
This view has not been entertained by
other courts or has not been extended to
other instances of administration. The cases
were reviewed by Mr. Justice McFarland of
the supreme court of California in Re Flah-
erty, 106 Cal. 558 [27 L. R. A. 529], in which
an ordinance which prohibited the beating
of drums on the streets of one of the towns
of that state "without special permit in
writing so to do first had and obtained from
the president of the board of trustees," was
passed on and sustained. Summarizing the
cases the learned justice said :
''Statutes and ordinances have been sus-
tained prohibiting awnines without the con-
sent of the mayor and alaermen {Pedrick v.
Baxley, 12 Gray, 101) ; forbidding orations,
harangues, etc.* in a park without the prior
consent of the park conunissioners ( Common^
vmtth V. Ahrahatn^, 156 Mase. 57), or upon
the common or other grounds, except by the
permission of the city government and com-
mittee {Comm>onwealth v. Bavie, 140 Mass.
485) ; 'beating any drum or tambourine, or
making any noise with any^ instrument for
any purpose whatever, without written per-
mission of the president of the village,^ on
any street or sidewalk {Vance v. Hadfield,
[51 Hun, 620], 22 N. Y. S. R. 868, 1003, 4
N. Y. Supp. 112) ; giving the right to man-
ufacturers and others to rine bells and blow
whistles in such manner and at such hours
as the board of aldermen or selectmen may in
writing designate { Savoy er v. Davis, 136
Mass. 239, 49 Am. Rep. 27 ) ; prohibiting the
'erecting or repairing of a wooden building [37]
without the permission of the board of alder-
men (Hine v. The City of New Haven, 40
Conn. 478) ; authorizing harbor masters to
station vessels and to assign to each its
place {Vanderhilt v. Adams, 7 Cow. 349);
forbidding the occupancy of a place on the
street for a stand without the permission of
the clerk of Faneuil Hall Market {Nightin-
gale, Petitioner, 11 Pick. 108) ; forbidding the
keeping of swine without a permit in writ-
ing from the board of health {Quincy v. Ken'
nard, 151 Mass. 563) ; forbidding the erec-
tion of any kind of a building without a per-
mit from the commissioners of the town
through their clerk {Boston Commissioners
V. Covey, 74 Md. 202) ; forbidding any per-
son from remaining within the limits of the
market more than twenty minutes unless
Eermitted so to do by the superintendent or
is deputy (Commontoealth t. Brooks, 109
Mass. 355)."
In all of these cases the discretion upon
which the ri^ht depended was not that of a
single individual. It was not in all of the
cases cited by plaintiff in error, nor was
their principle based on that. It was
iMLsed on the necessity of the regulation of
rights by uniform and general laws — a ne-
cessity which is no better observed by a dis-
cretion in a board of aldermen or council of
a city than in a mayor, and the cases, there-
fore, are authority against the contention of
plaintiff in error. Besides, it is opposed by
Bavis ▼. Massachusetts, 167 U. S. 43 [42:
71]. •
Davis was convicted of violating an ordi-
nance of the city of Boston by making a pub>
lie address on the "Common," without ob-
taining a permit from the mayor. The con-
viction was sustained by the supreme judi-
cial court of the commonwealth (162 Mass.
510 [20 L. R. A. 712]), and then brought
here for review.
The ordinance was objected to, as that in
■hall therenpon be lawful to erect sncb bnlld-
lag onder such regulations and restrictions as
the eommittee on building within said fire limits
may provide.
Sec 8. Any wooden building already within
Bald fire limits shall only be altered or repaired
in such a manner that neither area nor height be
Increased without the consent of the said com-
mittee on building within said fire limits.
Sec 4. The said committee on building
within said lire limits shall have the power to
■top the constmction of any building, or the
making of alterations or repairs on any build-
bis where the same is being done In violation of
tae provisions of this ordinance, and any owner,
•tchltect, or builder, or others who may be em-
173 U. S.
ployed, who shall assist In violation or noncom-
pliance with the provisions of this ordinance,
shall be subject to a fine for every such violation
or noncompliance, of not less than ten nor more
than one hundred dollars.
Sec 6. That there shall be a committee con-
sisting of three members of the council ap-
pointed by the mayor and confirmed by the coun-
cil, to be known as the "committee on building
within the fire limits of Eureka City," and that
said committee be appointed immediately upoa
the taking effect of this ordinance.
Sec 6. This ordinance shall take- effect and
be In force from and after its first publication
in the TIntIc Miner.
Passed and approved June 4, 1894.
605
S7-40
FVPBBMB Court of thb Uhttbd States.
Oct. Tcix,
the case at bar is objected to, because it was
"in conflict with the Constitution of the
United States, and the first section of the
Fourteenth Amendment thereof." The ordi-
nance was sustained.
It follows from these Tiews that the judg-
mmi of the Supreme Court of Utah ehould
he, and it ia, affirmed. '
IpS] EDWIN A. MoINTIRE et al., Appte.,
V.
MARY C. PRYOR.
(See 8. C Reporter's ed. 88-69.)
Principal, when Uahle for fraud of agent —
lachee, when not sufficient defense to action
for fraud — eaicusea for delay in Mnging
action.
1. One who acquires title through an agent
Is chargeable with the latter's fraud in the
transaction, the same as if he had committed
it personally.
S. A delay of nine years and four montlis is
not fatal to a suit to annul a foreclosure on
the ground of fraud, where the plaintiff is an
ignorant colored woman, defrauded by one in
whom she placed entire confidence, who as-
sumed to act as her agent and professed that
the sale was in her interest, and who ob-
tained title for little more than a nominal
sum by the false personation of a fictitious
person, when he still controls and probably
owns the property, the situation of which has
not materially changed, and there has been
no rapid rise in yalue, or the intervention of
the rights of any bona fide purchaser.
S. When the fraud is clearly proved the court
will look with indulgence upon any disability
of the plaintiff, which excuses his delay in
bringing his action to assert his rights.
[No. 109.]
Argued January 4, 5, 1899. Decided PeHh
ruary tO, 1899.
APPEAL from a decree of the Courtrof Ap-
peals of the District of Columbia affirm-
ing the decree of the Supreme Court in favor
of the plaintiff, Mary C. Pryor, against the
defendants, Edwin A. Mclntire et al,, in a
suit to obtain the nullification and avoid-
ance for fraud of a certain foreclosure of
real estate in the city of Washin^g^n. The
decree of the supreme court set aside certain
deeds which operated as a cloud upon plain-
tiff's title, etc Decree of the Court of Ap-
peals affirmed.
See same case below, 7 D. C. App. 417, 10
D. C. App. 432.
Statement by Mr. Justice Browns
This was a oill in equi^ filed in the su-
preme court of the District of Columbia by
Mary C. Pnror against Edwin A. Mclntire,
Martha Mclntire, and Hartwell Jenison to
obtain the nullification and avoidance, upon
the ground of fraud, of a certain foreclosure
of real estate in the city of Washington.
The facts were in substance that, in May,
1880, the plaintiff Mary C. Pryor, being the
606
owner of parts of lots twenty-one and tvts-
ty-two in square numbered 569, eoniejed tin
same by trust deed to Edwin A. Mclntire te
secure the defendant Hartwell Jenison in t^
sum of $460 for money advanced by Jeniiaa,
which was represented by a note made by
the complainant and her husband, ThoBss
Pryor, since deceased, payable one year after
date, with interest at the rate of dght p«
cent, payable quarterly.
Deuiult havmg been made in pavmeat at
the note, the property was regularly sdrer-
tised for sale under the deed of trust, tad,
after a week's postponement on aceomit of
the weather, was sold on June 17, 1881. sad
bought in nominally by Jenison for $^)6, tht
difference between $450, the amount of the
Jenison loan, and $806, the amount forwucb
the property *was sold, being th/t taxes viic^ [X
had accrued on the proper^, together witii
the expenses and commissions attending tkc
sale, which amounted all told to ^^39.1$. la
this connection the plaintiff averred tkst
the defendant Mclntire had represented to
her husband, Thomas Pryor, tnat the mk
would be only a matter of form, and that he,
Pryor, could bu;^ in the property, and tkst
time would be given him to pay the indebt-
edness; that the sale was made withooi the
knowledge of Jenison, the holder of the boIb
secured by the deed of trust; that as hU
been previously agreed, Pry^r, the hnsbanl
of the plaintiff, did in fact necon^je the par-
chaser at the trustee's sale for the 4Ub of
$700, and «the property was struck, off ts
him; that thev were not disturbed ia tbt
possession of the propertr for some tine,
when Mclntire called on them and told tkea
that they might pav rent to him, and tkst
it would be applied to the payment of tW
principal of the debt, and tnat acoordinfij
they paid rent imtil September, 1884, at tto
rate of $6 per month, with the underatsai*
ing that this would be applied to the Uqsi-
dation of the note, and tnat when the Mae
was paid the property would be reeoovm4
to the plaintiff. On June 29, 1881, a fe«
days after the sale, a deed was execatcd ts
Jenison for the nominal consideratioa of
$806, and on the same day Jenison gin s
new note to one Emma Taylor for t^ taa
of $425, and secured the same by a deed of
trust on the same property, the note beii|
payable one year after date, with eigfat per
cent interest. Subsequently, and oa Apnl
21, 1882, Jenison conveyed the property oet*
right to Emma Taylor on receiving the ftfS
note.
Subsequently, and in May, 1884, bas
Tajrlor conveyed the property to Martha M."
Intire, the sister of the defendant Edwia A.
Mclntire. Bv reason of some snpponcd dr>
feet in the deed from Jenison to Tiylo'*
Jenison subsequently, and on Septenber T.
1887, made a quitclaim deed of bis iatvirt
in the property to Martha Mdntire, wko, ii
October, 1886, built four houses npoa tke
property, two fronting on F street aid tws
m the rear facing an alley, of which iks Iti
had the use and enjoyment ever siaea
'Plaintiff's averments in this eoaairt^t
were that the sale by Mclntire odv t^
Jenison deed of trust was made fo Us ••■
,.
18MI
McIntibb t. Pbtob.
40-4»
inttrest, with the fraudiuent intent of get*
ting possession of the property; that the
$425 note given by Jenison to Emma Taylor,
secured by a deed of trust, was fictitious and
a part of the same scheme; that Emma Tay-
lor was a fictitious person; that the deeds
to her were void; that the. deed from her to
Martha Mclntire was also fictitious, and
that tba subsequent deed from Jenison to
Martha Mclntire of September 27, 1887, was
procured by the fraudulent representations
of Edwin A. Mclntire.
The prayer was that the sale under the
deed of trust be set aside; that an account
be taken of what was due by the plaintiff
upon the note for $450, and ui>on the pay-
ment of the same that the plaintiff be de-
clared the owner of the property, and that
the trustees i)e required to accoimt to her
for rents, issues, and profits received by
them on account of such property since the
foreclosure sale.
The answer of Edwin A. Mclntire denied
all allegations of fraud and deceit; averred
that the sale was bona fide in all respects;
that he had no interest whatever in the
property, and that it belonged to his sister
Martha Mclntire, who boueht it in the regu-
lar course of business, and who, in her an-
swer, denied that she participated in or had
anything^ to do with any fraudulent scheme
to get possession of the property, or thai she
had knowledge of any fraud on the part of
her brother, and alleged that she was a true
and bona fide purchaser of the property in
dispute.
Jenison also answered the bill, ntating that
he had directed the sale to be made and the
property bought in for him, if neoessary for
his protection; that he made tne deed to
Emma Taylor, as well as the auitclaim deed
to Martha Mclntire, and that he knew noth-
ing whatever of any fraud on the part of
Edwin A. Mclntire.
Upon a hearing upon pleadings and proofs,
the supreme court rendered a decree dismiss-
ing the bill upon the ground of laches.
Plaintiff appealed to the court of appeals,
which reversed the decree of the court below;
i] remanded the case to *the supreme court of
the District of Columbia, with instructions
to take an account of the indebtedness due
by the plaintiff to Jenison, together with an
account of the rents and profits collected by
the defendants, and directed that upon the
coming in of such report a final decree be
passed annulling each and all of the several
trust deeds that clouded the title to said
premises, and awarding possession thereof to
plaintiff upon her paying the amount due
Jenison, and to the defendant Martha Mc-
lntire^ upon the statement of the account.
7 D. Cf. App. 417.
In compliance with these instructions the
supreme court subsequently entered a final
decree in favor of the plaintiff for $1, 664.93,
and set aside the deed of trust from plaintiff
and her husband to Edwin A. Mclntire, and
all the subseouent deeds, six iii number,
which q>eratea as a cloud upon plaintiff's
title.
Another appeal was taken from this decree
to the eourt of appeals, which afllrmed the
173 IF. &
decree of the supreme court (10 D. C. App.
432), whereupon Edwin A. Mclntire and
Martiia Mclntire took an appeal to thia
court.
Shortly after the commencement of thia
suit, four other suits were begun by Eliza-
beth Brown, Annie Ackerman, John Souther
et ol., and Joseph Hayne and wife, for simi-
lar purposes as the above, to procure the an*
nulment of certain deeds of r^il estate to and
from Emma Taylor, based upon her supposed
fictitious character. The details of the
fraud set forth in these bills were different,
but in all of them the fictitious character of
Emma Taylor was charged, and in all of
them, but one, MarUia Mclntire purported
to have become the owner of the property.
For the purpose of saving the expense of re-
peating tastimonv, it was stipulated th it the
testimony in each of the cases, so far as rel-
evant, miffht be read and considered by the
court as having been taken in each of the
other cases. Tne court of appeaU entered a
decree in each of these cases, except one,
which was dismissed on the ground of laches,
granting; the relief prayed. The amount in*
volvcd in the other cases, except. the Pryor
Case, was insufficient to give this court ju*
risdiction; but upon the appeal to this court
the 'testimony in each of the other cases was [48]
brought up under the stipulation in the
Pryor Case,
Messrs, Frank T* Browning, J^noo^
Toiien, and WilUam B. Dennis for appel-
lants.
Mr. Franklin H. Maekey for appellee.
*Mr. Justice Brown delivered the opin-[48]
ion of the court:
Two questions are presented by the record
in this case: First, that of fruud in the
sale and subsequent manipulation of the
property in suit; and, second, that of laches
in instituting these proceedings.
1. The question of fraud necessarily in*
volves the examination of a larse amount of
testimonv, and a scrutiny of the successive
steps taken, which finally resulted in the
transfer of the property from its original
owner, Mary Pryor, to its present owner of
record, Martha Mclntire.
The bill avers and the answer admits the
execution of a deed of trust May 2, 1880, by
the plaintiff and her husband to Edwin- A.
Mclntire as trustee, to secure a note for
$450, payable to Hartwell Jenison one year
after date, with interest at eight per cent.
The transaction originated four years previ-
ously (May 2, 1876), when the p'laintiff and
her husband placed upon the same property
a deed of trust in which Brainard H. War-
ner and Henry Mclntire were named as
trustees, to secure a note of $500, payable to
George E. Emmons two years after date, with
interest at ten per cent. This loan had been
made through the agency of B. H. Warner ft '
Co., rc»Ed-estate agents, and the note appears
to have been purchased as an investment by
Jenison, who was then a clerk in the Treas-
ury Department. Upon- the maturity of this
note. May 2, 1878, $25 were paid by way of
interest, and $50 on account of the princn>aL
4!^-45
SuPBBMX Court ov thb Vintted States.
but nothing was done until 1880, when the
deed of trust for $450 was civen. Jenison
appears to have purchased the first note at
(43J *the suggestion of Henry Mclntire, a brother
of Edwin A., who was also a clerk in the
Treasury Department. Jenison states that
Edwin A. collected what was paid upon the
note and attended to the second deed of trust
himself, in which his name was substituted
as trustee in the place of the trustees named
in the first deed. Jenison appears never to
have seen the Pryors, or their property, hay-
ing entire confidence in Mclntire*8 integrity.
The property seems to have been worth at
that time from $1,800 to $2,400, and was oc-
cupied by the plaintiff's husband as a wood
and coal yard. Both the Pryors were unedu-
cated colored people, Pryor making his living
by whitewashing^ sawing wood, and selling
coal, and his wife by taking in washing.
The husband died about three months before
this suit was begun.
The note fell due May 2, 1881. Neither
principal nor interest was paid, and upon
the following day, May 3, a warranty deed
appears to have bcnen executed by plaintiff
and her husband to Martha Mclntire, a sister
of the principal defendant, for the nominal
consideration of $5. It does not clearly ap-
pear why this deed was executed, as it was
never recorded. Upon its face it is an ordi-
nary warranty deed, and although the Chris-
tian name of the grantee, Martha, is obvi-
ously written over an erasure, attention is
called to this fact in the testamentary clause.
The grantors' signatures are probably gen-
uine, although the deed appears to have l»een
procured of the plaintiff in total ignorance
of its contents or purport. Indeed, she had
never seen Martha Molntire and knew abso-
lutely nothing about her. Edwin A. Mcln-
tire's explanation is that Pryor came to him ;
said that he could not pay the note, and
asked him whether he could get a purchaser
of the property who would take it off his
hands and assume the encumbrance and
taxes, which he represented to be twenty or
thirty dollars ; that he offered it to his sister
as an investment; had the deed made to her
lor a nominal consideration, with the under-
standing that she would assume the encum-
brance and give Pryor a lease on the prop-
erty for a year. He afterwards ascertained
that the taxes were ten times the amount he
(44] had supposed, and reported the *fact to his
sister, who thereupon declined to take the
property, which accordingly went to a fore-
closure. In explanation of the erasure he
said the deed was first made to his uncle
David Mclntire, who was looking out for
bargains in real estate, and then altered to
Maitha Mclntire and noted on the deed it^
self.
It seems somewhat singular that neither
of these parties should have been willing to
give $5 for a piece of property worth at
least $1,800, and subject only to the lien of
a mortage of about $475, and $250 of spe-
cial taxes; and equally singular that the
Pryors should have* been willing to dispose
of their equity in the property for so small
a sum. Indeed, it is difficult to believe that
608
they knew what they were doing
siCTied the deed.
But as nothing has ever been ^•fw**^ hf
virtue of this deed, it is practically ovi of
the case, except so far as it tends stroaglT
to show an original design on the part of £4-
win A. Mclntire, who had aitire charge of
the transaction and witnessed the deed, to
vest the title to the property in some ■■*■■■*»—
of his family, whom uie other evidcDee im
the case shows him to have used as a acre
catspaw for himself.
Failing to induce his sister to take ih»
property, Mclntire, as trustee, obtaiaed
written authority from Jenison to sell npoa
foreclosure of the deed of trust, adyertucd
the property for sale upon June 10, and al-
ter a postponement sold the same on Joae 17,
but to whom the property was struck off,
and who was the real purchaser, is some-
what uncertain. There is a wide diTeietme
in the testimony on this point. Plaiatiff
swears that the first intimation she had of
the sale .was the display of the aodioiieer**
flag in front of the property, which was thca
occupied as a coal jtird. Not understaadsi^
what it meant, her husband went to see He-
Intire, who came down that day, aad **said
that the trustee was pushing him, aad he
was compelled to put the flag up and havv
a sale, but that he would allow my hnafa^oi
to bid it in and would knock it down to ^^ "
Three or four witnesses, who were
at the sale, swore that the propcrtr
struck off to Pryor. Plaiatiii swore 'to tlv
same effect, but she was so far from when
the auctioneer stood that it was vefy doabt-
ful whether she *could have heard it. SI«I<I
also swore to an agreement that »be was u
pa^ a rent of $6 a month for the property,
which was to be applied on the purchaw
money. Certain it is that rent was paid for
the property after the sale and until mmm
time in 1883, sixteen receipts for which,
signed by Mclntire, are produced. This ta»>
timony with, regard to the sale and the sr^
ranffement for payment is wholly dcnWd kf
Mclntire, who produces a bill for aactioa-
eer's services, showing the sale of the preo-
erty to Jenison, to wnom on Jane 29. 18S1.
Mclntire executed a deed of the property ia
alleged pursuance of the foredoaare sale, ap-
on an expressed consideration of 98QS, tat
kept the same from record unlnowa to J«a-
ison for a period of nearly ten moatha. sad
until April 21, 1882, when he oauMd the
same to oe recorded. Did the case
on this testimony alone we should
grave doubts whether the oral
sufficiently deflnite and credible to
the testimony of Mclntire, the doc
evidence of the receipts for reat and tW
deed to Jenison in pursnanoe of .the mk,
but all doubts in this particular are feOy
resolved by the subsequent coadact of Xe^
Intire with reference to the property.
It seems that Jenison, being oaahie er s*-
willing to pay the expenses of fored
which amounted to $87.88, and aeewai
taxes to the amount of $278.81, for the
pose of raising money to pay taese, cv
cuted a note to one Emma Taylor irsr MA
payaoie in one year, and aeenred the esse %f
1898.
MolNTmB ▼. Pbtor.
45-48
A deed of trust upon the property to the de-
fendmnt Mclntire as sole trustcye. This deed
WIS also executed on June 29, 1881, and was
of even date with the deed executed by Mc-
lntire to Jenison in pursuance of the fore-
dofure.
The testimony in this case turns largely
upon the existence and identity of Emma
T^jlor. It is charged in the bill that she is
a fictitious person, and that a sister of Mc-
Intire's, whose name was Enmia T. Mclntire,
WIS represented and held out by him as
Enmia Taylor. Certainly, so far as wit-
nesses have sworn to havinff seen Emma Tay-
lor, they might easily have oeen led into sup-
posing that his sister was this person. Ail
that we know definitely of Emma Taylor is
I] that from April 1, 1881, *to September 6,
1884, her name appears as grantor or gran-
tee in seventeen different &eds, having an
aggregate consideration of some $13,000.
Copies of nine of these deeds appear in the
record, in all but one of which she is de-
scribe as of the city of Philadelphia, al-
tboueh all of these deeds, both to and from
herrdf, were executed in Washington and
acknowledged before the same magistrate.
No letters written by her are produced, and
but one addressed to her. This bears date
September 19, 1887, and was written by Mc-
lntire, asking for her address. The letter
seems to have been addressed simply to
Tittsburg, Penn.," on some information of
her being there, and to have been returned
to the writer. This letter was probably a
fobterfuge. The transactions in which she
appears as a par^ all seem to have beencar-
nea on through Mclntire as agent, who col-
lected rents and other moneys, paid taxes,
and made repairs on her account. She
seems then to nave disappeared as suddenly
as she originally appeared, and Mclntire
professes himself entirely unable to find her,
or learn of her present whereabouts. This
is certainly a feeole and suspicious explana-
tion. In view of the number and magnitude
of the transfers to which she was a party, we
should have reason to expect that ner exis-
tence could be established beyond the shadow
of a doubt. If she were a resident of Phil-
adelphia, as now claimed, Mclntire could
barAy have failed to have tad correspon-
dence with her, to have known her address,
and to have been able to find dozens of her
friends, relatives, or neighbors, who could
have proved that she was a living person.
If die were a resident of Washington dur-
ing these years, where did she live? In what
bi^ did she keep the money she invested in
real estate? Wno were her aoauaintances
and idiy did she vanish so sudaenly after
these larffcr transactions? She could scarcely
have ftkiled to leave a correspondent here,
and that correspondent could scarcely have
lailed to be Mclntire himself. It is incredible
that a woman so well off and so alert in
matters of businees should have disappeared
at the moment when her presence was in*
dispoisable, and Mi no trace behind her.
What have we in lieu of what we might
^naturally have expected? *A few witnesses
who swear they saw her once, and saw her
inder circumstances which indicated that
173 U. & U. S.. Book 48.
thev had seen a woman who passed
under that name, and Who might have
been a wholly different person,-— one wno
took a deed from her, and after testify-
ing that he had never seen her, on
bem^ recalled said that he "somehow had
the impression" that upon one occasion she
had been pointed out by Mclntire's clerk in
his office ad Emma Taylor. The clerk him-
self, who was in Mclntire's employ five
vears, has no recollection of ever' meeting
her, but had heard her name mentioned, and
thinks he must have seen her from the fact
that he witnessed a deed purporting to have
been signed by her. Another, who kept an
ice cream parlor on G street from 1876 to
1879, saw her once or twice in McJntire's
office, and heard her called Emma Tajicr b^
a lady who used to come to his parlor witb
her. Another, who used to visit Mclntire's
office every day in 1879, saw a lady fre-
quenUr come there, whom he was informed
was Emma Taylor, and that she talked
about buying real estate. It appears, how-
ever, that there was no deed to her prior
to April 1, 1881. Another, who had her
studio on F street, used to take her meals
at the same dining-room, heard her spoken
of a« Miss Tavlor, but never spoke to her
herself, and did not know whether her name
was Emma Taylor or not. Another, named
Atkinson, who was with Mclntire until the
latter part of 1880, testified that he saw a
woman a number of times in the office whose
name he understood was Emma Taylor, and
that she was a different person from Emma
T. Mclntire. Another testified that he had
met her at the office of the magistrate before
whom she made her acknowled^ents.
In addition to this most indefinite testi-
mony, we have onlv the testimony of Edwin
A. Mclntire, Martha Mclntire and Emma
T. Mclntire, two of whom are parties to this
suit and strongly interested m the result.
Emma T. Mclntire testifies that she was
never called Emma Tavlor, and that her mid-
dle name was not Taylor, and that she never
executed any of the deeds purporting to have
been signed by Emma Taylor. Neither she
nor her sister seems to have met her more
than *three or four times. It further ap-[48)
pears that all the deeds to Emma Taylor,
even from Mclntire himself, carried to the
recorder's office for record, were returned to
Mclntire, though this was denied by him, and
that rents due to Emma Taylor were all paid
to him. It seems, too, that he paid all the
taxes upon her property, though he swears
he has no recollection of doing so.
We give but little weight to the certificate
of the magistrate who was not sworn as a
witness, that Emma Taylor appeared before
him and acknowledged the deeds to which
her name was appended as grantor, since it
would have been practically easy for Mcln*
tire to represent another person as Emma
Taylor.
The testimony of Mclntire himself with re-
Srd to Emma Taylor is extremely unsatis-
story. Notwithstanding the number and
magnitude of the transactions in which he
took part and acted as her asent, he has
no explanation of the manner in which the
89 609
18-51
SUFRBMB COUBT OF THX IJhITBD StATBH
OOT.
conBideration for these deeds was ^aid or re-
ceived by her, the bank in which it was de-
posited, or from which it was drawn, and is
unable to produce a single check or letter
signed with her name, ffis memory is excel-
lent where he cannot be contradicted and as
to unimportant details, but fails him utterly
a« to the leading facts of the transactions.
While for three years his relations with her
must have been constant and confidential,
collecting and disbursing moneys for her, and
looking out for real-estate investments, yet
he pr^uces no account with her, and pro-
fesses to have completely forgotten that he
ever collected rent for her at all. One Al-
fred Brown, who bought property from her
in May, 1883, gave $200 in cash and twelve
notes of $75 each, payable at intervals of
three months, the last maturing in May,
1886, swears that he paid every one of them
as thev fell due to Mclntire personally; yet
Mclntire swears he has no recollection of
eollectinff these notes, and that Emma dis-
appeared from Washington about 1884. He
tells us that she was a woman who was con-
stantly looking out for bargains in real es-
tate, yet the records show that all her trans-
actions were with him or through his agency,
[491 and in every case in ^which she became the
purchaser of lands the title ultimately be-
came vested in his sister Martha. In this
connection it is a suspicious circumstance
that whenever she maae a conveyance the
deed was not usually recorded for years aft-
erwards, when the necessity of making a
complete chain of title required it to be put
on file. Upon the other hand, the deeds
made to her as erantee were immediately
placed on record. None of the parties to whom
she gave or from whom she received deeds of
property ever met her, nor did the clerk in
Mclntire's office during these years recollect
that he had ever seen her.
He accounts for his inability to produce
letters, receipts, accounts, or written evi-
dences of any sort, showing his transactions
with her, by an utterly improbable story of
a fire in his office, which seems to have con-
veniently consumed all these documents, in-
cluding a large ledger, in which her ac-
counts were contained, and to have spared
everything else, leaving no mark of fire or
even the stain of smoke upon documents
showing his relation to others. He professes
to have thought that Emma Taylor was en-
gaged in one of the departments, because she
came down F street after the hour the de-
partments would close, but never asked her
in what department she was employed, and
the compiler of the "Blue Book" swears that
no such person was in the employ of the
government in Wa»hin^ton at that time. All
the witnesses who testified to having seen a
person of that name fixed the time as prior
to the date of her first deed, April 1, 1881 ;
and not one of them, except the Mclntires,
is able to identify her as the Emma Taylor
who signed the deeds in question.
There is strong evidence tending to estab-
lish the identity of Emma Taylor and Emma
T. Mclntire. A niece of Mclntire's swears
that she always understood that the initial
in the name of Emma T. Mclntire stood for
610
Taylor, and that abe wm atwavi edlei
Emma Taylor to diatingnJih her fron wit-
ness's sister Emma V. fitelntira. T^is wit-
ness is corroborated by tlie prodnetioD of the
family Bible, from wbidi it appears thmX
Emma T. Mclntire's father waa nainad Ei-
win Taylor Mclntire. Her own enlasatiaB,
that her middle initial stood •torTamjXhk [M
or Tots — a pet name given her in bdMatj fey
her father---doe8 not seem plausible ia tbm
face of this testimony. In addition to tUs,
a large number of documents, signed both fey
Emma Tavlor and Emma T. Mclntire, wwt
introduced in evidence for other pmpose^
and a comparison of the signatures shows a
resemblance between some of them w^aA h
difficult to account for, except upon the the-
ory that they were written b^ the same per-
son, although the later ones signed by Emna
Taylor show an evident attempt to disguiK
her hand.
But it is useless to pursue this subieet far-
ther. The testimony of the three Mclntirei
is too full of oontradicti<ms and ahsurditiet
to be given any weisht. While under cer-
tain circumstances the other testimony for
the defendant might be sufficient to prore
that there was such a person as Emma Tay-
lor, when considered with reference to what
we have a right to expect in a case of this
kind, it falls far short of it, and wImb read
in connection with plaintiflfs testimony nra
the same point, we are left in no doubt that
Emma Taylor was a clumsy fabri^^ion. If
the person put forward by Mclntire to per-
sonate her were not his own sister, it wu
someone whom he used for that purpose. Us-
der whatever view we take we are satiafted
that Emma Taylor was a creation of Mds-
tire's brain, bom of the supposed
of his case, and bolstered up hj the false
timony of himself and his sistera. Stmt i
ittis umbra.
The subsequent proceedings in the
show a consummation of the fraud hr whkh
the property was ultimately vested in Ifir-
tha Mclntire. The deed of trust given by
Jenison to Emma Taylor was never far
roally foreclosed. It seems that Mclntirt
had promised Jenison that he would try satf
find a purchaser of the property befora tW
note fell due on June 29, 1882, »o that fes
might get back a part of the $450 loaned ts
Pryor, none of which he had received: feat
professed himself unable to do no, and sn i»-
formed Jenison, a mun of perfect intcfri^y
but of little experience and much onwMoai
in business methods, who seems to have had
entire confidence in him, and on April 11
1882, addressed him a note, in whiHi W
^stated thai he was not in a oondstion toev- [UJ
ry the property; that he should doubtkM
have to submit to a sacrifice by a fomd
sale, and requested him to advertise snd ds
the best he could in its disposition. Ooii«*d-
erinff that the proper^ was worth from Sir
800 to $2,400, when the mortgage to loas
Taylor was only $426, the interest on wfekk
was less than $40 per year, while the Prjvs
were paying $(8 a month rent, it wonld s^
pear that Jenison was eompletely hso^
winked as to its actual value.
After some futile efforts to indues Msl^
1898.
MoIntibb t. Pbtor.
51-A
tirt to put the property up at auction, he
was finally persuaaed on April 19, 1882,
mors than two months before the Emma Tay-
lor note was due, to deed the properly to
Emma Taylor. This deed was recorded im-
mediately and at the same time witii his
deed upon foreclosure to Jenison, which had
been executed ten months before. Both of
these deeds, after being recorded, were re-
turned to Mclntire. This was the last step
necessary to consummate the fraud by which
the plaintiff lost her property, and Jenison
lost the money he had loaned her upon the
deed of trust. Had Mclntire been content
to defraud the Pryors of their property, he
niffht, after his duties as trustee had been
folly discharged, have purchased of Jenison,
who doubtless would have been glad to sell
for the amount of his mortgage and interest;
but his desire also to defraud Jenison of this
amount made it necessary for him to i/itro-
duce another* party to purchase Jenison's in-
terest, from whom his sister Martha (that
is, himself) might pose as a bona fide pur-
diaser. In this he overreached himselt.
The title remained of record in Emma
Taylor until Mav 31, 1884, when she made
a warranty deed to the defendant Martha
Mclntire for the enressed consideration of
$2,500. Subsequently, and on September 27,
1887, Jenison and wife made a quitclaim
deed, apparently of further assurance, to
Martha Mclntire, for a consideration of $100,
paid by the check of Edwin A. Mclntire.
The answer avers this deed to have been
made to cover and cure a defect in the deed
from Jenison to Taylor, but on its face it
purported to pass to the grantee, Martha
Mclntire, all claims for drawback or rebate
*S] on account *of special taxes upon the proper-
ty, and it is probable that this was its main
object
We do not care to discuss the question
whether Martha Mclntire was a bona fide
purchaser of this property. So far i*s it
turns upon her ability to pay the $2,500
ntmed as a consideration, it is at least doubt-
ful. So far as it turns upon her actual pay-
ment of this consideration, it is more Uian
doubtful. If Emma Taylor were a fictitious
person * and the deed from her a forgery, the
title ot Martha Mclntire falls to the ground,
exMpt so far as it depends upon the quit-
claim deed of Jenison to her of September
27, 1887, which it is not improbable was pro-
cured by Edwin A. Mclntire for the very
purpose of giving a semblance of title in case
Amma Taylor were eliminated from the
esse. But whatever was done by Martha
Mclntire to this property, whatever title she
soquired was through the agency of her
brother, and she is as chargeable with his
frauds as if she had committed them person-
illy. United States v. 8tate Bank, 96 U. S.
30 [24: 647]; Qriswold v. Eaven, 25 N. Y.
595 [82 Am. Dec 380] ; Reynolds v. Witte,
13 S. C. 5 [36 Am. Rep. 678]. It was held
by this court in the case of The Distilled
Bpints, 11 Wall. 356 [20: 167], that the lule
that notice of fraud to an asent is notice to
the principal applies, not omy to knowledge
<U!quired \^ the agent in the particular
transaction, but to knowledge acquired by
him as agent in a prior transaction for the
same principal, ana present to his mind at
the time he is acting as such agent. Much
more is this the case where the fraud is com-
mitted by the agent himself in obtaining the
title to the property for the benefit oi his
f principal. But, further than this, we have
ittle aoubt that the property was really pur-
chased for the benefit of Mclntire himself.
While Martha Mclntire signed the contract
for the construction of the liouse upon these
lands, the testimony of the contractors
shows that they supposed th67 were doing
the work for Mclntire himself; that they
had no dealings with Martha; that the^ were
paid by checks signed by Mclntire himself,
although she came down and looked at the
houses, and seemed to be yleased with them.
We agree with the court of appeals thai
in view of their strong pecuniary interest i»
the case, the improta'oVlity of *many of theii [^3]
statements, the o'jvious fabrication of th#
Emma Taylor f.tfjiy, and the manifest £i\b-
servience of the eisters to their brot^Hsr's
schemes, no coa^deuce whatever raa be
placed in thu ^JijaUmony of either mr/u'jer of
the family, /his conviction is strengthened
by a circviTiritance appearing in tJCe testi-
mony, altliough not directly relerart to the
issue, thi*t there was another ?isi'.ir, Sarah
I. Mcln<.i/e, who died in Philadelphia, Jan-
uary 70, 1881, leaving a deposit ot $1,196.60
in th« Philadelphia Savings Fund Society.
To oUjiin this money a power of attorney,
bearii/^ date April 19, 1881, was prepared bv
Mclntire^ purporting to be signed by Sarah
I. Mclntire, though she had l^en dead three
months, and acknowledged before a notary
public in Washington. It was also signed
by ]S(cIntire as a subscribing witness, and by
virt\ie of its authority Martha Mclntire
dre\% the money from the bank.
2. The question of laches only remains to
be considered. The sale was made under the
foreclosure of the Jenison mortgage, June
17, 1881. The bill was filed October 21,
1890, a delay of nine years and four months.
Upon the theory of the plaintiff however, —
and it is upon her allegations ana proofs that
the question of laches must be determined, —
the sale was made in her interest. The rent
paid by her was to be applied hv Mclntire
toward the extinguishment of tne Jenison
mortgage, and there was nothing definite to
apprise her to the contrary until the fall of
1886, when she saw the contractors begin-
ning to build, and notified them that the
property belonged to her, and not to Mcln-
tire. But four years elapsed from this lime
and the property is not shown to have great-
ly increased in value except by the improve-
ments, which were allowed to the defendants
upon final decree.
We have a right to consider in this connec-
tion that the plaintiff is an ignorant colored
woman; that she has been wheedled out of
her property by an audacious fraud commit-
ted by one in whom she placed entire confi-
dence and who assumed to act as her agent;
that this agent procured the title to the prop-
erty to be taken in his own interest, for little
more thaji a nominal sum, by the false per-
sonation of Emma Taylor; that the prop-
611
OIMI
SUFBEMB COUBT OF THB UniIBD StATBS.
OOT.
would permit Iiim to brinff an action at law
before asserting his righu; but where the
fraud is clearly proved the court will lode
with much more indulgence upon any disa-
bility under which the plaintiff may labor as
excusing his delay. As was said in Toum-
send Y.vandenverker, 160 U. S. 171, 186
[40 : 383, 388] : "The auestion of laches does
not depend, as does tne statute of limita-
tion, upon the fact that a certain definite
time has elapsed since the cause of action ac-
crued, but whether, under all the circum*
stances of the particular case, plaintiff is
chargeable with a want of due culigence in
failing to institute proceeding? bSore he
did.'*^
The circumstances of this case are so pecu-
liar; the fraud so glaring; the original and
persistent intention of Mclntire through so
many years to make himself the owner of
the property so manifest; the utter disre-
gard shown of the rights of the plaintiff, as
well as of Jenison, the mort^^agee, upon
whose ignorance in the one case and whose
confidence in the other he imposed so suc-
cessfully; the false personation of Enuna
Taylor, and the fact that the decree in favor
of the plaintiff can do no possible harm to
any innocent person, — demand of us an af-
firmance of the action of the Court of Ap'
peals. Its decree is accordingly affirmed.
[60] CALVIN A. CALHOUN, Appt,
OSCAR H. VIOLET.
(See 8. C. Reporter's ed. 60-66.)
Decisions of Land Department, when foU
lowed by this court — right of discharged
soldier to enter lands in Oklahoma.
1. This court will determine for Itself the cor-
rectness of legal propositions upon which the
Land Department of the govemment may
have rested Its decisions, but It will not. In
tne absence of fraud, re-examine a question
of pure fact, but will consider Itself bound by
the facts as decided by the Land Department
In the due course of regular proceedings had
In the lawful administration of the public
lands.
% An honorably discharged soldier was not en-
titled to go Into the territory of Oklahoma
before the designated time, and make a Talld
entry of a homestead therein, notwithstand-
ing the proviso In the act of March 2, 1889,
that the rights of honorably discharged Union
soldiers and sailors shall not be abridged.
[No. 180.]
Submitted January tO, 1899. Decided Feb-
ruary 20, 1899.
APPEAL from a judgment of i)n Supreme
Court of the Territory of Oklahoma af-
firming a judgment of the District Court for
the Third Judicial District sitting in the
County of Oklahoma, which last-named judg-
ment sustained the demurrer of the defend-
ant, Oscar H. Violet, to the petition of the
plaintiff, praying that tlu^ defendant be de-
614
creed to convey to him certain lands
in the Territory of Oklahoma and wlu^ Urn
plaintiff claimed to have acquired tide te
under U. 8. Rev. Stat, f f 2304 ei eeq. Jmdf-
ment affirmed.
See same case below, 4 Okla. S2l.
The facts are stnted in the opiaioB.
Mr. CalTla A* Calkoma, appdlaBt, fPi
se.
No counsel for appellee.
*Mr. Justice WUte ddlTsred the OfiB-[4
ion of the court:
The plaintiff sued to reoorer m dianibsi
Siece of land upon the assumption ^at tiia
efendant held it in trust tor hiBL The
prayer of the petition was that the troat he
recognized ana the defendant be decreed t»
make conveyance of the land. A dcmvrrv
was interposed, which was snataiiied by Oe
trial court, and the suit was thercupoa fie-
missed. Oii appeal to the supreme eo«rt ef
the territorjr, the action of the trial eont
was affirmed. The present appeal was thai
taken, and the issue which arises ia this:
Did the court below err in deeidinff that the
petition of the plaintiff did not etjue a
of action?
The facts alleged in the petition
by the exhibits which were annexed to it are
as follows: The plaintiff Calhoan, mm hon-
orably discharged soldier, who was in all
general respecU qualified to daim a haa**
stead under the law (U. 8. Rer. Stat, ff
2304 et seg.), seeking to avail himself ef
his right, entered on April 23, 1889. at ths _,
United States land offiee at ^Onthrie, Otia>[fll
homa, "lots 6, 7, 8, 9, and 10 of aeetioa S,
township 11 north, range 8 west, in ths
aforesaid land dis^ef The petitioa al-
leffed that Calhoun had performed all ths
subsequent acts required by law to make ths
entry valid. On May 21, 1889, Theodore W.
Echelberger contested the entr/ oa the
ground that Calhoun had come into the tth
ritorr of Oklahoma before the tija« when If
law he had a right to do so in riolatioa si
the statute of the United States and of ths
proclamation of the President issued in p«r>
suance thereof. (25 Stat, at L. 980, lOK
chap. 412; Payne v. RobertsoH, 169 U. &
323 [42 : 764] ; Smith v. Towneemd, 148 V, &
490 [37: 633].) On the 27th of May, I8M,
James McComack also filed a contest agaimi
both Calhoun and Echelberser, ailing thet
the^ were both disoualified beeauRe tbe^ ha<
during the prohibited period entcrea ths
territory. On June 29, 1890, oontsit vss
also filed bv Thomas J. BaUe^, ftharvin* tbs
illegality of the claims of Calhoun, KAHbtf-
ger, and McComack, averring that be, Bail-
ey, was the first legal settler on tW land sad
entitled to it. On January 25, 1890« em
Linthicum filed a contest against lot Na !•»
embraced in the entry made by CallHMm, m
the ground that that lot was on a diffsrsit
side of the Canadian river from the
of the land embraced in the entry, and
the Canadian river was a mimwt
stream the entry could not lawfully
land situated on both sides thereof;
lot 10 had been illegally included in the GUI-
houn entry.
173 V.&
Calaouh t. Yiolbt.
61-64
In FebruArr, 1890, tli« Commissioner of
the General Land Office instructed the local
luid office to suspend, among others, the «n-
try made by Calhoun, because the land cov-
ned by it was on both sides of a meandering
stream, and hence entry thereof had been im-
properly allowed. The instruction trans-
mitied to the local officer concluded as fol-
lows: "You will notify the claimant of this
fact" (that is, of the suspension of his en-
tr^), ''and allow him thirty days from re-
ceipt of notice in which to elect which por-
tion of his claim he will relinquish, so that
the land remaining will be confined to one
side of such stream. Should any of the par-
ties desire to do so, he may relinquish his
entire entry; in which event ay application
l]*to make a seoood ent^ of a specific tiuct
will reoeiye due consideration. If any of the
entrymen fail to refuse to take action within
tiie time specified, his entry will be held for
cancelation. Notify the parties in accord-
ance with circular of October 28, J 886 (5 L.
D. 204), and in due time transmit the evi-
dence of such notice, with the rejpNort of your
action, to this office." Conforming to this
notice, Calhoun, on the 17th of March, 1800,
filed in the local office a formal relinquish-
ment of "all that portion of land on the right
bank of the Nort^ Canadian river known
and designated a« lot No. 10 (ten) in the N.
W. quaAer of section 3, township 11 N.,
ran^ 3 west, Guthrie land diatrict, the same
having hem embraced within my original
entry No. 19, dated April 23, A. D. 1889?'
On the 30th of October, 1890, all the con-
tests above referred to were duly heard be-
fore the register and receiver of the local of-
fice, and it was decided that both the plain-
tur and Echdberger were disoualified from
taking the land because they had eone into
the territory before the time fixed by law,
and that McComack was entitled to enter the
land. The claims of Bailey and Linthicum
were rejected. From this decision the con-
tests were carried to the Commissioner of the
(reneral Land Office, by whom the action of
the local officers was affirmed, and thereup-
on an appeal was prosecuted to the Secretary
of the Interior, with a like result. Subse-
qncntly, in 1894, on a petition for review by
Calhoun and another of the parties, the Sec-
retary of the Interior reiterated the previous
ruling, affirming the action of the Uommis-
rioner of the General Land Office in reject-
ing the claims of Calhoun and others on the
ground that they had been made in viola-
tion of law. Pending the appeals and deci-
sions thereon as above stat^, Calhoun filed
with the Commissioner of the General Land
Office an application complaining of the or-
der which nad oompellea him to elect to
which side of the river he would confine his
entry, asserting that the action of the de-
partment was nlegal, as the stream was not
a meandering one, and asking a revocation
of the order.
The petition filed in the court below,
^i moreover, ooirtained an *averment that the
rulings of the local land officers, of the Com-
missioner of the General Land Office, and of
the Secretary of the Interior, above stated,
were null and void, because all these officers
173 U. 8.
had misconceived the evidence and disre-
garded its weight, and was in violation of
law, because the section of the act of 1889,
forbidding the going into the territory be-
fore a named date of persons desirous of
taking land therein, had no application to
honorably discharged soldiers entitled as such
to make a homestead entry. The land as to
which it was averred the trust existed and a
conveyance of which was sought was lot 10,
as to which the relinquishment had been
filed under the circumstances above men-
tioned. It was charged that, despite the
protest of Calhoun, a final certificate for this
lot had been issued to the defendant, with
full knowledge on his part of the claim of
Calhoun; hence, it was asserted, the trust
arose and the obligation to convey resulted.
The court below neld that it was bound by
the action of the Land Department in so far
as that department had decided as a matter
of fact that Calhoun had made entry of his
land by ^ing into the territory contraiy to
the restrictions imposed by the act of Con-
gress, and that, in so far as the ruling of the
Land Department rested upon a matter of
law, it had been correctly decided that Cal-
houn, as a discharged soldier, was not en-
titled to go into the territory contrary to
law and thereby acquire a priority over
•other citizens.
The first of these rulings was manifestly
correct. It is elementary that, although
this court will determine for itself the cor-
rectness of legal propositions upon which
the Land Department of the government may
have rested its decisions, it will not, in the
absence of fraud, re-examine a ouestion of
pure fact, but will consider itself bound by
the facts as decided by the Land Department
in the due course of r^ular proceeaings had
in the lawful administration of the public
lands. United States v. Minor, 114 U. S.
233 [29: 110] ; Lee v. Johnson, 116 U. S. 48
[29 : 570] ; Sanford v. Sanford, 139 U. 8.
647 [35:292].
The fact that the plaintiff had entered
the territory prior to the time fixed by the
statute and the proclamation of the Presi-
dent having been conclusively determined,
it follows inevitably, ♦as a legal result, that [64]
an entry of land made under such circum-
stances was void, and that the ruling by the
Land Department so holding was correct.
This leaves only open for our consideration
the legal question whether Calhoun, because
he was an honorably discharged soldier, was
entitled to ^o into the territory before the
designated time, and make a valid entry of
a homestead therein. The claim that he was
authorized to do so is based on a proviso con-
tained in section 12 of the act of March 2,
1889, chap. 412 (25 Stat, at L. 980, 1004),
which is as follows :
"And provided further, that the rights of
honorably discharged Union soldiers and
sailors in the late civil war as defined and
described in sections 2304 and 2305 of the
Revised Statutes shall not be abridged."
The sections of the Revised Statutes to
which this proviso relates simply invest hon-
orably discharged soldiers with the right to
enter a homestead.
615
L .
fli-M
SUPRKME OOUBT OF THE UkITED StaTES.
Oct.
The proviso in question is immediately
succeeded by the following:
"And provided further, that each entry
shall be in square form as nearly as practic-
able, and no person be permitted to enter
more than one quarter section thereof; but
until said lands are opened for settlement by
proclamation of the President, no person
shall be permitted to enter upon and occupy
the same, and no person violating this pro-
vision shall ever be permitted to enter any
of said lands or acquire any right thereto."
It is manifest from the context of the act
that the proviso relied upon was intended
onlv to give to honorably discharg|ed soldiers
and saflors an equal right with others
to acouire a homestead within the territory
descrined by the act, and the proviso was
thus intended simply to exclude any impli-
cation that th^ were, in consequence of the
prior provisions of the act, not entitled to
avail tnemselves of its benefits. The proviso
therefore in no way operated in favor of hon-
orably discharged soldiers and sailors to re-
lieve them from the general restriction as to
going into the territory, imposed upon all
persons bv the subsequent provisions of the
CW]law. To hold the ^contrary would compel to
the conclusion that the law, while allowing
honorably discharged soldiers and sailors to
take advantage of its provisions, had at the
same time conferred upon them the power to
Tiolate its Inhibitions. The purpose of Con-
gress in allowing those named in the proviso
to reap the benefits of the law was not to con-
fer the power to do the very thing which the
aet in the most express terms sedulously
sought to prevent.
AffittMa,
ROBERT DUNLAP, Appi.,
V,
UNITED STATES.
(See 8. C. Reporter's tA, 65-77.)
Right to rebate of tarn on alcohol.
Under the act of Congress of August 28, 1804.
a rebate or repayment of the tax on alcohol
ased In the fine arts by a mannfactnrer can be
made only when It la nsed under regulations
prescribed by the Secretary of the Treasury,
and In the absence of such regalatlons the
right to snch rebate or repayment eonld not
vest so as to create a canse of action, by rea-
son of the nnregolated nse.
[No. 218.]
Argued November 29, SO, 1898. Decided
February tO, 1899.
APPEAL from a Judgment of the Court of
Claims dismissing the petition of the ap-
pellant, which petition was filed to recover
a rebate under the act of Congress of Au-
gust 28, 1894, on internal revenue taxes
paid by the claimant upon domestic alcohol
which he used in his business. Judgment
affirm^ed.
See same ease below, 33 Ct. CI. 185.
616
Statement by Mr. Chief Justice
Dunlap was, and has been for many jmn^
^engaged in the manufacture of a prodaot eC
the arts known and described as *suir bati»'*
Brooklyn, New York. Between Anevt
in
28, 1894, sjid Apnl 24, 1895, he oeed JJMbM
proof gallons at domestic alcohol to dtasohi
the shellac required to stiffen hats made at
his factory. An internal revenue tax of
ninety cents per proof gallon had been paai
upon 2,604.17 gallons before Angnrt 28,
1894, making $2,344.40, and a tax of om
dollar and ten cents per proof gaUon had
been paid upon the remaining 4,4511.78 gal-
lons after August 28, 1894, nuOdng $4,i0&81
or $7,245.21 in aU. In October, 18M, Doa-
lap notified t)ie collector of intero*! upb—
of the first district of New York that he was
using domestic alcohol at Ms faetorr, aad
that under section 61 of the act of Awwt
28, 1894, chap. 349 (28 Stat, at L. 509, 5ff7),
he claimed a rebate of the internal revcaat J
*tax paid on said alcohol, and he Tf gnsstid W
the collector to take sudi oflleial action rri-
ative to inspection and survcallaDee as the
law and regulations might Teaaire. Bubsi
quently he tendered to the eollector aMa-
vits and other evidence tending to show that
he had used the aforesaid qnantitf of alea-
hol in his business, together wnk staaps
showing payment of tax thereon, and he rr>
quested tne collector tp Tisit the faetotr aal
satisfy himself by an eraminatlon ef the
books, or in any other manner, that the al-
cohol had been used as alleged. He ahe ie>
quested payment of the amount of tax a»>
pearinff rrom the stamps to have been paid.
The oollector declined to entertain tiie applS-
eation, and Dunlap filed a petition ia the
court of claims to lecovef the full anwat el
the tax which had been paid, aa shewn Vf
the stamps, which, on December 6, 1807, w
dismissed, whereupon he took thia apfeaL
The findings of fact set Ibrth, aasm
other things, that 'in the early part ef Si^
tember, 1894, the Secretary of taa Trmmn
requested the Commissioner of Intmsi
Revenue to have rM^ulations drafted for tks
use of alcohol in the arta, etc, and for the
presentation of claims for rebate of tks
tax;" and that '^subsequently thwre was esf^
respondence between theae oflleera as fri*
lows:**
From the Commissioner to tibe OeMstsiy,
Octobers, 1894:
"I have the honor to report that the pn^
aration of regulations soveming tiw est of
alcohol in the arts and mannfactnrsB, eitt
rebate of the internal revenue tax as pe>
vided by section 61 of the revenne act ef
August 28, 1894, has been and is now natf^
ing Terr serions consideration from thif rf*
fioe, and many oommunieationa have besa ir
oeived from, and personal inteivieos hal
with, manufacturers who nse aleohol it
their establishments; and it is found, ia efsiy
case without exception, all MToo that is
regulation can be enforced wtthovt eWri
supervision, and that without sndi sapini-
sion the interests of manufactnrata sal at
the government alike will soffer ttro^gk do
per]^ration of frauds.
"As it is found to be imposaible tosiyn
DuNLAP V. United Statsis.
tWse regulations in a way that will prove
satiBfactory without official supervision, I
have the honor to inquire whether there is
flsny^eppropiiation or any general provision
of law authorizing the expenditure of monev
by this department needed to procure such
raperYiaion."
From the Secretary to the Commissioner,
October 5, 1894:
"^ours of the 3d instant, inquiring wheth-
er there is any appropriation or s^neral pro-
vision of law authorizing the expenditure of
money by the Treasury Department or by
the Commissioner of Uie Internal Revenue
to provide supervision of manufacturers us-
ing alcohol in the arts, etc., under section
61 of the act of August 28, 1894, is received,
and in response I nave the honor to state
that no appropriation whatever, either spe-
cial or general, has been made by Congress
for the purpose mentioned, or for any other
purpose connected with the execution of the
section of the statute referred to."
From the Commissioner to the Secretary,
October 6, 1894:
**! have the honor to acknowledge the re-
ceipt of your letter of the 5th instant, in re-
ply to my letter of the 3d instant, in whidi
Tpu state that no appropriation whatever,
either special or general, has been made by
Congress authormng the expenditure of
mon^ by the Treasuij Department or by
the Uommissioner of Internal Revenue to
provide supervision of manufacturers using
alcohol in the arts, etc, under section 61 of
the act of August 28, 1894, or for any pur-
pose connected with the execution of the sec-
tion oi the statute referred to.
^n reply I would suggest that, inasmuch
as I have been unable, as stated in my letter
of the dd instant, after thorough considera-
tion of the matter, and upon consultation by
letter and by personal interview with a large
number of the most prominent manufactur-
ers, to prepare any set of regnilations which
would yield adequate protecuon to the ^v-
emment and the honest manufacturer with-
out official supervision, which has not been
provided for by Congress, the preparation of
these regulations be delayed until Congress
has opportunity to supply this omission."
Fnxn the Secretary to the Commissioner,
October 6, 1891:
'nrour c<mimunication of yesterday, in ref-
erence to the execution of section ol of the
MJact of Auffust 28, 1894, and *advising me
that, for the reasons therein stated, you are
unable to prepare any set of regulations
which would yield adequate protection to the
government and the honest manufacturer
without official supervision, which has not
been provided for by Congress,' is received.
I have also given much attention to the sub-
ject, ai^ have fully considered all the argu-
ments and siUKCstions submitted by parues
interested in ^e execution of the section of
the statute referred to, and have arrived at
the conclusion that, until further action is
taken by Congress, it is not possible to es-
tablish and enforce such regulations as are
absolutely necessary for an <*ffective and
beneficial execution of the law.
"You are therefore insimcted to take no
173 V. 8.
further action in the matter for the pres-
ent."
In consequence of this last letter a circu-
lar was issued by the Commissioner, Novem-
ber 24, 1894, stating:
"In view of the fact that this department
has been unable to formulate effective regu-
lations for carrying out the provisions of
section 61 of the act of August 28, 1894, re-
lating to the rebate of tax on alcohol used in
the 'arts, or in any medicinal or other like
compounds/ collectors of internal revenue
will, on receiving notice from manufacturers
of the intended use of alcohol for the pur-
poses named, advise such manufacturers
that, in the absence of regulations on the
subject, no official inspection of the alcohol
so used or the articles manufactured there-
from can be made, and that no application
for such rebate can be allowed or enter-
tained."
Finding 8 was:
"On December 3,1894, the Secretary of the
Treasury transmitted to the Congress the an-
nual report on the finances, containing the
following statement:
" 'Owing to defects in the legislation the
Treasury Department has been unable to ex-
ecute the provisions of section 61 of the act
of August 28, 1894, permitting the use of
alcohol in the arts, or in any medicinal or
other like compound, without the payment
of the internal tax. The act made no
appropriation to defray the expenses of
its administration, or for the repayment of
taxes provided for ; and after *full considera- [W]
tion of the subject and an unsuccessful at-
tempt to frame regulations which would,
without official supervision, protect the gov-
ernment and the manufacturers, the depart
ment waS constrained to abandon the effort
and await the further action of Congress.
" 'It is estimated in the office of the Com-
missioner of Internal Revenue that the
drawbacks or repayments provided for in
the act will amount to not less than $10,-
000,000 per annum, and that the expense of
the necessary official supervision will not be
less than $500,000 per annum. For the in-
foimation of Congress the correspondence
between the Secretary and the Commissioner
of Internal Revenue upon this subject will
accompany this report. (Finance report,
1894, LXVI.)'
"Appended to this report was a draft of
regulations proposed for carrying out sec-
tion 61, copies of communications from the
Commissioner of Internal Revenue explain-
ing the estimates of the appropriations re-
quired, and copies of the official correspond-
ence between tne Secretary and the Commis-
sioner, given in the preceding finding, show-
ing the action of the department. The pro^
posed regulations were as follows:"
[These regulations, consisting of thirty-
three articles and including many subdivi-
sions, were set forth at length.]
The ninth finding was to the effect that
the amounts appropriated in the urgent defi-
ciency act of tJanuary 25, 1895, chap. 43 (28
Stat, at L. 636), aggregating $245,095, were
the amounts of the Secretary*s estimate
transmitted to Congress December 4, 1894,
617
«9-72
SuPREMB Court of tbm Uhited Stated
Ocfc. Tbm,
I
as necessitated by the income tax proyiBiom
of the act of August 28, 1894.
The case is reported 33 Ct. CL 135.
Messrs, Oeorse A. Kins, Joseph H.
GHoate, B. F. Tracy, and William B. King
for appellant.
Messrs, Charles C. Binney and John
W. Orisss, Attorney General, for appellee.
(70] *Mr. Chief Justice Fnller delivered the
opinion of the court:
Section 61 of the act of August 28, 1894,
read as follows:
"Any manufacturer finding it necessary
to use alcohol in the arts, or in any medici-
nal or other like compound, may use the
same under regulations to be prescribed by
the Secretary of the Treasury, and on sat-
isfying the collector of internal revenue for
the district wherein he resides or carries on
business that he has complied with &uch reg-
ulations and has used such alcohol therein,
and exhibiting and deliverinff up the stamps
which show that a tax has been paid there-
on, shall be entitled to receive from the
Treasury of the United States a rebate or
repayment of the tax so paid."
The court of claims hela that as the rebate
provided for was to be paid only on alcohol
used "under regulations to be prescribed by
the Secretary of the Treasury,^ and as this
alcohol had not been so used, there could be
no recovery, and, speaking through Weldon,
J., amonf^ other things, said:
'The right of the manufacturer to a rebate
being dependent on the regulations of tiie
Secretary, such relations are conditions
precedent to his right of repayment, and
therefore no right of repayment can vest un-
til in pursuance of regulations the manufac-
turer uses alcohol as contemplated by the
statute. The statute having prescribed cer-
tain conditions upon which the right of the
claimant is predicated and from -which it
originates, there can be no cause of action
unless it aJBHrmatively appears that such con-
ditions have been complied with on the part
of the claimant. This is a proceeding based
upon an alleged condition of liability upon
the part of the defendants, and it must be
shown that all the essential elements of that
condition exist before any liability can ac-
, crue. Conceding that it was the duty of the
Secretary to prescribe regulations consistent
with the purpose and requirements of toe
law, his failure to do so will not supply a
necessary element in the cause of the (uaim-
ant."
Alcohol has for years been used in the arts
and in medicinal and other like compounds,
(71] and has been taxed and *no rebate aillowed,
but by this section manufacturers who used
alcohc^ in the arts, etc., under regulations
prescribed by the Secretary, were granted a
rebate on proof of such regulated use and of
the payment of the tax on the alcohol so
used.
There were no relations in respect to the
use of alcohol in the arts at the time this
alcohol was used, but it is contended that
the right to repayment was absolutely vested
by the statute, dependent on the mere fact
«18
of actual use in the arts, sad not ob vh k
compliance with reynlatJonii So tt^t te^
ing such period of tune as might be reqiuii
for the framing of ryilations, or as fld|^
elapse if additional Ugialation were looi
neoessarr, all alcohol uaed in the arts wosli
be free from taxation, althoush the »iBf'
tion applied only to regulatea nsa. B«t a
the rignt of the manufacturer eonld sol
inure without regulations, mad (kmgrtm M
left it to the Semtary to determine wkstfar
any whidi he could prescribe and cafont
would adequately protect the rrvenoe ani
the manufacturers, and he had eondnded ti
the contrary; or, if he had found that it vis
not practicable to enforce sudi as he belStiei
necessary, without further legislatjon, thi
it is obvious the right to tl^ rebate
not attach. In any view the right was
absolute, but was conditioned on theperib
ance of an executive act; and the
of performance left the condition of ths o*
istenoe of the right unfulfilled.
The distinction between the one dav if
cases and the other is dear, and has lea
observed in many decisions of this eonrl
By the eighth section of tlie aet ef Jot
12, 1866, chap. 114 (14 Stat, at L. 00), M
was provided ''that when the onartcriy ir
turns of any postmaster of the taird, foorlh,
or fifth dass show that the salary sDovd
is ten per centum less than it woud be m
the basis of ccmimissions under the sd d
eighteen hundred and fifty-four, fixnv ma*
pensation, then the Postmaster (fawl
shall review and readjust under the provi-
sions of said section" ( namdy, S 2, act JilT
1, 1864, chap. 197, IS Stat, at L. 336) ; oi
in United States v. McLean^ 95 U. 8. 7M
[24: 579], it was hdd that the Uw bmfmd
no obligation on the government to dsj is
increased salary, though warranted tj ttt
quarterly ^returns of an office, until nai-i
J'u&tment by the Postmaster QenersJ. Ifr.
Justice Strong, ddivering the opiakni, sftff
remarking that the "read^istment was as a*
ecutive act, made neoessarr by the law ia et-
der to perfect any liability of the gowt-
ment,** said:
''But courts cannot perfonn execntift <■>
ties, nor treat them as gsrformed, wfaca ihiT
have been neglected. They eannot eaforo
rights which are dependent for thdr txir
tence upon a prior performance by sa exMS-
tive officer of certain duties he has faild ti
perform. The right asserted bv the dslB>
ant rests upon a condition unfulfilled.'' Ad
see United States v. Verdier, 164 U. & lU
[41:407].
On the other hand, in OampheO v. IMd
Slates, 107 U. S. 407 [27:592], It ««
ruled that where a statute dedarM tl«l
there shall be a rebate or drawback of a ta
under certain drcumstances, the aswast H
be determined under regulations piwjftd
by the Secretary of the Treasury, the iasete
of the Secretary is immaterial^ and tht
drawback must be paid whethv aseerUiid
under the Secretarys regulations or soC W
cause the right to the £awback dtpiaiH «
the statute, and not on the Secretary*! nf**
lations, which rdate merdy to the amrtaia>
ment of the amount. The dilfereiMv bft«f«*
173 «.*
Ma
DuvLAP y. Unitbo States.
7$-7«
tkt ftatutes in re|^d to drawbacks, and the
wording of section 61, is very marked.
Drawback laws relate to an article after it
ii manufactured. The mere use of imported
■laterials in manufacturing does not entitle
the manufacturer to a drawback, and it is
only when the manufactured goods are ex-
Soiled that the reason for the repayment of
aty arises. In such instances the exporta^
tion and the ascertainment of the character
Slid quality of ihe imported materials exist-
ing in the manufactured article are subject-
ed to r^ulation, but not the process of man-
Q&etnre. The case of Campbell only con-
eemed the ascertainment of the amount of
drawback, and it was held that inasmuch as
the aBKnmt had been proved to the satisfac-
tion of the court as completely as if every
Ttasimable regulation had been complied
irith, a reeovery could be sustained.
If we compare section 61 with the statute
SoTolved in Campbell t. United Statee (act
of August 6, 1301, chap. 45, f 4, 12 Stat, at
l]L 202), the *di€rtinetion between this case
ind that will be clearly discernible.
i 6t Act of Angost 28,
1894.
**Ab7 mmnnfactarer
flndliiff It necessary to
ose tlcobol In the arts,
or In any medicinal
or other like compound,
maj use the same on-
der regulations to be
PKtcrlbed hj the Sec-
retary of the Treasury,
and on satisfying the
collector of Internal
rerenue for the dis-
trict wherein he re-
ildes or carries on busl-
BCH that he has com-
tilled with such regu-
adons and has used
toch alcohol therein,
and exhibiting and de-
liTerlng up the stamps
whldi ahow that a tax
bu been paid thereon,
aball be entitled to re-
eelTe from the Treas-
orer of the United
States a rebate or re-
payment of the tax so
pak"
I 4, Act of August 6,
1861.
"From and after the
Sssssge of this act,
bere shall be allowed,
on all articles wholly
manufactured of ma-
terials Imported, on
which duties have been
paid, when exported, a
drawback, equal In
amount to the duty
paid on such materials
and no more, to be as-
certained under such
regulations as shall be
prescribed by the Sec-
retary of the Treas-
ury ; provided that
ten per centum on the
amount of all draw-
backs, so allowed, shall
be retained for the use
of the United States
by the collectors pay-
ing such drawbacks re-
spectively.*'
By the act of 1894 Congress required that
tbe thing itself should be done under official
regulations; by the act of 1861, simply that
proof of the doing of the act should oe made
in the manner prescribed.
In the case liefore us the first condition
was that the alcohol should have been used
by the manufacturer in accordance with res-
luations; and as that condition was not fm-
filled, it is difficult to hold that any jus-
tifiable right by action in assumpsit arose.
This is the result of the section taken in
its literal meaning, and as the rebate con-
stituted in effect an exemption from taxa-
tion, we perceive no ground which would
justify a departure from the plain words em-
ployei
N *Kor are we able to see that the letter of
the statute did not fully disclose the intent.
This section was one of many relating to
tbe taxation of distilled spirits, which im-
posed a higher tax and introduced certain
oew requirements in regard to regauging,
general bonded warehouses, etc., the object
178 V. 8.
to derive more revenue frdm spirits used as
beverages being perfectly clear; and the gen-
eral intention to forego the revenue that had
been previously derived from spirits used in
the arts could only be carried out in consis-
tency with the general tenor of the whole
bodjT of laws regulating the tax on distilled
spirits, which undertook to guard the reve-
nue at all points, and which required from
the officers of the government evidence that
everything had b^n correctly done. The
regulations contemplated by section 61 were
regulations to insure the bona fide use in the
axis, etc., of all alcohol on which a rebate
was to be paid, and to prevent such payment
on alcohol not so used ; and these were to be
specific regulations under that section, and
could not otherwise be framed than in the
exercise of a large discretion based on years
ol experience in the Treasury Department.
Since, as counsel for government argue,
the peculiar nature of alcohol itself, the ma-
terials capable of beinff distilled being plen-
tiful, the process of distillation easy, and
the profit, if the tax were evaded, necessa-
rily great, had led in the course of thirty
vears to a minute and stringent system of
laws aimed at protecting the government in
every particular, it seems clear that when
Congress undertook to provide for refunding
the tax on alcohol when used in the arts, it
manifestly regarded adequate regulations to
prevent loss through fraudulent claims as
absolutelv an essential prerequisite, and may
reasonably be held to have Im it to t^e Seo>
retary to determine whether or not such reg- .
ulations could be framed, and, if so, whether
further legislation would be required. It is
true that the right to the rebate was derived
from the statute, but it was the statute it-
self which postponed the existence of the
right until the Secretary had prescribed reg-
ulations if he found it practicable to do so.
* Without questioning the doctrine that de- [76]
bates in Ck>n^ress are not appropriate
sources of information from which to dis-
cover the meaning of a statute passed by
that body {United States v. Trans -Missouri
Freight Association, 166 U. S. 318 [41:
1020] ) , it is nevertheless interesting to note
that efforts were made in the Senate to
amend the bill by the addition of sections
which, while making alcohol used in the
arts free from the tax sought to secure the
government from fraud by provisions for the
methylatiug of such spirits so as to render
them unfit for use as a beverage ; that these
Sroposed amendments were rejected (26
ong. Rec. 0935, 0936) ; and that subsequent-
ly section 61 was adopted as an amendment,
it being ureed in its support that ''if the Sec-
retary of the Treasury and the Commission-
er of Internal Revenue think they cannot
adopt any regulations which will prevent
fraud, then nothing will be done under it;
but if they conclude they can adopt such
regulations as will prevent fraud in the use
of alcohol in the manufactures and the arts,
then there will be relief under it." 26
Cong. Rec. p. 6985.
As soon as the act of August 28, 1894, be-
came a law, without the approval of the
President, Congress adjourned, and at its
619
I
7«-78
SuFBKiix Court of ths Ukitsd States.
Oct. Tm^
flnt meeting thereafter the Secretary re-
ported a draft of the regulations he desired
to prescribe, stating that their enforcement
would cost at least naif a million of dollars
annually, for which no appropriation was
available, and that therefore he could not
execute tiie section until Congress took fur-
ther action, and he transmitted the corres-
pondence between himself and the Commis-
sioner, including his letter of October 6,
1894, instructinff the commissioner to take
no action regarding the matter.
Congress was ulub distinctly informed
that no claims for rebate would be enter-
tained in the absence of further legislation,
but none such was had, and finally, on June
3, 1896, seetion 61 was repealed, and the ap-
pointment of a joint select committee was
authorized to "eonsiderall questions relating
to the use of alcohol in the manufactures
and arts free of tax, and to report their
conclusions to Congress on the first Monday
in Dec^nber, eighteen hundred and ninety-
[76] six," with *power to "summon witnesses, ad-
minister oaths, print testimony or other in-
formation." 29 Stat, at L. 196, chap. 310.
Numerous other provisions of the act
called for regulations by the Secretary of
the Treasury, such as those relatinf to the
collection of customs duties and the free
list; to the importation or manufacture in
bond or withdrawal from bond free of tax;
to drawbacks on imported merchandise; to
the collection of internal revenue, and some
others; but these related to matters for
whose efficient regulation the Secretary of
the Treasury was invested with |ide<^uate
power, and their subject-matter was differ-
ent from that of section 61.
If the duty of the Secretary to prescribe
T^ulations was merely ministerial, and a
mandamus could, under circumstances, have
issued to compel him to discharge it, would
not the judgment at which he arrived, the
action which he took, and 'his reference of
the matter to Congress, have furnished a
complete defense? But it is insisted that
by reason of the exercise of discretionary
power necessarily involved in prescribing
r^^lations as contemplated the Secretary
could not have been thus oompdled to act.
We think the argument entitled to great
weight, and that It demonstrates the inten-
tion of Congress to leave the entire matter
to the Treasury Department to ascertain
what would be needea in order to carry the
section into effect. Kothinff could have been
further from the mind oi Congress than
that repayment must be made on the unreg-
ulated use of alcohol in the arts, if in the
judgment of the Department, as the matter
sto^, such use could not be regulated.
All this, however, only tends to sustain
the conclusion of the court of claims that
this was not the case of a rig[ht granted in
ffTiMenH to all persons who might, after the
passage of the law, actually use alcohol
in the arts, or in any medicinal or other
like compounds, to a rebate or repay-
ment of the tax paid on such alcohol,
but that the srant of the ri^ht was condi-
tioned on use in compliance with regulations
to be prescribed, in the absence of which the
620
right could not vest so as to create a earn
of action by reason of the unr^nlated mm.
The decisions bearing on the subject an ex-
amined and *discassed in the opuooa Wtbs^
court of daims, and we do not leel csU
on to recapitulate them here.
Judgment affirmed.
Mr. Justice Brown, Mr. Justiee WkHs,
Mr. Justice PeoUuun, and Jfr.
MoKenna dissented.
UNITED STATES, AjPft,
V.
ANTHONY P. NAVARRE and
Other Members of the Pottawatomie
of Indians.
(See & C. Reporter's ed. TT-m>
Indian elaima for depredatiome.
The act of Congress of Mardi S, 18W,
to the Gonrt of dalms for adjodltatlda ths
claims of the Pottawatomie ladlaas Cor ^m^
dations committed by others upoo tbdt pnr'
erty. Includes depredations com^tttai W
other Indians as well as thosi ^**— »tttf Ir
white men.
[No. 89S.]
Buhmitted January 9, 1899. rirfirf f»
ruary 20, 1899.
APPEAL from a judgment ol IIm Osvtsf
Claims in favor of the petitionen, tks
appellees in this court, allowing elaisM lar
depredations committed upon their jiisy&
by other Indians to the amomit ocIMmI
under the act of Congress <d MarA S, wi,
referring the clsims of the PottawaftOBii
Indians .for depredations to the Govt d
Claims for adjudication. Jnd$mm9 ef Hf
Court of CUtime affirmed.
See same case below, 83 Ct €1 SSI^
The facts are stated in tibe opiaioa.
Meeere. Is. A. Pnult, Assistant AtlsiM
General, and CkAvlea Om Plwij tv sfpf-
lant.
Ueure. J. H. MeO^wwa and lefts
Wliartom Clark for appdleaa.
•Mr. Justice MeXeama dsliverai IkiTf
opinion of the court:
Claims for depredatSona **in»iTritlT'
members of the Fottawatcnnie tribe el
dians vrere referred to theeomt otf
adjudication, by the acts ol
after quoted.
The appellees in pursuaaoe ol said asto
Congress filed a petition setting: forth T '
for depredations committed oaikeM lij
men, and prayed judnnent therefor.
The proof uiowed depredatio
by Indians as well as by white
court of claims saTe judgmeat aousidin^^
and the United States appealed.
Only the daims allowed for piupeitj
br Indians are contested. Th^
the sum of $6,890. .^
*The right to reoo?«rwaabasedoaths«attl^
1T9V.
aaitkt
1808.
Collier v, Unite6 States.
78-80
•riide of the treaty with the Pottawatomie
TiHHaiiiij proclaimed August 7, 1868. 15
8tatat L.533. It provided as follows: '*It is
further agreed that upon t)ie presentation to
the Department of the Interior of the claims
of said tribe for depredations committed by
others upon their stock, timber, or other
property, accompanied by evidence thereof,
examination and report shall be made to Con-
ffress of the amount found to be equitably
doe, in order that such action may be taken
ts shall be just in the premises.'
The court below found that "under said
treaty these claims were by the Secretary of
the Interior transmitted, with the evidence
in support thereof, to Congress for its action
thereon; and by Congress, under the acts of
ICarch 8, 1885, and March 3, 1891, said
claims, with all evidence, documeniB, re-
ports, and other papers pertainine to same,
were referred to tnis court to be adjudicated
sad determined." 28 Stat, at L. 372; 26
SUt at L. 1011.
Nothing was done under the act of March
8, 1885. It seems to be conceded that the
reason was because the act required strictly
lesal evidence of the claims.
The act of March 3, 1891, is as follows:
"That the claims of certain individual
members of the Pottawatomie Nation of In-
dians, their heirs or legal representatives, for
the depredations committea by others upon
their stock, timber, or other property, re-
ported to Congress under the tenth article
of the treaty of August 7, 1868, be, and the
•sme are hereby, referred to the court of
daims for adjudication. And said court
shall, in determining said cause, ascertain
the amounts due and to whom due by rea-
son of actual danmge sustained.
"And all papers, reports, evidence, rec-
ords, and proceedings relating in any way to
■aid daims, now on file or of record in the
Department of the Interior or any other de-
partment, or on file or of record in the office
of the secretary of the Senate or the office of
the derk of the House of Representatives,
shall be ddivered to said court, and in con-
sidering the merits of the claims presented
ijto the court all testimony and reports *of
special iigents or other officers, and other pa-
pers now on file or of record in the depart-
motts oi Congress, shall b^ considered by the
court, and such value awarded thereto as in
tts judgment is right and proper."
Aie contention of the united States de-
pends on the meaning of the words in the
met, '*tor the depredations committed by oth-
ers." Exactly the same words are used in
artide 10 of the treaty, and the Secretary of
the Interior, exercising his dutv, reported
eiidms for depredations by both Indians and
white men, to Congress for its action. Th^
were, therefore, daims for depredations **re-
ported to Congress under the tenth article
of the treaty <3 August 7, 1868." But it is
argued, and ably so, that claims for depreda-
tions l^ other Indians were improperly re-'
ported.
We do not think It necessary to review the
argument in detail. It is sufficient to say
that Congress had before it when it legis-
lated all tnt claims, and did not discriminate
173 U. 8.
between them. If the meaning of the treaty
was doubtful, it was competent for Congress
to resolve the doubt and accept responsibility
for all claims. It was natural enoueh for it
to adopt the interpretation of the Interior
Department. At any rate, it did not distin-
guish between the claims. Its language
covers those which came from the acts of In-
dians as wdl as those which came from the
acts of white men.
Judgment affirmed.
JOHN W. COLLIER, Admr. of James B,
Ranck, Deceased, Appt,,
V,
UNITED STATES and the Apache Indians.
(See 8. C. Reporter's ed. 79-83.)
Olaim for Indian depredations — competent
evidence.
1. In a claim against the United States for
damages for the destruction of property by
Indians. If the Indians who committed the
depredation were not In amity with the Unit-
ed States the court is without Jurisdiction.
2. Official reports and documents made compe-
tent evidence by the act of Congress of March
8, 1801. In the adjudication of such claim,
are legally competent on the Issue of amity.
[No. 2«2.]
Suhmitted January 9, 1899. Decided Feb-
ruary 20, 1899,
APPEAL from a judgment of the Court of
Claims dismissing for want of juris-
diction a claim filed oy one Ranck, since
deceased, for the destruction of property in
1869 by Indians near the line of Texas and
Mexico. Affirmed.
The facts are stated in the opinion.
Mesera. A. H. Garland ana Heber J.
May for appellant.
Mr, Jolim O. Thoinpsoiit Assistant At-
torney Ceneral, for appellee.
*Mr. Justice WMte delivered the opin- [M|
ion of the court:
This appeal brings up for review a judg-
ment of the court of claims, dismissing, for
want of Jurisdiction, a claim originally filed
in that court l^ one Ranck, since deceased,
to recover for oamages alleged to have been
sustained on March 2, 1869, by the destruc-
tion of property of the claimant by Indians
near the line of Texas and Mexico.
. The ftndine of the court is that "the al-
leged depredation was committed on or
alK>ut the 2d day of March, 1809, in the
southeastern part of the territory of New
Mexico, by Mescalero Apache Indians, who
at the time and place were not in amity with
the United States." Upon its finding of the
ultimate facts thus stated, the court below
rested the le^l conclusion that it was with-
out Jurisdiction of the cause. This court ac-
cepts the findings of ultimate fact made by
the court below, and cannot review them.
Mahan v. United States, 14 Wall. 109 [20:
681
7«-78
SuFBKicx ComaT of ths Ukitsd States.
Oct
V
flnt meeting thereafter the Secretary re-
ported a draft of tiie regulations he desired
to prescribe, stating that Uieir enforcement
would cost at least naif a million of dollars
annually, for which no appropriation was
available^ and that therefore he could not
execute the section until Congress took far-
ther action, and he transmitted the corres-
I>ondence between himself and the Commis-
sioner, including his lett^ of October 6,
1894, instructinff the oommissioner to take
no action regarding the matter.
Congress was &us distinctly informed
that no claims for rebate would be enter-
tained in the absence of further legislation,
but none such was had, and finally, on June
3, 1896, seetion 61 was repealed, and the ap-
pointment of a joint select committee was
authorized to "eonsiderall questions relating
to the use of alcohol in the manufactures
and arts free of tax, and to report their
conclusions to Congress on the first Monday
in Dec^nber, eighteen hundred and ninety-
[76] six," with *power to "sunmion witnesses, ad-
minister oaths, print testimony or other in-
formation." 29 Stat, at L. 196, chap. 310.
Numerous other provisions of the act
called for regulations by tiie Secretary of
the Treasury, such as those relatinf to the
collection of customs duties and the free
list; to the importation or manufacture in
bond or withdrawal from bond free of tax;
to drawbacks on imported mer<diandise; to
the collection of internal revenue, and some
others; but these related to mattcors for
whose efficient regulation the Secretary of
the Treasury was invested with |ide<^uate
power, and their subject-matter was differ-
ent from that of section 61.
If the duty of the Secretary to prescribe
T^ulations was merely ministerial, and a
mandamus oould, under circumstances, have
issued to compel him to discharge it, would
not the judgment at which he arrived, the
action which he took, and 'his reference of
the matter to Congress, have furnished a
complete defense T But it is insisted that
by reason of the exercise of discretionary
power necessarily involved in prescribing
r^^lations as contemplated the Secretary
oould not have been thus compdled to act.
We think the argument entitled to great
weight, and that It demonstrates the inten-
tion of Congress to leave the entire matter
to the Treasury Department to ascertain
what would be needea in order to carry the
section into effect. Kothinff oould have been
further from the mind of Congress than
that repayment must be made on the unreg-
ulated use of alcohol in the arts, if in the
judgment of the Department, as the matter
sto^, such use could not be regulated.
All this, however, only tends to sustain
the conclusion of the court of claims that
this was not the case of a rig[ht granted in
jnxBsenti to all persons who mighC after the
passage of the law, actually use alcohol
in the arts, or in any medicinal or other
like compounds, to a rebate or repay-
ment of the tax paid on such alcohol,
but that the srant of the ri^ht was condi-
tioned on use in oomplianoe with regulations
to be prescribed, in the absence of whidi the
620
right could not vest so as to create a
of action by reason of the unregidated
The decisions bearing on the subject an
amined and ^discossM in the opinioK e<
court of daims, and we do not Ud
on to recapitulate them here.
Judgment af/inned,
Mr. Justice Brown, Mr. Justiee
Mr. Justice Peekkmm, and Mi* Ji
MoKenna dissented.
Kt
UNITED STATES,
V.
ANTHONY P. NAVABRE
Other Members of the Pottawmtonie
of Indians.
(See a C. Reporter's ed. TT-TIi}
Indian claims for deprodetioaa
The act of Congress of Mardi S, 1891, .
to the court of claims for adjodleitloa tte
claims of the Pottawatomie iDdiaas fer Aiii»>
dations committed by others upon tbtir pn^
erty. Inclodes depredations eoBrnfttsl if
other Indians as well as tboei ^«*^^i*trl W
white men.
[No. 89S.]
Submitted January 9, 189$. Daoiiti f»
ruary 20, 1899*
APPEAL from a judgment ol tibe Cunt el
Claims in favor of the prtitioacri, tke
app^lees in this oourt, allowing daiai fv
depredations committed upon their jiiwMtj
by other Indians to the amount uclojli,
under the act of Congress of Mar^ S, wi
referring the claims of the PottawslHiii
Indians .for depredi^ont to the Oevt if
Claims for adjudication. Judpmmf if At
Oourt of Claima affirmed.
See same case below, 83 Ct. €1 tSft.
The facts are stated in the opinioa.
Messrs. X.. A. Pnult, AsaistaBt Atteray
General, and CkAvlea <)• Plmrntr iv Mf^
lant.
Messrs. J. H. M/oG^mrnm mad
Whartom Clark for i^pdleei.
•Mr. Justice MeXnaa delivwai ^Jf
opinion of the court:
Claims for depredationt eoauaitlal es
members of the Fottawatomia tribe i< 1»
dians vrere referred to theeomt ol
adjudication, by the acts of
after quoted.
The appellees in pursuaaee of aald ails d
Conffress filed a petition eettins forth T '^~
for depredations committed on theai If
men, and prayed judgment therefor.
The proof showed aepredatione
by Indians as well as by white i
oourt of claims save Judgmeot
and the United States appealed.
Only the claims allowed for piopei^
bv Indians are oonteeted. Tk^ amemfi ^
the sum of $6,890. ^^^
•The right to reooverwrnabaaedoatiMtiittl^
ITS v. ft
aaitte
IML
Collier v, Unite6 States.
78-80
•rtiele of the treaty with the Poitawatoinie
TiKHaiWj proclaimed August 7, 1868. 15
8Utat L.533. It provided as follows: '*It is
further agreed that upon the presentation to
the Department of the Interior of the claims
of said tribe for depredations committed by
others upon their stock, timber, or other
property, accompanied by evidence thereof,
examination and report shall be made to Con-
mss of the amount found to be equitably
one, in order that such action may be taken
ts shall be just in the premises.'
The court below found that ''under said
trea^ these claims were by the Secretary of
the Interior transmitted, with the evidence
in support thereof, to Congress for its action
thereon; and by Conffress, under the acts of
March 8, 1885, and March 3, 1891, said
daims, with ail evidence, documents, re-
ports, and other papers pertainine to same,
were referred to tnis court to be adjudicated
and determined." 23 Stat, at L. 372; 26
SUt at L. 1011.
Nothing was done under the act of March
S, 1886. It seems to be conceded that the
reason was because the act required strictly
lend evidence of the daims.
The act of March 3, 1891, is as follows:
That the claims of certain individual
members of the Pottawatomie Nation of In-
dians, their heirs or legal representatives, for
the depredations committea by others upon
their stodc, timber, or other property, re-
ported to Congress under the tenth article
9i the treaty of August 7, 1868, be, and the
same are hereby, referred to the court of
daims for adjudication. And said court
•hall, in determininff said cause, ascertain
the amounts due ana to whom due by rea-
son of actual damage sustained.
"And all papers, reports, evidence, rec-
ords, and proceedings relating in any way to
said daims, now on file or of record in the
Department of the Interior or any other de-
partment, or on file or of record In the office
of the secretarv of the Senate or the office of
the derk oi toe House of Representatives,
shall be ddivered to said court, and in con-
sidering the merits of the claims presented
IJto the court all testimony and reports *of
spedal ligents or other officers, and other pa-
pers now on file or of record in the depart-
ments of Congress, shaU h% considered by the
eonrt, and such value awarded thereto as in
itsjndgment is right and proper."
Aie contention of the United States de-
pends on the meaninff of the words in the
act, "for the depredations oommitted by oth-
ws." Exactly the same words are used in
srtide 10 of the trea^, and the Secretary of
the Interior, exercising his du^, reported
daims for depredations by both Indians and
white men, to Congress for its action. They
were, therefore, daims for depredations "re-
ported to Congress under the tenth article
of the treaty of August 7, 1868." But it is
srgued, and ably so, that claims for depreda-
tions l^ other Indians were improperly re--
ported.
We do not think it necessary to review the
ttgnment in detail. It is sufficient to say
that Congress had before it when it legis-
Isted all uie daims, and did not discriminate
178 V. S.
between them. If the meaning of the treaty
was doubtful, it was competent for Congress
to resolve the doubt and accept responsibility
for all claims. It was natural enoueh for it
to adopt the interpretation of the Interior
Department. At any rate, it did not distin-
guish between the claims. Its language
covers those which came from the acts of In-
dians as well as those which came from the
acts of white men.
Judgment affirmed.
JOHN W. COLLIER, Admr. of James B,
Ranck, Deceased, Appi.,
V,
UNITED STATES and the Apache Indians.
(See S. C. Reporter's ed. 79-83.)
Olaim for Indian depredations — competent
evidence.
1. In a claim against the United States for
damages for the destruction of property by
Indians, If the Indians who committed the
depredation were not In amity with the Unit-
ed States the court Is without Jurisdiction.
2. Official reports and documents made compe-
tent evidence by the act of Congress of March
8. 1801, In the adjudication of such claim,
are legally competent on the issue of amity.
[No. 2«2.]
Submitted January 9, 1899. Decided Feb-
ruary 20, 1899.
APPEAL from a judgment of the Court of
Claims dismissing for want of juris-
diction a claim filed by one Ranek, since
deceased, for the destruction of property in
1869 by Indians near the line of Texas and
Mexico. Affirmed.
The facts are stated in the opinion.
Measra. A. H. Garland ana Heber J.
May for appellant.
Mr, Jolin O. Thompsoiit Assistant At-
torney General, for appellee.
*Mr. Justice Wliito delivered the opin- [M|
ion of the court:
This appeal brings up for review a judg-
ment of the court of claims, dismissing, for
want of jurisdiction, a claim originally filed
in that court by one Ranck, since deceased,
to recover for damages alleged to have been
sustained on March 2, 1869, by the destruc-
tion of property of the claimant by Indians
near the line of Texas and Mexico.
. The findine of the court is that ''the al-
leged depredation was oommitted on or
about the 2d day of March, 1809, in the
southeastern part of the territory of New
Mexico, by Mescalero Apache Indians, who
at the time and place were not in amity with
the United States." Upon its findins of the
ultimate facts thus stated, the court below
rested the le^l conclusion that it was with-
out jurisdiction of the cause. This court ao-
cepto the findings of ultimate fact made by
the court below, and cannot review them.
Mahan v. United States, 14 Wall. 109 [20:
681
80-68
SuFBBia Coubt'of thb Umitbd Statu.
»
764] ; Stone t. United States, 164 U. S. 380
[41:477]. Applying the law to the facts,
it is dear that, as the Indians by whom the
depredation was committed were not in
amity, the court correctly decided that it
was without jurisdiction. Marks ▼. United
States, 161 U. S. 297 [40: 706], Followed in
Leighton y. United ^tatesilHl U. S. 291 [40:
703] ; Valk y. United States, 168 U. S. 703
[42: 1211]. This legal conclusion was not
[81] disputed in the argument at bar, *but it was
contended that this court will, as a matter
of law, where the record enables it to do so,
determine for itself whether thft ultimate
facts found below are sup]>orted by any evi-
dence whatever, and that it also will deter-
mine whether the ultimate facts were solely
deduced by the court below from evidence
which was wholly illegal. And upon the fore-
going legal proposition it is asserted, first,
that it is disclosed by the record that there
was no evidence whatever tending to
show that the depredation was com-
mitted by the Mescalero Apache Indians;
and, second, tha^ the record tlso dis-
closes that the conclusion of fact that
the Indians committing the depredation
were not in amity was solely rested by the
court upon certain official reports and docu-
ments which were inadmissible. The rule
by which these contentions are to be meas-
ured is thus stated in United States v. Clark,
96 U. S. 40 [24: 698], as follows:
"But we are of opinion that when that
court [the court of claims] has presented, as
part of their findings, what they show to be
all the testimony on which they base one of
the essential, ultimate facts which they
have also found and on which their judg-
ment rests, we must, if that testimony is not
competent evidence of that fact, reverse the
judgment for tiiat reason. For here is, in
the very findings of the court, made to sup-
port its judgment, the evidence that in law
that judgment is wrong. And this not on
the weignt or balance of testimony, nor on
any partial view of whether a particular
piece of testimony is admissible, but whether
upon the whole of the testimony as presented
by the court itself, there is not evidence to
support its verdict; that is, its finding of the
ultimate fact in question." See also Stone
T. United States, supra, 383 [41: 478].
Whether the record before us is in such a
state as to support either of the contentions
above stated is the question for decision. In
so far as the question of the tribe of Indians
bv whom the depredation was committed, it
obviously is not, since there is not therein
contained any r«^erenoe whatever to the evi-
dence upon which the court based its con-
clusion on this subject. The portion of the
record whidi is relied upon to establish the
contrary is the following statement:
[88] ***the court determines that the Mescalero
Indians were not in amity at the time of the
depredation, from the following official re-
ports, documents, and facts deduced from the
testimony of witnesses, which are set forth
in the findings."
But the matter thus certified clearly pur-
ports only to relate to the evidence from
whidi the court drew its conclusions as to
628
amity, and not to that upon iMA It
its finding as to the tribe bj wbom tib«
redation was committed. It foUowa.
that the argument is simplj this:
are to determine that there was i
supporting the finding as to the
triM oommittinff the depredatioiiy
record does not £sdose iAd the eoort
certified the proof from iHiidi ita
was drawn. The claim that the
doses that the finding as to amity
soldy upon certain official reporta and
uments finds also its anij support in tkt
cerpt from the record just abore stai
While it is true the statement certiiles ttet
certain reports and offidal docuBKitts
considered by the court in readiing its
ing as to the want of amity, it does aot
that it was alone based upon these reporti*
for it ULjn that the determination that the la-
dians were not in amity at the time of ths
depredation was likewise drawn from
deduced from the testimony of
which are set forth in the
Now, while the findings contain
reports and official documents*
ably those referred to in the
they do not contain the testimony ef
any of the witnesses. After reprodnei*|
the reports and documents, the rword esa-
dudes with a mere recapitulatlofi of tkt f»
suit of the testimony of certain witamsss as
to the number of Indians by witcnn the 4si^
redation was committed and the cirmB-
stances surrounding, that Is, the natnra if
the attack made by the Indians and tlie em-
fiict which ensued when it was made. It fal-
lows, that even if the reports and
documents to which the findings rel
legally inadmissible to show want ei
we could not hold that there
evidence supporting the eondnslon
ami^ did not exist, since all the ev
which the court states it consid«r«d on tUi
subject is not in the record. Bnt tbs
dal reports in question were kgmDj
tent on the issue of amity. It Is e
that if competent th^ were releivmnt,
it is admitted th^ tended to estabU^ thsl
the tribe was not in amity when the daptr
dation was committed.
The act of March 8, 1891, for Iba adMI>
cation and paym^t of daims arlslnir fran
Indian depredations (26 Stat, at L. M).
provides in the fourth and alenrenth
as follows:
"In oonsiderlng the merits ei
sented to the coort, anr tastlmonj^
reports of spedal agents or other d
such other papers as are now on lis in tkt
departments or in the eonrta, rdatias ts st^
such daims, shall be considered by
as competent evidence, and ane
given thereto as in Its judgment la rifbt
proper."
"Sec 11. That all papers* reports, evi-
dence, records, and proceedings now en tla
or of record in any of the dcpartmsnts» er tis
office of the secretary of the Senate, er tke
office of the derk of the House of
tives, or certified copies of the
ing to any daims authorised to he
cuted under this act. shall be fnmn
^
n<
188a.
Central Loan & Trust Co. v. Campbbll Commission Co.
83-M
tiM eooft upon its order, or at the request of
Hbt Attorney General."
These pitmsions express the manifest pur-
pose of Congress to empower the court of
dalms to rec^ve and consider any document
OB file in the departments of the government'
or in the courts, havhiff a bearing upon any
material questicm arisinff in the considera-
tion of any particular daim for compensa-
tion for Indian depredation, the court to al-
low the documents such weight as they
were entitled to have.
There is no merit in the contention^ that,
although documents within the description
of the statute were relevant to the ques-
tion of amity, they were nevertheless incom-
petent, as they did not refer to the partic-
ular depredation in question, because the
statute only authorizes the consideration of
reports, documents, etc, "relating to any such
claim." As amity was made by law an es-
sential prerequisite to recover, it follows that
evidmce bearing on such subject was neces-
sarily evidence relating to the claim under
eonsideration.
Afprmtd,
ICENTRAL LOAN ft TRUST COMPANY,
Appt.,
V,
CAMPBELL COMMISSION COMPANY.
(See 8. C. Reporter's ed. 84-09.)
W^oessary parties to appeal — Oklahoma
ttatute — appointment of garnishee — potr-
er of probate judge— allowance of attach-
ment right to attach nonresidenfa prop-
equal protection of the laws.
1. Interveners who dalm the proceeds of an
attachment sale, who did not except In the
trial Goort to vacating the attachment and
dtsmlsslns the action, and who were not
parties to the proceedings to review the judg-
ment of the trial conrt In the territorial so-
preme conrt, and were not treated In that
eovrt as necessary parties, are not necessary
parties to an appeal from the Judgment of the
sspreme conrt to this court.
1 Under Okla. Stat. 1808, i 4085, the answer
sC the garnishee upon which no Issue Is taken
Is not conclusive of the truth of the facta
stated therein, as against an Interpleader who
dalms to own the property.
H The appointment of the garnishee as re-
edver of the property attached, by his own
eonsent and that of all the parties, to dispose
ef the property and pay his own claim and
bold the balance to the order of the conrt,
rendered It unnecessary to traverse the answer
of the garnishee, and estopped him from claim-
ing Individual possession of the property.
i. The Oklahoma statute conferring power
upon the probate judge to sign an order for
an attachment la not repugnant to the or-
ganic act of the territory, or void, as It does
not Involve the discharge of a judicial func-
tion.
I. Where the ground of attachment may be
allegCMa In the language of the statute, the au-
thority to allow the writ need not be exercised
by the judge of the court, but may be dele-
gated by the leglalature to an official.
1 The organic act of Oklahoma territory
173 U. S.
which provides that all civil actions shall be
brought In a county where the defendant re-
sides or Is found, does not preclude the right
to proceed by attachment against the prop-
erty of a nonresident In the place In the ter-
ritory where the property of such nonreeldent
la found.
7. A territorial statute permitting attachment
against a nonresident without a bond, while
requiring the bond for attachment against a
resident does not constitute a denial to the
nonresident of the equal protection 6t the
laws or of due process of law.
[No. 146.]
Argued and Submitted January 17, 1899.
Decided February 20, 18^9.
ON APPEAL from a judgment of the Su-
preme Court of the Territory of Oldaho-
ma affirming a judgment of the District
Court of Noble County which quashed an at-
tachment issued at the suit of the Central
Loan ft Trust Company for want of juris-
diction. Judgment of the lower court ro-
versed, and the case remanded for further
proceedings in conformity to this opinion.
See same case below, 5 Okla. 3!)6.
Statement by Mr. Justice Whites
This action was commenced on July 2,
1805, in the district court of Noble county,
Oklahoma, by the Central Loan A Trust Cmn-
pany, a Texas corporation, against the Camp-
bell Commission Company, a Missouri cor-
poration, to recover upon certain promissory
noterf not then due. Upon affidavit a writ
of attachment issued, and was levied upon
five thousand head of cattle, as the property
of the Campbell Company. After such levy,
a summons in gamisnment was served upon
one A. H. Pierce, who answered that he was
not indebted to and held no property owned
by 01 in which the Campbell Company had
an interest. As "a further and special an-
swer" Pierce set out a written agreement en-
tered into between himself uid uie Campbdl
Company for the sale and shipment by ninL
to that company, of a specified number of
cattle. This agreement provided that Pierce
was to deliver at Pierce Station, Texas, a des-
ignated number of cattle, which the company
agreed to ship to its pastures in the Indian
territory "at its own risk and pay all frdght
and other expenses," the expenses to embrace
the wages of a man to be put by Pierce with
the cattle, *'to represent his interest in said
cattle." It was recited in the contract that
five thousand dollars had been paid at the
signing of the agreement "as part of the pur-
chase price;" and the company further
agreed to pay to Pierce interest at the rate
of ten per cent per annum on all unpaid
amounts from the date of shipment of the
cattle until full and final paymeut in accord-
ance with the contract. The company also
agieed to ship the cattle to market auring
the summer or fall of 1896, *for account of [86}
Pierce, and to apply the proceeds of sale to
payment for the cattle until fully paid for
at the rate of fifteen dollars per head; and
it was also stipulated that title and owner-
ship of the cattle should be and remain in
Pierce until such payment.
628
65-88
SUPBEMB COUBT OF THB UhTTBD BtATBB.
In said "further and special answer^ it
was also alleged that the cattle, upon which
the writ of attachment had been levied,
formed part of the number covered by the
contract above referred to, and had been
shipped bv Pierce to the pastures of the
Campbell Company, but that they had never
ceased to continue in the possession of
Pierce; it bein^ further claimed that the
<Mitt)e were subject to a charge for unpaid
purchase money, expenses for their care and
tceepiug, etc. The answer further stated
that notice had been received by Pierce from
one T. A. Stoddard, trustee, that an assign-
ment had been made of said contract to mm
bv the Ciunpbell company, and a copy of the
alleged assigrnment was annexed. It pur-
ported to *'sell and assign all the title and
interest in and to" the contract between
Pierce and the Campbell Company, any prof-
it which might be derived by Stoddard
from carrying the contract into final execu-
tion to be applied by him as trustee to the
payment, pro rata, of certain described notes.
The garni^ee also declared that on July 12,
1895, receivers had been appointed of the as-
sets of the Campbell Company, and the an-
swer concluded with asking that Pierce
mi^ht be discharged as garnishee.
With the answer to the garnishment there
was also filed by Pierce w£it was termed an
inteiplea. It was therein, in substance,
averred that the cattle which had been levied
upon were wronj^ully detained from Pierce;
that he was entitled to their immediate pos-
session; and he prayed that on the hearinff
of the interplea judgment misht be awarded
for the return of cattle, wiUi damages for
their alleged wrongful seizure and detention.
A motion was also filed, on behalf of Pierce,
"as garnishee and intr.rpleader," to discharge
the attachment, substantially on the ground
that the cattle belonged to Pierce, and that
the latter was not indebted to the Campbell
Company and held none of its property.
(87J *0n the date when this motion came on for
hearing the plaintiff filed an application for
the appointment of Pierce as receiver, "to
take cnarffe of the property attsched in this
action ana sell the same in accordance with
a certain written contract" attached as an
exhibit, beiu^ the contract referred to in ti^e
answer of Pierce to the garnishment. The
service of the writ of attachment was
averred, and it was stated that the caUle
which had been levied upon had been "un-
der the care, custody, and control of the
sheriff of Noble county since the third day of
July, 1895, when said attachment was
levied;" and it was further averred: "That
said A. H. Pierce claims no interest in said
property of this uit except as set forth in
ciaia contract hereto attached, and is entire-
ly friendly to all parties concerned in said
action, and, as olaintiff and its attorneys %r%
informed and believe, the appoiutment of
said A. H. Pierce as receiver nerein would
be entirdy satisfactory to the defendant and
all other parties in sud action."
The pecuniary responsibility of Pierce and
his large experience as a dealer and raiser
and shipper of cattle, and other circum-
stances, were set forth as warranting his ap-
684
pointment without bond to mII iho
the usual commercial war, tmfMiif of at ,_
lie sale, and the i^pUcatloB eondndoi as W-
lows !
. "Thai ia would te to the intereit of a
parties concerned to have A. H. Pieret i^
pointed receiver to take diarse of said iten
and sell the same to the best advmiitact; ae>
counting to the court for all ■alee, aad, aflv
satisfying his dain under said ooatiMl,
hold Uie mon^ remaining in hk baadi si^
ject to the final order of thia eoort.
"That said A. H. Pieree has alrca^f
shipped from five thousand head of stasn ss
seized in attachment about three kvafael
and sixty head and sold the aaiM fai
and now holds the proceeds thereol,
should be aoeountea for try A. H.
along with other acoounta of ahipineBts.*
An order appointing the roeeivef was tks
upon made, tne consent of the attoram kstt
of Pierce and the plaintiff beii^ Botea tt«io>
on, and Pierce mialified as reoenrer.
A summons which had hem iseutd kavii|
been returned ^"defendant not fomd,* paU^i
cation was had in complianee witk tbe'l^pi
requirements.
Subsequently Stoddard, tni«tM^ Hei sa
interplea. Therein it waa awrod ttat tte
oontiact between Pierce and the C^oipkdl
Company had been made l^ that eoamai^
for account of a firm styled Qoorve W. Ifil-
ler k Son, and had been entered tuto ia tkt
name of the Campbell Company ia order H
secure that company for advaneaa wluek bed
been made by it to IfiUer k Son; that niv
an aasignment l^ the Campbell ComBasy Is
Stoddard he waa entitled to tibo piopiadi if
the sale of the catUo in tho hands of te rf
ceiver after the daim of Piereo had bsm
paid. Plaintiff demurred to this tnUrplM
on November 6, 1896» hut no
had thereon.
A report waa filed l^ the
that he had sdd the eattia, and from tiM pnK
coeds had satisfied in full kla oiaim niv
the contract of September. IBM, aai tksl
a balance waa in his handa 8«b|eet ta tks
order of the oourt. Thereafter tke QHf^
beU Oomnany filed a "plea to tiM Jarirfii
tion," and subsequently filed •■ ammiid
plea which stated seven grounda wigr Iks
court was without Juriedictton, aU of
wiU be hereafter referred to.
After this Qeorse W. MiUer and J. GL
ler filed an inter^ea in the aetloa,
that they were the real eoatraeti
Pierce in the agreemeat of September 8, l»i
and averred their ownerakip of tke csttk
and that if the eontraet bad booa om|^>'
to Stoddard, it waa done witkovt tkab aa^
thority, and was void. It
the proceeds of the cattle be niid^te
after the payment to Pieroe of the
ofhisdaim. No ieaoa waa takmi ea tklb i»
terplea.
On the same data that ^e lODor
glea waa filed the platntiff filed aa
» the interplea of A. H. Piere%
amcmg other things that Piere% as a
of the receivership proeeediaga, bad
and abandoned all nia claim ia and Is th*
ownership of the eattla kvied oa aaiv tkt
ITS 1^ ft
r
itm.
Cbhtbal Loan & Tbuot Oa t. Oampbbll Commusion Co.
88-91
attJMliineni. On December 16, 1895, the piM
of the Campbell Company to the jurisdiction
Qwu heard, upon the *reoord, over objection
and exception by plaintiff. The court over-
ruled all the grounds assigned in the plea ex-
cept the second, which asserted that there
WES a want of power in the probate judge to
issue an order for attachment. As to such
gnmnd it held that the act of the Terri-
torial Assembly of Oldahoma, conferring
power upon the probate judge, as to debts
not yet due, to order an attachment in the
absence of the district judffe from the counl^,
was unconstitutional and void. It there-
upon concluded that all the proceedings were
▼Old, the attachment was quashed, and the
suit dismissed for want of jurisdiction, with-
out prejudice to the Campbell Company.
The Campbell Company excepted to the ac-
tion of the court in overruling all the
grounds of its plea to the jurisdiction but
that referring to the power of the probate
judge, and the plaintiff excepted to the ac-
tion of thfe court holding that there was a
want of power in the probate judge.
Error was prosecuted to the supreme court
of the territory. That court, whust condud-
ing that the lower court was wron^ in decid-
ing that the probate judffe was without au-
thority to allow the attachment, yet affirmed
the judgment below on the ground that as
an actual levv on the property of the defend-
ant Campbell Company was necessary to
give the lower court jurisdiction to deter-,
mine the cause, and as there had been in law
Bo such levy, therefore the court below* was
without jurisdiction, and had correctly dis-
missed the suit. The reasoning of the court,
in effect, sustained the third ground of Uie
motion to quash the attachment made bv the
Campbell Company. A petition for rehear-
ing naving been overruled, the cause was
brought to this court.
Mr. "William D. Williams for appel-
lant.
Mr. Jolm W. Sliartel for appellee.
9] *Bfr. Justice WHite, after making the fore-
going statement, delivered the opinion of the
court:
0] *0n the threshold it is necessary to dispose
of a suggestion of want of jurisdiction made
b^ the appellee. It is based on the proposi-
tion that as the interveners in the trial court
are not made parties to this appeal, we are.
without jurisoiction, since the jud^ent to
be rendered may materially prejudice their
rights; But the interveners did not except
to the action of the trial court in vacating
the attachment and dismissing the action.
They were not made parties to the proceed-
ings in error prosecuted from the judgment
of the trial court to the supreme court of
the territory. In that court the cause was
determined without any suggestion, so far as
the record discloses, that Uie questions aris-
ing on the record could not be decided in Uie
absence of the interveners, and the supreme
court of the territory manifestly assumed
that the interveners were not essential par-
ties to a determination of the controversy be-
fore it, since it passed on the case as pre-
173 U. 8. U. S., Book 43. 40
sented without their presence. If their ab-
sence was treated by the parties to the pro-
ceedings in the supreme court of the terri-
tory as not affecting the right to a review of
the judgment of the trial court, there can be
no reason why we should now hold that the
presence of such interveners is necessary on
this appeal, which has solely for its object
a review of the judgment rendered bv the
supreme court of the territorv. Considering
the facts just stated, and tne further fact
that it is obvious that the rights of the in-
terveners cannot be prejudice by a review
of the action of the supreme court of the ter-
ritory in dismissing the cause for want of
jurisdiction, the motion to dismiss is over-
ruled.
The third ground stated in the plea of the
defendant, the Campbell Company, to the ju-
risdiction of the court, was the one which the
supreme court of the territory found to be
well taken, and upon which it based its af-
firmance of the judgment quashing the at-
tachment and dismissing the ^^tion for want
of jurisdiction. The reasoning by which the
court reached its conclusion was m substance
as follows:
The garnishee Pierce answered that he had
nothinjif subject to garnishment. After do-
ins this, he further answered, setting out an
alleged contract between himself and the de-
fencumt, *by which he had agreed to sell and [91]
ship to the pastures of the aefendant a cer-
tain number of cattle, which agreement had
been carried into execution, the cattle seized
under the attachment being a portion of
those shipped in carrying out the contract.
The answer then stated that although the
cattle had been thus shipped, by the terms of
the contract, the right to their possession re-
mained in the garnishee Pierce, to whom
there was a large amount due under the con-
tract for purchase money and expenses. The
answer further stated that the garnishee had
been notified of an assignment by the de-
fendant of its rights under the contract, the
date of this assignment as given being prior
in time to the levy of the attachment. Con-
sidering that there had been no traverse by
the plaintiff to the answer of the garnishee,
within twenty days, as required by the Okla-
homa statute, the court concluded that all
the facts and averments and the inferences
deducible therefrom, stated in the answer,
were to be taken as true, not only as between
the garnishee and the plaintiff, but also be-
tween the plaintiff and the defendant, in de-
termining whether property of the defendant
had been levied upon, imder the attachment.
Upon this assumption, finding that the an-
swer of the garnishee established Uiat na
property of the defendant had been levied
upon under the attachment, it thereupon
dissolved the attachment and dismissed the
suit. But this reasoning was fallacious,
since it assumed that because the failure to
traverse the answer of the garnishee was con-
clusive of his nonliability, in the garnish-
ment proceedings, it was therefore equally
so, as between the plaintiff and defendant, in
determininff whether the property whieh had
been levied upon under the attachment be-
625
(
91-94
Supreme Coubt of the United Btatesl
OcT.Tiii^
I
longed to the defendant. But the two con-
siderations, the liability of the garnishee un-
der the proceedings in garnishment and the
validity of the levy previously made under
the attachment, were distinct and different
issues. The section of the Oklahoma stat-
ute to which the court referred (Oklahoma
Stat. 1803, 9 4085) provides that the an-
swer of the garnishee "shall in all cases be
conclusive of the truth of the facts therein
stated, unless the plaintiff shall within twen-
ty days serve upon the garnishee a notice in
[02] * writing that he elects to take issue on his
answer." It, however, can in reason be con-
strued only as importing that the facts stat-
ed in the answer, unless traversed, should be
conclusive, for the purpose of determining
whether the garnishee was liable under the
process issued against him and to which
process his answer was directed.
Indeed, all the facta stated in the "fur-
ther" answer of the garnishee were, in legal
effect, substantially irrelevant to the issue
between the plaintiff and the garnishee, since
they referred, not to the garnishee's liability
to the defendant, but propounded a distinct
and independent claim which the garnishee
asserted existed in his favor as against the
defendant, as a basis on his part for claim-
ing property which was already in the pos-
session of tiie court under the attachment,
and held as the property of the defendant in
attachment. This was the view taken by
the garnishee of his rights on the subject,
for the answer in the garnishment concluded
simply by asking that the garnishee be dis-
charged from the proceedings. And on the
same day he intervened in the main action
and filed his interplea asserting in his be-
half a right of possession to the cattle seized
and demanding damages for their detention.
The judgment below, then, not alone caused
the failure to traverse the answer to conclude
the plaintiff as to the issues which could
legally arise on the ^rnishment, that is, the
liability of the garnishee thereunder, but it
also made the failure to traverse operate as
a siunmary and conclusive finding in favor of
the garnishee on his interplea in the action,
which was a wholly independent and distinct
proceeding from the garnishment itself. The
reasoning necessarily went further than this,
since by relation It caused the answer of the
garnishee to become conclusive between the
plaintiff and the defendant, thereby setting
aside the seizure made before the garnish-
ment issued, falsifying and destroying the
return of the sheriff that he had levied upon
the property of the defendant, and in effect
decided the case in favor of the defendant
without proof and without a hearing.
Nor can a different conclusion be reached
by considering that in the further answer of
{08] the garnishee it was stated that *he had been
notified of an assignment of the rights of the
defendant Campbell Company under the con-
tract, purporting to have been made prior
to the levy of the attachment. This was not
pertinent to the question of the liability of
the garnishee under the garnishment pro-
ceedings, and could not operate to conclusive-
ly establish as between the plaintiff and the
626
defendant, or as between the plaintiff ud
the alleged assignee, either the verity or tki
legal sufficiency of the alleged aasigiuiieaL
Aside, however, from the foregoing eoB«ad-
eration, the record established a oonditioB
of fact which relieved the plaintiff from the
necessity of traversing the answer of the nr-
nishee, in so far as that answer referred to
the independent facts substantiating the in-
tended claim of the garnishee to Ste rig^
of possession of the property already miider
seizure, and which, moreover, estopped tke
garnishee, and therefore the defendant fnai
asserting any right of possession by reiMt
of the facts alleged in the further aasver.
Before the time for traverse had expired, iai
at the date when a motion filed by Pierce, ti
garnishee and interpleader, to discharge tbi
attachment on the ground of his assDmetf
right of possession under the contract, had
been noticed for hearing, the court, hj th«
consent of plaintiff and the garnishee (the
only parties who had up to that time tf-
peared in the cause), appointed the gv-
nishee Pierce receiver, to dUspoee at prinU
sale of the cattle, which had been letied
upon, to pay from the proceeds the dum
of Pierce, by virtue of his contract, aad ti
hold the balance subject to the final order of
the court Obviously, this order, and the
rights which Pierce took under it »wt
wholly incompatible with the assmnpuoa
that he was entitled to the possession oi the
property levied upon as the owner tberwf.
By IJie effect of the order, he was to be paid
the full purchase price of the cattle. He
could not take the price and keep the eatUa.
The situation was this: At the time the
Campbell Company made its motion to dit'
miss for want of jurisdiction, the garaitfaee
had taken substantial rights which had for
their inevitable legal effect to render u•e^
essary any traverse of so much of hie i>-
swer as referred to his rights *under thesafM
posed contract, and which also disposed of
his interplea and claim of individiul right
to the possession of the property levied ea
under the attachment ; yet the result d tke
judgment rendered below was to disnim the
action at the instance of the defendant oa the
ground of supposed rights vested in the gt^
nishee, when the garnishee himself had die*
claimed or had abandoned the aascrtict sf
such presumed rights.
As the foregoing reasons dispose of the
view of the case taken by the lover twt
we confine ourselves to them. Because, hp*-
ever, we do so, we must not be undent^
as intimating that the defendant had the
right to assail the jurisdiction of the ctnti,
or question the right of the court to ordir
the giving of notice by publication, oa the
ground that it was not the owner ei the
property actually levied upon, and that the
affidavit for publication was untme ia «tst-
ing that the defendant had propertj «i'^his
the jurisdiction, when if it were not n^
owner no prejudice could come to it w ^
judgment of the court, from the nataif W
the proceeding before it, could otttwuQf
only operate upon the property lenid *
Kor, moreover, must we be considered u if
173 W.*
r
1896.
Cbntbal Loan A Tbxjst Ca v. Campbell Commission Co.
94r^
Mitiiig to the oonstruction given by the
eonrt, to the contract between the Campbell
Company and Pierce; the court, in ita recital
of the facts, stating that under the contract
PiOToe had a vendor's lien for the amount of
the purchase price upon the cattle which
had been levied upon, but in the opinion con-
Btruing the contract as not devesting Pierce
of the title to the cattle.
Although the court below based its conclu-
sion only upon one of the grounds taken in
the plea of the defendant to the jurisdiction,
it nevertheless in the course of its opinion
stated that the whole plea was before it, and
that all the grounds therein stated were open
for its consideration. We, therefore, shall
briefly consider such of the remaining
grounds stated in the plea to jurisdiction as
ha?e been urged in argument upon our at-
tention.
I. It is contended that the attachment pro-
ceedings were void and that the court conse-
5] quently was without jurisdiction, 'because the
order for attachment was signed by the pro-
bate judge, acting in the absence of the dis-
trict judge, conformably to a power to that
effect given by the territorial statute. The
claim is that the statute conferring such
power upon the probate judge was repug-
nant to the organic act and void, for the f<3-
lowing reason: The organic act authorized
the establishment of a supreme court and
district courts to be vested with "chancery as
well as common-law jurisdiction and author-
ity for redress of all wrongs oonunitted
Against the Constitution or laws of the
United States or of the territory affecting
persons or property." The grant of common-
law jurisdiction, it is argued, embraced au-
thority to issue attachments. Being then
within the jurisdiction expressly vested in
the courts named, it was incompetent for
the territorial legislature to delegate to the
probate courts, which the organic act author-
ized to be established, or to a judge of such
a court, any jurisdiction in the premises,
even although the organic act empowered the
legislature to define and limit the jurisdic-
tion to be exercised by probate courtis.
A review of this contention is rendered on-
necessary, because of the mistaken premise
npon which it rests. On the face of the Ok-
lahoma statute it is apparent that it is re-
quired as a prerequisite to the Issuance of an
attachment that the affidavit, in support
thereof, shall simply state the particular
ground for attachment mentioned in the act,
snd therefore that the granting of an order
for attachment does not involve the dis-
charge oi a judicial function, but merely the
performance of a ministerial duty, that is,
the comparison of the language of the affi-
davit ¥ath the terms of the statute. The
text of the statute is stated in the margin.f
«J This statute is a reproduction *of a statute of
Kansas; and, in 1884, before the organiza-
tion of the territory of Oklahoma, the su-
preme court of Kansas, in Buck v. Panabak'
er, 32 Kan. 46G, had recognized the power of
a probate judge to grant a writ of attach-
ment in cases provided by law, while it had
early held, in Reybum v. Bracketi, 2 Kan.
227 [83 Am. Dec. 457], under a statute con-
taining requirements as to the statements to
be maae in the affidavit for attachment like
unto those embodied in the statute of Ok-
lahoma now under consideration, that the
authority vested in an official to grant the
writ imposed a duty simply ministerial in
its nature. It is elementary that where the
eround of attachment may be alleged in the
language of the statute, the authority to al-
low the writ need not be exercised by the
judge of the court, but may be delegated by
the legislature to an official, such as the
clerk of the court. Reyhurn v. Bracketi,
2 Kan. 227 [83 Am. Dec. 457] ; Wheeler v.
Farmer 38 Cal. 203; Harrison v. King, 9
Ohio St. 388; Drake on Attachments, 7th
ed. p. 92. The cases cited and relied upon
by counsel as holding to the contrary do not
sustain what is claimed for them. In some
of them {Reyhurn v. Bracketi, 2 Kan. 227
[83 Am. Dec 467] ; Simon v. Stetier, 25
Kan. 155; and Harrison v. King, 9 Ohio
St. 388), the rule we have stated is upheld;
in others ( Morrison v. Love joy, 6 Minn. 183,
and Guerin v. Hunt, 8 Minn. 477, 487), the
particular statute under consideration was
construed as reouirin^, on the part of the
officer allowing the writ, a weighinj^ and de-
termination of the sufficiency of the proof;
whilst, again, in others {Setdentopf v. An*
nahiel, 6 Neb. 524, and Howell v. iDicker-
man] Circuit Judge, 88 Mich. 369), the stat-
ute expressly required that the writ should
be allowed by a jndce^ and hence the clerk
of the court was neld incompetent *to issue [97]]
the writ without the previous authorization
of the order by the court.
Nor does section three of the act of Con-
frese of December 21, 1893 (28 Stat, at L.
0), empowering the supreme court of the
territory or its chief justice to designate any
judge to "try" a particular case in any dis-
trict where the regular judge is for any rea-
son unable to hola court, constitute an im-
plied prohibition against the conferring by
the legislature of authority upon one not a
judge of the court in which the main action
IS pending to perform a ministerial act like
that here considered.
II. It is insisted that "under the organie
act of the territory, the court could not ac-
quire jurisdiction of the person of the de-
fendant by constructive service by foreign
attachment without its consent.*'
The section of the organic act referred to
requires that all civil actions shall be
brought in the county where a defendant re-
tSec 4120. Where a debtor has sold, con-
^yed, or otherwise disposed of his property
with the fraudnlent Intent to cheat or defraud
Itli creditors, or to hinder or delay the collec-
tion of their debts, or la about to make such sale
or conveyance or disposition of his property,
with inch fraudulent Intent, or Is about to re-
nove hla property, or a material part thereof,
1T3 U. S.
with the Intent or to the effect of cheating or
defrauding hla creditors, or of hindering them or
delaying them in the collection of their debts, a
creditor may bring an action on his claim be-
fore it Is due, and have an attachment against
the property of the same debtor.
Sec. 4121. The attachment authorised In the
last section may be granted by the court in
627
i
97-99
SUFRBMB COUBT OF THB UkITBD StATBS.
Oat. Tna^
■ides or can be found. In a proceeding by
attachment of property, which is in the na-
ture of an action in rem, it is elementary
that the defendant is found, to the extent of
the property levied upon, where tlie property
is attachea. It would be an extremely
strained construction of the language of the
act to hold that Congress intended to prohib-
it a remedy universally pursued, that of pro-
ceeding against the property of nonresidents
in the place in the territory where the prop-
er^ of such nonresident is found.
III. The only remaining contention to be
considered is the claim that che territorial
statute authorizing the issue of an attach-
ment against the property of a nonresident
defendant in the case of an alleged fraudu-
lent disposition of property is repugnant to
the Fourteenth Amendment to the Constitu-
tion of the United States and in conflict with
the civil rights act The law of the terri-
tory, it is said, in case of an attachment for
the cause stated against a resident of the ter-
ritory requires the giving of a bond by the
{plaintiff in attachment as a condition for the
ssue of the writ, whilst it has been construed
to make no such requirement in the case of
an attachment against a nonresident. This,
[98] it is argued, *is a discrimination against a
nonresident, does not afford due process of
law, and denies the equal protection of the
laws. The elementary doctrine is not denied
that for t^e purposes of the remedy by at-
tachment, the legislative authority of a state
or territory may classify resident? in one
class and nonresidents in another, but it is
insisted that where nonresidents "are not ca-
Sable of separate identification from resi-
ents by any facts or circumstances other
than that they are nonresidents — that is, when
the fact of nonresidence is their only distin-
guishing feature — the laws of a state or ter-
ritory cannot treat them to their prejudice
upon that fact as a basis of classification."
When ihe exception, thus stated, is put in
juxtaposition with the concession that there
is sucn a difference between the residents of
a state or territory and nonresidents as to
Justify their being placed into distinct
classes -for the purpose of the process of at-
tachment, it becomes at once dear that the
exception to the rule, which the argument
attempts to make, is but a denial, by indi-
rection, of the legislative power to classify
which it is avowed the exception does not
question. The argument in substance is that
where a bond is required as a prerequisite
to the issue of an attachment against a resi-
dent, an unlawful discrimination is produced
by permitting process of attachment against
a nonresident without giving a like bond.
But the difference between exacting a bond
in the one case and not in the either is noth-
ing like as great as that which arises from
allowing processes of attachment against a
nonresident and not permitting such process
against a resident in any case. That the
distinction between a resident and %
dent is so broad as to authorize m
tion, in accordance with the 8ugge>ti<a jwt
made, is conceded, and, if it were not, is «b>
vious. The reasoning, then, is that, althoosh
the difference between the two cla&ses is a£>
^uate to support the allowance of the
m one case and its absolute denial in tlit
other, yet that the distinction between the
two is not wide enough to justify allowiif
the remedy in both cases, but accompanying
it in one instance by a more onerous prere- l
quisite than is 'exacted in the other. The 'Si
power, however, to grant in the one and day '
m the other of necessity embraces the right,
if it be allowed in both, to impose upon the
one a condition not required in the other, for
the lesser ie necessarily contained in the
{p-eater power. The misoonoeptioB eoosisti
in oonceoin^ on the one hand, tbe power t»
classify residents and nonresidents, for the
purpose of the writ of attachment, and thea
from this concession, to argue that the povtr
does not exist, unless there be boraething ia
the cause of action, for which the Attarhmft
is allowed to be issued, which justifies the
classification. As, however, the dajsiiea>
tion depends upon residence and noarcsi-
dence, and not upon the cause of action, the
attempted distinction is without merit.
The foregoing considerations diq)ose, not
only of the n-ounds passed upon by the eovrft
below, but Uiose pressed upon our atteotioa
and which were subiect to review in thsl
court; and as from them we conclude iktn
was error in the judgment of the iower
its judgment must be reversed and the
be remanded for further proceedings oa
formity to this opinion. And it ii to ordsed.
SIOUX CITY TERMINAL RAILROAD 4
WAREHOUSE COMPANY el at
TRUST COMPANY OF NORTH AMERICi.
(See a C Reporter's ed. 99-111.)
Interpretation of a state statute — homds st
Iowa corporation in ewoess of stmhststr§
limit — estoppel of oorporuHon.
1. This court in interpretinf a statt sKateli
will constme and apply it as eettltd ky tkt
conrt of last resort of the state sad hMCi
will only form an independent Judf t m
to the meaning of the state law wbsi tkm
is no binding construction of such statt fia^
ate by the coort of last reaort of tht itita
2. Bonds of an Iowa corporation la «xc«i if
the maximum limitation stated In Its ctertw
and of the statutory limit fixed by lows Oait
1897, i 1611. are not void In the haadi <f ^
nocent purchasers fOr value.
8. Under the decisions of the BuprsflM eeeit «f
Iowa, the act of a corporation In eoatnctiif
a debt In excess of the statutory Ualt Ii ti(
which the action Is brought or by the Judge
tliereof, or in his absence from the county by the
probate Judge of the county In which the ac-
^on is brought ; but, before such action shall
%e brought or such attachment shall be granted,
the Dlaintiff or his agent or attorney shall make
628
an oath in writing showing the astsrt
amount of the plaintilTs claim, that It Is
when the same will become due, and Um
ence of some one of the grounds for an
ment enumerated In tLi preceding ssctloa.
ITS 0.9.
1898.
Sioux Cm T. R, & W. Co. v. Tbubt Com^akt of N. A.
lOO-lM
fold, but merelj Toldable, and for tblt rea-
■OB the corporation, or those holding under
It, cannot be heard to aasall auch act.
[No. 192.]
Arffued January 2S, 24, 1899. Decided
February 20, 1899.
ON WRIT OF CERTIORARI to the United
States Circuit Court of Appeals for the
Eighth Circuit to review a aecree of that
court which afilrmed a decree of the Circuit
Court of the United States for the Northern
District of Iowa in a suit for the foreclosure
of a certain mortgage held by the Trust Com-
pany of North America as trustee. The de-
cree of the Circuit Court established the va-
lidity of the mortgage and bonds which it
lecured, and decreea a foreclosure of the
tame. Affirmed,
See same case below, 69 Fed. Rep. 441, and
49 U. S. App. 523.
Statement by Mr. Justice Wl&ites
100] *The facts which are relevant to the contro-
versy arising on this record are as follows:
The Sioux (Sty Terminal Railroad & Ware-
house Company (hereafter designated as the
Terminal Company) was, in 1889, incorpo-
rated under the general laws of the state of
Iowa, .with an authorized capital of one mil-
lion dollars. In January, 1890, the corpora-
tion, by authority of its board of directors
authorized by its stockholders, mortsaffed in
fovor of the Trust Company of Nortn Amer-
ica its ''grounds, franchises, liens, rights,
privileges, lines of railway, side tracks,
warehouses, storage houses, elevators, and
other terminal facilities . . . within
the corporate limits of the city of Sioux
City," lUl of which property was more fully
described in the deea of mortgage. The pur-
pose of the mortgage was to secure an issue
of negotiable bonds, with the interest to ac-
crue thereon, the bonds being for the face
value of one million two hundred and fifty
thousand ($1,250,000) dollars. The form of
the bonds was described in the deed, and they
were numbered from 1 to 1250 inclusive. The
deed contained a statement that the coroo-
ration "has fidl power and authority unaer
the laws of the state of Iowa to create this
present issue of bonds and to secure the same
oy mortgage of all its property, leases, and
franchises." The bonds thus secured were
n^tiated to an innocent purchaser for
value, and the proceeds were applied to the
credit of the company.
In 1893 the Terminal Company also mort-
gaged in favor of the Union Loan & Trust
Company, an Iowa corporation, the prop-
erty previously mortgaged, as above stated,
this second mortgage being to secure one
hundred and ninety promissory notes, fifty
whereof were for one thousand dollars each,
and one hundred and fortv whereof were for
five thousand dollars each, the total aggre-
gating seven hundred and fifty thousand
($750,000) dollars. All the notes referred to
in this mortgage bore the date of the deed,
I01]which contained *the following covenant:
'The said party of the first part (that is,
the mortinuror) hereby covenants that the
173 U.C^
said premises are free from all encumbraocea
excepti^ a deed of trust made on the Ist
day of January, a. d. 1890, by said party of
the first part to the Trust Company of North
America, of Philadelphia, to secure the sum
of one million two hundred and fifty thou-
sand ($1,250,000) dollars of bonds; and the
said party of the first part^ will warrant and
defend the title unto the said party of the
second part, its successors and assignees,
against all persons whomsoever claiming the
same, subject to the lien of the said prior
deed of trust.*'
On the 10th day of October, 1893, in the
United States circuit court for the northern
district of Iowa, a bill was filed by certain
national banks, citizens of other states than
the state of Iowa, against the Terminal Com-
pany, E. H. Hubbard, as assig)iee of the
Union Loan & Trust Company, and oth-
ers, having for its object the foreclosure
of the second mortgage above referred to.
Without fully recapitulating the averments
of the bill, it suffices to say that it alleged
that the notes which were secured by the
second mortgage had been placed in the
hands of the Union Loan & Trust Company
in part for the benefit of certain claims
against the Terminal Company held by the
complainants ; that the Union Loan & Trust
Company had, in April, 1893, made an as-
signment to E. H. Hubbard for the benefit
of all its creditors, and that Hubbard had
succeeded to the rights and obligations of
the company of which he was assignee, and
in which capacity he held the notes secured
by the second mortgage, and the benefit of
which the complainanto were entitled to in-
voke for the purpose of procuring the pay-
ment of their claims. A receiver was prayed
for and was appointed.
On the 23d of December, 1893, the Termi-
nal Company, reciting the fact that the notes
which were secured by the second mortgage
for $750,000 had been drawn and the moH>
gage given for the benefit of certain out-
standing creditors whose claims amounted
to $728,000, and that the notes covered by
the second mort^j^age had been placed in the
hand8 of the Union Loan & Trust Company
for tftie benefit of such 'creditors; that the[10S]
company had made an assignment to Hub-
bard, assignee, and in that capacity he had
received the notes in question; that in a suit
pending in the Nortnern District of Iowa,
to foreclose said second mortgage, a question
had arisen whether such cr^itors were en-
titled to avail themselves of the benefit of
the second mortgage, — therefore, in order to
allay any such question, and to give the cred-
itors intended to be covered by the second
mortgage an undoubted riffht to claim un-
der it, the deed conveyed absolutely to Hub-
bard, trustee, the property covered by the
mortgage, ffiving to the trustee full power to
realize and apply the property and rights
to the discharge of the debts secured or in-
tended to be secured as above stated. It suf-
fices, for the purpose of this case, to give thia
outline of the deed in question, without stat-
ing all the various clauses found in it in-
tended to accomplish the purpose which it
had in view. The deed, however, contained
620
i
\
101»-105
Supreme Court of the Ukitbd Statss.
Oct. Tbue,
)
this declaration: "This oonvevance is made,
however, with full notice of the assertion of
the following claims against the said prop-
erty, to wit, a certain mort«;ace or trust
deed to the Trust Company of North Amer-
ica, of Philadelphia, Pennsylvania, as trus-
tee, to secure certain honds for the sum of one
million two hundred and Mty thousand ($1,-
250,000) dollars, and also certain mechanics'
liens to the amount of about $55,000, and
also certain judgments to the amount of
about $20,000. rTor shall said first party
(that is, the transferrer) be understood to
covenant that there are not other claims
than. those hereinbefore expressly mentioned,
none of which, however, are to be considered
and assiuned by said second party (Hub-
bard, trustee) ; nor by the acceptance of this
deed is he in anywise held to admit the va-
lidity of said trust deed liens, judgments, or
of any claims made or that may arise there-
under; nor shall this deed be held in any
manner to operate as the merger of said
mortgage to said Union Loan & Trust Com-
pany, but said mortgage shall at all times be
Kept in full force until all persons and corpo-
rations entitled and claiming benefits there-
under shall consent to its discharge, or so
long as it may be necessary to keep said
[103] mortgage in force for the protection *of the
title herein conveyed, or any interest claimed
by virtue hereof."
Default having taken place in the payment
of the interest on the lK>nd8 secured by the
first mortgage, the Trust Company of North
America, as the trustee, filed its bill in the
circuit court of the United States for the
northern district of Iowa for foreclosure. On
the 20th of June, 1894, the court ordered the
two foreclosure suits---that is, the one pre-
viously brought by certain national banks in
October, 1893, and the one brought by the
Trust (IJompany of North America — ^to be
consolidatea, and appointed the same per-
son who had been made receiver under the
first bill also the receiver under the second.
On July 23, 1895, the Credits Commutation
Company, a corporation organized under the
laws of the state of Iowa, filed its suit
against the Terminal Company in the state
court of Iowa in and for Woodbury county.
It was alleged that the Credits (Commuta-
tion Company had become the holder and
owner of a large number of the claims against
the Terminal Company which were intended
to be secured by the second mortgage, and
for whose benefit the deed to Hubbard, trus-
tee, had been made. The relief sought was
a judgment against the Terminal Ck>mpany
"without prejudice to any rights or inter-
ests which the plaintiff ( the Credits Commu-
tation Company) mav have as a holder of
said notes in the said trust deed;" that is,
the deed of trust to Hubbard, trustee, for
the benefit of the noteholders as already
mentioned. On the day the suit was filed
tiie Terminal Company answered, admitting
the correctness of the claim, and judgment
was then entered for $692,096.95 with in-
terest, the whole without prejudice to the
rights of the parties under the deed of trust
as prayed for.
The Terminal Company in its answer to
630
the suit for foreclosure brought l^ the Tnst
Company of North America relied vqpom
many defenses, only one of which need be
referred to, that is, that the bonda and tkt
mortgage in favor of the said Trust CamjMoy
of North America were ultra viret. How-
ever it may be observed that the Termiiial
Company by its answer asserted that the
rights of those entitled to claim *mider the£M^
second mortgage or the conveyance made for
their benefit to Hubbard, trustee, were par-
amount to the claims of the Trust Compaaj
of North America, or the bondhold^s nnds'
the first mortgage in favor of that eompaay.
The Credits Commutation Company inter-
vened in the foreclosure proceedings, avo-
ring that the bonds secured by the deed ia
favor of the Trust Company of North Abct-
ica were void, because the Terminal Cob-
pany at the time the bonds were executed
was without lawful power to issue them or
to secure them b^ mortgage. It was alse
claimed that in virtue of the judgment ren-
dered in the state court the Ci^edits Commii-
tation Company was a creditor of the Ter>
minal Company to the amount oi the j1ld|^
ment, and was entitled to avail itself <rf the
rights accruine to it from the deed of eoa-
veyance made hy the Terminal Company to
Hubbard, trustee, and therefore that the
Credits Commutation Company was entitled
to be paid from the proceeos of the pi%>pertv
sought to be foreclosed before the holders of
the bonds secured by the deed which had beet
made in favor of the Trust Company d
North America.
The trial court decided in favor of the ra-
lidity of the bonds issued to the Truf^t Com-
pany of North America and of the mortgM
securing the same. 69 Fed. Rep. 441. <a
appeal to the circuit court of appeals for the
eighth circuit, the judgment of the triil
court was affirmed. 49 U. S. App, 523. Tht
case then, by the allowance of a writ of ecr-
tiorari, was brought to this court
Messrs. Henry J. Taylor and Jaka CL
Combs for petitioners.
Messrs, Asa F. Call and Joseph ff. Cell
foi respondent.
•Mr. Justice Wliite, after makin^r thf !••
foregoing statement, delivered the opinioa of
the court:
The errors assigned and the discussioa >*
the bar confine 'the question to be deridfJ^l"
solely to the validity of the negotiable bood^
of the Terminal Company whidi were matA
to the Trust Company of North America, aad
which were sold m open market to innocnit
purchasers for value, and the proceeds of
which inured to the benefit of the Temiaal
Company. The issue for decision is n-
stricted to this question, sinee all the errort
assigned and the contentions based apoi
them depend on the assertion that tte
bonds issued to the Trust Company ^
North America, and the mort^rage bf
which their payment was secured, w*
wholly void. This complete want of po««r
in the Terminal Company is predicated ipoa
certain requirements of the law of the ftalt
' of Iowa, existing at the time of the tncorpo-
173 V.t-
1^.
Sioux Citt T. R, & W. Co. t. Tbubt Comfant of N. A.
KM^IOS
ration of the Terminal Company, and of a
provision in the charter c4 that company, in-
serted therein in compliance with the Iowa
statute. The law of Iowa relied on is sec-
tion 1611 of the Iowa Code of 1897, contained
in the portion thereof relating to the organ-
ization of corporations, and is as follows:
"Such articles must fix the highest amount
of indebtedness or liability to which the cor-
poration is at any one time to be subject,
which in no case, except risks of insurance
companies, and liabilities of banks not in
excess of their available assets, not includ-
ing their capital, shall exceed two thirds of
its capital stock. But the provisions of this
section shall not apply to the bonds or oth-
er railway or street-railway securities is-
sued or guaranteed by railway or street-rail-
way companies of the state in aid of the lo-
cation, construction, and equipment of rail-
ways or street railways, to an amoimt not
exceeding sixteen thousand dollars per mile
ot single track, standard-gauge, or eight
thousand dollars per mile of bin^le track,
narrow-gauge, lines of road for eadi mile of
railway or street railway actually con-
structed and equip{>ed. Nor shall the pro-
visions of this section apply to the deben-
tures or bonds of anjr company incorpo-
rated under the provisions of this chapter,
the payment of which shall be secured by an
actual transfer of real-estate securities for
the benefit and protection of purchasers
thereof; such securities to be at feast equal
in amount to the par value of such bonds or
6]debentures, and to be first *liens upon unen-
cumbered real estate worth at least twice
the amount loaned thereon."
The part of the foregoing section com-
manding the insertion in the charter of in-
corporated companies of the amount of in-
ability for which the corporation could at
one time be subject, and limiting such
amount to two thirds of the capital stock,
originated in the state of Iowa in the year
1851, and was continuously in force from the
time of its adoption in the year in question
up to the perioa when it was embodiea in the
Code of 1897. Iowa Code 1851, § 676; Iowa
Code 1873, § 1061. The subsequent portions
of the Section creating exceptions as to cer-
tain classes of railway bonds, and as to
bonds secured by an actual transfer of real-
«8tat€ securities, originated, the one in 1884
and the other in the year 1886, and contin-
ued in force until they were also incorpo-
rated in the Iowa Code of 1897. 20 Iowa
Laws, chap. 22; 21 lb. chap. 54. And sec-
tion 1622 of the Iowa Code also contains the
toUowing coenate provision: "If the in-
debtedness of any corporation shall exceed
the amount of indebtedness permitted by
'aw, the directors and officers of such corpo-
ration knowingly consenting thereto shall be
personally and individually liable to the
creditors of such corporation for such ex-
cess."
The portion of the charter of the Terminal
Company fixing, in obedience to the statu-
tory requirement, the amount of the debt
which could at any one time exist, was as
loUows:
. "The highest amount of indebtedness to
173 V. sT
which this (Terminal) company shall at any
time subject itself shall not exceed two
thirds of the paid-up capital stock of said
company, aside from the indebtedness se-
cured by mortgage upon the real estate of
the company.**
As the sum of the bonds which were issued
and secured by the mortgage in favor of the
Trust Companv of North America exceeded
the statutory limit and the amoimt stated
in the charter, the question which arises first
for consideration is this : Did this fact ren-
der them void; and, secondarily, was the issue
of bonds taken from out the operation of the
general rule laid down in the statute by the .
exceptions mentioned in the *latter portibns[107]
thereof? As the claim that the bonds were
void is based on the statutory provisions
above referred to, it follows that we are com-
pelled to ^rimarilv ascertain the meaning
and operation of the state law. In making
this inquiry we are constrained in the first
place to inquire what construction has been
placed upon the Iowa statute by the supreme
court of that state; for it is an elementary
principle that this court in interpreting a
state statute, will construe and apply it as
settled by the court of last resort of the
state, and will, hence, only form an inde-
pendent judnnent as to the meaning of the
state law when there was no binding con-
struction of such state statute oy the court
of last resort of the state. Nobles v. Georgia,
168 U. S. 398 [42:616]; First National
Bank v. Chehalia County, 166 U. S. 440 [41 :
1069] ;Morley v. Lake Shore d M, 8. Bail-
way Co, 146 U. S. 166 [36:928], and au-
thorities there cited.
The subject-matter of the creation bv an
Iowa corporation of a debt in excess of the
maximum amount fixed in its charter in ac-
cordance with the requirement of the stat-
ute, and also in excess of the sum limited by
the state law, was considered by ibe supreme
court of the state of Iowa in Garrett v. Bur-
lington Plow Co, and Others (1886) 70 Iowa,
697 [59 Am. Rep. 461]. The case was this:
An action was brought in chancery to fore-
close a mortgage executed by the Burlington
Plow Company, an Iowa corporation, to the
plaintiff as a trustee for certain of its cred-
itors upon real estate and personal property.
The authorized capital stock of the corpo-
ration was fifty thousand dollars. The
maximum limit imposed by the articles of
incorporation was the maximum imposed by
the statute, that is, two thirds of the amount
of the capital stock. The corporation had
contractea an indebtedness in excess of the
limitation fixed by the statute and fixed by
the charter ; that is, with an authorized cap-
ital stock of fifty thousand dollars it had
contracted an indebtedness exceeding fifty
thousand dollars, of which total indebted-
ness the sumspressed in the foreclosure suit
were a part. The defense to the suit was two-
fold: First, that the total debt of the cor-
poration, including that sued on, was in ex-
cess of the two-thirds limitation; and, sec-
ond, that the mortgage was void because it
had been granted to protect certain direc-
tors *of the corporation to the prejudice of [108]
its general creditors. The fact tnat the debt
681
108-110
SUPBEMS COUBT OF THE UnITBD StATBB.
Oct. Tm,
)
exceeded the two thirds allowed by the char-
ter and the statute was admitted on the face
of the record, and stated by the court in its
opinion to be unquestioned. The court said
(p. 701) :
"Do the facts alleged in the answer, that
the holders of the notes, as directors of the
company, in the management of its affairs,
contracted indebtedness bevond the limit pre-
scribed by the articles of incorporation, and
caused the mortgage to be executed to secure
the amount due them, defeat their security
and give other creditors a right to share in
the pro<»eeds of the property mortgaged? We
do not understand counsel for the defendants
to claim that a debt of the corporation be-
yond the prescribed limits of its indebtedness
IS inyalid, and, if held by a director of the
corporation, cannot be enforced for that rea-
son alone. It may be that a director would
be answerable to stockholders or others for
negligence or mismanagement of the affairs
of a corporation whereby debts were con-
tracted in excess of the limitation prescribed
in the articles of incorporation; but it can-
not be claimed that such a debt, for a consid-
eration received by the corporation, cannot
be enforced against it."
Again, referring to the same subject, the
couH said (p. 702) :
"It is averred that the directors unlaw-
fully contracted indebtedness of the corpora-
tion in excess of the limit prescribed by its
articles of incorporation. But this has noth-
ing to do with the directors' claims in con-
troversy. As we have before said, they ma^
be liable to proper parties for their negli-
gence or unlawful acts, but honest contracts
made with them are not defeated thereby."
In Warfield and Others v. Marshall Coun-
ty Canning Company (1887) 72 Iowa, 666,
where a debt had been confessedly contracted
by a corporation in excess of its charter lim-
itation, confining the power of the corpora-
tion to create a aebt to a sum not exceeding
one half of the capital stock actually paid
in, the court, in considering the legal conse-
quences of such excessive debt, said (p.
672) :
"The proposition is stated by counsel, but
[109] it is not, *we think, insisted upon, that the
mortgage is ultra vires because the articles
of incorporation provide 'that it shall be
competent to mortgage the property of the
company to the amount of not exceeding one
half of the capital stock actually paid in.'
This question was determined adversely to
appellant in Oarreti v. Burlington Plow Co,
before cited."
It follows then that at the time of the issue
of the bonds in favor of the Trust Company
of North America, and of the execution of the
deed of mortgage by which such bonds were
secured, the supreme court of the state of
Iowa had in two cases declared the law of
that state to be that a debt contracted in
excess of the maximum limitation stated in
the charter, in virtue of the provisions of the
statute requiring that such maximum limit
should be fixed, was not void, although the
consequence of contracting a debt beyond the
limitation might be to entail upon the offi-
632
cers of the corporation a peraonal liaUi^
for the amount therec^
Light is thrown upon the eonditkm of tkt
law of the state of lowm^ on the qncstioa wm
before us, by a decision of the' lupreme eovt
of that state, wherein it was called npoa t»
consider issues arising from the ideatkd
contracts whidi are involved in this esse.
The cause was adjudged in the supreoie cont
of Iowa, after the decision of the trial eovt
in this cause, and after that of the cireait
court of ap^ls. Without deciding tkst
the construction given the statute by the n-
preme court of the state of Iowa at the tiat
and under the circumstances stated is wBo&h
sarily controlling on this court, sudi istv-
pretation, conceding that it is not cootral-
ling, is manifestly relevant for the pnrpo«
of elucidating the previous decisions of the
supreme court of Iowa, and as indiettiif
what was the settled law of that state st the
time the contract in (question was eaterai
into, and prior to the time when the eoatre-
versy which this case presents originated h
the courts of the United States. The did-
sion in question is Beach et oL r. Wakt^jkU
ei al ( 1808) 76 N. W. 688 (not yH reported
in the official reports of the state of lowi).
The case as stated in the report thereof wss
this: Beach, a subcontractor, ccmmnrri
proceedings to establish and foredoee a ae-
chanic's Mien on a depot built by the Tonu-LlU
nal Company. Wakefield was the prindpAl
contractor for building the depot He de-
nied in part the claim of Beach, and soaght
also on his own behalf to be recocnised m
havinff a mechanic's lien upon the depot
The Terminal Companv, the Trust Conpeaj
of North America, and the Credits Coni*
tation Company were parties to the caatt.
The decree of the supreme court of Io«s
recognized in part a mechanic's liev oa tke
depot buildins paramount to the mortfigt
in favor of tne Trust Company of Nora
America, but adjudged that tne bonds iasaid
to the Trust Company of North America sad
the mortgage by which they were ecevid
were paramount to the claim of the Creditt
Commutation Company and others botdiaf
junior mortgage rights. In oonsidcrinf tfa
legal result of the creation of a debt is a-
cess of the statutory limitation the eovt
said (p. 694):
"A aistinction is to be taken betwcca ctm-
tracts like this and those which, indiytfd
ent of statute, are in violation of pablk pot-
icy. The creation of this indebredneet is-
volved no moral turpitude. The makisf of
the mortgage did not disable the corpontioB
from performing its duties to the poUic-
The Terminal Company had a right to iaear
a debt, and to execute a mortgage to •««*
it. The only ground of complaint it tkst it
went further than the law permitted. Of
this the state may complain, but the Tcr«>-
nal Company cannot; nor can any pcnos
whose rights are derived through the Tv*
mi nal Company and who acquired nA
rights with knowledge of the nKMigsfe Utf-'
Again, in commenting on the same nbject
the court said (p. 695) :
''We are aware that the security hss k*
held invalid, and a right of reeovery there*
1806.
Bausmak t. Dixon.
110-118
denied, in many cases where an action has
been permitted upon the common counts.
But we think these cases will he found to in-
voIts contracts which were absolutely void,
and not, as in the case at bar, yoidable only.
This distinction is clearly preserved in the
eases. In (Barrett v. Burltngton Plow Co,
tupro, the indebtedness exceeded the charter
limit of the corporation, and the creditors
ll]luid notice * thereof when the transaction took
{>lace; and yet a riffht of recovery was al-
owed and the lien of the mortgage upheld.''
Recurring to the legal consequence, under
the Iowa statute, of contracting a debt in
excess of the statutory limit, the court said
(p. 695) :
''It is said, further, that the plea of estop-
pel can be urged only in favor of the inno-
cent, and that the bondholders here are not
of thjBit class, for they are held to notice of
the corporate power of the Terminal Com-
pany. This rule has been applied in cases
iriiere the act done was wholly void because
of an absolute want of power to sustain it,
and in cases where considerations of public
policy intervened. Here, as repeatedly said,
the act is voidable only. The statute does
not even impose a penalty therefor."
The argument, then, reduces itself to this:
Although it was oondusively settled by the
decisions of the state of Iowa at the time the
eontract in question was entered into, that
a debt contracted by a corporation in excess
of the statutory limitation was in no sense
9i the word void, but on the contrary was
merel^r voidable, we nevertheless should, in
enforcing the state statute, disregard the
construction affixed to it by the supreme
court of the state of Iowa, and hold that the
act of the corporation in exceeding the limit
of debt imposed by tJie statute or nxed in the
diarter in ocnnphance with the statute was
absolutely void. But to so decide would vi-
olate the elementary rule previously referred
to, under which this court adopts and applies
the meaning of a state statute as settled by
the court of last resort of the state. As,
then, under the Iowa law the fact that the
corporation contracted a debt in excess of
the charter or statutory limitation did not
render the debt void, but, on the contrary,
Buch debt, by the settled rule in Iowa, was
merely voidable, and was enforceable against
the corporation and those holding under it,
and gave rise only to a right of action on the
part of the state because of the violation of
the statute, or entailed, it would seem, a lia-
bility on the officers of the corporation for
the excessive debt so contractea, it follows
that the whote foundation upon which the
errors assigned in this court must rest is
i 12] without support in *respect of Federal law,
and therefore the decrees below were correct-
ly rendered.
It is claimed, however, that this court is
not obliged to follow the Iowa decisions in-
terpreting the statute of that state, because
it 18 assumed that those decisions proceed
alone upon tJie principle of estoppel. Estop-
pel, it IS arguea, is a matter of general, and
not of local, law upon which this court must
form an independent conclusion, even al-
though in doing so it may disregard the rule
established in the state of Iowa by the su*
preme court of that state. Whatever, it ia
arf^ed, may be the rule in state courts, in
this court it is settled that a corporation
cannot be estopped from assertine tnat it ia
not boimd by a corporate act which is ab-
solutely void, citing, among other cases,
Pullman's Palace Car Co. v. Central Tranap,
Co. 171 U. S. 138 [ante, 108] ; California No-
tional Bank v. Kennedy, 167 U. S. 362 [42:
198] ; McCormick v. Market National Bank,
166 U. S. 638 [41: 817] ; Central Tranap. Co,
V. Pullman's Palace Car Co. 139 U. S. 24
[35:56].
But we are not called upon in the case be-
fore us, to decide the question thus raised,
since it rests upon an assumption that the
court of Iowa has decided that the corpora-
tion was by estoppel prevented from com-
plaining of a voia act. But the supreme
court of Iowa has not so decided. On the
contrary, while in the course of its opinions
it has referred to the doctrine of estoppel, it
expressly, in the cases cited, made tne ap-
I plication of the doctrine depend upon the
egal conclusion found by it, that the act of
a corporation in contracting a debt in excess
of the statutory limit was not void, but
merely voidable, and for this reason the cor-
poration, or those holding under it, could
not be heard to assail the act in question.
The decisions of this court which are relied
upon considered the application of the doc-
trine of estoppel to corporate acts absolutely
void, and not its relation to contracts which
were merely voidable. * Whether, as an inde-
pendent question, if we were enforcing the
Iowa statute, we would decide that the issue
of bonds by a corporation in excess of a
statutory inhibition was not void, but mere-
ly voidable, need not be considered, since, as
we have said, in applying an Iowa law, we
follow *the settled construction given to it by[118|
the supreme court of that state.
It necessarily follows that the decrees of
the Circuit Court and of the Circuit Court
of Appeals were correct, and both are therO'
fore affirmed.
FREDERICK BAUSMAN, as Receiver oi
the Ranier Power & Railway Company,
Plff. in Err.,
V.
SAMUEL DIXON.
(See 8. C. Reporter's ed. 113-115.)
Federal question.
In a suit In a state court against a receiver
appointed by a Federal court the mere order
of the latter court appointing him does not
create a Federal question, where the receiver
did not set up any right derived from that
order which he asserted was abridged or taken
away by the decision of the state court, and
where all the questions involved were ques-
tions of general law, Including the Inquiry
whether the receiver was responsible for the
acta of his predecessor.
[No. 197.]
{
633
llS-115
SuFBEME Court of The United States.
Oct
Argued and Submitted January 25, 1899.
Decided February 20, 1899.
IN ERROR to the Supreme Ck>urt of the
State of Washington to review a judg-
ment of that court affirming a judgment of
the Superior Court of King County, Wash-
ington, in an action brought by Dixon to re-
cover damages for personal injuries sus-
tained by him by reason of the negligence of
one Backus, predecessor of the defendant,
Bausman, as receiver, etc. The judgment of
the trial court was rendered in favor of the
plaintiff upon a verdict for $10,000. Writ
of error dismissed.
See same case below, 17 Wash. 304.
The facts are stated in the opinion.
Mr. Frederiok Bausman for plaintiff
in error.
Messrs. John £• Hnrnphries, Edward
P. Edaen, William E. Humphrey, Harrison
Bostwick, and O. E. Remsberg for defendant
in error.
|118] *Mr. Chief Justice Fuller delivered the
opinion of the court:
Dixon brought an action in the superior
court of King county, Washin^n, against
Bausman, receiver of the Ranier Power ^
Railway Companv, to recover damages for
injuries sustamea by reason of defendant's
negligence. The complaint alleged that the
Ranier Power & Railway Company waa a
corporation organized under the laws of
Washington, and engaged in operatixig a cer-
tain street railway in the city of Seattle;
that June 13, 1893, one Backus was duly ap-
pointed by the circuit court of the United
States for the district of Washington receiv-
er of the company, and qualifie<l and served
[114]*as such until February 11, 1895, when he
was succeeded by Bausman ; and that the in-
jury of which plaintiff complained was in-
flicted in the course of the operation of the
railway, on June 15, 1893. The answer de-
nied that Bausman's predecessor in office
had employed Dixon, and that Dixon's in-
juries were caused by negligence ; and set up
contributory negligence as an affirmative de-
fense. The action was tried bv a jury and
a verdict rendered in favor of Dixon, the
jury also returning answers to certain ques-
tions of fact specially propounded. A mo-
tion for a new trial was overruled and judg-
ment entered on the verdict, and the cause
was carried to the supreme court of Wash-
ington, which affirmed the jud^ent (17
Wash. 304) ; whereupon this writ of error
was allowed.
We are unable to find adequate ground on
which to maintain jurisdiction. The con-
tention of plaintiff in error seems to be that
because of his appointment as receiver the
judgment against him amounts to a denial
of the validity of an authority exercised un-
der the United States, or of a right or im-
munity specially set up or claim^ under a
statute of the United States, it is true
that the receiver was an officer of the circuit
court, but the validity of his authority as
such was not drawn in question, and there
634
was no suggestion in the pleadin^,or imnag
the trial, or, so far as appears, in Ue ititc
supreme court, that any right the rweifcf
possessed as receiver was contested, allWi^
on the merits the employment' of plaiatif
was denied, and defendant contended tktt
plaintiff haid assumed the risk whidi n-
suited in the injury, and had also bea guilty
of contributory negligence. The mere order
of the circuit court appointing a reeeiTer dii
not create a Federal question under wetioe
709 of the Revised Statutes, and the receirer
did not set up any right derived from t^
order, which he asserted was abridged or
taken away by the decision of the state
court. The liability to Dixon depended oa
principles of general law applicable to ^
facts, and not in any way on the term of
the order.
We have just held in Capital yetioml
Bank of Lincoln v. The First National Beak
of Cadiz, 172 U. S. 425 [ante. 502], tkit
where *the receiver of a national bank «t« - [111
party defendant in the state courts, coote^
ed the issues on a general denial, and set np
no claim of a right under Federal statotes
withdrawing the case frcMn the applieatiea
of general law, this court had no jnniiiictm
to revise the judgment of the highest coort
of the state resting thereon; anC certaialf.
an officer of the circuit court stands oo ae
higher ground than an officer of the VjattA
States.
Defendant did not deny that he was •mtm-
able to suit in the state courts; be did aot
claim immunity as receiver from suit with-
out previous leave of the circuit coortf tad
could not have done so in view of the tft fi
March 3, 1887, chap. 373 (24 SUt at L
552) ; all the questions involved were qon^
tions of general law, including the inqoirr
whether one person holding the office of re-
ceiver could be held responsible for the act>
of his predecessor in tne same offin; aW
the judgment specifioJly prescribed that tte
''said amount and ludgment is payable o«t
of the funds held by said Bausman as re>
ceiver of said company, which coroe iato the
hands of said receiver and are held hj kin
as receiver, and funds belonzinf to the n-
ceivership which are applicable tor that pv<
pose, which may hereafter come into the re-
ceiv«»r*a hands or under direction of the ««rt
appointing such receiver."
Section 3 of the act of March 3, 18S7, pro-
vides that "every ^«»ceiver or nunairer *■'
anjr property, appointed hy any court o( th»
United States, may be suea 5n respect of »xf
act or transaction of his in canning on t^
business connected with such propertt
without the previous leave of the cooH n
which such receiver or manager was af
pointed; but such suit shall be fubjcct t»
the general equity jurisdiction of the «n
in which such receiver or manairer wai a^
pointed, so far as the same shaill be ■e'^
sary to the ends of justice." It is DCt i**
nied that this action was pro>ecp*jrf ■*'
this judgment rendered in accorduwe tkn*
with.
The writ of error is dismieeei.
189a
Mullen v. Westebn Union Bkef Co.
116-118
•U.K. MULLEN and Charles D. McPhee,
Plffs. in Err.,
V.
WESTERN UNION BEEF COMPANY.
(See S. C. Reporter's ed. 11^128.)
Review of a aiaie judgment — highest etate
court,
1 A writ of error from this court to reTlew a
state jodgment cannot be maintained where
sach jadgment is not that of the highest court
of the state In which a decision could be had.
1 It must aiBrmatlyely appear from the record
that a decision could not haye been had In
tlie highest court of the state, or a writ of
error to an inferior state court cannot be sus-
tained.
[No. 163.]
Argued and Submitted January 18, 1899.
Decided February 20, 1899.
TN ERROR to the Court of Appeals of the
1 State of Colorado to review & judgment
of that court which affirmed a iu<!(gment of
the District Court of Arapahoe County, Col-
orado, in favor of the defendant, the West-
em Union Beef Company, in an action
brought to recover damages for the loss of
•todc occasioned by the communication of
an infectious disease from the cattle of the
defendant to those of the plaintiff. Writ of
error dismissed.
See same case below, 9 Colo. App. 497.
Statement by Mr. Chief ' Justice Fullers
This was an action brought by Mullen
and McPhee against the Western Union Beef
Company, in the district court of Arapahoe
County, Colorado, to recover damages for
loss of stock occasioned by the conmiunica-
tion from cattle of defendant to cattle of
plaintiffs of the disease known as splenetic
or Texas fever, by the importation into
Colorado of a herd of Texas cattle, in June,
1891, and suffering them to go at large, in
Tjolation of the quarantine rules, regula-
tions, and orders of the United States De-
partment of Agriculture, in accordance with
the act of Congress approved May 29, 1884,
entitled "An Act for the Establishment of
a Bureau of Animal Industry," etc, 23
Stat. 31, chap. 60; and the act approved
July 14, 1890, 26 Stat. 287, chap. 707; and
in violation of the quarantine rules and reg-
ulations of the state of Colorado. The trial
ttsulted in a verdict for defendant, on which
judgment was entered. Plaintiffs sued out
a writ of error from the court of appeals of
the state of Colorado, and the judgment was
Affirmed, whereupon the present writ of er-
ror was allowed.
The court of appeals held that the ques-
tion of violation by defendant of the quaran-
tine rules and regulations of the state need
n<^ be considered because "upon sufficient
evidence, it was settled by the jury in de-
fendant's favor >" that "no question of neg-
ligence generally in the shipment and man-
agement of the cattle is presented bv the
record;" and that the theory on which the
case had been tried below and was argued
178 U. S.
in that court was that "if the loss of th«
plaintiff's *cattle was in consequence of dis-[117]
ease ccnnmunicated by the cattle of the d^
fendanty its liability depends upon its acts
with reference to rules and regulations
which it was legally bound to observe."
The regulations of the Secretary of Agri-
culture were as follows:
Regulations Concerning Cattle Transportch
tion.
United States Department of Agriculture,
Office of the Secretary,
Washington, D. C, February 6th, 1891.
To the Managers and Agents of Railroad and
Transportation Comnanies of the United
States, Stockmen ana Others:
In accordance with section 7 of the act of
Congress approved May 29, 1884, entitled
"An Act for the Establishment of a Bureau
of Animal Industry, to Prevent the Exporta-
tion of Diseased Cattle, and to Provide
Means for the Suppression and Extirpation
of Pluro-pneiunonia and Other Contagious
Diseases among Domestic Animals," and of
the act of Congress approved Julv 14, 1890,
making appropriation for the Department
of Agriculture for the fiscal year ending
June 30, 1891, you are notified ttiat a con-
tagious and infectious disease known ae
splenetic or southern fever exists amon^
cattle in the following described area of the
United States: . . . From the 15th day
of February to the 1st day of December,
1891, no cattle are to be transported from
said area to any portion of the United Statee
north or west of the above-described line,
except in accordance with the following reg-
ulations.
[Here followed a series of stringent rules
concerning the method to be pursued in
transporting cattle from the infected dis-
tricts.]
United States Department of Agriculture,
Office of the Secretary,
Washington, D. C, April 23d, 1891.
Notice is hereby given that cattle whic^
have been at least ninety days in the area
of country hereinafter described *inay be[llS)
moved from said area by rail into the states
of Colorado, Wyoming, and Montana for
grazing purposes, in accordance with the
rep^ations made by said states for the ad-
mission of southern cattle thereto.
Provided :
1. That cattle from said area shall go into
said states only for slaughter or grazing, and
shall on no account be shipped from said
states into any other state or territory of
the United States before the 1st day of De-
cember, 1891.
2. That such cattle shall not be allowed
in pens or on trails or ranges that are to be
occupied or crossed by cattle going to the
eastern markets before December 1, 1891, and
that these two classes shall not be allowed
to come in contact.
3. That all cars which have carried cattle
from said area shall, upon unloading, at
once be cleaned and disinfected hi the manner
provided by the regulations of this depart-
ment of February 5th, 1891.
4. That the state authorities of the statee
635
(
118-181
SUTBEMB OOUBT OF THS UhITBD STAT1E&
I
of Colorado, Wyoming, and Montana, agree
to enforce these proyisions.
The court, after statinff that the territory
described in both orders included that from
which the defendant's cattle were shipped,
said: "It is the rules relating to the leola^
tion of cattle moved from infected districts,
and more particularly the second proviso of
the second order, whidi were claimed to have
been violated by the defendant."
And it was then ruled that the regula-
tions were not binding, as it was not shown
that the state had a^r^d to them ; that Ihey
were not authorized by the statute; that
"the second provision undertakes to regulate
the duties in relation to them [the cattle],
of the persons by whom they might be re-
moved aft«r their arrival in the state, and
it is upon this provision that the plaintiffs'
reliance is chiefly placed. After oecoming
domiciled within the state their management
would be rt^^ated by its laws and not by
the act of Congress. Any violation of the
Federal law in connection with the cattle
would consist in their removal. The dispo-
[110]sition of them afterwards *was not within
the scope of the statute. [9 Colo. App. 497],
49 Pac 425.
Messrs, T. B. Stuart and W. C KingsUy
for plaintiffs in error.
Messrs, O. S. Thomas, W. H. Bryant,
and H. H. Lee for defendant in error.
■!I19] *Mr. Chief Justice Fuller delivered the
opinion of the court:
We are met on the threshold by the objec-
tion that the writ of error runs to the judg-
ment of the court of appeals, and cannot be
maintained, because that is not the judgment
of the highest court of the state in which a
decision could be had.
The supreme court of Colorado is the high-
est court of the state, and the court of ap-
peals is an intermediate court, created ^ an
act approved April 6, 1891 (Sees. Laws
Coio. 1891, 118), of which the following are
sections :
"Section 1. No writ of error from, or ap-
peal to, the supreme court shall lie to review
the flnal judgment of any inferior oourt,^ un-
less the judgment, or in replevin the value
found, excels two thousand flve hundred
dollars, exclusive of costs. Provided^ this
limitation shall not apply where the matter
in controversy relates to a frandiise or free-
hold, nor where the construction of a pro-
vision of the Constitution of the state or of
the United States is necessary to the deter-
mination of a case. Provided, further, that
the foregoing limitation shall not apply to
writs of error to coun^ courts."
"Sec. 4. That the said court shall have ju-
risdiction :
"First. To review the final judgments of
inferior courts of record in all civil cases and
in all criminal cases not capital.
"Second. It shall have final jurisdiction,
■ubject to the limitations stated in subdi-
▼ision 3 of this section, where the judgment,
mr in replevin the value found, is two thou-
■and flve hundred dollars, or less, exclusive of
costs.
686
•"Third. It shall have juriadictka. Brt(tl
flnal, in cases where the amUuf«sf ia>
volves a franchise or fredtold, or
oonstructicA of a provision of the
tion of the state, or of tho United States, ii
necessary to the decision oi the ease; aim,
in criminal cases, or upon writs of error is
the judgments of county oourta. Writs if
error from, or appeals to, the court ol ap-
peals shall lie to review flnal jadgsMi^
within the same time and in the same mam-
ner as is now or may hereafter be proriM
by law for such reviews by the suyt
court."
The supreme court of Colorado has hdi is
respect of its jurisdiction under these is^
tions, that whenever a constitutional apaa-
tion is necessarily to be determined ia tkc
adjudication of a case, an appeal or writ if
error from that court will lie ; that "it nsl*
ters but little how such question is raited.
whether by the pleadings, by objectiooi to
evidence, or by argument of counsel, pfcwridri
the question fs by some means fairlv bnw|to
into the record by a party entitled to rwim
it;" but "it must fairly appear from aa m-
ami nation of the record that a deet«iea if
such question is necessary, and also that tkt
question raised is fairly debatable f
V. People, 19 Colo. 187 ) ; and also that
it appears by the record that a
well have been disposed of without
ing a constitutional provision, a
of such provision is not so necessary to a 4^
termination of the case as to give this eesrt
jurisdiction to .review upon that grooi*
(Arapahoe County Comrs, v. [Jfc/alirf]
State Board of EqwUieation, 23 Cola 1S7):
and, again, that "unless a constitBtioaal
question is fairly debatable, and has bea
properly raised, and is necessary to ihs 4^-
termination of the particular controfvriy,
appellate jurisdiction upon that grooad dM
not exist" Madden v. Day, 24 Cola 411
This record discloses that defendaat ir
sisted throughout the trial that the acts «f
Congress relied on by plaintiffs were
stitutional if construed as authorisinr tte
particular regulations issued by the Sscrt-
tary.
When plaintiffs offered the rules aad rM*
lations in evidence, which they ooatendid »
fendant had violated, d^endaat *obM<4 t^u
their admission on the two grounds uat ttaf
were not authorised by the acts of
and that, if they were, such acts
constitutional. The objection was
and defendant excepted.
The regulations having been introdwsl h
evidence, plaintiffs called as a witnest^saear
others, a special agent of the DepartaMsttf
Agriculture, who was questiooea ta m^^
of their violation, to which delendaal «^
jected and excepted on the same |ieM<i
At the conclusion of plaintiffs' case, s w^
tion for nonsuit was made by defendaat tks
unconstitutionality of the acta under vttfA
the regulations were made beiaf sffsi^
urged, and an exception taken to the ' *
of the motion.
The trial then proceeded, and, at iti
defendant requested the court to firt ikii
instruction : "The court instnict* tfce jwy
178 W.1.
180&
Hbhbibtta Mining & IL Co. t. Gabdneb.
121-128
tkit the act of Congress and the rules and
regaktions made under the same which the
pnintiffs all^ to have been violated, are
not authorized by the Constitution of the
United States, and are not valid subsisting
laws or rules and regulations with which
the defendant is bound to comply, and any
violation of the same would not> of itself,
be an act' of negligence, and you are not to
consider a violation of the same as an act
of negligence in itself in arriving at a verdict
in tlus case."
This instruction was objected to and was
not given, though no exception appears to
have been thereup^on preserved.
On behalf of plaintiffs the court was asked
to instruct the jury as follows :
"If the jury are satisfied from the evidence
tliat the defendant company failed to com-
ply with paragraph two of the rules and reg-
ulations of the United States Department of
Agricultiire of April 23, 1891, and that the
daendant company did not put fts cattle in
pens or on trails or ranees that were to be
occupied or crossed by the plaintiffs' cattle
foing to eastern markets before December,
891, so that these two classes should not
come in contact, then that constitutes neffU-
genoe and want of reasonable osre on the
part of the defendant, and you need not look
to any other evidence to find that the defend-
tt]tQt did *not use reasonable care in this case,
and that the defendant was guilt} of negli-
gence."
This was refused by the court and plain-
tiffs excepted. But the court charffed the
jury that the rule promulgated by tne Sec-
T^tkTj of Agriculture ''woiud have the effect
to give to this defendant notice that the
United States authorities having in charge
tlie animal industries, so far as the govern-
ment of the United States may control it,
were oi the opinion that it was unsafe to
ship cattle from Kimble oounty at the pe-
riod of the year into Colorado and srazethem
npoE lands that were being occupi^ by other
cattle intended for the eastern market or to
allow them to commingle with them." To
this modification of the instruction requested
plaintiffs saved no specific exception.
After the affirmance of the judgment by
the court of appeals, plaintiffs Al^ a peti-
tion for a rehearing, tne eighth specification
of which was that —
'This court erred in holding and deciding
that the rules and regulations promulgated
by the Secretary of Agriculture on April 23,
1891, as shown by the record herein, were not
applicable to the herd of cattle which the de-
fendant in error imported into Colorado in
June, 1801, as shown by the re^rd herein,
for the reason, as this court held, that after
•aid cattle were domiciled in Colorado their
management must be regulated by the state
laws, and not by the act of Congress, and
that the disposition of said cattle afterwards
was not within the scope of Federal author-
ity."
It thus appears that if the trial court and
the court of appeals had been of opinion that
the Secretary's rules and regulations were
within the terms of the authority conferred
by the statutes, and that noncompliance
173 V. 8.
therewith would have constituted negligence
per 86, those courts would have been neces-
sarily compelled to pass upon the constitu-
tionaJity of the acts, which question was
snarply presented by defendant. And it is
also obvioiis that if the supreme court had
been applied to and ^ranted a writ of error,
and that court had (uffered with the conclu-
sions of the court of appeals, arrived at aoar(
from constitutional oblections, the validity
of the acts and regulations would have been
considered.
*The court of appeals seems to have been of [ItMl
opinion that after the cattle arrived in Col-
orado, Cong^ress had no power to regulate
their disposition and hence that the regular
tions were not oinding. And the question
of power involved the construction of a pro-
vision of the Constitution of the Umted
States. At the same time its judgment may
fairly be said to have rested on the view thak
the statutes did not assert the authority of
the United States, but conceded that of the
state, in this regard; and that the regula-
tions were not within the terms of the stat-
utes. But, if the case had reacned the su-
preme court, that tribunal might have ruled
that the judgment could not he sustained on
these groun<k, and then have considered the
^ave constitutional question thereupon aris-
ing.
And although the supreme court might
have applied uie rule that where a judgment
rests on grounds not involving a constitu-
tional question it will not interfere, we can-
not assume that that court would not have
taken jurisdiction, since it has not so decided
in this case, nor had any opportimity to do
so.
We must decline to hold that it affirma-
tively appears from the record tliat a deci-
sion coma not have been had in the highest
court of the state, and, this beine so, the writ
of error cannot be sustained. Piihir v. Per*
kins, 122 U. S. 522 [30: 1192].
Writ of error diamiaaed.
HENRIETTA MINING k MIUilNa COM-
PANY, AppU
V.
JAMES I. GARDNER.
(See S. C Reporter's ed. 128-180.)
Arizona law (u to aiiaohmefii — time of
iaauing attachment — conatruotion of atat*
ute.
1. The rlgbt to Issue an attachment "at the
commencement 6t the salt, or at any time
during Its progress," as given by Arts. Rev.
Stat. 188T, tit 4, chap. 1. 1 42, Is taken away
by the provision of tbe act of Marcb' 6, 1801,
antborlzlng attacbment at tbe issuance of
summons, or at any time afterward.
2. An attacbment issued before tbe issuance of
a summons is void under Arts. Rev. Stat.
1887, 1 40, as amended by tbe act of Marcb 0,
1891, allowing attacbment *'at tbe time of
Issuing tbe summons, or at any time after-
ward."
687
124-126
SupiuEHB Court of the United States.
Oct. Tm,
S. A statute taken from another state will be
presumed to be taken witb tbe meaning it
had tliere.
[No. 140.]
Atgued January 16, 1899. Decided Febru-
ary 20, 1899.
ON APPEAL from a judgment of the Su-
preme Ck)urt of the Territorjr of Arizona
affirming a judgment of the District Court
of the Fourth Judicial District in and for
Yavapai County, in said Territory', in favor
of James I. Gardner, appellee, against the
Henrietta Mining & Milling Company, in an
action in wHich an attachment was issued
and property sold upon the judgment. Re-
vered, and cause remanded for further pro-
ceedings.
The facts are stated in the opinion.
Messrs. Frank Aabnry JTohnson and
William H. Barnes for appellant.
Messrs. S. M. Stookalaser and George C.
Heard for appellee.
[124] *Mr. Justice MoKenna delivered the
opinion of the court:
This is an appeal from a judgment of the
supreme court of the territory of Arizona,
affirming a judgment of the district court of
the fourth judicial district in and for Yava-
pai county, for $12,332.08 in favor of appel-
lee and against appellant, who was plaintiff
in error below. The action was upon an
open account and a large number of as-
signed accounts. An attachment was sued
out and the mines and mining property .of
appellant company were seized. Judgment
was rendered by default, and the property
attached ordered sold.
The judgment is attacked on two grounds :
(1) That there was no personal service on
appellant; (2) that the attachment was
void because the writ was issued before the
issuance of summons.
It is conceded that the appellant is an Illi-
nois corporation, and that uiere was no per-
sonal service upon it. Was the attachment
issued in accordance with the statutes of Ari-
zona? If it was not, the judgment must be
reversed. Pennoyer v. Ifeff, ^5 U. S. 714
[24:565].
The record shows that the complaint was
filed December 4, 1894 ; that on the 24th of
that month affidavit and bond for attach-
ment were filed and the writ was issued.
The return shows the seizure of the proper-
ty on the 26th of December, the day sum-
mons was issued.
[1S5] *The Revised Statutes of Arizona of 1887,
chapter 1 of title 4, provided for attachments
and garnishments as follows:
"40 (Sec. 1). The judges and clerks of
the district courts and justices of the peace
may issue writs of original attachment re-
turnable to their respective courts, upon the
plaintiff, his agent, or attorney, making an
affidavit in writing, stating one or more of
the following grounds:
"1. That the defendant is justly indebted
to the plaintiff, and the amount of the de-
mand; and,
'*2. That the defendant is not a resident
«88
of the territory, or is a foreign co;
or is acting as such; or,
"3. That he is about to remove
ly cut of the territory, and has 'refused t»
pay or secure the debt due the plaintiff: or,
**A. That he secretes himself, so that tkt
ordinary process of law cannot be serred oa
him; or,
"5. That he has secreted his property, im
the purpose of defrauding his creditorB; or,
"6. Tnat he is about to secrete his proper-
ty for the purpose of defrauding I is cr«ii^
ors; or,
"7. That he is about to remove his prop-
erty out of the territory, without leiriii^
sufficient remaining for the payment of his
debts; or,
"8. That he is about to remove his prqwr-
ty, 01 a part thereof, out of the county Th««
the suit is brought, with intent Xm 'delTmod
his creditors; or,
"9. That he has disposed of his propertj.
in whole or in part, with intent to defnad
his creditors; or,
"10. That he is about to disp->«« of ia
property with intent to defraud hi5 crvdh*
ors; or,
"11. That he is about to convert hi* prop-
erty, or a part thereof, into money, for 0»
purpose of placing it beyond the reach uf h>
creditors; or,
*'12. That the debt is doc for property ob-
tained under false pretenses.
"41 (Sec. 2). The affidavit shall further
stete:
"1. That the attachment is not sntd ott
for the purpose of injuring or harassing Ute
defendant; and,
*"2. That the plaintiff wOl probably \ff^\Vi
his debt unless such attachment is issoM.
<'42 (Sec. 3). No such attachment thii:
issue until the suit has been duly institntid
but it may be issued in a proper case eitker
at the commencement of tne suit or at uy
time during ite progress.
"43 (Sec. 4). The writ of attac)»fft
above provided for may issue, althoofh t^
plaintiff's debt or demand be not doe, ud tkt
same proceeding shall be had thereon u it
other cases, except that no final jod^ant
shall be rendered against the defendant sn-
til such debt or demand shall become im'
Paragraph 649 provides that •*all cml
suite in courte of record shall be comnctdd
by complaint filed in the office of the clerk f/
such court." Therefore, if parafrap^ ^
(section 3) was in force at tbe tine tk
writ of attachment was issued, to wit, « i^
24th of December, 1894, there is no do«M d
the validity of the vn-it But it U eoati^
that the paragraph was not in force, bsci—
it is claimed, it nad been repealed by aa act
passed by the legislative aaserobly of tte ^
ritory, approved March 6, 1891.
This act is entitled "An Act to
Chapter 1, Title 4. Entitled V
and Gafnishmente.* " Revised Statrt* «
Arizona, 1887. Section 1 is as follow*:
"Sec. 1. Paragraph 40. being »e«ti« >•
chapter 1. title 4. Revised Statute of kv^
na, 1887, is hereby amended «o aa to r»i •
follows :
"Th^ plaintiff at the time of i»«iin» tf
Hbnristta MiNiMe & M. Co. v. Gabdkbb.
126-129
lummonsy or at any time afterward, may
hftTB the property of the defendant attached,
•8 security lor the satisfaction of any judg-
ment that may be recovered, unless the de-
fendant gives security to pay such judgment
ts in t£]« act provided in the following
cases:
"First. In an action upon a contract, ex-
press or implied, for the direct payment of
mone^ where the contract is made or is pay-
able m this territory, and is not secured by
any mortgage or lien upon real or personal
property, or any pledge of personal property.
"Second. When any suit be pending for
STjdamages, and the 'defendant is about to dis-
pose of or remove his property beyond the
jurisdiction of the court in which the action
IS pending, for the purpose of defeating the
oollection of the judgment.
"Third. In an action upon a contract, ex-
press or implied, against the defendant not
residing in this territory or a foreign cor-
poration doing business m this territory.
"Sec. 2. Paragraph 41, being section 2,
chapter 1, title 4, Revised Statutes of Arizo-
na, 1887, is hereby amended so as to read as
follows :
"Section 2. The clerk of the court or
justice of the peace must issue the writ of
attachment upon receiving an affidavit by or
on behalf of plaintiff, showing —
"First. That the defendant is indebted to
the plaintiff upon a contract, express or
implied, for the direct payment oi money,
and that such contract was made or is pay-
able in this territory, and that the payment
of the same has not been secured as provided
in section 1 of this act, and shall specify the
character of the indebtedness, that the same
is due to plaintiff over and above all legal
set-offs or counterclaims, and that demand
has been made for the payment of the
amount due ; or,
"Second. That the defendant is indebted to
the plaintiff, stating the amount and char-
acter of the debt : that the same is due over
and above all legal set-offs and counter-
claims; and that the defendant is a nonres-
ident of this territory or is a foreign corpora-
tion doing business m this territory; or,
"Third. That an action is pending between
the parties, and that defendant is about to
remove his property beyond the jurisdiction
of the court to avoid payment of the judg-
ment; and,
"Fourth. That the attachment is not
sought for wrongful or malicious purpose,
and the action is not prosecuted to hinder or
delay any creditor of the defendants
"Sec. 3. Paragraph 43, being section 4,
diapter 1, title 4, Revised Statutes of Ari-
zona, 1887, is hereby repealed.
"Sec. 4. Paragraph 47, being section 8,
chapter 1, title 4, Revised Statutes of Ari-
S8]zona, 1887, is hereby amended by •striking
out ihe word 'original' where it occurs in the
first line of said section.
"Sec. 5. Paragraph 50, being section 11,
diapter 1, title 4, Revised Statutes of Ari-
aona, 1887, is hereby amended by striking
out the word 'repleviable' where it occurs in
line five of said section.
"Sec 6. All acts and parts of acts in con-
178 U. S.
flict with this act are hereby repealed, and
this act shall take effect and be in force from
and after its passage.
"Approved March 6, 1891."
Tlie amending act is more than a revision
of the provisions of the statute of 1887 ; it ii
a substitute for them. It, however, does not
expressly repeal par^nraph 42. Does it do
so by implication? Expressing the rule of
repeal by implication, Mr. Justice Strone, in
Henderson's Tobacco, 11 Wall. 657 [20:
288], said:
"Statutes are indeed sometimes held to be
repealed by subsequent enactments, though
the latter contain no repealing clauses. This
is always the rule when the provisions of the
latter acts are repugnant to those of the
fonner, so far as they are repu^ant. The
enactment of provisions inconsistent with
those previously existing manifests a clear
intent to abolish the old law. In United
States V. Tynen, 11 Wall. 92 [20: 154], it
was said by Mr. Justice Field, that 'when
there are two acts upon the same subject, the
rule is to give effect to both, if possible. But
if the two are repugnant in any of their pro-
visions the latter act, without any repealing
clause, operates to the extent of the repug-
nancy as a repeal of the first and even where
two acts are not in express terms repugnant^
yet, if the latter act covers the whole subject
of the first, and embraces new provisions,
plainly showing that it was intended as a
substitute for the first act, it will operate
as a repeal of that act.' For this several au-
thorities were cited, some of which have been
cited on the present argument. This is un-
doubtedly, a sound exposition of the law.
But it must be observed that the doctrine as-
serts no more than that the former statute
is impliedly repealed, so far as the provisions
of the subsequent statute are repugnant to
it, or so far as the latter statute, making
new 'provisions, is plainly intended as a suf [129]
stitute for it. Where the powers or direc-
tions under several acts are such as may
well subsist together, an implication of re-
peal cannot be allowed."
May paragraph 40, as amended, subsist
with paragraph 42? Certainly not, if the
former prescribes the time when the writ of
attachment may be issued, and not the time
when it may be levied. Its identical lan-
guage was section 120 of the practice act of
California, and was continued as 537 of the
Code of Civil Procedure of said state, and
was such at the time the act of 1891 of Ari-
zona was passed. When part of the practice
act, it was construed by the supreme court
of California in the case of Loio v. Henry, 9
Cal. 538. Mr. Justice Burnett, speaking for
the court, said:
"The twenty-second section of the practice
act provides that a suit shall be commenced
by tne filing of a complaint and the issuance
oi a summons; and the one hundred and
twentieth section allows the plaintiff, 'at the
time of issuing the summons, or at any time
afterwards,' to have the property of the de-
fendants attached. These provisions must
be strictly followed, and the attachment, if
issued before the summons, is a nullity. Esf
parte Cohen, 6 Cal. 318. The issuance of th«
639
12»-181
SUPRBMB COUBT OF THE UlTITBD StATBS,
Oct.
flummoiiB afterwards cannot cure that which
was void from the beginning."
Counsel for appellee, however, urges that
this decision is explained by the fact that
by the California laws a suit was commenced
by filing a complaint and the issuance of a
summons, and that the decision of the court
was that the attachment having been issued
before summons was issued, it was issued be-
fore the commencement of suit, and hence
was void on that ground. Wo think not.
'^o have the property of the defendant at-
tached" was construed to mean the issur
ance of the attachment, and it was held to be
a nullity if done before the summons was is-
sued. If, however, ambiguity could arise
under the practice act and the Code of Civil
Procedure as originally passed, it could not
arise after the Code was amended in 1874,
and as it existed at the time of the Arizona
enactment of 1891. At that time the issu-
|180]ance of summons *was not the commence-
ment of the action. The amendment of 1874
(Amendment of the Codes 1873-^, 296) pro-
vided that ''civil actions in the courts of the
state are commenced by filing a complaint,"
(section 405) and summons may be issued
at any time within one year thereafter ( sec-
tion 406). Section -537, which provided for
the issuance of an attachment and which
was adopted by the Arizona statute, was not
ohanged. Notwithstanding the amendment
of 1874, we have been citecTto no case revers-
ing or modifying Low v. Benry, nor is it
claimed that the practice did not continue in
accordance with the ruling in that case. In-
deed, how could there be change? The pro-
visions of the Code did not need further in-
terpretation. The procedure was dearlj de-
fined. An action was commenced by filing a
complaint. Within a year summons might
be issued, and when issued the plaintiff
miffht have the property of the defendant at-
tached, that is, have an attachment issued
The language of paragraph 40, as amended
in 1891, having been taken from the Califor-
nia Ck>de, it is presumed that it was taken
with the meaning it had there, and hence we
hold it worked a repeal of paragraph 42 of
the Revised Statutes of Arizona of 1887;
and the judgment of the Supreme Court of
the Territory is reversed and the cause re-
manded for further proceedings in accord-
ance with this opinion.
{181]T. B. MEKRILL. as Receiver of the First
National Bank of Palatka, Florida,
Appt.,
f>.
NATIONAL BANK OF JACnCSONVILLE.
T. B. MERRIT.L, as Receiver of the First
National Bank of Palatka, Florida,
Appt,,
V,
NATIONAL BANK OF JACKSONVILLB.
(See 8. C. Reporter's ed. 181-179.)
Decree, when final — right to app*>al — juriS'
diction of equity — secured creditor of tn-
640
solvent national hank — hasis of
— bankruptcy rule.
1. A decree of the drcult court of appeals iv-
versing a decree of the drcult eovt, wttft
specific directions to enter a decree la ee-
cordance witb the mandate. Is flaal tm tkt
porposee of an appeal to this eoort.
2. The entry of a decree by the drcult entt
in conformity with a mandate ot the draft
coort of appeals, after reversal, with spedir
directions, does not cut oif the right to sa ap-
peal not yet proeecated from the decree of iv-
versaL
8. A controversy as to the hasis oa whl^ dM-
dends should be dedared by a receiver of i
national bank, which Invdvea the cnfovn-
ment of the administration of the tiwt li
within the jurisdiction of eqolty.
4. A secured creditor of an Inaolvcat ■■till
bank is not estopped from claiming the rigbt
to prove his full claim, by temporarily si^
mlttlng to an adverse ruling of the
troller. when other creditors have aot
harmed thereby.
6. A secured creditor of an laaolvcat
bank may prove and recdve divMcnds ip«
the face of his dalm as It stood at the tlat
of the declaration of Insolvency, witheat
iting either his collaterals or coll act Joai i
therefrom after such dedaratioa.
always to the proviso that divMcnds Bait
cease when from them and from coQatvah
realised the claim has been paid la fait
6. The bankruptcy rule which reqalfw thi
holder of collateral security to exhaait K
and credit the proceeda on hla data, or •!■
to surrender It, before he can prove his daha
Is not adopted for national banks by U. t
Rev. Stat. | 5236. providing for a rafiiWi
dividend on dalma proved or adJadtalaA.
[Nos. 54 and 55^
Argued October 20, 21, 189B. Deddei M-
ruary 20, 1899,
APPEALS from decrees of the Uistai
States Circuit Court of Appeals fe*- tke
Fifth Circuit in a suit bv the Natioaal Buk
of Jacksonville against T. B. Merrill, as re-
ceiver of the First National Bank of Palatka
Florida, one decree reversing the decree «f
the Circuit Court of the United States, far
the Southern District of Florida, aad n^
manding the case with direetions to eelff
a decree that the Jadcsonville Baak wif
entitled to prove its daims to the catiif
amount of the indebtedness to it of the Ps*
latka Bank, etc.; and the other decree dir
missing an appeal taken by the reecinr of
the PaJatka Bank. Decree of the Cnrrvl
Court of Appeals, first mentioned. uMrmtd:
and decree of the Circuit Court entered is
pursuance of the mandate of the Govt ^
Apjpeals, also affirmed.
See same case below, 41 U. S. Apfi 90,
and 645.
Statement by Mr. Chief Ju^ice
On the 17th dav of July. a. n. 1»1. tfcs
First National Bank of Palatka. Floriii. s
banking association inoorporited uader tie
laws of the United SUtef«. having it> H^
of business at Palatka. Florida. faiM am
closed its doors. Subsequently T. B. Ifa^
rill was duly appointed receiver of the tarf
1
Ma
MmiRnJi Y. National Bank of Jacksonvillb.
181-184
bj the Comptroller of the Gurrenny, and en-
tared upon the discharge of hi9 duties. At
the time of the failure of the bank it was
indebted to the National Bank of Jadcson-
Tille in the sum of $6,010.47, on sundry
drafts, which indebtedness was unsecured;
and also in the sum of $10,093.34, beins
$10,000, and interest, for money borrowed
June 6, 1891, evidenced by a certificate of
deposit, which was secured by simdry notes
belonging to the First National B.ank of Pa^
latka, attached to the certificate as collat-
eral. These notes aggregated $10,89(i.22,
the lareest being a note of A. L. Hart for
iy$5Ji50&. The ^National Bank of Jackson-
ville proved its claim upon the unsecured
drafts for $6,010.47, and as to this there was
no controversy. It also offered to prove its
claim for $10,093.34 but the receiver would
not permit it to do this, and, under the rul-
ing of the Comptroller of the Currency, it
was ordered first to exliaust the collaterals
given to secure the certificate of deposit, and
Uien to prpve for the balance due after ap-
plying the proceeds of the collaterals in part
payment.
The Jacksonville Bank collected all the
notes excepting that of A. L. Hart, obtained
a judgment on the latter, which it assigned
and transferred to the receiver applied the
f proceeds of the collaterals which it had col-
ected to its claim on the certificate, and
proved for the balance due thereon, being the
sum of $4,496.44. On December 1 1892, a
dividend of $1,573.75 was paid on the claim
as thus proved and on May 17, 1S93, a sec-
ond dividend of $449.64 was paid.
On the 11th of September, 1894, the Jack-
sonville Bank filed its bill of complaint in
the Circuit Court of the United States for
the Southern D^trict of Florida against
Merrill as receiver, which set forth the fore-
going^ facts, oomplained of the action of the
receiver in not permitting proof for the full
amount of the certificate of deposit, and al-
leged that it "gave due notice that it would
demand a pro rata dividend upon the whole
amount due your orator, without deducting
the amount collected on collateral security,
—to wit, that it would demand a pro rata
dividend upon $16,103.81, and interest there-
on from the 17th day of July, A. d. 1891."
The prayer of the bill was, Hmong other
things, for a pro rata distribution on the en-
tire amount of the indebtedness.
The defendant demurred to the bill, and,
the demurrer having been overruled, an-
swered, denying ''that the complainant gave
due notice that it would demand a pro rata
dividend upon tho whole amount due to it
without d^ucUng the amount collected on
collatera] security;" and averring, to the
contrary, that "the complainant accepted
the said ruling of the said Comptroller with-
out demur, and accepted from the said Comp-
troller, through this defendant, without pro-
testing notice of any kind, the checks of the
^l^dd Comptroller *inpaymentof the dividends
mentioned in the bill, and that it was not
until the 15th of March, 1894, that the com-
plainant gave notice of any kind tliat it dis-
sented from the said ruling of the Comptrol-
173 1^. 8. U. 8.. Boos 43. 4
ler and would demand payment upon a dif-
ferent basis."
Sundry exceptions were taken to the an-
swer, which were overruled, and the cause
was set down for final hearing on bill and
answer.
The circuit court entered its decree, Janu-
ary 29, 1896, that complainant was entitled
to receive dividends on the whole face of th«
indebtedness due July 17, 1891, less the divi*
dends actually i>aid to it; that the receiver
declare the dividend on the basis of the
whole daim, and pay it out of any assets
which were in his hands March 15, 1894;
and that he render an accoimt.
From this decree the receiver prosecuted
an appeal to the circuit court of appeals for
the nfth circuit. That court, differing from
the circuit court as to the form of its decreet
reversed it and remanded the cause, with di-
rections to enter a decree that the Jackson-
ville Bank was entitled to prove its claims to
the entire amount of the indebteilness, and
to the payment thereon of the ?ame divi-
dends as had been paid on other indebtedness
of the Palatka Bsjik, with interest on such
dividends from the date of the declaration
thereof, less a credit of the sums which had
been paid as dividends on the part of the
claim theretofore allowed, provided the divi-
dends theretofore paid and thereafter to be
paid on the sum of $10,093.34, together with
the amounts theretofore and thereafter re-
ceived on the collaterals securing that in-
debtedness, should not exceed one hundred
cents on the dollar of the principal and inter-
est of said debt; that the receiver recognize
the Jacksonville Bank as creditor M the Pa^
latka Bank in said sum of $10,093.34 as of
July 17, 1891, and pay dividends as afore-
said thereon or certify the same ta the Comp-
troller of the Currency, to be paid in due
course of administration; and that the Jack- .
sonville Bank receive, before further pay-
ment to other creditors, its due pro^rtion
of the dividends as thus declared, with in-
terest. 41 U. S. App. 529. From that de-
cree, *after the mandate of the circuit court[184]
of appeals had been sent down to the circuit
court, and proceedings had thereunder, an
appeal was taken and perfected to this court,
and is numbered 54 of' this term.
The decree was entered by the eireuit
court in pursuance of the mandate of the
circuit court of appeals, July 27, 1896, and
the receiver prayed an appeal tlierefrom to
the circuit court of appeus, which was by
that court dismissed on motion of the Jack-
sonville Bank. 41 U. S. App. «]45. From
this decree of dismissal, an appeal was al-
lowed and perfected to this court, and is
numbered 55 of this term.
These appeals were argued together.
Messrs, Edward Winalow False and
Francis F. Oldham for appellant.
Messrs, William Wortl&lnston, George
H, Yeaman, and /. O, Cooper for appellee.
•Mr. Chief Justice FvUer delivered tftie[18^
opinion of the court:
The circuit court of appeals reversed the
decree of the circuit court, with specifif^ di-
1 641
(
iai-187
BuPBEMx Court of thb United SfATsa
Oct.
rectiom. Nothing rtoained for the circuit
court to do except to enter a decree in ac-
cordance with the mandate, and, for the pur-
poses of an appeal to this court, the decree
of the circuit court of appeals was finaL The
mandate went down and the circuit court
entered 'its decree in strict conformity there-
with before the appeal in No. 54 was prose-
cuted to this court This promptness of ac-
tion did not, however, cut off that appeal,
and any difficulty in our dealinff witn t^e
cause in the circuit court was oDviated by
the second appeal, which brings before us in
No. 55 the record subsequent to the first de-
cree of the circuit court of appeals.
It is contended that the bill should have
been dismissed because of adequate remedy
|185]at law, and on the ground of *laches and es-
toppel. As the controversy involved the
question on what basis dividends should have
been declared, and therein the enforcement
of the administration of the trust in accord-
ance with law, we have no doubt of the ju-
risdiction in equity.
Nor was the lapse of time such as to raise
any presumption of laches, nor could an es-
toppel properly be held to have arisen. Less
than two years had elapsed from the pay-
ment of the first dividend to the filing of the
bill, and the other creditors of the insolvent
bank had not been harmed by the temporary
submission of complainant to the ruHng of
the Comptroller. The decree affected only
assets on hand or such as might be subse-
quently discovered; and if the other credit-
ors had no riehts superior to that of com-
plainant, the^ lost notning by the reduction
of their dividends, if any, afterwards de-
clared to be paid out of such assets.
The inquiry on the merits is, generally
speaking, whether a secured creditor of an
insolvent national bank may prove and re-
ceive dividends upon the face of his claim as
it stood at the time of the declaration of in-
solvency, without crediting either his collat-
erals or collections made therefrom after
such declaration, subject always to the pro-
viso that dividends must cease when from
them and from collaterals realized the claim
has been paid in full.
Counsel agree that four different rules
have been applied in the distribution of in-
solvent estates, and state them as follovs :
"Rule 1. The creditor desiring to partici-
pate in the fund is required first to exhaust
his security and credit the proceeds on his
claim, or to credit its value upon his claim
and prove for the balance, it being optional
with him to sun*ender his security and prove
for his full claim.
"Rule 2. The creditor can prove for the
full amount, but shall receive dividends only
on the amount due him at the time of dis-
tribution of the fund ; that is, he is required
to credit on his claim, as proved, all sums re-
ceived from his security, and may receive
dividends only on the balance due him.
1186] •"Rule 3. The creditor shall be allowed to
prove for, and receive dividends upon, the
aunount due hira at the time of proving or
sending in his claim to the official liquidator,
being required to credit as payments all the
642
sums received from his security prior tka»>
to.
"Rule 4. The creditor can prore for, aW
receive dividends upon, the rail amooBt of
his daim, regardless of any sums rtetitti
from his oollata*al after the transfer of tkt
assets from the debtor in insolvencT. pro>
vided that he shall not receive more thaa tht
full amount due him.'*
The circuit court and the circuit court of
appeals held the fourth rule i^plieahk, aad
decreed accordingly.
This was in accordance with the dednoa
of the circuit court of appeals for the nxtk
circuit, in Chemicdl National Bank v. Arm-^
strong, 16 U. S. App. 465, Mr. Justice Bron,
Circuit Judges Tart and Lurton. compouig
the court. The opinion was delirend by
Judge Taft, and aiscusses the qoestioa oa
principle with a full citation of the avthor-
ities. We concur with that court in the prep-
osition that assets of an insolvent debtor art
held under insolvency proceedings in trvst
for the benefit of all lus creditors^ and that a
creditor, on proof of his daim. aoqtiiro a
vested interest in the trust fund; ^d, tkk
being so, that the second rule before mn-
Uon^ must be rejected, as it is based oa tke
denial, in effect, of a vested interest ia tW
trust fund, and concedes to the creditor vm-
ply a right to share in the distribotJoet
made from that fund according to tba
amount which n^ay then be dxie him. reqvr-
ing a readjustment of the basis of distrfte-
tion at the time of dedaring every diridfal,
and treating, erroneously as we think, tkt
claim of the creditor to share in the aatts
of the debtor, and his debt against the M4^
or, as if they were one and the same tUv.
The third and fourth rules concur ia hm-
ing that the creditor's right to dividcadi ii
to be determined by the amount due hia at
the time his interest in the assets
vested, and is not subject to
change, but they differ as to the point ol
when this occurs.
In Kellock'a Cast, L. R. 3 Ch. 769, H m
hdd that *the creditor's interest in the w»{
eral fund to be distributed vested at the ott
of presenting or proving his claim ; and tkii
rule has been followed m many jurisdictioM
where statutory provisions have beea eoa-
strued to require an affirmative dectioa It
become a beneficiary thereunder. For i>-
stance, the cases in Illinois constmiDf tte
assignment act of that state, whidi ar« «efl
considered and full to the point, hold tkat
the interest of each creditor in the aasi|rM4
estate "only vests in him when he 'jf**^
his assent to the assignment by filiaf ^
claim with the assignee." Levy v. rfc»«*»
tfaiumal Bank, 158 111. 88 [30 L. R. A S3l\
Fumess T. XJnUm National Bank, 147 ft
670.
On the other hand, the suprcne eovt «
Pennsylvania in itUler^t Appial, 35 Pft. HU
and many subsequent cases, has WM, Mfl^
sarOy in view of the statutes of Pc>*>7^^'*^
r^:uJatiiig the matter, that the intMt ««**
at the time of the transfer of the mm/^ ^
trust. In that case the debtor tneiti^*
general assignment for the bendit of m^^
ors. Subsequently the asaignor bteaat •*
17» IT ^
im.
MBRBnj* Y. National Bank of Jagksonyillb.
187-140
titled to a legacy which was attached hy a
creditor, who realized therefrom $2,402.87.
It was held that such creditor was, notwith-
itandiDff, entitled to a dividend out of the
assigned estate on the full amount of his
daim at tiie time of the execution of the as-
signment. Mr. Justice Strong, then a mem-
ber of the state tribunal, said : "By the deed
of assiynnient the equitable ownership of all
the assigned property passed to the creditors.
They became joint proprietors, and each
crecutor owned such a proportional part of
the whole as the debt due to him was of the
aggregate of the debts. The extent of his
interest was fixed by the deed of trust. It
was, indeed, only eauitable ; but whatever it
WB9, he took it under the deed, and it was
only as a part owner that he had any stand-
ing in court when the distribution came to
be made. ... It amounts to very little
to argue that Miller's recovery of tne $2,-
402.87 operated with precisely the same ef-
fect as if a volimtary payment had been
made by the assignor after his assignment;
that is, that it extinguished the debt to the
amount recovered. No doubt it did, but it
is not as a creditor that he is entitled to a
t8]distributive share of *the trust fund. His
rights are those of an owner by virtue of the
dMd of assi^ment. The amount of the debt
due to him is important only so far as it de-
termines the extent of his ownership. The
redaeti<m of that debt, therefore, after the
creation of the trust and after his ownership
had become vested, it would seem, must bie
immaterial."
Differences in the language of voluntary
assignments and of statutory provisions
naturally lead to particular differences in
decision, but the principle on which the third
and fourth rules rest is the same. In other
words, those rules hold, together with the
first rule, that the creditor^ rieht to divi-
dends is based on the amount of his claims
at the time his interest in the assets vests by
the statute, or deed of trust, or rule of law,
under which they are to be administered.
The first rule is commonly known as the
bankruptcy rule, because enforced by the
bankruptcy courts in the exercise of their
peculiar jurisdiction, under the bankruptcy
acts, over the property of the bankrupt, in
virtue of which creditors holding mor^^ages
or liens thereon might be required to r^-
ize on their securities, to permit them to be
sold, to take them on valuation, or to sui len-
der them altogether, as a condition of prov-
ingagainst the general assets.
The fourth rule is that ordinarily laid
down by the chancery courts, to the effect
that, as the trust created by the transfi^r of
the assets 1^ operation of law or other-
wise is a trust for all creditors, no creditor
can equitably be compelled to surrender any
other vested right he has in the assets of
his debtor in order to obtain his vested ri^ht
under the trust. It is true that, in equity,
a creditor having a lien upon two funds may
be reauired to exhaust one of them in aid
of ereoitors who can only resort to the other,
but this will not be done when it trenches
on the rights or operates to the prejudice of
the party entitled to the double fund. Story,
178 V. 8.
£q. Jur. (13th ed.) S 633; JSe Bates, 118 lU.
624 [59 Am. Rep. 383]. And it is well es-
tablished that in marshalling assets, as re-
spects creditors, no part of his security can
be taken from a secured creditor until he it
completely satisfied. Leading Gases in
Equity, White & Tudor, vol. 2, pt 1, 4th
Am. ed. pp. 268, 322.
*In Greenwood v. Taylor, 1 Russ. k M. 185,[ia9]
Sir John Leach applied the bankruptcy rule
in the administration of a decedent s estate,
and remarked that the rule was "not found-
ed, as has been argued, upon the peculiar ju-
risdiction in bankruptcy, but rests upon the
general principles of a court of equity in the
administration of assets;" and referred to
the doctrine requiring a creditor havinc two
funds as security, one of which he snares
with others to resort to his sole security
first. But Greenwood v. Taylor was in effect
overruled by Lord Cottenham in Mason v.
Bogg, 2 Myl. & C. 443, 488, and expressly so
by the court of appeal in chancery in KeU
lock's Case; and the application of the bank-
ruptcy rule rejected.
In Kellock*s Case, Lord Justice W. Page
Wood, soon afterwards Lord Chancellor
HaUierly, said:
"Now, in the case of proceeding-s with ref-
erence to the administration of the estates
of deceased persons, Lord Gotteuham put
the point very clearly, and said: 'A mori>
gagef^ has a double security. He has a light
to proceed against both, and to make the best
he can of both. Why he should be deprived
of this right because the debtor dies, and
dies insolvent, it is not very easy to see.'
"Mr. De Gex, who argued this case very
ably, says that the whole case Is altered by
the insolvency. But where do we find sucn
a rule established, and on what principle
can such a rule be founded, as that where a
mortgagor is insolvent the contract between
him and his mortgagee is to be treated aa
altered in a way prejudicial to ttio mortga-
gee, and that the mortgagee is bound to real-
ize hie security before proceeding with his
personal demand?
"It was strongly pressed upon us, and the
argument succeeded before Sir J. Leach in
Greenwood v. Taylor, that the practice in
bankrupt(^ furnishes a precedent which
ought to be followed. But the answer to
that is, that this court is not to depart from
its own established practice, and vary the
nature of the contract between mortgagor
and mortgagee by analogy to a rule which
has been adopted by a court bavins a pecul-
iar jurisdiction, established for administer-
ing the property *of traders unable to meet[140]
their engagements, which property that
court found it proper and right to distrib-
ute in a particular manner, different from
the mode m which it would have been dealt
with in the court of chancery. . . . We
are asked to alter the contract between the
parties by depriving the secured creditor of
one of his remedies, namely, tlie right of
standing upon his securities until they are
redeem^."
And it was the established rule in England
prior to the judicature act, 38 & 39 Vict.
chap. 77. that in an administration suit a
' 643
14(>-148
SuPBBMB Court of thb Unitkd States.
Oct. To*.
mortgagee might prove his whule debt and
afterwards realize his security for the differ-
ence; and so as to creditors with security,
where a company was beins wound up under
the companies act of 1862. 1 Daniel, Ch.
Pr. 384; Re Withemaea Briobworka, L. R.
16 Ch. Div. 337.
Certainly the giving of collateral does not
operate of itself as a payment or satisfac-
tion, either of the debt or anv part of it, and
the debtor who has given collateral security
remains debtor, notwithstanding^ to the fuU
amount of Uie debt; and so in Lewis v.
United States, 92 U. S. 623 [23: 515], it was
ruled that ''it is a settled principle of equity
that a creditor holding collaterals is not
bound to apply theme before enforcing his di-
rect remedies against the debtor."
Doubtless the title to collaterals pledged
lor the security of a debt vests in the pledgee
so far as necessary to accomplish that pur-
pose, but the obligation to which the collat-
erals are subsidiary remains the same. The
creditor can sue, recover judgment, and col-
lect from the debtor's general property, and
apply the proceeds of the collateral to any
balance which may remain. Insolvency pro-
ceedings shift the creditor's remedy to the
interest in the assets. As between debtor
and creditor, mon^s received on collaterals
are applicable by way of payment; but as
under the equity rule the creditor'^ rights in
the trust fund are established when the fund
is created, collections subsequently made
from, or payments subsequently inads on,
collateral, cannot operate to change the rela-
tions between the creditor and hi^ co-credit-
ors in respect of their rights in the fund.
As Judge Taft points out, it is because of
[14X]the distinction ^between the right in person-
am and the right in rem that interest is only
added up to the date of insolvency, although,
after the claims as allowed are paid in full,
interest accruing may then be paid before
distribution to stockholders.
In short, the secured creditor is not to be
cut off from his right in the common fund
because he has taken security which his co-
creditors have not. Of course, he cannot go
beyond parent, and surplus a&sets, or so
much of his dividends as are unnccessaiy to
pay him, must be applied to the benefit of
the other creditors. And while the unsecured
creditors are entitled to be substituted as
far as possible to the rights of secured cred-
itors, ttie latter are entitled to retain their
aecurities until the indebtedness diie them is
eoctinguished.
The contractual relations between borrow-
er and lender, pledging collaterals, remain,
as is said by the New York court of appeals
in People v. Remington, 121 N. Y. 328 [8 L.
R. A. 458], "unchanged although insolvency
haa brought the general estate of the debtor
within the jurisdiotion of a court of equity
lor administration and settlement." The
creditor looks to the debtor to repay the
money borrowed, and to the collateral to ao-
eomplish this in whole or in part; and he
cannot be deprived either of what his debt-
or's general ability to pay may yield, or of
theparticular security he has taken.
We cannot concur in the view expressed
by Chief Justice Parker in Amory ▼.
CIS, 16 Mass. 308 (1820), that 'Hhe p««p«t7
pledged is in fact security for no more fd the
debt than its value will amount to ; and fm
all the rest the creditor relies upoa the p»-
sonal credit of his debtor, in the same ■■»•
ner he would for Uie whole if no eeesnty
were taken."
We think the collateral is seeuri^ for tks
whole debt and every part of it, and ii as
applicable to any balance that remains aflv
payment from other sources, as to the orif^
inal amount due; and that the aasumptiflB is
unreasonable that the creditor does not rriv
on the respoDsibili^ of his di^tor aoeordiif
to his promise.
The ruling in Amory v. Frarnds was ^
approved shortly *after it waa made, by thrill
supreme court of New Hampshire in Moms
V. RanUt, 2 N. H. 488 (1822), Woodbvry, J^
afterwards Mr. Justice Woodbuir of tkis
court, delivering the opinion, and is rejected
by the preponderance of deciaions in Hm
counti^, which sustain the oondnsioB that
a creditor with collateral is not on that ae-
count to be deprived of the right to profe Isr
his full claim against an insolvent estate
Many of the cases are referred to in Chmh
ical Nat. Bank v. Armstrong, and these sad
others given in the Encydc^edia of Law sad
Eo. 2d ed. vol. 3, p. 141.
JDoes the legislation in respect to the ai-
ministration of national banks require the
application of the bankruptcy rule? If aot*
we are of opinion that the equity rale «m
properly applied in this case.
By section 5234 of the Revised Statoln,
and section 1 of the act of June 30. 1871
chap. 156 (19 SUtatL.63),theComptrQikr
of the Currency is authorijoed to appoiat s
receiver to close up the affairs of a natioasl
banking association when it has failed I*
redeem its circulation notes when prewtsJ
for payment, or has been dissolved sad iti
charter forfeited, or has allowed a jndyst
to remain against it unpaid for thirty dsm,
or whenever the Comptroller shall havt W>
come satisfied of its insolvency after eia»
ining its affairs. Such receiver is to taka
possession of its effects, liquidate ha awiti,
and pay the money derived therefrom to the
Treasurer of the United States.
Section 5235 of the Revised Statutes in-
quires the Comptroller, after appointiajc mA
receiver, to give notice by newspaper sdrtr^
tisement for three consecutive months, "osH-
ing on all persons who may have diii
against such association to preset thi
same, and to make legal proof tnertof."
By section 5242, transfers of its pro^trtr
by a national banking association after tkt
commission of an act of insdlveiieT. or is coa-
templation thereof, to prevent distrihetioa
of its assets in the manner provided by tkt
chapter of which that section forms s part
or with a view to preferring anr creditor ci>
cept in payment of its circulating notss, sie
declared to be null and void. ^
*SecUon 5236 is as follows: (1^
"From time to time, after full pivtWoe
has first been made for refunding le tfte
United States any deficiency in iiiliMiiff
the notes of such association, the C6n<r4>
189S.
M^RMTT.T. Y. National Bank of Jaoksohyille.
1481-4(
ier ahmll make a ratable dividend of the
monev so paid over to him by such receiver
on all such claims as may have been proved
to his satisfaction, or adjudicated in a court
of competent jurisdiction, and, as the pro-
ceeds of the assets of such association are
paid over to him, shall make further divi-
dends on all claims previously proved or ad-
judicated; and the remainder of the pro-
ceeds, if any, shall be i>aid over to the share-
holders of such association, or their legal
representatives, in proportion to the stock
by them respectively held."
In Cook County , National Bank v. United
States, 107 U. S. 446 [27: 637], it was ruled
that the statute furnishes a complete code
for the distribution of the effects of an in-
solvent national bank; that its provisions
are not to be departed from; and that the
bankrupt law does not govern distribution
thereunder. The question now before us was
not treated as involved and was not decided,
but the case is in harmony with First Na-
tionalBank v. Colhy, 21 Wall. 609 [22:687],
and Scott v. Armstrong, 146 U. S. 499 [36:
1059], which proceed on the view that all
rights, legal or equitable, existing at the
time of the commission of the act of insolv-
ency which led to the appointment of the re-
ceiver, other than those created by prefer-
ence forbidden by section 6242, are pre-
served; and tiiat no additional right can
thereafter be created, either by voluntary or
inroluntary proceedings. The distribution is
to be "raJtable" on the claims as proved or ad-
judicated, that is, on one rule of proportion
applicable to all alike. In order to be "rat-
tme" the claims must manifestly be esti-
mated as of the same point of time, and that
date has been adjudged to be the date of the
declaration of insolvency. White v. Know,
111 U. S. 784 [28: 603]. In that case it ap-
peared that the Miners' National Bank had
been put in the hands of a receiver by the
Comptroller of the Currency, December 20,
1875. White presented a claim for $60,000,
which the Comptroller refused to allow.
White t^en brought suit to have his claim
tdiudicated, and on June 23, 1883, recovered
44]judgment for $104,523.72, being *the amount
of his daim with interest to the date of the
jndnnent. Meanwhile the Comptroller had
paid the other creditors ratable dividends,
aggregating sixty-five per cent of the
amounts due them, respectively, as of the
date when the bank failed. When White's
claim was adjudicated, the Comptroller cal-
culated the amount due him according to
the jud^ent as of the date of the failure,
and paid him sixty-five per cent on that
amoimt White admitted that he had re-
ceived all that was due him on the basis of
distribution assumed by the Comptroller, but
claimed that he was entitled to have his divi-
doids calculated on the face of the judg-
nient, whidi would ffive him several thousand
ddlm more than ne had received, and he
applied for a mtodamus to compel the pay-
ment to him of the additional sum. The
writ was refused hy the court below, and its
ludgment was affirmed. Mr. Chief Justice
Waite, speaking for the court, said : "Divi-
dends are to be ptdd to all creditors, ratably,
ns XT. 8.
that is to say, proportionally. To be pro-
portionate they must be made by some uni-
form rule. Thev are to be paid on all daimt
against the banlc previously proved and ad-
judicated. All creditors are to be treated
alike. The claim against the bank, there-
fore, must necessarily be made tJtie basis of
the apportionment. . . . The business
of the Dank must stop when insolvency is
dedared. Rev. Stat. § 6228. No new debt
can be made after that. The only daims the
Comptroller can recognize in the settlement
of the affairs of the bank are those which are
shown by proof satisfactory to him, or by the
adjudication of a competent court, to have
had their origin in something done before the
insolvency. It is clearly his duty, there-
fore, in paying dividends, to take the value
of the claim at that time as the basis of dis-
tribution."
In Scott V. Armstrong, 146 U. S. 499 [36:
1069], it was argued that the ordinary equity
rule of set-off in case of insolvency did not
apply to insolvent national banks in view of
sections 6234, 6230, and 6242 of the Revised
Statutes. It was ur^d "that these sections
bv implication forbid this set-off because
tney require that, after the redemption of the
circulating notes has been fully provided for,
the assets shall be ratably distriouted among
the creditors, and that no preferences given
or suffered, *in contemplation of or after com-[XM]
mittine the act of insolvencnr, shall stand;"
and "that the assets of the bank existing at
the time of the act of insolvency indude all
its property without regard to any existing
liens thereon or set-offs thereto." But tJiiis
court said : "We do not regard this position
as tenable. Undoubtedly, any disposition
by a national bank, being insolvent or in con-
templation of insolvency, of its choses in a<^
tion, securities, or other assets, made to pre-
vent their application to the payment of its
circulating notes, or to prefer one creditor
to another, is forbidden; but liens, equities,
or rights arising by express agreement, or im-
plied from the nature of the dealings between
the parties, or by operation of law, prior to
insolvency and not m contemplation thereof,
are not invalidated. The provisions of the
act are not directed a^inst all liens, secur-
ities, pledgee, or equities, whereby one cred-
itor may obtain a greater payment than an-
other, but against uiose given or arising aft-
er or in contemplation of insolvency. Where
a set-off is otherwise valid, it is not perceived
how its allowance can be considered a pref-
erence, and it is clear that it is only the bal-
ance, if any, after the set-off is deducted,,
which can justly be held to form part of the*
assets of the insolvent. The requirement aa
to ratable dividends is to make them from
what belongs to the bank; and that which
at the time of the insolvency belongs of right
to the debtor does not belong to the bank."
The set-off took effect as of the date of the
declaration of insolvency, but outstanding
collaterals are not payment, and the statute
does not make their surrender a condition to
the recdpt by the creditor of his share in the
assets.
The rule in bankruptcy went upon the
principle of election; that is to say, the se-
645
(
145-118
SuFBBMB Court of thx Unitkd States.
Oct. Tdx.
cured creditor "was not allowed to prove his
whole debt, unless he gave up any security
held by him on the esUite against which he
sought to prove. He might realize his se-
curity himself if he had power to do so, or he
might apply to have it realized by the court
of hankruptcy, or by some other court hav-
ing competent jurisdiction, and might prove
foi; any deficiency of the proceeds to satisfy
his demand; but if he neglected to do this,
[146]and proved for his whole debt, he *wa8 bound
to give up his security." Bobson, Law, Bank.
336. But it was only under bankrupt laws
that such election could be compelled. Tayloe
T. Thompson, 5 Pet. 358, 396 [8: 164, 158].
And we are unable to accept the sugges-
tion that compulsion under those laws was
the result merely of the provision for ratable
distribution, which only operated to prevent
E references and to make all kinds of estates,
oth real and personal, assets for the pay-
ment of debts, and to put specialty and
simple-contract creditors on the same foot-
ing, and so eave to all creditors the right to
eome upon Uie common fund. Equality be-
tween them was equity, but that was not in-
consistent with the common-law rule award-
ing to diligence, prior to insolvency, its ap-
propriate reward; or with cono^ng tae
Talidity of prior contract rights.
We repeat that it appears to ns that the
secured creditor is a creditor to the full
amount due him when the insolvency is de-
clared, just as much as the unsecured credit-
or is, and cannot be subjected to a different
rule. And as the basis on which all creditors
are to draw dividends is the amount of their
daims at the time of the declaration of in-
solvency, it necessarily results, for the pur-
pose of nxing that basis, that it is immater-
ial what collateral any particular creditor
may have. The secured creditor cannot be
charged with the estimated value of the col-
lateral, or be compelled to exhaust it before
enforcing his direct remedies against the
debtor, or to surrender it as a condition
thereto, though the receiver may redeem or
be subrogatea as circumstances may require.
Whatever Congress may be authorized to
enact by reason of possessing the power to
pass uniform laws on the subject of bank-
ruptcies, it is very clear that it did not in-
tend to impinge upon contracts existing be-
tween creaitors and debtors, by anything
prescribed in reference to the administration
of the assets of insolvent national banks.
Tet it is obvious that the bankruptcy rule
converts what on its face gives the secured
creditor an equal right with other creditors
into a preference against him, and hence
takes away a right which he already had.
This a court of equity should never do, unless
required by statute at the time the indebted-
ness was created.
{147] 'The requirement of equality of distribu-
tion among creditors by the national bank-
ing act involves no invasion of prior con-
tract rights of any of such creditors, and
ought not to be construed as having, or being
intended to have, such a result.
Our conclusion is that the claims of cred-
itors are to be determined as of the date of
the declaration of insolvency, irrespective of
646
the question whether pi^ticiilar erediton
have security or not. When secured cred-
itors have received payment in fnll, tker
right to dividends, and their right to rcttii
their securities, cease, but collectioiis then-
from are not otherwise mat^iaL Insolfetr
gives unsecured creditors no greater rigku
than they had before, though throogk re-
demption or subrogation or the realuatioi
of a surplus they may be benefited.
The case was rightly decided by the iv-
cuit court of appeals ; its decree in No. 54 a
affirmed ; and the decree of the circoit eooit
entered July 27, 1896, in pursuance of tW
mandate of that court, is also affirmed.
Remanded accordingly.
Mr. Justice WUte, with whom eoaetirrad
Mr. Justice Warla» and Mr. Justiee X*>
Kenna, dissenting:
The court now decides: Ist. That oa the
failure of a national bank a creditor there-
of whose debt is secured by pledge i% estitM
to be recognized and classed by the Comp-
t roller of the Currency to the full amooC
of his debt, without in any way uUdnf iate
account the collaterals by which the debt ii
secured, and on the amount so reco^raind ke
is entitled to be paid out of the ^raert I as-
sets the sum of any dividend whidi may kt
declared. 2d. That this right to be dsfeel
for the full amount of the d^t, withoot re-
gard to the value of the coUaterals, is ixai
by the date of the insolven47 and luiliwiB
to the final distribution, matcver may kt
the change in the debt thereafter brai^
about bv the realization of the fccmltiw,
provided only that the sums received by the
creditor bv way of dividends and fnai the ,
amount collected *from the collaterals do niO^
exceed the entire debt and thei^crt citi»'
guish it.
I am constrained to dissent Iron tWn
propositions, because, in my opinioa,
enforcement will produce inequality
creditors and operate injustice, and, ae s
necessary consequence, are inoonsistcst vitk
the national banking act.
It cannot be doubted that the acts of Cm-
gress, which regulate the collection and d»
tribution of the assets of an insoivrat aa-
tional bank, are controlling. It i^ clear thai
every creditor who contracts with such huk
does so subject to the provisions dim<i:V
the manner of distributing the a«<^t« of f^A
bank in case of its insolvency, auU thtrvfofs
that the terms of the act enter into and fora
part of every contract which such hank oh?
make. Now, the act of Congre^* makn ft
the duty of the receiver app«)inted by the
Comptroller to liquidate the alTairs af a
flailed national bank, to take (nwe^^^ioa d
and realize its assets (Rev. SUt. 4 52S4).ti
mil, by advertisement for ninetr Jm)p». apoa
" red i tors to present and make lecal piW
of their claims (Rev. SUt $ 5235 ). and frvia
t^e proceeds of the assets :he OiiiptroUer »
•Erected to make a "ratable dividend" oa th«
poognired claims (Rev. Stat, | .^23«)- Tk
!>revent preferences the law, moraover. ♦
'pots that all contracts from which prtfcr-
ences may arise, made after the cnaoiMM
of ar act of insolvency or in contsfoplatiiB
i8oa
MienTOT.T. y. National Baitk of Jaoesonyillb.
14&-151
thereof, ''shall be utterly null and void."
Bey. Stat. $ 5242.
It seems to me superfluous to demonstrate
that the rules now uj^held, by which a credit-
or holding security is decided to be entitled
to disregard the value of his security and
take a fividend upon the whole amount of
the dd>t from the general assets, violates the
principle of equality and ratable distribu-
ti(m which the act of Congress establishes.
Is it not evident that if one creditor is al-
lowed to reap the whole benefit of his se-
curity, and at the same time take from the
general assets a dividend, on his whole claim,
as if he had no security, he thereby obtains
an advantage over the other general credit-
ors, and that he gets more than his ratable
share of the general assets? Let me illus-
A]tratethe unavoidable *consequenceof the doc-
trine now recognized. A loans a national
bank $5,000, and takes as the evidence of
such loan a note of the bank for the sum
named, without security. The lender is thus
a general or unsecured creditor for the sum
of $5,000. B loans to the same bank $5,000,
without security. He is applied to for a fur-
ther loan, and agrees to loan another $5,000
on leceiving collateral worth $5,000, and re-
quires that a new note be executed for the
amount of both loans, which recites that it
is secured by the collateral in question.
While theoretically, therefore, B is a secured
creditor for $10,000, he practically had no
security for $5,()00 thereof. Insolvency su-
pervenes. The general assets received by the
Comptroller equal only fifty per cent of the
claims. Now, under the rule which the court
establishes, A on his unsecured claim of
$5,000 collects a dividend of but $2,500,
thereby losing $2,500; B, on the other hand,
who proves $10,000, taking no account what-
ever of his collateral, realizes by way of divi-
dends $5,000, and by collections on collater-
als a similar amount, with the result that
though as to $5,000 he was, in effect, an un-
secured creditor, he loses nothing. B is thus
in precisely as g6od a situation as though he
had originally demanded and received from
the borrowing bank collateral securities
equal in value to the full amount loaned. It
is thus apparent that the application of the
rule woula operate to enable B — ^who, I re-
peat virtually held no collateral security
lor $5,000 of the sums loaned — to be paid
hJ3 entire debt, though the assets of the in-
solvent estate of the Dorrower paid but fifty
cents on the dollar, while another creditor
holding an unsecured claim for $5,000 fails
to realize thereon more than $2,500. Is it
not plain that this result is produced by
practically a double payment to B, that is,
by recognizing B as a preferred creditor in
the specific property, of the value of $5,000,
pledged to him, withdrawing that property
irom the general assets, and allowing B to
solely appropriate it, yet permitting him,
when the secured part of his debt is thus
virtually satisfied, to again assert the same
secured portion of the debt against other as-
sets, by a claim upon the general fund in the
hands of the receiver for the full amount
ioO]*ioaoedT The consequence of the receipt of
this extra ram upon account of the already
fully secured portion of the original loan is
that B is enabled to offset it against the de-
ficient dividend on the unsecured portion of
the debt, one equalling the other, thus clos-
ing the transaction without loss to him.
iict us suppose, also, the case of a creditor
of a national bank, who recovers a judgment
for $100,000 and levies the same upon real
estate of the bank worth only $50,000. While
the legal title and possession is still in the
bank a receiver is appointed and takes pos-
session of the real estate. Certainly it can-
not be contended that this judgment-lien
holder is not in equally as ffood a position as *
the holder of a mortgage lien or other col-
lateral security. The doctrine of the court,
however, if applied to the judgment-lien
holder, would authorize him to demand that
the receiver treat the real estate as not em-
braced in the sfeneral assets, and that the
creditor be aUowed to enforce his whole
claim against the other assets irrespective
of the value of the specific security acquired
by his lien.
That the doctrine maintained by the court
also tends to operate a discrimination as be-
tween secured creditors, in favor of the one
holding collateral securities not susceptible
of prompt realization, is, I think demon-
strable. Thus, a secured creditor who takes
collaterals maturing on the same day with
the debt owing to himself, which collaterals
consist of negotiable notes, the makers of
which and indorsers upon which are pe-
cuniarily responsible, finds the collaterals
promptly paid when deposited for collection,
and if his debtor should become insolvent the
day after payment the creditor could onlv
claim for the residue of the debt still unpaia.
On the other hand, a creditor of the same
debtor, the debt to whom matures at the
same time as that owing the other creditor,
and is secured by collaterals also due contem-
poraneously, has the collaterals protested for
nonpayment, and when the debtor fails thf
collaterals have not been realized. While
the first debtor who had received first-class
collateral can collect dividends against
the estate of his insolvent debtor only K>r the
unpaid portion of the claim, losinff a part of
such residue by the inability of uie *estate[X61]
to pay in full, the debtor who received poor
collateral collects dividends out of the gen-
eral assets on his whole claim, and, if he
eventually realizes on his securities, may
come out of the transaction without the loss
of one cent. These illustrations, to my mind,
adequately portray the inequality and injus-
tice which must arise from the application
of the rules of distribution now sanctioned
by the court.
The fallacies which, it strikes me, are In-
volved in the two propositions sanctioned by
the court, are these : First. The erroneous as-
sumption that, although the act of Congress
contemplates liiat the dividend should m de-
clared out of the general assets after the se-
cured creditors have withdrawn the amount
of their security, it yet provides that the se-
cured creditor who has withdrawn his se-
curity, and thus been pro tanio satisfied, can
still assert his whole claim against the gen-
eral assets, just as if he had no security and
647
(
151-164
SUPBBHB COUBT OF THB UhITED STATES.
)
had not been allowed to withdraw the same.
Second. The mistaken assumption that the
act confers upon the secured creditor a new
and substantial right, enabling him to ob-
tain, as a consequence of the ntilure of the
bank, an advantage and preference which
would not have existed in his favor had the
failure not supervened. This arises from
holding that the insolvency fixed the amount
of the claim which the secured creditor may
ftBsert, as of the time of the insolvency;
thereby enabling him to ignore anv collec-
tions which he may have realized from his
securities after the failure, and permitting
him to assert as a claim, not the amount due
at the time of the proof, but, by relation, the
amount due at the date of the failure, the
result bein^ to cause the insolvency of the
bank to relieve the creditor holding security
frpm the obligation to impute any collections
from- his collateral to his aebt, so as to reduce
it by the extent of the collections, — a duty
which would have rested on him if insolvency
had not taken place. Third. By presup-
posing that because before failure a secured
credi&r had a le^ riffht to ignore the col-
laterals held by him and resort for the whole
debt, in the first instance, against the gen-
eral estate of his debtor, that it would im-
pair the obligation of the contract to require.
[162]the secured creditor in case of insolvency *to
take into account his collaterals and prevent
him from asserting his whole claim, for the
purpose of a dividend, against the general
assets. ' But the preferential right arising
from the contract of pledge is in nowise im-
paired by compelling the creditor to first ex-
ercise his preference against the security re-
ceived from the debtor, and thus confine him
to the specific advantage derived from his
contract. Further, however, as the contract,
construed in connection with the law gov-
erning it, restricts the secured as well as the
unsecured creditor to a ratable dividend
from the general assets, the secured creditor
is prevented from enhancing the advantage
obtained as a result of the contract for se-
curity, bjT proving his claim as if no security
existed, since to sulow him to so do would de-
stroy the rule of ratable division, subject and
subordinate to which the contract was made.
A forcible statement of the true doctrine on
the forgoing subject was expressed in the
case of Sociiti Q4n6rale de Paris v. Cfeen, L.
R. 8 App. Cas. 606. The question before the
court arose upon the construction to be given
to a clause of the English iMinkrupt act of
1869, incidental to the requirement of a sec-
tion, expressly embodied for the first time in
a bankrupt act, that the secured creditor
should in some form account for the collater-
al held by him in proving his claim against
the general estate. In considering the re-
striction upon the remedv of a secured credit-
or produced by the insolvency, and the con-
sequent riffht of such creditor to receive only
a ratable dividend on the balance of the debt
after the deduction of the value of the col-
laterals. Lord Fitzgerald said (p. 620) :
"Under ordinary circumstances each cred-
itor is at liberty to pursue at his discretion
the remedies which the law gives him, but
when insolvency intervenes, and the debtor is
648
imable to pay his debts, the position td til
parties is altered, — ^the fund has beeoBM is-
adequate, and the policy of the law is to
lead to equality, tn pursuing that potiey
the bankrupt law endeavors to enforce u
e^ual distribution, whilst it respects tht
rights of those who have previously, by gnat
or otherwise, acquired some security or sobc
preferable right."
To resort, nowever, to reasofning for tW
purpose of endeavoring *to demonstrate thst^V
where a statute does not allow preferenees ii
case of insolvency, and commands a ratablt
distribution of the assets, a secured creditor
cannot be allowed to disregard the value ol
his security and prove for the wh<4e deM,
seems to me to be unnecessary, since tiiat Is
cannot be permitted to so do, under the fir-
cumstancee stated, has been the anivensl
rule applied in bankruptcy in England and ia
this country from the banning.
In the earliest English bankrupt act (34
ft 35 Hen. VIII. chap. 4) -the distribntioa of
the general assets of the bankrupt was di-
rected to be made, ''for true satisfaction aad
payment of the said creditors; that is to my.
to every of the said creditors, a portion nto
and rate like, according to the quantity <d
their debts." In the sUtute of 13 Kliiahrtli.
chap. 7 (and which was in force in this par-
ticular when the consolidated bankrupt ttst-
ute of 6 Oeo. IV. chap. 16, was adopted), tkt
distribution of assets was directed in ka-
guage similar to that just quoted from tW
statute of Henry VIII. Under these stat-
utes, from the earliest times, it was hdd by
the lord chancellors of England, having tW
supervision of the execution of Uie baakrv^
statutes, that a secured creditor eodld sot
retain his collateral security and prove lor
his whole debt, but must have his security
sold, and prove for the rest of the debt oaly
Lord Somers, in Wiseman v. CarioMO
(1695) 1 Eq. Cas. Abr. 312, pL 9; Lor4
Hardwicke, in Hoicell, Petitioner (17J7> 7
Vin. Abr. 101, pi. 13, and in Ex parte Oram,
(1747) 1 Atk. 106; Lord Thurlow. is f»
parte Dickson (1789) 2 Cox. Ch. Cas. IK
and in Ew parte Coining (1790) 2 Cox, CV
Cas. 225; Cooke's Bankrupt Laws (1st ci
1786) 114, and (4th ed. 1799) 119.
In 1794 (4 Bro. Ch. star paging S5) ^
prevailing practice with respect to a tsk of
a mortgage security was regulated by s fc**
eral order formulated by Lord ChancriW
Loughborough, wherein, among other tkiap.
it was provided that in case uie proceed* ti
sale should be insufficient to pay and tsti«f7
what should be found due upon the sort'
gage, "that such mortgagee or mortfafcc* kt
admitted a creditor or creditors under seek
commission for such deficien^, and to f^
ceive a dividend or dividends thereon, oat ^.ng
the bankrupt's estate or ^effects, rataWr ssJi**^
in proportion with the rest of the cnaHan
seeking relief under the said eommisrisa*
etc.
Conoeminff the practice in baakrvytey,
Lord Chancellor Eldon, in 1813, in Ks pertt
Smith, 2 Rose, Bankr. Rep. 63, said:
"The practice has been long establiskei a
bankruptcy, not to suffer a creditor boUaf
a security to prove unless ha willfive f
18ML
MKRBTIiT. ▼. I^ATIONAL BaHK OF JaoKBONYXLLB.
154-155
tiiat security, or the value has been ascer-
tained by the sale of it. The reason is obvi-
cms: Tul his debt has been reduced by the
proceeds of that sale, it is impossible cor-
rectly to say what the actual amount of it
is. ... It is, however, clearly within
the disoretion of the court to relax this rule,
and cases mav occur in which it would be for
the benefit of Hke general creditors to relax
it"
The first two bankrupt statutes enacted in
this country (April 4, 1800, chap. 19, 2 Stat
at L. 19; Au^t 19, 1841, chap. 9, 5 Stat, at
L. 440) reouired a ratable distribution of the
assets; ana it was conceded in argument that
the universal practice enforced under these
acts was to require a creditor holding col-
lateral security to deduct the amount of his
security, and prove only for the residue of
the debt. This court, speaking through Mr.
Justice Story, in 1845, in Re Christy [Ew
parte City Bank], 3 How. 314 [11: 613], de-
dared that, under the act of 1841, "if credit-
ors have a pledge or mortgage for their debt
they may apply to the court to have the same
sola, and the proceeds thereof applied to-
wards the payment of their debts ffro tanto,
and to prove for the residue."
As the universal rule and practice in bank-
ruptcy in England and in this country, up to
and including the bankrupt act of 1841, was
solely the result of the statutory requirement
that the assets should be ratably distributed
among the general creditors, my mind fails
to discern why the requirement for ratable
distribution of the assets in the act for the
liquidation of failed national banks should
not have the same meaning and produce the
same result as the substantially similar pro-
visions had always meant and had always
operated in England for hundreds of years,
and in this country for manv years,
before the adoption bv Congress of the act
Tor the liauidation of national banks. In-
deed, the fact that the requirement of rata-
ble distribution had by a lon^ course of
55]practice *and judicial construction in Eng-
land and in this country required the se-
cured creditor to account for his security be-
fore proving against the general assets gives
rise to the application of the elementary
eanon of construction that where words are
used in a statute, which words at the time
had a settled and well-understood meaning,
their insertion into the statute carries with
them a legislative adoption of the previous
and existing meaning.
The reasoning by which it is maintained
that the requirement for ratable distribution
riiould not be applied in the act providinff
for the liquidation of an insolvent nationiu
bank may be thus summed up: True it is,
that universally in bankrupted in England
and in this country the rule was as above
stated, but outside of bankruptcy a differ-
^ practice prevailed in England, known as
the diancery rule; and as the winding up of
an insolvent national bank does not present
a case of iMankruptcy, its liquidation is gov-
ttned by such chancery rule, and not by the
baaknipt<7 rule. The bankruptcy nue, it
^ said, is commonly so called because en-
forced by bankruptcy courts in the exercise
iTSU.g.
of their "peculiar" jurisdiction, and th«
courts which refuse to apply the rule gener-
ally declare that it arose from express pro-
visions in bankrupt statutes requiring a
creditor to surrender his collaterals or de-
duct for their value before proving against
the estate.
Pretermitting for a moment an examination
of this reasoning, it is to be remarked in
passing that the argument, if sound, rests
upon Uie hypothesis that all the bankruptcy
laws from the beginning in England and in
our own country, and the universal
course of decision thereon and the practice
thereunder, have worked out inequality
and injustice by depriving a secured creditor
of rights which, it is now asserted,
belonged to him and which could have
been exercised by him without pro-
ducing inequality. This deduction follows,
for it cannot be that if not to com-
pel the creditor to deduct produces no in*
equality or injustice, then to compel him to
do so would have precisely the same result
The two opposing and conflicting rules can-
not both be enforced, and yet in each instance
equality result At best, then, the contention
admits that by * the consensus of mankind not[ 156]
to compel the secured creditor to deduct the
value of his collaterals before proving pro-
duces inequality, for of all statutes those re-
lating to bankruptcy have most for their
object an equal distribution of the assets of
the insolvent among his creditors.
It is worthy also of notice, in passing, that
the reasoning to which we have referred rests
upon the assumption that the act of Congress
providinjf for the liquidation of the affairs
of a national bank and a distribution of th«
assets thereof among the creditors is not sub-
stantially a bankrupt statute. It certainly
is a compulsorv method provided bjr law for
winding up the concerns of an insolvent
bank, for preventing preferences, and for se-
curing an equal and ratable division of the
assets of the association among its creditors.
And it assuredly can be safely assumed that
Congress in adopting the rule of ratable dis-
tribution in the national banking act did not
intend that the words embodying the rule
should be so construed as to produce a result
contrary to that which for hundreds of years
had been recognized as necessarily implied
by the employment of similar language. It
may also, I submit, be likewise considered as
certain that it was not intended, in using the.
words "ratable distribution" in the statute,
to bring about an unequal instead of a rata-
ble distribution of the general assets.
But, coming to the proposition itself, Is
there any foundation for tne assertion that
the rule or practice in bankruptcy requiring
the secured creditor to account for his securi-
ty was the result of something peculiar in
the jurisdiction of bankruptcy courts, other
than the requirement contained in bank-
ruptcy statutes that the assets should be dis-
tributed ratably among creditors, and is
there any merit in the contention that ths
rule was the consequence of an express pro-
vision in such laws imposing the obligation
referred to on the secured crMitor?
A careful examination of every bankrupt
649
156-159
SupBBMB Court of the United States.
OCX.T1111.
statute in En^nd, from the first statute of
34 & 35 Hen. vIII. chap. 4, down to and in-
cluding the consolidated bankrupt act of 6
Geo. Iv. chap. 16, fails to disclose any provi-
|167]sion sustaining the statement that *the rule
in bankruptcy depended upon express statu-
tory requirement, and, on the contrary, shows
that it was simply a necessary outgrowth of
the command of the statute that there should
be an equal distribution of the bankrupt's
assets.
1 submit that not only an examination of
the English statutes makes clear the truth
of the foregoing, but that its correctness Is
placed beyond question by the statement of
tiord Chancellor Eldon respecting proof in
bankruptcy by a secured creditor, already
adverted to, that "till his debt has been re-
duced by the proceeds of that sale" (that is,
of the security) , "it is impossible correctly to
say what the actual amount of it is." And,
as an authoritative declaration of the origin
of the rule, the opinion of Vice Chancellor
Malins, in Ew parte Alliance Bank (1868)
L. R. 3 Ch., note at page 773, iJB in point.
The Vice Chancellor said :
"This rule" (requiring a creditor to real-
ize his security aiKl prove for the balance of
the debt only) "does not depend on any stat-
utory enactment, but on a rule in bankrupt-
cy, established irrespective of express statu-
tory enactment, and under the statute of
Elizabeth, which provides: 'Or otherwise
to order the same (t. 0. the assets) to be ad-
ministered for the due satisfaction and pay-
ment of the said creditors, that is to say,
for every of the said creditors a portion, rate
and rate alike according to the quantity of
his and their debts.' "
Indeed, not only was the obligation of the
secured creditor to account for his security
derived from the provision as to ratable dis-
tribution, but from that provision also origi-
nated the equally well-settled rule causing
interest to cease upon the issuance of the
commission of bankruptcy. As early as
1743, Lord Hardwicke, m Bromleji ▼. (h>od-
erCj 1 Atk. 75, in speaking of the suspension
of interest by the effect of bankruptcy, said:
"There is no direction in the act for that
purpose, and it has been used only as the
best method of settling the proportion among
the creditors, that they may have a rate-like
satisfaction, and is founded upon the equit-
able power given them by the act."
While, generally, the claim that the bank-
ruptcy rme was the creature of an express
f 168] provision of the bankruptcy acts, *other than
the requirement as to a ratable distribution
of assets, rests upon a mere statem^tnt to that
effect without any reference to the specific
text of the bankrupt act which it was as-
sumed made such requirement, in one in-
stance^ in the brief 01 counsel iu an early
case in this country (Findlay ▼. Hosmer,
(1817) 2 Conn. 350), the statement is made
in a more specific form. A particular sec-
tion of an English bankrupt statute is there
referred to, as in effect expressly requiring
a secured creditor to account for his collat-
erals in order to prove against the general
assets. The statute thus referred to was
section 9 of 21 James J. chapter 19. But
650
an examination of the sectiun rdied oa
that it in no wise supports the
The pertinent portion of tbm section reads si
follows:
"... all and every creditor tW
creditors having second for his or their
several debts, by judgment, statute, reoo^
zance, specialty wiuk penalty or
penalty, or other security, or having bo
curity, or having made attachments ia ~
don, or any other place, by virtue of sit
custom there used, of the goods and Httttfh
of any such bankrupt, whereof there is as
execution or extent served and executed «^
on any the lands, tenements, hereditaaeatA,
goods, chattels, and other estate of ntk
bankrupts before such time as he or tkt
shall or do become bankrupt, shall art bt
relieved upon any such judgment, statatc,
recognizance, specialty, attachineats, or
other security for any more than a rmtabte
part of their just and due d«>ts wit)) tW
other creditors of the said bankrupt, wtth>
out respect to any such penalty 01 grater
sum contained in any such judgiucst, stat*
ute, recognizance, specialty with i^nalt^. sl»
tachment, or other security."
The securities other than attaduaeat 1^
ferred to in this section were manifestly ea-
braced in the class known at common Uv as
"personal" security, as distinguished fr^
"real" security or security upoa prop^r^.
Sweet's Diet. English Law, verho Sccnritf.
In other words, the effect of the seetioe wu
but to forbid preferences in favor of credit-
ors, which at law would have revolted fros
the particular form in which the deU vat
evidenced, and from which form a dum 1
would *be raised to a higher ank thaa a iiB-^lfl|
pie-contract debt. That this is the t^sii-
cance of the word "security" as n^ed ia tkis
section is shown by the followii.g txctqH
from Cooke's treatise on Bankrupt \a^
published in 1786. At page 114 be mv*:
'The aim of the legislature in all the stat-
utes oonceminff bamcrupts beir? that tW
creditors should have an equal propnrtioa if
the bankrupt's effects, creditors of frtrj d^
gree must come in eaually ; nor will the mr
ture of their d^manos make any dilTereae^
unless they have obtained actual exenJoa
or taken some pledge or security Mort u
act of bankruptcy committed. JFor wbfs a
creditor comes to prove his debt li« i« obfi^
to swear whether he has a securitv or set.
and if he has, and insists upon pmria^. kt
must deliver it up for the benefit of hi^ tn^
itors, unless it be a joint security fraai tte
bankrupt and another person," cic.
The fact that the expression •••♦tarftr"
contained in the section referred to Ka ••
reference to security on propertv i« fartk»
demonstrated by the subsequent ^tstott d
6 (3eorge IV. chap. 9, sec. 103, ^nhi**- rM»-
acted in an altered form the 9tli -f^*kmti
the statute of »Tamea; for the re^ni< '^^ l■^
tion, although it referred in broaH *'^'»« *
securities generally, yet especiatU ^^ciftoi
the case of a mortgage or pled^. TS« we-
tion is as follows:
"Sec 103. And be it enacted. Thut »•« (ti*
itor having security for his debt, or teftif
made any attachment In Londn.^ nr a«v
18W.
Mbbbill y. National Bahk of Jacksohtillb.
159-162
^et place by virtue of any custom there
used, of the goods and chattels of the bnnk-
rapt, shali receive upon any such security or
attachment more than a ratable part of such
debt, except in respect of any execution or
extoit served and levied by seizure upon,
or any mortgage of or lien upon any part of
the property of such bankrupt before the
bankruptcy."
Is it pr^nded anywhere that after the re-
enactment of section 9 of the statute of
James I. found in section 103, chap. 9, 6
George IV., the obligation of a scoured cred-
itor to account for his collateral before he
took a dividend out of the geneial assets
ceased to exist? Certainly, there is no such
O]*c(mtention. If, however, that duty of the
general creditor arose, not from the provi-
sion as to ratable distribution, but from the
provisions of section 9 of the act of James
as claimed, then necessarily such obligation
on the part of the general creditor would
have ceased immediately on the enactment of
the statute of 6 Oeorge IV., which expressly
excepted the mortgage creditor from the ope-
ration of the particular section which, it is
contended^ imposed the duty on the mort-
eage creditor to account. The continued en-
forcement of the rule which required the
mortgage creditor to deduct the value of his
security before proving against treneral as-
sets, after the re-enactment of section 9 of
the statute of G^rge referred to, can lead to
but one conclusion ; that Jls, that the duty of
the mortgage creditor before existing arose
from the provision for ratable diRtribution,
and not from the terms of section 9 of the
statute of James, since that duty continued
to be compelled after the re-enactment of
that section in terms, which renders it im-
possible to contend that that section created
the duty.
A similar course of reasoning applies to
bankrupt statutes of this country.
Section 31 of our first bankrupt statute
(diap. 19, act April 4, 1800, 2 Stat, at L.
30) was J in substance and effect, similar to
the provision in the act of James. The stet^
lite of 1800 is said to have been a consolida-
tion of the provisions of previous English
bankrupt statutes (Tucfcer v. 0(v2e|/, 5 Granch,
34, 42 [3:29, 31]; Roosevelt v. Mark, 6
Johns. Ch. 285), and in Tucker v. Owley,
Chief Justice Marshall declared that, for
that reason, the decisions of the English
judges as to the effect of those acts mi^ht
be considered as adopted with the text that
fhey expounded. Section 31 reads as fol-
lows:
*'Sec. 31. And be it further enacted, That
in the distribution of the bankrupt's effecte
there shall be paid to every of tlie creditors
a portion-rate, according to the amount of
their respective debte so that every creditor
having security for nis debt by judgment,
statute, recognizance, or specialty, or having
an attachment under any of the laws of the
individual states or of the United Stetes,
(l]m the estete of such bankrupt *( provided,
there be no execution executed upon any of the
real or personal estete of such bankrupt be-
fore tiie time he or she became bankrupts),
shall not be relieved upon any such judgment,
173 U. 8.
stetute, recognizance, specialty, or attach-
ment, for more than a ratable part of his
debt, with the other creditors of the bank-
rupt"
This provision of the act of 1800 was, ,
however, omitted from the bankrupt act of ]
1841, manifestly because it had become un-
necessary. The later stetute contained in
the 5th section a general provision forbid-
ding all preferences except in favor of two
classes oi debte, thus rendering it superflu-
ous to enumerate cases in which tJiere should
be no preference. It was, however, under
the act of 1841. which was drafted by Mr.
Justice Story (2 Story's Life of Story, 407),
that this court, speaking through that learn-
ed justice, in Re Ohrtaty [Ea parte City
Bank], already cited, declared that a secured
creditor must account for his security when
proving against the bankrupt estate. How
it can be now argued that the requirement
that such creditor should only so prove his
claim was the result of a provision not found
in the act of 1841, and clearly sliown by all
the antecedent legislation not to refer to a
creditor holding property security, my mind
fails to comprenend.
True it is that, both in our own act of
1867 and in the English bankrupt act of
1869 J there were inserted express provisions
requiring a secured creditor to account for
his collaterals before provins against the
general assets. But this was out the incor-
poration into the statutes of the rule which
had arisen as a consequence of the require-
ment for a rateble distribution, and which
had existed for hundreds of years before the
stetutes of 1867 and 1869 were adopted. In
other words, the express stetutoiy require-
ment only embodied in the form of a legisla^
tive enactment what theretofore from the
earliest time had been universally enforced,
because of the provision for a rateble dis-
tribution.
The rule in bankruptcy imposing the duty
upon the creditor to account for his security
before proving being, then, the result of the
provision of the bankrupt laws requiring
ratable distribution, I submit that the same
requiremente upon such 'creditor should be[168]
held to arise from a like provision contained
in the act of Congress under consideration.
But, coming to consider the chancery rule
which, it is contended, lends support to the
doctrines applied in the cases at bar.
The founaation upon which the so-called
chancery rule reste is the case of Mason v.
Bogg, 2 Myl. & G. 443, decided m 1837, where
Lord Chancellor Cottenhamexpressed his ap-
proval of the contention that a mortgage
creditor, despite the death and insolvency of
his debtor, possessed the contract right to
assert his whole claim against general assets
in the course of administration in chancery,
without regard to his mortgage security.
The question was not directly decided, how-
ever, as to whether the creditor might prove
in the administration for the whole amount ^
of the debt, but was reserved. As steted,
however, the reasoning of the court favored
the existence of such right upon the theory
that a court of chancery, wnen administering
assets, in the absence of a statute regulating
161-lt6
BUFBBMB COUBT OF THB UnTTBD StATBS.
Oct.
the Buhfeoi, oould not deprive a secured cred-
itor of legal rights previously existing which
he might have asserted at law, although by
permitting the exercise of such rights prefer*
ences in tne general assets would arise.
The next case in point of time in Enc^land,
and indeed the one upon which mo^t reliance
is placed by those favoring the chancery rule,
is KellooVa Case, reported in L. R. 3 Gh. 769,
involving two appeals, and argued before Sir
W. Pa«e Wood, L J., and Sir C. J. Selwyn,
L. J. The cases arose in the winding up of
companies by virtue of the statute of 25 ft
26 Vict. chap. 89. The issue presented in
each case was whether a creditor having col-
lateral security was entitled to dividends
upon the full amount of the debt without ref-
erence to the value of collaterals ; and in one
of the cases the lower court applied the doc-
trine supported by the reasoning in Maeon
▼. Bo9ff» while in the other the lower court
decided the bankruptcy rule governed. The
appellate court hela that the chancery prac-
tice should be followed. The claim was
made that the secured creditor ought not to
be allowed to take a dividend on the full
|m]amount of his claim, because, among *other
reasons, of section 133 of the act, wuch pro-
vided as follows:
"133. The followine Consequences shall en-
sue upon the voluntary Winding-up of a
Company:
(1.) The Properbr of the Company shall
be applied in satisfaction of its Liai)ilities
pari passu, and, subject thereto, shall, unless
it be otherwise provided by the Regulations
of the Company, be distributed nmongst the
Members according to their Rights and In-
terests in the Company."
This contention, however, was answered
by Lord Justice Wood, who said (p. 778) :
"There is a clause in the companies act of
1862, which says that in a voluntary wind-
ing up equal distribution is to be made
among creditors; an expression similar to
which, in 13 Eliz. chap. 7, appears to have
led to the establishment of the rule in bank-
ruptcy."
He then called attention to the fact that
a voluntary winding up was not limited to
cases of insolvent companies but might be
resorted to on behalf of a solvent one; and
he proceeded to comment upon the fact that
in previous winding-up acts, "when the legis-
lature intended proceedings to be conducted
accordinff to the course in bankruptcy, it
said so," concluding with the declaration
that the omission to do so in the case before
the court indicated the purpose of Parlia-
ment that the court should he governed by
the chancery rule. Lord Justice Selwyn, in
a measure, also adopted this view, sAjing
(p. 782) :
"I think, therefore, that the onus is clear-
ly thrown on those persons who come here
and say that when the legislatuie, with a
knowledge of the existence of the difference
between the practice in bankruptcy and the
practice in cnancery, intrusted the winding
up of the companies to the coi!rt of chan-
cery, and said in express terms that the prac-
tice of the court of chancerv was to prevail,
they intended by some implication or infer-
652
ence to diminish, prejudice, or aifect tht
rights of creditors. I can find no tract «(
any sudi intention* I think, therefore, w
are bound to follow the established praetifle
of the court of chancery, especially when wt j
find that *that practice has been foOovcC^
ever since the passing of the winding-^ act
and so long as winding-up ord^Y have ben
made in the court of chancery."
The whole subject has heen «et at leit.
however, in Great Britain, by seetioa 2S «(
the judicature act of 1873, and by an anai-
ment thereto adopted in 1875 (chap. 77).
which expressly required that in the
istration in chancery of an insolvent
of one deceased, and in proceedings in tht
winding up of an insolvent company
the companies acts, "the same rule shall
vail and be observed as to the
rights of secured and unsecured crediian,
and as to debts and liabilities pioistit,
. . . as may be in force for the time '
under the law of bankruptcy with
to the estates of persons adjudged
rupt."
So that now, in Great Britain, in all pre*
ceedings involving the distribution o# aa ia-
solvent fund, a secured creditor eaa only
prove for the balance which may rtnaia
after deduction of the proceeds or vahM sf
collateral security.
In view, therefore, of 4he English l^^|iJs
tion in 1873 and 1875, wnich has rendered d
impossible in cases of insolvoicy^to apply tke
doctrine of the KeUock Case, we seed bbI
particularly notice decisions rendered ia
England subsequent to 1868, when the KS-
lock Case was decided, particularly as tht
tribunals which rendered such decisioa
subordinate to the court of appeal and
sarily bound b^ its rulings.
Now, I submit, as the English
f r<»n the date of the enactment ol the ear-
liest English bankrupt law, fdt cosstniasi
to compel a secured creditor to accooat for
his security before proving against the
eral assets of the bankrupt estate.
Parliament had directed a ratable
tion of all such assets, it cannot in
ance.with sound reasoning be said that tlM
court is to apply the chancery rule to the
distribution of the assets of an insohrcal la*
tional bank as to which Congress has di-
rected a ratable distribution, becauaa ia Ear
land a different rule was for a time apfKad
to an act of Parliament providing, not mis-
ly for the liquidation of an insolvent ailatt.
but equally to a solvent and *insdvcat sat^tM
and which rule was so applied in
because a particular statute w
as requiring that the practice ponesd ii
chancery in administering npoa ^ ^
should govern.
It is worthy of note that Lord
Wood, after statins in his opinioa ia tkt
Kellook Case that Uie bankruptcy rak w
^'adopted by a court having a pecaUar ]•-
risdiction, established for adminmerta^ tkt
of traders unable to meet their m-
property
irovisMe ■
gagements," conceded that the pr
the statute of 13 Elix. diap. t, rtnijwf
equal distribnUon, "led to the iitaUiifcw^
I of the rule in bankruptcy." Bat the IM
IM.
MKRBnj. y. Natioshal Bask of Jaoksonyillb.
105-168
Justice took tlie caaets then under considera-
tion out of the operation of the provision of
the statute of Elizabeth because of provi-
siofis found in the company act, which, in his
opinion, gave rise to a contrary view in cases
governed by that act. The distribution of
the assets of a failed national bank under the
set of Congress, it is obvious, presents the
'Ipeeuliar^ features which Lord Justice
Wood had in mind, since the requirement of
ratable distribution is the exact equivalent
of the provision contained in the statute of
Elizabeth. But the reasoning now employed
to cause the rule announced in the Keliook
Caw to apply so ss to defeat the ratable dis-
tribution provided by the act of Congress is
made to rest upon Uie assumption that the
set of Congress does not contain the peculiar
requirement which was found in the bank-
ruptcy acts, from which the duty of the se-
cured creditor to account for his security be-
fore taking a dividend from the general as-
sets arose. It comes, then, to this : That the
theory by which the obsolete doctrine of the
ITeZIoeJb Case is made to apply rests upon an
assumption which repudiates the reasoning
of that case; in other words, that the result
of the Kellock Case is taken and applied to
this case, while the reasoning upon which
the decision of the Kellock Case was based Is
in effect denied. •
That to permit a secured creditor to retain
his specific contract security, and also to
prove affainst the general assets of his in-
solvent debtor for l£e whole amount of the
debt, was deemed to work out inequality, is
l]sbown, not only by the fact *that it was not
applied in bankruptcy, but that in the ad-
ministration of equitable, as contradistin-
guished from legal, assets, courts of equity,
following the maxim Equitds est quasi equal-
Has, would not permit claimants against
equitable assets to share in the distribution
of such assets until they had accounted for
any advantage gained by the assertion
against the general estate of the debtor of a
preference permitted at law. Morrice v.
Bank of England, Gas. i. Talb. 218; Shep-
pard T. Kent, 2 Vern. 435 ; Deg v. Deg, 2 P.
Wms. 416; Chapman v. Esgar, 1 Smale &
Or. 675; Bain v. Sadler, L. R. 12 Eq. 570;
Purdy T. Doyle, 1 Paige, 558 ; Bank of Louis-
viUe V. Lockridge, 92 Ky. 472 ; 1 Story, Eq.
Jur. 12th ed. p. 543; Watson, 1 Gomp. Eq.
2d rev. ed. chap. 11, p. 35.
It was undoubtedly from a consideration
of this fundamental rule of equity, in con-
struinff the statutory requirement for rat-
able division of general assets, that the bank-
ruptcy rule was formulated. That rule,
however, in effect, declared that secured
creditors might retain their preferential con-
tract rights in particular portions of the es-
tate of the insolvent debtor, but that it was
the purpose of Parliament, in commanding
ratable distribution, that general assets, that
H. assets disencumbered of liens, should be
distributed only among the general or un-
secured creditors; the necessary effect being
that a secured creditor could not prove
arainst general assets without surrendering
his security, thus becoming a general or un-
secured creditor for the whole amount of the
173 V. U.
debt, or realizing upon the security, or in
some form accounting for its value, in which
latter contingency he would be general or ui^
secured creditor only for the defioienoy*
That the bankruptcy rule was deemed to bt
founded upon equitable principles, I think,
is demonstrated by the statement of Lord
Hardwicke in a case already mentioiMKiy
Bromley v. Goodere, 1 Atk. 77, where, after
referring to the act of 13 Elizabeth,, chapter
7, he said :
"It is manifest that this act intended to
five the commissioners an equitable juris-
iction as well as a legal one, for they have
full power and authority to take by their
discretions such order and direction as they
shall think fit; and that this has *been the[X87]
construction ever since; and therefore when
petitions have come before the chancellor he
nas always proceeded upon the same rules as
he would upon causes coming before him up-
on the bill. The rules of equity,"
The foregoing reasoning renders it unnec-
essary to review at lengtn the opinion deliv-
ered by the circuit court of appeals for the
sixth circuit in Chemical National Bank v.
Armstrong, 16 U. S. App. 465 [28 L. R. A.
231], to which the court nas referred, as the
conclusions announced by the circuit court of
appeals were rested on the assumption that
the bankruptcy rule was the creature of an
express statutory requirement, and that to
prevent a secured creditor from provinjf for
his whole debt, as of the time of the insol-
vencv, without regard to his collaterals,
would deprive him of a contract right, both
of which contentions have been fully considered
in what I have already said. Nor is the
case of Leuns v. United States, 92 U. S. 68
[23: 513], also referred to in the opinion of
the court in the case at bar, controlling upon
the question here presented. True, it was said
in the Leuns Case, in passing, and upon the
admission of counsel, that ''it is a settied
principle of equity that a creditor holding
collaterals is not bound to apply them be-
fore enforcing his direct remedies against the
debtor," citing the Kellock and two other
English and two Pennsylvania cases involv-
ing the Question of the rights of a creditor
having the securities of distinct estates of
separate debtors. But the controversv be-
fore the court in the Lewis Case was of this
latter character, being between the United
States as creditor of a partnership and hold-
ing collaterals belonging to the partnership,
and the trustee in bankruptcy of the sepa-
rate estates of individual members of the
partnership. The government was seeking i
to assert against such separate estates a
right of preference given to it by statute.
The court decided that as the United States
had a paramount lien upon all the assets of
every debtor for the full satisfaction of its
claim, it was unaffected by the bankruptcy
statutes, and therefore was not controlled by
anv provision found therein for ratable dis-
tribution or otherwise. It is apparent,
therefore, that the court by the quoted state-
ment did not decide that a court of equity
* would apply tke doctrine there set forth,[XM]
where the rights of the secured creditor
were limited and controlled by statute. If
658
168-170
SUFBSMB COUBT OF THE UNITBD StATBS.
the secured creditor, who is allowed in the
case now decided to disregard his security
and prove for the whole amount of his claim,
had a paramount lien, not only upon his col-
laterals, but upon each and every asset of the
insolvent bank, the rule in the Lewis Case
would be apposite. But that is not the
character of the case now before the court,
since here a secured creditor has no para-
mount lien upon anything but his collaterals,
and is governed in his recourse against the
general assets by the requirement that there
should be a ratable distribution.
As the case before us is to be controlled by
the act of Congress, it would appear unneces-
sary to advert to state decisions copstruinff
local statutes ; but inasmuch as lliose deci-
sions were referred to and cited as authority,
I will briefly notice them. They are referred
to in the margin, and divide themselves into
four classes : 1. Those which maintain that
where ratable distribution is required, the
creditor must account for his security before
proving.* 2. Those cases which, on the con-
trary, decide that to allow the creditor to
prove for his whole claim without deduction
of security is not incompatible with ratable
distribution, and hold that the security need
not be taken into account.* 3. Those cases
ft 69] which, while seemingly denying *the obliga-
tion of the secured creditor to account for
his security, yet practically work out a con-
trary result bv requiring deduction upon col-
laterals as collected, and affording remedies
to compel prompt realization of collaterals.'
4. Those which originated in purely local
statutes, and which hold that the secured
creditor can prove for the whole amount
without reference to either the bankruptcy
or the chancery rule.* And in the margin
I supplement the compilation heretofore
made by a reference to some state statutes
and decisions referring to statutes which ex-
pressly provide that the claimants upon an
insolvent estate can only prove for the bal-
ance due after deduction of anj tecnritf
held.*
Of course, for the purposes of this cue,
only the first two classes of cases need beeoa-
sidered. The first class is well represented by
two Massachusetts cases: Aatory v. Framem,
16 Mass. 308, and Famum r, BouUOe, U
Met 159. In the first-named ease Chkf
Justice Parker said (p. 311) : '^ it vert
not so, the equally intended to be prodaeed
by the ^bankrupt laws would be groasly tiih 11
lated, and the creditor holding the pled^
would, in fact, have a greater security thai
that pledge was intended to give him. For
originally it would have been security oaly
for a portion of the debt eoual to its vtimt;
whereas by proving the whole debt, and hoU-
ing the pledge for the balance, it becooKf »
curity for as much more than its valoe as it
the dividend, which may be received upon tte
whole debt"
In the later case Chief Justice Shaw mm-
nounced the rule as follows (13 Met 164 1:
'If the mortgage remained in force at tbt
time of the decease of the debtor, then it »
very clear, as well upon principle as upon sa-
thority, that the crcMiitors cannot prove tWir
debt without first waiving their mortme,
or, in some mode, applying the amount tbcrr
of to the reduction of ike debt, and tba
proving only for the balance. Amorf v.
Francis, 16 Mass. SOS."
The second class of cases may be tjuliid
by the case of People v. Remington, 121 V. T.
328 [8 L. R. A. 458] , where the condusaoB «f
the court was placed upon the ground thtt
the rule in banKruptcT originated in an fx-
press requirement in the bankrupt act« othv
than that for a ratable distribution. Tkt
court, speaking through Qray, J., mii if-
332):
"Some confusion of thought teems to It
worked by the reference of the dedsioa of tbt
^Amory v. Francis (1820) 16 Mass. 808 ; Far-
nam v. Boatelle (1847) 18 Met 159: Vander-
veer v. Conover (1888) 16 N. J. L. 401 ; Bell v.
Fleming's Executors (1858) 12 N. J. Bq. 13, 25 :
Whittaker v. Amwell National Bank (1894) 52
N. J. Bq. 400 : Fields v. Creditors of Wheatley
(1858) 1 Sneed, 351 ; WInton v. Bldrid«e (1859)
8 Head, 861; Wurtz v. Hart (1862) 18 Iowa,
515; Searle, Bxecntor, v. Bmmbach, Assignee
(1862) 4 Western Law Monthly (Ohio) 380;
Re Frasch (1802) 5 Wash. 844 ; National Union
Bank v. National Mechanics* Bank (1895) 80
Md. 371 [27 L. R. A. 476] ; American National
Bank v. Branch (1806) 57 Kan. 27; Security
Investment Co. v. Richmond National Bank
(1807) 58 Kan. 414.
'FIndlay v. Hosmer (1817) 2 Conn. 850;
Moses V. Ranlet (1822) 2 N. H. 488; West v.
Bank of Rntland (1847) 10 Vt 403; Walker
V. Baxter (1854) 26 Vt. 710. 714; Re Bates
(1886) 118 111. 524 [59 Am. Rep. 888] ; Fomess
V. Union National Bank (1803) 147 111. 570;
Levy V. (Hilcago National Bank (1895) 158 111.
88 (80 L. R. A. 830] ; Allen v. Danlelion (1887)
15 R. I. 480; Greene v. Jackson Bank (1805)
18 R. I. 779; People v. B. Remington A Sons
(1800) 121 N. T. 328 ; Third National Bank of
Detroit V. Hang (1800) 82 Mich. 607 [11 L. R.
A. 327] : Kellogg v. Miller (1B92) 22 Or. 406;
Winston V. Biggs (1805) 117 N. C. 206.
•Re Bstate of McCnne(1882) 76 Mo. 200;
654
SUte V. Nebraska Savings Bank (18»4> «• !<
342 ; Jamison v. Adler-(;oldman ComwlwlM €^
(1894) 59 Ark. 548. 552 : PbUadelphU Wart*
bouse Co. V. Annlston Pipe Worts (18Mt Kl
Ala. 357; Brie v. Lane (1896) 23 C^>te. 171
«Shank*s ft Freedley*s Appeals (1S45> 2 Pa
St 804 ; Morris v. Olwlne (1854) S3 Pa 44L
442 ; Kolm's Appeal (1856) 37 Pa 43 : MOtan
Appeal (1860) 85 Pa. 481: Pattca*i A9vmt
(1863) 45 Pa. 151 [84 Am. Dec 479]. Aadw
a reference to the cases In Peaasylvsala li
Beyer's Appeal (1894) 163 Pa. 143.
•Indiana: — 0>mb6 v. Union Trait Ca Ht
Ind. 688, 691 : Kentucky :— SUtntes 1894 iBn^
bour k Carrol rs ed.) chap. 7. I 74, p, 193
of Lonlsvllle v. Lockrldge. 3 Ky. 473
chnsetts :— Act of April 28. 1838. chap^ 1«1|S.
(General Statntes 1860. diap. 118. I 37: VKM^
gan: — 2 How. Stat. I 8834. p. 3156.
sota:— By sUtnte March 8. 18«>, the
Is made the primary fnad. to whldi
be had before a personal jodgmcat cas l»^*»-
tained against the debtor for a deficit (Svtfk «.
Fletcher. 6 Minn. 550) : New BaBpeUrt^-
Laws 1863, chap. 3594: 8o«tb CarftUM -
Plester v. Plester. 33 8. C 146, [53 Aa. »»
711] : Wheat v. Dingle. 83 & C 473, [S L i^
A 875] ; Texas :— Civ. Stat. 1897. sit O: Ai»
1870, chap. 58, i 18 : Willis v. HtMlaai (1**>
[18 Tex. av. App. 689], 36 & W. 839.
i
1898.
MwBBn.fi ▼. National Bakk of JaOkbonyillb.
170-171
question to the rules of law governing the
tdministration of estates in bankruptcy;
but there is no warrant for any such refer-
CDce. The rules in bimkruptcy cases pro-
ceeded from the express proyisions of the
statute, and they are not at all controlling
upon a court administering, in equity, upon
the estates of insolvent debtors. The bank-
ruptcy act requires the creditor to give up
hia security in order to be entitled to prove
hia whole debt; or, if he retains it, he can
only prove for the balance of the debt after
deducting the value of the security held. The
jurisdiction in bankruptcy is peculiar and
Bpedal, and a particular mode of adminis-
tration is prescribed by the act."
Having thus eliminated the bankruptcy
rule, the court reviewed the decisions in Ma-
$on V. Bogg and Kellock*8 Case^ and held
those cases to be controlling. The Reming-
V\t<m Cfase, ^therefore, as well as those of which
it is a type, need not be further reviewed, as
the fundamental error upon which they rest
has been fully stated in what I have pre-
viously said.
It is necessary, however, to call attention
to the fact that in the cases which decline
to apply the rule in bankruptcy, and refuse
to enforce the provision for ratable distribu-
tion, there is an entire want of harmony as
to the time when the rights of creditors are
fixed with respect to the amount of the claim
which may be proved a^inst general assets ;
tome holding tliat dividends are to be paid
on the amount due at the date of insolvency,
others on the amount due at the time of
Sroof, and others upon the sum due when
ividends are declared. This confusion is
the necessary outcome of the erroneous pre-
mise upon which the cases rest. A siipilar
confusion, moreover, I submit, is manifested
1^ the rule now announced by the court;
since while it is avowedly rested upon the
defunct chancery rule exemplified in Mtison
y. Bogg and the Kellock Case, yet in efifect
it fails to follow the very rule upon which
the decision is based. This is clear when it
is borne in mind that the chancery rule was
decided in both Mason v. Bogg and the Kel-
lock Case to be that the amount of the claim
of the creditor was fixed by the date when
proof was actually made, and yet under the
authority of the chancery rule and the cases
in question the court now decides that the
rights of the secured creditor are fixed by
insolvency. Thus the chancery rule is ap-
plied and at the same time repudiated in an
important particular, for the erave differ-
ence between allowing a secured creditor to
prove only for the amount due when proof
was made, and therefore compelling him to
account for all collections realized on collat-
erals up to that time, and allowing him lone
after insolvency to prove, by relation, as m
the date of the insolvency, and disregard the
collections actually made, is manifest. In
this connection it may not be amiss to call
attention to the fact that if the bankruptcy
rule was applied in the proof of claims, the
amount of the claim would not vary, whether
the date of insolvency or the time when proof
was made was held to be the date when the
rights of the creditor in the fund were fixed,
178 U. 8.
^Moreover, I submit that the propositiona[XT8}
now adopted, which reject the bankruptcy
rule, rest on reasoning which, if it be logical-
ly applied, requires the enforcement of the
Mnkruptcy rule in its integrity. It seems
to me it has been shown by the doctrine an-
nounced byLord Hardwicke in 1743 (BromZey
V. Chodere, supra), that the stoppage of in-
terest on tiie claims of all creditors was but
an essential evolution of the principle ol
ratable distribution. This stoppage of interest
at the period named is now upheld by the
rule sanctioned by this court. This, then,
takes the provision of the bankrupted rule
which favors the secured creditor, and which
arises alone from ratable division, and gives
him the benefit of it, while at the same time
rejecting the obligation to account which
arises from and depends on the very princi-
ple of ratable distribution which is in part
enforced. To repeat, it strikes my mind
that the conclusion now announced is this,
that the obsolete chancery rule both applies
and does not apply, that the bankruptcy
rule at the same time does not apply and
does apply, the result of this conflict being
to so interpret the act of Congress as to
strike from it the beneficent provision for
equality of distribution among general cred*
itors.
Mr. Justice Qrmj dissenting:
While also unable to concur in the opinion
of the majority of the court, I prefer to rest
my dissent upon the effect of the legislation
of Congress, read in the light of the English
statutes and decisions before tho American
Revolution, and of the judgments of the
courts of the United States, — without par-
ticularly considering the cases in £n|;land
in recent times, or the confiicting decisions
made in the courts of the several states un-
der local statute or usage, or upon general
theory. As the course of reasoning m sup-
port of this view traverses part of the g[round
covered by the other dissenting justices, I
shall endeavor to state it as shortly as pos-
sible.
The English bankrupt acts in force at the
time of the Declaration of Independence, so
far as they touched the distribuiion of a
bankrupt's estate among his creditors, were
the 'statute of 13 Eliz. (1571) chap. 7, § 2,[I7a}
which directed the estate to be applied to the
"true satisfaction and payment of the said
creditors, that is to say, to every of the said
creditors a portion, rate and rate alike, ac-
cording to the quantity of his or their debts;"
and the statute of 21 James I. (1G23) chap.
19, § 8 (or $ 9), which made more specific
provisions against allowing any creditors,
whether "havinc security" or not, to prove
"for any more 9ian a ratable part of their
just and due debts with the otner creditors
of the said bankrupt." As appears on the
face of this provision, the word "security"
was evidently there used, not as including a
mortgage or other instrument executed by
the debtor by way of pledging part of his
proper^ as collateral security for the pay-
ment of a debt, but merely as designating a
bond or writing which was evidence of the
debt itself as a direct personal obligation;
65S
168-170
Supreme Coubt of the United States.
Oct. Tbo^
the secured creditor, who is allowed in the
case now decided to disregard his security
and prove for the whole amount of his claim,
had a paramount lien, not only upon his col-
laterals, but upon each and every asset of the
insolvent bank, the rule in the Lewis Case
would be apposite. But that is not the
character of the case now before the court,
since here a secured creditor has no para-
mount lien upon anything but his collaterals,
and is governed in his recourse against the
general assets by the requirement that there
should be a ratable distribution.
As the case before us is to be controlled by
the act of Congress, it would appear unneces-
sary to advert to state decisions copstruinff
local statutes ; but inasmuch as tiiose deci-
sions were referred to and cited as authority,
I will briefly notice them. They are referred
to in the margin, and divide themselves into
four classes: 1. Those which maintain that
where ratable distribution is required, the
creditor must account for his security before
proving.^ 2. Those cases which, on the con-
trary, decide that to allow the creditor to
prove for his whole claim without deduction
of security is not incompatible with ratable
distribution, and hold that the security need
not be taken into account.* 3. Those cases
ft 69] which, while seemingly denying *the obliga-
tion of the secured creditor to account for
his security, yet practically work out a con-
trary result bv requiring deduction upon col-
laterals as collected, and affording remedies
to compel prompt realization of collaterals.'
4. Those which originated in purely local
statutes, and which hold that the secured
creditor can prove for the whole amount
without reference to either the bankruptcy
or the chancery rule.* And in the margin
I supplement the compilation heretofore
made by a reference to some state statutes
and decisions referring to statutes which ex-
pressly provide that the claimants upon an
^Amory v. Francis (1820) 16 Mass. 808 ; Far-
nam v. Boatelle (1847) 18 Met. 159: Vander-
veer v. Conover (1888) 16 N. J. L. 491 : Bell v.
Fleming's Executors (1858) 12 N. J. Bq. 18. 25 ;
Whlttaker v. Amwell National Bank (1894) 52
N. J. Bq. 400 : Fields v. Creditors of Wheatley
(1858) 1 Sneed, 851 ; Wlnton v. Bldrldfe (1859)
8 Head, 861; Wurts v. Hart (1862) 13 Iowa,
515; Searle, Bxecntor, v. Bmmbach, Assignee
(1862) 4 Western Law Monthly (Ohio) 880;
Re Frascb (1892) 5 Wash. 844 : National Union
Bank v. National Mechanics* Bank (1895) 80
Md. 871 [27 L. R. A. 476] ; American National
Bank v. Branch (1896) 57 Kan. 27; Secnrlty
Investment Co. v. Richmond National Bank
(1897) 58 Kan. 414.
'FIndlay v. Hosmer (1817) 2 Conn. 850;
Moses V. Ranlet (1822) 2 N. H. 488; West v.
Bank of Rutland (1847) 19 Vt 408; Walker
V. Baxter (1854) 26 Vt. 710, 714; Re Bates
(1886) 118 III. 524 [59 Am. Rep. 888] ; Fomess
V. Union National Bank (1898) 147 III. 570;
Levy V. Chicago National Bank (1896) 158 IlL
88 (80 L. R. A. 830] ; Allen v. Danlelson (1887)
15 R. I. 480; Greene v. Jackson Bank (1896)
18 R. I. 779; People v. B. Remington A Sons
(1800) 121 N. T. 828 : Third National Bank of
Detroit V. Hang (1890) 82 Mich. 607 [11 L. R.
A. 327] : Kellogg v. Miller (1B92) 22 Or. 406;
Winston V. Biggs (1895) 117 N. C. 206.
•Ae Bstate of McCnne(1882) 76 Mo. 200;
654
insolvent estate can only prove for the bal-
ance due after deduction of any seearxty
held.*
Of course, for the purposes of this estt,
only the first two classes of cases need be eoa-
sidered. The first class is well represented bj
two Massachusetts cases: Aatory v. Pmmdt^
16 Mass. 308, and Famum v. BouteUt, 13
Met. 159. In the first-named case Ckid
Justice Parker said (p. 311) : 'Of it vert
not so, the equally intended to be prodand
by the ^bankrupt laws would be graulj tW{11
lated, and the creditor holding the pled^i
would, in fact, have a greater security tbu
that pledge was intended to give him. For
originally it would have been security oaij
for a portion of the debt eoual to its vmloe;
whereas by proving the whole debt, and hold-
ing the pledge for the balance, it becomes tr
curity for as much more than its value as ii
the dividend, which may be received upon tht
whole debt"
In the later case C^ief Justice Shaw mm-
nounced the rule as follows (13 Met. 164):
'If the mortgage remained in force at the
time of the decease of the debtor, then it »
very clear, as well upon principle as upon ao-
thority, that the creditors cannot prove thor
debt without first waiving their mortme,
or, in some mode, applying the amount tber»>
of to the reduction of Uie dtkt, and tba
proving only for the balance. Awtorf v.
Francis, 16 Mass. 308."
The second class of cases may be tymM
by the case of People v. RemingUmy 121 V. T.
328 [8 L. R. A. 458], where the condcsioa of
the court was placed upon the ground tbat
the rule in banKTuptcr originate in an ex-
press requirement in the bankrupt acts othv
than that for a ratable distribution. TW
court, speaking through Qray, J., said ipw
332):
"Some confusion of thought seems to It
worked by the reference of the decisSon of the
State V. Nebraska Savings Bank (18»4> «• H
842 ; Jamison v. Adler-(3oldman Comslsaloa C^
(1894) 59 Ark. 548. 552 : PblladelphU Wtn-
bouse Co. V. Annlston Pipe Worts (1894^ IM
Ala. 857; Brie v. Lane (1896) 22 Cokk. S7X
«Shank*s ft Freedley's Appeals (1S45> S Pa
St 804 ; Morris v. Olwlne (1854) S3 Pa 441.
442; Kclm's Appeal (1856) 37 Pa. 43: WOk^
Appeal (1860) 85 Pa. 481 : Patten's A9^
(1868) 46 Pa. 151 [84 Am. Dec 479]. Aai m
a reference to the cases In Peaasylraala. ^
Boyer's Appeal (1894) 163 Pa. 143.
•Indiana: — 0>mbe v. Union Trvst Ca t4t
Ind. 688, 691 ; Kentncky :— SUtntes 18»4 fj
bour k Carroirs ed.) chap. 7. | 74, p, 193
of Lonlsvllle v. Lockridge. 2 Ky. 473: '
cbnsetts :— Act of April 28. 1838. chap^ 161. M:
General Statntes 1860. ^ap. 118. I 3T : W)^*'
gan: — 2 How. Stat, i 8824. p. 3166: Wasi
sota : — By statute March 8. 1860. the msiK7
Is made the primary fund, to which iwerr mtM
be had before a personal jodgmeat caal* at-
tained against the debtor for a dcAdt (Svtft t.
Fletcher, 6 Minn. 650) ; New BaBp«kiit>-
Laws 1862, chap. 2694: South CarftUM —
Pleeter v. Plester, 22 8. C 146. (63 Am 1»
7111 : Wheat v. Dingle. 82 & C 473, [S U B.
A. 8761 ; Texas :— Civ. Stat. 1897. art. 81: *<»
1879, chap. 68, i 18 : Willis v. HoHaai il***
[18 Tex. Civ. App. 6891, 86 & W. S39.
173 «.&
1896.
MwBBn.fi T. National Bakk of Jaokbonyillb.
170-171
question to the rules of law governing the
tdmuuBtration of estates in bankruptcy;
Imt there is no warrant for any such refer-
ence. The rules in bankrupted cases pro-
eeeded from the express provisions of the
statute, smd they are not at all controlling
upon a court administering, in equity, upon
the estates of insolvent debtors. The bank-
ruptcy act requires the creditor to give up
his security in order to be entitled to prove
his whole debt; or, if he retains it, he can
only prove for the balance of the debt after
deducting the value of the security held. The
jurisdiction in bankruptcy is peculiar and
special, and a particular mode of adminis-
tration is prescribed by the act."
Having thus eliminated the bankruptcy
rule, the court reviewed the decisions in Ma-
$(m V. Bogg and Kellock'a Case^ and held
those cases to be controlling. The Reming-
V^on Case, * therefore, as well as those of which
it is a type, need not be further reviewed, as
the fundamental error upon which they rest
has been fully stated in what I have pre-
viously said.
It is necessary, however, to call attention
to the fact that in the cases which decline
to apply the rule in bankruptcy, and refuse
to enforce the provision for ratable distribu-
tion, there is an entire want of harmony as
to the time when the rights of creditors are
fixed with respect to the amount of the claim
which may be proved a^inst general assets ;
some holding that dividends are to be paid
on the amount due at the date of insolvency,
others on the amount due at the time of
proof, and others upon the sum due when
dividends are declared. This confusion is
the necessary outcome of the erroneous pre-
mise upon which the cases rest. A siniilar
confusion, moreover, I submit, is manifested
1^ the rule now announced by the court;
since while it is avowedly rested upon the
defunct chancery rule exemplified in Mason
y. Bogg and tiie Kellock Case, yet in effect
it fails to follow the very rule upon which
the decision is based. This is clear when it
is borne in mind that the chancery rule was
decided in both Mason v. Bogg and the Kel-
lock Case to be that the amount of the claim
of the creditor was fixed by the date when
proof was actually made, and yet under the
authority of the chancery rule and the cases
in question the court now decides that the
rights of the secured creditor are fixed by
insolvency. Thus the chancery rule is ap-
plied and at the same time repudiated in an
important particular, for the erave differ-
ence between allowing a secured creditor to
prove only for the amount due when proof
was made, and therefore compelling him to
account for all collections realized on collat-
erals up to that time, and allowing him lone
after insolvency to prove, by relation, as ca
the date of the insolvency, and disregard the
eollections actually made, is manifest. In
this connection it may not be amiss to call
attention to the fact that if the bankruptcy
nde was applied in the proof of claims, the
amount of the claim would not vary, whether
the date of insolvency or the time when proof
WIS made was held to be the date when the
rights of the creditor in the fund were fixed.
173 U. 8.
^Moreover, I submit that the propositionstXTB}
now adopted, which reject the bankruptcy
rule, rest on reasoning whidi, if it be logical-
ly applied, requires the enforcement of the
bankruptcy rule in its integrity. It seems
to me it has been shown by the doctrine an-
nounced by Lord Hard wicke in 1743 {Bromley
V. Ooodere, supra), that the stoppage of in-
terest on tiie claims of all creditors was but
an essential evolution of the principle of
ratable distribution. This stoppage of interest
at the period named is now upheld by the
rule sanctioned by this court. This, then,
takes the provision of the bankruptcy rule
which favors the secured creditor, and which
arises alone from ratable division, and gives
him the benefit of it, while at the same time
rejecting the obligation to account which
arises from and depends on the very princi-
ple of ratable distribution which is in part
enforced. To repeat, it strikes my mind
that the conclusion now announced is this,
that the obsolete chancery rule both applies
and does not apply, that the bankruptcy
rule at the same time does not apply and
does apply, the result of this conflict being
to so interpret the act of Congress as to
strike from it the beneficent provision for
equality of distribution among general cred-
itors.
Mr. Justice Qrmj dissenting:
While also unable to concur in the opinion
of the majority of the court, I prefer to rest
my dissent upon the effect of tne legislation
of Congress, read in the light of the English
statut^ and decisions before the American
Revolution, and of the judgments of the
courts of the United States, — without par-
ticularly considering the cases in £n|;land
in recent times, or the confiicting decisions
made in the courts of the several states un-
der local statute or usage, or upon general
theory. As the course of reasoning m sup-
port of this view traverses part of the g[round
covered by the other dissenting justices, I
shall endeavor to state it as shortly as pos-
sible.
The English bankrupt acts in force at the
time of the Declaration of Independence, so
far as they touched the distribuiion of a
bankrupt's estate among his creditors, were
the •statute of 13 Eliz. (1571) chap. 7, § 2,[17»J
which directed the estate to be applied to the
^'true satisfaction and payment cf the said
creditors, that is to say, to every of the said
creditors a portion, rate and rate alike, ac-
cording to the quantity of his or their debts;"
and the statute of 21 James I. (1G23) chap.
19, § 8 (or § 9), which made more specific
provisions against allowing any creaitors,
whether "having security" or not, to prove
"for any more uian a ratable part of their
just and due debts with the otner creditors
of the said bankrupt." As appears on the
face of this provision, the word "security"
was evidently there used, not as including a
mortgage or other instrument executed by
the debtor by way of pledging part of his
property as collateral security for the pay-
ment of a debt, but merely as designating a
bond or writing which was evidence of the
debt itself as a direct personal obligation;
65S
l78-i7«
SUPBBMS COUBT OF THE UnITKD StaTKS.
mnd the objects of the provision would ap-
pear to have been to put all debts, whether
ij specialty or by simple contract, U][K)n an
equal footing in the ratable distribution of
a bankrupt's estate, and to permit the real
amount only of any debt, and not an^ larger
sum named in a bond or other special^, to
be proved in bankruptcy. 4 Statutes oi the
Bealm, 539, 1228; 2 Cooke's Bankrupt Laws
(4th ed.) [18] [33]; 1 lb. 119: Bac Abr.
Obligationa, A; 3 BL Com. 439.
Neither of those statutes contained any
provision whatever for deducting the value
of collateral security and proving the rest
of the debt. Yet from the earlie^st period of
which there are an^ reported cases, it was
uniformly held, — ^without vouching in any
Srovision of the bankrupt acts ouier than
tiose directing a ratable distribution among
all the creditors, — and had long before the
American Revolution become the settled
practice in the court of chancery, that a
creditor could not retain collateral security
received by him from the bankrupt and prove
for his whole debt, but must have his collat-
eral security sold and prove for the rest of
the debt only. The authorities upon this
S)int are collected in the opinion of Mr. J us-
ee White.
After the American Revolution the provi-
sion of the statute of James I. was thrice re-
|174]enacted, with little modification. *Stats. 5
Geo. IV. (1824) chap. 98, $ 103; 6 Geo. IV.
(1825) chap. 16, S ld8; 12 & 13 Vict. (1849)
chap. lOG, § 184. But the rule established
bv the decisions and practice of the court
of chancery, as to the proof of secured debts,
was never expressly recognized in any of the
English bankrupt acts until 1860, when pro^
visions to that effect were inserted in the
statute of 32 & 33 Vict chap. 71, § 40. And
there is no trace of a different rule in Eng-
land, in proceedings in equity for the distri-
bution of the estate of any insolvent debtor
or corporation, until more than sixty years
after the Declaration of Indepenaence.
Amory v. Francis (1820) 16 MaAs. 308, 311;
Oreentcood v. Taylor (1830) ) Russ. & M.
185; Mason v. Bogg (1837) 2 Myl. & C. 443.
In 1868, indeed, the court of cluincery de-
clined to apply the bankruptcy rule to pro-
ceedings unaer the winding-up acts. KeU
k>ck'8 Case, L. R. 3 Ch. 769. But Parlia-
ment, by the ludicature acts of 1873 and
1875, applied tnat rule to such proceedings.
8tat8. 36 & 37 Vict. chap. 66, S 25 ( 1 ) ; 38
A 39 Vict. chap. 77, § 10. And Sir George
Jessel, M. R., has pointed out the absurdity
of having different rules in the cases of liv-
ing and of dead bankrupts. Re Hopkins
(1881) L. R. 18 Ch. Div. 370, 377.
The first bankrupt act of the United
States, enacted in 1800, was in great part
copied from the earlier bankrupt acts of
England, and condensed the provisions,
above mentioned, of the statutes of Elizabeth
and of James I. in this form: *'In the dis-
tribution of the bankrupt's effects there
sbaJl be paid to every of the creditors a por-
tion-rate, according to the amount of tneir
respective debts, so that everv creditor hav-
ing security for his debt by judgment, stat-
ute, recognizance, or speciadty, or having an
656
attachment under anv of the Iaws of tkc i»
dividual states, or of ^e United States, «
the estate of such bankrupt (provided ttee
be no execution executed upon any of tke reel
or personal estate of such bankrupt, bctet
the time he or she became banloi^ta) , shafl
not be relieved upon any audi judgmma/L,
statute, recognizance, specialty, or attach-
ment, for more than a ratable part of Us
debt with the other creditora of the baak-
rupt" Act of AprU 4, 1800, diap. 19, f 31 ;
2 Stat, at L. 30. That provision moat have j
received the *saine construction that had beoCl^
given by the English judges to the statates
therein re-enacted. Tucker v. OxUp (IMt)
5 Cranch, 34, 42 [3: 29, 31] ; 8oott ▼. Arm-
strong (1892) 146 U. & 499, 511 [36: 1(»,
1063].
The bankrupt act of 1841, whkA ia wcfl
known to have been drafted by .Mr. Jwrties
Stoi^, omitted that section, and made as
specific provision whatever aa to the proof
of secured debts, but simply provided that
''all creditors cominff in and proving thor
debts under such bamonptcy, in the msiM'
hereinafter prescribed, the same betn^boaa
fide debte, snail be entitled to share u ths
bankrupt's properly and effects, pro raUt
without any priority or prefer3iioe whatae-
ever, except only for debts due by snA bank-
rupt to the United SUtes, and lor all dcte
due by him to persons who, by the lavs of
the United States, have a preferenoe. ia ess-
sequence of having paid moneys as his s«r»^
ties, which shall be first paid oat of the as>
sets." Act of August 19, 1841, chap. 9, S S;
5 SUt. at L. 444.
Yet Mr. Justice Story, both in the cireait
court and in this court, laid it down as sa
undoubted rule, that a secured creditor eooU
Srove onlv for the rest of the debt, after ds-
uctinff the value of the security gtroa Um
by the hankrupt himself of his own property.
Re Bahoook, 3 Story (1844) 393. $99. 499;
Re Christy [Eso parte City Ba^JLJ (184S) 3
How. 292, 315 [11: 603, 613].
The omission by that eminent jurist, wha
framing the act of 1841, of all specific provi-
sions on the subject as unnecessary, aad Ui
repeated judicial dedarationa, after he barf
b€^ habitually administering that act lor
three or four years, reocmixing that nde as
still in force, compel the inference that s
general enactment for the ratable distriba-
tion of the estate of an insolvent amoag aO
the creditors had the effect of prerentiag sMf
individual creditor, while retaining eUlal-
eral securi^ on part of the estate, from pn^
ing for his whole debt.
In 1864, Congress, in the first Mtioaal
bank act, after providing for the apfoiat-
ment of a receiver with power to coavtrt tke
assets of any insolvent national bank iato
money and pay it to the Treasurer of tke
United SUtes, subject to the order of tke
Comptroller of the Currency, further pro-
vided that ''from time to time the Ooaiptrol-
ler, after full provision shall *havt bsca fitATni
made for refunding to the United States aay
such deficiency in redeeming the bo<<» m
such association as is mentioned ia ^is acC
shall make a raUble dividend of ths mb9
so paid over to him by such reeehtr m aS
i«l&
Mbrrill t. National Bank of Jackbonyillb.
170 178
fuch claims as mav hav^ been proved to his
BfttisfacUon or adjudicated in a court of
competent jurisdiction/' Act of June 3,
1864, chap. 106, S 50; 13 Stat, at L. 115.
•"lie words of this act, reouiring "i^ ratable
dividend" to be paid "on all claims" proved
or adjudicated, are equivalent to the words
of the last preceding bankrupt act, direct-
ing that "all creditors coming In and proving
their debts . . . shall be entitled to share"'
in the estate "pro rata, without any priority
or preference whatsoever," and, in view of
the judicial construction which had been
given to that act, may reasonably be consid-
ered as having been intended by Congress to
have the same effect of. preventing a credit-
•r secured on part of the estate from proving
his whole debt without relinquishing or ap-
plvinff the security, although neither act spe-
eiflcally so provided.
If such was the rule under the national
bank act of 1864, it could not be affected, as
to national banks, by the express affirmance
of the rule in the bankrupt act of 1867, or
by the re-enactment of the provisions of each
of these two acts in the Revised Statutes.
And the extension of the bankrupt act of
1867 to "moneyed business or commercial
corporations and ioint-stock companies" in-
ereases the improbability that Congress in-
tended banking associations to be j^ovemed
by a different rule from that governing other
private corporations, as well as natural per-
sons, in regard to the effect which a credit-
or's holding collaterid security should have
iip<m the sum to be proved by him against
in insolvent estate. Act of March 2, 1867,
ebap. 176, §S 20, 37; 14 Stat at L. 526, 535;
Bev. Stat {§ 5075, 5236.
Keliance has been placed upon the remark
of Mr. Justice Swayne in Letoia v. United
Btate», 02 U. S. 618. 623 [23: 513, 515], that
*H is a settled principle in equity that a
creditor holding collaterals is not bound to
apply them before enforcing his direct rem-
edies against the debtor.'*^ But he added,
ry^This •& admitted," so that it is evident that
tlie point was not controverted by counsel,
or ntnch considered by the court. Nor was
it necessary to the decision, which had noth-
ing to do with the right of an individual
creditor holding security upon the separate
proper^ of the debtor to prove against his
estate in bankruptcy; but simply affirmed
the right of the United States, holding a debt
ininst an English partnership, to prove the
woole amount of the debt against one of the
Partners, an American, in proceedings in
mkruptcy here under the act of 1867, with-
out surrendering or accounting for collateral
■ecurity siven to the United States by the
partnership. The United States were not
bound by the bankrupt acts, nor subject to
the rule of a ratable distribution, but were
entitled to preference over all other credit-
<«^. United States v. Fisher, 2 Cranch, 358
[2: 304] ; Harrison v. Sterry, 5 Cranch, 289
[3:104]; United States v. State Bank, 6
Pet 29 [8 : 308] ; United States v. Merron,
20 Wall. 251 [22: 275]. And, even as to a
Srivate creditor, it has always been held that
e is obliged to account for such securities
whose estate he seeks to prove ; and that a
creditor proving against the estate of n part-
nership IS not bound to account for 6ecu»\ty
given to him by one partner, nor a creditor
proving against the estate of one partner to
account for security given him by the part-
nership. Ex parte Peacock (1825) 2 Glyn
& J. 27; Re Plummer (1841) 1 Phill. Ch. 56;
Rolfe V, Flower (1866) L. R. 1 P. C. 27, 46;
Re Bahoock, 3 Story, 393, 400. To require
a creditor, before proving against the estate
of one partner, to surrender to the assignee
of that estate security held from the partner-
ship, would be to add to the separate estate
property which should go to the estate of the
partnership.
The ground and the limits of the rule in
bankruptcy were clearly stated by Lord
Chancellor Lyndhurst in Plummer's Case,
above cited, in which a partnership creditor
was allowed to prove a partnership debt
against the separate estate of each partner,
without surrendering or realizing security
held by him from the partnership. The
Lord Chancellor said: "Now, what are the
principles applicable to ca^es of this kind?
If *a creditor of a bankrupt holds a security[178^
on part of the bankrupt's estate, he is not en-
titled to prove his debt under the commis-
sion, without ffiving up or realizing his se-
curity. For the principle of the bankrupt
laws is that all creditors are to be put on an
equal footing, and therefore, if a creditor
chooses to prove under the commission, he
must sell or surrender whatever property he
holds belonging to the bankrupt; but if he
has a security on the estate of a third person,
that principle does not apply; he is in that
case entitled to prove for the whole amount
of his debt, and also to realize the security,
provided he does not altogether receive more
than twenty shillings in the pound. That
is the ground on which the principle is estab-
lished; it is unnecessary to cite authorities
for it, as it is too clearly settled to be dis-
puted; but I may mention Ea parte Bennei,
2 Atk. 527; Et» parte Parr, 1 Rose, Bankr.
Rep. 76; and Ew parte Ooodman, 3 Madd.
373, — in which it has been laid down. The
next point is this. In administration under
bankruptcy, the joint estate and the sepa-
rate estate are considered as distinct estates ;
and accordingly it has been held that a joint
creditor bavin? a security upon the separate
estate is entitled to prove against the joint
estate without giving up his security, on the
ground that it is a different estate. That
was the principle upon which Ex parte Pea-
cock proceeded, ana that case was decided
first by Sir John Leach and afterwards by
Lord £ldon, and has since been followed in
Ew parte Bowden^ 1 Deacon & C. 135. Now
this case is merely the converse of that, and
the same principle applies to it." 1 Phill.
Ch. 59, 60.
This court, under the existing national
bank act, approving and following the ex-
ample of the English courts under the stat-
ute of 13 Elizabeth, above cited, has allowed
creditors to set off, against their claims on
the estate, debts due from them to the debtor
whose estate is in course of distribution, al-
only as he holds from the debtor against ' though the statute in question in either case
H3 U. S. U S., Book 43. 42 «57
17S-181
SUFBBMB COUBT OV THB UhITBD StATBS.
coEtained so provision directing or permit-
ting a set-off. Scott y. Armstrong, 146 U. S.
499, 511 [36: 1059, 1063]. In giving effect
to a statute which simply dire^ an equal
and ratable distribution of a debtor's estate
among all creditors, without sajring anythi^
UTOlabout either collateral *secun1y or set-off,
there would seem to be quite as much ground
for requiring each creditor to account for his
collateral security, for the benefit of all the
creditors, as for allowing him the benefit of
• set-off, to their detriment.
For the reasons thus indicated, I cannot
•void the conclusion that, under every act of
Congress directing the ratable distribution
among all creditors of the estate of an insol-
Tent person or corporation, and making no
special provision as to secured creditors, an
individual creditor holding collateral secur-
ity from the debtor on part of the estate in
eourse of administration is not entitled to a
dividend upon the whole of his debt without
releasing the security or deducting its value;
and that therefore the judgment of the cir-
cuit court of appeals should be reversed.
QREEN BAY & MISSISSIPPI CANAL
COMPANY
PATTEN PAPER COMPANY et dL
(See 8. C. Reporter's ed. 179-100.)
Jurisdiction of state courts as to the rights
of riparian owners.
The rights and disputes of riparian owners as
to water which has fonod Its way Into the
nnlmproved bed of a stream must be deter-
mined by the state coorts, although they can-
not Interfere with the control of the snrplos
water power Incidentally created by a dam
and canal owned and operated by the United
States.
[No. 14.)
Submitted January 16, 1899, Decided Feb-
ruary 20, 1899.
There were two petitions for rehearing of
this case, which was decided at the present
term, and reported in 172 U. S. 58, ante, p.
364.
The petitions for rehearing were as fol-
lows:
First Petition for Rehearing.
|1S0] *The opinion herein showjB that the plain-
tiffs below, defendants in error, dia not
make the leading facts respecting their
wster power plain. Hence they resj^ctively
petition the Honorable Court for a rehearing
upon the following grounds, being matters m
fact only:
I. The claim of the original plaintiffs
seems to have been lost sight of. Iliis court
668
says: ^t is apparent from the
facts that the water power in qoestioB did
not exist while the stream was in its iiatnnl
condition. Nor was it created by the crectu
of a dam by private persons lor that sole
purpose."
Plaintiffs below, defendants Ib error,
should have made it appear, as the &ct it,
that the water power about wbic^ they art
coDtending is created by a dam bmlt by pri-
vate persons, Mathew J. Mead ajid K. IL
Edwards, riparian owners, in 1880, for the
sole purpose of water power. This dam fim
nishes a head of 12 to 18 feet, imis on tiiifl
power cost about $70,000.
This private dam was acroes an mBavi-
gable chcmnel between islands Tliree ani
Four. Its legality cannot be qiiestinBrd
herein.
If its legality could be questioned by other
parties, it cannot by the canal company, Iw-
cause, as the complaint recites^
On August lst,1881,it,asriparia]i owner.
leased to the Union Pulp Company, one of
the plaintiffs below, "a constant flow el
about 20,000 cubic feet of water per minvtr.
Sarcel of and to be drawn from said Mmi
; Edwards water power, for ^hydraab^lC
power, for a term of ten years, renewable far
one hundred years; whidi said leesrifioM ta-
terest said Union Pulp Company stUl hoMv.
'That said Union Pulp CompaBy kts
erected on said lot a pulp miU worth aboet
forty thousand dollars ($40,000) and
operates the same, running the same by
water power."
Original defendant Kelso, for
Pulp Company was afterwards substitelcd,
stands in the same relation to the eanal eoa>
pany.
An examination of the printed record wiB
show that in many other respeeta ^ origi-
nal plaintiffs, defendants in er
failed to make the facts of this
ent to this court.
II. This court seems to us to have btU is
142 U. S. 260, 270, 35 L. ed. 1009, 101$, tha
it was necessary that there should be eolies
of taking while compensation oooM bs ba4
No other view seems admissible.
The notice of taking held snflleitnt fa M
If. S. 36 L. ed. was given to the ITsiiirsnss
Water Power Company only. There is m
pretense of notice of taking as acsinit tht
original plaintiffs herein, or any o! the eve-
ers on the Mead and Edwards power or sri^
die channel. None of them were partiss Is
that suit.
Speaking of this notice Mr. Jnsties Brown
said: "Until this time there had b«B ws
active interference with any daia or ripaf^
ian rights belonging to the water
panv."
tierein the original plaintiffs
the action commenced, ever sinot have
and still are, using their water poeer
tween islands Three and Four to res '
mills. • One of thtm. Union Pnlp C^^^jj^*
1898.
Gbbem Bat & M. Canal Co. y. Pattbn Pafsb Co.
181>184
it a lessee of the canal company as riparian
smner of part of this mill power.
Hie canal company as riparian owner,
niited with the Fatten Paper Company in
leasing land and 1,000 cubic feet of water
power per minute, parcel of this Mead and
£dwaras, or middle power to Kelso, now
Beece Pulp Company. Not only had canal
eompany not nven notice of taking, but it
had recognized the title of riparian owners
•n this nuddle power by leasing to Union
Pulp Company original plaintiff, parcel of
such power, as riparian owner, ana uniting
i]with original *plaintiff, Patten Paper Com-
pany, as riparian owner, in lease of parcel of
this power to Kelso.
Compensation act of 1875 (18 Stat, at L.
S06, chap. 166) was repealed in 1888 (25
Stat, at L. 4, 21, chap. 4) . Hence any notice
tf taking after 1888 is fruitless. There was
DO claim made by canal company to this mid-
dle power otherwise than as riparian owner,
iDtd filing of cross bill in 1890.
m. This mill power can be preserved
without interfering with the use of all the
water of the river, by the canal company, on
its "appurtenant lots'' from to 2,000 feet be-
low the dam represented on sheet marked
*Raukauna'' on canal company's maps. Such
middle power may be supplied by me spent
water of the upper mills mentioned on page
9 of printed copy of opinion. But if canal
eompany changes its plans and draws the
water from the canal at lower points than
■ow and heretofore, the water will be di-
verted from this middle power, and the mills
on it become valueless.
The judgment should provide that 62-200
of the now of the river, its proportion as par-
titioned, should, after being used by canal
eompany, be permitted to flow into the mid-
dle channel to feed the mills of the ripari.an
owners on that power, including the lessees
ef the canal company.
If the judfrment should follow the opinion
mmaodified, it might be construed to permit
th2 canal company to violate its own lea.ses
to Union Pulp Company, original plaintiff,
and Geor^ F. Kelso (now R^se Pulp Com-
pany), original defendant.
We cannot think th^ court would so de-
termine in view of the facts evidently not
ioificiently presented.
rv. We failed to make clear to the court
another master of fact. The court says:
'^t was found b^ the trial court that 1)>e
Green Bay A Mississippi Canal Company
ha& leased all of the water power created by
the dam and canal, or arm of the dam, to l.e
used over the water lots abutting on the
canal."
We have not seen such a finding of tlip
trial court. The trial. court did find that
the canal company had leased all of the wa-
ter power "whicn it could find customers
for,'' not that it had leased all the wsicer
power "created by the dam and canal." '1 he
l]*canal company filed a schedule of its leases
flirting at the time of the trial.
This schedule, the company's own state-
inent, shows leases of water "to be used over
t>e water lots abutting on the canal" of only
860 horse power out of the 2500 horse power
173 U. S.
reserved. It also shows leases from the
pond at the middle power below the dam,
whereon are the mills of the original plain-
tiffs and whereon the canal company is ri-
parian owner of 900 horse power.
V. This power is one of those referred to
by Colonel Houston in his report to the Sec-
retary of War, accompany injg arbitrators' re-
port, whereir he says: "There is an im-
mense water power in the lower Fox entirely
independent of the works of improvement
part of which has been made available by
works of private parties." This was not
charged to the canai company by the United
States.
We respectfully certify to this Honorable
Court our full belief that the grounds as-
signed for the foregoing petition for rehear-
ing are meritorious and well founded in law.
Respectfully submitted,
Moses Hooper,
Attorney for Plaintiffs, Defendants in Error.
George 6. Greene,
of Counsel.
Second Petition for Rehearing.
The defendants in error respectfully peti-
tion this Honorable Court for a reheaVing
herein, upon the following grounds:
I. There is no controversy respecting the
ownership or control of the navigation of the
Fox river by the United States. All the par-
ties throughout the whole litigation have at
aJl times and in all places conceded such
ownership and control to be absolute and
paramount. The judgment under review
expressly recognized such ownership and
control. In its first subdivision it only par-
titioned such of the waters of the river at
were not required for the purposes of navi-
^tion. In its third subdivision it exprc3sly
limited the right of the defendants in errar,
as to the use of water below the dam, to such
as was not or might not be necessary for
navigation. 'Neither the parties nor the[18ft]
state supreme court have sought to invade
the empire of the United States over the nav-
igation or commerce of this river.
II. The opinion states that "Uie decisive
question in this case" is "whether the water
power ... is subject to control and ap-
propriation by the United States, owning
anci operating those public works, or by the
state of Wisconsin, within whose limits Fox
river lies."
We do not understand that any question
arises respecting the control of the water
Sower of the state of Wisconsin. The state
ces not claim any control over or interest
in it. The question in controversy seems to
us to be, Was the property of the riparian
owners under United States patent to 12,600'
horse power of water created by the foil of
Fox river below the dam, taken away from
such riparian owners without compensation
by section 16, act of Wisconsin of AUt^usr 8,
1848, sayinc: "Whenever a water power rfiall
be created by reason of any dam erected or
other improvements made on any of said
rivers, such water power shall belong to tJhe
state subject to the future action of the leg-
islature?"
Ihis is legislation; it is the only founda-
65»
104, 185
BUPRBMB GOUBT OV THB UhITKD STATSa.
tioD of the daim of the canal oompanj. At
paffe 78 the cross bill states the basis of the
claim of title as follows: 'That by the ap-
propriation under said act, approved August
8, 1848, and the building and maintaining of
the dam, canal, and embankment hereinbe-
fore stifled . . . the Green Bay &
Mississippi Oanal Company acquired . . •
the easement to and exclusive ownership of
all the hydraulic power created by said dam^
extension thereof and canal/'
The canal company makes no claim by vir-
tue of any grant from the United 3tate8. It
alleges that the dam and canal Srere con-
structed • . . under the act . . .
approved August 8, 1848, and acts of the
legislature subsequent thereto, other than
which there was no authority for building
and maintaining the same.'*
The controversy over construction of this
act arises between citizens of Wisconsin. Is
not the construction of a local statute, in
controversy between its own citizens, a state
question, and not a Federal q^uestionf
The state's construction of its own legis-
lation between its own citizens is binding on
this court.
8t, Anthony PdUa Water Power Oo. v. 8i.
Paul Water Contra. 168 U. 8. 349, 42 L. ed.
497, and cases* cited.
This court said of a state decision respect-
ing this identical act, in a controversy be-
tween the identical parties now before the
court: The construction thus given to this
act is obligatory upon this court." 142 Q.
8. 254, 277, 35 L ed. 1004, 1012.
We are not now questioning the juris-
diction of the court over this case, but only
the power of the court to determine certain
questions which are state, and not Federal.
in. On error to the state court in chan-
[1 86]cery casee * this court is concluded by the find-
ings of fact of the court below.
Egan v. Hart, 165 U. S. 188, 41 L. ed. 080;
Dotoer v. Richards, 151 U. 8. 658, 38 L. ed.
306 ; Backus v. Fort Street Union Depot Co.
160 U. S. 557, 42 L. ed. 853 ; Bartlett v. Lock-
wood, 160 U. S. 357, 40 L. ed. 455; Stanley
T. Schwalhy. 162 U. S. 255, 40 L. ed. 960.
The opinions of the Wisconsin supreme
court are a part of the record made such by
I 2410, Wisconsin Statutes of 1808, in force
since 1870.
"Sec. 2410. The supreme court iball ffive
their decisions in all cases in writing, which
• . . shall constitute • • • a part of
the record in the action . • • and shall
be certified therewith to any court of the
United States to which such action or pro-
ceeding, or the record thereof, may be in any
manner certified or removed."
Such opinions must therefore be examined
by this court as part of the record, to ascer-
taip what the court below found as facts.
Cross V. United States Mortg. Co. 108 U.
«. 477, 27 L. ed. 795; Egan v. Hart, 165 U.
8. 188, 41 L. ed. 680; Kreiger v. Shelby R.
Co. 125 U. S. 39, 31 L. ed. 675.
On appeals in equitable actions the su-
preme court of Wisconsin retries the case
upon the merits, so that its findings of facts
are ultimate findings in the case.
Whitney v. Traynor, 76 Wis. 628.
660
When the supreme eoort of
tried this case <m appeal it bad bcion it a
fuU record of aU the proceedinct in tht ~
er courts including all the
requests for findings, refnaali^
tione.
Some of the Facta Found bj ^m Wh
Supreme Ck>urt:
First. Such court found that tbe
never took any of the water poven
the dam, and never granted any sadi water
powers to the improvement ^^'^^p*^ or Is
the canal company.
We quote:
"The property owned bj the state and
granted to the improvement eompaay eoa-
sisted in an easement in the lands oecupwd
by the canal, dams, and ponds, and ikm water
powers incidentally created by tbo
The water powers which the state c
transferred to the improvemeat
were such as the state owned hw virtae «if
section 16 of the act of 1848, whidi provided:
'Whenever a water power shall be created hf
reason of any dam or other impmiiial
made on any of said rivers, sndi water po«cr
shall belong to the state.' The state did not
take or own real estate below its daaa, ex-
cept what was taken for and oeeo^ied bythe
caiial.
''This court held that the Gran B^ k
Mississippi Oanal Company owaad all the
water power which was created bj iuae>iai
tion and operation of a govemmeait daa st
Kaukauna; . . . the limit of thk ri|M
is at the point where il infrinffoa npoa at
riirhts of others. It concedea ul the ri^te
which the state had or could aeqnire m
against such lower owners.*
The finding above quoted, that tke alsAi
did not take or own real estate bdow te
dams, exc^t what was taken for and
pied by the canal, really covwa tte
question of fact as to its taking watai
ers below the dam. If it did not tefet'say
real estate below the dam, it took no walv
powers, for such water powara are part oad
parcel of the land itsell
Gould, Watera, | 204.
These findings are fully snpported ly fts
evidence, via.: the report of toe Seenlary ef
War to Congress^ and the aceompanyiaf rf
port of Major Houston to tbo Secretary of
War, as to the water powers which the eaasl
company claimed, before tbo board el aiW-
trators, to own at Kaukanna, and ftar Iks
value of which it gave credit to the UiM
Statea in its sale of improvenMBts to tht
United SUtes.
The report of Mafor Honston Is %tmaA al
page 69 of the canal company^ UMpfliriw
of laws and docnmenta refefied to ia tht
printed record.
Beferring to the water powwa er«lai If
the dams, and surplus water not ia|iini
for purposes of navigation, valned Iqr tt*
arbitrators at $140,000, the major sayi:
"This water power is estimated to 1m smI
to 14,000 horse power, distributed as frf-
lows, according to the testimony of
L. Martin, upon whoio ofidamja the
seems to be based.
At Appleton 6000 horse power ; st 0^
w,
1808*
Obsbk Bat & M. Ganal Go. y. Patten Papeb Co.
185, 186
dars, 1000 horse power; at Little Chute,
2500 horse power; at Elaukauna, 2500 horse
power; at*K&pid Croche, 1600 horse power;
at Little Kaukauna, 760 horse poWer; at
other points 750 horse power; in all, 14000
horse power.**
He further says in his report: 'There is
an immense water power in the lower Fox,
entirely independent of the works of im-
provement, part of which has been made
available by works of private parties."
The state supreme court found as a fact
that the water power created by the dam at
Kaukauna was about 2700 horse power, and
that on the rapids below the dam there was
about 12600 horse power. These findings,
together with the report of Maior Houston,
show it to be a corclusive fact that the state
pever took any of the water powers below
the dam, and that the canal company at the
time of the arbitration for the sale of the
improvement to the United States only
dauned to own at Kaukauna 2500 horse
Ewer which is a little less than that found
the state supreme court to be created by
e dam.
This daim of the canal company, at the
time of the arbitration and for the purposes
of arbitration, was an honest one, or else the
canal company, in only claiming to own 2500
horse power at that point, sought to play a
trick upon the government by withholding
from the arbitrators proof of its ownership
of 12600 horse power below the dam, if it in
fact owned the same, thereby largely reduc-
ing the amount to be credited uie govern-
ment for its franchises in the purchase by the
government of the property of the canal
Gompainr. The water power upon the rapids
below the dam at Kaiucauna is nearly equal
in extent to all the water powers which the
canal company, in its proofs before the ar-
bitrators, claimed to own upon the entire
Fox river.
From the above finding by the state su-
preme court, and the evidence supporting it,
'lit is clear *that the water powers below the
dam were never taken by the state, and were
never treated by the state, the canal com-
pany, or the United States, as the source of a
fond expended or to be expended in the com-
pletion and maintenance of the public im-
provement.
Second. The dam created 2700 horse power
of water.
Third. The water power below the dam
upon the rapids is 12600 hor.^ power.
Fourth. The ordinary fiow of the river is
300,000 cubic feet per minute.
Fifth. A flow of only 1000 cubic feet of
water a minute is required for the use of the
canal for the purposes of navigation during
the season of navigation; this to fill the
locks and supply waste by leakage and evap-
oration.
This finding it a verity as to the works of
improvement in the river at Kaukauna as
they exist to-day. The remainder of the or-
dinary fiow of the river, vie., 209,000 cubic
feet per minute, is not required for the pur-
poses of navigation, and constitutes the sur-
51ns water whidi, if not diverted to a pri-
73 U. 8.
vate use, would flow over the dam and
through the natural channels of the river.
Sixth. The river between the dam and the
slack water below is rapids, and has never
been navigable.
We do not claim that this flnding of non-
navigability of the river at this point ex-
cludes the United States from its sovereign
I>ower to control and improve the naviga-
tion of the Fox river, but only that the plac-
ing of structures in the bed of the stream
where it is not navigable for over a mile in
length, for hydrauuc or other purposes,
would work no injury to the navigation, and
could only be complained of by Vie state.
The supreme court of Wisconsin in A, (7.
Conn Co, v. Little Suamico Lumber Mfg. Co.
74 Wis. 652, expressly recognizee the right
of riparian owners to use navigable streams
ana their banks for purposes not inconsist-
ent with the public use, and to place obstruc-
tions in the beds of such streams when it
will not interfere with the navigation there-
of. We quote from opinion at page 657 :
'This plainly implies that an obstruction
in a navigable stream, which does not impair
the free navigation thereof, though not au-
thorized by law, is not a nuisance and un-
lawful. Dams, booms, mills, and bridges,
even, may be constructed on some navigable
streams m such a manner as not seriously
to aflfect the navigation thereof, or infringe
upon the common right. To say, therefore,
that there can be no obstruction or impedi-
ment whatsoever by the riparian owner in
the use of the stream or its banks would be
in many cases to deny all valuable enjoy-
ment of his property so situated."
See also State v. Carpenter, 68 Wis. 165.
Seventh. The diversion of the water of the
river through the canal for water power pur-
poses, ''by accelerating the current, impairs
navigation."
rv. The water powers reserved to the
canal company in its deed to the United
States were only those which the arbitrators
had valued at $140,000, and the title to
which was already in said company.
This seems to be recognized by this court
in that part of its opinion which says:
"The substantial meaning of the transac-
tion was that the United States granted to
the canal company the right to continue in
the possession and enjoyment of the water
powers and the lots appurtenant thereto,
subject to the rights and control of the United
States as owning and operating the public
works, and that the United States were cred-
ited with the appraised value of the water
powers and appurtenances and the articles
of personal property. The method by which
this arrangement was effected, viz., by res-
ervation in the deed, was an apt one," etc.
It already appears in this petition that the
arbitrators included in their award of $140,-
000 only 2500 horse power of water at Kau-
kauna, a little less than that found by the
state supreme court to be created by the dam,
leaving the 12600 horse power upon the rap-
ids below the dam (being the water power m
controversy) wholly untouched by the award
or the deed. This conclusion is emphasized
by the language of the reservation in the
661
aM-929
SUPRBMB COUBT OV THE UmITBD STATES.
Oct. Tbbi^
Injuries Is goTsmed by the laws of that state,
rather than by the law of the state In which
the Injuries occurred.
[No. 129.]
BmUnitt^d Jtmuary 12, 1899. Decided Felh
ruary 20, 1899,
ON A CEHTIFICATE from the United
States Circuit Court of Appeals for the
Sixth Circuit of a question of law for the
decision of this court in an action brought
by John A. Henrey against the Baltimore &
Cmio Railroad Company, in the Common
Pleas Court of Hancock Ck>unty, Ohio, to re-
oover damages for personal injuries caused
by the neffligence of the railroad company,
which action was removed into the Circuit
Court of the United States for the Northern
District of Ohio. After such removal plain-
tiff died, and the action was revived in the
name of his administrator appointed in Ohio.
QuefttUm answered in the negative,
Measra. Hvsh li. Bond* Jr., and /. H.
OolUne for plaintiff in error.
No counsel for defendant in error.
[M61 *Mr. Justice Harlan deliyered the opin-
ion of the court:
This case is before us upon a question of
law certified by the judges of the United
States circuit court of appeals for the sixth
circuit unaer the sixth section of the act
of March 3d 1891, chap. 517 (26 Stat at L.
826).
[M7] *It appears from the statement accompany-
ing the certificate, that on the 18th day of
October, 1891, John A. Hervey, a citizen of
Ohio residing in Hancock county in that
state, was a passenger on a train of the Bal-
timore & Ohio Railroad Company between
Chicago, Illinois, and Fostoria, Ohio. While
upon the train as passenger he was injured
at Albion, Indiana, in a collision caused by
the negligence of the railroad company. He
brought suit in the common pleas court of
Hancock county, Ohio, to recover damages
for the personal injuries he had thus re-
ceived.
Upon the petition of the railroad company
the suit was removed into the circuit court
of the United States for the northern dis-
trict of Ohio upon the ground of diverse
citizenship. After such removal Hervey
died, and, against the objection of the rail-
road company, the action was revived in the
name of the administrator of the deceased
Slaintiff, appointed by the proper court in
)hio.
At the time of Hervey's death the com-
mon-law rule as to the abatement of causes
of action for personal injuries prevailed in
Ohio. But by section 5144 of the Revised
Statutes of that state, then in force, it was
provided that, "except as otherwise provid-
ed, no action c/r proceeding pending m any
-court shall abate by the death of either or
lx>th of the parlies thereto, except an action
ior libel, dander, malicious prosecution, as-
Mkulty or assault and battery, for a nuisance,
or against a justice of the peace for miscon-
duet in office, which shall abate by the death
ol either party." Rev. Stat. Ohio 1890, v^I.
•78
I, p. 1491. That section was construed In
Oh%o d Penn. Coal Co. t. Smith, Admr. 53
Ohio St. 318, which was an action for per-
sonal injuries caused by the negligence of a
corporation and its agents. The supreme
court of Ohio said : "The action was a pend-
inff one at the time of the death of the plain-
tiff. It is not within any of the enumerated
exceptions of section 5144, and was there-
fore properly revived and prosecuted to judg-
ment in the name of the administrator of
the deceased plaintiff."
The Revised Statutes of Indiana, in which
state the injurv was received, provide that
"no action snail abate by the *death or
ability of a party, or by the transfer of any
interest therein, if the cause of action sur-
vive or continue" (§ 271); also, that "a
cause of action arising out of an injury to
the person dies with the person of either
party, except in cases in which an action is
given for an injury causing the death of any
person, and actions for s^uction, false im-
prisonment and malicious prosecution." (|
282).
By section 955 of the Revised Statutes of
the United States, brought forward from the
judiciary act of September 24th, 1789 (1
Stat at L. 90, chap. 20, § 31), it is pro-
vided that "when either of the parties,
whether plaintiff or petitioner or defendant,
in anv suit in any court of the United States,
dies before final judnnent, the executor or
administrator of such deceased party may,
in case the cause of action survives by law,
prosecute or defend any such suit to final
judgment."
Tne question upon which the court below
desires the instruction of this court is this:
"Does an action pending in the circuit
court of the United States sitting in Ohio,
brought by the injured person as plaintiff
to recover damages for injuries sustained by
the negligence of the defendant in Indiana,
finally abate upon the death of the plaintiff
in view of the fact that, had no suit been
brought at all, the cause of action would
have abated both in Indiana and Ohio, and
that, even if suit had been brought in In-
diana, the action would have aba^ in that
state?"
If the case had not been removed to the
circuit court of the United States, it is clear
that under the statutes of Ohio as interpret-
ed by the highest court of that state the ac-
tion might nave been revived in the state
court in the name of the personal represen-
tative of Hervey, and proceeded to final judg-
ment. We think that the right to revive at-
tached under the local law when Hervey
brought his action in the state court, it
was a riffht of substantial value, and becamo
inseparably connected with the cause of ac-
tion so far as the laws of Ohio were con-
cerned. Was it lost or destroyed when, up-
on the petition of the railway oompan^ , the
case was removed for trial into the circuit
court of the United States? Was it not,
rather, a right that inhered in the action,
and ^accompanied it when in the lifetime of[
Hervey the Federal court acquired jurisdic-
tion of the parties and the subject-matter T
This \ast question must receive an affirma-
173 U. 8.
1
1898.
CoYoroTON y. Commonwealth of Exntuckt.
229-881
iive answer, milsss section 956 of the Revised
Statutes of the United States is to be con-
strued as absolutely prohibiting the revival
in the Federal court of an action for per-
sonal injuries instituted in due time and
which was. removed from one of the courts
of a state whose laws modified the common
law so far as to authorize the revival, upon
the death of either party, of a pending ac-
tion of that character.
We are of opinion that the above section
is not to be so construed. In our judgment,
a right given by the statute of a state to re-
vive a pending action for personal injuries
in the name of the personal representative
of a deceased plaintiff is not lost upon the
removal of the case into a Federal court.
Section 955 of the Revised Statutes may
reasonably be construed as not applying to
an action brought in one of the courts of a
state whose statutes permit a revivor in the
event of the death of a party before final
judgment. Whether a pending action may
be revived upon the death of either party
and proceed to judgment depends primarily
upon the laws of tne jurisdiction in which
the action was commenced. If an action be
brought in a Federal court, and is based up-
on some act of Congress, or arises under
some rule of general law recognized in the
courts of the Union, the question of revivor
will depend upon the statutes of the United
States relating to that subject. But if at
the time an action is brought in a state
court the statutes of that sUtte allow a re-
vivor of it on the death of the plaintiff be-
fore final judgment,— even where the right
to sue is lost when death occurs before any
suit is brought — then we have a case not dis-
tinctly or necessarily covered by section 955.
Suppose Hervey had died while the action
was pendinff in the state court, and it had
been revived in that court, nevertheless af-
ter such revival, if diverse citizenship exist-
ed, it could have been removed for trial into
the Federal court and there proceeded to fi-
nal judgment, notwithstanding section 955
of the Revised Statutes of the United States.
If this be so, that section ought not to be
[230]<^nstnied *as embracing the present case.
Nor ouffht it to be supposed that Congress
intended that, in case of the removal of an
action from a state court on the petition of
the defendant prior to the death of the
{plaintiff, the Federal court should ignore the
aw of the state in reference to the revival
of pending actions, and make the question
of revivor depend upon the inquiry whether
the cause of action would have survived if
no suit had been brought. If Congress
could l^islate lo that extent it has not done
so. It has not established any rule that will
prevent a recognition of the state law under
which the present action was originally in-
stituted, and which at the time the suit was
brought conferred the right, when the plain-
tiff in an action for personal injuries died
before final judgment, to revive in the name
of his personal representative. Cases like
this may reasonably be excepted out of the
general rule prescribed by section 955.
These views are in harmony with section
721 of the Revised Statutes which
173 V. 8.
brought forward from the judiciary act of
17S9 (1 Stat, at L. 92, chap, 20, S 34), and
provides that "the laws of the several states,
except where the Constitution, treaties, or
statutes of the United States otherwise re-
quire or provide, shall be regarded as rules
of decision in trials at common law, in the
courts of the United States, in oases where
the^ apply;" and also with section 914, pro-
viding that "the practice, pleadinj^, and
forms and modes of proceeding m civil
causes, other than equity and admiralty
causes, in the circuit and district courts,
shall conform, as near as may be, to the
practice, pleadings, and forms and modes of
proceeding existing at the time in like causes
m the courts of record of the state within
which such circuit or distri<ft courts ate
held, any rule of court to the contrary
notwithstanding." They are in accord also
with what was said in Martin v. Baltimore
d Ohio Railroad Co. 151 U. S. 673, 692 [38:
311, 318], in which, after referring to
Schretber v. BharplesM, 110 U. S. 76, 80 [28:
65, 67], this court said: "In that case, the
right in question being of an action for a
penalty under a statute of the United States
the question whether it survived was ffov*
ernea by the laws of the United States. But
in the case at bar, the question whether the
administrator has *a ri^t of action depends[831]
upon the law of West Virginia, where the ac-
tion was brought and the administrator ap-
pointed. Rev. Stat § 721 ; Henahaw v. JfO-
fcr 17 How. 212 [15: 222]."
It is scarcely necessary to sav that the de-
termination of the question of the right to
revive this action in the name of Herv^s
Sersonal representative is not affected in any
egree by tne fact that the deceased received
his injuries in the state of Indiana. The
action for such injuries was transitory in
its nature, and the jurisdiction of the Ohio
court to take cognizance of it upon person-
al service or on the appearance of the de-
fendant to the action cannot be doubted.
Still less can it be doubted that the question
of the revivor of actions brought in the
courts of Ohio for personal injuries is soy-
emed by the laws of ths.t state, rather tnan
by the law of the state in which the injuries
occurred.
The question propounded to ihia court
must he ansioered in the negatioe. It will
be so certified to the Circuit Court of Ap-
peals.
CITY OF COVINGTON, Plff. in Brr.,
V.
COMMONWEALTH OF KENTUCKY.
(See & C. Reporter's ed. 281-248.)
When statute ecoempting u>ateru)orks prop'
erty of a city from tawes is not a contract
— charter of municipal corporation, or law
as to the use of its property, is not a con"
tract, within the meaning of the national
Constitution,
1. The statote of Kentncky provldlnf that the
waterworks property of the dtj of Covin|toB
186-188
SUPBBMB COUBT OF THE UnITKD StATBB.
deed, viz., ^the water power created by the
dams."
All water powers reserved in the deed
were granted to Uie canal company by the
state, through state legislation, presenting
•nly state questions, which we respectfully
submit are not reviewable by this court upon
this writ of error.
V. If we may be permitted to do so we de-
sire to suflKest that the conclusion expressed
in the following language of the opinion,
viz, : "It is apparent from the conced^ facta
that the water power in question did not ex-
int while the stream was in its natural con*
dition," — is not strictly accurate. While it
its true that in the natural condition of the
stream the water power in question (being
that below the dun) did not exist in its
most available form, vet that it did exist in
its most essential and valuable feature as a
J property right, viz,, in the natural fall of 42
cet from the head to the foot of the rapids,
is too clear for controveriiy. Were it not for
this natural fall there would be no water
power; with it a power exists which can be
fully developed for use at a small cost. It
also exists in that part of the stream wbich
the state supreme court found as a fact had
never been nevigable, and where the same
court in A. C. Conn Co. v. Little Bwimioo
Lumber Mfg, Co. 74 Wis. 652, and in Biaie
T. Carpenter, 68 Wis. 165, 60 Am. Rep. 848,
recognizes the right of the riparian owner to
place structures to make available the nat-
ural power, so long as such structures do
not materially or unreasonably interfere
with the public right.
VI. We failed to make clear to the court
another matter of fact. The court says : "It
was found by the trial court that the Green
Bay & Mississippi Canal Company has leased
nil of the water power created by the diun
and canal, or arm of the dam, to be used over
the water lots abutting on the canal.''
This is only true in the sense that the
canal company had leased all of the water
[187Jpower "which it could find •customers for;"
not that it had leased all the water power
"created by the dam and canal." The canal
company filed a schedule of its leases exists
ing at the time of the trial of this cause.
This schedule, the company's own statement,
shows leases of water "to be used over the
water lots abutting on the canal" of only 860
horse power out o? the 2500 horse power re-
served. It also shows leases from the pond
at the middle power below the dam, whereon
are the mills of the original plaintiffs and
whereon the canal company is a riparian
owner, of 900 horse power.
On and prior to October 1, 1880, the canal
company had leased only 230 horse power "to
be used over the water lots abutting on the
eanal."
VII. This court says: "It is apparent
from the conceded facts that the water power
In question did not exist while the stream
was in its natural condition, nor was it cre-
ated by the erection of a dam by private
persons for that sole purpose." It should
nave been made to appear that a part of the
water power involved in this contention is
crested by a dam built by private persons,
662
Mathew J. Mead and N. IL Edwmrds, ri-
parian owners, in 1880 for the sole V^^yom
of a water power. The Kauk^ma Water
Power Company, principal defendant bcroa,
is a riparian owner of part of this power, bt-
ing the owner of three fourths of the rendat
after the s^aration therefrom of eertsit
parcels leased to one of the oigbml plaia-
tiffs, the Union Pulp Ccnnpaiiiyy and ts oat
of the defendants.
VIII. This court held in 142 U. & 2S4.
269, 270, 35 L. ed. 1004, 1009, 1010 that it
was necessary that there should be Botiee of
taking while compensation could be had.
The notice of tudnc hdd sufBeieBt in that
case only related to ue withdrawing of wa-
ter from the pond hdd fay tl^ goieimnet
dam, and not to the use of the water tm tht
various channels of the river below the 4mm.
Speaking of this notice Justice Browm
said: "Until this time there had bea m
active interference with any claim or ri-
parian rights belonging to the water power
company.^
This notice did not in any way relate u
the water power *here in eonteatioa, whodb n(1
that created by the fall of the riw faebv
the government dam. As to that water pow-
er there has been no notiee of takiqg ; ew tht
contrary the canal company has »f*tfg»'"^
the riparian owner^p by acting as a n-
parian owner its^, and b^ tunting as a ri-
?iarian owner with otiier npariaa owueis is
eases of power created by the Head aai
Edwards dam, above referred to.
The compensation act of 1875 (18 Stat st
L. 506, chap. 166), was rqwaled in 1888 tS
Stat, at L. 421, chap. 4. Henoe any
of taking after 1888 is fruitiesa.
IX. T^e case of Kauk^^na Wat^r
Co. V. Oreen Bay d M, Canal, 142 U. Sw SS4.
35 I., ed. 1004, between some of the partiei
to this suit, and relating to water power tmi
other rights on this river at Kaukasaa, w^
ties so many questions applicable to the
at bar that we take the liberty of
several quotations from the opinion ia thas
cai«e.
At page 271, 35 L. ed. 1010, the eoart m^:
"It is the settied law of Wieooasia. a>-
nounced in repeated decisions of its
court, that the ownership of ripariaa wv-
prietors extends to the center or thrmi cf
the stream, subject, if such stream be mm-
gable, to the right of the pufalie fee its wt
as a public highway for thepasssiff of v»>
sels. Jones v. PeiUhone, 2 Wis. 308; WsA^
er T. Shepardeon, 2 Wis. SS4, M Am. Dsr.
423, 4 Wis. 486, 65 Am. Dec. 324 : Tfwf^
V. OriffiiKe, 65 Wis. 599, 56 Am. Ba Ml
In Janesville r. Carpenter, 77 Wis. 2flB. S U
R. A. 808; it is said of the ripaiiaa
'He may construct do^a, laadiag
piers, and wharves out to navigable
if the river is navigable in fact; hat If ft ii
not so navigable he may construct aaTtUsf
he pleases to the thread of the stream ia>
less it injures some other rinariaa wifih
tor, or those having the sttpenor right Is ^
the waters for h^raulie purposes. . ••
Subject to these restricUona, he has tht r%lft
to use his land under water the seat tf
above water. It is his prihrmte prspsr^ W'
1899.
Gkben Bat & M. Canal Oa, v. Patten Papeb Co.
188-190
der the protection of the Conatitutioiiy and
H cannot be taken or its value lessened or
impaired, even for public use, "Without com-
pensation" or "without due process of law,"
and it cannot be taken at all for anyone's
private use.' With respect to sudh rights
we have held that the law of the state, as de-
dared by its supreme court, is controlling as
a rule of property. Barney y. Keokuk, 94
U. S. 324, 24 L. cd. 224 ; Parker v. Bird, 137
U. S. 661, 34 L. ed. 819; Hardin v. Jordan,
140 U. S. 371, 35 L. ed. 428."
As to the water power that can be ap-
propriated as an incident to the improve-
racnt, the court says, at page 275, 35 L. ed.
1011:
**The true distinction seems to be between
cases where the dam is erected for the ex-
press or apparent purpose of obtaining a
water power to lease to private individuals,
or where in building a dam for public im-
provement a wholly unnecessary excess of
water is created, and cases where the sur-
plus is a mere incident to the public im-
provement and a reasonable provision for
eecuring an adequate supply of water at all
times for such improvement."
Aeain, at page 276, 35 L. ed. 1012: "So
far, nowever, as land was actually taken for
the purpose of this improvement, either for
the oam itself or for the embankment, or for
the overflow, or so far as water was diverted
from its natural course, or from the uses to
which Uie riparian owner would otherwise
have been entitled to devote it, such owner
i« undoubtedly entitled to compensation."
These quotations clearly define and settle
many of the rights of defendants in error in
the case at bar.
Let us apply the law thus settled to some
of the established facts in this case.
(1) The state supreme court found as a
fact that the river between the dam and
■lack water below is ranids and has never
been navigable. As to this part of the river
the rights of riparian owners to the use of
the water for hydraulic purposes, and to
erect structures m the bed of the stream to
develop such uses, is fully recognized by the
above decision.
(2) The srtaite supreme court found as
fcwrts that the ordinary flow of the river is
800,000 cubic feet a minute, and that a flow
of only a thousand cubic feet a minute is
required for the use of the canal for the
purposes of navigation during the season of
navigation. The diversion of the remain-
ing 299,000 cubic feet of flow of water per
minute from the riparian owners below the
dam for hydraulic power would seem to be
lor the express or apparent purpose of ob-
taining water power to lease to private in-
dividuals, and not as an incident to the pub-
lie improvement below the dam, viz., the
eanal.
(3) The taking by the state of the 12-
600 horse power found by the state supreme
court to exist upon the rapids below the
dam would seem to be for private purposes
only, and not as an incident to the public
improvement, and to be thoroughly con-
demned by tide decision which we nave just
cuoted.
173 U. S.
*X. This decision goes very far towards
overruling all former decisions respecting
riparian ri^^hta upon public rivers. It prac-
tically denies the existence of such riffht, as
against the claim of the state, to take the
waters of the public rivers for private pur-
poses, hydraulic power.
The decision may also work a public eft-
lamity to the cities of the Fox river valley.
Its effect may embrace the water powers
upon the whole line of the improvement, ex-
tending from Lake Winnebago to Green Bay,
many of which have heretofore been pos-
sessed and enjoyed by parties other than the
canal company under a supposed ownership.
The decision may be so construed as to give
all of the water powers throughout the
whole line of improvement to the canal com-
pany, and place all of the industries of the
Fox river valley depending upon water
Cowers (and there are many) under contri-
ution to that company.
We most respectfully submit this petition
to this Honorable Court, and ask it to grant
a lehearing herein, and certify that in our
judgments the grounds assigned therefor are
meritorious and well founded in law and
fact.
John T. Fish,
Alfred L. Gary,
Gounsel for Kaukauna Water Power Com-
pany and others. Defendants in Error.
Moses Hooper,
George G. Greene,
Counsel for Original Plaintiffs Defendants
in Error.
*Mr. Justice SlUrae delivered the opinion[189]
of the court :
This is a petition by the defendants in er-
ror for a rehearing of the case of Chreen Bay
d Mississippi Canal Company v. Patten
Paper Company and others, decided at the
present term, and reported in 172 U. S. 58
[a^te, 364}.
The reasons set forth in the petition and
accompanying brief seem to go upon a misap-
prehension of the scope and meaning of the
decision of this court.
Thus, it is made matter of complaint that
this court did not deal with questions con-
cerning the division of the waters of Fox
river after they had spent the force or head
given them by the dam and canal, and had
passed into a non-navigable portion of the
stream below the improvement ; and it is sug-
gested that we overlooked the fact that a pri-
vate dam had been constructed between is-
lands Three and Four.
But those are questions to which the ju-
risdiction of this *court does not extend, and[ 190|
hence could not be considered by us. The
purport of our decision was to preserve to
the Green Bay & Mississippi Canal Company
the use of the surplus waters created by the
dam and canal. After such waters had
flowed over the dam and through the sluices,
and had found their way into the unim-
proved bed of the stream, the rights and dis-
putes of the riparian owners must be deter-
mined by the state courts.
Affain, apprehensions are expressed lest
the decision in the present case mav be con-
663
n
lOO-liMI
BUPBEMB COXTBT OV THB UhITBD STATHw
Ooc
girued so eji to injure parties using water
powers at other places in the river, and who
are not represented in the present oontro-
very.
We are not read^ to presume that the au-
thorities of the United States will either per-
mit or make changes in the places where the
surplus waters are to be used by the Green
Bay & Mississippi Canal Company, so as to
deprive other parties of the water powers
they have been using for so many years, un-
less such changes are found to be necessary
and proper in the regulation and delivery of
the surplus waters created by the public im^
grovement. But such questions are not now
ef ore us.
While the courts of the state may legiti-
matdy take cognizance of controversies be-
tween the riparian owners, concerning the
use and apportionment of the waters flowing
in the non-navigable parts of the stream,
they cannot interfere, bv mandatory injunc-
tion or otherwise, with the control of the sur-
Slus water power incidentally created by the
am and canal now owned and operated by
the United States.
The petition far a rehearing is denied.
(1911 CITY OF NEW ORLEANS, Pljf, in Brr.,
V.
MARYQUINLAN.
(See 8. C. Reporter's ed. 191-198.)
Certificates of indehtedneea, when euahle in
Federal courta»
Oertlflcates of Indebtedness made by a city and
payable to bearer, being made by a corpora-
tion, although not negotiable, are not subject
to the restriction of the act of Angnst 18,
1888, that an assignee of a chose in action
cannot soe in a Federal - court nnless the as-
signor coold sue in snch court.
[No. 343.)
Submitted Decemler 19, 1898. Decided Feib-
ruary 27, 1899.
IN ERROR to the Circuit Court of the
United States for the Eastern District
of Louisiana to review a Judgment of that
court in favor of Mary Quiman, plaintiff,
against the City of New Orleans for the re-
covery of the amount of certain certificates
made by the city and payable to bearer.
Affirmed,
The facts are stated in the opinion.
Messrs, Samuel Ii. Gilmore and W. B«
BominerTille for plaintiff in error.
Mr. Charles I«oiiqiie for defendant in er-
ror.
[191] *Mr. Chief Jnstdce FiOler ddivef«d the
opinion of the court:
This was an action brought In the circuit
court of the United States for the eastern
district of Louisiana by Marr Quinlau, a
citizen of the state of New York, against the
city of New Orleans, to recover on a number
of certificates owned by her, made by the city,
and pajrable to bearer. Defendant excepted
664
to the jurisdiction beeaoM tte petitiM e»
tained no averment that the suit eoaldkant
been maintained "by the anlnorB of te j
claims or oertifieatee sued iqwiL* IW *eEr{^
cuit court overruled the exeeption, aai te
caus^ subsequently went to judgmert.
By the eleventh section of the jodidaiy set
of 1780, it was expressly provided that t^
circuit courts could not take oogniaac* «l
a suit to recover the oontoits of any praB»
sory note or other chose in actum in nfw d
an assignee, unless a suit might have bess
prosecuted in such court to recover the tsM
c<mtents if no assignment had been, cmpt is
cases of for^gn bills of exchange. The ad
of BCarch 3, 1875 (18 Stat, at U 470, ehspi
137)^ provided: '^or shall any drodt or
distxi<i court have eognizanee of any ssit
founded on contract in favor of an
unless a suit might have been proeecnted ii
such court to recover thereon if no
ment had been made, except in cases of ptflsi-
issoiT notes nesotiaole bythe law mm^sit
and bills of exdiange." The restrietioe vai
thus removed as to ''nromissory iintes b^
tiable by the law mercnant," and jurisdictioa
in such suits made to d^>end on tne iHini
ship of the parties as in other cases. Trsi-
way V. Sanger, 107 U. S. 323 [27: 682].
By the first section of the act ol Mar^ 1»
1887 (24 Stot. at L. 652, chi^k 373), as m^
rected by the act of August 13, 1888 (tS
Stat at L 433, chap. 866), the proviste vis
made to read as follows: '^or shall si?
circuit or district court have eogniisste ol
any suit, except upon foreign bills ef et
change, to recover tne contents of sajr ptsB-
issory note or other chose in action m tsvv
of any assignee, or of any subeeq!ieBt
if such instrument be payable to ~
be not made by anv corporation, 1
suit might have been prosecuted in mA
court to recover the saia contents if as s»>
signment or transfer had been made."
These certificates were pavahle to
and made by a corporation ; tacj nere
ferable by delivery; th^ were not
under the law merchant, but that
terial ; they were pavaUe to any n
ing them in good faith, not by vtrtet s< sv
assignment St the promise, but bj an e»
nal and direct promise niovingfroin ths wn-
er to the bearer. T^omptoa v. Perries, M t.
S. 589 [27: 298]. The^ were therstee ««
subject to the restriction, and the ci^esft
court *had jurisdiction. In New OrtaM t|1
Benjamin, 153 U. S. 411 [38:764], wkn
the question was somewhat etmsidcred. te
instruments sued on were not payaUi ti
bearer.
In Newgass v. New OrUana, S3 Fsl Bif-
196, District Judffe BUUi^ eonatresd ths
provision thus: ^^The drenit eoert
nave no jurisdiction over suits for ths
erv of the contents oi promissory
other ehoees in action brooght in (svir if
assignees or transferees except
suits upon foreign bills of exchasge,
suits tnat might have been piuwitsi ^
such court to recover the said eosteifts tf
assignment or transfer had been lesde;
suits upon ehoees in action payable to
and made by a oorporatloa/* lUs 4 _
1896.
Dbwbt T. DE8 MOIKB8.
196-196
was rendered several months prior to the
Cige of the act of August 13, 1888, and
Men followed by the circuit courts in
manj subsequent cases. The same conclu-
sion was reached by Mr. Justice Miller in
Wilson y. Knox County, 43 Fed. Rep. 481>
and IfewgasB v. New Orleans was cited with
tpproyal. We think the construction obvi-
ously correct, and that the case before us was
^perly disposed of.
It is true that the act of March 3, 1887,
WIS evidently intended to restrict the juris-
diction of the circuit courts, but the plain
meaninff of the provision cannot be oisre-
tarded because in this instance that inten-
tion may not have been carried out.
Judgment affirmed.
C P. DEWEY, Plff. ff» Err.,
V.
CITY OF DES MOINES and Others.
(See B. C. Reporter's ed. 193-205.)
federal question — how raised — assessment
against a nonresident of the state — action
in state court.
L An assignment of error which relates role-
I7 to the validity of a provlsiou in a state
Judgment Imposing a personal liability against
a nonresident of the state over whom tho
eonrt had acquired no jnrlsdlction, for the
defldency arising on the tax sale of property,
does not raise a Federal question as to the
validity of the assessment upon the property.
1 It Is not enough that there* may be SDme-
where hidden In the record a qoesdon which,
• If raised, would be of a Federal nature, where
that question was not raised In or decided by
the state court.
I. A state statute authorising an assessment
tft be levied upon property for a local Im-
provement, and Imposing upon che lotowner,
who Is a nonresident of the state, a personal
liability to pay such assessment. Is a statute
which the state has no power to enact, as to
enforce such personal liability would be a
taking of property without due process of law
and a violation of the Federal Coustltutlon.
1 By resorting to the state court to obtain re-
lief from such assessment and from such per-
sonal liability, such nonresident does not
thereby consent or render himself !lable to a
Judgment against him providing for any per-
sonal Uablllty.
[No. 122.]
irgued January 11, 12, 1899. Decided Pel-
ruary rt, 1899.
IN ERROR to the Supreme Court of the
State of Iowa to review a judgment of
that court affirming the judgment of the
District Court of Polk Coun^, which dis-
missed with costs an action brought by C.
P. Dewey, a nonresident of the state, to set
aside certain assessments upon his property
for the paving of a street, and to enjoin
proceedings for the sale, and to procure a
indgment that there was no personal lia-
oility, but upheld and foreclosed a con-
178 U. S.
tractor's lien on plaintifiF's property. Re-
versed, and cause remanded to the Supreme
Court of Iowa for further proceedings.
See same case below, 101 Iowa, 416.
* Statement bjr Mr. Justice PeeUiamt
The petition in this case was filed by the[lM)
plaintiff in error to set aside certain assess-
ments upon his lots in Des Moines, in the
state of Iowa, which had been imposed there-
on for the purpose of paying for the paving
of the street upon which the lots abutted,
and to obtain a judgment enjoining proceed-
ings 'towards their sale, and adjudging that[195]
there was no personal liability to pay the
excess of the assessment above the amount
realized upon the sale of the lots.
The petition allej^ed that the petitioner
was at all times durine the proceedings men*
tioned a resident of Chicago, in the state of
Illinois, and that he had no actual notice of
any of the proceedings looking towards the
paving of the street upon which his lots
abutted; that the street was paved under
the direction of the common council, which
decided upon its necessity, and the expense
was by the provisions of the Iowa statute
assessed upon the abutting property, and the
lotowner made personally liable for its pay-
ment; that the expense of the improvement
was greater than the value of the lots as-
sessed, and the common council knew it
would be greater when the paving was or-
dered.
Various other facts were set up touching
the invalidity of the assessment upon the
lots, but no allegation was made attacking
its validity by reason of any violation of the
Federal Constitution. Unaer stipulation of
the parties various allegations of fraud upon
the part of the members of the common coun-
cil, which had been included in the petition,
were withdrawn, and the allegations of the
petition as thus amended were not denied.
The contractor who did the work of pav-
ing the street was made a party to this pro-
ceSdinfif, and he set up a counterclaim asking
that the certificates given him by the city in
payment for his services, and which by stat-
ute were made a lien upon the lots abutting
upon the street, might be foreclosed ana
the lots sold, and a personal judgment pur-
suant to the same statute rendered against
the plaintiff in error.
By stipulation certain motions which were
made to strike out allegations in the peti-
tion were treated as demurrers to the peti-
tion, and the case was thus placed at issue.
Upon the trial the district court of Polk
coimty gave judgment dismissing the peti-
tion, with costs, and in favor of the con-
tractor on his counterclaim, foreclosing tbs
lien of the latter, and ordering the ss3e of
the lots; and the judgment also provided for
the issue of a personal or general execution
*against the plaintiff in error to collect any[l -
balance remaining unpaid after sale of the
lots.
Plaintiff took the case to the state supreme
court, and there made an assignmetit of er^
rors, one of which is as follows:
"The court erred in holding and decidinff
that plaintiff was personally liable to saia
665
196-199
Supreme Coxtbt of tbb Uhitbd Statu.
Oct. Tezk.
Des Moines Brick Manufacturing Company
for so much of said special tax or assessment
as could not or would not be realized by a
sale of the sixty lots in question on special
execution, and in ordering and adjudging
that a general execution should issue against
plaintiff and in favor of said Des Moines
Brick Manufacturing Company |or the bal-
ance of such tax or assessment; and, further,
that as plaintiff was at all times a nonresi-
dent of the state of Iowa, and had no per-
sonal notice or knowledge of the assessment
proceedings, that the imposition of a per-
sonal liability against him in excess of the
value of all the lots was not due process of
law, and was in contravention of the pro-
visions on that subject of the Fourteenth
iAmendment to the Constitution of the Unit-
ed States, as well as in contravention of the
provisions of the Constitution of the state
of Iowa on the same subject."
The supreme court afi&nned the Judgment
•f the district court, and plaintiff brought
the case here by writ of error.
Messrs, Andrew E. Harrej and Anrnsa
Oohb for plaintiff in error.
Mr, N. T. Guernsey for defendant in er-
ror.
|iS6] *Mr. Justice PeeUiam, after stating the
facts, delivered the opinion of the court:
The only one of the assignments of error
made in the state supreme court, which has
reference to any Federal question, is the one
set forth in the statement of facts, and it
will be seen that such assignment relates
solely to the validity of the provision for the
personal liability imposed upon plaintiff in
error by the judgment of the district court.
|M7]*None of the other assignments of error in-
volves any Federal question.
In the brief for plaintiff in error in this
court it is said that the "counsel for plain-
tiff in error in the state court seem to have
relied upon one single proposition only as
involving a Federal question, to wit: As
plaintiff was at all times a nonresident of
the state of Iowa, and had no personal no-
tioe or knowledge of the assessment proceed-
ings, the imposition of the personal liability
against him in excess of the value of all the
lots was not due process of law, and was in
contravention of the provisions upon that
subject of the Fourteenth Amendment of the
Constitution of the United States."
The counsel, however, does not confine
himself in this court solely to a discussion
of the Federal question which was contained
in the assignment of error above set forth,
and which was areued in the court below,
regarding the validity of a personal judg-
ment; but counsel claims the further right
to attack the validitv of the assessment upon
the lots themselves, because, as he asserts, it
was laid without regard to any question of
benefits, and that it exceeds the actual value
of the property assessed, and that, even if
permitted by the statute of Iowa, such an
assessment constitutes a taking, under the
guise of taxation, of private property for
public use without just conipensation, and
IS therefore void under the Federal Consti-
666
tution as amounting to a' taking of propcrtj
without due process of law.
This is a very different question from th»X
embraced in the assignmeia of errors sad ar-
gued in the supreme court of the state.
It is objectea on the part of the defesdast
in error that, as this is a review of a jadt-
ment of a state court, this seeond qoeKiiaa
cannot be raised here, because it '
raised in the courts below and was
cided by either of theuL
Reference to the opinion of the
court of the state shows that it
therein discussed or decided. If the qaek-
tion were only an enlargement of the me
mentioned in the assignmoit of errors, or if
it were so connected witii ^it in sobstinrg m(11I
to form but another ground or reason far
alleging the invalidity of the personal jndr
ment, we should have no hesitation in hoU-
ing the assignment sufficient to permit tkc
question to 1^ now raised and ar^ied.
Parties are not confined here to the asmt
arguments which were advanced Is the
courts below upon a Federal questioB there
discussed. Havinf^, however, raised only ine
Federal question in the court bdov, esa a
party come into this court from a state eovrt
and argue the question thus raised, and ala>
another not connected with it, and whidi
was not raised in any of the courts belnv.
and does not neoessanly arise on the record.
althou|^h an inspection of the record
the existence of facts u^n iHiidi tibe
tion might have been raised T
The two questions, the one as to the
lidity of the personal judgment,
other as to the invalidity of the a
upon the lots' are not in anywise neeessarib
connected, any more than that th^ boa
arise out of the proceedings in paving tk
street and in levying the aasessmcBL The
assessment upon the lots might be vili^
while the provision for a personal jndnctt
might be void, each depending i^mn diflcral
f principles ; and the question as to the isva*
idity of the personal judgment ul^ht, •• ■
this case, be raised and argued witboot it
any manner touching the question as to te
invalidity of the assessment upon the kta
In Owley Stave Company v. Butler Caemi§,
166 U. S. 648 [41: 1149], it was held tlsl
the Federal question must be sneciaQy tate
or claimed in the state court; that the psrty
must have the intent to invoice, for the pet-
tection of his rights, the Constitatioa or tarn
statute or treaty ol the United Statsa, uA
that such intention must be dedarcd in taas
unmistakable manner, and unless he do «
this court is without jurisdiction to rro*
amine the final judgment of the btatc ravt
upon that matter. See also Le^if v. Sm^
nor Court of San Francisco^ 167 U. S. Ki
[42: 126] ; Kipley ▼. lUinoU, 170 U. & )«
[42: 998]. In other words the eo«nt m^
be sble to see dearly from the wSole rsooH
that a provision of the Constitutioa or set rf
Congress is relied upon by the party *^
brings the writ of error, and that the rifbt
thus claimed by him was denied. ^'^^^
Proprietors ▼. ^Hohokm Lmmd 4 Imprm}^
Company, 1 WalL 116, 143 [ITrSTl.sn:
In the case at bar no daim was made ia *•
179 v. &
and the
1806.
Dewkt y. Db8 Moines.
19^-201
■tate court tlL&t the assessment upon the lots
wms invalid as in violation of any provision
of the Federal Constitution.
Nor does the record herein show bv clear
and neoessary intendment that the Federal
queation must have been directly involved so
that the state court could not have given
lodgment without deciding it. Tn such case
It has been hdd that the Federal ouestion
sulBeiently appears. Oreen Bay d M, Canal
Company v. Vatten Paper Company^ 172 U.
S. 58, 08 lante, 364], and cases cited. In sub-
stance the validity of the statute or the
r^ht under the Ck)nstitution must have been
drawn in question. Potoell v. Brunswick
County, 150 U. S. 433 [37: 1134]; Sayward
Y.Denny, 158 U.S. 180 [30:041]. The
latest decision to this effect is Capital Va-
tional Bank of Lincoln v. First National
Batik of Cadi£, 172 U. S. 425 [ante, 502].
Although no particular form of words is
neceesary to be used in order that the Feder-
sl question may be said to be involved, within
the meaning of the cases on this subject,
there vet must be something in the case be-
fore the state court which at least would
call its attention to the Federal question as
one that was relied on by the party, and
then, if the decision of the court, while not
noticing the question, was such that the
JudCTient was by its neceesary effect a denial
of the right claimed or referred to, it would
be sufficient. It must appear from the rec-
ord that tiie riffht set up or claimed was de-
nied by the jud^ent or that such was its
seary effect in law. Rohy v. Colehour,
146 U. S. 153, 159 [36: 922, 024]; Chicago,
B. d Q. Railroad Company v. Chicago, 166
U. S. 226 231 [41 : 979, 983] ; Oreen Bay d
M, Oanai Company ▼. Patten Paper Com-
pany, and Bank of lAnooln v. Bank of Cadiz,
supra.
In all these cases it did appear from the
record that the rights were set up or claimed
in eudi a way as to bring the subject to the
attention of the state coim. It is not enough
that there may be somewhere hidiien in the
record a question which, if raised, would be
of a Federal nature. Hamilton Mfg, Com-
pany V. Massachusetts, 6 Wall. 632 [18:-
904]. In order to be available in this court
some claim or right must have been asserted
IOO]*in the court below by which it would appear
that the party asserting the right founded it
in some degree upon the Constitution or laws
or treaties of the United States. In such
ease, if the court below denied the right
dftimed, it would be enough; or if it did not
in terms deny such right, if ttie necessary
effect of its judgment was to deny it, then it
would be enou^. But the denial, whether
express or implied, must be of some right or
daim fonndea upon the Constitution or the
laws or treaties of the United States, which
had in some manner been brought to the at-
tention of the court below. The record
shows nothing of the kind in this case.
A claim or right which has never been
made or asserted cannot be said to have been
doiied by a judgment which does not refer to
it. Hamilton Company v. Massachusetts,
mtipra. A point that was never raised can-
not be said to have been decided adversely to
173 U. S.
a party who never set it up or in any way al-
luded to it. Nor can it be said tiiat the nee-
essary effect in law of a judgment which is
silent upon the question is the denial of a
claim or ri^lit which might have been in-
volved therein, but which in fact was never
in any way set up or spoken of.
No question of a Federal nature claimed
under the Constitution of the United Statea
can be said to have been made by the mere
allegation "that the amount of paid tax is
greater than the reasonable markc.t value of
said lots, whether considered singly or to-
gether; the assessment against each partic-
ular lot being greater in amount than tiie
value of such particular lot, and the aggre-
Ste assessment being greater in amount
an the reasonable market value of all of
said lots taken together; and that said de-
fendants are seeking to enforce, as against
plaintiff, not merely a sale of said lots, but
also to compel plaintiff to pay the fuU
amount of said tax regardless of whalever
sum said lots mav be sold for, and regardless
of the actual value of the same.'* There is
nothing else in the record which can be said
to raise this Federal right or claim.
Upon these facts we are compelled to hold
that we are confined to a discussion of the
only Federal question which this *record pre*[2M|
sents, viz,, the validity of the personal judg-
ment against the plaintiff in error. The as-
signment of error above set out is broad
enough to raise the question, not only as to
the sufficiency of notice, but as to the validity
of such a judgment against a nonresident.
It is asserted in the petition that the de-
fendant Dillworth, the treasurer of Holt
county, is attempting to enforce the assess-
ment levied by the common council, and that
he claims plaintiff in error is personally lia-
ble for the taxes and interest, aiid will en-
force payment thereof unless restrained, and
that plaintiff's personal property is liable to
be illegally seized for the payment of the tax.
These allegations are substantially ad-
mitted by tne answers of the defendants, ex-
cept as to the illegality of the poasible seiz-
ure of plaintiff's personal property. By fil-
ing the counterclaim the contractor makes a
direct attempt to enforce, not only the lien
upon the lots, but the personal liability of
the lotowner. Thus a nonresident, simply
because he was the owner of property on a
street in a city in the state of Iowa, finds
himself by the provisions of the state statute,
and without the service of any process upon
him, laid under a personal obligation to pay
a tax assessed by the common council or by
the board of public works and city engineer
under the statute, upon his property abut-
ting upon the street, for the purpo<«e of pay-
ing the expenses incurred in paving the
street, which expenses are greater than the
benefit the lots have received by virtue of the
improvement. The plaintiff, prior to the
imposition of that assessment, had never sub-
mitted himself to the jurisdiction of the
state of Iowa, and the only jurisdiction that
state had in the assessment proceedings was
over the real property belonging to him and
abutting on tne street to be improved. An
667
201-204
SUPBSMB CO0BT OV THB UhITBD 8t.
assessment upon lots for a local improvement
is in the nature of a judgment.
It is said that the statute (Code of Iowa,
S 478) provides for the personal liability of
the ovmer of lots in a city in the state of
Iowa, to pay the whole tax or assessment
levied to pay the cost of a local improve-
ment, and that the same statute provides
that the assessment shall also be a ben upon
the respective lots from the time of the as-
[M2]se88ment. It is also said *that the statute
has been held to be valid by the Iowa su-
preme court. This seems to be true. City
of Burlington v. Quick, 47 Iowa, 222, 226;
Fanoell v. The Dea Moines Brick ManufaO"
iuring Company et oZ. 07 Iowa, 286 [35 L.
R. A. 63]. The same thing is also held in
the opinion of the state court delivered in
the case now before us.
In this case no question arises with re-
card to the validity of a personal judgment
, uke the one herein against a resident of the
state of Iowa, and we therefore express no
opinion upon that subject. This plaintiff
was at all times a nonresident of that state,
and we think that a statute authorizing an
assessment to be levied upon property for a
local improvement, and imposing upon the
lotowner, who is a nonresident of the state,
a personal liabtlitv to pay such assessment,
is a statute, whidi the state has no power
to enact, and which cannot, therefore, fur-
nish any foundation for a personal claim
against such nonresident. There is no course
of reasoning as to the character of an assess-
ment upon lots for a local improvement, by
which it can be shown that any jurisdiction
to collect the assessmentpersonally from a
nonresident can exist. The state may pro-
vide for the sale of the property upon which
the assessment is laid, out it cannot under
any guise or pretense proceed farther, and
impose a personal liability upon a nonresi-
dent to pay the assessment or any part of
it. To cflKforce an assessment of such a na-
ture affainst a nonresident, so far as his per-
sonal liability is concerned, would amount
to the taking of property without due proc-
ess of law, and would be a violation of the
Federal Constitution.
In this proceeding of the lotowner to have
the assessment set aside and the statutory
liability of plaintiff adjud^^ invalid, the
court was not justified in dismissing the pe-
tition and giving the contractor, not only
ludgment on his counterclaim foreclosing his
lien, but also inserting in that judg[ment a
provision for a personiu liability against the
plaintiff and for a ^[enerai execution against
him. Such a provision against a nonresi-
dent, although a litigant in the courts of the
state, was not only erroneous, but it was so
far erroneous as to constitute, if enforced, a
violation of the Federal Constitution for the
reason already mentioned. By resorting to
[M3]the state *court to dbtain relief from the as-
sessment and from any personal liability
provided for by the statute, the plaintiff did
not thereby in any manner consent, or ren-
der himself liable, to a judgment against him
providing for any persoiml liability. Nor
did the counterclaim made by the defendant
t^ntractor give any such authority.
668
The principle whkli
providing for the personal liability of a asa-
resident to pay a tax' of this nature k ^
same whidi prevents a state frooi tikia|
jurisdiction through its eoiurtSy bj virtae «
any statute, over a ncmresident not wermk
with process within the state, to cnforee a
mere personal liability, and where no prop-
erty of the nonresident has been seised er
brought under the oontnd of the court. This
principle has been frequently decided is 4as
court. One of the leading cases is Pe
V. Neff, 05 U. 8. 714 [24 : 565], and
other cases therein cited. M
Railway Company t. Pinkney, 149 XJ. 8. IH
200 [37:600, 705].
The lotowner never voluntarily or othv-
wise appeared in any of the piotcedisgi
leading up to the levying of the assessBcst
He gave no consent which ajwwintfd to as
acknowledgment of the jurisdiction of the
city or conunon council over his person.
A judgment without personal sufiei
against a nonresident is omy good so Imt ss
it affects the property whidi is taken sr
brought under the control of the eonii er
other tribunal in an ordinary action to mt
force a personal liability, and no jeiiadii
tion is thereby acquired over the pcrsen ef
a nonresident further than respects the pcaf-
erty so taken, lliis is as true in the ease ef
an assessment against a nonresident^ ef
a nature as this one, as in the ease of a
formal judgment.
The jurisdiction to tax exists <mij in re-
gard to persons and property or upon the
business done within uie state, and woA ie-
risdiction cannot be enlarged by reason ei a
statute which assumes to mane a nuniei
dent personally liable to pay a tax fd the
nature of the one in question. All so^jeeti
over which the sovereign power ci tibe stall
extends are objects of taTatSon. Ooek^,
Taxation, 1st ed. pp. 3, 4; Burroughs, lki» j
tion, *8ee. 6. The power of the stats to tsifiN
extends to all objects within the soversMf
of the state. Per Mr. Justice CUffordC li
Hamilton Mfg. Company t. MaM9mckmmt$t,
6 Wall. 632, at 638 [18:004, 906]. Ite
power to tax is, however, Hmit^ to
property and business within the state,
it cannot reach the person ttf a
Case of the State Tarn on
Bonde, 16 Wall. 300, 819 [21 : 179, 187]. Is
CooleT, Taxation, Ist ed. p. 121, it is isli
that ^'a state can no more subject to ito
power a single person or a single artkle ef
property whose reddenoe or legal sites is is
another state than it can subJMt all ths eiti-
sens or all the property of sn^ other itsli
to its power." These are etemeBtaryjpraee-
sitions, but they are referred to only for mt
purpose of pointinff out that a statute '
posing a personal liability upon a noi
dent to pay such an assessment as tUs
steps the sovereign power of n stats.
In this case the contractor, by fiUag hb
counterclaim herdn, has commeneed the •>
forcement of an assessment and a pcrsoari
liability imposed by virtue of jnst mA s
statute, and the judgment vnder rtfifV
l^ves him the right to do so. Tlie lotovsr
IS called upon to make sudi defense as be «•
179 HA
18iS.
F1B8T NATIONAL Bank of Wbllinoton v. Chapman.
204-206
to ikm d&iin of personal liability, or else be
forefwr barred from setting it up. He does
daim that as a nonresident he iiid not have
sndti notice, and the state or city did not ob-
tain nooh jurisdiction over him, with regard
to the original assessment, as would autnor-
128 the establistoent of any personal liabil-
ity on his part to pay sucn assessment.
The contractor nevertheless has obtained
a judgment, not alone for a foreclosure of
his lien, but also for the personal liability
of the lotowner, and unless be can in this
proceeding have the provision in the judg-
ment, for a personal liability, stricken out,
the lotowner cannot thereafter resist it,
even when the lots fail (if they should fail)
to Ming enough on their sale to satisfy the
judgment.
Ae case of Davidson v. New Orleans, 96
U. S. 97 [24: 616], has been cited as anthor-
itj for the proposition that the rendering of
a personal judgment for the amount of an as-
sessment for a local improvement is a mat-
ter in which the state authorities cannot be
controlled by the Federal Constitution. It
05]4oes not *appear in that case that the com-
plaining party, in regard to the state stat-
ute was a nonresideiS of the state, but, on
the contrary, it would seem that she was a
resident thereof. That fact is a most mate-
rial one, and renders the case m unlike the
one at bar as to make it unnecessary to fur-
ther refer to it.
The statute upon which the ricbt to enter
this personal judgment depends being as to
the nonresident lotowner an illegal enact-
ment, it follows that the judnnent should
and must be amended by strtkins' out the
provision for sueh personal liability. For
that purpose Me judgment is reversed, and
the cause remanded to the supreme court of
Iowa, for further proceedings therein not in-
fensistent with this opinion. So ordered.
riBST NATIONAL BANK OF WELLING-
TON, OHIO, Plff. in Err.,
V,
H. P. CHAPMAN*, as Treasurer of Lorain
County, Ohio.
(See & C. Reporter's ed. 205-220.)
Meaning of the term ''moneyed capital'* —
discrimination in taxation — value of na-
Oonal hank shares — judicial notice-r^mean-
ing of the term "credit.*'
1. The term "moneyed capital** as used in IT.
8. Rev. Stat i 6219. forbidding greater taxa-
tion of shareholders of national banks than
Is Imposed on otber moneyed capital* does not
include capital which does not come into
competition with the bosiness of national
banks, such as deposits in savings banks or
moneys of charitable Institutions, the exemp-
tion of which from taxation Is not forbidden
by the Federal statute.
2. The law of Ohio that the shares of national
banks shall be assessed at their tme value,
173 U. S.
which In effect requires the deduction of the
debts of the banks, and that unincorporated
banks and bankers shall be assessed upon the
moneyed capital belonging to the bank or
banker and employed in the business, after
deducting the debts existing in the business,
makes no discrimination between unincor-
porated banlcs and bankers on the one hand
and shareholders in national banks on the
other.
8. The Increase of the Talue of national bank
shares by reason of the franchises of the bank
Itself, while there Is no such added value In
the case of unincorporated banks, does not
make the taxation of such shares at their
true value a discrimination against the share-
holders and In favor of the unincorporated
banka
4. This court will not take judicial notice of
the report of the auditor of the state, nor re-
fer to any statement or alleged fact stated
therein, unless that fact Is found by the trial
court.
5. The term "credits** In the Ohio statute In-
cludes claims for labor or services, but these
claims are not moneyed capital within the
meaning of U. S. Rev. Stat, i 5219, respect*
Ing discrimination against national banks.
[No. 137.]
Argued January IS, 16, 1899. Decided Fehru^
ary 27, 1899.
IN ERROR to the Supreme Court of the
State of Ohio to review a judgment of
that court reversing the judgment of the
Circuit Court of Lorain County, Ohio, and
affirming the judgment of the Court of Com-
mon Pleas of Lorain County dismissing an
action brought by the First National Bank
of Wellington, Ohio, against H. P. Chapman,
Treasurer of Lorain County, to restrain the
collection of taxes, through or by means of
the bank, foy the defendant, levied under a
statute of Ohio upon individual sharehold-
ers in the bank. Affirmed.
See same case below, 56 Ohio St. 310*
Statement by Mr. Justice PecUiaiiit
This action was brought to restrain the
collection of taxes, through or by means of
the bank, by the defendant in error, levied
under a statute of Ohio upon certain individ-
ual shareholders in the bank, on the ground,
as alleged, that the assessments upon such
specified shareholders were illegal as having
been made without regard to the debts of
such individual *owners, contrarr to the case[200J
of other moneyed capital in the hands of in-
dividual citizens, whose debts were permit-
ted to be deducted from the value of such
capital before the assessment of taxes there-
on.
The petition contained allegations intend-
ed to show a case for the interposition of a
court of equity, and a tender was therein
noade of the amount of the taxes which the
plaintiff admitted to be due on such shares
after deducting the debts.
The answer, while not taking anv objec-
tion that a case for equitable relief by in-
660
906-d09
SuPBBliB COUBT OF THB DHITBD StATBI.
Oct.
junction was not made, provided the conten-
tion of the petition as to the assessments be-
ing illegal was well founded, claimed, sub-
stantially, that by the laws of the United
States and of Ohio the assessments were le-
gtA, and the petition should therefore be dis-
missed. Upon trial in the court of common
pleas of Lorain county the court found the
following facts:
"First. Plaintiff is a national banking as-
sociation incorporated under and by virtue of
an act of Congress entitled *An Act to Pro-
Tide for the National Currency, Secured by
a Pledge of United States Bonds, and to
Provide for the Circulation and Kedemption
Thereof,' approved June 3, 1864, and the
amendments thereof, and is established and
doing business in the village of Wellington,
county of Lorain, and state of Ohio.
"Second. The defendant is the duly elected
and qualified treasurer of the county of Lo-
rain and state of Ohio.
"Third. The plaintiff has a capital stock
mi $100,000, divided into 1,000 shares of $100
«adi, aH of which are fully paid up, and
certificates for the shares are outstanding
and owned hy a large number of persons. ^
"Fourth. That in accordance with section
2765 of the Revised Statutes of Ohio, then
snd now in force, the cashier of plaintiff
duly reported in duplicate to the auditor of
■aid county the resources and liabilities of
Miid banking association, at the close of busi-
ness on the Wednesday next preceding the
second Monday of May, 1893, together with
a full statement of the names and residences
at the shareholders therein, with the number
ol shares held by each, and the par value
thereof, as required by said section; that
I included in said return so *made by said
cashier was the real estate owned by the
plaintiff, valued at $3,420, separately as-
sessed and charged on the tax duplicate of
said county; that thereupon said auditor
proceeded, as required by section 2766 of the
Revised Statutes of Ohio, to fix the total
iralue of said shares according to their true
Talue in money, and fixed the same at$74,-
710, exclusive of the assessed value of plain-
tiff's real estate, and made out and trans-
mitted to the annual board of equalization
of incorporated banks a copy of the report
■o made by said cashier, together with the
valuation of such shares as was fixed by
said auditor ; that said state board of equali-
zation, acting under sections 2808 and 2809
of the Revised Statutes of Ohio, did exam-
ine the return aforesaid, made by said cash-
ier to said county auditor, and the value of
such shares as fixed by said county auditor',
and did equalize said shares to their true
value in money, and fixed the valuation
thereof at $74,710, exclusive of the assessed
value of plaintiff's real estate, and the au-
ditor of said state did certify said valuation
to the auditor of said county of Lorain,
which said auditor of said county did enter
upon the tax duplicate of said county for
the year 1893.
"Fifth. That the following named stock-
holders of said bank were on the said dav
next preceding the second Monday of April,
1893, the owners of the number of shares of
670
stock of said bank art opposite their
ive names, to wit:
S. S. Warner 150 lhareik
R. A. Horr 10 shares.
W. Cushion, Jr 50 shares.
C. W. Horr 120 sharea.
O. P. Chapman 10 shares.
E. F. Webster 10 shares.
W. R. Wean 20 shares.
S. K. Laundon 120 shares.
"That said shares were valued by said
state board of equalization for the year 1893
at $36,607.90, and certified tyy said board
to the auditor of Lorain county as the tax-
able value of the same; that the rate of tax-
ation for all tax ^assessed and ocdlected iorttM|
the year 1893 within said county and Tillage
was $0.0255 on a dollar's valuatioa, aad
amounted on said value of said shanes to
$933.50.
''Sixth. That on said day next preeediqg
said second Monday of April, 1893, and at
the time the cashier of said banking aMOcia-
tion made return to the auditor erf said
county of the names and residenees of the
share holders of said association, with the
numbers and par value of the shares of cap-
ital stock of said banking associadon lor the
year 1893, — ^to wit, between the first and sec-
ond Mondays of Mav of said year,— each of
said above named shareholders was indebt-
ed and owing to others of legal bcna ide
d^ts a sum in excess of the credits, trxm
which, under the laws of Ohio, he was eati-
tied to deduct said debts to an amout eaoal
to the value of said shares. That proof ef
^aid indebtedness was duly made to said au-
ditor by the shareholders aforesaid at the
time that the valuation of said shares of
stock was so fixed by him, and that said aa-
ditor refused to allow the dednctioa of si7
indebtedness of said shareholders fnm the
value of said shares, as so fixed If Mid
board of equalization, and the auditor ef
said county carried upon the duplicate ddiv^
ered to the treasurer the entire valnataaa ef
said shares so made, without alknriBf bmj
deductions therefrom, bv reason of aaj kaaa
fide indebtedness of said shardxdders to O^
ers, from the valuation so fixed hj sai<
board of equalization.
"Seventh. That the plaintiff taadcred to
said treasurer of Lorain ooontj ob the SM
day of December, 1893, and offered to ^mj n
said treasurer, the sum of $485^, if hi
would receive the same in full for tkt tax
assessed upon the valuation of the shares ef
stock owned by the shareholders aaased is
the petition for the entire year of 1883 ; aai
said treasurer refused to accept the nae;
and said treasurer intends, if not emjoimti
by this court, to use all lawful laeawi for tW
collection of said tax so aaieseed upoa the
valuation of said shares of stock."
The court also found as a eoncteaiea el
law from the above facts that the iajaacti—
should be denied and the petition disiiewl ^
The plaintiff appealed to the eireiiit eovt "e^l^
Lorain county, where, after mrgumtmt, the
ludgment for defendant was re^ereed aai
judgment ordered for plaintiff csjoiai^f the
collection of the tax. The defoidast, tfte
treasurer of Lorain county, brought the sMt
1T3 V.%.
1898.
First National Bank of Wellington v. Chapman.
209-212
to tlie supreme court of the state, where, af-
ter heanng, the court reversed the circuit
ooiMt and afllrmed the judgment of the com-
mon pleas dismissing the petition. Chap-
man r. Fir$t National Bank of Wellington,
S6 Ohio St 310.
The state law on the subject of taxation,
10 far as it ma^ be claimed to in any way
affect the question, is contained in the va-
rious sections of the Revised Statutes of
Ohio, which are set out in the margin. f
Mr, W. W. Boynton for plaintiff in er-
ror. •
Messrs, F. S. Monnett, Attorney General
of Ohio, and S. W. Bennett for defendant
in error.
*Mr. Justice Peckham, after stating the£Slll
facts, delivered the opinion of the court:
Complaint is made in behalf of the share-
holders of the national bank in question that
tbey are, by means of the system *of taxa-[Stfl|
tSectlon 2730 gives definitions of the terms
QMd In the article relating to taxation. This
section Is not set ont in so many words, bnt as
therein used the following terms are thns de-
fined:
o. **Real property'* and "lands** mean not
•niy land Itself, bnt everything connected there-
wttb In the way of buildings, structures, and im-
provements, and all rights and privileges ap-
pertaining thereto.
5. ^'Investment In bonds'* Includes moneys In
bonds or certificates of Indebtedness of what-
erer kind. Issued by Incorporated or unincorpor-
ated companies, towns, cities, villages, town-
ships, counties, states, or other Incorporations,
•r by the United States.
0. ''Investment In stocks** includes all moneys
invested In the capital stocic of any association,
corporation. Joint-stock company, or other com-
pany, where the capital or stock Is divided into
■hares transferable by each owner without the
eonsent of the other shareholders, for the taxa-
tion of which no special provision is made by
law.
d, ''Personal property** Includes (1) every
tangible thing the subject of ownership, whether
animate or inanimate, other than money, and
not forming part or any parcel of real property ;
(2) the capital stock, undivided profits, and all
ether means not forming part of the capital
stock of a company, whether Incorporated or
onlooorporated, and all Interest In such stock,
profits, or means. Including shares In a vessel as
therein stated ; (8) money loaned on pledge or
oiortgage of real estate, although a deed may
hare been given, provided the parties consider
It o security merely.
e. The term "moneys** Includes surplus or un-
divided profits held by societies for savings or
banks having no capital stock, gold and sliver
coin, bank notes of solvent banks In actual pos-
lestlon and every deposit which' the person
owning, holding In trust, or having the beneficial
taiterest therein Is entitled to withdraw In
Bioney on demand.
/. The term "credits** means the excess of the
Bnm of all legal claims and demands, whether
for money or other valuable thing, or for labor
or service due or to become due to the person
liable to pay the tax thereon, Including deposits
tai banks, or with persons In or out of the state,
•ther than such as are held to be money as de-
fined In this section, when added together (es-
timating every such claim or demand at Its true
▼aloe In money) over and above the sum of
legal bona fide debts owing by such person ; but
In making up the sum of such debts owing, no
obligation can be taken Into account (1) to any
mutual Insurance company ; (2) for any unpaid
■abscrlptlon to the capital stock of any joint-
stock company ; (8) for any subscription for
any religions, scientific, or charitable purpose;
(4) for any Indebtedness acknowledged unless
fsnnded upon some consideration actually re-
islved and believed at the time of making the
Mknowledgment to be a full consideration there-
tor; (5) for any acknowledgment made for the
imese of diminishing the amount of credits
to be listed for taxation; (6) for any greater
amount or portion of any liability as surety
than the person required to make the statement
of such credits believes that such surety is la
equity bound to pay, etc.
Other sections read as follows :
Sec 2786. Each person required to list prop-
erty shall, annually, upon receiving a blank
for that purpose from the assessor, or within
five days thereafter, make out and deliver to the
assessor a statement verified by his oath, as re-
quired by law, of all the personal property,
moneys, credits, Investments in bonds, stocks,
joint-stock companies, annuities, or otherwise,
in his possession or under his control on the day
preceding the second Monday of April of that
year, which he Is required by law to list for
taxation, either as owner or holder thereof, or
as parent, husband, guardian, trustee, executor,
administrator, receiver, accounting officer, part-
ner, agent, factor, or otherwise ; and also of all
moneys, credits, investments In bonds, stocks,
joint-stock companies, or otherwise, held on said
day by another, residing In or out of this state,
for and belonging to the person so listing, or
anyone residing in this state, for whom he is re-
quired by law to list, and not listed by such
holder thereof, for taxation In this state.
Sec. 2737. Such statement shall truly and
distinctly set forth, first, the number of horses
and the value thereof; second, the number of
neat cattle, and the value thereof; third,- the
number of mules and asses, and the value there-
of; fourth, the number of sheep, and the value
thereof; fifth, the number of hogs, and the
value thereof; sixth, the number of pleasure
carriages (of whatever kind) and the value
thereof; seventh, the total value of all articles
of personal property, not included In the preced-
ing; or succeeding classes'; eighth, the number of
watches, and the value thereof ; ninth, the num-
ber of piano fortes and organs, and the value
thereof; tenth, the average value of the goods
and merchandise which such person Is required
to list as a merchant ; eleventh, the value of
the property which such person is required to
list as a banker, broker, or stock jobber ; twelfth,
the average value of the materials and manu-
factured articles which such person Is required
to list as a manufacturer; thirteenth, moneys
on hand or on deposit subject to order; four-
teenth, the amount of credits as hereinbefore
defined ; fifteenth, the amount of all moneys In-
vested In bonds, stocks, joint-stock companies,
annuities or otherwise ; sixteenth, the monthly
average amount or value, for the time he held
or controlled the same, within the preceding
year, of all moneys, credits, or other effects,
within that time Invested in or converted into
bonds or other securities of the United States
or of this state, not taxed, to the extent he may
hold or control such bonds or securities on said
day preceding the second Monday of April ;
and any indebtedness created in the purchase of
such bonds or securities shall not be deducted
from the credits under the fourteenth item of
this section ; but the person making such state-
ments may exhibit to the assessor the property
671
812, 218
SUPBBMS COUBT OF THB UhITBD BtATM.
OOK. Tbm,
tion adopted and enforced in the state of
Ohio, subjected to taxation at a greater rate
than is imposed nnon other moneyed capital
[S18]in the hands of inaividual citizens, ^contrary
to section 5^19 of the Revised Statutes of
the United States.
The complaint is founded upon the allega-
tion that the owners of what is termed cred-
its in the law of Ohio (Rev. Stat. S 2730)
are permitted to deduct certain kinds of their
debts from the total amount of their credits,
and such owners are assessed upon the bal-
ance only, while no such right is given to
owners of shares in national banks. The
claim is that shares in national banks
should be treated the same as credits, and
their owners permitted to deduct their debts
from the valuation. The owners of property
other than credits are not permitted to de-
duct their debts from tlia rtloMm of Ost
properly.
It is also claimed that there it
vorable discriminatioii againgt Ike
bank ehareholder and in faTor of m
corporated bank or banker.
At the outset it is plain that tiw
of taxation adopted in (Mo was not
ed to be unfriendly to or to
against the owners of shares n
banks, for, as observed bj the state
court, that system was adopted long
to the passage of the law fa^ Congress
viding for the inoorporatum of '
banks. Under this system the
shares in national baus is taxed predielT
like the owner of shares in ineorporalci
state banks. Rev. Stat Ohio, § 2762.
The main purposeof Congressin fixt^gBa-
unh
si
id
covered by the first nine items of this section,
and allow tbe assessor to affix the vaine thereof ;
and In such case the oath of the person making
the statement shall be in that regard only that
he has fully exhibited the property covered by
said nine items.
Sec. 2746. Personal property of every descrip-
tion, moneys and creditSt Investments in bonds,
stocks, joint-stock companies, or otherwise,
shall be listed in the name of the person who
was the owner thereof on the day preceding the
second Monday of April, in each year; but no
person shall be required to list for taxation any
share or shares of the capital stock of any com-
pany, the capital stock of which is taxed In the
name of sach company.
UNiMCOBPOBATan Banks akd Banksbs.
Sec 2758. Every company, association, or
person not incorporated under any law of this
state or of the United States for banking pur-
poses, who shall keep an office or other place of
business, and engage in the bosiness of lending
money, receiving money on deposit, baying and
selling bullion, bills of exchange, notes, bonds,
stocks or other evidence of indebtedness, with
a view to profit, shall be deemed a bank, banker,
or bankers, within the meaning of this chap-
ter.
Sec 2759. All nnincorporated banks and
bankers shall annually, between the first and
second Mondays of May, make ont and return
to the auditor of the proper county, under oath
of the owner or principal officer or manager
thereof, a statement setting forth :
First. The average amoant of notes and bills
.receivable, discounted or purchased in the
course of business, by such unincorporated bank,
banker, or bankers, and considered good and col-
lectible.
Second. The average amount of accounts re-
ceivable.
Third. The average amount of cash and cash
items in possession or in transit.
Fourth. The average amoant of all kinds of
stocks, bonds, indadlng United States govern-
ment bonds, or evidences of Indebtedness, held
as an investment or In any way representing
assets.
Fifth. The amoant of real estate at Its as-
sessed value.
Sixth. The average amoant of all deposits.
Seventh. The average amoant of accounts
payable, exclusive of current deposit accounts.
Eighth. The average amoant of United
States government and other securities that are
exempt from taxation.
Ninth. The true valne In money of all fnml-
672
ture and other property not otherwise
enumerated. From the aggregate sob of tki
first five items above mumerated tbe said aaO-
tor shall dedaet the sggregate sum d tbe tftk.
sixth, seventh, and such portions d tbe ciglck
items as are by law exempt from tsvitloe, lai
the remainder thus obtained added ta tte
amount of Item nine, shall be entsfsd en thi
duplicate of the county la the eaBs eC
bank, banker, or bankers, sad
shall be assessed and paid the
for other personal property assessed
In the same city, ward, or townshipt
Sec 2750a. The said bank, baata;
ers shall, at the same time,
under oath of the amount of capital paid la m
employed In such banking
with the number of shares or proportSeoAl
terest each shareholder or partner baa la
association or partnership.
iNcoapoBAxaD Bann*
tbi It-
Sec 2762. Ail the shares of tbe
in any incorporated bank or bsnkJng
located in this state, whether now or
Incorporated or organised undw tbe laws ef
state or of the United States. sbaU be llstafl
their true value In money, and taxed ta tbt
ward, or village where such bank Is locatsd,
not elsewhere.
Sec 2768. The real estate of any wmdk I
or banking association shall be taxad la
place where the same may be located, tbt i
as the real estate of individuals.
Sec 2765. The cashier of eac
bank shall make out and rtCum to
of the county in which it Is located,
the first and the second Monday of May.
ly, a report In duplicate under oath,
in detail and under appropriate
sources and iiabilitiee of sndi bank at tbt
of business on the Wedi
said second Monday, together wttb a taU
ment of the namee and rtsldeDees of tbe
holders therein, with the nosiber cl
by each, and the par value of eaeb
Sec 2766. Upon receiving sacb
county auditor shall fix tbe total idlat ef
shares of such banks according to tbeir
value in money, and deduct Cross tbe
sum so found the valne of tbe
daded in the statement of
stands on the duplicate, and tbeceapoa bt
make out and transmit to tbe
board of equalisation for Incorporated
copy of the report so made by tbe
gether with the valnatloa of sacb
fixed by the auditor.
iML
FiBST Katioval Bask of WBLLnreros ▼. Ohapican*
218-Slli
its to state taxation on investments in na-
tional banks was to render it impossible for
the state in levring such a tax to create and
&]*fix an ane<}ual and unfriendly competition
bj fayorin^ institutions or individuals carry-
ing on a similar business and operations and
investments of a like character. The lan-
guage of the act of Congress is to be read in
the light of Uiis policy^. **Monevcd capital"
does not mean all capital the value of which
b measured in terms of money; neither does
it necessarily include all forms of invest-
ments in which the interest of the owner is
expressed in money. Shares of ^tock in rail-
road companies, mining companies, manu-
facturing companies, and other corporations
are represented bv certificates showing that
the owner is entitled to an interest expressed
in money value in tiie entire capital and prop-
erty of the corporation; but the property of
the corporation which constitutes this in-
vested capital may consist mainlv of real and
personal property, which, in the hands of
individuals, none would think of calling
moneyed capital; and its business may ncS
consist in any kind of dealing in money or
commercial representatives of money. This
statement is taken from Mercantile Bank v.
Ifew York, 121 U. S. 138, 155 [30: 895, 901].
That case has been cited with approval many
times, especially in First National Bank of
Oamett v. Ayres, 160 U. S. 660 [40: 573],
and in Aberdeen Bank v. Chehalia County,
166U. S. 440 [41:1069].
The result seems to be that the term
'Moneyed capital" as used in the Federal
statute does not include capital which does
not come into competition with the business
of national banks, and that exemptions from
taxation, however large, such as deposits in
savings banks or of moneys belonging to
charitable institutions, which are exempted
for reasons of public policy, and not as an
unfriendly discrimination as against invest-
ments in national bank shares, ct^nnot be re-
garded as forbidden by the Federa] statute.
The case last cited contains a full and
careful reference to most of the prior cases
decided in this court upon the subject, and
gives the meaning (as above stated) of the
term "moneyed capital," when used in the
Federal statute.
With no purpose to discriminate against
the holders of shares in national banks, and
with the taxation of the shareholders in tiie
two classes of banks, state and national, pre-
l^lcisely *the same, the question is whether this
system of taxation in Ohio in its practical
operation, does materially discriminate
against the national-bank shareholder in the
assessment upon his bank shares.
Under the Ohio law the shares in national
and also in state banks are what is termed
stodcs or investments in stocks, and are not
credits from which debts can be deducted.
As between the holders of shares in incor-
porated state banks and national banks on
the one hand, and unincorporated banks or
bankers on the other, we find no evidence of
discrimination in favor of unincorporated
state banks or bankers. In regard to this
latter class, there is no capital stock so-
called, and section 2759 of the Revised Stat-
173 U. S. U. S., Book 43.
utes therefore makes provision, in order to
determine the amount to be assessed for tax*
ation, for deducting the debts existing in the
business itself from the amount of moneyed
capital belonging to the bank or banker and
employed in the business, and the remainder
is entered on the tax book in the name of the
bank or banker, and taxes assessed thereon.
This does not give the unincorporated bank
or banker the right to deduct his general
debts disconnected from the business of
banking, and but incurred therein, from the
remainder above mentioned. It cannot be
doubted that under this section those debts
which are disconnected from the banking
business cannot be deducted from the asgre-
^ate amount of the capital employed there-
in. The debts that are incurred m the ac-
tual conduct of the business are deducted, so
that the real value of the capital that is em*
ployed may be determined and the taaras as-
sessed thereon.
This system is, as nearly as may be, equiv-
alent in its results to that employed in tJie
case of incorporated state banks and of na-
tional banks. Under the sections of the Re-
vised Statutes which relate to the taxation
of these latter classes of banks (S 2762, ete.)
the shares are to be listed by the auditor at
their true value in money, which necessarily
demands the deduction of the debts of tibe
bank, because the true value of the shares
in money is necessarilv reduced by an
amount corresponding to the amount of such
debts. In order to arrive at their true value
in money the bank returns to the auditor the
^amount of the liabilities as wdl as its re-[216]
sources. Thus in both incorporated and un-
incorporated banks the same thing is desired,
and the same result of assessing the value
of the capital employed in the business, af-
ter the deduction of the debts incurred in
its conduct, is arrived at in each case as
nearly as is possible considering the differ-
ence m manner in which the moneyed capi-
tal is represented in unincorporated bamcs
as compared with incorporated banks
which have a capital stock divided into
shares. That mathematical equality is not
arrived at in the process is immaterial. It
cannot be reached m any svstem of taxation,
and it is useless and idle to attempt it.
Equality, so far as the differing facts will
permit, and as near as they wifl permit, is
aU that can be aimed at or reached, liiat
measure of equality we think is reached un-
der this system. So far as this point is con*
cemed, it is entirely plain there is no dis-
crimination between unincorporated banks
and bankers on the one hand and holders of
shares in national banks on the other.
If the value of national bank shares is in*
creased by reason of the franchises of the
bank itseff, as claimed by the plaintiff in er*
ror, while no such added value obtains in the
case of unincorporated banks, there is no dis-
crimination against bank shareholders on
that account. This is simply a cose where
added elements of value exist in the nation-
al bank shares, which are absent in the case
of unincorporated banks; but in both ca^es
all the debts of the business itself are de-
ducted from the capital employed before
43 673
216-219
SuPBEMB Court of the United States.
Oct.
reaching the sum which is assessed for tax-
ation, and in neither case can the debts of
the individual, simply as an individual, be
deducted from the value of the capital as-
sessed for taxation.
The court below did not hold, as erro-
neously suggested by counsel for plaintiff in
error, that, as the state and national banks
were placed on an exact equality regarding
taxation, therefore there was no discrimina-
tion made against national banks and in fa-
vor of other moneyed capital in the hands of
individual citizens. The state court said
upon this subject that if the state and na-
tional banks were treated equally the latter
were not assessed at a greater rate than the
[S17}former; *that nationsd-bank shareholders
were not, in such event, illegally assessed,
unless there were a clear discrimination in
favor of moneyed capital other than that
employed in either state or national banks.
This statement, we think, is plainly correct.
The question recognized by the state
court, tnerefore, remains whether there is
any such discrimination.
The chief ground for maintaining that
there is, exists in the fact that t)je owner of
what is termed "credits" in the statute is
permitted to deduct certain classes of debts
from the sum of those credits, upon the re-
mainder of which taxes are to be assessed,
while the national-bank shareholder is not
permitted to deduct his debts from the value
of his shares upon which he is assessed for
taxation.
It is claimed in substauQe that all credits
are moneyed capital, and that they are large
enough in amount, when compared with the
moneyed capital invested in national banks,
to become an illegal discrimination against
the holders of such shares.
There is no finding of the trial court upon
the subject of the total amount of credits in
the state. Reference was made on the argu-
ment to the report of the auditor of the state
for 1893, from which it is said to appear
that the total credite, after deducting the
debts allowed, were $106,000,000 or $111,-
000,000, the amoimte differing te that ex-
tent as presented by the counsel for the dif-
ferent parties. The case does not show that the
trial court received the report in evidence and
nothing in any finding has reference in any
way te that report. We do not think It
is a document of which we can take judicial
notice, or that we could refer te any state-
ment or alleged fact conteined therein, un-
less such fact were embraced in the finding
of facte of the trial court upon which we
must decide this case.
However, if we were to look at this report
we should then see that the totel credits do
not show what portion of those credite con-
siste of moneyea capitel in the hands of in-
dividuals, which in fact enters into competi-
tion for business with national banks. It is
only that kind of moneyed capital which this
(218]*oourt, in ite decisions above cited, holds
is moneyed capital within the meaning of the
act of Congress.
674
Indeed, th^e is no evideBoe as tD
the total moneyed ca{>ital in the hmmiM if
individual citizens, aud included in the term
''credite," amounte to, even under tlie witet
definition of that term.
In looking at the stetutory definitioa of th*
term "credite" we find that so far from its
including all legal claims and H^«f»^*« tf
every conceivable kind, except inveatm^ds
in bonds of the classes described io
2730, and investmente in stocks, it docs
include any claim or demand for depc
which the person owning, holding in trusty
or having the beneficial interest tberan, is
entitled to withdraw in money on iffim^,
nor the surplus or undivided profito bdd br
societies for savings or banks having do capi-
tal stock, nor bank notes of solvent banks
in actual possession, and from the credits as
defined their owner cannot deduct certain
kinds of indebtedness therein mentioned. It
cannot be contended that all credits, as de-
fined in the stetute, are moncTed eapitd
within the meaning of the act oif Googre*.
The term "credite ' includes among otbet
things, as steted in the statute, '^ kffil
claims and demands . . • tor labor m
service due or to become due to the p^r*oi*
liable to pay taxes thereOTL" These daias
are not in any sense of the statute moueyid
capital. They include all claims for pr»>
fessional or d^ical senrioss, as well ss Isr
what may be termed manual labor, and thrir
total must amount to a large sum. WhMX
proportion that total bears to the wbok ■■■
of credite we do not know, and the reoori
conteins no means of ascertaining.
It is impossible to tell from anything ap-
pearing in the record what proportiea if
the whole sum of credite consiste of vaomepi
capitel within the meaning of the Federal
act. We know that claims for labor or «rr-
ices do not consist of that kind of eapitsL
We also know that there are probably Urv
amounte of other forms of property* whwl
might enter into the class of credits as Ae
fined in the act, which would not he iuos*/s<
capital within the meaning of the sd if
Congress, as that meaning has been ikiw^ ^
by this court in 'the caries above cited lt'*.rt
thus seen that there are large and mkasvi
amoimte of what are in the act termed enk'
ite, which are not moneyed capital, and tkal
the total amount of credite whidi art BOi-
eyed capital, within the definitioa grrcs If
this court to that term, is also maksovt.
That portion of credite which is not iBo«t«4
capital, as so defined, does not enter into tte
question, because the coroparisos mwt hi
made with other moneyed eapitsl Is tkt
hands of individual citizens. We are tte
wholly prevented from ascertaining vist
proportion the moneyed capitel of indiridad
citizens, included in the term credits issl
from which some classes of debts osa !• dr
ducted), bears to the amount invented is »«-
tional bank shares. We are, thtr^bct. 0*
able to say whether there has or has Mt tea
any material discrimination such a» t<i« Fh-
179 ILft
itm.
HsHBiBTTA MiNme & M. Co. T. Johnson.
219-8tl
eral statute was enacted to prevent. We
cannot see upon these facts any substantial
differenoe between this case and that of First
Hat, Bank v. Ayres, 160 U. S. 660 [40: 573],
and Aberdeen Bank [First Nat, Bank"] v.
Vhehalia County, 166 U. S. 440 [41: 1069],
and Bank of Commerce v. Seattle, 166 U. S.
463 [41:1079].
As a result we find in this record no means
of ascertaining whether there is any unfavor-
able discrimination against the sharehold-
ers of national banks in the taxation of their
shares, and in favor of other moneyed capi-
tal in the hands of individual citizens. There
is nothing upon the face of these statutes
which shows such discrimination, and there^
fore it would seem that the plaintiff in error
has failed to make out a case for the inter-
Tention of the court.
It is stated, however, that this specific
question has been otherwise decided in Whit-
heck V. Mercantile National Bank of Cleve-
land, 127 U. S. 193 [32: 118]. If this were
true, we should be guided b^ and follow
that decision. Upon an examination of the
case it is seen that the court gave chief at-
tention to the question whether an increase
in the value of the shares in national b^nks,
made by the state board of equalization, from
sixty per cent of their true value in money,
as fixed by the auditor of Cuyahoga county,
to sixty-five per cent as fixed by the board
(other property being valued at only sixty
per cent), amounted to such a discrimina-
M)]tion in the taxation of the *share(holders of
such banks as is foi'bidden by the Federal
statute. It was held that it did.
Coming to the question of the deduction of
the bona fide indebtedness of shareholders,
the court assumed that under the statute of
Ohio owners of all moneyed capital 'other
than shares in a national bank were permit-
ted to deduct their bona fide indebtedness
from the value of their moneyed capital, but
that no provision for a similar deduction
was made in regard to the owner of shares
in a national bank, and it was held that the
owners of such shares were entitled to a de-
duction of their indebtedness from the as-
sessed value of the shares as in the case of
other moneyed capital. The point to which
the court diiefly directed its attention re-
nted to the question whether a timely de-
mand had been made for such deduction of
indebtedness. It was held that it was made
in time, for the reason that the court below
expressly found that "the laws of Ohio make
no provision for the deduction of the bona
fide indebtedness of any shareholder from the
shares of his stock, and provide no means by
which such deduction could be secured.'* Aa
a demand at an earlier period would have
been useless, the court held it unnecessary.
An examination of Uie statutes of Ohio in
regard to taxation shows that debts can only
be deducted from credits, and how much of
credits is moneved capital is unknown. The
OMe is not authority adverse to the princi-
ple we now hold.
For the reasons already stated, we think
178U.8.
the judgment in this case should he affirmed,
and it is so ordered.
HENRIETTA MINING & MILLINQ C0M-[221]
PANY, Appt.,
V.
HENRY JOHNSON.
(Bee a C. Bepo'rter'i ed. 221-225.)
Service of summons upon foreign corpora^
tionn-Arizona Code, §§ 3^8, 112, 71S, aa
to such service,
1. Under Ariz. Code Civ. Proc S 704, service of
a summons upon the general manager of a
foreign corporation is a sufficient service upon
the corporation itself.
2. Sections 848, 712, and 713 of the same Code,
providing specially for service upon foreign
corporations, are not exclusive, and merely
provide a special mode of service In case the
corporation has ceased to do business In the
territory, or has no agent appointed in pur-
suance of i 848.
[No. 139.]
Submitted January 16, 1899, Decided -Feb-
ruary 27, 1899.
ON APPEAL from a judgment of the Su-
preme Court of the Territory of Arizona
modifying and affirming as modified the
judgment of the District Court of Yavapai
County, Arizona, in favor of Henry Johnson,
plaintiff, and against the Henrietta Mining
& Milling Company, the defendant, for work
and labor done and material furnished by
?laintiff for defendant, amounting to $5,-
48.57. Affirmed.
Statement by Mr. Justice Brown t
This was an action instituted by Johnson
in the district court of Yavapai county, Ariz-
ona, to obtain a judgment against, and to
establish a lien upon, the property of the
Mining Company, an Illinois corporation for
work and labor done and material furnished,
and to fix the priority of such lien over cer-
tain other lienholders who were also made
defendants. The plaintiff, in an affidavit
annexed to the complaint, nlfeide oath that
"H. N. Palmer is the general manager of the
said Henrietta Mining & Milling Companv,
and in charge of the property of the said
company in the said county of Yavapai," and
that said company ''has no resident agent in
the said county of Yavapai and territory of
Arizona, as is required by law; and this af-
fiant causes a copy of this notice of lien to be
served upon the said H. N. Palmer, as the
general manager of said company."
A summons was issued, and a return made
by the sheriff that he had "perisonally served
the same on the 9th day of July, 1894, on
the Henrietta Mining & Milling Company, by
delivering to H. N. Palmer, superintendent
and general manager of said company,
• • • being the d^endanta named in said
675
«I1-S24
SUPRBHS Ck>UBT OF THB UNITED BtATKS.
■ummonB, bj delivering to each cf said de-
fendants peraonallj, in the citj of Presoott,
eounty of Tavapai, a copy of summons, and
a true oopj of the complaint in the action
named in said summons, attached to said
summons."
Default having been made, judgment was
entered against uiecon^>an^ pjersonally, with
a further clause that plaintiff have a lien
upon its property in the sum of $5,748. 57.
[SM]Tne case *waB taken to the supreme court
of the territory by writ of error, where the
judgment was modified by striking out the
lien upon the property, and in all other re-
spects was affirmed, and a new judgment en-
tered against the sureties upon the super-
sedeas M>nd.
Whereupon the Mining & Milling Company
•ued out a writ of error from this court, in-
abting, in its assicpments of error, that ''the
eaid court below £d not have jurisdiction of
the person of defendant for the reason that
no service had been had upon said defendant,
<dther personal or constructive."
Messrs, William K. Barnes and Frank
Athurj Joluuion for appellant.
Messrs, E. M. Saadfoi^ and Robert E,
Morrison for appellee.
[M2] *Mr. Justice Brown delivered the opinion
of the court:
The affidavit of the plaintiff, and the re-
turn of the sheriff, each stated that Palmer
was the general manager of the company.
No evidence to the contrary was introduced,
and the fact must therefore be asi*umed upon
this record.
As the judgment of the district court was
modified by the supreme court, it became sim-
ply a personal judgment against the com-
pany, and the only question piesented is
whether the service of a summons upon the
general manager of the company was, under
the laws of Arizona, a sufficient service upon
the company itself.
Our attention is called to several sections
of the Revised Statutes of Arizona (1887),
the first of which is part of the chapter en-
tiUed "Foreign Corporation" and provides:
''Sec. 348. It shall oe the duty of any asso-
ciation, company, or corporation organized
or ineorporated under the laws of any other
state or territory . . . to file with the
secretary of this territory and tlie county re-
corder of the county in which such enter-
prise business, pursuit, or occupation is pro-
posea to be located, or is located, the lawful
|8S8]appointment of an ajg;ent, upon *whom all no-
tices and processes, including service of sum-
mons, may be served, and when so served
shall be deemed taken and held to be a lawful,
personal service," etc. There is no penalty
provided for a failure to file such appoipt-
ment, though in the next section, 349, it is
declared that "every act done by it, prior
to the filinff thereof, shall be utterly void."
Beyond this disabili^ it is left optional
with the corporation to file such appoint-
ment, and the reoord of this case shows that
676
none sudi was filed by the plaintiir ia
The second section is taken from tkat
chapter of the Code of Civil Proeednre eaCi-
tled "Process and Returns:** "Sec 704.
In suits against any ineorporated eomp^mj
or joint-stock association the vmuDons ^j
be served on the presideat, aecreCary, or
treasurer of such company or assrciatiaa, or
upon the local a^ent representtng such ena-
pany or association, in the county in whick
suit is brought, or by leaving a copy of tiM
same at the prindpu office ^ the eempaiy
during office hours,^' etc
There is a further provision in tlie mms
chapter, sec. 712, that when it is 3iade to ap-
pear by affidavit that the defendant '*is a cor-
poration incorporated under the laws of aay
other state or territory or foreign oouatry,
and doing business in this territory, or hav-
ing property therein, but haviiw no k^aUy
appointed or constituted agent in this ter^
ntory, • • • the derk shaD iasae the
summons, . . . and said sheriff AsR
serve the same by making public;itic» there-
of in some newspaper," etc; and by secCiaa
713, when the residence of defendant ii
known the plaintiff, his agent or attorney,
shall forthwith deposit a copy of the nm-
mons and complaint in the postoffioe, ptwtags
prepaid, directed to the defendant atSs
place of residence.
It is insisted by the plaintiff in error tfet
the service in this case up(»i its maaafv
was ineffectual to bind the eorporatioa, aai
that a personal judgment under it eoeU
only be obtained by complying irith sectaoa
348, and serving upon an agent appointed ia
pursuance of tlutt section ; and that this pe*
sition holds cood notwithstandingsoch sf>
pointment had never been made ¥?e an of
opinion, however, that sections 34S. 712,
713, providing *spedally for sertiijes l^ .
foreign corporations, were not int^Mied to he
exclusive, and were merely designed to secart
a special mode of service in ease the eorper
ation had ceased to do business in the terri-
tory, or had no local or official agent sf-
pointed in pursuance of sectioa 348. N«l
only is the language of section 348 pcrau»>
sive in the use of the words "may be semf
upon the agent appointed under the statvts.
but the general language of section 704, tak-
en in connection with the general subject «tf
the statute, "Process and Returns, ied)-
cates that no restriction was intended to 4»-
mestic corporations; and that the werdi
"any incorporated company or joiat-staA
association*^ are as applicable to fbreiga u
to domestic oompanies. No penalty it in-
posed upon foreign corporations for failsTt
to file the appointment of an arat «b^
section 348, and the only disability vhM
such failure entails is its incompctearr to
enforce its rishts by suit. If, as coatcsM
bv the plaintiff in error, the remedr agatssi
the foreign corporation be oonflned to mn-
ice of process upon such appointed sgeat &
results that, if the corporation does art
choose to file such appointment, iatcadiif
suitors are ocmfined to tho remedy bv pokfr
1818. HsHBiBTTA IL ft M. Co. T. HiLL. Baltdioss ft O. R Co. y. Jot. 234-32$
cition provided hv section 712, which, under
the decisioe of this court, would be ineffect-
ual to sustain a pers(mal judgment. Peth
noyer v, Neff, 95 U. S. 714 124: 566].
It is incredible that the legislature should
have intended to limit its own citizens to
such an insufficient remedy, when the cor*
poration is actually doine business in tiie
territory and is represented there by a man-
ager or local agent.
The eases cited by the plaintiff in error
do not sustain its contention. In the South'
em Building and Loan Aasooiaiion v. JStaU
hm [59 Ark. 583], 28 S. W. Rep. 420, it was
held by the supreme court of Arkansas, un-
der a statute similar to section .348, that a
terrice made on an agent in a county other
than that in which the action was bc^n, and
which failed to show that he had been desig-
nated as prescribed, was insufficient to au-
thorize a judgment b^ default. Obviously,
by section 348, it is intended that service
may be b^im in any county and served upon
the appointed a^ent, and all for which this
U&lcase *is authority is that, if it be served
upon any other agent, the action must be
brought in the county where such agent is
servM. The opinion of the court was put
upon this ground. In the case under consid-
eration. Palmer, the superintendent, was
served in the county of Yavapai, where the
suit was begun.
The case of the State v. TJ^e United States
Mutual Accident Association, G7 Wis. 624,
is against the proposition for which it is cit-
ed. In that case service of a summons upon
an unlicensed foreign insurance company, by
delivering a copy to an agent of the com-
pany, was held to be sufficient, the defendant
never having made an appointment of an
agent under the statute. Said the court:
'Uf the argument of oounsel to the effect
that section 1977 only relates to agents of
such foreign insurance companies as are du-
ly licensed to do business within this state
is sound, then there would be no possible
way of commencinff an action against an un-
licensed forei^ insurance company doing
business in this state in violation of law. In
other words, such construction would re-
ward such foreifip insurance companies as
refused to pay uie requisite license, by en-
abling them to retain tne license money, and
then shielding them from the enforcement of
all liability, whether on their contracts or
otherwise, m the courts of Wisconsin. Such
construction would defeat the whole purpose
and scope of the statute."
The cases from Michigan are too imper-
fectly reported to be of any practical value.
In Deeper v. The Continental Water Meter
Company, 137 Mass. 252, the service of a
bin in equity by subpcena upon the treasurer
fd a foreign corporation was held to be un-
authorized by any statute, and also that
there was no method of bringing it in except
by means of an attachment of its property.
Neither this nor that of Le%D%s v. Vorthern
B. R, 139 Mass. 294, is in point
We are of opinion that the sarvice upon
178 U. ■.
Palmer was sufficient, and the judgmmU ef
the Supreme Court of Arieona w thereform
affirmed.
Hbnsiktta Mimifo & Mhuno Company,
Appt.,
V.
Sahttsl Hnx.
(See 8. C. Beporter's ed. 225-226.)
[No. 138.]
Submitted January 15, 1899. Decided Feb'
ruary 27, 1899.
ON APPEAL from a judgment of the Su-
preme Court of the Territory of Arizona
affirming as modified a judgment of the Dis-
trict Court in and for Yavapai County, Ariz-
ona, in favor of the plaintiff, Samuel Hill,
against the Henrietta Mining & Milling
Company. Affirmed.
Messrs, William K. Barnes ard Frank
Amburj Jolu&son for appellant.
No counsel for appellee.
Bt th£ Coubt: The *facts in this case, 8o[2M]
far as they bear upon the question in contro-
versy, are precisely similar to the one just
decided, and the judgment of the Supreme
Court of Arisona is therefore affirmed.
BALTIMORE & OHIO RAILROAD COM-
PANY, Plff. in Err.,
V.
DAVID JOY, Admr. of the Estate of John
A. Hervey, Deceased.
(See 8. C. B^K>rter'8 ed. 226-231.)
Action for injuries in the United States cW-
ouit court sitting in Ohio, when does not
abate on death of plaintiff — removal of
case to Federal court — U. 8. Rev. Stat. §
95& — revivor of actions governed by the
laws of the forum.
1. An action pending in the circuit court of the
United States sitting in Ohio, brought b? the
injured person as plaintiff to recover dama-
ges for injuries sustained by the negligence of
the defendant in Indiana, does not flnallj
abate upon the death of the plaintiff, notwith-
standing the fact that, had no suit been
brought at all, the cause of action would hsve
abated both in Indiana and Ohio, snd that»
even if a suit had been brought in Indiana^
the action would have abated in that state.
2. A right given by the statute of s state to
revive a pending action for personal injuries,
In the name of a personal representative of a
deceased plaintiff, is not lost upon the remov-
al of the case into a Federal court.
8. U. 8. Rev. Stat, i 055, does not apply to an
action brought in one of the courts of a state
whose statutes permit a revivor in the event
of the death of a party before final Judgment.
4. The question of the revivor of actions
brought In the courts of a state for personal
67T
886-229
SupBEMB Court of the United States.
Oct.
Injuries Is gOYemed bj the Isws of that state,
rather than by the law of the state In which
the Injuries occurred.
[No. 129.]
BuhnUited January 12, 1899, Decided Felh
ruary 20, 1899.
ON A CERTIFICATE from the United
States Circuit Court of Appeals for the
SLxth Circuit of a question of law for the
decision of this court in an action brought
by John A. Hervey against the Baltimore &
Ohio Railroad Company, in the Common
Pleas Court of Hancock County, Ohio, to re-
cover damages for personal injuries caused
by the negligence of the railroad company,
which action was removed into the Circuit
Court of tiie United States for the Northern
District of Ohio. After such removal plain-
tiff died, and tiie action was revived in the
name of his administrator appointed in Ohio.
Question answered in the negative,
Messrs, HnsH 1m BoAd« Jr., and /. H,
Collins for plaintiff in error.
No counsel for defendant in error.
[M6] *Mr. Justice HarlaB delivered the opin-
ion of the court:
This case is before us upon a question of
law certified by the judges of the United
States circuit court of appeals for the sixth
circuit unuer the sixth section of the act
of March 3d 1891, chap. 517 (26 Stat at L.
826).
[S271 *It appears from the statement accompany-
ing the certificate, that on the 18th day of
October, 1891, John A. Hervey, a citizen of
Ohio residing in Hancock county in that
state, was a passenger on a train of the Bal-
timore & Ohio Railroad Company between
Chicago, Illinois, and Fostoria, Ohia While
upon the train as passenger he was injured
at Albion, Indiana, in a collision caused by
the negligence of the railroad company. He
brought suit in the common pleas court of
Hancock county, Ohio, to recover damages
for the personal injuries he had thus re-
ceived.
Upon the petition of the railroad company
the suit was removed into the circuit court
of the United States for the northern dis-
trict of Ohio upon the ground of diverse
citizenship. After such removal Hervey
died, and, against the objection of the rail-
road company, the action was revived in the
name of the administrator of the deceased
plaintiff, appointed by the proper court in
Ohio.
At the time of Hervey's death the com-
mon-law rule as to the abatement of causes
of action for personal injuries prevailed in
Ohio. But by section 5144 of the Revised
Statutes of that state, then in force, it was
provided that, "except as otherwise provid-
-edf no action or proceeding pending m any
■court shall abate by the death of either or
•both of the parties thereto, except an action
ior libel, slander, malicious prosecution, as-
sault, or assault and battery, for a nuisance,
or against a justice of the peaoe for miscon-
duct in office, which shall abate by the death
€# either party." Rev. Stat. Ohio 1890, v^l.
•78
1, p. 1491. That section was conslmsd is
Oh%o d Penn. Coal Co. r. Smith, Adm-. 9
Ohio St. 313, which was an action for pe-
sonal injuries caused by the negligence d t,
corporation and its asenta. rhe rapnac
court of Ohio said: ''The action was a peii-
ing one at the time oi the death of the phis-
tiff. It is not within any of the eDomentBi
exceptions of section 5144, and was then-
fore properly revived and prosecuted to judg-
ment in the name of the administrator of
the deceased plaintiff."
The Revised Statutes ot Indiana, in wUri
state the injury was received, proride t^t
"no action shall abaite by the *death or di^ tl
ability of a party, or by the transfer of mmj
interest therein, if the cause of actioB sar-
vivo or continue" (S 271); also, thtt *a
cause of action arising out of an injiuy ts
the person dies with the person of dither
party, except in cases in which an sctiea m
given for an injury causing the death of mmj
person, and actions for sanction, ftlae im-
prisonment and malidoua proeeeatioa.* J
282).
By section 955 of the Revised Statntct of
the United States, brought forward fraa thi
judiciary act of September 24th, 1T89 1
Stat at L. 90, chap. 20, § 31), it is pro-
vided that "when either of the partiev
whether plaintiff or petitioner or defeoduit.
in any suit in any court of the United State^
dies before final judgment, the execotor or
administrator of such deceased party air,
in case the cause of action survives by lav,
prosecute or defend any such suit to iatl
judgment."
Tne question upon which the court hdtm
desires the instruction of this court is tUs-
"Does an action pending in the circvt
court of the United States sitting in Obo.
brought by the injured person as pUistif
to recover damages for injuries Bustaiatd bf
the negligence of the defendant in liidia».
finally abate upon the death of the pUiitif
in view of the fact that, had no suit bea
brought at all, the cause of actioa vmU
have abated both in Indiana and Oliio, vd
that, even if suit had been brought is Is-
diana, the action would have abated is t^
state?"
If the case had not been removed to tk
circuit court of the United States, it b timr
that under the statutes of Ohio as iaterprfl-
ed by the highest court of that sute tW •^
tion might nave been revived in the ttsit
court in the name of the perAooal leuiiw
tative of Hervey, and proceeded to ftau i<4r
ment. We think that the right t.^ nrm a-
tached under the local law when U«"5
brought his action in the state coart It
was a riffht of substantial value, aad hseaas
inseparably connected with the caon of ■^
tion so far as the laws of Ohio vtrt em-
cemed. Was it lost or destrojnNl vhca. >^
on the petition of the railway fompssy.^
case was removed for trial mto tht nrcitf
court of the United States? Was H wt
rather, a right that inhered in the f'*'*!^
and *accompanied it when in tibe lifatJ—^*^
Hervey the Federal court acquired jsjufr
tion of the parties and the subject-r'**^'
This \ast question must receive aa
1896.
CoYmaTon v. Common wsalth of Esntuckt.
22U-881
tife answer, unless section 955 of the Revised
Statutes of the United States is to be con-
strued as absolutely prohibiting the revival
in the Federal court of an action for per-
sonal injuries instituted in due time and
which was. removed from one of the courts
of a state whose laws modified the conmion
law so far as to authorize the revival, upon
the death of either party, of a pending ac-
tion of that character.
We are of opinion that the above section
is not to be so construed. In our judgment,
a right given by the statute of a state to re-
vive a pending action for personal injuries
in the name of the personal representative
of a deceased plaintiff is not lost upon the
removal of the case into a Federal court.
Section 955 of the Revised Statutes may
reasonably be construed as not applying to
an action brought in one of the courts of a
state whose statutes permit a revivor in the
event of the death of a party before final
iudgment. Whether a pending action may
be revived upon the death of either party
and proceed to judgment depends {primarily
upon the laws of the jurisdiction in which
the action was commenced. If an action be
brought in a Federal court, and is baaed up-
on some act of Congress, or arises under
some rule of general law recognized in the
courts of the Union, the question of revivor
will depend upon the statutes of the United
States relating to that subject. But if at
the time an action is brought in a state
court the statutes of that sUite allow a re-
vivor of it on the death of the plaintiff be-
fore final judgment, — even where the right
to sue is lost when death occurs before any
suit is brought — then we have a case not dis-
tinctly or necessarily covered by section 955.
Suppose Herv^ had died while the action
was pending in the state court, and it had
been revived in that court, nevertheless af-
ter such revival, if diverse citizenship exist-
ed, it could have been removed for trial into
the Federal court and there proceeded to fi-
nal judgment, notwithstanding section 955
of the Revised Statutes of the Unired States.
If this be so, that section ought not to be
0]con9tnied *as embracing the present case.
Nor ouffht it to be supposed that Congress
intended that, in case of the removal of an
action from a state court on the petition of
the defendant prior to the death of the
plaintiff, the Federal court should ignore the
law of the state in reference to the revival
of pending actions, and make the question
of revivor depend upon the inquiry whether
the cause of action would have survived if
no suit had been brought. If Congress
could legislate lo that extent it has not done
so. It has not established any rule that will
prevent a recognition of the state law under
which the present action was originally in-
stituted, and which at the time the suit was
broi^ht conferred the right, when the plain-
tiff m an action for personal injuries died
before final judgment, to revive in the name
of his personal representative. Cases like
this may reasonably be excepted out of the
general rule prescribed by section 955.
These views are in harmony with section
721 of the Revised Statutes which was
173 tr. s.
brought forward from the judiciary act of
1789 (I Stat, at L. 92, chap, 20, S 34), and
provides that ''the laws of the several states,
except where the Constitution, treaties, or
statutes of the United States otherwise re-
quire or provide, shall be regarded as rules
of decision in trials at common law, in tiie
courts of the United States, in coses where
the^ apply;'' and also with section 914, pro-
viding that "the practice, pleading, and
forms and modes of proceeding in civil
causes, other than equity and admirsJIy
causes, in the circuit and district courts,
shall conform, as near as may be, to the
practice, pleadings, and forms and modes of
proceeding existing at the time in like causes
m the courts of record of the state within
which such circuit or districft courts ate
held, any rule of court to the contrary
notwithstanding.'' They are in accord also
with what was said in Martin v. Baltimore
d Ohio Railroad Co. 151 U. S. 673, 692 [38:
311, 318], in which, after referring to
Sohreiber v. Sharpleas, 110 U. S. 76, 80 [28:
65, 67], this court said: "In that case, the
right in question being of an action for a
penalty under a statute of the United States
the Question whether it survived was gov-
emeu by the laws of the United Spates. But
in the case at bar, the question whether the
administrator has *a ri^t of action depends[S31]
ujpon the law of West Virginia, where the ac-
tion was brought and the administrator ap-
pointed. Rev. Stat $ 721 ; Henakaw v. ifu-
fcr 17 How. 212 [15: 222]."
It is scarcely necessary to sav that the de-
termination of the question of the right to
revive this action in the name of Hervey's
personal representative is not affected in any
degree by the fact that the deceased received
his injuries in the state of Indiana. The
action for such injuries was transitory in
its nature, and the jurisdiction of the Ohio
court to take cognizance of it upon person-
al service or on the appearance of the de-
fendant to the action cannot be doubted.
Still less can it be doubted that the question
of the revivor of actions brought in the
courts of Ohio for personal injuries is eoy-
emed by the laws of that state, rather than
by the law of the state in which the injuries
occurred.
The question propounded to this eourt
must he answered in the negatioe. It will
be so certified to the Circuit Court of Ap-
peals.
CITY OF COVINGTON, Plff. in Err.,
V,
COMMONWEALTH OF KENTUCKY.
(See 8. C. Reporter's ed. 281-248.)
When statute ewempting waterworks prop'
erty of a city from tawes is not a contract
— charter of municipal corporation, or law
as to the use of its property, is not a oon^
tract, within the meaning of the national
Constitution.
1. The statute of Kentucky proridlng that the
waterworks property of the city of Covington
679
88»-284
SUPBIOCB COJJRT OF THB UNITED STATKS.
Oct.
*%han be and remain forever*' exempt from
taxes does not constitute a contract, bat was
passed anbject to a general statute of the state
that all statutes shall be subject to amend-
ment or repeal unless a contrary Intent be
therein plainly expressed.
S. Neither the charter of a municipal corpora^
tion, nor any legisiatlYe act regulating the use
of property held by it for gOYemmental or
public purposes, is a contract within the mean-
ing of the national Constitution.
[No. 152.]
Buhmiiied January 18, 1899. Decided Feb-
ruary 20, 1899,
IN ERROR to the Court of Appeals of the
State of Kentucky to review a judgment
of that court affirming a judgment of the
Campbell Circuit Court of that State in fa-
vor of the Commonwealth of Kentucky for
the possession of certain lands on which the
waterworks of defendant, the City of Coving-
ton, are situate, and sustaining the validity
of the taxation of the waterworks property.
Affifmed,
The facts are stated in the opinion.
Messrs, WilUani Goebel and W, B,
Pryor for plaintiff in error.
Messrs, w. S. Taylor, Attorney General
of Kentucky, and Ramsey Wasblngtom
for defendant in error.
[SSS] *^^ Justice HarlaB delivered the opin-
ion of the court:
The plaintiff in error, a municipal corpo-
ration of Kentucky, insists that bv the final
judgment of the court of appeals of that
commonwealth sustaining the validity of
certain taxation of its waterworks property
it has been deprived of rights secured by
that clause of the Constitution of the United
States which prohibits any state from pass-
ing a law impairing the obligation of con-
tracts. That is the onij question which this
court has jurisdiction to determine upon
this writ of error. U. S. Rev. Stat S 709.
By an act of the general assembly of Ken-
tucky approved May 1st, 1886, the city of
Covington was authorized to build a water
reservoir or reservoirs within or outside its
corporate limits, either in the county of Ken-
ton or in any county adjacent thereto, and
acquire by purchase or condemnation in fee
0l38]*simple tiie lands necessary for such reser-
voirs, and connect the same with the water-
pipe system then existing in the city; to
DUild a pumping house near or adjacent to
the Ohio river, and to provide the same with
all necessary machinery and appliances, to-
§;ether with such lands as might be neede«l
or the pumping house, and for connecting it
with said reservoir or reservoirs. $21.
The declared object of that legislation was
that the city and its citizens might be pro-
vided with an am^e supply of pure water
for all purposes. To that end the city was
authorized and empowered, by its board of
trustees, to issue and sell bonds to an amount
not exceeding $600,000, payable in not more
than forty years after date, with interest at
a rate not exceedins five per cent per annum,
— such bonds not, however, to be issued un-
680
til the question of issuing them and the
tion of the location of the reservoir or i
voirs, whether above or below the eity^ shooU
first be submitted to the qualified voten ol
the corporaticm at an election held for that
purpose and approved by a majority of the
votes cast.
By section 31 of that act it was provided
that ''said reservoir or reservoirs, aiachxa-
ery, pipes, mains, and appurtenances, with
the land upon which they are situated, thsH
be and remain, forever exempt from state,
county, and city tax." Ky. Acts 188M,
chap. 897, p. 317.
A subsequent act, approved February 15th,
1888, authorized the ci^, in execution of tht
provisions of the act of 1886, to issue sad
sell bonds to the additional amount of $460,-
000. Ky. Acts 1887-8, chap. 137, p. 22L
The scheme outlined in these acts receivil
the approval of the majority of the volei
cast at an election held in the citj. aai
thereafter bonds to the amount of $6i0Oj0OO
and $400,000 were issued in the naae d
the city and disposed of.
The proceeds of the bonds were duly sp>
plied b^ the city in building water reser-
voirs, m constructing the requisite t^
preaches, pipes, and mains, in aoquirins tht
lands necessary for the reservoirs and for
its approaches and connections, in eredog
a pumping house and providing it withasBB-
sary machinery and appliances, and in bet-
ing land for a pumping house ^andtheeoe^ttl
nection thereof by pipes and mains with the
reservoirs.
The entire works upon their compktiaa
passed under the control of the dty, wkkk
managed the same until March 19tiu 18K
by the commissioners of waterworks.
the act of March 3l8t, 1879, chap. 121 (If.
Acts 1879, p. 93) ; and since March IfU.
1894, they have been controlled under tht
act of that date, chap. 100, by a board, n^
ject to such regulations as the city by oiS-
nance might provide. Ky. Acts 1894, d^ V^
By the latter act it was also proridca that
the net revenue derived from its watervoria
bv any city of the second class — to wkiek
class the city of Covington belongs — •besM
be applied exclusively to the improvfBMt
or reconstruction of its streets and otter
public ways.
When the above act of May 1st, 1886, vai
passed there was in force a general statute d
Kentucky, passed February 14th, 1856. v^
provided, as to all charters and acts of »
corporation granted after that date, that *ifl
charters and grants of or to corpontkMk
or amendments thereof, and all other fts^
utea, shall be subject to amendment or t**
peal at the will of the legislature, oaks* t
contrary intent be therein plainly cxproM'-
Provided, That whilst privileges aad tnst
chises so granted may be chanced or f**
pealed, no amendnnait or repeal uiall i*9*5
other rights previously Tested;** aai w
"when any corporation shall expire or kt
dissolved, or its corporate rights aad pri*^
leges shall cease by reason of a repeal of t^
charter or otherwise, and no differcet pfo*
vision is made b^ law, all its worki tf'
property, and all debts payable to it ^
173 C*
1896.
OoTiNOTOH T. Commonwealth of Ebntuckt.
284-287
be subject to the parent of debts owing bj
it, and then to distnbution among the mem-
bers according to their respective interests;
and such corporation may sue and be sued
as before, for the purpose of settlement and
distribution as aforesaid." 2 Ky. Rev. Stat.
121.
This statute was not modified by the gen-
eral revenue statute of May 17th, 1886,wnich
took effect September 14th, 1886, and became
part of chapter 68 of the Qeneral Stat-
utes of 1888. It constitutes $ 1987 of the
Revision known as the Kentucky Statutes
of 1894. Nor has it been changed by any
subsequent legislation in Kentu3cy.
*^i *The present Constitution of Kentucky,
adopted in 1891, contains the following pro-
visions:
"S 170. There shall be exempt from taxa-
tion public property used for public pur-
poses.
"S 171. The general assembly shall provide
by law an annual tax, which, with other re-
sources, shall be sufficient to defray the es-
timated expenses of the conmionwealth for
each fiscal year. Taxes shall be levied and
collected for public purposes only. They
shall be uniform upon all property subject
to taxation within the territorial limits of
the authority levying the tax; and all taxes
shall be levied and collected by general laws.
**i 172. All property not exempted from
taxation by this Constitution shall be as-
sessed for tiatxation at its fair cash value, es-
timated at the price it would bring at a fair
▼oluntary sale; and any officer or other per-
son authorized to assess values for taxation
who shall commit any wilful error in the per-
formance of his duty, shall be deemed golty
of misfeasance, and upon conviction thereof
shall forfeit his office, and be otherwise pun-
i^ed as may be provided by law."
By the Kentucky Statutes of 1894 it is
provided :
''i 4020. All real and personal estate
within this state, and all personal estate of
persons residing in this state, and of all cor-
porations organized under the laws of this
state, whether the property be in or out of
this state, including intangible propertv,
which shall be considered a^ estimated in
iixjii|g the value of corporate franchises as
hereinafter provided, shall be subject to tax-
ation unless the same be exempt from tcuca-
tion by the Constitution, and shall be as-
sessed at its fair cash value, estinmted at the
price it would bring at a fair voluntary
sale."
"i 4022. For the purposes of taxation,
real estate shall induae all lands within this
state and improvements thereon; and per-
sotial estate shall include every ot^er species
and character of property, — that which is
tangible as well as that which is intan^ble."
**) 4026. The following property is ex-
empt from taxation : Pubflc property used
forpublic purposes. . . .'^ *
86] *T)3M act repealed all acts and parts of
acts in conflict with its provisions except the
act of June 4th, 1892, providing additional
fnnds for the ordinary expenses of the state
government, and the act amendatory thereof
approved July 6th, 1892.
173 U. S.
In the year 1895 certain land<) acquired
under the above act of May Ist, 188JS. and
constituting a part of the Covington Water-
works, were assessed for state and county
taxation, pursuant to the statutes enacted
after the passage of that act, and conforma-
bly as well to the Constitution of Kentucky
if that instrument did not exempt them from
taxation. The taxes so assessea not having
been paid, those lands after due notice
were sold at public outcry by the sheriff (who
by law was tne collector of state and county
revenue), and, no other bidder appearing,
the Commonwealth of Kentucky purchasra
them for $2,187.24, the amount of the taxes,
penalty, commission, and cost of advertising.
The present action was brought by the
commonwealth to recover possession of the
property so purchased.
Tnc principal defense is that the provinion
in the act of May 1st, 1886, that the reservoir
or reservoirs, pumping house, machinery,
pipes, mains J and appurtenances, with the
land upon which they are situated, ''shall be
and remain forever exempt from state, coun-
tv, and cit^ taxes," constituted, in respect of
the lands in question, a contract between the
city of Covington and the commonwealth of
Kentucky, the obligation of which was im-
paired by the subsequent legislation to which
reference has been made.
Referrinff to section 170 of the present Con^
stitution of Kentucky, declaring that "there
shall be exempt from taxation public prop-
erty used for public purposes," the court of
appeals of Kentucky in this case said: "It
was followed by necessary statutory, enact-
ments, which, however, could neither curtail
nor enlarge exemption from taxation as pre-
scribed by the Constitution; and according-
ly, in section 4020, Kentucky Statutes,
adopted for the purpose of carrying out the
provisions of section 170, is the identical Ian-
ffuaf^e we have quoted. As it was manifest-
ly intended by both the Constitution and
statute *to maJce subject to taxation all prop-[S37]
erty not thereby in express terms exempted,
it results that, unless the waterworks prop-
erty of the cily of Covington be, in the lan-
guage or meaning of section 170, 'public
groperty used for public purposes,' it must
e held, like similar property in other cities,
subject to taxation, and the special act of
May 1st, 1886. stands repealed. Assuming,
as a reasonable and beneficial rule of con-
struction requires us to do, that the phrase
'for public purposes' was intended to be con-
strued and understood according to previous
judicial interpretation and usage, there can
be no doubt of the propef meaning and ap-
plication of it, for in the cases cited and
others where the question of subjecting par-
ticular property of cities to taxation arose,
the woros 'for public purposes' had been held
by this court to mean in that connection the
same as the words 'for governmental pur-
poses,' and so property us^ by a city forpub-
lic or governmental purposes was held to be
exempt, while that adapted and used for
profit or convenience of the citizens, indi-
vidually or collectively, was held to be sub-
ject to taxation; and, recognizing and ap-
plying that distinction, waterworks property
o8a
337-240
SxrPRBME Court of thx United States.
Oct. Tm,
oi a city has been invariably treated by this
court as belonging to the latter class, and
consequently subject to state and county tax-
ation. In our opinion, the property in ques-
tion is under the Constitution subject to tax-
ation, and the statute enacted in pursuance
of it operated to repeal the special act of May
1, 1886."
However much we may doubt the sound-
ness of any interpretation of the state Con-
stitution implying that lands and buildings
are not public property used for public pur-
poses when owned and used under legislative
authority by a municipal corporation— one
of the instrumentalities or agencies of the
state, for the purpose, and only for the pur-
pose, of supplying that corporation and its
people with water, and when the net revenue
from such property must be applied in the
improvement of public ways, wc must as-
sume, in conformity with the judppnent of
the highest court of Kentucky, that section
170 of the Constitution of that common-
wealth cannot be construed as exempting the
lands in question from taxation. In other
words, we must assume that the phrase *'pub-
[n8]lic ^purposes" in that section means "govern-
mental purposes/' and that the property here
taxed is not held by the city of Covington
for such purposes, but only for the "profit or
convenience of its inhabitants, ana is lia-
ble to taxation at the will of the legislature,
unless at the time of the adoption of the
Constitution of Kentucky it was exempt from
taxation in virtue of some contract the ob-
ligation of which is protected by the Consti-
tution of the United States.
The fundamental question in the esse,
then, is whether at the time of the adoption
of that Constitution the city of Covington
had in respect of the lands in nuestion, any
contract with the state the obligation of
which could not be impaired by any subse-
quent statute or by the present Constitution
of Kentucky* adopted m 1891. If the ex-
emption found in the act of 188Q was such
a contract, then it could not be affected by
that Constitution any more than by a legis-
lative enactment.
We are of opinion that the exemption
from taxation embodied in that act dia not
tie the hands of the commonwealth of Ken-
tucky so that it could not, bv l^islation,
withdraw such exemption and tfubject the
property in question to taxation. The act
of 1886 was passed subject to the provision
in a ffencral statute of Kentuckv above re-
ferred to, that all statutes "shall be subject
to amendment or repeal at the will of the
l^slature, unless a contranr intent be
therein plainly expressed." If that act in
any sense constituted a contract between the
city and the commonwealth, the reservation
in an existing general statute of the risht to
amend or repeal it was itself a part of that
contract Oriffin v. Kentucky Ins, Co. 3
Bush, 592 [96 Am. Dec. 259]. The city ac-
cepted the act of 1886 and acquired under
it the property taxed subject to that reser-
vation. Tnere was in that act no "plainly
expressed" intent never to amend or to re-
peal it. It is true that the legislature said
that the reservoirs, machinery, pipes, mains,
682
and appurtenanc^ with the laad _,^
which they were situated, should be forvrcr
exempt from state, county, and city taxn.
But such a provision falls short of a phii
expression by the legislature that tt w
time would it exercise the res«-ved power of
^amending or repealing the act under wkirL[tl
the property was acquired. The utmaat
that can be said is that it may be iAfemd
from the terms in which the exemption w
declared, that the legislature had no pvpose
at the time the act of 1886 was pused tA
withdraw the exemption from taxatioa; aoc
that the power reserved would nerer be ci*
erted, so far as taxation was ooncerncd. if
in the judgment of the legislature the psb>
lie interests required that to be dose. Tht
power expressly reserved to amend or repes!
a statute should not be frittered away bj
any construction of subsequent itstnte
based upon mere inference. Before a i^atatt
— ^particularly one relating to taxation-
should be held to be Irrepealable, or not fsb-
ject to amendment, an intent not to repesl
or amend must be so directly and unmistak*
ably expressed as to leave no room for
doubt; otherwise, the intent is not pUiB-
ly expressed. It is not so expressed vta
the existence of the intent arises only froB
inference or conjecture.
The views wc have expressed as to thi
power of the legislature under a reset Tstioe
made by general statute of the right to
amend or repeal are supported by mMajjU-
judged cases. Tomlinson v. Jessnn, 1ft WtR
454, 457 [21 : 204, 205] ; Mfaime C. JEoOrvW
Co. V. Maine, 96 U. S. 499, 510 [24: »
841] ; Atlantic d G. RaUroad Co, v. Omttfi^
98 U. a 359, 365 [25: 185, 188]: flof* t.
Richmond d D, RaUroad Co. 99 U. S. M8.
353 [25 : 303, 304] ; Sinking Fund Cam. 9»
U. S. 700, 720 [25 : 496, 502] ; Ortemntoi r.
Union Freight R. Co, 105 U. a 13. 21 [»
L. ed. 961, 965] ; Cloae v. Greenwood Omh
tery, 107 U. a 466, 476 [27:408,41!::
Spring Valley Watertcorks Co. v. Sckottkr*
110 U. a 347, 352 [28: 173, 17<]:
LouiavU^^ Oas Co, r. Cititena' c;«t Co. lU
U. a 683, 696 [29: 510, 515] ; Oibh* r, Co*-
solidated Oas Co. 130 U. a 396. 406 [S
978, 984]; Sioux City Strmt Rtrilws9 *
Siouw City, 138 U. 8. 08, 108 [34: 898. «*:.
Louisville Water Co. v. Clark\ 143 U. S. 1.
12 [36:55, 58]. In Tomlinson v. Jmsm^
above cited, referrine to the reserved po««r
to amend and repeal, thia court said: *1V
'object of the reservation, and of sisUar
reservations in other charters, is to pnnl
a grant of corporate rights and pnnle^
in a form which will preclude leirtsutiTt a-
terference with their exercise, if the psUv
interest should at any time require wA »
terference. It is a provision iatcaded ts
preserve to the state control over it« car
tract with the corporators, whicii. vitkm*
that provision, * would be irrepealab)« aWiMl
f protected from any measures affectinie it» s^
igatiw. There is no subject ov»r mhiA it
is of ^eater moment for the state to fn^
serve its power than that of taxaUoa . •
Immunity from taxation, ooostitntiif n
these cases a part of the contract wHk tW
government, is, by the reservatioa of vootr
18»8.
Covington t. Commonwealth of Kbntuckt.
240-848
SQcIi as is contained in the law of 1841, sub-
ject to be revoked equally with any other
prorision of the charter whenever the legis-
lature may deem it expedient for the puolic
interests Uiat the revocation shall be made.
The reservation affects the entire relation
between the state and the corporation, and
places under legislative control all rights,
privileges, and immunities derived by its
charter directly from the state." So in
Railroad Co. v. MainCt above cited: "By
the reservation in the law of 1831, which is
to be considered as if embodied in that act
[one subsequently passed], the state retained
the power to alter it in all particulars con-
stituting the ^ant to the new company,
formed under it, of corporate rights, privi-
leges, and immunities. The existence of the
corporation, and its franchises and inununi-
ties, derived directly from the state, were
thus kepi under its control."
In our consideration of the question of
contract we have assumed, in harmony with
the judgment of the court of appeals of Ken-
tucky, uiat the property in questitm was held
by the city only for the profit or conven-
ience of its people collectively, that is, in its
proprietary, as distinguished from its gov-
ernmental, character. There are cases ad-
judging that the extent of legislative power
over the property of municipal corporations,
euch as incorporated towns and cities, may
depend upon the character in which such
property is held. Mr. Dillon, in his work
on Municipal Corporations, says: ''in its
governmental or public character^ the corpo-
ration is made, by the state, one of its in-
struments, or the local depositary ot certain
limited and prescribed political powers, to
be exercised for the puolic ^ood on behalf
of the state rather than for itself. In this
respect it is assimilated, in its nature and
functions, to a county corporation, which, as
we have eeen, is purely part of the govern-
41]ineiital madiinery of the sovereignty 'which
creates it. Over all its civil, political, or
eovemmental powers, the authority of the
legislature is, in the nature of things, su-
{)reme and without limitation, unless the
imitation is found in the Constitution of the
particular state. But in its proprietary or
private character, the theory is that the pow-
ers are supposed not to be conferred, primar-
ily or chieny, from considerations connected
with the government of the state at large,
but for the private advantage of the compact
conmiunity whi^ih is incorporated as a dis-
tinct legal personality or corporate individr
wil; and as to such powers, and to property
acquired thereunder, and contracts made
with reference thereto, the corporation is to
he regarded quo ad hoc as a private corpora-
tion, or at least not public in the sense that
the power of the legislature over it or the
rights presented by it is omnipotent." I
Dill. Mun. Corp. 4th ed. pp. 107, 108, { 67,
and authorities dted.
If, however, the property in question be re-
garded as in some sense held by the city in
Its governmental or public character, and
therefore as public property devoted to pub-
lic purposes, — ^which is the interpretation of
the state Constitution far which the city
178 U. S.
contends, — ^there would still be no ground for
holding that the city had in the act of 1886
a contract within the meaning of the Con-
stitution of the United Slates. A municipal
corporation is a public instrumentality „
tablished to aid in the administration of the
affairs of the state. Neither its charter nor
any legislative act regulating the use of
f property held by it for governmental or pub-
ic purposes is a contract within the mean-
ing of the Constitution of the United States.
If the legislature choose to subject to taxa-
tion public property held by a municipal cor-
poration of the state for public purposes, the
validity of such legislation, so far as the na-
tional Constitution is concerned, could not
be questioned.
In New Orleans v. New Orleans Water
Works Co, 142 U. S. 79, 91 [35: 943, 947],
after referring to previous adjudications,
this court said that tne authoritieb were full
and conclusive to the point that & municipal
corporation, being a mere asent of the state,
"stands in its governmental or public char-
acter in no contract relations ^lith its sov-
ereignty, at whose pleasure its charter may
*be amended, changed, or revoked without the[S42I
impairment of any constitutional obligation,
while with respect to its private or proprie-
tary rights and interests it may be entitled
to the constitutional protection." Chancel-
lor Kent, in his Commentaries, says: ''In
respect to public or municipal corporations,
which exist only for public purposes, as
counties, cities, and towns, the legislature,
under proper limitations, has a right to
change, modify, enlarge, restrain, or <^troy
them; securing, however, the property for
the uses of those for whom it was purchased.
A public corporation instituted for purposes
connected with the administration of the
government may be controlled by the legisla-
ture, because such a corporation is not a con-
tract within the purview of the Constitution
of the United States. In those public cor-
porations there is, in reality, but one party,
and the trustees or governors of the corpo-
ration are merely trustees for the public." 2
Kent, Com. 12th ed. p. •306. Dillon says:
"Public, including municipal «;orporationB,
are called into being at the pleasure of the
state, and while the state may, and in the
case of municipal corporations usually does,
it need not obtain the consent of the people
of the localily to be affected. The cnarter
or incorporating act of a municipal corporis
tion ie in no sense a contract between the
state and the corporation, although, as we
shall presently see, vested rights in favor of
third persons, if not indeed in favor of the
corporation, or rather the community which
is incorporated, may arise under it. Publiv.
corporations within the meaning of this rule
are such as are established for public pur-
poses exclusively, — that is, for purposes con-
nected with the administration of civil or of
local government, — and corporations are
Jublic only when, in the language of Chief
ustice Marshall, 'the whole in^rests and
franchises are the exclusive property and do-
main of the government itself,' such as quasi
corporations (so-called), counties and towns
or cities upon whioh are conferred the powers
688
S42»34a
BUPBXMB COUBT OF THB UkITED STATES.
Oct.
of local administration. Subject to conBti-
tutional limitations presently to be noticed,
the power of the legislature over such cor*
porations is supreme and transcendent; it
maj, where there is no constitutional inhi-
IM81bition, erect, diange, *dlvide, and eren abol-
ish them, ai pleasure, as it deems the public
good to require." 1 Dill. Mun. Corp. 4th ed.
p. 93, § 54.
In anj view of the case there is no escape
from the conclusion that the city of Coving-
tion has no contract with the state exempt-
iiuf the property in question from taxation,
whidi is protected by the contract clause of
the national Constitution.
Perceiving no error in the record of which
this court may take cognizance, the judg*
meni is affirmed.
BOARD OF COUNTY COMMISSIONERS
OF THE COUNTY OF LAKE, COLO-
RADO, Petitioner,
V.
HARRY H. DUDLEY.
(See 8. C Reporter's ed. 243-256.)
Coupons of bonds of a corporation, payable
to bearer, suable in Federal courts—one
toJio is not tJie real oumer cannot bring the
action,
1. Coupons of bonds made by a county, payable
to bearer, are excepted by the Jadiciary act of
1888 from tbe general rale that an assignee
of a chose In action cannot sue onless his as-
signor can In a Federal oonrt.
8. One who Is not the real owner of coupons,
but In whom the apparent title was coUosively
pat, wltboat his knowledge or request, merely
to make a case cognisable by a Federal court
on the grounds of diverse dtlsenshlp, cannot
bring an action on them In such court.
[No. 177.1
Argued December H, 15, 1898. Decided
February tO, 1899.
ON WRIT OF CERTIORARI to the United
States Circtut Court of Appeals for the
Eighth Circuit to review a juqofment of that
court reversing the judgment of the Circuit
Court of the United States for the District
of Colorado in favor of defendant in an ac-
tion brought by Harry H. Dudley, plaintiff,
affainst the Board of County Commissioners
of the County of Lake, Colorado, a govern-
mental corporation, to recover the amount of
certain coupons of bonds issued by that cor-
poration. Judgment of Circtut Court and
of Circuit Court of Appeals reversed, and
cause remanded for a new trial and for fur-
ther proceedings.
See same case below, 49 U. S. App. 836.
The facts are stated in the opinion.
Messrs. George R. Elder, Glutfles S.
TbonuM, W. H. Bryant, and H. H. Lee, for
petitioner:
The court erred in holding that under the
testimony in this case Harry H. Dudley was
a hona nde holder for value of the coupons
in controversy, and entitled to bring suit
thereon.
684
Marvin v. EUis, 9 Fed. Bep. 367; Ca/k^ ▼.
Haggin, 11 Fed. Rep. 219; Foumtmm v. la-
geUca, 12 Fed. Rep. 8; FarmimgUm r. Pins'
bury, 114 U. S. 138, 29 L. ed. 114; Detrr>u
V. Dean, 106 U. S. 637, 27 L. ed. 300: JTc^
Lean v. VaUey County, 74 Fed. R^. 381.
The court erred in refusing to hold the
bonds in controversy void because they en-
ated a debt by loan in one year greater thaa
that allowed by the Constitution of Coloraia.
Lake County v. Oraham, 130 U. 8. 674, 3S
L. ed. 1065; Lake County v. RoUims, 130 U.
S. 662, 32 L. ed. 1060; Dixon Coumty v.
Field, 111 U. S. 83, 28 L. ed. 360; Hedges ▼.
Di^ron County, 150 U. S. 182, 37 L. ed. 1M4.
The court erred in holding that the boadi
in controversy w^e valid obfigatloBs of I«ki
county.
Buchanan v. Litchfield, 102 U. S. 278^ fl
L. ed. 138; LitchfUld v. Ballou, 114 U. &
190, 29 L. ed. 132; Doon Ttrp. t. Cummims^
142 U. S. 366,35 L. ed. 1044 ; Sesbitt v. JKcvr.
side Independent Dist. 144 U. S. 610. 36 L
ed. 562; Sutliff v. Lake County Oomn. W
U. S. 230, 37 L. ed. 145; Graces r. Bekae
County, 161 U. S. 359, 40 L. ed. 732.
The court erred in holding that Lake eamm-
ty could, by receiving the benefit of and pay*
ing the interest on the bond issue in eoBtro-
ver^, validate the same.
Marshall County Supers, t. Bekemek^ S
Wall. 772, 18 L. ed. 556; Clay Commty v.
Society for Savings, 104 U. 8. 579, 26 L f4.
856; Anderson County Comrs. t. Bml, lU
U. S. 227, 28 L. ed. 966.
The payment of interest will not vatidafei
a municipal bond issue without authority e(
law.
Graves v. Saline County, 161 U. & 359, 41
L. ed. 732 ; Merchants* Bank v. Bergen Comt-
ty, 115 U. S. 384, 29 L. ed. 430.
Messrs. Jobm F. Billom, E^Bvai V.
RiehArdaoB, Harry Hubbard, John Jf. M^
Ion, and Daniel E. Parks, for resooadcBt:
The plaintiff was a bona fide holder, or •-
titled to the rights of a bona fide holder, d
the coupons in question.
Douglas County Comrs. v. BoUes, 94 U. &
104, 24 L. ed. 46; Montclair r. RamUeO, IC
U. S. 147, 27 L. ed. 431.
A bona fide holder is a purchaser for vmlw
without notice, or the successor of one «te
was such a purchaser.
McClure v. Oxford Twp. 94 U. S. 429. M
L. ed. 129.
If any previous holder of the bonds It
suit was a bona fide hold^ for valne. tht
plaintiff can avail himself of such prmosi
holier's position without showing that te
has himself paid value.
Montclair v. RamsdeU, 107 U. 8 147. T
L. ed. 431 ; Douglas County Comrs. v. ^aOa.
94 U. S. 104, 24 L. ed. 46; Meriom OmaIt
Comrs. V. Clark, 94 U. S, 278, 24 L cd. 9;
Cromwell v. Sac County, 96 U. S. 51, M L
ed. 681 ; San Antonio v. Mehaffy. 96 C &
312, 24 L. ed. 816; Xauvoo v. Bitter, 97 C
S. 389, 24 L. ed. 1050.
The recital in the bonds is eondasivt fti
favor of the bona fide holder that the Mt
limit prescribed by the sUtute and It ths
Constitution has not been ezrecdeJ.
Maroy v. Oswego Twp. 92 U. 8 637, II L
179 1LA>
1896.
LaKB COUNTT COMMXSSIOIIBRB Y. DUDLET.
244,245
ed. 748; TurMT t. Woodson County Oomra,
27 Kan. 314; Independent School Dist. ▼.
Stone, 106 U. S. 183, 27 L. ed. 90; BuoluLnan
▼. Utchfield, 102 U. S. 278, 26 L. ed. 138;
Douglae County Comra, v. Bolles, 94 U. 8.
104. 24 L. ed. 46.
llie circuit court of appeals properly held
that the bonds did not create a debt by loan
in any one year greater than that allowed by
the Constitution of Colorado.
Sutliff y. Lake County Comrs, 147 U. 8.
230, 37 L. ed. 145; Lake County ▼. Bollina,
130 U. 8. 662, 32 L. edr 1060.
In the absence of ftny statutory public rec-
ord, a county or municipality may be es-
topped, by recitals in bonds, from showing
that when the bonds were issued there was
an aggregate outstanding indebtedness ren-
dering the issue of the bonds illegal.
Marcy v. Oawego Twp, 92 U. S. 637, 23 L.
ed. 748; Humboldt Twp. v. Long, 92 U. 8.
642, 23 L. ed. 752; Buchanan v. Litchfield,
102 U. 8. 278, 26 L. ed. 138; Sherman Coun-
ty V. Simons, 109 U. S. 735, 27 L. ed. 1093;
DaUas County v. McKenzie, 110 U. 8. 686,
28 L. ed. 285; Wilson v. Salamanca, 00 U. 8.
499. 25 L. ed. 330.
4] *Mr. Justice Karlaa* delivered the opin-
ion of the court:
This action was brought in the circuit
court of the United States for the district
of Colorado by the defendant in error Dud-
ley, a citizen of New Hampshire, against the
plaintiff in error the board of county com-
missioners of the county of Lake, Colorado,
a governmental corporation organized un-
der the laws of that state. Its object was
to recover the amount of certain coupons of
bonds issued by that corporation under date
of JuljT 31st, 1880, and of which coupons the
plaintiff claimed to be the owner and holder.
Each bond recites that it is "one of a series
of fifty thousand dollars, which the board
of cotmty commissioners of said county have
issued for the purpose of erectine necessary
public buildings, by virtue of and in compli-
ance with a vote of a majority of the quali-
fied voters of said county, at an election duly
held on the 7th day of October, a. d. 1879,
and under and by virtue of and in compli-
ance with an act of the general assembly of
the state of Colorado, entitled 'An Act Con-
cerning Counties, Coimty Officers, and Coun-
ty Government, and Repealing Laws on These
Subjects,' approved March 24th, a. d. 1877,
and it is hereby certified that all the pro-
visions of said act have been fully complied
with by the proper officers in the issuing of
this bond."
The board of county commissioners by
their answer put the plaintiff on proof of
his cause of action, and made separate de-
fenses upon the following grounds : 1. That
the bonds to which the coupons were at-
tached were issued in violation of section 6,
iiticle 11 of the Constitution of Colorado,
»nd the laws enacted in pursuance thereof.
2. That the aggregate amount of debts which
the county of Lake was permitted by law to
incur at the date of said bonds, as well as
when they were in fact issued, had been
reached and exceeded. 8. That the plain-
173 V. B.
tifiT's cause of action, if any he ever had, upon
certain named coupons in suit, was barred
bv *the statute of limitations. 4. That when[24q
the question of incurring liability for the
erection of necessary public buildings was
submitted to popular vote, the county had
already oontractied debts or obligations in
excess of the amount allowed by law.
One of the questions arising on the rec-
ord is whether Dudley had any such inter-
est in the coupons in suit as entitled him
to maintain this suit. The evidence on this
point will be found in the margin.t
fAt the trial George W. Wright was intro-
duced as a witness on behalf of the platntllt.
He stated at the outset that Dudley was the
owner of the bonds, but his examination showed
that he had really no knowledge on the subject,
and that his statement was based only upon
Inference and hearsay. In connection with his
testimony certain transfers or bills of sale to
Dudley of bonds of the above issue of $50,000
were introduced In evidence as follows: One
dated December 5th, 1888, purporting to be **for ^
value received" by Susan F. Jones, executrix of
the estate of Walter H. Jones, deceased, of
bonds Nos. 55 to 64, both Inclusive, and Nob.
65 and 66; one dated February 11th, 1885, by
David Creary, Jr., J. H. Jagger, Henry D. Haw-
ley, and L. C. Hubbard, all of Connecticut, for
bonds Noa 80, SI, and 82, and Nos. 88 to 86,
both Inclusive, the consideration recited being
15,880.56, "paid by Harry H. Dudley of Con-
cord" In the county of Merrlmac and state of
New Hampshire; one dated March 20th, 1886,
by the Nashua Savings Bank of Nashua, New
Hampshire, for twenty bonds, Nos. 92 to 111,
both Inclusive, the consideration recited being
111.860.45, "paid by Harry H. Dudley of Con-
cord," New Hampshire ; one dated March 20th,
1885, by the Union Five Cents Saving Bank of
Bxeter, New Hampshire, of bonds Noa 112 to
120, both inclusive, the consideration recited
being $10,695, "paid by Harry H. Dudley of
Concord," New Hampshire; one, undated, by
Susan F. Jones, "for value received," of bonds
Noa 55 to 64, both Inclusive, and Nos. 65 and 66,
together with coupons falling due In 1884 of
bonds Nos,. 55 to 69, both inclusive; and one
dated December 10th, 1884, by Joseph Standley,
of Colorado, of twelve bonds, Nos. 68 to 79, both
inclusive, and six bonds, numbered 67 and 87
to 91, both Inclusive, the consideration recited
being $15,887.50, "paid by Harry H. Dudley of
Concord," New Hampshire.
Here were transactions which, If genuine. In-
dicated the actual payment by Dudley In 1882
and 1884 on his purchase of bonds of many
thousand dollars.
Dudley's deposition was taken twice; first
on written Interrogatories, January 14th, 1895,
and afterwards, March 2d, 1895, on oral exami-
nation.
In his first deposition Dudley was asked
whether he owned any bonds Issued by Lake
county, and he answered : "Yes, I own cer-
tain Lake county bonds which I hold under writ-
ten bills of sale transferred to me from several
different parties." Being asked whether he
owned any bonds of Lake county, Colorado,
numbered 92 to 111 Inclusive, 88 to 86, Inclu-
sive, 55 to 64 Inclusive, 68 to 79 Inclusive, 80
to 82 Inclusive, 65, 66, and 67, and 87 to 91 In-
clusive, he answered : "I own, under the afore-
said bills of sale, bonds mentioned In Interroga-
tory 8." He was then asked (Interrogatory 4)
if in answer to the preceding Interrogatory he
said that he owned any of said bonds or the
coupons cut therefrom, to state when, he^mr-
246-250
BUPBEMS COUBT OF THE (JmrXD STATES.
Oct
[t46] •At the dose of the plaintiff's evidenoe in
chief the defendant asked for a peremptory
instmetion in its behalf, but this request
was denied at that time. When the entire
|M7]evidence *oa both sides ms concluded, the
defendfljit renewed its request for a peremp-
tory instruction, and the plaintiff asked a
like instruction in his favor. The plain-
[S48]tiff's request was denied, *an exception to
the ruling of the court being reservea. Other
instructions asked by the plaintiff were re-
fused, and in obedience to a peremptory in-
struction by the court the jury returned a
[MO]* verdict for the defendant, and judgment was
accordingly entered uj^n thiit verdict Upoa
writ of error to the circuit court of amili
the judgment was reversed. Judge Thajv
dissentinff. 49 U. 8. App. 33fL
1. In the oral argument of this ease mmm I
inquiry was made * whether Dndlif'eri|^tJ[»
maintain this action was affected by that
clause in the first section of the jndidary
act of August 13th, 1888, chap. 864S (25 SteL
at L. 433, 434) , providing that no ciresit or
district court of the United States shall
"have cognizance of any suit, except npon
foreign bills of exchange, to recover the
tents of any promissory note or other
chased the same, from whom he purchased them,
and what consideration he paid therefor. In
his answer be referred to each of the above-men-
tioned bills of sale, and said that he owned the
bonds described in it by virtue of such instru-
ments. He did not say that he paid the recited
consideration, but contented himself with stat-
ing what was the consideration named in the
bill of sale. Being asked (Interrogatory 5), **If
you are not the owner of said bonds, or any
coupons cut therefrom, please state what. If any.
Interest you have in the same," he answered, "I
have stated my Interest In the bonds in my an-
swer to interrogatory 4.'* He was asked (Inter-
rogatory 9) : "If you say you authorized suit
to be commenced in your name, please state un-
der what circumstances you authorized It to be
brought) and whether or not the bonds or cou-
pons upon which It was to be brought were your
own Individual property, or were to be trans-
ferred to you simply for the purpose of bring-
ing said suit." His answer was : *'I under-
stand said bonds and coupons were transferred
to me, as aforesaid, for the puri>ose of bringing
suit against the county to make them pay the
honest debts of the county."
It should be stated that before the witness
appeared before the conmiissloner who took his
deposition upon interrogatories, he prepared his
answers to the interrogatories with the aid of
counsel, and read his answers so prepared when
he came before the commissioner.
When Dudley gave his second deposition his
attention was called to his answer to interroga-
tory 4, in his first deposition, in relation to the
bill of sale running to him from Craig [Creary],
Jagger, Hawlev, and Hubbard. We make the
following extract from his last deposition, giv-
ing questions and answers as the only way in
which to show what the witness intended to
say and what he Intended to avoid saying:
Q. You also say in the answer to which I have
referred, that the consideration In the said
bill of sale was 15,380.56. Did you pay that
consideration for the bonds mentioned In the
bill of sale? A. No, I did not. Q. Did you
pay any part of it? A, No, sir. Q. Why was
that bill of sale made to you, Mr. Dudley? A,
1 think I have answered that In some interroga-
tory here ; my answer to Interrogatory 9 in the
deposition I gave before In this case. Q. Are
not the bonds mentioned In the said bill of sale,
together with the coupons, still owned in fact
by the grantors named In said bill of sale? A.
Not as I understand the bill of sale. I under-
stand I am absolute owner. Q. Was not that
bill of sale made to you for the purpose of en-
abling you to prosecute this claim upon them?
Af My answer to interrogatory 9 In my former
deposition answers that also. Q. I repeat the
question and ask for a categorical answer. A,
I cannot more fully answer the question than I
have In answer to interrogatory 9, former dep-
osition. Q, Do you decline to aimwer It. ves or
686
no? ^. I think this answer Is sofidnt. Q.
If you are successful In the suit brought
the coupons heretofore attached to the
mentioned In said bill of sale, do you not
to pay the amount of those coupons so ietufcit<
to the grantors in said biU of sale. lessaiy Icftd-
mate expenses attendant upon the prosecsttaa
of this case ? A. Yes, my understandtag la the
matter would be something might be paid tbam.
Q. Is there something to be paid tbem diffcrcsc
from the amount Involved In the salt repn-
sented by the coupons cut from said bonds? i.
I should think there was. Q. In whst ttaput
is the difference? A. They wonld aot be psM
the full amount. Q. What dedactloB woald ym
make? A. 1 do not know Just what dedvctlea
would be made. Q. When you took this bOl of
sale, did you execute some sort of a vrtttM
statement back to the grantors of said MH of
sale? A. No, sir. Q. Did you make a vcftal
agreement at the time with them or aay ti
them? A, No, sir. Q. Were yon prescat wha
the bill of sale was drawn? A. No, sir. 0^
Where was It drawn? A. My ImprrilrM It
thSLt it was drswn at Hartford, Cona.,
particular one that yon refer to. Q. Yes.
represented you at the drawfng of tbe bfll «(
sale? A. I have no knowledge of being raff*
sented there. Q, When did you first know tkal
such bill of sale had actual existeace? i.
When I received It. Q. When was tkat? i.
I cannot tell the date. It was In the y«ar 19M
Q. Then you knew nothing of It ontti aoat wta^
years after It was made ? A, That was the tni
I knew of It. the year 1894.
In reference to the bonds referred to la tbi
bill of sale from Stanley, the witness tcstltei
Q. When did you first know of the cxlsr^
of the bill of sale? A. I think It was la tbt
year 1894. Q. Some ten yean after It nt
made? A, Do you want me to answer tkst*
Q. Yea A, I received It as I hare stated Wr^
tofore, that was the first I kn«w of It Q. Art
you personally acquainted with Joseph StaaWt*
A. I tan not : no, sir. Q. Did yoo
him? A. Don't remember that I ever
Q. Did you at any time ever paj bim |lS.sr7 W
'or the bonds mentioned In bis bill of sate it
you? A. No, sir. Q. Is It not a fact that Mk.
Stanley still owns these bonds? A. I bavt M^
swered In a former deposition that I hoM a WJ
of sale of certain bonds of Joseph Stanley. 0-
Do you refuse to answer the last qacstka t
asked of you, yea or no ? A. I prefer to §■■•*
It as I have stated above. Q. If yoa sboaM rt>
cover In this suit, are not the amoonts rvffV'
sented bv the coupons cut from the boodf 9m-
tloned In the Stanley bill of sale to be paM l»
Joseph Stanley less the expenses of thli Hit*
A, I could not answer that dcllnltciy. 0. W
not? A. Because 1 haven't enongh k»s«tee^
of the matter to anawer It definitely. 9- tM
have no knowledge of It at all peiraoaslly. ksw
▼ou? A. Mv understandlna of the 9***
179 v. &
1808.
Lake Gountt ComnssioNSRS v. Dudley.
950
in action in favor of any assignee, or of any
subsequent holder if such instrument be pay-
able to bearer and be not made by any cor-
poration, unless such suit might have been
prosecuted in such court to recover the said
contents if no assignment or transfer had
been made." The provision on the same sub-
ject in the act of March 3d, 1875, but which
iras, of course, displaced by the clause on
the same subject in the act of 1888, was as
follows: "Nor shall any circuit or district
coort have cognizance of any suit founded
on contract in favor of an assignee, unless
ft suit might have been prosecuted in such
eonrt to recover thereon if no assignment
had been made, except in cases of promis-
8orv notes negotiable by the law merchant
and bills of exchange." 18 Stat, at L. 470,
chap. 137, S 1.
Without stopping to consider the full
scope and effect of the above provision in
the act of 1888, it is only necessary to say
that the instruments sued on, being payable
to bearer and having been made by a oorpo^
ration, are expressly excepted by the stat-
ute from the general rule prescribed that an
assignee or subsequent holder of a promis-
sory note or chose in action could not sue
in a circuit or district court of the United
States unless his assignor or transferrer
would be, Joseph Stanley would have a certain
aiBuont of money if the suit was won. Q. Was
not the bill of sale drawn In Denver, — ^the Stan-
lej bill ot sale? A. I have no actual knowledge
where It was drawn. Q. Do you know who had
the bill of sale before it was sent on to you in
1894? A. I do not think I have any actual
knowledge. Q. Did you have any sort of knowl-
edge? A. Yes. I imagined It came from Roll-
ins k Son. Q. By letter? A. It came through
the mall. Q. Have yon the letter now? A. I
do not think that I have ; no, air. Q. What did
yon do with It? A, I could not swear that it
wat. Q. It came In December of 1894. did it
not> A, 1 should say it did.
As to the bonds referred to In the bill of sale
b? Susan F. Jones, executrix, the witness testi-
fied:
Q. What did you pay for that bill of sale, Mr.
Dudley? A. For consideration not named in
the bill of sale. Q. That does not answer my
question. What did you pay for it? A. I do
not remember as I paid anything. Q. Do you
remember that you did not pay anything? A,
It If my Impression that I did not. Q. Were
yon present when it was drawn? A, No, sir.
Q. In the event you recover a Judgment In this
case, are not the amonnts of the coupons belong-
ing to the bonds mentioned In the bill of sale
from Mrs. Jones to be paid to Mrs. Jones, less
her proportion of [the expenses of] the case?
A. 1 could not state definitely about that. Q.
Why? A. For the reason that I answered simi-
lar questions above. Q. Going back to the
bonds of Mr. Stanley, I will ask you one or two
other questions. Is Mr. Stanley a citizen of
Colorado? A. I think he Is. Q. Now, why did
yon not Include In this case the coupons belong-
ing to the Stanley bonds for 84, 85, and 86, and
the coupons to bonds 68 to 72, Included In the
Stanley bill of sale of 1888, and the coupons on
«7, 87-91 for 1884-*5? A. If they were not In-
cluded I do not know why they were not. Q.
li Iffrs. Jones a citizen of the state of Colorado ?
A. I think she Is. Q. Were not those bonds
of Stanley and Jones assigned to you In order
that you might as a citizen of another state
bring suit upon them and upon the coupons be-
longing to them in the Federal court In Colo-
rado? A, I should answer that by referring to
my answer in former deposition to Interrogatory
In reference to the other bills of sale and the
bonds mentioned In them, the witness testified :
Q' In your answer to interrogatory 4 of your
former deposition you also say that you own
bonds of Lake county by the written bill of sale
from the Nashua Savings Bank, numbered 92-
111, both Inclusive, together with all coupons
originally attached and unpaid. You also say
|bat the consideration for the said bill of sale
2 111,689.40. Did rou pay any part of that,
JL I>JdIey ? A. No, sir. Q, Were you present
when the bill of sale was drawn? A. No, sir.
Q, When did you first know that there was such
a bill of sale 1 A. Am soon as I received It, In the
year 1894. Q. In the event of a recovery in
this case, are not the amounts of the coupons
belonging to the said bonds to be paid over to
the Nashua Savings Bank, less their proportion
of the expense of this litigation? A. I do not
know how much will be paid them. Q. Do yon
know anything about It? A, Indirectly, yes.
Q. Do you mean by that you have some hearsay
evidence upon ItV A, Yes; I have an impres-
sion from hearsay that the bank would have
some equivalent for these bonds if suit was won.
Q. You say here that you own bonds of Lake
county by virtue of a bill of sale from the Union
Five Cent Savings Bank of Exeter, numbered
112-129, Inclusive, together with all coupons,
the first being No. 4, and the subsequent ones
being consecutive up to and including No. 21.
What is the date of that bill of sale? A. I
think It was dated March 25th, 1885. Q. Were
you present when It was made? A, No, sir.
Q. When did you first know of Its existence?
A, In the year 1894. g. At the time that yon
were informed of the existence of the others?
A. Nearly at the same time, I should say. Q.
Did you pay the bank of Exeter 1 10,695, or any
other sum for the bonds mentioned in that bill
of sale? A, No, sir. Q. You also say In ths
same answer to the same interrogatory In your
former deposition that you hold a bill of sale
and assignment from Susan F. Jones for cou-
pons Nos. 55 to 64 and Nos. 65 to 66 for the
years 1886, '7, '8, 1891, also coupons amounting
to $600 from bonds 55-6-7-8-9-60 falling due In
the year 1894. What is the date of that bill
of sale and assignment? A. I could not tell.
Q. When did you first know of Its existence?
A. 1 should say In 1894. Q. Did you pay any-
thing for it? A. No, sir. . . . Q. Did yoo
ever have In your possession any of the coupons
or any of the bonds to which this examination
has thus far been directed? A. Strictly speak-
ing. I don't think I ever had them In my own
possession. I have seen some of the bonds an<l
handled them, had them In a safe. Q. Where?
A, In Boston. Q, When? A, Well, I should
say In the year 1893. Q. But that was before
you knew they had been assigned to you by bill
of sale, was It not? A, 1 was really handling
them as agent for other parties. Q. Who were
the other parties you were handling them as
agent for? A, I don't know as I was exactly
an agent. I was an officer of another company.
They came Into our hands. Q. What was that
company? A. B. H. Rollins & Sons. Q. Were
you a stockholder of that company? A, Yes. Q.
Are you now ? A. Yes, sir. Q, Is not that the
only Interest which you have In these bonds
or any of them — ^your Interest as a stockholder
In the firm of B. H. Rollins & Sons? A, Yes,
probably It Is.
687
950-t58
BUPHBMB COUBT OF THB UhITKD StATU.
could have sued in such court. It is imma-
terial to inquire what were the reasons that
induced Congress to make such an excep-
tion. Suffice it to sav that the statute is
clear and explicit, and its mandate must be
respected.
2. There is, however, a ground upon which
the riffht of Dudley to maintain this action
must be denied.
By the fifth section of the above act of
March 3d, 1875, it is provided "that if, in
any suit, commenced in a circuit court or
removed from a state court to a circuit court
of the United States, it shall appear to the
satisfaction of said circuit court, at any time
after such suit has been brought or removed
[Ml]* thereto, that such suit does not really and
substantially involve a dispute or contro-
versy properly within the jurisdiction of
said circuit court, or that the parties to said
suit have been improperly or coUusively
made or joined, either as plaintiffs or de-
fendants, for the purpose of creating a case
co^izable or removaole under this act, the
said circuit court shall proceed no further
therein, but shall dismiss the suit or remand
it to the court from which it was removed,
as justice may require, and shall make such
order as to costs as shall be just." 18 Stat,
at L. 470, 472, chap. 137. This provision
was not superseded hj the act of 1887,
amended and corrected in 1888. 25 Stat, at
L. 433. Lehiah Mining d Mfg. Co. v.
Kelly, 160 U. 8. 327, 339 [40: 444, 449].
Prior to the passase of the act of 1875 it
had been often adjured that if title to real
or personal property was put in the name of
a person for the purpose only of enabling
him, upon the basis of the diverse citizen-
ship of himself and the defendant, to invoke
the jurisdiction of a circuit co^irt of the
United States for the benefit of the real own-
er of the property, who could not have sued in
that court, the transaction would be regard-
ed in its true li^ht, namely, as one designed
to give the circuit court cognizance of a case
in violation of the acts of Congress defining
its jurisdiction; and the case would be dis-
missed for want of jurisdiction. MaxioeWa
Lessee v. Levy, 2 Dall. 381 [1 : 424] ; HursVs
Lessee v. McNeil, 1 Wash. C. C. 70, 80;
McDonald v. Smaney, I Pet 620, 624 [7 :
287, 289] ; Smith v. Kemochen, 7 How. 198,
216 [12: 066,673] ; Jones v. League, 18 How.
76, 81 [15: 263, 264] ; Barney v. Baltimore
City, 6 Wall. 280, 288 [18: 825, 827]. These
cases were all examined in Lehigh Mining d
Mfg. Co. V. Kelly, 160 U. S. 327, 339 [40:
444, 449]. In the latter case it appeared that
a Virginia corporation claimed title to lands
in that commonwealth, which were in the
possession of certain individuals, citizens of
Virginia. The stockholders of the Virginia
corporation organized themselves into a cor-
poration under the laws of Pennsylvania, in
order that the Pennsylvania corporation, af-
ter receiving a conveyance from the Virgin-
la corporation, could bring suit in the cir-
cuit court of the United States sitting in
Virginia, against the citizens in that com-
(M2]ino°^Mlth *who held possession of the lands.
The contemplated convevance was made, but
no consideration actually passed or was in-
688
tended to be passed for the
court held that within the meaning of the
act of 1875 the case was a eollaatre one, mad
should have been dismissed as a fraod oe
the jurisdiction of the United States eovt
It said: "The arrangement by wliid^ with-
out any valuable consideration, the stock-
holders of the Vir^piia oorpor^ioB orgas-
ized a Pennsjdvania oorporatlon and eoe-
veyed these lands to the new eorporatiee lor
the express purpose — and no other pvrpo»
is stated or suggested— of creating a ease lor
the Federal court, must be regarded as a
mere device to give jurisdiction to a eticait
court of the United States, and as beii^ is
law a fraud upon that court, as widl as a
wrong to the defendants. Sudi a deviee css-
not receive our sanction. The eonrt belov
properly declined to take cogniaanee of tW
case." And this conclusion, the court ob-
served, was "a necessary result of the caiet
arising before the passsge of the act ci
March 3d, 1875."
From the evidence in this cause, of Dodkr
himself, it is certain that he does not a
fact own any of the coupons sued on aad thss
his name, with his consent, is used in orto
that the circuit court of Uie United State*
may acquire jurisdiction to reader jadgmcst
for the amount of all the ctmpam
in suit, a large part of whieh are rcaUj
owned by citizens of Colorado, who, m
between themselves and the board of
commissioners of Lake oountj, eoold
invoke the jurisdiction of the Fi
court, but must have sued, if they
at aU, in one of the courts of Colorado. It
is true that some of the coupons in s«st sn
owned bv corporations of New Hampshire.
who could themselves have sued in tW or*
cuit court of the United States. B«t if
part of the coupons in ouestion ooold Mt
by reason of the citizensnip of the ovncn.
have been sued on in that court, except hf
uniting the causes of action arising thcrsoa
with causes of action upon coupons owui
by persons or eorporalions who might te«t
sued in the circuit court of the Vwitti
States, and if all the causes of aetiow wt
thus united for the collusive pmeose «f
making "a case" cognisable bv Vm nAenl
court as to every issue made in it, thes thr
act *or 1875 must be held to apply, aad tkciO^
trial court on its own motion shoiiU hsw
dismissed the case without eoBsideriaf tftt
merits.
In WUliams t. Noitawa^ 104 U. S. m
211 [26: 719, 720], this court said that Or
^ess when it passed the act of 1875 cxtasl-
mg the Jurisaiction of the ooorts of thi
United States **was specially earefil t»
guard against the consequences of eolhnnt
transfers to make parties, snd tmpemi tkt
duty on the court, on its own oiotW vttb-
out waiting for the parties, to stop sll fsr
ther proceedings ana dismiss the wuH the
moment anything of the kind apf tW.
This was for the protection of the omti m
well as parties, against frauds vpoa its js>
risdiction."
So, in FarmingUm v. FilMwy, 114 H 8
138, 146 [29: 114, 1171, which «nt s sdl
upon coupons, brought by a dtian «f K^
in n *
1896.
GUHKUON COUNTT COMMI80IONBB8 Y. E. H. BOLLDI8 A SOMB.
258-255
MchiuetU against a municipal corporation of
Ifaine, and in which one of uie questions was
•8 to the real ownership of the coupons, this
court said : 'It is a suit for the oeneht of
the owners of the bonds. They are to receive
from the plaintiff one half of the net pro-
ceeds of the case they have created by their
transfer of the coupons gathered together
for that purpose. The suit is their own in
r^ity, though they have agreed that the
f plaintiff may retain one half of what he col-
ects for the use of his name and his trouble
in collecting. It ie true the tranpaction is
called a purchase in the papers that were ex-
ecuted, and that the plaintiff gave his note
for $500, but the time for payment was put
off for two years, when it was, uo doubt, sup-
posed the result of the suit would be known.
No money was paid, and as the note was not
negotiabie, it is clear the parties intended to
keep the control of the whole matter in their
own hands, so that if the plaintiff failed to
recover the money he could be released from
his promise to pay.'' It was consequently
held that the transfer of the coupons was "a
mere contrivance, a pretense, the result of a
collusive arrangement to create a fictitious
ground of Federal jurisdiction."
In Little v. (Hies, 118 U. S. :»96, 603 [30:
269, 271], reference was made to the act of
1S75, and the court said that where the in-
terest of the nominal party was ''simulated
and collusive, and created for the very pur-
l]po9e of giving jurisdiction, the courts 'should
not hesitate to apply the wholesome provi-
sions of the law.^'
We have held that if, for the purpose of
placing himself in a position to sue in a
circuit court of the United States, a citizen
of one state acquires a domicil in another
state without a present intention to remain
in the latter state permanently or for an in-
definite time, but with the present intention
to return to the former state as soon as he
can do so without defeating the jurisdiction
of the Federal court to determine his suit,
the duty of the circuit court is on its own
motion to dismiss such suit as a collusive one
under the act of 1876. Morria v. Qilmer,
129 U. S. 315 [32: 690]. The same princi-
ple applies where there has been a simulated
transfer of a cause of action in order to make
a case cognizable under the act.
The cases cited are decisive of the present
one. As the coupons in suit were payable
to bearer and were made by a corporation,
Dudley, being a citizen of New Hampshire,
could have sued the defendant, a Ckdorado
corporation, in the circuit court of the Unit-
ed States without reference to the citizenship
of his transferrers, or the motive that fnay
have induced the transfer of the coupons to
him, or the motive that may have induced
him to buy them, provided he had leally pur-
chased them. But he did not buy the cou-
pons at all. He is not the owner of any of
thenL He is put forward as owner for the
purpose of maldng a case cognizable by the
Federal court as to all the causes of action
embraced in it. The apparent Utle was put
in him without his knowledge and without
his request, and only that he might repre-
sent the interests of the real owners. He
178 V. 8. U. S.. Book 43. i
nevev requested the execution of the pre-
tended bills of sale referred to, nor did he
hear of their being made until more than
nine years after they were signed. And, not-
withstanding the evasive character of hu an-
swers to questions, it is clear that his trans-
ferrers are the only real parties in interest,
and his name is used for their benefit. The
transfer was collusive and simulated for the
purpose of committing a fraud upon the Ju-
risdiction of the circuit court in respect at
least of part of the causes of action thai
make the case before the court.
For the reasons stated the trial oo^irt*,^---
when the evidence *was concluded, should on[^«^l
its own motion have dismissed the suit.
The judgment of the Circuit Court and the
judgment of the Circuit Court of Appeals
must both he reversed, and the cause re-
manded for a new trial and for further pro-
ceedings consistent with this opinion.
It is so ordered.
BOARD OP COUNTY COMMISSIONERS
. OF THE COUNTY OP GUNNISON,
STATE OP COLORADO, Petitioner,
V,
E. H. ROLLINS ft SONS.
(See & C Reporter's ed. 265-276.)
When Ml of eM)epiions may he taken as oon-
taining all the evidence— when recital in
county honds estops the county — when in^
dorsee of commercial paper can recover
upon the title of the indorser — innocent
holder,
1. Although a bill of exceptions does not state,
in words, that it contains all the evidence, yet
it may be taken as containing all where the
entries sufficiently show that fact.
2. A recital In county bonds that the debt
thereby created does not exceed the limit pre-
scribed by the state Constitotlon estops the
comity from asserting, as against a bona fide
holder for value, that the contrary Is the fact.
8. A bona fide holder of commercial paper Is
entitled to transfer to a third party all the
rights with which he is vested, and the title
so acquired by his indorsee cannot be altected
by proof that the indorsee was acquainted
with defenses existing against the paper.
4. One who surrenders county warrants for
county bonds is as mucb an innocent holder
of the bonds as if he had Vkought them In open
market, and is entitled to the benefit of the
rule above stated as to the conclusiveness of
the recital in the bonds.
[No. 178.]
Argued December 15, 16, 1898. Decided
February 20, 1899.
ON WRIT OP CERTIORARI to the United
States Circuit Court of Appeals for the
Eighth Circuit to review a judgment of that
court reversing the judgment of the Circuit
Court of the United States for the District
of Colorado in favor of defendant in an ao-
tion brought by E. H. Rollins k Sons, a cor*
poration of liew Hampshire, against the
{ 680
SuFBBMB Court op the Ukitbd States.
OCT.
County Commissioners of the County of Gun-
nison for the amount of certain coupons of
bonds. The Circuit Court of Appeals gave
judgment for only a portion of the amount
daimed. Judgment of the Circuit Court
and of the Circuit Court of Appeals re-
versed, and cause remanded for further pro-
ceedings.
See same case below, 49 U. S. App. 399.
The facts are stated in the opinion.
Messrs, Tlioiiias C. Brown, C. 8.
Tliomaa, W. H, Bryant, and H, H, Lee, for
petitioner :
The court errs in reversing the judjgment
on errors committed in the admission or
exclusion of testimony, when the record
shows that all the testimony was not con-
tained in the bill of exceptions, and the court
below directed a verdict for the defendant.
Where a court takes a case away from a
jury and directs a verdict, the same rules
apply as though the court had tried the case
alone without a jury.
Rohhins v. Potter, 98 Mass. 532; Daly v.
Wise, 132 N. Y. 306, 16 L. R. A. 236; Maier
▼. Davis, 57 Wis. 212.
Every presumption will be indulged in to
sustain the judgment of a trial court; and
although improper evidence may have been
admitted, it will be presumed that in arriv-
ing at a conclusion only proper evidence waa
considered, and that the judgment of the
court below is correct.
Hinckley v. Pittsburgh Bessemer Steel Co,
121 U. S. 264, 30 L. ed. 967 ; Mammoth Min-
ing Co, V. Salt Lake Foundry d Maoh, Co,
151 U. S. 447, 38 L. ed. 229; Parker v. Van
Buren, 20 Colo. 217; White v. White, 82
Cal. 427, 7 L. R. A. 799 ; Smith v. Long, 106
111. 485 ; Tower v. Fetz, 26 Neb. 706 ; Kirk-
land V. Telling, 49 Wis. 634 ; Minton v. Pick-
ens, 24 S. C. 592; State v. Seahright, 15 W.
Va. 590.
The court below erred in holding that it
was error in the trial court to adnut in evi-
dence the financial statements of Gunnison
county for the six months ending respective-
ly on December 31, 1881, June 30, 1882, and
December 30, 1882.
Diioon County v. Field, 111 U. S. 88, 28 L.
ed. 360; Lake County y, Graham, 130 U. S.
674, 32 L. ed. 1065 ; Hedges v. Dixon County,
160 U. S. 182, 37 L. ed. 1044; Lake County
Comrs, V. Standley, 24 Colo. 1.
The court erred in holding that the re-
citals contained in the bonds estopped the
county from proving against an innocent
purchaser that the bonds had been issued in
excess of the limit of indebtedness author-
ized by the Constitution of Colorado.
Lake County ▼. CHraham, 130 U. S. 674, 32
L. ed. 1060 ; Craves v. Saline County^ 161 U.
8. 359, 40 L. ed. 782; Sutliff r. Lake Coumty
Comrs, 147 U. 8. 230, 37 L. ed. 146.
Messrs. John F. Dillon, Edn&vnd F.
Bieluirdaon, Harry Hubbard, and John M.
Dillon, for respondent:
Moral justice and equity and fair dealing
equally entitle the plaintiff to a recovery.
Jasper County v. Ballou, 103 U. 8. 745, 26
L. ed. 422; Graves v. Saline County, 161 U.
8. 359, 40 L. ed. 732.
That the bill of exceptions contains all of
690
the evidence need not be shown in any |»
ticular or technical furiu.
Spangler v. Green, 21 Colo. 505.
The instructions to the jury, doly ex-
cepted to, were reviewable by the omit
court of appeals, and are open to coaaien-
tion in this court.
Pennock v. Dialogue, 2 Pet. 1 ; Worthmf-
ton V. Mason, 101 U. S. 149, 25 L. ed. g4S;
United States v. Rindskopf, 105 U. S. 41S.
26 L. ed. 1131 ; Ward ▼. Codiran, 150 €. S.
597, 37 L. ed. 1195.
The rulings of the court, which were dsly
objected and excepted to at the time vert
reviewable by the circuit court of appetk
Vicksburg d M. R, Co, v. O'Brien, 11» U,
S. 99, 30 L. ed. 299; Mexia v. Oliver, 148 U.
S. 664, 37 L. ed. 602; Lincoln x. CleM >
Wall. 132, 19 L. ed. 106; Lees v. UnM
States, 150 U. S. 476, 37 L. ed, 1150: Bkk-
man v. Jones, 9 Wall. 197, 19 L. ed. 551;
Michigan Ins, Bank v. Eldred, 143 U. S. 2SS.
36 L. ed. 162.
Plaintiff was a bona fide holder of tk
coupons in question.
San Antonio v. Mehaffy, 96 U. S. Sit M
L. ed. 816; Lexington v. Butler, 14 Wafl.
282, 20 L. ed. 809; Macon County r. Shorm,
97 U. S. 272, 24 L. ed. 889.
A bona fide holder is a purchurr far
value without notice, or the successor of oat
who was such a purchaser.
McClure v. Oxford Twp, 94 U. S. 429, 24
L. ed. 129.
If any previous holder of the bonds ii fol
was a bona fide holder for value, the plaia-
tiff can avail himself of such previous M4-
er's position without showing that he kin-
self has paid value.
Montclair v. RamsdeU, 107 U. S. 147. H
L. ed. 431.
Though he may have notice of infirmitMi
in its origin, a purchaser of a ranaid^
bond from a bona fide holder before nata-
rity takes it as free from sudb infiraitici ei
it was in the hands of such holder.
Cromwell v. Sac County, 96 U. S. 51. 24 L
ed. 681 ; Douglas County Comrs, v. BoOes, H
U. 8. 104, 24 L. ed. 46; Marion Cemtf
Comrs, V. Clark, 94 U. S. 278, 24 L. ed. fi»;
Nauvoo Y, Ritter, 97 U. S. 389, 24 L. ed. IWi
The plaintiff Standley was a bona Mi
holder of the $5,000 of bonds received by ba
in exchange for warrants whidi be nivm-
dered to Gunnison county.
Douglas County Comrs, v. BoUes, M C &
104, 24 L. ed. 46; Montclair v. Jgaasdrf.
107 U. 8. 147, 27 L. ed. 431.
The recital in the bonds, "that tlw totsi
amount of this issue does not exceed tk
limit prescribed bv the Constitution of tk
state of Colorado,^' is conclusive as aa f*^
toppel in favor of a bona fide holder of tto
bonds in question.
Chaffee County v. Pofler, 142 U.S.3S13$
L. ed. 1040 ; Buchanan v. LitckfieU, ]« C
8. 278, 26 L. ed. 138; Independent »e>^
Diet, V. Stone, 106 U. 8. 183, 27 L. ed. M.
Sherman County v. Sitnons, 109 U. 8. m»
27 L. ed. 1093; Dottot County v. ITdTcMM.
110 U. S. 686, 28 L. ed. 285; Dimom Cemtf
V. Field, 111 U. 8. 83, 28 L. ed. 3«0.
The recital in Uie bond ia queiiicNL ttei
173 1L&
18ML
GuNNiBOK County Comhibsionebs t. E. H. Rollins & Sons.
256,357
ft is issued "for valid floating indebtedness
of the said county," creates an estoppel
which is conclusive in favor of the bona fide
holder of such bonds.
Jasper County v. BaUou, 103 U. S. 745, 26
L. ed. 422; Graves v. Saline County, 161 U.
8. 359, 40 L. ed. 732; Huron v. Second Ward
8av, Bank, 57 U. S. App. 693, 86 Fed. Rep.
272, 30 C.C.A,ZS I West Plains Twp. v. Sage,
32 U. S. App. 725, 69 Fed. Rep. 943, 16 C. C.
A. 553; Kiotca County Comra. v. Howard,
49 U. S. App. 642, 83 Fed. Rep. 296, 27 C. C.
A. 531 ; Cadillac v. Woonsocket Inst, for Sav,
16 U. S. App. 546, 58 Fed. Rep. 935, 7 C. C.
A. 574 ; National L. Ins, Co, v. Huron Bd. of
Edu. 27 U. S. App. 244, 62 Fed. Rep. 778, 10
C. C. A. 637.
The issue of bonds to pay off or refund an
existing indebtedness does not increase the
debt or create a new debt. It merely changes
the form of the old debt.
PotceU V. Madison, 107 Ind. 106 ; Blanton
V. McDowell County Comrs, 101 N. C. 532;
Los Angeles v. Tweed, 112 Cal. 319; Siouw
City V. Weare, 59 Iowa, 95; Opinion of the
Justices in 81 Me. 602, Appx.
The so-called "financial statements" can-
not be introduced in evidence as against a
bona fide holder of the bonds in question
containing such recitals as these bonds con-
tain.
SutUif V. Lake County Comra, 147 U. 8.
230, 37 L. ed. 145 ; Chaffee County v. Potter,
142 U. S. 355, 35 L. ed. 1040; Evansville v.
Dennett, 161 U. S. 434, 40 L. ed. 760.
No record is constructive notice as to any
negotiable paper unless a statute expressly
so provides.
Burck V. Taylor, 152 U. 8. 634, 38 L. ed.
578.
The purchaser of negotiable paper does
not have constructive notice of any litiga-
tion pending, or any judgments which may
have been previously rendered, regarding
such paper.
Warren County ▼. Marcy, 97 U. 8. 96, 24
L. ed. 977 ; Carroll County ▼. Smith, 111 U.
S. 556, 28 L. ed. 617 ; Orleans v. Piatt, 99
13. 8. 676, 25 L. ed. 404; Cass County v. OiU
lett, 100 U. S. 685, 25 L. ed. 585; Thompson
V. Perrine, 103 U. S. 806, 26 L. ed. 612.
Where it is sought to affect a bona fide
purchaser for value of commercial paper
with constructive notice, the question^is not
whether he had the means of obtaining, or
might have obtained by prudent caution,
the knowledge in question, but whether not
obtaining was an act of gross or culpable
negligence.
Wilson V. WaU, 6 Wall. 83, 18 L. ed. 727;
Ware v. Egmont, 4 BeG. M. & 6. 460; Goetz
T. Bank of Kansas City, 110 U. S. 551, 80 L.
ed.515.
A person may estop himself from relying
npon the constructive notice which recor£
furnish.
Brookhaven v. Smith, 118 N. T. 634, 7 L.
R. A. 755 ; Wilde v. Gibson, 1 H. L. Cas. 605 ;
Btone V. CoveU, 29 Mich. 359.
If the plaintiff nroves the payment of
value, then the burden is on the defendant
to show that the plaintiff had notice of the
illegality or fraud.
173 V. n.
Lexington v. Butler, 14 Wall. 282, 20 L.
ed. 809; Macon County v. Shores, 97 U. S.
272, 24 L. ed. 889; Cromwell v. Sao County,
96 U. S. 51, 24 L. ed. 681; Montclair v.
Bamsdell, 107 U. 8. 147, 27 L. ed. 431.
*Mr. Justice Warlaii delivered the opin-[256]
ion of the court:
This action was brought by E. H. Rollins
A Sons, a corporation of New Hampshire, to
obtain a judgment against the board of com-
missioners of Gunnison county, Colorado,
a municipal corporation of that state, for
the amount of certain coupons of bonds is-
sued by the defendant in 1882. At the close
of the evidence the defendant requested a
peremptory instruction in its behalf. The
circuit court charged the jury at some
length, but oonduded with a direction to find
a verdict for the defendant, which was done,
and a judgment in its favor was entered.
That judgment was reversed in the circuit
court of appeals, and the case is here upon
writ of certiorari. 49 U. S. App. 399.
The case made by the complaint is as fol-
lows:
By the laws of Colorado, boards of county
commissioners were authorized to examine,
allow, and settle all accounts against their
respective counties, and to issue county war-
rants therefor; to build and keep in repair
the county building, to insure the same,
and to provide suitable rooms for county
purposes, and to represent the county, and
have the care of county property and the
management of the business and concerns of
the county in aU cases where the law did not
otherwise provide.
On the 1st day of December, 1882, the de-
fendant board caused to be made and execut-
ed certain bonds acknowledging the county
of Gunnison to be indebted and promising
to pay to or bearer the sum there-
in named, for value received, redeemable at
the pleasure of the county after ten years,
and absolutely due and payable twenty
years after date, at the office of the county
treasurer, with interest at eight per cent
*per annum, payable semi-annually on the[2S7]
first days of March and September in each
year at the counfr treasurer's office, or at
the Chase National Bank in the city of New
■York, at the option of the holder, upon the
presentation and surrender of the annexed
coupons as they severally became due.
Each bond contained this recital: "This
bond is issued b^ the board of county com-
missioners of said Gunnison county in ex-
change, at par, for valid floating indebted-
ness of the said county outstanding prior to
Sept^nber 2d, 1882, under and by virtue of
and in full conformity with the provisions
of an act of the general assembly of the state
of Colorado, entitled 'An Act to Enable the
Several Counties of the State to Fund Their
Floatinc Indebtedness,' approved February
2l8t, 1881; and it is hereoy certified that
all the requirements of law have been fully
complied with by the proper officers in tihe
issuinff of this bond. It is further certified
that tne total amount of this issue does not
ewceed the limit prescribed by the Oonstitu*
tion of the state of Colorado, aud that this
691
S57-260
SuPREMB Court of thb United States.
Issue of bonds has been authorized by a vote
of a majority of the duly qualified electors
of the Md county of Gunnison, votinff on
the question at a general election duly neld
in said county on the seventh day of No-
▼ember, a. d. 1882. The bonds of thi^ issue
are comprised in three series, designated
•A,' 'B' and *C' respectively, the bonds of se-
ries 'A' being for the sum of one thousand
dollars each, those of series 'B* for the sum
of five hundred dollars each, and those of
series 'C* for the sum of one hundred dollars
each. This bond is one of series 'A.' The
faith and credit of the county of Gunnison
are hereb;^ pledged for the punctual payment
of the principal and interest of this bond."
To each bond were attached coupons for
the semi-annual interest, signed by the
county treasurer.
On the first day of December, 1882, for
the bonds of the county with coupons at-
tached as above specified, the defendant
board made an exchange with the parties
then holding county warrants, which before
that time, in accordance with the statutes
in such case made and provided, had been
issued to them in settlement of claims pre-
[M8]sented by tiiem against the county. *In every
case when warrants were presented they
were exchani^ for the bonds of the oountv
at par for their face and interest. In each
case the blanks were filled out with the name
of the party receiving the bonds or exchanging
the warrants, and uie blank for the place c3
payment filled in as the banking house of
the Chase National Bank in the city of New
York. Thereupon the bonds were signed by
the chairman of the board of county commis-
sioners, countersigned by the county treas-
urer, and attested by the county clerk with
the seal of the county, and the coupons at-
tached were also filled out, stating the place
of payment to be in the city of New York, at
the banking house of the Chase National
Bank, and stating also the number of the
funding bond and the series to which it was
attachra.
The issue of bonds as above set forth was
authorized by a vote of the qualified electors
to be exchanged for warrants, and the
amount thereof was spread upon the records
of the county as provided for by the act of
February 21st, 1881, entitled "An Act to En-
able the Several Counties of the State to
Fund Their Floating Indebtedness.'^ In all
other respects the terms and conditions of
the act were fully complied with. The bonds
were duly registered in the oflSce of the au-
ditor of the state.
In every case where bonds were issued and
delivered to the payee or to any person for
him, the parties received them in exchange
for warrants, the amount of the bonds he-
ing the same as the amount of the warrants
MJid interest thereon that had theretofore
l>een issued by the county.
From the Ist day of December, 1882, and
up until the Ist day of March, 1886, the
county paid the interest on the bonds semi-
annually in accordance with their terms and
of the coupons attached to them.
The defendant board made default in the
Sayment ol interest due on the first day of
i92
September, 1886, and made like
thereafter up to and indodlBg
1st, 1892.-
The plaintiff was the holder and owner of
coupons formerly attached to and bi Uiaftii|
to certain bonds of the above issue. It a^al
judgment for the aggregate amoant of the
principal *of the coupons, with interest oat^M
amount of each coupon as it liecaune
The answer of the county oontained a
eral denial of all the aUegations ol the
plaint, and in addition set out elev)^
live defenses, which were chiefly '
the alleged fact that the county in
the bonds .«et forth in the complaint hjid ti-
tempted to incur an indebtedness not aniaor-
izcd by the Constitution of Colorado, or bf
the statute referred to in the bonds.
The provision of the Constitution of Cole-
rado prescribing the extent to which coi*BtMi
may become indkited, and to which the homk
referred, is as follows:
"No county shall contract any debt by losa
in an> form, except for the purpose of ereet^
ing necessary public buildings, niakiBg m
repairing public rcMuls and bridges; sad
such indebtedness contracted in any one ymi
shall not exceed the rates upon tajcable prop-
erty in such county, following, to wit : Coia-
ties in which the assessed viIuatioB of tazsr
ble property shall exceed five millions of dol-
lars, one dollar and tdty cents on mi^ thon-
and dollars thereof. Counties in which ladb
valuation shall be less than five millioM of
dollars, three dollars on eadi thousand dol-
lars thereof. And the aggregate amoou of
indebtedness of any county for all
exclusive of debts contracted before the
tion of the Constitution, shall not at any
exceed twice the amount above herein lis-
ilea, unless whoi, in manner provided h?
law, the question of incurring debt shall at
a general election, be sulnnittcd to ttoA of
the qualified electors of such c«)anty as is
the year last preceding such election steH
have paid a tax upon property n>.«€J«d t»
them in such county, and a majority of
those voting thereon shall vote in farar d
incurring Uie debt; but the bonds, if s>7
be issued therefor, shall not run leas thas
ten years, and the aggregate amount of oeU
H> contracted shall not at any time etm^
twice the rate upon the valuation laM hcrra
mentioned; provided that this ^ei-tioa thaSi
not a^ply to counties having a \-«]astJaa ti
less tnan one million of doUara.** La«s of
Col. 1877, p. 62.
♦The act of February 21et, 1881, reftrrodli^
to in the bonds in question, ooutaiM UK0t$
other provisions the following:
"SI. It shall be the duty of the ttrntf
commissioners of any county having a toss-
ing indebtedness exceeding ten th<*u^a-t dol-
lars, upon the petition of fifty of thecbeti**
of said counties [county] who shall have paii
taxed upon property assessed to t<»csi is md
county in the preceding ^ear, to pnbltafc f«
the period of thirtv days in a new^tpapor ye^
lished within said county, a aotiee ii^i^
ing the holders of the warrants of mitk e^
ty tu submit in writing to the board of fsa^
ty commis<%ioners, wiUiin thirty days tr^
e date of the first publication of ««^ ^^
IT3IL&
th
1988.
GuNKiBON County Commibsionkbs y. S. H. Roluns & Sokb.
260-268
tioe, a statement of the amount of the war-
rants of such oounty which they will ex-
change at par, and accrued interest, for the
bonds of such county, to be issued under the
prorisions of this act, taking such bonds at
par. It shall be the duty of such board of
county oonmiissioners at the next ^ueral
election occurring after the expiration of
thirty days from the date of the Qrst pabli-
eation of the notice aforementioned, upon the
petition of fifty of the electors of such county
who shall have paid taxes upon ]>roperty as-
sessed to them m said oounty in the preced-
ing year, to submit to the vote of the quaJi-
M electors of such ooimty who shall have
paid taxes on property assessed to them
in said oounty in tne preceding vear, the
question whether the board oi county
commissioners shall issue bonds of such
counlgr under the provisions oi this act,
in exchange at par for the warrants of such
oounty issued prior to the date cf the first
publication of the aforesaid notice; or they
may submit such question at a 'Special elec-
tion, which they are hereby empowered to
call for that purpose at any time after the
expiration of thirty days from the date of
the first publication of the notice aforeinen-
tioned, on the petition of fifty qualified elect-
ors as aforesaid ; and they shall publish for
the period of at least thirty days immediate-
ly preceding such general or special election
in some newspaper published within such
oounfy, a notice that such ^ucition will be
submitted to the duly qualified electors as
aforesaid, at such election. The county
treasurer of such county shall make out and
(Ijcause to be delivered to the judges *of elec-
tion in each election precinct in the county,
prior to the said election, a certified list of the
taxpayers in such county who shall have paid
taxes upon property assessed to tLem in such
county m tne preceding year ; and no person
shall vote upon the question of the funding
of the county indebtedness, unless his name
shall appear upon such list, nor unless he
f^hall have paid all oounty taxes asr.essed
against him, in such county in the prec<^ding
year. If a majority of the votes lawfully
cast upon the question of such funding ^f the
floating county indebtedness shall be for the
funding of such indebtedness, the board of
county commissioners may issue to any per-
son or corporation holding any cnunty war-
rant or warrants issued prior to the date of
the first publication of the aforementioned
notice, coupon bonds of such county in ex-
chan^ therefor at par. No bonds shall be
issuei of lees denomination than one hun-
dred dollars, and if issued for a greater
amount, then for some multiple of that sum,
SAd the rate of interest shall not exceed
eight per cent per annum. The interest to
be paid semi-aimually at the office of the
county treasurer, or in the city of New York,
at the option of the holders thereof. Such
bonds to be payable at the pleasure of the
oounty after ten years from tne date of tlieir
issuance, but absolutely due and payable
twenty years after date of issue. The i^hole
amount of bonds issued under this act bhall
not exceed the sum of the countty indebted-
ness at the date of the first publication of
173 V. B.
the alorementio&ed notice, and the amount
shall be determined by the county commis-
Eioners, and a certificate made of the same
and made a part of the records of the coun-
ty; and any bond issued in excess of said
sum shall be null and void; and all bonds
issued under the provisions of this act shall
be registered in the office of the state auditor,
to whom a fee of ten cente shall be paid for
recording each bond." Laws of Col. ISSl,
pp. 85, 86, 87.
1. The circuit court of appeals held that
the bill of exceptions did not purport to con-
tain all the evidence adduced at the trial,
and for that reason it did not consider the
question whether error was committed in
directing the jury to find for the defendant.
We are of opinion that the bill of exceptions
^should be taken as containing all the evi-[268]
dence. It appears that, as soon as the jury
was sworn to try the issues in the cause, "the
complainants to sustain the issues on their
part offered the following oral and documen-
tary evidence." Then follow many pages of
testimony on the part of the plaintiffs, when
this entry appears: "Whereupon complain-
ants rested." Immediatelv after comes this
entry: "Thereupon the defendants to sus-
tain the issues herein joined on their part
produced the following evidence." Then
follow many pages of evidence given on be-
half of the defendant, and the evidence of a
witness recalled by the defendant, concluding
with this entry: "Whereupon the further
proceedings herein were continued until the
20th day of May, 1896, at 10 o'clock a. m."
Immediately following i« this entry: "Wed-
nesday, May 20th, at 10 o'clock, the further
trial of this cause was continued as follows.'*
The transcript next shows some discussion,
by counsel as to the exclusion of particular
evidence, after which is this entrv: "There-
upon counsel for defendant made a formal
motion under the evidence on both sides that
the court instruct the jury to return a ver-
dict for the .'defendant." Although the bill
of exceptions does not state, in words, that it
contains all the evidence, the above entries
sufficiently show that it does contain all the
evidence. It is therefore proper to inquire
on this record whether the circuit court erred
in giving a peremptory instruction for the
defendant.
2. We have seen that the bonds to which
were attached the coupons in suit recited
that they were issued by the board of county
commissioners "in exchange at par for valid
fioatin^ indebtedness of the oounty outstand-
ing prior to September 2d, 1882, imder and
by virtue of ana in full conformity with the
provisions of an act of the general assembly
of the state of Colorado, enutled 'An Act to
Enable the Several Counties of the State to
Fund Their Floating Indebtedness,* approved
February 21st 1881;" that "all the require-
ments of law nave been fully oomplied with
by the proper officers in the issuing of this
bond;" that the total amount of the issue did
"not exceed the limit prescribed by the Consti-
tution of the state of Colorado;" and that
such issue had been authorized by a vote *of [268]
a majority of the duly qualified electors of
the county votjng on the question at a ?en-
603
2Qii-46b
SUPBBME COUBT OW THE UhITED STATBS.
Oct.
eral election duly held in the county on the
7th day of November, 1882.
Do such recitals eetop the county from as-
sertine ac^ainst a bona fide holder for value
that uie bonds so issued created an indebt-
edness in excess of the limit prescribed by
the Constitution of Colorado? An answer to
this question can be found in former deci-
sions of this court. It is necessary to ad-
vert to those decisions, particularly those in
which the court considered the effect of re-
citals importing compliance with constitu-
tional provisions.
In Buchanan v. Litchfield, 102 U. S. 278,
290, 292 [26: 138, 140, 141], which was a
suit on interest coupons of municipal bonds,
the defense was made that the bonds were
issued in violation of that clause of the Con-
stitution of the state providing that ''no
county, city, township, school district, or
other municipal corporation shall be allowed
to become inaebted, m any manner or for any
purpose, to an amount, including existing
indebtedness, in the aggregate exc^ing five
per centum on the value of the taxable prop-
erty therein, to be ascertained by the last as-
sessment for state and county taxes previous
to the incurring of such indebtedness." This
court said : "As, therefore, neither the Con-
stitution nor the statute prescribed any rule
or test by which persons contracting with
municipal corporations should aacertain the
eoEtent of their 'existing indebtedness,' it
would seem that if the bonds in question had
contained recitals which, upon any fair con-
struction, amounted to a representation up-
on the part of the constituted authorities of
the city that the reauirements of the Consti-
tution were met, — ^that is, that the city's in-
debtedness, increased by the amount of the
bonds in question, was within the constitu-
tional limit, — then the city, under the deci-
sions of this court, might have been estopped
from disputing the truth of such representa-
tions as against a bona fide holder of its bonds.
The case might then, perhapa, have been
brought within the rule announced by ^his
court in Toton of Coloma v. Eaven^ 92 U. S.
484 [23: 579], m which case we said, and
now repeat, that 'where legislative author-
ity has been given to a municipality or to
[M4]its officers, to subscribe for the *stock of a
railroad company, and to issue municipal
bonds in payment, but only on bome prece-
dent condition, such as a popular vote favor-
ing the subscription, ana where it may be
fathered from the legislative enactment Ihat
the officers of the municipality were invested
with power to decide whether the conaition
preoeoent has been complied with, their reci-
tal that it has been, made on the bonds is-
sued by them and held by a bona fide pur-
chaser, is conclusive of the fact and binaing
upon the municipality; for the recital is it-
self a decision of the fact by the appointed
tribunal.' So, in the more recent case of
Orleans v. Plait 99 U. S. 676 [25 : 404] it
was said that 'wnere the bonds on their face
recite the circumstances which bring them
within the power the corporation is estopped
to deny the truth of the recital.* ** Again :
"A recital that the bonds were issued under
the authority of the statute and in pursu-
604
ance of the city ordinance did not
import a compliance with the GongtitTitWa.
Had the bonds made the additiobal redtal
that they were issued in aooordaaee vi& tkt
Constitution, or had the ordinance Btatol im
any form that the proposed indebtednas was
within the constitutional limit, or lad tk»
statute restricted the exercise €d the aatboci-
ty therein conferred to those municipal oar-
porations whose indebtedness did Tjot at Ae
time exceed the oonstitutional limit, ihert
would have been ground for holding that the
city could not, as against the plaintiff, dis-
pute the fair inference to be drawm from sock
recital or statement as to the extent of its
existing indebtedness."
In Northern Bank v. Porter Towntlup,
110 U. S. 608, 616, 619 [28: 258, 261, M2],
which was an action on municipal bends,
and involved a question respecting th^eos-
clusiveness, as between the municipal itr aad
a bona fide holder for value, of redttls m
the bonds that they had been issued in eoo-
formity to law, the court referred to the
above rule established in Town of Coiowt^ v.
Eaves, and said: '^e are of opiaion that
the rule as thus stated does not smiport the
position which counsel for plain im in cmr
take in the present case. The adjud^id
cases, examined in the light of their special
circumstances, show that the facts which s
municipal corporation issuing bonds in aii
of the construction of a railroad was sot
permitted, against a *bona fide holder, ta
question in face of a recital in the bonds ot
their existence, were those connected with or
f rowing out of the discharge of the ordtasiT
uties of such of its officers as were investM
with authority to execute them, and vhkk
the statute conferring t^e power made it
their duty to ascertain and determioe befbce
the bonds were issued; not merely for them-
selves, as the ground of their own action, b«t,
equally, as authentic and final eridencc cf
their existence, for the information and wt-
tion of all others dealing with them in rcfv^
enoe to it. . . . The question of l«ei«l**
tive authority in a municipal corporal ioa t*
issue bonds m aid of a railroad compaiy
cannot be concluded by mere recitals; bat
the power existing, the municipality mar te
estopped by recitals to prove irregnlaritMi
in the exercise of that power; or. wbea th»
law prescribes conditions upon the exerent
of the power granted, and commits to tkt
officers of such municipality the det^naia**
tion of the question whether those coodituv
have been performed, the corporatkn will
also be estopped by recitals whidi mp«rt
such performance."
A leading case on this subjeot ia Ditm
County V. Field, 111 U. 8, 83, 92-»4 [»:
360, 363, 364], which involved the rthdHj
of bonds issued in the name of Dixm eooCj*
Nebraska, the Constitution of which ttalt
prescribed conditions upon whi^ 4oaitifli
could be made to a railroad or oCImt woriE if
internal improvement by cities
cincts, municipalities, or other
of the state, and imposed limitatioos
the amount thereof and upon tba otfdt ^
creating municipality debts of that ki*^
The principal queeUon was as to thr enw^
173 IT. ^
ma.
Gunnison Ck>uNTT Ck>HMi8siONBii8 v. E. H. Rollinb A Sons.
26tHM8
iiTeness of oertain recitals in the bonda sued
on in that case. This court said: "Tho es-
toppel does not arise, except upon matters of
fact which the corporate officers had autnor-
ity by law to determine and to certify. It
is not necessary, it is true, that the recital
should enumerate each particular fact essen-
tial to the existence of the obligation. A
^eral statement that the bonds have been
issued in conformity with the law will suf-
fice, so as to embrace every fact which the
officers making the statement are authorized
to determine and certify. A determination
and statement as to the whole series, where
^Imore thaji one is 'involved, is a determina-
tion and certificate as to each essential par-
ticular. But it still remains that there must
be authority vested in the officers, by law, as
to each necessary fact, whether enumerated,
or nooenumerated, to ascertain and determine
its existence, and to guarantee to those dealins
with them the b-uth and conclusiveness oi
their admissions. In such a case the mean-
ing of the law granting power to issue bonds
is that they may be issued, not upon the ex-
istence of certain facts, to be ascertained and
determined whenever disputed, but upon the
ascertainment and determination of their ex-
istence by the officers or body designated by
law to issue the bonds upon such a contingen-
07. This becomes very plain when we suppose
the case of such a power granted to issue bonds
upon the existence of a state of facts to be
ascertained and determined by some persons
or tribunal other than those authorized to
issue the bonds. In that case it would not be
contended that a recital of the facts in the
instrument itself, contrary to the finding of
those charged by law with that duty, would
have any legal effect. So, if the fact neces-
sary to the existence of the authority was
by law to be ascertained, not officially bv the
officers charged with the execution oi the
Sower, but by reference to some express and
efinite record of a public character, then
the true meaning of the law would be that
the authority tc» act at all depended upon
the actual objective existence of the requisite
fact, as shown by the record, and not upon
its ascertainment and determination by any-
one; and the consequence Would necessarily
follow that all persons claiming under the
exercise of such a power might be put to
proof of the fact maae a condition of ito law-
fulness, notwithstanding any recitals in
that instrument This principle is the es-
sence of the rule declared upon this point,
by this court, in the well-considered words
of Mr. Justice Strong, in Toton of Coloma v.
Eave8, 92 U. S. 484 [23:679], where he
states (p. 491 [23: 582]) that it is 'where it
may be gathered from the legislative enact-
inent that the officers of the municipality
^ere invested with the power to decide
whether the condition precedent has been
complied with,' that 'their recital that it has
J>een, made in the bonds issued by them and
bold by a bona fide purchaser, is conclusive
'J*of the fact, and binding upon the municipal-
ity; for the recital is itself a decision of the
fact by the appointed tribunal.' The con-
verse is embraced in the proposition, and is
equally true. If the officers authorized to is-
173 V. 8.
sue bonds upon a condition are not the ap-
pointed tribunals to decide the fact whidi
constitutes the condition, their recital will
not be accepted as a substitute for proof. In
other words, where the validity of the bonds
depends upon an estoppel claimed to arise
upon the recitals of the instrument^ the
question being as to the exist^ce of power
to issue them, it is necessai^ to establish
that the officers executing the bonds had law-
ful authority to make the recitals and to
make them conclusive. The very ground ol
the estoppel is that the recitals are the offi-
cial statements of those to whom the law re-
fers the public for authentic and final infor-
mation on the subject."
In LaJcc County v. Oraham, 130 U. S. 674,
C80, 683, 684 [32: 1065, 1067, 1068], the
question was as to the validi^ of certain
bonds issued by Lake county, Colorado, un-
der the verv statute of that state referred to
in the bonds the coupons of which are here
in suit, namely, the above act of February
21st, 1881, authorizing the several counties
of the state to fund their floating indebted-
ness. It was recited in each of the bonds
sued on in that case tiiat they were issued
under and by virtue of and in full com-
plfacce with that act, and that "all the pro-
visions and requirements of said act have
been fully complied with by the proper offi-
cers in the issuing of this bond.^' No one
of the bonds, let it be observed, contained
any recital that it was issued in conformity
to the provisions of the state Constitution.
This court said: "Nothing is better settled
than this rule — ^that the purchaser of bonds,
such as these, is held to Know the constitu-
tional provisions and the statutory restric-
tions bearing on the Question of the authority
to issue them ; also tne recitals of the bonoB
ho buys; while, on the other hand, if he act
in good faith and pay value, he is entitled to
the protection of such recitals of facts as
the bonds may contain. In this case the
Constitution charges each purchaser with
knowledge of the fact that, as to all counties
whose assessed valuation equals one million
of dollars, there is a 'maximum limit beyond [268]
which those counties can incur no further
indebtedness under any possible conditions,
provided that in calculating that limit debts
contracted before the adoption of the Consti-
tution are not to be counted. The statute,
on the other hand, charges the purchaser
with knowledge of the fact that the county
commissioners were to issue bonds, at pax,
in exchange for such warrants of the county
as were themselves issued prior to the date
of the first publication of the notice provided
for; that the only limitation on the issue of
bonds in the statute was that the bonds
should not exceed in amount the sum of the
county indebtedness on the day of notice
aforesaid; that while the commissioners
were empowered to determine the amoimt of
such indebtedness yet the statute does not re-
fer that board, for the elements of its com-
putation, to the Constitution or to the stan-
dards prescribed by the Constitution, but
leaves it o^en to them, without departtnff
from any direction of the statute, to adopt
solely the basis of the county warrants. Tne
606
268-27 1
Supreme Coubt of the United States,
Oct.
recitals of the bonds were merely to the ef-
fect that the issue was 'under and by vir-
tue of and in full compliance with' the atat^
uie; 'that all the provisions and require-
ments of aaid act have been fully complied
with by the proper officers in the issuing of
this bond;' and that the issuing was ^au-
thorized by a vote of a majority of the duly
qualified electors/ etc.; no express reference
being made to the Constitution, nor any
statement made that the constitutional re-
Suirements had been observed. There is,
berefore, no estoppel as to the oonstitution-
aZ question, because there is no recital in re-
gard to it, Carroll County v. Smith, 111 U.
8. 656" [28: 517]. In disposing of the con-
tention that, under the doctrines of certain
adjudged cases, the county was estopped to
deny Siat the bonds were issued in conform-
ity to the Constitution, the court said : "The
question here is distinguishable from that in
the cases relied on by counsel for defendant
in error. In this case the standard of va-
lidity is created by the Constitution. In that
standard two factors are to be considered;
one, i^ amount of aeseesed value, and the
other the ratio between that assessed value
and the debt proposed. These being exac-
[S60]tioD8 of the Constitution itself, *it is not
within the power of a legislature to dispense
with them, either direcfly or indirectly, by
the creation of a ministerial commission
whose finding shall be taken in lieu of the
facts. In the case of Sherman County v.
Simons, 109 U. S. 735 [27: 1093], and oth-
ers like it, the question was one of estopi>el
as against an exaction imposed by the legis-
lature; and the holding was that the l^is-
lature, being the source of exaction, had
created a M>ard authorized to determine
whether its action had been complied with,
and that its finding was conclusive to a bona
fide purchaser. & also in Orepon v. Jen-
nings, 110 U. S. 74 [30: 323], the condition
violated was not one imposed by the Consti-
tution, but one fixed by the subscription- con-
tract of the people."
This brings us in our reference to the au-
thorities to the important case of Chaffee
County V. Potter, 142 U. S. 355, 363, 364,
866 [35: 1040, 1043, 1044]. Tlmt was an
action upon coupons of bonds issued by
Chaffee county, Colorado, under the act of
February 21st, 1881, under which the bonds
here in suit were issued. The bond^ and
coupons were in the same form and contained
the same recitals as the above bonds issued
hy Gunnison county, and were of like date.
The defense in part in the Chaffee county case
was that the bonds, and each of them, were
issued in violation of the Constitution ot the
state. After referring to the decision in
Lake County v. Oraham (the bonds in which
did not contain any express recitals as to
the constitutional limit of indebtedness), and
stating that it was based largely on the rul-
ing in Diwon County v. Field, this court
Id: «^ - - -
To the views expressed in that case
we still adhere ; and the only question for us
now to consider, therefore, is: Do the ad-
ditional recitals in these bonds, above set
out, and in the absence from their face of
anytliing showing the total number issued
of each series, and the total amount is sll,
estop the county from pleading the eoostits-
tional limitation? In our opinion these two
features are of vital importance in distis-
guishing this case from Lake CtmmSf
V. Grtuiam and Diwon County v. FieU,
and are sufflcieni to operate as- mm es-
toppel against the county. Of conrae the
purchaser of bonds in open market wmi
bound to take notice of *the constittttici1[M
limitation on the county with r'sspect to ta-
debtedness which might incur. But
upon the face of the bonds, there was
express recital that the limitation bad
been passed, and the bonds themsdres M
not snow that it had, he was bound to
no further. An examination of any
ticular bond would not disclose, as it
in the Lake County Case and in /Knm Ccwt-
tp V. Field, that, as a matter of fact, the eoa-
stitutional limitation had been exceeded a
the issue of the series of bonds. The pv^
chaser might even know, indeed it may bt
admitted tnat he would be required to laov,
the assessed valuation of the taxable pro^
erty of the county, and yet he could not as-
certain by reference to one of the Londa aai
the assessment roll whether the eonnty had
exceeded its power, under the Cun^tutka,
in the premises. True, if a purrhaser had
seen the whole issue of each ^ries of boads
and then compared it with :iie a^sesniiiit
roll, he might have been ahle to dtsrow
whether the issue exceeded ths amonnt ot ia-
debtedness limited by the Constitutioa. Bat
that is not the test to apply to a transactiaa
of this nature. It is not supposed that aiy
one person would purchase all of the boadi
at one time, as that is not the usual Obant
of business of this kind. The test b. What
does each individual bond disclose? If tht
face of one of the bonds had diHrloaed that,
as a matter of fact, the recital in it, with n-
speot to the constitutional limits tioa, vaa
false, of course the county would aot W
bound bv that recital, and would not bt «*
topped from pleading the invalidity of tW
bonds in this particular. Such wa^ the caw
in Lake County v. Chraham and IKio* Com-
ty V. Field. But that is not this mm.
Here, by virtue of the statute und«r vhiA
the bonds were issued, the ooumty ecaiMii
sioners toere to determine the amommt to to
issued, which was not to exceed the total
amount of the indebtedness at the date of tkt
first publication of the notice reaoeftinir tki
holders of county warrants to exchaoKe tMr
warrants for bonds, at par. The ittatata. ia
terms, gave to the commissioners the dftfl*
mination of a fact, that is, whether tW is-
sue of bonds was in accordance with the 0»
stitution of the state and the iktatnte vukf
whicAi they *were iasuedi and required thai(tn]
to spread a certificate of that d-^terniiattiai
upon the records of the county. The radtal
in the bond to the effect that such ^
nation has been made, and that the
tutional limitation had not been
the issue of the bonds, taken im
with the fact that the bonds themueim *i
not show such recital to he tM/me, caiv
the law, estops the county from laifiaf fM
it is untrue. Toioa of Colom%a v. £«f«i, ^
1696.
GUNNISOK COUMTT COMMI86IOX«Eli8 Y. E. H. ROLLIKB i& SONS.
271-27S
U. a 484 [23 : 679] ; Toion of Venice v. Mur-
4ook, 02 U. S. 494 [23: 683] ; Ma:^ v. Tov^n-
Mp of Oeweffo, 92 U. S. 637 [23 : 748] ; Wil-
•on y. Salamanca, 99 U. S. 499 [25: ."^SO] ;
Buchanan y. Litchfield, 102 U. S. 278 [26:
136]; tforthem Bank y. Porter Township,
110 U. S. 608 [28:268]." After referring
to what was said in Town of Oolofna y. Eaves
and Buchanan y. Litchfield, the court thus
concludes its opinion: "We think this case
comes fairly within the principles of those
just cited; and that it is not governed by
DiMm County y. Field and LaJce Oountv y.
Graham, but is distinguishable from tnem
in the essential particmars above noted."
It is contend^ that the present case is
controlled by SutUff v. Lake County Commis-
doners, 147 U. S. 230, 235, 237-8 [37 : 145,
149], rat!|er than by Chaffee County v. Pot-
ter, The action in the Butliff Case was upon
coupons of bonds issued by a county of Colo-
rado, eadi bond reciting that it was issued
under and by virtue oi and in compliance
with the act of Assembly entitled "An Act
Concerning Counties, County Officers, and
County Government, and Repealing Laws on
These Subjects," approved March 24th, 1877,
and it was certifiea in each bond that "all
the provisions of said act have been fully
complied with by the proper officers in the
issuing of this bond." It was a vital fact
in that case that there was no recital in the
bonds that the indebtedness thus created was
not in excess of the constitutional limit.
Still, the defense was that the bonds in fact
increased the indebtedness of the county to
an amount in excess of the limit prescribed
by the State Constitution, and therefore were
illegal and void. The court, upon the facts
t^rtified and in the light of previous deci-
sions, held it to be clear that "the plaintiff,
although a purchaser for value and before
maturity of the bonds, was charged with the
'Iduty *of examining the records of indebted-
ness provided for in the statute of Colorado,
in order to ascertain whether the bonds in-
creased the indebtedness of the county be-
yond the constitutional limit; and that the
recitals in the bonds did not estop the coimty
to prove by the records of the assessment
and the indebtedness that the bonds were
issued in violation of the Constitution. "In
those cases," it continued, "in which this
court has held a municipal corporation to be
estopped by recitals in ito bonds to assert
that they were issued in excess of the limit
imposed by the Constitution or statutes of
the state, the stetutes, as construed by the
court, left it to the officers issuing the bonds
to determine whether the facte existed which
constituted the statutory or constitutional
condition precedent, and aid not require those
facts to be made a matter of public record.
liarcy v. Oswego Twp. 92 U. S. 637 [23:
748] ; Humboldt Twp. v. Long, 92 U. S. 642
[23: 752] ; Dixon County v. Field, 111 U. S.
83 [28: 360] ; Lake iSounty v. Oraham, 130
U. S. 674, 682 [32 : 1065, 1068] ; Chalfee
County v. Potter, 142 U. S. 355, 363 [35:
1040, 1043]. But if the stetute expressly
reouires those facte to be made a matter of
public record, open to the inspection of
everyone, there can be no implicati<Mi that
173 IT. 8.
it was intended to leave that matter to b»
determined and concluded, contrary to ih»
facte so recorded, by the officers charged with
the duty of issuing the bonds." After re-
ferring to Diwon County v. Field, above cit-
ed, the court proceeded to show the precise
grounds upon whidi the decisions in Lake
County v. Oraham and Chaffee County y»
Potter were rested: "That decision [Dtwon
County V. Field] and the ground upon which '
it reste were approved and affirmea in Lake
County v. Oraham and Chaffee County y.
Potter, above cited, each of which arose un-
der the article of the Constitution of Colo-
rado now in question, but under a different
stetute, which did not require the amount
of indebtedness of the county to be steted
on ite records. In Lake County v. Oraham
each bond showed on ite face the whole
amoimt of bonds issued, and the recorded
valuation of property showed that amount
to be in excess of the constitutional limit;
and for this reason, as well as because the
bonds contained no recitel upon that point,
the county was held not to *be estopped to[27S1
plead that limit. 130 U. S. 682, 683 [32:
1068]. In Chaffee County v. Potter, on the
other hand, the bonds eonteined an express
recitel that the total amount of the is-
sue did not exceed the constitutional limit,
and did not show on their face the amount
of the issue, and the county records showed
only the valuation of property, so that, as
observed by Mr. Justice Lamar in deliver-
ing judgment: The purchaser might even
know, indeed it may be admitted that he
would be required to know, the assessed val-
uation of the texable property of the county,
and yet he could not ascertein by reference
to one of the bonds and the assessment roll
whether the county had exceeded ite power,
under the Constitution, in the premises.'
142 U. S. 363 [35: 1043]. The case at bar
does not fall within Chaffee County v. Pot-
ter, and cannot be distinguished in principle
from* Z)ia?on County v. Field or from Liike
County v. Oraham, The only difference
worthy of notice is that in each of these
cases the single fact required to be shown
by t^e public record was the valuation of
the property of the county, whereas here two
facte are to be so shown, the valuation of the
property, and the amount of the county debt.
But, as both these facte are equally required
by the stetute to be entered on the public
records of the county, they are both facte of
which all the world is bound to teke notice,
and as to which, therefore, the coimty can-
not be concluded by any recitels in the
bonds."
It thus appears that in the SutUff Case
the court neither modified nor intended to
modify, but distinctly recognized, the prin-
ciple announced in Cliaffee County v. Potter,
namely, that the recitel in the bonds that
tiie debt thereby created did not exceed the
limit prescribed by the Constitution estopped
the county from asserting, as against a bona
fide holder for value, that the contrary wae
tJie fact.
We have made this extended reference ta
adjudged cases because of the wide differ-
ence among learned counsel as to the effect
TOT
278-276
SUPBEMB COUBT OF THB UnTTSD StATE&.
Oct.
of our former decisions. This course has al-
so been pursued in order to bring out clear-
ly the fact that the present case is controlled
by the judgment in Chaffee County y. Potter.
llie views of the circuit court, as expressed
(S74]in its charge in* this case and as enforced by
its peremptory instruction to find for the de-
fendant, cannot be approved without over-
ruling that case. It was eiqpressly decided
* in the Chaffee county case that the statute
under which the bonds there in suit (the
bonds here in suit being of the same class)
authorized the county commissioners to de-
termine whether the proposed issue of bonds
would in fact exceed the limit prescribed by
the Constitution and the statute; and that
the recital in the bond to the effect that such
determination had been made and that the
constitutional limitation had not been exr
eeeded, taken in connection with the fact that
the bonds themselves did not show such re-
cital to be untrue, estopped the county, un-
der the law, from saying that the recital was
not true. We decline to overrule Chaffee
County V. Potter, and upon the authority of
that case, and without re-examining or en-
lar^ng upon the grounds upon whidi the
decision therein proceeded, we adjudge that
as against the plaintiff the county of Gun-
nison is estopped to question the recital in
the bonds in question, to the effect that they
did not create a debt in excess of the consti-
tutional limit, and were issued by virtue of
and in conformity with the statute of 1881,
and in full compliance with the requirements
of law.
We have assumed thus far that the plain-
tiff corporation was a bona fide purchaser or
holder of the bonds to which the coupons in
suit were attached. Upon this question we
concur in the views expressed by the circuit
court of appeals. Speaking by Judge lliayer,
that court said: "The testimony contained
in the present record shows, we think, with-
out contradiction, that the plaintiff was a
bona fide holder when the suit was brought
of at least five of the bonds which are in-
volved in the present controversy, because it
holds the title of Joseph Stanley, who was
himself an innocent purchaser of said bonds
before maturity, for the price of ninety-
eight cents on the dollar. Theriehts which
Stanle}^ acquired by virtue of such purchase
inure to the plaintiff, by virtue of its pur-
chase of the bonds from Stanley in June,
1&92, and this without reference to any
knowledge which the plaintiff may have had
at the latter date afiecting the v-alidity of
lS76]the securities. *A bona fide holder of com-
mercial paper is entitled to transfer to a
third party all the rights with which he is
vested, and the title so acquired by his in-
dorsee cannot be affected by proof that the
indorsee was acquainted witn the defenses
existing against the paper. Commisaioners
of Marion County v. Clark, 94 IT. S. 278, 286
[24:50. 62]; Bill v. Scotland County, 84
Fed. Rep. 208; Dan. Neg. Inst. ;4th ed.) $
603, and cases there cited." 49 U. S. App.
390, 413.
698
The remaining five bonds owned bj ftt
plaintiff corporation were also pnrdiaaed
from Stanley, who received them
from the county in exchange for
that he owned and held. There is no
why upon the surrender of county warraau
for county bonds he was not entitled to tht
benefit of the rule above declared as to ths
conclusiveness of the recital in the bonds, or
why he may not be regarded as mudi sa ta-
nooent holder of the bonds exchanged for
county warrants as of the other bowU f«r-
chased by him in o^n market. There is ■•
proof that at the time of such exchtnge he
had or was chai^eable witii knowlem or
notice that the debt created by the boods ex-
ceeded the constitutional limit; cotofqaai'
ly, in taking the bdnds in exchange he vas
entitled, for the reasons heretofore givea, to
rely upon the truth of the recitals contaiaod
in them. When the board of oonntj cam-
missioners, proceeding under the act ol 1881,
offered to exchange county bonds for the
warrants held by him, he was entitled voder
the circumstances disclosed to assume it to
be true, as recited in the bonds, that the cm-
stitutional limit was not being exceeded.
It is insisted with much eamestness thst
the principles we have announced render it
impossible for a state by a constitutiooal pro-
vision to guard against excessive anaiapal
indebtedness. By no means. If a vtsu
Constitution, in fixing a limit for indebted-
ness of that character, should prescribe i
definite nile or test for determining whethff
that limit has already been exceeded, or if
being exceeded by any particular issue of
bon£, all who purchase such brnds wtmii
do so subject to that rule or test, whatcrer
might be the hardship in the case of thorn
who purchased them in the open market *nrtft
good faith. Indeed, it is entirely oompetest
for a state to provide by statute that all oh>
ligations, in whatever form executed by t
municipality existing under its lavs, shsB
be subject to any defense that would be tl-
lowed m cases of non-negotiable instniiwiN
But for reasons that everyone under«t*»3»
no such statutes have been passed. Musm^
ipal obligations executed under such s *t»i-
ute could not be readily disposed of to thote
who invest in such securities.
It follows that the circuit court erred is
directing the jury to return a Terdiet for the
defendant.
What has been said renders it unneoMnaT?
to consider various questions ariMnjr up"*
exceptions to specific rulings in the rirrsrt
court as to the admission and exdn^ioa d
evidence, and as to those parts of the ^hM
to which objections were made lV>«e fl-
ings were inconsistent with the pnve^tei
herein announced.
As neither the circuit court nor the drtwt
court of appeals proceeded in acowdsv*
with the principles herein aanoonccd. thf
judgment of each court is lewiaod, tW tW
cause is remanded for further pioeeetof*
consistent with this opinion.
It is so ordered.
179 «.&
Omo T. Thomab.
277-879
STATE OF omo, AppU
V.
J. B. THOMAS.
(See & C Reporter's ed. 276-286.)
QovenioT of soldiers' home not subjeet to
state lave as to use of oleomargarine.
A goTernor of a loldlera* home which la under
the sole jorisdiction of Congress Is not sub-
ject to the state law concerning the use of
oleomargarine, when he famishes that article
to the Inmates of the home as part of the
rations furnished for them under appropria-
tions made by Congress therefor.
[No. 353.]
Argued and Submitted January 10, 1899.
Decided February 27, 1899.
APPEAL from an order of the United
States Circuit Court of Appeals for the
Sixth Circuit affirming the order of the Cir-
cuit Court of the United States for the
Southern District of Ohio, Western Diyision,
di8char|ing the appellee, J. B. Thomas, gov-
ernor of the soldiers' home in the county of
Montgomery, Ohio, from the custody of a
constable under a mittimus from the justice
of the peace before whom he was tried and by
whom ne was convicted and sentenced to pay
a fine of $50 and to be imprisoned until such
fine was paid, for a violation of the Ohio act
of 1895 (92 Ohio State Laws, 23) in relation
to the use of oleomargarine. Affirmed.
See same case below, 82 Fed. Rep. 304, aJid
58 U. S. App. 431, 87 Fed. Rep. 453.
Statement by Mr. Justice PeoUtamx
n *In this case complaint wae made by af-
fidavit by the dairy commissioner of Ohio
Against the appellee, alleging that on March
2, 1897, he violated the act of the legisla-
ture of the state of Ohio, passed in 1895 (92
Ohio State Laws, 23), in relation to the use
of oleomargarine. Appellee was arrested
aud brought before a justice of the peace, and
declined to plead to the charge on tne ground
that the act complained of in the affidavit
of the complainant was performed by him as
governor of the soldiers' nome, located in the
county of Montgomery and state ol Ohio,
and what he did was done by the authority
of the board of managers of the home. He
therefore moved to dismiss the complaint for
want of jurisdiction in the magistrate.
Tills motion was denied. He then consented
to be tried without a jury upon the follow-
ing agreed statement of facts :
^*1. That on the 2d day of March, 1897,
Joseph E. Blackburn was and now is the
food and dairy commissioner of the state of
Ohio.
**2. That on the 2d day of March, 1897, J.
B. Thomas was and now is the duly chosen
and acting governor of the Central Branch of
the National Home for Disabled Volunteer
Soldiers, located in the county of Mont-
gomery, state of Ohio, and as said governor
was in charge of the eating house at the said
Central Branch of the National Home for
Disabled Volunteer Soldiers.
173 V. B.
'^Z. Said eating houae is used b^y waii. J. -
B. Thomas for serving and famishing to tht
inmates of said Central Branch of the Na-
tional Home for Disabled Volunteer Soldiers
their dadly *food or rations, and is the only[278]
place so provided at said National Home, and
IS known as the mess room of the said Cen-
tral Branch of the National Home for Dis-
abled Volunteer Soldiers, situate on tba
^rounds purchased, held and used by Htm
United States therefor, and the acts com-
plained of herein consisted in causing oleo-
marffarine to be served and furnished, on the
2d dieiy of March, 1897, as food and as part of
the rations furnished to the inmates thereof,
under appropriations made by the Congress
of the United States for the support of said
inmates; and that no placard in size not lesa
than 10 X 14 inches, having printed thereon
in black letters not less in size than 1^
inches square, the words 'oleomargarine
sold and used here/ was displayed in said
eating house.
"4. The affidavit in the cause is made in
conformity with an act ol the general assem-
bly of the state of Ohio (Ohio Laws, vol. 92,
page 23), passed in ld95, and entitled 'An
Act to Amend Section 3 of an Act Entitled
"An Act to Prevent Fraud and Deception in
the Manufacture and Sale of Oleomargarine
and Promote Public Health in the State of
Ohio," ' paased May 16, 1894."
Section 3 of the act, as so amended, reads
as follows:
"Sec 8. Every proprietor, keeper, mana^
ger, or person in charge of any hotel, boat,
railroad car, boarding house, restaurant, ea^
ing house, lunch counter, or lunch room, who
therein sells, uses, serves, furnishes, or dis-
poses of or uses in cooking, any oleomarga-
rine, shall display and keep a white placard
in a conspicuous place, where the same may
be easily seen and read, in the dining room,
eating house, restaurant, lunch room, or
place where such substance is furnished,
served, sold, or disposed of, which placard
shall be in size not less than ten by fourteen
inches, upon which shall be printed in black
letters, not less in size than one and a half
inches souare, the words 'oleomargarine sold
and used here,' and said card shall not con-
tain any other words than the ones above
described; and such proprietor, keeper, man-
ager, or person in charge shall not sell, serve,
or dispose of such substance as or for bu^
ter, when butter is asked for or purported to
be furnished or served."
In addition to the above statement, refer-
ence was made to* the following acts of Con-[279]
gress providing for the creation and govern-
ment of the National Homes for Disabled
Volunteer Soldiers, viz.: Act of March 3,
18G5, chap. 91 (13 Stat, at L. 509) ; act of
March 21, 1866, chap. 21 (14 Stat, at L. 10) ;
act of March 3, 1875, chap. 129 ( 18 Stat at
L. 343, at 359). By the last-cited statute,
on page 359, it is made the duty of the man-
agers of the home, on or before the first day
of August in each year, "to furnish to the
Secretary of War estimates, in detail, for
the support of said home for the fiscal year
commencing on the first dav of Juhr ther^
after; and the Secretary of War shall an-
609
884-286
SUPBBMB COUBT OF THB UNITED STATES.
Oct. Tdb,
Unson, 160 U. S. 231 [40: 406], and Baker ▼.
Grice, 169 U. S. 284 [42: 748], consists in
the fact that the Federal officer proceeded
against in the courts of the state may, upon
conviction, be imprisoned as a means of en-
forcing the sentence of a fine, and thus the
operations of the Federal government might
(M6]in the meantime be *ob^ructed. This is
such a case. In Ew parte Roydll it was
stated by Mr. Justice Harlan, in naming
some of the exceptions to the general rule
there laid down, that "when the petitioner
is in custody by state authority for an act
done or omitted to be done in pursuance of a
law of the United States, or of an order, proc-
ess, or decree of a court or judge thereof;
or where, beine a subject or citizen of a for-
eign state, and domiciled therein, he is in
custody, under like authority, for an act
done or omitted under any alleged right, title,
authority, privilege, protection, or exemp-
tion claimed under the commission or order
or sanction of any foreign state, or under
color thereof, the validity and effect whereof
depend upon the law of nations, — in such
and like oases of urgency, involving the au-
thority and operations of the genersQ govern-
ment, or the obligations of this country to or
its relations with foreign nations, the courts
of the United States have frequently inter-
posed by writs of habeas corpus and dis-
charged prisoners who were held in custody
under state authority."
For the reasons herein given we think the
order of the Circuit Court of Appeals, af'
firming the Circuit Court, was right, and it
must be affirmed.
The Chief Justice lock, no part in the con-
sideration or decision of this case.
LAKE SHORE & MICHIGAN SOUTHEBN
RAILWAY COMPANY, Plff. in Err,,
STATE O F OHIO, ew rel. GEORGE L.
lAWRENCE.
(See 8. C. Reporter*! ed. 285-388.)
Fovoer of state to provide for the public con-
venience and public good — power of Con-
gress— grounds of power of a state to pro-
vide for the public convenience — Ohio stat-
ute requiring railroad trains to stop at
statiotis of over S,000 inhabitants — condi-
tion of its charter — regulation of inter-
state commerce— U. 8. Rev. 8tat, % 5258,
1. The power exists in each state by appro-
priate enactments not forbidden by Its own
or the Federal Constitution, to regulate the
relative rights and duties of all persons and
corporations within Its jurisdiction so as to
provide for the public convenience and the
public good.
9. When Congress acts with reference to a
matter confided to it by the Federal Consti-
tution, then its statutes displace all state
regulations touching that matter.
8. The power of the state by appropriate leg-
islation to provide for the public convenience
stands upoQ the same grounds as its power bj
702
appropriate legislation to protect
health, the public morals, or tbe psbllc nCecy.
4. The Ohio statute (Ohio Laws 1889. p. 2»t
Rev. SUt 1890. f 3220) reqolrtng «Mft
railroad company whose road is opentH
within the state to cause three, each way. of
its regular trains carrying passengers, if m
many are run daily, Sondays exceptei. t»
stop at a station, dtj, or Tillage <'«^»^«i«t^
over 3,000 inhabitants, long enough to nceiTt
and let off passengers, is for the pablk eoa-
venience, and is not a regulation of tatir-
state commerce and unconstitutional whca i^
plied to the trains of a corporation of the
state engaged in such commerce.
6. Such railroad accepted its charter ntt^ect
to the condition that it would conform to mmA
reasonable state regulations as were for tht
public interest and not lb violation of tW ■•-
preme law of the land.
6. State legislation relating to commerot li
not to be deemed a regulation of Intcnot*
commerce simply because it may, to mtmt a-
tent or under some circumstances, affect wmdk
commerce.
7. U. S. Rev. SUt I 5258, authorising ralliMi
companies to carry government snpplka
mails, etc. from one state to aootber. 4oci
not prevent the state from enacting sock rtf
ulations, with respect, at least, to a raltrMi
corporation of its own creation, as axe aoc A*'
rected against interstate commerce, sad a^
not regulations thereof, but only InriiksrsLj
or remotely affect it, and are desigaeti to ftP'
mote the public convenience.
[No. 95.]
Argued December IS, 1898. Decidud F^f-
ary 20, 1899.
IN ERROR to the Supreme Court of tkt
State of Ohio to review a jodcmcnt «f
that court affirmine the judgment of the Cir-
cuit Court of (Juyaboga OMmty, OIm,
affirming the judgment of the eoort «f
common pleas of .said eountj sfsiait
the Lake Shore 4 Michigan Southen
Railway Company for the amount of te
penally prescribed by Ohio Rev. Stat i
3320, requiring railroad companies to ^tef
three, each way, of its regular passcafir
trains, if so many are run daily, Suadsn
excepted, at a station, city, or village, oforcr
3,000 inhabitants, to receive and let off asst*
engers, — in an action brought by the aUM
of Ohio ew rel, Georse L. Lawrence for tte
recovery of such penaltT. Affirmtd.
For decision of the Circuit Court of CsT*-
hoga County, see 8 Ohio C. C. 220.
The facts are stated in the opinioa.
Mr. Georse O. C^reeme for plaintiff ia ^
ror.
Mr. W. H. PoUuuBvs for defcodait ii
error.
*Mr. Justice Harlam delivered tht aftt{<M
ion of the oourt:
This action was commenced Hefbrt s ]•-
tice of the peace of the county of CovslMti,
Ohio, to recover the penalty prescribed V
section 3320 of the Revised Statutes of tksi
state.
That section is a part of a chapter rilstiif
to railroad companies, and, as araesM If
the act of April i3th. 1889, provide*:
"Each company shall cause three. mA
173 u a
1808.
Lakb Shobb & M. S. R. Co. t. Ohio e» reL Lawbbmcb.
88d-a8»
way, of its regular trains carrying passen-
gers, if so many are run daily, Sundays ex-
cepted, to stop at a* station/city, or village
containing over three thousand inhabitant,
for a time sufficient to receive and let off
passengers; if a company, or any agent or
onployee thereof, violate, or cause or per-
mit to be vi(^ated, this provision, such com-
pany, agent, or employee, shall be liable to a
forfeiture of not more than one hundred nor
less than twenty-five dollars, to be recovered
in an action in the name of the state, upon
the complaint of any person, before a jus-
tice of the peace of the county in which the
violation occurs, for the benefit of the gen-
eral fund of the county; and in all cases in
which a forfeiture occurs under the provi-
visions of this section *the company whose
a^t or employee caused or permitted such
violation shall be liable for the amount of
the forfeiture, and the conductor in charge of
sach train shall be held prima facie to have
caused the violation." Laws of Ohio 1889,
Tol. 86, p. 291 ; R. S. Ohio 1890, § 3320.
The case was removed fbr trial into the
court of common pleas of Cuyahoga county,
in which a judgment was rendered against
the railroad company for the sum of one hun-
dred dollars. Upon writ of error to the cir-
cuit court of that county the judgment was
affirmed, and the judgment of the latter
court was affirmed by the supreme court of
Ohio.
The facts upon which the case was deter-
mined in the state court were as follows :
The plaintiff Lawrence is a resident of
West Cleveland, a muncipal corporation of
Ohio having more than three thousand in-
habitants.
The defendant railway company is a cor-
poration organized under the respective laws
of Ohio, New York, Pennsylvania, Indiana,
Michigan, and Illinois, and owns and ope-
rates a railroad located partly within the
village of West Cleveland. Its line extends
from Chicago through those states to Buf-
falo.
On the 9th day of October, 1890, as well
u for some time prior thereto and thereafter,
the company caused to run daily both ways
oyer its road within the limits of West Cleve-
land three or more re^lar trains carrying
passengers. And on Uiat day (which was
not Sunday) it did not stop or cause to be
stopped within that village more than one
of such trains each way, &ng enough to re-
ceive or let off passengers.
On the day above named and after that
date the company was encaged in carrying
both passengers and freight over its railroad,
from Chicago and other stations in Indiana
and Michigan, through each of said several
states, to and into New York, Pennsylvania,
and Ohio and to Buffalo, and from Buffalo
through mid states to Chicago. It did not
on thi& day, nor shortly prior thereto, nor up
to the oommeni^ement of the present suit, run
daily both ways, or either way, over said
road through the village of West Cleveland,
three rqruiar trains, nor more than one reg-
»«j. lalar train each way, carrying passengers
^°J"which were •not engased in interstate com-
merce, or that did not have upon them pass-
178 V. 8.
engers who had paid through fare, and
were entitled to ride in said trains ^oing in
the one direction from the citv of Chicago ta
the city of Buffalo, through the states of In-
diana, Ohio, and Pennsylvania, and those go-
ins the other direction from the city of Buf-
falo . . . through said states to the citj
of Chicago."
On or about the day named the company
operated but one regular train carrying pass-
engers each way, that was not enga^^ in
cari-ying such through passengerp, and that
train did stop at West Cleveland on that day
for a time sufficient to receive and let on
passengers.
The through trains that passed westward-
ly through West Cleveland on the 9th day of
October, 1890, were a limited express train
having two baggage and express cars, one
passenger coach, and three sleepers, from
New York to Chicago; a fast mail train hav-
ing five mail cars, one passenger coach, and
one sleeper, from New York to Chicago; and
a train having one mail car, two baggage and
express cars, four passenger coaches, and one
sleeper, from Cleveland to Chicago. The
trains running eastwardly on the same day
through West Cleveland were a limited ex-
press train having one baggie and express
car and three sleepers, from Cnicago to New
York; a train having one bagsage and ex-
press car, three passenger coaches, and two
sleepers, from Chicago to New York ; a train
having one mail car, two baggage and ex-
press cars, and seven passenger coaches, from
Chicago to Buffalo ; and a train having three
mail cars and one sleeper, from Chicago to
New York.
The average time reauired to stop a train
of cars and receive ana let off passengers is
three minutes.
The number of villa^ in Ohio containinff
three thousand inhabitants through which
the above trains passed on the day named
were thirteen.
The trial court found, as a conclusion of
law, that within the meaning of the Consti-
tution of the United States the statute of
Ohio was ' not a reffulation of commerce
among the states, and was valid until Con-
gress acted upon the subject. This general
^view was affirmed by the circuit court of[2891
Cuyahoga county and by the supreme court
of Ohio.
The plaintiff in error contends that, as
the power to regulate interstate commerce it
vested in Congress, the statute of Ohio in its
application to trains engaged in such com-
merce is directly repugnant to the Constitu-
tion of the United States.
In support of this contention it insists
that an interstate railroad carrier has the
right to start its train at any point in one
state, and pass into and through another
state without takins up or setting down
passengers within the limits of the latter
state. As applied to the present case, that
contention means that the defendant com-
pany, although an Ohio corporation deriving
all its franchises and privileges from that
state, may, if it so wills, deprive the people
along its line in Ohio of the benefits of inter-
state communication by its railroad: in
703
d8»-292
SUPRBMX COUBT OF THB UniTBD STATES.
Oct. TBI.
«kort, that the company, if it saw fit to do
•o, could, beyond the power of Ohio to pre-
Tent it, refuse to stop within that state
trains that started from points berond its
limits, or even trains starting m Ohio des-
tined to places in other states.
In the argument at the bar, as well as in
the printed brief of counsel, reference was
made to the numerous cases in this court ad-
judging that what are called the police pow-
ers of the states were not surrendered to the
general government when the Constitution
was ordained, but remained with the several
stat^ of the ITnion. And it was asserted
with much confidence that while reflations
adopted by competent local authority in or-
der to protect or promote the public health,
the public morals, or the public safety have
been sustained where such regulations only
incidentally affected commerce among the
states, the principles announced in former
adjudications condemn as repugnant to the
Constitution of the United States all local
regulations that affect interstate commerce
in any degree, if established merely to sub-
serve the public convenience.
One of the cases cited in support of this
position is Bennington v. Georgia, 163 U. S.
299, 303, 308, 317, [41: 166, 169, 171, 174],
which involved the validity of a statute of
Georgia providing that "if any freight train
(MO]shall DC run on any railroad in this *state on
the Sabbath Day (known as Sunday) the
superintendent of such railroad com|>any, or
the officer having charge of the business of
that department of the railroad, shall be
liable for indictment for a misdemeanor in
•each county through which such trains shall
pass, and on conviction shall be punished.
• . . Provided, always, That whenever
4tny train on any railroad in this state, hav-
ing in such train one or more cars loaded
with live stock, which train shall be delayed
beyond schedule time, shall not be required
to lay over on the line of road or route
•during Sunday, but may run on to the point
where, by due course of shipment or consign-
' ment, the next stock pen on the route may
t>e, where said animals may be fed and
watered, according to the facilities usually
afforded for such transportation. And it
' eh all be lawful for the freight trains on the
different railroads in this state, running
over said roads on Saturday night, to run
through to destination: Provided, The time
of arrival, accorjiing to the schedule bj which
the train or trains started on the trip, shall
not be later than eight o'clock on Sunday
morning." This court said: **The well-set-
tled rule is that if a statute purporting to
have been enaci^ to protect the public
health, the public morals, or the public safe-
tv, has no real or substantial relation to
those objects, or is a palpable invasion of
rights secured by the fundamental law, it is
the duty of courts to so adjudge, and thereby
give effect to the Constitution."
The contention in that case was that the
running of railroad cars laden with inter-
state freight was committed exclusively to
the control and supervision of the national
fovernment; and that, although Congress
ad not taken any affirmative action upon
T04
the subject, state legislation intermpCiBg
terstate commerce even for a limited ti
only, whatever might be its object and bov-
ever essential such legislation mi|;bt be for
the comfort, peace, or safety of the people
of the state, was a regulation oi interstate
commerce forbidden by the Constltittioa of
the United States.
After observing that the argumeot ia be-
half of the defendant rested upon the crre-
neous assumption that the statute of Geor-
gia was such a regulation of interstate am- ,
meroe as was ^forbidden by the CoitBtitiitaoelSi^
without reference to affirmative aetMD bj
Confess, and not merely a statute enacted
by uie state under its police power, tai
which, althoug!i in some degree affeetiag
interstalSe commerce, did not su b^ond tho
necessities of the case, and Uiere/ore wu
valid, at least until Congress inteims^
this court, upon review of the adju'lgcdcsMi,
said: ''These authorities make it tku
that the legislative enactments of the states
passed under their admitted police pcyvm,
and having a real relation to tbe ilnmn
tic peace, order, health, and aafety of
their people, but which by th^ aeeessvy
operation, affect to some extoit or let
a limited time the conduct of eoumien
among the states, are yet not* mvmlid hj
force alone of the grant of power to Ooa-
gress to regulate such commerce; miid« U Mt
obnoxious to some other constitution^ pre*
vision or destructive of some right tccved
by the fundamental law, arc to he re«peetad
in the courts of the Union untO tb(^ art
superseded and displaced by some act ciOm-
gress passed in execution of the power gnat-
ed to it by the Constitution. Local lavi of
the character mentioned have their sovet
in the powers which the states leaeiiwl aai
never surrendered to Congress, of proridinc
for the public health, the public morali, sad
the public safety, and are not, within tW
meaning of the Constitution, and oonsidtrei
in their own nature, r^g:nlations of iMteh
state commerce simply b^use, for a Umitei
time or to a limited extent, they eorer the
field occupied by those engaged in hw^ eoa-
merce. The statute of Georgia ia not di-
rected against interstate commeree. U m-
tablishes a rule of civil conduct appliesUe
alike to all freight trains, domestic as ««C
as interstate. It applies to the tran^portt-
tion of interstate freight the same role pct^
cisely that it applies to the transportsliei
of domestic freight." Again : '^e art «f
opinion that such a law, although in a )m-
ited degree affecting interstate commeree. k
not for that reason a needless introsioa ep-
on the domain of Federal jurisdictioe. nor
strictly a regulation of interstate euummw.
but, considered in its own nature, b am or
dinary police regulation desipsied to ^ttmt
the well-being and to promote the f«enl
welfare of the people within the •«t*tt br[
which it was established, and therefofrt mt
invalid by force alone of the Coiutitntioa ti
the United States."
It is insisted by counsel that tbeM aai
observations to the same effect ia diffcrtrt
cases show that the police powers of the
states, when exerted with reference to wt^
1891
li4KB Shobb & M. S. R. Co. V. Ohio, e» rd. LAWiiJLKCx.
2y:^-«9«
ten Biore or less connected with interstate
commerce, are restricted in their exercise,
■0 far as the national Gonstitutio^i is con-
eemed, to regulations pertaining to the
health, morals, or safety of the public, and
do not embrace regulations designed merely
to promote the public oonvenience.
This is an erroneous view of the adjudi-
cations oi this court. While cases to which
counsel refer involved the validity of state
laws having reference directly to the pub-
lic health, the public morals, or the pub-
lic safety, in no one of them was there any
occasion to determine whether the police
powers of the states extended to regulations
incidentally affecting interstate commerce,
but which were designed only to promote the
public convenience or the general welfare.
There are, however, numerous decisions by
this court to the effect that the states may
legislate with reference simply to the public
convenience, subject, of course, to the condi-
tion that such Imslation be not inconsistent
with the national Constitution, nor with any
act of Congress passed in pursuance of that
instrument^ nor in derogation of any ri^ht
granted or secured by it. As the question
now presented is one of great importance, it
will he well to refer to some cases of the
latter dass'.
In Oilman v. Philadelphia, SWall.71S,729
[18: 96, 101], whieh involved the validity of
a state enactment authorizing the construc-
tion of a permanent bridge over the Schuyl-
kill river within the limits of Philadelphia,
and which bridge in fact interfered with the
use of the river by vessels of a certain size
whidi had been long accustomed to navigate
it, Uie court said: ''It must not be forgot-
ten Uiat bridges, which are connecting parts
of turnpikes, streets, and railroads, are
means of commercial transportation as well
as navigable waters, and that the commerce
which passes over a bridge may be much
greater than would ever be tranMK>rted on
^]the water it obstructs. *Ii m for the munioi-
pal power to weigh the ooneideraiions which
heUmg to the euhfect, and to decide which
ihaU he preferred, and how far either ehall
he made auhaervient to the other. The
states have always exercised this power, and
from the nature and objects of the two sys-
tems of government they must always con-
tinue to exercise it, subject, however, in all
cases, to the paramount authority of Con-
gress whenever the power of the stiates shall
be exerted within the sphere of the commer-
cial power which belongs to the nation.*'
So, in Pound v. Turck, 95 U. 8. 459, 464
[24: 525, 527], which was a case where ob-
structions— piers and booms — ^had been
placed under the authority of the state of
Wisconsin in the Chippewa river, one of the
navigable waters of the United States, it was
said: "There are within the state of Wis-
consin, and perhaps other states, many
small streams navigable for a short distance
from t^eir mouths in one of the great rivers
of the country, by steamboats, but whose
greatest value in water carriage is as outlets
to sawlogs, sawed lumber, coal, salt, etc. In
order to develop their greatest utility in that
reeard. it is often essential that such struc-
173 U. 8. . U. S.. Book 48.
tures as dams, booms, piers, etc., should be
used which are substantial obstructions to
general navigation, and more or less so to
rafts and barges. But to the legislature of
the state may be most appropriately confid«
ed the authority to authorize these struc-
tures where their use will do more good than
harm, and to impose such regulations and
limitations in their construction and use as
will heat reconcile and accommodate the in-
tercet of all concerned in the matter. And
since the doctrine we have deduced from the
cases recognizes the right of Congress to in-
terfere and control the matter whenever it
may deem it necessary to do so, the exercise
of this limited power mav all the more safely
be confided to the local legislatures."
The same principles were announced in
Escanaha Co, v. Chicago, 107 U. S. 678, 683
[27: 442, 445]. That case involved the va-
lidity of a certain local ordinance regulating
the opening and closins of bridges over the
Chicago river within the limits of the city
of Chicago. Tliat ordinance required the
bridges to be closed at certain hours of the
day, so as not to obstruct the passage over
them of vast numbers of operatives and
other *people going to and from their respec-[294]
tive places of business. It was conceded
that by the closing of the brides at those
hours vessels were obstructed, m their use
of the river. This court in that case said:
"The Chicago river and its branches must
therefore be deemed navigable waters of the
United States, over which Congress under •
its commercial power may exercise control
to the extent necessary to protect, preserve,
and improve their free navigation. But the
states have full power to regulate within
their limits matters of internal police, in-
cluding in that general designation whatever
will promote the peace, comfort, convenience,
and prosperity of their people. This power
embraces the construction of roads, canals,
and bridges, and the establishment of ferries,
and it can generally be exercised more wise-
ly by the s&tes than by a distant authority.
They are the first to see the importance of
sudi means of internal communication, and
are more deeply concerned than others in
their wise management. Illinois is more
immediately affected by the bridges over the
Chicago river and its branches than any
other state, and is more directly concerned
for the prosperity of the city of Chicago, for
the convenience and comfort of its inhabi-
tants, and the growth of its commerce. And
nowhere could the power to control the
bridges in that city, their construction, form
and strength, and the size of their draws,
and the manner and times of using them, be
better vested than with the state or the au«
thorities of the city upon whom it has d^
volved that duty. When its power is exer-
cised so as to obstruct unnecessarily the nav-
igation of the river or its branches. Con-
gress may interfere and remove the obstruc-
tion. If the power of the state and that of
the Federal government come in conflict, the
latter must control and the former yield.
This necessarily follows from the position
given by the Constitution to legislation in
pursuance of it, as the supreme law of the
46 705
894-297
SupRBMJS Court of the United States.
land. But until Congress acts on the sub-
ject the power of the state over bridges
across its navi^ble streams is plenary." It
was consequenUy adiud^^ed that ihe city or-
dinance was not to be deemed such a regu-
lation of interstate commerce as, in the ab-
sence of national legislation, should be
deemed invalid.
(MS] *In Cardwelly, American Bridge Company,
113 U. S. 205, 208 [28: 959, 960], it was held
that a statute of California authorizing a
bridge toUhout a draw or opening for the
passage of veesels to be constructed over a
navigable water of the United States within
that state was not, in the absence of l^sla-
tion by Congress, to be deemed repugnant to
the commerce clause of the Constitution.
The court referring to prior cases, said: '^n
these cases the control of Congress over nav-
igable waters within the stat^ so as to pre-
serve their free navigation under the com-
mercial clause of the Constitution, the power
of the states within which they lie to au-
thorize the construction of brid^ over
them until Congress intervenes and super-
sedes their authority, and the right of pri-
vate parties to interfere with their construc-
tion or continuance, have been fully consid-
ered, and we are entirely satisfied with the
soundness of the conclusions reached. They
recognize the full power of the states to regu-
late within their limits matters of inter-
nal police, which embraces, amone other
things, the construction, repair, and main-
* • tenance of roads and bridges and the estab-
lishment of ferries ; that the states are more
likely to appreciate the importance of these
means of intei*nal conmiunicatlon and to
provide for their proper management than a
government at a distance; and that, as to
bridges over navigable streams, their power
is subordinate to that of Congress, as an act
of the latter body is, bv the Constitution,
made the supreme law of the land ; but that
until Congress acte on the subject their
power is plenary. When Confess acte di-
rectly witn reference to the bridges author-
ized by the state, ite will must control so
far as may be necessary to secure the free
navigation of the streams." The doctrines
of this case were reaffirmed in Huee ▼. OUh
rer, 119 U. S. 643 [30: 487].
In Western Union Telegraph Co, t. James,
162 U. S. 650, 662 [40: 1105, 1109], the
question was presented whether a stete en-
actment requiring telegraph companies with
lines of wires wholly or partly within the
state to receive telegrams, and on payment
of the charges thereon te deliver them with
due diligence, was not a reflation of inter-
state commerce when applied te interstete
telegrams. We held that such enactmente
[M6]did not in any *just sense regulate interstate
commerce. It was said in that case: "While
it is vitelly importent that commerce be-
tween the states should be unembarrassed
by vexatious state regulations regarding it,
yet on the other hand there are many occa-
sions where the police power of the state can
be properly exercised to insure a faithful
and prompt performance of duty within the
limits of the state upon the p»art of those
who are engaged in interstate commerce.
706
We think the statute in questkni is
that class, and in the absence ol mmj '.
tion bv Congress the statute is & TalidV
cise of the power of the stat* over tke
ject"
So, in Richmond d A. JtoOrootf Cb. t. it
A. Patterson Tohaooo Co. 160 U. & Sll« SIS
[42: 759, 761], it was adjudged that & stat*
ute of Vireinia defining the oUigmtaoae «f
carriers who accepted for transportatiiB
anything directed to pointe ol deetiaatMa
beyond the termini of their own liaes er
routes was not» in ite applieataon to
stete business, a regulation of inf
commerce within the meaning <rf the
tution. This court said: ^x>f eoitrae, Im m
latitudinarian sense any
the evidence of a contract relatiiig to
stete commerce may be said to be & I
tion on the ccmtraet itself. Bat this
efiTect, resulting from the lawful
a stete of ite power to determine
in which contracte may be jMroved,
amount to a regulation of interstato earn-
merce." And the court dted in superi if
ite conclusion the case of ChieagOt M. d 8L
P. Railway Co. v. Solan, 169 U. S. 13S, 1J7
[42: 688, 692], which involved the vaUdilj
of stete regulations as to the UabOilj it
carriers of passengers, and in whi^ it wm
said: "They are not in themsdves ■ifela
Uons of interstete conuneroe, althoogk thsf
control in some degree the conduct a^ li^
bility of those engaged in mnA eommmws^
So long as Congress nas not legislated «f«
the particular subject they are rathei to he
regarded as legislation in aid of saelk eoa-
merce, and as a rightful exerdse of the »>
lice power of the state to regulate the rai^
tive righte and duties of all pereooe
porations within ite limits.'^
Now, it is evident that these ease
reference to the health, morals, or aafisty of
the people of the staAe, but only Ho the
lie convenience. They recognised the f^
mentel principle that, outside of the isli A*
rectly occupied by the general goveraneit
under the powers grantM to it by the Oa^
stitution, all questions arisinir withhi a
stete that relate to ite internal order,
involve the public convenience or the
good, are primarily for the deter«_
of the stete, and that ite legisUtive
mente, relating to those subjects, and
are not inconsistent with the stete Co
tion, are to be respected and enforced la tlv
courte of the Union if they do not br thslr
operation directly entrench upon tte sa-
thority of the United Stetes or violate
right protected by the national
The power here referred to is, to use tlv
words of Chief Justice Shaw, the pover *l»
make, ordain, and establish all maaaer ef
wholesome and reasonable laws, ilatfllH^
and ordinances, either with pesaltieB er
without.
as
welfare
subjecte of the same." Com. r. Xlfar, T
Cush. 53, 85. Mr. Cooley well said: "B
cannot be doubted that there is anpk
in the legislative department of the
adopt all necessary legislatioa for the
bhout, not repugnant to the CoastitBliii^
they shall judge to be for the md sibI
Ifare of the Commonwealth aad ef At
t806L
Laxb Shobb <& M. 8. R. Co. y. Omo. ex rel, LAwusNcifi.
397-3U0
pose of enforcing the obligations of railway
eompanies as carriers of persons and goods
to aeoommodate the public impartially, and
to make every reasonable provision for car-
rying with saiety and en>eaition." Cooky's
' Const. Lim. 6th ed. p. 715. It may be that
sndi legislation is not within the "police
power" of a state, as those words have been
sometimes, although inaccurately, used.
But in our opinion the power, whether
called police, governmental, or legislative,
exists in each state, by appropriate enact-
ments not forbidden by its own Constitution
or by the Constitution of the United States, to
regulate the relative rights and duties of all
persons and corporations within its jurisdic-
tion, and thereiore to provide for the public
convenience and the public ^ood. This
power in the states is entirely distinct from
any power granted to the general govern-
menty although when exorcist it may some-
times readi subjects over which national
J^islation can be constitutionally extended.
I8]mien Congress acts with reference *to a mat-
ter confid^ to it by the Constitution, then
its statutes displace all conflicting local reg-
ulations touching that matter, although sucn
regulations may have been established in |
pursuance of a power not surrendered by the
states to the general government. Oihbona
V. Ogden, 9 meat. 1, 210 [6: 23, 73] ; Sin-
not y, Davenport, 22 How. 227, 243 [16:
243, 247] ; Mieeouri, Kansas, d Tewas RaiU
u^y Co. T. Haber, 169 U. 8. 613, 626 [42:
878, 883].
It is not contended that the statute in
Siestion is repugnant to the Conbtitution of
e United States when applied to railroad
trains carrying passengers between points
within the state of Ohio. But the conten-
tion is that to require railroad companies,
even those organ izMl under the laws of Ohio,
to stop their trains, or any of them carrying
interstate passengers at a particular place
er places in the StaXe for a reasonable time,
•0 directly affects commerce among the
states as to bring the statute, whether Con-
gress has acted or not on the same subject,
into conflict with the grant in the Constitu-
tion of power to r^ulate such commerce.
That such a regulation may be in itself rea-
sonable and may promote uie public conven-
ience or subserve the general welfare is, ac-
cording to the argument made before us, of
no consequence whatever; for, it is said, a
state r^fulation which to any extent or for a
limited time only interrupts the absolute,
continuous freedom of interstate commerce
is forbidden by the Constitution, although
Congress has not legislated upon the partic-
ular subject covered by the state enactment.
If these broad propositions are approved, it
will be difficult to sustain the numerous
judgments of this court upholding local reg-
ulations which in some degree or only ind-
dentally affected commerce amon^ the states,
but which were adjudged not to oe in them-
selves regulations of interstate commerce,
but within the police powers of the states
and to be respected so long as Congress did
iH>t itself eover the subj^ by legislation.
Cooley T. Philadelphia Port Wardens, 12
How. 299. 320 [13: 996, 1005]; Sherlock v.
173 U. 8.
AUing, 93 U. S. 99, 104 [23: 819]; Morf;an*a
L. d T, R, d 8, 8, Co. V. Louisiana Dd. of
Health, 118 U. S. 455, 463 [30:237. 241;
Smith V. Alabama, 124 U. S. 465 [31 ; 508] ;
Nashville, O, d 8t, L, Railway Co, v. Ala*
bama, 128 U. S. 96, 100 [32 : 352, 354, 8
Inters. Com. Rep. 238] ; Henninglon v. Oeor-
ffia, above cited; Missouri, Kansas, and
Texas Ry, Co, v. Baber, above cited; and
New York, •N. H, d H. Railroad Co, v. Newi299J
York, 165 U. S. 628, 631, 632 [41: 853, 854],
were all cases involving state regulations
more or less affecting interstate or forei^
commerce, but which were sustained upon the
ground that they were not directed against
nor were direct burdens upon interstate or
foreign commerce; and having been enacted
only to protect the public safety, the public
health, or the public morals, and having a
real, substantial relation to the public ends
intended to be accomplished thereby, were
not to be deemed absolutely forbidden be-
cause of the mere grant of power to Congress
to regulate interstote and foreign commerce,
but to be regarded as only incidentally af-
fecting such commerce, and valid until
superseded by legislation of Congress on the
same subject.
In the case last cited — New York, N, H, d
H, Railroad Co, v. New York—the question
was as to the validity, when applied to in-
terstate railroad trains, of a statute of New
York forbidding the heating of passenger
cars in a particular mode. This court said:
"According to numerous decisions of this
court sustaining the validity of state regu-
lations enacted under the police powers of
the state, and which inciaentall^ affected
commerce among the states and with foretsn
nations, it was clearly competent for the
state of New York, in the absence of nation-
al legislation covering the subject, to forbid
under penalties the heating of passeneer cars
in that state by stoves or furnaces kept in«
side the cars or suspended therefrom, al-
though such cars may be employed in inter-
state commerce. While the laws of the
states must yield to acts of Congress passed
in execution of the powers conferred upon it
by the Constitution (Gibbons v. Ogaen, 9
Wheat. 1, 211 [6: 23, 73]), the mere grant
to Congress of the power to regulate com-
merce with foreign nations and among the
states did not, of itself and without legisla-
tion by Congress, impair the authority of
the states to establish such reasonable regu-
lations as were appropriate for the protec-
tion of the health, the lives, and the safety
of their people. The statute in question had
for its object to protect all persons traveling
in the state of New York on passenger cars
moved by the agency of steam, as^inst the
perils attending a particular mode of heat-
ing such cars. . . . *The statute in ques-[300]
tion is not directed against interstate com-
merce. Nor is it within the necessary mean-
ing of the Constitution a regulation of com-
merce, although it controls, in some degree,
the conduct of those engaged in such com-
merce. So far as it may affect interstate
commerce, it is to be regarded as legisla-
tion in aid of commerce and enacted under
the power remaining with the state to resru-
707
800-304
SuPBBMB Court of thb Unitbd Statbs.
Utte the relatiye rights and duties of all i>er-
sons and corporations within its limits.
Until displaced by such national legislation
as Congress may rightfully establish under
its power to regulate commerce with foreign
natiozis and among the several states, the
validity of the statute, so far as the com-
merce clause of the Constitution of the
United States is concerned, cannot be ques-
tioned."
Consistently with these doctrines it can-
Bot be adjudged that the Ohio statute is un-
constitutioniu. The power of the state by
appropriate l^slation to provide for the
public convenience stands upon the same
ground precisely as its power bjr appropriate
leffislation to protect the public health, the
public morals, or the pubuc safety. Wheth-
er legislation of either kind is inconsistent
witii any power granted to the general gov-
ernment is to be determined by the same
rules.
In what has been said we have assumed
that the statute is not in itself unreasona-
ble; that is, it has appropriate relaUon to
the publie convenience, does not go beyond the
necessities of the case, and is not directed
against interstate commerce. In Hannibal
d 8t, «/. Railroad Co. v. Buaen, 95 U. S. 465,
473 [24: 527, 531], reference was made to
some decisions of state courts in relation to
statutes prohibiting the introduction into a
state of cattle having infectious diseases, and
in which it was contended that it was for the
legislature, and not for the courts, to deter-
mine whether such l^slation went b^ond
the danger to be apprehended, and was there-
fore something more than the exertion of the
police power. This court said tluit it could
not concur in that view; that as the police
power of a state cannot obstruct either for-
eign or interstate conmierce ''beyond the ne-
cessity for its exercise," it was the duty of
the courts to guard vi^lantlv against "need-
[•OlJIese intrusion^' upon tne field *oommitted by
the Constitution to Congress. As the eases
above cited show, and as appears from other
cases, the reasonableness or unreasonable-
ness of a state enactment is always an ele-
ment in the general inquiry by the court
whether such legislation encroaches upon na-
tional authority, or is to be deented a legiti-
mate exertion of the power of the state to
protect the public interests or promote the
public convenience.
In our judgment the assumption that the
statute of Ohio was not directed against in-
terstate commerce, but is a reasonable pro-
vision for the public convenience, is not un-
warranted. The requirement that a rail-
road company whose road is operated with-
in the state shall cause three, each way, of
its regular trains carrying passengers, if so
many are run daily, Sundays excepted, to
stop at any station, city, or village of three
thousand inhabitants, for a time sufficient
to receive and let off passengers, so far from
being unreasonable, will greatly subserve the
public convenience. The statute does not
stand in the way of the railroad company
running as many trains as it may choose be-
tween Chicago and Buffalo without stopping
at intermediate points, or only at very large
708
cities on the route, if in the
named in the statute the required woMmitr •(
trains stop at each place oontainiBg tktm
thousand inhabitants l<MigeBoii|gh to reeeiie
and let off passengers. It teems fioM tkt
evidence that the average time reooirai fte
stop a train, and receive and let off mski-
gers is onl^ three minutes. Gertsiaij, the
state of Ohio did not endow tiM pi^*»»»^ is
error with the rights of a eorpomtni lor
the purpose simply of snbserftiag tlia eoavss-
ience of passenaers traveling tkroag^ the
state between points outside m its tsiiituii.
The question is no longer an open oae," tUs
court said in Cherokee N^ium t Boutherm
Kansas RaUtoay Co. 135 U. 8. 641, 657 \Uz
295, 302], "as to whether a railrosd is & pub-
lic highway, established primarily lor tht
convenience of the people, and to
public ends, and theraore subject to
mental oontool and r^gulaticm. It is
it is a public highway and sobjoet to
control that the corporation br wUck it is
constructed and bT which it istobemsiwtstorf
may be permitted, under legislative wuKtitm,
to appropriate property *for the purpose of stW
right of way, upon making just eoamMs-
tion to the owner, in the mode preocripod ly
law." In the construction and mmimtmmMm
of such a highway under publie Miwtieo tht
corporation really performs & fnmdtkm if
the state. Smyth v. Ames, 160 U. a 4M, itf
[42: 819, 848]. The plainttfT in error ms-
cepted its charter subjeet nernossrily to the
condition that it wovld oonform to sock
reasonable regulations as the state might
from time to time establish, that were ost
in violation of the supreme law ci the UmL
In the absence of legislation l^ CoogreH^ ft
would be going very far to ludd that saeh so
enactment as the one before us was ia it>
self a regulation of interstate
was for the state to take into
all the circumstances affecting
travel within its limits, and, as far as
ticable, make such regulatioos as wc
all who miffht pass over the road in .
It was entitled, of course, to profvide for fhs
convenience of persons dedriag to travri
from one p<4nt to another in the state so 4^
mestic trains. But it was not bound to f^
nore the convenience of thoee who dnJred ts
travel from placee in the state to plae» kr
yond its limits, or the oonvenienee of tkMi
outside of the state who wished to eomt ^
to it Its statute is in aid of iatifstsle
commerce of that character. It was asl
compelled to look only to the eonmiaetsf
those who desired to pass through the ftsftt
without stopping. Any other view of tks
relations between the state and the eorfv**
tion created by it would mean that tl* A-
rectors of the corporation could mswy ^
affairs solely with reference to the iatsr^e
of stockholders, and without taking late m^
sideration the interests of the gmenl fs^
lie It would mesn, not obIt thst seek A-
rectors were the exclusive judges of tb« ■b>-
ner in which the oorporatloo AsM ij^
charge the duties imposed upon H is tkt *"
terest of the public, but that the
could so regulate the running of
state trains as to build up does and
1896.
Laxb Bhobb <& M. S. R. Co. v. Ohio, ex reL Lawksncs.
3U2-305
at the ends of its line or at favored points,
and by that means destroy or retard the
^wth and prosperity of those at interven-
ing points, it would mean also that, beyond
the power of the state to prevent it, the de-
fendant railway company could run all its
Jtraias *throu^h the state without stopping at
any city within its limits, however numerous
its poi>ulation, and oould prevent the people
along its (oad within the state who desired
to go beyond its limits from using its inter-
state trains at all, or only at such points as
the company diose to designate. A principle
that in its application admits of such results
cannot be sanctioned.
We perceive in the legislation of Ohio no
basis for the contention that the state has
invaded the domain of national authority or
impaired any right secured by the national
Constitution. In the recent case of Jones v.
BHm, 165 U. S. 180, 182 [41: 677, 678], it
was adjudged that embraced within the po-
lice powers of a state was the establishment,
maintenance, and control of public high-
ways, and that under such powers reasona-
ble regulations incident to the right to es-
tablish and maintain such highways could
be established by the state. And the state
ol Ohio by the statute in question has done
nothing more than to so regulate the use of
a public highway established and main-
tained under its authority as will reasona-
bly promote the public convenience. It has
not unreasonably obstructed the freedom of
commerce among the states. Its regulations
apply equally to domestic and interstate
rauroads. Its statute is not directed
against interstate commerce, but only inci-
dentally affects it. It has only forbidden
one of its own corporations from discrimi-
nating unjustly against a large part of the
public, for whose convenience that corpora-
tion was created and invested with author-
ity to maintain a public highway within the
limits of the state.
It has heem suggested that the conclusion
reached by us is not in accord with Ball v.
De Cuir, 95 U. S. 485, 488 [24: 647, 648],
Wabash, St. L. d P, Railway Co. v. Illinois,
118 U. S. 657 [30:244, 1 Inters. Com. Rep.
31], and Illinois Central Railroad Company
V. IlUnois, 163 U. S. 142, 163, 154 [41 : 107,
111], in each of which cases certain state
enactments were adjudged to be inconsistent
with the grant of power to Congress to
regulate commerce among the states.
In Hall V. De Cuir a statute of Louisiana
relating to carriers of passengers within
that s^ite, and which prohibit^ any dis-
crimination against passengers on account
*Jof race or color, was •held, looking at its nec-
essary operation, to be a regulation of and
a direct burden on commerce among the
states, and therefore unconstitutional. The
defendant who was sued for damages on ac-
count of an alleged violation of that statute,
was the master &nd owner of a steamboat
tnrolled and licensed under the laws of the
United States for the coasting trade, and
plying as a regular packet for the transpor-
tation of frdght and passengers between
New Orleans, Louisiana, and Vicksburff,
Mississippi, touching at the intermediate
173 V. S.
landings both within and without Louis-
iana as occasion required. He insisted that
it was void as to him because it directly
regulated or burdened interstate business.
The court distinctly recognized the princi-
ple upon which we proceed in the present
case, that state legislation rdating to com-
merce is not to be deemed a regulation of in-
terstate conmierce simply because it may to
some extent or under some circumstences af-
fect such commerce. But, speaking by
Chief Justice Waite, it said : "We think it
ma^ be safely said that stete legislation
which seeks to impose a direct burden upon
interstate commerce, or to interfere direct-
ly with ite freedom, does encroach upon the
exclusive power of Coujgrees. The stetute now
under consideration, m our opinion, occu-
Eies that position. It does not act upon the
usiness throush the local instruments to
be employed after coming within the state,
but directly upon the business as it comes
into the state from without or ffoes out from
within. While it purporte oni^ to control
the carrier when engaged within the stete,
it must necessarily influence his conduct to
some extent in the management of his busi-
ness throughout his entire voyage. His dis-
position 01 passengers teken up and put
down within the stete, or teken up within
to be carried without, cannot but affect in
a greater or less degree those teken up with-
out and brought within, and sometimes those
teken up and put down without. A passen-
ger in the cabin set apart for the use of
whites without the state must, when the
boat comes within, share the accommodations
of that cabin with such colored persons as
may come on board afterwards, if the law is
enforced. It was to meet just such a case
that the commercial clause in the Constitu-
tion was adopted. The •river Missls8ippi[306]
S asses through or along the borders of ten
ifferent stetes, and its tributeries reach
many more. . . . No carrier of passen-
gers can conduct his business with satisfac-
tion to himself or comfort to those employing
him, if on one side of a state line his passen-
gers, both white and colored, must be per-
mitted to occupy the same cabin, and on the
other be kept separate. Uniformity in the
regulations oy which he is to be governed
from one end to the other of his route is a
necessity in his business, and to secure it
Congress, which is untrammeled by stete
lines, has been invested with the exclusive
legislative power of determining what such
regulations shall be. If this statute can be
enforced against those engaged in interstete
commerce, it may be as wdl against those
engaged in forei|ni ; and the master of a shin
clearing from New Orleans for Liverpool,
having passengers on board, would be com-
pelled to carry all, white and colored, in the
same cabin during his passage down the
river, or be subject to an action for damages,
'exemplary as well as actual,' by anyone
who felt himself aggrieved because he had
been excluded on account of his color." The
import of that decision is that, in the ab-
sence of legislation by Congress, a stete
enactment may so directly and materially
burden interstate commerce as to be in itself
709
8a5>S0S
SnPBBSCB COUBT OP THE UnuBO ISTATKS.
Oct. T
A regulation of such commerce. We cannot
perceive that there is any conflict between
the decision in that case and that now made.
The Louisiana statute as interpreted by the
court, embraced every passenger carrier com-
ing into the state. The Ohio statute does
not interfere at all with the management of
the defendant's 'trains outside of the state,
nor does it apply to all its trains coming in-
to the state. It relates only to the stopping
of a given number of its trains within the
state at certain points, and then only lonff
enough to receive and let off passengers. R
80 manifestly subserves the public con-
venience, and is in itself so just and reason-
able, as wholly to preclude the idea that it
was, as the Louisiana statute was declared to
be. a direct burden upon interstate com-
merce, or a direct interference with its free-
dom.
The judgment in Wabash, 8t. L. d P. Bail-
way Co. V. Illinoia is entirely consistent with
[S06}the views herein expressed. *A statute of
Illinois was construed bj the supreme court
of that state as prescribinjo^ rates, not simply
for railroad transportation beginning and
ending within Illinois, but for transporta-
tion l^tween points in Illinois and points in
other states under contracts for continuous
service covering the entire route through sev-
eral states. I&ferring to the principle con-
tained in the statute, this court held that if
restricted to transportation beginning and
ending within the limits of the state it might
be very just and equitable, but that it could
not be applied to trans^rtation through an
entire series of states without imposing a di-
rect burden upon interstate commerce, for-
bidden by the Constitution. In the case be-
fore us there is no attempt upon the part of
Ohio to regulate the movement of the defend-
ant company's interstate trains throimhout
the whole route traversed by them. It ap-
plies only to the movement of trains while
within the state, and to the extent simply of
recjuiring a given number, if so many are
daily run, to stop at certain places long
enough to receive and let off passengers.
Nor is Illinois Central Railroad Company
▼. Illinois inconsistent with the views we
have expressed. In that case a statute of
Illinois was held, in certain particulars, to
be unconstitutional (althougn the l^isla-
tion of Congress did not cover the subject)
as directly and unnecessarily burdeninff in-
terstate commerce. The court said: 'The
effect of the statute of Illinois, as construed
and applied by the supreme court of the
state, IS to require a fast mail train carry-
ing interstate passengers and the United
States mail from Chicago, in the state of Illi-
nois, to places south of the Ohio river, over
an interstate highway established by author-
ibr of Congress, to delay the transportation
of such passengers and mails by turning
aside from the direct interstate route, and
running to a station three miles and a half
away from a point on that route, and back
again to the same point, and thus traveling
eeven miles which form no part of its
course, before proceeding on its way; and to
do this for the purpose of discharging and
receiving passcnjrers at that station, for the
710
interstate travel to and from whi^ ai ■
admitted in this case, the railway compaj
furnishes *other and ample accommedadea^fl
This court is unanimously of opinion tkat '
this requirement is an unconstitutional hini
ranee and obstruction of interstate eoa-
merce, and of the passage of the mails of ths
United SUtes." Again: ^'It mar wcD be,
as held by the courts of Illinois, taat tbe sr-
rangement made by the company witli
poFtoffice departmcnit of the United ST
cannot have the effect of abrogating a
sonable police regulation of the state
a statute of the state, idiich
interferes with the speedr
rupted carriage of the mails of the UaiM
States, cannot be considered as a.
Soliee r^fulation." Hie statute
oes not require the defendant
turn any of its trains from th^r
terstate route. Besides, it is dear tkat ths
particular question now presented was not
involved in Illinois Central ItoUroad Osm-
pany v. lUinois, for it is stated in the eonrt^
opinion that "the question whether a staft-
ute which merely required interstate nil-
road trains, without going oat of ikm
course, to stop at county seats, wonU hs
within the constitutional power of the stal^
is not presented, and cannot be decided, vpm
this record." The above extracts sho^ tht
full scope of that decision. Any donbt vpm
the point is removed by the rsfeteace ■»
to that case in Gladson ▼. Mimmmotm, IM JL
S. 427, 431 [41: 1064,1066].
It has been sug^ted also that the rtatsli
of Ohio is inconsistent with section 6258 if
the Revised Statutes of the United StsAsi
authorizing every railroad company in tie
United States operated by steam, its
ors and assigns, " to carry upon and
road, boats, bridges, and ferries all
enters, troops, government snppUes,
freight, and property on th«r way
any state to another state, and t» f^
ceive compensation therefor, and te ess*
nect with roads of other statsa so as ts
form continuous lines for the traasporlatim
of the same to the place of destinatioa.'* Ii
Missouri, Kansas^ d Tewas R«Hw&y t. Bek^,
169 U. S. 613, 638 [42: 878,887], aborecitrf.
it was held that the authority given by tksi
statute to railroad compsjiiei to mny
"freight and property^ over their resMctivt
roads from one state to another state a Mt
authorize a railroad companr to carry iatp
a state *cattle known, or which by dnt fihv
Smce might be known, to be in nidi eoadl-
on as to impart or communieate diwsw tt
the domestic cattle of such state: ani tisl
a statute of Kansas prescribing as a nk if
civil conduct that a person or eerporatiss
should not bring into that state cstth
known, or which bv proper diUgnce coeM ks
known, to be capable of eonnnnnieatisg ^
ease to domestic cattle, eould not be ii|isiM
as bevond the necessities of the ease, asr m
interfering with any right intandsd to ks
given or recognised by se^on 6SS8 of thtBr
vised Statutes. And we adjndge that te
above statutory provision was not IsUsM
to interfere with the anthority of the iIbIm
to enact such reirulations. ilth rrtpni ■*
1T3 v. a
1908.
Lakb Shobb <& M. 8. R. Co. y. Ohio, ex rel, Lawrence.
SJ6-aii
least to & railroad corporation of its own cre-
ation, aa were not directed against interstate
commerce, but which only incidentally or re-
motely affected such commerce, and were not
in themselves regulations of interstate com-
merce, but were designed reasonably to sub-
fenre the convenience of the public.
Imaginary cases are put for the purpose
of showing what might be done b^ the state
tliat wovld seriously interfere with or dis-
criminate against interstate commerce, if
the statute in question be upheld as consist-
ent with the Constitution of the United
States. Without stopping to consider wheth-
er the illustrations reierred to are apposite to
the present inquiry, it is sufficient to say that
it is always easy to suggest extreme cases
lor the application of any principle embodied
in a judicial opinion. Our present judgment
has reference only to the case before us, and
when other cases arise in which local stat^
utes are alleged not to be legitimate exer-
tions of the police powers of the state, but
to infringe upon national authority, it can
then be aetermined whether they are to be
controlled by the decision now rendered. It
would be impracticable, as well as unwise,
to attempt to lay down any rule that would
govern every conceivable case that might be
su^ested l^ ingenious minds.
^r the reason stated the judgment of the
Supreme Court of Ohio is affirmed,
09] *Mr. Justice Sliiraa filed the following
dissentixig opinion:
The Constitution of the United States, in
its eighth section, confers upon Congress the
power to regulate commerce with foreign na-
tions, and among the several states, and
with the Indian tribes, and to establish post-
offices and poet roads.
In pursuance of this power, Congress, on
June 15, 1866, enacted that "e7ery railroad
company in the United States, whose road is
operated by steam, its successors and as-
signs, ia hereby authorized to carry upon and
over its road, boats, bridges, and ferries, all
pasfiengers, troops, government supplies,
mails, freight, and property on their way
from any state to another state, and to re-
ceive compensation therefor, and to connect
with roads of other states so as to form con-
tinuous lines for the transportation of the
same to the place of destination.'* Rev.
Stat. 9 6268.
By the act of February 4, 1887, entitled
•*An Act to Regulate Commerce" (24 Stat,
at L. 379), Congress created the Interstate
Commerce Comnnssion, and enacted that the
provisions of that act should "apply to any
common carrier or carriers engaged in the
transportation of passengers or property
wholly by railroad, or partly by railroad and
partly by water when both are used, under a
common control, management, or arrange-
ment, for a continuous carriage or shipment
from one state or territory of the United
States, or the District of Columbia, to any
other state or territory of the. United States
. . . ;" and that it should be unlawful for
any common carrier subject to the provisions
of the act, to enter into any combination,
rontract, or agreement, expressed or implied,
173 U. S.
to prevent, by change of time schedules, car-
riage in different cars, or by other means or
devices, the carriage of freight from being
continuous from the place of ship^sent to the
place of destination.
It was said by this court in California r,
California Pacific R, R, Company, 127 U. 8.
39 [32: 157, 2 Inters. Com. Rep. 163], that—
'*It cannot at the present ^y be doubted
that Congress, under the poW^r to regulate
commerce among the several states, as well
as to provide for ^postal accommodations and[3 10}
military exigencies, had authority to pass
such laws. The power to construct, or to
authorize individuals or corporations to con-
struct, national highways and bridges from
state to state, is essential to the complete
control and regulation of interstate com-
merce. Without authority in Congress to
establish and maintain such highways and
bridges, it would be without authority to
regulate one of the most important adjuncts
of commerce. This power in former times
was exerted to a very limited exten^ — ^the
Cumberland or National road being the most
notable instance. Its exertion was but little
called for, as commerce was then mostly con-
ducted by water, and many of our statesmen
entertained doubts as to the existence of the
power to establish ways of communication
by land. But since, in consequence of the
expansion of the country, the multiplication
of its products, and the invention of rail-
roads and locomotion by steam, land trans-
portation has so vastly increased, a sounder
consideration of the subject has prevailed,
and led to the conclusion that Congress has
plenary power over the whole subject. Of
course, tne authority of Congress over the
territories of the United States, and its pow-
er to grant franchises exercisable therein,
are, and ever have been, undoubted. But the
wider power was very freely exercised, and
much to the general satisfaction, in the cre-
ation of the vast system of railroads connect-
ing the East with the Pacific, traversing
states as well as territories, and employing
the agency of state as well as Federal corpo-
rations.'*
In the case of Cincinnati,New Orleans, and
Texas Pacific Railway Co. v. Interstate Com-
m^ce Commission, 162 U. S. 184 [40: 935,
5 Inters. Com. Rep. 391], the validity of the
act of February 4, 1887. was sustained, and
its provisions were held applicable even to
a railroad company whose entire road was
within tiie limits of the state of its creation,
when, by agreeing to receive ^isoods l)v virtue
of foreign through bills of lading and to par-
ticipate in through rates and charges, it be-
came part of a continuous line of transpor-
tation.
By an act approved February 23, 1869, the
state of Louisiana forbade common carriers
of passengers to make discrimination *cc .ic-l3111
count of race or color. A person of color
took passage upon a steamboat plying be-
tween New Orleans and Vicksburg, in the
state of Mississippi, and was carried from
New Orleans to her place of destination
within Louisiana, and being refused accom-
modations, on account of her color, in the
cabin specially set apart for white persons,
811-813
SupuKMB Court of thb Unitbd States.
brought an action in the district court for
the parish of New Orleans, under the provi-
Bions of the act above referred to. By way
of defense it was insisted that the statute
was void in respect to the matter complained
of, because, as to the business of the steam-
boat, it was an attempt to regulate cmnmeroe
between the states, and therefore in conflict
with the Constitution of the United States.
The state coiirt held that the statute was
Talid, and the case was brought to this court,
where the judgment of the state court was
reversed. The reasoning of the court is so
closely applicable to the case before us that
we quote a considerable part of the opinion:
"We think that it may be safely said that
state legislation which seeks to impose a di-
rect burden upon interstate commerce, or to
interfere direcUy with its freedom, does en-
croach upon the exclusive power of Congress.
The statute now under consideration, in our
opinion, occupies that position. It does not
act upon the business through the local in-
strui^nts to be employed after coming with-
in the state, but directly upon the business
as it comes into the state from without, or
goes out from within. While it purports only
to control the carrier when engaged within
the state, it must necessarily Influence his
conduct to some extent in the management
of his business tiiroughout his entire voyage.
His disposition of passengers taken up and
put down within the state, or tidcen up with-
in to be carried without, cannot but affect
in a greater or less degree those taken up
without and brought within, and sometimes
those taken up and put down without. A
passenger in the cabin set apart for the use
of whites without the state must, when the
boat comes within, share the accommoda-
tions of that cabin with suck colored per-
sons as may come on board afterwards, if the
law is enforced.
[912] *"It was to meet just such a case that the
commercial clause m the Constitution was
adopted. The river Mississippi passes
through or along the borders of ten different
states, and its tributaries reach* many more.
The commerce upon these waters is immense,
and its regulation clearly a matter of nation-
al concern. If each state was at liberty to
regulate the conduct of carriers while within
its jurisdiction, the confusion likely to fol-
low could not but be productive of great in-
convenience and unnecessary hardships.
Each state could provide for its own passen-
gers and regulate the transportation of its
own freight regardless of the interests of
others. Nay, more, it could prescribe rules
by which the carrier must be governed with-
in the state in respect to passengers knd
property brought from without. On one side
of tne river or its tributaries he might be re-
quired to observe one set of rules, and on the
other another. Commerce cannot flourish
in the midst of such embarrassments. No
carrier of passengers can conduct his busi-
ness with satisfaction to himself or comfort to
those employing him, if on one side of a state
line his passengers, both white and colored,
must be permitted to occupy the bame cabin,
and on the other be kept separate. Uniform-
ity in the regulations by which he is to be
718
fte
governed from one end to tlie
route is a necessi^ in his ~
secure it Congress, which is
state lines, has been invested with tibe
sive legislative power of determiniii^
such regulations shall be. If this atalate
can be enforced against thow encaged a in-
terstate commerce, it may as wtS be agaiMt
those engaged in foreign ; and the mater ef
a ship clearing from New Orleans lor liver-
pool, having passengers on board* would be
compelled to carry ul, white mad eolored, ia
the same cabin during his paasue damn Ik*
river, or be subject to an action ror
exemplary as well as actual, bj
felt himself aggrieved because he
excluded on account of his color.
"This power of regulation maj be exer-
cised without legislation as wdl aa witk it
By refraining from action, Congreae ia ii-
feet adopts as its own r^gulatiooa tiMSi
which the common law, or the efril lav
where that prevails, has provided *for th^Ui
government of such business, aad Hum
which the states, in the regulatioa of tkeir
domestic concerns, have established affeetaif
commerce, but not relating it witkn the
meaning of the Constitution. In faet, eo^
gressional l^slation is only neeetsary to
cure defects in existing laws, as tli^ arc £»•
covered, and to adapt such laws to mtw d»>
velopments of trade. As was said fay Ifr.
Justice Field, speaking for the etmrt im Ws^
ton V. MisaauH, 01 U. 8. 282 [23: 350] : 1a>
action by Congress is equivalent to a dedan^
tion that interstate commerce shall iiiiiii
free and untrammeled.' Applying that pri»>
ciple to the circumstances of this caiae, eo»
gressional inaction left the captain of tlv
steamboat to adopt such reasonable mles aad
regulations for the disposition of
upon his boat, while pursuing k^r
within Louisiana or without, as
him most for the interest of all
The statute under which this suit is bioftbt,
as construed by the state court, seeks to tsfct
awa^ from him that power so long as bs is
within Louisiana ; and while reoogaisiig te
the fullest extent the principle whirh •■►
tains a statute unless its uneonsUlut h — Hty
is clearly established, we think this stataft^
to the extent that it requires those eufageJ ia
the transportation of passengers aoMMtf tbs
states to carry colored passengers is Loii»'
iana in Ihe same cabin with whitM it «>
constitutional and void. If the pohUe fosd
requires such legislation, it must eoaii rna
Congress, and not from the states.* ffeBc
De Cuir, 95 U. S. 485 [24: 547].
I am not able to think that this dseWM
is satisfactorily disposed of, in the priadi^
opinion, by citing it, and then dif iiriiyi>
with the observation that it b not pmtmmi
that tiiere is any conflict between it aai tki^
now made.
The state of Illinois enacted that If vtT
railroad corporation shall charge, eoOect v
receive for the transportation oif siy p^
senger or freight of any descriptioa mfm Hi
railroad, far any distance witkm tkt «M^
the same Or a greater amount of toO or «»•
pensation than is at the same tfane AMTp^
collected, or received for the transeortsfi*
189a
Laxb Shobb & M. 8. R. Co. v. Ooio, ex rel, Lawhsncu.
aid-815
in the fluna direction of any passenger or
like gnantitj of freight, of the same class,
over a greater distance of the sante road, all
>]*giidi cueeriminatinff rates, clxarec^, collec-
tions, or receipts, whether made directly or
bw the meane of a rebate, drawback, or other
shift or evasion, shall be deemed and taken
against any such railroad company as prima
facie evidence of unjust discrimination pro-
hibited by the provisions of the act. The
act further provided a penalty of not over
$5,000, awl also that the party aggrieved
should have a right to recover three times
the amount of damages sustained, with costs
and attorney's fees. Rev. Stat. 111. chap.
114, S 126.
An action to recover penalties under this
statute was brought by Illinois against the
Wabash, St. Ix>uis, and Pacific Railwav
Company, an niinois corporation in which
the allegations were that the railroad com-
pany haid charged Elder & McKinney for
transporting goods from Peoria, in the state
of Illinois, to New York City, at the rate of
fifteen cents per hundred pounds for a car-
load; that on the same day the railroad com-
IMinyhad charged one Bailey for transporting
similar goods from Oilman to New York City
at the rate of twenty-five cents per hundred
pounds per car-load; that the carload for
Elder 4 McKinney was carred eighty-six
miles further in the state of Illinois than the
other carload of the same weight; that this
freight, being of the same class in both in-
stances, and over the same road, except as to
the difTerence in the distance, made a dis-
crimination forbidden by the statute, wheth-
er the charge was regarded for the whole dis-
tance from the terminal point in Illinois to
New York City, or the proportionate charge
for the haul within the state of Illinois.
Judgment went against the company in the
couHs of the state of Illinois, and the case
was brouffht to this court.
It w&s here strenuously contended that, in
the absence of congressional legislation
a state legislature has the power to regulate
the charges made by the railroads of the
state for transporting goods and passengers
to and from places within the state, when
such goods and passengers are brought from
or carried to pointe without the stete, and
are therefore in the course of transportation
from any state or to another state. And of
that view were several justices of this court,
who, in the opinion filed on their behalf,
^.citcd the very cases •that art cited and relied
on in the majority opinion in the present
case.
But the court did not so hold, and its rea-
soning is so plainly applicable te the ques-
tion now before us, it may well be quoted at
8ome length.
After having reviewed some of the pre-
vious cases, and having quoted those pas-
sages in the opinion of the court in Hall v.
De Ca<r, 95 U. S. 486 [24: 647], which have
hereinbefore been quoted, Mr. Justice Miller,
giving ih» opinion of the court, proceeded as
follows:
The applicabflity of this language te the
case now under consideration, of a contin-
tions transportation of goods from New York
173 V. 8.
to central Illinois, or from the latter to New
York, is obvious, and it is not ea^ to sat
how any distinction can be made. Whatever
may be the instrumentalities by which this
transportation from the one point to the
other is effected, it is but one voyage, aa
much so as that of the steamboat on the Mis-
sissippi river. It is not the railroads them-
selves that are regulated by this act of the
Illinois legislature, so much as the charge
for transportetion ; and, in the language just
cited, if each one of the states through whose
territories these goods are transported can
fix ite own rules ior prices, for modes of
transit, for terms and modes of delivery,
and all the otlier incidente of transporta-
tion to which the word 'regulation' can be
applied, it is readily seen that the embar-
rassmente upon interstate transportetion, as
an element of interstete commerce, might be
too oppressive to be submitted to. 'It was,'
in the language of the court cited above, 'to
meet just such a -case that the commerce
clause of the Constitution was adopted.'
"It cannot be too strongly insisted upon
that the right of continuous transportetion
from one end of the country to the other is
essential in modern times to that freedom of
commerce from the restrainte which the
stetes might choose to impose upon it, that
the commerce clause was intended to secure.
This clause giving to Congress the power to
regulate commerce among the stetes and
with foreign nations, as this court has said
before, was amoi^ the most importent of the
*subjecte which prompted the formation of[319]
the Constitution. Cook v. Pennsylvania, 97
U. S. 674 [24:1018]; Brown v. Maryland,
12 Wheat. 446 [6: 688]. And it would be
a very feeble and almost useless provision,
but poorly adapted to secure the entire free-
dom of commerce among tiie stetes which
was deemed essential to a more perfect union
by the framers of the Constitution, if, at
every stage of the transportation of goods
and chattels through the country, the stete
within whose limits a part of this transpor-
tetion must be done could impose regulations
concerning the price, compensation, or tax-
ation, or any other restrictive regulation in-
terfering with and seriously embarrassing
this commerce.
"The argument on this subject can never
be better stated than it is by Chief Justice
Marshall in Gibbons v. Ogden, 9 Wheat. 1,
195, 196 [6:23, 69 70]. He there demon-
strates that commerce among the states, like
commerce with foreign nations, is necessarily
a commerce which crosses state lines and ex-
tends into the states, and the power of Con-
gress to regulate it existe wherever that
commerce is found. Speaking of navigation
as an element of commerce, which it is. only
as a means of transportetion now largely su-
perseded by railroads, he says: 'The power
of Congress, then, comprehends navigation
within the limite of every state in the Union,
so far as that navigation may be, in any
manner, connected with commerce with
foreign nations, or among the several stetee,
or with the Indian tribes. It may, of con*
sequence, pass the jurisdictional line of New
York and act upon the very waters, the F"'^-
713
:;itt-3iy
bUPKEMK CoUltT OF TDK UnITKD btATESi,
Oct. Tksm,
son river, to which the prohibition now un-
der confideration applies/ So the same
t>ower may pass the line of the etate of Ill-
inois pjid act upon its restriction upon the
right of transportation extending over seF-
eral itates, including that one.
* xn the case of Western U, Telegraph Oo.
-. Tewas, 105 U. S. 460 [26: 1067], the court
^eld that a telegraph company occupies the
same relation to commerce as a carrier of
messages that a railroad company does as a
carrier of goods, and that both companies
are instruments of commerce, and their busi-
ness is conunerce itself. ... In the case
of Welton V. Missouri, 91 U. S. 276 [23:
{•17J347], it was said: *It will not be denied
that that portion of commerce with foreigpi
nations ana between the states which oonsi&rts
in the transportation and exchange of com-
modities is of national importance,andadndt3
and requires uniformity of regulation. The
very object of investing this power in the
5 general government was to insure this uni-
ormity against discriminating state legis-
lation.^ And in County of Mobile ▼. Ktm-
hall, 102 U. S. 702 [26: 241], the same idea
is very clearly stated in the following lan-
guage: 'Commerce with foreign countries
and among the states, strictly considered,
consists in intercourse and traffic, including
in these terms navigation and the trans-
portation and transit of persons and prop-
erty, as well as the purchase, sale, and ex-
change of commodities. For the regulation
of commerce, as thus defined, there can be
only one system of rules, applicable alike to
the whole country; and the authority which
ean act for the whole country can alone adopt
such a system. Action upon it by separate
states is not^ therefore, permissible. Lan-
guage affirming the exciusiveness of the
frant of power over commerce as thus de-
ned may not be inaccurate, when it would
be so if applied to legislation upon subjects
which are merely auxiliary to commerce.'
. . . We must therefore hold that it is
not, and never has been, the deliberate opin-
ion of a majority of this court, that the stat-
ute of a state which attempts to regulate the
fares and charges by railroad companies
within its limits, for a transportation whidi
eonstitutes a part of commerce among the
states, is a valid law.
"Let us see precisely what is the degree of
interference with the transportation of prop-
erty or persons from one state to another
which this statute proposes. A citizen of
Kew York has gooas which he desires to
have transported by the railroad companies
from that city to the interior of the state of
Illinois. A continuous line of rail over
which a car loaded with these ffoods can be
carried, and is carried habitually, connects
the place of shipment with the place of de-
livery. He undertakes to make a contract
with a person engaged in the carrying busi-
ness at the end of this route from whence the
goods are to start, and he is told by the car-
{918]rier, 1 am free to make a fair *and reason-
able contract for this carriage to the b'ne of
the state of Illinois, but when the car which
parries these goods is to cross the line of that
^♦nte, pursuing at the same time this contin-
714
uous trade, I am met by a lasw «f
which forbids me to nuuks %
concerning this transportatkni witUm tfeai
state, ana subjects me to eertala rate ky
which I am to be governed as to the
which the same railroad eompuij im
nois may make, or has made;, whh
to other persons and other plaees of deliv-
ery.' So that while that carrier mi^t he
willing to carry these goods from tbe city ef
New York to the city of PecHia at tbe rateef
fifteen cents per hundred pounds, he is ael
permitted to do so because the Illiiioit rail-
road company has already chamd at the
rate of twen^-five cents per huii£ed
for carriage to Gilman, m Dlinoia,
eighth-six miles shorter than the
Peoria.
''So also, in the present ease, the
com, the principal product of the
desiring to transport it from Peoria, im
inois, & New York, finds & railroad
pany willing to do this at the rate <rf
cents per hundred pounds for a carload, b«t
he is compelled to pay at the rate of ti
five cents per hundred poimds beean
railroad company has received tnm a
residing at Gilman twenty-fiv« etna Mr
hundred pounds for the trajuportatdoa m a
carload of the same dass of fraght ov«r As
same line of road from Gilman to New Yecfc.
This is the result of the statute of Uttaoss^ia
its endeavor to prevent unjust dlsuiiaiia'
tion, as construed by the supieme eovrt if
that state. The effect of it is, that
may be the rate of transpor^tSon per
charged hv the railroad eompaaj froHi QB-
man to Sheldon, a distanoe of tfrcatr-tknt
miles, in which the loading and mloaaiw if
the freight is the largest expense incaiiedfcy
the railroad company, the same rate per wS»
must be charged from Peoria to the cttj el
New York.
'niie obvious iniustice of siidi
this, which railroad companies are
by heavy penalties to confoim to, in nnri
to cmnmerce among the states, wIicb anorf
to transportation which indudes nUaeis it
a long line of carriage* thnmgh Mv«airS]l(
states shows the value of the eowsUtutw— I
provision idiich confides the power of
lating interstate conmieroe to the
of the United States, whoee enlarged
the interests of all the statea, and of Ot
roads concerned, better fits It to
just and equitable rates.
"Of the justice or propriety of the yris*
ciple which lies at the foundauon of the 9^
nois statute, it is not the provlaee of tUi
court to speak. As lestileUid to a traaspir'
tation which begins and ends within tht ti»
Its of the state , It may be vht j«t •■'
equitable, and it certainly is the piwims if
the state legislature, to determine thai Mo-
tion. But when It Is attempted to afW tt
transportation through an entire mnm if
states a principle of this kind, and each «•
of the states shall attempt to evtaUM te
own rates of transportatiofi, fts ova w^
ods to prevent discrimination In rata, er It
permit it, the deleterious Infineaes ma At
ifrcedom of commerce among the wtaim saf
upon the tranfit of good^ thrmwfc tW»
18ML
Lakb Shore & M. S. R. Co. y. Ohio, ex rel. Lawubnce.
819-823
cannot be OTerestimated. That this
•pedes of reflation is one which must be,
ii estmblishea at all, of a general and nation-
al character, and cannot be safely and wise-
ly remitted to local rules and local regula-
tions, we think is clear from what has al-
ready been said. And if it be a regulation
of ecnnmerce, as we think we hare
demonstrated it is and as the Illinois
court concedes it to be, it must be of
that national character, and the regulation
can only appropriately exist by general rules
and pnnczples which demand that it should
be done by the Congress of the United States
under the commerce clause of the Constitu-
tion." Wahcish, 8t. LouiSt d Pac, Railway
Co. T. lUinoia, 118 U. S. 657 [30: 244, 1 In-
ters. Com. Rep. 31].
This case, so recent and so elaborately con-
sidered, has not received adequate attention
in iht opinion of the court in the present
The legislature of Illinois by the statute of
Vebmary 10, 1851, incorporated the Illinois
Central Railroad Company, and empowered
it to construct and maintain a railroad with
one or more tracks, from the southern ter-
minus of the Illinois & Michigan Canal to a
point at the city of Cairo, with the same to
the city of Chicago on Lake Michigan, and
BO]also a branch *via the city of Galena to a
point on the Mississippi river opposite the
town of Dubuque, in tne state of Iowa. The
Chicago, St. Ix>uis, & New Orleans Railroad
Company was a consolidated company
formed under the legislatures of the states
of Louisiana, Mississippi, Tennessee, and
Kentucky, whose line extended from New Or-
leans to the Ohio river, built a railroad
bridffe across the Ohio river to low-water
mark on the Illinois side, to which the ju-
risdiction of the state of Kentucky extended.
The north end of this brid^ was at a part of
Cairo about two miles north of the station of
the Illinois Central Railroad Company in
that city; and the peculiar conforma-
tion of the land and water made it imprac-
ticable to put the bridge nearer the junction
of the Ohio and Mississippi rivers. By this
bridge the road of the Illinois Central Rail-
road Company was thereby connected with
that of the Chicago, St. Louis, & New Or-
leans Railroad (%mpany. Thereafter the
Illinois Central Railroad Company put on a
daily fast mail train, to run from Chicago to
New Orleans, carrying passengers as well as
the United States mail, not going to or stop-
ping at its station in Cairo ; but local trains
adequate to afford accommodations for pas-
sengers to or from Cairo were run daily on
that part of the railroad between the Bridge
Junction and Cairo. By a subsequent act of
1889 it was enacted by the l^slature of 111-
in<»s that "every railroad corporation shall
cause its passenger trains to stop upon its
arrival at each station advertised by such
corporation as a place for receiving and dis-
charging passengers upon and from such
trains, a sufficient length of time to receive
and let off such passengers with safety: Pro-
f^idedf All regular passenger trains shall stop
a sufficient length of time at the railroad sta-
a73 U. 8.
tion of county seats to receive and let off
passengers with safety."
In April, 1891, a petition was filed in the
circuit court for Alexander county, in the
state of Illinois, by the county attorney in
behalf of the state, alleging that the Illinois
Central Railroad Company ran its south-
bound fast mail train through the city of
Cairo, two miles north of its station in that
city, and over a bridge across the Ohio river,
connecting its road with other roads south of
that river, without stopping *at its station iii[321|
Cairo, and praying for a writ of mandamus
to compel it to cause all its passenger trains
coming into Cairo to be brought down to
that station, and there stopped a sufficient
length of time to receive and let off passen-
gers with safety.
The railroad company contended that the
statute did not require its fast mail train to
be run to and stopped at its station in Cairo,
and that the statute was contrary to the Con-
stitution of the United States, as interfering
with interstate commerce and with the
carrying of the United States mail. The
court granted the writ of mandamus, and
the railroad company appealed to the supreme
court of the state, which aflSrmed the judg-
ment, and held that the statute of Illinois
concerning the stoppage of trains obliged the
defendant to cause its fast mail train to be
taken into its station at Cairo, and be
stopped there long enough to receive and let
off passengers with safety, and that the stat-
ute, so construed, was not an unconstitution-
al interference with interstate commerce, or
with the carrying of the United States mails.
The case was brought to this court, where
the judgment of the supreme court of Illi-
nois was reversed in a unanimous opinion
delivered by Mr. Justice Gray. Illinois Cen-
tral R, R. Co. V. Illinois, 163 U. 8. 142 [41 :
107]. After reciting several statutes of Ill-
inois and of Congress, particularly the act
of June 16, 1866, whierein Congress, for the
declared purpose of facilitating commerce
among the several states and the postal and
military communications of the United
States, authorized every railroad company in
the United States, whose road was operated
by steam, to carry over its road, bridges, and
ferries, as well passengers and freight as
government maili^, troops, and supplies,
from one state to another, and to connect, in
any state authorizing it to do so, with roads
of other states, so as to form a continuous
line of transportation, the court proceeded
to say:
"The effect of the statute of Illinois, as
construed and applied by the supreme court
of the state, is to require a fast mail train
carrying interstate passensrers and the
United States mails from Chicago,, in the
state of Illinois, to places south of the Ohio
river, over an interstate highway established
♦by authori^ of Congress, to delay the trans-[32S]
portation of such passengers and mail, by
turning aside from the direct interstate route,
and running to a station three miles and a
half away from the point on that route, and
back again to the same point, and thus trav-
eling seven miles which form no part of its
course, before proceeding on its way; and
715
822-a24
SUPREMB COITBT OP THB UnTTBD STATE8.
Oct. liKxa,
to do this for the purpose of discharging and
receiving passengers at that station, for the
interstate travel to and from which, as is ad-
mitted in this case, the railroad company fur-
nishes other and ample accommodation. Thii
court is unanimously of opinion that this
requirement is an unconstitutional hind-
rance and obstruction of interstate com-
merce and of the passage of the mails of the
United States. Upon 8ie state of facts pre-,
sented by this record the duties of the Illi-
nois Central Railroad Company were not
confined to those which it owed to the state
of Illinois under the charter of the com-
pany and other laws of the state, but in-
cluded distinct duties imposed upon the
corporation by the Constituuon and laws of
the United States.
"The state may doubtless compel the rail-
road company to perform the duty imposed
by its charter, of earring passenffere and
foods between its termini within the state,
tut so long, at least, as that duty is ade-
quately performed by the company the
state cannot, under the guise of compelling
its performance, interfere with the perform-
ance of paramount duties to which the com-
pany has been subjected by the Constitution
and laws of the United States.
"The state may make reasonable regular
tions to secure the safety of passengers, even
on inter&tate trains, while wiUiin its bor-
ders. But the state can do nothing which
will directly burden or impede the interstate
traffic of the company, or impair the useful-
ness of its facilities for such traffic."
Beyond the bare allegation that the case
of Illinois Central R, R. Co, y. Illinois is not
inconsistent with the views expressed in tiie
present case, no attempt is made to compare
or reconcile the principles involved in the
two cases. It is, indeea, said that the Ohio
statute "does not require the defendant com-
pany to turn any of its trains from their di-
rect interstate route;*' and the remark of the
[S88]court in the Illinois case is *cited, in which
it was said "the question whether a statute
which merely re<^uired interstate railroad
trains, without going out of their course, to
stop at county seats, would be within the con-
stitutional power of the state, is not pre-
sented and cannot be decided upon this rec-
ord." Reference is also made to the case of
aio(Uon V. Minnesota, 160 U. S. 427 [41:
1004], AS removing any doubt as to the scope
of the decision in the Illinois case.
But an examination of that case will show
thst no question was presented or decided as
to the power of a state to compel interstate
railroad trains to stop at all county seats
through which they might pass. On the con-
trary, the court was careful to say, distin-
?uisn{ng it from the Illinois case: ''But in
he cane at bar the train in question ran
wholly within the state of Minnesota, and
•ould nave stopped at the county seat of Pine
county without deviating frokn its course;"
and to point out that the statute of Minne-
•ota expressly provided that 'this act shdU
not apply to through railroad trains entering
this sin is from any other state, or to trans-
eon tinmial trains of an^ railroad,*'
On what, then, does the court's opinion re-
716
Ij to distinguish the Illinois case from tkt
present case? Merely that the through train
in the one case was obliged to go ont of its
direct route some three or four miles, while
in the other the obligation is to stop at tovaa
through which the trains pass. ButwhAt waa
the reason why this court held that tbc II&
nois statute was void as an interf erenee with
interstate commerce? Was not the rfalf
thus caused the sole reaaon? And is there
any difference between a delay earned ky
having to go a few miles ont of a ^hsti
course in a single instance, and one caaaai
by having to stop at a number cdf nxbi-
portant towns? Probably the excankm to
the Cairo station did not detain the miaeis
train more than half an hour ; and it is a4>
mitted in the present case that the
of villages in Ohio through which the
gassed were thirteen, and that the a
ime required to stop a train of ears and
ceive and leave off passengers wonld be thret
minutes at each station, to say nothing ot the
time expended in losing and in rcgainiBf
headway. Besides the delays thus canscc
there would be many *inoonyenienoea to
railroad companies and to the traveliBg
lie occasion^ by interfering with
tions made for the comfort and salc^ ef
through passengers.
Western Union Telegraph Co, r. Jmmes,
162 U. S. 650 [40: 11051, is dted by the eovt
as sustaining its present position. Bat that
was a case m wnich the legislaUon of the
state was of a nature that was in aid ol the
performance of the duty of the company that
would exist in the absence of any sudi stai*
ute, and was in nowise obstructive of its dnty
as a telegraph company, and the dectsiea i
this court was expr^sly put upon that
groimd. It was pointed out, in the optekn,
that the legislation in question conld in ws
way affect the conduct of the company witk
r^rd to the performance of its dntke in
other states, and that such important parti»>
ular distinguished the case from Hall v. 0*
Cuir, 05 U. S. 485 [24: 511], and from WaiS-
em Union Telegraph Co, v. Pearflefow, Itt
U. S. 347 [30: 1187, I Intera.
306].
Richmond d A, R, R, Co, v. R, A,
Tobacco Co, 169 U. S. 311 [42: 759], is dtol
as adjudging that a statute of Vliginia de-
fining the obligations of carriers who aecsl
for transportation anything directed to
points of destination beyond the tcfmiai ef
their own lines or routes was not, in Its a^
plication to interstate business, a
of interstate commerce within the
of the Constitution. But the holding ia
case simply was that the statute in
did not attempt to substantially rtgolato er
oontrol interstate shipments, but ncrcKy »•
tablished a rule of evidence, ordaiaiair the
character of proof by which a carrier aay
show that, although it receiwd gond* tor
transportation beyond its own line, nevtrth*'
less by agreement its liability was Uaitri to
its own line, that the lawful exercise kf e
state of its power to determine the for« to
which contracts may be proved dosi art
arooimt to a regulation of intervtatt mt-
merce. The reasoninff of the ccwrt w««t
ITS U.i^
laoa.
Lakb Shobb & M. 8. R. Co. v. Ohio, ex rel, Lawbbkce.
824^37
upon the aasumptioii that if the statute was
not merely a rule of evidence, but an attempt
to reffulate interstate commerce, it would
have heen void.
Reference is also made, in the principal
opinion, t» Missouri, Kanaaa, and Texas
RaUway ▼. Haher, 169 U. S. 613 [42: 878].
6]There an attack was made on the validity of
legislation of the state *of Kansas, subjecting
any person or persons who should bring into
that state any cattle liable or capable of
communicating "Texas or splenetic /ever" to
any domestic cattle of Kansas, to a civil ac-
tion for damages. In such an action it was
contended on oehalf of the defendant that
the Kansas statutes were an interference
with the freedom of interstate commerce,
and also covered a field of action actually
occupied b^ congressional legislation known
as the Animal Industry Act. But it ap-
peared that the Kansas act under which the
lotion was brought was passed In 1885 and
amended in 1891, and that Congress had pre-
viously invited the authorities of the states
and territories concerned to co-operate for
the extinction of contagious or conmiunicable
cattle diseases. Act of May 29, 1884, 23 Stat.
at L. 31. And accordingly a majority of
this court held that the statutory provisions
of Kansas were not inconsistent with the ex-
ecution of the act of Congress, but consti-
tated an exercise of the co-operation desired.
Otherwise the case would have fallen within
the ruling in Hannibal d 8i. J, Railroad Oo,y.
Hveen, 95 U. S. 465 [24: 527], where a simi-
lar statute of the state of Missouri, passed
before the legislation by Congress, and pro-
hibitinff the bringinp^ of Texas cattle into
the state of Missouri between certain times
fixed by the statute, was held to be in con-
flict with the commerce clause of the Consti-
tution, and not a legitimate exercise of the
police power of the state.
The case of Bennington v. Oeorgiat 163 U.
8. 299 [41 : 166], demands notice. In it was
involved the validity of what is known as the
Sunday law of Georgia. That statute for-
bade the runninff in G^rffia of railroad
freight trains on the Sabbath Day. The su-
Kreme court of Georgia held the statute to
e a regulation of internal police, and not of
commerce, and that it was not in conflict
wiUi the Constitution of the United States
even as to freight trains pasing through the
state from and to adjacent states, and laden
exclusively with freight received on board be-
fore the trains ent^ed Georgia, and con-
signed to points beyond its limits.
It was snown in that case that it had been
the policy of Georgia, from the earliest
period of its history, to forbid all persons,
under penalties, from using the Saboath as
W]a day of •labor and for pursuing their ordi-
nary callings, and that the legislation in
question was enacted in the exercise of that
policy. It was said in the opinion of the su-
preme court of Geor^a, which was brought
to this court for review, that "with respect
to the selection of the particular day in each
week which has been set apart by our stat-
ute as the rest day of the people, religious
views and fedlnffs may have had a control-
ling influence. We doubt not that they did
178 U. 8.
I have ; and it is notable that the same views
and feelings had a very powerful influence
in dictating the policy of setting apart anv
day whatever as a day of enforced rest."
And it waib said in the opinion of this court
that "in our opinion there is nothing in the
legislation in question which suggests that
it was enacted with the purpose to regulate
interstate commerce, or with any other pur-
pose than to prescribe a rule of civil duty for
all who, on the Sabbath Dav, are within the
territorial jurisdiction of the state."
If, as has often been said, Christianity is
part of the common law of the several states,
and if the United States, In their legislative
and executive departments throughout the
country, since the foundation of the govern-
ment, have recognized Sunday as a day of
rest and freedom from compulsory labor,
then such a law as that of Georgia, being
based upon a public policy common to all the
states, might be sustained.
But if put upon the ground now declared
in the opinion of the court in the present
case, namely, as an exercise of the police
power of the state, and, as such, paramount
to the control of Congress in administering
the commerce clause of the Constitution,
then it is apparent, as I think, that the de-
cision in Hennington v. Georgia was wrong,
and the judges dissenting in that case were
right
For if, as a mere matter of local policj;^
one state mav forbid interstate trains from
running on the Christian Sabbath, an ad-
joining state may select the Jewish, or Sev-
enth Day Sabbath as the day exempt from
business. Another state may choose to con-
secrate another day of the week in commem-
oration of the liatter Day Saint and Prophet
who founded such state, as the proper day
for cessation from daily labor. •Or, what i8[32TI
more probable, one or more of the states may
think fit to declare that one day in seven is
not a sufficient portion of the time that
should be exempted from labor, and estab-
lish two or more days of rest. The destruc-
tive effect of such inconsistent and diverse
legislation upon interstate commerce, car-
ried on in trains riinning throughout the en-
tire country, is too obvious to require state-
ment or illustration.
But whatever may be said of the decision
in Hennington v. Georgia, it is, as I think,
quite apparent that the Ohio legislation now
under consideration cannot k^ reconciled
with the principles and conclusions of the
other cases citect.
The principal facts of this case as found >
by the trial court were: **That the defend-
ant company is a corporation organized un-
der the laws of the states of New York, Penn-
sylvania, Ohio, Indiana, Michigan, and Illi-
nois, and that its railroad is operated from
Chicago to Buffalo; that said defendant
was, on and prior to October 9, 1890, and
has been ever since, engaged in carrying pas-
sengers and freight over said railroad,
through and into each of said several states,
and is and was then engaged in the business
of interstate commerce, both in the carriage
of passengers and freight from, into, and
through said states; that said defendant
717
327-^^0
SUPKEMB COUBT OF THB UnITED StATE«^
Oct.
did not on said 9th day of October, 1890.
nor shortiy prior thereto, or since, up to the
time of the commencement of this suit, run
daily, both wavs or either way, over said
road through the village of West* Cleveland,
three rqg^ar trains nor more than one re^^-
lar train each, carrying passengers, which
were not engaged in interstate commerce,
and that did not have upon them passengers
who had paid through fare, and were enti-
tled to riae on said trains gping in the one
direction from the city of Cmcago to the eii^
of Buffalo, and those TOine in the other di-
rection from the city of Buffalo through said
states to the city' of Chicago; that on or
about the said day the defendant operated
but one re^ar train carrying passengers
each way, that was not engaged in carrying
such through passengers ; and said train did
stop at West Cleveland, on the day afore-
said, for a time sufficient to receive and let
off passengers ; that the through trains that
[SS8] passed through West ClevelaiM*on the said
day were train No. 1, limited express with
two express earn, one coach, and tnree sleep-
ers, from New York to Chicaeo; train No.
11, fast mail, with five Unitea States mail
cars, one coadi, and sleeper, from New York
to Chicago; train No. 21 had one United
States mail car, two baggage and express
cars, four coaches, and one sleeper, from
Cleveland to Chicago (these were western
trains) ; that the eastern trains were limit-
ed express No. 4, with one baggage and ex-
press car and three sleepers, from Chicago to
New York; train No. 6, with one baggage
and express car, three coaches, and two
sleepers, from Chicago to New York; train
No. 24, with one United States mail, two
baggage and express cars, and seven coaches,
from Chicago to Buffalo; train No. 14, with
three United States mail cars and one deeper
from Chicaffo to New York. That the aver-
age time of delay necessarily required to
stop a train of cars and sufficient time to
receive and let off passengers would be three
minutes; and that the number of cities and
villages in the state of Ohio, containing
three thousand inhabitants each, through
which the aforesaid trains of the defendant
passed on said day, were thirteen."
It is, therefore, a conceded fact in the case
that the through trains which the l^gisla^
ture of Ohio sedcs to compel to stop at pre-
scribed villages and towns in that state are
engaged in carrying on interstate commerce
by the transportation of freight and passen-
gers. It is obvious, further, that such
trains are within section 5258 of the Ee-
vised Statutes of the United States, author-
izing such railroad companies "to carry up-
on and over its road, boats, bridges, ana fer-
ries, all passengers, troops, government sup-
plies, mails, freight, and property on their
way from any state to another state, and to
receive compensation therefor, and to con-
nect with roads of other states so as to form
continuous lines for the transportation of
the same to the place of destination."
It ia also plain that the defendant rail-
road company and such of its trains as were
engaged in interstate commerce are within
the scope and subject to the retrulations oon-
718
tained in the "Act to R^oUte
approved February 4« 1887, creating tke Ib-
teratate Commerce Commiasion.
*Tbe theory on which passenger traiaa taCM
traverse several states, or the entire eooti-
nent, are prepared, is neceoaarily mud
ly different from that followed in
ordinary trains to do a wayside
There must be provision ror bL
night and for furnishing meala.
that eadi and every passenger may
the accommodation for which he payi» ^
seats are sold In advance and with nifwi—
to the number of through paaseagerm. TW
enable such trains to maintain the speed de-
mandedy the number of the cars for taA
train must be limited, and th^ are adf«»
tised and known as "limited'^ traiBt. A
traveler purchasing tickets on
has a rignt to expect that he will be
to his joumey^a end in the ahorteet i
time consist^t vrith safety. Tttt raHraal
companies ccmipete for busmeae try lioldie|
out that they run the fastest tratni tm
those most certain to arrive on time. A
company which by its own
under coercion of a state legislature.
its through trains at every villaffe,
soon lose its through bnalneea, to ue ^€m «f
the company and the detriment of the tratdl-
inff public.
Nor must the necessity ol the apeady tn»
sit of the United States maila be orerlookal
The government has not thoo^t fit to beiU
and operate railroads over wnich to tni»>
port its mails, but relies upon the nat af
roads owned by state oorpormtioBa operatic
connecting roads. And it appearm, tram tka
findings in this case, that ue dafamUart
through trains are engaged bf the JRV*^"^
ment in the transportation of its bm&. TW
business, public and private^ that 6Bfmk
on hourly and dailT conununieation by aai.
is enormous, and it would be intolenklt tf
such necessary rapidity of inter ooniae
be controlled and trammeled by ~
like that in question.
It was pointed out in HaU t. De Cmt thik
although the statute of Louisiana, «UA
sought to regulate the manner in vUek
white and colored passengers should ba mt^
ried, waa reatrictea by its own tema to tki
limito of the atate, vet that anch nc«tatiM
necessarily affected ateamhoata nnniit
through and beyond the atate^ beeanaa warn
regulations might change at
line.
*A similar but mudi
would be occasioned by attempting by
legislation to interfere with the mam
of through trains. If, for instaneiy ani m
is often the case, the throvigk trana wnt
full of through pasaengera. there fPonM la»
advantage to local travel ror them to ilif i^
the way stations, for there would be n» n«
or accommodation for the nnraiiional
gers. Nor would that dilBcuI^ be ofe«Mi
y attaching to each train eoechea §arwmt^
the way atations. Such additional
would impede the apeed of the tkiee^
traina and interfere with the hnriaai ef ■•
local trains.
In Wahaah, 8t. L. d P, BmUm Oiwfi^
1898.
Lakb Shobb ft M. S. R. Co. y. Omo, ex rU, La^viienxk.
^80-338
?. lUinoia, it was said, replying to the argu-
ment that the state statute applied in terms
on]v to transportation within the state:
*^hateyer may be the instrumentalities by
which this transportation from the one point
to the other is ^ected, it is but one voyage,
18 much so as that ol the steamboat on Uie
Mississippi river. It is not the railroads
themselves that are regulated by this act of
the Illinois legislature so much as the charce
for transportation, and if each one of the
states through whose territories these goods
are transported can fix its own rules for
prices, for modes of transit, for times and
modes of deliveiy, and all the other incidents
of transportation to which the word 'regu-
lation' can be applied, it is readily seen that
the embarrassments upon interstate trans-
portation, as an element of interstate com-
meree, might be too oppressive to be submit-
ted to. ... As restricted to a transporta-
tion whidi htflDa and ends within the limits
of the state, it, the regulation, may be very
jost and equitable, and it certainly is the
province of the state legislature to determine
that question. But when it is attempted to
tp^ly to transportation through an entire
•enes a principle of this kind, and each one
of the states shall attempt to establish its
own rates of transportation, its own meth-
ods to prevent discrimination in freights, or
to permit it, the deleterious influence upon
the freedom of commerce among the states
tnd upon the transit of goods through tiiose
states cannot be overestunated."
In lUinois Central R, R. Co, v. Illinois,
L]stress was justly *laid on the manifest pur-
pose of Congress to establish a lailroaa in
the center of the continent, connecting the
▼aters of the Great Lakes with those of the
Gulf of Mexico, for the benefit of interstate
commerce, as well as of the military and
postal departments of the government.
A similar purpose has been manifested by
Oongress in the legislation hereinbefore re-
ferred to^ bv authorizing the formation of
continuous lines of transportation, by creat-
ing a permanent conunission to supervise the
transactions of railroad companies so far as
they affect interstate commerce, and by em-
ploying such continuous and connecting
roads for the transportation of its mails,
troops, and supplies.
These views oy no means result in justi-
fyii^ the railroad company defendant in
failing to supply the towns and villages
through which it passes with trains ade-
quate and proper to transact local business,
ouch failure is not alleged in this case, nor
found to be a fact by the trial court. And
if the fact were otherwise, the remedy must
be found in suitable legislation or legal pro-
ceedings, not In an enactment to convert
throu^ into local trains.
Some observations may be ventured on the
reasoning employed in the opinion of the
court It is said:
In what has been said we have assumed
that the statute is not in itsdf unreasonable.
In our judgment this assumption is not un-
warranted. The requirement that a rail-
road company whose road is operated within
tbe state shall cause three, each way. of its
178 U. 8.
regular trains carrying passengers, if so
many are run daily, Sundays excepted, to
stop at any station, city, or village of three
thousand inhabitants, for a time sufficient to
receive and let off passengers, so lar from be>
ing unreasonable, will subserve the public
convenience."
But the question of the reasonableness
of a public statute is never open to the
courts. It was not open even to tne supreme
court of the state of Ohio to say whether the
act in question was reasonable or otherwise.
Much less does the power of the legislature
of Ohio to pass an act regulating a railroad
corporation depend upon the judgment or
opinion of this court as to the reasonable-
ness of such an act.
*And again : "It was for the state of Ohio[S38]
to take into consideration all tbe circum-
stances affecting passenger travel witiiin its
limits, and, as far as practicable, make such
regulations as were just to all who might
pass over the road in question. It was not
bound to ignore the convenience of its own
people, whether traveling on this road from
one point to another within the state, or
from places in the state to places beyond its
limits, or the convenience of those outside
the state who wished to come into it, and
look only to the convenience of those who
desired to pass through the state without
stopping."
It was, I respectfully submit, just such
action on the part of the state of Ohio, and
just such reasoning made to support that
action, that are forbidden by the Constitu-
tion of the United States and by the deci-
sions of this court hereinbefore cited. If
each and every state through which these
interstate highways run could take into con-
sideration lul the circumstances affecting
passenger travel within its limits, and make
such regulations as, in the opinion of its leg-
islature, are "just and for the convenience
of its own people" then we should have re-
stored the confusion that existed in commer-
cial transactions before the adoption of the
Constitution, and thus would be overruled
those numerous decisions of this court nulli-
fying state legislation proceeding on such
propositions.
Again it is said:
"Any other view of the relations between
the state and the corporation created by it
would mean that the directors of the corpor-
ation could manage its affairs solely with
reference to the interests of stockholders, and
without taking into consideration the in-
terests of the general public. It would mean,
not only that such directors were the exdu-
sive judges of the manner in which the cor-
poration should discharge the duties imposed
upon it in the interest of the public, but that
the corporation, by reason oi beinff engaged
in interstate commerce, could build up cities
and tewns at the ends of its line, or at far
vored pointe, and by that means destroy or
retard the growth and prosperity of inter-
vening pointe. It would mean that the de-
fendant railway company could, beyond the
•power of the state to prevent it, run all ofl'WI
its trains through the stete without fftop-
719
333-685
SUPRSMB COCllT OF THE UmITED STATES.
Oct.
ping at any city within its limits, howeyer
numerous the population of such cities."
I am unable to perceiye, in the views that
prevailed in the Louisiana and Illinois cases,
any foundation whatever for such observa-
tions. In those cases it was expressly con-
ceded that, in the r^g^ation of oommeroe
within the state and in respect to the man-
«ffement of trains so enj^ed, the authority
of the state legislature is supreme. And in
the argument in behalf of the defendant
company in this case a similar admission is
made.
It is fallacious, as I think, to contend that
the Ohio legislation in question was enacted
to promote the public interest. That can
onl^ mean the public interest of the state of
Ohio, and the xeason why such legislation
is pernicious and unsafe is because it is
based upon a discrimination in favor of lo-
cal interests, and is hostile to the larger
public interest and convenience involved in
interstate commerce. Practically there may
be no real or considerable conflict between
the public interest that is local and that
which is general. But, as the state legisla^
tures are controlled by those who represent
local demands, their action frequently re-
sults in measures detrimental to the inter-
ests of the greater public, and hence it is
that the people of the United States have, by
their Constitution and the acts of Con|press,
removed the control and regulation of inter-
state commerce from the stote legislatures.
Countenance seems to be given, in the
opinion of the majority, to the contention
that the power of Congress over the regula-
tion of interstate commerce is not exclusive,
by the observation that "the plaintiff in er-
ror accepted its charter subject necessarily
to the condition that it would conform to
such reasonable regulations as the state
might, from time to time, establish, that
were not in violation of the supreme law of
the land. In the absence of legislation by
Congress, it would be going very far to hold
that such an enactment as the one before us
is in itself a regulation of interstate com-
merce when applied to trains carrying pas-
sengers from one state to another."
|934] *But it has already been shown that Con-
gress has legislated expressly in relation to
interstate trains and railroads, has made
rules and regulations for their control, and
has established a tribunal to make otiier
rules and regulations.
Besides, as was observed by Mr. Webster,
in his argument in (Hhhons v, Ogden, 9
Wheat 17 [6:27]:
"The state may legislate, it is said, when-
ever Congress has not made a plenary exer-
cise of its power. But who is to judge
whether Congress has made this plenary ex-
ercise of power? It has done all that it
deemed wise; and are the states now to do
whatever Congress has left undone? Con-
ffrees makes such rules as in its judgment
the ease requires, and those rules, whatever
th^ are, oonstitute the system. All useful
regulations do not consist in restraint; and
tnat which Congress sees fit to leave free is
a part of the regulation as much as the
rest.
TSO
Attention is called to the fact HmX ia the
cases of HdU v. De Cuir, WaboMh, 8t.L.4F.
Railioay Company ▼. lUmoig^ and lUmoit C,
R, B. OoflMpony ▼. lUimoig, thcra wwe ■» ne-
cifio regulations bj CoogreM as to mtmmm
separate aiwnmmodatioiis for wUte nl
black piHBcmgerB, as to rates of firsi|^ Is ht
charged on Interstate commeree, or ss it
stopping through trains at
places; yet legisEktiim bj the stetes os
subjects was held void by this
pass on the field of intarstate
The power, of Congress to regulate
merce amonff the se^ral states wka
subjects of that power are naticMl in
nature is also exdusive. The
does not provide that interstate
shall be free, but, by the S[rant of tkk
sive power to regulate it, it was left fret e^
orot as Congress might impose i sit 1 1181
Therefore it has been determiiied tiist the
failure of Congress to exercise this tulsiiM
power in anv case is an expression of its vfl
that the subject shall be free froas rvtri^
tions or impositions upon it by the scvsnl
states.** BeBaJur^r, 140 U. & 645 [»: STl].
Justices Brewer* Wldt«» and VeekksB
concur in this dissent.
Mr. Justice WUte dissenting:
The statute is held not to be i iipmssel li
the Constitution of the United Statei. I»
cause it is assumed to be hot aa matrim^^V^
the lawful police power of the ststs, vrsriA-
ing for the local convenienes of ite UsM-
tants. On this hypothesis As statals ii
held valid, although it is coneedsd the! ft
indirectly touches interstate oonnMret ssf
remotelv imooses a burden thereos. t* mf
mind the Onio statute, however, dosi set
come within the purview oi the
advanced to support it, and tlMrsfon
considerations beoome irrelevaat, aai H ii
unnecessary to form any jndgsieat ss Is
their correctness.
My conception of the statute is thst ft l»
poses, under the guise d a poliet regsliliM
for local convenience, a direct berdw ss is*
terstate commerce, sad, besides,
discriminates against sudi
therefore it is in confiict with the
:
tion, even by applying the ndes Isii
in the authorities which are reKed oa i
holding its validity. Now, what doe
statute provide? Does it require sB ni-
roads within the state to operate s fi««
number of local trains and to stop Hbm it
desisted points? Not at alL II «»
mands railroads, if they nm three irsiM s
day, to cause at least three ai waA tnim ^
be local trains, by compeUiar thtm ti f^
such trains at the places whSbh the rtsft*
mentions. It follows, then* that SBte* At
statute one railroad operatiaf ia ths ^f^
may be required to run oaly atm loflsl tnis
a <MLV and to stop sudi trata, as the ' ^
requires, and another railroad
actly the same territory aad
same places may he required to
trains a day and make the
with each of sudi trains. That is ti i^
although the same dcmaads aad the «^
189».
NUQBNT y. BTATB of AKIZOHA iMPUOVKMSliT Uo.
3a;H»<#
local interest maj exist as to the two roads,
upon one is imposed a threefold heavier bur-
den than upon the other. That this result
of the statute is a discrimination it seems
to me, in reason, is beyond question. If,
then, the discrimination is certain, the onl^
question which remains is. Is it a discrimi-
nation asrainst interstate commerce? If it
is, confessedly the statute is repugnant to
the Ck>n8titution of the United States.
Whence, then, does the discrimination arise
and upon what does it operate? It arises
alone from the fact that the statute bases
its requirement, not upon the demands of
!6]local convenience, *but upon the volume of
business done b^ the roaa, since it requires
the road operating three trains to stop three
as local trains, and the road operating one
train to stop only one. But the number of
trains operated is necessarily dependent up-
on ^e amount of business done, and the
amount of business embraces interstate
commerce aa well as local business. But
making the number of local trains depend-
ent upon the volume of business is but to
say that if a railroad has enough interstate
business, besides its local business, to cause
it to run one local and two interstate com-
merce trains each way each day, the in-
creased trains thus required for the essential
purposes of interstate commerce shall be lo-
cal trains, while another railroad which has
no interstate commerce, but only local busi-
ness rwiuiring but one 1^'ain a day, shall con-
tinue only to operate the one local train.
While the power of the state of Ohio to
direct all tiie railroads within its territory to
operate a sufficient number of local trains
to meet the convenience of the inhabitants
of the state may be, arguendo, conceded, — al-
though such question does not arise in this
case, and is not, therefore, necessary, in my
opinion, to be decided, — that state cannot,
without doing violence to the commerce
clause of the Constitution of the United
States, impose upon the railroads operating
within its borders a burden based, not upon
local convenience, but upon the amount of
interstate commerce business which the
roads may do, thereby causing every inter-
state commerce railroad to have a burden
resting upon it entirely disproportioned to
local convenience, and greatly more onerous
than that restinff upon roads doipg a local
business, and which nave not a sufficient in-
terstate business to compel them to operate
three trains. To answer this reasoning by
saying that the statute does not compel
roads to operate the three trains and stop
them, since it only compels them to stop them
if they operate them, is to admit the dis-
crimination, and to state the fact that the
duty is not made by the statute dependent
upon the local convenience, but upon the whole
volume of business, which of course, there-
fore, includes interstate commerce business.
As the statute makes its exaction depend,
7]not upon a rule *by which the local wants are
ascertained and supplied, but upon the busi-
ness done, it therefore directly operates up-
on the volume of business, and only indirect-
ly considers the possible local convenience.
Under a law whidi thus proceeds, my mind
173 U. 8. U. S., Book 43. 46
refuses the conclusion that the law directlj^
considers local convenience, and only indi-
rectly and remotely affects interstate com-
merce, when the reverse, it seems to me, it
patent on the face of the statute. The re-
pugnancy of the statute to the Constitution
o< the United States is shown by the princi-
ple decided by this court in Oahome v. Flor-
%da, 164 U. S. 650 [41: 58G]. In that case
the state of Florida imposed a license on the
business of express companies. In constru-
ing the statute the supreme coui*t of the
state held that it applied only to business
done solely within the state, and not to busi-
ness interstate in its character. This court,
in reviewing and affirming the decision of the
state court, said that as construed by the
Florida court the statute wlu not repugnant
to the Constitution, because it applied to
business done aolely within the state, and
that the contrary would have been mani-
festly the case if, for the purpose of taxa^
tion, the state had taken into consideration
the whole volume of business, including that
of an interstate character. Now, if a tax-
ing law of a state is repugnant to the Con-
stitution because it operates upon the whole
volume of business, both state and inter-
state, a law of the character of that now un-
der consideration, which operates upon the
whole volume of business of a railroad, state
and interstate, is equally repugnant to the
Constitution of the United States.
Whether in the enactment of the statute *
it was intended to discriminate is not the
question, for, whatever may have been the
intention of the lawmaker, if the necessary
effect of the criterion established by the law
is to cause its enforcement to produce an un-
lawful discrimination against interstate
commerce by imposing a greater burden on
the roads engaged in such commerce than up-
on other roads which do a purely local busi-
ness, the statute is, I think, repugnant to
the Constitution of the United States, and
should not be upheld.
For these reasons, without fheaning to im-
ply that I do not assent to the conclusions
stated by mv brethren who have also, *on[338]
other grounds, dissented, I prefer to place
my dissent on what seems to me the discrim-
ination which the statute inevitably creates.
M. J. NUGENT, Superintendent of the Terri-
torial Prison of the Territory of Arizona,
Appt.,
V.
STATE OF ARIZONA IMPROVEMENT
COMPANY.
(See 8. C. Reporter's ed. 888-847.)
Evidence of ewecuiion of a bond — mandamus
against puhlio officer.
1. Where a case was heard upon the pleadings
without any evidence except a written con-
tract between the parties, a recital In the con*
tract that a certain bond was executed Is not
evidence of its execution sufflclent to over-
come an averment in the answer that the bond
was not executed.
721
88:}-diO
^^UPBBMB COUBT OF THU UNITBD STATES.
Oct.
S. Where the statute requires a bond to be ex-
ecuted before a contract with a public officer
■hall be enforceable, such officer cannot be
eompelled by mandamus to perform the con-
tract, until the bond required bj the stat-
•te has been gWen.
[No. 119.1
Argued and Submitted January 10, 11, 1899.
Decided February tO, 1899.
APPEAL from a judgment of the Supreme
Court of the Territory of Arizona affirm-
ing the judgment of the District Court of
the Third Judicial District of the Territory
in and for the County of Yuma overruling
a demurrer and giving judgment for the
plaintiff, the Arizona Improvement Com-
pany, and ordering a peremptory writ of
mandamus to issue against M. J. Nu^nt,
Superintendent of the Territorial Prison,
commanding him to furnish to the plaintiff
osrtain conviots out of said prison as labor-
ers. Reversed, witli directions to remand to
the District Court f<Nr further proceedings.
The facts are stated in the opinion.
Messrs. J*. E. Payson and Charles F.
A.insworth, Attorney General for Arizona,
for appellant.
Messrs. Eugene 8. Ives and L. H. Ohal'
mere for appellee.
[S88] *Mr. Justioe Harlan delivered the opin-
ion of the court:
By an act of the legislative assembly of
the territory of Arizona, approved March
8th, 1805, the governor and auditor of the
territory, to&;ether with one citizen to be ap-
pointed by &e governor with the advice and
consent of the council, were constituted a
board of control, and given charge of all
charitable, penal, and reformatory institu-
tions then existing or which might thereaft-
er be created in the territory.
It was provided by the mnih section of the
[S89]act that the *board of control, after qual-
ifying and entering upon their duties,
should have full control over the territorial
insane asylum, the territorial reform school,
and territorial prison, together with all
property, buildings, and lands belonging
thereto or that should thereafter be ac-
quired. That section further provided:
"^Sixty days aftet the passage of this act
they shall have the power and authority to
enter into an agreement or agreements with
a responsible person or persons, to lease on
shares or for cash the property, buildings,
and lands, or any part thereof, now belong-
ing to the territory, wherever said buildings
and lands may be located, or that may here-
after be acquired for the purpose of furnish-
ing employment for the inmates of the said
territorial priaon and the said territorial re-
form school. The said board shall have the
authority to contract with a responsible per-
son or persons to furnish the labor of the in-
mates now within the said reform school or
said prison, or that may hereafter be eon-
fined therein, or any number of Ihem, for the
best interests of the territory; provided,
however, that at no time shall the labor of
the inmates of the said territorial prison or
fp'-'-itorial reform school be l«iuu»<l to any
722
{
person or persons when the labor of the i»-
mates of said institution is reanired mpea
any buildings or properties of tae aforesaid
institutions and no lease or contract shall ht
made that will obligate the territory te
furnish tools, machinery or money, or mek»
other expenditure other than the labor el
the inmates, properly clothed and fed, aai
the proper guards for same, together with
the use of the property, buildings, and laadi
heretofore mentioned; provided, that bo eoa-
tract or lease shall be made to extend for a
term of more than ten years from the tias
of making said lease or contract. And the
said board may contract to allow sodi labor
to be performed at any place either inaidc or
outsiae the prison walls or the ooBfines of
the reform school, but if a contract be mais
to allow labor to be performed outside of the
prison walls or confines of the reform sehoil
it must be done under proper restnctioni,
having regard for the safety of the prisoa-
ers or inmates. A good and suSeieBt boad
must be piven by the person or persons '••'^i
ing the labor of inmates of the ^aforisiH^Wf
institutions for the faithful perfoTmanee of
such contract; said bond to be approved by
the board of controL" Ariz. Laws 1895. pf.
20, 22.
This statute being in force, a writtci
agreement was made December 2d, 189C, W-
tween "the territory of Arizona, by L. C
Hughes, Governor, C. P. Leitch, Aoditor.
and M. H. McCord, constitutinff the Boar4
of Control of the Territory of Ariaona,** «f
the first part, and the State of Arisooa !■-
?rovement Company of the second part
hat agreement contained, among other pro-
visions, the following:
"The party of the second part haviag si^
mitted its ffood and sufficient bond for the
faithful performance of this contract, vhirk
said bona has been approved by the miA
board of control and each of its menbtn*
and is herewith delivered and accepted, the
said party of the first part, for sal
in consideration of the covenaats sal
agreements hereinafter mentioned, rcscm<
and contained on their part, and os
behalf of the said party of the ^eecmd part
to be done and kept and performed, satfc
granted, bargained, demised, leased, sad ts
farm letten to said party of the second part*
its successors and assigns, all that eertais
real estate; . . . uso all the laaor «f
the male convicts now in the territorial pM>
itentiary, or who may hereafter be luaissl
therein, to have and to hold the labor ei mA
penitentiary convicts unto said party ef tht
second part, and to its assigns, for the uxm
of ten years from the date Si these preMBts;
and tiie lands and premises above dsKriM
for and during and until the end of tht fal
term of ten years to be fully completed sal
ended, and it is further stipulated sal
agreed by and between the partie* hents
that in Uie event of the removal of tht Iv^
ritorial prison irom Yuma connty, tcrrittry
of Arizona, to any other portion of tht t«^
ritory, such removal will in no way. muam^
shape, or form interfere with the couiUllMii
stipulations, and covenaats of this eontnrt
ana lease.
ITS Ut.
1898.
NuQBNT ▼. Statb ov Abizona Imfbovsmbnt Co.
84(V^3
'^t Ib farther understood, stipulated, and
agreed by and between the parties hereto,
that the party of the second part is to have
the exdusire control of the labor of the con-
yicts in the territorial prison from 8 o'clock
]a. M. to 5 o'clock p. M., ^during the said term
of ten years from the date of these presents,
Sundays and legal holidays excepted.
''It is further agreed by and between the
parties hereto that the part^ of the first
part, or its agent or agents, will furnish the
said convict labor to the party of the second
part, at the place or places designated by the
said party of the second part, or its agents,
in Yuma county, Arizona territory, properly
guarded, clothed, fed and ready to conmience
work at the hours and terms heretofore men-
tioned, and the part^ of the first part shall
properly ffuard said convicts during the
hours of labor. The party of the second
part is to furnish all the tools and machin-
ery necessary for the use of the convicts
while at work under the conditions of this
contract and lease, but the said party of the
first part shall not be compelled to take out-
side of the prison, under guard, parties of
less than five convicts. . . .
"The superintendent of the prison or agent
of the territory having the convicts in charge
shall be required to furnish the convicts m
such numbers as may be required from time
to time up to the amount of all the able-
bodied male convicts; to deliver them at
sach points or places in Yuma countr|r as may
be demanded of him by the pu*^ of the sec-
ond part, its agent or agents. The party of
the second part further agrees to keep a cur-
rent and accurate account of the number of
days worked by convicts, and on the first
Monday of eadi calendar month to make a
statement of the total number of days done
the previous month by all the convicts emi>
ploved by the said party of the second part,
and shall furnish a copy of the said state-
ment to the superintendent of the territo-
rial prison, properly verified by an agent of
the company.
"The said party of the second part agrees
to compensate the party of the first paH for
snch convict labor as follows, to wit: The
value of each convict's labor shall be placed
At 70 cents per day, and as soon as the party
of the first part has furnished convict labor
&t the rate of 70 cents per day, aggregating
the smn of sixteen hundred dollars, the party
of the second part shall issue its perpetual
'^Jwater-right deed for eighty •acres of land,
of the water in its canal, when such canal is
completed. . . .
''It is further covenanted and agreed, by
And between the parties hereto, that after
the water rights nereinbefore provided for
Are earned by said party of the first part,
then an soon as the labor of convicts at the
nite of 70 cents per day for each day's labor
amounts to sixteen hundred dollars, the par-
ty of the second part shall issue water-right
certificates for one eighty-acre water
right .. .
"It is further stipulated by and between
the parties hereto m consideration of the
coTenants herdn contained, that the said
Pftrty of the second part is to use such of
173 V.B.
said convicts' labor
this contract and
lease as it may from time to time require,
and such party of the second partv need not
commence to use any of saia labor sooner
than five months from the date hereof.
"It is further stipulated and agreed bj
and between the parties hereto, in considerap
tion of the covenants herein contained, to
be performed by each of the parties hereto,
and in consideration of the convict labor
herein mentioned, that the lease of the lands
herein described shall commence on and
from the day when the water shall be con-
ducted in the canal of the party of the sec-
ond part to the lands convenient for the said
water to be conducted upon the said lands
hereinbefore described, and shall terminate
ten years thereafter; and that the party of
the second part shall pay to the party of the
first part, as rent therefor, an annual sum,
to be hereafter determined upon, in cash, or,
at the option of the party of the second part,
one half of the net products of the said
lands; provided, however, that the said lease
shall commence to run within four years
from date.
"It is further agreed, covenanted, and de-
clared that these presents are made, exe-
cuted, and delivered for the best interest of
the territory of Arizona, and for the purpose
of furnishing emplovment for the inmates
of the said territorial prison, — ^the labor of
said inmates being not required upon any
buildings or properties of any institution of
said territory."
On the 22d day of April, 1896, it was
agreed in writing 'between the parties as[349]
fSlows: "The time for oommencing work
under this contract is hereby extended to
the lOth day of June, 1896, and it is fully
understood and agreed by the parties hereto
that this extension is in no way to affeci the
legal status of said contract. It is under-
stood and agreed that the rights of the par-
ties thereto are to remain in statu quo, and
the extension herein made is not intended to
ratify, alter, or impair said contract, or to
give it any validity whatsoever that it does
not, before the signing of this inptrument,
possess."
Later, a supplemental agreement in writ-
ing was made oetween the same parties, but
in the view which the court takes of this
case it need not be set out in this opinion.
On the 26th day of May, 1896, the State
of Arizona Improvement Company filed its
complaint in the district court of the third
judicial district of the territory in and for
the couni^ of Yuma, in which reference was
made to the above agreements with the board
of control, and in which it was alleged that
it was a corporation organized under the
laws of the territory; that M. J. Nugent, •
resident of Yuma county, was the superin-
tendent of the territorial prison at Yuma,
and as such had full control of the prison-
ers confined in that prison, subject only to
the direction of the board of control of the
territorv; that on the 25th day of May,
1896, the plain tifiT company demanded in
writing of said Nugent, superintendent
aforesaid, that in pursuance of the contract
between it and said board of control. h«
723
843-846
SUPBEME COUKT OF THE UNITED SlATES.
Oct. Tnm,
furnish to plaintiff on the 2d day of June,
1806, at 8 A. M., ten able-bodied male con-
Ticts out of the territorial prison at Yuma,
properly guarded, on the outside of the gate
of the territorial prison; that on the next
day Nugent served a written notice on the
plaintiff, whereby he peremptorily declined
to furnish the convict labor at such time
and place, or at any time and place ; and that
the plaintiff had not a plain, speedy, or ade-
quate remedy in the ordinary course of law.
The complaint was supported by the affi-
davit of the president of the plaintiff com-
pany.
The relief asked was that a writ of man-
[944]damus issue, directed *to Nugent, superinten-
dent of the territorial prison, directing and
oommandinff him te furnish to the plaintiff
ten able-bomed male oonvicte out of the ter-
ritorial prison at Yuma, on the 2d day of
June, 1896, on the outeide of the prison gate
at Yuma, properly guarded; and that plain-
tiff have such other and further relief as to
the court seemed meet and just.
An alternative writ of mandamus was is-
sued, and Nugent, as superintendent of the
prison, excepted to the sufficiency of the
complaint and demurred thereto upon these
grounds: 1. That the complaint did not
stete facte sufficient to authorize a writ of
mandamus. 2. That the plaintiff sought to
compel the performance of an act by uie re-
spondent as superintendent of the territo-
rial prison, which the law did not specially
enjoin upon him as a duty resulting from his
office. 3. That the petition sought to compel
the performance of a contract mnde by oth-
ers and not by respondent. 4. That the al-
leged contract was void because authorized
omy by a pretended law which was void.
Nugent also filed an answer alleging,
among other things, that there was a want
of proper parties defendant; that the terri-
tory had no power to hire out tlie convicte
confined in the territorial prison who had not
been sentenced to punishment with hard la-
bor, nor to authorize the convicte to be token
out and away from the territorial prison,
where punishment and sentence was by con-
finement in such prison; that tne board of
control had no power to make the contract
sought to be enforced ; that the contract was
iteelf without consideration and in violation
of the act of March 8th, 1895, in that it was
for a period of over ten years: that the con-
tract took the entire convict labor for the
period just named in violation of the provi-
•sions of the act providing that said labor
should not be leased out when it was needed
to work on the buildings and premises of the
territory ; and that the contract was against
public policy in authorizing all the prison-
ers to be token from the prison and to re-
jnain away from it in many cases for the en-
tire period of their sentence.
The answer also averred "that as the duly
appointed, qualified, and acting superinten-
{pASldent of the territorial prison at * Yuma, Ari-
zona, previous to the service of the alterna-
tive writ herein, this defendant was advised
and informed by the Honorable B. J. Frank-
724
lin, as governor of the territory of
that the said pretended contract
in the application herein was and is of no
valid force and effect, and farther adrised
and informed in substance and to the effect
that said contract was not of any legal font
or binding effect upon said territory or nii
board of control, and, amonf other tkiM
conceminfi^ the same, the said Honormble &
J. Franklin, acting as such governor, u*
thorized and directed this defendant io rab-
stence and to the effect that in the evoit thst
the said Stete of Arizona Improvemeat Cob-
pany should, by ite officers or agoitt, wa)a
a demand upon this defendant to do or per-
form anything under the provisions of taii
contract, and especially if soeh deaasi
should be made for the delivenr of aoy prit-
oners confined in or inmat4»w of said peaita-
tiary to the said company, its omccrs m
a^nte, at the gate of said prison or d»-
i^ere, that this defendant, acting ai nek
superintendent, should politely, but trwif,
refuse such reouest or anjr request nsde or
to be made unaer the provisions of said prt^
tonded contract ; that acting under tht id-
vice and information g^ven bv the HoaoraMe
B. J. Franklin, ^vemor of this territor?.
and of the direction of the bead of the ex-
ecutive department of this toritory, this d^
fendant alleges that he made the rehial
complained of in the application hcreiB. ui
not otherwise. . . . Respondent firtkr
avers and gives the court to know that dt
Stete of Arizona Improvement GonpaaykM
not, before the institution of these nroc&eiofk
executed and filed a good and sumeieBt kai
enforceable in a court of law in any of tkt
courte of this territory for the faitkfd ^
formance of said contract, as reoyiied If
said pretended board of control aeO*
The case was heard in the district eout ea
the complaint and the demurrer and awv-
The demurrer of the defendant wat crm-
ruled, and the contracte set forth in tks ttm-
plaint were the only evidence addaeed at the
trial. The defendant having dedined ti
amend the pleadings or to oSter further en-
dence, and having elected to stand am tV
pleadings, the *oourt found for the plaiit^ «*
and ordered a peremptory writ ol miiwiai"
to issue.
A new trial having been refused, the «■•
was carried to the supreme court oif tW f^
ritory, where the juogment of the di^vi
court was affirmed.
We are of opinion that the supiet m"'^
of the territory erred in affirmioff the )Wr
ment of the district court awarduif a «Tn
of mandamus against the defeadaat Ksfo^
The stetute under the authority of wot
the board of control made the coetnrt ";
ferred to in the complaint expreialy rsfim
a good and sufficient b<»d to be rmm by tke
person or persons leasing the labor cf »
mates of the territorial prison lor the b^
f ul performance of such oontraet» vkk^ keea
was to be approved by the board. TW tm
plaint asking for a mandamus affai>^ ^
superintendent of the priscm did aot *»
tinctly allege the ezeeutioa of •««* *•*
m^
Tbxab & Pacific R. Co. y. Clayton.
84t$-84b
But the answer of Nugent alleged that the
defendant in error had not, prior to the in-
ititution of these proceedinss, executed and
filed a good and sufficient Eond enforceable
in a court of law in any court of the territory
for the faiUiful performance of its oontraoty
as required by tne act of March 8th. 1895.
That act, it is true, did not in terms require
the execution and delivery of a bond prior
to or contemporaneously with the making of
a contract with the board of control. But it
is clear that the board could not dispense
with the bond, and t^at no contract made by
them leasing the labor of the convicts could
become binding upon the territory until a
bond such as the statute requires was exe-
cuted b^ the lessee and approved by the board.
The recital in the agreement of December 2d,
1896, that the lessee had submitted, and that
the board had approved, a good and sufficient
bond for the faithful performance of that
agreement, may have been made in the ex-
pectation that such a bond would be executed
before the agreement became effective as be-
tween the parties. But as the case was heard
upon the pleadings, without any evidence ex-
cept the written a^eements between the
b(Mird of control and the improvement com-
pany, the mere recital referred to cannot be
taken as sufficient to disprove the averment
,7]in answer as to the nonexecution *of the re-
quired bond. If the plaintiff was entitled
to the rdief asked by a proceeding against
the superintendent, without bringing the
membera of the board of control before the
court, it should have shown by allega-
tion and proof that the required bond had
been executed. If no bond was executed as
reqoired bj^ the statute, the plaintiff was not
in a position to ask relief by mandamus.
The superintendent of the prison may not
have be^ charged bv law with knowledge of
the provisions of the statute, but he was
aware of its provisions, and was bound not
to allow tiie convicts to go beyond his con-
trol under an agreement that did not con-
form to the statute. An agreement unac-
companied by the required l£[>nd would not
justify him in surrendering custody and con-
trol of the convicts or any of them. As it
must be taken upon the present record that
the improvement company never executed
the bond required by the statute, the district
court erred in ^ving any relief.
Under the circumstances, it may not be
inappropriate to say that in the printed
brief of the attorney general of Arizona it is
distinctly stated that no bond had ever been
executed, and that statement is not disputed
in the printed brief subseouently tiled for ap-
pellee, nor was it disputed by counsel for ap-
pellee in oral argument.
Without expressing any opinion in refer-
<»nce to other questions discussed by counsel,
«)me of which are important, the judgment
of the Supreme Court of the Territory is for
the reasons stated reversed, with directions to
remand the case to the district court for such
further proceedings as may be consistent
with this opinion and with law.
It is so ordered.
173 V. 8.
TEXAS & PACIFIC RAILWAY COMPANYiSM]
Plff. in Err,,
V,
JOHN HENR¥ CLAYTON, Nicholas Bob>
arts, and Charles Anderson Earle.
(See & C. Reporter's ed. 848-863.)
Railroad company, when liable for goods d^
stroyed by fire — when liable as carrier and
not as warehouseman.
1. When goods were delivered in Texas to a
railroad company to be carried to Liverpool,
England, and the bill of lading provided that
the carrier alone in whose actual custody the
goods should be at the time of their losf
should be liable therefor, such railroad com-
pany Is liable for the destruction of the goods
by fire before they had been actually delivered
to the next connecting carrier, although they
were placed by said company on the wharf,
where the steamship line, the next connect-
ing carrier, usually received goods, and no-
tice given to it, but It had not taken actual
custody thereof.
2. Under such circumstances the railroad com-
pany did not cease to be a carrier and become
a warehouseman, although It requested the
steamship line to remove the goods, but had
not specified any particular time within which
compliance was insisted on, or given notice
that the goods would be kept or stored at the
risk of the steamship line upon failure to
comply with the request.
[No. 222.]
Argued January 27, 1899, Decided Febnh
ary 20, 1899,
F ERROR to the United States Circuit
Court of Appeals for the Second Circuit
to (^view a judgment of that court affiiTuins
a judgment of the United States Circuit
Court, for the Southern District of New
York in favor of John Henry Clayton et al,,
plaintiffs, against the Texas & Pacific Rail-
way Company for the value of certain bales
of cotton destroyed by fire while in the cus-
tody of defendant as common carrier. Af*
firmed.
See same case below, 51 U. 8. App. 670.
The facts are stated in the opinion.
Messrs, Rnsh Tassart and Arthur H.
Hasten, for plaintifit in error:
Defendant had fully performed its duty as
initial carrier.
Pratt V. Grand Trunk R, Co, 96 U. S. 43,
24 L. ed. 336 ; Merriam v. Hartford d N. H.
R. Co. 20 Conn. 354, 52 Am. Dec. 344; Con-
verse V. Norwich d JC, Y, Transp. Co, 33
Conn. 166; Illinois C. R, Co v Bmyser, 38
111. 354, 87 Am. Dec. 301 ; Bt, Louis, I, M, d
8, R. Co, V. Murphy, 60 Ark. 333 ; Meyer v.
Vicksburg, 8, d P. R. Co, 41 La. Ann. 639;
Montgomery d E, R, Co, v. Kolb, 73 Ala. 396.
726
843-846
SUPBBME CODKT OF THE UkITKD StaTES.
Oct. Tnm,
furnish to plaintiff on the 2d day of June,
1896, at 8 A. M., ten able-bodied male con-
Ticts out of the territorial prison at Yuma,
properly guarded, on the outside of the gate
of the territorial prison; that on the next
day Nugent served a written notice on the
plaintiff, whereby he peremptorily declined
to furnish the convict labor at such time
and place, or at any time and place ; and that
the plaintiff had not a plain, speedy, or ade-
quate remedv in the ordinary course of law.
The complaint was supported by the affi-
davit of the president oi the plaintiff com-
pany.
The relief asked was that a writ of man-
[944]damus issue, directed *to Nugent, superinten-
dent of the territorial prison, directing and
commanding him to furnish to the plaintiff
ten able-bomed male convicts out of the ter-
ritorial prison at Yuma, on the 2d day of
June, 1896, on the outside of the prison gate
at Yuma, properly guarded ; and that plain-
tiff have such other and further relief as to
the court seemed meet and just.
An alternative writ of mandamus was is-
■ned, and Nugent, as superintendent of the
prison, excepted to the sufficiency of the
complaint and demurred thereto upon these
grounds: 1. That the complaint did not
state facts sufficient to authorize a writ of
mandamus. 2. That the plaintiff sought to
compel the performance of an act by tne re-
spondent as superintendent of the territo-
rial prison, which the law did not specially
e^om upon him as a du^ resulting from his
office. 3. That the petition sought to compel
the performance of a contract mnde by oth-
ers and not by respondent. 4. That the al-
lied contract was void because authorized
omy by a pretended law which was void.
Nugent also filed an answer alleging,
among other things, that there was a want
of proper parties defendant; that the terri-
tory had no power to hire out tlie convicts
confined in the territorial prison who had not
been sentenced to punishment with hard la-
bor, nor to authorize the convicts to be taken
out and away from the territorial prison,
where punishment and sentence was by con-
finement in such prison; that tne board of
control had no power to make the contract
sought to be enforced ; that the contract was
itself without consideration and in violation
of the act of March 8th, 1895, in that it was
for a period of over ten years: that the con-
tract took the entire convict labor for the
period just named in violation of the provi-
•fiions of the act providing that said labor
ehould not be leased out when it was needed
to work on the buildings and premises of the
territory ; and that the contract was against
public policy in authorizing all the prison-
ers to be taken from the prison and to re-
main awav from it in many cases for the en-
tire period of their sentence.
The answer also averred "that as the duly
appointed, qualified, and acting superinten-
{pASldent of the territorial prison at *Yuma, Ari-
zona, previous to the service of the alterna-
tive ^nrit herein, this defendant was advised
and informed by the Honorable B. J. Frank-
7S4
lin, as governor of the territory of
that the said pretended contract
in the application herein was and is of oo
valid force and effect, and further adritei
and informed in substance and to the effect
that said contract was not of any legal foret
or binding effect upon said territory or ni4
board of control, and, amonff other tkiM
concerning the same, the said Honorable &
J. Franklin, acting as such governor, as-
thorized and directed this defendant in vA-
stance and to the effect that in the event tkii
the said State of Arizona Improvement Cos-
pany should, by its officers or agents, aakt
a demand upon this defendant to do or per-
form anything under the provisions ot rnH
contract, and especially if such Aumni
should be made for the delivery of any prx»-
oners confined in or inmates of said peaita-
tiary to the said company, its oflneert «r
agents, at the gate of said prison or <iae>
where, tibat this defendant, acting as tack
superintendent, should politely, wA ftrslj,
refuse such reouest or any request made cr
to be made unaer the provisions of said prf>
tended contract; that acting under the a^
vice and information given bv the HoMriUe
B. J. Franklin, ^vemor of this territor;,
and of the direction of the head of the a-
ecutive department of this territory, thi< it-
fendant alleges that he made the refual
complained of in the application herein, ui
not otherwise. . . . Respondent fBrtkff
avers and gives the court to know that tkt
State of Arizona Improvement Gootpanylai
not, before the institution of these proeeedii^
executed and filed a good and sumcieBt boiiM
enforceable in a court of law in any ei tte
courts of this territory for the faithfil po^
formance of said contract, as reooirad If
said pretended board of control act.^
The case was heard in the district eout os
the complaint and the demurrer and aisve.
The demurrer of the defendant was vm-
ruled, and the contracts set forth in the ttm-
plaint were the only evidence adduced at tkt
trial. The defendant having dedincd *>
amend the pleadings or to oSter furtlicr crv
dence, and having elected to stand om tW
pleapdinss, the *oourt found for the pUisuf "
and ordered a peremptory writ of siiwrh—
to issue.
A new trial having been refused, tht ea«
was carried to the supreme court of tW t<^
ritory, where the juogment of the dintnei
court was affirmed.
We are of opinion that the supifs eosrt
of the territory erred in affimiinc the js4r
ment of the district court awarmofr a «Tit
of mandamus against the defendast Xafcs^
The statute under the authority of vtici
the board of control made the costract iv
f erred to in the complaint ezprsMly rafsiiW
a good and sufficient b<»d to be rivM 1^ tk
person or persons leasing the labor « is-
mates of the territorial prison lor tW tt^
ful periormanoe of such contract wUek kea
was to be approved by the board. TW "^
plaint asking for a mandamus ^p^"^^
superintendent of the prison did sot j*'
tinctly allege the exeeutioB of rack M.
lase^
Texas & Paoifig R. Co. y. Clayton.
84t$-84b
But the uiswer of Nugent alleged that the
defendant in error had not, prior to the in-
ititution of these proceedinss, executed and
filed a good and sufficient hond enforceable
in a court of law in any court of the territory
for the faithful performance of its oontraet,
ts required by tne act of March 8th. 1895.
Hiat act, it is true, did not in terms require
the execution and delivery of a bond prior
to or contemporaneously with the making of
A contract with the board of control. But it
is clear that the board could not dispense
with the bond, and that no contract made by
them leasing the labor of the convicts could
become binoing upon the territory until a
bond such as the statute requires was exe-
cuted by the lessee and approved by the board.
The recital in the agreement of December 2d,
1896, that the lessee had submitted, and that
the board had approved, a good and sufficient
bond for the faithful performance of that
agreement, may have been made in the ex-
pectation that such a bond would be executed
oefore the agreement became effective as be-
tween the parties. But as the case was heard
upon the pleadings, without any evidence ex-
cept the written a^eements between the
board of control and the improvement com-
pany, the mere recital referred to cannot be
taken as sufficient to disprove the averment
7]in answer as to the nonexecution *of tbe re-
quired bond^ If the plaintiff was entitled
to tbe relief asked by a proceeding against
the superintendent, without bringing the
membm of the board of control before the
court, it should have shown by allega-
tion and proof that the required bond had
been executed. If no bond was executed as
required bjr the statute, the plaintiff was not
in a position to ask relief by mandamus.
The superintendent of the prison may not
have b^n charged by law with knowledge of
the provisions of the statute, but he was
aware of its provisions, and was bound not
to allow tiie convicts to go beyond his con-
trol under an agreement that did not con-
form to the statute. An agreement unac-
companied by the required TOnd would not
justify him in surrendering custody and con-
trol of the convicts or any of them. As it
must be taken upon the present record that
the improvement company never executed
the bond required by the statute, the district
court erred m ^ving any relief.
Under the circumstances, it may not be
inappropriate to say that in the printed
brief of the attorney general of Arizona it is
distinctly stated that no bond had ever been
executed, and that statement is not disputed
in the printed brief subseouently tiled for ap-
pellee, nor was it disputed by counsel for ap-
pellee in oral argument.
Without expressing any opinion in refer-
<»nce to other questions discussed by counsel,
Mme of which are important, the judgment
of the Supreme Court of the Territory is for
the recisona stated reversed, with directions to
remand the case to the district court for such
further proceedings as may be consistent
with this opinion and with law.
It is so ordered.
173 V. 8.
TEXAS & PAaFIC RAILWAY COMPANYiSM]
Plff. in Err,,
V.
JOHN HENR¥ CLAYTON, Nicholas Bob>
erts, and Charles Anderson Earle.
(See 8. C. Reporter's ed. 848-863.)
Railroad company, when liable for goods d^
stroyed by fire — when liable as carrier and
not as uHirehouseman,
1. When goods were delivered In Texas to a
railroad company to be carried to Liverpool,
England, and the bill of lading provided that
the carrier alone in whose actual custody the
goods should be at the time of their losi
should be liable therefor, such railroad com-
pany is liable for the destruction of the goods
by fire l)efore they had been actually delivered
to the next connecting carrier, although they
were placed by said company on the wharf,
where the steamship line, the next connect-
ing carrier, usually received goods, and no-
tice given to it, but it had not talcen actual
custody thereof.
2. Under such circumstances the railroad com-
pany did not cease to be a carrier and become
a warehouseman, although it requested the
steamship line to remoTe the goods, but had
not specified any particular time within which
compliance was insisted on, or given notice
that the goods would be kept or stored at the
risk of the steamship line upon failure to
comply with the request.
[No. 222.]
Argued January 27, 1899, Decided Febrth
ary 20, 1899,
F ERROR to the United States Circuit
Court of Appeals for the Second Circuit
to f-eview a judgment of that court affiiTuing
a judgment of the United States Circuit
Court, for the Southern District of New
York in favor of John Henry Clayton et al,,
plaintiffs, against the Texas & Pacific Rail-
way Company for the valye of certain bales
of cotton destroyed by fire while in the cus-
tody of defendant as common carrier. Af*
firmed.
See same case below, 51 U. 8. App. 670.
The facts are stated in the opinion.
Messrs, Rush Tassart and Arthur H.
Hasten, for plaintiff in error:
Defendant had fully performed its duty as
initial carrier.
Pratt V. Grand Trunk B, Co. 96 U. S. 43,
24 L. ed. 336; Merriam v. Hartford d N, H,
R. Co, 20 Conn. 354, 52 Am. Dec. 344; Con-
verse V. Norwich d N, Y, Transp, Co, 33
Conn. 166; Illinois C. R. Co v Bmyser^ 38
111. 354, 87 Am. Dec. 301 ; Bt, Louis, I, M, d
8. R. Co, V. Murphy, 60 Ark. 333 ; Meyer v.
Vicksburg, 8. d P. R. Co, 41 La. Ann. 639;
Montgomery d E, B, Co, v. Kolb, 73 Ala. 396.
726
849, 85u
SupiiEMB Court of thb United States
Got. Tkmm^
49 Am. Rep. 54 ; Oreen v. Milumukee d 8t, P.
R. Oo. 38 Iowa, 100; Coyle v. Western B.
Corp. 47 Barb. 152 ; London d L. F. Ins. Oo.
y. Rome, W. d 0. R. Oo, 144 N. Y. 200. .
The rule as to delivery between connectiiiff
carriers is Uie same as between shipper and
carrier.
Shellyville R. Co. y. LouieviUe, O. d L. R.
Oo. 82 Ky. 541 ; JBtna Ins. Co. y. Wheeler, 49
N. Y. 616; Conkey y. Milwaukee d St. P. R.
Oo. 31 Wis. 619, 11 Am. Rep. 630; Qoold v.
Chapin, 20 N. Y. 259, 75 Am. Dec 398.
The defendant held tiie goods in question.
If at all, (Mily as a warehouseman.
Condon y. Marquette, H. d 0. R. Oo. 55
Mich. 218, 54 Am. Rep. 367 ; Whittoorth y.
Erie R. Oo. 87 N. Y. 413 ; Michigan O. R. Oo.
Y.Mineral SpHngs Mfg. Co. 16 WaU. 318, 21
L. ed. 297 ; MoEenry y. Philadelphia, W. d
B. R. Co. 4 Harr. (Del.) 448; Oarside, W. d
sey d Trent Nav. Proprs. 4 T. K. 581 ; Regan
y. Grand Trunk R. Oo. 61 N. H. 579; Ayres
y. Western R. Oo. 14 BlatchL 9; Wood y.
Milwaukee d 8t. P. R. Oo. 27 Wis. 541, 9
AnL Rep. 465; Deming y. Norfolk d W. B.
Co. 21 Fed. Rep. 25.
Mr. Treadwell ClcTclamd, for defend-
ants in error :
The circuit court properly denied the mo-
tion for a direction for a yerdict in its fayor,
made by the railroad company, when the
plaintiff rested.
Dunn y. Durant, 9 Daly, 389; OatUn r.
Ounter, 11 N. Y. 373, 62 Am. Dec. 113;
Place y. Minster, 65 N. Y. 89; Richards y.
Westcott, 2 Bosw. 589 ; Bonsteel v. Vander-
Ult, 21 Barb. 26.
There was no constructive delivery of the
cotton by the railway company. The rela-
tion of that company to the shippers was not
that of warehouseman, but that of common
carrier.
Michigan O. R. Co. v. Mineral Springs
Mfg. Co. 16 Wall. 318, 21 L. ed. 297; Choldr.
Chapin, 20 N. Y. 259, 75 Am. Dec 398;
MilU y. Michigan O. B. Oo. 45 N. Y. 622, 6
Am. Rep. 152; Ladue v. Griffith, 25 N. Y.
364, 82 Am. Dec. 360; Illinois O. B. Oo. v.
Mitchell, 68 111. 471, 18 Am. Rep. 564; Con-
don y. Marquette, H. d O. B. Co. 55 Mich.
218, 54 Am. Rep. 367 ; McDonald v. Western
R. Corp. 34 N. Y. 497.
[949] *Mr. Justice Hiit1>», delivered the opin-
ion of the court :
This action was brought by the defendants
in error, subjects of the Queen of Great Brit-
ain and Ireland, against the Texas k Pacific
Railway Company, a corporation existing
under an act of Congress approved March
3d, 1871 (chap. 122, 16 SUt. at L. 573), and
engaged in the business of a common carrier
of merchandise for hire. Its obiect was to
recover the value of four hundred and sixty-
seven bales of cotton destroyed by firie.
The complaint alleged that in the month
of October, 1894. at Bonham, Texas, the
plaintiffs delivered to the defendant railway
company 500 bales of cotton, which it a^^reed
to carry safely and securely at a through
price or rate from the place of shipment to
Liverpool, England, by vray of New Orieans
726
and there deliver the same on the pcJimst «f
the freight; that the defeodast nutM Is
keen its agreement and to carry niely 4t7
of tne bales of cotton to liyerpod, aad then
to deliver the same, altboo^ tl^ platBtiA
had duly demanded delivery tUereoi aad had
been at all times ready and willing to say
the freight for the carnage; that throngirtts
negligence and carelessness and wltkovt the
fault of the plaintiffs those 467 bales, worth
$17,314.43. were on or about Noveniber Ittk,
1894, wholly destroyed by fire ai West^wa,
Louisiana, ''at which tune aad ^aee ttt
same were in the possession of the offfHiat
in the course of such carriage and as a cm-
mon carrier;" and that the defendaat has f-
fused upon plaintiffs' demand to pay tht
value of the cotton so destroyed.
The defendant admitted the de&tmetifla if
the cotton by fire at the time and )i2sm
named, but made such denial of the matiBnil
all^ations of the complsint as pot the pUa-
tiffs on proof of their case.
The plaintiffs, having read in evidcMc thi
bills of lading and m^e proof of the vitat
of the cotton as shown by certain stipsJsr
tion9 between the parties, rested their can.
Thereupon the defendant moved the eovt
to direct the jury to render a vet'diet n its
behalf. That motion was denied with can^
tions to the defendant. At the dose of m
the evidence the jury by direelioa ol the |
court returned a yerdict ia favor *of the^SI^
plaintiffs for the sum of $14,068, and jad(-
ment for that sum with costs was eMcred
asainst the defendant company. Upoa writ
of error to the circuit court of appeals thet
ju^rment was affirmed. 51 U. 8. Ap^671
The action was based upon four duU of
lading issued by the railway company. T«i
of tMm were dated October lOth, sal the
others October 15th and October S3d mptt
tively. They are alike in form, and idoith
cal in respect of the terms and comlitioae d
the contract. Each one showed a receipt ky
the railway company of a given amnbcr of
bales, "in apparent good or&r aad well coe-
ditioned, of Castner k Co., for delivery Is
shippers' order or their assigns, at liverpeol,
England, he or they paying freight and cW
g^ as per margin;" also, that the cottoa rt*
ceived was to be carried "froio Boibsa.
Texas, to Liverpool,' England, rontt: vis
New Orleans and Elder, Dempster, k Os.
steamship line."
Each bill of lading contained also the lei-
lowing clauses:
"The terms and conditions hereof are «>
derstood and accepted by the owner.
"Upon the following terms and nuaJitJnsei
which are fully assented to and acetptsi ^
the owner yty *
"1. That the liabUity of the Ttocas 4 Ps>
cific Railway Company, in respect to mai
cotton, and under tnis oontraet, is liaftai Is
its own libe of railway, and iHll tmm. mk
its part of this contract be follr ^ufokwd
upon ddiverj of said cotton to ite aot em-
necting earner; and in cast of asy lees, ^
riment, or damage done to or svntaiatd If
said cotton before its eurrival aod delmiy
at its final destinoHom, whwehy say l^el
173 H*
i89a
Tbtas & Pacifio R Ck>. v. Clattoh.
850-898
liability ia incurred by any carrier, that car-
rier alone shall be held liable therefor in
whose actual custody the cotton shall be at
the time of such damage, detriment, or loss.
**2. That the rate of freight for transpor-
tttion of said cotton, specified in the margin
hereof, is auoted and guaranteed with the
distinct understanding and only on eondilion
that the weight of said cotton ia truly and
correctly represented and stated; that said
rate only includes the charge for transporta-
tion, and the specification of said rate shall
not be taken as any guide for ooiistructi<m or
6I]cvidence to extend this ^contract in other
respects, or to bind the Texas & Pacific Rail-
way 0>mpany to transport or to become in
anywise responsible for said cotton after de-
livery thereof to its next connecting carrier,
but shall only bind said company to protect
■aid rate. . . .
"5. It is further a^p-eed that in case said
eotton it found at point of delivery to hare
been injured by anv of the excepted clauses
specified in thjs bill of lading, the burden of
proof shall be upon the owner of said cotton
or dainiant to establish that such injury re-
sulted from the fault of the carrier.
**6, That the said cotton shall be trans-
ported from the port of New Orleans to the
port of Liverpool, England, by the Elder,
Dem^ter, & do. steamsnip line, with liberty
to ship by any other steamship or steamship
line; and upon deliveiy of saia cotton to said
ocean carrier at the aioresaid port this con-
tract is accomplished, and thereupon and
thereafter the said cotton shall be subject
to all the terms and conditions expressed in
the bills of ladinff and master's receipt in
use by the steamship or steamship company
or connecting lines by which said cotton may
be transported; and upon delivery of said
cotton, at usual place of delivery of the
steamship or steamship lines carrying the
•ame« at the port of destination, the respon-
sibility of the carriers shall cease."
The facts out of which the case arises are
these : The railway company had warehouses
and yards in New Orleans where its road ter-
minated. Westwego is a branch station or
terminal opposite that city. The company
had a wharf with tracks and an office and
sheds on it — ^the wharf having been con-
structed overthe Mississippi river so that cars
could be run upon the railroad tracks in its
rear and unloaded, and so that vessels could
come to its front to receive freight placed on
it. The cotton in question was unloaded at
the wharf at various dates from October 22d
to November 4th, 1894, and was burned while
on the wharf in the evening of November
12th, 1894.
On each of the bills at lading are the fol-
lowing words: "T. & P. contract No. 44."
It does not appear that the shippers were in-
formed what were the terms of that contract.
B6S]*It was in proof, however, that it was in sub-
stance a contract with the Elder, Dempster,
A Go. steamship line to connect with the
Texas & Pacific Railway Company and re-
ceive from the latter 20,000 bales of cotton
during the months of October, November, and
December, 1894, on the conditions specified on
173 U. 8.
the reverse side of the contract. Those oon-
ditions do not affect the queetionfi here pre-
sented, but it was proved that the railway
and the steamship companies agreed that the
place of delivery of the cotton under the eon-
tract between Uiem should be the wharf at
Westwego.
The mode in which the railway companv
and the steamship company transacted busi-
ness was as follows: Upon the shipment of
cotton, bills of lading would be issued in
Texas to the shipper. Thereupon the cotton
would be loadea m the cars of the railway
company and a way bill indicating the num-
ber and initial of the car, the number of the
bill of lading, the date of shipment, the num-
ber of bales of tx)tton, the consiffnor, the con-
signee, the date of the bill of lading, the num-
ber of bales forwarded on that particular
way bill, the marks of the cotton, the weight,
rate, freights, amount prepaid, etc., would
be given to the conductor of the train bring-
ing the car to Westwego. Upon the receipt
of the way bill and car at Westweeo, a
"skeleton" would be made out by the clerks
at that place for the purpose of unloading
the car properly. It contained the essentiu
items of information covered by the way bill,
and had also the date of the making of the
skeleton. When this skeleton had thus been
made out and the car had been pushed in on
the side track in the rear of the wharf, it
would be taken by a clerk known as a "check
clerk," and with a gang of laborers, who act-
ually handled the cotton and were employed
by the railway company, the car would be
opened; and as the cotton was taken from
tne car bale by bale the marks would be ex-
amined to see that they corresponded with
the items on the skeleton, and the same were
then checked. The cotton thus taken from
the car was deposited at a place on the wharf
designated by the check clerk, and it would
remain there until the steamship company
came and took it away. After the checlcing
of the cotton in this *way to ascertain that[363]
the amounts, marks, and general information
of the way bill were correct, the skeleton
would be transmitted to the general office
of the Texas & Pacific Railway Company in
New Orleans, which thereupon would make
out what was designated as a "transfer
sheet" that contained substantially the in-
formation contained in the way bill, and
which being at once transmitted to the
steamship company or its agents was a no-
tification understoHod by the steamship com-
pany's agents that cotton for their line was
on the wharf at Westwego ready for them
to come and take away. Upon the receipt
of these transfer sheets the steamship com-
pany would collate the*transfers relating to
sucfi cotton as was destined bj them for 4
particular vessel, advise the railway com-
pany with the return of the transfers that
this cotton would be taken by the vessel
named, and would thereupon send the vessel
with their stevedores to the wharf at Wes1>-
wego. The clerk at Westweffo would go
around the wharf and by the aid of the trans-
fers returned from the steamship agents
point out to the master or mate of the ves-
727
858-856
SCPREMK COL'KT OF THE UnTTED STATES.
Oct. Tekx,
eel, or the one id charge of the loading, the
particular lots of cotton named in the trana*
fers and designated for his yessel, and the
stevedores and their helpers would thereup-
on take the cotton and put it on board the
ship. In connection witn the loading upon
the vessel or after the cotton was pointed out
in lots, the master or mate would sign a
mate's receipt for this cotton. The steve-
dores and all men employed in loading the
vessel were wholly in the employ of the
steamship company. The time of coming to
take cotton from the wharf was entirely in
the control of the steamship company. They
sent for it as soon as they were readv.
This was conceded to have been substan-
tially the method of business between the
railway company and the steamship com-
pany.
Counsel for the railway company correctly
states that on the morning of the fire, and on
other occasions prior thereto both in October
and November, the officers of the railway
company gave verbal notice to the steamship
company uiat the cotton was upon the wharf
[964] ready for the steamship company to *take
away and made reauest that the same should
be removed; that tne attention of the officers
of the steamship company was called to the
amount of cotton on the wharf which they
had contracted to carry, and they were re-
quested to move it at tiie earliest possible
moment and to comply with their contract;
and that in reply they said, in substance,
that their ships had been delayed, the prin-
cij>a] cause being certain labor troubles then
existing in New Orleans with employees of
the steamship companies, and another cause
being the baa weather.
It may be taken as established by the evi-
dence that the cotton in question was for
some days before the fire in a position on the
wharf ready to be taken by the steamship
company.
So far as the management of the wharf
and the protection of the cotton asainst fire
were concerned, the evidence failed to show
any negligence on the part of the railway
oompanv.
The defendant moved for a verdict in its
behalf upon two grounds: 1. The evidence
showed a delivery of the cotton to the con-
necting carrier before the fire occurred. 2.
If no delivery took place before the fire,
there had been a sufficient tender of the cot-
ton to the steamship carrier, and thereafter,
in view of the facts, the railway company
should be deemed to have held it as a ware-
hou!«eman, and as there was no proof of neg-
li(>^nce it was not liable for the value of the
cotton.
. The principal question arises out of that
clause in the oill of lading providing that in
case of any loss, detriment, or damage done
to or sui^tainoil by the cotton before its ar-
Ti\n\ and delivery at its final destination,
whereby liability was incurred bv any car-
rier, that carrier alone should be ndd liable
therefor in whose actual custody the cotton
•houUl be at the time of such damage, det-
rin\ent, or la^s. The circuit court of appeals
and the circuit court concurred in the view
ihi\t the cotton when burned was, within the
798
meaning of the contract^ in the aeteal co-
tody of the railway company. It will bsI
be disputed that in determining tkis qwi-
tion regard must be had to all the
sions of the contract. The danse
that the railway company should be
to have fully performed its part of the
tract "upon delivery of said oottom *to its Beztfw
connecting carrier" must be taken with the
clause immediately following, whicii maksi
that carrier alone liable who had actual en-
tody of it at the time of the loss. Tlie fint
thought suggested by these clauses, takes to-
gether, is tnat the parties reoognlxed the pof-
sibility that it might be often difficult to da-
termine what, as between carriers, in viev
of their relations to each other, would eoa-
stitute a sufficient delivery to the connectiif
carrier. And in order to meet that difBcnlty
the clause relating to actual custody vts
added, so as to indicate that the delivery in-
tended, so far as liability to the shipper for
loss was concerned, was not a oonstmctivi
one, but such a delivery as involved aetoal
custodyof the cotton by the connecting
rier. We do not understand that co
for the railway company dispute this
eral view. But they insist that within the
meaning of the contract, and under the iMdM
disclosed by the evidence, the steamship com-
pany had actual custody of the cotton at the
time it was burned. In support of their coa-
tention they rely principally upon Pratt t.
Ch'and Trunk Railway Company, 95 U. S. 41,
46 [24: 330, 339], and the cases upon whiek
that case largely rests — Merriam v. Smrtfvi
d N. H. Railroad Co. 20 Conn. 354, and Coe-
verse v. 'Sorwich d New York Tran$por1^
tion Co, 33 Ck>nn. 166.
It is important to understand what vfn
the facts upon which the judgment in Prvtt
V. Grand Trunk Railway Company
based. According to the report of that
they were these:
The Grand Trunk Railway Company, ei-
gaged as a carrier in the transportatica if
property, had received at Montr^ to be eu^
ried to Detroit certain goods shipped at !>-
erpool for St. Louis. The goods reached De-
troit in the cars of that company on the ITtk
day of October, 1865, and were destroyed by
fire in the night of the succeeding day.
The company had no freight room or kt
pot at Detroit, but it used there a single M^
tion or apartment in the friecht depot of tke
Michigan Central Railroad Company, t
building several hundred feet long, three or
four hundred feet wide, and all under oae
roof. Its different sections were vithoet
partition walls between them. In the rea-
ter of the building there was a railroad XxwA
for cars to be loaded with freieht. The «*^.,--.
tion *in that building used by the Gnrai;''*
Trunk Company was \xSed only as a place tor
depositing eoods and property that case
over its road or that were delivered for fiksf-
ment over it. In common with the rett ol
the building, that section was under the eaf
trol and supervision of the Michigaa Oatnl
Company.
The Grand Trunk Company emplo7«d ii
its section two men, who checked fr«^
cominir into it. But all freight that cum
173 V.&
188a.
Tbxas «ft Pacific R. Co. t. Clayton.
356-85^
into that section was handled exclusiyehr by
the employees of the Michigan Central Com-
pany, and the Orand Trumc Company paid
that company a fixed compensation per nun-
dred weight for such work aa well aa for the
use of its section.
Goods coming into that section from the
Grand Trunk iStilroad to be carried over the
road of the Michigan Central Company,
after being unloaded were deposited by the
employees of the latter c(xnpany in a certain
place in tiie Orand Trunk section, from
wkidi they were loaded into the cars of the
Michigan Central Company by its own em-
ployees, whenever that company was ready
to receive them; and after beinff so placed
the employees of the Grand Trui& Company
did not further handle such goods.
Whenever the agent of the Michigan Cen-
tral Company saw any ffoods deposited in the
section of the freight building used by the
Grand Trunk Company and which were to
be carried over the line of the former com-
pany, he would call on the agent of the latter
company in the building, and from the way
bill exhibited by the aeent of the Grand
Trunk Company take a list of such goods,
and would then for the first time learn their
place of destination, together with the
amount of freight charges due thereon.
From the information thus obtained a way
bill would be made out by the Michigan Cen-
tral Company for the transportation of the
eoods over its line of railway, and not be-
lore.
The ffoods referred to in the Pratt Case
were tiucen from the Grand Trunk cars on
the 17th day of October, 1865, and deposited
in the aparbnent of the freight building used
by the Grand Trunk Company in the place
assigned for goods so destined.
] *At the time the goods were forwarded from
Montreal the way bill in accordance with
usage in such cases was made out in dupli-
cate, on which were entered a list of the
goods, .the names of the consignees, the
places to which they were consigned, and the
charges against them from Liverpool to De-
troit. The conductor having charge of the
train containing the goods would take one of
these way bills, and on arriving at Detroit
wcold deliver it to the checking clerk of the
Grand Trunk Company, "from which said
clerk checked said goods from the cars into
?aid Bection." The other copy would be for-
warded to the agent of the Orand Trunk
Company at Detroit. **It was the practice
of the Michigan Central Railroad Company,
before forwarding such goods, to take from
^aid way bill in me custody of said checking
clerk, in the manner aforesaid, the place of
dc!»tination and a list of said goods, and the
amount of accumulated charges, and to col-
lect the same, together with its own charges,
of the connecting carrier."
This court, in view of these facts, said:
'^e are all of the opinion that these acts
constituted a complete delivery of the goods
to the Michigan Central Conipany, by which
the liability of the Grand Trunk Company
was terminated. 1. They were placed with-
in the control of the agents of the Michigan
f'ompany. 2. They were deposited by one
173 U. 8.
party and received by the other for transpor-
tation, the deposit being accessory merely t»
such transportation. 3. No further oraera
or directions from the Orand Trunk Com-
pany were expected by the receiving party.
Except for the occurrence of the fire, the
goods would have been loaded into the cart
of the Michigan Central Company, and for-
warded, without further action of the Gruid
Trunk Company. 4. Under the arrauffe-
ment between the parties, the presence of uio
goods in the precise locality agreed upon, and
the marks upon them T. & F., St. Louis,'
were sufficient notice that they were there for
transportation over the Michigan road to-
wards the city of St. Louis; and such was
the understanding of both parties.'' Refer-
t-ing to the section of the freight building
specially used by the Grand Trunk Company,
the court said: "It was a portion *of th^368]
freight house of the Michigan Company, in
which a precise spot was selected or set
apart, where the defendant might deposit
goods brought on its road and intended for
transportation over the Michigan road, and
which, by usage and practice and the expec-
tation of the parties, were then under the
control of the Michigan Company, and to be
loaded on to its cars at its convenience, with-
out further orders from the defendant."
We do not think that the judgment in
Pratt V. Railway Company controls the de-
termination of the present case. In many
important particulars the two caseif are ma-
terially different. In the Pratt Case the
court proceeded upon the ground that the
good^ were deposited in a section of a freight
building set apart by the conneccing carrier,
the owner of the building, for goods coming
over the line of the first carrier to be trana-
ported in the cars of the connecting carrier
to the place to which they were consigned,
the goods having been unloaded cy the em-
ployees of the connecting carrier and by
them deposited in that section, to be put by
such employees into the cars of that carrier
at its convenience. It was a case in which the
goods passed under the complete control and
supervision and into the actual custody of
the connecting carrier from the moment they
were deposited in the section t>et apart for
them. •
In the case at bar, the facts plainly indi-
cate that although the goods had been placed
by the first carrier upon the wharf and al-
though that was the place at which the
steamship company was to receive or usually
received goods from the railway company
for further transportation, they were not in
the actual possession or under the actual
control of the connecting carrier at the time
of the fire. The connecting carrier had not
given a mate's receipt for the cotton or as-
sumed control of it. True, it had received
notice that the ^oods were on the wharf and
could be taken into possession, out such no-
tice did not put the cotton into the actual
custody of the connecting carrier. The op-
portunity given it to take" possession or its
mere readiness to take possession was not
under the contract equivalent to placing the
cotton in the actual ^custody of the steam-[369)
ship line. The undertaking of the railway
729
868-856
8UPBEM1£ COL'KT OF THB UNITED StATBS.
Oct. Tkbm,
Bel, or the one in charge of the loading, the
particular lota of cotton named in the trana-
lers and deaiflpated for his vessel, and the
stevedores and their helpers would thereup-
on take the cotton and put it on board the
nhip. In connection witn the loading upon
the vessel or after the cotton was pointed out
in lots, the master or mate would sign a
mate's receipt for this cotton. The steve-
dores and all men employed in loading the
vessel were wholly in the employ of the
steamship company. The time of coming to
take cotton from the wharf was entirely in
the control of the steamship company. They
sent for it as soon as they were readv.
This was conceded to have been substan-
tially the method of business between the
railway company and the steamship com-
pany.
Counsel for the railway company correctly
states that on the morning of the fire, and on
other occasions prior thereto both in October
and November, the officers of the railway
company gave verbal notice to the steamship
company Uiat the cotton was upon the wharf
[S64] ready for the steamship company to *take
away and made reauest that the same should
be removed ; that tne attention of the officers
of the steamship company was called to the
amount of cotton on the wharf which they
had contracted to carry, and they were re-
quested to move it at the earliest possible
moment and to comply with their contract;
and that in reply they said, in substance,
that their ships nad been delayed, the prin-
cipal cause being certain labor troubles then
existing in New Orleans with employees of
the steamship companies, and another cause
being the bad weather.
It may be taken as established by the evi-
dence that the cotton in question was for
some days before the fire in a position on the
wharf ready to be taken by the steamship
company.
So far as the management of the wharf
and the protection of the cotton against fire
were concerned, the evidence failed to show
any negligence on the part of the railway
eorapanv.
The defendant moved for a verdict in its
behalf upon two grounds: 1. The evidence
showed a delivery of the cotton to the con-
necting carrier before the fire occurred. 2.
If no delivery took place before the fire,
there had been a sufficient tender of ttie cot-
ton to the steamship carrier, and thereafter,
in view of the facts, the railway company
should be deemed to have held it as a ware-
houseman, and as there was no proof of neg-
ligence it was not liable for the value of tbe
cotton.
. The principal question arises out of that
clause in the bill of lading providing that in
case of any loss, detriment, or damage done
to or sustained by the cotton before its ar-
rival and delivery at its final destination,
whereby liability was incurred by any car-
rier, that carrier alone should be held liable
therefor in whose actucU custody the cotton
should be at the time of such damage, det-
riment, or loss. The circuit court of api>eals
and the circuit court concurred in the view
that the cotton when burned was, within the
728
meaning of the contract, in the actual cus-
tody of the railway company. It will not
be disputed that in determining this ques-
tion regard must be had to all the provi-
sions of the contract. The clause decfarinff
that the railway company should be deemed
to have fully performed its part of the con-
tract "up<m debvery of said cotton * to its next[8S5)
connecting carrier" must be taken with the
clause immediately following, which makes
that carrier alone liable who had actual cus-
tody of it at the time of the loss. The first
thought su&igested by these clauses, taken to-
gether, is ^at the parties recognized the pos-
sibility that it might be often difficult to de-
termine what, as between carriers, in view
of their relations to each other, would con-
stitute a sufficient delivery to the connecting
carrier. And in order to meet that difficulty
the clause relating to actual custody was
added, so as to indicate that the delivery in-
tended, so far as liability to the shipper for
loss was concerned, was not a constructive
one, but such a delivery as involved actual
custodyof the cotton by the connecting car-
rier. We do not understand that counsel
for the railway company dispute this gen-
eral view. But they insist that, within the
meaning of the contract, and under the facta
disclosed by the evidence, the steamship com-
pany had actual custody of the cotton at the
time it was burned. In support of their con-
tention they rely principally upon Pratt t.
Grand Trunk Railway Company, 95 U. S. 43,
46 [24: 330, 339], and the cases upon which
that case largely rests — Merriam v. Hartford
d N, H, Railroad Co, 20 Conn. 354, and Con-
verse V. "Norwich d New York Transport^'
tion Co. 33 Conn. 166.
It is important to understand what were
the facts upon which the judgment in Pratt
V. Grand Trunk Railway Company was
based. According to the report of that case
they were these:
The Grand Trunk Railway Company, en*
gaged as a carrier in the transportation of
property, had received at Montreal to be car-
ried to Detroit certain goods, shipped at Liv-
erpool for St. Louis. Tne goods reached De-
troit in the cars of that company on the 17th
day of October, 1865, and were destroyed by
fire in the night of the succeeding day.
The company had no freight room or de-
pot at Detroit, but it used there a single sec-
tion or apartment in the frieght depot of the
Michigan Central Railroad Company, a
building several hundred feet long, three or
four hundred feet wide, and all under one
roof. Its different sections were without
partition walls between them. In the cen-
ter of the building there was a railroad track
for cars to be loaded with freifrht. The sec-
tion *in that building used by the Grand[366]
Trunk Company was u^ only as a place for
depositing eoods and property that came
over its road or that were delivered for ship-
ment over it. In common with the rest of
the building, that section was under the con-
trol and supervision of the Michigan Central
Company.
The Grand Trunk Company employed ia
its section two men, who checked freight
cominj; into it. But all freight that came
173 U. S.
>
im.
Ukitbd States y. Johnson.
861-363
KorUiem road should t&ke it from thence at
a time oonvenient to them. The oonstruo-
tioD of tiie depot and the uniform usage are
eondusive of it. The depot was constructed
with a platform by the side of the track for
the reception of goods to be taken from or
put into the cars; and on that platform tho
railroad company in the first and every in-
stance of delivery by them placed their
freight, and the transportation company at
their convenience took it away and carried
it on board their boat. And so the transpor-
2]tsiti<Ni ^company in like manner in the first
and everv instance placed there the freight
for tJie korthem road; and they at their
convenience put it in their cars and took it
away. And the usage was precisely the
■ame with the Worcester road. . . . Upon
this wharf and into the indosure the North-
em road laid their track for the delivery
and reception of freight to and from the
transportation company. Both parties then
eoDtemplated a delivery and reception on
this wharf and in this inclosure, and obvi-
ously in the precise manner actually pursued.
... It is dear, then, that both the trans-
portation company and the Northern road
contemplated that a placing of freight by
either intended for the oSier upon that
platform was all that either was to do bv
way of delivery of their freight to each
other."
It is to be observed that neither in the
Pratt Caae nor in the Converse and Merriam
Caaea was there any dause in the contract
between the parties to the effect that the
flhipoer, in enforcing his daim for liability,
should look alone to the carrier who had the
actual custody of the Roods at the time they
were lost or destroyed. It is the dause of
that character in the bill of lading now in
suit which makes the judgments in the
Pratt, Converse and Merriam Cases inap-
plicable to the present case.
A further contention of the defendant is
that at the time of the fire it held the goods,
if at all, only as a warehouseman and not as
a common carrier, and that the circuit court
erred in not so instructing the jury. We
cannot assent to this view. As the goods
had not at the time of the fire passed into
the actual custody of the steamship com-
pany, and as the contract expressly declared
that if any carrier was liable for their de-
struction that one alone should be liable in
whose actual custody the goods were when
dcBtroyed, the defendant could not escape re-
sponsibility by showing that the connecting
carrier could by reasonable diligence have
takenactualcustodypriortothefire. In other
words, it could not convert itself into a ware-
houseman by proving that it had, before the
fire, tendered the gocms to the connecting car-
rier, and that the latter neglected, alt^Dugh
3] without reasonable excuse, U» take them *in-
to its actual custody. Even if this were not
80, the suggestion that the railway company
had become a warehouseman before the fire
occurred can be disposed of on the grounds
stated by the circuit court of appeals.
Speakinff by Judge Wallace, that court said:
'There is no room for the contention that
the defendant had caused to be a carrier and
173 V. 8.
become a warehouseman. It had done no
act evidencing its intention to renounce the
one capacity and assume the other. Al-
though it had requested the steamship line
to remove the cotton, it had not specific any
particular time within which compliance was
insisted on, and had not given notice that tlit
cotton woiUd be kept or stored at the risk of
the steamship line upon failure to comply
with the request. The request to oome and
remove it 'as soon as practicable' was, in ef-
fecty one to remove it at the earliest conven-
ience of the steamship line. There is noth-
ing in the case to indicate that the defendant
had not acquiesced in the delay which inter-
vened between the request and the fire." 61
U. 8. App. 676, 686.
Under the views expressed in this opinion,
it is unnecessary to enter upon a review of
the numerous cases cited by counsel for the
railway company in their able and* elaborate
brief to support the different propositions
discussed by them.
We are of opinion that the circuit court
did not err in directing a verdict for tlit
plaintiff, and the judgment is affirmed.
UNITED STATES, Plff. in Brr^
V.
JESSE JOHNSON.
(See 8. C. Reporter's ed. 868-881.)
Special compensation of district attorney
Services of a United States district attorney In
instituting and conducting proceedlngB on be-
half of the government for the condenma-
tion of land for public purposes, within his
district, are such as the law requires the dis-
trict attorney to render, and consequently he
can receive no special compensation therefor,
as such proceedings constitute a civil action
within U. S. Rev. Stat f 771, and are the busi-
ness of the United SUtes within f 824.
[No. 69.]
Submitted November 10, 1893, Decided
February £7, 1899,
ON CERTIFICATE from the United Stotes
Circuit Court of Appeals for the Second
Circuit certifying to this court certain ques-
tions of law upon which the Circuit Court
of Appeals desired instructions in an action
brought by Jesse Johnson, plaintiff, in the
Circuit Court of the United States for the
Eastern District of New York, against the
United States for compensation for services
rendered by the plaintiff as United States
district attorney, for which he claimed com-
pensation beyond the salary and emoluments
attached to the said office in which suit
a judgment was rendered in his favor against
the government for the sum of $6,513.96.
Question as to plaintiff's right to extra com-
pensation answered in the negative.
The facts are stated in the opinion.
Mr. James E. Boyd* Assistant Attorney
General, for the plaintiff in error.
731
859-361
ifupRBHS Court or thb Uhitbd States.
Oct. TflBi.
company was to transport safely and deliver
to tne next connecting carrier. Bat its far-
ther express agreement was, in sobstance,
that if any carrier incurred liability to the
shipper in respect of the goods, that carrier
alone was to be liable who, at the time tha
cotton was damaged or lost had it in actual
custody. In other words, tne ddiverr to the
connecting carrier which would, a« between
the first carrier and the shipper, terminate
the liability of such carrier, must have been
a delivery that put the cotton into the ac-
tual^ not constructive, custodv of the con-
necting carrier. To hold otherwise is to
eliminate from the contract the clause re*
lating to actual custody. The entire argu-
ment of the learned counsel for the railway
company in effect assumes that the contract
means no more than it would mean if that
clause were omitted. But the court cannot
hold that that clause is meaningless, or tnat
it was inserted in the contract in ignorance
of the meaning of the words "actu^ custo-
dv." Nor can it be supposed tnat the par-
ties understood the contract to mean that
the connecting carrier was to be deemed to
have actual custody from the moment it
oould have taken actual custody if it had
seen proper to do so. So far as the shipper
was concerned, the actual custody of the first
earrier could not cease until it was in fact
displaced by the actual custody of the con-
necting carrier. It may be that the railway
company has good ground for saying that, as
between it and the connecting «?arrier, me
latter was bound to take actual custody
whenever the railway company was ready to
surrender possession, and thereby relieve the
latter from possible liability to tlie shitiper
in the event of the loss of the cotton while in
its custody. That is a matter between the
two carriers, touching which we express no
opinion. But we adjudge that Uie shipper
cannot be compelled, when seeking damages
for the value of his cotton destroyed by fire
in the course of its transportation, to look to
any carrier except the one who had actual
custody of it at the time of the fire. . One of
the conditions imposed upon him by the con-
tract was tlhat if any carrier became liable to
him he should have no remedy except against
|S60]the one having such *actual custody.
That remedy should not be taken from him
by a construction of the contract inconsis-
tent with the ordinary meaning of the words
used.
The two cases in the supreme ^^ourt of Con-
necticut which were cited in Praii v. Grand
Trunk Railioay Co. undoubtedly suntain the
Srinciples announced in that case, but they
0 not militate against the views we have ex-
pressed in this case.
Merriam v. Hartford d New Haven Rail-
road Co. 20 Conn. 354, 360, was an action on
the case for negligence on the part of a rail-
road company m the transportation and de-
livery of certain goods, ana in which it was
a question whetl^r the goods had been de-
livered to the company before their destruc-
tion. After stating Uie general rule to be
that, in order to charge a common carrier for
the loss of property delivered to it for trans-
portation, the property must be delivered Into
*f30
the hands oi tbm carrier itsell or its
or some penon aothorized by the carrier ti
receive i^ and that if it was merely depostei
in the irard of an inn, or upon a wharf ts
which the carrier resorts, or in the carriv^
cart, vessel, or carriage, without the kaovl-
edffe and acceptance of the carrier, its terr-
ants or agents, there woold be bo snfBrifl
deliverr to charge the carrier, the eoert
said: '^But this rule is enbject to aay em-
ventional arrangement between the partis
in r^;ard to the mode of d^vcry, mid pre-
vails only where there is no teoA an
ment. It ie competent for them to
such stipulations on the subject as they
fit; and when made they, and not the
law, are to govern. If, therefore, they sgrst
that the property ma^ be deposited for tnat-
portation at any particular place withoot say
express notice to the earner, tntk dcpssit
merely would be a sufficient delivery. Se p
in this case the defendants had not sgreed u
dispense with the express notice of the de-
livery of the property on their dock, i
notice thereof to tnem would have beea
sary; but if there was such mm
the deposit of it there merely
to constructive notice to the defendaats, sad
constitute an acceptance <^ it by thaa. Ami
we have no doubt Uiat the proof by the plais-
tiff of a constant and habitual practice sad
usatfe of the ^defendants to reeeive propartyiS
at tneir dock for transportation in the
ner in which it was deposited by the
tiff, and without any special notiee
deposit, was competent, and in this
ficient, to show a public offer by the
ants to receive property for that purpose sad
in that mode; and that the d^vciy sf H
there accordingly by the plaintiff in pens-
ance of such offer should be deemed a tarn-
plianoe with it on his part, and to to ops-
stitute an agreement between the parties fef
the terms of which the property, if m dr-
posited, should be considered as delivered ti
the defendants without any other aetin.
Such practice and usage were tantaiBovat t»
an open declaration, a public adftitii— it
by uie defendants, that such a Odivvv
should of itself be deemed an aeoeptaaet si
it by them for the purpose of transportaSiM;
and to permit them to set up agaiBst thM
who had been thereby induoea to omit it. the
formality of an express notice, whick hid
thus been waived, would be sanetMaiaf tte
greatest injustice and the most pa$sUi
fraud."
Converse v. Norwich d New York fi—
portaiUm Co. 3 Conn. 166, 181, iavohred tke
?|ue8tion whether certain goods bad bea d^
ivered to the connecting carrier prier t*
their destruction bv fire. Hie wharf ssd
depot building in whidi the goods wen 4^
posited by the first earrier wtn ovwd kf
the connecting carrier, and the first nmer
paid an annual rental for its use ia its be*-
ness. The court, among other thiags, Aid:
'^e have no difficulty in determiaiag. iaM
we most hold, that there
agreement, or tacit understaadiag 4
lent to such an agreement, that the
Sri-
agreement,
portation company should place the tknefft
freight at that precise spot, sad that tW
1608.
UmnsD States t. Johnson.
861-363
Kortliem road should t&ke it from thence at
a time convenient to them. The construc-
tion of Uie depot and the imiform usage are
eondusive of it. The depot was constructed
with a platform by the side of the track for
the reception of goods to be taken from or
put into the cars; and on that platform the
railroad company in the first and every in-
stance of delivery by them placed their
freight, and the transportation company at
their oonvoiience took it away and carried
it on board their boat. And so the transpor-
B2]taiion ^company in like manner in the first
and every instance placed there the freight
for the Northern road; and they at their
convenience put it in their cars and took it
away. And the usage was precisely the
same with the Worcester road. . . . Upon
this wharf and into the inclosure the North-
em road laid their track for the delivery
and reception of freight to and from the
transportation company. Both parties then
contemplated a deliverer and reception on
this wharf and in this inclosure, and obvi-
ously in the precise manner actually pursued.
. . . It is dear, then, that both the trans-
portation company and the Northern road
contemplated that a placing of freight by
either intended for the ouker upon that
platform was all that either was to do bv
way of delivery of their freight to each
other."
It is to be observed that neither in the
Pratt Case nor in the Converse and Merriam
Cases was there any clause in the contract
between the parties to the effect that the
shipper, in enforcing his daim for liability,
should look alone to the carrier who had the
actual custody of the Roods at the time they
were lost or destroyed. It is the dause of
that character in the bill of lading now in
suit which makes the judgments in the
Pratt, Converse and Merriam Cases inap-
plicable to the present case.
A further contention of the defendant is
that at the time of the fire it held the goods,
if at all, only as a warehouseman and not as
a common carrier, and that the circuit court
erred in not so instructing the jury. We
cannot assent to this view. As the goods
had not at the time of the fire passed into
the actual custody of the steamship com-
pany, and as the contract expressly declared
that if any carrier was liable for their de-
struction that one alone should be liable in
whose actual custody the goods were when
destroyed, the defendant could not escape re-
sponsibility by showing that the connecting
carrier could by reasonable diligence have
taken actual custody prior to the fire. In other
words, it could not convert itself into a ware-
houseman by proving that it had, before the
fire, tendered the goods to the connecting car-
rier, and that the latter neglected, although
\3]wiihovct reasonable excuse, to take them *in-
to its act^ial custody. Even if this were not
BO^ tlie suggestion that the railway company
had bec«me a warehouseman before the fire
oocurred can be disposed of on the groimds
gtated by the circuit court of appeals.
Speaking by Judge Wallace, that court said:
''There is no room for the contention that
the defendant had ceased to be a carrier and
173 U. 8.
become a warehouseman. It had done no
act evidencing its intention to renounce the
one capadty and assume the other. Al-
though it had requested the steamship line
to remove the cotton, it had not specific any
particular time within which compliance was
insisted on, and had not given notice that tlit
cotton would be kept or stored at the risk of
the steamship line upon failure to comply
with the request. The request to oome and
remove it 'as soon as practicable' was, in ef-
fecty one to remove it at the earliest conven-
ience of the steamship line. There is noth-
ing in the case to indicate that the defendant
had not acquiesced in the delay which inter-
vened between the request and the fire." 61
U. 8. App. 676, 686.
Under the views expressed in this opinion,
it is unnecessary to enter upon a review of
the numerous cases cited by counsd for the
railway company in their able and* elaborate
brief to support the different propositions
discussed by them.
We are of opinion that the circuit court
did not err in directing a verdict for tlit
plaintiff, and the judgment is affirmed.
UNITED STATES, Plff. in Brr^
V,
JESSE JOHNSON.
(See 8. C. Beporter'B ed. 868-831.)
Special compensation of district attorney.
Services of a United States district attorney in
instituting and conducting proceedings on be-
half of the government for the condemna-
tion of land for public purposes, within his
district, are such as the law requires the dis-
trict attorney to render, and consequently he
can receive no special compensation therefor,
as such proceedings constitute a civil action
within U. S. Rev. Stat f 771, and are the busi-
ness of the United States within f 824.
[No. 69.]
Submitted November 10, 1893. Decided
February «7, 1899.
ON CERTIFICATE from the United SUtes
Circuit Court of Appeals for the Second
Circuit certifying to this court certain ques-
tions of law upon which the Circuit Court
of Appeals desired instructions in an action
brought by Jesse Johnson, plaintiff, in the
Circuit Court of the United States for the
Eastern District of New York, against the
United States for compensation for services
rendered by the plaintiff as United States
district attorney, for which he claimed com-
pensation beyond the salary and emoluments
attached to the said office in which suit
a judgment was rendered in his favor against
the government for the sum of $6,513.96.
Question as to plaintiff's right to extra com-
pensation answered in the negative.
The facts are stated in the opinion.
Mr. James E. Boyd* Assistant Attorney
General, for the plaintiff in error.
731
864-867
SUPKBMB COUHT OF THE Um1TE1> UTATEA,
Oct. Tkbm,
Mr, Jesse Johnsoiiy defendant in error,
in proper person.
[S€4] *Mr. Justice Harlan delivered the opinion
of the court:
In the circuit court of the United States
for the eastern district of New Y'ovk a judg-
ment was rendered against the government
and in favor of the defendant in error, John-
son, for the sum of $6,513.95. (M that
amount $6,500 represented the value of legal
services rendered for the United btates oy
Johnson while he held the office of district
attorney for that district, in proceedings in
that court for the condemnation of certain
lands for public purposes.
The case having been carried by writ of
error to the circuit court of appeals, certain
questions of law arose as to wnich instruc-
tions are. desired from this court, — the con-
trolling question being whether Johnson was
entitled, for the services rendered, to any
compensation beyond the salary and emolu-
ments attached to his office.
The sections of the Revised Statutes (Title
13, chap. 16) upon the construction of which
the answers to the questions propounded
more or less depend are the following:
"S 355. No public money shall be expend-
ed upon any site or land purchased by the
United States for the purpose of erecting
thereon any armory, arsenal, fort, fortifica-
tion, navy-yard, custom-house, li^ht-house,
or other public building, of any kind what-
ever, until the written opinion of the Attor-
ney General shall be had in favor of the va^
lidity of the title, nor until the consent of
the legislature of the state in which the land
or site may be, to such purchase, has been
given. The district attorn^ of the United
[866^tatee, upon the application *of the Attorney
General, shall furnish any assistance oi in-
fc:mation in their power in relation to the
titles of the public i>roperty lying within
their respective districts. And the Secre-
taries of the Departments, upon the applica-
tion of the Attorney General, shall procure
any additional evidence of title which may
be deemed necessary and which may not be
in possession of the officers of the govern-
ment, and the expense of procuring it shall
be paid out of the appropriations made for
the contingencies of the Departments re-
spectively."
"§ 767. There shall be appointed in each
district, except in the middle district of Ala-
bama, and tne northern district of Georgia,
and the western district of South Carolina,
a person learned in the law,* to act as attor-
ney for the United States in such district."
"§ 770. The district attorney for the
southern district of New York is entitled to
receive quarterly for all his services a sala-
ry at the rate of $6,000 a year. For extra
services the district attorney for the dis-
trict of California is entitled to receive a
salary at the rate of $500 a year, and the
district attorneys for all other distrioia at
the rate of $200 a year.
"§ 771. It shall be the duty of every dia-
irict attorney to prosecute in his district all
delinquents for crimes and offenses cogniza-
ble under the authority of the United States,
732
and all civU aotiona in which IA« UtUied
States are concerned, and, unless otherwise
instructed by the Secretary of the Treasurr,
to appear in behalf of the defendants in ail
suits 6t proceedings pending in liis district
against collectors, or otiier officers cf the rev-
enue, for any act done by them, or for the re-
covery of any monev exacted by or paid to
such officers and by them paid into the Treas-
ury."
^'§ 823. The followinff and no other com-
peneation shall be taxed and allowed to at^
torneys, solicitors, and proctors in the courts
of the United States, to district attorneys,
clerks of the circuit and district courts, mar-
shals, commissioners, witnesses, jurors, and
printers in the several states and territories,
except in cases otherwise expressly provided
by law. But nothing herein shall be con-
strued to prohibit attorneys, solicitors, *aad[366]
proctors from charging to and receiving from
their clients, other than the ^'ivernmenty
such reasonable compensation for their serv-
ices, in addition to the taxable costs, as may
be in accordance with general usai^e in their
respective states, or may be agreed upon be-
tween the parties.
*'§ 824. . . For examination by a dis-
trict attorney, before a judf e or ennmission-
er, of persons charj^ed with crime, fLve dol-
lars a day for the time necessarily employed.
For each day of his necessary attendance im
a court of the United States on (he business
of the United States, when the court is held
at the place of his abode, five dollars; and
for his attendance when the court, is held
elsewhere, five dollars for each day of tne
term.
"§ 825. There shall be taxed and paid to
every district attorney two per centum upon
all moneys collected or realized in any suit
or proceeding arising under the revenue
laws, and conducted by him, in which the
United States is a party, which shall be in
lieu of all costs and fees in such proceeding."
"§ 827. When a district attorney appears
by dericUon of the Secretary or Solicitor of
the Treasury, on behalf of any oiUcer of the
revenue in any suit against such officer, for
any act done by him, or for the recoveiy of
any money received by him and paid into the
Treasury in the performance of his official
duty, he shall receive such compensation as
may be certified to be proper by the coui t ia
which the suit is brought, and approved by
the Secretary of the Treasury."
"§ 833. Every district attorney, clerk of
a district court, clerk of a circuit court, and
marshal, shall, on the first days of January
and July, in each year, or within thirty days
thereafter, make to the Attorney General, in
such form as he may prescribe, a written re-
turn for the half year ending on said days,
re.spectively, of all the fees and emoluments
of his office, of every name and character,
and of all the necessary expenses of his of-
fice including necessary clerk hire, together
with the vouchers for the payment of the
same for such last half year. He phall state
separately in such returns the fees and emolu-
ments received or payable under tne bank-
rupt act ; and ersry marshal saall state sep-
aratelv therein the fees and emotuments ^tWssT)
173 V. &
1808.
Onitbd States v. JomreoH.
867-Mi
ttiyed or payable for services rendered by
hmiself personally, those received or payable
lor services rendered by each of his deputies,
Baming him, and the proportion of such fees
aad emoluments which, by the terms of his
■Mvice, each deputv is to receive. Said re-
tmnB shall be verified by the oath of the of-
ficer making them.
"§ 834. The preceding section shall not
appl^ to the fees and compensation allowed
to district attorneys by sections eisht hun-
dred and twenty-five and eight hundred and
twenty-seven. All other fees, charges, and
emoluments to which a district attorney or a
marshal may be entitled by reason of the
discharge of the duties of his office, as now
or hereafter prescribed by law, or in any
ease in which the United States will be
bound by the judspnent rendered therein,
whether prescribed oy statute or allowed by
a court or any judge thereof, shall be in-
duded in the semi-annual return required of
laid officers by the preceding section.
**% 835. No district attorney shall be al-
lowed by the Attorney Gener^ to retain of
the fees and emoluments of his office which
he is required to include in his semi-annual
return, for his personal compensation, over
and above the necessary expenses of his of-
fice including necessary clerk hire, to be au-
dited and allowed by the proper accounting
officers of the Treasury Department, a sum
twoeeding siw ihousarid dollars a year, or
exceeding that rate for any time less than a
year."
"I 844. Every district attorney, clerk, and
marshal, shall at the time of making his
half-yearly return to the Attorney General,
pay into the Treasury, or deposit to the
credit of the Treasurer, as he may be di-
rected by the Attorney General, any surplus
of the fees and emoluments of his office,
which said return shows to exist over and
above the compensation and allowances au-
thorized by law to be retained by him."
"§ 1764. No allowance or compensation
ehall be made to any officer or clerk, by rea-
son of the discharge of duties which belong
to any other officer or clerk in the same or
any other Department; and no allowance or
compensation shall be made for any extra
iervices whatever, which any officer or clerk
may he required to perform, unless empress-
ly authorised by law.
88] •«! 1765, jfo officer in any branch of the
public service, or any other person whose
salary, pay, or emoluments are fixed by law
or regulations shall receive any additional
V^y, extra allowance, or compensation, in
any form whatever, for the disbursement of
public money, or for any other service or
duty whatever, unless the same is authorized
by law, and the appropriation therefor ex-
l^reasly states that it is for such additional
poy, extra allowance, or compennation"
By section 3 of the act of June 20th, 1874
( 18 Stat, at L. 85, 109, chap. 328 ) , it was pro-
vided that "fio civil officer of the government
shall hereafter receive any compensation or
perquisites, directly or indirectly, from the
Treasury or property of the United States
^ond his salary or compensation allowed
h law: Provided, That this shall not be con-
173 U. S.
strued to prevent the employment and pay-
ment, by the Departmittit (^ Justice, of dis-
trict attorneys as now allowed by law for the
performance of services not oovertd by their
salary or fees"
The facts to be considered in connecti<m
with these statutory provisions are set forth
in a statement accompanying the certificate
of (|uestions. They may he thus sum-
marized:
By the fortification act of August 18th,
1890 (26 Stat, at L. 315, 316, chap. 797 ) , ap-
Eropriations were made for gun and mortar
atteries, as follows: "For construction of
gun and mortar batteries for defense of Bos-
ton harbor, two hundred and thirty-five
thousand dollars; New York, seven hundred
and twenty-six thousand dollars; Saji Fran-
cisco, two hundred and sixty thousand dol-
lars.'*
The same act contained the following pro-
vision: "For the procurement of land or
right pertaining thereto, needed for the site,
location, construction, or prosecution ol
works for fortifications and coast defenses,
five hundred thousand dollars, or so much
thereof as may be necessary, and hereafter
the Secretary of War may cause proceedings
to be instituted in the name of the United
States, in any court having jurisdiction of
such proceeding for the acc^uirement by
condemnation of anv land, or right pertain-
ing thereto, needed for the site, location, con-
struction, or prosecution of works for for-
tifications and coast defenses, such proceed-
ings to be prosecuted in accordance *with the [360]
laws relating to suits for the condemnation
of property of the states wherein the pro-
ceedings may be instituted: Provided, That
when the owner of such land or rights per-
taining thereto shall fix a price for the same,
which in the opinion of the Secretarv of War
shall be reasonable, he may purcnase the
same at such price without further delay:
Provided further. That the Secretary of War
is hereby authorized to accept on behalf of
the United States donations of land or rights
pertaining thereto required for the alK>ve-
mentioned purposes : And provided further,
That nothing herein contained tthall be con-
strued to authorize an expenditure or to in-
volve the government in any contracts for
the future payment of money, in excess ol
the sums appropriated therefor."
By the subsequent act of July 23d, 1892 (27
Stat, at L. 257, 258, chap. 233), Rve hundred
thousand dollars, or so much thereof as was
necessary, was appropriated "for the pro-
curement of land or right pertaining thereto,
needed for the site, location, construction, or
prosecution of work for fortifications and
coast defenses."
In the year 1891, at the special written
request of the Secretary of War, Johnson, be-
ing then United States district attorney for
the eastern district of New York, was in- *
structed by the Attorney General of tbi
United States to institute proceedings on be-
half of the government of the Unit^ StatM
for the condemnation for a mortar battery of
certain lands on Staten Island, New York,
adjacent to Fort Wadsworth In that district.
With such instructions the Attorney Gen-
733
869-878
Supreme Couiit of thb ITnited States.
Oct.
€ral inclosed a copy ol the Secretary's re-
auest, and stated that he acted agreeably
liereto.
Proceeding under the above employment
in the name of the government of the united
States, Johnson took steps to acauire such
lands by proceedings for their couaemnation,
and obtained decrees against the persons in-
terested in them. In order to carrv on such
proceedings it was necessary that he should
search and ascertain, and he did search and
ascertain, the titles to the lands sought to
be condemned. After rendering these serv-
ices, he presented two bills against the gov-
ernment, which were approv^ and allowed
[970]by the Attorney •Gteneral, one being for $4,-
000, and the other for $2,500. These serv-
ices were rendered by him in 1802, and were
worth those sums respectively.
In the statement that accompanies the
questions certified it is said that for many
years before 1892, and for many years prior
to Johnson's employment, it was the custom
and usage of the government to pay to dis-
trict attorneys, under like employment and
for like services, compensation outside of
thei/ annual salaries as fixed by statute at
the sum of two hundred dollars.
Johnson had received from the United
States for services (other thar. those above
mentioned) rendered for the government in
the year 1802, either as district atttomey or
under employment or directions of the At-
torney General, the sum ol $2,250.
In 1891 he rendered services to the gov-
ernment in and about the acquisition of oth-
er lands in his district by condemnation
proceedings. These services were rendered
under employment similar to that above
stated, in acc^uiring lands for like purposes.
For the services thus rendered in 1891 he
was paid by the ffovemment a sum exceeding
six tnousand dollars. He had also bMn paid
for other services rendered to the government
in 1891 further and additional sums. The
aggr^ate so paid for services in 1891 ex-
ceeded six thousand dollars by a sum which,
together with the amounts paid to him as
at^ve stated for services rendered in 1892,
equaled the sum of six thousand dollars.
Such excess over six thousand dollars existed
and appeared after crediting and allowing
on the sums so received by him the necessary
expenses of his office, including the necessary
clerk hire, as audited and allowed to him in
the years 1891 and 1892.
Aftor the services rendered in 1892, and
aftor the above sum of 9ix thousand five hun-
dred dollars had been allowed by the Attor-
ney General as stated, the accounting officers
of the United States caused a warrant on
funds appropriated for the War Department
to be drawn for the sum of six thousand five
hundred dollars, and "conveyed into the
Treasury of the United States." That warrant
[S71]"was drawn and conveyed" *affainet and
iit payment of the amount which Johnson,
for services rendered in 1891, had been paid
in excess of the maximum fixed by section
S35 of the Revised Statutes. Such convey-
ance and application were made by the gov-
ernment without his consent, and except as
above stated his claim for six thousana five
734
hundred dollars has not been allowed or
paid.
After the above services were resdered ia
1892 Johnson reauested that the amounts m
allowed be paid by the officers of the Tree*'
ury, but t^ose officers refused to aodit or
allow his bills or any part of the tancv ex-
cept as above stated, and refused to allow or
pay to him any part of the same.
Upon the trial in the circuit court it wis
admitted that tlie expense account of Joba-
son was $1,018.23, which was allowed by tkt
Attorney General; that if the amomita ht
received for services in obtaining lands ia
said district (which services weie similar ia
nature, emplo^-ment, etc, to those hcrt
claimed for) are to be computed as part d
the amoimt limited by section 835 of iht Ba>
vised Statutes, then he had received in ex-
cess of the amount so limited for the year 18tl
a sum, which, added to the amounts leaciTei
by him for the year 1892 (and whidi are feei
and emoluments referred to by section 885 ef
the Revised Statutes) , equaled the sum oi ax
thousand dollars and the legitimate office o-
penses of his office; and that if the sariocs
involved in this action and the other stmikr
services stated above are to be accounted as
a part of the maximum fixed bv sectioa 835
of the Revised Statutes,and if the govera-
ment, having paid him for one year in uttm
of such maximum, has the riglit to Ttam^
set off, or counterclaim such overpaymcat
against an amount otherwise due, then Joh»
son had no cause of action as set iorth in kii
present suit.
The circuit oourt of appeals desires m-
foiination upon the following gnestioas of
law arising out of the above facts:
1. Whether Johnson is entitled to be mii
the said sum of six thousand five husdrei
dollars for the services rendered by his ia
the year 1892. This question is subnittsi
without reference to the provisions of saetioB
835 of the Revised Statutes.
*2. Whether, if the first quMtioB bs s»{ing
swered in the affirmative, such compSHa-
tion should be included in the fees sai
emoluments of claimant's office within tW
meaning of sections 834, 835, and 844 of tht
llevise<r Stetutes.
3. Whether, if both of the above quastkM
are answered in the affirmative, tJie govera-
ment of the United States can, under w tir
cumstanoes stated, apply the alx thnMsa<
five hundred dollars as sudi svm was sf*
plied, on account of the pBjmeata made if
the United States for servioee rendorei \^
Johnson in the year 1891.
The government contends that the mmm
in question were such as the law requirti tkt
district attorney to render, and eo: ^
that he could receive no special
tion therefor.
In support of this proposition the
ant Attorney General refers to OAmu ▼•
Peters, 160 U. S. 342, 347 [37: 1104, llOfl.
That was an action against the reeeirvr sf
a. national bank to recover the value of 1^
services alleged to have been rendered or ol*
fered to be rendered by a district attomi?
of the United SUtes in a suit brou;^t ia tW
name of the receiver airainiit one McI>naaM.
ITS O. &
1$38.
Ukitbd States y. Johnson.
t7»-870
In its opinion in thai case thii court re-
ferred to section 380 of the ReTised Stat-
vtes, proriding Uiat "all suits and proceed-
ings arising out of the provisions of law gov-
oning national banking associations, in
which the United States or any of its officers
or sffents shall be parties, shall be conducted
by Uie district attorneys of the several dis-
tricts under the direction and supervision of
the Solicitor of the Treasury/' and observed
that t^e suit against McDonald was one em-
braced bv that section, and that the receiver
was, within its meaning, an officer and agent
of the United States.
After referring also to sections 770, 823 to
827 inclusive, 17o4,and 1765, the court said:
''It ought not to be difficult imdcr any rea-
•onable construction of these statutorv pro-
visions to ascertain the intention of Con-
gress. A distinct provision is made for the
salary of a district attorney, and he cannot
receive, on that account, any more than the
statute prescribes. But the statute is equal-
ly explicit in declaring, in respect to compen-
sation that may be 'taxed ana allowed,' that
l]be shall ^receive no other than that specified
in sections 823 to 827 inclusive, 'except in
cases oUierwise eicpresuly provided by law.'
It also declares that no officer in any branch
of the public service shall receive my addi-
tional pay, extra allowance, or compensation,
in any torm. whatever, for any pervice or
duty, unless the same is expressly authorized
by law, or unless the appropriation therefor
explicitly states that it is for such addition-
al pay, extra allowance, or compensation.
No rcom is left here for construction. It is not
expressly provided by law that a district at-
torney shall receive compensation for serv-
ices performed by him in conducting suits
arising out of the provisions of the national
banking law in which the United States or
an^ of its officers or agents are parties.
Without such express provision, compensa-
tion for services of that character cannot be
taxed, allowed, or paid. Nor can Ihe expen-
ses of the receivership be held to include com-
pensation to the district attorney for con-
dactinff a suit in which the receiver is a
party, tor the obvious reason that the statute
does not expressly provide compeni^ation for
such services. Uongress evidently intended
to require the performance by a district at-
torney of all the duties imposed upon him by
law, without any other remuneration than
that coming from his salary, from the com-
pensation or fees authorized to be taxed and
allowed, and from such other compensation
as is expressly allowed by law specifically on
account of services named. Nothing in the
last clause of section 823 militates against
this view. On the contrary, the proper in-
terpretation of that clause supports tne con-
clusion we have reached. Its principal ob-
ject was to make it clear that Congress did
not intend to prohibit attorneys, solicitors,
and proctors, representing individuals in the
eoorts of the United States, from charging
and receiving, in addition to taxable fees
and allowances, such compensation as was
reasonable under local usage, or such as was
agreed upon between them and their clients.
But to prevent the application of that rule
173 u. S*
to the United States, the words 'other than
the government' were inserted. The intro-
duction of those words in that clause em-
phasizes the purpose not to subject the
United States to any system for compensat-
ing ^district attorneys except that expres6ly[3741
established by Congress, and therefore to
withhold from them any compensation for
extra or special services rendered in their
official capacity, which is not expressly au-
thorized by statute. Whatever legal serv-
ices were rendered or offered to be rendered
by the plaintiff in the McDonald suit were
rcnderea or offered to be rendered hv him as
United States district attorney, and in that
capacity alone. As such officer he is not en-
titled to demand compensation for the serv-
ices so rendered or onered to be rendered."
The full scope of the decision in Oihson t.
Peters is shown by this extract from the
opinion in that case. The point in judgment
was that the services rendered by Gibson
were in discharge of duties imposed upon
him by law in relation to suits of a paiticu-
lar kind, and as no statute made provision
for additional or special compensation for
such sei-vices, his claim against the United
States for extra pay could not he allowed.
In United States v. Winston,l70 U. S. 522,
525 [42 : 1 1 30, 1 132] , which involved the ques-
tion whether the district attorney of the
United States for the district of Washington
coidd be allowed special oompeasation for
services rendered by direction or at the in-
stance of the Attorney General in a case in
the circuit court of appeals for the ninth cir-
cuit sitting at San Francisco, it was held
that the duties of the claimant as district
attorney of the United States were limited by
the boundaries of his district; and that,
while he was required to discharge all his
official duties within those boundaries, he
was not required to go beyond them. The
court said: "Whenever the Attorney Gen-
eral calls upon a district attorney to appear
for the government in a case pending in the
court 01 appeals, he is not directing him in
the discharge of his official duties as district
attorney, but is employing him as special
counsel. The duties so performed are not
performed by him as district attorney, but
by virtue of the special designation and em-
ployment by the Attorney General, and the
compensation which he may receive is not a
part of his compensation as district attor-
ney, or limited by the maximum prescribed
*therefor. It seems to us that this is the[376]
clear import of the statutes, and we have no
difficulty in agreeing with the court of ap-
peals in its opinion upon this question."
In Ruhm v. United States, 66 Fed. Rep.
531, 532, it was held that, as it is the duty of
a district attorney to prosecute in his dis-
trict ail civil actions m which the United
States are concerned, he is not entitled to
extra compensation for conductioff a suit to
recover pension money fraudulently secured.
The controlling question, therefore, in the
present case is whether Johnson was under
a duty imposed upon him as district attor-
ney to perform the services for which he here
claims special compensation. If such was
his duty as defined bv law. ♦hen he is for-
73&
•75-878
bUPKEME COUUT OF THE UNITED STATlLfc.
Oct. Tub,
bidden by statute from receiving any special
compensation on account of sucn services, —
tliis, for the reason that no appropriation
for such compensation has been made by any
statute explicitly statins that it was for such
additional pay, extra allowance, or compen-
•ation. §§ 1764, 1765. On the other hand,
if his duties as district attorney did not em-
brace such services as he renaercd and for
which he here claims special compensation,
then lie is entitled to be oaid therefor with-
out reference to the regular salary, pay, or
emoluments attached to his office.
What relations did the district attorney
have, by virtue of his offices^ with the proceed-
ings instituted in his district for the condem-
nation of land under the act of 1800 relating
to gun and mortar batteries for the defense
of New York? That act authorize! the Sec-
retary to cause condemnation proceedings to
be instituted, in the name of the United
States, — such proceedings to be prosecuted
in accordance with the laws i elating to
suits for the condemnation of property in
the states wherein the proceedings were in-
stituted. The application of tho Secretary
to the Attorney General was doubtless made
under the provisions of the act of August
1st, 1888 (25 Stat, at L. 357, chap. 728),
Sroviding that in every case in which the
eoretary of the Treasury, "or any other offi-
cer of the government, has been, or hereafter
shall be, authorized to procure real estate for
the erection of a public building or for other
public uses, he shall be, and hereby is, au-
.^76]^o<rized to acquire the same for •the United
States by condemnation under judicial proc-
ess, whenever in his opinion it is necesbary
or advantageous to the government to do so,
and the United States circuit or district
courts of the district wherein such real es-
tate is located shall have jurisdiction of pro-
ceedings for such condemnation, and it snail
be the duty of the Attorney General of the
United States, upon every application of the
Secretary of the Treasury under this act, or
such other officer, to cause proceedings to be
commenced for condemnation, within thirty
days from the receipt of the application at the
Department of Justice." By the same act it
was provided that "the practice, pleadings,
forms, and modes of proceeding in causes
arising under the provisions of this act shall
conform, as near as may be, to the practice,
pleadings, forms, and proceedings existing at
the time in like causes in the courts of rec-
ord of the state within which such circuit
or district courts are held, any i^e of the
court to the contrary notwithstanding." 25
Stat, at L. 357, chap. 728.
This statute beio^ in force, the Attorney
General directed the defendant in error as
district attorney to institute on behalf of
the government the condemnation proceed-
ings desired by the Secretary of War. It was
of course not contemplated by Cnrrrress that
the Attorney General should be away from
the national capital in order to give his per-
sonal attention to the conduct of such pro-
ceedings. He therefore directed the district
attorney of Uie district in which the lands
were situated to institute and prosecute the
required proceedinfrg. Could the district
736
attorney have declined to repriamt tki
United States in such prooeedinn spoa tk
ground that he was not require bj kv t*
o so in his official capacity? The answer to
that question depends upon the eoBstmetin
to be given to section 771 of the Rerised
Statutes, which defines generally the dntia
of district attorneys. That aeetion, as «t
have seen, makes it the duty of erery dirtm
attorney to prosecute in his district, not oiij
all crimes and offenses cognizaUe under tW
authori^ of the United SUtes, but "all mU
actions m which the United States are eos-
cemed." We are of opinion that withm tk
reasonable meaninj^ of that section the pro-
ceedings instituted in the Federal eoort bj
District ^Attorney Johnson to condeom ike's
lands in question for the benefit of iht
United States constituted a etvil aetioa ii
which the government was coneemed; tad
that in following the directions of the Av
tomey Greneral to institute sudi proeecdia|i
and have the lands referred to condemned ior
the United States he was only dischargiBf
an official dutv imposed upon faim hj etsi-
ute. It would involve a very narrow tm-
struction of section 771 to hold that jodkiil
proceedings in a court of the United StUa
to condemn lands for the use of the ^uim-
ment were not civil actions in «hi^ tte
United States was concerned. We tUik
that when he attended court in the pnaea-
tion of those proceedings he was, withxs tk
meaning of section 824, ''on the biiii—i ^
the United States."
Under the interpretation placed hj v
upon sections 771 and 824, it remits tktt
according to the principle annouiiced ia Qik-
8on V. Peters, the defendant in error hsriiff
been under a duty to represent the CsitM
States in the condemnation prorcedinp rt*
ferred to, and there being no stitnte cxpli^
itly allowing him extra oompenutioo for tk
services rendered by him in and about Um
proceedings, his present daim must be dit-
allowed.
This conclusion, it is contended, is boC eat-
sistent with the usage and custom wkiek h«
obtained in the executive department* of tk
fovernment for many years prior to the jtw
802. How long such usage or enstoai ftr
vailed, upon what specific grounds it rem.
and in what way it is evidenced, ilce« wx t^
pear from the statement of facts sccoaiperf
mg the certificate of questioBs. The ofii-
ions of Attorneys General to which nor tttes-
tion has been called by counsel oertaish ^
not cover the precise question now befon *•
Some of them hold that a district attorset w
entitled to special compensation for r«f^
senting the interests of tne United State* n
suits in state courts, — services in Mirh ci^<*
not being required bythe statutes reyuUtia^
his official duties. That is a qoesticii wad vt
volved in the present case. We ftttein w
reason for holding that there ba« been tet
such long-oon tinned practical iDterpreUtJ<" ^
by the executive departments •of the f^ '^
emment of sections 1764 and 1795 of tke lb-
vised Statutes (brought forward fnm ik
acU of March 3d, 1839, chap. 82. S Stat st L
339, 349, § 3; August 23d. 1842. chip. 1^.
3 Stat, at L. 510. fi 2 : and August 2«th \Ut
ma*
iww.
Cnitbd States v. Johnson.
878-880
chap. 202, 5 SUt. at L. 525, $12) as to jus-
tifjr this court in depai-ting in any degree
from such an interpretation of those sec-
tions as is required by the obvious import of
the words found in them. Such a practice may
be resorted to in aid of interpretation, but it
cannot be recognized as controlling when the
statute to be interpreted is clear and explicit
in its language and its meaning not doubt-
foL United States t. Graham, 110 U. S.
219, 221 [28:126, 127]; United States y.
Uealey, 160 U. S. 136, 141 [40: 369, 371].
It ma^, however, be observed that some of
the opinions of Attorneys General rest upon
rules of construction that forbid the allow-
ance of the claim of the defendant in error.
In 1855 special or extra compensation was
daimed by a district attorney for services
rendered under employment by the Navy De-
partment, in a certain case in a circuit court
of the United States in which Ihe eovem-
ment was a party. Attorney Qer.eral Gush-
ing referred to the act of February 26th,
1853, regulating "the fees and costs to be al-
lowed clerks, marshals, and attorneys of the
circuit and district courts of the United
8tates, and for other purposes." 10 Stat,
at L. 161, chap. 80. That act declared,
among other things, that in lieu of the com-
pensation then allowed to the officers named
no other compensation should be taxed and
allowed. It also established for district at-
torneys a fee for each day "of his necessary
attendance in a court of the United States
on the business of the United States." The
provisions of the act of 1853 have been pre-
served in chapter sixteen of title 13 of the
Bevised Statutes. After referring to some
former opinions given by him, Mr. Gushing
•aid: "But in a matter like that now before
me, which is of the direct official business of
a district attorney in the court of the United
States for his district, which is of the very
dass of business for which the act of 1853
expressly and in plain terms provides, and as
to which anv other compensation is emphati-
cally excluded by the strong terms oi that
(TDJact, it does not appear to me that *anv ext^a
or special compensation can be lawfully paid
to the district attorney. Nor, in my judg-
ment, is the ca$te taken out of the general
rule by the fact that the suit concerns im-
mediately the business of the Navy Depart-
ment, and has been the subject of instruc-
tions from the Secretary of the Navy. All
the civil business of the government concerns
some one of its departments, and may re-
Suire the attention of its head. It cannot
e that a suit in the name of the United
States, pending in the district or circuit
court, is out of the scope of the regular duty
of a district attorney because of its arising
hi the business of the Navy Department
rather than the Treasury or any other de-
partment; nor that in such a case the serv-
ice of the district attornev becomes that of
counsd specially retained by the Depart-
ment This latter enactment must have
Wn designed, it seems to- me, for contin-
gencies where a head of department needs pro-
fessional services in a case not provided for
^ the particular terms of the law, and the
Bp^al compensation to a district attorney
173 XT. S. U. S.. Book 43.
for the performance of such a service must
depend on that fact, not on the fact that he
has been instructed by the head of depart-
ment. A contrary construction would lay
the foundation for extra compensation to
district attorneys in almost every case in
which they appear in civil actions in which
the United States are concerned." 7 Ops.
Atty. Gen. 84, 86.
At a later date. May 25th, 1858, Attorney
General Black had before him an application
for special allowance to a district attorney
for services rendered by him. The claim, be
said, involved three questions, the first of
which was, Gan the district attorney, in any
case, charge more for his services than the
fee-bill expressly allows? He said: "The
first question does not, for a moment, admit
of any other reply than a direct negative:
the district attorney can receive such com-
pensation, and such only, as the fee-bill
gives. This is not only the general policy
of the government, but it is expressly de-
clared to be the will of Gongress by the act
of 1853. When, therefore, a district at-
torney makes, a charge against the Treasury
for services, he must support it by showing
some clause in the fee-bill which authorizes
him to recive what he ^claims. When a dut^[380]
is enjoined upon him by the law of his of-
fice, and not merely by the request of a de-
partment, he is bound to perform it and take
as compensation what the law gives him.
That is his contract; and if it be a bad one
for him he has no remedy but resignation.
The subject is not open to a new bargain be-
tween him and any other officer of tne gov-
ernment. All criminal prosecutions ana all
civil suits in which the United States are a '
party of record fall within this principle.
In them no charge for extra services can be
legally allowed, though it be true that some
of Uiem require an amount of labor and skill
for which the compensation allowed by the
fee-bill is altogether inadequate. 1 cannot
make out, in any way satisfactory to my own
mind, the ingenious distinction which would
pay the officer as uttornev what the fee-bill
gives, and then pay him besides a quantum
meruit for managing the same case as
counsel." 9 Ops. Atty. Gen. 146, 147.
In an opinion rendered March 13th, 1888,
Attorney General Garland, upon an extended
review of the adjudged cases, said: "From
these authorities it may be derived that the
elements necessary to justify the payment of
compensation to an officer for additional
services are, that they shall be performed by
virtue of a separate and distinct appoint-
ment authorize by law; that such services
shall not be services added to or connected
with the regular duties of the pHce he holds ;
and that a compensation whose amount is
fixed hj law or regulation shall be provided
for their payment." 19 Ops. Atty. Gen.. 121,
125, 126.
The same views were expressed by the
Second Gomptroller of the Treasury in an
opinion delivered by him as late as 1893, in
Earhart*a Case. Cousar's Dig. 12.
We are of opinion that Gongress intended
\)j sections 1764 and 1765 to uproot the prao-
tice under which, in the absence of any stat-
47 737
880-888
SUFRBMB COUBT OF THB UnITBD StATM.
Oct.
ute expressly authorizing it, extra allow-
ances or special compensation were made to
public officers for services which they were
required to render in consideration ouly of
the fixed salary and emoluments established
for them by law. Our duty is to give effect
to the legislation of Ckmgress, and not to de-
feat it by an interpretation plainly incon-
sistent with the words used.
(881] *The conclusion is that as the defendant in
error was under a duty as district attorney
to represent the United States in the con-
demnation proceedings referred to (§ 771) ;
as his attendance in court on those proceed-
ings was on the business of the United
States (I 824) ; as no statute provides for
extra or special compensation for services of
that character; and as the existing statutes
declare that no officer in any branch of the
public service shall, directly or indirectly,
or in any form whatever, receive from the
Treasury of the United States any addition-
al pay, extra allowance, or compensation, un-
less Uie same be authorized by law and the
appropriation therefor expressly states that
it is for such additional pay, extra allow-
ance, or compensation (§§ 1764, 1765, Act
of June 20th, 1874, chap. 328), the claim
of the defendant in error must be rejected,
and judgment rendered for the United
SUtes.
For the reasons stated the first question
ia anatoered in the negative; and under the
certificate the answer to the other questions
becomes both unnecessary and inmiateriaL
It will be so certified.
Dissentinir: Mr. Justice Sl&iras and Mr.
Justice Pee
nff: Mr.
UNITED STATES, Appt.,
V.
ANDREW J. MATTHEWS and Thomas
Gunn.
(See 8. C. Reporter*« ed. 881-880.)
Reward for arrest of criminal — deputy mar-
shals may receive the reward — statute as
to compensation,
1. A reward expressly offered by competent leg-
islative and executive authority for the arrest
of a criminal by a public officer. Is not con-
trary to public policy.
S. When the statute gives the attorney gen-
eral discretion to whom to offer the reward,
a general offer of a reward for an arrest in-
cludes deputy marshals, who may take the
offered reward for the arrest.
8. When the reward is sanctioned by an appro-
priation act and is within the offer of the at-
torney general it is removed from the pro-
visions of other statutes denying extra com-
pensation to officers.
[No. 79.]
Argued December 8, 1898. Decided March
6, 1899.
APPEAL from a Judgment of the Court of
Claims in favor of Andrew J. Matthews
and Thomas Gunn, plaintiffs, against the
738
United States for the reeofvwy of fte
of a reward offered for the anwt oC a
inal. Affirmed.
Sec same case below, 32 Ct. G. 12S.
The facts are stated in the oplnioa.
Messrs, IsOTdm A. Pradt, Aistftiit At-
torney General, and John Q. Capers far tp-
pellant.
Messrs. Bieluird B. M «lKak«B sad
Georse A. Kins for appellees.
*Mr. Justice Wl&ite d^ivered the opiiiaa^
of the court:
The court below held that the pltiitiff«
were entitled to recover the sum by ihtm
claimed (32 Ct. CI. 123), and the Unteii
States prosecutes this appeal. The wipM
of the controversy and the facts upon wbieb
the legal conclusion of the court was roteA
are these : The two plaintiffs were, one s reg-
ular and the other a specially appointed dc^
uty marshal. They claimei fire huodreii
dollare, the sum of a reward offered by IW
Attorney General for the arrest and cootu-
tioc of one Asa NcNail, who was soensed ci
having been concerned in the l^iHiiV of one
or more revenue officers at a viuige a
Holmes county, Florida. McNeil wai sr-
rested by the officers in question, tried, tad
convicted. This suit was brought in towr
quence of a refusal to pay the reward. TW
act of March 3, 1891, "making sppropns
tions for sundry civil expenses of Uic gov-
ernment for the fiscal year ending Joae tbr
thirtieth, eighteen hundred and mnety-tva,
and for other purposes," under the beodiig
"Miscellaneous," contained the following u-
propriation : "Prosecution of crimes ; for tW
detection and prosecution of crime* sfsoit
the United States, preliminary to udkt
ment . . . under the direction ol tkr
Attorney General, . . . thirty-five tboei'
and dollars." Under the authority thos floa>
f erred the Attorney General, on Jabr SI.
1891, addressed a letter to the marths] «i
the northern district of Florida Mjiif
"Your letter of July 24th is received. Yoe
are authorized to offer a reward of five ki»
dred dollars (500) for the arrest and Mr-
ery to you, at Jacksonville, of Asa MrSciL
chief of conspirators, who fired upon imam
deputies at Bonifay, Holmes county. I**t fsli
this reward *to be paid upon conrictioi (H\l0i
said McNeil." A capias for the arrest d
McNeil was executed by the depntici it
question on the 11th day of July, 189t, tte
court below finding that the arrest wis im
to tbeir exertions.
Beyond doubt the appropriation cb^ov-
ered the Attorney General to make the offff
of reward, and hence in doin^ so he exercMd
a lawful discretion vested in hira h% Cm-
gress. It is also clear that the offer e( tW
reward made by the Attorney Gei>er*l «»
broad enough to embrace an arrest Bsi» ^
the deputies in question. If, then, the rifU
to recover is to be tested by the provisaoat t'
the statute and bv the language of the oAr
of reward, the judgment bdow was eorrtet^f
rendered. The United States, buvrrer. it>
lies for reversal solely on two propositki^
which it is argued are both well fova^
First. That as at common law H was sfsiirt
im.
XThithd Btatis v. Matthews.
888-886
public poller to allow an <^cer to receive a
reward for the performance of a dntv whioh
be was required by law to perform, therefore
the statute conferring power on the Attorney
General and the offer made by him in virtue
ef the discretion in him vested, should be so
eonstrued as to exclude the ri^ht of the dep-
uties in question to recover, since as depufy
marshals an obli^tion was upon them to
make the arrest without regard to the reward
effered. Second. That even although it be con-
ceded that the officers in question were other-
wise entitled to recover the reward, they were
without capacity to do so because of the gen-
eral statutory provision forbidding "officers
in any brandi of the public service or any
other person whose salary, pay, or emolu-
ments are fixed by law or regulations," from
receiving "any additional pav, extra allow-
ance or compensation in any form whatever"
(Re7. Stat. 1765) , and because of the further
provision "that no civil officer of the govern-
ment shall hereafter receive any compensa-
tion or perquisites, directly or indirectly,
from the Treasury or property of the United
States beyond hie salary or compensation al-
lowed by law . . ." (18 Stat, at L. 109,
diap. 328, 9 8). The first of these conten-
tions amounts simply to saying that though
the act of Congress vested the amplest discre-
M]tion <m the subject *in the Attorney General,
and although tJiat discretion was by him ex-
ercised witiiout qualification or restriction,
it becomes a matter of judicial duty in con-
itroin^ the statute ana in interpreting the
authority exercised under it to disr^ard
both the obvious meaning of the statute and
the general language of the authority exer-
cised under it by reading into the statute a
qnalification wluch it does not contain and
B^ inserting in the offer of reward a restric-
tion not mentioned in it, the argument being
that this should be done under the assump-
tion that it is within the province of a court
to disregard a statute upon the theory that
the power which it ooniers is contrary to
puUic policy. It cazmot be doubted that in ex-
firdaingthe powers conferred on him by the
statute^ the Attorney General could at his
discretion have confined the reward offered
by him to particular classes of persons. To
invoke, however, judicial authority to insert
sudi restriction in the offer of reward \vhen
it is not there found, is to ask the judicial
power to exert a discretion not vested in it,
but which has been lodged by the lawmaking
power in a different branch of the govem-
toent. Aside from these considerations the
contention as to the adstence of a supposed
public policy, as applied to the question in
band, is without foundation in reason and
wanting in support of authority.
It is undoubted that both in England and
in this country it has been held that it is
contrary to public policy to enforce In a
conrt of law, in favor of a public officer,
whose duty by virtue of his employment re-
quired the doing of a particular act, any
Agreement or contract made by the officer
with a private indii^idual, stipulating that
tbe officer should receive an extra compensa-
tion or reward for the doing of such act.
An agreement of this character was consld-
173%. 8.
ered at common law to be a species of quasi
extortion, and partaking of the character of
a bribe. Bridge v. Cage, Cro. Jac 103; B«-
dow V. Salter, Wm. Jones, 66; Stotesbury v.
Smith, 2 Burr. 924; Hatch v. Mann, 15
Wend. 44; Oillmore v. Leioia, 12 Ohio, 281;
Stacy V. State Bank of Illinois, 6 111. 91;
Daviea v. Bums, 6 Allen, 349 ; Broum v. God-
frey, 33 Vt. 120; MorreU v. Quarles, 36 Ala.
644; Day v. Punam Ins. Co, 16 •Minn. 408,[385]
414; Hayden v. Souger, 56 Ind. 42 [26 Am.
Kep. 1] ; Matter of RusselVs Application, 61
Conn. 677 [60 Am. Rep. 66] ; Ring v. Dev-
lin, 68 Wis. 384;fif*. Louis, I. M, d S. Ry. Co.
V. Orafton, 61 Ark. 604. The broad differ-
ence between the right of an officer to take
from a private individual a reward or com-
pensation for the performance of his official
duty, and the capacity of such officer to re-
ceive a reward expressly authorized by com-
petent legislative authority and sanctioned
b^ the executive officer to whom the legisla^
tive power has del^ated ample discretion
to offer the reward, is too obvious to require
anything but statement.
Nor is there anything in the case of Pool
V. Boston, 5 Gush. 219, tending to obscure
the difference which exists between the offer
of a reward by competent legislative and ex-
ecutive authority and an offer by one not
having the legal capacity to do so. In that
case, the plaintiff, a watchman in the employ
of the city of Boston, while patrolling ths
streets, in the ordinary performance of his
duty, discovered and apprehended an incen-
diaiy, who was subsequently convicted. The
action was brought to recover the amount
of a reward which the city government had
offered *'for the detection and conviction of
any incendiaries" who had set fire to any
building in the city, or might do so, within
a given period. Solely upon the authority
of decisions denying the ri^ht of a public
officer to recover from a private individual
a reward or extra compensation for the per-
formance of a duty owing to the party sought
to be charged, it was held that there could
be no recovery. The city government of Bos-
ton, acting in its official capacity, and in
the exercise of the general powers vested in
cities and towns by the law of Massachu-
setts, doubtless had authority to offer re-
wards for the detection and conviction of
criminals. Freeman v. Boston, 6 Met. 66;
Crawshaw v. Rowhury, 7 Gray, 374. But
no act of the le|;islature, expressly or by im- •
plication, had intrusted municipal authori-
ties with the discretion of including in an
offer of reward public officers whose official
duty it was to aid in the detection and con-
viction of criminals. There is not the slight-
est intimation contained in the opinion in
that case that if the reward in ^question had[380]
been offered within the limits of a discretion
duly vested by the supreme legislative au-
thority of the commonwealth tmit the court
would have considered that it was its duty
to deny the power of the commonwealth, or
by indirection to frustrate the calling of such
power into play, by reading into the legis-
lative authority by construction a limitation
which it did not contain.
739
886-888
BupREMB Court of thb United States.
Oct. Tbv,
Looking at the question of public policy
by the light of the legislation of Congress,
on other subjects, it Incomes clear that the
expediency oi offering to public officers a re-
ward as an incentive or stimulus for the
energetic performance of public duty has
often been resorted to. As early as July
31, 1780, in chapter 5 of the statutes of
that year, a portion of the penalties, fines,
and forfeitures which might be recovered un-
der the act, and which were not otherwise
appropriated were directed to be paid to
one or more of certain officers cf the cus-
toms. Like provisions were embodied in
section 60 of chapter 35 of the act of Au-
gust 4, 1700; section 2 of chapter 22 of the
aci of May 6, 1706 ; and section 01 of chapter
22 of the act of March 2, 1700. Similar pro-
visions are also contained in the one hundred
and seventy-ninth section of chapter 173, act
of June 30, 1864, and the amendatory sec-
tion, No. 1, of chapter 78 of the act of
March 3, 1866. So also by section 3 of the
anti-moiety act, chapter 301, June 22, 1874,
a discretion was vested in the Secretary of
the Treasury to award to officers of the cus-
toms as well as other parties, not exceeding
one half of the net proceeds of forfeitures
incurred in violation of the laws against
snuggling. As said by Mr. Justice Griei,
delivering the opinion of the court in Dor
aheimer v. United States, 7 Wall. 173 [10:
1871 ' "The offer of a portion of such pen-
alties to the collectors is to stimulate and
reward their zeal and industry in detecting
fraudulent attempts to evade the payment of
duties and taxes.^'
The fact that the statute vested a dis-
cretion in the Attorney General to include
or not to include, when he exercised the
power to offer a reward, particular persons
within the offer by him made, and that in
the instant case the discretion was so availed
of as not to exclude deputy marshals from
[887]taking *the offered reward, renders it unnec-
essarv to determine whether a deputy mar-
shal IS an officer of the United States within
the meaning of section 1765 of the Revised
Statutes and section 3 of the Act of June 20,
1874, to which reference has already been
made. As the reward was sanctioned by
the statute making the appropriation, and
was embraced within the offer of the Attor
ney General, it clearly, under any view of
the case, was removed from the provisions
of the statutes in question. The appropria-
tion act being a special and later enactment
operated necessarily to engraft upon the
prior and general statute an exception to
the extent of the power conferred on the At-
torney General and necessary for the exer-
cise of the discretion lodged in him for the
purpose of carrying out the provisions of
the later and special act Judgment af-
firmed,
Mr. Justice Harlan and Mr. Justice
PeekHmm dissented, upon the g^ond that
the offering or payment ol a reward to a
public officer, for the performance of what
was at all events nothing more than his of-
ficial duty, was against public policy, and
the act of Congress authorizing the Attor-
740
ney General to offer and pay rewards, dii
not include or authorixe tne cffer or psy-
ment of any reward to a public ^
such circumstances.
Mr. Justice Brows concurring In the re-
sult only:
Did the opinion of the court rest nleh
upon the n-ound stated in the opinioii of tk
court of claims, that a deputy marshal ii lot
an "officer," or "other person whose isliry,
pay, or emoluments are fixed by law or n^
ulations," as specified in Revised Statatei,
section 1765; nor a civil officer reeefriB^
from the United States a salary or compcB*
sation allowed by law, and therefore not
within the act of June 20, 1874 (18 SUt at
L. 100), — ^I should have been diipwfd,
thouj^h with some doubt, to acquieiee a tke
opinion. While I think a deputy manhil ii
beyond all peradventure an offieer of tk
United States, yet as his oompensatioD is bf
fees not paid directly by the tfuteimual
but by agreement witn the marshal, tuhjcrt
only to tiie limitation that sudi feet "ikiH
not exceed three fourths of the fees tai
emoluments received or payable" to the
shall "for services rendered by him** (
deputy) , I think it a j^rave question
he is within the spirit of either of the
tions above quoted. I consider it a
ble construction to hold that these
are limited to those who receive a salary or
other compensation directly from the got*
ernment, or one of its oepartmeBti, n'
doubt their application *to one who, a]thoiirt{M
holding a permanent appointment as am <»-
oer, receives no pay directly from the gv*-
emment, but only such compensatioii af hn
superior may choose to allow him. (i>o«f
las V. Wallace, 161 U. S. S46 (40:727?
But I cannot concur in so mueb of tk
Gj>inion as intimates that, under an aet of
Congress making an appropriation for tk
prosecution of crime, under the direetioa of
the Attorney General, the Attorney GcmtiI
has a discretion to direct any poiiioB of it
to be paid to one of a class of peraoni wtetit
forbidden by a previous act from rc^^i^^
any additional pay or corapensatioa bctw
such as is allowed to them by law. T^
could only be done upon the theory stattd is
the opinion that the appropriation ad Woi
a special and later enactment, operated ■*-
essarily to ingraft upon the prior aad lib-
eral statute an exception to the extent of tk
r^wer conferred upon the Attorney G«B*r»l
do not think the two acts stand ia tk vt^
lation of a prior general statute aad a la^
sequent special one, bat rather the eoercn^
The prior acts are general acta, applicaUt to
all officers of government whose salariei ^
compensations are fixed by law; the bttr
act makes a particular appropriatioa for tk
detection of crime, and vests the Attor«jr
General with power to direct to whoa it Ml
be paid. But there can be no infarcere ftw
it that he has a discretion to pay it t0 a«i^
one who is forbidden by law to reeetw ft 1
had assumed it to be the law that a lat«' ^
would not be held to qualify or repeal M*^
one, unless there were a positive leyefMa^
between the provisions of the new to* ■■■
11% V^^
1898.
Allen t. Smith.
888-d91
the old, and even then the prior law is only
repealed to the extent of such repugnancy.
This was the declared doctrine of this court
in Wood V. United States, 16 Pet. 342 [10:
987]; in McCool ▼. Smith, 1 Black, 450 [17:
218]; in Daviess v. Fairhaim, 3 How. 636
[11:760]; in Cope v. Cope, 137 U. S. 682
[34: 832] ; in Furman v. Ifiohol, 8 Wall. 44
[19: 370] ; in Ew parte Yerger, 8 Wall. 86
[19:882]; United States v. Sixty-Seven
Packages of Dry Goods, 17 How. 85 [15: 54] ;
and in Red Rock v. Henry, 106 U. S. 596
[27:251].
In this case I see no intent whatever on
the part of Congress to vary or qualify the
prior law. Both enactments may properly
stand together, and the prior ones be simply
regarded as limiting the application of the
later.
^] 'In justice to the Attorney General it ought
to be said that his offer of $500 for the ar-
rest and delivery of McNeil was a general
one; and that he did not assume to say that
anv officer of the government, who was for-
bidden by law from receiving extra compen-
sation, should receive any portion of the re-
wurd. There was no attempt on his part to
disregard the previous limitation or to offer
it to anyone who was forbidden by law from
reeeivine it. The subsequent action of the
Acting Attorney General in refusing to nay
Matthews t^e reward upon the ground tnat
the arrest of McNeil was performed in the
line of his duty is a still clearer intimation
that no such construction as is put by the
court upon the offer of reward was intended
by the Attorney General.
For these reasons, I cannot concur in the
opinion, though I do not dissent from the
result
MRa BETTIE ALLEN et al., Plffs. in Err.,
OGDEN SMITH.
OGDEN SMITH, Plff. in Err.,
V.
MRS. BETTIE ALLEN et al.
(See S. C. Reporter's ed. 889-404.)
Oovemnient bounties — bounty on sugar goes
to the manufacturer.
1 Bounties granted by a government are never
pore donations, but are allowed either in con-
sideration of services rendered or to be ren-
dered, objects of public interest to be obtained,
production or manufacture to be stimulated,
or moral obligations to be recognized.
2. The manufacturer of the sugar, although
not the producer of the cane, is entitled to the
bountj given by the act of Congress of Au-
gust 28, 1894, to producers and manufac-
turers who had complied with the provisions
of the bounty law of 1890, which had been
repealed.
[Nos. 168 ft 176.]
Argued January 19, 1899, Decided March
e, 1899.
178 U. $L
rr ERROR to the Supreme Ck)urt of tha
State of Louisiana to review a decree of
that Court varying and afi&nning the decree
of the District Court of that State, and de-
creeing that the government bounty upon
sugar earned upon the estate left by Richard
H. Allen, deceased, be divided eaually, and
one half be distributed amone his heirs as an
unwilled portion, and that the other half be
delivered to his widow and legatee, Mrs. Bet-
tie Allen. Reversed and case remanded for
further proceeding.
See same case t^low, 48 La. Ann. 1036, 49
La. Ann. 1096, 1112.
Statement by Mr. Justice Brown t
*This was a controversy arising over the[390]
distribution of the estate of Richard H. Al-
len, a large sugar planter of La E'ourche par-
ish, Louisiana, who died September 14, 1894,
leaving a will of which the following clauses
only are material to the disposition of this
case:
"I give to my wife, Bettie Allen, one half
on my Rienzi plantation and one half of all
tools, mules, etc. The names of my exec-
utors, etc., will be named hereafter. My ex-
ecutors shall have from one to live years to
sell and close up the estate, as I fear prop-
erty will be very low and dull. They can sell
part cash, part on time, eight per cent in-
terest with vendor's lien. 1 will that my
wife do have one half of everything belonging
to Rienzi, except the claim due me by thA
United States; that and other property I
will speak of further on. I appoint as my
executors, Ogden Smith and W. F. Collins,
residing on Itienzi plantation. I also ap-
point Mrs. Bettie Allen, executrix. I give
them full power to sell Rienzi plantation
whenever they find a good offer for all of the
property there belonging. When it is sold
half of all the proce^, cash, notes, etc.. is
to belong to my dear wife, Bettie Allen.
The other half will be spoken of hereafter.
As I fear property will be very low, 1 give
my executors five years to work for a good
price. In the meantime that they are wait-
ing to sell, the place can be rented or worked
so as to pay all taxes and other charges : anv
over that to go to Mrs. Bettie Allen's credit.'^'
Letters testamentary were issued to Will-
iam F. Collins, Ogden Smith, and M. Eliza-
beth Greene, the widow, better known as
Bettie Allen, who were authorized by special
order to carry on and work the plantation,
etc.
The executors did not agree as to the dis-
position of the estate; Mrs. Allen and Col*
fins filing a provisional account of their ad-
ministration and praying for its approval,
while Smith filed a separate account^ prayed
for its approval, and stated that he disa-jpreed
with his coexecutors in several particulars,
and therefore filed an account in which his
coexecutors did not concur. The principal
dispute seems to have been over the cash left
by the deceased, which Mrs. Allen claimed
under the will, and Smith insisted be-
longed to the legal heirs who *were[301]
not cut off by the will. Mrs. Allen also
claimed the crop of the Rienzi planta-
tion, while Smith insisted it belonged
741
•91-898
SuPBXicB GouBT or THs Untted States.
to the legatees named in the will, to
whom the realty was bequeathed. Oppoei-
tions to the approval of both accounts were
also filed by yarious parties interested in the
estate, and for various reasons not necessary
to be here enumerated. JudCTient was de-
livered by the district court, June 10, 1896,
settling the questions in dispute between the
parties interested, and an appeal was taken
to the supreme court of Louisiana, which
rendered an opinion March 9, 1896, varyins
the decree of the court below to the extent m
holding Mrs. Allen entitled to the net pro-
ceeds of the crop for the year 1894, but af-
firming it in otner respects. (48 La. Ann.
1036.) No reference, however, was made in
the proceedings up to this time to the gov-
ernment boun^ upon su^ar, amounting to
$11,569.35. which was oollected by Mrs Al-
len, and wnich forma the subject of the pres-
ent litigation.
This suit was initiated by a petition filed
August 18, 1896, bv Collins and Mrs. Allen
for the approval of their final account, and
of the proposed distribution of the undis-
tributed assets, among which was the boun-
ty sranted b^ Congress for sugar produced
on the Rienzi plantation for the year 1894,
the porticm received, $11,569.35, being all
that the estate was entitled to out of the ap-
propriation made by Congress for this pur-
pose. "This amount the accountants pro-
posed to turn over to Mrs. Bettie Allen as
the owner of the net proceeds of the crop of
1894 on the Rienzi plantation, under the will
of the testator and the decree of the supreme
eourt."
Smith also filed a final account and an op-
position to that of Mrs. Allen and Collins,
particularly opposing giving any part of the
Dounty to Mrs. Allen, stating that "this
money formed no part of the crop of 1894,
is an unwilled asset, and must be distrib-
uted among the legal heirs who have not been
cut off by the wul, in accordance with the
petitioner's final account filed herewith."
These heirs, as stated by him in his account,
were (1) the estate of Thomas H. Allen,
Sen., a deceased brother of the testator, rep-
resented by J. Louis Aucoin, administrator;
(2) two children of Mrs. Myra Turner, a de-
[Sd2]ceased *sister; (3) five children of Mrs. C^-
thia Smith, a deceased sister. Opposition
was also filed by these several classes of heirs
to the accounts of Mrs. Allen and Collins, and
by certain other heirs who were not recos-
nized by the executors, to that of Smith.
Upon consideration of these various plead-
ings and the testimony introduced in connec-
tion therewith, the district court was of
•pinion that the bounty formed no part of
the crop proper or the proceeds thereof.
"Though basea on the crop as a means of cal-
culation, and conditioned on the production
of the crop by the owner of the plantation
under certain rules, it was a pure gratuity
from the government;" that it did not
therefore go u> Mrs. Allen under the will,
fl^ut to the neirs as an unwilled portion.
An appeal was taken to the supreme court
hf the Smith heirs, by Ogden Smith, execu-
tor, and by Mrs. Allen and Collins. That
eourt first held that the bounty was a gratui-
742
of oi.
ty from the government, tlK>n^
an estimate of the crop as a
dilation ; that its allowance n
on the fulfilment by the deeeaaed of eertaia
prerequisites; that the equitable dais of
the deceased to the bounty had been cnaiBi
during his lifetime, the license obtatBed aai
all conditions precedent ccnnplied with; that
it formed no part of the erope of 1894 m
1895, nor of their proceeds; tnat tiie aem-
tors did nothing but make the nfrriij
proofs preparatory to its eollectioa aad re-
ceive payment of the money. ''It most eoe-
sequently be classed as an unwUled asset of
the deceased, and not as part of the net pro-
ceeds of the crop of 1894, passing, OBdcr th»
will, to Mrs. Betty Allen ;^ uid that it mmt
pass to the account of the legal beirt. (49
La. Ann. 1096.) Upon a rehearing, M'P^'^
for by both parties, that court modified it*
views, and adjudged that the boonty bomt
in controversy be divided equally ; that oee
half be distributed among the heirs as aa ai-
willed portion, and that the otho- half be dc-
livei*ed to Mrs. Allen as legatee. Frooi tibt
decree both parties sued out a writ of
from this court. 49 La. Ann. 1112.
Messrs, Jamea F. Plersom, OkaH*9m 1
BeaUie, and Taylor Beattie for Mra. Bcttic
.\llen, as executrix and individually, and V
F. Collins, executor, plaintiffs in' error ia
No. 168, and defendants in error ia No. 1T€
Messrs, Cliarlee Payne Feaaar, Cimlm
E, Fenner, and Samuel Eendmrsom^ Jr^ for J.
L. Aucoin, administrator, plaintiff in <fT«
in No. 176 and defendant in error in Na Itt.
Mr. Henry CliiapellA and L. F, ^sUoo
for Smith ei al., defendants in error in !Ca
168, and plaintiffs in error in No. 176.
*Bfr. Justice Browm deUvered tke o^aia«3H(
of the court:
This case involves the question whether,
under the act of Congress and the will if
Richard H. Allen, the bounty of eieht teoth*
of one per cent per pound, grantca br Coa*
gress to the "producer** of suffar, was p^T
able to his widow or to his heirs at lav.
In the course of the litigation in the
courts a larg^ number of questioitt
raised and decided which are not pertiao^
to this issue. So far as these qucstioef ^
pend upon the construction of state lam m
of the vnll of Mr. Allen, they are beTood oar
cognizance. So far as the question of beeatr
depends upon the construction of that la«.
the decision of the supreme court it tqatKt
bindinff upon us; but so far as it dcpes^
upon the construction of the act of CoatfrtM
awarding such bounty, it ia subject to r^
examination here.
The course of legislation upoa the ts^
ject of the sugar bounty is set forth at 1*^0^
in the opinion of this court in UmHei 8t«im
V. Realty Co, 163 U. S. 487 [41:ilSl, sa<
is briefly as follows:
By the tariff act of October 1, im f»
Stat at L. 567 ) , it was provided ia vva*
graph 231 that on and after July 1. li^U
and until July 1, 1905, there shooJd bo psil
"to the producer of sugar** a variaMo fcq»
ty, dependent upon polariaeope tert*. "la^
179 IL &
1896.
Allbn t. Smith.
898-8M
such rules and reffulationi as the CommiA-
aioner of Internal Revenue . . . shall
prescribe." Then follow three paragraphs
requiring the producer to give notice to the
Commissioner of Internal Reyenue of the
place of production, the methods employed,
and an estimate of the amount to be pro-
duced, together with an application for a li*
oense and an accompanying bond. The Com-
llmissioner was required to issue *this license,
and to certify to the Secretary of the Treas-
ury the amount of the bounty for which the
Secretary was authorized to draw warrants
on the Treasury. This act was repealed Au-
gust 28, 1894 (28 Stat, at L. 509), while the
crop of 1894 was in progress of growth, and
about a fortnight before the death of Mr.
Allen. But by a subsequent act of March 2,
1895 (28 Stat, at L. 910, 933) , it was enacted
that there should be paid to those "producers
and manufacturers of sugar" who nad com-
plied with the provisions of the previous law
a similar bounty upon sugar manufactured
and produced by them previous to Aus^ust
28, 1^4, upon which no bounty had been
previously paid. As the sugar in question
in this case was not manufactured and pro-
duced prior to August 28, 1894, this pro-
vision was not applicable; but there was a
further clause (under which the bounty in
this case was paid) to the effect that tnere
should be paid to "those producers who com-
plied with the provisions" of the previous
bounty law of 1890, by filing an application
for license and bond thereunder required,
prior to July 1, 1894, and who would have been
entitled to receive a license as provided for
in said act, a bounty of eight tenths of a cent
per pound on the sugars actually manufac-
turea and produced during that part of the
fiscal year ending June 30, 1895, comprised
in the period commencing August 20, 1894,
and ending June 30, 1895, both days inclu-
sive. The constitutionality of this act was
affirmed by this court in United States v.
Realty Co, 163 U. S. 430 [41: 216].
At the time of Mr. Allen's death, Septem-
ber 19, 1894, and for many years prior there-
to, he was the owner of a valuable sugar
plantation^ upon which he was engaged in
the cultivation of cane and the manu&cture
ef sujgar. At this time there was standing
in his fields a large crop of cane nearly
ready for harvesting. In anticipation of
this crop and of the manufacture of sugar
therefrom, Mr. Allen had complied with all
the provisions of the bounty law, and would,
but for the repeal of the act of 1894, about
one month prior to his death, have been en-
titled to collect the bounty. While, then,
there was no bounty provision in force at
(]the time of his death,*Conffress, in March of
the following year, enacted the bounty law
above specified in fulfilment of its moral ob-
ligation to recompense those who had planted
their cane upon the supposition that the
bounty granted by the act of 1890 would be
continued. The crop of cane upon his plan-
tation at his death was harvested by his
executors at the expense of the funds in their
hands, which expense was deducted from the
eross proceeds of the sugar.
I. T3 Urn S«
The material provisions of his will are as
follows:
1. "I give to my wife, Bettie Allen, one
half on my Rienzi plantation and one hair
of all tools, mules, etc."
2. "My executors shall have from one to
five years to sell and close up the estate."
3. "I will that mv wife do nave one half
of everything belonging to Rienzi olantation,
except the claim due me by the United
States." (This was not the claim for bouin-
ty.)
4. "When it" (the plantation) "is sold,
half of all the proceeds, cash, notes, etc, is
to belong to my wife, Bettie Allen." "Aj I
fear property will be very low, I give my
executors five years to work for a good
price."
5. "In the meantime, that thev are wait*
ing to sell, the place can be rented or worked
to pay all taxes and other charcee, anv over
that to go to Mrs. Bettie Allen"s credit."
Under the last clause of the will the exec-
utors, while awaiting a favorable oppor-
tunity to sell the plantation, were authorized
to work it so as to pay all taxes and other
charges, and to place the net proceeds to
Mrs. Allen's credit. In construing this
clause the supreme court of Louisiana held,
upon the first hearing (48 La. Ann. 1045),
that Mistress Bettie was entitled to the net
proceeds of the crop of the Rienzi plantation
for the vears 1894-1895. At the time of the
filing of their first account by the executors,
the crop of 1894 had not been sold bv than,
and the bounty granted by the act of March
2, 1895, had not oeen collected; consequently
these two items were reserved to be after*
wards accounted for by the executors. A
further question, however, arose, and that waa
as to whether, in making up the net proceeds
of the crop of 1894, the expenses incurred
prior to the death of the testator ^should be[3M]
deducted, as well as those incurred by the
executors after the death of the testator.
Both the district court and the supreme
court were of opinion that the will contem-
plated and dealt with the renting or culti-
vation of the plantation after the death of
the testator, and during such a period of
time as it might remain under the adminis-
tration of the executors pending a sale; thai
the date at which the expenses were to be-
^in was evidently that at which the admin-
istration of the executors oonunenced, and
only those incurred during their administra-
tion should be doductd from the pro-
ceeds of the crop, in order to ascertain the
net proceeds thereof, including the expenses
of making the sale. 49 La. Ann. 1096.
The supreme court was further of the opin-
ion that the bounty money which was col*
lected from the government by the executors
formed no part of the crops of 1894 and
1805, nor of their proceeds; that it was not
in ease at the time those crops were grown
and gathered; that the executors did noth-
ing but make the necessary proofs prepara-
tory to its collection and receive payment
of the money, and that it should tnerefore
be classed as an unwilled asset of the de-
ceased, and not as part of the net proceeds
of the crop of 1894, passing, under the will,
743
SOe-890
SUPBEME COUBT OF THE UlflTED STATES.
Oct. Tfcjis.
to Mrs. Allen. 40 La. Ann. 1096. But,
upon a rehearing of this question (49 La.
Ann. 1112), the supreme court modified its
views to a certain extent, treated the case
as one depending upon the question who was
the producer of the crop within the meaning
of the act of Congress, and held that the pro-
ducer of the cane was to be the first to re-
oeive the benefit of the bounty on complying
with certain formalities; that the act placed
the manufacturer of the sugar, in the matter
of the bounty laws, in a secondary position ;
but that both production and manufacture
were essential m order to enable the pro-
ducer to recover the bounty; that to deter-
mine who was the producer it was necessary
to consider the questions of title and owner-
ship; that the crop had been planted and
ctdtivated bv Allen, and all expenses to the
date of his death were paid from his funds;
that he had earned the value of the crop on
|M7]that date,*aiid had also earned a proportion-
ate share of the bounty, not because the
bounty was a part of the crop or its proceeds,
but because it was granted to the producer
of the crop; that in determining who was
the producer, it could not exclude from con-
sideration the labor applied under the direc-
tion of the owner of the plantation and the
amount expended by him; that Mistress Bet-
tie was not the exclusive producer, and was,
therefore, not entitled to the whole bounty
of the government granted to the producer
who produced the entire thing — a crop.
In its opinion upon the rehearing tne su-
preme court adjudged that under the will of
Allen the proceeds of the nianuf acture of sugar
carried on after his death were for the ac-
count of Mrs. Allen, and not for that of the
estate, and that as a consequence of this con-
struction Mrs. Allen was the manufacturer
of the sugar made in the sugar house; that
is to say, that whilst the executors may have
manufactured the sugar they did so as the
agents and for the account of Mrs. Allen, and
she was therefore the producer of the sugar,
in so far as the manufacture thereof was
eonoemed. In delivering the opinion the
oourt used the following language: "But
there are other clauses of the will which, in
our view, extend her right and show that
she was the producer after the death of Mr.
Allen. She paid all the expenses of the crop ;
she was to receive the proceeds under tne
terms of the will ; indeed, she was the owner
of the crop. She can well be considered, as
we think, the producer. We desire it to be
well understood that, in our opinion, the
bounty money is no part of the crop or pro-
ceeds of the crop. The question was: Who
was the owner and producer of the crop aft-
er the death of the testator?"
Having thus determined that under the
will of Mr. Allen she, through the executors,
was entitled to all the proceeds of the manu-
facture of sugar in the sugar house, the court
proceeded to take away from Mrs. Allen a
part of these proceeds upon the theory that,
by the act of Congress, the bounty was given,
not to the manufacturer of the sugar, but
to the producer of the cane. In doing this
[SM]it necessarily took from Mrs. * Allen a part
of the boun^ belonging to her as manufac-
744
torer of sugar under the act ol CoogreM, aad
gave it to the legal heirs of Allen, beeam
they had produced the cane from whidi tke
sugar had been manufactured. This, there*
fore, necessarily raised a Federal qoertioa,
since it involved a construction ol tiie act if
Congress. The theorv upon whidi the eovt
did this is thus stated in the opinkm: *TW
end of the bounty was to encourage the pr»>
duction of cane. It devolved upon Ǥ to de>
termine by whcmi the cane was jgodncrf.
In our judgment, after carefully readiag the
act, it is evident that the prodoeer was te
be the first to receive the benefit of the
tv, . , , The act (although it
tne manufacture of cane into sugar as
of the essentials) places the mairafaetart
of the sugar in matter of the bounty wAam
in a secondary position. In other vordi, ia
our view production was a first and »•■■•
facture a secondary considcratioiL "EtA,
however, was essential in order to enable the
producer to recover the bounty." The esa-
elusion of the court was that> as the eost if
cultivation was about equal to the eost if
manufacture, the heirs at law were cntitM
to one half of the bounty and Mra. Allen the
other half.
The correctness of this constructkiB it tht
question presented for our consideratioa. b
the final production of sugar then are tve
distinct processes involved: (1) The rait-
ing of the cane; (2) the manufactiire el tkt
sugar from the cane so raised. If the cms
be raised and the sugar be manu&etsrai hf
the same person, he is beyond peradvcstvt
the "producer" of the su^r wituB the ■■>-
ing of the statute : but if the eaae be nkti
by one person and the sugar maaufaetsrii
by another, which is the producer withia tht
intent of the actT Or, if, as in this ease, tkt
cane be raised by the testator and he 4it
while the crop is growing, and hia eiteatet*
reap it and convert it into sugar, which is
the producer and which ' entitled to tht Ml
proceeds of the crop? Conceding the qm$'
tion of what are the net proceeds of the tnf
is one determinable by the state courts tkm,
it is so commingled with the Federal qm$'
tion, who, under the act of Congrets, «■■
the producer of this crop, that it is mmrrtif
possible to give a construction to the *aa^
without also taking into consideratioa tlM
bearing of the other. In thi« particular tta
case is not unlike that of BHpgg r, YTalfc^.
171 U.S. 466 [ante, 243]. in which* whertttt-
tain moneys had been collected of the Uaits'
States by Briggs' executors, this eoort ta-
sumed to determine who were the "le^ral rff-
resentatives" of Briggs, and for whew httt-
fit under the act of Congress the raoaer kU
been collected.
It is quite evident that Allen himself «*^
not the producer of the sugar. He li%d planted
the crop of cane upon his own planutma
He had given notice and a bond to the Cew
misifioner of Internal Revenue^ and ba<* ap-
pliea for a licence; but he had done nfOiH
toward the production of the *a::ar at tht
time of his death berond rai!>in;r the cmat.
which certainly would not have en^ftled Ua
to be considered a producer of ibe
The word "producer* does not differ
173 v. &
18118.
ALLEN y. Smith.
899-402
tiAlly IB its legal aspects from the word
"manufacturer, except that it is more com-
monly used to denote a perscm who raises
affricultoral crops and puts them in a con-
dition for the market In ths case of su^
a process of strict mannfacturt is also in-
Tomd in conyerting the cane into its final
product. In a number of cases arising in
this court under the reyenue laws, it is said
thai the word "manufacture" is ordinarily
used to denote an article upon the material
of which labor has been expended to make
the finished product. That such product
is often the result of several processes, each
one of which is a separate ana distinct man-
ufacture, and usually receives a separate
nanie ; or, as stated in Tide Water Oil Co, y.
United States, 171 U. S. 210, 216 [ante 139]^
"Haw materials may be and often are sub-
jected to successive processes of manufac-
ture, each one of whi(m is complete in itself,
and several of which may be required to
make the final product. Thus, lo^ are first
manufactured into boards, planks, joists,
scantling, etc., and then by entirely differ-
ent processes are fashioned into boxes, furni-
ture, doors, window sashes, trimmings, and
the thousand and one articles manufactured
wholly or in part of wood. The steel spring
of a watch is made ultimately from iron ore,
but by a large number of processes or trans-
formations, each successive step in which is a
distinct process of manufacture, and for
iH>]*which tne article so manufactured receives
a different name." So the one who raises the
cane is undoubtedly entitled to be considered
the producer of the cane, but he is not the
producer of the susar. That appellation is
reserved for him who turns out the finished
product.
Neither can Mrs. Allen, nor the heirs of
her husband, be said to be the direct produ-
cers of the sugar. Neither of them was the
owner of the crop, which belonged to the
plantation while growing, and would, as
hereinafter stated, have passed to the pur-
chafer, had a sale been made while the cane
was still uncut. One half of the plantation
passed under the will to Mistress Bettie,
and the other half to the heirs of her hus-
band.
There remain only the executors who, as
between the estate of Allen and the govern-
ment, must be deemed the producers of the
sugar. By the will they were authorized to
rent or work the plantation as they pleased,
to pav all taxes and other charges, and to
put the residue to the credit of Mrs. Allen.
The inchoate right to the bounty obtained by
Alien before his death was a personal asset,
which undoubtedly passed to the executors,
who subsequently perfected that right and
received the money.
Of course this money did not belong to the
executors personally. They held it for the
b^efit of the estate and as agents for all
perscns interested therein; and the question
>s between the different heirs and l^atee
who shall be deemed the producer of the
Bu^r remains to be settled. We are all of
opinion that this question must he answered
hi favor of Mistress Bettie. If the cane
when cut had been sold, the proceeds, over
IT3 U. S.
and above all expenses incurred since her
husband's death, would have belonged to her,
but not the bounty eo nomine, since the
sugar had not been produced nor the bounty
earned. But if such sale had been made, the
cane undoubtedly would have fetched a price
largely increased by the fact that the pur-
chaser would receive a bounty upon the man-
ufacture of the su^ar. It is impossible to
suppose that the price of the cane would not
be seriously affected by the prouiise of the
bounty, thouffh perhaps not to the full
amount of sudi *bounty. In this way Mrs.[401|
Allen would have received indirectly the ben-
efit.of the bounty, although she did not pro-
duce the sugar. On the other hand, if the
cane be converted into sugar, it is equi^ly
just that she should receive the l>Qunty. To
den^ it to her would place her in a worse
position than she woula have been in if the
executors had sold the cane when it was cut.
Whether she received it directly or indirectly
makes no difference in principle.
The difficulty with the position of the su-
preme court of Louisiana is this: That if
A should raise the cane and sell it to B, who
manufactured it into suear, A and B would
be entitled to share in the bounty, althoufi;h
A may have received a much larger price for
his cane than he would have received if there
had been no bounty. Under the terms of the
will Mistress Bettie was entitled to receive
the entire proceeds of the crop, over and
above the expenses, taxes, and other charges;
and whether these came from a price re-
ceived from the cane increased by the offer
of a bounty, or from the boimty actually re-
ceived upon the production of '^the sugar^ Is
wholly immaterial. To give to one who
raises the cane and sells it to a manufactur-
er an^ part of the bounty, is in reality to
give him a double bounty, since he must nec-
essarily receive one in the enhanced price
given for the cane. On the other hand, the
manufacturer of the sugar is entitled to the
{>roceeds of his sugar and to whatever the
aw has annexed thereto as an incident.
To return to the illustration of manufac-
tures. Can it be possible that, if a bounty
were offered for tne manufacture of furni-
ture, the manufacturer of the finished prod-
uct would be obliged to share such bounty
with the owner of the trees, or the manufac-
turer of the lumber cut from such trees, from
which the furniture was made? Or, under
similar circumstances, would the manufac-
turer of watches be compelled to share the
bounty with the scores of prior manufactur-
ers who contributed directly or Indirectly to
the production of the various articles of
mechanism which ^o to make up the finished
watch? To state this question is to answer
it; and yet, if the producer of the cane be en-
titled to any portion of the *bounty, why are[469|
not the manufacturers of the constituent
parts of a finished product?
The supreme court of Louisiana held that
the widow was not chargeable with any part
of the expense of the crop incurred prior to
her husband's death, but that does not
change her attitude to the sugar as its act-
ual producer, nor deprive her of the benefit
of the bounty; nor do we think that her
745
SOe-890
SUPBEIOD COUBT OF THE UlflTED STATES.
Oct. Tux.
to Mrs. Allen. 40 La. Ann. 1096. But,
upon a rehearing of this question (49 La.
Ann. 1112), the supreme court modified its
views to a certain extent, treated the case
as one depending upon the question who was
the producer of the crop within the meaning
of the act of Congress, and held that the pro-
ducer of the cane was to be the first to re-
oeive the benefit of the bounty on complying
with certain formalities ; that the act placed
the manufacturer of the sugar, in the matter
of the bounty laws, in a secondary position ;
but that both production and manufacture
were essential m order to enable the pro-
ducer to recover the bounty; that to deter-
mine who was the producer it was necessary
to consider the questions of title and owner-
ship; that the crop had been planted and
cultivated bv Allen, and all expenses to the
date of his death were paid from his funds;
that he had earned the value of the crop on
|M7]that date,*aiid had also earned a proportion-
ate share of the bounty, not because the
bounty was a part of the crop or its proceeds,
but because it was granted to the producer
of the crop; that in determining who was
the producer, it could not exclude from con-
sideration the labor applied under the direc-
tion of the owner of the plantation and the
amount expended by him; that Mistress Bet-
tie was not the exclusive producer, and was,
therefore, not entitled to the whole bounty
of the government granted to the producer
who produced the entire thing — a crop.
In its opinion upon the rehearing tne su-
preme court adjudged that under the will of
Allen the proceeds of the nianuf acture of sugar
carried on after his death were for the ac-
count of Mrs. Allen, and not for that of the
estate, and that as a consequence of this con-
struction Mrs. Allen was the manufacturer
of the sugar made in the sugar house; that
is to say, that whilst the executors may have
manufactured the sugar they did so as the
agents and for the account of Mrs. Allen, and
she was therefore the producer of the sugar,
in so far as the manufacture thereof was
concerned. In delivering the opinion the
court used the following language: "But
there are other clauses of the will which, in
our view, extend her right and show tJiat
she was the producer after the death of Mr.
Allen. She paid all the expenses of the crop ;
she was to receive the proceeds under tne
terms of the will; indeed, she was the owner
of the crop. She can well be considered, as
we think, the producer. We desire it to be
well understood that, in our opinion, the
bounty money is no part of the crop or pro-
ceeds of the crop. The question was: Who
was the owner and producer of the crop aft-
er the death of the testator?"
Having thus determined that under the
will of Mr. Allen she, through the executors,
was entitled to all the proc<^s of the manu-
facture of sugar in the sugar house, the court
proceeded to take away from Mrs. Allen a
part of these proceeds upon the theory that,
by the act of Congress, the bounty was given,
not to the manufacturer of the sugar, but
to the producer of the cane. In doing this
[••8]it necessarily took from Mrs. *Allen a part
of the bounty belonging to her as manmac-
744
turer of sugar under the act ol Cofngrtm, mmA
gave it to the legal heirs of Allen, becsaat
they had produo^ the cane from whidi tke
sugar had been manufactured. This, there*
fore, necessarily raised a Federal qnwtkw,
since it involved a construction of the act if
Congress. The theory upon whidi the eevt
did this is thus stated in the opinion: *TW
end of the bounty was to encourage the pr»>
duction of cane. It devolved upon ne to 4e>
termine by whcmi the cane was prodneei.
In our judgment, after carefully readlag the
act, it is evident that the produeer was te
be the first to receive the benefit of the
tv. . , . The act (although it
tne manufacture of cane into sugar at
of the essentials) places the maxnifaetsrt
of the sugar in matter of the bomttj
in a secondary position. In oth<
our view production was a first
facture a secondary considerataon.
however, was essential in order to esafalt the
producer to recover the bounty.** The eoa-
dusion of the court was that> as the cost if
cultivation was about equal to the eost if
manufacture, the heirs at law were entitkd
to one half of the bounty and Mrs. Allei the
other half.
The correctness of this constmctioa it tkt
question presented for our considen^tifla. b
the final production of sugar there are tve
distinct processes involved: (1) The rait-
ing of the cane; (2) the manufactore el tkt
sugar from the cane so raised, ii the cms
be raised and the sugar be manufaetnrei ky
the same person, he is beyond peradvcDtvt
the "producer** of the su^r witlmi the ■■>-
ing of the statute : but if the cane be nkti
by one person and the sugar maanfaeteni
by another, which is the producer withia tht
intent of the actT Or, if, as in this etm, tkt
cane be raised by the testator and be 6m
while the crop is growing, and his ejLccutort
reap it and convert it into sunr, whieb h
the producer and which ' entitled to tht Ml
proceeds of the crop? Conceding the q«»>
tion of what are the net proceeds of the enf
is one determinable by the state courts akm,
it is so commingled with the Federal q«»-
tion, who, under the act of Cony ess. «■•
the producer of this crop, that it is vearrrfr
possible to give a construction to the ^ohj
without also taking into consideratioB thi
bearing of the other. In thi^ partiouUr thi
case is not unlike that of BriQ<f9 r. W^lktr,
171 U.S. 466 [ante, 243], in which, where «e^
tain moneys had been collected of the Cnitei
States by Briggs' executors, this ooart as-
sumed to determine who were the **\rf\ f«f-
resentatives** of Briggs, and for wboar br•^
fit under the act of (S>ngress the raoaey ^
been collected.
It is quite evident that AUen hrmsHf ««<
not the producer of the sugar. He Imd pUatc4
the crop of cane upon his own pUnutin.
He had given notice and a bond to th« C«9-
raisf-ioner of Internal Revenue, snd h«i* *r
pliea for a licence; but he had dnre roctirf
toward the production of the «Uir»r at tW
time of his death beyond raising' the
which certainly woula not have enHtW
to be considered a producer of ihc
The word "producer" does not difff*-
173 v. &
im.
ALLEN y. Smith.
899-402
tttlly in its Iml aspects from the word
'Hnanufacturer, except that it is more com-
■only used to denote a perscm who raises
•flicnltoral erope and puts them in a con-
ditioii for the market In the case of su^r
s process of strict manvkfacturt is also in-
fotved in oonyerting the cane into its final
prodnct In a number of cases arising in
this court under the revenue laws, it is said
that the word "manufacture'* is ordinarily
QBed to denote an article upon the material
of which labor has been expended to make
^e finished product. That such product
is often the result of several processes, each
one of which is a separate ana distinct man-
ufacture, and usually receives a separate
nanie; or, as stated in Tide Water Oil Co, v.
Uniied States, 171 U. S. 210, 216 [ante 139] ^
*^w materials may be and often are sub-
jected to successive processes of manufac-
ture, each one of which is complete in itself,
tnd several of which mav be required to
mal^e the final product. Thus, lo^ are first
maoufactured into boards, planks, joists,
RcaDtling, etc, and then by entirely difi'er-
ent processes are fashioned into boxes, furni-
ture, doors, window sashes, trimmings, and
the thousand and one articles manufactured
wholly or in part of wood. The steel spring
of a watch is made ultimately from iron ore,
but by a large number of processes or trans-
fonnations, each successive step in which is a
distinct process of manufacture, and for
0]*which tne article so manufactured receives
a different name." So the one who raises the
cane is undoubtedly entitled to be considered
the producer of the cane, but he is not the
producer of the susar. That appellation is
reserved for him who turns out the finished
product.
Neither can Mrs. Allen, nor the heirs of
her husband, be said to be the direct produ-
cers of the sugar. Neither of them was the
owner of the crop, which belonged to the
plantation while growing, and would, as
hereinafter stated, have passed to The pur-
chsfer^ had a sale been made while the cane
was still uncut. One half of the plantation
passed under the will to Mistress Bettie,
and the other half to the heirs of her hus-
band.
There remain only the executors who, as
between the estate of Allen and the govern-
ment, must be deemed the producers of the
sugar. By the will they were authorized to
rent or work the plantation as they pleased,
to pay all taxes and other charges, and to
put the residue to the credit of Mrs. Allen.
The inchoate right to the bounty obtained by
Allen before his death was a personal asset,
which undoubtedly passed to the executors,
who subsequently perfected that right and
received the money.
Of course this money did not belong to the
executors personally. They held it for the
benefit of the estate and as agents for all
persons interested therein; and the question
ts between the different heirs and l^atee
who shall be deemed the producer oi the
su^r remains to be settled. We are all of
opinion that this question must be answered
in favor of Mistress Bettie. If the cane
when cut had been sold, the proceeds, over
173 U. S.
and above all expenses incurred since her
husband's death, would have belonged to her,
but not the boimty eo nomine, since the
sugar had not been produced nor the bour.ty
earned. But if such sale had been made, the
cane undoubtedly would have fetched a price
largely increased by the fact that the pur-
chaser would receive a bounty upon the man-
ufacture of the su^ar. It is impossible to
suppose that the price of the cane would not
be seriously affected by the prouiise of the
bounty, though perhaps not to the full
amount of such *bounty. In this way Mrs.[Ml|
Allen would have received indirectly the ben-
efit.of the bounty, although she did not pro-
duce the sugar. On the other hand, if the
cane be converted into sugar, it is equi^ly
just that she should receive the l>Qun^. To
den^ it to her would place her in a worse
position than she woula have been in if the
executors had sold the cane when it was cut.
Whether she received it directly or indirectly
makes no difference in principle.
The difficulty with the position of the su-
preme court of Louisiana is this: That if
A should raise the cane and sell it to B, who
manufactured it into suear, A and B would
be entitled to share in the bounty, although
A may have received a much larger price for
his cane than he would have received if there
had been no bounty. Under the terms of the
will Mistress Bettie was entitled to receive
the entire proceeds of the crop, over and
above the eiq>enses, taxes, and otner charges;
and whether these came from a price re-
ceived from the cane increased by the offer
of a bounty, or from the boimty actually re-
ceived upon the production of '^ the sugar^ is
wholly immaterial. To give to one who
raises the cane and sells it to a manufactur-
er an^r part of the bounty, is in reality to
give him a double bounty, since he must nec-
essarily receive one in the enhanced price
given for the cane. On the other hand, the
manufacturer of the sugar is entitled to the
proceeds of his sugar and to whatever the
law has annexed thereto as an incident.
To return to the illustration of manufac-
tures. Can it be possible that, if a bounty
were offered for the manufacture of furni-
ture, the manufacturer of the finished prod-
uct would be obliged to share nuch boimty
with the owner of the trees, or the manufac-
turer of the lumber cut from such trees, from
which the furniture was made? Or, under
similar circumstances, would the manufac-
turer of watches be compelled to share the
boimty with the scores of prior manufactur-
ers who contributed directly or Indirectly to
the production of the various articles of
mechanism which ffo to make up the finished
watch? To state this question is to answer
it; and yet, if the producer of the cane be en-
titled to any portion of the *bounty, why are[469|
not the manufacturers of the constituent
parts of a finished product?
The supreme court of Louisiana held that
the widow was not chargeable with any part
of the expense of the crop incurred prior to
her husband's death, but that does not
change her attitude to the sugar as its act-
ual producer, nor deprive her of the benefit
of the bounty; nor do we think that her
745
403^404
SXTFBSICB COUBT OT THE UlTITED StATBS.
Ooi. Theb,
right to fueh bounty is affected by the fact
that the bounty law in existence when Al*
len applied for his license was repealed be-
fore nis death, and another law passed in
the following spring renewing the bounty
applicable to the crop of the previous year.
Such act was passed, as was held by this
«ourt, in United States y. Realty Co. 163 U.
8. 427 [41: 215], in reconiition of a moral
obligation to those who mid put in their
«rop the prerious year upon the faith of the
bounty law then in existence. It was not
so much a ^ft by the ffpyemment as a re-
ward paid in consideration of exj^enses in-
curred by the planters upon the faith of the
^vemment's promise to pay a bounty to the
manufacturers and producers of sugar. As
applied to this case, we think the act of 1895
should be construed as a continuation of a
prior bounty. To say that it is an "un-
willed asset" is practically to hold that it
is a gift from the government "without any-
thing in the nature of a consideration," and
that the amount of sugar produced is only
to be considered as the measure of the boun-
ty. This dissociates the bounty altogether
from the motive which actuated Congress in
granting it, and turns it into a mere dona-
tion of so much monev, which it cannot be
presumed to have made, even if it had the
* power. Bounties granted by a government
are never pure donations, but are allowed
either in consideration of services rendered
or to be rendered, objects of public interest
to be obtained, production or manufacture
to be stimulated, or moral obligations to be
recognized. To grant a bounty irrespective
altogether of these considerations would be
an act of pure a^arianism ; and to deter-
mine who is entitled to the benefit of the
bounty is. but little more than to determine
who has rendered the consideration.
|408] *The act giving the supplementary bounty
to replace that wnich should have been paid
under the original act clearly did not con-
template giving a bounty to any other pro-
ducer than the one designated by the origi-
nal act. That act plaimy gives the bounty
only to the manufacturer, and not to the
grower. It follows, therefore, that the court
accepting its construction of the will as un-
questionable, declared that although Mrs.
Allen was a manufacturer of the sugar and
the successor of Mr. Allen in that regard,
was yet not entitled to the whole bounty, be-
cause, under its construction of the act of
Congress, the jBn*ower of the cane was the pri-
mary person intended to be benefited by the
act. As it is obvious that the person
intended to be benefited by the act of
Congress was the manufacturer, it fol-
lows tiiat the supreme court of Louisiana,
after finding that Mrs. Allen was the man-
ufacturer, has taken from her a portion of
the bounty to which she was entitled under
the act of Congress, on the erroneous theory
that that act gave the bounty to the grower
«f the cane instead of to the manufacturer.
We do not undertake to say that the crop
of growing or maturing cane passed to Mrs.
Allen at the date of her husband's death,
since if the executors had chosen to sell the
plantation the next day, this cane would
746
have passed to the vendee. 1m IUs tht wm-
mon law and the civil law agree. 1 WaskL
Real Prop. 5th ed. 11 ; Code Napoleon, art
520. The same principle is iDCorporated ia
the Civil Code of Louisiana: ^Art 4C5.
Standing crops and the fmita td tnm aot
gathered, and trees before they axe eot dovB,
are likewise immovable, and axe rwiiiWiiiil
as part of the land to whidi they are at-
tached. As soon as the erop is cut, aad tW
fruits gathered, or the trees cut dowa, al-
though not yet carried off, tbey arc
bles." But what she did own was the wn^
ceeds of the crop ; the right in ease the plaa-
tation was not sold to have this crop hu-
vested for her benefit, and if raawnfaftmrf
into suear, to have the proceeds of sack ••-
far and all the incidents thereto plaesi u
er credit.
For the reasons above given, we iSUak iht
must be considered as the producer of tW
susar, and that it is immaterial that ^*vai^lM
not the producer of the cane, sinee the tw
are distinct and separate artideB of prodK-
tion. It results from this that the dtem
of the Supreme Court of Lonisiaaa mt hi
reversed, and the cases remanded tt tkal
court for further proceedinga in
with this opinicm.
ST. LOUIS. IKON MOUNTAIN. 4 SOUTH.
ERN RAILWAY COMPANY, «#. •
Brr,,
V,
CHARLES PAUL.
(Bee 8. C. Reporter's ed. 40i-ll«.)
Arkanaaa act ae to raUroad eompemim f^
ing their employees — due process of km.
1. The Arkansas act of 1889 reqatrtag r^
road companies to pay their emptoyaM
discharged their unpaid wagea then
withont dednction. or that such wsgm
contlnae at the same rate until paM. ail t»
exceed sixty daya doea not deny to mA tm-
paniei the equal protection of the la«a
2. Sucb act was proapectiTe In its
restricting future contracts only,
not deprlre railroad companlea of tMr pnr
erty withont doe proceaa of law.
[No. 120.]
Submitted January 10, 1899, DseM
March 6, 1899,
IN ERROR to the Supreme Covt if tit
State of Arkansas to review a jsAfnm/i
of that court affirming a judgneat of tM
Circuit Court of Saline County, Arfciwi*
in favor of Charles Paul, plaintiff, tftt*^
the St. Louis, Iron MounUin. i Soetkm
Railway Company for the amoaat of «ai*
due plaintiff as a laborer for said 0DBfii7
and the penalty of $1.25 per day for fadsm
to pay him what was due him wbca bt «*
discharged from his emnloyment by tl* flV-
pany. as provided by a law of that ftaii af
proved March 21, 1889. Affirw%si,
See same case below, 64 Ark. 8S. S7 L a
A. 604.
I8d8.
6r. Loois, I. M. & 8. R. Co. v. Paul.
404-400
Statemeiit by Mr. Chief Justioe Fullers
This action was commenced in a justice'!
«oart in Saline township, Saline county, Ar-
kansas, by Charles Paul against the St.
Louis, Iron Mountain, & Southern Railway
Company, a corporation organized under the
laws of the state of Arkansas, and owning
and operating a railroad within that state,
to recover $21.80 due him as a laborer, and
a poialty of $1.25 per day for failure to pay
him what was due him when he was ais-
diar^ped. The case was carried by appeal to
the circuit court of Saline county and there
tried de novo. Defendant demurred to so
much of the complaint as sought to recover
the penalty on the ground tmit the act of
the general assembly of Arkansas entitled
"An Act to Provide for the Protection of
Servants and Employees of Railroads," ap-
proved March 25, 1889 (Acts Ark. 1889, 76) ,
which provided Uierefor, was in violation of
articles five and fourteen of the Amendments
to the Constitution of the United States, and
also in violation of the Constitution of the
state of Arkansas. The demurrer was over-
ruled, and defendant answered, setting up
certain matters not material here, and reit-
B]eratinff in its third paragraph the *objection
that ue act was unconstitutional and void.
To this paragraph plaintiff demurred, and
the demurrer was sustained. The case was
then heard by the court, the parties having
waived a trial bv jury, and the court found
that the plaintiff was entitled to recover
the sum claimed and the penalty at the rate
ef daily wages from the date of the discharse
until the &te of the conunencement of tEe
•nit, and entered judgment accordingly. De-
fendant appealed to the supreme court of
the state of Arkansas, which affirmed the
judgment, 64 Ark. 83 [37 L. R. A. 504], and
this writ of error was then brought.
The act inquestion ia as follows:
"Sec 1. Whenever any railroad company
or any company, corporation, or person en-
gaged in the business of operating or con-
structing any railroad or railroad bridge,
or any contractor or subcontractor engaged
in the construction of any such road or
bridge, shall discharge, with or without
cause, or refuse to furUier employ, any serv-
ant or employee thereof, the unpaid wages
^ any such servant or employee, then earned
at the contract rate, without abatement or
deduction, shall be aiid become due and pay-
able on the day of such discharge or refusal
to longer employ; and if the same be not
paid on such day, then, as a penalty for such
Donpayment, the wages of such servant or
employee shall continue at the same rate un-
til paid. Provided, ouch wages shall not
continue more than sixty days, unless an ac-
tion therefor shall be commenced within that
time.
"Sec. 2. That no such servant or employee
who secretes or absents himself to avoid pay-
ment to him, or refuses to receive the same
when fully tendered, shall be entitled to any
benefit under this act for such time as he
■0 avoids pavment.
**Sec 3. That any such servant or em-
pl^ee whose employment is for a definite
period of time, and who is discharged with-
173 IT. 8.
out cause before the expiration of such time,
may, in addition to tlie penalties prescribed
by this act, have an action against any such
employer for any dama«e0 he mav have sus-
tained bv reason of auoE wr<mgfttl discharge,
and such action may be ioiuM with an ac-
tion for unpaid wages and penalty.
''Sec 4. That this act shall take effect and
be in force from and after its passage."
Me89ra. JoIia F. DUIob, Winalow 8.
Pieree, and DaTld D. Dvaoaa, for plain-
tiff in error:
The act of the l^islature of Arkansas of
March 25, 1889, is unconstitutional as vio-
lative of the 14th Amendment to the Consti-
tution of the United States.
Leep V. 8t, Louis, I. M, A 8. B, Co, 58 Ark.
407, 23 L. R. A. 264.
Corporations are "persons," within the
meaning of the 14th Amendment to the Con-
stitution of the United States.
Smyth V. Ames, 169 U. S. 466, 42 L. ed.
819; Gulf, O. d 8, F. R, Co, v. ElUs, 165 U.
S. 150, 41 L. ed. 666; Charlotte, C. d A. R.
Co. V. Oihhes, 142 U. S. 386, 35 L. ed. 1051 ;
Santa Clara County v. Southern P, R, Co,
118 U. S. 394, 30 L. ed. 118.
The state cannot, throuffh its reserved
power to amend corporate charters whether
eeneral or special, vHthdraw corporations
from the ffuaranties of the Constitution of
the United States.
The Railroad Taw Cases, 13 Fed. Rep. 722;
Santa Clara County v. Southern P. R, Co. 18
Fed. Rep. 385; Sinking Fund Cases, 99 U. S.
700, 25 L. ed. 496; United States v. Union P.
R. Co. 160 U. S. 1, 40 L. ed. 319; People T.
O'Brien, 111 N. Y. 1, 2 L. R. A. 256.
Messrs. A. H. Qarland and B. O. Oar-
land for defendant in error.
•Mr. Chief JusUce FvUer delivered the[4M]
opinion of the court:
Plaintiff in error was a corporation duly
organized under the laws of Arkansas and
engag<Hi in operatinji^ a railroad in that state.
The state Constitution provided: "Cor-
porations may be formed under general laws;
which laws may, from time to time, be al-
tered ojr repealed. The general assembly
shall have the power to alter, revoke, or an-
nul any charter of incorporation now exisi-
inff and revocable at the adoption of this Con-
stitution, or any that may hereafter be cre-
ated, whenever, in their opinion, it may be
injurious to the citizens of this state; im
such manner, however, that no injustice shaU
be done to the corporators." (Art. 12, § 6.)
This Constitution was adopted in 1874, but,
Srior to that, the Constitution of 1808 had
eclared: ''The general assembly shall pass
no special act conferring corporate powers.
Corporations may be formed under general
laws; and all such laws may, fr<Hn time to
time, be altered, or repealed." (Art. 6, |
48.)
In Leep v. St. Louis, I. M. d 8. Railway
Company, 58 Ark. 407 [23 L. R. A. 264], see-
tion one of the act of March 25, 1889, was
considered by the supreme court of Arkan-
sas, and was held unconstitutional so far as
affecting natural persons, but sustained in
747
40d-409
SUFBBMB COTTBT OT THE UlTITED 8TAT18.
respect of corporations as a yalid exercise of
the right reserved by the Constitution "to
alter, revoke, or annul any charter of incoi*-
poration."
The court conceded that the legislature
could not under the power to am^id take
(49T]from corporations the right to contract, *but
adjudged that it could regulate that right
by amendment when demanded by the public
interest, though not to such an extent as to
render it ineffectual, or substantially impair
the object of incorporation.
As the Constitution expressly provided
that the power to annend might be exercised
whenever in the opinion of the legislature
the charter might ^'be injurious to the citi-
zens," and as railroad corporations were or-
ganized for a public purpose; their roads
were public hignways; and they were com-
mon carriers, it was held that whenever
their charters became obstacles to sudi leg-
islative regulations as would make their
roads subserve the public interest to the full-
est extent practicable, the^ would be in that
respect injurious, and might be amended;
ana as it was the duty of the companies to
serve the public as common carriers in the
most efficient manner practicable, the legis-
lature might so change their diarters as to
secure that result. And the court said: '^f
the l^slature, in its wisdom, seeing that
their employees are and will be persons de-
pendent on their labor for a livelihood, and
unable to work on a credit, should find that
better servants and service could be secured
by the prompt payment of their wages on
the termination of their employment, and
that the purpose of their creation would
thereby be more nearly accomplished, it
mi^ht require them to pay for the labor of
their employees when the same is fully per-
formed, at the end of their employment. If
it be true that in doing so it would interfere
with contracts which are purely and exdu-
sively private, and thereby limit their right
to contract with individuius, it would never-
theless, under such circumstances, have the
right to do so under the reserved power to
amend." But the court added that it did not
follow that the legislature could by amend-
ment fix or limit the compensation of em-
ployees, and particularly not as the ri^ht to
amend was to be exercised so "that no injus-
tice shall be done to the corporators;*' that,
however, this act was not obnoxious to that
ob^^ection, as it left "to the corporations the
right of making contracts with their employ-
ees on advantageous terms."
In respect to the provision that the unpaid
[4M]waffes then *earned at the contract rate were
to become due and payable on the cessation
of the employment, "without abatement or
deduction," the court held that that did not
"require the corporation to pay the employee
all the waffes to which he would have been
entitled haS he fully performed his contract
up to the time of his discharge, notwith-
sUndinff he had failed to do so, and had
damaged the corporation ther^y," but that
it meant "that the unpaid wages earned at
the contract rate at the time of the discharge
shall be paid without discount on account of
the payment thereof before the time they
748
were payable according to the tcnM ol ttt
contract of employment."
Construing tne statute thus, and, bj dis-
ination, confining it to the eorporatioat de-
scribed, its validity was sustained as witkii
the reserved power of amendment; aad the
case was approved and followed in that k-
fore us.
The scope of the power to amend, aad tW
general subject of the lawfulness of
tions on the right to contract were
ered at length, with full citation of
ity, in both these decisions.
The contention is that as to railroad ew*
porations organized prior to its passage, tht
act was void because in violation of the Fovr-
teenth Amendment. Corporations are tW
creations of the state, endowed with mk
faculties as the state bestows and subject to
such conditions as the state in^Maes, aad if
the power to modify their charters is it-
served, that reaervation is a part of the
tract, and no change within the ~ _
exercise of the power can be said to ii
its obligation; and as this anw
ed on reasons deduced from the pecilitr
character of the business of the oorpormtiMf
affected and the public nature of thdr tat-
tions, and appliea to all alike, the eanal fn-
tection of the law was not denied. Jfimsn
P. Railioay Company t. Monkey, 127 U. S.
205 [82:107].
The question then is, whether the ifiiJ-
ment should have been held unautiMiriicd k-
cause amounting to a deprivation of prop«-
ty forbidden by the Federal CoostitiitMa.
The power to amend "cannot be mati to
take away property already acquired aafa'
the operation of the charter, or to dtytiu
the corporation of the fruits actoallj n-
duced to *posses8ion of contracts livfiBT;^
made" ( Waite, Ch. J., Sinking Fmmd Cmm,
99 U. S. 700 [25 : 496] ) ; but any altmtiM
or amendment may be made "that will m(
defeat or substantiallv impair the objert rf
the grant, or any rights which havr rtM.
under it, and that the legislature mar 6tm
necessary to secure either that object m
dther public or private rights." Grmt. J^
Inland Fisheries Commissionert r. /foJyat*
Water Power Company, 104 Mass. 444, 431
[6 Am. Rep. 247] ; Green irood r. Vmm
Freight R, Co, 105 U. S, 13 [W:Wr
Spring Valley Waterworks v. Srhottkr, !!•
U. S. 347 [28: 173].
This act was purely prospective ia ito at-
ei-ation. It did not intertere witli yr^ri
rights, or existing contracts, or destroy, ■'
sensibly encroach upon, the ri^ht to ex-
tract, although it did impose a dutj ia nf
erence to the payment of wa^ aetwCY
earned, which restricted future contntto a
the particular named.
In view of the fact that these eorfonotm
were clothed with a public trust, tad **-
charged duties of public consequewc. sfM-
inp the community at large, the S«|i"i*
Court held the regulation, as pnmoiaf^
public interest in the protection of
ees to the limited extent stated, to W
eriy within the power to amend
der the state Constitution.
Inasmuch as the ripht to oontrtrt 'i* ^
inc.*
1898.
FRICB v. FORBlfiST.
409-418
absolute, but may be subjected to the re-
straints demanded by the safety and welfare
of the state, we do not think that conclu-
sion in its application to the power to amend
can be disputed on the ground of infraction
of the Fourteenth Amendment. Orient In-
ntrance Company v. Daggs, 172 U. S. 667
[ante, 662]; Uolden v. Hardy, 169 U. S.
366 [42: 780]; 8t. Louis d S. F. Railway
Company t. Mathews, 166 U. S. 1 [41: 611 J.
Qulf, Colorado, d Santa F4 Railway Co, v.
EUis, 165 U. S. 160 [41: 666], is not to the
contrary, and was properly distinguished
from this case by the supreme court of Ar-
loAnsas. There a state statute provided for
the assessment of an attorney's fee of not ez-
eeeding ten dollars against railroad com-
panies for failure to nay certain debts, and
the exaction was hela to be a penalty, al-
though no specific duty was imposed for the
nonperformance of which it was inflicted.
0]This court said: *The ^statute arbitrarily
sineles out one class of debtors and punishes
it for the failure to perform certain duties
--duties which are equally obligatory upon
all debtors ; a punishment not visited by rear
son of the failure to comply with any proper
police relations, or for the protection of
the laboring classes, or to prevent litigation
about trifling matters, or m consequence of
any special corporate privileges bestowed by
the state." The condusion was that the
subjection of railroad companies only, to the
penalty, was purely arbitrary, not justifla-
Me on any reasonaole theory of dassifica-
tion, and that the statute denied the equal
protection of the law demanded by the Four-
teenth Amendment. In this case the act
was passed "for the Protection of Servants
and Employees of Railroads," and was up-
hdd as an amendment of railroad charters,
such exercise of the power reserved being
jutftified on public considerations, and a
dulT was specially imposed for the failure
to discharge which the penalty was inflicted.
The penalty was sustained because the re-
quirement was valid.
Judgment affirmed.
RODMAN M. PRICE, Madeline Price, Gov-
emeur Price, Francis Price, and E. Tren-
ehard Price, Plffa, in Err.,
V.
ANNA M. FORREST and Charles Borcher-
ling.
(Bee 8. C. Reporter's ed. 410-480.)
Appointment by state court of a receiver of
a claim against the govemment^<iot for
the relief of Rodman M, Price.
h An order of a state coort having jarlsdlc-
tlon of the parties, appointing a receiver of a
claim against the government, and ordering
the clalmaDt to assign the same to such re-
ceiver to be held subject to the order of the
eomt for the benefit of those entitled thereto,
Is not prohibited by U. S. Rev. Stat. | 8477.
S. The words **or his heirs," in the act for tfie
rslief of Rodman M. Price, must be held to
173 v. S.
mean the same thing as personal representa-
tives, so as not to defeat just demands of
Price's creditors In the eyent of his death.
[No. 106.]
Argued January S, 4» 1899, Decided March
6, 1899,
IN ERROR to the Court of Errors and Ap-
peals of the State of New Jersey to review
a decree of that court affirming the decree
of the Chancery Court of that State that
the defendants, children and heirs of Rodman
M. Price et ol., be perpetually enjoined from
demanding or receiving from the United
States or any officer of the Treasury any
money remaining in the Treasury of the
United States which was awarded to Rodman
M. Price, deceased, under the act of Febru-
ary 23, 1801. Affirmed,
See same case l>elow, 52 N. J. Eq. 16, SI,
63 N. J. Eq. 693, 64 N. J. Eq. 669.
The facts are stated in the opinion.
Messrs, John C. Fay and Flavel MoGee
for plaintiifs in error.
Messrs, Cortlandt Parker, B. Wayne
Parker, and Frank W, Haohett for de-
fendants in error.
*Mr. Justice Harlan delivered the opin-[413|
ion of Uie court:
The ultimate question in this case is
wheUier the plaintiffs in error, as heirs of
Rodman M. Price, are entitled to receive
from the United States the amount standing
to the credit of the deceased on the boolcs ox
the Treasury, and which represents the bal-
ance of a sum found in his lifetime under
the authority of a special act of Congress to
be due him upon an adjustment of his ao-
counts as a Plirser in the Navy.
The facts out of which arise the questions
of law discussed by counsel are as follows:
In the year 1848 the decedent was assigned
to duty on the Pacific coast in California as
Purser and Fiscal Agent of the*United States[41S]
for the Department of the Navy. He acted
in that capacity until about December, 1849,
or January, 1860, when he was detached from
sudi service aiMi ordered to transfer all pub-
lic money ai)d property remaining in his
hands to his successor, or to such other dis-
bursing officer of the Navy as might be des-
ignated bv the commanding officer at the
naval station at California, and immediately
after such transfer to report at the city of
Washington for the purpose of settling his
accounts.
A. M. Van Nostrand was his successor, in
California, as Acting Purser in the Navv.
About December 31st, 1849, Commodore
Jones of the Navy, commandinjp^ the United
States squadron at San Francisco, directed
Van Nostrand to receive from Price all
books, papers, office furniture, and ftmds on
hand belonging to the Purser's department
at that city. Thereupon Price turned over
to Van Nostrand as Acting Purser of the
Navy at San Francisco, forty-five thousand
dollars, that being all the public mon^ re-
maining in his hands.
Subsequently on the 14th day of January,
1860, and out of his private funds alone,
740
413^15
SUPBBMK COUBT OT THE XJWJXED STAXKS.
Price adyanced to Van Nostrand seventy-
five thousand dollars, taking a receipt there-
for as follows:
San Francisco, Januarv 14th, 1850.
Received from Rodman M. Price, Purser
U. S. Navy, seventy-five thousand dollars,
for which 1 hold myself responsible to the
United States Treasury Department, $75,-
000.
(Duplicate.)
A. M. Van Nostrand, Acting Purser.
This money was so advanced without the
approval and signature of Commodore Jones.
Van Nostrand never returned the $75,000
or any part of it to Price, nor did he account
for it to the government.
Price insisted that the United States
should reimburse him for the amount so
advanced by him, but the officers of the gov-
ernment denied its liability to him on uiat
account. In an elaborate oj>inion, given
March 12th, 1854, Attorney General Gush-
ing held that while the appointment of Van
Nostrand as Acting Purser was lawful and
valid under the circumstances, the govern-
ment could not be charged with the private
funds paid to him by Price, although the
|413]latter believed *at the time that his aavance
of money to the former was an accommoda-
tion to the ffovemment in the then unsettled
condition of California. 6 Ops. Atty, Qen.
357.
Finally, by an act approved Febmary 23d,
1891, entitled ''An Act for the Relief of Rod-
man M. Price," the Secretary of the Treas-
ury of the United States was "authorized
and directed to adjust upon principles of
auity and justice the accoimts of Rodman
. Price, late Purser in the United States
Navy and acting Navy Agent at San Fran-
cisco, California, crediting him with the sum
paid over to and receipted for by his succes-
sor, A. M. Van Nostrand, Actine Purser,
January 14th, 1850, and pay to said Rodman
M. Price, or his heirs, out of any money in
the Treasury not otherwise appropriated,
any sum that may be found due him upon
such adjustment." 26 Stat, at L. 1371.
Under the authority conferred by that act
the Secretary of the Treasury in August,
1802, adjusted the accoimts of Price; and
in that adjustment he was credited with the
sum advanced to Van Nostrand, leaving due
to him from the government the sum of $76,-
204.08, which of course included the ahove
sum of $75,000.
In order that the precise questions to be
determined upon this writ of error may be
clearly apprenended we must now refer to
certain matters occurring in the courts of
'New Jersey both prior to and shortly after
the passage of the above act of February
23d, 1891.
In the year 1 857 SaiB»^ Forrest recovered
in the Supreme Court of New Jersey a judg-
ment affainst Rodman M. Price, for the sum
of $17,iOO and costs. Execution upon that
judgment was returned unsatisfied. For-
rest died in 1860 intestate. In 1874 his wife,
one of the present defendants in error, was
750
appointed and qualified as administratrix of
his estate. In the same year she saed oat
a writ of scire facias to revive tlie whan
judgement, and it was revived. Ib tke biS
seeking a revivor of the judflncat At al-
leged facts tending to show Sat Priee hai
an interest in eeixain lands, and alao thst
ha had equitable things in actioii or other
property to the amount of maay tbammw4
dollars, exclusive of all claims Uierooa tad
*of all exemptions allowed by law, wlikk iibeI41
had been unable to reach by exeentiaa oe
the above judgment. By that MB the ad-
ministratrix also prayed diarorery fron
Price of all property, real or
whether in possession or action,
to him, with full particulars in
thereto, and that the same under the
of court be appropriated in satisfaetioa of
such judgment; further, that a leeeiiei be
appointed in the cause to collect and tak»
cnarge of the property, money, or things is
action found to belong to Price, or to whxb
he was in any way entitled, either in law or
equity, with power to convert the
money, and with such powers as
ally granted to receivers in similar
and that Price be enjoined from
tiansf erring, or making any other
tion of the real estate and personal pi ufiii 1 1
to which he was in anywise entiUed sm
from receiving any moneys then due or ts
become due to him, except where ^m ssas
were held in trust or the funds bdd in trvt
proceeded from other persons than hiBself
The defendants to that bill were Pries ud
his wife and son, the latter being alleged t»
claim some interest in the property de-
scribed in the bill. They appeared and'fiM
an answer. Price denyine that aav part of
the properties mentioned In the bill be*
to him, or that he had any interest in
After the filing of that answer the
slept imtil August 9th, 1892, when Mn. Pior-
rest, as administratrix of the estate of Wr
husband, filed a petition stating that uma
the filing of her bill of complaint in thst
cause no payment had been made on th»
judgment against Price, and that neith#r
she nor her solicitors had been able to tai
any personalty or real estate beloogiag to
Price by levy upon and sale of which sar
part of the amount due on the jodjnaest
could be obtained; that it had Utclreoat
to her knowled^ that about $45,000 w
about to be paid to Price by officers ol th^
Treasury of the United States as the ssb
found to be due him by an accounting thee
lately had between him and the govei iiaw sr
that that sum was to be paid by the deiivvrv
to Price or to his attorneys of a dnft «4
the Treasurer of the United Statei or tmt
other n^^tiable security made or itneed W
its financial *officers and drawn psrtbfe U\41A.
his order, the rules of the Depaitaiest tat^
bidding that it be made payable to the or-
der of any other person or that Hid oaa
should be paid in any other way, sad that
said draft or negotiable security ws^ to te
made and the transaction closed on tbe 1^
day of August thereafter; and that if Pnce
obtained said mon^ from the United S^stoo
179 V.S.
I89&
Price v. Fokrest.
415-417
h« would, unless restrained, put the same
b^jond the reach of the petitioner. The
prayer of the petition was that a receiver of
ue draft or ouier neg^otiable security be ap-
pointed, and that Price be ordered and £•
rected immediately on the receipt of suun
draft or security to indorse the same to the
receiver, to the end that ihe amoimt thereof
might be received by him as an officer of the
court and disposed of according to lata
On the presentation of the petition with
affidavits in its support, the Chancellor on
the 8th day of August, 1892, issued a nile
returnable at chancery chambers September
12^ followine, that Price show cause why
the prayer of the petition should not be
granted and an injunction issue and a re-
ceiver appointed pursuant to that prayer,
which rule further directed that Price should
be and was thereby restrained and enjoined
from making any indorsement of the draft
referred to in the petition.
A duly certified copy of that order, pur-
suant to directions therein, was served upon
Price on the 10th day of August, 1892. Nev-
ertheless, after that date Price received
from the Assistant Treasurer of the United
States at Washington* and without permis-
sion of the court collected four several drafts
signed by that officer for the respective sums
of $2,704.08, $13,500, $20,000, and $9,000,
in all the sum of $45,204.08, leaving in the
hands of the United States of the amount
due on the settlement of Price's accounts the
sum of about $31,000.
On the 10th day of October, 1892, Charles
Borcherlinj^ was appointed by the chancery
court receiver in said cause of the property
and things in action belonging or due to or
held in trust for Price at the time of is-
sninff said executions, or at any time after-
waroB, and especially of said four drafts,
with authority to possess, receive, and sue
^for such property and *things in action and
the evidence thereof; and it was made the
duty of the receiver to hold such drafts sub-
ject to the further order of the court. The
receiver was required to give bond in the
sum of $40,000 conditioned for the faithful
discharge of his duties. At the same time
Price was ordered to convey and deliver to
the receiver all such property and things in
action and the evidence thereof, and especial-
ly forthwith to indorse and deliver the
drafts to him, and he and all agents or at-
torneys appointed by him were enjoined and
restrained from intermeddling with the re-
ceiver in regard to said drafts, and ordered,
if in possession or control thereof, to deliver
them to the receiver with an indorsement to
that officer or to the clerk of the court for
deposit; provided, the order should be void
if the drafts other than the one for $0,000
were delivered with Price's indorsement to
the clerk, the proceeds to be deposited to the
credit of the cause. Price was expressly en-
joined from making any indorsement or ap-
propriation of the drafts other than to the
receiver or the dcff-k for deposit.
The receiver gave the required bond, and
haring entered upon the duties of his office,
173 V. 8.
he caused a copy of the above order to be
served upon Price, and demanded compliance
with its provisions.
In 1892, the particular day not being
stated, the chancery court issued an attach-
ment against Price for contempt of court in
disobeying the order of August 8th, 1892.
By an order made May 18th, 1894, the court
held him to be guilty of such contempt and
he was directed to pay to the receiver the
sum of $31,704.08 and a fine of $50 and
costs, and in default of obedience to that or-
der to be imprisoned in the county jail until
it was complied with. 52 N. J. £q. 16, 31,
Upon appeal to the court of errors and ap-
peals the order of the chancery court was
affirmed. 53 N. J. Eq. 693.
It is stated that the balance due on the
settlement of Price's accounts, about $31,-
000 was withheld by the officers of the gov-
ernment in the belief that there was a coun-
terclaim against Price. But, it having
been determined to pay such balance, the
chancery court made another order on the
18th **day of May, 1894, by which Price was[4I7J
directed to execute two instruments in writ-
ing, which he had been previously required
by the court to sign, seal, and deliver, one
of them consenting that the balance from the
government should be paid to the receiver,
such consent to be filed with the Treasurer
of the United States, and by the other aa-
signinff all his property, real and personal,
and all his rights and credits.
These last two orders were served upon
Price while he was oick, and he died June
8t^, 1894, without complying with either of
them. So far as was known, he left no will^
and no application had been made for the ap-
pointment of an administrator of his estate,
as in case of intestacy. But letters of ad-
ministration ad prosequendum were granted
by the prercgative court of New Jersey U>
Allen L. McDermott.
The present bill was filed in the chancenr
court «fuly 5th, 1894, in the name of the ad-
ministratrix of Samuel Forrest and of the
receiver Borcherling. The principal defend-
ants are the children and heirs of Rodman
M. Price. The other defendants are John
C. Fay and McDermott, the latter as admin*
istrator ad prosequendum.
That bill alleged that on the 9th day of
June, 1894, the defendants executed powers
of attorney to the defendant Fay, who waa
one of the attorneys in the litigation respect-
ing the drafts, authorizing him to apply to
the Secretary of the Treasury to pay to them
the balance to the credit of Price under the
act of February 23d, 1891, — they claiming
that such balance belongs to hib heirs, and
not to the receiver. It appears from the bill ^
that in addition to the above four drafts, the *
United States paid to Price and his attorneya
the further sum of $9,000, reducing the bal-
ance apparently on the books of the Treasury
under the above settlement to the sum A
about $23,000. It was further alleged that
the officers of the Treasury Department were
desirous of doing right and Justice in the
premises: that demand had been made by
761
417-420
SUPRBMB COXTBT OF THI VmTKD STATES.
Oof.
the receiver upon the Treasurer of the Unit-
ed States for the payment to him of said bal-
ance of money, and that the Treasurer neither
consented nor refused to do so, but awaited
|#18]the determination *by some lawful tribunal
of the riffht of the receiver in the premises.
The relief asked was: 1. That tne cause
conunenced b^ the bill of 1874 be reviVed,
and the administrator ad prosequendum be
adjudged a proper party thereto. 2. That
the defendants, the children and heirs of
Rodman M. Price, together with Fay, be
perpetually enjoined from making any de-
mand upon or application to the United
States or from receiving any part of the
money awarded to the deceased then remain-
ing in the Treasury of the United Slates.
3. That the parties above named be decreed
to pay to the plaintiff Borcherling, receiver,
to be by him disposed of under the orders of
the court, any part of the monej[ they mi^ht
have respectively received or might receive.
4. That the administrator ad prosequendum,
or any executor or administrator of Price
thereafter admitted as defendant in the
cause, deliver to the receiver all the property
of the deceased, whether in possession or ac-
tion, which might come to their hands.
The heirs of Price filed pleas asserting
their right to the benefit of the act of Febru-
arv 23d, 1801. The case was heard upon the
bill and pleas, and the pleas were overruled
bv Chancellor McGill. The defendants were
thereupon ordered to answer the bill.
Upon appeal to the court of errors and ap-
peals, the orders of the chancery court were
affirmed, and the cause was remitted to that
court with directions to proceed therein ac-
cording to law. Price v. Forrest, 54 N. J.
Eo. 669.
The heirs then filed an answer, in which
they denied that there was any jurisdiction
in the chancery court to sequester the moneys
in dispute in the Treasury of the United
States, and insisted that whatever amount
remained in the Treasury as the balance due
on the adjustment of the accounts of Rodman
M. Price belonged under the act of Congress
to the defendants as his heirs.
Tha case was heard upon bill and an-
swer, and the chancery court was of
opinion that the plaintiffs were entitled to
tne rell«f asked so far as it related to the col-
lection by the defendants of the moneys men-
|419]tioned in the bill of complaint and still *in
the Treasury of the United States. It was
therefore **ord%red and decreed, that the said
defendants and each of them be and they are
hereby perpetually enjoined and restrained
from making any demand upon or applica-
tion to the government of the United States,
or the Secretary of the Treasury cf the Unit-
ed States or any officer of the said Treasury,
or from receiving from the United States, or
Its said Secretary of the Treasury or any offi-
cer thereof, any part of the money remaining
in the Treasury of the United States at the
time of filing said bill of complaint, and
which was awarded to Rodman M. Price, de-
ceased, as in the said bill stated, or now
there remaining.'' This judgment was af-
firmed by the court of errors and appeivls of
752
New Jersey, (56 N. J. Eq. — )» fial tti
judgment of affirmance is here to rtfisv.
1. The first proposition of the pitiitift
in error is that consistentlv with tke i^il'
utes of the United States the defcndaiii is
error cannot take anvthing under tW ordn
adjudging that Borcherlii^ ths reeeiw i^
eoint^ b^ the state court, was entitM ai
etween him and the heirs of Price to ifean
the money remaining to his credit cm tb
books of the Treasurr.
This contention is based upon seetioa 3C7
of the Revised Statutes of the United Stato,
providing that "all transfers sod awft-
ments nuuie of any claim upon the Uutcd
States, or of any part or share thereof, «r
interest therein, wnether absolute or eoafi-
tional, and whatever may be the eontidcn
tion therefor, and all powers of attonc;,
orders, or other authorities for receiviag pty-
ment of any such claim, or of any part or
share thereof, shall be absolntdr buI ui
void, unless they are freely made aad fx^
cuted in the presence of at least two attest-
ing witnesses, after the allowance of iwA t
claim the ascertainment of the amovBt ds
and the issuing of a warrant for the pajaoi
thereof. Such transfers, assigimieats, ssd
powers of attorney must recite (he wamit
for payment, and must be adaiowledged ^
the person making them, before aa oftes
having authority to take acknowkdgBcsti
of deeds, and shall be certified by the ofteer;
and it must appear by the certificate thst tk
officer, at the time of the acknowledfMsL ,
read *and fully explained the traasfer, ti-;!^
signment, or warrant of attorney to tke p«-
son acknowledging the same."
It is insist^ that the orders in the fltm
court assume to transfer or assi^ Pnn'i
claim against the United States in TioUuM
or without regard to the requiremcBti oi Uii
statute, in that no assignment of the tUm
hai> ever been freely made ; that no wamst
for the pajrment thereof had beea ms^
when those orders were made; and thst tk
indorsement or assignment that Priee vm
ordered to make did not fall withia ssj fi
the established exceptions under wsam
3477, such as assignments in bankraptq ui
insolvency, and assignments by operatios rt
law.
Are these propositions supported by t^
decisions of tnis court in which it hss b«
found necessary to construe that lectiM*
In United States v. OUUs, 96 C. & ^•
416 [24: 503, 500], the questioa was •« t*
the validity of a voluntary transfer if tk
legal title to a claim under the sbsufas**
fThls case has not been reported. Tfet «9*
ion Is as follows :
Llpplncott, J : This appeal froa the $md *-
eree of the coart of dianeerj. la Uls ci"*^
brings ap for decision the rifhu of tte ytft*
under the act of Congrees set oat la Cbt pt^
ings, and ander | 3477 of the
of the United States.
These questions having be«
the opinion of this coort, on the appcei tnm
decree of the chancellor, oiq^rmllag CSt »1m
the defendants In this cause (54 N. J. ■» f*
the decree now appealed from, for Cbt nm
there given, most be afllrmed. wUk coete.
173 V.
I if
Prior v. Forbes i.
420-428
and captured property act of March 12th»
1863, for the proceeds of certain cotton seized
by the militaury forces of the United States.
'ibe suit was brought by the transferee in
the court of claims which found in his favor.
By this court it was adjudged that he could
not maintain the action. While holding
that the act of February 26th, 1S53, chap.
81, 10 Stat, at L. 170, from which section
3477 was taken, was of universal application
and covered all claims against the United
States in every tribunal in which Ihey might
be asserted, this court stated that "there are
devolutions of title by force of law, without
any act of parties, or involuntary assign-
ments onnpelled by law," to which the stat-
ute did not apply.
In Erwin v. United States, 97 U. S. 392,
397 [24: 1065, 1067], which was also an ac-
ticm to recover the proceeds of certain cot-
ton captured by the military forces of the
United States, it appeared that the original
claimant became a bankrupt, and assigned
his property to an assignee in bankruptcy.
One of the questions was whether the claim
for liiese proceeds, even if it constituted a
demand against the government, was capable
of assignment under the above statute. This
l]coart Mid: *"The act of Congress of Febru-
ary 26th, 1853, to prevent frauds upon the
Treasury of the United States, which was
the subject of consideration in the Oillia
Com, applies only to cases of voluntary as-
signment of demands against the govern-
ment. It does not embrace cases where there
has been a transfer of title by operation of
law. The passing of claims to heirs, devi-
sees, or assignees in bankruptcy are not with-
in Uie evil at which the statute aimed ; nor
does the construction given by this court
deny to such parties a standing in the court
of claims."
In Goodman t. Nihlack, 102 U. S. 556, 560
[26:229, 231], where the question was
whether the above statute embraced volun-
tary assignments for the benefit of credit-
ors, this court, referring to Eru?in v. Unit'
9d States, said : "The language of the stat-
ute, 'M transfers and assignments of any
daim upon the United States, or of any part
thereof, or any interest therein,' is broad
enough (if such were the purpose of Con-
gress) to include transfers by operation of
law, or by will. Yet we held it did not in-
clude a transfer by operation of law, or in
banlmiptcv, and we said it did not include
one by will. The obvious reason of this is
that there can be no purpose in such cases
to harass the government by multiplying the
Dombear of persons with whom it has to deal,
nor any danger of enlisting improper influ-
ences in advocacy of the claim, and that the
exigencies of t^ party who held it justified
and required the transfer that was made.
In what respect does the voluntary assi^-
ment for the benefit of his creditors, which
is made by an insolvent of all his effects,
which must, if it be honest, include a claim
against the government, differ from the as-
signment wmch is made in bankruptcy?
There can here be no intent to bring improper
nieans to bear in establishing the claim, and
be embarrassed by such an assi^ment. The
claim is not specifically mentioned, and is
obviously included only for the just and
proper purpose of appropriatine the whole
of his effects to the payment of all his debts.
We cannot believe that such a meritorious
act as this comes within the evil which Con-
gress sought to suppress by the act of 1853."
*The doctrine of these cases has not been[4SS]
modified by any subsequent decision. Nor,
as the argument at the bar implied, is that
doctrine inconsistent with the decision sub-
sequently rendered in 8t, Paul d D, Railroad
Co, V. United States, 112 U. S. 733 [28:
861]. Nothing more was adjudged in that
case than that a voluntary transfer by way of
mortgage of a claim against the United
States for the security of a debt, and finally
completed and made absolute by a judicial
sale, was within the purview of the prohi-
bition contained in section 3477, and could
not be made the basis of an acUon against
the government in the court of claims. Such
a voluntarv assignment to secure a specific
debt was held to be within the mischiefs
which that section was intended to remedy.
To the same class belongs Ball t. Halsell,
161 U. S. 72, 79 [40: 622, 624], which was
the case of a voluntary transfer of part of a
claim against the Unitod States on account
of the depredations of certain Indians on the
property of the claimant.
While the present case differs from any
former case in its facts, we thinK that the
principle announced in Enoin v. United
States and Ooodman v. Nihlaok justified the
conclusion reached by the stato court. That
court held that it haid jurisdiction under the
laws of the stato, and as between the parties
before it, to put into the hands of its re-
ceiver any chose in action of whatever na-
ture belonging to Price and of which he had
possession or control. The receiver did not
obtoin from Price in his lifetime an assign-
ment of his claim against the United States.
But having full jurisdiction over him the
court adjudged that as between Price and
the plaintiffs who sued him the claim should
not DO disposed of by him to the injury of
his creditors, but should be placed in the
hands of ito receiver subject to such dispo-
sition as the court might detormine as be-
tween the parties before it and as was con-
sistent witn law. The suit in which the
receiver was appointed was of course pri-
marily for the purpose of securing the pay-
ment of the judgment obtained by Samuel
Forrest in his lifetime against Rodman M.
Price. But that fact does not distinguish
the case in principle from Ooodman v. Nih-
lack; for the transfer in ouestion to the re-
ceiver was the act *of the law, and whatever[4S3;
remained, whether of property or money, in
his hands aftor satisfying the judgment and
the taxes, coste, or expenses of the receiver-
ship as might be ordered by the court, would
be held by him as trustee for those entitled
thereto, and his duty would be to pay such
balance into court to the credit of the cause
*'to be there disposed of according to law."
Revision of N. J. 1876, p. 394.
id.
As this court has said, the object of Con-
it IB not perceived how the government can gross by section 3477 was to protect the (rov-
173 U. 8. U. 8., Book 43. 48 753
183-425
SUPBEMK COXTBT Of TBS VlfTTED STATES.
Oct. Tibi,
eminent, and not the claimant, and to prevent
frauds upon the TreasiUT'. Bailey y. United
States, 109 U. S. 432 [27 : 988] ; Hohhe y.
McLean, 117 U. S. 576 [29:944]; Freed-
man's Saving d T, Co, y. Shepherd, 127 U.
S. 494, 506 [32: 163, 168]. There was no
purpose to aid those who had claims for
mcn^ aeainst the United States in disre-
^rding the just demands of their creditors.
We perceive nothing in the words or object
of the statute that prevents any court of
competent jurisdiction as to subject-matter
and parties from making such orders as may
be necessary or appropriate to prevent one
who has a claim for money against the gov-
ernment from withdrawing the proceeds of
iuch claim from the reach of his creditors;
provided such orders do not interfere with
the examination and allowance or rejection
of such claim by the proper officers of the
government, nor in anywise obstruct any ac-
tion that such officers may legally take un-
der the statutes relating to the allowance or
fayment of claims against the United States,
f a court, in an action against such claim-
ant by one of his creditors, should, for the
protection of the ^editof, forbid the claim-
ant from collecting his demand except
through a receiver who should hold the pro-
ceeds subject to be disposed of according to
law under the order of court, we are unable
to say that such action would be inconsist-
ent with section 3477. It may be that the
officers charged with the duty of allowing
or disallowing claims against the govern-
ment are not required to recognize a receiver
of a claim appointed by a court, and may, if
the claim be allowed, refuse to make pay-
ment except as provided in section 3477.
Upon this subject, the Second Comptroller
of the Treasury, hi his opinion, rendered
|At4]July 11th, 1894, *oonstniing the act of Feb-
ruary 23d, 1891, and in which he held that
Price was entitled to receive, in his lifetime,
whatever sum was found to be due him on
the adjustment of his accounts, but if he
died before such adjustment was made his
heirs would take, not by virtue of the act of
Congress, but according to the laws of de-
scent at the domicil of &e deceased, said : "I
do not presume for a moment that the chan-
cery court of New Jersey could issue an exe-
cution and compel payment of this money,
nor could any of its powers be brought to
bear to compel, without at least additional
legislation by Congress, the Comptroller to
pay its judgment; but while that is true,
yet, on the other hand, the Comptroller, so
far having awaited the adjudication of Uiat
chancery court, ought to abide by the result
of that litigation, and await a final adjudica-
tion and certification of the amount, as to
who are entitled under the laws of that state.
This comes more from comity, and from a
disposition on the part of the Treasury offi-
cers to obey the laws of the land, and to
help to enforce the decrees of the courts that
have jurisdiction over matters in litiffation
of this kind, than from any actual authority
that a court may have over the Comptroller
to compel him to make payment. In con-
clusion, then, the ComptroUer will not at
tbifl time act in this matter, but will say to
754
i
the gentlemen, that they mset ficht h aiA
in this courts of New Jers^, mad that ^m
court will follow the final decision taafc msf
be rendered there. • . . Hence this ■at'
ter will be suspended until such time ■> the
Comptroller may be put into poaeeiiine rf
tiie final decree, either td the New Jciwy
chancery court, or such court as may hsw
appellate juriedicdoD therefrom." cvee if
it he true that the final order of the seals
court in relation to the money in i|entiM
would not impose any le^ duty upoe ths
officer! oi the Treasury, it does not loDsv
that the order of court appointing tht n-
ceiver would be null and void, as Wtvws
those who are parties to the easM aad vhs
are before the court.
It only remains to say touching this psxt
of the case that if section 3477 does not i»
brace the passing or transfer of daias Is
heirs, devisees, or assignees in baakrvytcr,^
as held *in Erwim t. United States, nor a ^AVt
untary assignment bv a debtor oi his ^«eli
for the boMfit of his creditors, as hM im
Goodman v. Niblaek, H is diiBeolt to mb
how an ordo' of a judicial tribunal
jurisdiction of the parties appointing a
ceiver ol a claim against uhb ^uiiiiBt
and ordering the claimant to assign tkt
same to such receiver to be bdd suhket ts
the order of court for the bendlt of thsN
entitled thereto, can be regarded as pnU^
ited by that secticMi.
2. Were the heirs of Rodman IL Priot»
titled upon his death, by yirtoe of tht esl
of February 23d, 1891, to sndi ~
then remained to his credit in the
of the United States on the adjustaei
of his accounts undw that act? If th^
were so entitled, then the final judgMSft m
the court of errors and appeals aJBrnaf IN
judgment of the ehanoery court dtaim ts
the plaintiffs in error a right tepeasStf bH
up and daimed by them under tht ahsts
act; and therefore the jurisdiction sf "
court to re-examine that final judgamt
not be doubted. Bev. Stat. U. 8. I TM.
The plaintiffs in error insist that
y. Halt, 13 Pet. 409, 413, 414 LlO: tSS, M
226], is decisive in their favor. Althmgk
this contention is not without warns fsna
we are of opinion that the judgment it tki
case does not control the detenniaatioa rf
the present case. Emerson, surveyor, CW«,
collector, and Lorrain, naval oAov, si Iks
Port of New Orleans, having seised a k%
for a violation of the laws prohiWtiat^
importation of slaves, instituted proceu*
that resulted in the oondemnatm of m»
vessel and slaves. It had bees utihml^
decided in the Josefa SegundA, 10 Whai
312 [ 6: 329], that the nroceeds eooU sK
be paid to the eustom-nouse oAesn. M
vested in the United States. Encrsos uA
Lorrain having died. Congress, on th» SM
day of March, 1831, passed an act catitM
''An Act for the Relief of Beverly CW*. tks
Heirs of William Emerson, Deceasid. ssi
the Heirs of Edward Lorrain, Dsemml'
That act directed the proceeds in eeert i*
be paid over to the said Beverly CW« ssi
'*the l^al representatives" of Emu we tsd
Lorrain, respectively. The quc^tioa ••
179 V.&
1888.
Pbiob t. Forrbst.
425-428
iHiether the Emerson part of tlie proceedB
belonged to his heirs, or were assets primar-
ITftj liable for his "debts. This court, after
obsMtrinff that Emerson had not acted un-
der any Taw, nor hj virtue of any authority,
and that his acts imposed no obligation, legal
er equitable, on the government to compen-
sate him for his services, said: "Had Em-
erson become insolvent and made an assign-
ment, would this claim, if it may be called
a daim, have passed to his assi^eesT We
think, dearly, it would not. Under such an
issigmnent, what could have passed? The
daim is a nonentity. Neither in law nor in
equity has it any existence. A benefit was
voluntarily conferred on the government;
but this was not done at the r^uest of any
tfficer of the government, or under the sanc-
tion of any law or authority, express or im-
plied. And under such circumstances, can
a daim be raised against the government,
which shall pass by a lesal assignment, or
go into the hands of an aoministrator as as-
sets 7 ... A claim having no founda-
tion in law, but depending entirely on the
renerosity of the government, constitutes no
basis for the action of any legal principle.
It cannot be assigned. It does not go to the
administrator as assets. It does not descend
to the heir. And if the government, from
motives of public policy, or any other con-
siderations, shall think proper, under such
drcumstances, to make a grant of money to
the heirs of the claimant, they receive it as
a gift or pure donation — a donation made it
is true in reference to some meritorious act
of their ancestor, but which did not consti-
tute a matter of right against the govern-
ment. In the present case, the government
might have directed the money to be paid to
the creditors of ihnerson, or to any part of
his heirs. Being the donor it could, in the
exercise of its discretion, make such distribu-
tion or application of its bounty as circum-
stances miffht require. And it has, under
the title of an act, 'for the relief of the
heirs of Emerson,' directed, in the body of
the act, the mon^ to be paid to his le^l
representatives. That the heirs were in-
tended by this designation is clear; and we
think the payment which has been made to
them under this act has been rightfully
made, and that the fund cannot be consid-
ered as assets in their hands for the pay-
ment of debts.**
7] *Nowitis said that the^ounds upon which
in Bmeraon v. Hall the daim of the heirs was
sustained exist in the present case; that
Price did not act under any law, nor in vir-
tue of any authority, and that his acts im-
posed no coligation m law or eonity ui)on the
government Uiat could have been enforced
even if suit could have been maintained
against it. And the conclusion sought to
be drawn is that Ck)ngress must have intend-
ed by the act of 1891, as it was held to have
intended by the act in Emerson's Case, to
I^islate for tiie benefit of the heirs or next
of kin of the decedent and not for his per-
sonal representatives. But there were other
facts in the Emerson Case which placed that
case upon peculiar grounds. Emerson and
liorrain were both dead when the act of
173 V. 8.
March 8d, 1831, was passed, and therefore
Congress must have had in mind the question
whether the Emerson and Lorrain portions
of the money on deposit in court should be
S'ven to their respective heirs or not. And
0 question was solved as indicated by the
Sreamble to that act. The preamble dis-
inctly shows that Confess hiui m view the
Jieirs, and not those wno would administer
the estate of the two persons whose meritor-
ious services were recognized. Although a
preamble has been said to be a key to open
the understanding of a statute, we must not
be understood as adjudging that a statute,
dear and unambiguous in its enacting parts
may be so controlled by its preamble as to
justify a construction plainly inconsistent
with the words used in tne body of the stat-
ute. We mean only to hold that tne pream-
ble may be referred to in order to assist in
ascertaining the intent and meaning of a
statute fairly susceptible of different con-
structiona United States v. Fisher, 2
Cranch, 358, 386 [2:304, 313]; United
States V. Palmer, 3 Wheat. 610, 631 [4: 471,
477] ; Beard v. Rowan, 9 Pet. 301, 317 [9 :
1361 ; . Church of Holy Trinity v. United
States, 143 U. S. 457, 462 [36 : 226, 229] ;
Coosaw Mining Co. v. South Carolina, 144
U. S. 550 [36: 537]. In Emerson's Case the
decision was placed partly on the ground
chat the title of the act of 1831 indicated
that Congress, in usine the words "legal
representatives" in the body of the act, had
in mind the heirs of Emerson and Lorrain»
and not technically their personal represen-
tatives. It IS a fact not without significance
*that the money awarded by the above act of[MS]
1831 did not replace any moneys taken by
Emerson and Lorrain from their respective
estates for the benefit of the government.
They had onlv rendered meritorious personal
services for tne public upon which no claim
of creditors could be based, but which serv-
ices Congress chose to recognize by making
a gift to the heirs. This was substantially
the view taken of the case of Emerson v. Hall,
in the recent case of Blagge v. Baloh, 162 U.
8. 439, 458 [40: 1032, 1036].
The case before us differs from the Emer-
son Case by reason of circumstances which
we must suppose were not overlooked by
Congress when it passed the act of 1891.
By advancing to Van Nostrand seventy-five
thousand dollars to be used for the govern-
ment. Price's ability to meet his obligations
to creditors was to that extent diminished.
As he had acted in good faith, and in the
belief that he was promoting the best inter-
ests of the government, the purpose of Con-
gress was to make him whole in respect of
the amount he had in pood faith aovanced
to his successor for public use. He was then
alive, and there was no occasion for Con-
gress to think of making an^ provision for
those who might be his heirs. We think
that the legislation in question had refer-
ence to his financial condition, and there is
no reason to suppose that Congress intended
that the amount, if any, found due him up-
on the adjustment of his accounts should
not constitute a part of his absolute person-
al estate, to be received and applied in the
756
42a-481
SuPBEicB Court of thb United States.
OOK.
event of his death by his personal representa-
tive as required by law.
We concur with the state court in the view
that the act of 1891 was not intended to
confer a mere gratuity upon Price, but was
a recognition of a moral and equitable, if
not legal, obligation upon the part of the
government to restore to him moneys ad-
vanced in the belief at the time that they
would be repaid to him in the settlement of
his accounts as a disbursing officer; and Uiat
the use of the words ''or nis heirs" in thp
act was not to make a ffiit to the heirs ot
such sum as upon the required adjustment
of his accounts was found to be due their /in-
cestor, and thereby exclude his creditors
[429] from *all interest in that sum, but to provide
against the contingency of death occurring
before the adjustment was consummate^
and thus to make it certain that the right
to have his accounts credited with the
amount paid to Van Kostrand, upon prin-
ciples of ''equity and justice," shomd not be
lost by reason of such death. Under this in-
terpretation of the act, the words *'or his
heirs" must be held to mean the same thing
as personal representatives. We do not per-
ceive either in the words of the act, or in the
circimistances attending its passage, any-
thing to justify the belief that Ck>ngress had
an^ purpose m the event of the death of
Price to defeat the just demands of creditors.
Reference was made in argument to the
recent case of Brigga v. Wcukcr, 171 U. S.
466, 473, 474 [ante, 243]. It differs in some
respects from both the Emerson Case and
the present case, but the decision is in ac-
cord with the views herein expressed. It
arose under "An Act for the Relief of the
Estate of C. M. Briggs, Deceased," and the
principal question was whether the right
given Vy the act to Briggs' "le^al represen-
tatives" was for the benefit of his next of
kin to the exclusion of his creditors. This
court said: "The act of Congress nowhere
mentions heirs at law, or next of kin. Its
manifest purpose is not to confer a bounty
or gratui^ upon anyone; but to provide for
the ascertainment and payment of a debt due
from the United States to a loyal citizen for
property of his, taken by the United States ;
ana to enable his executor to recover, as
part of his estate, proceeds received by the
United States from the sale of that property.
The act is 'for the Relief of the Estate' of
Charles M. Briggs, and the only matter re-
ferred to the court of claims is the claim of
hin 'legal representatives.' The executor
was the proper person to represent the es-
tate of Briggs, and was his li^al representa-
tive; and aa such he brought suit in ttte
court of claims, and recovered the fund now
in question, and consequently held it as as-
sets of the estate, and subject to the debts
and liabilities of his testator to the defend-
ants in error." It is to be observed that tiie
court in that case looked both to the body
of the act and the preamble in order to as-
certain the intention of Confess.
[480] *It results that the plaintiffs in error, as
heirs of Rodman M. Price, were not denied
bv the final ludgment of the state court any
right secured to them by the act of 1891.
766
Something was said in arsmneBt
implied that Price had wrongly resisted ths
collection of the Forrest daim aad jvdf-
ment. It is proper to say that so far at tibs
record speaks on that subject, tbe coarse ol
the dec^lsed was induced by the belief cm hk
esxt that it was a daim whidi he was aot
ound in law or justice to pay. Oar eoBchh
sion does not rest in any degree vaom tlM
character of that claim, but eatmtj vm
questions of law arising out of nattart tut
were conduded, so far aa this eoort is tm-
cemed, by the action of the state eoort, sai
which we have no jurisdiction to review.
We find in the record no error of lav ft
respect of the Federal questioiis pr
for consideration, and therefore tM
below must he affirmed.
It is BO ordered.
CHARLES Q. SMITH and Charies G. Sidtli,
Jr., Appte.,
V,
CHARLES BURNETT, Soing on ffis On
Behalf, and Said Charles Bunott ui
Charles G. Endioott, Executors ol Hsrrii*
E. Burnett, Deceased, at oL
(See & C Reporter's ed. 4MMIt.)
Duty of wharfinffor — qumtiona of fmL
1. A wharfinger does not ffnarantes ttt
of vessels coming to his wharves, bet hi li
bound to exerdse reasonable JllltiTi Is m
oertalnlng the conditions of the
at, and. If there Is anj dangerovs
to remove It, or to give due noties oC Its
ence to vessels abont to nee the bcrtii. AK
the same time the master Is bovad t» «
ordinary care, and cannot cardearij ns Mi
danger.
2. The soccesslve declslooe at tve ohM fe
the same case, on qoestloas at fact, sit srt
to be reversed unless dearlj shows tt to
erroneoos ; and If the evidenee Is
and there Is evidence to snrtatn Che
this court wlU not Interfi
DaddaiMm^
[No. 112.]
ArgMOd January 6, 9, 1699»
is, 1899.
APPEAL from a decree of the Court of If
peals of the District <^ Colmsbia sin-
ii^ the decree of the Supreme Coort of tkt
District sitting in admiralty, wberchf tki
ahove-named appellees, origiiial libsJIiiti k
the cause, were awarded damages and • erMi
libd filed hy appdlants was itiiwisseil Tte
libd was filed hy appellees agaiBst aswbii"
for an injury to their vesesl, dM MMtf
Ellen Tobin, while moored ia hmik it *^
pellants' wharf at GeorsctowB, and tkiii'
jury was caused by appdUats* iitUiW ^
allowing a dangerous rode to ra—ii is it
berth at the wharf. Afflrmad.
See same case bdow, 10 Dl O. Ap^ 4B.
Statement by Mr. Chief Justiee TwShm
*This is an appeal from tbe eowt d >r{^
peals for the District of Columbia afliaiv
1896b
Bhtth y. Bubnbtt.
481, 48S
« decree of the supreme court of the district,
tittiog in admiralty, whereby appellees,
original libellants in the cause, were award-
ed damages, and a cross libel filed by appel-
lants waa dismissed. 10 D. 0. App. 469.
As stated by the court of appeals, the libel
was filed by appellees against appellants for
an alleged injury to their vessel, the schoon-
tr Ellen Tobin, while moored in berth at ap-
pellants' wharf on the bank of the Potomac
at Georgetown, for the purpose of being load-
ed by and for appellants; and the injury com-
plained of was averred to have been occa-
sioned by appellants' n^li^ently allowing a
dangerous rock to remain m the bed of the
river within the limits of the berth at the
wharf, which the vessel was invited to take,
the orotruction being unknown to the master
of the vessel, and he having been moreover
aasuied by appellants through their agent
that the depth of water in the berth in
front of the wharf was sufficient, and that
the berth was safe for the loading oif the ves-
The facts, in general, found by that court
were: That appellants were lessees of wharf
and water risnts extending to the channel of
the river, and the berth assigned to and tak-
en by the schooner for the purpose of loading
was in front of their wharf and withir. the
leased premises; that appellants were en-
gaged in the business of crushing and ship-
ping stone from the wharf to different
points; and that the schooner had been
brought up the river by prearrangement
with a ship broker in Georgetown in order
to be loaded by appellants at iheir wharf
with crushed stone to be taken to Fortress
Monroe, in Virginia, to be used in govern-
ment work at that place. That the vessel
was staunch and in good repair ; was a three-
masted schooner of six hundred tons capaci-
ty; was registered at the New York custom
house as a ooaeting vessel of the United
States, and was owned by appellees at the
time of the injury complained of. It was
further found ''that the vessel was sunk on
[Sunday] the 6th of August, 1893, as she
was moored in the berth at the wharf, while
receiving her cargo of crushed fctone from
the whan, by means of a chute extended from
the wharf to the hatchway of the vessel. The
] vessel *waa about two thirds loaded, having
received about four hundred tons of her car-
go, before siiniB were discovered of her dis-
tressed conifition. She was then taking
water so rapidly that the pumps could not
relieve her, nor could the extra assistance
employed 1^ the master avail to save her
from breakuiff and sinking in the berth. The
work of loamnff was stopped on Saturday
evening, with the intention of resuming the
work of loadinff on the followiiijj^ Monday
momii^; and Uie captain of the vessel at
the time of stopping work on Saturday, made
soundings around the vessel and sirpposed
that she was then lying all riglit. But on
Smiday morning it was discovered that there
was so much water in her that she could not
be rdieved by her piunps; and by 6 o'clock
on the afternoon of that day she had filled
with water, and broke in the middle, and
sank in her berth, where she remained, with
173 V. n.
her cargo under water, until the 1st of No-
vember, 1893, when the stone was pumped
out of her, and she was then condemned as
worthless, and was afterwards £(»jd at auc-
tion for $25 to one of the owners." Other
findings of fact appeared in the opinion.
^ Appellants denied all negligence, and in-
sisted that they were in no way responsible
for the disaster ; and in a cross libel asserted
a claim for damages caused by the fault of
appellees in allowing the vessel to sink in
the river in front of their wharf and to re-
main there for an undue time. The evidence
was voluminous and conflicting.
Messrs, Robert D. Benedict, Nathaniel
Wilson, James 8, Edwards, and Job Barn-
ard, for appellants:
It was the duty of the master, before
fully loading the vessel, to ascertain whether
the draft of water in the berth was sufficient
for his vessel when loaded and drawing 14V^
feet of water.
If the loss was directly and solely caused
by the negligence of the master and his fail-
ure to perform his duty, then appellants are
not liable. Or if there was negligence
which contributed to the injury, both on the
part of the appellants and the master, then
the loss resulting therefrom must be shared
equally by the libellants and the appellants.
Christian v. Van Tassel, 12 Fed. Rep.
884; O'Rourke v. Peek, 40 Fed. Rep. 907;
Barber v. Abendroth Bros. 102 N. Y. 406;
The Angelina Coming, 1 Ben. 109.
The master knew there was not water
enough in the berth to allow his vessel to lie
afloat drawing 12 feet 10 inches forward
and 11 feet aft. Then he could no longer
rely on defendants' care. He was bound to
take the very obvious precaution of moving
his vessel away from the berth at the fir^
opportunity.
Christian v. Van Tassel, 12 Fed. Rep. 884;
Union Ice Co, v. Crowell, 5 U. S, App. 270,
55 Fed. Rep. 87, 5 C. C. A. 49 ; Peterson v.
Great Neck Dock Co, 75 Fed. Rep. 683;
Washington v. Staten Island Rapid Transit
R. Co, 68 Hun, 87; Nelson v. Phaenia Chemi-
cal Works, 7 Ben. 37.
The cause of the vessel being injured was
the master's negligence in not removing her
from a danger whose presence he knew.
Odell V. New York C. d H. R. R. Co, 120
N. Y. 325 ; Marsden, Collisions, 3d ed. p. 23.
An antecedent act of negligence is remote
when, notwithstanding it, the other vessel,
by the exercise of ordinary care, can avoid a
collision.
The Portia, 20 U. S. App. 475, 64 Fed.
Rep. 811, 12 C. C. A. 427.
Ordinarily an act, though ne|^ligent, is
not the proximate cause of an injury when
but for tne intervening negligence of another
the injury would not have been inflicted.
Killien v. Long Island R. Co. 35 U. S.
App. 216, 67 Fed. Rep. 368, 14 C. C. A. 418.
Mr. William G. Clioate, for appellees:
It being proved that the vessel was in-
jured and wrecked in the bed of the river
within the berth occupied by the vessel in
front of the wharf of the appellants, and that
the appellants assigned this berth to the ves-
482^184
StTPBEMK COUBT OF THE UimKD STATES.
■d without anj notice to, or knowledge on
the part of, the master or owners of such
obstruction, the appellants were liablis by
the maritime law as for a maritime tort for
resulting damages. And the evidence show-
ing that appellants had notice of this ob-
struction, they were clearly liable in this
action, and even if they had succeeded in
proving that they had no knowledge or no-
tice, tnen they were liable on *the ground
that they were guilty of neglieence, and
want of reasonable care which the law re-
quired of them in not ascertaining the ex-
istence of the obstruction.
Philadelphia, W. d B. R. Co. ▼. PhUadel'
phia d H.deQ, Bi^m Totohoat Co. 23 How.
209, 16 L. ed. 433; Carleton ▼. Franconia
Iron d B. Co. 99 Mass. 216; NiokerBon ▼.
Tirrell, 127 Mass. 236; WmdeU ▼. Baofier,
12 Gray, 494; Thompson v. North Baaiom
R. Co. 2 Best, k S. 106 ; Mersey Docks d Bar-
hour Board v. (Hbhs, L. R. 1 H. L. 98; Pama-
by ▼. Lancaster Canal Proprs. 11 Ad. k El.
223; Leonard ▼. Decker, 22 Fed. Rep. 741;
Pennsylvania R. Co. ▼. Atha, 22 Fed. Rep.
920; The Moorcock, L. R. 14 Prob. Div. 64;
The CaUiope [1891] A. C. 11, L. R. 14 Prob.
Div. 188.
In admiralty eases where both of the
courts below concurred in their conclusions
of fact, the burden is upon the appellant to
make out clearly that such flnaing[s were
without efvidence or were clearly against the
weight of evidence.
The Baltimore, 8 WalL 882, 19 L. ed. 463;
The Lady Pike, 21 WaU. 8, 22 L. ed. 501 ;
The MaroeUus, 1 Black, 417, 17 L. ed. 218.
Where the facts found below and con-
curred in by bodi courts have been found
npon oonflictinff evidence, this court will
not reverse if there is evidence to support
the decree.
Philadelphia, W. d B. R. Co. v. Philadel-
phia d H.de O. Bteam Totohoat Co. 23 How.
217, 16 L. ed. 433 ; The B. B. Wheeler, 20
Wall. 386, 22 L. ed. 385.
[48S] *Mr. Chief Justice Fuller delivered the
opinion of the court:
Undoubtedly there was jurisdiction in ad-
miralty in the courts below, and the appli-
cable principles of law are familiar.
[483] *Aluiough a wharfinger does not guarantee
the safety of vessels coming to his wharves,
he is boimd to exercise reasonable diligence
in ascertaining the condition of the tilths
thereat, and if there is any dangerous ob-
struction, to remove it, or to give due notice
of its existence to vessels about to use the
berths. At the same time the master is
bound to use ordinary care, and cannot care-
lessly run into danger. Philadelphia, W.
d B. Railway Company v. Philadelphia d H.
de G. Bteam Towhoat Company, 23 How. 209
[16:433]; Sawyer v. Oakman, 7 Blatchf.
200 ; Thompson v. North Eastern R. R. Com-
pany^ 2 Best k S. 106 ; Ex. Ch. Id. 1 19 ; Mer-
sey Docks d Harbor Board Trustees v. Qibbs,
It. R. 1 H. L. 03 ; Carleton v. Franconia Iron
^ Bteel Company, 99 Mass. 216; Nickcrson
w. Tirrell, 127 Mass. 236; Barbf-r v. Abend-
roth Bros. 102 N. Y. 406 [55 Am. Rep. 821].
Carleton v. Franconia Iron i: Bteel Vom-
768
pony, 99 Mass. 216, is so mndi in p^nt tiMt
we quote from it, as did the conrt at appeals.
The case was in tort for injury to plaintiff'
schooner by beinff sunk ajid billed ia ths
dock adjoining defendants' wliarf, ^hkk
fronted on n&vigable waters, wtiere the tidt
ebbed and flowM. Defendants had diejgni
out the adjoining space to acoommodate tc»-
sels which were accustomed to eooie wiU
iron and coal for defendants' foandries,
ated on the wharf. There was in tfte
dredged a large rode, sunk in the water aa4
thereby oonci«led from sisht, da^gcrovi ts
vessels, and so sitaated tlut a ymad
of the draft to which the wat«r at thi
wharf was adapted, beins placed at hi^ wa-
ter at that part of the vniarf , wonld be cfv
the rock, and at the ebb of the tsdc worii
rest upon it. Defendants had cotics «f thi
existence and position of the rode and d ill
dancer to vessels, but neglected to bnor sr
mark it pr to give anjr notice of it to sliia-
tiffs or anvone in their emplovucnt, ths^
their vessel came to the wluurf by lUliaisiti'
procurement, bringing a cargo of tro« kt
them under a veroal charter. Mr. Jmtki
Gray, among other things, obsorred:
m does not indeed appear thai te is*
f endants owned the soil <» the dock in wUA
the rock was onbedded; bat th^ had ens-
vated the dock for the purpose of aceoaas*
dating vessels bringing carcoss to tWr
wharf; and such vessels were
occupy it, and could not disdiarfs at ttst
point of the wharf without doing aa . • •
Even if the wharf was not public hot piiiiK
and the defendants had no title in m ' '
and the concealed and danraross
was not created by them or by aa;^
agency, they were still responsible fv ss
injury occasioned bjr it to a vessel wUeh tk^
had induced for their own benefit to cqbi ti
the wharf, and which, without mi|litssM m
the part of its owners or their agents or «r^
ants, was put in a place apparently sdsfMi
to its reception, but known by the lisfilssti
to be unsafe. This case cannot be
guished in principle from that oi the
of land adjoining a highway, who^ ki
that there was a large rode or a deep pH kr
tween the traveled part of the highway sal
his own gate, should tell a carrier, br^fflf
goods to his house at night, to drive ia, walk-
out warning him of Uie defect, aad «ki
would be equally liable for an iajaiy sa-
tained in acting upon his invitatioB, whelkr
he did or did not own the soil vnisr thi
highway.**
And as to the degree of cars leqalisA cf
the master or vessel owner, the same esart is
Nickerson v. Tirrell rightly said: TV tns
rule was stated to the jury, that the muttr
was bound to use ordinary cars, aad eoeU
not carelessly run into dancer. We cssrt
say, as matter of law, that he was ssftifs^
because he did not examine or uiesjun t^
dock and berth. It was for the bay ts ^
termine whether the conduct ana eos
tion of the defendant excused tht
from making any more particular
tion than he did make, and whether, spaa iB
the evidence he used such care a* ■>* ^
i79ir.fi^
J
U98.
Smith y. Bubnbtt.
4M-487
«rdi]Uki7 prudence would use under the same
drcumstances."
The cases necessarily rary with the dr-
enmstances. In The Stroma, 42 Fed. Rep.
922, the libellant sought to recover damages
receiyed by its steamer, while moored along-
side respondent's pier, hy settling, with the
fall of the tide, on the point of a spindle, part
of a derrick attachea to a sunken dredge.
Work was proceeding for the removal of Vie
dredge, ana several buoys had been set to
indicate the place of its several parts. The
agent of the steamer knew of the location of
Ithe wreck; 'sought permission to moor out-
side of it; and undertook to put the ship in
position. Hie liability to danser was as
well known to the steamer as to the wharfin-
ffer, who made no representation and was
free from negligence. The libel was dis-
missed, and the decree was afi&rmed by this
eourt. Panama Railroad Company v. Na-
pier Shipping Company, 166 U. S. 280 [41 :
1004].
In The Mooroook, L. R. 13 Prob. Div. 167,
defendants, who were wharfingers, agreed
with plaintiff for a consideration to
allow him to discharge his vessel at their
jetty which extended into the river Thames,
where the vessel would necessarily ground
at the ebb of the tide. The vessel sustained
injury from the uneven condition of the bed
of the river adjoining the jetty. Defend-
ants had no control over the bed, and had
taken no steps to ascertain whether it was or
was not a safe place for the vessel to lie up-
on. It was held that, though there was no
warranty, and no express representation,
there was an implied undertaking by defend-
ants that they had taken reasonable care to
ascertain that the bottom of the river at the
jetty was not in a condition to cause danger
to a vessel, and that they were liable. The
jadgment was sustained in the court of ap-
peal (L. R. 14 Prob. Div. 64), and was ap-
proved by the house of lords in The Calliope
11891] A. C. 11, though in the latter case it
was ruled, on the facts, that there was no
sufficient evidence of any breach of duty on
Uie part of the wharfingers, and that the in-
jnnr to the vessel was caused by the captain
ana pilot attempting to berth her at a time
of the tide when it was not safe. The berth
was in itself safe, but it was held that, under
tbe particular circumstances disclosed by the
proofs, the ship owner had assumed as to
the approaches the risk of reaching the
berth; while the general rule in respect of
the duty of wharfingers was not questioned.
The Lord Chancellor remarked: "In this
case the wharfinger, who happens to be the
consignee, invites the vessel to a particular
place to unload. If, as it is said, to his
Knowledge the place for unloading was im-
proper and likely to injure the vessel, he
oerteiiDly ought to have adopted one of these
altematives : either he ought not to have in-
»6)?ited the*vessel or he oueht to have informed
the vessel what the condition of things was
when she was invited, so that the injury
niight have been avoided." Lord Watson:
'^ do not doubt that there is a duty incum-
bent upon wharfingers in the position of the
appellants towards vessels which they in-
na u. s.
vite to use their berthage for the purpose et
loading from or unloading upon their wharf;
they are in a positi<m to see, and are in my
opinion bound to use reasonable diligence in
ascertaining whether the berths thMuselvei
and the approaches to them are in an ordi-
nary condition of safely for vessels coming
to and lyine at the wharf. If the approacS
to the berth is impeded by an unusual ob-
struction they must either remove it» or, if
that cannot be done, they must give due
notice of it to ships coming there to nse
their quay." And Lord Herschell: **I do
not for a moment deny that there is a duly
on the part of the owner of the wharf to those
whom he invites to come alongside that
wharf, and a duty in which the condition of
the bed of the river adjoining that wharf
may be involved. But in the present case we
are not dealing, as were the learned judges
in the cases which have been cited to us, with
the condition of the bed of the river in itself
dangerous — that is to say, which is such as
necessarily to involve danger to a vessel com-
ing to use a wharf in the ordinary way; and
we are not dealing with a case of what I
may call an abnormal obstruction in the riv-
er— ^the existence of some foreign substance
or some condition not arising from the ordi-
nary course of navigation."
We are remitted, uien, to the consideration
of the facts, and as to them the rule is firm-
ly established that successive decisions of
two courts in the same case, on ouestions of
fact, are not to be reversed, unless clearly
shown to be erroneous. Totoaon v. Moore,
173 U. 8. 17 [ante, 697] ; The Baltimore, 8
Wall. 382 [19: 464] ; The 8. B. Wheeler, 20
Wall. 386 [22: 385] ; The Richmond, 103 U.
S. 540 [2C : 31 3] . And when the evidence is con-
fiicting, there being evidence to sustain the de-
cree, this court will not ordinarily interfere.
Tested by this rule we must assume on the
record that the vessel in question was
chartered by appellants, through a ship
•broker duly authorized, for the purpose of[*37]
being loaded with a cargo of crushea stone,
which would be about six hundred tons, by
appellants at their wharf, to be discharged
at Fortress Monroe ; that the contract, which
was oral, did not expressly name the number
of tons to be loaded, nor guarantee the depth
of water, nor the position of the vessel at the
wharf, nor emboay as part thereof the rep-
resentations alleged to have been made in re-
spect of the depth of the water; that there
was a ridge of rock in the berth assigned to
the vessel oy appellants, projecting alK>ve the
bottom of the river and endangering her
safety, even when only partially loaded ; and
that the vessel though staunch, strong, and
seaworthy, was wrecked by grounding on
that rock.
We also think that the conclusions of the
court of appeals, set forth in its opinion, that
no ordinary skill or eflfort on the part of the
master or owners could have been exercised
effectively to save the vessel from total loss,
and that the injury was not increased, nor
were the damages enhanced, by delay in at-
tempting to raise and remove the vessel, can-
not reasonably be questioned; and that we
are not required to pass on the conflicting evi-
759
437-439
Supreme Coubt of the UinKr States.
Oct. Tssa.
denoe in respect of the value of the veBsel
at tlie time of the injury. In other words,
it must be held that the cross libel was prop-
erly dismissed, and that the amount of dam-
ages awarded is not open to inquiry.
As to knowledge or notice of the obstruc-
tion by appellants, the evidence tended to
show that they had been for some years in
the use of the wharf and of this particular
berth; that they had under lease perhaps
two and a half miles of river front, contain-
ing stone quarries, some of which they were
wcMrking; that their business was large, and
that during the year 1893, before the ac-
cident, they had loaded from fifteen to
twenty vessels at the same place; that the
capacity of the crusher for loading vessels
through the chute was from one hundred and
fifty to two hundred tons a day; that they
employed from one hundred and fifty to three
hundred men, and at times many more, and
had bins into which they ran crushed stone
to be carried off in various ways. It further
appeared that in December, 1892, the two-
[488]masted schooner *Baird, carrying five hun-
dred tons, and when loaded drawing fourteen
feet, grounded in the same berth, manifest-
ly on a rock, and that that fact and the
character of her injuries were known to ap-
pellants. There was much other evidence
bearing on this point of knowledge or notice,
which fully sustained the court of appeals
in its conclusion that appellants knew of the
existence of the rock, and its dangerous na-
ture ; or, if not, that absence of investigation
amounted, under the circumstances, to such
negligenoe as to impute notice.
But the stress of the arfi^ument is that the
master was guilty of negligence which con-
tributed to the injury, and chiefly in not as-
oertaininff the condition of the bottom of the
berth and taking precautions, as advised.
Yet on this, as on other branches of the case,
the evidence was conflicting, and we cannot
say that the finding of the court of appeals
that the evidence failed to establish '^that
there was want of due care on the part of
the master, and a failure to exercise proper
supervision for the safety of the vessel, while
she was moored at the wharf for the purpose
of being loaded," was clearly erroneous.
l%e master came to the berth on appellants'
business; and there was evidence to tne effect
that Uie broker, with whom the engagement
was made, and appellants' foreman, were
both informed that the vessel would draw
when loaded from fourteen to fourteen and
one-half feet, and that the master was as-
sured by both that there was plentv of
water; that the berth had been dredged out
to between fourteen and fifteen feet; and
that there was fourteen feet "sure at low
water." The evidence also tended to show
that the foreman suggested on Friday to the
master to make some soundings for himself;
that there might have b^n something
dropped over from a lighter that he did not
know of; that the captain did make sound-
inffs and found sufficient water as the ves-
sel then lay; that one of the appellants told
the foreman "to tell the captain of the Tol^
that he had better sound around the vessel and
make sure that it was laying all right;"
T60
that the foreman '^said the vessel was
all right, but he would tdl the captaia," ss
he afterwards reported he had; tliat tkectf-
tain sounded around the vessd on Sator^
*and discovered no dangerous conditifla; thit(ll
the vessel did not commence leaking and] 1
Sunday morning; and that the master thtre-
upon did all he could to save her. It dflct
not appear that the master was InfofU
that toe bottom was a rode bottom, or tkst
the fact was mentioned that the Baird hU
previously got on an obstructicm ia tbt
berth; and there was nothing in what vis
said to lead the captain to suppose that then
was danger provided there was vair
enough aroimd the vesseL He ratlMr
thought the vessel touched bottom oe SAta^
day evening at low tide, but that, if so. U
not in ite^lf constitute cause for alara.
In fact, the danger was the existence ol thi
rock in the middle of the berth onder tht
vessel. The evidence is voluminous ia re-
spect of the extent and manner of the hav-
ing; of what passed between the partiei;a(
the different soundings, and so on; but it ii
unnecessary to recapitulate it, as «e ait
satisfied that no adequate ground exists far
disturbing the result readied.
At all events, we are unable to decide thrt
the court of appeals was not justified ia hsU-
ing on the evidence that appellants were lis*
ble for negligence and the want of resw
able care, and that the master was fni
from contributory ne^igence; and tht
muBt» therefore, be a^Srvied.
WILLIAM TERKE, Appfi^
UNITED STATES and The Apadie
(See S. C Beporter'a ed. 4S»-ft«l.)
Claim for Indian depr^daiiona — what
oUotoodfo.
1. Under the first clanse of the ad «f
3. 1891. providiiiff for the adJvdIcatfaB lal
payment of claims for Indian dcpreiMlMi
one who was not a dtlaen at the ttim if ttt
depredation cannot make a dalm, altitoeife
he had prevloosly declared his intead^ »
become a citlsen and was aftenrards adand
to dtlsenshlp.
2. Under the second dense of the said scL •
dalm for Indian depredations whl^ has Mtf
been filed with the Commlselontr of MM
affairs Is not within the jnrtodlcdia if tti
court of claims, as a dain which has !■■
**examlned and allowed bj the latsrtv B^
partment.'*
[No. 664.]
Submitiad Fehmanf SO, 1899. iheiid
March IS, 1899.
APPEAL from a ludgment of the Owrt d
Claims dismi^iup for want of Jaih*
tion the claim of WiUiam Yerka lor pevftf"
ty taken and destroyed by the Apache v
ans, who were in amity witJi tht CiM
States when the depredation was coaautirf>
Affirmed.
llie facts are stated in the opinioii.
inv.h
190&
TeRKE v. UmITBD tiTATKb.
440-^ft49
Ifettft. T. H. N. MoPlierson and (7. M,
fhrter for appellant.
MeMsn. JoAa G. TlioiiipsoB, Assistant
Attorney General, and Lincoln H. Smith lor
•ppelli
*Mr. Justice MoKenaa delivered the
d]opinlon of the court :
The appellant (petitioner in the court be-
low) claimed $3,400.00 under the act ap-
proved March 3, 1891, entitled **An Act to
Provide for the Adjudication and Payment
of Claims Arisins^ from Indian Depreda-
tions." He alleged that he was a native of
Prussia, and came to the United States in
1828, and declared his intention to become a
citizen of the United States on the 8th of
January^ 1842, and was recognized as a voter
of Cochise county, Arizona, from 1884 to
1886; that he made application for and was
adjudged and declared a citizen of the United
SUtes December 16, 1896; that in March,
1872^ he was the owner of certain property
(which was described) of the value of $3,400.*
(M), in Arizona territory, "which was taken,
used, and destroyed by the Apache Mohave
Indians," who were in amity with the United
States "when the depredation wa^ commit-
ted." He further alleged "that he presented
his daim to the honorable Commissioner of
Indian Affairs March 8, 1882, but that no ac-
tion was had thereon; that said claim has
not been paid or any part thereof, nor has
any of the property been returned either by
the said Indians or the United States."
The United States filed a general traverse.
The court dismissed the petition for want
of jurisdiction. This ruling is assigned as
error.
The act of March 3 1891, gives Jurisdic-
tion to the court of claims to 'inquire into
and finallv adjudicate, in the manner pro-
vided in this act, all claims of the following
classes, namely:"
First. "All claims for property of citizens
l]of the United *8tates taken or destroyed by
Indians belonging to any band, tribe, or na-
tion in amit> ^^h the United Slates. . . ."
Second. Suifi jurisdiction shall also ex-
tend to all cabes which have been examined
and allowed by the Interior Department and
also to such cases aa were authorized to be
examined under the act approved March 3,
1885, and under subsequent acts. (23 btat.
tt L. 376.)
The "subsequent acts" do not affect the
Suestion; and that part of the act of March
, which it la necessary to quote, provides
ss follows:
"For the ioTestigation of certain Indian
depredation claims, ten thousand dollars;
and in expendinff said sum the Secretarv of
the Interior ahall cause a complete list of all
claims heretofore filed in the Interior De-
partment, and which have been approved in
whole or in part and now remain unpaid, and
aIbo all such claims aa are pending, but not
yet examined on behalf of citizens of the
United States on account of depredations
committed, chargeable against any tribe of
Indians by reason of any treaty between such
tribe and the United States, including tne
178 V.n. » B
name and address of the claimants, • • •
to be made and presented to Congress at ita
next regular session. . . ."
Is the demand of appellant within any of
these clauses?
1. In Johnson v. United States, 160 U. S.
546 [40: 529], it was held that citizenship
at the time of the depredation was an essen-
tial condition of the jurisdiction of the court
of claims of demands under the first clause.
2. Speakinff of the second claiLse, it was
said: "By that, jurisdiction is extended to
'cases which have been examined and allowed
by the Interior Department, and also to
such cases as were authorized lo be exam-
ined under the act of Gonffress* of March 3»
1885. and subsequent acts."
The appellant^s case was not of the former
kind. His claim had not "been examined
and allowed by the Interior Department." It
had only been filed with the Commissioner of
Indian Affairs. Was it hence a case of the
second kind? To have been that it must
have been one then "pending but not yet ex-
amined;" and must have been on behsuf of a
citizen of *the United Stotes. It was on file,[442]
and hence may be said to have been "pend-
ing," but it was not on behalf of a citizen of
the United States. Appellant was not then
a citizen. He did not c^come such until De-
cember 16, 1896.
But appellant urges that the act of 1891
applies to claimants who were inhabitants
at the time of the depredations, and that
their naturalization afterwards should be ]ield
to relate to that time. This view is at-
tempted to be supported by analogy to sec-
tions 2289 and 2319 of the Revised Statu tesc
which respectivelv eive to citizens and to
thoeo who have aeclared their intention to
become such the right to enter as^ricultural
or mineral lands, and the practice of the
Land Department in such cases to give ret-
roactive effect to a declaration of intention.
The answer is ready, and may be brief. The
act of 1891 is not ambiguous. Its clearness
does not need and may not be CDPstrued by
analogies from other statutes or from the
practice under other statutes. The rule is
elemental that language which is ciear needs
no construction. Lake County v. RollinSf
130 U. S. 662 [32: 1060]. Under both of the
clauses of the act of 1891, the claims of
which jurisdiction was given were strictly
identified; under the first clause, by citizen-
ship at the time of the depredations; maybe
also under the act of 1885, which provides
the cases of the second clause. But whether,
as was said in Johnson v. United States, the
different phraseology of the act of March 3,
1885, would include claims in favor of those
not citizens at the time of the depredations
by the Indians, it was decided that they must
be claims then "pending" — that is, pending
at the time of the act on behalf of citizens.
And as it was such cases which "were au-
thorized to be examined" under the act ot
1885, it was to such cases that the jurisdic-
tion of the court of claims was extended by
the second clause of the act of 1891.
Judgment affirmed,
761
44a-445
Supreme Coubt or the Uicited States.
|448]REM1NGT0N PAPER COMPANY, Plif. in
Err,,
V.
JOHN W. WATSON, Frank H.PopNe, and the
Louisiana Printing & PubliKDing Com-
pany, Limited.
(See 8. C. Reporter*! ed. 44S-45S.)
Review of state judgment.
A judgment by a state court inttainlng an em
parte appointment of a receiver, at against
subsequent proceedings of attachment and se-
qoestratlon in a Federal court, if determined
on grounds whidi did not involve Federal
questions, is not subject to review bj writ of
error from this court.
[No. 146.]
Argt^ed January 17, 18, 1899. Decided
March IS, 1899.
IN ERROR to the Supreme Court of the
State of Louisiana to review a judgment
of tiiat court affirming the judgment of the
Civil District Court for the Parieh of Or-
leans, Louisiana, in favor of John W. Wat-
son et aX,, dismissing the suit of the Rem-
ington Paper Company for damages, and ad-
judging that its demand be rejected, and the
appointment of John W. Watson as receiver
be maintained, etc Writ of error diamiaeed.
See same case below. 49 La. Ann. 1290.
The facts are stated in the opinion.
Meura. E. T. Merrlek and AViert Voor-
Jkiet for plaintiff in error.
Mr. AleyaiideT Porter Morse for de-
fendants in error.
IMS] *Mr. Jnstiee MeKeaaa delivered the
opinion of the court:
It is objected that the record presents no
Federal question.
In an action brought in the civil district
court for the parish of Orleans, state of Lou-
isiana, John Watson, one of the defendants
in error, was appointed, on the 17th day of
Kaj, 1893, receiver of the property and as-
sets of the Louisiana Printing & Publishing
Cconpany, a corporation created under the
laws of the state of Louisiana. As such re-
ceiver he took possession of such assets and
property. There was no appeal taken from
ue order of appointment.
The plainUflf m error, a corporation creat-
ed under the laws of New York, and having
its residence in that state, brought an action
in the United States circuit court for the
district of Louisiana a^inst the Louisiana
Printing & Publishing Company, to recover
$3,863U!»5, for paper furnished the company,
and sued out writs of seouestration and at-
[444]tachment, by* authority of which, on the 20th
da^ of May, 1893, the united States marshal
seized certain property of the company and
took the same from the possession of Watson.
On May 30, 1893, Watson as receiver filed
a motion in said circuit court to quash the
attachment and sequestration sued out, '*and
said rule on motion concluded with an order
which the mover in the rule desired the court
to adopt;" and thereupon the judge of the
court made the following order:
*'Let this rule be filed, and let the Rem- '
762
rris
ington Paper Company, throitth their
neys, Merridc k Merrick, ubam
Thursday, June 1, at 11 ▲. M. i^ tks
motion uiould not be granted.'*
To which motion uie Remingtoa
Company filed the following:
"The plaintiff in this case for the
only of objection to the regularity of
taken bv John W. Watson, calling hiasrif
ceiver, by way of exception, sayi :
'That said mover as a preteoded
cannot interfere in the progress of this siit
in the informal and summarr lasinrr at*
tempted by him in his said rme, nor hex he
any right to be heard to demand by the jadg*
ment of this court anything of this ooert
without conung into court by regolsr proeHS
and prooeedinfs and in the ukmu allowei ly
law, wherein tH^ plaintiff will be entitled ts
a trial of questions of law and fact in tht
mode and manner guaranteed by the Ooiti
tution and presented by law.
''Wherefore this plaintiff says tt^t tibk
rule taken by said John W. Watsoa ibosld
and ought to be dismksed at the coct of Mid
mover. Merridc 4 Morrick, Att^
"And in the event the for^goiog iiiiin^tisi
to said rule is oTcrruled and this piaisctif ii
required by tout honorable court to answ
the same, and not othowise, this idaintif ds>
nies the allcmtions conta&ed in said nb
and denies that said John W. Watsosu tht
pretended receiver, has any legal ri^ m
authority under the em pairte proeeedisg m
which he relies to take possenioa d thi ,
property attached in this case nor to *hiads(di^
or delay your petitioner from coHecting ill
just debt against said defendant.
''Merridc 4 Merrick, Ati>.'
The plaintiff praved the court ts
the exception to said rule before pfoi
further or hearing any testimoay on the nk
taken.
The court, however, decided to hear tht
testimony on the allegations of ^aid nk
and after hearing the same, on the 6U dif
of June, 1893, made the following order:
"This cause having been heara and «^
mitled upon a rule taken by John W. Wa^
son, appointed a receiver of the defeadaat 1^
the civil district court for the parish ef O
leans, to set aside the writs of attadnflt
and sequestration issued in this raoM, sal
upon the exception thereto filed by the pUie*
tiff, and the same having been coiMidervd kf
the court J it is now ordered, for the lus—
assigned m the written opinkMi on iK thsi
the marshal restore the property Miaid is
this cause under the writs of attaci
seouestration to John W. Watson,
unless, within five days, the plaintiff ayybw
for and ultimately receives authority hem
the civil district court which appoi*iUd Ws*-
son or from the appellate court to hoU mam
under said writs.'
The opinion of the court leferied ts Is lis
order recites that Watson had hem *sp>
pointed receiver upon a petition of a
and in the intervention of the attorn^
eral; which original and interrtni^ L
tionft averred that all the officer* of tH de-
fendant corporation had resigned tnd th7t a
1808.
Rbminotoh Paper Co. y. Watson.
445-446
fact it was a Tacant oorporation.** It was
further said:
*<I do not think this court can deal at all
with the alleged irregularity in the appoint-
ment of the receiver, such as the alleged want
of an execution, etc., preceding the appoint-
ment. It app^ing to this court that a
fourt of concurrent jurisdiction has ap-
pointed a receiver who was in actual posses-
Aion, this court has no right to attempt to
dispossess him. All the matter as to frreff-
nlarity of the appointment must be dealt
with bj the court that appointed. I under-
stand the doctrine of the comity of courts
M]to be this — ^that where a court *has jurisdic-
tion of a cause and property and through its
proper officer is in possession, it is the duty
of ail other courts v6 refrain altogether from
the attempt to take that proper^ into pos-
sessicm except b^ permission of the court in
possession. It is not a question of the va-
lidi^ of process, but a question of public
order, and the rule of comity is based upon
the dutjr of oourts to abstain from anything
that might lead to violence. There having
been a receiver appointed by a court of com-
petent jurisdiction and he being in possession
of Uie property attempted to bi seized by the
marshal, and which was in fact seized, I
think the duty of this court is to restore the
property practically to the situation in which
It was when the property was interfered with
by the marshal.''
The bill of exceptions signed by the circuit
judffe shows that Watson was in possession
of uie property, engaged in making an in-
ventory of it wnen it was seized by the mar-
shal, and had taken the oath of office but had
filed no bond.
On the 9th dav of June, 1893, three days
after the order of the circuit court, the Rem-
ington Company filed in the civil district
court for the parish of Orleans a petition and
action of nullity and for damages under the
laws of the state against Watson receiver,
Pope, petkioning crMitor, and the Louisiana
Printing A Publishing Company.
The petition alleged the indebtedness of
the latter company to petitioner, the action
by the hitter in the United States circuit
court, the attachment of property, the mo-
tion of Watson as hereinbefore stated, and
the ruling and order of the court thereon;
that the meet thereof will be to prevent the
execution of any judgment rendered, and
luat "Watson was without right to stand in
vhe way of a just debt because he had given
no bond at the date of the seizure of property
under the attachment nor complied with
the order of the court, nor had proceedings
been had to perfect his appointment or to
give him the right to control the property
or to prevent any suit from being brought
or any court from subjecting the property of
said defendant by due course of law to the
payment of its debts, and the conduct of
the said Watson, Frank H. Pope, and those
confederating with them in attempting to
I7]*8crecn the property from payment of debts
was collusive and a constructive fraud upon
petitioner and a violation of its rights under
the laws and Constitution of the United
States of America," that the order appoint-
178 V. 8.
ing him was null and void because obtained
"upon the collusive petition of Frank H.
Pope without citation to anyone, without
oath or affidavit or any proof and without
contest." It was further alleged that the so-
called intervention of the attorney genernl
did not cure the nullity of the proceedings
of Pope and Watson, and that the state was
without authority to intrude itself in that
manner into the con^oversies of private per-
sons. There was a prayer for citation and
that the order appointing Watson receiver
be declared as against petitioner null and
void and of no effect, and the same be in-
effectual as a bar to said attachment or se- •
questration or other proceedings on the part
of the petitioner in the circuit court of the
United States, and that said Watson and
Pope be condemned, as in solido or otherwise,
to pay petitioner the sum of $3,863.55 dam-
ages caused it by the construction of its pro-
ceedings in the circuit court, and for general
relief.
The petition was subsequently amended,
amplifying somewhat the charges of illegal-
ity in Watson's appointment, and allegii^
with more detail his action in the circuit
court, and averring "that said ew parte or-
der of this court, dated the 17th day of May,
1893, purporting to appoint John W. Wat-
son receiver of the Louisiana Printing &
Publishing Company, Limited, was obtained
in violation of the Fifth and Fourteenth
Amendments to the Constitution of the Unit-
ed States, in this, that said decree was ob-
tained without due process of law, it being
eso parte and without affidavits, bond, or
proof, as more at large alleged in the orig-
inal petition, and the said imoonstitutional
and void order and decree is set up and al-
leged by the defendants as a bar and a de-
fense to prevent your petitioner from recov-
ering and having its said just and valid debt
from its said debtor, the said Louisiana
Printing & Publishing Company, Limited, and
thus depriving petitioner of its claim duly se-
cured by due and legal process of law on the
property of its said debtor, and seized under
said * writs from said circuit court of the Unit-[448]
ed States, and said defendants seek through
said void ea parte order of 17th day of
May, 1893, to effect the transfer and
of the possession and property of said Louisi-
ana Printing & Publishing Company under
the seizure of petitioner under its writs to
said John W. Watson, thereby screening the
same from ordinary and le^ pursuits of
creditors in the modes pointed out by law. In
violation of the Fifth and said Fourteenth
Amendments of the Constitution of the Unit-
ed States."
To the petition Watson answered, denying
all and singular its allegations except his
appointment as receiver, and "assumine the
attitude of plaintiff in reconvention," alleged
that the Remington Paper Company was a
nonresident corporation, and that by its "un-
lawful and unwarranted seizure of the prop-
erty of said Louisiana Printing & Puolisn-
inff Company, Limited, which seizure has been
released, said Remin^^ton Paper Company
has damaged the creditors of said Louisiana
Printing & Publishing Company, Limited,
763
448-451
SUTBEME COUBT OF THE UlOTBD STATES.
Oct. Tkxm,
for whose benefit i*^ universi this reconven-
tional demand is now prosecuted."
The damages were itemized and alleged to
have amounted to $3,847.15.
The answer concluded as follows:
"Wherefore said John W. Watson prays
that said plaintiff's petition be dismissed;
that he be quieted in his position as receiver ;
that his appointment be ratified and con-
firmed as prayed for by said Louisiana Print-
ing & Publishing Company and by a large
majority of its stockholders and its board
of directors, and that, as the representative
of the creditors of said company, he have
judgment on his reconventional demand
Xinst plaintiff in the siun of $3,847.15 and
costs of this suit."
Upon the hearing judgment was rendered
aa follows:
"1st. In favor of John W. Watson and
Frank H. Pope, rejecting^and dismissing the
suit of the Remington Faper Company for
damages.
"2d. That the demand of the Remington
Paper Company a^inst John W. Watson,
Frank H. Pope, and the Louisiana Printing
& Publishing Company, represented by John
|iAO]W. * Watson, receiver, of the nullity of the
order appointing said Watson receiver, etc.,
be also rejected and dismissed, and that said
appointment and order be maintained.
"3d. That the reconventional demand for
money claimed by Watson as receiver herein
be dismissed as of nonsuit, and that the Rem-
ington Paper Company be condemned to pay
all costs of this suit."
The supreme court affirmed the judgment
(49 La. Ann. 1296), and the case was
brought here.
The supreme court, after reciting the pro-
oeedings taken by the respective parties and
stating their contentions, said that the rec-
ord showed that the Remington Company did
not comply with the order of the United
States circuit court, "but, on the contrary,
this action of nullity and claim for damages
was resorted to instead of such an applica-
tion," and it was held that the action de-
pended necessarily upon a claim for damages,
and that the company had no such daiuL It
was further said:
"In the first place, addressing ourselves
to the question of damages, we are of opinion
that the plaintiff was plainly at fault in not
employing the proper means to protect its
own rights; (1) first, because it used no ef-
fort to avail itself of the permission granted
l^ the circuit court whereby the seizure
might have been retained on the property;
(2) second, because it took no means or pro-
ceedings lookinff to the protection and preser-
vation of its alleged vendors' lien upon the
property after it had passed into the custody
and control of the receiver, either by injunc-
tion against a sale by the receiver or a third
opposition claiming the proceeds of sale, un-
der a separate appraisement and sale.
"In our view, such measures could have
been easily resorted to on the part of the
plaintiff, without prejudice to this or its
circuit court suit, and, failing in thif«, an
insurmountable obstacle has l^n raised to
its claim for damages.
764
"For surely the plaintiff cannot be beard
to sav that Watson and Pope have perpe-
tratea upon it damages resulting from a hm
and injury it has occasioned through ita ova
fault.
"The plaintiff's recourse against property i
stricken oy a vendor's *lien was just as eBei-[iil
cioufi against it in the hands of the recenv
as it was in that of the marshal, and had it
made proper and seasonable applieatiaa te
the judge a guo, possibly he might have per
mitted the marshal to retain in tii posHf-
sion the property seized under the writ of tir
tachment in the circuit court. However tail
and nugatory such an effort may have pnv-
en, it was none the less its duty to have aeii
the effort at least.
"Surely the receiver cannot be said to hsu
committed a wrong or trespass upoa thi
plaintiff's rights by advertising and mskiif
a sale of corporate assets in pursnanee of is
order of court to pay debts, especially «ha
such sale was neither enjoined nor opposd
by it
"Presumably the proceeds of the sale an
yet in the hands of the receiver for dtstrih**
tion according to law, and plaintilf eaa ear
cise its rights thereo.n.
"In our opinion, this is not a ease is
which we are called upon to exsiBine asi
scrutinize the legality m the appointiK of
a receiver, for the reason that the ewnplsii'
ing creditor has not suffered mmj njnj
thereby and is itself seeking a jptafcuacs.
"We think the ends of justaee woald ki
best subserved by preserving and ■atsftals'
ing the 8tatu8 quo/'
The assignments of error are sonewhst l»
volved in statement, but they are baasi m
the ground that the order appotntlig Wa^
son receiver was null and vmd beravt tkt
ownership of properdin the LouiaisBa Prill'
ing 4 Publishing Company, the deter if
Slaintiff, "could m>t be devested to the pni»
ice of creditors on an arbitrary order «»•
out due process of law," and theuse ciaaek«^
der to obtain the ruling of the United Siate
circuit court, which directed the Uintii
States marshal to restore to him the profv*
ty attached, deprived the plaintiff in emr
of a right without due process of law, aai
that therefore the jodgment ol the l««v
court was erroneous.
The appointment of a receiver to take ^
session of the property of an inaolff t tm^
poration upon the petition of a creditir h
certainly "due process." This, of eoant, h
not denied, but "the invalidi^ of the erAriW
of appointaient is asserted beiaansa it eaa
made e« parte, and because Watsoa bad ait
fully qualified. It is hence argued that thi
appointment was a nullity — eoaslitaM *ai
legal obstacle" to the proeeedinfa in tki
United States circuit court.
This view was not entertaiaed ly lihit
court, but, on motion of Walaott, the rovt
ordered the property whi^ had baei ■*'
tached restored to him and reoiittid thi
plaintiff (plaintiff in error hare) to tha
state court. Its order was "that the ■B^
shal restore the propertv scased in
under the writs of attachment and
tion to John W. Watson, receiver.
im.
Ex parte Wabd.
451-454
withiii Are days the plaintiff appUe<« for and
ilUmately receives authority from the civil
district court which appointed Watson or
from the appellate court to hold same un-
dsr said writs." If this was error its review
eannot be had on this record.
The plaintiff did not apply to ''the civil
district court which appointed Watson/' the
sapreme court in its opinion says, but
brought an action for nullity of iho order of
appomtment under the Code of the state
(Code of Pr. of La. arte. 604 et aeq.) and
for damages.
The action was regularly proceeded with,
and was determined against plaintiff in eiTor
on grounds which did not involve Federal
quentions, and therefore it is not within our
power to review the judgment of the supreme
court of the state.
The plaintiff in error thus sought in the
■t&te court and was given opportunity to
litigate the rights claimed by it and it cannot
complain that the guaranties of the Consti-
tution of the United States were denied be-
cause the litigation did not result success-
fully. Central Land Co. v. Laidley, 159 U.
S. 112 [40: 95] ; Walker v. Bauvinet, 0*2 U.
8. 80 [23: 678] ; Head v. Amoakeag Mfg. Co.
113 U. S. 9, 26 [28:889, 895]; Morley v.
Lake Shore d M. 8. Railroad Co. 146 I;. S.
162, 171 [36: 925, 930] ; Bergetnann v. Back-
er, 157 U.S. 655 [39:845].
It follows that this writ of error cannot
be maintained.
The rule was announced in Eustis v. Bollea,
150 U. S. 370 [37: 1113], "that when we
find it unnecessary to decide any Federal
2]*question, and when the state court has based
its decision on a local or state question, our
logical course is to dismiss the writ of error."
See also 8t. Louis, C. O. d Fort Smith R. Co.
V. MissouH [Merriaml, 156 U. S. 478 [39:
502] ;Hambl%n v. Western Land Oo. 147 U. S.
531 [37:267]; Castillo v. McConnico, 168
U.S. 674 [42:622].
"Writ of error dismissed.
Mr. Justice WUte took no part in this
decision.
Em parte HENRY WARD.
(See S. C. Reporter's ed. 452-456.)
Habeas corpus, when not allowed.
Where a person Is convicted by a judge de facto,
tbougfa not de jure, and detained In custody
In pursuance of his sentence, he cannot be
properly discharged upon habeas corpus; the
right of such Judge to exercise judicial func-
tions cannot be determined on such writ.
[Original. No nnmber.]
Buhmitted February 20, 1899. Decided
March 20, 1899.
APPLICATION for leave to file petition
for writ of habeas corpus by Henry
^ard, applicant, to be relieved from im-
prisonment on a sentence to the penitentiary,
178 V.n. F- /,
on the ground that said sentence was void
because the judge before whom he was tried
was not properly appointed and commis-
sioned. I^ve to file netition denied.
The facts are stated in the opinion.
Messrs. B. C. Garland and W. Wrishtp
Jr., for petitioner.
*Mr. Chief Justice FuUer delivered the[46»]
opinion of the court :
Ward was tried and found ffuiity before
Edward R. Meelc, judge of the district court
of the United States for the northern dis-
trict of Texas, for "having in his possession
counterfeit moulds," and was sentenced
October 22, lS98,to ""the penitentiary at Fort[453]
Leavenworth, Kansas, at hard labor for a
period of one year and one day, and com-
mitted accordingly to the custody of the
warden of said prison. He now makes ap-
glication for leave to file a petition for
abeas corpus on the ground that the sen-
tence was void because Judge Meek was ap-
pointed July 13, 18U8, after the adjournment
of the previous session of the Senate of the
United States, and commissioned by the
President to hold office until the end of
the next succeeding session of the Senate;
and from the date of the appointment and
commission, until after the conviction and
the sentence, there was no session of the Sen-
ate, though it is not denied that the appoint-
ment was afterwards confirmed.
By the act of February 9, 1898 (30 Stat,
at L. 240, chap. 15), provision was made for
an additional Judge for the northern ju-
dicial district of the state of Texas, to be ap-
pointed by the President, by and with the
advice of the Senate, and tnat when a va-
cancy in the office of the existing district
judge occurred, it should not be fill^, so that
thereafter there should be only one district
judge. It is stated that Judge Rector was
district judge of the northern district of
Texas when the statute was passed (Febru-
ary 9, 1898), that he died (April 9,
1898) before Judge Meek's appointment
and while the Senate was still in ses-
sion ; and argued that the appointment could
not be treated as one to fill the vacancy
causd by Judge Rector^s death, because that
was forbidden by the act, and must be re-
garded as an appointment to the office of
^'additional district judge" created thereby.
Clause three of section two of article two of
the Constitution provides that **ihe Presi-
dent shall have power to fill all vacan-
cies that may happen during the recess of the
Senate, by granting commissions which shall
expire at the end of their next session;" but
it is insisted that the office in this instance
was created during a session of the Senate,
and that it could not be filled at all save by
the concurrent action of the President and
the Senate.
And it is further contended that the PresI-
dent could not during the recess of the Sen-^
ate and without its concurrence, *by his com-1464]
mission invest an appointee with any por-
tion of the judicial power of the United
States government as defined in article three
of the Constitution, because that article re-
765
454-40i
Supreme Court of the Uitited States.
Oct. Tim,
quires that judges of the United States
courts shall hold their offices during good be-
havior, and hence that no person can be ap-
pointed to such office for a less period and
authorized to exercise any portion of the ju-
dicial power of the United States as therein
defined.
We need not, however, consider the elabo-
rate argument of counsel in this behalf, since
we regard the well-settled rule applicable
here that where a court has jurisdiction of
an offense, and of the accused, and the pro-
ceedings are otherwise re^plar, a conviction
is lawful although the judge holding the
court may be only an officer de facto; and
that the validity of the title of such judge
to tiie office, or his right to exercise the ju-
dicial functions, cannot be determined on a
writ of habeas corpus.
^tmi *In OHffin's Ccue, Chase, Dec. 364, 425, this
was so ruled, and Mr. Chief Justice Chase
said: "This subject received the considera-
tion of the judges of the supreme court at
the last term, with reference to this and
kindred cases in this district, and I am au-
thorized to say that they unanimously con-
cur in the opinion that a person convicted by
|^6]a judffe de * facto, actine under color of office,
thougn not de jure, and detained in custody
in pursuance of his sentence, cannot be prop-
erly discharged upon habeas corpus." And
to that effect see Bheehan's Case, 122 Mass.
445 [23 Am. Rep. 374] ; Fotoler v. Behee, 9
Mass. 235 [6 Am. Dec. 62]; People [Bol-
fern] V. Bangs, 24 Dl. 187 ; Re Burke, 76 Wis.
357; Re Manning, 76 Wis. 365; Re Manning,
139 U. S. 504 [35:264]; Church, Habeas
Corpus, S§ 256, 257, 369, and cases cited.
In McDowell v. United States, 159' U. S.
596 [40:271], one of the circuit judges in
the fourth circuit designated the judge of
one of the district courU in North Carolina
to hold a term in South Carolina, and his
power to act was challenged by an accused
on his trial and before sentence. The cause
was carried to the court of appeals for that
circuit, which certified questions to this
court. We decided that whether existing
statutes authorized the designation of the
North Carolina district jud^e to act as dis-
trict judge in South Carolina was imma-
terial, since he must be held to have been a
judge de facto, if not de jure, and his ac-
tions as such so far as they affected other per-
sons were not open to question. Cocke v.
Halsey, 10 Pet. 71, 85, 86 [10:801, 896];
Hussey v. Smith, 99 U. 8. 20, 24 [25 : 314,
815]; Norton v. Shelhy County, 118 U. S.
425, 445 [30:178, 187]; BaU v. United
States, 140 U. S. 118, 128, 129 [85 L. ed.
877, 381, 382].
The result of the authorities is that
the title of a person acting with color of
authority, even if he be not a good officer
in point of law, cannot be collaterallv at-
tacked, and as Judge Meek acted, at least,
under such color, we cannot enter on any
discussion of propositions involving his title
to the office he held.
Leave denied.
766
THJBD STREET k SUBURBAN KAIL(M
WAY COMPANY, AppL,
V.
MEYER LEWia
(Sett. C Reporter's ed. 4S7<4it.)
Decree of eirottit oowri of appeals, wkm fmk
A decree of the drcott court of appeeli Is t
case in whldi the Jorlsdlctlon at tkt mtatL
depended on diversity of citiaeashlp is IibI,
even if another ground of jarladlette m
alleged in a supplemental bill Ik7 which a mm
defendant was made a party.
[No. 212.]
Submitted March 10, 1899. Decided
20, 1899.
APPEAL fnm a decree of the UiM
Stetee Circuit CoUrt of Appeals for tte
Ninth Circuit affirming the decree of tbt Q^
cuit Court of the United States for the D»
trict of Washington for the forcdoeort if i
mortfpEtge and sue of mortga£|ed premiM% fei
a suit oy Meyer Lewis againut the Tm
Street & Suburban RaHwmj Compaay. i^
peal dismissed.
See same case below, 48 U. 6. App. tTl
Statement by Mr. Chief Jnatlee Fvlkrt
This was a supplemental bill of ooapiii^
filed October 9, 1895, in the eirenit eovt d
the United States for the district of Wiik-
ington. The original bill does not sppnr ii
the record, but the supplemental bOi il*
leged —
"Meyer Lewis, a dtixen of the eity mi
county of San Francisco in the state m C^
ifomia, with leave of court first had sa4 ^
tained, brings this his supplenicBtal M.
against the Third Street 4 SidmrbaB Baihw
C^mi^any, a corporation duly orgaaiMd tai
existing under the laws of the state ol Wnb-
ington, defendant, with its pHnctpsl jkm
of business in the city of Seattle, a mH
state; the original bill herein belnc hna^
by this plainUff against Westerv fim Oa-
pany, a corporation organised and
under the laws of the state of Wftskia|««>
with its principal place of bwiineM ia aM**
tie, in said state, John Leary and J. W. W^
wards, citixens of Washington and rsDta*
of SeatUe, James Oldfidd, dtiaa of WMb-
ington and a resident of Seattle, Ifsieita
McDonald, a dtixen of Washingtim, sai •
resident of FOrt Blakely, in mM ttslt tkt
city of Seattle, a municipal eorporatioB ^
organized and existing under the lavs ^^ ^
*state of Washington, Washh^tom OwM^
Bank, a corporation duly organassd sai «r
isting under the laws of Washivtoa, ^^
its principal place of business la UmWIsi ii
said state, and other defendants,
whom decrees pro oonfeseo have bees
in the above-entitled cause prior to tht
ing of this supplemental biiL''
1896.
Third Stbbkt & B. R. Co. y. Lbwib.
45a-4C0
And set fortli in paragraph one:
That at all times hereinafter mentioned
the defendant, Third Street & Suburban Rail-
way Company, was and it now is a corpora-
tioDy duly organized and existing under and
by virtue of the laws of the sta^e of Wash-
ington, with its principal place of business
in the city of Seattle, in said state."
The supplemental oill then stated that the
Western Mill Company, in May, 1884, and
eertain other defendants as sureties, made
and delivered to plaintiff their note, to se-
oore the payment of which, and the interest
thereon and attorneys' fees, it executed a cer-
tain mortgac^, whidi plaintiff sought by his
hill to forecE>se.
The eighth paragraph was as follows :
'That on or about the 14th day of October,
1891, the defendant, Western Mill Company,
mortgagor herein, by its certain deed of sale,
sold said mortgaged premises and every part
thereof to the Kanier Power & Railway Com-
pany, a corporation organized under the laws
tf Washin|^n,and having its principal place
if business in Seattle; that thereafter, and
en or about the 13th day of February 1805,
In the cause of A, P. Fuller 'v, Ihe Riinier
Pwcer d RailtDoy Company, No. — , then
pending before mis honorable court, Eben
Smith, Esq., the duly appointed, <}ualified,
and acting master in chancery in said cause,
made^ executed, and delivered to A. M.
Brookes, Angus Mcintosh, and Frederick
Bausman, purchasers of said premises, at a
lale theretofore had, to satisfy a decree in
laid cause theretofore rendered by this court,
a deed of sale to said mortga&^ed premises
and each and every part thereof ; that there-
after, on the 12th day of February, 1895 for
a valuable consideration, said Angus Mcin-
tosh, A. M. Brookes, and Frederick Bausman
^]duly bargained and sold *by their deed of sale,
their right, title, and interest in and to said
premises, and every part thereof to the
Third Street & Suburban Railway Company,
defendant herein, who now claims some in-
terest in or lien upon said mortgaged prem-
ises through said aeed of purchase, so made
subsequent to the commencement of plain-
tiff's action, but that said interest in or lien
upon said property is subsequent, subject,
and inferior to the lien of plaintiff's mort-
Thereupon plaintiff prayed judgment
minst tne parties to the note for the sum
alleged to be due with interest and attorneys'
fees; that a decree for the sale of the mort-
gaged premises be entered, the proceeds to
ue applied in payment of the amount found
due on the note and mortgage; that the rail-
way company, and all persons claiming un-
der it, be barred and foreclosed from setting
up any claim or equity therein thereafter;
and that plaintiff have judgment over for
any deficiency on the sale. The defendant,
the railway company, answered ; a demurrer
was sustained to its answer; and a decree
was entered against the parties to the note
^or the amount due thereoil and for the sale
of the premises mortgaged, with juasment
against them for any deficiency; and also
for the distribution of any surplus that
173 U. 8.
might remain after the application on the
ftiortgage of the proceeds irom the sale.
The case was carried on appeal to the cir-
cuit court of appeals for the ninth circuit,
and the decree mIow was by that court af-
firmed. 48 U. S. App. 273. And from its
decree this appeal was allowed.
Mr, Fredeiiok Bausman for suDpellant.
Messrs, J. W. Blaokbum, Jr., and
George E. Hamiltoa for appellee.
*Mr. Chief Justice FuUer delivered the[MIO
opinion of the court:
Although the record does not contain the
original bill, it is apparent that the jurisdic-
tion of the circuit court was invoked on the
CTound of diverse citizenship, and that the
^interest of appellants in the mortgaged!^
premises was acquired after the commence-
ment of the action.
This supplemental bill made appellant a
party defendant as claiming an interest, but
the jurisdiction still rested on diversi^ of
citizenship. The decree of the circuit court
of appeals was, therefore, made final by the
statute, and the appeal cannot be sustained.
But it said that oecause plaintiff saw fit
to set forth the maimer in which appellant
obtained its interest, and it appeared that
appellant claimed under a conveyance from
the purchasers at a sale made pursuant to a
decree of the circuit court, the jurisdictioB
was not entirely dependent on the citizen-
ship of the parties. The averments, how-
ever, in respect to the acquisition of its in-
terest by appellant, were no part of plain-
tiff's case, and if there had been no allega-
tion of diverse citizenship the bill unques-
tionably could not have been retained. The
mere reference to the sale and foreclosure
could not have been laid hold of to maintain
jurisdiction on the theory that plaintiff'*
cause of action was based on some right de-
rived from the Constitution or laws of the
United States.
It is thoroughly settled that under the
act of August 13, 1888, the circuit court of
the United States has no jurisdiction, either
original or by removal from a state court,,
of a suit as one arising under the Constitu-
tion, laws, or treaties of the United States,,
unless that appears by the plaintiff's state-
ment to be a necessary part of his claim.
Tennessee v. Union d Planters* Bank, 152
U. S. 454 [38: 511] ; Metcalf v. Waiertoum,
128 U. S. 586, 589 [32: 543, 544] ; Colorado
Central Consol, Min, Company v. Turck, 150
U. S. 138 [37 : 1030]. If it does not appear at
the outset that the suit is one of which the
circuit court at the time its jurisdiction is
invoked could properly take cognizance, the
suit must be dismissed; and lack of jurisdic-
tion cannot be supplied by anything set up^
by way of defense. And so when jurisdic-
tion originally depends on diverse citizen-
ship the decree of the circuit court of appeals
is final, though another ground of jurisdic-
tion may be developed in the course of the
froceedings. Ex parte Jones, 164 U. S. 691
41:601].
Appeal dismissed,
767
461 463
SUPBEMC COUBT Of THX UNITED STATES.
Oct. buk
|4ri- J. M. TURNER et al., Plifs. in Err.,
V,
BOARD OF COMMISSIONERS OF
WILKES COUNTY et aU
(See S. C. Reporter's ed. 461-464.)
Federal question — construction of the Con"
stitution and laws of a state*
1. A Federal qaestlon which will support m
writ of error to a state court Is not raised by
a decision of a state court against the valid-
ity of a state statute under which bonds were
issued, although It had held the stntute valid
before their Issue, where its decision Is based
upon the Constitution and laws of the state.
J. This court Is bound by the decision of a
state court In regard to the meaning of the
Constitution and laws of its Dwn state; and
its decision upon such state 9f facta raises
' no Federal question.
[No. 642.]
Uuhmitted February 20, 1899. Decided
March 20, 1899.
IN ERROR to the Supreme Court of the
State of North Carolina to review a judg-
ment of that court in an action brought hy
the Board of Commissioners of Wilkes county
€t al. against Clarence Call, treasurer of
said county adjudging that certain bonds is'
sued by the county of Wilkes in payment of
its subscription to the stock of the North-
western North Carolina Railroad Company
were void by reason of the invalidity of the
laws under which they were issued. On
motion to dismiss or affirm. Dismissed.
The facts are stated in the opinion.
Mr. A. C. ATery for defendant in error
in favor of the motion.
Mr. Rioliard N. Haokett for plaintiff in
error in opposition to the motion.
{461] *Mr. Justice Peokham delivered the opin-
ion of the court:
This action was commenced in the supe-
rior court of Wilkes county in the state of
North Carolina, by the board of commission-
ers of Wilkes County and C. C. Wright,
against Clarence Call. Mr. Wright was a
taxpayer of the county, while the defendant
Call was its treasurer. The action was
brought to test the validity of certain bonds
issued by the county of Wilkes in payment
of its subscription to the stock of the North-
western North Carolina Railroad Company.
The defendants Turner and Wellborn were
the owners of some of the bonds, and after
the bringing of this action they were, on
their own motion, brought in as parties de-
fendant, and they invited all other bond-
holders to come in and join them in resisting
the action.
|46S] *It was claimed by the holders of the
bonds that authority for their issue ex-
isted under an ordinance chartering the
Northwestern North Carolina Railroad
Company, which ordinance was adopted
by tne constitutional convention of North
Carolina, March 9, 1868, the Constitution
being itself ratified April 25, 1868. It
76S
was also insisted that the boa^
authorized under sections 1996 to fOOO of
the Code of North Cardina, as cnactsd
in 1869, and subsequently ratified in 1883;
also that the charter oi the railroad eos-
panv, as amended in 1879, and aeain ia 1881,
authorized the issuing of the bonds. Tht
bonds were in fact issued in 1890, and tkov-
fore subsequent to all the legislatioa absvi
referred to. The bonds recitra on their fsct
that they were issued under the act ol 1871.
As grounds for their ccmtcotkni that tte
bonds were invalid, the plaintiffB htkm is-
sorted that neither the aoove-moitioBcd set
of 1879, nor the amended act of 1881, had
been constitutionally passed ; that the boaii
were not issued under the ordinaaee adoptd
by the constitutional convention; and that
by the doctrine of estoppel the bondhoMm
could not claim that the bonds were anai
under such ordinanoe or by Tirtae of stf
other authority than that redted oa tkai
lace, vie., the act of 1879.
The supreme court of the state held Ast
the bonds were void because the acts n-
der which they were issued were aoC vifil
laws, not having been passed in the mamm
directed by the Constitution. The coort fir
ther held that the bonds ware not aatherijii
by the above sections of the Code, aad tkst
as they purported, by recitals oa their te.
to have been issued under the act of 1879, tk
bondholders were estopped from ssttiK wf
any other authority for their issue, sock m
the ordinance of the eonstitatioBal eoBvii-
tion above mentioned.
The bondholders have broittht the cm
here, claiming that by the iMdsioa bebv
their contract has hein impaired, bwit
as they all^^e, the supreme ooart of the ilitt
had decided before tnese bonds were *
that the acts under which th^ were
were valid laws and authorised their
and that in holding the contrary aftar tk
issue of these bonds the state court had m
paired the obligation of the contract, *aBi n^i
decision raised a Fedaral question profv fcr
review by this court.
But in this case we have no powv to o
amine the correctness of the decisioa if tki
supreme court of North Carolioa, bsei^
this beinff a writ of error to a stateeoart^
cannot tdce jurisdicticm under the alkpaB
that a contract has been impaired by s ^
cision of that court, when it appMn tW
the state court has done nothing man tlsi
construe its own Constitution and rtat^
existing at the time when the bonds wmt »
sued, there being no subeeqnent k|««**^
touching the subject. We are «•*•
bound by the decision of the state essrt •
regard to the meaning <^ the OoMtftari*
and laws of its own state, aad its ' '
upon such a state of facts raises no^Mi
question. Other principles obtaia viMa
writ of error is to a Federal ooarL
The difference in the jurisdietiea «f ■•
court upon writs of error to a state at
tinguished from a Federal coort ^
tions claimed to arise out of the «■
clause of the Constitution, is set «««« •
the opinion of the court in Omtrsi !•■
Company v. Laidley, 159 U. a IW l^J^*
171 »•*
1898.
Unitbd Statbb y. Nxw York Indlajso.
4(58-465
and from the opinion in that case the follow-
ing extract is taken (page 111 [40: 94] ) :
*The distinction, as to the authority of
this court, between writs of error to a court
of the United States and writs of error to
the highest court of a state, is well illus-
trated by two of the earliest cases relating
to municipal bonds, in both of which the
opinion was delivered by Mr. Justice
Swayne, and in each of which the question
presented was whether the Constitution of
the state of Iowa permitted the legislature
to authorize municipal corporations to is-
sue bonds in aid of the construction of a
railroad. The supreme court of the state,
by decisions made before the bonds in ques-
tion were issued, had held that it did; but,
by decisions made after th^ had been issued,
held that it did not. A judgment of the dis-
trict court of the United States for the dis-
trict of Iowa, following the later decisions of
the state court, was reviewed on the merits
and reversed by this court, for misconstruc-
tion of the Constitution of Iowa. Oelpoke
Y. Dubuque, 1 Wall. 175, 206 [17:520,526].
But a writ of error to review one of those
l]decisions of *the supreme court of Iowa was
dismissed for want of jurisdiction, because,
admitting tiie Constitution of the state to
be a law of the state within the meaning
of the provision of the Constitution of
the United States forbidding a state to
pass any law impairing the obligation of
contracts, the only question was of its con-
struction by the state court. Missisaippi d
M. KaUroad Co. ▼. McClure, 10 Wall. 511,
515 [19:997,908].
An example of the jurisdiction exercised
by this court when reviewing a decision of a
Federal court with regard to the same con-
tract clause is found in the same volume.
FoUom V. Ninety 8iw, 159 U. S. 611, 625
[40:278, 283].
This case is governed by the principles laid
down in Central Land Company v. Laidley,
Bupra, and the writ of error must, therefore,
be dismissed.
UNITED STATES, Appt.,
V.
NEW YORK INDIANS.
(See 8. C. Reporter's ed. 464-478.)
Findings of court of claims — when case wiU
not he remanded— povoer of said court —
voken an appeal will not he entertained.
8. The court of claims is not at liberty to re-
determine who were parties to the treaty of
Buffalo Creelc, and entitled to the benefits of
its provisions, after that has been deter-
mined by this court on a former appeal.
4. An appeal will not be entertained by this
court from a decree entered in an inferior
court, in exact accordance with the mandate
of this court upon a previous appeal.
£No. 697.]
Motion for additional findings submitted
Januarif SO, 1899. Motion to dismiss or
affirm submitted February 20, 1899, D&'
cided March 20, 1890.
ON APPEAL from a judgment of the
Court of Claims in favor of the claim-
ants, the New York Indians, for the recovery
from the United States of the amount re-
ceived by it for the Kansas lands set apart
for said Indians and subsequently sold by
the United States. On motion to dismiss or
affirm and also on motion by the United
States for additional findings. Dismissed.
See same case on former appeal 170 U. B.
1, 42 L. ed. 927.
1. The findings of the coort of claims in an ac-
tion at law determine all matters of fact,
like the verdict of a jury; and where there
Is any evidence of a fact which said court
finds, and no exception is taken, its finding is
final.
S. Tliis court will not remand a case to the
court of claims with directions to return
whether certain distinct propositions in re-
quests for findings of fact, presented to that
court at the trial of the case, were established
and proved by the evidence. If the object of
Its being so remanded is to ask this court to
determine questions of fact upon the evidence.
173 V. 8. U. S.. Book 43. 49
Statement by Mr. Justice Browns
This case arose from a motion by the In*
dians to dismiss the app^l of the United
States for want of jurisdiction, or, in the
alternative, to affirm the judgment of the
court of claims, upon the ground that the
question involved is so frivolous es not to
need further argument; and also from a
counter motion by the United States for an
order upon the court of claims to make a
further finding of facts.
*By an act of Congress, passed January[4M]
28, 1893 (27 SUt. at L. 426), the couit of
claims was authorized to hear and deter-
mine, and to enter up judgment upon the
claims of the Indians "who were parties to
the treaty of Buffalo Creek, New York," of
January 15, 1838, to enforce an alleged lia-
bility of the United States for the value of
certain lands in Kansas, set apart for these
Indians and subsequently sold by the United
States, as well as for certain amounts of
monejr agreed to be paid upon their removal.
In its findings of fact the court of claims
decided that tne Indians desoribed in the
jurisdictional act, above referred to as "the
r^ew York Indians, beinff those Indians who
were parties to the treaty of Buffalo Creek,
New York, on the 15th of January, 1838,
were the following : Senecas, Onondagas, On-
onaagas residing on the Seneca reservation,
Onondagas at Onondaga, Ca}rugas, Cayugaa
residing on the Seneca reservation, Cayuga
Indians residing in the state of New York,
Tuscaroras, Tuscaroras residing in the state
of New York, Oneidas residing in New Y'ork,
at Green Bay (Wisconsin), and in the Sen-
eca reservation, Oneidas, St. Regis, St. Regis
in New York, the American party of the St.
Regis resided in the state of New York,
St^ikbridges, Muneees, Brothertowns."
Upon the whole case, however, the court
of claims found as a conclusion of law from
the facts that the Indians had abandoned
their claim, and accordingly dismissed their
760
465-468
SUPBEME COUBT OF THB UimKD BlATEB,
Oct.
petition. On appeal to thlB court, under the
act of Congress above mentioned, the judg-
ment of the court of claims was revers^
(170 U. S. 1 [42: 927]), this court being of
opinion:
1. That the title acquired b^ the Indians
under the trt^sty was a n-ant %n pr<r8enU of
a legal title to a defined tract, described by
metes and bounds, containing 1,824,000 acres
in the now state of Kansas ;
2. That there was no uncertainty as to the
land granted or as to the identity of the
grantees;
S. That the tribes for whom tl-e Kansas
lands were intended as a future home were
the Senecas, Onondagas, Cayugas, Tuscaro-
ras, Oneidas, St. Regis, Stockbridges, Mun-
[466]see8, and Brothertowns, 'residing in the state
of New York, as found in the first finding of
fact hy the court of claims ;
4. That the grant to the Indians was of
the entire tract as specified in article two of
the treaty, and not an allotment to them of
820 acres for each emigrant;
5. That the j^vemment had received the
full consideration stipulated by the treaty,
so far as such consideration was n valuable
one for the Kansas lands, and had neglected
to render any account of the same;
6. That the Indians had neither forfeited
nor abandoned their interest in the Kansas
lands, and that they were entitled to a judg-
ment.
Thereupon the case was remanded to the
court of claims with instructions "to enter
a new judgment for the net amount actual-
ly received by the government for the Kansas
lands, without interest, less any increase in
value attributable to the fact that certain of
these lands were donated for public purposes,
as well as the net amount which the court
below may find could have been obtained for
the lands otherwise disposed of, if they had
all been sold as public lands, less the amount
of land upon the basis of which settlement
was made with the Tonawandas, and less
10,240 acres allotted to the thirty-two New
York Indians as set forth in fin<Ung 12, to-
gether with such deductions as may seem
to the court below to be just, and for such
other proceedings as may be necessary and
in conformity with this opinion.*'
In obedience to this mandate tlie court of
claims on November 14, 1898, made certain
further findings of fact, set forth in the mar-
[4671gin>t luid as a conclusion of law decreed*that
the claimants recover from the United States
the sum of $1,967,056; whereupon the Unit-
ed States took this appeal, and now move
the court that the court of daims be
to further find and certify to this eoort
"First What constituted the
at Onondaga, Onedias at Greeo Bay, Sink
bridges, Munsees^ and Brothertowns,
to the treaty of Buffalo Credc, as
April 4, 1840;
"Second. Whether or not the
Green Bay, Stodcbridges, Muamss, sad j
Brothertowns resided in the state el *X««(<i
York when the treaty of Buffalo Graik
proclaimed, or when they bea
thereto."
MeasTB. lu A. Pimdt, Assistant Attoriy
General, and Charles C. Biaaey for a^
pellant, on motion to dismiss or affirm.
Mr, Jolm K. Biekards, Solicitor G«a-
eral, for appellant, on motion for aa order to
the court of claims to make additionil §mi-
ings of fact.
llesara, Gvioa Miller and J«aas WL
MeGoiram for appellees (m both the iho'it
motions.
*Mr. Justice Brown delivered the opinaCH
of the court:
As a disposition of either one of theM w^
tioni will practically dispose of the OU0.
both may properly be considered loffethcr.
The preamble to the treaty of Buiik
Creek of January 28, 1838 (7 Stat, at L
550) , recites that "the following artids d
a treaty are entered into between the Uiixcd
States of America and the several tribes d
the New York Indians, the names of whMt
chiefs, headmen, and warriors are hereto n^
scribed, and Uiose who may hereafter
to this treaty in writing, within
as the President shall appoint." The
article of the treaty also recites tHat *it a
understood and agreed that the ahott d^
scribed country" (the land ceded) *» a-
tended as a future home for the toQoni|
tribes, to wit: The Senecas, Onoadi^
Gayuffas, Tuscaroras, Oneidas, St. B^
Stockbridges, Munsees, and BrotheriovM it>
sidin£[ in the state oJf New York, sad tk
same is to be divided equally aoKMig thca at*
cording to their respective numbers* as bo^
tioned in the schedule hereunto aaacni*
The treaty purports to be signed bv the keU-
men of the Senecas, Tuscaroras, 6ncidfti ft*
siding in the state of New York a« wdi m
at Green Bay, St. Regis, Onondagas Ttfda$
on the Seneca reservation, the prindosl (^
ondiuni warriors, Cayugas and the prtso-
pal Uayuga warriors ; but the schedw »
mediately following the signatorei, e^
Assuming that the daimsnts were entitled to
1,824,000 acres of lend mider the treatj of
January 15, 1888, the court finds that of these
lands the defendant sold 84,468.20 acres, for
which thej received the sum of $1.26 per acre.
They otherwise disposed of the balance of said
lands In granting the same for public purposes,
and for the lands disposed of for pobllc pur-
poses they could have obtained the sum of $1.25
per acre.
The land at $1.25 per acre amounts to the
sum of $2,280,000. The court '• finding that
770
the defendants could have sold tbe laai itlU*
does not take Into conslderatloa say itamm
value given to such lands becaose of sar <■*-
tlon of land for public purpoeee : aad tbt eitft
finds that the price at which tbe MeeiM^
sold the land was not Increased becam d ^
donation of other lands for poblle psi|**
The court finds that the cost and ezpsMt «'^
veying and plattmg said lands was th* isa «
$45,600. The court finds that tbe stt** ^
seres allowed the Tonawanda band of tkt (H^
ants In the settlement of their dala wm H^*
000 acres, which, at the price of ^^-^JmmiL
1890.
Unitbd States t. Nbw Yobk Ln>iAKa.
4<ttM71
taiiw also tlie names of the Stockbridges^
Munsees, and Brothertowns. The oonimis*
sioner on behalf of the United States certi-
fies that this sdiednle was made before the
jeiscntion *of the treaty^ Following this
there are certain certificates by the commis-
noner to the effect that the treaty was as-
tented to by the Senecas, Tuscaroras, St. Re-
giB,Oneida8,Cayoga8,andOnondaga3. On Jan-
uary 22, 1830, the President sent the treaty
to the Senate with the following message:
To the Senate of the United States:
I transmit a treaty negotiated with the
New York Indiaiis which was submitted to
your body in June last and amended.
The amendments have, in pursuance of the
requirement of the Senate, been submitted
to each of the tribes assembled in council, for
their free and voluntary assent or dissent
thereto. In respect to all the tribes, except
the Senecas, the result of this application
has been entirely satisfactory. Jt will be
seen by the accompanying papers th^t of this
tribe, the most important of those concerned,
the assent of forty-two out of cightv-one
chiefs has been obtained. I deem it advisa-
ble under the circumstances, to submit the
treaty in its modified form to the Senate for
its advice in regard of the sufficiency of the
assent of the S^ecas to the amendment pro-
posed. (Signed) M. Van Buren«
Washington, 21st January, 1839.
The assent of the Senecas having been pro-
eared, the treaty was afterwards ratified.
The question was thus presented to the
court of claims whether tne Stockbridges,
Munsees, and Brothertowns — who did not
actually sign the treaty — gave their assent
and the court of claims found as a fact that
they were actually parties to it. 'Ihere was
certainly some evidence in support of this
finding which also accorded with the opinion
of this court in Felloios v. Blacksmith, 19
How. 366 [16:684], in which an objection
was taken, on the argument to the validity
of the treahr, on the ground that the Tona-
wanda band of the Seneca Indians was not
represented by the chief and headmen of the
band in the n^tiations and execution of
it "But," said the court, ''the answer to
this is, that the treaty, after executed and
1* ratified by the proper authorities of the gov-
ernment, becomes the supreme law of the land,
and the courts can no more go behind it for
the purpose of annulling its ^ect ond opera-
tion than thcj can behind an act of Coa-
gross."
But we are now asked to direct the court
of claims to find:
First. What constituted the Qnondagaa
at Onondaga, Oneidas at Green Bay, Stock-
bridges, Munsees, and Brotherto\fns parties
to the treaty of Buffalo Crc^, as proclaimed
April 4, 1840?
Second. Whether or not the Oneidas at
Green Bay, Stockbridges, Munsees, and
Brothertowns resided in the dtaie of New
York when the treaty of Buffalo Creek was
proclaimed, or when they became parties
thereto?
But if these be material facts, they were
equally so when the findings were made at
the first hearing, and the attention of the
court should have been then called to the
matter, and a more particular finding re-
quested. The motion contemplates an order
upon the court to send up the testimony up-
on which it had found the ultimate fact that
these three tribes were parties to the treaty,
and inferentially for us to pass upon the suf-
ficiency of that testimony to establish such
ultimate fact. If the finding of these probsr
tive facts were deemed material within the
case of United States v. Pugh, 00 U. S. 265
[26 : 322] , application should have been made
when the case was first sent here for a find-
ing of such facts. In the Pugh Case the
court of claims found certain circumstantial
facts, and the question this oourt was called
upon to decide was whether those facts were
sufficient to support the judgment. But
this court did not hold that, where the oourt
of claims was satisfied that the evidence be-
fore it fullv established a fact, it was bound
to insert aU the evidence upon tliat point, if
the losing party thought the court made a
mistake. This court has repeatedly held
that the findings of the court cil claims in an
acticn at law determine all matters of fact,
like the verdict of a jury, and that where
there is any evidence of a fact which they
find and no exception is taken, their finding
is final {Stone v. United States, 164 U. S.
380 [41 : 477] ; Desmare v. United States,
93 U. S. 606 [23: 959]; •Talheri v. United[47l]
States, 166 U. S. 45 [39 : 64] ) ; and in if o-
Clure V. United States, 116 U. S. 146 [29:
572], this court distinctly held that it would
not remand a case to the court of claims with
directions to return whether certain distinct
propositions, in requests for finding of fact
presented to that court at the trial of the
Creek of 1888, as amended and proclaimed, were
the following :
Senecas 2,809
Onondagas on Senecas' reservation 194
Cayngas 180
2,688
Onondagas at Onondaga 800
Tuscaroras 278
Saint Regis In New Tork 850
Oneidas at Green Bay 600
Oneidas in New York 620
Stockbridges 217
Mansces 182
Brothertowns 860
•
Total 6.485
771
lets the proportionate cost and expense of snr-
Teylng and platting, amounts to the sum of
$254,800. The number of acres allotted to the
32 Indians as set forth in finding twelve was
10.840 acres, whfch, at the rate of $1.26 per
acre, less the proportionate cost and expense of
rarveying and platting, amounts to $12,544.
The court farther finds that, after deducting
the costs and expense of surveying and platting
said lands, the amount paid by the defendants
in the settlement with the Tonawanda band and
the value of the allotment to the 82 Indians,
there remains of said $2,280,000 the sum of
11,967,056.
The court further finds: The New York In-
dltni who were parties to the treaty of BulTalo
178 V. M.
471-47ai
SUPBEME COUBT OF THS UNITED STATES.
Oct.
€Me, were established and proved by the evi-
^nce, if it appeared that the object of the re-
quest to have it so remanded was to ask this
court to determine questions of fact upon the
evidence. In The Santa Maria, 10 Wheat.
431, 444 [6 : 359, 362], it was said by Mr. Jus-
tice Story: "We think, therefore^ that upon
principle every existing claim which the par-
tv has omitted to make at the hearing upon
the merits, and before the final decree, is to
be considered as waived by him, and is not
to be entertained in any future proceedings;
and when a decree has been made, which is
in its own terms absolute, it is to be carried
into effect according to those terms, and ex-
cludes all inquiry between the litigating par-
ties as to liens or claims wluch might
have been attached to it by the court, if thev
had been previously brought to its notice. '
See also Hickman v. Fort Scott, 141 U. S.
416 [36: 775].
But it is difficult to see how the proposed
findings, if made, could be deemed material.
This court held that the treaty of Buffalo
Creek was a grant in proMenti of a certain
tract of lands in Kansas, described by metes
and bounds. The second article of the treaty
indicates that the grant was made upon the
bafiis of 320 acres for each inhabitant, the
recital "being 320 acres for each soul of
■aid Indians as their numbers are at present
computed." But the grant was not of 3^0
acres for each soul, but of a tract of land en
hloc. Under the decision of the court a pres-
ent title thereto passed to the Indians. This
being the case, the United States are in no
position to show that the government erred
in its computation of souls, or Ihat certain
tribes who are named in the treaty did not
assent to it. If the land passed under the
treaty, then it is only a question between the
Indians themselves who were signatories
thereto or assented to its terms. The only
object of the proposed order, though it is but
faintly outlined in the briefs, must be to
show that if the Stockbridges, Munsees, and
[472] Brother towns *never assented to the treaty,
the grant should be reduced in the propor-
tion of 320 acres to each member of these
tribes. But this is an indirect attack upon
the decree. The case was remanded to the
court of claims, not to determine who were
actually parties to the treaty, or to recom-
pute the number of souls, or in apy other way
to reduce the extent of the grant, but to ren-
der a judgment for the amount reocived by the
government for the Kansas lands, less an
amount of lands upon the basis of which
settlement had been made with the Tonawan-
das, and less the 10,240 acres allowed to thir-
ty-two New York Indiana, "together with
such other deductions as may seem to the
court below to be just." But there is noth-
ing to indicate that the court of claims was
at liberty to redetermine who were parties
to the treaty, and entitled to the benefit of
its provisions. That question had already
been settled beyond recall. The motion for
additional findings must therefore be denied.
The denial of this motion practically dis-
poses of the appeal, as the action of the court
oelow in its supplemental findings was in
strict conformity with the mandate of this
T7«
court. It found the amount of Und mM ^
the United States, the cost and cxnaue i
surveying and platting sud lands, the bbb^
her of acres allowed to the Tonawanda btai,
the number allotted to the thirty-two I>-
dians, and, after deducting the expesie if
surveying and platting, the amount paid by
the United States in settlement of the Toaa-
wanda band and thirty-two Indiaim then
remained of the value of the land at IllS
per acre the sum of $1,967,056. The eesn
further found who the New York ladiiai
were, who were parties to the treaty, aid u
a conclusion of law judgment was cnt&cd
for the above amount. This court hti re-
peatedly held that a second writ of error
not bring up the whole record for
nation, but only the proceedings »ubaeqaat
to the mandate, and if those proceedinn irt
merely such as the mandate command, aid
are necessary to its execution, the writ d.
error will be dismissed, as any other nk
would enable the losing party to dday tk
issuing of the mandate indefiuiteiv. fte
Santa Maria, 10 Wheat. 431 [6: 359]; Mti^
erts V. Cooper, 20 How. 467 [16: 9€9]; Tr
ler V. Magtoire, 17 WalL 253 [21 : 676] : Hf
•Lady Pike, 96 U. a 461 [24: 672] ; Weywill
County Supervisors v. KennieoH, M U. &
498 [24 : 260] ; Stewart v. 8alamu»», 97 C. &
361 [24: 1004].
In Stewart v. Salamon^ fupra, Hr. Orirf
Justice Waite observed: "An appeal «i£
not be entertained by this court from a ^
cree entered in a circuit or otiicr iafenw
court, in exact accordance with our wiWim
upon a previous appeaL Such a dtom.
when entered, is in dOfect our decree, aad xht
appeal would be from onraelves to cnxwdm.
If such an appeal is takon, howe^rer, we «fl
upon the application of the appellee, cii»
ine the decree entered, and if it eonfonn w
the mandate, dismiss the case with earti.
If it does not, the ease will be remanded wiA
proper directions for the correctioo of tfet «^
ror. The same rule applies to writs of «^
ror." Humphrey v. Baker, 103 U. & TH
[26 : 456] ; Clark v. Keith, 106 U. & «M
[27: 302] ; MackaU T. Richard*, Hi U. &
45 [29:558].
The appeal will therefore be
The Gl&lef Jvstiea, Mr. Jnstiee
and Mr. Justice Bra^
tDAVm BROWN, AppL,
V.
ETHAN A. HITCHOOCK. SecrHaiy rftk
Interior.
(See 8. e Beportefe ed. 47^-l7li)
Swamp land act — qmeetione of titk *»
retary of Interior oammoi he emfotmti.
1. Under the swamp land act the tapl <■*
passes only on delivery of the
fThls case was orlciaalty
Cornelias N. Bliss. Secretary of tkt Utcrte. ft*
whom his sacceseor. Bthaa A. Bitdkaott^ •*
BubseQoently sabetltnted. «
173 1L&
ma.
Brown t. Hitchcock.
474-47(1
1 So long M tbe legal title remains in the
goyemment all Qnestions of right to those
lands should be solyed by appeal to the Land
Department, and not to the coarts.
t. A selection of lands under the swamp land
act by a state, and an approyal of that selec-
tion by the Secretary of the Interior, do not
entitle a purchaser of such lands from the
state to an injunction restraining the Secre-
tary of the Interior and his subordinate offi-
cers from carrying out his orders annulling
the apnroyal of such selection, and receiying
applications and allowing entries of such
Isnds as public lands of the United States.
[No. 681.]
Argued Fehruarif 23, 24, 1899. Decided
April S, 1899,
APPEAL from a decree of the Court of Ap-
peals for the District of Columbia affirm-
ing the decree of the Supreme Court of that
District sustaining a demurrer and dismiss-
ing a suit in equity brought by David Brown,
plaintiff for an injunction restraining the
Secretary of the Interior and the officers of
the Land Department from carrying out cer-
tain orders of said Secretary, and from per-
mitting any entries upon certain lands pur-
chased as claimed by said plaintiff, and
from interfering with him in his title and
ownership oi such lands. Affvrmed,
Statement by Mr. Justice Brewer t
I *0n May 10, 1898, the appellant, as plain-
tiff, filed in the supreme court of the District
of Columbia his Sill, setting forth, besides
certain jurisdictional matters, the swamp
hind act of September 28, 1850; the exten-
sion of that act to all the states by the act of
March 12, 1860; a selection of lands there-
under by the state of Oregon (evidenced by
uhat is called "List No. 5") , and an approv-
al on September 16,1882, of that selection by
the Secretary of the Interior; a purchase in
1880 from the Bt»,te by H. C. Owen, of cer-
tain of those selected lands, and subsequent
conveyances thereof to plaintiff. Then, aft-
er showing the appointment of Hon. William
F. Vilas, as Secretary of the Interior, the
bill proceeds :
'That, as plaintiff is informed and be-
lieves, on the 27th day of December, a. d.
1888, the said Secretary of the Interior, then
the said William F. Vilas, made and entered
an order annulling, canceling, and revoking
the said 'list number 5,' and the approval
thereof, and annulling and revoking the said
ju(kment and determination so made by his
Kiid predecessor in said office, the said Henry
M. Teller, whereby his said predecessor had
adjudged and determined that the lands afore-
said were swamp and overflowed lands with-
in the meaning of the acts aforesaid, and
made and entered an order purporting to ad-
judge and determine that certain of the lands
described in said list number 5' including
the lands hereinbefore described were not
iwarop and overflowed lands within the
meaning of the acts aforesaid.
'That thereafter, as plaintiff is informed
and believes, divers proceedings were taken
before the said Secretary of the Interior and
178 V. S.
in the General Land Office of the United
States by the state of Oregon and b^ the
crantors of this plaintiff to set aside and
have held for naught the orders and rulings
so made •by the said William F. Vilas as such[4761
Secretary of the Interior, which proceedings
came to an end ^within one year last paat.
''That, as plaintiff is informed and be-
lieves, since the said proceedings last afore-
said came to an end, the defenaant, ae such
Secretary of the Interior, is proceeding to put
in force and to carnr out the orders and rul-
ings so as aforesaid made by the said Wil*
liam F. Vilas as such Secretary of the In-
terior and to hold the lands herciifbef ore de-
scribed to be public lands of the United
States and subiect to entry under the laws
ot the United States, and threatens and in-
tends to receive and permit the officers of the
Land Department of the United States to re-
ceive applications for and allow entries of
the lands aforesaid as public lands of the
United States."
After alleging the invalidity of these pro-
ceedings, the bill goes on to aver that the
proceeding thus initiated by Secretory Vilas
throws a cloud upon appellant's title, "and
is likely to cause many persons to attempt to
settle upon the said lands and to enter the
same in the Land Department of the United
States as public lands of the United States
subject to such entry, and that plaintiff will
be unable to remove such persons from said
lands or to quiet his title thereto as against
them witiiout a multiplicity of suits, and
that therefore this plaintiff is entitled in this
court to an order enjoining and restraining
the defendant, as such Secretary of the In-
terior, and his subordinate officers of the
Land Department of the United States, from
in any way carrying said last-mentioned or-
ders and rulings into effect, and from per-
mitting any entries upon said land or hold-
ing ihe same open to entry, and from in any
way interfering with or embarrassing the
plaintiff in his title and ownership of the
lands aforesaid."
Upon these facts plaintiff prayed a decree
canceling the order of December 27, 1888, re-
straining the officers of the Land Department
from carrying it into effect, and forbidding
the defendant and his subordinates from
holding the lands to be public lands of the
United States or subject to entry under the
general land laws. To this bill a demurrer
was filed which was sustained, and the bill
dismissed. Plaintiff appealed to the court
of appeals of the District, and upon an affirm-
•ance of the decree by that court brought the[47«J
decision here for review.
Meaara. W. B. Treadwell and Charles A.
KeigvAn for appellant.
Mr, Willia Van Devanter, Assistant
Attorney General, for appellee.
•Mr. Justice Brewer delivered the opin-[476]
ion of the court :
Under the swamp land act the legal title
passes only on delivery of the patent. So
the statute in terms declares. The second
section provides that the Secretary of the In-
terior, "at the request of said governor [the
773
47(M79
SCPBEME COXTBT OF THE UNITED STATES.
ikrt.
governor of th« state], cause a patent to be
&>eue4 to the state therefor ; and on that pat-
ent, the fee simple to said lands sliall vest in
the said state. (9 Stat, at L. 519, chap.
64; Rogers Locomotive Mach, Works v.
American Emigrant Company, 164 U. S. 559,
674 [41 : 552, 559] ; Michigan Land d Lum-
her Company y. Bust, 168 U. S. 589, 592 [42:
591,502]).
In this case the record discloses no patent,
and therefore no passins of the legal title.
Whatever equitable righu or title may have
Tested in the state, the legal title remained
in the United States.
Until the legal title to public land pas^
from the government inquiry as u> all equit-
able rights comes within the cognizance of
the Land Department. In Unit^ States v.
Schurz, 102 U. S. 378, 396 [26:167, 172],
which was an application for a mandamus
to compel the delivery of a patent, it was
■aid:
''Congress has also enacted a system of
laws by which rights to these lands may be
acquired, and the title of the government
eonveyed to the citizen. Iliis court has, with
a stronff hand, upheld the doctrine that so
long as the legal title to these lands remained
in tiie United States, and the proceedings for
acquiring it were as yet in fieri, the courts
would not interfere to control the exercise
of the power thus vested in that tribunal.
To that doctrine we still adhere."
While a delivery of the patent was or-
[4Tr]dered, yet that was so •ordered because it ap-
peared that the patent had been dul^ exe-
cuted, countersigned, and recorded m the
proper land records of the Land Department,
and transmitted to the local land office for
delivery, and it was held that the mere man-
ual delivery was not necessary to pass the
title, but that the execution and record of
the patent were sufficient. And yet from
that conclusion Chief Justice Waite and Mr.
Justice Swayne dissented. The dissent an-
nounced by the chief iustioe only emphasises
the proposition laid down in the opinion, as
heretofore quoted, that so lonff as the legal
title remains in the government all questions
of right should be solved by appeal to the
Laud Department, and not to the courts.
See, in support of this general proposition,
Miohigmi Land d Lumber Co. v. Rust, supra
(which, like the present case, arose under
the swamp land act), and cases cited in
the opinion. Indeed, it may be observed
that the argument in behalf of appellant
was avowedly made to secure a modification
of that opinion. We mi^ht well have dis-
posed of this case by a simple reference to
that decision; but in view of the earnest
challenge by counsel for appellant of the
views nierein expressed, we nave re-exam-
ined the question in the light of that argu-
ment and the authorities cited. And after
eudi re-examination we see no reason to
•change, but on the contrary we reaffirm the
decision in Michigan Land d Lumber Co, i
Rust, As a general rule no mere matter or
administration in the various executive de-
partments of the government can, pending
such adminiatration, be taken away from
such departments and carried into the
774
courts; those departments must be
ted to proceed to the final accomplisiuwBt at
all matters pending before them, and oaly
after that disposition may the eourti be ia-
vokcd to inquire whether the ooteone ts ii
accord with the laws of the United Slate.
When the legal title to these laadi ^aJI
have been vested in the state oi Orcgaa, m
in some individual claiminj^ a ri^it sf iia
to that of the state, then is inquiry penua*
sible in the courts, and that inquiry wiQ a^
propriatejy be had in the oonrta of '^
state or Federal.
We do not mean to say that
not arise in which a party is justified ia
coming into the courts of the Dis&ict to '
sert his rights as against a*proceeding in thf
Land Department, or when the d<a>aitji— t
refuses to act at all. United Stmtm r.
Schure, supra, and Noble v. Union Mimt
Logging Railroad Co. 147 U. 8. 166 [Tt
123], are illustrative of these rfprpHnaii
cases.
Neither do we affirm that the adniaistn-
tive riffht of the departments in refereact to
proceedings before them justifies actki
without notice to the parties interested, of
more than the power of a court to d
lep^l and equitable rights permits
without notice to parties interested.
"Power of supervision and oorreetioa ii
not an unlimited or an arbitrary puva.
It can be exerted onl^ when the entry wm
made upon false testimony or withovt la-
thority of law. It cannot be exercised m m
to deprive any person of land lawfully m-
tered and paid for. By such entry aad pif-
ment the purchaser secures a vested iBftMC
in the property and a right to a patent tk«r
for, and can no more be deprived ol it fay o^
der of the commissioner than he can bs ir
prived by such order of any other lavfolljf
acquired property. Any attempted dipn-
vation in that way of sudi interest wfii fat
corrected' whenever the matter is prcMMnl
so that the judiciary can act upoa it*
{Cornelius v. Kessel, 128 U. S. 456, 461 [S
482, 484]. "The government holds the M
title in trust for him, and he may not fa*
dispossessed of his equitable rights wxttet
due process of law. Due process in sock mm
implies notice and a hearing. But this 4mi
not require that the hearing must be ia :^
courts, or forbid an inquiry and dctanaiM-
tion in the Land Department.** Ortkmi t-
Alea>ander, 157 U. S. 372, 383 [59: TT.:*!'
But what we do affirm and rettcrsK a
that power is vested in the departacatt »
determine all questions of equitable njtta «
title, upon proper notice to the parta* »
terested, ana that the eourts must, as s f^^
eral rule, be resorted to only wbea the h^
title has passed from the mcfnnmm^
When it has so passed the lit^ratioa «9I
proceed, as it generally ought to proctid, is
the locality where the property is •ttvta
and not hm, where the adminiiirativt fiv-
tions of the government are earrfied oa.
In the case before us there is nocUar *',^
show that proper *notice was not fi»« : tto«"
all parties in interest were not f^Dj hmr^
or that the adjudication of the adviairtiS'
tive departaient of the ttcff^mmeat «w ^
iT»ir.4
IBM.
Allen t. Southsbn PAomo R. Co.
•i<U-4dl
Justified by the facts as presented. The
naked proposition upon which the plaintiff
relies is that upon the creation of an equita-
ble right or title in the state the power of
the Land Department to inquire into the va-
lidity of that right or Utle ceases. That
proposition cannot be sustained. Whatever
rights, equitable or otherwise, may have
pused to the state bv the approval of List
Mo. 5 by Secretary Teller, can be determined,
and should be determined, in the courts of
Oregon, state or Federal, after the legal title
has passed from the governn^ent. The de-
cree of the Supreme Court of the District of
Columbia, sustained by the opinion of the
Court of Appeals of the District, was right,
and is a/ffrmed.
Mr. Justice MoKemm takes no part in
the decision of this case.
DARWIN 0. ALLEN, Plff. in Err.,
V,
SOUTHERN PACIFIC RAILROAD COM-
PANY.
(See 8. a Reporter's ed. 479-492.) '
Time of allowance of torit of error to state
court — deoMton upon grounds independent
of Federal question — pou)er to review,
1. A writ of error from this court to a state
court may be allowed within two years from
the final decree. This rule was not changed
by the 6th section of the act of 1891.
3. When the state court decided the esse upon
sofflcient grounds wholly independent of the
Federal questions inyolved, this court will
not consider such Federal questions.
S. When the decree of the state court is ade-
quately sustained by an independent, nonfed-
eral question, there Is no issue presented on
the record which this court has power to re-
Tlew.
[No. 144.]
Argued January 17, 1899, Decided April 3,
1899.
IN ERROR to the Supreme Court of the
State of California to review a jud^^^ent
of that court afTirming the judgment of the
trial court condemning the de&ndant, Dar-
win C. Allen, to pay certain instalments up-
on contracts for the sale of land within a
certain time, or that he be forever barred
and foreclosed of all right or interest in said
lands, and that said contracts be declared
void, in an action commenced by the South-
em Pacific Railway Company, plaintiff,
against Darwin C. Allen. Dismissed for
want of jurisdiction.
See same case below, 112 Cal. 455.
Statement by Mr. Justice White t
I *This suitjoonunenced by the Southern Pa-
cific Conopany (the defendiant in error here),
against Darwin 0. Allen, who is plaintiff in
error, was based on eighty-four written con-
tracts entered into on the first day of Febru-
ary, 1888. All these contracts were made
178 V. M.
exhibits to the complaint and were exaotty
alike, except that each contained a descrip*
tion of the particular piece of land to whidi
it related. By the contracts the Southern
Pacific Company agreed to sell and Darwin
C. Allen to buy the land described in eadi
contract upon the following conditions: Al-
len paid in cash a stipulated portion of the
purchase price and interest at seven per cent
In advance for one year on the remainder.
He agreed to pay the balance in five years
from the date of the contracts. The de-
ferred payment bore interest at seven per
centum per annum, which was to be paid at
tlif end of each year. He moreover bound
himself to pay any taxes or assessments
which might DC levied on the property. The
contracts provided:
''It is fiurther a^eed that upon the puno^
ual payment of said purchase money, interest^
taxes, and assessments, and the strict ana
faithful performance by the party of the sec-
ond part (Allen, the purche^ser), his lawful
representatives or assigns, of all the agree-
ments herein contained, the party of the first
part (the Southern Pacific Company) ^^irill,
after the receipt of a patent therefor from
the United States, upon demand and the sur-
render of this instrument, execute and de-
liver to the party of the second part, his
heirs and assigns, a grant, bargain, and sale
deed of said nremises, reserving all claim of
the United States to the same as mineral
land."
There was a stipulation that the pur-
chaser should have a right to enter into pos-
session of the land at once, and by which lie
boimd himself until the final deed was ex-
ecuted not to injure the property by denud-
ing it of its timber. The contracts con-
tained the following:
''The party of the first part (the Southern
Pacific Company) claims all the tracts here-
inbefore described, as part of a grant of
lands to it by the Congress of the United
States; that patent has not yet issued to it
for said tracts ; that it will *use ordinary dil-[48l]
igence to procure patents for them; that, as
in conseouence of circumstances beyond its
control, it sometimes fails to obtain patent
for lands that seem to be legally a portion of
its said grant, therefore nothing in this in-
strument shall be considered a guaranty or
assurance that patent or title will be pro-
cured; that in case it be finally determined
that patent shall not issue to said party of
the first part for all, or any, of the tracts
herein de:icril)ed, it will, upon demand, re-
pay (without interest) to the party of the
second part all moneys that may have been
paid to it by him on account of any of such
tracts as it shall fail to procure patent for,
the amount of repayment to be calculated at
the rate and price per acre, fixed at this data
for such tracts by said par^ of the first part,
as per schedule on page 8 hereof; that said
lands being unpatented, the party of the first
part does not guarantee the possession of
them to the party of the second part, and will
not be responsible to him for damages, or
cost, in case of his failure to obtain and keep
such possession."
It was averred that after the execution of
T76
ldi-404
Supreme Coxtbt of the United Statk&>.
Oct. Tibi,
the contracts Allen, the purchaser, had en-
tered into possesflion of the various tracts of
land, and so continued up to the time of the
conunencement of the suit. The amount
claimed was three annual instalments of in-
terest on the deferred price which it was al-
lied had become due in February 1889, 1890,
and 1891. The prayer of the complaint was
that the defendant be condemned to pay the
amount of these respective instalments with-
in thirty days from the date of decree, and
in the event of his failure to do so that him-
self, his representatives and assigns, "be for-
ever barrea and foreclosed of all claim, right,
or interest in said lands and premises under
and by virtue of said agreements, and be for-
ever barred and foreclosed of all right to con-
veyance thereof, and that said contracts be
declared null and void."
The defendant, whilst admitting the ex-
ecution of the contracts, denied that he had
ever taken possession of any of the land, and
charged that the contracts were void because
at the time they were entered into and up to
.the time of the institution of the suit the
sdler had no ownership or interest of an^
[482]*kind in the land, and therefore that no obli-
gation resulted to the buyer from the con-
tracts. By way of cross-complaint it was
alleged that the defendant had been induced
to enter into the contracts bv the false and
fraudulent representations oi the complain-
ant that it had a title to or interest in the
property ; that, in consequence of the error of
fact produced bj these misrepresentations of
the plaintiff, the defendant had paid the cash
portion of the price and the interest in ad-
vance foroneyeiiron the deferred instalment;
that, owing to the want of all title to or in-
terest in the land on the part of the complain-
ant, the defendant had been unable to take
possession thereof, and that some time after
the contracts were entered into the defend-
ant had an opportunity to sell the land for a
large advance over the amount which he had
agreed to pay for it, which opportunity was
lost in consequence of the discovery of the
fact that the complainant had no title what-
ever to the property. The prayer of the
cross-complaint was that the moneyed de-
mand of the plaintiff be rejected; that the
contracts be rescinded, and that there be a
judgment against the plaintiff for the
amount paid on account of the purchase price
and for the damage which the defendant had
suffered by reason of his failure to sell the
property at an advanced price. The com-
plainant put the cross-complaint at issue by
denying that it had made any representa-
tions as to its title to or interest in the land
except as stated in the contracts. It denied
that at the time of the contracts it had no in-
terest in the land, or that the defendant had
been prevented from taking possession or
had been prevented from selling at an ad-
vanced price because of a want of title. Up-
on these issues the case was heard by the
trial court, whidi made a specific finding of
fact embracing, among other matters, the
following: That the contracts sued on had
been entered into as alleged and the instal-
ments claimed thereunder were due despite
demand; that no representations had been
776
made by the plaintiff as to its title
than those which were recited in the
tract; that the defendant had not kwt the
opportunity to 8ell at an adTanced price, u
alleged in the cross-complaint. *As to t^
title to the land embiaced in the eontracti,
the facts were found to be as follows:
''That the lands and premises therciB de-
scribed were portions of the public 6amum
of the United States and were granted to
plaintiff by an act of the Congress of tte
United States, entitled 'An *Act GrmatiM
Lands to Aid in the Construction of a Raif
road and Telegraph Line from the States if
Missouri and Arkansas to the Pacific Gout'
approved July 27, 1866. That all of aid
lands, save sec. 5, in township 23 mmtk,
range 19 east, M. D. M., are situated witkii
a belt more than 20 miles and less than M
miles from plaintiff's railroad, genenHy
Imown as the indemnity belt; the said Mt.
o being within 20 mile9 of said railroad.
"That the loss to plaintiff of oddnumbmd
sections within said granted limits, i e., vit^
in 20 miles of said railroad, becau^ of tW
various exceptions and reservations in mii
act provided for, is fully equal to all tW
odd-pumbered sections within said indaaatj
belt
"That on March 19, 1867, an order wm
made by the Secretary of the Interior of tte
United States withdrawing or pnrportiag te
withdraw from sale or settlement ondcr ti^
laws of the United SUtes, all of said laa^
situated in said indemnity belt ; and that •
Auffust 15, 1887, another order was nadtlf
said Secretary of the Interior, revokiag, m
purporting to revoke, said ftrst-naaied ords,
and restoring said lands to the publie ir
main for the usual sale and settlement thov*
of. The first said order of withdrawal is mC
forth in vol. — of 1)eci8ion8 of the SecreUr;
of the Interior' at p. — ,and the said mtmi
order in vol. 6 of said 'Decisions' at pp.84-tt;
and which said orders as so set forth art ha«
referred to, and make a part of this fadiif-
That plaintiff is the ovmer of said laadi n
fee under the provisions of said act of de-
gress;, that patents or a patent therefor ksn
not yet been issued to plaintiff by the fi^
emment of the United SUtes; that it mi
not been finally determined that paUiti «
a patent shall not issue therefor, or for UT
part thereof, but proceedings are now pcM-
ing before the proper department of the fct-
emment of the United StAtee, institntfd kj
plaintiff, to obtain patents or *a patent i«r(lH
said lands and premises, and the whole tb«^
of. That plaintiff has not been guilty of tif
want of ordinary diligence in institntiaf c
prosecuting said proceedings to obtain »^
patents or patent."
There was a decree allowing the prsftr d
the complaint and rejecting that of the cnt^
complaint. On appeal the ease was M
heard in Department No. 1 of the supn**
court of California, and the decree of tte
trial court was in part reversed. In ubk^
ance with the California practice the ctv*
was transferred from the court in dfpsrt*
ment to the court in banc, where the dctf^
of the trial court was affirmed. (US(^
1898.
AlLBN V, BOUTHBRK PACIFIC R. CO.
484^487
455.) To this decree of affirmance this writ
of error is prosecuted.
Measn, WUImr F. Zeisler and Edward
B. Taylor for plaintiff in error.
Messrs, Maxwell Evarts and William
F. Herrin for defendant in error.
M] *Mr. Justice White, after making the
foregoing statement, delivered the opinion of
the court:
It is asserted that the record is not legally
in this court because the writ of error was
allowed by the chief justice of the state aft-
er the expiration of the time when it could
have been lawfully granted. It was allowed
within two years of the decree by the state
court, but after more than one year had ex-
pired. The contention is that writs of error
from this court to the courts of the several
states cannot now be lawfully taken after
the lapse of one vear from the final entry of
the decree or judgment to which the writ of
error is directed.
This rests on the assumption that the act
of March 3, 1801 (26 Stat, at L. 826), not
only provides that writs of error or appeals
in cases taken to the Supreme Court from
the circuit courts of appeals created by the
act of 1891, shall be limited to one year, but
also fixes ihe same limit of time for writs
of error or appeal in cases taken to the Su-
SSlprcme Court from the 'circuit and district
courts of the United States, thereby repeal-
ing the two years' limitation as to such cir-
emt and district courts previously estab-
lished by law. (Rev. Stat. § 1008.) As
this asserted operation of the act of 1891
produces a uniform limit of one year for
writs of error or appeals as to all the courts
of the United States, in so far as review in
the Supreme Court is concerned, the deduc-
tion is made that a like limit necessarily
applies to writs of error from the Supreme
Court to state courts, since such state courts
arc (Rev. Stat. § lOOU) subject to the
limitation governing judgments or decrees of
"a court of the United States." The portion
of the act of 1891 from which it is claimed
the one year limitation as to writs of error
and appeal from the Supreme Court to all
the courts of the Uniced States arises is the
last paragraph of section 6 of that act. The
section of the act in question in the portions
>vhich precede the sentences relied upon,
among other things, defines the jurisdiction
of the circuit courts of appeals established
by the act of 1891, and determines in what
classes of cases the jurisdiction of such courts
is to be final. After making these provi-
sions the concluding part of section 6 pro-
vides as follows:
*1n all cases not hereinbefore, in this sec-
tion, made final, there shall be of right an
appeal or writ of error or review of the case
by the Supreme Court of the United States
where the matter in controversy shall exceed
one thousand dollars besides costs. But no
such appeal shall be taken or writ of error
sued out unless within one year after the en-
try of the order, judgment, or decree sought
to be reviewed."
It is apparent that the language just
173 V. ■•
quoted relates exclusively to writs of error
or appeal in cases taken to the Supreme
Court from the circuit courts of appeals.
The statute, in the section in question, hav-
ing dealt with the jurisdiction of the circuit
courts of appals and defined in what classes
of cases their judgments or decrees should
be final and not subject to review, follows
these provisions by conferring on the Su-
preme Court the power to review the judg-
ments or decrees of the circuit courts of ap-
peals, not made final by the act. To con-
strue the section as relating to or controlling
the review by 'error or appeal, by the Su-[4861
preme Court, of the judgments or decrees of
circuit or district courts of the United
States, would not only disregard its plain
letter but do violence to its obvious intent.
Relating only, then, to writs of error or ap-
pesd from the Supreme Court to the circuit
courts of appeals, it follows that the limita^
tion of time,* as to appeals pr writs of error,
found in the concluding sentence, refers only
to the writs of error or appeal dealt with by
the section, and not to such remedies when
applied to the district or circuit courts of the
United States, which are not referred to in
the section in question. This is made mani-
fest by the statement, not that all appeals or
writs of error to the Supreme Court from all
the courts oi the United States shall be taken
in one year, but that "no such appeal shall
be taken unless within one year," etc. If
these words of limitation were an independ-
ent and separate provision of the act of 1891,
thereby giving rise to the implication that
the words "no such appeal or writ of error"
qualified and limited every such proceeding
anywhere referred to in the act of 1891, the
contention advanced would have more appar-
ent force. As, however, this is not the case,
and as, on the contrary, the words "no such
appeal or writ of error" are clearly but a
portion of section 6, it would be an act of
the broadest judicial legislation to sever
them from their connection in the act in or-
der to give them a scope and significance
which their plain import refutes, and which
would be in conflict with the meaning nat-
urally begotten by the provision of the act
with which the limitation as tq time is as-
sociated. Nor is there anything in section
4 of the act of 1891, destroying the plain
meaning of the words "such appeal or writ
of error" found in the concluding sentence of
section 6. The language of section 4 is aa
follows :
"All appeals by writ of error or otherwise,
from said district courts, shall only be sub-
iect to review in the Supreme Court of the
United States or in the circuit court of ap-
peals hereby established, as is hereinafter
provided, and the review, by appeal, by writ
of error or otherwise, from the existing cir-
cuit courts shall be had oi;ly in the Supreme
Court of the United States or in the circuit
courts of appeals hereby established *accord-[487]
ing to the provisions of this act regulating
the same."
This section refers to the jurisdiction of
the courts created by the act of 1891, r.nd to
the changes in the distribution of judicial
power made necessary thereby. If the con-
777
487-489
SUFBEME GOXTBT OF THE UkITED StATB8.
Occ
dudini^ words of section 4, ''according to the
proyiflions of tliis act re^plaiing the same,"
were held to govern the time for writs of er-
ror or appeal to the Supreme Court from the
district or circuit courts of the United
States, the argument would not be strength-
ened, since there is no provision in the act
governing the time for such writs of error or
appeal. The contention that Congress can-
not be supposed to have intended to fix two
distinct and different limitations for review
by the Supreme Court, one of two years as
to the circuit and district courts of the
United States, and the other of one year as to
the circuit courts of appeals, affords no groimd
for disregarding the statute as enacted, and
departing from its unambiguous provisions
upon the theory of a presumed intent of Con-
gress. Indeed, if it were conceded that the
provisions of section 4 referred to the pro-
cedure or limit of time in which appeals or
writs of error could be taken, in cases brought
to the Supreme Court, fr<Hn the circuit or dis-
trict courts of the United States, such con-
cession would be fatal to the contention which
we are considering, for this reason. The
concluding portion of section 6 of the act of
1891 is as rollows:
"Nothing in this act shall affect the juris-
diction of the Supreme Court in cases I4»-
pealcd from the h&hest court of a state, nor
vie construction of the statute providing for
review of sudi cases."
Whilst this language clearly relates to ju-
risdictional power, and not to the mere time
in which writs of error may be taken, yet the
same reasoning which would impel the con-
cession that section 4 related to procedure
and not tojurisdictional authority would give
rise to a like conclusion as to the provision
in section 6 just quoted. It follows, there-
fore, that the only reasoning by which it is
possible to conclude that the act of 1891 was
intended to change the limit of time in which
writs of error could issue from the Supreme
{488]Court to the circuit *or district courts,
or in which appeuls could be taken from such
courts to the Supreme Court, would compel
to the conclusion that the act of 1891 had ex-
pressly preserved the two years' limitation
of time then existing as to writs of error from
state courts to the Supreme Court.
From Uie conclusion that the sixth section
of the act of 1891 did not change Uie limit
of two years as regards the cases which could
be taken from the circuit and district courts
<^ the United States to the Supreme Court,
it follows that the act of 1891 did not operate
to reduce the time in which writs of error
could issue from the Supreme Court to the
state courts. That period was two years, in
analoffy to the time limit established by stat-
ute with reference to writs of error to the dis-
trict and circuit courts of the United States,
which courts, at the time of the passage of
the act of 1891, answered to the designation
of "a court of the United States" contained
in section 1003 of the Revised Statutes, regu-
lating the subject of writs of error to state
courts. The circumstance that Congress, in
creating a new court of the United States,
s^&xed a different limitation as to the time
for prosecuting error to such court and left
TT8
unchanged the limitatiiMi as to the
within which error mipht be prosecuted t»
the courts whose practice in this particular
governed the practice in state courts, irraiist-
ibly warrants the inference that it
tended that the practice in the state
to the time of suing out writs of
continue unaltered The writ of error in thii
case having been allowed within two yeui
from the iuial decree, was therefore
ably taken.
We are brought, then, to consider
there arises on the record a Federal
within tiie intendment <^ Revised
§ 709. The claim is that two distinct FM-
eral issues are presented by the record or sit
necessarily involved therein. They sit:
First. That by a proper oonstmetioii ol tibt
act of Congress granting land to the raHitsi
(14 Stat at L. 292, chap. 278), no title to
lands which were beyond the yUmce limits, bet
in the indemnity limits, paued to the rsil-
road until approved sdeenons of such kaii
had taken place, hence that it was not mif
drawing in i^uestion the validity of aa ss-
thority exercised *under the United Ststei^fl
but also denying a privilege or iimimity
claimed under Uie statute of the Uaitod
States to decide that the railroad bad bcfwi
such approved selection any right to oaatnet
to sell the lands in question. Second TWt
it was drawing in question the validityof ss
authority exercised under a law of the Uaitri
States, and denying a privUeee or imaiMity
claimed under such law to hold that tbe rifkt
of the railroad to the lands in quertioe W
not been irrevocably adversely deisfiMi
by the action of the »ecretai^ of the iBtmr.
revoking his previous action withdrawiir
such lands, even although at the time of warn
cancelation of the prior general withdned,
there were pending in the Land DepaitBOt
daims of the railroad to the land in iiMtiw
which at that time were not finally dispMi'
of.
Conceding argttendo only that the amim
tions thus advanced wonld give rise to tit
Federal questions as clain£d« it bseoav
wholly unnecessary to consider them if it ki
disclosed by the record that the state eoart
rested its decision upon g^unds whoHj i»
dependent of these contentions, and wUek
pounds are entirely adequate to svstais t^
judgment rendered by the state eoort with-
out considering the Federal questioet »
sorted to arise on the record. MeQwtit ▼
Trenton, 172 U. a ft36 [ofife. 581] : CkpM
Bank v. Cadiz Bank, 172 U. S. 425 [«»l<. StBT
In inquiring whether this it the esit «
are unconcerned with the oondmioas of tk
trial court, or with those of a departacst «f
the supreme court of California, and tomtke
only tne final action of the supreme eovt ^
tiie stato in disposing of the eontroveny v*
before us. A reference to the opinioa d tti
supreme court of California makes psMtf
the fact t&at that court rested its dtcW«
solely upon a construction of the ooeinft
and therefore that it decided tht «•
upon ^rounds wholly indepeodent of At
Federiu questions now danned to k it^
volved The court held that the eontrartii»
closed that both parties dealt with •^*""''
1898.
Mbdbttbt t. Unitbd States.
489-41i»2
to the ezistiiiff state of the title to the lands,
the vendor seUing his hope of obtaining title
and the vendee buying such expectation;
that the result of the contract was that the
vendor in advance agreed to sell such title,
0]if any, as he might obtain *in the future, and
that the rendee agreed for the sake of ob-
taining in advance the right to the title, if
the vendor could procure it, to pay the
amonnt agreed upon, subject to the return
of the price in the event it should be finally
delennined that the hope of title in the ven-
dor, as to which both parties were fully in-
formed, should prove to be illusory. On
these subjects the court said:
**The defendant further contends that the
contracts were void ah initio, for want of mu-
tuality or consideration, or amounted at
most to mere offer to purchase on his part.
This contention cannot be sustained. Plain-
tiff didbmed title to these lands, but its title
had not been perfected by patent. Defend-
ant had the same opportunity as plaintiff of
knowinff the nature and probable validity of
that daim. Under these circumstances
plaintiff agreed to convey to defendant
when it should obtain a patent, and to per-
mit defendant to enter into possession of
thf land at once. In consideration of these
premises defendant agreed to purchase when
a patent ehould be issued, paid at once one
fifth of the purchase price and one year's in-*
terest on the balance and agreed to pay the
remainder (with interest thereon annuallv
in advance) on or before a ffiven date, with
the right to a repa^ent wi^out interest in
the event of an ultimate failure. to obtain a
patent These promises were strictly mu-
tual, and each constituted a sufficient consid-
eration for the other. Plaintiff by its con-
tract surrendered its right to contract with
or sell to any one else, and yielded to defend-
ant the present right to possession which it
claimed. 'These concessions were clearly a
detriment to plaintiff, and, in a legal sense,
an advantasfe to defendant; and they, there-
fore, furnish a consideration for defendant's
promise to pay."
Upon the question of the final determina-
tion of the hope of title upon which the re-
turn of the price was by the contract made to
depend, the court concluded as follows:
**The only question really involved in the
ca^ is as to the construction of the contracts
sued upon. It is contended by the defendant
that he was under no obligation to purchase
the land or to pay the remainder of the pur-
IJchase price, unless the ^plaintiff should, vnth-
in the five years, obtain a patent for the
land ; and that, as the plaintiff had failed to
obtain a patent within that time, and as the
action was not tried until after the expira-
tion of that time, the defendant was entitled
to a rescission of the contract But clearly
the contracts will not bear any such con-
stmction. The defendant contracted uncon-
ditionally to pay the remainder of the pur-
chase pnce ^n or before' a certain dav
named, and to pay interest annually in ad-
vance on the remainder; but the plaintiff
eontracted to convey to defendant only 'upon
the receipt of a patent,' and was to repay
the money only 'm case it be finally deter-
178 V. S.
mined that patent shall not issue.' The de-
fendant, therefore, was not entitled to ter-
minate the contraict or to reouire a repay-
ment of the moneys paid, untu the Question
of the issue of a patent to the plaintin should
be 'finally determined.' The findings state
that proceeding are now pending in the
United States I«and Department for the is-
sue of patent to the plaintiff, and that it has
not been finally determined that such patent
shall not issue. At the time, therefore, at
which defendant contracted to pay the bal-
ance of the purchase price, plaintiff was not
in default, nor was it in default at the tinM
of the trial."
We cannot say that the state court has er-
roneously construed the act of Congress,
since its decree rests alone upon the conclu-
sion reached by it, that by the contracts be- '
tween the partie« there existed a right to re-
cover, whatever may have been the existing
state of the title. The conclusion that the
parties were competent to contract vrith ref-
erence to an expectancy of title involved no
Federal question. The decision that the fi-
nal determination of title, referred to in the
contracts, related to the proce^ngs in the
Lund Department which were pending at
the time the contracts were entered into and
not to the cancelation by the Secretary of the
Interior of the withdrawal order, which had
been made by that ofiioer before the date of
the contracts, precludes the conception that
the state court erroneously denied the legal
consequence fiowing from the order of with-
drawal. It follows then that as the decree
of the court below was adeouately *sustained[498]
bv an independent non-Federal question,
tnere is no issue presented on iAie record
whidi we have the power to review, and the
cause is therefore aiamisaed for want of /ii>
risdiotion*
I^UCETTA R. MEDBURY, Appt.,
UNITED STATES.
(See 8. C. Reporter's ed. 492-600.)
Jurisdiction of the court of claims — act of
June 16, 1880 — recovery hack of moneys
paid for public lands.
1. The court of claims has Jurisdiction by the
act of March 8, 1887, of a claim founded
upon the act of June 16, 1880, for the repay-
ment of $1.26 per acre to the purchaser of
public lands for which he has paid double
minimum price, which have been found after-
wards not to be within the limits of a rail-
road land grant.
2. The act of 1880 refers to a mistake in loca-
tion when the entry was made.
8. Where, at the time the entry was made and
the double minimum price paid for the lands,
they were within the place limits of a rail-
road grant, and eighteen years thereafter the
lands were forfeited to the government be*
cause the railroad was not built, the pur-
chaser cannot recover back from the govern-
ment the $1.26 per acre under the act of 1880.
[No. 226.]
T79
492, 493
SUFBEMX COUBT OF THE UNITED STATES.
Oct. Teem.
Argued March 17, 1899. Decided April 3,
1899.
APPEAL from a judgment of the Court of
Claims dismissing for want of jurisdic-
tion the claim of Lucetta R. Medbury
against the United States for the recovery
ba(^ of half the double minimum price paid
for public lands entered when they were
within the limits of a railroad land grant
which was afterwards forfeited. Judgment
modified and as modified affirmed.
Statement by Mr. Justice PeoU&amt
The appellant herein filed her petition in
the court of claims and sought to recover
judgment by virtue of the provisions of the
act approved June 16, 1880, chap. 244 (21
Stat, at L. 287 ) .
The Attorney General denied all the alle-
gations of the petition, and the case was
tried by the court upon the following agreed
statement of facts: Congress made a erant
of lands to the Wisconsin Central Railroad
Company by the act of May 5, 1864, chap. 80
( 13 Stat, at L. 66) , which contained the con-
dition that the railroad should be built as
therein providcKi. After the grant the price
of the lands reserved within its place limits
[493] was- raised from $1.25 per acre to $2.50 *per
acre under the authority of law and by the
direction of the Secretary of the Interior.
In 1872, one Samuel Medbury made an en-
try of more than seven thousand acres of
land, within the place limits of that grant
and at the double minimum price of $2.50
per acre, and he died in 1874, leaving his
widow, the appellant herein, and a son and
daughter, who subsequently conveyed to the
appelant all their interest in the claim here-
in made.
The conditions upon which the grant of
lands was made to that particular section
of the proposed railroad were never complied
with and the proposed railroad was never
constructed, for which reason the grant was
by the act of Congress of September 29, 1890
(26 Stat, at L. 496), forfeited to the United
States. By reason of this failure to build
the railroad, and because of the forfeiture
of the land srant by Confess, the lands
purchased by Medbury ceased to be alternate
sections of land within a railroad land grant,
although they were such when he purchased
them. Thereafter, and on the 14th of No-
vember, 1894, Lucetta R. Medbury, as the
widow and heir of Samuel Medbury, made
application to the Secretary of the Interior
for the repayment of the excess of $1.25 per
acre upon the seven thousand and odd acres
of land entered by her husband, the applica-
tion beinff made under the second section of
the act of June 16, 1880, chap. 244 (21 Stat,
at L. 287), and on October 5, 1897, the ap-
plication was denied by the Secretary. Up-
on these findings of fact the court of claims
decided, as a conclusion of law, that the pe-
tition should be dismissed for want of juris-
diction. From that decision the daimant
has appealed to this court.
Messrs. Bvssell DvaneyHarTey Spald-
ing, and B. W. Spalding for appellant.
780
Mr. Georee Hiaea
A. Pradt, Assistant Attorney General, for
appellee:
The court of claims had no jurisdictioa to
entertain this action for the reaaon tlut tkt
same is founded solely and exdusivdy npoa
a legislative act, which provides the namij
and the manner of its enforcemiBt at Hie
same time that it creates the rij^; aad tht
right so created can only be enforeed is tkt
exact manner provided u the statnte.
Wells V. Pontotoc County Supers. 102 U.
S. 625, 26 L. ed. 122; Janney v. BueiL ii
Ala. 408; PhUUps v. Ash, 63 Ala. 414: ITo^
lister V. Uollister Bank, 2 Keyes, 2^ ; Dick-
inson V. Van Wormer, 39 Mich. 141; Satket-
land, Stat. Constr.
The creation of a new jurisdietMa is mC
to be presumed, in thp absence of adeyiiti
language.
Warwick v. White, Bomb. 106; Kit^s Cem,
1 Barn. & C. 107 ; Reg. v. Haines, 2 Ld. Rsts.
1269 ; Ex parte Story, L. R. 3 Q. R Div. lit:
James v. Southwestern R. Co. L. K.7 Enk
296; Streat v. Rothschiid, 12 Daly, 95; If
Contested Election of McNeiU, 111 Pi.
235; Druse v. Uorter, 57 Wis. 644; Re B«r-
som, 39 Me. 476 ; Pitman v. Flint, 10 Pkk.
506.
Nor will a construction be adopted wkkk
enlarges the jurisdiction of courts, in the s^
sence of express words or necessary iapiies-
tion.
Ex parte Story, L. R. 3 Q. B. Div. 1«:
Kit^s Case, 1 Bam. ft C. 107 ; Thomat t
Adams, 2 Port. (Ala.) 188: Orove v. 8eked
Inspectors, 20 111. 532 ; Thompson ▼. Osa,
53 N. C. (8 Jones, L.) 311; Dnm v.
Barter, 57 Wis. 644 ; DaffU t. Btmte, 11 To.
Apg. 76.
Nothing is to be taken by intendmort. aal
only such jurisdiction is given as is set foftl
plainly and expressly.
Clyde V. United States, 13 Wall. 39, M L
ed. 481 ; Finn v. United Stages, 123 U. S.
227, 31 L. ed. 128; SchiUimger v. VmM
States, 155 U. 8. 163, 39 L. ed. 108; fo psrit
Greene, 29 Ala. 61.
Statutes which create liabOitiei
none existed before are always strictly
strued,andthe liability will never
beyond the plain and express proriiioM d
the statute.
Re Hollister Bank, 27 N. Y. 393 ; Ookm t.
Neeves, 40 Wis. 393 ; .1/over v. Pemmsfkeam
Slate Co, 71 Pa. 293 ; Lane's Appeal, W H
49. 51 Am. Rep. 166; Detroit v. CW**- **
Mich. 80; Detroit v. Putnam, 45 Mick iC»
The language of the statute is not $\mnl
but special, and limited to the Seerctirr d
the Interior and the General Land Ofea
But even if it had been general, it tbeM kt
remembered that language thov^ sfftr
ently general, may be limited in it> offfs-
tion and effect, where it may be fstkfW
from the object and purpose of tW ^^^
statute that the language was deuswJ is
apply only to certain persons or tkiact. v
was to operate only unaer certain coaditiMi
or to be enforced only bv certain ofli(cr«.
McKee v. United Staltes, 164 U. S. tT. 41
L. ed. 437 ; Jones v. Jones, 18 Me. 309: JTif^
ray v. Gibson, 15 How. 421. 14 L. <d TSS.
179 V.&
1898.
Mbdbuby t. United States.
498-496
Bretcer v. Blougher, 14 Pet. 198, 10 L. ed.
417; United States v. Saunders, 22 WalL
492, 22 L. ed. 736 ; Torrance v. MoDougald,
12 6a. 526; Chreenhow v. James, 80 Va. 636.
•
>3] *Mr. Justice PeoUiam, after stating the
facts, delivered the opinion of the court:
Two questions arise in this case: (1)
Whether the court of claims had jurisdiction
of the claim; and (2) whether, if it had,
what is the true construction of the act of
JuDC 16, 1880, requiring the repayment to
the purchaser of the excess of $1.25 per acre
4]* where the land purchased has afterwards
been found not to he within the limits of a
railroad land grant.
The ground upon which the learned court
of claims decided that it had no jurisdiction
in the case was that the remedy afforded hy
the act of 1880 to obtain the repayment of
the excess of the price was exclusive of any
other. Thus if the Secretary of the Interior
erroneously construed the act and refused
payment in a case where the claimant was
justly entitled thereto, under ite provisions,
the claimant would be without redress, even
thouf h there were no dispute in regard to
the Kicts, and the decision of the S^retary
was a plain mistake in regard to the law.
In this construction as to the jurisdiction
of the court of claims, we are unable te
agree.
The first section of the act of June 16,
1880, chap. 244, does not refer te such a case
as this. Section 2 of that act reads in full
as follows:
"In all cases where homestead or timber
culture or desert land entries or other en-
tries of public lands have heretofore or shall
hereafter be canceled for conflict, or where,
from anv cause, the entry has been errone-
ously allowed and cannot be confirmed, the
Secretary of the Interior shall cause to be
repaid to the person who made such entry,
or te his heirs or assigns, the fees and com-
missions, amount of purchase money and ex-
cesses paid upon the same, upon the surren-
der of liie duplicate receipt and the execu-
tion of a proper relinquishment of all claims
to said land, whenever such entry shall nave
been duly canceled by the Commissioner of
the General Land Office, and in aU cases
where parties have paid double the minimum
price for land iohich has afterwards been
found not to be within the limits of a rail-
road land grant, the excess of one dollar and
twenty-five cents per acre shall in like ma/n-
ner be repaid to the purchaser thereof, or to
his heirs or assigns."
Section 3 authorizes the Secrete ry of the
Interior to make the paymente provided for
in the act out of any money in the Treasury
cot otherwise appropriated, and by section 4
the Secretery is autnorized to draw his war-
rant on the Treasury in order to carry the
provisions of the act into effect.
I] *The portion of section 2, which is in ital-
ics, is the part of the act upon which this
claim is founded. The (question is whether
the court of claims has lurisdiction in this
case upon the facte found.
By the act of March 3, 1887 (24 Stat, at
L. 505), the court of claims is given juris-
173 V. 8.
diction to hear and determine, among other
things, all claims founded upon any law of
Congress. As the claim in this case ia
founded upon the law of Congress of 1880,
it would seem that under this grant of ju-
risdiction the court of claims had power to
hear and determine the claim in question.
The act of 1887 was not, however, the first
act giving jurisdiction to the court of claims
in regard to a law of Congress. It had the
same power when the case of Nichols v. Unit'
cd States, 7 Wall. 122 [19: 125], was de-
cided, and a question of jurisdiction arose in
that case. It there appeared that Nichols
Sc Company were merchante in New York,
and they made in 1847 an importetion from
abroad upon which duties were imposed on
the quantity invoiced. The importation con-
sisted of casks of liquor, and a portion of
the liquor had leaked out during the voyage,
and was thus lost, and consequenOy was never
imported in fact into the United Stetes. Not-
withstending these circumstances Nichols ft
Company paid the duties as imposed under
the invoice, and without any deduction for
leakage, and made no protest in the matter.
An act of Congress of February 26, 1845,
provided that no action should be mainteined
against any collector to recover duties paid
unless a protest had been made in
writing and signed by the claimant at the
time of the payment. Where a protest
had been made the importer could thereafter
bring a suit against the collector for a recov-
ery of the money so paid, and the suit would
be tried in due course of law. The importers
having made no protest, and being therefore
unable under the provisions of tne law to
brine suit against the collector, brought suit
in the court of claims to recover back the
overpayment, upon the ground that the court
had power to hear and determine all claims
founded upon anv law of Congress, or upon
any regulation of the executive department,
or upon any contract, express or implied,
with the government of the *United Stetes.[496]
This court held that the court of claims had
no jurisdiction, and in the course of the opin-
ion of the court, which was delivered by Mr.
Justice Davis, and in giving the grounds
upon which the court denied jurisdiction, it
was said :
''Congress has from time to time passed
laws on the subject of revenue, which not
only provide for the manner of its collection,
but also point out a way in which errors can
be corrected. These laws constitute a sys-
tem which Congress has provided for the ben-
efit of those persons who complain of illegal
assessmente of texes and illegal exactions of
duties. In the administration of the teriff
laws, as we have seen, the Secretery of the
Treasury decides what is due on a specific
importation of goods, but if the importer is
dissatisfied witH this decision, he can con-
test the question in a suit aeainst the col-
lector, if, before he pays the duties, he tells
the officers of the law, in writing, why he
obiecte to their payment."
And again the court said:
"Can it be supiposed that Congress, after
having carefully constructed a revenue sys-
tem, with ample provisions to redress wrons,
40e-499
SuPBCMK GousT or THE UirxTSD States.
OOT. Temu,
intended to ffire to the taxpayer and im-
porter a farther and different remedy? The
mischiefs that would result, if the aggrieved
party eonld disregard the provisions in the
system designed expressly for his security
and benefit, and sue at any time in the court
of claims, forbid the idea that Congress in-
tended to allow any other modes to redress
a supposed wrong, in the operation of the
revenue laws, than such at are particularly
given by those laws."
The system spoken of in the opinion pro-
vided a general scheme for the collection of
the revenue, and also provided adequate
means for the correction of errors by a resort
to a suit in a court of law prosecuted in the
ordinary way. While it gave rights, it pro-
vided a special but full and ample remedy
for their infringement It certainly could
never be presumed that Conflpress, while thus
furnishing an adequate metnod for the cor-
rection oferrors^ intended that the party ag-
grieved miffht refuse to follow such reme<fy
and resort u> some other and different mode
of relief. It is quite plain that the remedy
thus specially indicated was exclusive, and
[407] that the act ffiving * jurisdiction to the court
of claims had no application. The principle
asserted in the case cited has no application
to this case.
Although the right to recover back the ex-
cess of payment in this proceeding is based
upon the statute of 1880, we do not think it
comes wiUiin the principle of those cases
which hold that where a liability and a rem-
edy are created by the same statute, the rem-
edy thus provided is special and exclusive.
In this case it is not a right and a remedy
created by the same statute. The statute
creates tne right to have repajinent under
the facts therein stated, but it ffives no rem-
edy for a refusal on the part of the Secretary
to comply with its provisions. The person
has the fight under the act to obtain a war-
rant from the Secretary of the Interior for
the repayment of the excess therein men-
tioned, and for the purpose of obtaining it he
must make his application and prove the facts
whidi the statute provides, and then the Sec-
retary is to draw nis warrant on the Treas-
urv. This constitutes the right of the ap-
pellant. Applying for the warrant is not a
remedy. When application for repayment is
made there is notning to remedy. He has
not been wronged. A right of repayment of
money theretofore paid has been given by the
act, but it is only under the act that the
right exists, and that .right is to have the
Secretary in a proper case issue his warrant
in payment of tne claim, and until he refuses
to do so, no wrong is done and no case for a
remedy is presented. After the refusal, the
question then arises as to the remedy, and
you look in vain for any in the act itself.
We cannot suppose tliat Conffress intended
in such case to make the decision of the Sec-
retary final when it was made on undisputed
facts. If not, then there is a remedy in the
court of claims, for none is given in the act
which creates the right. The procedure for ob-
taining the repayment as provided for in the
act must be followed, and when the applica-
tion is erroneously refused, the party
78e
wronffed has his remedy, but that remedy Is
not furnished by the same statute which
gives him the right.
If there were any disputed <|uestions of fact
before the Secretary his decision in regard
to those matters would probably *be condn-[4M]
sive, and would not be reviewed in any court.
But where, as in this ease, there is no dis-
puted question of fact, and the decision turns
exclusivel/ upon the proper construction of
the act of Congress, the decision of the See-
retary refusing to make the pavment is not
final, and the court of claims has jurisdi^
tion of such a case.
We have been referred to no ease in this
court which holds views contrary to those
herein presented. We do not mean by this de-
cision to overrule or to throw doubt upon thm
general principle that where a special right
is given by statute, and in that statute a
special remedy for its violation is provided,
that in such case the statutory remedjr is thm
only one, but we hold that such principle has
no applicTition to this particular statute, be-
cauee the statute does not, in our judgment,
within the meaning of the principle men*
tioned, furnish a remedy for a refusal to
grant the right given by the statute.
This case bears more resemblance to
United Btates^ v. Kaufman, 96 U. S. 667 [24:
792] ; and United States v. Beat Estate 8av
inge Bank, 104 U. S. 728 [26: 908], than it
does to NiohoU v. United States, 7 Wall.
122 [19: 125].
In United States v. American TohaoooOom'
pany, 166 U. S. 468 [41: 1081], the stotute
permitted the holder of stamps whidi he had
paid for and not used, and which were spoiled
or destroyed, etc, to apply to the Commis-
sioner of Internal Revenue to redeem or make
allowance for such stamps. Application was
so made, but the Commissioner refused to re-
deem or make the allowance because of other
facts stated in the case. The applicant filed
his petition in the court of claims, and that
court gave him judgment which was here af-
firmed. It is true that no question of juris-
diction was raised, but if the case at bar was
properly decided by the court below, the court
in that case had no jurisdiction, because the
right to obtain redemption or pavment was
given by the same statute which provided
the procedure to secure it, and the so-called
remedy would have been exclusive in that
case, as it is held to be exclusive in this.
The party had to apply to the Commissioner
and to comply with r^ulations, etc, all of
which was but a part of the ri^ht which was
granted, and when the Commissioner *erro-[4M1
neously refused to make the redemption as
provided for by the statute, the claimant,
founding his claim upon a law of Oongrese,
pursued his only remedy in the oourtof efaima,
and obtained it without any question of in-
risdiction. We think the couix had jurisoic-
tion in that case, and that it also existed in
this.
We oome now to the question as to the true
construction of the act itself, and wheth«> it
is applicable to the facts in this case.
It IS conceded by the appellant that at the
time the entry was made and the double min-
imum prioe paid for t^e lands, they were
173 V. S.
BlTTHB y. HiMOKLKY.
5o4-oi;i
erred that section 671 of the CiTil Code
ilifomia, providing that "any person,
ler citizen or alien, may take, hold, and
M of property, real or personal, within
tater' and section 672, providin^^: "If
Tesident alien takes by succession, he
appear and claim the property within
ears from the time of succession, or be
1;" w^-e void as to aliens, because en-
unents upon the treaty-making power
United States, and in conflict with sec-
en of article one of the Constitution
United States, and with section 1978
Revised Statutes, and that therefore
courts were without jurisdiction; and
liat when the state courts adjudged in
fit Florence because of Blythe's action
section 1387 of the Code, reading,
r illegitimate child is an heir of any
who, in writing, signed in the pros-
f a competent witness, acknowledges
f to be the father of such child," that
1 was made to operate in favor o^ Flor-
itside of the geographical jurisdiction
>imdaries of California, and, as thus
1, was in violation of section ten, ar-
mt, oi the Federal Constitution, and
ion 1978 of the Revised Statutes, and
ision of the iurisdiction of interna-
intercourse, wherefore the adjudication
ithout * jurisdiction; and complain-
rther said that sections 671, 672, and
' the Code were in conflict with trea-
'ween the United States and Russia,
Switzerland, and England, and with
istitution of the United States; and
tiat the circuit court had jurisdiction
? ground that the construction and
tion of the Federal Constitution are
.1 as well as on the ground of diverse
hip of the parties, and because said
of said Civil Code violated the Fed-
letitution as herein stated." On the
ly, December 22, 1897, the final de-
-» entered in the case, the third para-
f which was as follows: "That the
'complaint' of the complainants,
. Blythe and Henry T. Blythe, filed
r 3d, 1895, and also the 'amended
it' of said complainants, filed Decem-
, 1895, and also the 'second amended
)leroental bill in equity' of said com-
s, filed January 14th, 1897, and
complainants' third amended and
>ntal dUI, filed by leave of court this
!)ecember, 1897, after the rendition
cision of the court upon the matters
ed herein, but before the signing of
ee, be, and the same are each here-
y dismissed as against each and all
rties named therein respectively as
IS, and in all respects and in every
r, for want of either Federal or
risdiction and without prejudice to
ante' right to bring or maintain an
law."
this decree John W. Blythe and
Blythe prayed an appeal to this
lich was allowed and oond given
1898, and on the same day the cir-
e fileid a certificate, certifying "to
me Court of the United States pur-
he judiciary act of March 3, 1891,
»
U. S., Book 43.
60
fifteen questions of law, which it was stated
arose "upon the face of said third amended
and supplemental bill and upon said motion"
namely the motion to dismiss.
The first ten of these questione
set forth that the circuit court sus-
tained the motion to dismiss for want of ju-
risdiction to entertain the suit> and ordered
it to be dismissed accordingly. The remain-
ing five contained no statement as to their
disposition.
*It appears from the opinion of the circiiit[506]
judffe that the various bills were dismissed
on the grounds : First, that the Jurisdiction
of the circuit court could not '^ main-
tained because the state court, in the exer-
cise of ite general jurisdiction, determined
the eligibility of the defendant Florence to
inherit an estate which that court was called
upon to distribute under the laws of the
state; and that "the other propositions con-
tended for by complainants are for the same
reason deemed insufficient to take this case
out of the general rule that after a court of
a state, wiUi full iurisdiction over property
in its possession, has finally determined aU
rights to that property, a court of the United
States will nol entertain jurisdiction to an-
nid such decree and disturb rights once defi-
nitely determined."
Second, that the remedy of complainants,
if any, was at law, and not in equity.
Messrs, W. H. H. Hart, Frederick D»
MoKennoy, Robert T. Hayae, Jol&a
Garber, and A. B. Cottoii for appellees, in
favor of motion to dismiss or affirm.
Messrs, 8. W. Holladay, E. B. Holla*
day, Jefferson Chandler, and I«« D. Mo-
Kisioktfor appellants in opposition to mo-
ticn.
*Mr. Chief Justice Fnller delivered the[506]
opinion of the court:
We have heretofore determined that review
by certificate is limited by the act of March
3, 1891, to certificates by the circuit courts,
made after final judgment, of a question in
issue as to their own jurisdiction; and to
certificates bv the circuit courts of appeal of
questions of law in relation to which the ad-
vice of this court is sought. United States
V. Rider, 163 U. S. 132 [41: 101].
Appeals or writs of error may be taken di-
rectly from the circuit courts to this court in
cases in which the jurisdiction of those courts
is in issue, that is, their jurisdiction as Fed-
eral courts, the question alone of jurisdic-
tion being certified to this *court. The cir-[507]
cult court held that the remedy was at law
and not in equity. That conclusion was not
a decision that the circuit court had no ju-
risdiction as a court of the United States.
Smith V. McKay, 161 U. S. 355 [40: 731] ; *
Blythe Company v. Blythe [mem.] 172 U. S.
644 [post, — ].
The circuit court dismissed the bills on an*
other ground, namelv, that the judgments of
the state courts could not be reviewed by that
court on the reasons put forward. This, also,
was not in itself a decision of want of juris-
diction because the circuit court was a Fed-
eral court, but a decision that the circuit
785
5Ul-du-i
Supreme Coubt of the Ukiteo Stated.
Oct.
ick W. Hinckley, and the Blythe Company,
all citizens of California, which alleged that
complainants were owners as tenants in com-
mon of the real property described therein,
and that the defendants, ''and each ol them,
claim that they have or own adversely to
plaintiffs some estate, title, or interest in
said lands; but plaintiffs allege that said
claims of defendants are false and ground-
less and without warrant of law, and their
dnims to said lands are a cloud upon plain-
tiffs' title thereto." Then followea an
amended complaint, which repeated the alle-
gations of the original complaint, with some
other averments, among them, "that at the
[502]*time of the commencement of this suit
neither one of the parties was in possession
of said lands or any part thereof. There-
after a ''second amended and supplemental
bill in equity" was filed, which, among other
things, set forth that Thomas H. BlyUie was
the owner of the real estate described at the
time of%his death; that he died in the city
and county of San Francisco, April 4, 1883,
being a citizen of the United States, and of
the state of California, and a resident of said
chy and county; and that "after the death
of said Thomas H. Blythe, as hereinbefore al-
lied, the public adniinistrator of the city
and county of San Francisco took charge of
the estate of said Blythe and entered upon
the administration of the same;" that Flor-
ence Blythe Hinckley was borne in England,
the child of an unmarried woman; that the
mother w:is a British subject ; that Florence
remained in England until after the death of
Thomas H. Bl;^he, when and in 1883, she
came to California, being then an infant ten
years old, and "ineligible to become a citizen
of the United States;" and that she was
"when she arrived in California a nonresi-
dent alien."
It was then averred that the laws in force
in California in 1883 relating to the rights
of foreigners and aliens to take real estate
by succession as heirs at law of a deceased
citizen of the state of California, were the
treaty of 1704 between His Britannic Ma-
jesty and the United States, the naturaliza-
tion laws of the United States, and section
seventeen of article one of the Constitution
of California of 1879, which was made man-
datory and prohibitory by section twenty-
two; that there were at the death of Blythe
certain law^ in force in said state, to wit,
sections 23U and 1387 of the Civil Code, pro-
viding for the adoption and legitimation,
and institution of heirship, of illegitimate
children; that there was not at any time
during lilythe's lifetime any law in force in
England under or by force of which he could
have legitimated the said Florence or made
her his heir at law, or under which he coiild
have absolved the said Florence from al-
legiance to her sovereign, or, without bring-
ing said Florence into California, have
changed her status from a subject of Eng-
land to that of a bona fide resident of Cali-
fomia.
[503] *It was further alleged that on a direct
proceeding in the superior court of San
Francisco, sitting in probate, brought on be-
784
half of said Florence to determine the
tion of heirship, and to which actioaaai
proceeding ccmiplainants appeared, ^apa^
and cont^ting her application, that coot
adjudged in favor of Florence, asd "dcdM.
in sul^tance and effect, that said Thorau E
Blythe had in his lifetime adopted and kcrt-
imated the said Florence;" that froB tist
decree complainants appealed to the npnai
court of tne state, and that eoort *iB fs^
stance and effect, decided that said Thanu
H. Blythe did not adopt or legitimate tW
said Florence under or in conformity witk
said section 230 of the Civil Code, hot thit
he had constituted her his heir under aai
pursuant to the provisions of sectifla 1387
of said Civil Code." And it was charfEtf
that neither the superior court nor the f>>
preme court had jurisdiction to reader jadf-
ment in the matter, and that the dedsioa of
the supreme court was in violatioo of tb
Constitution of the state of California, oi
inconsistent with numerous former demni
of that court.
Tlie bill then set forth that said Fkvnaet
filed in the superior court in the matter d
the estate of Thomas H. Blythe a pctitin
for distribution, to which complaiaaati up-
peared, and the court on hearing graated i
decree of partial distribution, which on-
plainants charged was void for want ol ju-
risdiction; that thereafter and after tk
marriage of said Florence to dtfeadiit
Hinckley, she filed in the saperior eovt hm
petition for final distribution of the ciUtc
which was resisted by complainants, k«t ite
court entered thereon a decree ol final d»
tribution, which complainanta charged «■•
void for want of jurisoiction.
It was further stated that when the onfv
nal bill was filed neither p*rty wis ia pi*-
session of the land described, bat tlHU tk
same was in the possession of the pabtie sl-
ministrator of said city and county of Sti
Francisco, and that since then Fktnnct M
secured and was now in poeseasioa d tto
property. The bill prayed for a deem fuel-
ing complainants' alleged title; for aa ■^
counting as to rents uui profits; for s r^
oeiver: and for general relief.
*Af ter the filing of the second aaended uC i
supplemental bill, Mrs. Hinckley wtomi ^
dismiss the suit for want of j«ritdkti«^
which motion was sustained \fy the cin^
judge, for reasons givm in an optni« W
December 6, 1897. 84 Fed. Rep. S4a
After the court ordered the ^umktd rf
the suit, the record shows that lean ««
given to complainants *Ho amend their hiT
upon tiie unaerstanding that it voaU s^
necessitate any further arguBMot, M tkffU
be subject to the prior motioa to di«UM tk
f^econd amended and supplcoioBtal hill a>*
to the order for a final decree entcrfd tkn-
on." Accordingly, on December ft, M
complainants filed thdr "third lamili'l "^
supplemental bill in equity." TUs fcffl ^
Bubstantiallv the same as that immtiiit^
preceding, though it set op reesoa* vl? ■*
action at la^ would not be aa ado^mit t^
edy, and amplified certain matters slkfi^*
bear on the juriedictioii of the elate emrt*^
1898.
Bltthb y. Himoklky.
5o4-oi;i
It ATerred that section 671 of the Civil Code
of California, providing that "any person,
whether citizen or alien, may take, hold, and
dispose of property, real or personal, within
this state;** and section 672, providing: "If
a nonresident alien takes by succession, he
must appear and claim the property within
fire years from the time of succession, or be
barred;" w^-e void as to aliens, because en-
croachments upon the treaty-making power
of the United States, and in conflict with sec-
tion ten of article one of the Constitution
of the United SUtee, and with section 1978
of the Bevised Statutes, and that therefore
those courts were without jurisdiction; and
also that when the state oourta adjudged in
favor of Florence because of Blythe's action
under section 1387 of the Code, reading,
'nSvery illegitimate child is an heir of any
person who, in writing, signed in the pres-
ence of a oompetent witness, acknowledges
himself to be the father of such child,'* that
section was made to operate in favor of Flor-
ence outside of the geographical jurisdiction
and boundaries of California, and, as thus
applied, was in violation of section ten, ar-
ticle one, of the Federal Constitution, and
of section 1978 of the Revised Statutes, and
an invasion of the iurisdiction of interna-
tioial intercourse, wherefore the adjudication
'sras without * jurisdiction; and coinplain-
tnts further said that sections 671, 672, and
1387 of the Code were in conflict with trea-
ties between the United States and Russia,
France, Switzerland, and England, and with
the Constitution of the United States; and
hence that the circuit court had jurisdiction
*'on the ground that the construction and
application of the Federal Constitution are
involved as well as on the ground of diverse
citizenship of the parties, and because said
section of said Civil Code violated the Fed-
eral Constitution as herein stated." On the
same day, December 22, 1897, the flnal de-
cree was entered in the case, the third para-
graph of which was as follows: "That the
original 'complaint* of the complainants,
John W. Blvthe and Henry T. Blythe, flled
December 3a, 1895, and also the 'amended
complaint* of said complainants, flled Decem-
ber 12th, 1895, and also the 'second amended
and supplemental bill in equity* of said com-
plainants, filed January 14th, 1897, and
also the complainants* third amended and
supplemental Dill, filed by leave of court this
22d of December, 1897, after the rendition
of the decision of the court upon the matters
determined herein, but before the signing of
this decree, be, and the same are each here-
by, finally dismissed as against each and all
of the parties named therein respectively as
defendants, and in all respects and in every
particular, for want of either Federal or
equi
comp
action at law.*'
From this decree John W. Blythe and
Henry T. Blythe prayed an appeal to this
court, which was allowed and bond given
Blarch 2, 1898, and on the same day the cir-
cuit judge filed a certificate, certifying "to
the Supreme Court of the United States pur
Lty iurisdiction and without prejudice to
iplainants* right to bring or maintain an
fifteen questions of law, which it was stated
arose "upon the face of said third amended
and supplemental bill and upon said motion"
namely the motion to dismiss.
The first ten of these questione
set forth that the circuit court sus-
tained the motion to dismiss for want of ju-
risdiction to entertain the suit> and ordered
it to be dismissed accordingly. The remain-
ing five contained no statement as to their
disposition.
*It appears from the opinion of the cireiiit[506]
judffe Uiat the various bills were dismissed
on tne grounds : First, that the Jurisdiction
of the circuit court could not '^ main-
tained because the state court, in the exer-
cise of ite general jurisdiction, determined
the eligibility of the defendant Florence to
inherit an estate which that court was called
upon to distribute under the laws of the
state; and that "the other propositions con-
tended for by complainants are for the same
reason deemed insufficient to take this case
out of the general rule that after a court of
a state, wim full iurisdiction over property
in its possession, has finally detennined aU
rights to that property, a court of the United
States will not entertain Jurisdiction to an-
nul such decree and disturb rights once defi-
nitely determined."
Second, that the remedy of complainants,
if any, was at law, and not in equity.
Messrs, W. H. H. Hart, Frederlok D»
MoKennoy, Robert T. Hayae, Jol&a
Garber, and A. B. Cotton for appellees, in
favor of motion to dismiss or affirm.
Messrs, 8. W. HoUaday, E. B. Holla*
day, Jefferaon Chandler, and I«« D. Mo-
Kiaioktfor appellants in opposition to mo-
ticn.
*Mr. Chief Justice Fuller deHvered the[506]
opinion of the court:
We have heretofore determined that review
by certificate is limited by the act of March
3, 1891, to certificates by the circuit courts,
made after final judgment, of a question in
issue as to their own jurisdiction; and to
certificates bv the circuit courts of appeal of
questions of law in relation to which the ad-
vice of this court is sought United States
V. Rider, 163 U. S. 132 [41: 101].
Appeals or writs of error may be taken di-
rectly from the circuit courts to this court in
cases in which the jurisdiction of those courts
is in issue, that is, their jurisdiction as Fed-
eral courts, the question alone of jurisdic-
tion being certified to this •court The cir-[507]
cuit court held that the remedy was at law
and not in equity. That conclusion was not
a decision that the circuit court had no ju-
risdiction as a court of the United States.
Smith V. McKay, 161 U. S. 365 [40: 731] ; •
Blythe Company v. Blythe [mem.] 172 U. S.
644 [post, — ].
The circuit court dismissed the bills on an*
other ground, namelv, that the judgments of
the state courts could not be reviewed by that
court on the reasons put forward. This, also,
was not in itself a decision of want of juris-
diction because the circuit court was a Fed-
sYiant to the judiciary act of March 3, 1891,** eral court, but a decision that the circuit
173 V. 8. U. S., Book 43. 50 785
«I7-<MA»
SUPBBMS COUBT OF THE UlOTB) STATXS.
was unable to erant relief because of
• Judgments render^ by tbose other courts.
If we were to take jurisdiction on this
eertifioate, we could only determine whether
the circuit court had jurisdiction as a court
of the United States, and as the decree rested
on no denial of its jurisdiction as such, but
was rendered in the exercise of that jurisdic-
tion, it is obvious that this appeal cannot be
maintained in that aspect.
Nor can we take jurisdiction on the ground
that the case involved the construction or ap-
Slication of the Constitution of the United
tates, or that the validity or construcion of
a treaty was drawn in question, or that the
Ck>n8titution or law of a state was claimed to
be in contravention of the Constitution of the
United States, within the meaning of the ju-
diciary act of March 3, 1891.
The circuit court by its decree passed on
none of these matters, unless it might be said
that they were indirectly involved in holding
the judgments of the state courts to be a
bar; ana, moreover, the decree rested on the
independent ground that the remedy was at
law.
Even if the decree had been based solely
on the binding force oi the state judffpoents,
still we cannot hold that an appesd directly
to this court would lie.
The superior court of San Francisco was a
court of general jurisdiction, and authorized
to take original jurisdiction "of all matters
of probate,'^ and Uie bill averred that Thcmiaa
H. Blythe died a resident of the city and
county of San Francisco and left an estate
therein; and that court repeatedlv decreed
£508]*that Florence was the heir of Thomas H.
Blythe, and its decrees were repeatedly af-
firmed by the supreme court of tfie state.
So far as the construction of the state stat-
utes and state Constitution in this behalf
by the state courts was concerned, it was not
the province of the circuit court to re-exam-
ine their conclusions. As to the question of
the capacity of an alien to inherit, that was
necessarily involved in the determination by
the decrees that Florence did inherit,andthat
judgment covered the various objections in
respect of section 1978 of the Revised Stat-
utes, and the tenth section of article one of
the Constitution of the United States, and
any treaty relating to the subject.
We are not to be understood as intimating
in the least degree that the provisions of the
California Code amounted to an invasion of
tiie treaty-making power, or were in conflict
with the Constitution .or laws of the United
States, or any treaty with the United States ;
but it is enough for the present purpose that
the state courts had concurrent jurisdiction
with tbe circuit courts of the United States,
to pass on the Federal questions thus inti-
mated, for the Constitution, laws, and treaties
of the United States are as much a part of
the laws of every state as its own local laws
and Constitution, and if the state courts
erred in judgment, it was mere error, and not
to be corrected through the medium of bills
such as those under consideration.
Appeal 4i9mi$9ed.
786
JAMES NICQL^
JAMES AMES, United Statas
O
(OriginaL)
B» parte: In the Matter of GiEOBCM X.
NICHOLS, PeiUk
EDWIN S. SKILLSN, AppL,
o.
JOHN C. AMES, United States 3fAnhal, tfta.
CHARLES H. INGWERSEX, Flf, ia Ar,
V.
UNITED STATES.
(See 8. a Reporter's ed. 60»-5S7.>
War revenue act — prormons of^
gal — power of Congreee — ioM o»
sales, a duty or ewciee upon the
s<iles of nierchandise at ai»
formity of tax — written
he made -sales at stodt yard*.
1. Under the act of Jime IS, 180& to
means to meet war expeaditnres. a
a board of trade selling for iouMdlmtt
erj prodncts or merchandise wltlMvt
a memorandum, or maklac a
bot omitting to pat stampa oa tt« or
a sale for future delivery ajsd (alUac t» pat
stamps on the memoraDdnm, wttk latott m
evade the provlalons of the act, — Is giOtr ei
a misdemeanor.
2. A seller at stock yards, deUrerlac a
randnm but omitting to aflx tbm
to, with like Intent, Is also gollty of a
meanor.
8. Said act of Jone IS, 189S. Is aot Ukm^
Imposing a direct tax. or because tkt &■■
not apportioned as regnlred by tke
tlon ; or becanae the tax lapoaed Is a
tax oo documents not required by tkt
law to render the aale ralld : or becaasi
grass has no power to require a wrttta
orandnm to be made la order to plaei a
thereon.
4. In searching for proptf SQbJeets of
to raise moneys for the support ef
ment. Congress has a right to
manner In which the boslneas of the
la transacted : and this coart has tht m^
to consider such facts without
proof of thMH.
5. The tax Is a duty or exclae laM
priTllege, opportunity, or faeOtty
boards of trade or exdianges ter tht
action of the bualnesa meatkMMd la tl
and Is not a direct tax wtthla the
the Conatltutlon.
6. A sale at an exchange fOnas a
for classification which exdvdai
elsewhere from taxation; ajsd the
tlon being proper and legal, tlisw Is thtf
formity which the Coastltutloa
7. Nor Is there a want of
the tax Is Imposed on those oaly whe
such sales, and not on those
chases ; and upon those wk
1896.
NiooL T. Ambs.
509-511
or merehandlse. and not tboie who Mil bondi.
•todu, etc
•. Congren hM power to require the written
memorendnm to be made as a means for Iden-
tifying the sale and for coUeeting the tax by
means of the required stamp, and for that
purpose to secure by proper penalties the mak-
ing of the memorandum.
•. The statute covers sales made at union
stock jards ; It Is a **slmllar place*' to an ex-
change or board of trade within the meaning
of the statute.
[Ko8. 435, 4 Original, 625, and 636.]
Argued and Submitted Decmnher IS, H,1898.
Decided April S, 1899.
The first of the above-named cases is an ap-
Sal from an order of the Circuit Court of
e United States for the Northern District
of Illinois discharging a writ of habeas
corpus and remanding the petitioner, James
Nicol, to the custody of the marshal under a
conviction for violation of tbe war revenue
act for selling, at the Chicaffo Board of
Trade, certain merchandise without making
a memorandum or bill of such sale, as re-
quired by said act. Affirmed,
The second of said cases, No. 4 Original,
U an apj^lication for leave to file a petition
for a writ of habeas corpus to bring before
the court the petitioner, G^rge R. Nichols,
who was convictod under said wet of Conffress
for sellinfl merchandise at said Board of
Trade, and making and delivering a bill and
memorandum of the sale without affixing the
S roper internal revenue stamps thereon. Pe-
iUon for writ of habeas corpus denied,
Tlie third of safd cases. No. 625, is an ap-
peal to tbis court from an order of tbe said
circuit oourt of the United States discharg-
ing a writ of habeas corpus and remanding
to custody the petitioner, Skillen, who was
convicted for nelling merchandise at said
Board of Trade, and unlawfully failing and
refusinff to make and deliver to the buyer
any bill or memorandum as required by said
revenue act. Affirmed.
The last of said above cases, No. 636, is a
writ of error to the United States District
Court for the Northern District of Illinois
to review a conviction of said Charles H. Ins-
wersen for making a sale of certain cattle
at said stock yards and delivering the same
without making any written memorandum,
etc, as required by said revenue act Af-
firmed,
The above cases were all considered to-
gether.
Statement by Mr. Justice PeeUiams
[610] *These cases involve the validity and con-
struction of some of the provisions of sec-
tion 6, and a portion of schedule "A," there-
in referred to, of the act of Congress ap-
proved June 18, 1898 (30 Stat at L. 448),
entitled *'AnAct to Provide Ways and Means
to Meet War Expenditures, and for Other
Purposes,*^ commonly spoken of as the War
Kevenue Act The cases come before the
court in this way:
No. 435 is an appeal to this court from an
173 V. M.
order made by the circuit court of tbe Unit*
ed States for the northern district of Illi*
nois, discharging a writ of habeas corpus
and remandinff the petitioner to the custo^
of the marshiu. The petition to the circuit
oourt for the writ alleged that the petitioner
Nicol had been convicted in the United
Suites court for the northern district of Illi-
nois, upon an information dulv filed charg-
ing him with selling, at the Cnicago Board
of Trade and at its rooms, two carloads of
oats, '"'without then and there making and
delivering to the buyer any bill, m^noran-
dum, agreement, or other evidence of said
sale, showing the date thereof, the name of
the seller, the amount of the same, and the
matter or thing to which it referred, as re-
quired by the act of Conffress," above men-
tioned, lie was sentencea to pay a fine and
to be imprisoned until paid. He refused to
pay, and was taken into custodv hj the mar-
shal. That part of the act referring to the
making and delivering of a bill or memoran-
dum, etc., the petitioner claimed was uncon-
stitutional. Tlio circuit court, after arffu-
rocnt, held the law valid and the conviction
legal.
No. 4 Original is an application to tliii
oourt for leave to file a petition for a writ
of habeas corpus to brinff before the court
the petitioner George R. Nichols, and for a
rule requirinff the marshal for the northern
district of Unnois, in whose custodv the pe-
titioner is, to show cause why the writ
should not issue. The petition states that
Nichols was convicted and sentenced, under
the act of Congress above mentioned, upon
an information filed in the district court of
the United States for the northern district
of Illinois, for selling at the Chicago Board
of Trade, of which he was then a m^ber,
for immediate delivery, to one Roloson,^so
a member of such board, *ten tierces, or tliree[511]
thousand pounds of bams, then in Chicago,
at a price named, amounting to $195, and
on the sale unlawfully making and ddiver-
ing to Roloson a bill and memorandum of
the sale showinff the date thereof, the name
of the seller, the amount of the same, and
.the matters and things to which it referred,
without having the proper stamps affixed to
said bill or memorandum denoting the in-
ternal revenue accruing upon said sale, bill,
or memorandum, as required by law, but on
the contrary unlawfully refusinff and neg-
lecting to affix any such stamps to said bul
or memorandum. Upon the trial the jury
rendered a verdict finding the petitioner
guilty as charged in tbe information, and
the court sentenced him to pay a fine of
^00 and to be committed to the county jail
until such fine and costs should be paid.
The petitioner refused to pay the fine and
an order of contmitment was made out and
placed in the hands of the mart»hal, who ar-
rested Uie petitioner and he is now in the
custody of the marshal. The petitioner up-
on the trial claimed that the act in regard
to the matters named in the information was
unconstitutional, and therefore no offense,
was charffed in the information; tbat the
court had no jurisdiction to try him, and
that his conviction and subsequent arrest
787
ftU, 512
Supreme Court of the United {States.
Oct. Tna,
and detention were wholly without jurisdic-
tion. The petitioner gives as a reason for
his application to this court for the writ of
habeas corpus that one James Nicol (the ap-
pellant in No. 4S5) bad been convicted of
substantially the same offense in the district
court for the northern district of Illinois,
and that he had made application for a writ
of habeas corpus to the circuit court held
in that district, which court, after a hearine
upon the writ, decided against Nicol, and
in favor of the constitutionality of the act
of Congress herein questioned, and the peti-
tioner herein alleges that it would be a vain
act to apply for a writ of habeas corpus to
the same circuit court which had already,
after a hearing, decided the question in a
way unfavorable to the claims of the peti-
tioner herein.
No. 625 is also an appeal to this court
from an order of the circuit court of the
United States for the northern district of
Illinois, discharging a writ of habeas cor-
[518]pua and remanding *the petitioner Skillen to
the custody of the marshal. The petitioner
was convicted upon an information of the
same nature as is above set forth in No.
435, excepting that the information in this
case allied that the contract was for fu-
ture delivery of 5,000 bushels of corn, and
that Skillen unlawfully failed and refused
to make and deliver to the buver any bill
or memorandum as required by the act.
He petitioner was convicted upon a trial
had upon such information, and the court
imposed upon him a fine in the sum of $500
besides costs, and directed that he should be
committed to the county jail until such fine
and costs were paid. The same proceedings
were then taken as are set forth in No. 435.
No. 636 is a writ of error to the district
court of the United States for the northern
dis^ict of Illinois, to review a conviction of
the plaintiff in error upon an information
charging him with makine a sale of certain
cattle at the Union Stock Yards, Chicago,
ana delivering the same without making any
written memorandum, etc., as required by
the act of Congress. The information also
charged in a second count a sale, at the same
place, of certain live stock and a delivery of
a memorandum of the kind mentioned in the
act of Congress and a failure and refusal to
BfRx the stamps as provided for in such act^
Upon the trial a nolle prosequi was dul^ en-
tered upon the first count. The plaintiff in
•error claims that the act of Congress is un-
4x>ntititutional on the same grounds men-
tioned in the other cases, and sets up as a
special and separate defense that a sale at
the stock yards is not included in the act of
Congress, as it is not an "exchange or board
of trade or other similar place," within the
meaning of that act.
Messrs. Henry 8. Robbins and Jobn G.
'Carlisle, for appellant in No. 435 and No.
•625, and for petitioner in No. 4 Original :
Habeas corpus is the proper remedy where
the prisoner is in custody upon conviction
for an offense created by an unconstitution-
al law.
E» parte Siehold, 100 U. 8. 871, 25 L. ed.
788
717; Ex parte RoyaU, 117 U. a 248, 29 L
ed. 870; Re Coy, 127 U. S. 758, 32 L. fi
281 ; Neilsen, Petitioner, 131 U. & 182, » L
ed. 120.
The circuit court having in both tuts i>>
held the constitutionality of tiie presot hr,
and having, in the case of Junes Xieol, ^
nied a writ of habeas corpus, an spptiettrs
by George R. Nichols to that ecmrt wcii
have been useless; hence, an appUcttioi k
him directly to this court is in teeordua
with its practice.
Ew parte Terry, 128 U. S. 289, 32 L li
405 ; Sawyer's Case, 124 U. S. 200. 31 L it
402; Ew parte Bain, 121 U. S. 1, 3D L ft
849; Re Tyler, 149 U. 8. 164, 37 L. ed. M;
Re Ayers, 123 U. S. 443, 31 L. ed. 211
The tax in question, if an indirect tax. a
a stamp tax upon documents. It is loci
privilege tax. A commercial exchaige a t
voluntary association ( the Chicago Baui d
Trade, although incorporated, hss baa ^
cided to be such — Chicago Bd. of TrUi t.
Nelson, 162 lU. 431), and neither tW frf-
ilege of being a member of the ex^sj^ ts
of having one's proper^ sold there, mt d
being a seller there, is a privilem is tW «>
gal sense— that is a taxable prinkge.
Columbia V. Cfuest, 3 Head, 414; GBokr
Taxation, 2d ed. 571; ChariesUm v. Oittr
16 S. C. 47.
Nor is this an occupation tax— Mck m
being imposed elsewhere in this set ^
brokers, and the law not prenmuof te«
taxation.
Cooley, Taxation, 227 ; Monigowmy dm
ty Bd. of Revenue t. Montmmanf OmM'
Co, 64 Ala. 273.
Nor is it a tax on sales, whi^ vmii s
reality be a tax on the commodity aoH
Cook V. Pennsylvania, 97 U. a 581 SI L
ed. 1015; Brown t. Jfarylon^ U WW
419, 6 L. ed. 678.
For agreements to tdl for future 4Afrj
are taxed, and in these ihtn is wmS^ *
commodity to tax, such eootracti, ahkiet
generally settled by the payment of ^«*
ences, being legal {Bihh v. Allen, 149 ^ '
499, 37 L. ed. 8i27; Miles ▼. Amdrems^^y-
App. 155) , and, whether legal or mat, ^^
be taxable.
License Taw Cases, 5WaI1.46S.18L«i<*'
Altny V. California, 24 How. 188. )« L <i
644, as construed by Woodrui v. hr^*^
8 Wall. 123, 19 L. ed. 382, U m( is '^
flict with the proposition that this ii s rt*"
tax only.
Congress is without constitutioesl f^
to require written memoranda ol iitno •
contracts or transactions. This set, W ■=
posing a penalty and creating a ■ii*i»"*'
or, prohibits oral sales or eoatxacti d ■*
and thereby interferes with iatnitslt <«»
merce — this regardless of whtth«^ & a*^
the sale Toid or not.
Brown v. Maryland, 12 WhMt lA < ^
ed. 683.
Congress cannot regulate iatra^sk ^
merce. ,^
United States t. De Witt, f WsH M _»
L. ed. 594; Lana Oowmty t. Or^fm. T **-
76, 19 L. ed. 74. ^_.
iTl W a
1898.
NlCX>L T. AMKS.
Nor can it do this as a "necessary and
proper^ means of le^ng taxes.
'Necessary and proper", under sub-clause
18, S 8, of the Ck)nstitutiou, authorizes only
inch laws as are (1) "ai>propriate and
plainly adapted" to the levyinj; of the tax,
and (2) "consist with the spirit of the Ck)n-
ititution."
McCuUoch ▼. Maryland, 4 Wheat. 316, 4
L. ed. 579; Legal Tender Cases, 12 Wall. 457,
20 L. ed. 287.
But the only purpose of requiring written
memoranda is to increase the number of such
documents to be taxed, which is not a proper
incident to the taxing power.
United States v. DeWitt, 9 Wall. 42, 19 L.
ed. 593 ; License Tax Cases, 6 Wall. 463, 18
L ed. 497.
Congressional interference with state com-
merce, in whatever form or degree, is to be
as much condemned as has been state inter-
ference, in whatever form or degree, with in-
terstate or foreign commerce.
Henderson v. New York, 92 U. S. 271, 23
L. ed. 549; Webber ▼. Virginia, 103 U. S.
350, 26 L. ed. 667; Pickard v. Pullman
Bouthem Car Co, 117 U. S. 35, 29 L. ed. 786;
Rohhins V. Shelby County Taxing Dist, 120
U. S. 489, 30 L. ed. 694, 1 Inters. Com. Rep.
45; Maran v. New Orleans, 112 U. S. 69, 28
L. ed. 653; Leloup v. Port of Mobile, 127 U.
S. 641, 32 L. ed. 312, 2 Inters. Com. Rep.
134; Almy v. California, 24 How. 169, 16 L.
ed. 644 ; Guy v. Baltimore, 100 U. S. 434, 25
L. ed. 743.
This interference with oral contracts with-
b the state does not "consist with the spirit
of the Constitution."
Moore ▼. Moore, 47 N. Y. 467, 7 Am. Rep.
466; Sammons v. Halloway, 21 Mich. 163, 4
Am. Rep. 465; Craig v. Dimock, 47 111. 310;
Davis V. Richardson, 45 Miss. 500, 7 Am.
Rep. 732; Forcheimer v. Holly, 14 Fla. 243;
Sporrer v. Eifler, 1 Heisk. 633 ; Duffy v.
Hohson, 40 Cal. 240, 6 Am. Rep. 617; Car-
penter V. Snelling, 97 Mass. 452.
Such legislation, if independent of a tax
law, would be class legislation, because de-
priving some, but not all, of the right to con-
tract orally.
Millett V. People, 117 111. 298, 57 Am. Rep.
869; Harding v. People, 160 111. 459, 32 L.
R. A. 445; Frorer v. People, 141 111. 171, 16
L. R. A. 492; State v. Goodwill, 33 W. Va.
179, 6 L. R. A. 621 ; Godcharles v. Wige-'
man, 113 Pa. 431 ; Kuhn v. Detroit, 70 Mich.
537; Re Jacobs, 98 N. Y. 98, 50 Am. Rep.
636; Butchers' Union 8, H, d L. 8. L. Co. v.
Crescent City L. 8. L. d 8. H, Co. Ill U. S.
746, 28 L. ed. 585; Barbier v. Connolly, 113
U. S. 27, 28 L. ed. 923; Tick Wo v. Hopkins,
118 U. S. 356, 30 L. ed. 220.
If the right to thus discriminate respect-
ing oral contracts be sustainable at all, it
can only be when it is necessary to taxation,
and not where, as here, it is neither neces-
sary nor usual. In the latter case it is clear-
ly contrary to the "spirit of the Constitu-
tion." It takes from a taxpayer, as a part
of his tax, his constitutional right to con-
tract or trade orally as others do.
A liberal construction is to be resorted to
for the protcM^ion of constitutional rights.
173 U. 8.
Boyd V. United States, 116 U. 8. 635, 29
L. ed. 7,53; Monongahela Nav, Co, v. United
States, 148 U. S. 325, 37 L. ed. 468; Oakley
V. Aspinwall, 3 N. Y. 547.
This tax, if a stamp or other indirect tax,
violates the rule of uniformity.
The Constitution rcNquires, not merely
"geographical uniformity," but practical
uniformity between taxpayers, whicn means,
not that all persons or all property must be
taxed, if any are, but that all persons simi-
larly situated, and all property of the same
kind, be proportionately taxed, if any suc^
person or property is taxed.
This construction is required by the stat«
of historv and political economy at the time
of the adoption of the Constitution, as well
as by the circumstances attending the inser-
tion of this imiformity clause in the Consti-
tution.
The power to tax implies the power to de-
stroy.
McCulloch V. Maryland, 4 Wheat 431, 4
L. ed. 607 ; Weston v. Charleston, 2 Pet 449,
7 L. ed. 481; Citizens* Sav, d L. Asso, v.
Topeka, 20 Wall. 655, 22 L. ed. 455.
Uniformity has been defined as above by
this court in —
United States v. Singer, 15 Wall. Ill, 21
L. ed. 49; Head Money Cases, 112 U. 8. 580,
28 L. ed. 798.
This rule of taxation reouires an essential
difference between the subjects taxed and
those untaxed.
Pacific Exp, Co, v. Siebert, 142 U. S. 339,
35 L. ed. 1035, 3 Inters. Com. Rep. 810; Ser^
ior V. Ratterman, 44 Ohio St 661.
This does not arise from the mere differ-
ence of locality of a sale of the thing taxed,
nor from greater convenience attending the
making of such sale.
Messrs, John 8. Miller and Merritt
Starr, for plaintiff in error in No. 636:
The words "at any exchange or board of
trade or other similar place," in Schedule A
of the act in question, refer to the place of
sale; and they mean the room or floor or
?i]ace provided by associations of that kind
or trading among their members, and to
the privileges of which only members are
admitted. And the tax levied is only upon
sales at those places.
This is a fact of common knowledge, and
appears in adjudged cases and works of
standard authority; and it must be held to
have been known to and in contemplation of
Congress in passing the act in question. It
appears in tne following, among other, au-
thorities :
Dos Passos, Stock Brokers, 88, 208; Mel-
sheimer & Laurence Stock Exchange, 1, 2;
Bisbee A Simons, Produce Exchange, 71;
Speight Y, Gaunt, L. R. 22 Ch. Div. 727;
Leech v. Harris, 2 Brewst. (Pa.) 575; Met*
ropolitan Grain d Stock Exchange v. CMoc^
ga Bd, of Trade, 16 Fed. Rep. 849.
The words "or similar place" in Schedule
A of the act do not bring within the tax
but exclude therefrom, sales at any different
place.
Harlow v. Tufts, 4 Cush. 453.
The Union Stock Yards in Chicago, or its
pens, in one of which the sale in question
789
Supreme Ooubt of the United States.
Occ
was made, or other Bimilar stock vards in
t^e United States where liye stock is re-
edred and where it is sold by the owner or by
his agent, are not exchanges or boards of
trade, or other similar places, within the
meaning of the act in question.
If it IS competent for Congress, as con-
tended by counsel for the government in
board of trade cases, to put into a class, for
the purposes of taxation, sales made on
'change, — it is not possible to bring within
that dass sales of cattle in the pens of the
Union Stock Yards, and still preserve the
uniformity required by the Constitution.
Head Money Oases, 112 U. S. 580, 28 L. ed.
798; Kentucky Railroad Taw Cases, 115 U.
S. 321, 29 L. ed. 414; Magoun v. Illinois
Trust d 8av. Bank, 170 U. S. 283, 42 L. ed.
1037; Hayes v. Missouri, 120 U. S. 68, 30
L. ed. 578; BelVs Gap R, Co. v. Pennsylva-
nia. IS4 U. S. 232, 33 L. ed. 892; Qulf, C. d
8. F. R. Co. T. Ellis, 166 U. S. 150, 41 L. ed.
666.
The phrase "or other similar places," in
Schedule A of the war revenue act, if open
to the interpretation given by the court oe-
low, is void for uncertainty and for indefi-
niteness.
Hughes's Case, 1 Bland, Ch. 46; Weale t.
Proprietors of West Middlesex Waterworks
Co. 1 Jac. & W. 371; Bank of Columbia v.
Ross, 4 Harr. A M'H. 456; State v. Boon,
1 N. C. (Taylor AC.) 103, 246; Drake t.
Drake, 15 N. C. (4 Dev. L.) 114; State t.
Partlow, 91 N. C. 550 ; Com. v. Bank of Penn-
sylvania, 3 Watts k S. 173 ; Leavitt v. hover-
ing, 64 N. H. 607, 1 L. R. A. 58; Ward v.
Ward, 37 Tex. 389; Qreen v. Wood, 7 Q. B.
178; Doe^ Davenish, v. Moffatt, 15 Q. B.
257 ; MoOonvill v. Jersey City, 39 N. J. L. 38.
If this tax applies to the sale of cattle
here in question then the tax is a direct tax
and violates the rule of apportionment.
A tax upon a sale of merchandise is a tax
upon the merchandise itself.
Brown v. Maryland, 12 Wheat 419, 6 L.
ed. 678; Dobbins v. Erie County Comrs. 16
Pet. 435, 10 L. ed. 1022; Almy v. California,
24 How. 169, 16 L. ed. 644; Welton v. Mis-
souri, 91 U. S. 275, 23 L. ed. 644; Cook t.
Pennsylvania, 97 U. S. 566, 24 L. ed. 1015 ;
Pollock V. Farmers* Loan d T. Co. 157 U. S.
581, 39 L. ed. 819.
Mr. Johm K. Riel&ards, Solicitor Gen-
oral, for appellee in No. 435 and No. 625, and
for respondent in No. 4 Original, and for de-
fendant in error in No. 636:
Where the constitutionality of a law is
involved, every possible presumption is in
favor of its validity, and this continues un-
til the contrary is shown beyond a reasona-
ble doubt.
Sinking-Fund Cases, 00 U. S. 700, 25 L.
ed. 496; PoweU v. Pennsylvania, 127 U. S.
678, 82 L. ed. 253; Fletcher t. Peck, 6
Cranch, 87, 8 L. ed. 162 ; Dartmouth College
v. Woodward, 4 Wheat. 518, 4 L. ed. 629;
hi^ngston County v. Darlington, 101 U. S.
407, 25 L. ed. 1015.
llie Constitution expressly confers upon
Congress the taxing power.
Congress may make all the laws which >
700
shall be necessary and proper lor anyim
into execution the foregoing power.
MoCulloch V. Maryland, 4 Whnt SIC, 4
L. ed. 579.
The selection of the means rests with Qm-
gress. Unless these means are forhidte hj
the Constitution the courts wiU not iattf-
fere.
Fong Tue Ting t. United StmSm, lU U. &
698, 37 L. ed. 905; Interstate Commma
Commission v. BrUnson, 154 U. 8. 447, SI
L. ed. 1047, 4 Inters. Com. Rep. 545.
With the exception and under the tiBhs-
tion of the Constitution, the taxing povcr
reaches every subject of taxation.
License Tax Cases, 5 WalL 462, 18 L si
497 ; Pacific Ins. Co. v. Soule, 7 WalL 433. If
L. ed. 95; State Tax on Foreign-Held
15 Wall. 300, 21 L. ed. 179.
In executing the taxing power
may, through classification, sdect the sek*
jects of taxation, and thus use its disuietki
m distributing equitably the burdens d feT>
ernment
Magoun v. Illinois Trust d See. Bmmk, 171
U. S. 283, 42 L. ed. 1037.
This is a tax upon the sale, agresMSt of
sale, or agreement to seH, not upon the bb-
orandum thereof.
Cook V. Pennsylvania, 97 U. & 5M. M L
ed. 1015.
Only those sales, agreements of ask, «
agreements to sell, are taxed which are weh
on oonmiercial exchange. Sudi nlct «n
made under conditions whidi distiagmal
them from other sales, thus aifordiaf t
ground for classification.
The court will take judicial notice ef vtai
a commercial exchange is.
Anderson v. United States, 171 U. & SH
ante, 300; Hopkins r. United States^ 171 H
S. 578, ante, 290; Hansen t. Boyd, 1«1 C. S.
397, 40 L. ed. 746; Nelson t. Board of Treis,
58 IlL App. 399.
The tax is uniform because trerr oH
agreement of sale, or agreement to sdL w»k
at an exchange, is taxed alike. All ptiw
similarly situated are treated in the mm
way and subjected to an equal bordca. 1^
tax operates with the same force and ^sA
in ever^ place in the United States «fc«*
the subject of it is found.
Head Money Cases, 1 12 U. & 580. tS L «i
798; Tappan v. Merehamis^ VmL Baek, tf
Wall. 490, 22 L. ed. 189.
The tax is not on personal propcrtj sr ^
inoome thereof. It is therefore not a ^nd
tax. It is the duty on the dispoiitiaB «
transfer of merchandise, which, P*?*^ ^
the first instance by the seller who lelailtr'
ily goes upon the exchange, may be i^M
in whole or in part to the buyer. U ■
therefore an indirect tax — an exdsa
Pollock v. Farmers* Loan 4 f. Oe. IS? C
S. 429, 39 L. ed. 750, 158 U. a 601, » U
ed. 1108; Brown T. Marylmmd, It Wh«t
419, 6 L. ed. 678; Almy v. CottferM M
How. 169, 16 L. ed. 644; Cook r. hm»t^
nia, 97 U. S. 566, 24 L. ed. 1015; Hsm
Emp. Co. V. Ohio State Auditer, 161 C &
194, 41 L. ed. 683; Postal Teiee. OMs 0^
V. Adams, 155 U. S. 688, 39 L. ed. Sll, ft b*
ters. Com. Rep. 1; Brown w. Bomate^ Ui
im.
NiOOL T. AM£8.
olsM^lS
U. S. 623, 29 L. ed. 257; Pacific Ins. Oo. T.
flonto, 7 WaU. 433, 19 L. ed. 96.
] *Mr. Justice PeoUuuB, after stating the
fftcte, delivered the opinion of the court:
These cases may oe considered together,
because they involve substantially the same
Juestion, only the last one includes, in ad-
ition, a question of construction as distin-
guished from a question of the validity of the
statute.
That portion of the act which is involved
is set forth in the margin.f 30 Stat, at L.
448 450, 458.
] *It is seen that the cases embrace the facts
of a member of the Board of Trade of Chicago^
selling for inmiediate delivery, products or
merchandise: (a) without maJcing a mem-
orandum; (6) making a memorandum but
omitting to put stamps on it; (c) making a
sale for future delivery and failing to put
stampe on the memorandum.
In the Nicol Case (No. 435), the sale was
b^ a citizen to a citizen of t^e state of U-
Imois.
The case of sales at the Union Stock Tarda
at Chicaffo is also included, where a m^no-
randum m delivered, but the vendor neglects
and refuses to aflSx the stamps to the m^no-
randum.
The objections to the validity of the act are,
stated generally, that it is a direct tax, and
is ill^g^ because not apportioned as required
by the Constitution. If an indirect taT, it is
a stamp tax on documents not required to be
made under state law in order to render the
same valid, and Congress has no power to re-
quire a written memorandum to be made of
transactions within the state for the purpose
of placing a stamp thereon. It is not a pri^^
ilege tax within the meaning of that term,
bemuse there is no privilege other than that
which every man has to transact his own
business in his own house or in his own of-
fice under such r^ulations as he may choose
fADHasiVB Stamps.
Bee. 6. That on and after the first daj of
July, 1898, there shall be levied, coUected, and
paid, for and In respect of the several bonds, de-
bentures, or certificates of stock and of Indebted-
ness, and other docaments, Instroments, mat-
ters, and things mentioned and described In
Schedule A of this act, or for or in respect of
the vellam, parchment, or paper npon which
BDch Instrnments, matters, or things, or any of
them, shall be written or printed by any person
or persons, or party who shall make, sign, or
Issue the same, or for whose use or benefit the
same shall be made, signed, or Issued, the sev-
eral taxes or sums of money set down In figures
against the same, respectively, or otherwise
specified or set forth in the said schedule.
8CHBDT7LI A. — Stamp Taxbs. (80 Stat at L.
448-458.)
. . . Upon each sale, agreement of sale,
or agreement to sell any products or merchan-
dise at any exchange or board of trade, or other
similar place, either for present or future de-
livery, for each one hundred dollars in value of
said sale or agreement of sale or agreement to
sell, one cent, and for each additional one hun-
dred dollars or fractional part thereof in excess
of one hundred dollars, one cent; Provided,
That on every sale or agreement of sale or
178 V. M.
to adopt, and such a choice cannot be in. any
fair use of the term a privilege which is sub-
ject to taxation.
These questions are involved in each caaiL
while in the last one it is further objected
that the sales at the stock yards are not in-
cluded in the terms of the act, and evidence
was adduced upon the trial as to the nature
of the business conducted at the stock yards,
and the manner in which it was performed.
It will be adverted to hereafter when we come
to a discussion of the meaning and proper
construction of the act.
It is always an exceedingly grave and deli-
cate duty to decide upon the constitutionality
of an act of the Congress of the United States.
The presumption, as has frequently been
*said, is in favor of the validify of the act,[SlQ
and it is onlv when the question is free from
anv reasonable doubt that the court should
hold an act of the lawmaking power of the
nation to be in violation of that fundamental
instrument upon which all the powers of the
government rest. This is particularly true
of a revenue act of Congress. The provisions
of such an act should not be liffhtlv or inad-
visedly set aside, although if thev be plainly
antagonistic to the Constitution it is the duty
of the court to so declare. Hie power to tax is
the one great power upon which the whole na-
tional fabric is based. It is as necessary to
the existence and prosperity of a nation as is
the air he breathes to the natural man. It is
not only the power to destroy, but it is also
thepower to keep alive.
This necessary authority is g^ven to Con-
gress by the Constitution. It has power from
that instrument to laj and collect taxes, du-
ties, imposts, and excises, in order to pay the
debts and provide for the common defense
and general welfare, and the only constitu-
tioniu restraint upon the power is that all
duties, imposts, and excises shall be uniform
throughout the United States, and that no
capitation, or other direct, tax shall be laid,
agreement to sell as aforesaid, there shall be
made and delivered by the seller to the buyer a
bill, memorandum, agreement, or other evidence
of such sole, agreement of sale, or agreement to
sell, to which there shall be affixed a lawful
stamp or stamps in value equal to the amount
of the tax on such sale. And every such bill,
memorandum, or other evidence of sale or agree-
ment to sell shall show the date thereof, the
name of the seller, the amount of the sale, and
the matter or thing to which it refers ; and any
person or persons liable to pay the tax as herein
provided, or anyone who acts in the matter as
agent or broker for such person or persons, who
shall make any such sale or agreement of sale,
or agreement to sell, or wno shall. In pursuance
of any such sale, agreement of sale,
or agreement to sell, deliver any such
products or merchandise without a bill, mem-
orandum, or other evidence thereof, as
herein required, or who shall deliver such bill,
memorandum, or other evidence of sale, or
agreement to sell, without having the proper
stamps affixed thereto, with Intent to evade the
foregoing provisions, shall be deemed guilty of
a misdemeanor, and upon conviction thereof
shall pay a finie of not less than five hundred nor
more than one thousand dollars, or be im-
prisoned not more than six months, or l>oth, at
the discretion of the court. _
701
SUPREMB UOUBT OF THE UNITED bTATJbb.
Oct.
mlees in proportion to the census or ennmer^
Ation directed to be taken, and no tax or
duty can be laid on articles exported from
any state. Constitution, article 1, sec. 8,
and sec. 9. subdivisions 4 and 5. As thus
guarded, the whole power of taxation rests
with Congress.
The commands of the Constitution in this,
as in all other respects, must be obeyed; di-
rect taxes must be apportioned, while indi-
rect taxes must be uniform throughout the
United States. But while yielding implicit
obedience to these constitutional require-
ments, it is no part of the duty of this court
to lessen, impede, or obstruct the exercise of
the taxing power- by merely abstruse and
subtle distinctions as to the particular na-
ture of a specified tax, where such distinction
rests more upon the difi'ering theories of po-
litical economists than upon the practical na>
ture of the tax itself.
In deciding upon the validity of a tax
with reference to these requirements, no micro-
scopic examination as to the purely econom-
ical or theoretical nature of the tax should
|616]be ^indulged in for the purpose of placing it
in a cat^ory which would invalidate the
tax. As a mere abstract, scientific, or econom-
ical problem, a particular tax might possiblv
be r^arded as a direct tax, when as a practi-
cal matter pertaining to the actual operation
of the tax it miffht quite plainly appear
to be indirect. Under such circumstances,
and while varying and disputable theories
might be indulged as to the real nature of the
tax, a court would not be justified, for the
purpose of invalidating the tax, in placing it
in a class different from that to which its
practical results would consign it. Taxa-
tion is eminently practical, and is in fact
brought to every man's door, and for the pur-
pose of deciding ui>on its validity a tax
should be regarded in its actual, practical
results, rather than with reference to those
theoretical or abstract ideas whose correct-
ness is the subject of dispute and contradic-
tion among those who are experts in the sci-
ence of political economy.
In searching for proper subjects of taxa-
tion to raise moneys for the support of the
government, Congress must have the right to
recopiize the manner in which the business
of the country is actually transacted; how,
among other thines, the exchange of com-
modities is effected; what facilities for the
conduct of business exist; what is their na-
ture and how they operate ; and what, if any,
practical and recognizable distinction there
may be between a transaction which is ef-
fected by means of using certain facilities
and one where such facilities are not availed
of by the parties to the same kind of a trans-
action. Having the power to recognize
these various facts, it must also follow that
Congress is justified, if not compelled, in
framing a statute relating to taxation, to
legislate with direct reference to the existing
conclitions of trade and business throughout
the whole country and to the manner in whidi
they are carried on.
Coming to a consideration of the objec-
tions raised to this statute it is well to first
consider the nature of an exchanee or board
702
of trade, and then to inquire more ii
as to the validity of the act with rd
to sales at such places. The Chicago Bmxi
of Trade maybe taken as a typeof the *
in existence throughout the country, htmam
the same features exist in all of tlkn, vUi
tne size and importance of the Chictfo ii-
stitution serve only to make sudi tmtMm
more prominent and their effect more euOy
discernible. We say the same featoret exirt
in all of the exchanges or boards of tnik b>
cause we have the right to condder facti
without particular proof of them, which an
universally reoog^nized and whidi rclau to
the common and ordinary way of doint ban-
ness throughout the country, and wSk m
could not take notice without proof as te 117
particular constitution or by^aw of t bo^
of this description, yet we are not thnAy
cut off from knowledge of the general mxan
of those bodies and of the manner genenllj
in which businese therein is condorted.
It appears in this record that the Clueafi
Board of Trade is a voluntary assodttioa rf
individuals who meet together at a ecrtaia
building owned by the association for tte
purpose of there transacting business Tba
particular board is incorporated onder ta
act of the legislature of Illinois, thoi^ in
corporate character does not, in o«r j«ir
ment, form a material consideration ia tlit
inquiry. The members of the assofiatiaa
meet daily between certain businew boon
for the purpose of buying and sellin* floar,
wheat, corn, oats, and other articles of kti
products, and for the transaction of mA
other business as is incident thereto. Amof
its members are some whose business it is t»
purchase in the country or to receive oa «»•
signment from persons in the country «ob»
or all the articles which are dealt ia ea
the floor of the exchange, and there ar« otbcr
members whose business it is to buy *w\ t^
tides upon the exchange either for thi»
selves or on commission, and to delircr or
ship the same to consumers or dUtiibatatt
throu|fhout the country and in Europe.
It IS common knowledge that them «>•
chanfi;es encourage and promote honest lal
fair dealing among their member*: that tWy
provide penalties for the violation of tWir
rules in that regard, and that contraHs be*
tween members relating to busiDe«« 01 tki
exchange have the advantage of the «•^
tion provided by the exchange foe sndi pw
poses. They furnish a 'meeting dUtp f-"' *"
those engaged in the purchase and mI* r'
commodities or other tnings to be void. u4
in that way they offer facilities for a ■a^
ket for them. Dealings among mewbtn *
engaged tend to establish the markeC prict
of the articles they deal in, and that pnct
is very apt to be the price for the wme arti-
cle when bought or sold outside. The pnrt
is arrived at by offers to sell on the oa» 0*
and to purchase on the other until, by vbal
has frequently been termed the ''higfiiaf**'
the market, a price is agreed upon aad tk«
pales are accomplished. In arririnff at U»
price, of course the great law of the «wt f4
production and also that of supply and de-
mand enter into the pr(^lem, ana it is 1^
a consideration of all matters regardrf m
1898.
NiooL ▼. Amkb.
5ia-621
materinl that the agreement to buy and sell
iB made. The prices thus fixed are usually
followed when the transaction occurs out-
tide, and the market price means really the
exchange price. That an enormous amount
of the business of the country which is en-
gaged in the distribution of the commodities
grown or produced therein is transacted and
takes place through the medium of boards
of traae or exchanges cannot be doubted.
Kor is there any doubt that these exchanges
facilitate transactions of purchase and sale,
and it would seem that such facilities or
privileges, even though not granted by the
government or by a s^te, ought nevertheless
to be recognized as existing facts and to be
subject to the judgment oi Congress as fit
matters for taxation.
We will now examine the several objec-
tions that have been offered to this statute.
It may be stated, of course, that if the tax
herein is a direct tax within the meaning of
the Constitution, it is void, for there is no
apportionment as required by that instru-
ment.
It is asserted to be a direct tax, because it
is a tax upon the sale of property measured
by the value of the thing sold, and such a
tax is a direct tax upon the property itself,
and therefore subject to the rule of appor-
tionment. Various cases are cited, from
Bfc-um T. Maryland, 12 Wheat. 419 [6: 678],
down to those involving the validity of the
income tax ( [Pollock v. Farmers* Loan d T,
Oo.] 157 U. S. 429 [39: 759] ; 158 U. S. 601
[39: 1108]), for the purpose of proving the
correctness of this proposition. All the
9]ca6es involved the question whether t^e^taxes
to which objection was taken amounted prac-
tically to a tax on the property. If this tax
is not on the property or on the sale thereof,
then these cases do not apply.
We think the tax is in effect a duty or ex-
cise laid upon the privilege, opportunity, or
facility offered at boards of trade or ex-
changes for the transaction of the business
mentioned in the act. It is not a tax upon
the business itself which is so transacted,
tut it Is a duty upon the facilities made use
of and actually employed in the transaction
of the business, and separate and apart from
the business itself. It is not a tax upon the
members of the exchange nor upon member-
ship therein, nor is it a tax upon sales gen-
6^ily. The act limits the tax to sales at any
^change, or board of trade, or other similar
Slace, and its fair meaning is to impose a
uty upon those privileges or facilities which
Are there found and made use of in the sale
At such place of any product or merchandise.
Whether this facility or privilege is such a
thing as can be legally taxed, while leaving
untaxed all other sales made outside of such
places, will be discussed further on. At
present it is enough to say that the tax is
not upon the property sold, and cannot on
that ground be found to be direct. The tax
l&id in the same act upon a broker's note or
n^morandum of sale is a separate tax, al-
though it may have reference to the same
transaction. It is a tax on the note or mem-
orandum itself where made by a broker,
^hile in the other case the tax, although
173 U. S. ' »
measured in amount bv a reference to the
value of the thing sold, is in reality upon
the privilege or facility used in the trans-
action or sale. The tax is not a direct tax
within the meaning of the Constitution, but
is, as already stat^, in the nature of a duty
or an excise. The amount of such a tiuc
when imposed in a case like this may be in-
creased or diminished by the extent to which
the privilej^e or facility is used, and it is
measured in this act by the value of the
property transferred by means of using such
privilege or facility, but this does not make
the tax a direct one. A tax on professional
leceipts was reco^ized by the present Chief
Justice in delivering the opinion of the court
on the first hearing of the income tax case
( [Pollock y. Farmers' Loan d T. Co. 167 U.
S. 429, 679 [39: 769, 818]), as an excise oi*
duty and ^therefore indirect, while a tax on[680]
the income of personalty he thought might
be regarded as direct. And upon the re-
hearing (168 U. S. 601 [39: 1108]), it waa
distinctly held that the tax on personal prop-
erty or on the income thereof was a di-
rect tax. This tax is neither a tax on the
personal property sold nor upon the income
thereof, although its amount is measured by
the value of the property that is sold at the
exchange or board of trade.
It is also said that the tax is direct be-
cause it cannot be added to the price of the
thing sold, and therefore ultimately paid by
the consumer. In other words, that it is
direct because the owner cannot shift the
payment of the amount of the tax to some-
one else. This, however, assumes that the
tax is not in the nature of a duty or an ex-
cise, but that it is laid directly upon the
property sold, which we hold is not the case.
Jt is not laid upon the property at all, nor
upon the profits of the sale thereof, nor upon
the sale itself considered separate and apart
from the place and the circumstances of the
sale.
We do not see that any material difference
exists when the sale is for future delivery.
The thing agreed to be sold is the same,
whether for immediate or future delivery,
and the fact that the sale for future deliv-
ery may subsequently be carried out by the
actual payment of the difference between
the agreed and the market price at the time
agreed upon for such delivery does not affect
the ca^e. The privilege used is the same
whether for immediate or future delivery,
and the same rule applies to both.
Passing these grounds of objection, it 2t
urged that if this is an indirect tax, it is
not uniform throughout the United States as
required by the Constitution. Sales at an
exchange or board of trade, it is said, are
singled out for taxation under this act, al-
though they differ in no substantial respect
from sales at other places, and there is there-
fore no just ground for segregating or classi-
fying such sales from those made elsewhere.
A sale at an exchange or board of trade, it
is claimed, is not a privilege or facility
which can or justly ought to l^ taxed while
all other sales at all other places are ex-
empted from * taxation, and there is no rea-[681|
sonable ground therefore for the assertion
793
621-528
SupREMB Court of the United States.
tluit such a Ux is uniform witliin the mean-
Ir^ of the Constitution. It is said not to be
uniform because it is unequal, taxing sales at
exchanges and exempting all other sales,
while at the same time there is no natural
basis for an^ distinction between such sales,
the distinction made being purely arbitrary
and unreasonable.
This general objection on the ground of
want of uniformity is not, in our ludf^ment,
well founded. Whether the word ''uniform"
is to be understood in what has been termed
its "geographical" sense, or as meaning
uniformi^ as to all the taxpayers similarly
situated with regard to the subject-matter of
the tax, we think this tax is valid within
either meaning of the term. In our judg-
ment a sale at an exchange does form a prop-
er basis for a classification which excludes
all sales made elsewhere from taxation. If
it were to be assumed that taxes upon oor^
porate franchises or privileges may be im-
posed only by the authori^ that created
them, it does not follow that no privilege or
facility oan be taxed which is not creat^ by
the government of a state or by Confess. In
order to tax it the privilege or facility must
exist in fact, but it is not neoeesary that it
should be created by the government. The
question always is, when a classification is
made, whether there is any reasonable
ground for it, or whether it is only and simply
arbitrary, based upon no real distinction and
entirely unnatural. CMf, C, d 8. F, RaU-
road Company v. EUia, 165 U. S. 150-155
[41 : 666-668] ; Magoun v. Illinoia Trust d
Savings Bank, 170 U. S. 283, 294 [42: 1037.
1043]. If the classification be proper ana
legal, then there is the requbite uniformity
in that respect.
A tax upon the privilege of selling prop-
erty at the exchange and of thus using the
facilities there offered in accomplishing the
sale differs radically from a tax upon every
sale made in any place. The latter tax is
really and practically upon property. It
takes no notice of any kind of privilege or
faciHHr, and the fact of a sale is alone re-
garded. Although not created by govern-
ment, this privilege or facility in effecting a
sale at an exchange is so distinct and definite
in its* character, and constitutes so dear and
[588]plain a difference from a sale ^elsewhere, as
to create a reasonable and substantial
ground for classification and for taxation
when similar sales at other places are un-
taxed. A sale at an exchange differs from a
sale made at a man's private office, or on his
farm, or by a partnership, because, idthouffh
the subject-matter of the sale may be the
same in each case, there are at an exchange
certain advantages in the way of finding a
market, obtaining a price, the saving of
time, and in the security of payment, and
other matters, which are more easily ob-
tained there than at an office or upon a farm.
To accomplish a sale at one's farm or house
or office might and probably would occupy a
great deal of time in finding a customer,
bringing him to the spot, and agreeing on a
{»rioe. All this oan be done at an exchange
n the very shortest time and at tha least in-
704
sriD
convenience. The market is there,
that is necessary is to said the
Although a sale is the result in
and the thing sold may be of the
the difference exists in the meaai
ties for accomplishing audi sale, aad
means and facilities there is bo r
saying may not be taxed, unless all
taxed, whether the facilities be used or
In this case there is that uniformity
the Constitution requires. Hie tax or daty
is uniform throughout the United Sfeatsiw
and it is uniform, or, in other words, eq«al,
upon all who avail Uiemsdves of the prxii-
leges or fadlities offered at the firhaaf,
and it is not necessary in order to be in-
form that the tax should be levied upoa al
who make sales of the same kind of
whether at an exchange or elsewhere.
Another objection taken is that
taxes only those who make sales and aot
who make purchases, and thoee who saD
ducts or merchandise and not thoee v^
bonds, stocks, etc These are
tions, it is said, which do not foUow the
of unif ormi^, and hence render the tax
A purchase occurs whenofer a sak is
f ecteo, and to say that a purdiaser at am
change sale must be taxed for the farilltlBs
made use of in making the purdiase, or
that the tax on the seller is vwd, is
to insist upon doubling the tax.
*Nor is it necessary to tax the ose of thKa^
privilege under all circumstaiiees in
render the tax valid upon ita use in ,
lar cases. We see no reason why it
be necessary to tax a privilege ohenefti it
is used for any purpose, or dM not to tax H
at all. It is not in ito nature indivisUa
A tax upon the privilege when used for Mt
purpose does not require for its validity that
the same privilege should also be taxed
when used for another and a totally distiaet
purpose. It may be the same prifilcft. hat
when it is used in different eases to aeosa-
plish sales of wholly different things, k»>
tween which there is no rdation whatever,
one use may be taxed and the other not, sal
no rule of uniformity will thereby be vieht
ed.
It is also objected that there is no ,
in Congress to require a party sdliag
sonal property, in the course of
within the state, to make a written
memorandum of the contract, and iojmaaA
him by fine and imprisonment for a failort is
do so; if the state do not require a atB*-
randum on a sale, Congreea cannot in the er*
ercise of the taxing power oompd a dtias
to make one in order that it oiay be
by the United SUtes.
In holding that the tax under
tion is a tax on the privilege used in
sales at an exchange, we therdiy hold that i
is not a tax upon the memorandum rsqaiiit
bv the statute upon which the sta^ Is le ht
placed. The act does not ■ssiiaii to in m^
manner interfere with the laws of thi slsss
in relation to the contract of sak. IW
memorandum required doea not eooftaia al
the essentiak of a contract to seU. It mmi
not be aignod, and it need not eootaia thi
NicoL y. Ames.
u<^uHNtf<^
aame of the Tendee or the terms of payment.
The statute does not render a sale yoid with-
out tiie memorandum or stamp, whieh by the
UwB of the state would otherwise be valid.
It does not assume to enact anything in op-
position to the law of any state upon the sub-
ject of sales. It provides for a written
memorandum containing the matters men-
tionedy simply as a means of identifying the
sale and for collecting the tax by means of
the required stamp, and for that purpose it
A] secures by proper penalties the making of * the
memorandum. Instead of a memorandum,
Congress might have required a sworn report
with the proper amount of stamps thereon to
be made at certain regular intervals, of all
sales made subject to the tax. Other means
might have been resorted to for the same
purpose. Whether the means adopted were
the best and most convenient to accomplish
that purpose was a Question for the judg-
ment of Congress, ana its decision must be
conclusive in that respect. '
The means actually adopted do not illegal-
ly interfere with or obstruct the internal
eommerce of the states, nor are such means
a restraint upon that commerce so far as to
render the means adopted illegal. That Con-
gress might have adopted some other means
for colleding tiie tax which would prove less
troublesome or annoyiiu^ to the taxpayer,
can surely be no reason K>r holding that the
method set forth in the act renders the tax
invalid. As it has power to impose the tax,
the means to be adopted for its collection
within reasonable ana rational limits must
be a question for Congress alone.
We come now to the special objection
raised in the case of Ingwersen, No. 636, and
which applies to this case alone.
The sales were made at the Union Stock
Yards, and it is claimed the statute does
not cover the case of sales there made, be-
cause it is not an exchange or board of trade
or other similar place.
The facts upon which the question arises
are found in the record, and it shows that
the Union Stock Yard A Transit Company of
Chicago is a corporation which was incor-
porate under the laws of the state of II-
linois in 1865. Under that charter the com-
pany had power to maintain cattle yards for
the reception and safekeeping, feeding,
weighing, and transfer of cattle and other
matters connected therewith, which are set
out in full in the charter. The character of
the business and the manner in which it is
conducted are fully set forth in the record,
from which the following extract is taken:
'The Union Stock Yards described in this
information, at the respective tiroes therein
mentioned and theretofore and since, covered
and cover three hundred and thirty-ftve acres
of land situated between Thirty-ninth street
'25]and Forty-seventh *street and Halstead
street and Ashland avenue, in the city of
Cbicaffo, in the county of Cook and state of
Illinois, of which two hundred acres are cov-
ered by pens, which are made by fences sur-
roonding and enclosing the same, there be-
ing allevB running through the yards sepa-
niiiiffjuie pens, into whidi alleys gates lead
from the pens. The number of the pens It
about five thousand and they are in size re-
spectively from eight feet square to fifty feet
square. Railway tracks belonging to and
operated by the Chicago Junction Railway
Company, which cenn^ with all the lines
of railway to the city of Chicago, extend into
the yards, over whidi cattle, hogs, and other
live stock received at or shipped from the
Union Stock Yards are carried. Upon the
arrival of cattle, boss, or other live stock at
the Union Stodc Yards, consigned to the
commission merchant at the union Stock
Yards, such cattle, hogs, or other live stock
are placed by the owner or consignee thereof
or his or its agents, in one or more of the
pens, and are uiere cared for, fed, and wa-
tered by such owner or consignee. Any per-
son is at liberty to send, take, or to receive
cattle, hogs, or other live stock into the
Union Stock Yards, and there place or have
the same placed in a pen or pens, care for
the same, and there sell any cattle belonging
to him or which he has the right to sell.
Any person has access to the pens contain-
ing cattle, hogs, or other live stock for the
purpose of buying the same, and has liberty
to purchase or negotiate for the purchass
thereof. Sales of cattle, hop^, and other live
stock in the yards are at private sale. Com-
mission merchants having 'cattle, hogs, or
other live stock in a pen or pens in the yards
seek and solicit a buyer therefor, and when
a proposed buyer is so found take him to the
pens in which such live stock is contained,
and there exhibit such live stock; and to
such proposed buver, or to any person who
mav come to said pen and who may desire
to buy, such live stock is sold in the pen in
which they are yarded. Sales of cattle,
hogs, and sheep in the yards are by weight,
and upon a sale thereof being nmde such
live stock is taken by the owner or commis-
sion merchant having charge thereof from
the pen in which it is confined to a scale or
scales in the yard and belonging to the Union
Stock *Yard & Transit C<mipany, and arej i2%]
there weighed by a weighmaster employed
by the Umon Stock Yard a Transit Company
and in charge of the scale in which said live
stock are weighed, and the weight of such
live stock is thereby determined as the
weight for which the purchaser pays upon
his purchase, and the amount of the pur-
chase price at the price per pound or per
hundred pounds fixed in such sale is thereby
determined."
The corporation has nothing to do with
the selling or purchasing of stock of any
kind. The market at the Union Stock Yards
is unquestionably the largest in the country.
The plaintiff in error at these yards as
agent for a corporation then carrying on the
business of a live-stock commission charac-
ter and which was a dealer in live stock,
pold to another as agent for the Eastman
Company, also a corporation created for the
purpose of dealing in live stock, a certain
amount of merchandise for present delivery
without affixing any stamp to the memo-
randum.
796
My^ZQ
SUPKEMK COXJUT OF THE UNITED STATES.
Oct.
We cannot Me any real distinction suffi-
cient in substance to call for a different de-
cision between the Union Stock Yards and
an exchange or board of trade. We think
it is a "similar place" within the meaning
ol ^e statute under consideration.
It is true that there are no sales or pur-
chases of stock made by members of the stock-
yards company as such. Anyone is accorded
the right to bring his cattle to the stock
yards upon payment of the regular fees and
compliance with the regulations made by the
company, and having brought his cattle he
has the right accorded him by the company
to have them kept, fed, watered, etc., and to
sell them himseif or by a commission mer-
chant who need not be a member of the
stcck-yards company.
It is plain to be seen that the privilege or
facility for a sale of the cattle or other stock
at the yards of such company is of precisely
the same nature and character as that which
exists at an exchange or board of trade
which is so described in terms. That the
sales are made by the owners of the cattle
or by commission merchants who are not
[687]niembcrs of the ^stock-yards company, is
not material. The facilities for a sale exist
and are made use of in each case, and are in
truth the same, in each. A perusal of the
facts contained in the record in the case
shows that those yards answer all the pur-
poses of an exchange or board of trade, and
that they in truth amount in substance to
the same thing. The differences existing be-
tween them are unsubstantial so f^r as this
point is concerned. The sales at that place
are accomplished with a facility which it is
plain could not exist but for the conditions
and advantages afforded by the use of those
yards.
The owner of the cattle who brings them
to the yards and avails himself of the privi-
lege of selling them at that place does with-
out doubt make use of a privilege which
everyone knows is an advantage sufficient to
constitute a material difference between a
sale at the yards and a sale elsewhere. This
advantage, although one which any person
could use, is yet of precisely the same na-
ture as that existing in the case of an ex-
change or board of trade, and it is therefore
a similar place within the meaning of the
statute. Being a similar place,the reasons stat-
ed in the foregoing cases apply with equal
force here and demand the same judgment.
For the reasons above stated, we make the
following disposition of the cases before us:
In Nos. 435 and 625, the orders of the
Circuit Court of the United States for the
Northern District of Illinois are affirmed.
In No. 4 Original, the petition for a writ
of habeas corpus is denied.
In No. 6.36, the judgment of the District
Court of the United States for the Northern
District of Illinois is affirmed.
So ordered.
Mr. Justice BrowB and Mr. Justice
Wlilte concurred in the result.
796
GUTHRIE NATIONAL BANK, Pig. m #rr.[ftS8]
and Appt.,
V.
CITY OP GUTHRIE.
(See 8. C Reporter's ed. 52&-540.)
Jurisdictional amount — territorial aot of
Oklahoma — power of territorial legisUi'
ture — jury trtat^-^notioe to parties,
1. Interest maj be computed upon the data
Involved In a suit, to the time of the decision
of the conrt appealed from, In order to deter-
mine whether the amount involved Is snfl-
dent to give jurisdiction to this court.
2. The act of December 25. 1890, of the terri-
torial leglslatnre of Oklahoma, providing a
method by which to raise the necessary funds
to pay the Indebtedness Incurred by the provi-
sional governments of certain dtlea, was
within the power of the territorial legislature
to pass, and Is a valid act.
8. The territorial legislature had the power
to compel any of Its political subdivisions to
recognise claims founded upon equity and
justice, although not of legal obligation, but
which there was a plain moral duty to pay.
4. The above-named territorial act does not la-
fringe upon the amendment to the United
States Constitution regarding a jury trial
in cases where the matter In controversy ex-
ceeds $20.
5. The district court to which the claims are
to be reported has power to Investigate then
and to provide for reasonable notice, by mlei^
so as to prevent surprise.
[No. 133.]
Submitted January IS, 1899. Decided
April 3, 1899.
IN ERROR to and appeal from the Su-
preme Court of the Territory c4 Okla*
horoa to review a judgment of that court af-
firming the judgment of the District Court
of Logan County in that Territory dismiss-
ing proceedings by the Guthrie National
Bank against the city of Guthrie to enforce
certain claims against the said city. R^
versed, and case remanded, with directions
to reverse the judgment of the District Court
and that the last-named court hear the
claims upon their merits.
Statement by Mr. Justice PeekhABss
The President of the United SUtes by
proclamation dated March 23, 1889 (26 SUt.
at L. 1544), declared that the Territory of
Oklahoma would be open for settlement on
April 22, 1889, subject to the restrictions of
the act, chapter 412, approved March 2,
1 889. 25 Stat, at L. 980, 1004. By that act
the lands were to be disposed of to actual
settlers under the hontestead laws only, and
until the lands were open for settlement un-
der the proclamation of the President no per-
son was permitted to enter upon or occupy
the same.
By the act, chapter 182, approved May 2,
173 U. 8.
r
im.
QuTHRiB National Bamk v. GuTBiUii..
bZi^-OJiZ
1890 (26 Stat at L. 81), Congress provided
a temporary governmeiit for the territory,
tnd by the act, chapter 207, approved May
14, 1890 (26 Stat, at L. 109), provision was
made for town-site entries.
From the opening of the territory, under
the proclamation of the President, down to
the passage of the act of May 2, 1890, Con-
ffress failed to establish any government for
it During that period setders had come
!9]into the territory and a number *of townsites
had been locatea and settled upon by them.
Many persons located and took up their resi-
dence upon the land contained in the present
boundaries of the city of Quthrie. The
lands were surveyed into streets, alleys,
squares, blocks, and lots, and what were
known as provisional municipal governments
were formed. By the general consent of these
residents four distinct provisional municipal
corporations or villages, denominated Quth-
rie, East Guthrie, (Japitol Hill, and West
Guthrie, comprising some 320 acres each,
were creat»i. They were all without any
law governing them, although officers were
selected by the people occupying the lands,
and a form of government was carried on by
a kind of mutual luulerstandin^. The per-
sons chosen as officers incurred indebtedness
in administering the affairs of the munici-
palities, but there was no authority to raise
the necessary revenues by taxation or other-
wise, to pay Uie same. These officers exer-
cised in fact the powers usually delected to
municipal corporations. Public improve-
ments, such as grading streets, constructing
bridges, and erecting huildings were made,
laws and ordinances were adopted, and of-
fenders were punished. Schools were main-
tained, and tne right of possession of the
various claimants to town lots within their
respective boundaries was regulated and cer-
tificates were issued by the local tribunals
constituted by the municipal authorities for
determining the rights of settlers and occu-
pants of the various lots within the limits
of the municipal governments, and the cer-
tificates thus issued were by the second sec-
tion of the townsite act, above mentioned
(20 Stat at L. 109) , to be taken as evidence
of the occupancy of the holder thereof of
the lot or lots therein described, except that
where there was an adverse claim to the
property the certificate was to be only prima
lacie evidence of the claim or occupancy of
the holder.
The claims mentioned in the act of the ter-
ritorial legislature hereafter spoken of arose
out of these circumstances and represented
the expenditures of the provisional govern-
mente for some or all of the objects above
enumerated.
In December, 1890, a code of laws for the
permanent government of the territory was
)0]enacted by the territorial ^legislature, and
these provisional village governments Ijina
adjacent to one another were incorporated
under that authority into the regularly or-
ganized village of Guthrie, and on April 7,
1893, the citv of Guthrie became the success-
or of the village of that name.
173 V. 8.
On December 25, 1890, the territorial leg-
islature passed an act, chapter 14 of the lawa
of that year, for the purpose of providing a
method by which to raise the necessary funds
to pay the indebtedness incurred by tne pro-
visional governmente of the four villages
above named. The act is set forth in the
mamn.f
^Pursuant to the provisions of that act the[631]
district judge dulv appointed the commis-
sion, which proceeded to hear the cases, and
on September 1, 1891, it filed in the district
court of Logan coimty ite final report. That
report contained, among other tilings, a
reference to the various claims which were
therein said to be owned bv the Guthrie Na-
tional Bank, and it showed the allowance of
such claims, separately and 'in detail, and
that they were all based upon warranto
which had been issued by the provisional
governmente. The report also showed that
the city attorney of the city of Guthrie ap-
peared at the hearing and allowance of the
claims and defend^ for the citv. The
amount allowed against the city in favor of
the bank was $4,315.22. Other claims in fa-
vor of other parties were allowed and many
were disallowed by the ccHiimission. On the
coming in of this report the case was dock-
eted as a pending case in the district court,
and was continued from time to time until
March 17, 1893, when the bank made a mo-
tion to approve the findings of the commis-
sion as regardec^ the c?aims held by it, which
motion was not then decided. On April 7,
1893. the city filed exceptions to the report
of tne commission. Nothing further was
done until March 28, 1890, at which time the
city attorney filed a motion in the *district[538]
court to dismiss the proceedings by the bank
and all other proceedings based upon the act
of the territorial legislature creating the com-
tChapter 14. — Citt Indbbtbdnsss.
An Act for the Purpose of Providing for the
Allowance and Payment of the Indebtedness
Heretofore Created by tbe People and Cities
of Guthrie. Bast Guthrie, West Guthrie, and
Capitol Hill, now Consolidated Into the Vil-
lage of Guthrie.
Article 1. — GuTHBiB, Bast Guthbib, Wbst
GUTHRIR, AND CAPITOL HILL.
Sec 1. That the district judge of Logan coun-
ty Is hereby empowered to appoint three disin-
terested persons to act as a commission or ref-
erees to inquire Into and pass upon all claims
and demands of every character heretofore is-
sued by the city governments mentioned In the
caption of this act, for all purposes.
Sec 2. That the owners and holders of any
kind of scrip, warrants, or other evidence of In-
debtedness heretofore Issued by the city govern-
ments of Guthrie, East Guthrie, West Guthrie,
and Capitol Hill, shall present their claims to
the commissioners or referees, to be appointed
by the district Judge, under oath, stating that
the same Is a bona fide claim, that they per-
formed the labor or advanced the money or fur-
nished the materials or purchased same for a
valuable consideration, and that they believe the
city. Issuing the same, did so for necessary ex-
penses Incurred In running the city government,
and said master shall hear further evidence If
he deem necessary before allowing the same.
797
68^5»4
Supreme Coubt of the United States.
Ck>f. TuM,
■Inioiit for the reason, as stated, that the
•et and all proceedings under it were void.
<hi April 2, 1896, the matter came on for
hearinff upon the motion of the bank to con-
firm the report of the commission and the
motion of tiie city to dismiss the proceedings,
mod on the last-named day the court sus-
tained the motion of the city and dismissed
the proceedings upon the ground that the act
under which the commission was appointed
was wholly void. This decision of the court
was excepted to by the bank, and thereupon
it prosecuted a writ of error from the su-
Sreme court of the territory to reverse such
ecision. On June 11, 1897, that court af-
firmed the decision of the district court, and
rendered judgment against the bank for
costs. To reverse this judgment an appeal
has been taken to and a writ of error sued
out from this court.
Me88rB, Henry £• Asp and Jolin W.
Sliartell for plaintiff in error and appel-
lant.
Messrs. W. J. Hushes* Jolu& J*, lK>tt»
Jolu& K. Rioliarde and D. R, Widmer for
defendant in error and appellee.
[532] *Mr. Justice Peokham, after stating the
facts, delivered the o|)inion of the court:
A motion is made in this case to dismiss
the appeal and writ of error on the ground
that nie simi involved is not sufficient to give
iurisdiction to this court. 26 Stat, at L. 81,
S 9. It is claimed that the amount is less
than $5,000 and that this fact appears from
the report of the commission, which allowed
but $4,315.22 as the amoimt due from the
city to the bank.
Section 4 of the act of the territorial leg-
islature, under which the commission act^,
provides that claims which are allowed and
approved by the district judge are to be cer-
ti&d to the mayor and council of the village
of Quthrie, who are directed to issue war-
rants upon the village for the amounts,
[683]* which l^ear interest at the rate of 6 per cent
from the date of the allowance by tne com-
mission, and a tax is to be levied as therein
provided for the payment of the warrants.
On March 28, 1896, when the city of Guth-
rie filed its motion in the district court to
dismiss the proceeding by the bank,
years and six months' interest had
upon the claim reported by the
and as by the terms of the act interest vai ts
be allowed from the filing of that report wf
to the time of the issuine of the vmmat,
which could not issue untfl after the report
had been approved by the district oourt, it is
plain that more interest had then aeeimd
than was necesisary to bring the amooC
then in issue beyond the sum of $5g00iL It
is proper to compute interest as part of tht
claim. Woodward v. SewHl, 140 U. S. M
[35: 478]. We think this is an assver to
itit motion to dismiss.
Other objections are made to the aet fey
the representatives of the city which will lit
noticed.
It is claimed that it violates the aet of
Congress, chapter 818, approved Jnly 30,
1886 (24 SUt. at L. 170), prohibidog the
passage of local or special laws in the terri-
tories. That act, among other things, pre-
vides that where a general law can ht imi
applicable, no special law shall be cuaetai
in any of the territories of the United Stata
bv the territorial legislatures thereof, and tX
also provides that the territorial legisUtsm
shall not pass local or special laws ia say
of the cases thicrein enumerated, wmmg
which is 8 law to regulate the praeties ii
courts of justice. Both of these pnmsaasi
are said to have been violated in toe peaifi
of the act in question.
Whether a general law can be made anS-
cable to the subject-matter in regara ts
which a special law is enacted by a territ*-
rial legislature, is a matter which we tkiik
rests in the judgment of the legisl&turt it>
self. Biate, \jcknson\, v. Hiu£oock,\ Kia.
184 [81 Am. Dec. 503]. That body is ^
cially prohibited from passing any local tf
special law in regard to certain subiects cm-
merated in the act. Outside and btyoii
that limitation ia the provision above bm-
tioned, and whether or not a general law am
be made applicable to the subject is a sit-
ter which IS confided to the judgi—ut flf
the le^slature.
^Neither does the act in this case reg«U>i(lM
the practice in courts of Justiee. Hm pro-
hibition of the statute of Congress reKatv ti
Sec 8. The commission or referees shall keep
a record of all claims filed with them for allow-
ance and keep their office open during the hoars
of nine o'clock in the morning and four o'clock
p. M.. and shall be allowed sixty days to hear
and determine all claims, or longer If the dis-
trict judge so orders. Said commission or ref-
erees shall Immediately after this appointment
extend ten days* notice in some newspaper pub-
lished In the village of Guthrie, notifying all
parties holding or owning any claims mentioned
In this act to present the same to them for al-
lowance; and all persons who fail to present
their claims within thirty days from date of
pablicatlon mentioned in this section shall be
forever precluded from so doing hereafter.
Sec. 4. That after the commission or referees
shall have paraed npon and allowed any and all
claims mentioned in this act, they shall make
a report. to the district court of same showing
the names and amounts allowed by them and
also all claims and the names of persons and
amonnts disallowed by them, for approval or
798
disapproval of the district Judge. Aad an
allowed and approved by the district jodft i
be certified to the mayor and council of ite
lege of Guthrie, who are hereby avtbortai
directed to issue warrants upon the ^taft
payable by the village to the boMefs sai
ers, payable In instalments, each of the
to be in one, two, three, four, and five ymr%.
bear interest at the rate of six per cent ptr i
nam from the date of the allowance by the
mission or referees, and said mayor aai
of the village of Guthrie shall levy a tax
property oi the residents of said vlllaft ti
the warrants herein referred to, Icryteg
upon each subdivision heretofore
Guthrie, East Guthrie, West Guthrie,
tol Illll, according to the amount of
created by the city couacila. the owyota
school boards, heretofore acting for aa< t
half of the people resident of said dttea
of sa'd cities to be liable for and taxable i
this act for the amount of Indebtedacsi
by them.
im.
GuTHBis National Bank t. Guthbul
634-586
the pMsiiig of a Uw by the territorial lev-
iBlatnre, Icwal or special in its nature, which
does in effect regulate the mode of procedure
in a court of justice in some particular lo-
cality or in some special case, thus altering
in such locality or for such case the ordinary
course of practice in the courts. The statute
here in qiiestion is of an entirely different
nature. It creates a special tribunal for
hearing and deciding upon claims against a
municipal corporation, which have no legal
obligaoon, ana which therefore could not be
enforced in a court, but which the Ic^^isla-
ture thinks haye sufficient equity and are
based upon a sufficiently strong moral obli-
eation to make it proper for it to provide
for their inyestigation and for the payment
of such as are decided to be pn^er, by taxa^
tion upon the property situated in the city.
Such an act does not in an^ way regulate
the practice in courts of justice.
The important question in this case is
whether the territorial l^slature by virtue
of the grant to it of legislative powers had
auUiormr to create this commission and to
provide for the payment of daims of the na^
ture mentioned in the act.
By s€K!tion 6 of the above-mentioned act of
Ccngress of May 2, 1890, chapter 182 (24
Stat at L. 81), the l^slative power of the
tcrritorjr extends to afl rightful subjects of
legislation not inconsistent with the Ck>nsti-
tution and laws of the United States. Some
other limitations are mentioned, not mate-
rial to be here considered. The same power
i^ also granted to all the territories by sec-
tion 1851, Revised Statutes of the United
States.
This territorial act was passed by the leg-
islature with reference to the circumstances
set forth in the statement of facts.
It was said by the supreme court of Okla-
homa in Outhiie v. The Territory, 1 Okla.
188 [21 L. R. A. 841], that "these provision-
al governments grew out of a necessity made
by the absence of legal authority. They
were affgregations of people associated to-
gether lor Uiepurpose of mutual benefit and
protection. Without any statute law, they
became a law unto themselves and adopted
^ the forms of law and government common
>]among ^civilized people, and enforced their
authority by the power of public sentiment.
They had no legal existence; they were non-
entities; they could not bind themselves by
bontracts or bind anyone else."
The services performed for and the mate-
rials furnished these provisional governments
under the circumstances stated would cer-
tainly be regarded as proper and as benefi-
cial, probably as absolutely necessary, for
the well-being of the people living there.
The villages which were subsequently incor-
porated under the law of the territory suc-
c^^ed to and enjoyed these benefits and
passed tiiem on to their successor, the city of
Guthrie, the present defendant in error and
appellee. These facts give great force and
s^engtb to the moral consideration support-
ing claims ot the nature here existing.
Though they could not be enforced at law,
the question is, whether the territorial le^s-
lature was unequal to the task of providing
173 V. S.
for their payment by the citv which haa t»
ceived the benefit as above aescribed.
This territorial act shows that only claims
of a municipal character and of a bona fide
nature could be allowed. It is also plain
that the use of the words "district judffe"
therein does not mean to distinguish be-
tween the judge and the court. There being
but one judge of that court the words are
seemingly u^ interchangeably with the dis-
trict court, and to mean the same as the lat^
ter expression.
We regard the power of the territorial 1^-
islature to pass tnis act as indisputable. It
comes within the grant to that legislature
contained in the act of Congress and in the
Revised Statutes above citea.
In United States v. Realty Company, 163
U. S. 427, 439 [41: 215, 219], the power of
Congress to recognize a moral obligation on
the part of the nation and to pay claims
which, while they were not of a le^ char-
acter, were nevertheless meritorious and
equitable in their nature, was affirmed. The
territorial l^slature at least had the same
authority as that possessed by Coneress to
recognize claims of the nature described. It
is a legislative power, and it was granted to
the territorial le^slature by the acts already
referred to. A city iB a municipal *corpora-[630|
tion and a political subdivision of the state,
and what the state could do itself it has the
power to direct its agent, the municipality,
to do.
In New Orleans v. Clark, 95 U. S. 644 [24 :
521], Mr. Justice Field, in delivering the
opinion of the court, and speaking of munici-
pal corporations, at pace 653 [24: 522], said:
''The books are full of cases where claims,
just in themselves, but which, from some ir-
regularity or omission in the proceedings by
which they were created, could not be en-
forced in the courts of law, have been thus
recognized and their payment secured.'' And
on page 654 [24: 523]: "A city is only a
political subdivision of the state, made for
the cimvenient administration of the govern-
ment. It is an instrumentality, witn pow-
ers more or less enlarged, according to the
requirements of the public, and which may
be increased or repealed at the will of the
legislature. In directing, therefore, a par-
ticular tax by such corporation, and the ap-
propriation of the proceeds to some special
municipal purpose, the legislature only exer-
cises a power through its subordinate asent
>%hich it could exercise directly ; and it does
this only in another way when it directs such
a corporation to assume and pay a particular
claim not legally binding for want of some
formality in its creation, but for which the
corporation has received an equivalent;" cit-
ing The People [Blandingi, v. Burr, 13 Cal.
343; Toum of Quilford v. Chenango County
Supervisors, 13 N. Y. 143. In the latter
case the legislature passed an act directing
commissioners to determine and award the
amount paid and expended by certain high-
way commissioners, and directing the board
of supervisors of the county to assess the
amount thus awarded upon the taxable prop-
erty of the town and to cause it to be paid
in satisfaction of the daim. This was held
799
58^-5uV
Supreme Coubt of the Uitited States.
Oct.
to be a yalid act, although the claim had been
rejected in a suit brought to obtain its pay-
ment, and a previous legislature had passed
an act directing the claim to be submitted to
the electors at a town meeting, and declacing
their decision should be final and conclusive,
and upon such submission the claim had
been rejected. It was said that the legisla-
ture of the state had power to levy a tax
upon the taxable property of the town and
|637]api>ropriate the *same to the payment of the
claim made by an individual against the
town even though the claim, to satisfy which
the tax was levied, was not recoverable by
action against the town; and it was held
that the state could recognize claims founded
in equity and justice in the larger sense of
these terms or in gratitude or charity.
It is not necessary to say in this case that
the legislature had the power to donate the
fimds of the municipality for purposes of
charity alone. The facts show plain moral
iprounds for the act, a consideration existing
in the benefits received and enjoyed by the
<uty or by its predecessors from whom it took
puch benefits. The legislature might have
decided the facts for itself, but instead of
that it appointed this tribunal.
In Read v. Plaitamouth, 107 U. S. 568 [27 :
414], the words of Mr. Justice Field in Jfew
Orleans v. Clark, supra, were quoted with
approval. In the exercise of this jurisdic-
tion over municipal corporations by the state
or by the territorial legislature, no constitu-
tional principle is vicHated. It is a juris-
diction which has been customarily exer-
cised ever since the foundation of the govern-
ment, and is based upon the power of the
state as soverei^ to itself recognize or to
compel any of its political subcu visions to
reco^pize those obligations which, while not
cogmzable in an^ court of law, are yet based
upon considerations so thoroughly equitable
and moral as to deserve and compel legisla-
tive reco^tion.
There is no force to the objection that in
ascertaining the facts provision must be
made for a trial by jury, if demanded, or
dse that the Seventh Amendment to the Con-
stitution of the United States is violated,
which provides that '4n suits at common law,
where the value in controversy shall exceed
twenty dollars, the right of trial by jury
shall be preserved."
This act does not infringe upon that
amendment. The proceeding under it is not
in the nature of a suit at common law, and
the cases already cited show the power of
the l^slature to provide for payment by
taxation of claims of the nature of those in-
volved herein.
The cases of Bank of Hamilton v. Dudley's
IS38]I/e9«ce, 2 Pet. 492 [7: 496], * American Pulh
lishing Company v. Fisher, 166 U. S. 464
[41: 1079], and Salt Lake City v. Tucker,
166 U. S. 707 [41 : 1172], were cases of suits
at common law, and Thompson v. Utah, 170
U. S. 343 [42: 1061], was a criminal case.
Those cases therefore do not apply here.
It is also stated that these daims were
not incurred by officers of either a de jure
or de facto government, and that hence there
was no power in the legislature to compel
800
the city of Quthrie to pay daias wUek It
never agreed to pay dtner as a eorporatui
de jure or de facto. But the eaaes abort
cit^ were cases where there was bo kfil
obligation to pay the claims, and the ads la
effect compelled their payment. TW mj
here was under a plain moral duty to provide
payment for honest and proper claims d xka
nature, and it seems as if it ought to be o-
tirely ready to pay them. If any daimi
were without merit or fraudulent, there wii
opportunity to show such fact before t^
commission and also before the distric!
court upon the hearing provided f or by tl»
act. The defendants in error say that thcrt
is by the act no opportunity provided far
any investigation of these claims by the dit-
trict court after the commission has reportd
the claims to that court, because the ui'
does not ^ve the court powo- to make taj
investigation for itself, we do not tee tkat
this is material even if true. We sit d
opinion, however, that the district eoort ku
such power. The statute provides is lectia
4 that the commisdon shall make a rcfort
to the district court, showing the nanes df
the claimants and the amounts allowed bf
the commission, and also all the daias tii
the names of persons and amounts disaDovd
by them, and this report the statute direeti
shall be made "for the approval or diasf-
proval of the distriet court." The resort
need contain nothing but what has just bea
stated, and it is obvious that on such t n-
port alone the district court would be eatin-
ly without means of determining whether tt
approve or disapprove the decision of tkt
commission in any particular dain. Bat
as the report of the commisdon is to be tmit
to the district court for its approval or in-
approval, it follows as of necessity thit tk
court has power to investigate for itself tk
facts UDon which the claims were foanded b
order tnat it may intelligently ^approre or^SI
disapprove of the decisions of the «■■»-
sion. It is not to be supposed that the pn-
vision in the act for making a report u> t&«
district court and for its approval or liiMf
proval was a purely formal matter, aad tkit
the court might arbitrarily, unreasoaabh, ir
improperly approve or disapprove any cUa.
If not, then the court must nave power is tk
necessary dischfirge of its duty to appron r
disapprove, to ascertain the facts aecesiart
to an intelligent discharge of that di^
These facts may be found by the eourt viu-
out a jury. As the statute does sot pren^
for a report of the facts found by the «■
mission upon which it based the allovmart
or disallowance of the daims or any d tha^
the court must itself find them in order w
approve or disapprove.
Although the act makes n^ provisus fc-
notice to the parties interested as to thi tarn
or manner in which the district eoart ^
proceed to investigate the character d tW
claims, yet in the absence of any s»ch pce^
sion the court having the duty to iavertif^
would have power to regulate the tiac d t^
hearing and provide for reasonable wtkt kf
its rules, so as to prevent surprise. Ws, a
substance, was held in Unit^ 8te0m '
Ritchie, 17 How. 625, 333 [15:23«, f>'
1896L
Thb Chattahoochee.
0^9-54^
where a similar lade of provision for notice
in a certain section of the act was referred
to and the power of the court to make rules
in regard to it was asserted.
Whether the act is to be construed as
making the decision of the district court up-
on the merits of any claim final, it is not now
necessary to decide. The district court has
refused to exercise any jurisdiction under the
act, because it decided the act was invalid.
Upon such a judgment we think a writ of
error was properly sued out from the terri-
torial supreme court under the ninth section
of the act (26 Stat, at L. 85), and under the
same section a writ of error from this court
to the latter court may properly issue.
The other questions set forth in the brief
of counsel for the defendant in error, relat-
ing to parties and matters of procedure, we
have examined, and regard them as without
merit.
We are of opinion that the district court
erred in dismissing these proceedings on the
)],a-ound of the invalidity of the *act under
which thev were taken, and that the supreme
court of ute territory erred in affirming that
judgment of dismissal, and we therefore re-
verse the judgment of the latter court and
remand the case with directions to that
court to reverse the judgment of the district
court, with directions to the district court to
proceed to a hearing of the claims upon their
merits.
8o ordered.
Hr. Justice Harlan dissented.
THE CHATTAHOOCHEE.
(See 8. 0. Reporter's ed. 54(MS55.)
When schooner ia liable for excessive speed
in a collision — damages when both par-
tiea are in fault.
L A schooner Is liable for excessive speed In
a collision with a steamer, when she was sail-
ing at a speed of 7 miles per hour, through a
fog, in waters where other vessels were fre-
quently met. and where her foghorn was heard
bj the steamer but once, or possibly twice*
when. If the vessels had been proceeding at
the speed required by law, their signals would
have been exchanged so many times that the
locality and course of each would have been
dearly made known to the other, and suffi-
cient time would have been giyen to the
steamer to take proper steps to avoid the
schooner.
2. In a libel for a collision between a schooner
and a steamship, which resulted in a total
loss of the schooner with all her cargo, while
the steamship was uninjured, In which the
court decides that both vessels were in fault
and that the damages should be divided, the
Ilbellants. as bailees for the owners of the
cargo of the schooner, are entitled to recover
of the steamship the entire value of the cargo,
but the latter may recoup one half of this
The docket title of this case Is Abram W.
Hendry ei oL, Appta, v. Ocean Steamship Com-
pany.
173 17. 8. U. S., Book 43. 5
amount from one half the damages sufferei
by the schooner.
[No. 27.]
Argued May S, 4, 1898. Ordered for Reargu-
ment January S, 1899. Reargued March
6, 1899. Decided ApHl S, 1899.
ON WRIT OF CERTIORARI to the United
States Circuit Court of Appeals for the
First Circuit to review a decree of that court
alHrming the decree of the District Court of
the United States for the District of Massa-
chusetts awarding to the libellants the value
of the cargo as bailees for its owners, and
one half of the amount of the loss of the ves-
sel to said libellants as owners thereof, and
ordering that the steamship miffht recoup
from the last amount one half of the total
damages to the carso, in a libel for a colli-
sion oetween the scnooner Golden Rule and
the steamship Chattahoochee, the libel being
brought by the owners of the schooner and
carffo against said steamship. Affirmed.
See same case below, 33 U. S. App. 510.
Statement by Mr. Justice Browni
*This was a libel for a collision which took[541]
place in the early morning of July 20, 1894,
southeast of Nantucket Shoals, between the
Canadian schooner Grolden Rule and the
American steamship Chattahoochee, resulting
in the total loss of the schooner and her car-
go-
The Grolden Rule was a topsail schooner
hailing from Liverpool, Nova Scotia, of
about 200 tons burden, and rigged with
twelve sails, including one double square sail
on the foremast. Her length over all was
110 feet. She was bound on a voyage from
Porto Rico to Boston with a full cargo of
su^r and molasses, and, at the time of the
collision, was sailing on her port tack, upon
a course north by east, one-half east, with a
free and fresh wind five to six points abaft
the beam. She was under full sail, except
one half of the square sail forward, which
was taken in about two hours before the colli-
sion. Her speed was the main point in dis-
pute. At the time of the collision the weath-
er was foggy, the wind blowing in moderate
breezes from the southwest, and the mate
was sounding a mechanical foghorn forward.
The Chattahoochee was an iron screw
steamship of 1,887 tons burden, 300 feet in
length, and running on a line between Bos-
ton and Savannah. She left Boston in the
afternoon of the 19th, and when off Cape
Cod, her master, owing to the foggy weather,
decided to take the outside passage bv Man-
tucket, instead of her regular course through
Vineyard sound. The outside course was
much clearer of vessels. Before the collision
the steamship was eighteen miles off the
South Shoal Lightship, on a course south-
west half west, proceeding at her full speed
of from ten to twelve knots an hour, and
blowing her whistle at the statutory inter-
vals after 12:30 o'clock. The ♦master and theL64«]
first officer with the quartermaster were in
the pilot-house, and a man was on the look-
out forward.
From the above statement it will be seen
801
(
642, 5iJ
Supreme Ck)UBT of the Uivited States.
Oor.Ti
I
that the two vessels were approaching upon
courses whidi converged at an angle of about
three points.
The officers of the schooner heard the
steamship's whistle from two to four points
off the starboard bow, a fact which was duly
reported to the officer of the deck. The whis-
tles of the steamship continued to be heard
on the starboard bow until she came in sight
some four or five lengths off, the schooner
keeping her course ana speed until the colli-
sion.
The master and lookout of the steamship
heard the fog signal of the schooner about
» two minutes oefore the collision, apparently
a point off their port bow. The order was
immediately given and obeyed to stop and aft-
erwards to reverse, and the wheel was put
hard aport in order to locate the sound.
When they first saw the sails of the schoon-
er they bore one and one-half points on the
port bow of the steamer. During this time
the helm of the steamer was hard aport.
Upon seeing the schooner, the steamship,
which was then swinging to starboard under
her port helm, order^ her engines full speed
ahead for the purpose of clearing the schoon-
er. The schooner kept her course and the
vessels came together at an angle of four
points, the steamship striking the schooner
forward of the foremast on the starboard
side, sinking her almost immediately. The
collision resulted in a total loss of the schoon-
er with all her cargo and property on board.
The steamship was uninjured.
The district court was of opinion that both
vessels were in fault for immoderate speed,
and that the damages should be divided.
Damages were awarded to the libellants,
as bailees for the owners of the cargo, to the
amount of $17,215.17, and to the libellants,
as owners of the vessel and for the value of
certain personal effects of the crew, in one
half the total amount of their loss, namely,
$9,205.43; and it was further ordered that
the owners of the steamship might recoup
from the said amount of $9,205.45 the sum
|M3]of $8,607.58, being one half of the *total dam-
ages to the cargo. An execution was ordered
against the claimants of the steamship and
iU stipulators for the sum of $597.87, this
being the difference between half the value
of the schooner and the personal effects of
the crew and half the value of the cargo for
which the schooner was thus held responsi-
ble.
Upon appeal to the circuit court of ap-
peals, that court affirmed the decree of the
district court upon the merits; but modified
the same with reference to the distribution
between the owners and master of the
Golden Kule on the one side and her mate
and crew on the other, finding that, as nei-
ther tlie mate nor her crew were responsible
for any fault in her navigation, the several
sums awarded the mate and crew should
have priority over the amounts awarded the
owners and master. 33 U. S. App. 610. *
Whereupon an application was made to
this court by the libellants for a writ of cer-
tiorari, which was granted.
ao2
Messrs. Easene P. Carrer and Movi
E, Blodgett, for Abram W. Hendry et si^
appellantis :
The faults of the Chattahoochee otkr
than those found by the court are:
Changing her course under a port Ivhs
without knowing the location of tne t&ili^
vessel whose fog signal she heard.
The City of New York, 147 U. S, 72, 17 L
cd. 84.
Another cause of the eollisioii was the fad
that the steamship did not it<9 aad did mt
reverse in time.
The Edgar F, Luckenback, 8 U. & Ipf. I,
60 Fed. Rep. 129, 1 C. C. A. 480; Tk$ W
land, 48 Fed. Rep. 331; Bunge y. Th4 VUpit,
1 Fed. Rep. 892.
The 9chooD«r Golden luile was iHtsil
fault.
What is a moderate rate of speed Iv a
sailing vessel in a fog in the place iHwra dw
collision took place?
The N. Strong [1892] P. 106; ffte J%m,
4 Asp. M. L. Cas. 640.
In the caee of The Naoooohee, 137 U. &
331, 34 L. ed. 688, where the co
off Cape May, the schoono', with all sail
was ffoing 4 knote per hoar, and the
ship between 6 and 7 knots. Tbe
was held alone to blame. In thai
sail was set on board of the aehooiier.
The Morning Light, 2 WalL 66«, K L
ed. 862; The Beta, L. R. 9 Prvbi Dir. IM;
The Zadok, L. R. 9 Prob. Div. 114; flf
Colorado, 91 U. S. 692, 23 L. ed. S79; Tli
Martello, 163 U. S. 64, 38 L. ed. 637.
But in cases of this kind much deiWifc
upon the density of the fog, and some tai^p
must be left to the judgn^nt aod diisite
of the master.
The Umhria, 166 U. S. 404, 41 L. ed-HA
The speed of the schooner Golden Rak Ai
not contribute to the collision.
The Martello, 39 Fed. Rep. 609 ; n< Oily
of New York, 147 U. S. 72, 37 L. ed. 64; fW
Ludvig Holberg, 157 U. S. 60, 39 L. ed. W:
The Comet, 9 Blatchf . 323 ; The Johm Km§,
1 U. S. App. 64, 49 Fed. Rm>. 469, 1 a Ci.
319.
The burden of proof is upon eadi nmd
to establieh fault on the part of the octe-
The Victory, 168 U. 8. 410, 42 L. cd. SH
The fault of the schooner was slight is
comparison with that of the stesA*^
Damages should be i^KKMrtioned bet west w-
sels according to the aegrees of faolt
12 Law Quarterly Review, 260; IS U»
Quarterly Review, 17, 241.
The rule of equal division ol dstr*
where both vessels are to blame has Wis
firmly established in England.
MarsdeOy Maritime Collision, 3d ed. IM;
The MUan, Lush. 388 ; De VauM v. M««-
dor, 4 Ad. & El. 420; 7*^ Stoomvmari JTesl**
chappy Nederland t. Peninsular 4 0. St^m
Nav. Co. L. R. 7 App. Cas. 795.
The United States courts sitting is sd-
miralty have always divided the Io«t bctvvrs
both vessels in cases of mutual faalt
The Maw Morris, 137 U. a 1, 34 U sd.
686; The Mary Ida, 20 Fed. Rep. 741; fW
Victory, 26 U. S. App. 271, 68 Ftd. Bi^
395, 15 C. C. A. 490.
188a
Thb Chattahoochbb.
548
Tbe rule of damages in case of collision
where tiiere is mutu^ fault under the Bar-
ter act.
The Delaware, 161 U. S. 459, 40 L. ed.
771; The SUvia, 64 Fed. Rep. 607, 35 U. S.
App. 395, 68 Fed. Rep. 230, 15 C. C. A. 362;
The Carib Prince, 63 Fed. Rep. 266, 35 U. S.
App. 390, 68 Fed. Rep. 254, 15 C. C. A. 385;
The Scotland, 105 U. S. 24, 26 L. ed. 1001.
Messrs, Arthur H. Russell and Charles
Theodore Russell, for the Ocean Steamship
Company, appellee:
The two inferior courts agreed in sub-
stance in all findings of fact. Their concur-
rent decisions upon a question of fact are
to be followed unless clearly shown to be er-
roneous.
Compania de Navigctcion la Flecha ▼.
Brauer, 168 U. S. 104, 42 L. ed. 398; The
Conqueror, 166 U. S. 110, 41 L. ed. 937;
The Richmond, 103 U. S. 540, 26 L. ed. 313.
The speed of the schooner at the time and
place and under the circumstances was im-
moderate and contrary to the articles of nav-
igation.
Act March 3, 1885, art. 13 ; The Martello,
153 U. S. 64, 38 L.' ed. 637 ; The Nacoochee,
187 U. S. 330, 34 L. ed. 687 ; The Colorado,
91 U. S. 692, 23 L. ed. 379; The Michigan,
25 U. S. App. I, 63 Fed. Rep. 280, 11 C. C.
A. 187; TheVmhria, 166 U. S. 404, 41 L. ed.
1053.
There is no distinction in the application
of the rule between a steamship and a sail-
ing vessel.
Lowndes, Collisions at Sea, 73; Spencer,
Collisions, S 50; The Johns Hopkins, 13
Fed. Rep. 185.
A rate of speed at night, in a dense fog,
which is immoderate and excessive for a
steamer, is less justifiable in a sailing ves-
sel under the same circumstances; and a
speed of 7 miles an hour in a fog in Long Is-
land sound is immoderate.
The Rhode Island, 17 Fed. Rep. 554; The
Louisiana, 2 Ben. 371; The Chancellor, 4
Ben. 153; The Colorado, 91 U. S. 692, 23 L.
cd. 379; The Wyanoke, 40 Fed. Rep. 702;
The Zadok, L. R. 9 Prob. Div. 114; The
Beta, L. R. 9 Prob. Div. 134; The Dordogne,
L. R. 10 Prob. Div. 6; The N. Strong [1892]
P. 105 ; The Virgil, 2 W. Rob. 201 ; The Vic-
toria, 3 W. Rob. 49; The Pepperell, Swabey,
Adm. 12.
The absence of the officer from the deck,
tnd the consequent necessity of abandoning
the lookout in order to take the wheel while
the man at the wheel went below to call the
officers, were gross negligence in the manage-
ment and navigation of the schooner.
Marsden, Maritime Collision, 439; The
Arthur Cordon, Lush. 270; The Khedive, L.
R. 5 App. Cas. 876; The Zadok, L. R. 9
Prob. Div. 114; Peck v. Sanderson, 17 How.
178, 15 L. ed. 205; The Charles L. Jeffrey,
6 U. 8. App. 370, 55 Fed. Rep. 685, 5 C. C.
A. 246; The City of Augusta, 50 U. S. App.
39, 80 Fed. Rep. 297, 25 C. C. A. 430.
Even fiagrant fault committed by one of
two vcFsels approaching each other from op-
posite directions does not excuse the other
from adopting every proper precaution re-
. 173 V. B.
quired by the special circumstances of ihm
case to prevent a collision.
The Maria Martin, 12 Wall. 31, 20 L. ed.
251 ; The America, 92 U. S. 432, 23 L. ed.
724 ; The Sunnyside, 91 U. S. 208, 23 L. ed.
302; The Elizabeth Jones, 112 U. S. 514, 28
L. ed. 812; The Boanerges, 2 Asp. Mar. L.
Cas. 239; The Legatus, Holt, Adm. 217;
Handayside v. Wilson, 3 Car. k P. 528; The
Vindomora, L. R. 14 Prob. Div. 172.
The time, the distance, the orders on
board the steamship, all indicate attention
and quick effort to avoid collision.
The failure to hear the fog horn on th«
steamer, even if in fact it was blown, as re-
quired, is not necessarily negligence.
The Annie Lindsley, 104 U. S. 185, 26 L.
ed. 716; The Negaunec, 20 Fed. Rep. 918;
The Lorenzo D. Baker, 24 Fed. Rep. 814;
The Rosetta. 59 L. T. N. S. 344; Goalee v.
Shute, 18 How. 463, 15 L. ed. 462; The Ne-
vada, 106 U. S. 154, 27 L. ed. 149.
The equity of divided damage — that is, of
requiring as between two tort-feasors in the
admiral^ as equal a distribution of the loss
as can l>e decreed — is the settled equity of
the English admiralty, and has been adopted
in this country by many late decisions.
The Woodrop-Sims, 2 Dodson, Adm. 83
Hay V. Le Neve, 2 Shaw, Sc. App. Cas. 395
Cayzer v. Carron Co. L. R. 9 App. Cas. 873
Marsden, Maritime Collision, 136; The
Catharine v. Dickinson, 17 How. 170, 15 L.
ed. 233; The Continental, 14 Wall. 355, 20
L. ed. 802 ; The Washington, 9 Wall. 513, 19
L. ed. 787; Atlee v. Union Packet Co. 21
Wall. 389, 22 L. cd. 619; The Sunnyside, 91
U. S. 208, 23 L. ed. 302; The Alabama, 92
U. S. 695, 23 L. ed. 763 ; The Juniata, 93 U.
S. 337, 23 L. ed. 930; The Stephen Morgan,
94 U. S. 599, 24 L. ed. 266; The Virginia
Ehrman, 97 U. S. 309, 24 L. ed. 890; The
City of Hartford, 97 U. S. 323, 24 L. ed.
930; The Connecticut, 103 U. S. 710, 26 L.
ed. 467 ; The Potomac, 105 U. S. 630, 26 L.
ed. 1194; The Sterling, 106 U. S. 647, 27
L. ed. 98 ; The Franconia, 16 Fed. Rep. 149 ;
Briggs v. Day, 21 Fed. Rep. 727 ; The Troy,
28 Fed. Rep. 861 ; The Britannic, 39 Fed.
Rep. 395.
This equity of equal division of the loss,
when caused by mutual fault, is not affect-
ed by statute limitation of liability, — at
least not until the balance is struck between
the two offending vessels.
The North Star, 106 U. S. 17, 27 L. ed.
91; the Atlas, 93 U. S. 302, 23 L. ed. 863;
The Manitoba, 122 U. S. 97, 30 L. ed. 1095;
The Stoomvart Maatschappy Nederland v.
Peninsular d 0. Steam Nav. Co. L. R. 7 App.
Cas. 795.
*Mr. Justice Brown delivered the opinion [543]
of the court:
There can be no doubt whatever of the lia-
bility of the steamer, and as she did not ap-
peal, of course she is estopped to deny such
liabilitv in this court.
1. Whether the Golden Rule was also lia-
ble for excessive speed is a question of more
difficulty. She was a topsail schooner,
rigged with twelve sails, all of which she was
carrying, except one half her double square
803
543-^6
SUPREMB COUBT OT THB UkTOD StATBS.
\
I
Bail on the foremast, which had been taken
in. She was sailing on her port tack with
the wind well abaft the beam, through a fog,
which did not admit of the hull of a vessel
being seen more than a few hundred feet
distant. It appears to have been a surface
fog, as the crew of the schooner are confident
[544]they saw the masts *of the steamer some
2,000 feet away. The district court was of
opinion that as she was sailing free, with a
fresh wind, her speed could not have been
less than seven or eight knots an hour. The
court of appeals found only that she was
making substantially all the speed of which
she was capable. Her master admits that
she was maidng from five to six knots; but
as her loff, which was taken in at 4 o'clock,
registered twenty-eight miles for four hours,
we think her speed ma^ be safely estimated
to have been seven miles an hour. While
the commerce in this locality was not as
great as it was in Vineyard sound, it was
not unlikely that they would encounter other
vessels coming down the coast. Was seven
miles a moderate rate of speed under the cir-
cumstances of this case?
Although the reports of the admiralty
courts are extremely fertile of cases turning
upon the proper speed of steamers in foggy
weather, there is a singular paucity of su3i
as deal with the spe^ of sailing vessels.
Such as there are, however, point to a uni-
formity of regulation applicable to the two
classes. The earliest of these cases is that
of The Virgil (1843) 2 W. Rob. 201. This
was a collision between two sailing vessels
in a dark and hazy night, although there
does not seem to have b^n a fog. As it ap-
peared that the Virgil had the wind free,
and was sailing under a full press of canvas,
she was held in fault for too great speed.
Her actual speed is not eiven. In the case
of The Victoria, 3 W. Rob, 49, a vessel run-
nin£^ before the wind on a dark and cloudy
night at the rate of from five to six knots an
hour off the English coast, was held to have
been in fault for proceeding at that rate of
speed.
Upon the other hand, in the case of The
Homing Light, 2 Wall. 550 [17: 862], a brig
running through Buzzards' Bay in a dark
and rainy night, was held not to have been
in fault for not shortening sail. The court,
commenting on the case of the Virgil, ob-
served: "But such a restriction," as was
laid down in that case, "can hardly be ap-
plied to sailing vessels proceeding on their
voyage in an open sea. On the contrary, tiie
general rule is that they may proceed on
their voyage although it is dark, observing
all the ordinary rules of navigation, and
[M5]with *such additional care and precaution as
experienced and prudent navigators usually
employ under similar circumstances. They
ahould never, under such circumstances, haz-
ard an extraordinary press of sail, and incase
of unusual darkness it may be reasonable to
require them, when navigating in a narrow
pathway where they are liable to meet other
vessels, to shorten sail if the wind and
weather will jjermit." The actual speed of
the Morning Light is not ffiven, although the
wind seems to have been blowing a five to six
804
knot breeze, which would indicate a i
what lower rate of speed than ib this
In the case of The Ittnerant, 2 W. Bob. 2M.
decided in 1844, Dr. Lushinston was of i|ia>
ion that it was the duty of the ihifMiHir,
whether in a dense fo^ or great daitms, t»
exercise the greatest vigilance and to Mt
vessel under command, althoo^ week pre-
cautions might occasion dday in tW fnat-
cution of the voyage. "It may be,** taid W.
"that for such a purpose it wooM be his iatj
to take in his studding sails; but sodi is tk
constantly varying combination of antm-
stances arising from locality, wind, tUt,
number of vessels in the trade, and other «i>
siderations, that the court cannot ycatan at
lay down any f^eral rule which woaU t^
solutely apply in an cases." So, too, ia fW
Pepperell, Swabey, Adm. 12, Dr. LuAi^gta
held a sMp preceding in the Kort^ Set ti
the rate of six and one-half knots aa hsv
during a night so dark that veaads coaU ot-
ly be seen at a distance of 100 to 200 jvb.
was in fault if she knew, or ought to
known, that she was croesinff a
ground. See also The Lord Bmmmerm, I
Notes of Cases, 600; The^JmUet Erekme, U.
G33.
These cases were all decided bdon fti
new steering and sailing rules, whkk vai
ilrst adopted in 1863 by a Britiah Orier ■
Council, and in 1864 by an act ei Coapva
The twenty-first of these rules, as thtgrw-
pear in the Revised Statutes, aectioa 4m,
requires that "every steam vend AeXi, vte
in a fog, go at a moderate speed.* Ks ba^
tion is made in this rule of aailiag veads
but the courts, both in ^''^g^^**^ aM Aavv
ca, so far as they have spoken upon tht i^
ject, have adhered to the mle laid
the earlier cases above dted— that
speed which would be considered i
for steamers are open to like
in the case of sailing
in The Chancellor, 4 Ben. 153, liO. Ia fW
Thomas Martin, 3 Blatchf. 517, a e^emm
was condemned by Mr. Jnstiea IMhb tv
radng on a night whidi was not mvaSf
dark, yet was so overcast and don^j tkitf »
vessd without lights could not be wtm rt >
distance exceeding a half rafle. Tin m^eet
er had all her sails »et, witk n pnttr fi^
wind, and was running at a rate m ^^
that, under the drcumstnneei, he dM^
could not wdl be iustified eamiimief ■>
character of the night.
In the caae of The Johm Bomkim, U M
Rep. 185, it was hdd by Mr. Jj^tke 9b^
Ian and Judge Lowdl that, in «Mt d s h(
and in a place mudi freqnented 1^ ««k»
it was as much the duty of a saibm ^^
to go at a moderate rata of mni m ft «•
the duty of a steamer. In tlut tern s ^
sailing with the wind nearly aft ani vii«
eight to nine knota through the walv. «*>
a current of two knota in her fiwer, «f tfes
coast of Cape Cod, waa hdd to have \em ■
fault for a collision with a stasBsr is *
dense fog. So in 7Ae Wfonoli, 40 M^ ^
702, it was hdd by Judge Brovt, d ^
southern district of New York, tkst s
^
er having nearly all her canvas set sal i*-
' ning in a dense fog off Cant Mfj st s ««4
I8i»b.
The Chattahoochsb.
546-549
of six knots an hour, was not going at the
moderate speed required by law. In The
Attila, Cook's Ca. 196, the vice admiralty
court at Quebec condemned a sailing vessel
for numing at a speed of six or seven miles
an hour, in a dense fog in the fairway from
the Atlantic ocean, between Cape Ray and
St Paul's island into the. Gulf and the lower
waters of the St. Lawrence river, although
there was abundance of evidence that this
was the customary rate of speed during a
fog in this locali^.
In 1879 a new Code was adopted in Eng-
land, and in 1886 in this country, article 13
(d which provides that ''every ship, whether
a sailing shif or steamship shall, in a fog,
mist, or falling snow, go at a moderate
speed."
In the case of The Elysia, 4 Asp. M. L.
Gas. 540, it was held by the admiralty court
[and by the court of ^appeal in England, that
a speed of five knots in the case of a sailing
ship out in the Atlantic ocean in a fog, is a
moderate speed, although at the time she was
imder all plain sail ana going as fast as she
could with the wind on her quarter. Lord
Justice Brett was of opinion that a moderate
•peed was not absolutely the same with re-
gard to a steamer as to a sailing vessel. "If
you were to say that three knots were a mod-
erate speed for a steamer in which to turn
from one point to another when out in the
ocean, that does not presume that that would
be a moderate speed for a sailing vessel, be-
cause a steamer can reduce her speed to a
knot and a half. It would, however, be very
dangerous for a sailing vessel, under all cir-
CTunstances, to reduce ner speed to anything
like three Imots, because such a speed would,
in certain circumstances, place her entirely
out of command."
In the Zadok, L. R. 9 Prob. Div. 1 14, which
was a collision between a steamship and a
barque in the English channel, it was held
to have been the duty of the barque to reduce
her speed so far as she could consistently
^ith keeping steerageway, and as it was
shbwn that she was carrying nearly all her
canvas and proceeding at a speed of more
than four knots an hour, she was held to
he in fault and the steamer exonerated. A
like ruling was made by the master of rolls,
speaking for the court of appeal in The Beta,
L. R. 9 Prob. Div. 134. The collision took
place in a dense fog in the Bristol channel,
itnd it was held that a vessel must not go
faster than would enable her to be kept un-
der command.
In the case of The N. Strong [1892] P. 105,
which was a collision in the English channel,
it was held that a sailing vessel which was
making about four knots an hour in a fog
was not proceeding at a rate of speed beyond
what was necessary to keep her well under
command.
The cases in the American courts are of
the same purport. In The Rhode Isla/nd, 17
Pcd. Rep. 554, it was held by Judge Brown
of the southern district of New York, that
^ epeed of seven knots an hour in a foggy
evening in Long Island sound was not a mod-
erate rate of speed, although the twenty-first
173 V. 8.
rule did not apply in terms to sailing ves-
sels.
*No absolute rule can be extracted from[5481
these cases. So much depends upon the den-
sity of fog and the chance of meeting other
vessels in the neighborhood, that it is impos-
sible to say what ought to be considered
moderate speed under all circumstances. It
ha.s been said by this court, in respect to
steamers, that they are bound to reduce their
speed to such a rate as will enable them to
stop in time to avoid a collision after an
approaching vessel comes in si^ht, provided
such approaching vessel is herself going at the
moderate speed required by law. It is not per-
ceived wh^ the considerations which demand
a slackening of speed on the part of steam-
ers in foggy weather are not equally per-
suasive in the case of sailing vessels. The
principal reason for such reduction of speed
IS that it will give vessels time to avoid a
collision after coming in sight of each other.
If two steam vessels are approaching upon
converging courses at a combined rate of
speed of thirty miles an hour, and are only
able to see each other three or four lengths
off, it would be practically impossible to
avert a collision; whereas, if each were go-
ing at the lowest rate of speed consistent
with sood steerageway, a collision mi^ht
easily be avoided by stopping and reversing
their engines, or by a quick turn of the wheel
and an order to go ahead at full speed. While
sailing vessels have the right of way as
against steamers, they are bound not to em-
barrass the latter, either by changing their
course or by such a rate of speed as will pre-
vent the latter from avoiding them. There
is also the contingency that a schooner sail-
ing with the wind free, as in this case, may
meet a vessel closehauled, in which case the
latter has the ri^ht of w^, and the former
is bound to avoid her. Beyond this, how-
ever, a steamer usually relies for her keep-
ing clear of a sailing vessel in a fog upon her
ability to stop and reverse her engines;
whereas, it is impossible for a sailing vessel
to reduce her speed or stop her headway
without maneuvers which would be utterly
impossible after the two vessels come in sight
of each other. Indeed she can do practically
nothing beyond putting her helm up or down
to "ease the blow" after the danger of col-
lision has become imminent. Tne very fact
that a sailing vessel can do *so little by man-[5491
euvering is a strong reason for so moderat-
ing her speed as to furnish effective aid to
an approaching steamer charged with the
duty of avoiding her.
In this case the Golden Rule, though not
pursuing the most frequented path of coast-
wise commerce, was sailing through waters
where other vessels were frequently met, and
not far from the usual track of transatlan-
tic steamers. Her foghorn was heard by the
steamer but once, or possibly twice, while if
the vessels had been proceeding at the speed
required by law, their signals would have
been exchanged so many times that the lo-
cality and course of each would have been
clearly made known to the other. In other
words, sufficient time would have been given
for the steamer to have taken the proper
805
(
549-558
Supreme Court or the United Sta<
steps to avoid the schooner. Upon the whole,
we are of opinion that the courts helow were
right in condemning the schooner for immod-
erate speed.
2. An important question of damages re-
mains to he considered. Lihellants, as bail-
ees for the owners of the cargo, proceeded
against and were hdd entitled to recover of
* the steamship the entire value of the cargo,
but the latter was allowed to recoup one half
of this amount from one half the amount of
damages suffered by the schooner. This ap-
pears to have been done upon the author!^
of The North Star, 106 U. 8, 17 [27:91], in
which it was held that, where a collisicm oo-
eorred through the mutual fault of two ves-
sels, one of which was sunk and the other of
which was damaged, the owners of the sunk-
en veseel were not entitled under the limited
liability act to an entire exoneration from
liability, but that the damage done to both
vessels should have been added together in
one sum, and equally divided, and a decree
should have been pronounced in favor of the
vessel which suffered most against the one
which suffered least, for half the difference
between the amounts of their respective
losses. A similar ruling was made in The
Manitoba, 122 U. S. 97 [30: 1095], and in
The Btoomvaart Maatsohappy NederUind v.
Peninsular S Oriental Steam Nav, Co. L.
K. 7 App. Gas. 795.
But libellants insist in this connection
that the act of February 13, 1893, known as
[WOJthe Harter act, has modified the ^previous
existing relations between the vessel and her
cargo, and has an important bc»uring upon
this branch of the case. By the third sec-
tion of that act, the owner of a seaworthy
vessel (and, in the absence of proof to the
oontrarv, a vessel will be presumed to be sea-
worthy) is no longer responsible to the car-
go for damage or loss resulting from faults
or errors in navigation or management. This
section is made applicable to "any vessel
transporting merchandise or property to or
from any port in the United States;" and
we know of no reason why a foreign vessel
like the Grolden Rule, engaged in carrying a
car^o from a foreign port to Boston, is not
entitled to the benefit of this provision. Had
the cargo of tho schooner arrived at Boston
in a damaged condition, it is dear that the
vessel might have pleaded the statute in ex-
oneration of her liability, if the damage had
occurred through a fault or error in naviga-
tion, such, for instance, as a collision due
wholly or partly to her own fault. So, if a
vessel and cargo be totally lost by such fault,
we know of no reason why the owner of the
vessel is not entitled to the benefit of this
section, as well as to his exemption under
the limited liability act.
The reasons which influenced this court
to hold in the case of The Scotland, 105 U.
a 24 [26: 1001]. that the limited liability
ftet applied to owners of foreign as well as
idomestic vessels, and to acts done on the high
eeas, as well as in the waters of the United
States, apply with even greater cogency to
this act. ''In administering justice," said
Mr. Justice Bradley, p. 29 [26: 1003], **be-
tween parties, it is essential to know by
806
what law, or eode, or syiUm of
mutual rights are to be
they arise in a particolar
state, they are senerally to be <
the law of that state, llioee laws
if ft
all transactions whidi take plaes whars €kty
prevail, and give them their eolor aad l^fil
effect. . . . But if a ^'wJi^^Lf^i
the hiffh seas, where the law of no ,
state nas exclusive force, but all are _^ .
any forum called upon to settle the ri^kim stf
the parties would prima facie
them by its own law, as pre
pressing the rules of juatiee;
^be the legislative will that aar .
privilege uiould be enjoyed l^its
sens alone, eatress provision wiB be
that effect . . . But the great .
the laws are, or are intended to be,
sive of the rules of justice, and are
ble alike to all. . . . But there is'
mand for such a narrow constiuetioa ol ear
statute" (as was given by the EMliah
to their limited BabiUty aei>7^ k
that part of it which prescribes the
rule of limited respcmubiUty of shis
And public policy, m our view, req«irea thai
the rules or maritime law as swaated W
the United States should apply to all
as far as it can pro^ly be dose. If
are any specific provisions of oar law ^
cannot be applied to foreifnera, or fsrabs
ships, they are not such as interfere with nt
operation of the general rule of lladted i*^
sponsibility. That rule and the Mode ef m^
forcing it are equallv apnUeable to aB.
They are not restricted by the teraw ef tkt
statute to any nationality or ^^^^i^a We
think they should not be restricted fay em-
stmction.'' It will be obsoired that the !■»>
^:uage of the Harter act is more sasriir Is
its definition of the vessds to whi^ it h
ap|)licable, than the limited Uahditj ML
which simply uses the words ""aay vsaiL*
whereas, by the third section of the Hartv
act, it is confined to "any vesael tisMpsrt
ing merchandise or property to or tram sa^
port in the United SUtes." Where Q»
gress has thus defined the vessels ta wIM
the act shall apply, we have no rMt ts ssi^
row the definition. It may work iajastjai
in particular cases where the excniDtiaBs mm
accorded to vessels of foreign aati ^
have no corresponding law, but this is
a matter within the purview of the
It is not improbable that simHar pn
nfav ultimatelv be incorporated la the Ma
era! maritime law. Indeed, the act has mb
already held by this court applieahle ts ivr
eipm as well as to domestic vesseK (T%i AS*
via, 171 U. 8. 462 [ante, 241].) See else tW
Etona, 64 Fed. Rep. 880 ; The Si^mm [U V
8. App. 305], 68 Fed. Rep. 230.
Assuming, then, that the Barter act a^
plies to foreign vessels, we ars acxt ts Is-
quire into its effect upon the divisioa of daa-
ages in this case. It was held by thb esart
in the *case of The Atlas, 93 U. 8. WK (V :
863]. that an innocent owner of a
not bound to pursue both collidiag
though both ma^ be in fault, but k .
to a decree against one alooe for the
amount of his damages. It was heM W tks
iscd.
Thb Chattahoochbb.
662-554
courts below that, while the action by the
•owner of the cargo would lie against the
steamer for the whole amount of damage
done, the owners of such steamer were en-
titled to recoup one half of this amount
against one half of the amount awarded to
the owners of the schooner for the loss of
their vessel, upon the tneory that, under the
limited liability act, they were liable for one
hmll this amount, not exceiiedinf; the value of
the schooner. But libellants insist that as
the third section of the Harter act declares
that the owners of a seaworthy vessel shall
not be liable in any amount for damage or
I068 resulting from a fault or error in navi-
Sition, the owners of the schooner are enti-
ed to this exoneration, whether the action
be directly against the vessel by the owner of
the cargo, or by a third party, who is claim-
ing the riffhts to which he is entitled, and
who for that purpose is standing in his
•hoes. That the exemptions of the act are
not intended for the benefit of the steamship
or any other vessel, by whose negligence a
collision has occurred, but for the benefit of
the eairyin^ vessel alone; and if she be held
liable in this indirect manner for a moiety
of the damages suffered by the cargo, the act
is to that extent disregarded and nullified.
That the amount which is paid by recoup-
ment from the just claim of the schooner
against the steamship is paid as effectually
as it would be by a direct action by the own-
ers of the cargo against the schooner; and
while in this case it works an apparent hard-
ship upon the steamer (a hardsnip more an-
ptLTcnt than real, owing to the greater fault
01 the steamer;, it does not in reality ex-
tend her liability, but merely prevents her
taking advantage of a deduction to which
without the act she might have been en-
titled.
But the majority of the .court are of opin-
ion that the principles announced by us in
The North Star, 106 U. S. 17 [27: 91] ; The
Manitoba, 122 U. S. 97 [30: 1095] ; The DeU
aware, 161 U. S. 459 [40: 771] ; and The Ir-
rau>addff,l7l U.S.187 [ante, 130], are equal-
*^]ly applicable here. *The case of the North
Star 18 especially pertinent. That case arose
from a collision between two steamships, one
of which, the Ella Warley, went to the bot-
tom, while the other was considerably dam-
aged. The suit was tried upon litiel and
eross-libel, both vessels found in fault, and
the damages ordered to be divided. No
question arose with re^rd to the cargo, but
tne owners of the Ella Warley raised a ques-
tion as to the amount of their recovery under
the limited liability act, which provides
(Bev. Stat: § 4283) that "the liability of the
owner of any vessel ... for any loss,
damage, or injury by collision . . . oc-
casiosMed, or incurred, without the privity
or knowledge of such owner or owners, shall
in no case exceed the amount or value of the
interest of such owner in such vessel, and her
freight then pending." It seems that, if the
vessel be totally lost, the liability of her
owner is thereby extinguished. Norwich
Company v. WHght, 13 Wall. 104 [20: 685].
The owners of the Ella Warley sought to ap-
ply this rule to a case of mutual fault, and
173 V. 8.
contended that, as their vessel was a total
loss, the owners were not liable to the North
Star at all, not even to have the balance of
damage struck between the two vessels; but
that half of their damage must be paid in
full without deduction of half the damage
sustained by the North Star. But the court
held ''that where both vessels are in fault,
they must bear the damage in equal parts;
the one suffering the least being decreed to
pay to the other the amount necessary to
make them equal, which amoimt, of course,
is one half 01 the difference between the re-
spective losses sustained. When this result-
ing liability of one party to the other has
been ascertained, then, and not before, would
seem to be the proper time to apply the rule
of limited responsibility, if the party decreed
to pajr is entitled to it It will enable him to
avoid parent pro tanto of the balance
found against him. In this case the duty of
payment fell upon the North Star, the own-
ers of which have not set up any claim to a
limit of responsibility. This, as it seems to
us, ends the matter. There is no room for
the operation of the rule. The contrary view
is based on the idea that, theoretically (sup-
posing both vessels in fault), the owners of
the one are liable to *the owners of the other[554I
for one half of the damage sustained by the
latter; and, vice versa, that the owners of
the latter are liable to those of the former
for one half of the damage sustained by her.
This, it seems to us, is not a true account of
the legal relations of the parties. It is never
so expressed in the books on maritime law.
. . . These authorities conclusively show
that, according to the general maritime law,
in cases of collision occurring by the fault of
both parties, the entire damage to both ships
is added together in one common mass and
equally divided between them, and thereup-
on arises a liability of one party to pay the
other such sum as is necessary to equalize
the burden. This is the rule of mutual lia-
bility between the parties."
In delivering the opinion Mr. Justice Brad-
ley cited and disapproved of the case of
Chapman v. Royal Netherlands Steam Navi-
gation Co. (L. B. 4 Prob. Div. 157 ) , which was
much relied upon by counsel .for the Ella
Warley. It is interesting to note that this
case was overruled bv the House of Lords
three months before the opinion in the North
Star was delivered, in the case of the Stoom-
vaart Maatschappy Nederland v. The Penin'
sular and Oriental Steam Navigation Co. L.
B. 7 App. Cas. 795, and the rule laid down in
the North Star adopted. The same rule was
subsequently applied in The Manitoba, 122
U.S. 97 [30: 1095].
The other cases are not directly in point,
but their tendency is in. the same direction.
In that of The Delaware, 161 U. S. 459 [40:
771], it was said that the whole object of the
Harter act was to modify the relations pre-
viously existing between the vessel and her
car^o, and that it had no application to a
collision between two vessels. In The Irra-
waddy, 171 U. S. 187 [ante, 130], it was held
that, if a vessel be stranded by the negli-
gence of her master, the owner had not the
right, under the Harter act, to a general av-
807
(H(i-657
SUPBEMS COXTBT OT THS UffinD SIATK8.
erage contribution for sacrifices made and
suf^red by him subsequent to the stranding,
in successful efforts to save the vessel,
freight, and cargo.
But if the doctrine of the North Star be a
sound one, that in cases of mutual fault the
owner of a vessel which has been totally lost
by collision is not entitled to the benefit of an
act limiting his liability to the other vessel
[M5]until after the balance *of damage has been
struck, it would seem to follow that the
sunken vessel is not entitled to the benefit
of any statute tending to lessen its liability
t# the other vessel, or to an increase of the
burden of such other vessel, until the amount
of such liability has been fixed upon the prin-
ciple of an equal division of damaees. This
is in c^ect extending the doctrine of the Dela-
ware case, wherein the question of liability
for the loss of the cargo was not in issue, to
one where the vessel suffering the greater in-
jury is also the carrier of a cargo^in other
words, if the Harter act was not intended to
increase the liability of one vessel toward
the other in a collision case, the relations of
the two colliding vessels to each other remain
unaffected by this act, notwithstanding one
or both of such vessels be laden with a cargo.
We are therefore of opinion that the court
of appeals did not err in deducting half the
value of the cargo from half the vuue of the
sunken schooner, and in limiting a recovery
to the difference between these values.
The decree is affirmed.
The Chief Juatioe and Mr. Justice
Peokluun dissented.
United SUtes CircnH OoiiTt far tkt
District of Texas, for the icuiway ei kai
in Ilarris County, Texaa, aod taka by vrit
of error to the said Circuit Coort ol
QueaiUm answered im the affitmuHm.
ELIZA COOPER et al, Plffa. in Err^
V.
EDWARD S. NEWELL and Clarence B.
Smith, Executors.
<Se« S. C. Reporter*! ed. 555-678.)
Jurisdiction of state court, when open to
inquiry — evidence,
1. When a judgment of a state court comes un-
der cons'deratioD In a court of the United
States sitting In the same state, the ques-
tion of Jurisdiction of the state court to ren-
der the judgment Is open to Inquiry In the
United States court.
2. In such case, evidence is admissible to con-
tradict the recital in the judgment that de-
fendant was a citizen and resident of the
state, and to show that he was not served
with process and that the attorney who ap-
peared for him had no authority to represent
bim.
[No. 134.]
Argued and Submitted January 12, IS, 1899.
Decided April S, 1899.
ON CERTIFICATE from the United SUtee
Circuit Court of Appeals for the Fifth
Circuit certifying; a certain question of law
to this court n>r decision in an action
brought by Stuart Newell, for whom his ex-
ecutors, Edward S. Newell et al., were sub-
stituted, against Eliza Cooper et al., in the
808
Statement by Mr. Chief Jostiee
*Thi8 is a certificate fromUkeeireatt<
of appeals for the fifth circuit,
the ''suit WES originally brought fay
Newell against Eliza Cooper and B. P. Oas^
er and Fannie Westrooe, aa defendsnti, n
the circuit court in ana for the eastera fi»-
trict of Texaa, sitting at GalTestos, ia tkt
ordinary form of trespaae to try title, mmia
the Texas statutes, to recover one huadni
and seventy-seven acres of land in Harris
county, Texas, described ia plaintifi peti-
tion, which said petition was filed oa the $tk
day of Julv, 1890. The said Stoart Kcvcll
was alleged to be a citixen of New York, sai
the said defendants all dtiiana ol Tezaa'
That prior to the trial Stuart NewcO diei
and the proper persons were duly Bade par-
ties plaintiff, as well as an additional part^
defendant, and plaintiffs filed their iftk
amended original petition, in whiek, ia ad-
dition to the usual avermenta required to ht
made by the Texas statutea in an aedoa rf
trespass to try title, plaintiffs further si-
leged that defendants ^aet iy title tpftehy*!
in controversy through a juagm^ rorissi
Mav 21, 1850, in the distriet eowt of Bra-
zoria county, Texas, in fa^or of Peter Ik-
Grad and aj^nst Stuart Kewdl, a eertiiii
copy of which proceedings waa atticfasHji
and made a part of said annended petitte;
and "that said judgment waa null aai ^^A
and was not binding on the said Stnait Kc*-
ell nor plaintiffs, nor could defendants dsin
title under said judgment for the foQsmi
reasons, viz.:
"That at the time of the filing of «ii
suit and the rendition of said judgneit sui
Stuart Newell was not a resident A Braaoris
county, Texas, nor of the state ol Texas, ■«
was lie then within said Braabria eooitf «
the state of Texas; that at no tone did kt
ever reside in Bracoria coonty, Tazas; tkst
on the 2d day of Januanr, 1848, said Stvn
Newell, who then resided in Oalrsstoa eoo-
ty, Texas, removed from said Qalvestoa e^a-
ty to the city of Philadelphia, in the ttat* rf
Pennsvlvania, and resided in aaid eit; d
Philadelphia, in the sUte ol Peaaavtraaa
continuously from said date until tht 7«r
1854, when he removed from said dty rf
Philadelphia to the city of N«fw York, ta tte
state of New York, where he eontinoed tc n^
side up to the time of his death, to wit, A|ri
nth, 1891.
"Tliat during the time of his nMmn It
the city of Phitadelphia he was a rsndfiA
citizen of the state of Pennsylvania, and te*
ing his residence in the citv of New T«ft
lie was a resident citixen of the state of Kf«
York, and has never at any time been a do-
zen of the state of Texas, nor has he, at saf
time since the year 1848, when he kit <w-
veston county, been anywhere in the ital* if
Texas, but at all times since said yesr l$lt»
up to the time of his death, had recidcd •i'
been without the limits ol the said ttalt ^
18118.
COOPBB T. NkWSLL.
657-500
Texas and within the said city of Philadel-
phia, state of Pennsylvania, and the said
eitj of New York, in the state of New York ;
that Stuart Newell waa never served with
citation, process, or otherwise notified of the
existence of said suit of Peter MoOrael v.
Stuart NetoeU; nor was he a party to said
tnit with his Imowledge, consent, or approv-
al; nor did he submit himself to the juris-
diction of the said court; nor did he employ
9]or 'authorize anyone to represent him or en-
ter an appearance in said suit; nor did he
know of the existence of said suit in any
manner until just prior to the institution
of this suit.
"That If any attorney appeared for said
Stuart Newell in said suit he did so without
any authority, permission, knowledee, or
consent of or from the said Stuart Newell,
and that such appearance, if any there was,
was through collusion with said attorney
and plaintiff in said suit to injure and de-
fraua the said Stuart Newell; and it was
expressly denied that I. A. or J. A. Swett
had anr authority or permission from said
Stuart Newell to enter an appearance in said
cause, nor was such appearance on the part
cf the said I. A. or J. A. Swett done with the
knowledge, consent, or approval of said
Stuart Newell ; that at the time of the entry
of said judgment said Stuart Newell had a
meritorious defense to said suit, and was the
owner in fee simple to the lands herein sued
for by virtue of a deed of conveyance to him
from said Peter McGrael, plaintiff in said
suit, executed and delivered on August 9th,
1848,- and tiiat at no time since said date
had said Peter McGrael any title or interest
in the lands in controversy. Attached to
plaintiffs' said petition was a certified copy
oi the record in the case of Peter McOrael
T. Stuart NeweU in the district court of Bra-
foria county, Texas, to which was attached
the certificate of the clerk that said record
contained a full, true, and correct copy of
all the proceedings had in said suit, and
which record was afterwards put in evidence
on the triid by defendant.
"This record consisted of, 1st, a petition
in the ordinary form of trespass to ti^ title,
in which Peter McGrael was plaintiff and
Stuart Newell was defendant, and in which
petition it was alleged that Peter McGrael
was a resident citizen of the county of Bra-
zoria, state of Texas, and that Stuart Newell
was a resident citizen of the county of
Brazoria, state of Texas. A number of dif-
ferent tracts of land, one of which was situ-
ated in Brazoria county, were described in
said petition, among them the land in con-
troversy, which was alleged to be situated,
then as now, in Harris county, Texas. Said
getition likewise contained a prayer that
tuart *Newell be cited to appear before the
next term of the said district court of said
Brazoria county, and that he be condemned
to restore to plaintiff the peaceable posses-
sion of the said lands, and that he and all
other persons be thereafter restrained from
disturbing plaintiff in the possession and use
thereof, and that defendant be condemned
to pav plaintiff five thousand dollars dam-
ages for taking possession of said tracts of
173 V. S.
land, and also be condemned to pay a reason-
able rent for the same. Prayer was like-
wise made for general relief, and that plain-
tiff be Quieted in his title and possession of
the said land. This petition was filed on
the 20th day of May, 1850, and contained the
following indorsement * 'This suit is brought
as well to trv title as for damages. J. B.
Jones, att*y for plaintiff.'
"2d. The following answer, filed May 20»
1850, viz.:
« <
In the Honorable District Court, May
Term, A. D. 1850.
Peter McGrael
I.)
V8.
Stuart Newell.
" 'And now comes the defendant, Stuart
Newell, and says that the matters and things
in plaintiff's petition are not sufficient in law
for the plaintiff to have or maintain his said
action against this defendant. Wherefore
he prays judgment.
(Signed) J. A. Swett,
Att'y for Defendant.
" 'Ai^ now, at this term of your honorable
court, cornes the said defendant, Stuart New-
ell, and defends, etc., and says that he denies
all and singular the allegations in said plain-
tiff's petition contained.
(Signed) J. A. Swett,
Att'y for Defendant.
" 'And for further answer in this behalf
the said defendant says that he is not guilty
in manner and form as the said plaintiff in
his said petition hath complained against
him; and of this he puts himself upon the
country.
(Signed) J. A. Swett,
Att'y for Defendant.'
•<(
3d. The following order of court:
[560]
-ael ^
I. )
No. 1527.
" 'Peter McGrael
vs.
Stuart Newell.
Monday, May 20, 1850.
" 'In this cause both parties beine present,
by their attorneys, the demurrer of defendant
to plaintiff's petition came on, and, being
heard by the court, was overruled.'
"4th. The following decree:
" Teter McGrael )
V8. > No. 1627.
Stuart Newell. )
Tuesday, May 21, 1850.
" 'This day came the parties, by their attor-
neys, jftid the demurrer of the defendant be-
ing heard, the same was overruled; and
thereupon came the following jury of good
and lawful men, to wit (here follow names of
the jurors), who, after hearing the evidence*
and argument, thereupon returned the fol-
lowing verdict :
" 'We, the jury find for the plaintiff, and
that he recover the several tracts of land
mentioned and described in the petition.
E. Giesecke, Foreman.
" 'It is therefore ordered, adjudged, and
decreed by the court that the plaintiff do
have and recover of and from the defendant
R09
(
MO-668
SUPBEMB COUBT OT THB UinTKD StA'
the several tracts of land in plaintiff's peti*
tion mentioned and described and all thereof;
that the said Stuart Newell be forever barred
from having or asserting any claim, right,
or title to all or any portion of said tracts of
land or any part thereof, and that the said
plaintiff be forever ouieted in the title and
m the possession of all the aforesaid tracts of
land. It is further considered by the court
that the plaintiff recover of the defendant
his costs of this suit, and that execution is-
sue for the same.'
"The defendants answered herein, demur-
ring to the plaintiff's fifth amended original
petition upon the ground that it appeared
therefrom that the plaintiffs thereby at-
|661]tadced collaterally *and alleged to be void the
judgment of the district court of Brazoria
county, in the state of Texas, and within the
said eastern district thereof, a court of gen-
eral jurisdiction of the parUes and the sub-
ject-matter connected with and involved in
said judgment, and that said judgment was
a domestic judgment, assailable only in a
direct proceeding to impeach it, and that no
proceeding had ever been taken to review,
appeal from, vacate, or qualify said judg-
ment and that plaintiff's riffht to do so is
now oarred by limitation and lost by laches.
Defendants also answered by plea of not
fuilty and the statute of limitation of three,
ve, and ten years.
"Upon the trial of the case in the circuit
«ourt there was evidence offered by the plain-
tiffs tending to prove that Peter McGrael
was the common source of title, and that, as
alleged in plaintiffs' petition, the land in
controversy nad been conveyed by said Peter
McGrael to said Stuart Newell m fee simple
in 1848, and that said Stuart Newell was not
a citizen nor a resident of the state of Texas
at the time of the institution of the afore-
said suit of Peter McOrael v. said Stuart
Netcell in Uie district court of Braxoria coun-
ty, Texas; that he was never served with
any process of any character in said suit;
tiiat he had no knowledge of the institution
of the said suit until many years thereafter ;
that J. A. Swett was not his attorney in said
suit and had never been emploved by him to
represent him in said suit, and that any ap-
pearance made for him by said Swett in said
suit was without the knowledge or consent
of said Newell ; that in said suit the proper-
ty in controversy had not been taken into the
possession of the court by attachment, se-
questration, or other process ; that said Stu-
art Newell had never resided in Brazoria
county, Texas; that he resided in Texas, in
Galveston county, from April, 1838* to No-
vember, 1848; that he left Texas in Novem-
ber, 1848, and went to the city of Philadel-
phia, and resided there until 1853 or 1854.
and from that time on up to the date of his
death he had resided in the city of New York,
m the state of New York, and during said
years was first a citizen of the state of Penn-
I561B]sylvania, whilst residing •there, and then a
citizen of the state of New York whilst re-
siding there.
*The evidence tending to establish the
•bore facts was all objected to by the defend-
ants upon the ground that said iudgment in
810
the case of Peter MeOraei ▼. Bfmmri JTf
was rendered by a domestic eourt ai
jurisdiction, aiiil that said Newdl
as a citizen of said Brazoria eoaaty,
the record in said suit showed that fact
showed that he was sued tfaerciB far tlM f-
oovery of land, and that he had uwpemred fcf
his attorney, demurred, pleadeo,
swered in the suit, and that his
had been contested before the eourt
hearing had on the case before a ivry
that judgment was rendered in eaid wmx
the plaintiff, and that said proeeediay, jeig
ment, and record import ahsoliite rentj,
that want of jurisdicticm in said
not be established outside of said reeerd
collateral proceeding such as the suit at
"These objections were orenroled, the
dence admitted, and defendants
thereto.
"The issue of the Talidity of
ment in the case of Peter MeOraei ▼.
Netoell was submitted to the jury by
lowing charge of the court, vm,:
" There are onW two questioiis left te
consideration: First, whether jt aot th»
judgment rendered in Brasoria ewiaty. May
21, 1850, in favor of Peter McOrael
Stuart Newell was procured withoot
and without the authorized
Stuart Newell. If the erid
your mind that Stuart Newell
ty to the suit in fact— that is,
served and did not enter his persoBal
ance, and did not authorize Mr. Swett to »>
pear for him — ^you are instmeted that Ot
judgment is a nullity and the plaiatlfft an
entitled to recover this land, ualeae dtind-
ants have it by statute of limitatioaa If
you determine from the testimony ia
case that Stuart Newell was repriiati
that suit by Mr. Swett and he
ized to represent him, in that eveat jo«
not consider the plea of limitatioQ, bat r»
turn a verdict for the defendants. II Mr
Swett was authorized to appear far
Newell in the *litigatic»i, you i
sidcr the plea of limitation, but
diet for the defendants ; but if ytm
the testimony that Mr. Swett
thorized to appear for him, then that jmif-
ment is a nulli^ and the title to thb pnf^
erty would be in the executors of Steait
Newell, plaintiffs in this case, imlese vee
find under the plea of limiUtkm whie^ I
shall instruct you upon in faTor of the 4^
fendants. If you find for the plaiatiffft. tkt
form of your verdict will he, "We, the jmrr.
find for the plaintiffs against the dtttai
ants.'* If you find for the defeodasta, tk»
form of your verdict should he,*ni^e, the jmn,
find for the deferdants the land deacrihed im
the plaintiffs' petition and against the plais-
tiffs," and in that event you are farmer di-
rected to etate whether or not yen ftad th*
Brazoria county judgment was a valid «r
void judgment, and you will alae stato
whether vou find the defendants have title
if •%
to the proper^ by limitation;
you will add, "We, the Jury, find the
ants have the title to the property hf
of the five years' limitotioa.'* Those e
special findings, if yoa find for the
ITS IL &
18.&
COOPBB T. KBWBLL.
663-5M
ants. £f 70a find from the evidence in this
case that Stuart Newell authorized Mr.
Swett to appear for him in that case, the
judgment is valid, but if vou find he was not
authorized to appear for him, then the judg-
ment is a nullil^. The burden of proof is
upon the plaintiffs to show nullity of the
Judgment in Brazoria county.'
*^o this chari^ of the court the defend-
ants duly excepted and asked the court to
give to toe jury the following instructions:
***The judgment of the district court of
Brssoria county, rendered on May 21, 1850,
In the case of Peter MoOrael v. Stuart New-
•C, put the title to the land now sued for in
•aid McGrael, and McGrael's deed to West-
rope on Mardn 2, 1860, put the title in West-
rope, and defendants are entitled to your
Terdict, and you will find for them.'
"This instruction the court refused to give,
and to this action of the court defendants
duly excepted. The jurv brought in the fol-
lowinff verdict: *We, the jury, find for the
plaintiffs, as against the defendants, the
I4]fands described *in plaintiffs' petition;'
which verdict was duly received and upon
it judgment rendered for plaintiffs.
^The defendants in time filed their bills
ai exception, and this case was brought to
this court by writ of error. Among other
assig^mnents of error K was complained that
the circuit court had erred in overruling de-
fendants' demurrer to plaintiffs' petition at-
tacking the validity of said judgment in the
ease ^ Peter McQrael v. Stuart Newell and
in permitting the introduction of the evi-
dence hereinbefore recited and in charging
the jury as hereinbefore recited and in re-
fusing to charge the jury as hereinbefore re-
cited.
''Whereupon, the court desiring the in-
struction of the honorable Supreme Court
of the United States for the proper decision
of the questions arising on the record, it is
ordered that the following question be certi-
fied to the honorable the Supreme Ck>urt of
the United States, in accordance with the
provisions of section 6 of the act entitled
•A.n Act to Establish Circuit Courts of Ap-
peals and to Define and Regulate in Certain
Cases the Jurisdiction of the Circuit Courts
of the United States, and for Other Purposes,
Approved March 3, 1891,' to wit:
•*Was the judgment of the district court of
Brazoria county, Texas (said court being a
court of general jurisdiction) in the case of
Peter McOrael v. Stuart Newell^ subject to
collateral attack in the United States cir-
cuit court for the eastern district of Texas,
sitting in the same territory in which said
district court sat. in this suit, between a
citizen of the state of New York and a citi-
zen of the state of Texas, by evidence aliunde
the record of the state court showing that
the defendant, Stuart Newell, in said suit
in said state court was not a resident of the
state of Texas at the time the suit was
brought ror a citizen of said state, but a
resident citizen of another state, and that
he was not cited to appear in said suit, And
Ihat he did not have any knowledge of said
suit, and that he did not, in fact, appear in
aaid suit, and that he did not authorize J.
173 17. 8.
A. Swett, the attorney who purported to ap-
pear for him in said suit, to make any such
appearance, and that the appearance by said
attorney was made without his knowledge
or consent."
Jfr. F. Cn&arles Hun&e for plaintiff in er-
ror.
Jfr. T. D. Cobbs for defendant in error.
*Mr. Chief Justice Fuller delivered the[566]
opinion of the court:
The question is whether the judgment en-
tered by the district court of Brazoria coun-
ty, Texas, in favor of McGrael and against
Newell, was open to the attack made upon
it in the circuit court of the United States
for the eastern district of Texas. The rec-
ord of the suit ill which that judgment was
entered showed a petition in the ordinanr
form of trespass to try title, filed May 20,
1850, alleging McGrnel and Newell to be
resident citizens of the county of Brazoria,
Texas, and describing several different tracts
of land, one of which was situated in Bra-
zoria county, and among the others, the
tract in controversy, which was alleged to
be situated then as now in Harris county,
Texas; a demurrer and pleas signed by a
person as ''att'y for defendant," filed the
same day; a verdict and judgment against
Newell rendered and entered May 21, 1850.
The record does not show that anv process
was issued on the petition and served on New-
ell, or any notice given to Newell by publica-
tion or otherwise; or affirmatively tnat the
person siening the demurrer and pleas was
authorized to do so.
The evidence on tlie trial of the present
case in the circuit court must be taken as es-
tablishing that Newell was not a citizen nor
a resident of Texas at the time the suit was
commenced in the Brazoria county district
court; that he was never served with any
process in that suit and had no knowledge
of its institution until man^ years thereaf-
ter: that the person who signed the plead-
ings for defendant was not Newell's attor-
ney and had never been employed by him to
represent him, and that any appearance
made for Newell in the suit was without his
knowledge or consent; that in that suit the
property in controversy was not taken into
the possession of the court by attachment,
sequestration, or other process; that Newell
had never resided in Brazoria county, Tex-
as, though he had resided in Galveston coun-
ty prior to November, 1848, 'when he wentto[66dl
the city of Philadelphia, and resided there
until 1853 or 1854, when he removed to the
city of New York, where he resided up to
the date of his death in 1891 ; and that dur-
ing the period from November, 1848, to 1891
he was first a citizen and resident of Penn-
syhania and then a citizen and resident of
New York. This evidence was objected to
on the ground that the judgment was ren-
dered by a domestic court of general juris-
diction, and that want of jurisdiction can-
not be established aliunde the record in a
collateral proceeding.
In Thompson v. Whitman, 18 Wall. 457
[21 : 897], a leading case in this court, it w«^
811
566-569
SUPBEMS COXTBT QT THE UnITKD STATES.
Ooc Tbm,
}
ruled that ''neither the constitutional pro-
vision that full faith and credit shail be giv-
en in each state to the public acta, records,
and judicial proceedings of every other state,
nor the act of Congress passed in pursuance
thereof, prevents an inquiry into the juris-
diction of the court by which a jud^ent
offered in evidence was rendered;" that "the
record of a judgment rendered in another
state may be contradicted as to the facts
necessary to give the court jurisdiction; and
if it be shown that such facts did not exist,
the record will be a nullity, notwithstanding
it may recite that they did exist;" and that
''want of jurisdiction may be shown either
as to the subject-matter or the person, or,
in proceedings in rem, as to the thing."
But while these propositions are conced-
ed, it is insisted that the circuit court of the
United States for the eastern district of Texas
was bound to treat this judgment rendered by
one of the courts of the state of Texas as if it
were strictly a domestic judgment drawn in
question in one of those courts, and to hold
that it therefore could not be assailed col-
laterally.
We are of opinion that this contention can-
not be sustained, and that the courts of the
United States sitting in Texas are no more
shut out from examining into jurisdiction
than if sitting elsewhere, or than the courts
of another state. A domestic judgment is the
judgment of a domestic court, and a domestic
court is a court of a particular country or sov-
ereignty. Undoubtedly the judgments of
courts of the United States are domestic
judgments of the nation, while in the partic-
[567]ular *state in which rendered they are enti-
tled to be regarded as on the same plane in
many senses as judgments of the state; and
so the judgments of the courts of the sev-
eral states are not to be treated, by ead^
other or by the courts of the United
States as in every sense foreign judg-
ments. But the courts of the United States
are tribunals of a different sovereignty, and
exercise a distinct and independent jurisdic-
tion from that exercised by the state courts,
and this is true in respect of the courts of
the several states as oetween each other.
And the courts of the United States are
bound to give to the judgments of the state
courts the same faith and credit that the
courts of one state are bound to give to the
jud^ents of the courts of her sister states.
"Jiie same rule applies to each, and the
question of iurisdiction is open to inquiry
even when tne judgment of the court of a
state comes under consideration in a court
of the United States, sitting in the same
state. Christmas v. Russell, 5 Wall. 290
[18: 475] ; Qalpin v. Page, 18 Wall. 350 [21:
959]; Penmyer v. Veff, 95 U. S. 714 [24:
505]; Hart v. 8ansom, 110 U. S. 161 [28:
101] ; Qoldey v. Morning News, 166 U. S. 518
[39:517].
In Pennoyer ▼. Neff, Mr. Justice Field,
after discussing the question how far a judg-
ment rendered against a nonresident, with-
out any service upon him, or his personal ap-
pearance, was entitled to any force in the
state in which it was rendered, said: "Be
that as it may, the courts of the United
812
States are not required to em effect ti
Judgments of this cnarmeter wLcb axj ri^
IS claimed under them. Whilst thej an aoC
foreign tribunals in their rdatioas to tht
state courts, they are tribunals of a diffcraii
sovereignty, exercising a distinet aad iaie>
pendent jurisdiction, and are booad to pn
to the judgments of the state eourts oaly the
same faith and credit whidi the eoarti of
another state are bound to gi¥0 to ttca."
95 U. S. 732 [24: 5721.
And in Goldey v. UomAng Foaot, when
the authorities are extensively eited, Hr.
Justice Gray said: "It is an dementary pria-
ciple of jurisprudence, that a court of jastkt
cannot acquire jurisdiction oyer the perm
of one who has no residence within its tem-
torial jurisdiction, exo^t *\fj actual icrnef(Sfl
of notice within the jurisdiction spon Un
or upon someone authorized to aeeept tema
in his behalf, or by his waiver, by general ap-
pearance or o)^erwise, of the want ol at
service. Whatever effect a oonatructi^ mtt-
ice may be allowed in the ooorta of the umt
government, it cannot be recognized as Tihd
by the courts of any other gumwiii
. . . For example, under the proritioai
of the Ck>nstituuon of the United States sai
the acts of Congress, by which ind^nenla cf
the courts of one state are to be wtnm Ml
faith and credit in the ooorta of anotkr
state, or of the iTnited States, nieh a jodf-
ment k not entitled to anv foree or met*
unless the defendant was duly served vitft
notice of the action in which the j""" *
was rendered, or waived the want
notice. ... If a judgment is
in one state against two paxtaen Joialii.
after serving notice upon one €A than mkj,
under a statute of the state providiag tktt
such service shall be sufficient to anthortB •
judgment against both, yet the jndgMt ■
of no force or effect in a court of ane4hv
state, or in a court of the United Statak
against the partner who was not terfed ett
process. . . So, a judgment
m a court of one state, against a
neither incorporated nor doing
within the state, must be regarded as «l >•
validity in the courts of anouer state. «r rf
the United States, unless senriee of fnem
was made in the first state upon an aMt ip*
pointed to act there for the eorpormtioa. sm
not merely upon an officer or ag^t jwatan
in another state, and only caraally vitka
the state, and not charged with any bwM
of the corporation there. . . . TV prin-
ciple which governs the effect of je4|Mn
of one state m the courts of another stato i»
equally applicable in the circuit covrtsoltkt
United SUtes, although sittii^ in th» fts"
in which the judgment was rendertd. U
either case, the court the serriee of v^
process is in Question, and the court ia wiiri
the effect of tnat service is to be detscwiwi
derive their jurisdiction and authority fr^
different governments." 156 U. S. SCI
[39:518].
It must be remembered that this actiea «*
commenced by Newell as a citizta <i
York against ciUzens of Texas, ia ^tke
cise of a right secured to him by the 0
tudon of the United SUtea, and it «mU m
179 It &
104#!*.
COOPAB V. NBWSLL.
569-671
far to defeat that right if H should be hdd
that he was cut off in the cirouit oourt from
Srovinff that he was not a citizen and resi-
ent of Texas when the controverted action
was commenced, and that he had not author-
ized any attorney to' appear for him in that
action. As any provisions by statute for the
rendition of judgment against a person not
a citizen or resident of a state, and not served
with process or voluntarily appearing to an
action against him therein, would not be ac-
cording to the course of the common law, it
must follow that he would be entitled to show
that he was not such citizen or resident, and
had not been served or appeared by himself
or attorney.
Accordingly, it was held in Needham v.
Thayer^ 147 Mass. 636, that a defendant in
an action brought in Massachusetts on a
judgment in persowun in that state, might
set up in defense that he was at the time the
original action was brought a nonresident,
and neither was served personally with proc-
ess nor appeared therein.
And so m New York, when a judgment of
a ODort of that state was drawn in question,
which had been entered against a nonresi-
dent, who was not, during the pendencv of
the proceedings, within the jurisdiction of the
state. Vilas v. Plattaburgh d Montreal
Railroad Company, 123 N. Y. 440 [9 L. R. A.
844]. There the rule that domestic judg-
ments against a party not served, but for
whom an attorney appeared without authori-
ty, cannot be attacked collaterallv, was ad-
hered to; yet the court of appeals declined
to apply it to a case where the defendant
was a nonresident and not within the juris-
diction durinff the pendency of the proceed-
ings, such judf^ents being held to be not
strictly domestic but to fall within the prin-
omle applioible to judgments of the courts
ot other states, in respect of which Andrews,
J., delivering the opinion of the court said :
*^t is wcJl settled that in an action brought
in our courts on a jud^ent of a court of a
sister state the jurisdiction of the court to
render the judgment may be assailed by
proof that the defendant was not served and
did not appear in the action, or where an ap-
roipearance was entered by an attorney, *that
the appearance was unauthorized, and this
even where the proof directly contradicts the
record."
We do not understand any different view
to obtain in Texas. In Fowler v. Morrill,
8 Tex. 163, it was held that the acceptance
of service of process by an attorney is only
prima facie evidence of his authority. In
Parker v. Spencer, 61 Tex. 165, the court de-
cided that a judgment did not affect a party
who had not been served, but who, on the
record, appeared by an attorney not author-
ized to so appear, and it was said: "And
as he had not been made a party to the suit
by any of the modes known to the law, he
would not be bound by the iudgment. But
he had the option either to have it vacated
by direct proceedings or else to treat it as
void in any collateral proceeding where
rights might be asserted against him by rea-
son of the same."
In Bender v. Damon, 72 Tex. 92, which is
173 V. S.
much in point. Chief Justice Stayton states
the case as follows:
"The petition alleges substantially the
facts necessary to be alleged in an action of
trespass to tiV titie, and the petition was
so indorsed. Had it done this and no more,
there could have been no ground for contro-
versy in the court below as to its jurisdic-
tion to hear and determine the cause, nor as
to the sufliciency of the petition on general
demurrer. The appellant, however, sought
to remove cloud from his title, which a judg-
ment in his favor in an action of trespass
to try title would have accomplished as
against the defendants, and to obtain this
relief he undertook to show that appellees
were claiming under a sheriff's sale and deed
under an execution issued from the district
court for Navarro county, on a judgment
rendered by that court against him and in
favor of S. J. T. Johnson, all of which he
claimed were invalid.
"Some of the facts which he alleged to
show the invalidity of that judgment, exe-
cution, and sale, were such as might entitle
him, by a proper proceeding, to have had
them vacated, but not such as to render them
void.
"The petition, however, went further, and
alleged facts which, if true, would render
the judgment void. It alleged that the
plaintiff was a nonresident of this state;
that he *never was cited to appear, and did[571]
not appear in person or by attorney in the
proceeding in which the judgment in favor
of Johnson and against himself was ren-
dered; and that appellees claimed through
an execution and sale made under a judg-
ment so rendered. lif these averment be
true the judgment was void, and no one could
acquire rishts under it."
We think the circuit court was clearly
right in admitting evidence to contradict the
recital that Newell was a citizen and resi-
dent of Texas, and to show that the attorney
had no authority to represent him.
Nor can this iudgment be held conclusive
on the theory that the suit of McOrael v.
'Newell was in the nature of a proceeding in
rem. The property was not taken into cus-
tody by attachment, or otherwise, and the
suit depended entirely on the statutes of
Texas providing the procedure for the trial
of the title to real estate, which contained
at that time no particular provision for
bringing in nonresiaents of the state. There
was a statute providing generally that in
suits against nonresidents service could be
had by publication, and thaj; statute provid-
ed that if the plaintiff, or his agent, or at-
torney, when the suit was instituted, or dur-
ing its progress, made affidavit before the
clerk of the court that defendant was not a
resident of the state of Texas, or that he
was absent from the state, or that he was
a transient person, or that his residence was
unknown, then a citation should issue which
should be published in a newspaper. Acts
Tex. 1848, 106, chap. 96. This statute was
applicable to all suits, and so far as actions
against nonresidents were personal, judg-
ment on citation bv publication would not
be conclusive. And the law also required
813
(
571-574
Sttpbemb Coxtbt or ths UxniXD States.
Oor.
that where buj judgment was rendered on
service by publication, the court should make
out and incorporate with the records of the
case a statement of the facts proved therein
on which the judgment was founded. Acts
Tex. 1840, 395. It is true that "it was with-
in the power of the legislature of Texas to
provide for determining and quieting the title
tc real estate within tiie limits of the state
and within the jurisdiction of the court, aft-
er actual notice to all known claimants, and
notice by publication to all other persons."
Jp7Z]Hamilton ▼. Broton, *161 U. S. 256, 274 [40:
691, 699]; Amdt v. Origgs, 134 U. S. 316
[33 : 918] . But it would seem that there was
no such statute at the time of the commence-
ment of the McGrael suit, and that suit could
only bo regarded as a personal action and
coming wiuiin the rule laid down in Ptfn-
lAoyer v. Neff, 95 U. 8. 714 [24: 565].
Moreover, the record in McOrael v. NetoeU
shows that the suit was not brought as a^inst
a nonresident of the state, it being alleged
in plaintiff's petition that defendant resided
in Brazoria county, Texas. So that even if
it were held that the statutes of the state,
taken together, authorized suits of this
character to be brought against nonresidents
as proceedings in rem, this cannot be as-,
serted as to this suit; and it affirmatively ap-
peared that no citation by publication could
have been had. The citation praved for was
to be addressed to the proper officer M Brar
zoria county, to be servea on defendant as
a resident of that county; no citation by
publication was asked for, and no rec-
ord of tiie facts on which the case was
tried was kept as required by statute,
and the whole cas^ was tried as a case
against a resident of Brazoria county ap-
pearing b^ attomev. The statute at that
time provided that "any party to a suit, his
arent or attorney, may waive the neces&ity
01 the issuance or the service of any writ or
proce&s required to be served on him in the
suit, and accept such service thereof; pro-
vided, that such waiver or acceptance shall
be made in writing, signed by such party,
hi) agent or attorney, and fifed among the
papers of the suit, as a record." Acts Tex.
1846, 367. The record here showed no such
acceptance or waiver of service.
Treated as a personal action, brought as
against a resident, when the facts appeared
that defendant was not a resident of the
state of Texas and was not served in that
state, and had not appeared by attorney,
then the judgment ceasea to be binding. Hie
result is the same if the suit were regarded
as brought under a statute making provision
for the bringing of suits to settle the title
to lands in Texas, since that proceeding
would have been purely statutory, and not
according to the course of the common law,
end the record did not show that it was in-
stituted in the manner required by the stat-
{573] ute, or appearance *had or waived as re-
quired, or that the jurisdiction of the court
in fact so attached as to authorize the court
to render the judgment. Oalpin v. Page, 18
Wall. 350 [21:959].
It follows that the question propounded
must be anaioered in ihi affirmaiive.
814
CFABLES E. POPE, Beceiver of CUiafi &
South Atlantic Railroad Company, Affi^
V
LOUISVILLE, NEW ALBANY, 4 GHIGA-
GO RAILWAY COMPANY.
(See 8. C. Reporter's ed. S7I-682.)
When decree of circuit oomrt of
final — andUary euxt depend* upon
diction of main euit — orider appoimtim§
ceiverm
appflhitBi Vf
■n
1. The decree of the drcnlt eovrt ei
is final by the act of Mardi 8, IStl,
the Jurisdiction of the drcnlt oovrt In
the suit was commenced depended eatlittj
diverse dtis^nship.
2. A snit broogbt by a receiver
a Federal oonrt. to accompllsk tbe
soogbt by the salt in which tbe
was made. Is ancillary so far as tbe
tlon of the Federal onart Is coneened;
where the Jurisdiction of tbe mala salt
pends on diverse eltlsenship, and tbt
of the drcnlt oonrt nf appeals Is
final therein, the JndjCment and
ancillary litigation are also flaaL
8. The mere order of a Federal court
ing a receiver does not enable tte
to invoke Federal Jnrtsdlctloa,
of the ground of Jurisdiction el tbs
which tbe order was entered.
[No. 303.]
Submitted January SO, 18$$,
April S, J899,
APPEAL from a decree of the UaitiA
States Circuit Court of Appeals for tks
Seventh Circuit reversing a money deoee rf
the Circuit Court of the United Stats iv
the District of Indiana in favor of Ckarfai
E. Po^, receiver of the Chicago 4 8o«lk
Atlantic Railroad Company in a sntt m
equity brought by him against the Lo^
vule, New idbany, & Chicago Railway Om-
pany, defendant, to recover eertain prop«t7
and property rights, held and claimed vf 4^
fendant. The decree of reversal by tibt Or
cuit Court of Appeals gives instmeCioM to
dismiss the suit. On moticm to ditauv tk
appeal. Diemiaeed,
See same case below, 63 U. 8. Apo. Stt: al-
so same caae, 169 U. & 737, 48 L. ed. Itli
Statement by Mr. Chief Justlee
Ball and Pettit filed their biU ia tW
cuit court of the United States for the
em district of Illinois alleging that Ball «i*
a citizen of Indiana and that FeitH «as •
citizen of Wisconsin, and that detodufi«
were citizens of Indiana and iii«»^^ vUdk
suit was discontinued as to Ball, Isafiaf
Pettit, a dtizen of Wiaoonain, the aok ahs-
plainant. Pope was appointed. In lefcsliri
tion for one Fish, receiver of the *<%ieBf» A;STI)
South Atlantic Railroad OooipaBy eim
nois, the order coalainiii^. aaio^f ~^^
things, the following:
**And it is further ordered that the
ant, the said Chicago & Sooth Atlantk Bii*
road Company, or whoevw may have P0^
sion thereof, do assign, transfer, and MW
1886.
POPB v. LOUISYILLB, N. A. & C. R. Co.
674-576
<yTer to such receiver under the direction of
Henry W. Bishop, a master in chancery of
this court, all tne property, real and per-
sonal, wheresoever founa in Uiis district, and
all contracts for the purchase of land, and
all oUier equitable interests, things in action,
and other effects which belonged to, or were
held in trust for, said defendant railroad
oompany, or in which it had any beneficial
interest, including the stock books of said
railroad company, in the same condition
they were at the time of exhibiting the said
bill of complaint in this cause, except as far
as necessarily changed in the proper manage-
ment of said road, or in which it now has anv
such interest, and that said defendant, Chi-
cago A South Atlantic Railroad Company,
deliver over, in like manner all books, vouch-
ers, bills, notes, contracts, and other evi-
dences relating thereto, and also the stock
books of said railroad company.
"And it is further ordered that the said
receiver have full power and authority to in-
quire after, receive and take possession of all
such property, debts, equitable interests,
things in action, and other effects, and for
that purpose to examine said defendant, its
officers, and such other persons as he may
deem necessarv on oath oefore said master
from time to time."
Afterwards a further order was entered,
nunc pro tunc, as follows :
''And now comes the receiver, Charles E.
Pope, of said Chicago A South Atlantic Rail-
road Company, and on his application it is
ordered and oirected that said receiver have
full power and authority to bring and prose-
cute any and all necessary suits for the col-
lection of any claims, choses in action, and
enforcement of any and every kind and nature,
and to defend all suits and actions touching
the rights or interests of the property or ef-
fects of any kind in his possession or under
his control as receiver. This order to be en-
tered now as of the date of his appointment
and qualiflcatiou as receiver.'*
[676] •Soon after, Pettit filed his bill in the cir-
cuit court of the United States for the dis-
trict of Indiana, averring that he was a cit-
izen of the state of Wisconsin, against "the
said Chicago St South Atlantic Railroad
Company, a corporation organized under the
laws of the state of Indiana and state of Il-
linois, by the consolidation of an Illinois cor-
poration of the same name of defendant here-
in, and an Indiana corporation known as 'the
Chicago & South Atlantic Railroad Company
of Indiana.' " Pope was appointed receiver
on that bill, the order being similar in its
terms to that entered in the circuit court for
the northern district of Illinois. After such
appointment, and on July 12, 1881, Pope, as
receiver, filed his bill of complaint in the cir-
cuit court for the district of Indiana, seek-
injf to recover certain property and property
rights held and claimed by certain of the de-
fendants which appellant claimed belonged
to the Chicago & iSouth Atlantic Railroad
Company and to the ownership of or right
io wnich he had succeeded as such receiver.
The amfnded bill on which the cause was
heard stated that "your orator, Charles E.
Pope, who is receiver of the Chicago & South
17d V. 8.
Atlantic Railroad Companjr, and who is a
citizen of the state of Illinois, brings this his
amended hill of complaint-— leave therefor
having been granted by this honorable court
— against" certain companies and individu-
als, severally citizens of the states of Indi-
ana, Ohio, New York, and Kentucky ; that he
was appointed receiver of the Atlantic Com-
Sany by the circuit court of the United
tates for the northern district of Illinois^
and also receiver by the circuit court of In*
ditina; and that he was authorized by the
express orders of both courts, appointing him
receiver, "to brine all suits necessary and
proper to be brought to recover possession of
said estate and effects and to enforce all
claims," etc.
The cause went to hearing, and a money
decree was rendered by the circuit court in
favor of Pope, receiver, aeainst appellee,
which appellee was adjudged by that decree
to pay. An appeal having been prosecuted
to the circuit court of appeals for the seventh
circuit, a motion was made to dismiss the ap-
peal for want of jurisdiction, and the motion
overruled. •On final hearing the decree of[57^|
the circuit court was reversed by the circuit
court of appeals, with instructions to dismiss
the amena^ bill. The opinion of the circuit
court of appeals was filed June 12, 1897. 53
U. S. App. 332. Thereafter a petition for a
rehearing was filed and denied. Subsequent-
ly Pope, receiver, applied to this court for a
writ of certiorari, which application was de-
nied March 7, 1898. 169 U. S. 737 [42:
1216]. On March 23 Pope moved the circuit
court of appeals for leave to file a second pe-
tition for rehearing, and the motion was over-
ruled. Pope then applied to the circuit court
of appeals for an appeal to this court which
was granted, and tne appeal having been
docketed, this motion to dismiss was made
and duly submitted.
MtssTB. Henry W. Blodsett, O. W.
KretsinKer, and E. C. Field, for appellee,
in favor of motion to dismiss:
This suit is ancillary to the Pettit suits.
White V. Ewing, 169 U. S. 36, 40 L. ed. 67 ;
Freeman v. ffotoe, 24 How. 460, 16 L. ed.
749; KHppendorf v. Hyde, 110 U. S. 276, 28
L. ed. 145: Detcey v. West Fairmont Oas
Coal Co, 123 U. S. 329, 31 L. ed. 179; Re
Tyler, 149 U. S. 164, 37 L. ed. 689; Root v.
Woolworth, 150 U. S. 401, 37 L. ed. 1123;
Rouse V. Letcher, 166 U. S. 47, 39 L. ed.
341 ; Davis v Cray, 16 Wall. 216, 21 L. ed.
462; Carey v. Houston %% T, C. R. Co. 161 U.
S. 116, 40 L. ed. 638; Gregory v. Van Ee,
160 U. S. 643, 40 L. ed. 666; Pacific R, Co.
y. MissouH P. R, Co. Ill U. S. 622, 28 L.
ed. 604; Borgmeyer v. Idler, 169 U. S. 413,.
40 L. ed. 201 ; 8mith v. Rackliffe, 59 U. S.
App. 427, 87 Fed. Rep. 964, 31 C. C. A. 328;
Brisenden y. Chamberlain, 63 Fed. Rep. 310;
Davies v. Lathrop, 12 Fed. Rep. 363.
As to jurisdiction resting upon Federal
questions.
Press Pub. Co. y. Monroe, 164 U. S. 105,
41 L. ed. 367 ; Ew parte Jones, 164 U. S. 69S»
41 L. ed. 601.
815
570, 577
SUPBBMK COUBT OV TBS UNIXD STA'
Mr. John S. Bliller, for appellant^ in op-
position to motion:
Tliis appeal lies as of right under el. 3,
§ 6, of the judiciary act of March 3, 1891.
Wallace v. Lawrence, I Wash. 603; Jack'
son, De Forest, v. Ramsay, 3 Cow. 75, 15
Am. Dec. 242 ; Stimpson v, Baltimore d 8. R.
Co, 10 How. 329, 13 L. ed. 441; Welch v.
Button, 79 111. 468; Gibson y. Chouteau, 13
Wall. 100, 20 L. ed. 536.
The equitable title to real interests, as
well as the title to personal property and
equitable interests, passes to the receiver,
and in suits in equity by the receiver no
Assignment is necessary. The order of the
court is the effective thing.
Mann v. Pentz, 2 Sandf . Ch. 257 ; Iddings
T. Bruen, 4 Sandf. Ch. 417; Albany City
Bank v. Schermerhorn, Clarke, Ch. 298 ; Por*
ier V. Williams, 9 N. Y. 142, 59 Am. Dec
519; Atty, Qen. v. Ailantio Mut. L, Ins. Co.
100 N. Y. 282.
The jurisdiction in this case was not de-
pendent entirely on diverse citizenship.
Cohen v. Virginia, 6 Wheat. 264, 5 L. ed.
257 ; Martin v. Hunter, 1 Wheat 304, 4 L.
ed. 97 ; Byers v. McAuley, 149 U. S. 608, 37
L. ed. 867.
This suit by a receiver of a Federal court
is a case arising under the laws of the United
States.
Stuart V. Boulware, 133 U. S. 78, 33 L.
ed. 568; Union Bank v. Kansas City Batik,
136 IT. S. 223, 34 L. ed. 341 ; Booth v. Clark,
17 How. 322, 15 L. ed. 164; Davis v. Ora/y,
16 Wall. 203, 21 L. ed. 447; Texas d P. R.
Co. V. Cox, 145 U. S. 593, 36 L. ed. 829;
Buck V. Colbath, 3 Wall. 334, 18 L. ed. 257 ;
Feibelman v. Packard, 109 U. S. 421, 27 L.
ed. 984 ; Bock v. Perkins, 139 U. S. 628, 35
L. ed. 314; Keihl v. South Bend, 44 U. S.
App. 687, 76 Fed. Rep. 921, 22 C. C. A. 618,
36 L. R. A. 228 ; Jeujeti v. Whitoomh, 69 Fed.
Rep. 417; Cooke v. Avery, 147 U. S. 375, 37
L. ed. 209; Morgan's L. d T. R. d S. S. Co.
v. Texas C. R. Co. 137 U. S. 171, 34 L. ed.
625; Benjamin v. New Orleans, 169 U. S.
161, 42 L. ed. 700.
The orders appointing complainant receir-
er and authorizing him to brinff this suit
"were entered, and all action of the court
in the premises taken, by virtue of judicial
power possessed and exercised under the
Constitution and laws of the United States."
Texas d P. R. Co. v. Cox, 145 U. S. 593, 36
L. ed. 829; White v. Etcing, 31 U. S. App.
178, 66 Fed. Rep. 2, 13 C. C. A. 276, 159 U.
S. 36, 40 L. ed. 67 ; Price v. Abbott, 17 Fed.
Rep. 506; Armstrong v. Trautman, 36 Fed.
Rep. 275.
The complainant, receiver herein, is as
much an officer of the court under and by
virtue of the Constitution and laws of the
United States as are the receivers of national
banks.
Texas d P. R. Co. v. Cox, 145 U. S. 593,
86 L. ed. 829 ; McNulta v. Lochridge, 141 U.
S. 327, 35 L. ed. 796 ; Tennessee v. UnUm d
P. Bank, 152 U. S. 454, 38 L. ed. 511.
|576] *Mr. Chief Justice FuUer delivered the
opinion of the court :
If the decree of the circuit court of appeals
816
Ooi. Tm,
was made final by the act «f liai^ t, IWl.
this apneal must be dismiaeed; aad it «m m
made final if the juriadictiop of tke drcvt
court depended tsatin^j on divcne dtiKi-
ship.
The circuit courts of the United States han
original iurisdiction of suits of a civil ss-
ture, at law or in equity, by reasoA ci tW
citizenship of the psxties, in cases btiwws
citizens of different states, or betweea citi-
zens of a state and aliens; and, Ir^ reaaoa of
the cause of action, "in cases aruiag asdcr
the Constitution or laws of the Uiit«^
States, or treaties made or which AsB he
made under their authority," as, for iastasn.
suits arising under the patent or eoojn^t
laws of the United States. Press Pnb&skm§
Company t. Monroe^ IM U. & 105 [41:
367].
Diversity of citizenship confers Jnrisdir
tion, irrespective of the cause of action, ta
if the cause of action arises under *tbe Cm ;S1
stitution, or laws, or treaties, of the Usitni
States, tiien the jurisdiction of the drcLi
court may be maintained irrespective d ax
izenship.
The circuit court undoubtedly had jam-
diction of this suit on the sround of diTov
it^r of citizenship, not onlT oecanse that hei
existed in respect of complainant and dsbai
ants, but because the suit was ancillary i.
those in which tlie receiver was apooiiittc
When an action or suit is eommenesd oy a it-
ceiver, appointed by a eireoit court, ts a^
complish Uie ends sought and directed ky tfe
suit in which the appointment was bMi
such action or suit is regarded as aacfllu;
so far as the jurisdiction of the cirenit cnrt
as a court of the United States is ijmmwsi
and we have repeatedly held tluat jnriidictiM
of these suboroinate actions or snits it t» W
attributed to the jurisdiction on which tk
main suit rested; uid hence that whert jvii-
diction of the main suit is predicated «a fr
versity of citizenship, and the deerss thsroi
is, therefore, made final in the ciredt covt
of appeals the judgments and dscrssi is tk
ancillary litigation are also (InaL Bsmm t.
Letcher, 156 U. S. 47 [39: S41]; Cfrsyvy t.
Van Ee, 160 U. S. 643 [40: 5M] ; Cmm v.
Houston d T. C. Railway Oowupmsm, If 1 C. &
115 [40: 638]. Itis tmethat Jtovse v.Lslriiw
and Gregory t. Van Be were proessdiiff «
intervention, but Corey t. Eometem 4 f . C.
Railway Company arose on an orlftaMl IS ^
the nature of a mil of review. In that cw*
we took occasion to quote from the esisia
of Mr. JusUce BHUer in Mttwmmkm 4 V»
nesoia R. Company t. MQwmmkee 4 8L
R. Company, 2 Wall. 609 [17: 8M], b
the distinction is pointed oat beliiw
plemental and ancillary, and
and original, proceedings, in tte wmm of tk
rules of equify pleading, and eoeh pnesi^
ings "in the sense which this covrt hss ■s^
tioned with reference to tJbe lint which #
vides the jurisdiction ef the Federal esm^
from that of the state coarta." JTripfeidvf
T. Hyde, 110 U. S. 276 [t8: 145]: Peelf^
Railu)ay Co. v. MissomH Pmcife MaSkm§ (^
111 U. S. 505 r28: 498], and otker esMi ««•
cited; the bill held to U ancillary to the irt
the decree in which was attacked ; sa4 Ik
189a.
POFB ▼. LOUISYILLB, N. A. <& C. U. Co.
677-680
role Uid down in Roiue t. Letcher and Qreg'
ory ▼. Van Be applied.
The suits in wkich this reoeiver was an-
BJpointed were in the *nature of creditors' bills
alleging an indebtedness due from the At-
lantic Company; the insolvency of that com-
pany; that certain corporations had in their
possession assets of the Atlantic Company;
and praying for the appointment of a receiy-
er ; the marshaling of assets ; the winding up
of the Atlantic Company, and the application
of its assets to the payment of its debts. The
only ^ound of Feaeral jurisdiction set up ili
the bills was diversity of citizenship, and if
the decrees therein had been paased on by the
circuit court of appeals, the decision of that
court would have been final under the stat-
ute. And as this suit was in effect merely
in eollecti<m of alleged assets of the Atlantic
Company, it must be regarded as auxiliary,
and the same finality attaches to the decreeof
the circuit court of appeals therein.
And this is true although another {^ound
of jurisdiction might be developed in the
course of the proc^ings, as it must appear
at the outset that the suit is one of that
character of which the circuit court could
properly take co^izance at the time its ju-
ris^ction is invoKed. Colorado Central Con-
soL Min. Company y. Turok, VbO U. S. 138
[37 : 1030] ; Em parte Jones, 164 U. S. 693
[41 : 602] ; Third Street d 8. Railway Com-
pany v. Lewis, 173 U. S. 457 [ante, 766].
Some further observations may be
usefully added, although what has been said
necessarily disposes of the motion.
Tlie receiver oased his right of recovery on
the allied seizure by one of the defendant
eompanies of certain rights of way, and
grading done thereon by the Atlantic Com-
pany under two specified contracts, which
seizure and appropriation were alleged to
have been fraudulently and forcibly made;
and it was averred that appellee, the Louis-
ville, New Albany, 4k Chicago Railroad Com-
pany, acQuired title thereto and possession
thereof through its consolidation with an-
other of the defendant companies which had
acquired its title and possession through the
foreclosure of a ij^ortgaee given by the com-
pany which had made the seizure. The bill
nowhere asserted a right under the Constitu-
tion or laws of the united States, but pro-
ceeded on common-law rights of action. We
cannot accept the suggestion that the mere
9]order of a Federal *court, sitting in chancery
appointinff a receiver on a creditor's bill not
onJ^ enables the receiver to invoke Feaeral
jurisdiction, but to do this independently of
the ground of jurisdiction of the suit in which
the order was entered, and thereby affect the
finality of decrees in the circuit court of ap-
peals in proceedings taken by him. The va-
lidity of the order of appointment of the re-
ceiver in this instance aepended on the juris-
diction of the court that entered it, and that
jurisdiction, as we have seen, depended ex-
dusiyely upon the diverse citizenship of the
parties to the suits in which the appoint-
ment was made.
The order, as such, created no liability I
against defendants, nor did it tend in any |
detrree to establish the receiver's right to a
173 U. 8. U. S.. Book 43. 62
money decree, nor to any other rflmed^
prayed for in the amended bill. The liabit
Ity of defendants arose under general law,
and was neither created nor arose under the
Constitution or laws of the United States.
In Bausman v. Diaon, 173 U. S. 113 [ante,
633], we have ruled that a judgment against
a receiver appointed by a circuit court of the
United States, rendered in due course in a
state court, does not per ee involve the de-
nial of the validity of an authority exercised
under the United States, or of a right or im*
munity specially set up and claims under a
stetute of the United States. That was an
action to recover damages for injuries sus-
tained by reason of the receiver's negligence
in operating a railroad company of the state
of Washin^n, though the receiver was the
officer of the circuit court, and we said:
''It is true that the receiver was an officer of
the circuit court, but the validity of his au«
thority as such was not drawn in question,
and there was no suggestion in the pleadings,
or during the trial, or, so far as appears, in
the stete supreme court, that any right the
receiver possessed as reoeiver was contested,
although on the merite the employment of
plaintiff was denied, and defendant contend-
ed that plaintiff had assumed the risk which
resulted in the injury, and had also been
guilty of contributory negligence. The mere
order of the circuit court apoointin^ a re-
oeiver did not create a Federal question un-
der section 709 of the Revised Statutes, and
the receiver did not set up any right derived
*from that order, which he asserted wa8[59iq
abridged or taken away by the decision of
the stete court. The liability to Dixon de-
pended on principles of general law applica-
ble to the lacte, and not in any way on the
terms of the order." That was indeed a
writ of error to a stete court, but the reason-
ing is applicable here. Pope was appointed
receiver by an interlocutory order of the cir-
cuit court in the exercise of ite general
equity powers. He did not occupy the posi-
tion of a receiver of a corporation created im-
der Federal law as in Tewae d Paoifio R.
Company v. Coa, 145 U. S. 593 [36: 829] or
of a marshal of the United Stetes as in
Feihelman v. Packard, 109 U. S. 421 [27:
984] ; or of a reoeiver of a national bank, as
in Kennedy v. Gibson, 8 Wall. 498 [19: 476].
Nor did his cause of action originate or de-
pend on the order of ap)H)intment, or assign-
ments made to him by tbe Atlantic Company
pursuant to that order. Nor was any right
claimed by him by virtue of his order of ap-
pointment or of his deeds of assignment de-
nied or alleged to have been denied. The de-
crees of the circuit court and of the circuit
court of appeals dealt solely with the alleged
righte of the Atlantic Company as against
certain Indiana corporations. It is unpos-
sible to hold that these orders of appoint-
ment were equivalent to laws of the United
Stetes within the meaning of the Constitu-
tion.
We agree with counsel for appellee that
Provident Savings L. Society v. Ford, 114 U.
S. 635 [29: 261], is in point in this aspect
of the case. There it was ruled that *'the
fact that a judgment was recovered in a
817
9d0--5o:tf
SUPBEMX COUBT OF THE UNITED STATES.
Oct.
court of the United States does not, in a suit
upon that judgment, raise a question under
the laws of the United States within the
meaning oi the act of March 3, 1875.'' That
was a writ of error to the supreme court of
the state of New York to review a judCTient
of that court denying a motion for the re-
moval of the cause to the United States cir-
cuit court. Mr. Justice Bradley delivered
the opinion, and, after pointing out that the
alleged grounds of removal were insufficient,
remarked : "It is suggested, however, that
a suit on a judgment recovered in a United
States court is necessarily a suit arising un-
der the laws of the United States, as much
so as if the plaintiff or defendant were a cor-
[Ml]poration *of the United States; and henci.
that such a suit is removable under the act
of March 3, 1875. It is observable that the
removal of the cause was not claimed on any
such broad g^round as this ; but, so far as the
character of the case was concerned, only on
the ground that the defendant had a defense
under Rev. Stat. S 739, specifying what the
defense was; and we have already shown
that that ground of removal, as stated in the
petition, was insufficient. But conceding
that the defendant is now entitled to take ito
position on the broader ground referred to,
18 it tenable and sufficient for the purpose?
What is a judgment, but a security of record
showing a debt due from one person to an-
other? It is as much a mere security as a
treasury note, or a bond of the United States.
If A brings an action against B, trover or
otherwise, for the withholding of such se-
curities, it is not therefore a case arising un-
der the laws of the United States, although
the whole value of the securities depends up-
on the fact of their bein^ the obligations of
the United States. So if A have title to
land by patent of the United States and
brings an action against B for trespass or
waste, committed by cutting timber, or by
mining and carrying away precious ores, or
the like, it is not therefore a case arising un-
der the laws of the United States. It is
simply the case of an ordinary right of
property sought to be enforced. A suit on
a judgment is nothing more, unless some
question is raised in the case (as might be
raised in any of the cases specified) , distinct-
ly involving the laws of the United States-^
such a question, for example, as was ineffeo-
tually attempted to be raised by the defend-
ant in this case. If such a question were
raised then it is conceded it would be a case
arising under the laws of the United States.
• . . Without pursuing the subject fur-
ther, we conclude with expressing our opin-
ion that this last eround of removal, like
those already considered, was insufficient."
In Cooke v. Avery, 147 U. S. 380 [37 : 212],
Jurisdiction was sustained on the ground
that the plaintiff's title was derived through
the enforcement of a lien, the validity of
which depended on the laws of the United
[682]State8 ana the rules of the circuit *court, and
their construction and application were di-
rectly involved.
Appeal diamisaed,
Mr. Justice Brown took no part in the
<8on8ideration and disposition of this motion.
818
GUARANTEE COMPANT 07 BQKH
AMERICA, PetiltoMr,
MECHANICS' SAVINGS BANK 4 TETSt
COMPANY, for the Use of J. J. Pryor, At-
signee.
(See S. C. Reporter's ed. 582-Mt.)
Decree, token not fuUL
A decree which determines that none of tbt i»>
fences of a guaranty compaor ut wmA It
law. and that it is liable on Iti bomOa for ncft
sum as may thereafter be fooad tee afttt
?rediting the amounts that may te rniMd
from certain assets, is not final for the fw-
poses of an appeaL
[No. 224.]
Argued March 16, 1899, Decided AprU I,
1899,
0
N WRIT OF CERTIORARI to the
/ States Circuit Court of Appeals for tte
Sixth Circuit to review a decree of t^
court affirming a decree of the Circuit Coan
of the United States for the Middle Dutrvt
of Tennessee in an action brought by the Mt^
chanics' Savines Bank k Trust Ccnpaartar
the use of J. «J. Pryor, Assignee, agaoit tht
Guarantee Company of North Amoica ipas
bonds executed by that company conditkHi
for the faithful performance of the dvtia d
cashier and also of teller and coUaetor d tibt
said Savings Bank by one Schardt The i^
cree of the Circuit Court granted the r^id
forayed for by the plaint&T, and fixed the
lability of the defendant at $32410, tfi
decreed that all collections on assets or o^
laterals turned over by Schardt to the Ink
should be applied on said amounts. I^me
of the Circuit Court of Appeals is ifvenri
for want of jurisdiction, tiod the eamt a
remanded, witn directions to dismiss the ir
peal prosecuted to that court, and fer «a
further proceedings in the Circuit Cbnt «
may be consistent with law.
See same case below, 68 Fed. Rcfi ^
and 54 U. S. App. 108.
The facts are stated in the opinioa.
Mesara. William I.. Ortta^arr aal if*
heri D, Marka for petitioner.
Mr, Edward K. Bast for respoadnt
*Mr. Justice Har1a» deliTered the «f«w^
of the court:
The plaintiff in this suit— <»nfniS?
brought in the chancery court at NsiliviBa
Tennessee, and subsequently rcmored iatc tte
circuit court of the United SUtes hi ^
ndddle district of Tennessee — is the li''
chanics' Savings Bank & Trust Cospsir. »
Tennessee corporation suing to the ■■ *
James J. Pryor, assignee, under a fsaera] •»-
signment of all the assets, rights, aa4 <r«^
its of thai company in trust for the beeiAt
of creditors.
The principal defendant to the Gmrtsw
Company of North America, a coiutfeO*
created under the laws of the Puiiiim* «
Canada.
From January 16, 1888. to J*"^ '•
.sns.
QuARANTicjB Co. OF N. A. ▼. Mbchakios' Sav. Bamk & T. Co.
582-5o5
^]1S93, Sehardt was *teller and collector and
from the latter date until his death was cash-
ier of the plaintiff company.
The object of the present suit is to haye an
•ccountinff and a decree as to the amount
due the plaintiff on two bonds executed by
the Guarantee Company of North America
to the Mechanics' Savings Bank & Trust
Company; one, insuring the latter corpora-
tion against such pecuniary loss as it might
sustain on account of the fraudulent acts of
Sehardt as teller and collector ; the other, in-
suring the same corporation aeainst pecu-
niary loss by reason of fraudulent acts by
him in his office as cashier.
The bill alleges that while acting as teller
and collector of the plaintiff company
Sehardt fraudulently embezzled of its moneys
the siun of $78,956.11, of which $50,856.77
was embezzled during the year ending Janu-
ary 1, 1893; and that during the period cov-
ered by the bond insuring his fidelity as cash-
ier he fraudulently appropriated of the plain-
tiff's moneys the sum of $22,817.30.
The bill also alleged that a few days before
bis death Sehardt assigned to the plaintiff
company, as additioncd indemnity for the
losses he had brought upon it, certain poli-
cies on bis life amounting to $80,000; that
upon those policies $20,^90 had been col-
lected, and the residue was in dispute; and
that Sehardt did not give any direction as to
which of the bonds insuring his fidelity the
insurance moneys when coUected should be
applied.
The Guarantee Company in its answer in-
sisted that by reason of the violation of the
terms and conditions upon which the bonds
in question were issued it was not liable to
the plaintiff in any sum.
By the decree in the circuit court it was
adiudffed that the amount embezzled by
Sehardt during the years 1890 and 1891 had
been paid out of the assets and collections
transferred by him to the bank just before
his death ; that his embezzlements from and
after September 1, 1890, and up to January
1, 1893, amounted, principal and interest, to
$52,736.17, while his embezzlements during
his term as cashier amounted, principal and
interest, to $23,128.69; and that the total
B4]&Diount, principal *and interest, of all his em-
bezzlements while occupying the two posi-
tions of teller and cashier, was $107,223.36.
The decree continued :
''It appearing that Sehardt had assigned
to the baiik to indemnify it against loss, two
lots of land assigned to J. B. Richardson and
life insurance policies amounting to $80,000,
some of which policies have been paid to the
assignee without suit, and others are now in
litigation in this court, or pending on appeal
or writ of error to the appellate court of this
circuit, held at Cincinnati, the court ad-
judges upon inspection of said guaranty
bonds, their terms and various conditions,
and the proof submitted, that the bank has
complied with the same and all its undertak-
ings thereunder, substantially ; and that said
Sehardt embezzled and fraudulently appro-
priated the moneys of the bank while he filled
said two positions, to the amounts named;
snd that interest should be calculated upon
173 V. 9.
said sums from the end of hU respectivd
terms.
"The court, after considering the various
and numerous defenses set up oj defendant
company, why a recoverv should not be had
upon either of said bonds, or both, in favor
of complainant, is pleased to disallow each
and all of said defenses, and to order, ad-
judge, and decree that complainant have its
decree or judgment against the defendant, the
Guarantee Company, upon each of said bonds
with interest from the time the same should
have been paid according to the terms of said
bonds, and for the costs.
''That complainant have judgment on the
teller's and collector's bond for the sum of ten
thousand dollars principal and the further
sum of seven hundred and seventy dollars,
being interest at six per cent from
9th of April, 1894, to July 1, 1895;
and that complainant have judgment on the
cashier's bona against defendant Guarantee
Company for the sum of twenty thousand
dollars principal and the further sum of $1,-
540.00 interest thereon from April 9, 1894,
to July 1, 1895, making in the aggregate of
principal and interest on both bonds tne stun
of thirty-two thousand three hundred and ten
dollars ($32,310.00) with interest thereon
until paid, and the costs of this suit.
*'*And tJie court orders and decrees that the [585]
liability of the defendant, the Guarantee
Company, is secondary to that of John
Schardt's estate; and that the bank or its as-
signee shall account for all collectiona real-
ized on assets or collaterals turned over to
the bank by said Sehardt to reimburse it
against his shortage, which it has collected,
or with due diligence may collect hereafter;
and for his fitness, and for convenience, H.
M. Doak is appointed master commissioner
to report the same to the next term of this
court; and the court orders that the same
be applied to the shortage of said Sehardt in
the order in which the same occurred, and in
the meantime no execution will issue against
defendants for the same, but only for the
costs; and the court orders thai this cause
may be continued upon the docket of thia
court, for the purpose onlv of making any
orders necessary to apply all collections from
the assets of Sehardt, held as collateral, in
exoneration, to thai extent^ of the defendant
company and of substituting the defendant
to tne rights of the bank, in case the recovery
heiein is collected or paid and any of said as-
sets remain above the amount necessary to
satis^ the shortage. But the case is re-
tained for no other purpose^ and the decree
against defendant company is final as fibcing
ito liability on the bonds to make good the
shortage, whatever that may be. This de-
cree is entered in lieu of one entered at a
former day of the term and the decree for-
merly entered is thereby vacated." 68 Fed.
Rep. 459.
Upon appeal prosecuted by the Guarantee
Company to the circuit court of appeals the
decree was affirmed. 54 U. S. App. 108. The
case is here upon writ of certiorari.
The circuit court of appeals was without
jurisdiction to review the decree of the cir-
cuit court because that decree was not a final
810
585-583
Supreme Ck)UBT of the Uniteo States.
Oct.
one. 26 Stat, at L. 826, 828, chap. 517, S 6.
The circuit court disallowed all of the de-
fenses made hj the Guarantee Company and
adjudged that upon the showing made that
company was primarily liable to the extent
of the penalty of each bond, with interest.
But the liability of the defendant company
was held to be secondary to that of Schardt's
estate which was in course of administration,
[580]and *the amount for which it could be held
finally liable on execution was left to be as-
certained by a master commissioner who was
directed to take into account "all collections
realized on assets or collaterals turned over
to the bank by Schardt to reimburse it
against his shortage," or which the bank
"with due diligence may collect hereafter;"
and the case was retained for the purpose of
fixing the amount of this ultimate liability
to make good Schardt's shortage, "whatever
that may be." In effect, the circuit court
only determined that none of the defenses
were good in law, and that the Guarantee
Company was liable on its bonds for such
sum as might thereafter be found to be due
after crediting the amounts that might be
realized from the assets turned over to the
plaintiff bank by Schardt. Notwithstanding
the company's defenses were adjudged to be
bad in law, it remained for the circuit court
by proper orders to accomplish the object of
the suit, namely, to ascertain the amount for
which tne i>laintiff was entitled to ju<^;ment
and execution. When that amount is ju-
dicially ascertained and fixed by a final de-
eree, the adjudication of the cause will be
completed for all the purposes of an appeal;
and if the decree be afarmed the circuit court
will then have nothing to do but to carry it
into execution. North Carolina Railro€id Co.
V. Swaaey, 23 Wall. 405, 409 [23 : 136, 137] ;
Green v. Fisk, 103 U. S. 518, 519 [26: 486] ;
Dainese v. Kendall, 119 U. S. 53, 54, [30:
305, 306] ; Lodge v. TtoeU, 135 U. S. 232, 235
[34: 153, 155].
The decree of the Circuit Court of Appeals
affirming the judgment of the Circuit Court
is reversed for want of jurisdiction in the
former court, and the cause is remanded with
directions to dismiss the appeal prosecuted
to that court, and for such further proceed-
ings in the Circuit Court as may be con-
sistent with law. Reversed,
[68T1DULUTH & IKON RANGE RAILROAD
COMPANY, Plif. in Err.,
V,
JOSEPH ROY.
(See S. C. Reporter*! ed. 587-601.)
Relief to he granted to a party injured hy
the inadvertait issuing of a patent for
public land to another, when his claim is
pending in the Chncral Land Ofjioe,
One who, being qualified, settled upon public
land with the bona fide Intention of acquiring
the same, and, when the plat of the survey of
the township was filed, went to the land office
to enter the land under the homestead laws,
and on the denial of his offer Instituted a con*
820
test which was pending In the Oumal
Ofllce when the natent was lasoed to
by Inadyertence and mistake, is
relief against the title dalmed
patent.
[No. 221.]
entitlai tt
Buhmitted March 10, 1899,
S,1899.
D^cii6i AfHl
IN ERROR to the Supreme Court el tke
State of Minnesota to review a judgfii
of that court affirming a judgment of te
District Court of the Elerenth Judicial Urn-
trict of the state of Minnesota in faw ti
the plaintiff, Joseph Roy, qaietiBs tbt tilla
to a certain quarter section of land, and for^
ever barring the defendants and all thsai
daiminj^ by or through them of anr rigH
title, lien, or interest in or to the saii
land or any part thereof. Affirwuid.
See same case below, 69 Mum. 574, 7t X.
W. 794.
Statement by Mr. Justioe 1
This is an action to <|uiet title to tki
northwest quarter of section number thret,
in township number sixty-one, north «f
range number fifteen west of the fourth F.
M., state of Minnesota.
It was brought in the district ooort of tht
eleventh judicial district of the state ac*^
the plaintiff in error and one John lugiM.
One Muses D. Kenjou waa mfterwmrds aaii
a party.
The pleadings consisted of the coipltiii
separate answers of the defendants, aM ir
plies of the plaintiff (defendant in errer),
which respectively set up the tftlea, urtcmti*
and claims of the parties. As there is m
point made on them, they are omitted,
The case was tried by the court withoift
a iury and full findings of fact made, sal
juoCTient rendered in favor of the plaiatif
(defendant in error), adjudging and deer«>
ing him to be the eouitable owner of the bail
in controversy, and that the defendants *aW
all persons claiming by or through or nadff
them be and they are hereby forever barrel
and precluded from having or daimiag &>▼
right, title, lien, or interest in or to the laiJ
lands or any part thereof adverse to tte
plaintiff and parties claiming under him.^
From this judgment an appeal was taksi
to the supreme court, by which it wm* tl*
firmed. ( [69 Minn. 647] 72 N. W. 794.)
To the judgment of affirmance this writ «f
error is directed.
*The findings of the court establidwA ttcpM
following:
The lands were patented to th% tUtt of
Minnesota by the united States as swtaf
and overflowed lands, and the plaintiff ia «^
ror is the grantee of the state. The dtfcaJ
ant in error claims under the koasrtaai
laws. At the time of the passage of tk« set
of 1860, under which the patent waa ianei
the lands were not swamp, wet« or ew
flowed, or unfit for cultivation, but were sal
now are "hiffh, dry, and fit for enltir*-
tion," except four or five acres in the nort^
west comer. In May. 1S83, the dcJeaisal
in error, then beins qualified to do eo. mOM
173 D:&
1888.
DuLUTH & Ibon Ranob R. Co. v. Roy.
588,689
ysn the lands with the bona fide intention
acquiring the same under the laws of the
United States, established his residence
tiiereon, and has ever since continued to be in
the actual, exdusive, and notorious pos-
sedsion, maintaining his home there, and cul-
iivating and improving the sapie. When
defendant in error conmienced his residence
on the lands the plat of the survey of the
township in which they were located had not
been filed, but was fued subsequentlv, and
after it was filed, to wit, on the 2d of July,
1883, he went to the land office with the in-
tention of entering the lands under the home-
stead laws, and made a request to do so, but
the land officers informed him that there waa
a mistake in the survey, and that in all prob-
ability a new survey would be ordered ; that
numerous protests had been made against
the survey which were sufficient to raise the
question of its accuracy; that it was un-
necessarv for him to protest or file on the
land, and advised him to wait until such pro-
tests were determined.
He was a foreigner, did not know the Eng-
lish language, nor was he familiar with the
laws, ndes, and regulations relating to the
disposition of the public lands, and relied
upon the representations of the officers, and
acted upon their advice.
On tha 6th of August, 1884, he discov-
ered that the state was claiming the lands
as swamp lands; thereupon he duly made
application to enter the same under the
homestead laws, and tendered the fees to the
local land officer. No adverse claim other
than that of the state had arisen or was
made to said lands, but his offer of entry was
SOlreject^ on the ground *that the same had in-
ured to the state under the act of March 12,
18C0, and that his application to enter the
lands had not been made within three months
after the filing of the township plat in the
land office.
On the 6th of August, 1884, he dul^ filed
contest, duly appealed from the rejection of
his claim, which appeal and the affidavits
attached were transmitted to the Commis-
sioner of the General Land Office, and were
by him received and filed September 1, 1884.
On the 23d of January, 1885, and while
the appeal and contest were pending, the
lands, throuffh mistake and inadvertence,
were patented to the state of Minnesota.
Ihe defendants took conveyance of the lands
with notice of the right, claim, and interest
of the plaintiff (defendant in error).
The assignments of error attack the con-
clusions of the state courts as erroneous, and
specify as reasons (a) that the legal title to
the lands waa in plaintiff in error, and that
there was no findiuff that there was a mis-
take of law or fraud on the part of the G^-
eral Land Office of the United States or of
any officers of the United States; (6) the
finding that the patent to the state of Minne-
sota was issued through a mistake or inad-
vertence does not constitute a ground for ad-
judging defendant, in error the equitable
owner of the lands; (o) the defendant in er-
ror is not the real party in interest and
never had the legal or equitable title to the
land, the United States being the only party
173 V. 8.
which could attack the patent to the ttali
of Minnesota or invc^e the action of tte
courts to determine its validity.
Meaara, J. M. Wilson, and Davia, 0t>l-
liater, d Hicka, for plaintiff in error:
It was incumbent on the complainant be-
low to establish that he himself was entitled
to a patent for the premises. It is not suffi-
cient to show that the patentee ought not
to have received a patent.
Bohall V. Dilla, 114 U. S. 47, 29 L. ed. 61 ;
Sparka v. Pterce, 115 U. S. 408, 29 L. ed.
428; Lee v. Johnson, 116 U. S. 48, 29 L. ed.
570.
The complainant has not, under the cir-
cumstances stated in the findings, established
any privity with the original source of title,
and nas therefore no sutndine as an equi-
table owner, and is not ^titled to maintain
this suit.
Cooper V. Roberta, 18 How. 173, 15 L. ed.
338; Spencer v. Lapsley, 20 How. 264, 15
L. ed. 902; Tlie Yoaemite Valley Case, 15
Wall. 77, 21 L. ed. 82; Ehrhardt v. Hoga-
hoom, 115 U. S. 67, 29 L. ed. 346; Comeliiia
V. Keasel, 128 U. S. 456, 32 L. ed. 482 ; Hart-
man V. Warren, 40 U. S. App. 245, 76 Fed,
Rep. 157, 22 C. C. A. 30.
The patent, if issued under the swamp act,
was 4n adjudication of fact within the ex-
clusive jurisdiction of the Land Department,
and cannot be impeached or reviewed by this
court.
Johnaon v. Towsley, 13 Wall. 72, 20 L. ed.
485; Warren v. Van Brunt, 19 Wall. 646,
22 L. ed. 219; Shepley v. Cowan, 91 U. 8.
330, 23 L. ed. 424; French v. Fyan, 93 U. 8.
169, 23 L. ed. 812; Moore v. Rohbina, 96 U.
S. 530, 24 L. ed. 848; Marquez v. ^riahie^
101 U. S. 473, 25 L. ed. 806; Vance v. Bur-
la/nk, 101 U. S. 514, 25 L. ed. 929; Quinhy
V. Conla/n, 104 U. S. 420, 26 L. ed. 800; Bt.
Louia Smelting d Ref. Co. v. Kemp, 104 U
S. 636, 26 L. ed. 875; Steel v. St, Louia
Smelting d Kef. Co. 106 U. S. 447, 27 L. ed.
226; Baldv)in v. Stark, 107 U. S. 463, 27 L.
ed. 526; United Statea v. Minor, 114 U. S.
233, 29 L. ed. 110; Lee v. Johnaon, 116 U. S.
48, 29 L. ed. 570; Wright v. Roseberry, 121
U. S. 488, 30 L. ed. 1039 ; Knight v. United
Statea Land Aaao. 142 U. S. 161, 35 L. ed.
974; United Statea v. California d 0. Land
Co. 148 U. S. 31, 37 L. ed. 354; Barden v.
Northern P. R. Co. 154 U. S. 288, 38 L. ed.
992; Catholic Bishop of Nesqually v. Gift-
don, 158 U. S. 155, 39 L. ed. 931.
The particular mistake must be pointed
out and designated by the finding of the
Land Department, in order that it may ap-
pear whether what is claimed to be a mis-
take in the construction of law is really
such.
Johnson v. ToxosUy, 13 Wall. 72, 20 L.
ed. 486 ; Marquez v. FrisUe, 101 U. S. 473, 25
L. ed. 800; Quinby v. Conlan, 104 U. S. 420,
26 L. ed. 800.
Messrs. J. M. Vale, and John Brennan,
for defendant in error:
Privity between the plaintiff and theUnit^
ed States sufficient to sustain this suit is
found in the laws enacted by Ck)ngress gov*
erning the disposition of the public domain,
821
689-5di
SUPBEME COUBT OF TUB UlYITEO STATES.
Oct. TxBif»
•ad In compliance or tender of compliance
with luch lawB on the part of defendant in
error as far as was in his power through
the wrongful act of the land officera.
The rights of defendant in error have
neyer been Anally passed upon by the officers
ef the Land Department.
The ouestion at issue is the superior right
of the aefendant in error over any right of
the patentee or those claiming under the
patent
The mistake and inadvertence found, and
which actually exists, is that of issuing a
patent under any law or without law, to the
state of Minnesota in the presence of the su-
l^rior right of defendant in error.
The remedy sought to be enforced in this
motion has been held by this court in numer-
ous cases to be the proper one, upon such
an issue as that eldsting between the par-
ties to thi" suit.
saver V. Ladd, 1 Wall. 219, 19 L. ed. 138;
Johnson v. Totcsley, 13 Wall. 72, 20 L. ed.
485.
Defendants in error dte, in support of
their contentions herein: —
Barnard v. Ashley, 18 How. 43, 15 L. ed.
285; Minnesota v. Baohelder, 1 Wall. 115,
1/ L. ed. 552; Bhepley v. Oovoan, 91 U. S.
8S0, 23 L. ed. 424; Samson v. Smileif, 13
Wall. 91, 20 L. ed. 489; Morrison v. Stal-
naker, 104 U. S. 213, 26 L. ed. 741 ; Lindsay
T. Haioes, 2 Black, 554, 17 L. ed. 265 ; Cun-
ningham V. Ashlept 14 How. 377, 14 L. ed.
402; Williams v. United States, 138 U. S.
614, 34 L. ed. 1026; Moore v. Robhins, 96
U. S. 535, 24 L. ed. 850; Lytle v. Arkansas,
9 How. 334, 13 L. ed. 161; Lonsdale t.
Daniels, 100 U. S. 113, 25 L. ed. 587.
[589] *Mr. Justice MeKenne, after stating the
facts, delivered the opinion of the court:
Do the facta entitle the defendant in error
to the relief which was awarded him by the
state courts?
[500] *It is now too well established to need ar-
gument to support or a citation of authori-
ties, that when a patent is obtained from the
United States by fraud, mistake, or imposi-
tion, the question thence arising becomes one
of private right, and the oourto in a proper
Sroceeding and in execution of justice will
evest or control the title thereby acquired,
either by compelling a conveyance to the
Slaintiff or by quieting his title as against
tie defendants, and enjoining them from as-
serting theirs. And in two late cases (Ger-
mania Iron Co, v. United States, 165 U. 8.
879 [41 : 754] ; Williams v. United States,
138 U. S. 514 [34: 1026]), it was decided
that this power extends to cases in which the
patent was issued by inadvertence and mis-
take, the grounds relied on in the case at
bar.
The plaintiff in error, however, contends
that defendant in error cannot invoke this
doctrine because he is not in privity with the
United States; that he has not proved or
offered to prove to it, or established, or al-
leged even in this case, the ultimate facts
upon which alone his claim could be recog-
nised or its validity established. In other
8tt
words, that he has not made or has not of-
fered to make final proof.
This contention is attempted to be sup-
ported by the principles announced in Bo'
hall V. Dilla, 114 U. S. 47 [29: 61] ; Sparke
V. Pierce, 115 U. S. 408 [29: 428] ; Lee v.
Johnson, 116 U. 8. 48 [29: 570]. The prin-
ciples are that to enable one to attack a pat-
ent from the government he must show that
he himself was entitled to it. It is not suf-
ficient for him to show that there may have
been error in adjudging the title to the pat-
entee. He must show that by the law prop-
erly administered the title should have beoi
awarded to him.
We do not question these principles, bat
they only mean that the claimant against
the patent must so far bring himself within
the laws as to entitle him, if not obstructed
or prevented, to complete his claim. It does
not mean that at the moment of time the pat-
ent issued it should have been awarded to
him. The acts performed by him may or
may not have reached that completeness;
may not have reached it, and yet justify re-
lief, as in Ard v. Brandon, 156 U. S. 537 [39 :
524], and in Morrison v. Stalnaker, 104 U.
S. 213 [26: 741]. And because of the well-
established 'principle that where an individ-[691)
ual in the prosecution of a right has done
that which the law requires him to do, and
he has failed to attain his right by the mis-
conduct or neglect of a public officer, the law
will protect him. Lytle v. The Stale of Ar*
kansas, 9 How. 333 [13: 160].
It would be arbitrary to apply the prin-
ciple to some acts and not to others — might
destroy it utterly to require the performance
of all. But we are indisposed to extend the
argument, because we r^^rd Ard v. Bran-
don as decisive.
In that case the claimant against the pat-
ent, being qualified and entitled, offered to
make final proof, and from the denial of the
offer prosecuted appeals successively to the
Commissioner of the Qeneral Land Office and
the Secretary of the Interior, and each de-
cided against him. In this case defendant in
error, also being qualified and entitled, of-
fered to enter the land, which offer was de-
nied, and against the claim of the state of
Minnesota he instituted a contest, which was
pending in the General Land Office, when the
patent was issued by inadvertence and mis-
take, and his right thereby defeated. We do
not regard this difference in the cases sul>-
stantial.
But it is urged defendant in error may not
be able to make final proof, and that the
Land Department, whose jurisdiction is ex-
clusive, may determine the lands not to be
swamp or overflowed. Neither supposition
can be indulged. The findings by the court
show full qualification in the defendant in
error and we cannot presume that the Land
Department will find affainst the fact, which
the state courts have found, that the lands
"were not at the time of the passage of the
act of March 12th, 18C0, nor were tney ever,
nor are they now, swamp, wet, or overflowed^
cr unfit for cultivation.^
In Ard v. Brandon relief was adjudged
affainst title derived under patente--cuie
173 V. S.
r
laoa
HiuiDBBSON Brioob Coi V. H£Ni>iau>o.H .
(lUi- 598
the state of land certified to it by the
tJnited States and one directly from the
United States. Equally is the defendant in
error entitled to relief against the title
claimed by plaintiff in error*
Judgment affirmed.
I] HENDERSON BRIDGE COMPANY and the
Louisville & Nashville Railroad Company,
Plffs, in Err.,
V,
CITY OF HENDERSON.
(See B. C. Reporter's ed. 502-624.)
Review of state judgment— ewtent of the fth
riediction of the city of Henderson, Ket^
tucky, for the purposes of taxation —
boundary of Kentucky upon the Ohio river
— taking of private property for public
use without just compensation — nonwaiver
of right to collect tawes — right of city to
tarn for mwMcipal purposes — impairment
of contract — provision in city charter for-
bidding tawation of certain lots — power
to tax not impaired because a bridge is
used for interstate commerce and erected
with permission of Congress,
1. This court hss jurisdiction to review the
state judgment In this case to ascertain
whether It deprives defendants of anj right,
privilege, or immonlty set up bj them under
the Federal Conatltutlon.
2. The citj of Henderson has authority to tax
so much of the Henderson Bridge Company's
property as Is permanently between low-water
marlc on the Kentucky shore and low-water
mark on the Indiana shore of the Ohio river.
8. The boundary of Kentucky extends to low-
water mark on the Indiana shore of the Ohio
river.
4. The taxation by the dty of Henderson, of a
bridge belonging to said company and Its ap-
purtenances within the fixed boundary of the
city, between low-water mark on the two
sides of the Ohio river, 1b not a taking of
private property for public use without just
compensation in violation of the Federal
Constitution.
5. The stipulation In the grant to the bridge
company, that the grant should not be con-
strued as waiving the rights of the city to
collect taxes on the bridge and its appur-
tenances, saves to the city a right to impose
such taxes as the law then or thereafter shall
authorise it to impose.
6. The said bridge property within the limits
of said city enjoys such benetits from the city
government that conaistently with the United
States Constitution, It may be subjected to
municipal taxes.
7. The ordinances under which the bridge was
taxed do not Impair the obligation of the
contract between the bridge company and the
Louisville ft Nashville Railroad Company.
8. The provision In the city*s charter, forbid-
ding the taxation of lands not divided Into
lots of 5 acres or less, does not apply to a
bridge erected over the Ohio river within the
city's limits.
0. The power of Kentucky to tax such bridge
Is not lessened because it was erected under
173 U. 8.
the authority or by consent of Congress ; nor
Is It exempt from taxation because It Is need
for Interstate commerce.
[No. 32.]
Argued May 6, 9, 1898. Decided April $,
1899.
rr ERROR to the Court of Appeals of the
State of Kentuclcy to review a judgment
of that court affirming a judgment of the Cir*
cuit Court of Henderson County, Kentucky,
which established the right of the City of
Henderson, the plaintiff, to tiuc the proper^
of the Henderson Bridge Company, situate
between the low-water mark on the Kentucky
side of the Ohio river and the low-water
mark on the Indiana side of said river and
the approach thereto situated in said city,
and adjudged that the plaintiff had a lien on
such property for the amount of certain un-
paid taxes. Judgment of the Court of Ap-
peals affirfned.
See same case below, 36 S. W. 561.
The facts are stated in the opinion.
Messrs, William Idndsaiy, Maleolm
Teantan, John W. Lockett, andff. W, Bruce
for plaintiffs in error.
Messrs, James W* Olaj and /. P. Clay
for defendant in error.
*Mr. Justice Harlam delivered the opin-[599]
ion of the court:
This case arises out of the taxation by the
city of Henderson, a municipal corporation
of Kentucky, of a railroad bridge (with its
approaches, piers, etc.,) extending from a
point within that city on the Kentucky shore
across the Ohio river to low-water mark on
the Indiana shore.
The property subjected to taxation belongs
to the Henderson Bridge Company, a corpo-
ration of Kentucky, but is under the care,
management, and control of the Louisville 4k
Nashville Railroad Company, also a corporis
tion of that commonwealth.
Those corporations insist that the final
judgment oi the court of appeals of Ken-
tucky, here for review, affirming a judc:ment
rendered in the circuit court of Henderson
county, is in derogation of rights secured to
them by the Constitution of the United
States. The grounds upon which this con-
tention rests will appear from the statement
presently to be made of the history of the
litigation between the city of Henderson and
the corporations named m respect of taxes
assessed upon the bridge property in quae*
tion.
The city contends, not only that the m*
sessment of taxes upon this property was in
all respects valid, but that tne matters here
in dispute, including the questions of consti-
tutional law raised by the bridge and rail-
road companies, have been condusively de-
termined in prior litigation between the par-
ties.
The facts which it seems necessary to
state in order to bring out clearly and fully
the various questions raised by the pleadings
and discussed by counsel are as follows:
The Henderson Bridge Company was in*
823
&«)ii-uUU
SUFKEIIB CODBT OF THB VkIOD STATES.
Oct.
1^
oorporated by an act of the general assembly
P(94]of tne commonwealth of Kentuclcjr •approv^
February 9, 1872, with authority to construct
"a bridge across the Ohio river, extending
from some convenient point within the cor-
porate limits of the city of Henderson to
some convenient point on the Indiana side of
said river, opposite the city of Henderson."
Acts Ky. 1871-2, voL 1, p. 314.
The city's boundary as defined by its char-
ter granted February 11, 1867, extended "to
low-water mark on the Ohio river on the In-
diana shore," and it had the power (with
certain exceptions not material to be noticed
here) to levy and collect taxes at a pre-
scribed rate upon all property within its lim-
its made taxable by law for state purposes.
In 1882 an ordinance was passed by the
common council of the city granting to the
Henderson Bridge Company the r^ht "to
construct on or over the center of Fourth
street in the city of Henderson, and of the
line thereof extended to low-water mark on
the Indiana side of the Ohio river, such ap-
proaches, avenues, piers, trestles, abutments,
toll-houses, and other appurtenances neces-
sary in the erection of and for the business
of a bridge over the Ohio river, from a point
in the city of Henderson to some convenient
point on the Indiana side of said river, and
for such purposes the use of said Fourth
street is hereby granted subject to the terms
and conditions hereinarter expressed;" also,
the ri^ht "to use the space between Water
street in said city and low-water mark in the
Ohio river, extending one hundred feet be-
low the center of Fourth street extended and
three hundred feet above the center of said
street extended to the Ohio river for the pur-
pose required by said company." The com-
pany was also permitted to "erect, or author-
ize or cause to be erected, n-ain elevators
within said space above high-water mark,
and may construct therefrom to the river
such apparatus and machinery as may be
necessary to convey grain from boats to such
elevators, and may have the use of said space
for the landing of boats laden with freight
for such elevators and construct floating
docks or use wharf boats within such space
for the accommodation of such boats and the
conduct of the business of such bridge and of
|595]the said elevators free of "wharfage, subject
to the terms and conditions hereinafter ex-
pressed."
The fourth section of that ordinance de-
clared that it should not be construed "as
waiving the right of the city of Henderson
to levy and collect taxes on the approaches
to said bridge, or any building erected by
said bridge company within the corporate
limits of said city, the bridge itself and all
appurtenances thereto within the limits of
said city."
The fifth section provided that before any
of the rights or privileges so granted should
inure to the benefit of or vest in the bridge
company the latter should by proper author-
ity append to a certified copy of the ordi-
nance their acceptance of and agreement to
abide by and faithfully kefcp its terms and
conditions, such acceptance and agreement to
be acknowledged by the proper authority of
o24
the company as provided im the
deed under the laws of Kentuc^,
ered to the clerk of the Hendersott city
cil.
The brid^ company duly ^f*Tpt^ the er-
dinance with its terms and
agreed to abide by and faithfully keep tht
same, and its acceptance was acknowietei
and delivered to the city council.
In 1884 an agreement in writing was m-
tered into between the bridge eompaay aai
the Louisville & Nashville Railroad Cam-
pany reciting that the former was aboot t»
proceed with the erection of a t»ndgc over
the Ohio river at or near Hendenoa, aad si
a railroad connecting the Henderson dirisMi
of the Louisville & Nashville Railroad Cqb-
pany at Henderson with the South East 4
St lx)uis Railway in or near EvansriOe, la-
diana ; that certain railroads, tneladiag te
Louisville & Nashville Railroad Comftmj,
had by agreement guaranteed to the bridgt
company an income from traffic anxmati^
to two hundred thousand dollars per anasB;
and that it was deemed for the interest of afl
parties, and had been requested by the boaA-
holders under the mortgage placed oe tht
bridge, that the Louisville A, Nashville Bsd-
road Ck>mpany should assume the eoatnl
management, and care of the track of «ad
railroad so to be constructed, and thtr^l
eflfect the usual repairs to such bridge eawet.'
by "ordinary wear and tear, and pay tan OH
imposed on said track and the bridge oa
pensation being made therefor by tba ^
company. By that agreement tha
company undertook to pay the rmiliMd
])any absolutely and in each year dnriw tla
continuance of the agreouent, in equal
ter-yearly payments, the sum of ten tha
dollars per annum, which amount or
parts thereof as were required the railnei
company agreed to apply to tho miiatfMi
of the track and roadbed of said railnad ia
good condition and repair, and toward tbt
usual and ordinarv repairs of the bridfv:
and also to pay all taxes imposed oa aH
track or bridge structure and each of tka.
On the 8th day of December. ISST, tht
city by petition filed in the circuit coart if
Henderson county, Kentucky — that soAtif
collecting taxes being authorized by the l»-
cal law— brought suit against the Ueadtnai
Bridge Company to recover the sum of $R*
£24 as the amount of taxes with pcaaJtM
thereon due from the bridge company aate
ordinances passed by the city in 1884, IML
and 1887, levying and assessing taxat kf
certain purposes. The petition referred m
the above ordinance authorising the *»-
struction of the bridge, and amov
averments in it were the following:
"The defendant commenced the e
tion of said bridge in the year 1883 asi
completed same in the month of Jnly. IStt.
and at a cost of about $2»000,00a« aad «
the — day of July, 1885, the first traia raa
over said bridge. The approach to aaii
bridge is oonstructed over Fourth strwc aar
the principal portion of said city, t ■■§
ing at the west line of Main street aad a-
tending to tha main structure of said bn4ft
at Water street (though, plaintiff daiM.
173 Its.
HSNDBBSON B&lDaX CO. ▼. HBNDSBaOK.
696-69»
not in accordance with tha terms of said
ordinance). The rights and privileges
granted by the plaintiff to the defenduit
were of creat value, and the plaintiff was
influenced and induced to so grant them by
the belief in the ri^ht on the part of the
plaintiff to tax saia bridge as other prop-
erty is taxed within the city limits. By the
building of said bridge through the rights
and privil^^ so granted by the plaintiff
tii3 mtem of roads north of the Ohio River
]hafl been connected with the *Louisville &
Nashville Railroad south of the river, and
the said bridge company's property has be-
come so valuable that its bonds to the amount
of about $2,000,000 are worth a premium of
8% per cent."
The assessment against the bridge com-
pany on account of the bridge and its ap-
proaches was upon a valuation of $600,000
in 1885 and $1,000,000 in each of the years
1886 and 1887. In its petition the city
claimed a lien upon the bridge from the be-
ginning of its approach at Main street in the
city of Henderson to low-water mark on the
Indiana side of the Ohio river for said taxes
and the penalties thereon.
The bridffe company in its answer denied
the nmteriu allegations of the petition and
allied —
That the city had no authority to levy
taxes for the purposes indicated in the or-
dinances referred to;
That the declaration in the ordinance
granting the right to construct the bridge
within the city's limits meant and was in-
tended to mean nothing more than that the
city did not waive any right to tax then
possessed bv it;
That the bridge was built only for the pur-
pose of laying a single railroad track on
which to move locomotives and cars between
Kentuc^ and Indiana over the Ohio river;
That except as to that part of the bridge
commencing at the west line of Main street,
in the eity of Henderson and extending to
the main structure at Water street, the
bridge company derived no assistance or
protection from the city, and. that part be-
tween the Kentucky and Indiana shores
upon stone piers and pillars resting upon
the bed of the Ohio river was not subject to
taxation by the city;
That the bridge was located and construct-
ed in conformity with the two acts of the
Congress of the United States, the one en-
titled ''An Act to Authorize the Construction
of Bridges across the Ohio River and to Pre-
Bcribe Uie Dimensions of the Same," ap-
proved December 17th, 1872, and the other
entitled ''An Act Supplementary to an Act
Approved December 17th, 1872," entitled
"An Act to Authorize the Construction of
Bridges across the Ohio River and to Pre-
scribe the Dimensions of the Same," ap-
proved February 14, 1883, 17 Stat, at L.
398, chap. 4; 22 Stat, at L. 414, chap. 44.
'1 *That the whole of said bridge between the
Kentucky shore and the Indiana shore, 1,968
feet in length, was over the water of the
Ohio river, except the piers or pillars that
support it;
Tnat the Ohio river was a navigable
178 U. 8.
stream within the entire control and joria-
diction of Congress and the courts ci the
United States, and that assumptkm ci eon-
trol by the dij of that part of the biridg*
for purposes of taxaticm or for any purpoea
except for executing writs from its police
authorities, would be in violation of the Con-
stitution of the United States, the laws of
Congress and the rights of the defendants;
and,
That, as the bridge derived no profit, pro-
tection, or advantaj^e from the government
of the city, to subject it to ci^ taxation
would be to take private proper^ for pub-
lic use without just compensation, in viola-
tion of the Conntitution of the United States
as well as of the Constitution and laws of
Kentucky and of the defendant's rights in
thepremises.
The answer of the bridge company further
alleged —
That the Louisville & Nashville Railroad
Company was a necessary party to that suit;
That when it constructed its bridge it waa
the settled law of Keutuckv, as shown by the
judgment of the court of appeals of Ken-
tuc&^ in Louisville Bridge Company v. City
of Louisville, 81 Ky. 189, that the part of
the bridge erected over and across the Ohio
river was not liable to municipal taxation;
That relying upon such being the law of
Kentucky the defendant and the Louisville
& Nashville Railroad Company entered in-
to the above agreement of February 27,
1884; and,
lliat to grant to the plaintiff the relief
grayed for or any part thereof would be a
irect impairment of the contract between
the bridge company and the railroad com-
pany.
The railroad company having been made a
party, adopted the answer of the bridge com-
pany.
The state circuit court adjudged that, the
bridge being in an incomplete condition on
the 10th day of January, 1885, the city was
not entitled to tax it for that year. But as to
the years 188G and 1887, it was adjudged
that the bridge and the approach thereto
were subject to taxation for all the purposes
*and for the amounts claimed in the city's[590|
petition; and that the city had a lien upon
the bridge structure, masonr^r piers, and tha
approach thereto situated witnin its boun-
dary extending to low-water mark on the
Indiana side of the Ohio river, for the taxes
assessed for the years 1886 and 1887 with
interest and costs expended. The bridge
company was directed to pay saiid sums, with
interest and costs, to the plaintiff on or b^
fore a named day.
In a brief opinion of the state circuit
court it was said that the taxable boundary
of the city was coextensive with its statu-
tory boundary. Referring to the case of the
Louisville Bridge Company v. City of LouiS'
ville, 81 Ky. 189, the court held that that
case decided nothing mora than that the
legislature did not intend that the bridge
there in question should be subject to taxa-
tion. It was further said: "Several casea
are relied on where the courts of appeala
have relieved parties from the payment of
825
5MMM)2
Supreme Coubt of the United Statjcs.
taxes on agricultural lands when the city
limits had oeen extended without the own-
er's consent. The rule, if one has been es-
tablished by those cases, should not be ex-
tended to cases where property has been vol-
untarily brought within such boundaries.
The party thus bringing in his property
should be treated as one who sanctioned the
extension of a city so as to include his ag-
ricultural lands. All that can be deduct
from these cases is that in each extension of
a town or city the court will hear the com-
plaints of anj taxpayer and grant or not
l^rant him relief, as the merits of his partic-
ular case may demand.. In this case the de-
fendants voluntarily placed their property
within the legally established limits of the
city and shomd pay the taxes assessed on
other property holders of the city after
1885."
The bridge company and the railroad com-
pany prosecuted an appeal to the court of
appeals of Kentucky, and the city was
panted a cross-appeal from so much of the
judgment as disallowed its claim of taxes
for 1885.
In the court of apneals of Kentucky the
judgment was affirmea. In its opinion it is
apparently conceded that the city could not
under its charter tax the bridge structure
over the river for ordinary municipal pur-
|gOO]poses, that is, "for the support *of its ffov-
ernment proper." But it was said that if
the city was created a taxing district it
could do so. Referring to the contract or
terms upon which the bridge company ac-
S[uired the right to construct its bridge with-
n its limits, and particularly to the clause
declaring that the ordinance should not be
construed as waiving the right of the city
to tax the bridge and its appurtenances
within the corporate limits of tne city, the
court said:
"The appellant contends it was only
meant to reserve the right to tax such prop-
erty of the appellant as was theretofore sub-
ject to taxation by the city government, and,
as that part of the bridge situated on the
water of the Ohio river was not, for the rea-
son above indicated, subject to taxation, the
reservation relates to that part of the bridge,
etc., that the appellee had the right to tox
under the law. It is evident that the con-
tract was well considered and prudently
drafted by men skilled in that kina of work,
and it is not presumed that they engaged in
a mere nudum pactum, but they meant to
set forth a business transaction. Now, that
business transaction was evidently this:
The appellant desired rights and privileges
that it did not possess and which it could
not possess without the consent of the appel-
lee. So it said to the appellee, Grant these
privileges and you may tax what? Only
the approach *to said bridge? No; be-
cause the appellee already had the right to
tax that, and it had made no concessions
that could possibly be construed as waiving
that right. What right, then, was granted?
Why, the rijrht to tax the ^bridge itself.* The
bridge, as distinguished from its abutments
and approaches, is that part that is over
th« water. Now, the appellee, acoordinff to
826
the LouisviUe Bridge Cote^ in iti
capacity had no right to tax tkat fait d
the bridge over the water. Wlij, tkea, ay
that it did not waive the right to tax it? It
waive a right there must be a daiai ol rwht
to waive. Well, it is said, as the app^bt
had no right to tax the bridge, there was xi
fact no ri|;ht to waive. As an abstract prop-
osition of the ri^ht to tax the bridge m
the water (according to said case) , this coe-
tcntion is true; but it is equaUy true ^at
the appellee had the right, if asserted aa4
'agreed to, to claim that the bridge should be[i^
taxed in consideration of the privilcfa
granted. This claim of rif ht, it must b*
presumed, was asserted and agreed to sad
expressed in the contract by ue term *aBt
waiving the right.' If the contract does mi
mean uis, then it means nothing. It is not
supposed that the contracting partks oaJj
meant to reserve a right that Uicy alres^
had and about which there was no pi^MiMi
ground of dispute ; but when it is considered
that the right to tax the bridge to the Is-
diana shore might be legitimately oUaiaii
by contract, and that the appellee gnated
to the appellant rights and privileges cmo-
tial to its enterprise, designed to Bakt
money and is making a large per cent it h
entirely reasonable to suppose that tW vf
pellees would contract for the right to tkas
tax the appellant in consideration of gnat'
ing these essential rights and privil^ct. tf
which the appellant acquired the nght ts
construct and operate so profitable a kw-
ness enterprise. So it seems much aon
reasonable to suppose that the cootnetiaf
parties intended to do this reasonable tki*;.
to wit, to receive some consideratioB for ts*
grant of pririleges rather than tndnliEt a
a mere nudum pactum. The appdlsat. ■&
least for the purpose of collecting tase^
should be consiaered as a part of a nilraal;
consequently, falls within the principle as-
nounoed in El%zahethto%tm d Pmdmcak & M.
Co. V. Trustees of J?Zu»6e<Afo«oa, 12 Bks.
239." [90 Ky. 498] , 14 S. W. 493.
Chief Justice Holt delivered a insnav
opinion, in which he said: 'The IcgHutsrt
by authorizing the imposition and nUWctua
of the railroad and school taxes upon the tm
estate within the city limits created s us-
ing district. The power to collect the«e tu-
es was therefore conferred upon the sppciA
as such a district, and the appeUaat't pr^
erty, being within it, is liable for thcs. A«
to the municipal taxes proper, the appfHac: »
property is within the corporate limits, tf^
m my opinion,* receives su^ bcoefiu trtm
the municipal government as render it k<i
legally and justly liable f6r thi* I*^
Ky. 498], 14 8. W. 493.
The bridge company and the railroad «»
pany sued out a writ of error froa tu*
court, but the writ was dismissed *Bpca t:^ *
ground that although a Federal ^atftifl
ma^ have been raised in the state coart s^
judgment of the latter coart rested ifA
grounds broad enough to sustain the deciM
without reference to any su<^ questioa M?
Justice Blatchford, delivering the of<**"
of the court, said : "The opinion of the ftsir
court is based wholly upon the gniead tksi
189a
Hbndbbsok Bbidob Co. ▼. Hemcerson.
e02-60i
the proper interpreUtion of the ordinanee
of February, 1882, was that the bridge com^
paoy voluntarily agreed that the bridge
should be liable to taxation. This does not
inyolve a Federal question, and is broad
enough to dispose of the case without refer-
ence to any Federal question. This court
cannot review the construction which was
given to the ordinance as a contract by the
state court. There is nothing in the sugges-
tion that the taxation of the oridffe is a reg-
ulation of commerce among the states, or Is
the taxation of any agency of the Federal
ffovemment. The case of Louiaville Bridge
Co. V. City of Louiaville, 81 Ky. 189, was not
decided until May, 1883, more than a year
after the ordinance of the city of Henderson
was accepted by the bridge company, in Feb-
ruary, 1882. The contract of February,
1884, between the bridge company and the
railroad company, was made mors than two
years after tne ordinance of Februarv, 1882,
came into existence. Neither the opinion of
the court of appeals in the present case, nor
that of Chief Justice Holt, nor that of the
circuit court of the state, puts the decision
upon any Federal question ; and on this writ
of error to the state court, we are bound by
its interpretation of the contract contained
in the ordinance, in view of the Constitution
and laws of Kentucky, and cannot review
that question." Henderson Bridge Co. v.
Henderson City, 141 U. S. 679, 689 [35: 900,
904].
By an act of the general assembly of Ken-
tuclcy, approved April 9, 1888, the charter of
the citv of Henderson was repealed, and the
city reincorporated with the following bound-
aries: ''Beginning at a stone on the west
side of the Madisonville road; thence north
48^ 36' east, five thousand six hundred and
forty-one feet to a stone near the White
bridge on the Henderson and Zion Qravel
Road: thence in a straight line north 11* 35'
[603]west to the dividing line of the *ten-acre lots
Nos. 4 and 5; thence with the dividing line
of said lots north 71* west to low- water mark
on the Ohio river on the Indiana shore;
thence down the river with the meanders
thereof at low-water margin to a point oppo-
site the south line of Hancock street ; thence
across said river south 59* east alonff the
south line of said Hancock street in a
straight line to the beginning/' Ky. Acts
1887-8, vol. 2, p. 937. That act, as did the
original charter of the city, gave the common
council power, within the limits of the city,
to levy and collect taxes at a prescribed rate
upon all property in the city subject to taxa-
tion under toe revenue laws of the state for
state purposes, with certain exceptions which
need not oe stated.
The common council, by an ordinance
passed in 1888 and providing for the annual
tax levies for that year, imposed an ad va-
lorem tax ''on all property within the limits
of the city of Henderson subject to taxation
under the present revenue laws of the stats
of Kentucky for state purposes, to be paid by
the owners of said property, respectively;
provided, however, that no land embraced
within the city limits and outside of the ten-
acre lots as originally laid off shall bs as-
173 V. S.
sessed and taxed bv the council, unless the
same is divided and laid off into lots of five
acres or less, and unless all of same is actu-
ally used and devoted to farming purposes."
Similar ordinances were passea providing
the annual tax levies for the fiscal years
1889 and 1890. As appears from the ordi-
nances, these taxes were laid for the purposs
of raising monev sufficient to pay interest on
the city's bonded indebtedness, defray the
ordinary expenses of the city eovernment, '
and meet the annual expenses of the public
schools of the city.
Under the above ordinances, the citr caused
the bridge in question to be assessed by the
city assessor for taxation to low-water mark
on the Indiana side of the Ohio river, as other
property in the cibr, for the years 1888, 1889,
and 1890, at a valuation of one million dol-
lars for each of those years.
The present suit was instituted by the
city a^inst the bridffe company and the
Louisville & Nashville Railroad *Companyto[604J
recover the amount of taxes for the years
1888, 1889, and 1890 alleged to be due under
the above assessments. It is not disputed
that those assessments embraced the bridse
and its piers between low-water mark on the
Kentucky side of the Ohio river and low-
water mark on the Indiana shore.
During the progress of Uie cause the
plaintiff dismissed its suit so far as it relat-
ed to taxes for the year 1890 without preju-
dice to any future action by it to reoovsr
those taxes.
I'ne bridge company filed its answer, in
which — after stating some grounds of de-
fense which did not specificiuly rest on the
Constitution or laws of the United States-
it was averred —
That when it accepted its charter it was
the settled law of Kentucky and had been for
more than forty years, as declared in many
cases by its highest court, that real estate
within the boundaries of a town or city could
not be taxed for municipal purposes ludess
it was capable of being profitably used and
converted into town property and also re-
ceived benefits, both actual and presumed,
from the municipal government seeking to
tax such property ;
That the aefendant constructed its bridge
on the faith of the law of the commonwealth
as thus long established, and that the law
thus established became a part of the con-
tract between Kentucky and the defendant
growinff out of the granting and acceptance
of its charter;
That it was also the settled law of Ken-
tucky when the bridge in question was con-
structed that in the case of bridges across
the Ohio river from a point in a citv or town
whose boundary extended to a low-water
mark on the northern shore of the Ohio river
a city or town had no power or authority
under a charter duly enacted authorizing the
taxation of property by the municipal gov-
ernment within its corporate boundarv to
tax such bridge beyond low-water mark on
the Kentucky or southern side of said river ;
That a city boundanr fixed at low-water
mark on the Indiana shore was not, in ths
meaning and intent of the legislative act so
827
604-607
SUPBBIOB COUBT OF TBS UNHD SIATIS.
Oct.
fixing it, intended to define the taxable
[M5]boundar7 'of the city, but only to confer upon
the city jurisdiction for police purposes up-
on the waters of the river to the Indiana
•hore, and that it was further settled by the
court in the case of Louisville Bridge Com-
pany T. City of Louisville, 81 Ky. 189, that
such an act, if intended to confer a taxing
power over property erected in said stream
beyond the low-water mark on the Ken-
tucky side, was in violation of that provi-
sion of the Constitution of this state which
prohibits the taking of private property for
public purposes without just compensation,
and of the like provision of the Constitu-
tion of the United States, and would, to the
extent it conferred on the city such power, be
absolutely null and void, and that the city
could not tax said property for waterworks,
school or railroad purposes, nor for any
municipal purposes whatever ;
That the defendant, relying upon the law
as thus established, went forward and built
its bridffe to low-water mark on the Indiana
shore of the Ohio river, and the legislative
acts and city ordinances pleaded by plain-
iifir as authority for the collection of the tax
upon that part of the bridge beyond low-
water mark of the Ohio river on the Ken-
tucky shore have all been passed since the
law of Kentucky was settled as above stated,
and are null and void as contrary to that
§ revision of the Constitution of the United
tates forbidding any state to pass a law
impairing the obligation of contracts, and
as contrary to those constitutional provi-
sions, state and Federal, that prohibit the
taking of private property for public uses
without just compensation;
That the above legislative acts and ordi-
nances constitute the only auUiority the
plaintiff has for the assessment of defend-
ant's property or the levy and collection of
the taxes thereon sued for herein, and the
said act of April 9, 1888, which constituted
the only authority the city of Henderson has
to levy or collect taxes for any purposes or
upon any property, and the alleged city ordi-
nances of May, 1888, and of April 24, 1889,
and of May 24, 1890, were each and all
passed and ordained subsequent to the ac-
ceptance b^ the defendant of its charter of
incorporation and its expenditure of the
large sums of monev aforesaid in the con-
[p06]struction of its bridge, and to the *extent
that the faid act or the said ordinances or
either of them do or may authorize^ any por-
tion of defendant's bridge structure situated
north of low-water mark on the Kentucky
shore to be taxed are null and void because
repugnant to the Constitution of the United
States ;
That the defendant has at all times been
willing to pay taxes for the purposes set out
in the petition on that portion of its bridge
which is in fact and in the sense of the leg-
islative acts referred to within the boun-
dary of the dtj of Henderson, to wit, from
the beginning of the approach on the west
side of Main street to low-water mark of
the Kentucky shore; and.
That the taxable boundary of the plain-
828
tiff <m the Ohio rirsr is tha
on the Kentockr shore.
The answer of the bridge
averred : "ThiB territory on libtk tiim d
the Ohio river was, prior to tlie jiar ITM,
a part of the state of Virginia, in whkk far
she ceded to the United States the tenianj
north and west of said river. On the lUk tf
December, 1789, the Congress of tiie Uaitei
States passed the 'ComjMct with Ytipik.*
which authorized the establishment of tb
state of Kentucky, and which conpaet 4e-
fined the rights of the said state in lai ti
the Ohio river. By the eleventh aeetioB of
that compact it is provided *that tbt «t
and navigation of the river Ohio, so far u
the territory of the proposed state (Ka>
tucky) or the territory which shall reBua
within the limits of this commoBTOhk
(Virginia) lies thereon, shall be free ol
common to the citizens of the United Ststa.
and the respective jurisdiction of thii tarn-
monwealth and the proposed state oa t^
river aforesaid shall be concurrent oaly via
the states which may possess the opponai
shores of said river;' that by said eoByacL
formed and ratified between the Untri
States and the states of Virginia asd K»
tucky, the bed of the Ohio river, a%far m a
is permanently under water, is the cohmi
property of the people of the United State.
that it forms a fjeat interstate higlivaj d
commerce, in which a great part of the mm-
try has a direct interest, ana camot be mth
the subject of taxation by the state of tm-
tucky nor any municipal govemmeit eras-
ed by said state, and is by the CovtitiURt J
ahd ^laws of the United Sutes under tht a ;i
elusive control of the govemmeBt of tk
United States; that said stream is a mn-
gable stream from its source to its watX
and the defendant's bridse sought to m
taxed by this proceeding is located u4 Wi
under the permission uid authority of uJ
as required by an act of the Cong ism ti tk
United States entitle<l 'An Act to Aitkinsi
the Construction of Bridges acroaa tkt <Vi
River and Prescribe the Dimenskms of tk
Same,' approved December 17, ISTl ai
another act of said Congress cotitM 'ia
Act Supplementary to an Act approtW >
cember 17, 1872, entitled "An Act to AitW^
ize the Construction of Bridges sctom tV
Ohio River and Prescribe the DimemMw >f
Same, approved February 14th, 1883." ' wf
the defendant submits that the plaiatif W
no jurisdiction over said stream to tat »**
property placed therein by authority of C'*
gress, and for plaintiif to assume to* tax «*•
bridce thus sit^iated would be riolatiw «-
the Constitution of the United Statai. At
laws of Congress, and ot tba delcaduC^
rights in the premises."
The bridge company defended the art^*
upon the further rround that the n^^
asked by the city could not be gnatti «it^
out directly impairing the obUgatm W ti«
contract between it uid the railroad e»
pany; which contract, it was insistei «»
to be interpreted in the light of tba k* rf
Kentucky as it was when such
made and without reference to
in
189S
Hbndkbsos Bkidob Co. ▼. Hendsbson.
(t07-eiO
legislative acts and ordinances incqpsiatent
with its provisionB.
The railroad company adopted the answer
of the bridge company — averring, among
other things, that to grant the plaintiff the
relief prayed for or any part thereof would
be a direct impairment of the obligation of
the contract between the railroad company
and the bridge company and a violation of
the tenth seSion of the first article of the
Constitution of the United States.
The city filed a reply, in whidi the ma-
terial allegations of the answers were con-
troverted. It accompanied its reply with a
transcript of the proceedings in the above
suit between it ana the briqa^e and railroad
companies brought in 1887 to recover the
taxes assessed for the years 1885, 1886, and
]1887, ^including the proceedings in this
court on the appeal prosecuted by those com-
panies. The reply concludes: "The plain-
tiff says that the right of plaintiff to assess
and collect the taxes sued for against the de-
fendant the Henderson Bridge Company, its
{'urisdiction thereon, and all questions raised
>j the pleadings in this case, except as to
the passage of the ordinances alleged, are
now res pidicata, and plaintiff pleads and
relies upon same as a bar to defendants'
pleas herein, and prays as in its petition."
Judgment was rendered in favor of the
city for tiie taxes (with interest and penal-
ties) for the years 1888 and 1889; and it
was adjudged that for the amounts found
due the city ''has a lien upon the bridge
structure, masonry, and piers (mentioned in
the petition) and the approach thereto situ-
ated within the boundary of the state bt
Kentucky and extending to low-water mark
on the Indiana side of the Ohio river." That
judgment having been affirmed by the court
of appeals of Kentucky, the present writ of
error was sued out.
1. If the state court had sustained the
city's plea of res judicata upon some ground
that did not necessarily involve the deter-
mination of a Federal right it mi^ht be that
the present case would come within the rule,
often acted upon, that this court in review-
ing the final judgment of the highest court
of a state will not pass upon a Federal ques-
tion, however distinctly presented by the
plt'adings, if the judgment of the state court
was based upon some gpround of local or gen-
era] law manifestly broad enough in itself
to sustain the decision independently of any
view that might be taken of such Federal
4)uestion. But that rule cannot be applied
to the judgment below. Upon examining
the opinion of the court of appeals of Ken-
tucky in this case we find that that court
expressly waived any decision upon the plea
of res judicata for the reason that some
Tiews were then pressed upon its attention
that had not been presented in previous
cases, and it reconsidered and discussed the
main question suggested by the defense,
namely, that the Constitution of the United
States forbade the assessment of that part of
]the 'bridge property between low- water mark
on the Kentucky shore and low-water mark
on the Indiana shore of the Ohio river. This
court therefore has jurisdiction to review
178 V. 8.
the final judgment of the state court for tit
Surpose of ascertaining whether it deprived
he defendant of any right, privilege, or im-
munity specially set up by them under thmt
instrument.
2. Whether the city of Henderson had au-
thority to tax so much of the propertv of the
bridge company as was permanently between
low- water mark on the Kentucky shore and
low-water mark on the Indiana shore of the
Ohio river depends primarily upon the ques-
tion whether the boundarv of Kentuckv ex*
tended to low-water mark on the Indiana
shore. That question has been settled by ju-
dicial decisions. But it may be well to re-
state here the grounds of those decisions.
Pursuant to a resolution of Congress
passed in 1780, recommending to the several
states assertinff title to waste ukl unappro-
priated lands 'un the western country" that
a liberal cession be made by them to the
United States of a portion of their respective
claims for the common benefit of the Union,
the commonwealth of Virginia, by an act
passed January 2d, 1781, surrendered to the
tlnited States all her right, title, and claim
''to the lands northwest of the river Ohio,"
subject to certain conditions, one of which
was that the ceded territory should be laid
out into states. 10 Hening's Stat. 664. The
United States having accepted that cession
substantially according to the conditions
named, Virginia by an act passed December
20, 1783, authorized her delefiraites in Con-
gress to convey to the United States all her
right, title, and daim, ''as well of soil as ju-
risdiction," to the territory or tract of coun-
try within the limits of the Virginia char-
ter situated "to the northwest of the river
Ohio." 11 Hening's Stat 326. Such a deed
was executed in 1784 by Thomas Jefferson,
Samuel Hand^, Arthur Lee, and James Mon-
roe, representing Virginia — ^the deed describ-
ing the territory conveyed as "situate, ly-
ing, and being to the northwest of the river
Ohio." On the 13th day of July, 1787, •Con-[6I€(I
gress passed an ordinance for the govern-
ment of the territory of the United States
"northwest of the river Ohio." That ordi-
nance provided, among other things, that ''no
tax shall be imposed on land the property of
the United States," and that "the navigable
waters leading into the Mississippi ana St.
Lawrence, and the carrying places between
the same, shall be common highways, and
forever free, as well to the ixmabitants of
the said territory, as to the citizens of the
United States, and those of any other states
that may be admitted into the confederacy,
without any tax, impost, or du^ therefor."
1 Stat, at L. 51, note, chap. 8. Virginia, by
an act passed in 1788, and which referred to
the above ordinance, declared that "the afore-
recited article of compact between the orig-
inal states and the people and states in this
territory northwest of tne Ohio river, be and
the same is hereby ratified and confirmed,
anything to the contrary in the deed of ces-
sion of the said territory by this common-
wealth to the United States notwithstand-
ing." 12 Hening's Stat 780. On the 18tk
day of December, 1789, the general assembly
of Virginia passed the act entitled "An Act
oZV'
OliMiitt
SUPBEICE COUBT OF THE UNITED STATES.
Oct. Tkkm,
Concerning the Erection of the district of
Kentucky into an Independent State.'' That
act provided for a convention in Kentucky to
consider and determine whether that district
should be formed into an independent state.
Its eleventh, fourteenth, fifteenth, and eigh-
teenth sections were in these words: "S 11*
Tliat the use and navigation of the river
Ohio, 80 far as the territory of the proposed
state, or the territory which shall remain
within the limits of this commonwealth, lies
thereon, shall be free and common to the citi-
zens of the United States ; and the respective
Jurisdictions of this commonwealth and of
the proposed state on the river as aforesaid,
shall be concurrent only with the states
which may possess the opposite shores of the
said river.*^ "§ 14. That if the said con-
vention shall approve of the erection of the
said district into an independent state on
the foregoing terms and conditions, they
fhall and ma V proceed to fix a day posterior
to the first day of November, one thousand
seven hundred and ninety-one, on which the
[011]authority of this *common wealth, and of its
laws, under the exceptions aforesaid, shall
cease and determine forever over the pro-
posed state, and the said articles b^!ome a
solemn compact, mutuallv binding on the
parties, ana unalterable by either without
the consent of the other. S 15. Provided,
hotoever. That, prior to the first day of No-
vember, one thousand seven hundred and
ninety-one, the general government of the
United States shall aseent to the erection of
the said district into an independent state,
shall release this commonwealth from all its
Federal obligations arising from the said dis-
trict as being part thereof, and shall agree
that the proposed state shall immediately
after the day to be fixed as aforesaid, pos-
terior to the first day of November, qne
thousand seven hundred and ninety-one or at
some convenient time future thereto, be ad-
mitted into the Federal Union." "S 18.
This act shall be transmitted bv the Execu-
tive to the representatives of this common-
wealth in Congress, who are hereby instruct-
ed to use their endeavors to obtain from Con-
Sress a speedy act to the effect above speci-
ed." 13 Hening's Stat 17. This was fol-
lowed by an act of Congress approved Febru-
ary 4, 1791, which referred to the above Vir-
ginia act of December 18, 1780, and ex-
Sressed the consent of Congress that the said
istrict of Kentucky, 'Within the jurisdic-
tion of the commonwealth of Virginia, and
according to its actual boundaries on Uie
18th day of December, 1789;" should, on the
Ist day of June, 1702, be formed into a new
state, separate from and independent of
the conunonwealth of Virginia. 1 Stat, at
L. 189, chap. 4.
Early in the history of Kentucky some
doubts were expressed as to the location of
the western ana northwestern boundaries of
that commonwealth, and to quiet those
doubts its legislature passed the following
act, whidi was approved January 27, 1810:
"Whereas doubts are suggested whether the
counties calling for the river Ohio as the
boundaij line extend to the state line on
the northwest side of said river, or whether the
880
margii^ of the southeast side b the limit of
the counties; to explain which Be it enaeUd
by the Octieral Assembly, That eadi county
of this commonwealth, eiilling *for the rircrlflt]
Ohio as the boundary line, shall be oonsid-
ered as bounded in that particular by the
state line on the northwest side of said river,
and the bed of the river and the IslaDds
therefore shall be within the respective coun-
ties holding the main land opposite thereto,
within this state, and the several county tri-
bunals shall hold jurisdiction accordingly.*
Ky. Sess. Laws 1810, p. 100,
Next in order of time and as determiaiiif
the boundary line of Kentucky is the judg-
ment of this court in Handly's Lessee t. An-
thony, 6 Wheat. 374, 379, 380 [5: 113, 114]
(1820) which case involved the qu^tion of
the western and northwestern boundaries of
that commonwealth. This court adjudged,
upon a review of the legislative acts and pub-
lic documents bearing upon the question-
Chief Justice Marshall aelivering its cpin-
ion — that although a certain peninsula or b-
land on the western or northwestern barJc of
the Ohio, separated from the mainland bj
only a narrow channel or bayou which was
not filled with water except when the river
rose above its banks, was not within Ken-
tucky as originally established, the boun-
dary of that commonwealth did extend to
low-water mark on the western and nortb-
western banks of the Ohio. "When a great
river," said the chief justice, "is the bouB-
darjr between two nations or states, if the
original property is in neither, and there be
no convention respectingit, each holds to ths
middle of the stream. But when, as in this
case, one state [Virginia] is the original pro-
prietor, and grants the territory on one side
onl^, it retains the river within its own do-
main, and the newly created state extends to
the river only. The river, however, is its
boundary." "Whenever the river is a boun-
dary between states, it is the main, the per-
manent river, which constitutes that booB-
dary; and tbe mind will find itself embar-
rassed with insurmountable difficulty in at^
tempting to draw any other line than the
low-water mark."
The question of boundary was again before
this court in Indiana v. Kentucky, 136 U. S.
479, 505, 519 [34: 329, 331, 336]. That was
a controversy between Kentucky and Indi-
ana as to the boundary lines of the two
states at a particular point on the Ohio riv-
er. Mr. Justice Field, delivering the unani-
mous judgment *of the court, after referring{f 19]
to all the documentary evidence relatinfi: to
the question and to the decision in EandXjfs
Lessee v. Anthony, above cited, said: "As
thus seen, the territory ceded by the state of
Virginia to the United States, out of which
the state of Indiana was formed, lay north-
west of the Ohio river. The first inquiry
therefore is as to what line on the river must
be deemed the southern boundary of the ter-
ritory ceded or, in other words, how far did
the jurisdiction of Kentudrv extend oa ths
other side of the river." Referring to the
channd of the Ohio river as it was when
Kentucky was admitted into the Union, this
court stated iu r«onclusion to be that 'Hhe
173 V. &
ISdtL
HBVDEB80N B&IDOB Co. Y. HfiNDSBttO^.
013-G16
jurisdiction of Kentucky at that time extend-
ed, and ever since has extended, to what was
tiien low-water mark on the north side of
that channel."
The same view of the question of boundary
was taken by the court of appeals of Ken-
tucky in Fleming v. Kenney, 4 J. J. Marsh.
155, 168, Church ▼. Chambers, 3 Dana, 274,
278, UcParland v. McKnighiy 6 B. Mon. 600,
510, and McFall y. Commonwealth, 2 Met.
(Ky.) 304, 396, and by the general court of
Virginia in CommontoeaUh v. Oamer, 8
Gratt. 655, 667.
Upon this question of boundary nothing
can be added to what was said in the cases
cited; and it must be assumed as indisputa-
ble that the boundary of Kentucky extends
to low-water mark on the western and north-
western banks of the Ohio river.
Such bein^ the case, it necessarily follows
that the jurisdiction of that commonwealth
for all the puri>oses for which an^ state pos-
sesses jurisdiction within its territorial lim-
its is coextensive with its established boun-
daries, subiect, of course, to the fundamental
condition that its jurisdiction must not be ex-
erted so as to intrench upon the authority
of the National government or to impair
rights secur^ or protected by the National
Constitution.
3. But the plaintiffs in error insist that
although the jurisdiction of Kentucky may
extend to low-water mark on the opposite
shore of the Ohio river, the city of Henderson
cannot assess for taxation any part of the
•Property of the bridge company between
k] >w- water mark on the Kentucky shore *and
40w-water mark on the Indiana shore with-
out violating the Constitution of the United
States in particulars to be adverted to pres-
ently.
In considering this objection so far as it
rested on Federal grounds, we shall assume
that the action of uie city of Henderson was
authorized by the terms of its charter and
was in no respect forbidden by any principle
of local law. Upon these points we accept
the decision of the highest court of Kentucky
as conclusive. We accept also as binding
upon this court the declaration of the state
court that Kentucky intended by its legis-
lation to confer upon the city of Henderson
a power of taxation for local purposes coex-
tensive with ito stetutery bounoary. But
we may add, as pertinent in the considera-
tion of the Federal questions presented, that
if the commonwealth of Kentucky could tex
for state purposes the bridge property so far
as it was between low-water mark on the
Kentucky shore and low-Water mark on the
Indiana shore, it could confer upon one of ite
municipal corporations the power to tax the
same property for local purposes. So that
a judgment declaring the texation of such
property by the city of Henderson for local
purposes, under the authority of the stete, to
be forbidden by the Constitution of the
United Stetes, would in effect declare that
like taxation bv the stete for state purposes
would be forbidden by that inptnunent.
It is said that the bridge property outeide
of low-water mark on the Kentucky shore is
80 far beyond the reach of municipal protect
178 V. 8.
tion by the authorities of the city of Hender-
son that it cannot be said to receive any ben-
efits whatever from the municipal govern-
ment, and that to impose taxes for the bene-
fit of the city upon such property is a teking
of private property for public use without
just compensation, and therefore inconsist-
ent with the due process of law ordained by
the Fourteenth Amendment of the Constitu-
tion of th3 United Stetes. Chicago, Burling-
ton d Q. R'd Co. V. Chicago, 166 U. S. 226,
241 [41:970, 986]. It is conceivable that
taxation may be of such a nature and so bur-
densome as properly to be characterized a
teking of private property for public use
without juit compensation.
But in order to bring taxation imposed by
a stete or under *ite authority within the[615]
scope of the Fourteenth Amendment of the
National Constitution the case should be so
clearly and palpably an illegal encroach-
ment upon private righte as to leave no
doubt that such texation by ite necessary op-
eration is really spoliation under the guise
of exerting the power to tex. As an act of
Congress should not be declared unconstitu-
tional unless ite repugnancy to the supreme
law of the land is too clear to admit of dis-
pute, so a local regulation under which texes
are imposed should not be held by the courts
of the Union to be inconsistent with the
National Constitution unless th&t conclusion
be unavoidable. All doubt as to the valid-
ity of legislative enactmente must be re-
solved, if possible, in favor of the binding
force of such enactmente. In the case be-
fore us the stete court rejected the idea that
the bridge property in question was entirely
beyond municipal protection and could not
receive any of the oenefite derived from the
municipal government of the cit^ of Hender-
son. We cannot adjudge that view to be so
clearly untenable as to entitle the defend-
f^nte to invoke the principle that private
property cannot be taken for public use with-
out just compensation.
On the contrarv the property which it it
contended was illegally ti^ed is all within
the territorial llmite of Kentucky, within
the stetutory boundary of the city of Hend-
erson, and within reach of the police protec-
tion afforded by that city for the benefit
and safety of all persons and property with-
in ite limite ; not perhaps as much or as dis-
tinctly so as that part of the bridge on the
Kentucky bank south of low-water mark OB
that shore,-' but this difference does not con-
stitute a reason why the city may not regard
the bridge and ite appurtenances within ite
stetutory boundaries as an entirety for pur-
poses of taxation, nor afford any proper
groimd for holdins that the constitutional
riffht to compensation for private property
taken for public use has been violated. The
court of appeals of Kentucky in ite opinion
in this case said: "Applying the just and
equiteble rule of making burdens and bene-
fite of government reciprocal, we think the
whole bridee structure within the corporate
limite of the city of Henderson is liable for
municipal taxe^, for neither the benefits to
the bridge company *are lessened nor its cor* (616)
responding duty to bear ite full share of the
831
«itf-tfl6
SUPBEME COUBT OF THE UNITED StATE:>.
Oct. Thh,
burden is impaired or affected hj the fact
that a portion of the bridse is over water/'
We are unwilling to hold that the state
court in so adjua^ing has prescribed any
rule of taxation inconsistent with the su-
preme law of the land.
In determining a question of this charac-
ter, the power to tax existing, a judicial
tribunal should not enter into a minute cal-
•eolation as to benefits and burdens, for the
purpose of balancing the one against the
other, and ascertaining to what extent the
burdens imposed are out of proportion to
the benefits received. Exact equality and
absolute justice in taxation are recognized
by all as unattainable under any system of
government. The court of appc^s of Ken-
tucky, speaking by Chief Justice Marshall,
in Cheaney v. Hooser, 9 B. Mon. 330, 345,
after observing that there must necessarily
be vested in the l^^l&ture a wide range of
discretion as to the particular subjecto or
species of property which should be the sub-
ject of general or local taxation, as well as
to the extent of the territory within which
a local tax shall operate, well said: 'fThere
must be a palpable and flagrant departure
from equality m the burden as imposed up-
on the p»ersons or property bound to contrib-
ute, or it must be palj^able that persons or
their property are subjected to a local bur-
den for the benefit of others or for purposes
in which they have no interest, and to
which they are therefore not justly bound to
contribute. The case must be one in which
the operation of the power will be at first
blush pronounced to be the taking of private
property without compensation, and in
which it is apparent that the burden is im-
posed without any view to the interest of
the individual in the objects to be accom-
plished by it.**
Proceeding upon the gpround distinctly af-
firmed b^ the highest court of Kentucky
that the city of Henderson -was authorized by
the state to exert its power of taxation as to
all property within its statutory, boundary,
and assuming it to be conclusively estao-
lished by jucucial decisions that the bound-
ary and jurisdiction of Kentucky extend to
low-water mark on the Indiana side of the
Ohio river, we adjudge that the taxation by
the city as property of the bridge and its ap-
|917]purtenanoes *within the fixed boundary of
the cily, between low- water mark on the two
sides of the Ohio river, was not a taking of
private property for public use without just
compensation in violation of the Constitu-
tion of the United States.
4. Another contention of the defendants is
that the acceptance by the bridge company
of its charter and the construction of the
bridge under it created a contract between
that company and the state, whereby the
bridge structure north of low-water mark
on the Kentucky shore of the river was ex-
empted from taxation for any local purpose;
and that the tax ordinances of the city of
Henderson, on which the taxation in ques-
tion is based, impair the obligation of that
contra' !t, and for that reason arc repugnant
to the Constitution of the United States.
Did the bridge company acquire by con-
882
tract an exemption from loeml
respect of its oridge BJtmtcd
water mark on the two sliora ci te Obit
riverT We think not. The charter of tte
city of Henderson shows tiiat its booduy
extended to low-water mark on the ladioa
shore of that river, and that the eoKBdi
council was invested witfi authority to ]erj
and collect taxes at a prescribed rate upm
all property 'Srithin the limits of the otj*
which was taxable by law for state pvpoMi.
with certain specified exoe»tioiis tut hsi«
no relation to the particular onestios j«t
stated. So that i^e grant maoe in 1883 ts
the bridge company was made subject to tk
taxing power thus possessed by themmueifsl
authorities of the city of Henderson, iai
that there was no purpose on the part of tk
city to waive any rignt it possessed to tn
property for municipal purposes it maii
clear by the express stipulatioa thai tki
gprant to the brioge companjr ^Kmld sot U
construed "as waiving the right of the dty
of Henderson to levy and collect taxei a
the approadies to said bridge, or aay bd^
ing erected by said bridge eompaay vitkn
the corporate limits of said city, the bridp
itself and all appurtenances thc^reto vitka
the limits of said city.** This stipelstM
properly interpreted not only saved u?
right the city then bad to impose taxtt, hit
any right that might subsequently be bv
fully conferred upon it. An exemption **
taxation cannot arise from mere ir *'
but only from words dearly and
bly granting such an immunity.
But let it be assumed, for the purposa a
the present case, that the stipuIatMa cdf
embraced such right of taxatioii as the ety
had at the time it granted authority to eet-
btruct the bridge within its limits. Is t^
view, the defenaants insist that interprttaf
the charter of the city and the grant ti tit
bridge company in the light of the lav rf
Kentucky, as established at the date of t^
gprant by repeated decisions of its Uj^irt
court, property such as this bridge utaiii<
between low- water mark on the two sborv ^
the Ohio river, although within the ftst»
tory boundary of the ci^, was not witkii tk
limits of the city for purposes of nresiop
taxation; for, it is contended, the Wia»
structure so taxed, did not and eooM art »
ceive from the municipal govenuBcntssrtet-
eflts, actual or presumed. The ca*e» is ^
court of appeals of Kentud^, decided Wv*
the bridge company accepted its ehariv.tp<*
which defendants rely in support of tkit «•-
tention are Cheaney ▼. Hooser, t R J*t
330 (1848), OovinffUm ▼. Bouthftte, » I
Mon. 498 (1854), MarehiM v. Domote^^
Bush, 681, 692 (1874), and C^rUff ^
LouievUU, 12 Bush, 419 (187e>. IW
cases related to the taxation by Boufr*
corporations of lands which, it was sUflC^
were so situated as not to receive any bot^
whatever from the govemmeot of wek *^
porations. The general principle to fct *"
duced from them is that the tanti* rf
lands for local purposes which do iW »
ceive any benefit, actual or piewmfd fr^
the municipal government impoftioff t** tii*
ixtion, is a taking of private propertr far ^^
i7!t r»
1898.
HBNDBB80N BbIDGB CO. T. HbND£B80.n.
oltMf'^l
lie tue without compensation, and therefore
in violation of the constitutional provision
oa that subject. So that if the charter of
the bridge company was accepted with ref-
erence to the law of Kentucky as it was then
jodiciaUT declared bv its highest court — as
may well be assumed — ^the utmost that can
be asserted is that the company had a con-
tract with th« state which prohibited it or
any muxiici|Ml cor|>oration acting under its
authority from subjecting such of the bridge
property to local taxation as could not re-
jceive any *i)enefit, actual or presumed, from
the gOTemment of that corporation.
In tiioae cases the court wisely refrained
from laying down any general rule that
would oonlrol every controversy that might
arise touching the application of the con-
stitutional provision prohibiting — as did the
Orastitution of Kentucky as well as that of
the United States — the taking of private
property for public use without just com-
pensation. So far as those adjudications are
concerned, it is competent for the court to
inquire in every case as it arises whether
particular propertjr taxed for local purposes
is so situated that it cannot receive any ben-
efit, actual or presumed, from the govern-
ment of tbB municipal corporation imposing
such taxation. The argimient of the learned
counsel assumes it to be incontrovertible that
the bridge property here taxed cannot receive
any such benefit from the government of the
d^ of Henderson. As already indicated,
this court does not accept that view, and is
of opinion that the bridge property within
the statutory limits of that city, and locked
at in its entirety, may be regarded as so sit-
uated with reference to the city that it en-
ioys and must continue to enjoy as long as
m bridge exists such benefits from the gov-
ernment of the city that, consistently with
the Constitution of the United States, and
consistently with the rule heretofore advert-
ed to for determining the validity of legis-
lative enactments, it may be subjected to mu-
nicipal taxes under any system established
by the state for the assessment of property
for taxation. In this view there is no
ground upon which to base the contention
that the ordinance of the city imposing the
taxation in question impairs the obligation
of any contract between the bridge company
and tne state arising from the acceptance by
that company of its charter and the construc-
tion of the bridge under it.
What has been said disposes of the con-
tention that to sustain the validity of the
ordinances under which the bridge was taxed
would impair the obligation of the contract
between the bridge company and the Louis-
ville ft Nashville Railroad Company. It is
Iscarcely necessary to observe that no*contract
between the bridee company and the rail-
road company coiud stand in the way of the
city exiting, as between it and the bridge
company, any power of taxation it legally
possessed. If the taxation in question did
not impair the obligation of any contract be-
tween the city and the bridge company — ^and
%e have hdd that it did not — it results that
the railroad company cannot complain of
bridge company and the railroad oompaa^
was necessarily subiect to the exercise bj
the city of any authority it had or might
have touching the taxation of the bridge lor
local purposes.
5. The assignments of error embrace the
contention that the judcpnent below denies
to the bridge company uie equal protection
of the laws, "in that its property hae been
subjected to taxation from which all other,
land not divided into lots has been exempted,
although the only reasons for exemption ap-
ply with much greater force to the properfy
of the plaintiff m error than to the property
which enjoys the exemption."
This contention is based upon the proviso
in the city's charter declaring that "no land
embraced within the city limits, and outside
of ten-acre lots as originally laid off, shall
be assessed and taxed bv the city council, im-
iess the same is divided or laid out into lots
of five acres or less, and imless all of same
is actually used and devoted to farming pur*
poses." Ky. Acts 1887-88, vol. 2, p. 991.
We are of opinion that this proviso has
no reference to bridges, their approaches,
piers, etc., but refers only to lanos capable
of being cultivated or used and divided into
lots upon which buildings may be erected or
over which streets or other highways may be
constructed. This is the better interpretation
of both the old and the new charter of the
city. Besides, the construction placed by
the state court upon the charter of the city
in respect of its power to tax the bridge prop-
erty necessarily leads to the conclusion that
the provision forbidding the taxation of
lands not divided into lots of ^ve acres or
less does not apply to a bridge erected over
the Ohio river within the city's limits. In
tljis view there is no basis for the*suggestion[6Sl]
of a denial of the equal protection of the
laws, particularly as it is not contended that
the city applies to the assessment of the
bridge and its approaches for taxation any
rule that is not applied to all property
within its limits. As in the case of the
property of others, the bridge and its ap-
proaches are required to be tt^ed upon their
value.
6. Another contention of the plaintiffs in
error is that the assertion of the right of the
commonwealth of Kentucky or of any munic-
ipal corporation acting under its authority
to tax bridge structures permanently locat-
ed with the consent of Congress in or over
the bed of the Ohio river is the assertion of
authority over that stream inconsistent with
the congressional and legislative compact
concerning its use, and inconsistent with the
concurrent purisdiction over the river of the
states on either side of it. Indeed, the de-
fendants insist that if the power to tax the
bridge structure north of low-water mark
on the Kentucky side and south of low-wa*
ter mark on the Indiana side of the Ohio
river exists at idl, it rests in Congress and
could not be exercised even by the concurrent
action of two states, much less by the inde-
pendent action of one.
The present case does not require any de-
cision bv this court as to the extent and char-
such taxation. "Die agreement between the acter of the jurisdiction which may be exer-
173 U. 8. U. S., Book 43. 63 833
tf2i-c:d4
SUPREMS COUBT OF THE UlflTKD SlAIKS.
eised over tlM Ohio river by the states whose
boundaries come to low-water mark on its
shore opposite to Kentucky. The only ques-
tion for determination is whether the taxa-
tion nnder the authoril^ of Kentucky of this
bridge within its jurisdiction iuToWes any en-
croachment imon Federal author itr, or any in-
fringement of rights secured to the defend-
ants by the Consutution of the United States.
* Touching the first branch of this question,
it is to be observed that Kentucky was ad-
mitted into the Union with its "actual boun-
daries" as they existed on the 18th day of
December, 1789, that is, with its northern
and western boundary extending to low-
water mark on the opposite side of the Ohio
river. That state came into the Union equal
in all respects with the states that had ac-
cepted the National Constitution and with
every power that belonged to anv existing
state, and therefore its power of taxation
(MS] Mas in no respect *limitea or restrained, ex-
cept as its exercise was expressly or implied-
Iv limited or restrained by that instrimient.
But what clause of that instrument declares
that a state may not tax for state purposes
any property within its territorial lunits
wmch is owned and operated by one of its
own private corporations T In McCullooh ▼.
Maryland, 4 Wheat 316, 429 [4: 679, 582],
it was said by the Chief Justice to be obvious
that the power of taxation was an incident
of sovereignty, was coextensive with that to
which it was an incident, and that "all sub-
jects over which the sovereign power of a
state extends are objects of toxation." The
subject of taxation m this case is a bridge
structure within the territorial limits of
Kentucky. It is therefore property over
whidi the state may exert its authori^, pro-
vided it does not encroach upon Federal
power or entrench upon rights secured hy the
Constitution of the United States, it is
none tiie less proper^ although the state
does not own the soil in the bed of the river
upon which the piers of the bridge rest.
Whatever jurisdiction the state of Indiana
may properly exercise over the Ohio river,
it cannot tax this bridge structure south of
low-water mark on that river, for the obvi-
ous reason that it Is beyond the limits of that
state and permanently within the limits of
Kentucky.
Nor do we perceive that the power of Ken-
tucky to tax this bridge structure as prop-
erty is any the less by reason of the fact
that it was erected in and over the Ohio river
under the authority or with the consent of
Congress. The taxation of the brid^ by
Kentucky is in no proper sense inconsistent
with the power oi tlongress to reflate the
use of the river as one of the navigable wa-
ters of the United States. This taxation
does not interfere in any degree with the free
use of the river by the people of all the states,
nor with any jurisdiction that the state of
Indiana may properly exercise over that
stream.
Nor does the fact that the bridge between
low- water mark on either side of Uie river is
used by the corporation controlling it for
purposes of interstate commerce exempt it
nrom taxation by the state within whose lim-
884
its it is permanently
cannot by its laws impose direst
upon the conduct <^ interstate eoaam J
carried on ever the 'bridge. But^ m Oe dBEi-{l
sions of this court show, it may
taxation property pernuusestly km
in its territorial limits and employed ia
commerce by individuals and oj privale esr*
poi-ations. In Covington d C. Bridft (h. ▼.
Kentucky, 154 U. S. 204, 212 [38 : MS, M7. 4
Inters. Com. R^. 649], it was said: *Ai
matter of fact, tne building of bridgei
waters dividing two states is now m
done by congressional sanctton. Under tka
power the state may also tax titt tastn-
ments of interstate commerce as it tnai
other similar property, provided such tu ■
not laid upon the commerce itself." See akt
Henderson Bridge Co. v. Hendermm diy, 141
U. S. 679, 689 [35: 900, 904] ; PitUhm-fK C
O. d 8i, L, Raaufay Co, v. Bcmrd of htUm
Works, 172 U.& 32 [ante, 354]. U rftewia
V. Union Pacific Railroad Co, 9 Wall STf
[19: 792], the question was as to the lisfcS-
ties and rights of a railroad eompaay ia n-
spect to taxation under state lesislaooa. It
was contended in that case that the road bsr-
ing been constructed under the direetioB tai
authority of Confess for the purposes tai
uses of the UnitM States, and Deiiif a fsit
of a system of roads thus eonstiucted, ««
exempt from taxation under state aalhan-
ty; that the road was an instnoMBt «f tki
general ^vernment and as such not lelJMt
to taxation by the state. That eoaf*Mi
was overruled, u&is court saying: *^e in
not aware of any case in wnic^ the nri »
tate, or other propo^ of a oorporatioa, s«
organized imder an act oi Coagresa, kes hiM
held to be exempt, in the abeenee of
legislation to that effect, from just
bution, in common with other propcrtv. li
the eeneral expenditure for the w— na m»
fit, because of the emplovmeut of the earf^
ration in the service of the aunii— t*
'There is a clear distinctkm betw«« ttt
means employed by the government, ani s^
property of agents employed by the %vtm»
ment. Taxation of the agency is tsxtfi*
of the means; taxation of the property «f t^
agent is not alwavs or genersilv tsTiHw ^
the means.** In the same case tae eoart md
that ''no one questions that the power tt tu
all property, business, and penoas vitha
their respective limits is orifiaal is ^
states, and has never beoi surrendcril* i^
thougn that power cannot be so ttsed *» *
defeat or hinder the operations of tl»»
tional government.'' Tne ^same fiiaiip'*?
have b^n maintained in other cases ia tte
court. If a state may tax the prsMrtf '
one of its corporations, engaged a ai stn-
ice of the United States, si^ ptupei<5 kfli^
within its limits, there is bo sevnd ismm
why the bridge property in qasitiiM. •>-
though erected with tae coneeBt of
over one of the navigable waters of ths
ed SUtes, should be withdrawn ftpm tkt to^
ing power of the state which
corporation owning it and within
its it is permanenUy located.
The iudgmoit of the Court of App«k k
affirmea.
Bbcubitt Tbubt Oa ▼. DoDi>.
024-020
HSNDEBSON BBIDGE OOMPAKY et .. ' ,
Pltf9. in Err.,
CITY OF HENDERSON.
(8m S. C Beporter*! ad. 624.)
Eendenon Bridge Oompw^f et ak t. Oity of
SendereOH, No. 82, ante, p. 823, followed.
[No. 31.]
Argued May (T, 9, 1898, Decided April S,
1899.
ERROR to the court of appeals of Ken-
tucky.
The facts are stated in the opinion.
See same case below, 36 8. W. 1132, mem.
Messrs. Willi am Iiindsay, Maleolm
Teamam, John W. Lockett, and H. W.
Bruce, for plaintiffs in error.
Miessrs. tajaea W« Clay and J. F, Clay
for defendant in error.
Mr. Justice Harlan delivered the opin-
ion of the court:
This was an action by the city of Hender-
son to recover taxes (with interest and pen-
altiee) assessed b^ it upon the property of
the Henderson Bridge (3ompany within the
limita of that city for the years 1890, 1891,
1892, and 1893. The case presents substan-
tially the same queetions tnat are disposed
of in the opinion just delivered in case
No. 32 between the same parties for taxes
for the vears 1888 and 1889.
For the reasons stated in that opinion the
judCTient of the Court of Appeals of Ken-
tue^ in the present case must be affirmed.
It is so oroered.'
SECURITT TRUST COMPANY, Assignee,
etc, Plif. in Err.,
V,
FRANK H DODD et al
(See S. C Reporter's ed. 624-^6.)
Effect of an assignment for the benefit of
creditors in one state upon attaching cred-
itors cf property in another — Minnesota
statute in regard to assignments.
1. An assignment ezecnted In Minnesota pur-
suant to the general assignment law of that
state, bj a corporation there resident. Is not
available to pass personal property situated
In Massachusetts as against parties resident
In New York, who, subsequent to the assign-
ment, had seised snch property apon an at-
tachment against the Insolvent corporation.
2. The Minnesota statute apon the subject of as-
signments, which limits the distribution of
the Insolvent debtor's property to such of his
creditors as shall file releases of their de-
mands, is In substance and effect an Insolvent
law, and Is operative as to property In an-
other state only so far as the courts of that
state choose to respect It.
[No. 188.]
Argued and Buhmitted January tS, 1899.
Decided April 11, 1899.
178 V. M.
ON CERTIFICATE from the United
Circmt Court of Appeals for the Bigfatk
Circuit certifying certain ^ueetione oi law to
this court for instruction u a suit brought
bv the Security Trust Company as aadffnee
ox the D. D. Merrill Company, a corporMioB
organized under the laws of tiie state of Min-
nesota, a^inst Dpdd, Mead, ft Company, a
partnership resident in New York, for the
conversion of certain personal property situ-
ate in Massachusetts, and claimed by the
plaintiff to have come into its possession by
virtue of assignment by the said Merrill
Company executed in Minnesota. The suit .
was first brought in the District Court of
Minnesota for the Second Judicial District,
and duly removed to the Circuit Court of the
Lnited States for the District of Minnesota,
and to which a writ of error was issued from
the United States Circuit Court of Appeals
for the Eighth Circuit, at the suit of the Se-
curity Trust Companj^. Second question an-
swered in the negative, which answer dis-
posed of the first question without an an-
swer.
Statement by Mr. Justice Brown t
*Thi8 was an action originally instituted [6S5]
in the district court for the second judicial
district of Minnesota, by the Security Trust
Company, as assignee of the D. D. Merrill
Company, a corporation organized under the
laws of Minnesota, against the firm of Dodd,
Mead, ft Company, a partnership resident
in New York, to recover the value of certain
stereotyped and electrotyped plates for print-
ing books, UDon the ground that the defend-
ants had umawfully converted the same to
their own use. The suit was duly removed
from the state court to the circuit court of
the United States for the district of Minne-
sota, and was there tried. Upon such trial
the following facts appeared:
The D. D. Merrill Cconpany having become
insolvent and unable to pay its debts in the
usual course of business, on September 23,
1 803,executed to the Security Trust Company,
the plaintiff in error, an assignment under
and pursuant to the provisions of chapter 148
of the laws of 1881 ox the state of Minnesota,
which assignment was properly filed in the
office of the clerk of the district court. The
trust company accepted the same, qualified as
assignee, took possession of such of the prop-
erty as was found in Minnesota, and disposed
of the same for the benefit of creditors, the
firm of Dodd, Mead, ft Company having full
knowledge of the execution and filing ofsuch
assieninent.
*At the date of this assignment, the D. D.[626]
Merrill Company was indebted to Dodd,
Mead, ft Company of New York in the sum
of $1,249.98, and also to Alfred Mudge ft
Sons, a Boston copartnership, in the sum of
$126.80, which th^ duly assigned and trans-
ferred to Dodd, Mead, ft Company, making
the total indebtedness to them $1,376.78.
Prior to the assignment, the D. D. Merrill
Company was the owner of the personal
property for the value of which this suit
was brought. This property was in the cue-
tody and possession of Alfred Mudge ft Sons
at Boston, Massachusetts, until the same was
886
(
O^tf, 0:^7
SUPHEMS Ck>UKT OF THE UmITCD STATES.
Oct. Tm^
attached 1^ the sheriff of Suffolk county, as
hereinafter stated.
The firm of Alfred Mudge & Sons was,
prior to March 8, 1894, informed of the as-
signment hj the Merrill Company, and at
aTOut the date of such assignment a notice
was served upon them by Qeorge E. Merrill
to the effect that he, Merrill, Uxk possession
of the property in their custody for and in
behalf of the Security Trust Company, as-
signee aforesaid.
On March 8, 1894, Dodd, Mead, ft Com-
^my commenced an action against the D.
J), Merrill Company in the superior court of
the county of Suffolk, upon their indebted-
ness, caused a writ of attachment to be issued,
and the property in possession of Mudge ft
Sons seized upon such writ. A sununons
was served by publication in the manner pre-
scribed by the Massachusetts statutes, al-
though there was no personal service upon
the Merrill Company. The Security Trust
Company, its assignee, was informed of the
bringing and pendency of this suit and the
eeizure of the property, prior to the entering
of a judgment in said action, which judg-
ment was dulv rendered August 6, 1894, ex-
ecution issued, and on September 27, 1894,
the attached property was sold at public
auction to Dodd, Mead, ft Company, the exe-
cution creditors, for the sum of $1,000.
Upon this state of facts, the circuit court
of appeals certified to this court the follow-
ing^ (questions:
''First. Did the execution and delivery <^
the aforesaid deed of assignment by the D.
D. Merrill Company to the Security Trust
Company and the acceptance of the same by
[•27]*lhe latter company and its qualification as
assignee thereunder, vest saia assignee with
the title to the personal property aforesaid,
then located in the state of Massachusetts,
and in the custody and possession of said Al-
fred Mudge ft SonsT
"Second. Did the execution and delivery of
said assignment and the acceptance thereof
by the assignee and its qualification thereun-
der, in the manner aforesaid, together with
the notice of such assignment which was giv-
en, as aforesaid, to Alfred Mudge ft Sons
prior to March 8, 1894, vest the Security
Trust Company with such a title to the per-
sonal property aforesaid on said March 8,
1894, thsit it could not on said day be law-
fullv seized by attachment under process is-
sued by the superior court of Suffolk county,
Massachusetts, in a suit instituted therein
by creditors of the D. D. Merrill Company,
who were residents and citizens of the state
of New York, and who had notice of the as-
signment but had not proved their claim
against the assigned estate nor filed a release
of their claim T'°
Mr, Edmund &• Diiniienty for plaintiff
in error:
The assignment is effectual to convey the
personal property of the assignor in every
place.
Hawhina ▼. Ireland, 64 Minn. 345; Covey
T. Cutler, 65 Minn. 18; StiMhl v. MitoheU, 41
Minn. 327.
The Massachusetts decisions dearly (le*
886
clare the validity of this
sachusetts.
Frank v. BohUii, 165 MaM. 114;
V. KendaU, 137 MaM. 366; Jfof ▼. Wi
macher, 111 Mass. 206; Martim ▼. Potter, 11
Gray, 37, 71 Am. Dec 689; Bawper v. Lmf,
162 Mass. 190.
By the common law in Massadkusctts tad
the decisions of the Federal ooorts, the eoa-
dition requiring releases is simply a wfrhnil
of giving preferences, and does not reader the
assignment invalid.
2 Story, Eq. Jur. ( 1036 ; King v. Wetma^
3 Price, 6; Mather v. Neehit, 13 Fed. Bep^
872; Braeheor v. Weet, 7 Pet. 608, 8 L. sd.
801 ; Denny v. Bennett 128 U. S. 489, 32 L
ed. 491; Thomas v. Jenks, 6 Rawie, 221;
Halsey v. Fairbanks, 4 J&SMm^ 206; Hetdk
V. Smith, 5 Mass. 42; Nostrand v. Atwooi, If
Pick. 281 ; Andrews v. Ludiow, 5 Pick. 28;
Schuler v. Israel, 27 Fed. Rc^ 851; Ufstr-
more v. Jenckes, 21 How. 144, 16 L. ed. 9;
Black V. Zacharie, 3 How. 509, 11 L. ed. 7tt;
Hoisted V. Straus, 32 Fed. Rep. 279.
Messrs, James E. Marlrfcawi, Alheri X
Moore, and Qeorge W. MoM-kham, for dtfaal
ants in error:
An assignment which depends for its foRc
and validity upon the laws of another itili
will not be recognized or enforced as sftiaft
attaching creditors on bona fide purdttan.
Blake v. WiUiams, 6 Pick. 286, 17 1&
Dec. 372; Taylor ▼. Columltian Ins, On. 14
Allen, 353; Oshom v. Adams, 18 Pick. 247;
Ingraham v. Oeyer, 13 Mass. 146, 7 Am. Dk.
132; Pterce v. O'Brim, 129 Mass. 314, r
Am. Rep. 360; Frank ▼. Bohhitt, 155 Hsa.
112; Story, Confi. Laws (8th ed.) |411;Bv
rill. Assignments, 4th ed. | 303 ; Hlj^ Be*
ceivers, S^l; Harrison v. Sterry, 5 CmA,
289, 3 L. ed. 104; Ogden v. Saumden, IS
Wheat 213, 6 L. ed. 606; OUmam v. Lssir
wood, 4 Wall. 409, 18 L. ed. 432; Dm*
V. Bennett, 128 U. S. 493, 32 L. ed. 495; Cr
ton V. Hubbard, 28 Conn. 274, 73 Aa. Dm.
670; Paine v. Lester, 44 Conn. 196, 24 A&
Rep. 442; Johnson v. Hunt, 23 Wesl C;
Abraham v. Plestoro, 3 Wend. 538, 20 A&
Dec. 738; WiUitts v. Watte, 25 N. T. ST;
Kelly V. Crapo, 45 N. T. 86, 6 Am. Rea. S-
Warner v. Jaffray, 96 N. Y. 248. 48 Am
Rep. 016; Barih v. Backus, 140 N. T. 2tf.
23 L. R. A. 47 ; Catlin v. WiXooa Silver mm
Co, 123 Ind. 477, 8 L. R. A. 62; JfeCtartr
Campbell, 71 Wis. 350; Rhawm v. Phrc.
110 111. 359, 51 Am. Rep. 691; Tammsmi t
Cowe, 151 ni. 62; Milne v. Moreton, « Bna
353, 6 Am. Dec. 466; Mankattm^ Obl t.
Maryland Steel Co, 1 Ohio Dee. 2M: JTm**
V. Church. 70 Iowa, 208, 60 Am. Rep. ^•
Franzen v. Hutchinson, 94 Iowa, 95 : J)et*M
V. Currier, 40 N. H. 237 ; Hwnt ▼. Cehm^m
Ins, Co. 55 Me. 290, 92 Am. Dec 5$2: ^mi
V. Morrison, 25 Vt 598; Weider v. JTW^c
66 Tex. 372. 59 Am. Rep. 617; TTeftw V
Whitlock, 9 Fla. 86, 76 Am. Dee. 6r. i^
Asso, of America v. Levy, 33 La. Ann. Utt-
The courU of Massachusetts have ref«^
edly held that an assienmeat ia tmi kr tte
benefit of creditors, whether ttatsiaiy «r^
common law, the only oonsiderataoaftr «k0
is the acceptance of the tmst bf tht^
•ignee, is invalid airainst an s Us i, )»■■♦- *■'
im
Seoubitt Tbuit Co. y. Dodd.
627-4»9
eept BO far m aasented to by creditor! for
i^ose benefit it was made. Such is the de>
eUred policy of courts of that state.
Edtcarda ▼. Mitchell, 1 Gray, 239; Taylor
f. Columbian Ins. Co. 14 Allen, 353; Ward
f. Lamson, 6 Pick. 358; Russell v. Wood-
ward, 10 Pick. 408; Fall River Iron Works
Co. T. Croade, 15 Pick. 11 ; Bradford v. Tap-
pan, 11 Pick. 76; In graham v. Qeyer, 13
3ia88..146, 7 Am. Dec. 132; May v. Wanne-
mooAcr, 111 Mass. 202; Pierce v. O'Brien,
129 Mass. 314, 37 Am. Bep. 360; Faulkner
V. Hyman, 142 Mass. 53.
As to creditors who have not assented to
the assignment prior to an attachment, the
rights of the attaching creditors are super-
ior.
Bradford v. Tappan, 11 Pick. 76; Pierce
T. CBrien, 129 Mass. 315, 37 Am. Rep. 360.
The courts of Massachusetts, in passing
upon the conflicting claims of attaching cred-
itors and assignees claiming under a foreign
assignment, must extend the same rights and
remedies to nonresident attaching creditors
as they would were such creditors residents
of Massachusetts.
Slaughter-House Cases, 16 Wall. 36, 21
L. ed. 394; Oreen v. Van Buskirk, 5 Wall.
307, 18 L. ed. 699, 7 Wall. 139, 19 L. ed. 109;
Barth v. Backus, 140 N. Y. 230, 23 L. R. A.
47; Lemmon v. People, 20 N. Y. 608; Hi-
hernia Nat. Bank v. Lacomhe, 84 N. Y. 367,
38 Am. Rep. 518; Martin v. Potter, 34 Vt.
87; Upton v. Hubbard, 28 Conn. 275, 73
Am. Dec. 670; Newland v. Reilly, 85 Mich.
151; Kidder v. Tufts, 48 N. H. 121; Sturte-
rant v. Armsby Co. 66 N. H. 557; Ward v.
McKcnzie, 33 Tex. 297, 7 Am. Rep. 261 ; Cof-
rode V. Gartner, 79 Mich. 332, 7 L. R. A.
511 ; Philson v. Barnes, 50 Pa. 230; Morgan
V. Neville, 74 Pa. 62; Lewis v. Bush, 30
Minn. 244; Sheldon v. Blauvelt, 29 S. G. 463,
1 L. R. A. 685; Catlin v. Wilcow, Silver
Plate Co. 123 Ind. 477, 8 L. R. A. 62; Ward
V. Maryland, 12 Wall. 163, 20 L. ed. 260 r
Paul V. Virginia, 8 Wall. 177, 19 L. ed. 369;
Ex parte Virginia, 100 U. S. 339, 25 L. ed.
G76 ; Missouri v. Leu>is, 101 U. S. 22, 25 L.
ed. 989; Barbier v. Connolly, 113 U. S. 31,
28 L. ed. 924.
'] *Mr. Justice Brown delivered the opinion
of the court :
This case raises the question whether aB
assignee of an insolvent Minnesota corpora-
tion can maintain an action in the courts of
Minnesota for the conversion of property
formerly belonging to the insolvent corpora-
tion, which certain New York creditors had
attached in Massachusetts, and sold upon ex-
ecution against such corporation. The ques-
tion was also raised upon the argument now
far «n aasignment, executed in Minnesota,
pursuant to the general assignment law of
that state, 1^ a corporation there resident, is
]available *to pass personal property situated
in Massachusetts as against parties resident
in New York, who, tUMequent to the assign-
ment, had sdced such nroperty upon an at-
tachment against the insolvent corporation.
The aasignment wae executed under a stat-
ute of Minnesota, the material provisions of
which are hereiiiafter set forth. The instm-
178 V. M.
ment makes it tht duty of tiie
pay and discharge, in the order ..». ^.^.^
dence provided by law, aU the debts and lia-
bilities now due or to become due from said
party of the first part, together with aU in-
terest due and to become due thereon, to all
its creditors who shall file releases of thcdr
debts and claima against said party of the
first part, according to chapter 148 of the
General Laws of the state of Minnesota for
the year 1881, and the several laws amenda-
tory and supplementarv thereof, and if the
residue of said proceeds shall not be suffi-
cient to pay said debts and liabilities and in-
terest in full, then to apply the same so far
as thiey will extend to the payment of said
debts and liabilities and interest, propor-
tionately on their respective amounts, ac-
cording to law and the statute in such case
made and provided; and if, after the pay-
ment of all the costs, charges, and expenses
attending the execution of said trust, and
the payment and discharge in full of all the
said debts of the party of the first part,
there shall be any surplus of the said pro-
ceeds remaining in the hands of the party oi
the second part, then. Third, repay such sur-
plus to the party of the first part, its suc-
cessors and assigns."
The operation of voluntary or common-law
assignments upon property situated in other
states has been the subject of frequent dis-
cussion in the courts, find there is a general
consensus of opinion to the effect that such
assiffnraents will be respected, except so far
as tney come in conflict with the rights of lo-
cal creditors, or with the laws or public poli-
cy of the state in which the assignment is
sought to be enforced. The cases in this
court are not numerous, but they are all con-
sonant with the above general principleu
{Black V. Zacharie, 3 How. 48^ [11: 690];
Livermore v. Jenckes, 21 How. 126 [16: 55] ;
Oreen v. Van Buskirk, 5 Wall. 307 [18:
699] ; Hervey v. Rhode Island Locomotive
Works, 93 U. S. 664 [23 : 1003] ; •Cole v. Ci*«.[6t91
ningham, 133 U, S. 107 [33 : 538] ; Bamett
V. Kinney, 147 U. S. 476 [37 : 248] ) .
But the rule with respect to statutory as-
signments is somewhat aifferent. While the
authorities are not altogether harmonious,
the prevailing American doctrine is t^at con-
veyance under a state insolvent law operates
only upon property within the territory of
that state, and that with respect to proper^
in other states it is given only such effect aa
the laws of such state permit; and that, in
general, it must give way to claims of cred*
itors pursuing their remedies there. It pass*
es no title to real estate situated in another
state. Nor, as to personal property, will the-
title acquired by it prevail against tiie right*
of attacning creditors under the laws of th»
state where the property is actually situated.
Harrison v. Sterry, 5 Cranch, 289^302 [3:
104, 107] ; Ogden v. Saunders, 12 Wheat. 218
[6: 606] ; Booth v. Clark, 17 How. 322 [15:
164]; Blake v. Williams, 6 Pick. 286 [17
Am. Dec. 372]; Osbom v. Adams, 18 Pidc.
245; Zipoey v. Thompson, 1 Gray, 243; Abra-
Jtam V. Plestoro, 3 Wend. 538 [20 Am. Rep.
738], overruling Holmes v. Remsen, 4 Johns.
Ch. 460 [8 Am. Dec. 581] ; Johnson v. Hunt,
837
604<«U7
SUPBBMS Ck>X7BT OF THB VfflTED STATES.
Oct.
fixing It, intended to define the taxable
£M5]boundarj •of the city, but only to confer up<Hi
the city jurisdiction for police purposes up-
on the waters of the riyer to the Indiana
shore, and that it was further settled by the
oourt in the case of Louisville Bridge Com-
pany ▼. City of Louisville, 81 Ky. 189, that
such an act, it intended to confer a taxing
power over property erected in said stream
beyond the low-water mark on the Ken-
tucky side, was in violation of that provi-
sion of the Ck)nstitution of this state which
prohibits the taking of private property for
public purposes without^ just compensation,
and of the like provision of the Constitu-
tion of the Unitea States, and would, to the
extent it conferred on the city such power, be
absolutely null and void, and that the city
could not tax said property for waterworks,
school or railroad purposes, nor for any
municipal purposes whatever ;
That the defendant, relying upon the law
as thus established, went forward and built
its bridffe to low-water mark on the Indiana
shore of the Ohio river, and the legislative
acts and city ordinances pleaded bv plain-
tifif as authority for the collection of the tax
upon that part of the bridge beyond low-
water mark of the Ohio river on the Ken-
tucky shore have all been passed since the
law of Kentucky was settled as above stated,
and are null and void as contrary to that
§ revision of the Constitution of the United
tates forbidding any state to pass a law
impairing the obligation of contracts, and
as contrary to those constitutional provi-
sions, state and Federal, that prohibit the
taking of private property for public uses
without just compensation;
That the above legislative acts and ordi-
nances constitute the only authority the
plaintiff has for the assessment of defend-
ant's property or the levy and collection of
tiie taxes thereon sued for herein, and the
said act of April 9, 1888, which constituted
the only authority the city of Henderson has
to levy or collect taxes for any purposes or
upon any property, and the alleged city ordi-
nances of May, 1888, and of April 24, 1889,
and of May 24, 1890, were each and all
passed and ordained subsequent to the ac-
ceptance b^ the defendant of its charter of
incorporation and its expenditure of the
large sums of monev aforesaid in the oon-
|0O6]8truction of its bridge, and to the *extent
that the raid act or the said ordinances or
either of them do or may authorize any por-
tion of defendant's bridge structure situated
north of low-water mark on the Kentucky
shore to be taxed are null and void because
repugnant to the Constitution of the United
States;
That the defendant has at all times been
willing to pay taxes for the purposes set out
in the petition on that portion of its bridge
which is in fact and in the sense of the leg-
islative acts referred to within the boun-
dary of the city of Henderson, to wit, from
the beginning of the approach on the west
side of Main street to low-water mark of
the Kentucky shore; and.
That the taxable boundary of the plain-
tiff on th« Ohio riTwr ii tha low-
on the Kentuekv shore.
The answer of the bridge eompaoj fnrtktr
averred: 'The territory on both eidet of
the Ohio river was, prior to the year 1784,
a part of the state of viririnia, in whidi year
she ceded to the United States the territory
north and west of said river. On the 18th of
Dectunber, 1789, the Congress of the United
States passed the 'Compact with Virginia,'
which authorized the establishment of the
state of Kentucky, and which compact de-
fined the rights of the said state in nnd to
the Ohio river. By the eleventh section of
that compact it is provided 'that the use
and navigation of the river Ohio, so far as
the territory of the proposed state (Ken-
tucky) or the territory which shall remain
within the limits of this commonwealth
(Virginia) lies thereon, shall be free and
common to the citizens of the United States,
and the respective jurisdiction of this com-
mon wealth and the proposed state on the
river aforesaid shall be concurrent only with
the states which may possess the opposito
shores of said river;' that by said compact^
formed and ratified between the United
States and the states of Virginia and Ken*
tucky, the bed of the Ohio river, 8% far as it
is permanently under water, is the common
property of the people of the United States;
that it forms a great interstate highway of
commerce, in which a great part of the coun-
try has a direct interest, and cannot be made
the subject of tuxation by the state of Ken-
tucky nor any municipal government create
ed by said state, and is by the Constitution
ahd *laws of the United States under the ex-[MT]
elusive control of the government of the
United States; that said stream is a navi-
gable stream from its source to its mouth,
and the defendant's bridge sought to be
taxed by this proceeding is located and built
under the permission and authority of and
as required by an act of the (ingress of tho
United States entitled 'An Act to Authorize
the Construction of Bridges across the Ohio
River and Prescribe the Dimensions of the
Same,' approved December 17, 1872, and
another act of said Congress entitled 'An
Act Supplementary to an Act approved V^
cember 17, 1872, entitled "An Act to Author^
ize the Ck)nstruction of Bridges across the
Ohio River and Prescribe the Dimensions of
Same, approved February 14th, 1883," ' and
the defendant submits that the plaintiff has
no jurisdiction over said stream to tax any
property placed therein by authority of Con-
gress, and for plaintiff to assume to tax said
bridge thus sitnated would be violative of
the Constitution of the United States, the
laws of (ingress, and of the defendant's
rights in the premises."
The bridge company defended the action
upon the further ground that the relief
asked by the city comd not be jgranted with-
out directly impairing the obligation of the
contract between it and the railroad com-
pany; which contract, it was insisted, was
to be interpreted in the light of the law of
Kentucky as it was whoi such contract was
made and without reference to subsequent
173 U. S.
1898.
SscuRiTT Tkust Co. t. Dodd.
uu;;Mid4
Xlie Miiier opinions of the supreme court
of Minnesota, to the effect that the statute
in question was a bankrupt act, were fol-
lowed by the supreme court of Wisconsin in
MoOlure v. Campbell, 71 Wis. 350, in which <
it vas held that the assignment could have
no legal operation out of the state in which
the proceedings were had, and that the deci-
sion of the supreme court of Minnesota that
the act of 1881 was a bankrupt act was bind-
ing. The contest was between the assignee
of the insolvent debtor and a creditor who
had attached theproperty of l^e insolyent
in Wisconsin. The court held that the
plaintiff, the assignee, took no title to such
property, and was not entitled to its pro-
oeeos. In delivering the opinion the court
said: "We think the question is not affect-
ed b^ the fact that the property, when seized,
was in possessian of the assis^ee, or that the
attaching creditor is a resident of the state
in which the insolvency or bankrupt<7 pro-
ceedings were had. . . . While some of
them" (the cases) ''may, under especial cir-
cumstances, extend the rule of comity to such
a case, and thus give an extraterritorial ef-
fect to somewhat similar assignments, we
are satisfied that the great weight of au-
thorities is the ether way. The rule in this
country is, we think, that assignments by
operation of law in bankruptcy or insolven-
cy proceedings, in which debts may be oom-
pulsorily discharged without full payment
thereof, can have no local operation out of
the state in which such proceedings were
had."
In Fransen v. Hutchinson [94 Iowa, 95],
62 N. W. 698, th.e supreme court of Iowa had
this statute of Minnesota under considera-
tion, and held that as the creditors received
no benefit under the assignment, unless they
first filed a release of all claims other than
such as might be paid under the*assignment,
it would not be enforced in Iowa. It was
Raid that the assignment, which was. that of
an insurance company, was invalid, and that
in an action by tbe assignee for premiums
collected by the defendants, who were
agents of the company, the latter could offset
claims for uneai*fied premiums held by poli-
cy holders at the time of the assignment and
by them assigned to defendants after the as-
Biffnment to plaintiffs.
i^otwithstanding the two later cases in
Minnesota above cited, we are satisfied that
the supreme court of that state did not in-
tend to overrule the prior decisions to the
effect that the act was substantially a bank-
rupt or insolvent law. It is true that in
these cases a broader effect was given to this
act with respect to property in other states
than is ordinarily given to statutory assign-
ments, though voluntary in form. But uie
court was speaking of its power over its own
citizens, who had sought to obtain an ad-
Fantage over the general creditors of the in-
solvent bv seizing his proper^ in another
state. There was no intimation that the
prior cases were intended to be overruled,
nor did the decisions of the later cases re-
quire that they should be.
So far as the courts of other states have
173 V. M.
passed upon the question, they have genml*
ly held that any state law up<Hi the subjeet
of assignments, which limits the distribution
of the debtor's property to such of his credii-
ors as shall file releases of their demands,
is to all intents and purposes an insolvent
law; that a title to personal property ac-
quired under such laws will not be recog-
nized in another state, when it comes in con-
fiict with the rights of creditors pursuing
their remedy there against the property m
the debtor, though the proceedings were in-
stituted subsequent to and with notice of
the assignment in insolvency. The provision
of the s&tuto'in question, requiring a release
from the creditors in order to participate in
the distribution of the estate, operates as a
discharge of the insolvent from his debts to
such creditors — a discharge as complete ae
is possible under a bankrupt law. An as-
signment containing a provision of this kind
would have been in many, perhaps, in most,
of the states void at common law. Orover
V. Wakctnan, 11 Wend. 187 [25 Am. Dec
624]; Ingmham* v. Wheeler, 6 Conn. 277;[684J
Atkinson v. Jordan, 5 Ohio, 293; Burrill on
Assignments, 232 to 256. As was said in
Oonkling v. Oarson, 11 HI. 508: ''A debtor
in failing circumstances has an undoubted
right to prefer one creditor to another, and
to provide for a preference by assigning his
effects; but he is not permitted to say to
any of his creditors that they shall not par-
ticipate in his present estate, unless they re-
lease all right to satisfy the residue of their
debts out of his future acquisitions." In
Brashear v. West, 7 Pet 608 [8: 801], an as-
signment containing a provision of this kind
was upheld with apparent reluctance solely
upon tne ground that in Pennsylvania, where
the assignment was made, it had been trea^
ed as valid. If the assignment contain this
feature, the fact that it is executed volun-
tarily and not in invitum is not a controlling
circumstance. In some states a foreign as-
signee under a statutory assignment, sood by
the law of the state where made, may he per-
mitted to oome into such state and take
possession of the property of the assignor
there found, and to withdraw it from the
jurisdiction of that state in the absence of
any objection thereto by the local creditors
of the assignor; but in such caae the as-
signee takes the property subject to the
eouity of attaching creditors, and to the rem-
eaies provided by the law of the state where
such property is foimd.
A somewhat similar statute of Wisconsin
was held to be an insolvent law in Barth v.
Backus, 140 N. Y. 230 [23 L. R. A. 47], and
an assignment under such statute treated as
ineffectual to transfer the title of the insol-
vent to property in New York, as against an
attaching creditor there, though such credii-
or was a resident of Wisconsin. A like con-
struction was given to the same statute of
Wisconsin in Toumsend v. Oowe, 151 111. 62.
It was said of this statute (and the same may
be said of the statute under consideration),
''It is manifest from these provisions that a
creditor of an insolvent debtor in Wisconsin,
who makes a voluntary assignment, valid
889
9)H-^'
SXTPBEICB C0X7BT OF THE UlfiTED STATES.
OOI.
t , ■
udmr the laws of that state, can only avoid
a final discharse of the debtor from all lia-
bility on his debt, by declining to participate
in any way in the assignment proceeding
He is therefore compelled to consent to a dis-
IM5]cbarge as to so much of his debt *as is not
paid by dividends in the insolvent proceed-
ings or take the hopeless chance of recover-
ing out of the assets of the assigned estate
remaining after all claims allowed have been
paid." To the same effect are Upton v. Hub-
bard, 28 Conn. 274 [73 Am. Dec. 670];
Paine v. Lester, 44 Conn. 196 [26 Am. Rep.
442] ; Weider v. Maddoa, 66 Tex. 372 [59
Am. Rep. 617] ; Catlin v. WUcbx Silver-Plate
Co. 123 Ind. 477 [8 L. R. A. 62] ; Boese v.
King, 78 N. Y. 471.
In Taylor v. Columbian Insurance Co. 14
Allen, 353, it is broadly stated that "when,
upon the insolvency of a debtor, the law of
the state in which he resides assumes to take
his property out of his control, and to as-
sign it by judicial proceedings, without his
consent, to trustees for distribution among
his creditors, such an assignment will not
be allowed by the courts of another state to
prevail against any remedy which the laws
of the latter afford to its own citizens against
property within its jurisdiction." But the
weight of authority is, as already stated,
that it makes no difference whether the es-
tate of the insolvent is vested in the foreign
assi^ee imder proceedings instituted against
the insolvent or upon the voluntary ap^lica^
tion of the insolvent himself. The assignee
is still the a£[ent of the law, and derives from
it his authority. Upton v. Hubbard, 28 Conn.
274 [73 Am. Dec. 670].
While it may be true that the assignment
in question is good as between the assignor
and the assignee, and as to assenting credit-
ors, to pass title to property both within and
without the state, and, in the absence of ob-
jections by nonassenting creditors, may au-
thorize the assignee to take possession of
the assignor's property wherever found, it
cannot t^ supported as to creditors who have
not assented, and who are at liberty to pur-
sue their remedies against such proper^ of
the assignor as they may find in other states.
Bradford v. Tappan, 11 Pick. 76; WHlitte v.
Waite, 26 N. Y. 577 ; Catlin v. Wilcox SUver-
Plate Co, 123 Ind. 477 [8 L. R. A. 62], and
cases above cited.
We are therefore of opinion that the stat-
ute of Minnesota was in substance and effect
an insolvent law; was operative as to prop-
erty in Massachusetts only so far as the
courts of that state chose to respect it, and
[M6]that so far as the plaintiff, *as assignee of
the D. D. Merrill C<Mnpany, took title to such
property, he took it subservient to the de-
fendants' attachment. It results that the
property of the D. D. Merrill Company found
In Massachusetts was liable to attachment
there by these defendants, and that the
courts of Minnesota are boimd to respect the
title so acquired by them.
The second question must therefore be an-
swered in the negative, and as this disposes
of the case no answer to the first question is
necessary.
840
CITIZENS' SAVINGS BANK 0»
BORO, Plif. im Brr^
V,
CITY OF OWENSBORO and A. M. C Sb-
mons. Tax Collector.
(See 8. C Reporter's ed. 6Se-6l2.)
Federal question, ^hen _ ,_
ing obligation of contracts — Hmcitt set, ^
Kentucky, not an irrevocable
repeal of immunity from
law of Kentucky.
1. This court wlU not consider a
tion which was not presented to tte
court or necessarily InTolved in its
2. In determining whether, in a ftvca
contract exists, protected from
hy the Federal Constitotion, this covt
an independent Judgment, and vUl aet
a state decision in conflict with the hoM
decisions of this court.
8. The law of Kentucky called the Hewitt m.
fixing the rate of taxation of state taaki mi
their shares, and Its acceptance by a InL
did not constitute an Irrevocable ooatrao. m
at the time the act was paased, there «« i
general statute of the state reaerrtaf th» nc&
to repeal or alter or amend all chartai tf
corporations, and It was exprcMly asii i
part of the Hewitt act.
4. The mere grant for a designated tlat tf a
immunity from taxation does not tak» nrs
immunity out of the role snbiectisc n^
grant to the general law retalaiag tht p«vr
to amend or repeal, nnleaa the graadiff itf
contain an express provision to that elKt
5. Where there Is no IrreYocable coatrKt p»
tecting a bank from taxation, the taxlii ii*
of Kentucky does not violate the
clause of the Federal Constitution
[No. 669.]
Argued February t7, 28, 18$9.
April 3, 1899.
IN ERROR to the Coart of Appcsb •! tk
State of Kentucky to review a 6tem <i
that court affirming the decree of tht «■>
trial oourt sustaining demorrera, diMctraf
an injunction, and dismissing a mt tm-
menced by the Citizens* Savinp Bask d
Owensboro to enjoin the City of O^tat^-
and its tax collector from enforcing csritf
taxes. Affirmed,
See same case below, 10 Ky. h, Bcp^ 24^
39 S. W. 1030.
The facts are stated in the opiaioa.
Messrs, W. T. ElUa mod J. A. Dsm^
plaintiff in error.
Messrs, Okapeao Watk«m and 1. B.
Ateklsoa for defendants in error.
•Mr. Justice WUta ddirercd the
of the court:
The plainUff in error, the Gtiam' ^*^
ings Bank of Owensboro, Katneiy- *^
created, by an act of the general a*""^
of the sUte of Kentucky, apprafved M*t a
1884, with authority to do a gmeril ^aw?
1888.
Citizenb' Sayings Bank v. Owbnsboko.
0^7-640
tailiwiM. Tlie Ii^lativa ehsrter provided
that tiie corporation should exist for a period
Of thirty years from the date of the act, and
to section 7 it was provided that on the first
day of January in each year the bank should
pay ''into the state treasury, for the benefit
of revenue proper, fifty cents on each one
hundred dollars of stock held and paid for
m said bank, which shall be in full of all
tax and bonus thereon of every kind.''
At the time this charter was granted there
existed on the statute books of Kentudcy a
law enacted February 14, 1856, providing as
follows :
"Sec 1. That all charters and grants of or
to corporations, or amendments uiereof, and
all other statutes, shall be subject to amend-
ment or repeal at the will of the legislature,
unless a contrary intent be therein plainly
expressed: Provided, That whilst privi-
leges and franchises so granted may be
changed or repealed, no amendment or repeal
shall impair other lights previously vested.
''Sec. 3. That the provisions of this act
shall only apply to charters and acts of in-
corporations to be granted hereafter; and
that this act shall take effect from ite pas-
saffe."
It would seem that from the date of its
creation until the year 1886 the bank was
called upon to pay onlv the taxes provided in
the seventh section of its charter. In 1886
(Session Acts of Kentucky 1885-6, pp. 144
to 147 ; Id. 201 ) the legislature of Kentucky
l]pdopted what is designated in the *briefs of
counsel as the Hewitt act, containing the
following provisions as to the taxation of
banks:
"Sec. 1. That shares of stock in state and
national banks, and other institutions of loan
or discount, and in all corporations required
by law to be taxed on their capital stock,
shall be taxed 75 cents on each share there-
of, e^ual to $100, or on each $100 of stock
therein owned by individuals, corporations,
or societies, and said banks, institutions, and
corporations shall, in addition, pay upon
each $100 of so much of their surplus, undi-
vided surplus, undivided profits, or imdi-
Tided accumulations as exceeds an amoimt
eoual to 10 per cent of their capital stock,
which shall be in full of all tax, state, coun-
ty, and municipal.
• •.....••
"See. 4. That each of said banks, institu-
tions, and corporations, by its corporate au-
thority, with the consent of a majority in
interest of a quorum of its 'stockholders, at
a regular or called meeting thereof, may give
its consent to the levying of said tax, and
agree to ^y the same as herein provided,
and to waive and release all risht under the
act of Congress, or under the charters of the
state banks, to a different mode or smaller
rate oi taxation, which consent or agreement
to and with the state of Kentucky shaU be
evidenced by writing imder the seal of such
bank and delivered to the governor of this
commonwealth; and upon such agreement
and consent being delivered, and in consider-
ation thereof, such bank and its shares of
rtock shall be exempt from all other taxation
173 V. 8.
whatsoever so long as said tax shall be paii
during the corporate existence oi ntik
banks.
"Sec. 5. The said bank may take the pro-
ceeding authorized by section 4 of this ael
at any time imtil the meeting of the next
general assembly: Provided, They pay the
tax j^rovided in section 1 from the passage
of this act.
"Sec. 6. This act shall be subject to the
provisions of section eight (8) , chapter sixty-
eight (68), of the General Statutes.
"Sec. 7. If any bank, state or national,
shall fail or refuse to pay the tax imposed by
ttiic act, or shall fail or refuse to *make the[639|
consent and agpreement as prescribed in section
< 4, the shares of stock of such bank, institu-
tion, or corporation, and its surplus, undi-
vided accumulations and undivided profits,
shall be assessed aa directed by section
2 of this act, and the taxes — state,
county, and municipal — shall be imposed,
levied, and collected upon theassessed shares,
surplus, undivided profits, undivided accu-
mulations, as is imposed on the assessed tax-
able proper^ in the hands of individuals:
Provided, That nothing herein contained
shall be construed as exempting from taxa-
tion for coimty or mimicipal purposes any
real estate or building owned ana used by
said banks or corporations for conducting
their business, but the same may be taxed for
coimty and municipal purposes as other real
estate is taxed."
The Citizens' Savings Bank accepted the
Hewitt act in the mode provided, and there-
after paid the tax specified therein.
In 1891 Kentucky adopted a new Constitu-
tlon, which contained the following:
"Sec. 174. All property, whether owned by
natural persons or corporations, shall be
taxed in proportion to its value, unless ex-
empted by this Constitution; and all corpo-
rate property shall pay the same rate of tax-
ation paid by individual property. Nothing
in this Constitution shall be construed to
prevent the general assembly from providinfr
for taxation based on income, licenses, or
franchises."
The state of Kentucky, in 1892, enacted a
law providing, amon^ other things, for the
assessment and taxation by the state, coun-
ties, and municipalities, of banking and
other corporations. This law was in abso-
lute confiict with the Hewitt act, and by
special provision as well as by necessary
legal intendment operated, if the Constitu-
tion had not alreaay done so, to repeal the
system of bank taxation established by the
Hewitt act. Without detailing the scheme
of taxation created by the law of 1892, it
sufiices to say that it organized a state
board whose duty it was to ascertain and fix
the value of what was termed the franchises
of banks and other corporations, referred to
in the law, and upon the amount so fixed the
general state tax was levied. It was besides
made *the duty of the board to certify it8[640}
valuation of the property or franchises to
the proper county or municipality in which
the corporation was located, so that the sum
of this assessment might become the basis
upon which the local taxes should be laid.
841
040-642
SUPBEMB COUBT OF THE UNITED STATES.
Oct. lULM,
Hm city of Owensboro, where the Citizens'
fiATings Bank was located, established by or-
dinances the rate of municipal taxes for the
jean 1893 and 1804, and the sum so fixed
wae assessed upon the valuation of the fran-
chises or property of the bank which had
been certified oy the state board in daimed
conformity to the statute of 1892. The bank
refused to pay these taxes, and a levy was
made by the tax collector upon some of its
property, and garnishment process was also
issued against several of it^ debtors. There-
upon this suit was commenced by a petition,
on behalf of the bank, to enjoin the citv of
Owensboro and its tax collector from enforc-
ing the taxes in question.
The averments of the petition, and of the'
amendments tiiereto^for it was twice
amended — assailed the validity of the tax on
several grounds, all of which are substan-
tially included in the following sunmiary :
First. That the board of stote valuation
had no power under the Constitution and
laws of tne state to make an assessment for
local taxation, and, if it had such power, had
not exercised it lawfully, because the method
of valuation pursued by it was so arbitrair
as to cause its action to be void. SeconoL
That no notice of the assessment had been
S'ven the officials, as required by the state
w. Third. That the taxes violated the
equality clause of the state Constitution, be-
cause, by the method adopted in making
the assessment, the property of the bank
had been valued by a rule which
caused it to be assessed at proportion-
ately one third more than the sum assessed
against other propertv in the city of Owens-
boro, and by one half more than the valua-
tion at which the property of other taxpay-
ers throughout the state was assessed.
Fourth. That the taxes violated the state law
and Constitution, because based upon an as-
sessment made by the state board, and not on
an assessment made by the city, and that
they were likewise illegal, because the levy
iMl]of the tax predicated *upon the assessment,
by the state board, was dehors the powers of
the city of Owensboro under the state laws.
Fifth. That the taxes moreover violated the
equality clause of the state Constitution, be-
cause, as there were certain national banks do-
ing business in the city of Owensboro, against
whom the franchise tax provided by the state
law could not be enforced without a viola-
tion of the law of the United States, there-
fore these banks could not be taxed for the
franchise tax, and not to tax them, whilst
taxing the petitioner, would bring about in-
eauahty of taxation, and hence be a violation
ox the state Constitution. Sixth. The taxes
were expressly and particularly attacked on
the ground that the Hewitt act, and the ac-
ceptance of the terms thereof, constituted an
irrevocable contract, between the state and
the bank, exempting it from all taxation
other than as specified in the Hewitt act, and
therefore that the revenue act of 1892 and
tiie levy of Uie taxes in question by the city
of Owensboro violated the contract rights of
the bank, which were protected from impair-
ment by the Constitution of the United
States.
848
In further support of this groopd t^ pitf-
tion charged that at the time the Hewitt act
was passed the bank had an irrevocable tern-
ti*act arising from section 7 of its charter
limiting taxation to the sum there speciitd,
which right the bank had smieadared ta
consequence of the contract embodied in ^
Hewitt act. It was averred that this iv-
render of its contract right to enjoy the lim-
ited taxation, conferred by its csarter, vat
a valid consideration moving bKweea tW
bank and the state, operating to cmmm the
Hewitt act to become a ocmtract npoa mit-
quate consideration.
A preliminary injunction restraining tht
collection of the taxes was allowed. He
city of Owensboro demurred to the ^-^
and to the various amendments tlicreol,
reserving its demurrers, answered trai
the averments of the original petition
the amendments thereto. Motions we
to dissolve the injunction. On these
testimony was taken and the ea«
on the motions to dissolve, and on the
rers. The trial court disserved the imjtat-
tion, sustained the demurrers, and dimuwd,
the suit. On appeal to *the eoort of apptal-!^
of Kentucky the decree of the trial ooort w
affirmed. [19 Ky. L. Rep. 248] » 3t S. W.
1030.
The opinion of the Kmtncky eoort of wf
peals contained, not only the rcasoi anfi-
cable to the case we are now eonaldcriaf . nt
also such as were by it considered nkiiH
to several other cases which, it wvmld «■&.
were either heard by that court at the Mat
time or were deemed by the oo«trt to arnat
so many cognate questions as to esabic it to
embrace the several dues in one optaioa. Ii
so far as it related to this cause, the opoHa
fully examined and disposed of the himUmi
of contract and the issues oonaeqaent thsr
on. An application on behalf of the apwIlsM
was thereafter filed, styled Tetltioa nr m-
tension of opinion and reversaL" Tkk wf
f>lication, whilst declaring that the sMi-
ant could not assent to the eondmioa of tit
court on the question of the exiatcwe «l tf
irrevocable contract, protected fron iavav^
ment by the Constitution oi the Vw^
States, asked no rehearing on that sabiiet
The fn^unds for rehearing, whi^ were it^
orately pressed, related solely to rertMi
questions of law which it was argaud the nt
ord presented, and which it was cUimd ^
penaed on the state law and CoastitatiM
There was no contention that theee iss— d-
volved the Constitution or laws of the X^mtd
States.
All the assignments of crrer Wt A*
eighth and ninth relate to errors charftd «»
have been committed by the eoort helev •
holding that there was no contract ^vHtk^
from impairment by the Coastitotioa ef At
United States. The eighth assignant ■»
serts that there was error in allowiag a fm-
alty for the nonpayment of the tana ke*
cause such penalty was by the state lav »
posed only upon corporations and net sa sk^
er taxpayers, and therefore the slate lav ^
olsted the Fourteenth Amcnd»Hl to tte
Constitution of the United States. Tte stelk
assignment charges that there was sner a
1898.
CiTizBNs* Savings Bank t, Owxnbbouo.
042-Mo
holding the taxes to be valid because the
property or franchise of the bank, on which
the tax was levied, was assessed at its* full
value, whilst other taxpayers in the state
were assessed at not more than seventy per
cent of the value of their pro^rty, thus cre-
ating an ineauality of taxation, equivalent
(}to a denial of 'the equal protection of the laws
in violation of the Fourteenth Amendment
to the Constitution of the United States.
We at the outset dispose of the eighth and
ninth assignments just referred to. The
questions which thej raise are not properly
here for consideration. They are not pre-
sented by the record nor do they result bv
necessary intendment therefrom. Indeed,
they were excluded from the cause, as Federal
questions, by the implications resulting from
Uie pleadings. Whilst it was charged that
the penalties were unlawful, there was no al-
legation that their enforcement would vio-
late any Federal right. On the oontrarv, the
petition and the amendments to it clearly
placed the objection to the penalties on the
ground that their enforcement would violate
the state law and the state Constitution.
The distinction between the state right thus
asserted and the Federal ri^ht was clearly
made when the only Federal issue which was
relied on, the impairment of the oblif^ation
of the contract, was alleged, for then it was
plainly stated to depend upon a violation of
the Constitution of the United States. Even
after the opinion of the court of appeals was
announced there was not a suggestion made
in the petition for rehearing that a single Fed-
eral question was considered by the parties
as ari8in|f except the one which the court had
fully decided, and as to which it was express-
ly declared a rehearing was not prayed. The
asbignments of error in (question therefore
simply attempt to inject into the record a
Federal Question not lawfully therein found,
never lulled to the attention of the state
court l^ pleading or otherwise, and not nec-
essarily arising for consideration in review-
ing the judgment of the state court to which
the writ of error is directed. But after a
decision by the court of last resort of a state
the attempt to raise a Federal question for
the first time is too late. Miller v. Texas,
153 U. S. 636 [38: 812] ;Loeher v. Sohroeder,
149 U. S. 580 [37 : 866]. It is also clear that
where it is disclosed that an asserted Fed-
eral question was not presented to the state
court or called in any way to its attention,
and where it is not necessarily involved in
the decision of the state court, such question
will not be considered by this court. Louia-
viUe d N. R. Co. v. LouievUUy 166 U. S. 709
[41 : 1173] ; Oxlev Stave Oo, v. Butler Coun-
r]ty, 166 U. S. 648 [41 : 1149] ; •Kipley v. JMt-
noie, 170 U. S. 182 [42: 998] ; Green Bay d
Miea, Canal Co. v. Patten Paper Co. 172 U.
S. 68 [ante, 364] ; Capital Bankv. Cadiz Bank,
172 U. S. 425 [ante, 502]. We therefore de-
clhie to review the errors alleged in the
eighth and ninth assignments, and passing
tl^ir eofnsideration are brought to tne real
Federal oontroversy which arises on the
reoord — that is the question of irrevocable
contract.
The daim is that the Hewitt act and its
178 U. 8.
acceptance by the banks constituted aa irrar^
ocable contract, although at the time that
act was paased there was a f^eral statute
of Kentucky re^rving the right to repeal,
alter, or amend "aU charters or gprantB of
or to corporations or amendments thereof
and all statutes" passed subsequent thereto,
and although this general statute was ex-
pressly ma& a part of the Hewitt act bv the
sixth section thereof. The wording of the
sixth section accomplishing this residt is:
''l*his act shall be subject to the provisions
of section 8, chapter 68, of the Qeneral Stat-
utes," the provision thus referred to being
the general law of 1856, reserving the power
to repeal, alter, or amend as above. When the
proposition relied upon is plainly stated and
its impoH clearly apprehended, no reasoning
is required to demonstrate its unsoundness.
In effect, it is that the contract was not sub-
ject to repeal, although the contract itself
m express terms declares that it should be
so subject at the will of the l^slative au-
thority. The elementary rule is that if at
the time a corporation is chartered and given
either a commutation or exemption from tax-
ation, there exists a general statute reserv-
ing the legislative power to repeal, alter, or
amend, the exemption or commutation from
taxation may be revoked without impairing
the obligations of the contract, because the
reserved power deprives the contract of its
irrevocable character and submits it to leg-
islative control. The foundation of this rule
is that a general statute reserving the power
to repeal, alter, or amend is by implication
read into a subee<}uent charter and prevents
it from becoming irrevocable. In a case like
the one now considered where not only was
there a general statute reserving the power,
but where such general law was made oy im-
ambiguous *lanRuage one of the provisions of [645]
the contract, of course the legislative power
to repeal or amend is more patentlv obvious
to the extent that that which is plainly ex-
pressed is always more evident than that
which is to be deduced by a 1^1 implication.
In Tomlinaon v. Jeaaup, 16 Wall. 464 [21:
204], in speakinjB^ of a contract exemption
from taxation arising from a charter, and of
the right to repeal the same springing from a
general law, reserving the power to alter or
amend, which existed at the time the charter
was conferred, the court, through Mr. Jus-
tice Field, said (p. 459 [21: 206]) :
"Immunity from taxation, constituting Ih
these cases a part of the contract with the
government, is, by the reservation of power
such as is contained in the law of 1841, sub-
ject to be revoked equally with any other
{provision of the charter whenever the Im^s-
ature may deem it expedient for the public
interests that the revocation shall be made.
The reservation affects the entire rdation
between the state and the corporation and
places under legislative control all rights,
privileges, and immunities derived by its
charter directly from the state.**
In Maine C. Railroad Co. v. Maine, 96 U.
S. 499, 610 [24: 836, 841], the question was
as to the liability to taxation of a consoli-
dated corporation which came into existence
while a general statute was in force, provid-
848
(
MHM6
Supreme Coubt of thb Uititkd States.
OclTdm.
';
ing that any act of incorporation subse-
quently passed might be amended, altered, or
repealed at the pleasure of the legislature, in
the same manner as if an express provision
to that effect were therein contained, unless
there was in the act of incorporation an ex-
press limitation orprovision to the contrai^.
The coiurt said: 'There was no limitation m
the act authorizing the oonsolidation, which
was the act of incorporation of the new com-
pany, upon the l^slative power of amend-
ment and altejration, and, of course, there
was none upon the extent or mode of taxa-
tion which might be subsequently adopted.
By the reservation in the law of 1831, which
is to be considered as if embodied in that
act, the state retained the power to alter it
in all particulars constituting the grant to
the new company formed under it, of corpo-
rate rights, privileges, and immunities. The
|€46]eyi8tence of *the corporation and its fran-
chises and immunities, derived directly from
the state, were thus under its control."
In Louisville Water Company v. Clark,
143 U. S. 1, 12 [36: 65, 58], the corporation
claimed that it had acquired under an act
of the legislature of the state of Kentucky
an exemption from taxation which could not
be withdrawn by subsequent legislation with-
out its consent. As the act granting the ex-
emption was passed subsequent to the adop-
tion by the general assembly of Kentucky of
the act of 1856 (the general law which was
in bein^ when the Hewitt act was adopted,
and which was expressly made a part of the
alleged contract), it was held that the ex-
emption from taxation could be repealed
witnout impairing the obligation of the con-
tract. The court, through Mr. Justice Har-
lan, said: "In short, the immunity from
taxation wanted by the act of 1882, was ac-
companied with the condition — expressed in
the act of 1856 and made part of every sub-
sequent statute, when not otherwise express-
ly declared — that, by amendment or repeal
of the former act, such immunity could be
withdrawn. Any other interpretation of the
act of 1856 would render it inoperative for
the purposes for which, manifestly, it was
enacted.^'
Again, in the City of Covington v. Ken-
tucky, 173 U. 8. 231 [ante, 679], considering
the same subject in a case which involved the
application of the power reserved by the
state of Kentucky, in the act of 1856, to re-
*peal, alter, or amend all grants or contracts
made subsequent to that act, the court said,
through Mr. Justice Harlan :
"There was in that act (that is, the one
making the grant) no 'plainly expressed' in-
tent never to amend or repeal it. It is true
that the legislature said that the reservoirs,
machinerr, pipes, mains, and appurtenances,
with the land upon which they were situated,
should be forever exempt from state, county,
and city taxes. But such a provision falls
short of the plain expression ny the legisla-
ture that at no time would it exercise the
reserved power of amending or repealing the
act under which the property was acquired.
The utmost that can be said is that it may
be inferred from the terms in which the ex-
emption was declared that the legislature
844
had no purpose *at the time the aetrfM(l^
was passed to withdraw the exemptioilni
taxation; not that the power reserveimii
never be exerted, so far as taxatioB m ea-
cemed, if in the judgment of the lipditm
the public interest required that to be dm
The power expressly reeerved to wed «
repeal a statute should not be frittered ttif
by any construction of subeeqoeBt sUtBta
based upon mere inference. Before tiut-
ute — ^particularly one relating to tiTitiw
should be held to be irrepealiuile, or not i^
ject to amendment, an intent not to n^ai
or amend must be so direetly aod vrnM-
takably expressed as to leave no nxa k
doubt; otherwise, the intent is not pltniT
expressed. It is not so expressed vki tk
existence of the intent arises only froa akr-
ence or coniecture."
The conclusions stated in these tarn w
but the expressicm of many other adjtdpd
causes. Atlantic d O, Railroad Coaptifi
Georgia, 98 U, S. 369, 365 [25: Itt, m..
Uoge V. Richmond d D, Railroad Ompm
99 U. S. 348, 353 [25: 303, 304]; BttH
Fund Cases, 99 U. S. 700, 720 [25: 4M,«
Gi-eenwood v. Union Freight R, Compmf.
105 U. S. 13, 21 [26:961. 965]; Qm^
GUnwood Cemetery, 107 U. S. 4««, CI
[27 : 408, 412] ; LouisvUU Gas Cmpat t
Citizens* Gas Company, 115 U. S. W3, •*
[29:510, 515]: Gibhs v, Consoliistsi ^m
Company, 130 U. S. 396, 408 [32:9n.*M:.
Sioux City Street Railway Co. t. SiowOii.
138 U. S. 98, 108 [34: 898, 902]. A
Undoubtedly in the Bank Tex Cem. fT ^
Ky. 597, the court of appeals of Kettaitf
decided that the Hewitt law created n r
revocable contract, and that the geacnl »
sembly of that state could not repeal iltv.
or amend it without impairinfr tbe (M|»
tions of the contract, despite tlie <
of the act of 1856, and despite t^
•stance that that act was in express t
corporated in and made part of tW BevA
law. But the reasoning oy whicb Ue<w^
reached this conclusion is directly ti tttAti
with the settled line of decisiow d t^
court just referred to, and the c*«e hi* >••
specifically overruled by the opiiioe m
nounced by the Kentucky eourt ol ■If*'*
in the cause now under review. It n ■«
and cannot be asserted thtt the '••^T*'
Cases ware decided before the cM<y
evidenced by the Hewitt law wm» *"'f*^
hence it cannot be ur^ that mek •dniw.
entered into the consideration of tWfrt**
in forming the contract It it not p"***
ed that the bank, whose rights art here «*
tested, was either a party or prity tr ^
Bank Tax Cases, And eren if vsA JJ***
case, we must not be nnderatood atiio^^
ing that the construction of tte Hewitt •"-
which was announced in the Jtoifc '^'*^!lw
would be binding in controverita •• •• ^^
taxes between those who wwt pM^ '
privies to thoee catei. 0« this «i^ •
expressly abstain from now InUBatiif •
opinion. In determining whtthw. ■J*J
pven case, a contract enata,^ .
impairment bjr the ConstitiitSoa of t>er»^
ed States, this court foi
judgment. As we oondode that tW
171 tt*
1896.
Sboubitt Tbubt Oa ▼. DoDi>.
(»4-<we
HENDERSON BRIDQE OOMPANY et .',
Plfft. in Brr.,
0IT7 OF HENDERSON.
(8m a C Reporter's ed. 624.)
Bendenon Bridge Oampimv e< oL t. Oiiy of
Bender$OH, No. 82, ante, p. 828, followed.
[No. 31.]
Argued May 6, 9, 1898. Decided April S,
1899.
ERROR to the court of appeals of Ken-
tucky.
The facts are stated in the opinion.
See same case helow, 36 8. W. 1132, mem.
Meeera. William Xiindsay, Maleolm
Teamaa, John W. Lockett, and H. W.
Bruce, for plaintiffs in error.
Heeere. J'amea W« Clay and /. F. Clay
for defoidant In error.
Mr. Justice Harlan delivered the opin-
ion of the court:
This was an action by the city of Hender-
ior. to recoTer taxes (with interest and pen-
altiee) assessed by it upon the property of
the Henderson Bridge (Company within the
limits of that city for the years 1890, 1891,
1892, and 1893. The case presents substan-
tially the same qaeeti<ms tnat are disposed
of in the opinion Just deliyered in case
No. 32 between the same parties for taxes
for the Years 1888 and 1889.
For the reasons stated in that opinion the
judgment of the Court of Appeals of Ken-
tnc^ in the present case must be affirmed.
It is io oraiered.'
8ECURITT TRUST COMPANY, Assignee,
etc, Plif. in Brr.,
V.
FRANK H DODD et al
(See S. e Reporter's ed. 624-^6.)
Bfteot of an aaeignment for the benefit of
oreaitore in one state upon attaching ored-
itore of property in another — Minneeota
etatute in regard to aeeignmente.
1. An assignment ezecnted In Minnesota pur-
suant to the general assignment law of that
state, by a corporation there resident. Is not
available to pass personal property situated
In Massachusetts ss against parties resident
In New York, who, subsequent to the assign-
ment, had seised snch property upon an at-
tachment against the InsolTent corporation.
2. The Minnesota statute upon the subject of as-
signments, which limits the distribution of
the InsolTent debtor's property to such of his
creditors as shall file releases of their de-
mands. Is In substance and effect an InsolTent
law, and Is operatlTe ss to property In an-
other state only so far as the courts of that
state ehoose to respect It.
[No. 188.]
Argued and Buhmitted January tS, 1899.
Decided Apnl 11, 1899.
178 U.S.
ON CERTIFICATE from the United
Circuit Court of Appeals for the Biglitk
Circuit certifying certain questions oi law to
this court for instruction In a suit brought
hv the Security Trust Onnpanj as asdffnee
ox the D. D. Merrill Company, a oorporraoB
organized under the laws of the state of Min-
nesota, affainst Dodd, Mead, ft Company, a
partnership resident in New York, for the
conversion of certain personal property situ-
ate in Massachusetts, and claimed by the
plaintiff to have come into its possession bv
virtue of assignment hj the said Merrill
Company executed in Minnesota. The suit .
waa first brought in the District Court of
Minnesota for the Second Judicial District,
and duly removed to the Circuit Court of the
Lnited States for the District of Minnesota,
and to which a writ of error was issued from
the United States Circuit Court of Appeals
for the Eighth Circuit, at the suit of the Se-
curity Trust Companj^. Second question an-
swered in the negative, which answer dis-
posed of the first question without an an-
swer.
Statement by Mr. Justice Brown t
*This was an action originally in8tituted[6S5]
in the district court for the second judicial
district of Minnesota, by the Security Trust
Company, as assignee of the D. D. Merrill
Company, a corporation organized under the
laws of Minnesota, against the firm of Dodd,
Mead, A, Company, a partnership resident
in New York, to recover the value of certain
stereotyped and electrotyped plates for print-
ing books, upon the gpround that the defend-
ants had unlawfully converted the same to
their own use. The suit was dul^ removed
from the state court to the circuit court of
the United States for the district of Minne-
sota, and was there tried. Upon such trial
the followinff facts appeared:
The D. D. Merrill Cconpany havinff become
insolvent and unable to pay its debts in the
usual course of business, on September 23,
1 893,executed to the Security Trust Company,
the plaintiff in error, an assignment under
find pursuant to the provisions of chapter 148
of the laws of 1881 ox the state of Minnesota,
which assignment was properly filed in the
office of the clerk of the district court. The
trust company accepted the same, qualified as
assignee, took possession of such of the prop-
erty as was found in Minnesota, and disposed
of the same for the benefit of creditors, the
firm of Dodd, Mead, ft Company having full
knowledge of the execution and filing otsuch
assignment.
*At the date of this assignment, the D. D.[626]
Merrill Company was indebted to Dodd,
Mead, ft Company of New York in the sum
of $1,249.98, and also to Alfred Mudge ft
Sons, a Boston copartnership, in the sum of
$126.80, which thev duly assigned and trans-
ferred to Dodd, Mead, ft Company, making
the total indebtedness to them $1,376.78.
Prior to the assignment, the D. D. Merrill
Company was the owner of the personal
property for the value of which tnis suit
was brought. This property was in the cue-
tody and possession of Alfred Mudge ft Sons
at Boston, Massachusetts, until the same was
886
02t}, ^21
SupBEMfi Ck)uirr of the United States.
Oct. Twam^
attached bj the sheriff of Suffolk county, as
hereinafter stated.
The firm of Alfred Mudge & Sons was,
prior to Ifturch 8, 1894^ informed of the as-
signment by the Merrill Company, and at
aMut the date of such assignment a notice
was served upon them by Qeorge E. Merrill
to the effect that he, Merrill, t(wk possession
of the property in their custody for and in
behalf of the Security Trust Company, as-
signee aforesaid.
On March 8, 1894, Dodd, Mead, ft Com-
TOny commenced an action against the D.
p. Merrill Company in the superior court of
the county of Suffolk, upon their indebted-
ness, caused a writ of attachment to be issued,
and the property in possession of Mudge ft
Sons seized upon such writ. A summons
was served by publication in the manner pre-
scribed by the Massachusetts statutes, al-
though there was no personal service upon
the Merrill Company. The Security Trust
Company, its assignee, was informed of the
bringing and pendency of this suit and the
eeizure of the property, prior to the entering
of a judgment in said action, which judg-
ment was duly rendered August 6, 1894, ex-
ecution issued, and on September 27, 1894,
the attached property was sold at public
auction to Doad, Mead, ft Company, the eze-
oution creditors^ for the sum of $1,000.
Upon this state of facts, the circuit court
of appeals certified to this court the follow-
ing questions:
^'First. Did the execution and delivery of
the aforesaid deed of assignment by the D.
D. Merrill Company to the Security Trust
Company and the acceptance of the same by
[#27]*the latter company and its qualification as
assignee thereunder, vest said assignee with
the titie to the personal property aforesaid,
then located in the state of Massachusetts,
and in the custody and possession of said Al-
fred Mudge ft Sons?
"ScKCond. Did the execution and delivery of
said assignment and the acceptance thereof
by the assignee and its qualification thereun-
der, in the manner aforesaid, toj^ether with
the notice of such assignment which was giv-
en, as aforesaid, to Alfred Mudge ft Sons
prior to March 8, 1894, vest the Security
Trust Ck>mpany with such a title to the per-
sonal property aforesaid on said March 8,
1894, that it could not on said day be law-
fully seized by attachment under process is-
sued by the superior court of Suffolk county,
Massachusetts, in a suit instituted therein
by creditors of the D. D. Merrill Company,
who were residents and citizens of the state
of New York, and who had notice of the as-
signment but had not proved their claim
against the assigned estate nor filed a release
if their daimK
Mr, Edmimd 8. Dwmenty for plaintiff
in error:
The assignment is effectual to convey the
personal property of the assignor in every
place.
Hawkins y. Ireland, 64 Minn. 345; Covey
T. Cutler, 65 Minn. 18; 8taM y. Miiohell, 41
Minn. 827.
The Massachusetts decisioot clearly Qe-
836
clare the validity of this aasignwiMt la
sachusetts.
Frank y. Bohhitt, 156 MaM. 114;
y. KendaU, 137 Mass. 366; JTfly t. Wt
mocker, 111 Mass. 206; Martin y. PaUer, 11
Gray, 37, 71 Am, Dec 689; Bawjfer v. LOTf,
162 Mass. 190.
By the common law in Maasadmsetta sai
the decisions of the Federal courts, the eoa-
dition requiring releases is simply a method
of giving preferences, and does not reader tW
assignment invalid.
2 Story, Eg. Jur. S 1036; King y. Watten,
3 Price, 6; Mather v. Neehit, 13 Fed. B«.
872; Braahear v. West, 7 Pet. 608, 8 L. ed.
801 ; Denny v. Bennett 128 U. S. 489, 32 L
ed. 491; Thomas v. Jenke, 5 Rawle, 2tl;
Halsey v. Fairhanks, 4 Mason, 206; EeMA
V. Smith, 5 Mass. 42 ; Nostrand v. Atwooi, U
Pick. 281; AndretDS v. Ludloto, 5 Pick. 28;
Schuler y. Israel, 27 Fed. Rep. 851 ; Uetr-
more v. Jenckes, 21 How. 144, 16 L. ed. 59;
Black y. Zacharie, 3 How. 509, 11 L. ed. 7tt;
Hoisted V. Straus, 32 Fed. Rep. 279.
Messrs, James E. Martliai, Alhmt I.
Moore, and George W. Markhatn, for defoA-
ants in error:
An assignment which depends for its ient
and validity upon the laws oi another ttslt
will not be recognized or enforced as sgtiiii
attaching creditors or bona fide pordusBi.
Blake v. Williams, 6 Pidc 286, 17 Am
Dec. 372; Taylor v. Columbian Ins. Ce. M
Allen, 353; Oshom v. Adams, 18 Pick. M7;
Ingraham v. Oeyer, 13 Mass. 146, 7 Am. Dk
132; Pierce v. 0*Brien, 129 Mass. 314. r
Am. Rep. 360 ; Frank v. Bobhitt, 155 Mam.
112; Story, Confi. Laws (8th ed.) i411;B«^
rill. Assignments, 4ih ed. | 303; Hick, Bt^
ceivers, 241; Harrison v. Sterry, 5 CnadL
289, 3 L. ed. 104; Ogden v. Saumiert, 11
Wheat 213, 6 L. ed. 606; Oilman t. Lm^
wood, 4 Wall. 409, 18 L. ed. 432; Dmm^
V. Bennett, 128 U. S. 498, 32 L. ed. 495; C^
ton V. Huhhord, 28 Conn. 274, 73 An. te.
670; Paine v. Lester, 44 Conn. 196, 26 Am
Rep. 442; Johnson v. Hunt, 23 Wc»d. C;
A5ra^m v. Plestoro, 3 Wend. 538« 20 Am
Dec 738; WiUitts v. Waits, 25 N. Y. 5«::
Kelly V. Crapo, 45 N. T. 86, 6 Am. Bcp. >$.
Warner v. Jaffray, 96 K. Y. 248, 48 Am
Rep. G16; Barth v. Backus, 140 N. Y. ».
23 L. R. A. 47 ; Catlin v. WOooa BUver fUm
Co, 123 Ind. 477, 8 L. R. A. 62; Jfe<Ti*t»-
Campbell, 71 Wis. 350; Rhawm v. Psmvu
110 111. 359, 51 Am. Rep. 601; T^vemtttd^
Cowe, 151 ni. 62; Milne v. Moreten, • B»
353, 6 Am. Dec 466; Mamkattm Os. v.
Maryland Steel Co, 1 Ohio Dec 2M: Mmf*
V. Church, 70 Iowa, 208, 50 Am. Rep. C$\
Franzen v. Hutchinson, 94 Iowa, 95 : Dett*
V. Currier, 40 N. H. 237 ; Ewnl v. Col— Nw
Ins, Co, 55 Me. 290, 92 Am. Dec 592: W«i«
V. Morrison, 25 Vt 598; Watte- ▼. M^^
66 Tex. 372, 59 Am. Rep, 617; Wetter >
Whitlock, 9 Fla. 86, 76 Am. Dee. aT; I^
Asso, of America v. Levu, 33 La. Aaa UA
The courts of Massachusetts haft iif**
edly held that an assiffnmeat im trtHiiv tte
benefit of creditors, iniether statatafy «r|7
common law, the only oonsideratioafBr vhn
is the acceptance of the trust kf the s»
dffnee. is invalid against an attsdniet «*-
UPB*
S£ouBiTT Trust Go. v. Dodd,
((d7-«S9
«pt M> f ar M ftBsented to by creditors for
wboae benefit it wms made. Such is the de>
dared policy of courts of that state.
Edicarda ▼. Uiichell, 1 Gray, 239; Taylor
▼. Columbian Ina, Co, 14 Allen, 353; wwrd
▼. Lamson, 6 Pick. 358; Russell t. Wood-
wordy 10 Pick. 408; Fall River Iron Works
Co. ▼. Croade, 15 Pick. 11 ; Bradford v. Top-
pan, 11 Pick. 76; Ingraham v. Oeyer, 13
Ma88..14d, 7 Am. Dec. 132; May y. Wanne-
mocker. 111 Mass. 202; Pierce ▼. O'Brien,
129 Mass. 314, 37 Am. Rep. 360; Faulkner
y. Hfftnan, 142 Mass. 53.
As to creditors who have not assented to
the assi^pmient prior to an attachment, the
rights of the attaching creditors are super-
ior.
Bradford v. Tappan, 11 Pick. 76; Pierce
▼. O'Brien, 129 Mads. 315, 37 Am. Rep. 360.
The courts of Massachusetts, in passing
upon the conflicting claims of attaching cred-
itors and assignees claiming under a foreign
assignment, must extend the same rights and
remedies to nonresident attaching creditors
as they would were such creditors residents
of Massachusetts.
Slaughter-House Cases, 16 Wall. 86, 21
L. ed. 394; Oreen v. Van Buskirk, 5 Wall.
307, 18 L. ed. 599, 7 Wall. 139, 19 L. ed. 109;
Barth v. Backus y 140 N. Y. 230, 23 L. R. A.
47; Lemmon v. People, 20 N. Y. 608; Hi-
hernia Nat, Bank v. Liicomhe, 84 N. Y. 367,
38 Am. Rep. 518 ; Martin v. Potter, 34 Vt.
87; Upton v. Huhbard, 28 Conn. 275, 73
Am. Dec. 670; Newland v, Reilly, 85 Mich.
151; Kidder v. Tufts, 48 N. H. 121; Sturte-
rant v. Armshy Co. 66 N. H. 657 ; Ward ▼.
McKcnzie, 33 Tex. 297, 7 Am. Rep. 261 ; Cof-
rode V. Gartner, 79 Mich. 332, 7 L. R. A.
61 1 i Philson ▼. Barnes, 50 Pa, 230 ; Morgan
V. Neville, 74 Pa. 52; Leu)is v. Bush, 30
Minn. 244; Sheldon y. Blauvelt, 29 S. G. 453,
1 L. R. A. 685; Catlin ▼. Wilcox, Silver
Plate Co, 123 Ind. 477, 8 L. R. A. 62; Ward
V. Maryland, 12 Wall. 163, 20 L. ed. 260 r
Paul V. Virginia, 8 Wall. 177, 19 L. ed. 369;
Ex parte Virginia, 100 U. S. 339, 25 L. ed.
C76: Missouri v. Leuns, 101 U. S. 22, 26 L.
ed. 989; Barhier v. Connolly, 113 U. S. 31,
28 L. ed. 924.
'] *Mr. Justice Brown delivered the opinion
of the court:
This case raises the question whether an
assignee of an insolvent Minnesota corpora-
tion can maintain an action in the courts of
Minnesota for the conversion of property
formerly belonging to the insolvent corpora-
tion, which certain New York creditors had
attached in Massachusetts, and sold upon ex-
ecution against such corporation. The ques-
tion was iJso raised upon the argument now
far ttn assignment, executed in Minnesota,
pursuant to the general assignment law of
that state, by « corporation there resident, is
Javailable *to pass personal property situated
in Massachusetts as against parties resident
in New York, who, subsequent to the assign-
ment, had sdced such property upon an ai-
taehment against the insolvent corporation.
The assignment was executed under a stat-
ute of Mumeeota, the material provisions of
which are hereiiiAfter set forth. The inatm-
178 JJ. 8.
ment makes it the duty of the
Say and discharge, in the order aii
ence provided by law, all the debts and llik
bilities now due or to become due from said
party of the first part, toffether with all in-
terest due and to become due thereon, to all
its creditors who shall file releases of their
debts and claims, against said party of the
first part, according to chapter 148 of the
General Laws of the state of Minnesota for
the year 1881, and the several laws amenda-
tory and supplementary thereof, and if the
residue of said proceeds shall not be suffi-
cient to pay said debts and liabilities and in-
terest in full, then to apply the same so far
as thtey will extend to tne payment of said
debts and liabilities and interest, propor-
tionately on their respective amounts, ac-
cording to law and the statute in such case
made and provided; and if, after the pay-
ment of all the costs, charges, and expenses
attending the execution of said trust, and
the payment and discharge in full of all the
said debts of the party of the first part,
there shall be any surplus of the said pro-
ceeds remaining in the hands of the party ot
the second part, then. Third, repay such sur-
plus to the party of the first part, its suc-
cessors and assigns."
The operation of voluntary or common-law
assignments upon property situated in other
states has been the subject of frequent dis-
cussion in the courts, ^nd there is a general
consensus of opinion to the effect that such
assignments will be respected, except so far
as they come in conflict with the rights of lo-
cal creditors, or with the laws or public poli-
cy of the state in which the assignment is
sought to be enforced. The cases in this
court are not numerous, but they are all con-
sonant with the above general principle.
{Black V. Zacharie, 3 How. 48^ [11: 690];
Livermore v. Jenckes, 21 How. 126 [16: 56] ;
Green v. Van Buskirk, 5 Wall. 307 [18:
599] ; Hervey v. Rhode Island Locomotive
Works, 93 U. S. 664 [23 : 1003] ; •Cole v. Cu;i.[6t81
ningham, 133 U. S. 107 [33:638]; Bameti
V. Kinney, 147 U. S. 476 [37 : 248] ) .
But the rule with respect to statutory as-
signments is somewhat different. While the
authorities are not altogether harmonious,
the prevailing American doctrine is that con-
veyance under a state insolvent law operates
only upon property within the territory of
that state, and that with respect to property
in other states it is given only such effect ae
the laws of such state permit; and that, in
general, it must give way to claims of cred*
itors pursuing their remedies there. It pass*
es no title to real estate situated in another
state. Nor, as to personal property, will the
title acquired by it prevail against the rights
of attacning creditors under the laws of the
state where the property is actually situated.
Harrison v. Sterry, 6 Granch, 289^302 [8:
104, 107] ; Ogden ▼. Saunders, 12 Wheat. 218
[6: 606] ; Booth ▼. Clark, 17 How. 322 [15:
164] ; Blake ▼. Williams, 6 Pick. 286 [17
Am. Dec. 872] ; Oshom v. Adams, 18 Pick.
245; Zipcey ▼. Thompson, 1 Gray, 243; Abra-
ham V. Pleatoro, 3 Wend. 538 [20 Am. Rep.
788] , overruling Holmes v. Remsen, 4 Johns.
Ch. 460 [8 Am. Dec. 681] ; Johnson v. Hunt,
837
629-682
Supreme Coubt of the United 8TAT£:i.
Oct.
W«iid. 87; Eoyi v. Thompson, 5 N. Y.
322; WiUitU T. Waiie, 25 N. Y. 577; Kelly
T. Orapo, 45 N. Y. 86 [6 Am. Rep. 35] ;
Barih v. Backus, 140 N. Y. 230 [23 L. R. A.
47] ; Weidw y. Maddox, 66 Tex. 872 [59 Am.
Rep. 617]; Rhawn v. Pearce, 110 111. 350
[61 Am. Rep. 691] ; Catlin v. Wilcox Silver-
Plate Co. 123 Ind. 477 [8 L. R. A. 62]. Aa
was said bv Mr. Justice McLean in Oakey ▼.
Bennett, 11 How. 33, 44 [13: 593, 597] : "A
itaiutable conveyance of property cannot
strictly operate beyond the local jurisdiction.
Any ^ect which may be given to it beyond
this does not depend upon international law,
but the principle of comity; and na,tional
comity does not require any government to
S've dTect to such assignment when it shall
ipair the remedies or lessen the securities
of its own citizens. And this is the prevail-
ing doctrine in this country. A proceeding
in rem against the property of a forei|^
bankrupt, under our local laws, may be main-
tained b^ creditors, notwithstanding the for-
eign assignment." Similar language is used
by Mr. Justice Story in his Codict of Laws,
S414.
The statute of Minnesota, under which
this assijB^ment was made, provides in its
[nOl^irst section that any insolvent debtor *"may
make an assignment of all his unexempt
property for the equal benefit of all his bona
nde creditors, who shall file releases of their
demands against such debtor, as herein pro-
vided." That such assignments shall be ac-
knowledged and filed, aim if made within t^i
days after the assinior's property has been
garnished or levied upon, shall operate to
vacate such garnishment or levy at the op-
tion of the assignee, with certein exceptions.
The second section provides for putting an
insolvent debterinte involuntery bankruptcy
on petition of his creditors, upon his commit*
ting certein acto of insolvency, and for the
appointment by the court of a receiver with
power to take possession of all his property,
not exempt, anddietribute it among his credit-
ors. Under either section only those credit-
ors receive a benefit from the act who file re-
leases to the debtor of all their demands
against him. This stetute was held not to
conflict with the Federal Constitution in
Denny v. Bennett, 128 U. S. 489 [32: 491].
The construction given to this act by the
supreme court of Minnesote has not been al-
together uniform. In Wendell v. Lehon, 80
Minn. 234, the act was held to be constitu-
tional. It was said that ''the act in ito es-
sential features is a bankrupt law;" but it
was intimated that it included all the debt-
or's property wherever situated; "and while
other jurisdictions might, on grounds of ik>1-
icy, give preference to domestic attaching
creditors over foreign assignees or receivers
in bankruptcy, yet, subject to this exception,
they would, on principles of comity, recog-
nise the righte of such assignees or reoeivert
to the possession of the property of the insol-
vent debtor."
In Re Mann, 82 Minn. 60, the act was, in
effect, again pronounced "a bankrupt law,
providing for voluntery bankruptcy by the
debtor's assignment;" and in this respect
838
differing from a previous ^
See also Simon v. Mann, 33 Idm. 411; iH.
In Jenk9 v. Ludden, 34 Minn. 482, it «ai
held that the courte of that atste had. m
right to enjoin the defendant, who wmm a eit>
izen of Minnesote, from enforeiiig ma atla^
ment lien on certain real property im Wii-
con&in owned by the insolvent dditon, ■^ I
though the execution of the assigmnentBiic^* I
under *the Minnesote stetute, h&v* 4iflnlTei[il
such an attechment in that stete ; and that
even if they had the power to do so, tW;
ought not to exercise their dlscretkm im thit
case, where the only effect might be to caaUt
nor resident creditors to step in and appf»>
priate the attached property. The eovrt n-
peated the doctrine of the former ease, tlHi
the act was a bankrupt act ; the ninrgurt W>
ic^ in effect an officer of the court, aad t^
assigned property being im ouMtodia lefu,
and administered by the court or under iti
direction. The court added: ''We mav iIm
take it as settled that the question wbcfthv
property pituated in Wisconsin is subject U
attachment or levy by creditors, notwit^
stending anv assignment made in mmiothm
stete, is to be determined exclusively by tW
laws of Wisconsin." To same effect, at
Daniels v. Palmer, 36 Minn. 847 ; Warmer t
Jaifray, 96 N. T. 248 [48 Abl Bcfi. 616].
Upon the other hand, in Covey v. CmOm.
65 Minn. 18, an insolvent dri>tor w1m> M
made an assignment under this statote
a certein amount of salt in Wisconsim,
the defendante had attached in a Wu
court. The salt was sold upon the jmif
ment, bid in by them, and Uie ssrigf n
Minnesote brought an action to reoorer tht
value of the salt. Defendante ansvcrsi.
claiming that the assignee never took poas^
sion of the salt, and Uiat the Minaeiote ss>
signment was ineffectual to transfer the titit
to property in Wisconsin as against attach
ing creditors there. Plaintiff was beU •-
tiUed to judgment upon the ground test s
voluntery conveyance oi personal proptrtv.
valid by the law of the place, pssrwrf titk
wherever the property may be situatfd, sai
that such transfers, upon principlei of esm-
ity, would be recognized aa effectssl is
other stetes when not opposed to poblie fat-
icy or repugnant to their laws, it b £8-
cidt to reconcile this with the prerioof cum,
or with that of Oreen v. Van Buakirk^ 7
Wall. 139 [19: 109]. The assignneot «w
apparently treated as a voluntery or esm-
mon-law assigmnent. This ruliw ««• tr
rted in Hawkins v. Ireland^ 64 Slin. M.
which an as^iniment under this lUl^
was said not to be involuntery b«t fsto^
tery, and that a court of equity hsi tkt
power to, and would, restrain one ei i^*"*
citizens, of whom it had jnrisdietta, *fri*«
prosecuting an action in a foreign stslt m
jurisdiction, whenever tho tecte of th« cms
made it necessary to do so. to easUt tks
court to do justice and prevent oat of its
citizens from takinc an inwrnitahk ajwi»
tage of another. This accords with />ik<*
V. Foster, 4 Allen, 646, and Omnminthm v
Butler, 142 Mass. 47 [66 Am. Rep. 6571 : <-
C, suh nam. Cole v. Cmnnin§kmm, Ul t. 8
107 [33:638].
1788.«»
1898.
Sbcurity Tkust Ck>. y. Dodd.
oo:;MK>4
Tlie earlier opinions of the supreme court
d Minneaota, to the effect that the statute
in question wks a bankrupt act, were fol-
lowed by the supreme court of Wisconsin in
McClure v. Campbell, 71 Wis. 350, in which
it was held that the assignment could have
no legal operation out of the state in which
the proce^ngs were had, and that the deci-
Bion of the supreme court of Minnesota that
the act of 1881 was a bankrupt act was bind-
ing. The contest was between the assignee
of the insolvent debtor and a creditor who
had attached the property of the insolvent
in Wisconsin. Tne court held that the
plaintiff, the assignee, took no title to such
property, and was not entitled to its pro-
oeeas. In delivering the opinion the court
said: "We think the question is not affect-
ed b^ the fact that the property, when seized,
was in possession of the assignee, or that the
attaching creditor is a resident of the state
in which the insolvency or bankruptcy pro-
ceedings were had. . . . While some of
them" (the cases) "may, imder especial cir-
emnstances, extend the rule of comity to such
a case, and thus five an extraterritorial ef-
fect to somewhat similar assignments, we
are satisfied that the great weight of au-
thorities is the other way. The rule in this
country is, we think, that assignments by
operation of law in bankruptcy or insolven-
cy proceedings, in which deots may be com-
pulsorily discharged without full payment
thereof, can have no local operation out of
the state in which such proceedings were
had."
In Fransen r. Hutchinson [94 Iowa, 96],
62 N. W. 698, tlie supreme court of Iowa had
this statute of Minnesota under considera-
tion, and held that as the creditors received
no benefit under the assignment, unless they
first filed a release of all claims other than
]such as might be paid under the*assignment,
it would not bo enforced in Iowa. It was
Raid that the assignment, which waa that of
an insurance company, was invalid, and that
in an action by the assignee for premiums
collected by the defendants, ^o were
agents of the company, the latter could offset
claims for uneaiiied premiums held by poli-
cy holders at the time of the assignment and
b^ them assigned to defendants after the as-
signment to plaintiffs.
Notwithstanding the two later cases in
Minnesota above cited, we are satisfied that
the supreme court of that state did not in-
tend to overrule the prior decisions to the
effect Uiat the act was substantially a bank-
rupt or insolvent law. It is true that in
these cases a broader effect was given to this
act with respect to property in other states
than is ordinarily given to statutory assiffn-
inents, though voluntary in form. But tne
court was speaking of its power over ite own
citizens, who had sought to obtain an ad-
vantage over the general creditors of the in-
solvent W seizing his proper^ in another
•tate. There wiis no intimation that the
prior cases were intended to be overruled,
nor did the decisions of the later cases re-
quire that they should be.
So far as the courts of other states have
173 V. 8.
passed upon the question, they have general-
ly held that any state law upon the subjeei
of assignments, which limite the distributioa
of the debtor's property to such of his credit-
ors as shall file releases of their demands,
is to all intents and purposes an insolvent
law; that a title to personal property ac-
quired under such laws will not be recog-
nized in another state, when it comes in con-
flict with the rights of creditors pursuing
their remedy there against the property of
the debtor, though the proceedings were in-
stituted subsequent to and with notice of
the assignment in insolvency. The provision
of the stotutein question, requiring a release
from the creditors in order to participate in
the distribution of the estate, operates as a
discharge of the insolvent from his debts to
such creditors — a discharge as complete aa
is possible under a bankrupt law. An aa-
signment containing a provision of this kind
would have been in many, perhaps, in most,
of the states void at common law. Orover
V. Wakeman, 11 Wend. 187 [25 Am. Dec.
624]; Ingraham* v. Wheeler, 6 Conn. 277;[684J
Aihinaon v. Jordan, 5 Ohio, 293; Burrill on
Assignments, 232 to 256. As was said in
Conkling v. Carson, 11 HI. 508: "A debtor
in failing circumstiEinces has an undoubted
right to prefer one creditor to another, and
to provide for a preference b^ assigning his
effects; but he is not permitted to say to
any of his creditors that they shall not par-
ticipate in his present estate, unless they re-
lease all right to satisfy the residue of their
debts out of his future acquisitions." In
Brashear v. West, 7 Pet. 608 [8: 801], an as-
signment containing a provision of this kind
was upheld with apparent reluctance solely
upon the ground that in Pennsylvania, where
the assignment was made, it had been treat-
ed as valid. If the assignment contain this
feature, the fact that it is executed volun-
tarily and not in invitum is not a controlling
circumstance. In some states a foreign as-
signee under a statutory assignment, good by
the law of the state where made, may oe per-
mitted to come into such state and take
possession of the property of the assignor
there found, and to withdraw it from the
jurisdiction of that state in the absence of
any objection thereto by the local creditors
of the assignor; but in such case the as-
signee takes the property subject to the
equity of attaching creditors, and to the rem-
eaies provided by the law of the state wher«
such property is found.
A somewhat similar statute of Wisconsin
was held to be an insolvent law in Barth v.
Backus, 140 N. Y. 230 [23 L. R. A. 47], and
an assignment under such statute treated as
ineffectual to transfer the title of the insol-
vent to propertv in New York, as against an
attaching creditor there, though such credit-
or was a resident of Wisconsin. A like con-
struction was given to the same statute of
Wisconsin in Toumsend v. Coae, 151 111. 62.
It was said of this statute (and the same may
be said of the statute under consideration),
"It is manifest from these provisions that a
creditor of an insolvent debtor in Wisconsin,
who makes a voluntury assignment, valid
839
1
634-4KS7
SXTPBEMB COUBT OP THE UlfllXD STATES.
Oct.
vnder the laws of that state, can only avoid
a final discharee of the debtor from all lia-
bility on his dc£t, by declining to participate
in any way in the assignment proceeding.
He is therefore compelled to consent to a dis-
IM6]cliarge as to so much of his debt *as is not
paid by dividends in the insolvent proceed-
ings or take the hopeless chance of recover-
ing out of the assets of the assigned estate
remaining after all claims iJlowed have been
paid.'' To the same effect are Upton v. Hub-
bard, 28 Conn. 274 [73 Am. Dec 670];
Paine v. Lester, 44 Conn. 196 [26 Am. R^.
442] ; Weider ▼. Maddom, 66 Tex. 372 [59
Am. Rep. 617] ; Catlin ▼. Wilcbw Silver-Plate
Co. 123 Ind. 477 [8 L. R. A. 62] ; Boese v.
King, 78 N. Y. 471.
In Taylor ▼. Columbian Insurance Co. 14
Allen, 353, it is broadly stated that "when,
upon the insolvency of a debtor, the law of
the state in which he resides assimies to take
his property out of his control, and to as-
sign it oy judicial proceeding^, without his
consent, to trustees for distribution among
his creditors, such an assignment will not
be allowed by the courts of another state to
prevail against any remedy which the laws
of the latter afford to its own citizens against
property within its jurisdiction.'' But the
weight of authority is, as already stated,
that it makes no difference whether the es-
tate of the insolvent is vested in the foreign
assi^ee under proceedings instituted against
the insolvent or upon the voluntary applica-
tion of the insolvent himself. The assignee
is still the agent of the law, and derives from
it his authority. Upton v. Hubbard, 28 Conn.
274 [73 Am. Dec. 670].
While it may be true that the assignment
in question is good as between the assignor
and the assignee, and as to assenting credit-
ors, to pass title to property both within and
without the state, and, in the absence of ob-
jections by nonassenting creditors, may au-
thorize the assignee to take possession of
the assignor's property wherever found, it
cannot t^ supportea as to creditors who have
not assented, and who are at liberty to pur-
sue their remedies against such property of
the assignor as they may find in other states.
Bradford v. Tappan, 11 Pick. 76; WillitU ▼.
Waite, 25 N. Y. 677 ; Catlin v. Wilcox Silver-
Plate Co, 123 Ind. 477 [8 L. R. A. 62], and
cases above cited.
We are therefore of opinion that the stat-
ute of Minnesota was in substance and effect
an insolvent law; was operative as to prop-
erty in Massachusetts only so far as the
courta of that state chose to respect it, and
[M6]t)iat 80 far as the plaintiff, *as assignee of
the D. D. Merrill C<Hnpany, took title to such
property, he took it subservient to the de-
fendants' attachment. It results that the
property of the D. D. Merrill Company found
In Massachusetts was liable to attachment
there by these defendants, and that the
courts of Minnesota are bound to respect the
title so acquired by them.
The second question must therefore be an-
swered in the negative, and as this disposes
of the ease no answer to the first question is
necessary.
840
CITIZENS' SAVINGS BANK OF
BORO, Plff. im Brr^
V.
CITY OF OWENSBORO and A. M. a S»>
mons. Tax CoUector.
(Bee 8. C Reporter't ed.
)
t
Federal question, when
ing obligation of contracts — Hewitt act, cf
Kentucky, not an irrevocable
repeal of immunity from
law of Kentucky,
1. This coort will not consider a Federal
tion which was not presented to tke
coort or necessarily ioTolved la Its
2. In determining whether. In a t^rtM am. i
contract exists, protected from \mpaiiwtK
bj the Federal Constitution, this coort fatm
an independent lodgment, and will d«C aiofC
a state decision in conflict with the aeCtM
decisions of this court.
8. The law of Kentucky called the Hevm Kt
fixing the rate of taxation of state beaki uf
their shares, and Its acceptance by a
did not constitote an Irrevocable eontraet i
at the time the act was passed, tberr n
general statote of the state reserrlaf the
to repeal or alter or amend all cbartcn
corporations, and it was expressly meik
part of the Hewitt act.
4. The mere grant for a designated ttee ef a
Immonlty from taxation docs not tak> mA
Immunity ont of the mle sabjectlaf ml
grant to the general law retalnlac the fmr
to amend or repeal, onless the graatlsc «*
contain an express provision to that cfKC.
6. Where there Is no Irrevocable coatraet pi»>
tecting a bank from taxation, the tailaf to*
of Kentocky does not violate the
clause of the Federal Constitntioa.
(No. 609.]
Argued February 27, 28, 1899.
April 3, 1899.
IN ERROR to the Court of Appeals d tk«
State of Kentucky to review a dccrw ^
that court affirming the decree of tke ttiat
triid court sustaining demurrers, dinohni
an injunction, and dismissing a tait 9m-
menced by the Citizens' SaTiitf* Bsik il
Owensboro to enjoin the City ofO^iaitore
and its tax collector from enfordnf estsa
taxes. Affirmed.
See same case below, 10 Ky. L. Bc^ S4l
39 S. W. 1030.
The facts are stated in the opiaioa.
Messrs. W. T. EUia and /. A. Deam fcr
plaintiff in error.
Messrs. Oluipes* Watkaa and 1. B^
Atoklaon for defendants in error.
•Mr. JusUce Wkit« delivered tW
of the court:
The plainUff in error, tlM CStism' Si«^
ings Bank of Owensboro, Kmitatkj. *■*
created, by an act of the general smmUT
of the state of Kentucky, approved Hsr 11
1884, with authority to do a general kaafcisr
ITS W. »
188&
CinzBNs' Savings Bank y. Owensbouo.
037-640
tasiness. The Icj^slatiye eharter provided
that the corporation should exist for a period
of thirty years from the date of the act, and
in section 7 it was provided that on the first
day of January in each year the bank should
pay ''into the state treasury, for the benefit
of revenue proper, fifty cents on each one
hundred dollars of stock held and paid for
in said bank, which shall be in full of all
tax and bonus thereon of every kind."
At the time this charter was cp'anted there
existed on the statute books of Kentucky a
law enacted February 14, 1856, providing as
follows :
**Sec. 1. That all charters and grants of or
to corporations, or amendments tnereof, and
all other statutes, shall be subject to amend-
ment or repeal at the will of the legislature,
unless a contrary intent be therein plainly
e]q>ressed: Provided, That whilst privi-
leges and franchises so granted may be
changed or repealed, no amendment or repeal
shall impair other lights previously vested.
"Sec. 3. That the provisions of this act
shall only apply to charters and acts of in-
eorporatlons to be granted hereafter; and
that this act shall take effect from its pas-
sage."
It would seem that from the date of its
creation until the year 1886 the bank was
called upon to pay only the taxes provided in
the seventh section of its charter. In 1886
(Session Acts of Kentucky 1885-6, pp. 144
to 147 ; Id. 201 ) the legislature of Kentucky
^Ipdopted what is designated in the *briefs of
counsel as the Hewitt act, containing the
following provisions as to the taxation of
banks:
"Sec. 1. That shares of stock in state and
national banks, and other institutions of loan
or discount, and in all corporations required
by law to be taxed on their capital stock,
shall be taxed 75 cents on each share there-
of, equal to $100, or on each $100 of stock
therem owned by individuals, corporations,
or societies, and said banks, institutions, and
corporations shall, in addition, pay upon
each $100 of so much of their surplus, undi-
vided surplus, undivided profits, or undi-
vided accumulations as exceeds an amount
eaual to 10 per cent of their capital stock,
which shall be in full of all tax, state, coim-
ty, and mimicipal.
"Sec 4. That each of said banks, institu-
tions, and corporations, by its corporate au-
thority, with the consent of a majority in
interest of a quorum of its stockholders, at
a regular or called meeting thereof, may give
its consent to the levying of said tax, and
sgree to pay the same as herein provided,
and to waive and release all right under the
act of Congress, or under the charters of the
state banks, to a different mode or smaller
rate of taxation, which consent or agreement
to and with the state of Kentucky shall be
evidenced by writing under the seal of such
hank and ^ivered to the governor of this
commonwealth; and upon such agreement
and consent being delivered, and in consider-
ation thereof, such bank and its shares of
rtock shall be exempt from all other taxation
173 U. 8.
whatsoever so long as said tax shall be pftM
during the corporate existence ol tMk
banks.
"Sec. 5. The said bank may take the pro*
ceeding authorized by section 4 of this ad
at any time until the meetin^of the next
general assembly: Provided, They pay the
tax provided in section 1 from the passage
of this act.
"Sec. 6. This act shall be subject to the
provisions of section eight (8) , chapter sixty-
eight (68), of the General Statutes.
"Sec. 7. If any bank, state or national,
shall fail or refuse to pay the tax imposed by
tliic act, or shall fail or refuse to *make the[680|
consent and agreement as prescribed in section
< 4, the shares of stock of such bank, institu-
tion, or corporation, and its surplus, undi-
vided accumulations and undivided profits,
shall be assessed aa directed by section
2 of this act, and the taxes — state,
county, and municipal — shall be imposed,
levied, and collected upon the assessed snares,
surplus, undivided profits, undivided accu-
mulations, as is imposed on the assessed tax-
able property in the hands of individuals:
Provided, That nothing herein contained
shall be construed as exempting from taxa-
tion for county or municipal purposes any
real estate or building owned ana used by
said banks or corporations for conducting
their business, but the same may be taxed for
county and municipal purposes as other resd
estate is taxed."
The Citizens' Savings Bank accepted the
Hewitt act in the mode provided, and there-
after paid the tax specified therein.
In 1891 Kentucky adopted a new Constitu-
tion, which contained the following:
"Sec. 174. All property, whether owned by
natural persons or corporations, shall hie
taxed in proportion to its value, unless ex-
empted by this Constitution; and all corpo-
rate property shall pay the same rate of tax-
ation paid by individual property. Nothing
in this Constitution shall be construed to
prevent the general assembly from providing
for taxation based on income, licenses, or
franchises."
The state of Kentucky, in 1892, enacted a
law providing, amon^ other things, for the
assessment and taxation by the state, coun-
ties, and municipalities, of banking and
other corporations. This law was in abso-
lute confiict with the Hewitt act, and by
special provision as well as by necessary
legal intendment operated, if the Constitu-
tion had not alreaay done so, to repeal the
system of bank taxation established by the
Hewitt act. Without detailing the scheme
of taxation created by the law of 1892, it
pufilces to say that it organized a state
board whose duty it was to ascertain and fix
the value of what was termed the franchises
of banks and other corporations, referred to
in the law, and upon the amount so fixed the
genera] state tax was levied. It was besides
made *the duty of the board to certify its[64U>}
valuation of the property or franchises to
the proper county or municipality in which
the corporation was located, so that the svan
of this assessment might become the basis
upon which the local taxes should be laid.
841
i
040-642
Supreme Coubt or the Uniteo States.
Oct. Temm,
Tilt city of Owensboro, where the Citizena*
8aTiiig8 Bank was located, established by or-
dinmaces the rate of municipal taxes for the
years 1893 and 1894, and the sum so fixed
was assessed upon the valuation of the fran-
chises or property of the bank which had
been certined oy the state board in claimed
conformity to the statute of 1892. The bank
refused to pay these taxes, and a levy was
made by the tax collector upon some of its
groperty, and garnishment process was also
ksued a^inst several of it^ debtors. There-
upon this suit was commenced by a petition,
on behalf of the bank, to enjoin the city of
Owensboro and its tax collector from enforc-
ing the taxes in question.
The averments of the petition, and of the'
amendments thereto— for it was twice
amended — assailed the validity of the tax on
several grounds, all of which are substan-
tially included in the following sununary:
First. That the board of state valuation
had no power under the Constitution and
laws of tne state to make an assessment for
local taxation, and, if it had such power, had
not exercised it lawfully, because the method
of valuation pursued by it was so arbitrarv
as to cause its action to be void. Second.
That no notice of the assessment had been
S'ven the officials, as required b^ the state
w. Third. That the taxes violated the
equality clause of the state Constitution, be-
cause, by the method adopted in making
the assessment, the property of the bank
had been valued by a rule which
caused it to be assessed at proportion-
ately one third more than the sum assessed
against other property in the city of Owens-
boro, and by one naif more than the valua-
tion at which the property of other taxpay-
ers throughout the state was assessed.
Fourth. That the taxes violated the state law
and Constitution, because based upon an as-
sessment made by the state board, and not on
an assessment made by the city, and that
they were likewise illegal, because the levy
fMl]of the tax predicated *upon the assessment,
bv the state board, was aehara the powers of
the city of Owensboro under the state laws.
Fifth. That the taxes moreover violated the
equality clause of the state Constitution, be-
cause, as there were certain national banks do-
ing business in the city of Owensboro, against
whom the franchise tax provided by the state
law could not be enforced without a viola-
tion of the law of the United States, there-
fore these banks could not be taxed for the
franchise tax, and not to tax them, whilst
taxing the petitioner, would bring about in-
eauality of taxation, and hence be a violation
of the state Constitution. Sixth. The taxes
were expressly and particularly attacked on
the ground that the Hewitt act, and the ac-
ceptance of the terms thereof, constituted an
irrevocable contract, between the state and
the bank, exempting it from all taxation
other than as specified in the Hewitt act, and
therefore that the revenue act of 1892 and
the levy of the taxes in question by the city
of Owensboro violated the contract rights of
the bar^, which were protected from impair-
ment by the Constitution of the United
States.
84S
In further support of this groit^ tke ptf-
tion charged that at the time the 'Hewitt aet
was passed the bank had an irrevocable cam-
tiact arising from section 7 of its barter
limiting taxation to the sum there sptriitd.
which right the bank had surrendered ia
consequence of the contract embodied ia ^
Hewitt act. It was averred that this iv-
render of its contract right to tmwj the 1jb>
ited taxation, conferred by its oiartcr, «m
a valid consideration moving beiwesa tht
bank and the state, operatiBg to cmmm the
Hewitt act to become
quate consideration.
A preliminary injuncticm restraiaiag the
collection of the taxes was allowed. TW
city of Owensboro demurred to the peiitia
and to the various amendments thereof,
reserving its demurrers, answered trai
the averments of the oriirinal
the amendmento thereto. ^
to dissolve the injunction. On
testimony was taken and the
on the motions to dissolve, and on the
rers. The trial court dissolved the imjwat'
tion, sustained the demurrers, and diwuwK
the suit. On appeal to *the eoort of apfcsl*!^
of Kentucky the decree of the trial eo«rt w
affirmed. [19 Ky. L. Rep. 248], t$ S, M
1030.
The opinion of the Kentudcy court «f
peals contained, not only the
ri
b
cable to the case we are now eonsSdcriaf .
also such as were by it considered rd
to several other cases which, it would
were either heard by that court at the
time or were deemed by the ooort to
so many cognate questions as to
embrace the several cases in oae
so far as it related to this cause,
fully examined and disposed of the
of contract and the issues ocuiseq«c
on. An application on behalf of the
was thereafter filed, styled TeCitioa
tension of opinion and reversaL** This s*-
{>lication, whilst declaring that the SMri-
ant could not assent to the rnnrlaiina et tkt
court on the question of the existeaee «f m
irrevocable contract, protected froB mftm-
ment by the Constitution of the Vw6ii
States, asked no rehearing on that rnkmH
The grounds for rehearing, which werv m^
orately pressed, related solely to ccrtsa
questions of law which it was arg^sd the iw*
ord presented, and which it was els if J ^
pended on the state law and Coaoittfia
There was no contention thsit these
volved the Constitution <Hr laws of the
States.
All the assignments ci error h«C As
eighth and ninth relate to errors charivi *
have been committed by the coort htSam a
holding that there was no eontract piuisil>*
from impairment by the Coastitatioa of tk»
United SUtes. The eighth swiga— f »
serts that there was error in allowing s fm-
alty for the nonpayment of the taxas. kr
cause such penalty was by the stale Is* »
posed only upon corporations aad aet m «tk>
er taxpayers, and therefore the etate lav ^
olsted the Fourteenth Ameadnaat Is tft*
Constitution of the United States. TW aatfh
assignment ehargca that there was trrar ■
1898.
CiTizBNs' Sayings Bakk t. Owxnbbuuu.
tt42-<Ho
holding the taxes to be valid because the
property or franchise of the bank, on which
the tax was levied, was assessed at its* full
value, whilst other taxpayers in the state
were assessed at not more than seventy per
cent of the value of their property, thus cre-
atine an ineauality of taxation, equivalent
l]to a denial of *the equal protection of the laws
in violation of the Fourteenth Amendment
to the Constitution of the United States.
We at the outset dispose of the eighth and
ninth assignments just referred to. The
Snestions which they raise are not properly
ere for consideration. They are not pre-
sented by the record nor do they result bv
neeessary intendment therefrom. Indeed,
they were excluded from the cause, as Federal
?uistion8, by the implications resulting from
he pleadings. Whilst it was charged that
the penalties were unlawful, there was no al-
legation that their enforcement would vio-
late any Federal right. On the contrarv, the
petition and the amendments to it clearly
placed the objection to the penalties on the
ground that their enforcement would violate
the state law and the state Constitution.
The distinction between the state right thus
asserted and the Federal right was clearly
made when the only Federal issue which was
relied on, the impairment of the obligation
of the contract, was alleged, for then it was
plainly stated to depend upon a violation of
the Constitution of the United States. Even
after the opinion of the court of appeals was
announced there was not a suggestion made
in the petition for rehearing that a single Fed-
erai question was considered by the parties
as arising except the one which the court had
fully decided, and as to which it wks express-
ly declared a rehearing was not prayed. The
assignments of error in question therefore
simply attempt to inject into the record a
Federal Question not lawfully therein found,
never icalled to the attention of the state
court by pleading or otherwise, and not nec-
essarily arising for consideration in review-
ing the jndjnnent of the state court to which
the writ of error is directed. But after a
decision by the court of last resort of a state
the attempt to raise a Federal question for
the first time is too late. Miller v. Texas,
153 U. S. 536 [38: 812] \Loeher v. Sohroeder,
149 U. 8. 580 [37 : 856]. It is also clear that
where It is disclosed that an asserted Fed-
eral question was not presented to the state
court or called in any way to its attention,
and where it is not necessarily involved in
the decision of the state court, such question
will not be considered by this court. Louis-
viae A y. R. Co, v. LouisvUle, 166 U. S. 709
[41 : 1173] ; Owley Stave Co, v. Butler Coun-
iVy, 166 U. S. 648 [^1: 1149] ; •Ripley v. lUi-
nois, 170 U. S. 182 [42 : 998] ; Green Bay d
Miss. CamU Co. v. Patten Paper Co. 172 U.
S. 58 [ante, 364] ; Capital Bank v. Cadiz Bank,
172 U. 8. 425 [ante, 502]. We therefore de-
cline to review the errors alleged in the
eighth and ninth assignments, and passing
tMir cooeideration are brought to the real
Federal controversy which arises on the
reoord— that is the question of irrevocable
contract.
The claim is that the Hewitt act and its
173 V. 8.
acceptance by the banks constituted an irre?^
ocable contract, although at the tima that
act was passed there was a general statute
of Kentucky re^rving the nght to repeal,
alter, or amend "all charters or grants of
or to corporations or amendments thereof
and all statutes" passed subsequent thereto,
and although this general statute was ex-
pressly made a part of the Hewitt act bv the
sixth section thereof. The wording of the
sixth section accomplishing this result is:
"This act shall be subject to the provisions
oi section 8, chapter 68, of the General Stat-
utes," the provision thus referred to being
the general law of 1856, reserving the power
to repeal, alter, or amend as above. When the
proposition relied upon is plainly stated and
its impoH clearly apprehended, no reasoning
ie required to demonstrate its unsoundness.
In effect, it is that the contract was not sub-
ject to repeal, although the contract itself
m express terms declares that it should be
so subject at the will of the legislative au-
thority. The elementary rule is that if at
the time a corporation is chartered and given
either a commutation or exemption from tax-
ation, there exists a general statute reserv-
ing the legislative power to repeal, alter, or
amend, the exemption or commutation from
taxation may be revoked without impairing
the obligations of the contract, because the
reserved power deprives the contract of its
irrevocable character and submits it to leg-
islative control. The foundation of this rule
is that a general statute reserving the power
to repeal, alter, or amend is by implication
read into a subseouent charter and prevents
it from becoming irrevocable. In a case like
the one now considered where not only was
there a general statute reserving the power,
but where such general law was made oy un-
aiDbiguous*language one of the provisions of [646]
the contract, of course the legislative power
to repeal or amend is more patentiv obvious
to the extent that that which is plainly ex-
pressed is always more evident than that
which is to be deduced by a l^^l implication.
In Tomlinson v. Jessup, 15 Wall. 454 [21:
204], in speaking of a contract exemption
from taxation arising from a charter, and of
the right to repeal the same springing from a
general law, reserving the power to alter or
amend, which existed at the time the charter
was conferred, the court, through Mr. Jus-
tice Field, said (p. 459 [21: 206]) :
'^Immunity from taxation, constituting ih
these cases a part of the contract with the
government, is, by the reservation of power
such as is contained in the law of 1841, sub-
ject to be revoked equally with any other
f provision of the charter whenever the l^s-
ature may deem it expedient for the public
interests that the revocation shall be made.
The reservation affects the entire relation
between the state and the corporation and
places under legislative control all rights,
privileges, and immunities derived by its
charter directly from the state."
In Maine C. Railroad Co. v. Maine, 96 U.
S. 499, 510 [24: 836, 841], the question was
as to the liability to taxation of a consoli-
dated corporation which came into existence
while a general statute was in force, provid-
848
i
045-^48
SUPBEMS Ck>UBT OF THB UNITED STATES.
Oct.
ing that any act of incorporation subse-
quently passed might be amended, altered, or
repealed at the pleasure of the legislature, in
the same manner as if an express provision
to that effect were therein contained, unless
there was in the act of incorporation an ex-
press limitation orprovision to the contrary.
The court said : 'There was no limitation m
the act authorizing the consolidation, which
was the act of incorporation of the new com-
pany, upon the legislative power of amend-
ment and situation, and, of course, there
was none upon the extent or mode of taxa-
tion which might be subsequently adopted.
Bj the reservation in the law of 1831, which
is to be considered as if embodied in that
act, the state retained the power to alter it
in all particulars constituting the grant to
the new company formed under it, of corpo-
rate rights, privileges, and immunities. The
|M6]eyistence of *the corporation and its fran-
chises and immunities, derived directly from
the state, were thus under its control."
In Louisville Water Company v* Clark,
143 U. S. 1, 12 [36: 65, 58], the corporation
claimed that it had acquired under an act
of the legislature of the state of Kentucky
an exemption from taxation which could not
be withdrawn by subsequent legislation with-
out its consent. As the act granting the ex-
emption was passed subsequent to the adop-
tion by the general assembly of Kentucky of
the act of 1856 (the general law which was
in bein^ when the Hewitt act was adopted,
and which was expressly made a part of the
alleged contract), it was held that the ex-
emption from taxation could be repealed
witnout impairing the obligation of the con-
tract. The court, through Mr. Justice Har-
lan, said: ''In short, the immunity from
taxation granted by the act of 1882, was ac-
companied with the condition— expressed in
the act of 1856 and made part of every sub-
sequent statute, when not otherwise express-
ly declared — that, by amendment or repeal
of the former act, such immunity coula be
withdrawn. Any other interpretation of the
act of 1856 would render it inoperative for
the purposes for which, manifestly, it was
enacted.**
Again, in the City of Covington v. Ken-
tucky, 173 U. S. 231 [ante, 679], considering
the same subject in a case which involved the
application of the power reserved by the
state of Kentucky, in the act of 1856, to re-
*peal, alter, or amend all grants or contracts
made subsequent to that act, the court said,
through Mr. Justice Harlan:
"There was in that act (that is, the one
making the grant) no 'plainlv expressed' in-
tent never to amend or repeal it. It is true
that the legislature said tnat the reservoirs,
machinerr, pipes, mains, and appurtenances,
with the land upon which they were situated,
should be forever exempt from state, county,
and city taxes. But such a provision falls
short of the plain expression oy the legisla-
ture that at no time would it exercise the
reserved power of amending or repealing the
act under which the property was acquired.
The utmost that can he said is that it may
be inferred from the terms in which the ex-
emption was declared that the legislature
844
had no purpose *at the time the act ef
was passed to withdraw the exemptka
taxation; not that the power
never be exerted, so far as taxation was vm-
cemed, if in the judgment of the IcgisJatan
the public interest required that to be doae.
The power expressly reserved to aaai or
repeal a statute should not be frittered avij
by any construction of sobseonieiit
based upon mere inferoioa Before a
ute — particularly one relating to taxati
should be held to be irrepealaWe, or set mk-
ject to amendment, an intent not to rc^
or amend must be so directly and mamm-
takably expressed as to leave do roam Ut
doubt; otherwise, the intent is not plaialv
expressed. It is not so expressed wiem t3m
existence of the intent arises only from iaiv-
ence or conjecture.*'
The conclusions stated in these cases in
but the expression of many other adjodgei
causes. Atlantic d 0. Railroad Comtfmf t
Georgia, 98 U. S. 359, 365 [25: 185, 188;.
Iloge V. Richmond d D, Railroad Omp^j,
90 U. S. 348, 353 [25: 303, 304]; gmkmf
Fund Cases, 99 U. S. 700, 720 [25 : 496. 5« - .
Gi-eenwood v. Union Freight R. Comptaf,
105 U. S. 13, 21 [26:961, 965]; Clom *
Glenxoood Cemetery, 107 U. S. 46«» 4^
[27: 408, 412] ; Louisville Gas Compmaf t
Citizens* Gas Company, 115 U. & 6S3, W
[29:510, 515]; Gihhs y. ConsolidmiM Gm
Company, 130 U. S. 396, 408 [32: 97», U^].
Sioux City Street Railway Co. ▼. Sioms Otf,
138 U. S. 98, 108 [34: 808, 902].
Undoubtedly in the Bank Tom Caset, T
Ky. 597, the court of appeals of Kcntecky
decided that the Hewitt law created ta ir
revocable contract, and that the gcnenl m-
sembly of that state could not repeal, sltv,
or amend it without impairing the oUift
tions of the contract, despite the
of the act of 1856, and despite the
•stance that that act was in express
corporated in and made part of the IIf«Mi
law. But the reasoning ov whidi U« tmn
reached this conclusion is Erectly io eniirt
with the settled line of decisions at tk»
court just referred to, and the caM 1ms km
specifically overruled by the opiaiae •»
nounced by the Kentucky court of sff*'*
in the cause now under review. It t» ^"
and cannot be asserted that the Ba»k
Cases ware decided before the
evidenced by the Hewitt law was
hence it cannot be ur^ed that such *<
entered into the consideration of the
in forming the contract. It is not
ed that the bank, whose rights arc htn c*
tested, was either a party or privy ts tW
BaiUc Taw Cases. Ana even if sudi w«t t^
case, we must not be understood as iatiasi*
ing that the construction of the Hewitt set
which was announced in the Bmmk ftrC^^
would be binding in coBtroTereta as te Mktr
taxes between those who w«rt partks v
privies to those oases. Ob this NbM «
expressly abstain from dow jbII— tly **
opinion. In determining whetlMr, ia ■**
given case, a contract esdtts, piulutei trtm
impairment br the ConstltvtSoB of tht CM-
ed States, this court foma aa indyai^
judgment. As we eondodc that the ■««■■
a-t
Tv
180b.
CiTZZENs* Bayingb Bahk y. Owshibobo.
04»-«51
in the Baiik Taw Cases above cited, upon the
question of contract, was not onlv in conflict
with the settled adjudications of this courts
but also inconsistent with sound principle,
we will not adopt its conclusions.
It was earnestly argued that conceding the
general rule to be that a reserved power to
repeal, alter, or amend enters into and forms
a part of all subsequent legislative enact-
ments, nevertheless this case should not be
controlled thereby, first, because of peculiar
conditions which it is asserted existed at the
time the Hewitt law was enacted, and, sec-
ond, beoBiuse of the terms of the act of 1856
by which the power to repeal, alter, or amend
was reserved. The conditions relied upon
and stated in argument as removing this
ease from the operation of the general prin-
ciple are as follows: When the Hewitt law
was enacted there existed much uncertainty
as to the power of the state of Kentucky to
tax banks within its borders. There were
banks claiming to be only subject to limited
taxation because of charters enacted prior to
the act of 1856. Again, there were other
banks asserting a like right because of char-
ters adopted since 1856, but which, it was
said, were not dominated by that act. In
consequence of these pretensions on behalf of
state banks which were then undetermined,
the national banks, organized in tiie state,
were insisting that they were subject only
to the rate of taxation to which the most
favored state bank was liable, because it was
urged that to tax such banks at a higher rate
[640] 'would be a discrimination in favor of these
banks and against the national banks, which
was forbidden by the law of the United
States. To add to this complexity, it is said,
the varying rate of local taxation was oper-
ating inequality among banks, and driving
basking capital from the localities where the
tax was highest, thus producing a public
detriment. To assuage these difficulties and
oonflicts, to secure aa to all banks, state and
national, a uniform and higher rate of state
taxation than that existing as to other prop-
er^, it is asserted that the Hewitt law ten-
dered to all banks a contract giving freedom
from local burdens if a higher state tax was
voluntarily paid. This must have been con-
templated to bo irrevocable, for otherwise
the very object of the law could not have
been accomplished. Conceding, arguendo, to
the fullest aegree the situation to have been
as described, the conclusion sought to be de-
duced from it is wholly unsound, since it
disregards the fact that the contract pro-
posed and which was actually entered into
^ contained an express reservation of the right
to repeal, alter, or amend. Indeed, the con-
tention, when analyzed, amounts to this,
that the plain letter of the contract should
be disregarded upon the theorv that the par-
ties intended to make a different contract
from that which they actually entered into.
The distinction between the potentiality of a
particular state of facts, for the purpose of
preventing the implication of the reserved
power to alter, amend, or repeal, and the
impotency of such facts to overcome the ex-
press and unambiguous provisions of the
contract, at once demonstrates the confusion
178 U. 8.
of thought involved in the oontentioo. It
was upon the distinction odating betwwa
tha impUoation of the power to amend, at*
ter, or repeal, and its ezpreia stataniMit In
a contract, that the case of Nmo Jeney t.
Yard, 95 U. 8. 104 [24: 352], proceeded, and
that case is therefore whoUy inapposite to
the controversy here presented.
The argument predicated on what is said
to be the peculiar langua^ of the act of
1856 is this: That act, whilst reserving the
right to amend or repeal "all charters and
grants of or to corporations, or amendments
thereof, and all other statutes," accompanied
this reserved right with the restriction that
it *should not be exercised where "a contrary [858]
intent be tiierein plainly expressed (in the
act creating ihe right) , provided, that whilst
privileges and franchises so granted may be
changed or repealed, no amendment or re-
peal shall impair other rights previously
vested." The bank, it is asserted, nad under
its charter a right to be taxed only to a
limited amount; and this, it is claimed, con-
stituted a contract which was surrendered
on the theory that the Hewitt law was irrev-
ocable, and if it were not so, then there was
no surrender of the right under the charter,
and therefore it now exists. This conten-
tion, however, but states in another form the
claims which we have already disposed of.
The charter was conferred on the bank sub-
sequent to the act of 1856, and the limit of
taxation stated in the charter was therefore
subordinated to that act and subject to the
exercise of the power of amendment or re-
peal. True it is in Franklin County Court
V. Deposit Bank of Frankfort (June, 1888,
87 Ky. 382) the court of appeals of Ken-
tucky decided that a grant, after the act of
1866, of &n exemption from taxation for a
designated time, sienified such a plain mani-
festation of the will of the legislature that
the grant should not be subject to alteration
or amendment, that the right so conferred
was therefore not submitt^ to the para-
mount power of repeal or amendment re-
served by the act of 1856. This decision,
however, was rendered long after the enact-
ment of the charter of the bank, whose
rights are now before us, and has been ex-
pressly overruled by the court of appeals in
the case which we are reviewing. The doc-
rine settled by the adjudications of this
court is this: That the mere grant for a
designated time of an immunity from taxa-
tion does not take it out of the rule subject-
ing such grant to the general law retaining
the power to amend or repeal, unless the
granting act contain an express provision to
that effect. The doctrine on which the ar^-
ment depends is that any ^rant for a desig-
nated time is by implication taken out of
the general rule, even although there be no
express provision to that end m the act mak-
ing the grant.
The assertion that wherever it is stated in
a legislative grant *or charter that it is to[881]
last for a ^iven period of time, therefore such
provision is a plain manifestation of the in-
tention of the legislature that the grant or
charter shall not oe repealed or amended for
the time for which it waa declared that it
848
65X-<i58
Supreme Court or the United States.
Ooc
should exist, is fallacious, since it overlooks
the consideration that the limit of time fixed
for the duration of the charter or grant, like
tvery other provision therein, is qualified by
the reserved power to alter, amend, or re-
peal. It hence results that where in a char-
ter or grant enacted, whmi there is a general
statute reserving the power to repeal, alter,
or amend, a time is stated, the granting act
must be read just as if it declared that the
charter or grant should exist for a desig-
nated time, unless sooner repealed, altered,-
or amended. Indeed, reduced to its final analy-
sis, the argument that because in a ^ant
or charter a time is designated for its dura-
tion, it cannot, therefore, until the expira-
tion of such time, be repealed, altered, or
amended, is equivalent to BSLjing, that the re-
served power cannot be exercisea in any case
of contract. For, if every case of charter or
grant where a time is fi^ed, either expressly
or by necessary construction in the charter*
or grant, is taken out of the reach of the
reserved power, it would follow that only
those charters or grants which were deter-
minable at will would come under the con-
trol of the power reserved. But to say this
simplv amounts to declaring that the re-
served power applies and can be enforced
oiUy in those cases where it would be entire-
ly unnecessary or useless to do so.
The source of the reservation, by many of
the states in general laws, of the power to
amend, alter, or repeal, was fully reviewed
in Oreenwood v. Unum Freight R. Company,
106 U. S. 13 [26: 961], where it was shown
that such legislation had its oriffin in the
purpose to provide for a case exacUy like the
one before us. Referring to the decision in
Dartmouth College v. Woodward, 4 Wheat.
518 [4: 629], the court through Mr. Justice
Miller, said (p. 20 [26: 966] ) : "It was, no
doubt, with a view to suggest a method by
which the state legislatures could retain in
a large measure this important power'' (the
power to repeal or amend), "witnout violat-
ing the Federal Constitution, that Mr. Jus-
tice Story, in his concurring opinion in the
lW2]Dartmouth College *Case, su|^gested that
when the legislature was enacting a charter
for a corporation, a provision in the statute
reserving to the legislature the right to
amend or repeal it must be held to be a part
of the contract itself, and the subsequent ex-
ercise of the right would be in accordance
with the contract, and could not, therefore,
impair its obligation. And he cites with ap-
proval the observations we have already
quoted from the case of Wcdea ▼. Stetson, 2
Mass. 143 [3 Am. Dec 39]. It would seem
that the states were not slow to avail them-
selves of this sup^estion. . . ." As, then,
the limitation in the charter of the bank
was subject to repeal by the legislature, it
cannot be claimed that such exemption was
vested in the bank, and was therefore sub-
ject to be reinstated if the Hewitt act was
not an irrevocable contract, even if the cor-
rectness of the claim that this result would
legally arise, if the charter had been an ir-
revocable contract, be arguendo conceded.
It is urged that as the act of 1866 provides
that other rights previously vested could not
846
be taken away by the repealing act,
the exemption from taxatlflB eoidd aot
withdrawn ; but this is a mere fona ei
stating the arguments already
is tantamount to the naiweitiiii of
proposition that the limited
lished by the HewiU act, or tte om
ferred by the charter, eoiild mat be 1
away at alL Beferrimr to tiua nbjMt,
court in Greetitrood v. Union Freigkt B.
pany {ubi supra), said (p. 17 [26: Mi]):
"Such an act may be amended; that in^ 1
may be changed by additions to its teras m
by qualifications at the same. It may he ■!•
tered by the same power, and it may he rt>
pealed. What is it that may be repeaW*
It is the act of incorporation. It it tkii
organic law on which the corporate caibmm
of the company depends whidi may he it*
pealed, so that it shall cease to be a bv;
or the legislature may adopt the mflte
course of amending the law in matttfs whidI
need amendment, or altering it whea it wm^
substantial change. All this naay he 4am st
the pleasure of the legislature. That \sif
need sive no reason for its action in the Sal-
ter, xhe validity of such action 4am mt
depend on the necessity for it or ca tkt
soundness of the reasons which proeiftai it'
In ^considering what constitnted
rights, the court clearly pointed oot tte
rights of this character did not enhraoe aen
privileges or franchises ctmferred by tk
granti^ act, and such rights obviovtreui
within the power to repMd and smtarf. ui
were not within the category of tham
out of the reach of such power.
In the Greenwood Case the reserrtd
was, by the general atatute, aothorisA ti
be exercised "at the pleasure of the ket*
lature." But this <}uaiificatioa was teiW
in Uamilton Gas Light d Coke
HamUton City, 146 U. S. 271 [36:
be no more comprehensive than the
which would be implied from a ginsr
simply reserving the right to repeal,
or amend.
Nor is there force in the daim that
the adoption of the charter in qusirina tte
courts of the state of Kentiwky had HttM
the law to be that vested rights weaM m-
elude a mere privilege conferred by thcfros-
inff act, and which was therefore aetemrif
eubjected to the power to repeal or ammi i
such power is to have any applies tiea sft A
This claim is based on what U uamei »
have been decided in Kentucky in Cm«>^
sioners of the Sinking Fund t. Orem 4 A^
ren River Navigation Commamy, 7f Kf. ^
76, 83. The case has not the import sts^
uted to it. The scope of the q— tiw. *
that case adjudged, waa ooasideied •m4 i^
mented on by this court in Lomswilti ^ef
Company v. Clark, euprm, whan H ««• ■■'
(p. 16 [36:69]):
"But there is nothii^ ia that
sistent with the views wa have
It was there decided that the
could not consistently with the
or with the above statute of 18S6, tskt
the Qreen ft Barren River KavifatMa
pany, without making compc
for. the right it aooiured maL-
int.*
1898.
CiTUBHs' Bayingb Bank y. Owbnbbobow
(K^65ft
with the state, concluded in 1868, to tako,
for a term of years, tolls from vessels navi-
gating Green and Barren rivers, in consid-
eration of its agreement, which had been
folly performed, to maintain and keep in r»>
pair, at its own expense, such line of navi-
Stion. The case before us presents no such
itures. As already indicated, in losing an
exemption from taxation the water company
]*ieguned ite rights to make such charges for
water, furnished for fire nrotection, as it
could rightfully have done before the act of
1882 was passed, and whilst its property
was subject to taxation."
Finally, it is said that aa at the time the
Hewitt act was passed the rate of state tax-
ation was lower than the sum of taxation
fixed l^ that act on the banks, giving their
assent to i^ therefore this increaad sum
over and above the amount of state taxes
paid by other taxpayers, to the state, con-
stituted a consideration received bv the state,
and created a vested right of such a nature
that the state could not repeal the Hewitt
act without providing for tne refunding of
the sum paid the state in excess of the state
taxes paid by other taxpayers. But this die-
regaros the patent fact that whilst the
amount of the state taxes, paid by the bank
under the Hewitt act, was larger than the
taxes paid by other taxpayers to the state,
the bank was by the Hewitt act relieved from
all obligation to pay county and municipal
taxes. Ae the bank had at the time of the
Hewitt act no contract limiting the taxing
power of the state which could not have been
repealed, it therefore could have been sub-
jected by the state to the same rate of county
and municipal taxes sesting upon other tax-
payers. It is not asserted that if this legis-
lative power had been exerted and the bank
been compelled to pay the same amount of
taxation, for all governmental purposes, that
other property owners were obliged to pay
that it would not have contributea more than
it was called upon to do under the Hewitt
act. The daim therefore amounts to this:
That beoause the Hewitt act relieved the
bank from a part of the burden of taxation
which rested upon the other taxpayers of
the state, and this relief from burden was
{)urely the result of the voluntary act of the
awmaker, that the power to remove the priv-
ilege cannot be exerted without refunding
to Uie bank a portion of the lesser burden
which it has paid. Thus to analyze the
proposition is to answer it.
Out conclusion being that there was no
irrevocable contract protecting the bank
]from tsxatioQ, and therefore that the tax-
ing law of Kentucky did not violate the con-
tract clause of *the Constitution of the Unit-
ed States, it follows that the decree below
must he and U %$ affirmed.
Mr. Justice Browm dissenting:
The cogency with which the opinion of the
court is expressed is calculated to awaken a
distrust as to the soundness of any conflict-
ing views; but the very fact that the court to
which this writ of error was issued, only two
years before the decree was pronounced which
this court has affirmed, came to a precisely
178 U. 8.
opposite conclusion upon the same state of
facts, indicates at least that the question ib
not free from a reasonable doubt. Indeed
the judiciary of Kentucky appears to be
about eoually divided upon the subject.
The aominant question in the case ia
whether the written acceptance by the bank
of the proposition contained in the act of
1886, known as the Hewitt act, constituted a
contract which neither the legislature nor the
bank could repudiate at pleasure. As stated
in the opinion of the court, the bank vras
chartered in 1884, with a provision that its
life should continue for thirty years, and that
a payment of fifty cents on each one hundred
dollars of stock should '1>e in full of all tax
and bonus thereon of every kind." This
charter fell under the provisions of the prior
act of 1856, declaring that all such charters
should be subject to amendment or repeal at
the will of the legislature. There seems, how-
ever, to have been some dispute as to whether, 1
under the power to amend, it was within the
competency of the legislature to increase this
tax during the life of the charter, without a
violation of the Fourteenth Amendment to
the Federal Constitution. To settle this
question beyond peradventure, the legisla-
ture, in 1886, inaugurated a new policy, and
in the Hewitt act made a distinct proposition
that, if the banks and corporations interested
with the consent of the majority in interest
of their stodcholders, at a regular meeting
thereof, should give tneir consent to tiie levy-
ing of a tax of seventy-five cents on each
share equal to one hundred dollars, and agree
to pay the same as therein provided, and
would agree to waive and release all *right[W6]
under the act of Congress, or under their
charters, to a different mode or smaller rate
of taxation, and should evidence such consent
by writing under the seal of the bank deliv-
ered to the governor of the commonwealth,
"such bank and its shares of stock should be
exempt from all other taxation whatever,
so long as said tax shall be paid during the
corporate existence of such bank." There was
a further provision that, in case of refusal to
enter into this compact, the bank should be
assessed as directea by a previous section,
and such state, county, and municipal taxes
imposed as were imposed on the assessed tax*
able property in the hands of individuals.
It is true that this act was made expressly
subject to the prior act of 1856, declaring
that all charters and grants to corporations
should be subject to amendment or repeal at
the will of the legislature; but this very act
limited the power to repeal and amend to
cases where a "contrary intent" was not
"therein plainly expressed." In other words,
that while such charters or grants were gen-
erally subject to amendment or repeal, if
language were used by the legislature indi-
cating clearly an intention that the privileges
and franchises therein granted shoiUd not be
subject to amendment or repeal, it was per-
fectly competent to do so, and the stipulation
was binding. There was a further provision
that no amendment or repeal should "impair
other rights previously vested." How, then,
could such intent to limit its own powers be
manifested by the legislature? It will prob-
84T
{
«56-e5»
SUPBEMS COUBI OF THE UKITKO StATSS.
Oct. Tut,
s
ably be conceded that, if the grant or charter
contained a clause to the effect that any par-
ticular privilege therein granted should not
be subject to amendment or repeal, it would
be sufficient; but it seems to me equally clear
that if it contained other language plainly
evincing an intent that a particiuar clause
should be irrepealable for a certain length of
time; or, if it contained a proposition from
which the legislature could not withdraw
without a breach of faith toward those who
had accepted its terms, it could not be in-
tended that such contract, if accepted, should
be silbject to repudiation. Gonceaing to its
fullest extent the doctrine of the Dartmouth
inilCollege Case, that the charter of *a corporation
is a contract, it follows that so far as it is a
diarter it is, under the act of 1856, subject to
amendment or repeal ; but so far as the legis-
lature dep&rts from the main object of the
charter of granting privileges and franchises,
and invites its corporations to enter into
written contracts with it, requires such con-
tracts to be executed in an unusual form, and
to receive the consent, not only of the direct-
ors, but of a majority of its stockholders,
and, further that they be made under seal
and delivered to the governor of the common-
wealth, that then it evinces an intent as
clearly as language can express it that such
contract shall be binding, and that, in respect
thereto, it yields up its right to amendment
or rep^l. Ifew Jersey v. Yard, 96 U. S. 104
[24: 352 J. To hold that a contract thus
solemnly entered into may be repudiated at
the next session of the legislature is practic-
ally to say that the legislature may set a trap
lor its corporations, and that after it has en-
ticed them into it by the offer of more favor-
able terms than they otherwise could obtain,
may repudiate its own obligations, without
restoring to the corporations what it had
previously induced them to give up.
The difficulty with the position of the court
is, that it renders it impossible for the com-
monwealth to enter into a contract with one
of its own corporations, which it may not re-
pudiate at the next session of its legislature.
If capital may be enticed into the state under
its solemn promise that certain privileges
shall be granted, or that it shall be subject
to a certain specified rate of taxation, which
nay be withdrawn at any moment, it can
scarcely complain if foreign capital refuses
to be tempted by such illusory offers. I see
no reason why, under the decision of the
court, if the legislature should enter into a
compact with one of its own corporations to
perform a great public work, it may not, af-
ter capital has been largely invested therein,
and the work entered upon, under the guise
of amending the grant, abrogate its contract
and leave the corporation practically defense-
less. Indeed it seems to me that it is not
creditable to the legislature to impute to it
an intent to subject corporations, which had
accepted the benefits of the Hewitt act, to
the rate of taxation prescribed by the act of
f W8]l 892,*provid ing for a wholly different mode of
assessment and taxation, and that it is more
reasonable to assume that the. taxing officers
of the city of Owensboro exceeded their au-
848
thority in attempting to exact the taxa it
question.
The cases cited in the opinion of the eovt
are not in conflict with the positioa here as-
sumed. In Tomlinaon v. Jessup, IS WiB.
464 [21:204], it was decided that ma set fl<
the leg[islature of South Carolina, passei is
1861, incorporating the Kortheastcn Ba2-
road CkMnpany, and a subsequent aet psaei
in 1866, providing that its stock Atmi W
exempt from taxation during the contiaiiasfli
of the charter, were subservient to a ^cMnl
act passed in 1841, res^ring the rif^ tt
amend, alter, or repHeal every such Autiv,
unless the act granting sodi diarter AosU
in express terms except it. As the ssmbM
charter in question contwied no dame ex-
cepting it from the provisions d the genenl
act of 1841, it was held that its propotr
might be taxed by subsequent kgislstioa
The case differs from the one under eoMid-
eration in the fact that the amended Autut
contained no exception taking it oat of tte
act of 1841, and that there was no cxproi
contract in that charter that no tax sImsU
be subsequently imposed. There was waA-
ing to indicate that this charter was sot ii-
tciided to fall within the restrictioM d tk
act oi 1841.
In Maine O. Railroad Oompamff v. JfsMi,
96 U. S. 499 [24: 836], there was a nubr
general law, passed in 1831, dedariif uf
act of incorporation liable to be sbmh.
altered, or repealed at the jpleasore id tkt
legislature, unless there was ^an expres &■-
itation or provision to the oontrajy." It «•
held that an act of the legislature pesni is
1856, authorizing corporations to eamtb-
date and form a new corporation, wis as set
of incorporation of a new compaay. sii.
there being in this act no limitation upas tte
power of amendment, alteration, and rcf^i-
the state retained the power to sltv it ia iB
particulars, constituting the grant of eor**-
rate rights, privileges, luid immumties tsttt
new company, and that a limitatioa npfls tkt
taxing power of the state prcscribtd b tte
cbai-ters of the old companies ceased vsat
their consolidation, though it was said tast
"rights and interests acquired by th» a»
pany, not constituting a part of^the oostnct^i
of incorporation, stand upon a diffcnat Imi-
insr." In its application to this es* it ii
subject to the same criticism as that «f N»>
linson v. Jessup.
The case of the LouUviUe W«l«r Ctmpm^
V. Clark, 143 U. S. 1 [36: 65], aro» m^
the same act of Kentudcy of 1S56. la tist
case, an immunity from taxatioo.
upon the water companv by an act
1882, was withdrawn by a sabM
passed in 1886, and it was held thai » tftt
act of 1882 contained no dans* that V*"^
expressed" an intention not to enrtW tis
power reserved by the statnte of Itt*^
amend or repeal, at the wiU of tht
ture, all charters or grants to
the act was subject to that gsmrsi
for the very reason that there was i
trarv intent" "plainlv expretacd.** TW
ion harmonizes completely with th«
here assumed, and contains a dear
that where a subsequent act plaiahr
1898.
CiTizsMS* Savings Bank y. Owbmsbobo.
669-663
an intention on the part of the legislature
that the general statute of 1856 should not
i^ply, such intention will be respected and
wm control the operation of the general stat-
ute. If the Hewitt act does not evince such
intention, oi course the whole argument falls
to the ground; but it seems to me that its
language in this particular is too dear to bo
disregarded.
The recent case of Covington v. Kentuckyf
173 U. S. 231 [ante, 679] is of the same tenor.
An act passed in 1886, authorizing the city
of Covington to build a system of water-
works, contained a provision that they
should ''remain forever exempt from state,
county, and city tax." This was held to be
subject to the act of 1856, providing for the
aifiendment or repeal at the will of the legis-
lature, unless a contrary intent be therein
plainly expressed. It was very properlv held
that there was nothing in the act of 1886
plainly expressing an intent that the provi-
sion exempting the property from taxation
was not subj^ to repeal; but the whole
theory of this dissent is embodied in the
proposition that there was in the Hewitt act
a plainly expressed intent that it should not
be amended or regaled to theprejudice of
banks accepting its terms. There was a
plain intimation in that opinion that if the
act of 18S6 had contained evidence of such
intent it would have been held to repeal the
|*&ct of 1856 to that extent. "Before a stat-
ute," said the court, — "particularly one re-
latins to taxation, — should be held to be ir-
repealable, or not subject to amendment, an
intent not to repeal or amend must be so di-
rectly and unmistakably expressed as to
leave no room for doubt; otherwise the in-
tent is not plainlv expressed. It is not so
e3cpre88ed when the existence of the intent
arises only from inference or conjecture."
Such intent was found by this court in
N^ Jersey v. Yard, 95 U. B. 104 [24: 352],
in the fact that there was in the supplement-
al charter of the corporation, precisely as
in the Hewitt act (1) a subject of dispute
ana fair adjustn^cnt oif it for a valuable con-
sideration on both sides; (2) the contract
as<;umed, by legislative requirement, the
shape of a formal written contract; (3) the
terms of the contract, that "this tax shall be
in lieu and satisfaction of all other taxation
or imposition whatsoever by or under the
authority of this state or any law thereof,''
excluded, in view of the whole transaction,
the right of the state to revoke it at pleasure.
There was the same provision as in the Hew-
itt act, that the section providing for a com-
mutation of taxes should not go into effect,
or be binding upon the company, until it had
signified its as<)ent under its corporate seal
and filed it in the ofiice of the secretary of
state. The language of Mr. Justice Miller is
so pertinent t^t I cannot forbear quoting
the following paragraph: "Can it be be-
lieved that it was intended by either party to
this contract that, after it was signed by
both parties, one was bound forever, and the
other only for a day? That it was intended
to be a part of the contract that the state of
New Jersey was, at her option, to be bound
or not? That there was implied in it, when
173 U. S. U. S., Book 43. f
it was offered to the acceptance of the com-
pany, the tight on the p^ of the legislature
to alter or amend it aX pleasure? If the
state intended to reserve this right, what ne-
cessity for asking the company to accept in
such formal manner the t^ms of a contract
which the state could at any time make to
suit itself?" I find it difficult to see how
that case and the one under consideration
can stand together.
So far as the court of appeals of Kentucky
had spoken *upon this question, prior to the [661]
decision which is here affirmed, it was uni-
formly in favor of the position taken in this
diftsent. In Franklin County Court ▼. De-
posit Bank of Frankfort, 87 Ky. 870, it was
held that an act which continued the life of
a charter to a period beyond the time fixed
for its expiration, and reserved the corporate
organization, privileges, powers, duties, and
rights, was an extension of an old charter,
and not the jrrant of a new one; that an act
passed in 1858, "plainly expressed" an in-
tention that the act of 1856 should not ap-
ply to it, and that such intent was evinced by
the provision that the appellee bank should
establish a branch at Columbus; "that the
amount of its circulation should not be
greater than the amount of its capital stock
actually paid in ; that it should, in addition
fo the fifty cents per share of its capital
stock, pay annually fifty cents upon each
one hundred dollars of its contingent fund;
that it should be subiect to all the limita-
tions, conditiouF, and auties imposed upon it
by the act of incorporation; that it should
formally accept the terms of extension."
I desire only to add that in Common-'
totalth V. Farmers* Bank of Kentucky, 97
Ky. 590, it was held, by the same majority
of the court which subsequently overruled it,
that there existed in the Hewitt act "every
element of a contract between the state and
the banks and, with such a consideration as
will uphold it, no reasonable doubt can be
entertained that such was the purpose of the
parties to it." "We are satisfied," said the
court, "after a careful consideration of this
question, that the parties making the con-
tract never contemplated or intended that
the act of 1856 should apply to this contract
after its t«cceptance by the banks, and that
such an acceptance was necessary to make
the contract complete between the parties."
The argument is a powerful demonstration
of the existence of an irrevocable contract;
but the court of appeals subsequentlv over-
ruled this decision, and this court has af-
firmed its action and in addition thereto has
pronounced an cpinion seemingly so incon-
sistent with New Jersey v. Yard as to prac-
tically amount to an overruling of that case.
These cases, hon-ever, are but a reaffirmance
of a 'principle which the same court had pre- [662]
viously laid down in Commissioners of Sink-
ing Fund V. Oreen d Barren River Naviga-
ticn Co. 79 Ky. 73, and Commonwealth v.
Owef^sboro d N. R. Co, 95 Ky. 60, that a dis-
tinct contract contained in a charter was not
subject to the act of 1856. Indeed, I do not
understand upon what other theory a posi-
tive acceptance of the taxation imposed by
ihe Hewitt act was required of these banks.
4 849
6(HM64
SuFBEics Court or the Unitsd Sta'
Oct. Tm,
DEPOSIT BAN^ OP OWKNSBORO, Plff.
im Err.,
V,
aXY OF OWENSBORO and A. M. C. Sim-
mons.
(Bee 8. C Reporter's ed. 862.)
CitiMent* 8avimfi§ Bank of Owenshoro ▼. Oitw
Of Otcentltoro amd A, If. (7. Simmons, No. 669»
omte, 840, followed.
[No. 149.]
Argued Fehruary 27, 28, 1899. Decided
April S, 1899.
IN ERROR to the Ck)urt of Appeals of the
State of Kentucky.
This case was argued with Citizens'- Bath
inge Bank ▼. OtoeiMboro, No. 669, ante, p.
840.
Meesre. W. T. Ellis and /. A. Dean f<Mr
plaintiff in error.
Messrs. duipese Watl&en and J. D.
Ateliison for defendants in error.
{•62] *Mr. Justice Wkite delivered the <^inion
of the court:
The relief sought hy the plaintiff in error
was the nullity of certain taxes levied by
the city of Owensboro for the years 1893 and
1894. The grounds upon which this relief
was prayed are in all material respects like
unto those relied on in the two cases against
tiie city of 0\tensboro, just decided. The
charter and an amendment extending the
same were both enacted after the aZt of
^ 1856.
Indeed, this case, along with the other two,
was disposed of by the Kentucky court of
appeals in the same opinion, because of the
identity of the questions presented.
For the reasons given in the opinion in
Citizen^ Savings Bank of Owenshoro v. CHy
of Oioenshoro and A. M, C. Simmons, No.
669 [ante, 840] this term, the decree is af-
firmed.
DEPOSIT BANK OF OWENSBORO, Plff.
in Err.,
V.
DAVIESS COUNTY et oL
(Bee 8. C. Reporter's ed. 662.)
[No. 160.]
Argued February f7, 28, 1899.
AprU, S, 1899.
Decided
IN ERROR to the Court of Appeals of the
State of Kentucky.
This case was argued with Citizens^ Sav-
ings Bank v. Otoenshoro, No. 669, ante, p.
840, and by the same oounseL
[•68] *Mr. Justice Wkite delivered the opinion
of the court:
By a written stipulation it is agreed that
this cause abide the result of No 149, Deposit
Bank of Owenshoro v. City of Otoenshoro and
A. M, 0. Simmons. The decree in that case
850
havine been affirmed, the ssmt renh ii
thereK>re necessary in this, and aceoiJig|lj
the decree of the Court of Appeals of
tucky in this case is also affirmed.
FARMERS' ft TRADERS' BASK Of
OWENSBORO, Pig. im Err.,
V.
CITY OF OWENSBORO and A. IL C S»
mons. Tax CoUector.
(See 8. C Beporter's ed. MI. Mi.)
CitisenS' Savinifs Bank of OwemkmM t. Cttt
of Otcenshoro and A. M. O. Simmsms, Sa Ifll
ante, 840. followed.
[No. 151.]
Argued Fehruary 27, 28, J8M. Dseiid
AprU $, 1899.
I
N ERROR to the Court of A|7ea)i fd te
SUte of Kentucky.
This case was argued with No. iM. «<*.
p. 840.
Messrs. W. T. EDia and J. A. Dsm U
plaintiff in error.
Messrs. Ohapese Watkaa aad X &
AtoUsom for defendants in error.
•Mr. JusUoe Wkito deUvwai tke
of the court:
The plaintiff in error was ^artvsi hr
the legislature oi Kentucky in 1871 1W
charter limited the taxing nowv la tt^
cents on ea<^ one hundred dollars ol cspiw
stodc, during the life of the eorpacitM.
which was £ced at twonty-flva years. Tta
suit was commenced by petitkia aafftni
the nullity of certain taxes levied bj tht dcf
of Owensboro for the years 188S sai 19^
The petition waf> twice amwided Tkemm
of action allegod was, in every aatcnal irj
siiect,*the same as that relied oa ia thtsfp
<k Oitizensi' Savings Bank of OmtmUm i
City of Owenshoro and A. M. C. ^mmm*
Taw Collector, No. 669 of the dockataf tka
term, [ante, 840] which we hava jaat 4i^
ed. For this reason the opinion in tkal ••
dispoaes of aU the issuee arisii« in tUi «<
for the reasons therein ffiven the 4tmm ■
the Court of Appeals of Keataeky ii tka
case rendered is affi/rw^ed.
OWENSBORO National baki, fV-
in Brr.^
CITY OF OWENSBORO aad A IL C
HlinHMHIf
(See 8. C BspaitarB
)
Tarnation of nolioaol
and reol etiale — taming
taw on corporaHon or
franchise, void.
1. A sUte Is wttbovt
banks, except nadar
*Jon of CoBgraea.
its prspmH •*
1898.
OwENBBORO National Bakk y. OwENSBOsa
e64>6M
t. Under U. S. ReT. Stat | 5219, the power of
a state to tax national banks is confined to
a taxation of tbe shares of stock In the names
of the shareholders, and to an assessment of
the real estate of the bank.
t. The taxing law of Kentnckj taxing the
franchises or Intangible property of national
banks Is bejond the anthorltj conferred bj
the act of Congress, and Told.
4. A tax on a corporation or its property is
not the legal eqnlTalent of a tax on the stock,
in the names of the stockholders.
•. Taxes imposed on a national bank and its
property and franchises, and not upon the
shares of stock in the names of the stockhold-
ers, are Told.
[No. 148.]
Argued February 27, 28, 1899. Decided
April S, 1899.
rr ERROR to* the Ck>urt of Appeals of the
State of Kentudcy to review a judgment
of that court affirming a judgment of the
Circuit Ck>urt of that State dissolving an in-
junction and Bustainine demurrers and dis-
missing a suit brought by the Owensboro
National Bank against the city of Owensboro
et dL, to perpetu&y restrain said city audits
tax collector from enforcing the collection of
alleged franchise taxes upon the said l>ank.
Refused and cause remanded for further pro-
eeedings.
Statement by Mr. Justice Whites
This suit was originally instituted in a
eourt of the state of Kentucky by the plain-
ts in error, the Owensboro National bank.
The relief prayed was that the city of Owens-
boro and its tax collector Simmons be per-
petually restrained from enforcing the col-
lection of alleged ''franchise" taxes for the
years 1893 and 1894, claimed hv the defend-
ants to have been assessed under authority
of a revenue act of the state of Kentucky en-
acted November 11, 1892, as amended. The
taxes in question were laid upon the amount
fixed by toe state board of valuation and as-
sesament provided for in the act, which valu-
ation equalled the combined sum of the par
of the capital stock of the bank, its surplus
i6]and undivided 'profits. It is admitted on the
record Uiat the avails of the bank to the
amount of the valuation were invested in
nontaxable bonds of the United States. Va-
rious reasons why the taxes should be declared
illegal were urged in the petition and the
amoklments thereto. Without goins into de-
tail, all the ffrounds are substantially in-
duded in the following summary:
1. That the levy of the taxes in question
Impaired the obligation of an alleged irrev-
oeM>le ooDtract entered into in 1886 between
the bank and the state, and embodied in a
legislative enactment referred to as the
Hewitt act, whicb contract was protected
from impairment by the Constitution of the
United l^tiites;
2. That the taxes complained of were un-
lawful, because they were not laid on the
shares of stock in the names of the sharehold-
ers, but were actually imposed on the prop-
erty of the bank, contrary to the act of Con-
Tress;
73 U. 8.
3. That if the taxes were not on the prop-
erty of the bank, then they were imposed on
its franchise or right to do business, derived
from the laws of the United States, which the
state was, under the law of the United
States, without power to tax either directly
or indirectly;
4. That even if the taxes were otherwise
valid, they were unlawfiil, because discrim-
inatory, inasmuch as certain state banks
which were incorporated prior to the year
1866 were entitled to a low rate of taxation
resulting from charter contracts, and it was
illegal to tax national banks at a higher rate
than that assessed against the most favored
state bank;
5. That the law under which the taxes
were levied and the modes of procedure
adopted in carrying the law into effect oper-
atea to produce inequality in taxing the
property of the bank, to its disadvantage, as
compared with other property within the
state, contrary to the state Constitution ;
6. That the rate of taxation imposed b^ the
city of Owensboro for the year 1893 was in ex-
cess of that authorized by the state Consti-
tution or laws ;
7. That if the taxes complained of were
considered laid, *not upon the capital or f ran-[666]
chise of the bank, but upon the shares of
stock in the names of the shareholders, then
they were discriminatory as against share-
holders who were the heads of families, as
such shai-eholders were not permitted to de-
duct from the assessment against their shares
an exemption authorized by a statute of the
state in favor of the class of individuals re-
ferred to;
8. That if the bank could be legally taxed
upon its property of any kind it was a foreign
corporation as to the state of Kentucky and
could only be taxed to the extent that its
property was invested and had been earned
m uie city of Owensboro.
The petitions and the amendments thereto
were demurred to and an answer filed reserv-
ing the demurrers. Motions were made to
dissolve a preliminary injunction which had
been allowed. On these motions testimony
was heard. The court dissolved the injunc-
tion and sustained the demurrers, and, the
plaintiff failing to plead further, the peti-
tion and amended petitions were dismissed.
On appeal the court of appeals of the state of
Kentucky affirmed the judgment of the lower
court, and the cause was then brought here
for review.
Mesara, W* T* Ellis, Oeorge W. Jolly, and
Wilfred Carrico for plaintiff in error.
Meaera, Ghapese WAthen, J. D. Atoli*
isom and L, P, LiUle for defendants in
error.
*Mr. Justice Wlitte, after making the fore-[666]
goine statement, delivered the opinion of the
court:
The claim of contract arising from the
Hewitt act need not be considered, as it is
disposed of adverselv to the contentions of
the plaintiff in error by the opinion expressed
in Citizens* Savings Bank of Owensooro v.
City of Otcenahoro et al., just decided [ante,
851
(
666-669
SUPBXHB COUBT OV THB UHTnED STATIfl*
Oct. TsBMt
645, 840]. We tlierefore dismiss thai sob-
ject and the questions arising from it from
further coosideration.
The other issues which the cause presents
f;roup themselves under two distinct head-
ings: First, a contention that the taxes
[667]*leyied were illegal, because imposed in yiola-
tion of the act of Ck>nffres8 regulating the
method of taxation which the respective
states mav exert against national banks or
their stockholders as such; second, because
the taxes imposed are discriminatory.
This latter question has a twofold aspect,
since some of the charged discriminations are
asserted to be in violation of the act of Con-
gress, and others are claimed to arise because
of an asserted contravention of the state law
and Constitution. Of course, we are con-
cerned only with the discrimination claimed
to constitute a violation of the law of the
United States. We need not, however, dis-
sect the discriminations relied upon so as to
separate the Federal from the state questions
in this regard, at least until we have dis-
posed of the contention that the tuces
were levied upon the bank and its property in
violation of the laws of the United States,
since if error in this regard is found, the taxes
will be illegal, and it will become unneces-
sary to determine whether they were dis-
criminatory even from a Federal aspect.
Were the taxes complained of levied upon
the bank, its property or franchise, and if so
were they legal f — is the question which then
arises on the threshold of the case.
Two elements are involved in the deter-
mination of this question — that is, the extent
of the power of the respective states to tax
national banks, and the ascertainment of the
scope and purport of the law by which the
taxes complained of were levied.
Early in the history of this government,
in cases affecting the Bank of the United
States, it was hdd that an agency, such as
that Imnk was adjudged to m, created for
carrying into effect national powers granted
by the Constitution, was not in its capital,
franchises, and operations subject to the tax-
ing powers of a state. M'Cullooh v. Mary-
land, 4 Wheat. 310 [4: 579] ; Oaharn v. Bank
of the United States, (* Wheat. 738 [6: 204].
The principles settled bv the cases just re-
ferred to and subsequent decisions were thus
stated by this court in Davis v. Elmira 8aV'
tngs Bank, 161 U. S. 283 [40: 701] :
''National banks are instrumentalities of
[668]the Federal ffovernment,*created for a public
purpose, and as such necessarily subject to
the paramount authority of the United
States. It follows that an attempt, by a
state, to define their duties or control the
conduct of their affairs is absolutely void,
wherever such attempted exercise of author-
ity expressly conflicts with the laws of the
United States, and either frustrates the pur-
pose of the national legislation or impairs
the efficiency of these agencies of the Fed-
eral government to discharge the duties for
the performance of which they were created.
These principles are axiomatic, and are sanc-
tioned by the repeated adjudications of this
court."
It follows then necessarily from these con*
852
elusions that the respective states would \m
wholly without power to levy anv tax, either
direct or indirect, upon the national banks,
their property, assets, or franchises, were it
not for tne permissive legislation of Con*
g^ess.
The first act providing for the organize
tion of national oanks, passed F^mary 25,
1863, chap. 58 (12 Stat at L. 666), con-
tained no grant of power to the states to tax
national oanks in any form whatever.
Doubtless the far-reaching conseauence to
arise from depriving the states of tne source
of revenue which would soring from the tax-
ation of such banks, and the error of not con-
ferring the power to tax, early impressed it-
self upon Congress; for the following year
(13 Stat, at L. 99, chap. 106) power was
granted to the states, not to tax the banks,
their franchises or property, but to tax the
shares of stodc in the names of the share-
holders. This provision subsequently was
amended and supplemented in various par-
ticulars ( 15 Stat, at L. 34, chap. 7 ) , and the
result of this legislation is embodied in sec-
tion 5219 of the Revised Statutes, which is
as follows:
"Sec. 5219. Nothing herein shall prevent
all the shares in anv association from beinff
included in the valuation of the persons
property of the owner or holder of such
shares, m assessing taxes imposed by author*
ity of the state within which the association
is located; but the lM[islature of each stats
may determine and £rect the manner and
place of taxing all the shares of national
banking associations located ^within the[688]
state, subject only to the two restrictions,
that the taxation shall not be at a greater
rate than is assessed upon other moneyed
capital in the hands of individual citizens of
such state, and that the shares of any na-
tional banking association owned by nonresi-
dents of any state shall be taxed in the city
or town where the bank is located, and not
elsewhere. Nothing herein shall be oon-
Ftrued to exempt the real property of assod*
ations from either state, county, or munici-
pal taxes, to the same extent, according to
its value, as other real property is taxed."
This section, then, of the Bevised Statutes
is the measure of the power of a state to tax
national banks, their property or their fran-
chises. By its unambiguous provisions the
power is confined to a taxation of the shares
of stock in the names of the shareholders and
to an assessment of the real estate of the
bank. Any state tax therefore which is in
excess of and not in conformity to these re-
quirements is void.
So self-evident are these conclusions that
the adjudicated cases justify the deduction
that they have been aeoepted from the begin-
ning as axiomatic and unquestiooed, since
the controversies as to taxation of national
banks illustrated in the opinions of this court
mainly depend, not upon any attempted ex-
ercise of a power to tax the property and
franchises of the banks, but involved contro-
versies as to whether, when the aharea of the
stock in the names of the shareholders had
been assessed according to law* the tax eoold
178 V. •.
1896.
OwBNBBOBO National Bank t. OwsubBuKo.
66u-o;j
be iznpoeed upon them because of all^g^ed dis-
crimination or other illegalities.
Does, then, the Kentucky statute tax the
shares of stock in the names of the share-
holders, or does it impose a tax upon the
bank, its property or franchise f
Without undertaking to recapitulate the
provisions of the Kentucky statutes, in vir-
tue of which the taxes here in question were
imposed, we content ourselves with reiterat-
ing, in the margin,t the statement of the
taxing statutes of Kentucky *mada by the[670]
court jn Adams Express Company v. Ken-
tucky, 166 U. S. 175 et acq. [41: 961].
The effect of the statutory provisions con-
tained in the third ^article, sections 4077 et[671]
aeq., as construed and interpreted by the
court of appeals of the state of Ken-
tucky, were considered in Henderson
Bridge Co, v. Kentucky, 166 U. S. 150
[41: 053],*and iidam^ Express Company y. [^72]
Kentucky, supra. In the Bridge Company
tBxcerpt from Adams Express Oo. v. Ken-
Ueky, 166 U. 8. 178 [41 : 061] :
Chapter 108 of tbe compilation of 1894 is
divided into articles as well as sections, and
may be referred to by way of convenience.
There are some slight differences from the act of
1892 not material to be noted. The first article
contains the general provisions relating to the
assessment and collection of taxes "upon all
property." Sections 4019 and 4020 are as fol-
lows:
"Sec 4019. An annual tax of forty-two and
one-half cents upon each one hundred dollars
of value of all property directed to be assessed
for taxation, as hereinafter provided, shall be
paid by the owner, person, or corporation
assessed. The aggregate amount of tax realized
by all assessments shall be for the following pur-
poses : Fifteen (16) cents for the ordinary ex-
penses of the government ; five (6) cents for the
use of the sinking fund ; twenty-two (22) cents
for the support of the common schools, and one
half of one cent for the Agricultural and Me-
chanical College, as now provided by law, by an
act entitled *An Act for the Benefit of the Agri-
cultural and Mechanical College,* approved Apri?
twenty-ninth, one thousand eight hundred and
eightv, including the necessary traveling ex-
penses of all pupils of the state entitled to free
tuition in said college, and who continue stu-
dents for the period of ten months, unless on-
avoldably prevented.
"Sec 4020. All real and personal estate with-
in this state, and all personal estate of persons
residing In this state, and of all cori>orations
organised under the laws of this state, whether
the property be in or out of the state, including
intangible property, which shall be considered
and estimated in fixing the value of corporate
franchises as hereinafter provided, shall be sub-
ject to taxation, imless the same be exempt from
taxation by the Constitution, and shall be
assessed at its fair cash value, estimated at the
price it would bring at a fair voluntary sale.*'
Article two relates to the assessment of prop-
erty by the assessors, to whom every person in
the Commonwealth must give in a list of all his
property under oath.
Section 4058 provides for schedules with in-
terrogatories to be propounded to each person,
'*wlth affidavit thereto attached, to be signed
and sworn to by the person whose property is
assessed.*' The schedules contain a long. list
of items, including all forms of tangible and in-
tangible, real, oersonal, and mixed property ;
the enumeration being exceedingly minute. The
first eleven Items relate to bonds, notes secured
by mortgage, other notes, accounts, cash on
hand, cash on deposit in bank, cash on deposit
with other corporations, cash on deposit with
individuals, all other credits or money at in-
terest, stock In joint-stock companies or asso-
ciations, stock in foreign corporations.
The third article covers the assessment of
corporations, corporations generally, banks and
trust companies, building and loan associations,
turnpikes.
173 U. 8.
Sections 4077, 4078, 4079, 4080, 4081. 4082
and 4091 are as follows :
**Sec. 4077. Every ratlwa; company or corpo-
ration, and every incorporated bank, trust com-
pany, guafanty or security company, gas com-
pany, water company, ferry company, bridge
company, street-railway company, express com-
pany, electric-light company, electzlc-power
company, telegraph company, press despatch
company, telephone company, turnpike company,
palace-car company, dining-car company, sleep-
ing-car company, chair-car company, and every
other like company, corporation, or associa-
tion, and also every other corporation, com-
pany, or association having or exercising any
special or exclusive privilege or franchise, not
allowed by law to natural persons, or perform-
ing any public service, shall, in addition to the
other taxes imposed on it by law. annually pay
a tax on its franchise to the state, and a local
tax thereon to the county, incorporated city,
town, and taxing district, where its franchises
may be exercised. The auditor, treasurer, and
secretary of state are hereby constituted a board
of valuation and assessment for fixing the value
of said franchise, except as to turnpike compa-
nies, which are provided for in section 4095 of
this article, the place or places where such local
taxes are to be paid by other corporations on
their franchises, and how apportioned, where
more than one jurisdiction is entitled to a share
of such tax, shall be determined by the board
of valuation and assessment, and for the dis-
charge of such other duties as may be imposed
on them by this act. The auditor shall be chair-
man of said board, and shall convene the same
from time to time as the business of the board
may require.
**Sec. 4078. In order to determine the value of
the franchises mentioned in the next preceding
section, the corporations, companies, and asso-
ciations mentioned In the next preceding sec-
tion, except banks and trust companies whose
statements shall be filed as hereinafter required
by section four thousand and ninety-two of this
article, shall annually, between the fifteenth
day of September and first day of October, make
and deliver to the auditor of public accounts
of this state a statement, verified by its presi-
dent, cashier, secretary, treasurer, manager, or
other chief ofllcer or agent. In such form as the
auditor may prescribe, showing the following
facts, viz.: The name and principal place of
business of the corporation, company, or asso-
ciation : the kind of business engaged In ; the
amount of capital stock, preferred and com-
mon ; the number of shares of each ; the amount
of stock paid up ; the par and real value there-
of: the highest price at which such stock was
sold at a bona fide sale within twelve months
next before the fifteenth day of September of
the year in which the statement is required to
be made : the amount of surplus fund and un-
divided profits, and the value of all other assets ;
the total amount of Indebtedness as principal,
the amount of gross or net earnings or income,
Including interest on Investments, and incomes
853
678-674
SuPBUCB Court of the United States.
Oor.
Oa$e, itleii'li^g to tlie "franchise" tax there
in oufUUwm^, it was said (p. 154[41 : 954] ) :
[978] ^'^Ilie tax in oontroyersy was nothing more
than a tax on the intangihle property of the
company in Kentockr, and
such by the court of appeals, aa
*with the proyisions <tf the O
Kentucky in reference to
from all other sonrces for twelTe months next
preceding the fifteenth day of September of tbe
year In which the statement Is required; the
amount and kind of tangible property In this
state, and where situated, assessed or liable to
assessment In this state, and the fair cash yalne
thereof, estimated at the price It would bring
at a fair voluntary sale, and such other facts
as the auditor may require.
"Sec 4079. Where the Hue or lines of any
such cori>oratlon, company, or association ex-
tend beyond the limits of the state or county,
the statement shall. In addition to the other
facts hereinbefore required, show the length of
the entire lines operated, owned, leased, or con-
trolled In this state, and In each county. Incorpo-
rated city, town, or taxing district, and the en-
tire line operated, controlled, leased, or owned
elsewhere. If the corporation, company, or as-
sociation be organized under the laws of any
other state or government, or organized and In-
corporated In this state, bat operating and con-
dncting Its business in other states as well as in
this state, the statement shall show the follow-
ing facts. In addition to the facts hereinbefore
required : The gross and net income or earn-
ings received in this state and oat of this state,
on business done In this state, and the entire
gross receipts of the corporation, company, or
association in this state and elsewhere during
the twelve months next before the fifteenth day
of September of the year in which the assess-
ment is required to be made. In cases where
any of the facts above required are impossible
to be answered correctly, or will not afford any
valuable information in determining the value
of the franchises to be taxed, the said board
may excuse the officer from answering such ques-
tions : Provided, That said t>oard, from said
statement, and from such other evidence as It
may have, if such cori>oration, company, or asso-
ciation be organized under the laws of this state,
shall fix the value of the capital stock of the
corporation, company, or association, as pro-
vided in the next succeeding section, and from
the amount thus fixed shall deduct the assessed
value of all tangible property assessed in this
state, or in the counties where situated. The
remainder thus found shall be the value of its
corporate franchise subject to taxation as afore-
said.
**Sec 4080. If the corporation, company, or
association be organized under the laws of any
other state or government, except as provided
In the next section, the l>oard shall fix the value
of the capital stoclc *as hereinl>efore provided,
and will determine from the amount of the gross
receipts of such corporation, company, or asso-
ciation in this state and elsewhere, the propor-
tion which the gross receipts in this state, with-
in twelve months next before the fifteenth day
of September of the year In which the assess-
ment was made, bears to the entire gross re-
ceipts of the company, the same proportion of
the value of the entire capital stoclc, less the
assessed value of the tangible property assessed,
or liable to assessment, in this state, shall be
the correct value of the corporate franchise of
such cori>oration, company, or association for
taxation in this state.
**Sec. 4081. If the corporation organized under
the laws of this state or of some other state or
government be a railroad, telegraph, telephone,
express, sleeping, dining, palace, or chair car
company, the lines of which extend beyond the
854
limits of this state, the said boaid wlB tx At
value of the capital stodc as bcretebetes pf»>
vlded, and that proportion of the value of tht
capital stock, which the length of the Baa
operated, owned, leased, or eootroOed la tMs
state, bears to the total length of the Baa
owned, leased, or controlled In this ststc mi
elsewhere, shall be considered In Hximg the Him
of the corporate franchlae of socb a»rporatSia
liable for taxation In thia state ; and
rate franchise shall be liable to taTatkw la
county. Incorporated dty, town,
through, or Into which, such lines
operated, in the same proportion that the
of the line in such county, dty, town, or. dis-
trict bears to the whole length of llnss la Ifet
state, less the value of any tauclhle pto|wrt|
asscMed, or liable to assessment. In say ssdk
county, dty, town, or taxing district.
"Sec 4082. Whenever any person or
tlon of persons, not being a corporatkm
lug capital stock, shall. In thla stats.
In the business of any of tbt eorporatleas ■»
tloned In the first section of this artlde, tka
the capital and property, or tiie eertlfieatti m
other evidences of the rights or Intsresli of thi
holders thereof In the business or capital isl
property employed therein. Shall be
treated as the capital stodc of aadi
aasodatlon of persons for the porpusss of
tion and all other purposes under this sitfcli
in like manner aa if audi person or
of persons were a corporation.**
*'Sec 4091. All taxes ssse
corporation, company, or assodatloa oador tMi
artide, except banks and trust compaatwk shsB
be due and payable thirty days after noda rf
same hss been given to said oorperatleu, con
pany, or aasodatlon by the auditor : sad tvar
such corporation, company, or aasorlstfcia M-
lug to pay Its taxes, after reeetvfng thirty do^
notice, shall be deemed ddlnqucnt. and a |»
alty of ten per cent on the amount of tkt tn
shall attach, and thereafter such tax Shan Nw
interest at the rate of ten per cent
any such corporation, company, or
failing to pay Ita taxes, penalty, and
after becoming delinquent, Aall be
guilty of a misdemeanor, and, on
shall be fined fifty dollars for each day tht tmt
remains unpaid, to be recovered by
or civil action, of which the rraaklla
court shall have jurisdiction.**
The fourth artide rdates to the
and payment of taxes by rallroada ; tht tfti a
distilled spirits : the sixth, seventh. sightiL mt
ninth artldes to the board of sopoiilwii mt
the collection of taxes and tiie
Articles 10 to 13 rdate to U
dal taxea, privilege taxea, and the ttki
articles 18, 14, and 15 proscribe esrtaia
for designated officers touching the
of the revenue. Artide 15 provtda ter a
board of equalisation to equalise the
returned to them from %mth county.
By section 4092, banka and
are required to file the report leCened t» Is ■*-
tion 4078 by a date named. The
prescribes when taxes are payable. aa4 IM
upon failure to file the reporta **or t» par ■**
taxes, said banka and truat coanaalv sM ^
subjected to the same fines and peaiMw m pi**
scribed in section fifteen (4091) of this si4(te*
173 Ct.
1898.
OwsNSBOBO National Bank y, Owensbouo.
674-677
In the BafprettB Company Case the court
•aid (pp. 180, 181 [4^ : 963, 964] ) :
*^9kiDa the whole act together, and in
Tiew of the provisions of sections 4078 to
4081, we agree with the circuit court that
it is evident that the word 'franchise' was
net employed in a technical sense, and tnat
the legislative intention is plain that the en-
tire property, tangible and intangible, of all
foreign and domestic corporations, and all
foreign and domestic companies possessing
no franchise, should be valued as an entirety,
the value of the tangible property be de-
ducted, and the value of the intangible prop-
erty thus ascertained be taxed under these
provisions; and as to railroad, telegraph,
telephone, express, sleeping car, etc., compa-
nies, whose lines extend beyond the limits of
the state, that their intan^ble property
should be assessed on the basis of the mile-
age of their lines within and without the
state. . • . There is nothing in the stat-
ute which exempts an^ intangible property
owned by any corporation, company, or indi-
vidual taxpayer from taxiation, or discrimi-
nates between them. . • . The tax men-
tioned in section 4077, is not an additional
tax upon the same property, but on intangi-
ble property which has not been taxed as
tangible property."
'mie it is, since the decision referred to,
the court of appeals of the state of Kentucky
has, it is asserted in the case of Louisville
Tobacco Warehouse Company v. Common-
wealth, on a rehearing (48 S. W. 420 [20 Ky.
L. Rep. 1047]), examined the terms of sec-
tion 4077, and is stated to have said :
The latter clause, 'also every other corpo-
ration, company, or association having or ex-
]ercisinip; any special or exclusive* privilege or
franchise not allowed by law to natural per-
sons, or performing any public service,'
seems to us to have been added for the pur-
pose of including such corporations as were
not strictly ejusdem generis with the compa-
nies previously enumerated, but which might
possess exclusive privile^; and, as a pro-
vision for the future, to impose the intangi-
ble property tax upon corporations to be
thereafter created, which might have exclu-
sive privileges, or perform public services.
"Ijie only authority relied upon in sup-
port of the contention that this language in-
cludes all corporations is the case of Western
Union Telegraph Company v. Norman, 77
Fed. Rep. 27. But that case was in relation
to a company specifically named in the stat-
ute under consideration. The question here
presented did not arise in that, and was,
presumably, not argued; and the suggestion
made bj^ the learned judge who delivered
that opinion was made m argument in reach-
ing a conclusion, to reach which the dictum
cited was not necessary.*'
In deciding that the conviction of the cor-
poration for wilfully failing to file with the
state auditor the statement required by the
Kentucky Statutes, sections 4077 and 4078,
was erroneous, the court in that case, it is al-
so stated, has, moreover, further observed:
''Kor can the appellant corporation be
said to have any intangible property subject
to taxation under this statute. Its tangible
173 U. 8.
property — its warehouse, drays, and person-
al property — ^is of no greater value in the
hands of the corporation than it would be
if owned and managed by the natural per-
sons who are its stockholders. This is also
true of its choses in action, etc The value of
its capital stock must necessarily be the
value of Its tangible propertv, choses in ac-
tion, etc. It had no intangible property sub-
ject to taxation under the statute, and, as
matter of law, could have none. . . .
The revenue law of the state is not uncon-
stitutional because it does not require nat-
ural persons, possessing no special franchise
or privilege, to make report of special priv-
ileges and franchises for taxation; nor is it
imconstitutional in failing to recjuire a re-
port from all classes of corporations which
con ^possess the intangible property sought[676]
to be taxed by this statute. Tne tax upon
tangible property of all corporations is else-
where provided for."
The opinion, however, from which the fore-
going extracts are made, has not as yet been
reported. But, if the court of appeals of
Kentucky has given to the state statute the
construction indicated, the ruling does not
affect the present case, as banks are specifi-
cally mentioned in the statute.
Tne tax then, as denned in the law, as in-
terpreted by the court of appeals of Ken-
tucky and by this court in the opinions from
which we have excerpted, is a tax nominally
on the franchise of the corporation, but in
reality a tax on all the intangible property
of the corporation. The proposition then
comes to this: Nothing but the shares of
8tx>ck in the hands of the shareholders of a
national bank can be taxed, except the real
estate of the bank. The taxes which are here
resisted are not taxes levied upon the shares
of stock in the names of the shareholders, but
are taxes levied on the franchise or intan-
fible property of the corporation. Thus,
ringing the two conclusions together, there
would seem to be no escape in reason from
the proposition that the taxing law of the
state of Kentucky is bevond uie authority
conferred b^ the act of Congress, and is
therefore void for repugnancy to such act.
It is, however, urged that whilst the taxes
may not be in form imposed on the shares of
stock in the names of the shareholders, and
may be in form a tax on the franchise or
property of the bank, nevertheless they are
equivalent to a tax on the shares of stock in
the names of the shfireholders, and therefore
do not violate the act of Congress. But this
§ reposition concedes that the taxing statute
oes not conform to the act of Congress, and
jet invokes its permissive authority, since,
as already shown, without the grant made
by the act of Congress there would be no
power to tax at all. Passing, nevertheless,
this contradiction, and looking beneath the
mere form, we come to the substance of
things. The alleged equivalency, in order to
be of any cogency, must of necessity contain
two distinct and essential elements — equiva-
lency in law and equivalency in fact. Does
it contain cither? is the question.
•To be equivalent in law, involves the prop-[677]
osition that a tax on the franchise and prop-
866
(
677-(J79
SupBUCB Court of the United States.
Oct. ttMM,
[•T8]g
erty of a bank or corporation is the equiva-
lent of a tax on the shares of stock in the
names of the shareholders. But this propo-
sition has been frequently denied by this
court, aA to national banks, and has been
oiverruled to such an extent in many otiier
eases relating to exemptions from taxation,
or to the power of the states to tax, that to
maintain it now wouM have the effect to an-
nihilate the authority to tax in a multitude
of cases, ond as to vast sums of property up-
on which the taxing power is exerted in vir-
tue of the decisions of this court holding that
a tax on a corporation or its property is not
the legal equivalent of a tax on tne stock, in
the names of the stockholders. A brief re-
view of the two classes of cases, by which the
doctrines just stated are overwhelmingly es-
tablished, will make the for^^ing result
dear.
The earliest case in the reports of this
court is Van AUen v. The Aaaesaors (1865)
3 Wall. 673 [18: 220 1. The tax was on the
shares of stodc in the names of the sharehold-
ers, pursuant to the act of Ck>ngress. Two
issues were presented, one the assertion that
the state banks were assessed on their capital
and surplus, and therefore that stockholders
in national banks were substantially discrim-
inated against. This was held to be well
taken; clearly, therefore, deciding that there
was no equivalency between taxing the cap-
ital and surplus in the hands of the bank and
taxing shares in the names of the sharehold-
ers, for if the two had been equivalent the de-
cision would necessarily have been otherwise.
The other question in the case was thus
stated by the court, through Mr. Justice Nel-
son^age 581 [18: 233] :
"Tne main and important Question in-
volved, and the one which has been argued
at great length and with eminent ability, is,
whether the state possesses the power to au-
thorize the taxation of the shares of these
national banks in the hands of stockholders,
"Whose capital is wholly vested in stock and
bonds of the United States."
This question was examined, and it was
decided that, as the shares of stock in the
hands of the shareholders were distinct and
different subjects-matter of taxation from the
roperty or 'rights of the bank, there-
ore the power conferred by Congress could
be exercised so as to tax the shareholders
even although the property of the bank was
invested in nontaxable bonds of the United
States, because the two were distinct and
different t-hings.
It is to be remarked that it is patent from
the opinion of the court that, if the shares
of stock had been considered as in anywise
the equivalent of the bonds, in which the prop-
erty of the bank was invested, the tax would
have been held invalid, despite the author-
ity to tax the stock given by the act of Ck>n-
gress, as such authority would not have been
construed as authorizing a violation of the
faith of the United States by taxing bonds
issued by the government which were not
subject to taxation. It follows, then, that
not only did this decision refute the claim of
equivalency between the tax on the bank or
its property or franchises and the tax on
866
the stock in the names of the stod^oUen^
but b^ a negative affirmative it demoastnta
that if the two are eauivalent the tax ia tin
case would be illegal, since the record hen
admits that a sum, at least the eqainktt
of the capital, surplus, and undivided praiti
of the bank, was invested in boods of tW
United States. The contention of e^iin-
lency then destroys itself, and if it verc eat-
ceded would bring about the illegality oi t^
tax, in support of the legality of wkick tte
argument is advanced.
Following this came the dacisioa im Fmfk
V. New York Tarn d A. Gommimiomn
(18G6) 4 Wall. 244 [18: 344], in wUek, i%
iterating the decision in Vam AUem v. Tk§ 1>
sessara, it was held, becauBe the pnmcrtj d
the bank was distinct and separate umi t^
shares of stock in the names of the
holders, therefore the latter w
tied to deduct exempt property
the bank from the assessment
shares. The court said, again throogk Mr.
Justice Nelson, and in part quoting fna
the opinion in the Vam AUem Cmm (p. 29
[18:360]):
" 'The corporation is the Itnl ovaer d il
the property of the bank, real and penoB^
and, within the powers ooof erred una it te
the charter, and f<Mr the porpoees for «yei
it was created, can deal with the corponi* ,
property as absolutely as *a private lafifi^!fl
ual can deal with his own. . . . IW »
terest of the shareholder entitles hin to pB^
ticipate in the net profits earned by the beii;
in the emplo^ent of its capital, dnrtag tk
existence of its charter, in proportioo te tk
number of his shares ; and upon its dMnte-
tion or termination, to his proportioa d tk
property that may remain, oc the eorpor*-
tion, uter the payment of its debts. &■
is a distinct, independent interest or pre*|r
ty, held bv the shareholder like aay turn
property that may belong to him;' aad, «•
add, of course, is subject to like taxstka*
The next case in order of time is Brwtm
V. The People (1866) 4 WaU. 459 [18:4S{.
The question which the case preeeatai «•
whether a tax on the property or righk rf
the bank was the le^ equrraleot ol a tax «
the shares of stock m the names of the ihai*>
holders. The argument of couniel wts tki
in determining this question the method «•
immaterial, but the substance wooM b* mm-
sidered. The argument urged (p. 460 [U
433] ) : "Neither the naUonal |^uiuflM>
the creator of the species of property w*
taxed, nor the shareholders can be ialMkl
in the methoda which may be adopted k
the state for the impoeitioii of the tas.^
The court, through Mr. Justioe Keboa, aim
lef erring to the decision in Vvm AUm v. fk
Aaaoaaoray and the tax there imposed, md
(p. 462 [18:435]):
"It was in that case attempted to ht •»
tained on the same ground relied oa hva
that tiie tax im the capital was equivaksi k
tax on the shares, as respected the ihsiAiM
crs. But the position waa answered that, ad-
mitting it to be so, yet, inasmuch as the refttU
of the state banks may consist ei the eaaik
of the United States, whidi were nm^
from state taxation, it was not ea«y t» wm
179 «.&
1898.
OwBHSBOBO National Bank ▼. Owsnsbobo.
679-6811
that thm tax on the capital was an equivalent
to a tax on the shares."
In First NatUmdl Bank ▼. Commonwealth
(1870) 9 WaU. 353 [19: 701], a statute of
the state of Kentucky which imposed a tax
of fifty cents a share on bank stock, or stock
in any moneyed corporation, of loan or dis-
counts, owned by individuals, corporations,
or societies, was held to authorize a tax on
the shares of the stockholders, as distin-
{^shed from the capital of the bank invested
in Federal securities, and this, although the
]tax* was collected from the bank instead of
the individual stockholders. In the opinion
of the court, delivered by Mr. Justice Miller,
a summary statement was made of the doc-
trine enunciated in the prior decisions recog-
nizing^ the distinction between the property
owned b^ an incorporated bank as a corpo-
rate entity and the property or interest of
the stockholders in such bank, commonly
called a share.
These cases, interpreting the act of Con-
gress, have never been questioned, and indeed
form the basis upon which the taxation of
the shares of stock in the names of the ahare-
h<dders allowed by the act of Congress has
been made efficacious for the purpose of
bringin^^ a vast amount of property within
the taxing power of the states, which would
have been excluded had not the principles
which the cases announced been established.
If the postulate upon which they necessarily
rest be overthrown by saying that there is
an equivalency between the taxation of the
property of the bank and the shares of stock
m the names of the stockholders, it would
follow that the principles upheld by the
cases would disappear with the destruction
of the reasons upon which thev were placed..
It would then necessarily follow that the
grant by Congress of authority to tax the
shares of sto<3: in the names of the share-
holders could not be exercised where the bank
held bonds of the United States exempt from
taxation; that the two things beins the
same, the shareholders woulH be entitled to
deduct the property of the bank from the
sum of the taxation of the shares; in other
words, that the right to tax the shareholders
would be a vain thing.
It has been suggested that other cases de-
cided since the cases referred to, whilst not
questioning the latter, in effect admit a doc-
trine which tends to a contrary result.
We do not stop to review in detail the cases
from which this result is claimed to arise.
They are: Palmer v. McMahon, 133 U. S.
660 [33: 772]; Bank of Redemption v. Bos-
ton, 125 U. S. 60 [31 : 689] ; Davenport Na-
tional Bank v. Davenport Bd, of Equalizor
tion, 123 U. S. 83 [31 : 94] ; Mercantile Bank
V. City of New York, 121 U. S. 138 [30:
895]. It suffices to say that the claim is de-
IJroid of foundation.* In all the cases referred
to the taxation was specifically imposed on
the shares of stock in tne names of the share-
holders, and the question presented, in va-
rious forms, was whether the provisions of
state taxing laws created a discrimination
in favor of other moneyed capital and
against the shareholders in national banks,
contrary to the act of Congress. On these
173 U. 8.
questions, interpreting the act of Congress
with the liberality of construction resorted
to in the Van Allen Case and those which
followed it, the court in most of the in-
stances rejected the charge of discrimination.
The result of the cases in question tended to
give efficient vitality to the grant of Con-
gress to tax the shares of stock in the names
of the shareholders. The argument now re-
lied on would, if it were adopted, operate to
destroy the power to tax, which the act of
Congress sanctions.
It cannot be doubted that, as a general
principle, it is settled that the taxation of
the property, franchises, and rights of a cor-
poration is one thing and the taxation of the
shaves of stock in the names of the share-
holders is another and different one. This
doctrine has been applied to sanction the
taxation of the one where the other was cov-
ered by a contract of exemption. As the re-
sult of its application, it is unquestioned
that much property has been brought within
the range of the taxing power which other-
wise would have escaped taxation. It is un-
necessary to multiply citations on this sub-
ject, as the question has been in recent cases
reviewed and restated fully by the court.
Thus in Bank of Commerce v. Tennessee, 161
U. S. 146 [40: 649], it was said, through Mr.
Justice Peckham:
''The capital stock of a corporation and the
shares into which such stock may be divided
and held by individual shareholders are two
distinct pieces of property. The capital stock
and the shares of stock in the hands of the
shareholders may both be taxed, and it is not
double taxation. Van Allen v. Assessors, 3
Wall. 573 [18:229]; People v. New York
Tax d A. Commissioners, 4 Wall. 224 [18:
344], cited in Farrington v. Tennessee, 95 U.
S. 687 [24:560].
"This statement has been reiterated many
times in various decisions by this court, and
is not now disputed by anyone. In the case
last cited Mr. Justice Swayne, in delivering
the ^opinion of the court, enumerated many[689|
objects liable to be taxed other than the cap-
ital stock of a corporation, and among them
he instanced, (1) the franchise to be a cor-
poration; (2) the accumulated earnings;
(3) profits and dividends; (4) real estate
belonging to the corporation and necessary
for its business; and he adds that 'this enu-
meration shows the searching and compre-
hensive taxation to which such institutions
are subjected where there is no protection by
previous compact.' And in Tennessee v. Whit-
worth, 117 U. S. 129 [29: 830], at page 13ft
[29: 832], Mr. Chief Justice Waite, in de-
livering the opinion of the court, says:
'That in corporations four elements of tax-
able value are sometimes found: First, the
franchise; second, the capital stock in the
hands of the corporation; third, the corpo-
rate property; and fourth, the shares of cap-
ital stock in the nands of the individual
stockholders.'
"The surplus belonging to this bank is
'corporate property,' and is distinct from the
capital stock in the hands of the corporation.
The exemption, in terms, is upon the pay-
ment of an annual tax of one half of one per
857
68d-684
SUFBDCB OOUST V THB UHTnCD STATSS.
Got
cent upon each share of the capital stock,
which shall he in lieu of all other taxes.
The exemption ia not, in our judgment^
ffreater in it6 scope than the subject of the
And, in the case of New Orleans v. Citieeru^
Bank, 167 U. S. 371 [42: 202], although it
was held that the capital of the bank was
exempt f rcmi taxation by a charter conrtract,
and tnat, owing to the peculiar provisions of
the charter, it would violate the contract to
compel the bank to pay a tax levied on its
shareholders, nevertheless the exemption did
not preclude the levy of a tax upon the stock
in the names of the stockholders, tlie court
said (p. 402 [42:213]):
''The doctrine that an exemption of the
oapital of a corporation does not, of neces-
sity, include the exemption of the sharehold-
ers on their shares of stock is now too well
settled to be questioned."
There being then no equivalency between
the assessment of the bank and uie assess-
ment of the shares in the names of the share-
holders, it follows that the tax here com-
plained of, which was assessed on tiie fran-
(M8]chi8e or intangible property* of the corpora-
tion, was not within the purview of the au-
thorilnr conferred by the act of Congress, and
was therefore illeg^.
Whilst this conclusion suffices to dispose
of the case, we advert to the contention that
althoujB;h there may not be a l^al equivalency,
there is nevertheless one in fact, and there-
fore the tax should be sustained. It ma^ be
that in the case before us there is a coinci-
dence between the sum of the tax levied upon
the corporation and the amount which would
have been imposed had the shares of stock in
the names of the shareholders been assessed
according to the act of Ck>ngress. But that
this is not the necessary result of the taxing
statute is too plain to require comment. The
fact that it is not is well illustrated by Hen-
derson Bridge Company v. Kentucky, supra,
for there the tax which was sustained on the
franchise or intangible property of the oor-
poration admittedly enormously exceeded the
total of the capital stock, and proceeded upon
the theory that the bonds issued by the cor-
poration were an element to be taken into
consideration in fixing the value of the fran-
chise or intangible property. If the mere
coincidence of the sum of the taxation is to
be allowed to frustrate the provisions of the
act of Congress, then that act becomes mean*
ingless and the power to enforce it in any
ffiven case will not exist. This follows since
if mere coincidence of amount and not legal
power be the test, only a pure question of
fact would arise in any given case. The
argument that public policy exacts that
where there is an equality in amount between
an unlawful tax and a lawful one, the unlaw-
ful tax should be held valid, does not strike
us as worthy of serious consideration.
The system of taxation devised by the act
of Congress is entirely efficacious and easy of
execution. By its enforcement, as inter-
preted, settled policies of taxation have been
evolved embracing large amounts of property
which would not otherwise be taxable, and
which, as we have seen, will escape taxation
868
if the past development of the system be ds-
stroyea by recognizing, without reaeoB,apri>-
eiple inconsistent with the law and dciteacfc>
ive of the safeguards which it impoeca
*From the forgoing conclusions, it raalu;8
that as the taxes were impoeed upon t^
bank and its property or franrhise, and aot
upon the shares of stock in the naae si ^
stockholders, such taxes were void, and tkt
decree below must be and the aame is huifcy
reversed and the cause be remaDded iv
further proceedings not ineoneistent vilhtUi
opinion, and it is so ordered.
LAKE 8H0BE ft MICHIOAN
RAILWAY COMPANY, Ptg. m
o.
HENBY C. SMITH.
(See 8. C Beoorter's ed. 001 W.)
Power of state to fiw rates for rmlrom «
panies— power to diserimiimate in fmssr
those who buy thousand-mUe Heke
Uce power ewoeption 4m fenor of e
ular class — voluntary sole of Ifti
mUe tickets— Michigin statute estetkm
samd-^ile tickets, uneonstituHtmel
m vIB
1. A state maj provide bj
maximum rates of efaarges fbr
panles, provided they are waA
of the carrier earning a
to It and to the public ; and
or not Is a judicial qocstloB.
2. The power to fix max!
charges for railroad transportatloe
Include the right to compel a
In rates In favor of those wbe
mile tickets.
8. An opportunity to pordast
mile ticket for less than the stsodui
not a ''convenience,'* wlthla the
the leglslatare maj make ngilifiMi <f *
business of carriers to provide fbr tki ■*&
health, and convenience of the pehfc
4. The power of the state leglslstsie i* a^*
general lawe regarding a eoapsaf e"d >»
affairs does not Indode the pow te <^^
It to make an exception In favor of • 9Bfn»
lar class, and to carry members ef thee A*
at a less som than those who art ■■< ■*
members.
5. The voluntary eale of
good for a year from the Urns of
does not furnish a eritsrioa fbr tht
meat of legislative power to
of thousand-mile ttcketa, or a
which to measure the i iieiusiM— i of
latlve action In that mattsr.
6. The lilchlgan statuts leqeMig
mile tickets to be sold by rennsd
for less thsn the ordinary rst« of Ikm. ■>
use by the purchaser and his wtti isi ^^
dren. If named on the ticket, sat
valid for two years after date of
a violation of the coastltvtSoasl
railroad companies to doe mai— st^m^e
the equal protection of the laea
[No. 227.]
Argued March U, 15, 1899. DseSid iF*
1898.
JjAmr Shobb 4k M. 8. R. Co. y. Smith.
684-686
IK EBROR to the Supreme Court of the
State of Michi|[an to review a judgment
of that court deciding that the statute of
Michigan requiring the sale of thousand-mile
tickets violated no provision, either of the
Federal or the state Constitution, but was a
valid enactment of the legislature, and af-
firming an order for a mandamus, in an ac-
tion brought by Henry C. Smith against the
Lake Shore & Michigan Southern Railway
Company in the oircuit court for Lenawee
county* Michigan. Reversed, and case re-
manded for further proceediuss.
See same case below, 114 Mich. 460, 72 K.
W. 328.
Statement by Mr. Justice PeoUuuns
(•85] •In 1891 the general railroad law of the
state of Michigan was amended by the legis-
lature by Act No. 90, a portion of the ninth
section of which reads as follows:
*•. • . Provided, further, That one-
thousand-mile tickets shall be kept for sale
at the principal ticket offices of M railroad
companies in this state or carryinff on busi-
ness partly within and partly without the
limits of the state, at a price not exoeedinff
twenty dollars in the Lower Peninsula and
twenty-five dollars in the Upper Peninsula.
Such one-thousand-mile tickets may be made
nontransferable, but whenever required by
the purchaser they shall be issued in the
names of the purchaser, his wife and chil-
aren, designating the name of each on such
tidcet, and in case such ticket is presented by
any other than the person or persons named
thereon, the conductor may take it up and
collect fare, and thereupon such one-thou-
rand-roile ticket shall be forfeited to the
railroad companv. Each one-thousand-mile
ticket shall be vaJid for two ^ears only after
date of purchase, and in case it is not wholly
used within the time, the companv issuing
the same shall redeem the unused portion
thereof, if presented by the purchaser for re-
demption within thirty days after the ex-
Siration of such time, and shall on such re-
emption be entitled to charge three cents
per mile for the portion thereof used."
On April 19, 1893, and again on October
17, 1893, the defendant in error demanded
of the ticket agent of the plaintiff in error,
in the city of Adrian, Michigan, a thousand-
mile ticket, pursuant to the provisions of the
ubove section, in the names of himself and
Ids wife, Emma Watts Smith, which demand
was refused. The defendant in error then
applied for a mandamus to the circuit court
to compel the railway company to issue such
ticket upon the payment of the amount of
f20, and after a hearing the motion was
granted. Upon certiorari the supreme court
[686] of Michigan affirmed that order *and held
that the statute applied only to the railway
lines of the plaintiff in error operated with-
in the state of l^iichiffan.
The defense set up by the railway company
was that, under the charter from the state
to one of the predecessors of the company to
whose rights it had succeeded, it had the
right to charge three cents a mile for the
transportation of all passengers, and that
such charter constituted a contract between
178 V. 8.
the state and the company, which the former
had no right to impair by any legislative ac-
tion, and that the statute compelling the
company to sell thousand-mile tickets at the
rate of two cents a mile was an impairment
of the contract, and was therefore void as in
violation of the Constitution of the United
States. It also alleged that the act was in
violation of the Fourteenth Amendment of
the Constitution of the United States, in
that it deprived the company of its property
and liberty of contract without due process
of law, and also deprived it of the equal pro-
tection of the laws. The act was also al-
leged to be in violation of the Constitution
of the state of Michigan on several grounds.
The supreme court of the state detided
that there was no contract in relation to
the rates which the company might charge
for the transportation of passenp;ers, and
that the statute violated no provision either
of the Federal or the state Constitution, but
was a valid enactment of the legislature,
and therefore the court affirmed uie order
for mandamus, the ticket to be good upon
and limited to the railway lines of the de-
fendant railroad company witiiin the state
of Michkran. ([114 Mich. 460] 72 N. W.
328.) The company sued out a writ of er*
ror from this court.
Messrs, George G. Chreene and Ashley
Fund, for plaintiff in error:
The statute souffht to be enforced is in vio-
lation of the 14th Amendment of the Con-
stitution of the United States, which de-
clares that no state shall deprive any person
of liberty or property without due process of
law.
Allgeyer v. Louisiana, 165 U. S. 578, 41
L. ed. 832; PeopUs v. Marx, 99 N. Y. 386, 52
Am. Rep. 34; State v. Campbell, 32 N. J.
L. 309 ; Boston d L. R, Co, v. Proctor, 1 Al-
len, 267, 79 Am. Dec. 729; Rawitzky v.
Louisville d N, H, Co. 40 La. Ann. 50 ; Diet'
rich V. Pennsylvania R, Co. 71 Pa. 432, 10
Am. Rep. 711.
The power here sought to be exercised is
not legislative in its nature, nor within the
scope of the legislative authority.
Com, V. Maxwell, 27 Pa. 444; Hanson v.
Vernon, 27 Iowa, 28, 1 Am. Rep. 216; Tay-
lor V. Porter, 4 Hill, 140, 40 Am. Dec. 274 ;
Clark V. Mitchell, 64 Mo. 664; Com, v. Per-
ry, 156 Mass. 117, 14 L. R. A. 326; Wheel-
ing Bridge d Terminal R. Co. v. Gilmore, 8
Ohio C. C. 658.
The act of 1891 in question is in violation
of art. 1, fi 10, of the Constitution of the
United States, which declares that no state
shall pass any law impairing the obligation
of contracts.
Tomlinson v. Branch, 15 Wall. 460, 21 L.
ed. 189; Central R. d Bkg. Co, v. Georgia,
92 U. S. 665, 23 L. ed. 757 ; Citusens' Street
R. Co. V. Memphis, 53 Fed. Rep. 715; Nash-
ua d L. R. Corp. V. Boston d L. R, Corp. 136
U. S. 356, 34 L. ed. 363; Creen County v.
Conness, 109 U. S. 104. 27 L. ed. 872 ; Ten-
nessee V. Whitworth, 117 U. S. 139, 29 L.
ed. 833 ; Charleston v. Branch, 15 Wall. 470,
2i L. ed. 193 ; Peik v. Chicago d N, W, R. Co.
94 U. S. 164, 24 L. ed. 97.
860
(
§86-688
Supreme Coubt of the United States.
Oct. Tna,
The contention that the act in question is
valid because it is within the scope of the
police power of the state cannot be sustained.
Allgeyer v. Louisiana, 165 U. S. 578, 41
L. ed. 832; Chicago, B. d Q. R, Co, v. Ne-
braska, Omaha, 170 U. S. 57, 42 L. ed. 948.
Messrs. Fred A. Maynard* and Henry
G* Smitli, in proper person, for defendant
in error:
The legislature of a state has the power
to fix said rates, and the extent of judicial
interference is protection against unreason-
able rates.
Chicago d Q. T. R. Co. v. Wellman, 143
U. S. 344, 36 L. ed. 179; Stone v. Farmers*
Loan d T. Co, 116 U. S. 307, 29 L. ed. 636;
Chicago, M. d 8t. P. R. Co. v. Minnesota,
134 U. S. 418, 33 L. ed. 970, 3 Inters. Com.
Kep. 209 ; New York d N. E. R. Co. v. Bris-
tol, 151 U. S. 567, 38 L. ed. 273.
Railroad corporations are subject to the
legislative control in all respects necessary
to protect the public against danger, injus-
tice, and oppression.
Nashville, C. d 8t. L. R. Co. v. Alabanuf,
128 U. S. 96, 32 L. ed. 352, 2 Inters. Com.
Rep. 238; Georgia R. d Bkg. Co. v. Smith,
128 U. S. 174, 32 L. ed. 377 ; Minneapolis d
St. L. R. Co. V. Beckwith, 129 U. S. 26, 32 L.
ed. 585; Dent v. West Virginia, 129 U. S.
114, 32 L. ed. 623; Charlotte, C. d A. R. Co.
V. Oihhes, 142 U. S. 386, 35 L. ed. 1051 ;
Minneapolis d St. L. R. Co. v. Emmons, 149
U. S. 364, 37 L. ed. 769; Wabash, St, L. d
P. R. Co. V. Illinois, 118 U. S. 686, 30 L. ed.
254, 1 Inters. Ck>m. Rep. 31.
The right to regulate, to some extent, the
business of railroads has always been con-
ceded.
Chicago d A. R. Co. v. People, Koemer,
67 111. 11, 16 Am. Rep. 599; Com. v. Eastern
R. Co. 103 Mass. 254, 4 Am. Rep. 555; Chi-
cago d N. W. R. Co. V. Fuller, 17 Wall. 560,
21 L. ed. 710; New York v. Miln, 11 Pet
139, 9 L. ed. 662; Munn v. Illinois, 94 U. S.
125, 24 L. ed. 84; Covington d C. Bridge Co.
V. Kentucky, 154 U. S. 215, 38 L. ed. 967, 4
Inters. Ck>m. Rep. 649.
The police power is paramount to con-
tracts in chartBrs.
Kansas P. R. Co. v. Mower, 16 Kan. 673 ;
Nelson v. Vermont d C. R. Co. 26 Vt. 717, 62
Am. Dec. 614; Lyman v. Boston d W. R.
Corp. 4 Cush. 288; Pratt v. Atlantic d St.
L. R. Co. 42 Me. 579; Norris v. Androscog-
gin R. Co. 39 Me. 273, 63 Am. Dec. 621 ;
Bulkley v. New York d N. H. R. Co. 27 Conn.
479 ; Louisville d N. R. Co, v. Kentucky, 161
U. S. 700, 40 L. ed. 859; Butchers* Union 8.
B. d L. S. L. Co. V. Crescent City L, 8. L. d
8. H. Co. Ill U. S. 746, 28 L. ed. 686; East
Hartford v. Hartford Bridge Co, 10 How.
511, 13L. ed. 518.
In Stone v. Farmers* Loan d T. Co. 116
U. S. 307, 29 L. ed. 636, it is decided that the
rigbt of a state to reasonably limit the
amount of charges by a railroad company
for the transportation of passengers ana
property within its jurisdiction cannot be
granted away by its legislature, unless by
word of positive grant or words equivalent
in law.
The several states bave a right to fix,
860
either directlj through an set of the
ture or indirectly through a eon
reasonable maximum frei^t and ptfMa^
rates upon traffic wholly withio their bor^
ders.
Chicago, B. d Q. R. Co. v. Iowa, M U. 1
155, 24 L. ed. 94; Peik v. Chicago il.t
Co, 94 U. S. 164, 24 L. ed. 97; Ckicagt, M. i
St, P. R, Co. V. Ackley, 94 U. S. i:>, U L
ed. 99 ; Illinois C. R. Co, v. lUinoit, 106 U. 1
541, 27 L. ed. 818; Railroad Commimm
Cases, 116 U. 8. 307, 29 L. ed. 636; Dw f.
BeideUnan, 126 U. S. 680, 31 L si 841, t
Inters. Com. Rep. 56.
*Mr. Justice PeelJu», sitff lUtiif ttf
facts, delivered the opinion of the eoot:
*The only subject of inoniry for si ii ^
case is whether the act of the legiilitirt d
the state of Michigan violates anj fiffiMi
of the Federal Constitution. It is sot witki
our province to review the dedsiosof tk»
preme court upon the question whete tk
act violates the Constitution of tk ifadi
The two questions of a Federal sttettM
are raised in the reocHrd are, (1) whetetfti
act violates the Constitution of tbt \Mi
States by impairing the obliffttios 4 m
contract between the state and the nSmi
compuiy; and (2) if not, does it uweiin
less violate the Fourteenth Aatmiami
the Constitution by depriving tht
of its property or liberty witlwut "
of law or by depriving it of the mmI F»
teotion of the laws; if we sboda kak
that this act violates any prorisioB d ta
Fourteenth Amendment it would be m^
sary to examine the question wbeCkr thM
was any contract between the state sii ^
company as claimed by it. We wiD fta^
fore first come to an investigstka if ^
legislative authority with referaeitit^
amendment.
If unhampered by OMitraet tkK h »
doubt of the power of the state to pnA
by legislation for masdmum rates of ehB9
for railroad companies, subjeet to tki M^
tion that they must be sndi so will sW •
the carrier earning a oompeoiatioB^ ■*
der all the circumstances shsll be jirt ti *
and to the public, and whether th^ •• '
rot is a judicial question. If thenUii **
fixed at an insufficient amomit vitUi tk
meaning of that term as ffiven by the
the law would be invalid, so
the takinff of the property of tbii^
without due process of law. Ckmf*
Orand Trunk Railway Compnw ▼. W**
143 U. S. 339, 344 [36: 176. m); *J»
V. Farmers' Loan d Trust Comps»f, WJ-
S. 362, 399 [38: 1014, 1024, 4 litenO*
legislate regardinff the affsin of i«w
companies has within the past fcwyw>*
several times before this coart ^•i**i
L, d P. R. Company v. lUinoit, US u &»
[30: 244, 1 Inters. Com. Rep. J^I-JT?^
Central R. •Company v. llUtioit, 1? \rj
142 [41 : 107] ; Lake Shore tf JT. ^ * ^
pany v. Ohio, 173 U. a 285 [osie Jw- "J
179 v» a
1898.
Lamm Shobs & M. 8. R. Co. ▼. Smith.
688-4HIO
died. These eases sxose under the
eommerce dause of the Federal Constitutioii,
the inquiry beinff whether the legislation in
question vidated that provision. In the
CBses in whidh the legislation was upheld it
was on the ground uiat the state was but
eocerolsing its proper authority under its gen-
eral power to legislate regarding persons and
things within its lurisdiction, sometimes de-
scriMd as its polloe power, and that in ex-
ercising that power u the particular cases
it did not violate the commerce dause of the
Federal Constitution hj improperly regulat-
ing or interfering with interstate commerce.
The extent of the right of the state to legis-
late was examined in these various cases — so
far, at least, as it was affected by the com-
merce dause of the Constitution ol the Unit-
ed States.
In lUinoU OentrtU B, Company v. lllinoU,
supra, the state statute imposed the duty
upon the company of stopping its fast mail
train at the station of Cairo, to do which the
train had to leave the through route at a
point three miles from that station and then
return to the same point in order to resume
its Journey. This statute was hdd to be an
unconstitutional interference with interstate
commerce and therefore void.
In Lake Shore d M, 8, B, Company v.
Ohio, eupra, a statute of the state of Ohio
required the company to stop certain of its
trains at stations containing 3,000 inhabit-
ants for a time sufficient to recdve and let
off passengers, and the statute was held to
be a valid exerdse of legidative power and
not an improper interference with interstate
commerce, in the course of the opinion of
the court, which was ddivered by Mr. Jus-
tice Harlan, it was said that ''the power,
whether called police, governmental, or les-
islative, exists m each state, by appropriate
enactments not forbidden by its own Consti-
tution or by the Constitution of the United
States, to regulate the relative rights and
duties of all persons and corporations within
its jurisdiction, and therefore to provide for
the public convenience and the public good.
This power in the states is entirdy distinct
from any power granted to the general gov-
ernment, although when exercised it may
(680]sometimes *reach subjects over which nation-
al leeialation can be constitutionally ex-
tendea." And again, speaking of cases in-
volving state regulations more or less affect-
ing interstate or foreini commerce, it was
said that these cases "were sustained upon
the ground that they were not directed
against nor were direct burdens upon inter-
state or foreign commerce; and having been
enacted only to protect the public safetv the
E' *ic health, or the public morals, and tiav-
% real, substantial relation to the public
intended to be accomplished thereby,
were not to be deemed absolutely forbidden
because of the mere grant of power to Con-
gress to regulate interstate ana foreign com-
merce, but to be regarded as onlv incidental-
ly affecting such commerce, and valid until
superseded by legislation of Congress on the
same subject."
The police power is a general term used to
express the particular right of a government
178 U. 8.
which is inherent in every sovereignty. As
stated bv Mr. Chief Justice Taney, in t^
course of his opinion in the lAcenee Caaea, 5
How. 504, 583 [12: 250, 29 IJ, in describing
the powers of a state: ''They are nothing
more nor less than the powers of government
inherent in every sovereignty to the extent of
its dominions. And whether a state passes
a quarantine law, or a law to punish offen-
ses, or to establish courts of justice, or re-
quiring certain instruments to be recorded,
or to regulate commerce within its own lim-
its, in every case it exercises the same power;
that is to say, the power of sovereiffnty, the
power to govern men and things wlthm the
limits of its dominion."
This power must, however, be exercised in
subordination to the provisions of the Fed-
eral Constitution. If, in the assumed exercise
of its police power, the legislature of a state
directly and plainly violates a provision of
the Constitution of the United States, such
legislation would be void.
The validity of this act is rested by the
counsel for the defendant in error upon the
proposition that the state legislature nas the
power of regulation over the corporation
created by it, and in cases of railroad corpo-
rations, the same power of regulation and
also full control over the subject of rates to
be charged by them as carriers for the trans-
portation of persons •and property. As8um-[690J
ing that the state is not controlled by con-
tract between itself and the railroad com-
pany, the question is, How far does the au-
thority of the legidature extend in a ease
where it has the power of regulation, and
also the right to amend, alter, or repeal the
charter of a company, together with a gen-
eral power to legislate upon the sublect of
rates and charges of all carriers? It has no
right even under such circumstances to take
away or destroy the property or annul the
contracts of a railroad company with third
persons. {Oreefitoood v. Union Freight R,
Company, 105 U. S. 13, 17 [26: 001, 904];
Commonwealth v. Eaeew Co, 13 Grsy, 239;
People V. 0*Brien, 11 N. Y. 1, 52 [2 L. R. A.
255]; Detroit v. Detroit d E, Plank Road
Company, 43 Mich. 140.)
A railroad company, although a quasi pub-
lic corporation, and althouffh it operates a
public nighway ( Cherokee aation v. South'
em Kanaae Railtoay Company, 135 U. S. 641
r34 : 295] ; Lake Shore d M. 8. Railway
Co. v.OWo, 173 U.S. 285. 301 [ante. 702], has
nevertheless rights which the legislature can-
not take away without a violation of the Fed-
eral C'Onstitution,as stated in Smyth Y.Amee
( 169 U. S. 466, 544 {42: 819, 848].) A cor-
poration is a person within the protection of
the Fourteenth Amendment. Minneapolie
d St, L. R. Co. V. Beokwith, 129 U. S. 26
[32: 585]; Smyth v. Amee, 169 U. S. 622,
526 [42:840.842]. Although it is under
governmental control, that oontrol must be
exercised with due regard to constitufUonal
guarantees for the protection of its property.
The question is presented in this case
whether the legislature of a state, having
power to fix maximum rates and charges
tor the transportation of persons and prop-
erty by railroad companies, with the limita-
861
990-698
SUPBEICE COUBT OF THE UlHTKO STAIK8.
Oct.
tions above stated, and having power to al*
tar, amend, or repeal their charters, within
certain limitations, haA also the right, after
having fixed a. maximum rate for the trans-
portation of passengers, to still further reg-
ulate their aiffairs and to discriminate and
make an exception in favor of certain per-
sons, and give to tliem a right of transporta-
tion for a less sum than the general rate
provided by law.
It is said that the power to create this ex-
eeption is included in the greater power to
fix rates generally; that having the right to
establish maximum rates, it therefore has
{Ml]power to *lower those rates, in certain cases
and in favor of certain individuals, while
maintaining them or permitting them to be
maintained at a higher rate in all other cas-
es. It is asserted also that this is only a
proper and reasonable regulation.
It does not seem to us that this claim la
well founded. We cannot regard this excep-
tional legislation as the exercise of a lesser
right which is included in the greater one
to fix by statute maximum rates for railroad
companies. The latter is a power to make
a general rule applicable in all cases and
wiuiout discrimination in favor of or against
any individuid. It is the power to declare
a general law upon the subject of rates be-
yond which the company cannot go, but with-
in which it is at liberty to conduct its work
in such a manner as may seem to it best
suited for its prosperity and success. This
is a very different power from that exercised
in the passage of this statute. The act is
not a general law upon the subject of rates,
establishing maximum rates which the com-
panjr can in no case violate. The legislature
having established such maximum as a gen-
eral law now assumes to interfere with the
management of the company while conduct-
ing its affairs pursuant to and obeying the
statute regulating rates and charges, and
notwithstanding such rates it assumes to
Jirovide for a discrimination, an exception in
avor of those who may desire and are able
to purchase tickets at what might be called
wholesale rates — a discrimination which oper-
ates in favor of the wholesale buyer, leav-
ing the others subject to the seneral rule.
And it assumes to regulate the tune in which
the tickets pvrchascS shall be valid and to
lengthen it to double the period the rail-
roa!d company has ever before provided. It
thus invades the general right of a ocnnpany
to conduct and manage its own affairs, and
compels it to give the use of its property for
less than the general rate to those who come
within the provisions of the statute, and to
that extent it would seem that the statute
takes the property of the ocnnpany without
due process of law. We speak of the general
right of the company to conduct and manage
its own affairs; but at the same time it Is
to be understood that the company is subieet
to the unquestioned jurisdiction of the leg-
[692]i8lature in the exercise of its power to * pro-
vide for the safety, the health, and the con-
venience of the public, and to prevent impcxyp-
er exactions or extortionate cnarges from be-
ing made by the company.
It is stated upon the part of the defend-
862
ant in error that the act is a
tion of the public business, whidi the
lature has a right to regulate, sad itsli^
parent object is to promote the eosvn*
of persons having occasion to travtd ca
roads and to rSuce for them the eait
transportation ; that its benefit to ths
who are compdled to patrodze railrat^ is
unquestioned; that it briagi the rtteba
of rates of two cents per mile witim Ue
reach of all persons who may have nemim
to make only infreauaat trips; sad tk^
there is no reason wny the kgidatot mtf
not fix the period of time within whiA tb
holder of the ticket shall be tamfdkd to
use it. The reduction of rates ia fsfv rf
those purchasing this kind of a
thus justified by the reasons statsd.
The right to claim from the
transportation at reduced rates bj
ing a certain amount of tickets is
a convenience. As so defined it woeU ki
more convenimt if the right eoeU k
claimed without any oompensatioa y^
ever. But such a right is not a cuanski
at all within the meaning of ths toa m
used in relation to the subject of fmiikiai
oonvenlencee to the public. And iko tk
convenience which the legislature if t» ptt-
tect is not the convenience of a smsll pvta
only of the persons who may tiavd as tk
road, while refusing sudi allcfed tmm
ience to all others, nor is the rignt to otea
tickets for less than the general sa4 ote^
wise lawful rate to be properly dBseriW m
a convenience. If that were true, tlit pt^
ing of the right to some portion of te fs^
lie to ride free on all trains aad at sfl taa
might be so described. What is esfvti hv
the word ''convenience," it might W aesl
for all cases, but we thiik itte
to define
not cover this case. An opportmitr ti P>^
chase a thousand-mile tidut for mi wa
the standard rate we think ii isFf^
described as a oonvenienee.
The power of the Ic^gialatore to mtA 9^
era! laws regarding *a eompany sal ifci*;!<
fairs does not include the power t» cnfa
it to make an exception in favor <dmm}^
ticular claaa in the community sad U oitt
the members of that daaa at a less i^ 1^
it has the right to charge for thost «te v*
not fortunate enough to be mitei tte»
of. This is not reasonable renlatifla Vi
do not deny the right of the letUstvito
make all proper rules and n^dstii ^
the general conduct of the affain of te i»
pany, relating to the running of trshajl
keeping of tidcet ofl&cea open and voviiif
for the proper aceommodatioa of tht psUt
Thisaet is not likeoneestabUshiaf <**^
hours in the day during whi^ trtai v
be run for a less charge than dv^*F^
other hours. In such case it ia tht tslsUi*'
ing of maximum rates of fare for tte «^
puolic during those hours, and it iii« *
discrimination in favor of oertaia psi""*?
which they can obtain lower rmtsi If }^
chasing a certain number of tSckHs if ^
son of which the company b cem^Ad *
carry them at the reduced rate, sa4 tte ^
substance, to part with its property u » )i*
sum than it would be otherwise cetJtN ••
IM.
Lamm Shobb & H. & R. Co. y. SMira.
698-696
ebftiga The power to compel the company
to Cftny penona under the circumstances as
prorided for in this act, lor less than the
usual rateSy does not seem to be based upon
any reason which has hitherto been regarded
SB sufficient to authorize an interference with
the corporation, although a common carrier
iDd a railroad.
The act also compels the company to carry,
noc only those who choose to purchase these
tickets, but their wives and children, and it
makes the tickets good for two years from
the time of the purchase. If the legislature
csn^ under the guise of regulation, provide
that these tickets shall be ffood for two years
why can it not provide that they shall be
good for five or ten or even a longer term of
years? It may be said that the regulation
most provide for a reasonable term. But
what is reasonable under these circum-
Btances? Ubbn what basis is the reasonable
character of the period to be judged? If
two years would and five vears would not be
reasonable, why not? And if five years
would be reasonable, why would not ten? If
]the power exist at all, what are the * factors
which make it unreasonable to say that the
tickets shall be valid for five or for ten
years? It may be said that circumstances
can change within that time. That is true,
but circumstances may change within two
just as well aa within five or ten years. There
u no particular time in reeard to which it
may be said in advance and as a legal con-
clusion that circumstances will not chance.
Ana can the validity of the regulation oe
made to depend upon what may happen in
the future, during the running of the time
in which the legislature has decreed the com-
paoy shall carry the purchaser of the ticket?
Begulations for maximum rates for present
transportation of persons or property bear
DO resemblance to thoee which assume to
provide for the purchase of tickets in quan-
tities at a lower than the general rate, and
to provide that they shall be good for years
to come. This is not fixing maximum rates,
nor is it proper r^^lation. It is an il-
legal and unjustifiable interference with the
rights of the company.
If this power exist it must include the
right of the Imslature, after establishing
maximum freight rates, to also direct the
company to charge less for carrying freight
^here the party offering it sends a certain
amount, and to carry it at that rate for the
next two or five or ten years. Is that an ex-
ercise of the power to establish maximum
freight rates? Is it a valid exercise of the
power to reeulate the affairs of a corpora-
tion? The legislature would thus permit
not only discriminaticm in favor of the larger
freighter as against the smaller one, but it
would compel it. If the general power ex-
ist, then the legislature can direct the com-
panv to charge smaller rates for clergymen
or doctors, for lawyers or farmers or school
teachers, for excursions, for church conven-
tions, political conventions, or for all or any
of the various bodies that might desire to
ride at any particular time or to any par-
ticular place.
If the legislature can interfere by direct-
X78 U. S.
ing the sale of tickets at less than the gen-
erally established rate, it can compel tiie
cctmpany to carrjr certain persons or classes
free. If the maximum rat^ are too Mffh in
the judgment of the legislature, it may lower
them, provided thev do not make them im-
reasonably low as that term is understood in
the law;* but it cannot enact a law making [60^
maximum rates, and then proceed to make
exceptions to it in favor of such persons or
classes as in the legislative judgment or
caprice may seem proper. What right haa
the legislature to take from the company the
compensation it would otherwise receive for
the use of its property in transporting an
individual or classes of persons over its road,
an^ compel it to transport them free or for
a less sum than is provided for by the gen-
eral law? Does not such an act, if enforced,
take the property of the company without
due process of law? We are convinced that
the legislature cannot thus interfere with
the conduct of the affairs of corporations.
But it may be said that as the legislature
would have the power to reduce the maxi-
mum charges for all, to the same rate at
which . it provides for the purchase of the
thousand-mile ticket, the company cannot be
harmed or its property taken without due
Srocess of law when the legislature only re-
uces the rates in favor of a few instead of
in favor of all. It does not appear that the
legislature would have any right to make
such an alteration. To do so might involve
a reduction of rates to a point insufficient for
the earning of the amount of remuneration
to which a company is legally entitled under
the decisions of this ooui^ In that case re-
duction would be illegal. For the purpose
of upholding this discriminatory legislation
we are not to assume that the exercise of the
power of the legislature to make in this
instance a reduction of rates as to all would
he legal, and therefore a partial reduction
must be also legal. Prima facie, the maxi-
mum rates as fixed by the legislature are
reasonable. This of course applies to rates
octually fixed by that body.
There is no presumption, however, that
r^rtain named rates which it is said the leg-
islature might fix but which it has not,
would, in case it did so fix them, be rea-
sonable and valid. That it has not so fixed
them affords a presumption that they would
be invalid, and that presumption would re-
main until the legislature actually enacted
the reduction. At any rate, there is no
foundation for a presumption of validity
in case it did so enact, in order to base
the argument that a partial * reduction, by [696]
means of this discrimination, is therefore
also valid. And this argument also loses
sight of the distinction we made above
between the two cases of a general estab-
lishment of maximum rates and the enact-
ment of discriminatory, exceptional, and par-
tial legislation upon the subject of the
sale of tickets to individuals willing and
able to purchase a quantity at any one time.
The latter is not an exercise of the power to
establish maximum rates.
True it is that the railroad company exer-
cises a public franchise and that its occupa-
863
«9a-69tf
Supreme Court of the United States.
Oct.TuM.
tion is of a public nature, and the public
therefore has a certain interest in and rights
<K>nnected with the property, as was held in
Munn V. IlHnoia, 94 U. S. 126 [24: 84], and
the other kindred cases. The legislature has
the power to secure to the public the services
of the corporation for reasonable compensa-
tion, so that the public shall be exempted
from unreasonable exactions, and it has also
the authority to pass such laws as shall tend
to secure the safety, convenience, comfort,
snd^ealth of its patrons and of the public
with regard to the railroad. But in all this
we find it neither necessary nor appropriate,
in order that the legislature may exercise
its full right over these corporations, to
make such a regulation as this, which dis-
criminates against it and in favor of certain
individuals, without any reasonable basis
therefor, and which is not the fixing of maxi-
mum rates or the exercise of any such power.
The le^slature having fixed a maximum
rate at ymaX must be presumed, prima facie,
to be also a reasonable rate, we think the
•company then has the right to insist that
M persons shall be compelled to pav alike,
that no discrimination against it in favor of
oertain classes of married men or families,
excursionists or others, shall be made by the
legislature. If otherwise, then the company
is compelled at the caprice or whim of the
legislature to make such exceptions as it
may think proper and to carry the excepted
persons at lees than the usual and le|^
rates, and thus to part in their favor with
its property without that compensation to
which it 18 entitled from all others, and
therefore to part with its proper^ without
due process of law. The affairs of the oom-
f697]pany are *in this way taken out of its own
management, not by any general law appli-
cable to all, but by a discrimination made
by law to which the company is made sub-
ject. Whether an act of this nature shall
be passed or not, is not a matter of policy
to he decided by the legislature. It is a mat-
ter* of ri^ht of the company to carry on and
loanage its concerns subject to the general
law applicable to all, which the legislature
mav enact in the legal exercise of its power
to legislate in regard to persons and things
within its jurisdiction.
This case differs from that which has just
been decided, Lake Shore d If. 8. R. Com'
pany v. Ohio, 173 U. S. 285 [wiUe, 702]. In
that case the convenience of the public in
the state was the basis of the decision, re-
;gard being also had to the convenience of the
f.ublic outside of and beyond the state. It
included all the public who desired to ride
from the stations provided for in the act, and
the convenience to the people in taking a
train at these stations was held by this court
to be. so substantial as to justify the enact-
ment in question.
But in this case it is not a question of con-
venience at all within the proper meaning of
thai term. Aside from the rate at which the
ticket may be purchased, the convenience of
purchasing this kind of a ticket is so small
that the right to enact the law cannot be
founded upon it. It is no answer to the ob-
jection to this legislation to say that the
864
company has voluntarily sold thonnai-aik
tickets ffood for a year from the tiae ci
their sale. What the ccmipany may cboosc
voluntarily to do furnishes no eriteriai for
the measurement of the power of t kgisla-
turo. Persons may voluntarily eoatisct ts
do what no legislature would usve the ri^ht
to compel them to do. Nor does it UnaA
a standard bv which to meaaore the reuoa-
ableness of the matter exacted hj the k^
lature. The action of the company vpa iti
own volition, purely as a matter of iatcnilsA'
ministration, and in regard to the detiik rf
its business which it hM the right to dftifi
8t anj[ moment, furnishes no aif^omeit far
the existence of a power in a legislatare ti
pass a statute in mation to the laae Ym-
ness imposing additional burdcu vpei th
company.
To sav that the legislature has pow b
sbsolutdy repeal *the diarter of the wm^
pany, ana thus to terminate its legtl ai»>
ence, does not answer the obieelioB that tkii
particular exercise of legislative pow ii
neither necessary nor appropriate to esn;
into executicm any valia power of the itiA
over the conduct of the buaisMss of its em-
ture. To terminate the diarter and th« «i
the leg^al life of the company does not tifer
away its property, but, on the eoatni?,
leaves it all to the shareholders of the e»
pany after the paymoit of its det^
In Attorney General v. Old Colcm§ AiA-
road Co. 160 Mass. 62 [22 L. R. A. lULlhi
statute required every railroad eorpontia
in the commonwealth to have on Mk ovtni
tickets which should be received for fut «
all railroad lines in the oommooweelth, cfc.
and the statute waa hdd invalid. TW p»
cise question involved in this eaae m i«
there presented, and the court said it «m i'
necessary or practicable to attempt to 4rtr
mine in that case just how far the kpi»
ture oould ffo by way of r^gulatiic thtje»
ness of raHroad companies, or ^st «h«i
were the limits of its power.
The power to enact l^sUtioa of thii cfer^
acter cannot be founded upon the men brt
that the thing affected is a corporatiaik «*
when the legislature has power ie t^
amend, or repeal the charter tbcreoL 1^
power to alter or amend does not aa^ >
the taking of the property of the eonenu*
either by confiscation or indirectly ty <>>
means. The authority to legislate is r^^
to rates comes from the power to prevst 0-
tortion or unreasonable charges or
by common carriers or others
callinfr and usins their property is a
in which the public have an interert.
In this case there is not an exerciie ^ tk
power to fix maximum rates. There » i*
the exercise of the adcnowledged po** *
legislate so as to prevent extoruoa or ss**
sonable or illegal exactions. The ftxisf >
the maximum rate does not It ^ * P*'^
bald, and unmixed power of di»eri«»si»«
in favor of a few of the persons ^'^"M^
casion to travel on the road and H**jJ|]]y
them to do so at a less expense thsa ^^^
provided they buy a certain number if trf
ets at one time. It is not legiaUtioa •* ^\^
•safety, health, or prop^ mnrtu^et ef **^
1888.
Capital TBAcnoH Oa t. floF.
5-8
U. a 540, 580 [82: 223, 226] ; Thomp9im T.
Utah (1808) 170 U. & 343 [42: 1061].
The dadsioii of this ease mainly iomt up-
on the ioope end effect of the Seventh
Amendment of the Constitution of the
United States. It mav therefore be oonTsn-
ienty before particularly examining the acts
[6] of Congress now in question, to *raer to the
. circumstances preceding and attrading the
adoption of this Amencunent, to the contem-
poraneous nnderstandinff of its terms, and
to the subsequent judicial interpretation
thereof, as aids in ascertaininff its true
meaning, and its application to tne ease at
bar.
11. The first Continental Congress, in the
Declaration of Rights adopted October 14,
1774, unanimously resolved that "the re-
spective Colonies are entitled to the common
law of England, and more especially to the
ffreat and inestimable privilege of being tried
by their peers of the vicinage, according to
the course of that law.'' 1 Journals of Con-
gress, 28.
The Ordinance of 1787 declared that the
inhabitants of the Northwest Territory
should "always be entitled to the benefits of
the writ of habeas corpus, and of the trial l^
iury," "and of judicial proceedings accord-
ing to the course of the common law.** 1
Charters and Constitutions, 431.
The Constitution of the United States, as
originally adopted, merely provide4 in article
3, section 3, that "the trial of all crimes, ex-
cept in cases of impeachment, shall be by
jury." In the Convention which framed the
Constitution, a motion to add this clause,
"and a trial by jury shall be preserved as
usual in civil cases," was opposed by Mr.
Gorham of Massachusetts, on the ground
that "the constitution of juries is different
in different states, and the trial itself is
usual in different cases, in different states;"
and was unanimously rejected. 5 Elliott's
Debates, 560.
Mr. Hamilton, in number 81 of the Feder-
alist, when discussing the clause of the Con-
stitution which confers upon this court "ap-
pellate jurisdiction, both as to law and fact,
with such exceptions and under such regula-
tions as the Congress shall make," and again,
in more detail, m number 83, when answer-
ing the objection to the want of any provi-
sion securing trial bv jury in civil actions,
stated the diversity then existing in the laws
of the different states rmrding appeals and
jury trials; and especially pointed out that
in the New England statee, and in those
•kme, appeals were allowed, as of course,
from one jury to another until there had
beeo two Terdiots on one side, and in no
£7] other state but Georgia was there any *ap-
peal from one to another junr. The diver-
f^itv fai the laws of the several states, he in-
sisted, "shows the impropriety of a technical
definition derived from the jurisprudence of
anv particular state," and "that no general
rule could have been fixed upon by the Con-
vention which would have corresponded with
the <dronmstanoee of all the states." And
he suffgested that "the legislature of the
United States would oerwnlv have fuU
5ower to provide that in appeals to the su-
7ft V. ft.
preme court there should be no re-examinap
lion of facte where the^ had been tried la
the original causes by juries;" but if this
"should be thought too extensive, it might be
qualified with a limitation to such causes
only as are determinable at common law in
that mode of trial." 2 Federalist (ed.
1788) pp. 819-821, 335, 336.
At tne first session of the first Congress
under the Constitution, Mr. Madison, in the
House of Representatives, on June 8, 1789,
submitted propoeitions to amend the Consti-
tution bv adding, to the dause concerning
the appellate jurisdiction of this court, the
words, "nor shall any fact, triaUe by a jury,
according to the course of the common law,
be otherwise re-examinable than according
to the principles of the common law;" and,
to the clause concerning trial hv jui^, these
vords: "In suits at common law, between
man and man, the trial by jury, as one of
the best securities to the rights of the peo-
ple, ought to remain inviolate." 1 Annals
of Congress, 424, 436. And those proposi-
tions, somewhat altered in form, were em-
bodied in a single article, which was pro*
posed by Congress on September 25, 1789,
to the legislatures of the several states, and
upon beinff duly ratified by them, became
the Seventh Amendment to the Constitution,
in these words: "In suits at common law,
where the value in controversy shall exceed
twenty dollars, the right of trial bv jury
shall be preserved; and no fact tried by a
jury shall be otherwise re-examined, in any
court of the United States, than according
to the rules of the common law."
A comparison of the language of the
Seventh ionendment, as finally miule part of
the Constitution of the United Statee, witli
the Declaration of Rights of 1774, with t^io
Ordinance *of 1787, with the essays of Mr. [8]
Hamilton in 1788, and with the amendments
introduced by Mr. Madison in Congress in
1789, strongq^ tends to the conclusion that
the Seventh Amendment, in declaring that
"no fact tried by a jury shall be otherwise
re-examined, in any court of the United
States, than according to the rules of the
common law," had in view the rules of the
common law of England, and not the rules
of that law as mo£fied by local statute or
usaffe in any of the states.
This conclusion has been established, and
"the rules of the common law" in this re-
spect clearly stated and defined, by judicial
decisions.
In United States v. Wanson (1812) 1
Gall. 5, a verdict and judgment for the de-
fendant haviiiff been rendered in the district
court of the l^ited States for the district of
Massachusetts in an action of debt for a
penalty, the United Statee appealed to the
circuit court, and were held not to be enti-
tled to try by a new jury in that court facts
which had been tried and determined by the
jurv in^e court below. "We should search
In vain," said Mr. Justice Story, "in the
common law, for an instance of an appellate
court retrying the cause by a jury, wnile the
former verdlet and judgment remained in
full force. The practice indeed seems to be
a peculiarity of New England, and, if I am
87»
CASES
AHaUBD AND DECIDED
SUPEEME COURT
OV TBM
UNITED STATES
A*
OOTOBEB TEBM, 1898.
yoLiT^
i
' . =^jl.'.«
THE DECISIONS
f/ir ms
Supreme Court of the United States
Aft
OCTOBER TERM, 1898.
Iitka.tlc.ted COPT Of opinlanreeoj; S5^^J,o2il^mrS?efi.r '' ~^ "''""^ "''"• "^
iFHAL TRACTION COMPANY, FIff. iti
JBfT.,
v.
CHARLES HOF.
(See S. C. Eeporter'B ed. 1-46.)
wriadioiion of thit ooiift— trial hy fury—
friai before juaiioe of the peace and a p*ry,
not a trial hy jury within the constitution'
•I proviaUnyiohen trial hy jury in ap-
peUate court aatiafiea constitutional rtght
•f trial hy /ury— r«-eawim»na*ion of the
faote— enlarging jurisdiction of justices
^ the peace.
Thle oonrt haa Jnriadlctlon of a writ of ei^
tor to tbe court of appeals of the District of
Oolwnbla, to rerlew Ita decision aa to the
taUdlty and effect of the legislation of Con-
Cieaa conferring upon justices of the peace In
ttat District jurisdiction In civil *ct>on« In
Vhlch the matter In dlapnte exceeda |20
In Talne, and providing for a trial bj jury be-
te« the justice, an appeal to the snpreine
«mrt of the District, and a trial by jnry In
Hie appellate court, at the request of eltiier
farty.
Trial by jury under the Constitution meana
A trial by a jury of twelve men In the pres-
ence and under the superintendence of a judge
Ampowered to Instruct them on the law, and
to Advise them on the facta, and (except on
acquittal of a criminal charge) to set aside
their verdict It In his opinion. It Is against
tiiA law or t^e evidence.
♦ / trial by a jury of twelve men before a
Sice of the peace, having been unknown In
^and or America before the Declaration of
lai ependence, la not a trial by jury within the
AM inlng of U. 8. Const 7th Amend.
, i common-law trial by jury In a court of
t%t 9rd upon appeal from a judgment of a
jni tice of the peace In a civil action, after
gli Uig bond with surety to prosecute the ap-
pe 1 and to abide the judgment of the appel-
lai t court. Is sufficient to satisfy the constl-
tn onal ri^t of trial by jury.
% * he constitutional provision, that no fact
tri 4 by jury ahall be otherwise re-ezamlned
\Vt4 V. M.
In any court of the United States than a»
cording to the rules of common law Is not
violated by allowing an appeal, for trial by
a common-law jury, from the judgment on
the verdict of a jury of twelve men In a
court of a justice of the peace, aa that Ia
not a common-law jury.
6. The right of trial by jury la not unduly ob-
structed by enlarging the civil jurisdiction of
justices of the peace to $800, and requiring
every appellant to give security to pay and
satisfy the judgment of the appellate court
In order to obtain a trial by a common-law
jury on appeaL
[Na 108.]
Argued January 6, 6, 1899. Decided AprU
11, 1899.
IN ERROR to thA Court of Appeals of the
District of ColmnbiA to review a judg-
ment of that court reversing An order of the
Supreme Court of the District And remand-
ing the case with directions to quAsh a writ
of certiorari to a justice of the peAce to pre-
vent A civil Action to recover dAmAges in the
sum of $300 from being tried by a jury be-
fore him. Affirmed.
See 8Ame CAse below, 24 WAsh. L. Rep. 64t
And 10 App. D. C. 205.
The fActs Are stAted in the opinion.
Mr. B. Ross Perry for plAintiff in error.
Mr. Alexander Wolf for defendAnt in
error.
*Mr. Justioe Ormy deUvered the opinion of [9]
the court; , ^
On September 8, 1806, the CapitAl Ttac-
tion Company, a street-rAilwAy corporation
in the District of ColumbiA, presented to. the
supreme court of the District a petition for
a writ of certiorari to a justice of the peace
to prevent a civil •action to recover damages [SJ
In the sum of $300 from being tried by a
jury before him.
The petition for a writ of certiorari al-
lied that Charles Hof, on August 17, 1896,
caused a summons to be issued by Lewi« T.
873
S-5
Supreme Coubt or the Uitited States.
Oct.
OT^eal, Esquire, one of the justices of the
petoe in and for the District of Columbia,
■umincming the Capital Traction Company
to appear before him on August 20, 1896, 'Ho
answer unto the complaint of Charles Hof in
a plea of damage of $300,^ and the matter
was postponed imtil September 8, on which
day, tdter the company had put in its plea,
and issue had been joined thereon, the attor-
aey for Hof demanded of the justice of the
peace that the action should be tried by a
tury, and thereupon the justice of the peace
Issued a venire to a constable, commanding
fcim to summon twelve jurors to appear be-
fore said justice on September 10; that the
petitioner was advised that such a demand
for the so-ealled jury was founded upon sec-
tions 1009-1016 of the Revised Statutes of
the District of Columbia, and wajs intended
to subject the petitioner, without appeal, to
a form of trial before a justice of the peace,
unknown to the common law, and, as the pe-
titioner was advised, illegal and unconstitu-
tional ; that the petitioner was informed and
believed that Hofs claim was for damages
austained by him through its n^ligence,
while he was a passenger on one of its cars ;
and that it had a good defense on the merits
to his daim, and sought a fair opportunity
to make such defense before an impartiiu
tribunal, and was ready and wiUinff to give
any security that might be required for the
prompt payment of any final jud^ent
whidi might be pronounced against it m due
eourse of law.
The petition further averred that the only
method in which Hof 's claim against the pe-
titioner could be tried by a jury according
to the common law and the ConsUtution was
by removing his suit from the justice of the
peace into uie supreme court of the District
of Columbia; that if this was not done, the
petitioner would be deprived of its constitu-
tional right to a trial by jury, and would be
in danger of being deprived of its property
|4] without due process of law, and would*be de-
nied the equal protection of the laws; and
that the amount claimed by Hof was within
thejurisdiction of that court.
Wherefore the petitioner prayed that a
writ of certiorari might be issuea to the jus-
tice of Uie peace to remove Hof's claim into
that court for trial according to the course
•f the eommon law, upon such terms as to
security for costs and damages as the court
Might think proper ; and for such other and
further relief as the petitioner might be en-
tiUedto.
The supreme court of the District of Co-
lombia granted a writ of certiorari to the
Stice of the peace, as prayed for; and the
ties of the peace, in his return thereto,
•et forth the proceedings before him in the
action of Hof i^gainst the Capital Traction
Company, showing the issue and return of
the summons to the defendant, its oral plea
of not guilty, Uie plaintiff's joinder of issue
and demand of a jury, and the staj of fur-
ther proceedings by the writ of certiorari.
On October 6, 1896, the supreme court of
the District of Columbia overruled a motion
of Hof to quash the writ of certiorari ; and
entered an order quashing all proceedings
before the justice of the
joined. 24 Wash. L. B^ 64C Hof s^
pealed to the court of appeals of te IKitnei
of Columbia, which on Fd>raaiy 17, IM?, it-
versed that order, and irmsiiiM ftt cmi
with directions to quash the writ if ov-
tiorari. 10 App. D. C. 205. The Gsyiul
Traction Company thereupon snei oit &
writ of error mmi this eomrt, under tibe set
of February 9, 1893, chap. 74, i 8. 27 Stat
at L. 436.
The petition for a writ of ccrtiorsri ^
sents lor determination a serious sad m-
portant question of the validity, sa vtll i«
the interpretation an«l effect, of the kgi^
tion of Congress conferring upon jaatiea d
the peace in the District of CMombis jwm-
diction in civil actions in which the Bsttr
in dispute exceeds twenty dollan ia vite.
and providing for a trial by a jvv Men
the justice of the peace, an appeal troB kii
judgment to the supreme court of the Dv^
trict of ColumbiA, and a trial by jvy, it tW
rec^uest of either party, in the appelkte enn
This court, therefore, has jurisdietioa d tk
writ of error. Baltimore d Potoaar Bti-
road Co, v. Hopk-ime, 130 U. S. 210, 134 rs
908, 913] ; •Parsons v. Dietriet of QpIibN ;■
170U. S. 45 [42:943J. ^
The court of apnjMls i
maintaining the validity of the
locking to a trial by a jury before tW ;
tice of the peace. But there was s "
of opinion between the two assoeia)
and the chief justice upon the
whether such a trial before the justiee if tb
peace would be a trial by jury aceorjfiif k
the common law and the Coii8tititi«. ■
well as upon the question whether tht tml
by jury, allowed by Congress in the iipi«i
court of the district, upon appeal ttm tkt
judgment of the justice of the peaet, sad ^
on the condition of giving bond to pay a>
final iudgment of the ap^late eovt ■!»
fied tne requirements of tne Comtitatiaa
I. The Congress of the United Stata. k»
ing empowered by the Constitution *% tv^
cise exclusive legislation in all eum e^
soever" over the seat of the natioaal f««if»
ment, has the entire control over the Diitnrt
of Columbia for every purpoea ef
ment, national or load. It may
within the District aU l^isUtivt
that the legislature of a state might
within the state; and may vest vd ^
tribute the judicial authority in and m^
courts and magistrates, and rcgulatt jaW
proceedings before them, as it may tUik ft
so long as it does not eootrav««e ^J"^
sion of the Constituticoi of the Uaitai sMa
KendaU ▼. United States [6tekss] |U«
12 Pet. 524, 619 [9: 1181, 1218]; Mst^m
▼. District of C'tlutnhia ( 1878) 97 U. & «f
690 [24: 1098, 1100] ; Oihhems v. Dwirirt tf
Columbia (1886) 116 U. a 40i «>7 !*
680, 681].
It is bevond doubt, at the piaaaat iiy. ^
the provisions of the ConstitstieB «f ^
United States securing the richt cf tral
by jury, whether in civil or in cnBiail amk
are api licuble to the District of OJ— ^
Wehstcr V. licid ilBrO) 11 Ho«. OT, •»
[13: 7l>I. 770] ;f;o//fln v. Wilsem t\f» 'f
174 C 1
18M.
Capital Tractioh Ca t. Hot.
5-6
U. & MO, 550 [82: 223, 226] ; Thampaon ▼.
Vtah (1808) 170 U. 6. 343 [42: 1061].
TIm dadsioii of this ease mainly turns up-
on the teope and effect of tne Seventh
Amendment of the Constitution of the
United States. It majr therefore be oonTen-
lent, before particularly examining the acts
ci Congress now in question, to *raer to the
drcumstanoes preceding and attmiding the
adoption of this Amen<Snent, to the contem-
poraneous understandinff of its terms, and
to the subsequent judicial interpretation
thereof, as aids in ascertaininff its true
meaning, and its application to the case at
bar.
n. The first Continental Congress, in the
Declaration of Rights adopted October 14,
1774, unanimously resolved that "the re-
spective Colonies are entitled to the common
law of Enj^land. and more especially to the
peat and inestimable privilege of beixiff tried
by their peers of the vicinage, accor£iig to
the course of that law." 1 Journals of Con-
gress, 28.
The Ordinance of 1787 declared that the
inhabitants of the Northwest Territory
should ''always be entitled to the benefits of
the writ of habeas corpus, and of the trial by
jury," "and of judicial proceedings accord-
ing to the course of the common law." 1
Carters and Constitutions, 431.
The Constitution of the United States, as
originally adopted, merely provide4 in article
S, section 3, ti^t "the trial of all crimes, ex-
cept in cases of impeachment, shall be by
jury." In the Convention which framed the
Constitution, a motion to add this clause,
"and a trial by jury shall be preserved as
usual in civil cases," was opposed by Mr.
Qorham of Massachusetts, on the ground
that "the constitution of juries is different
in different states, and the trial itself is
usual in different cases, in different states;"
and was unanimously rejected. 5 EUiott's
Debates, 550.
Mr. Hamilton, in number 81 of the Feder-
alist, when discussing the clause of the Con-
stitution which confers upon this court "ap-
pellate jurisdiction, both as to law and fact,
with such exceptions and under such regula-
tions as the Conferees shall make," and again,
in more detail, m number 83, when answer-
ing the obpection to the want of any provi-
sion securu^ trial bv jury in civil actions,
stated the diversity then existing in the laws
of the different states r^^arding appeals and
£ry trials; and especiuly pointed out that
the New England states, and in those
alone, appeals were allowed, as of course,
from one Jury to another until there had
been two verdicts on one side, and in no
I other state but Georgia was there any *ap-
peal from one to another jurv. The diver-
Hty in the laws of the several states, he in-
sisted, ''shows the impropriety of a technical
definition derived from the jurisprudence of
tnv particular state," and "that no general
rule could have been fixed upon by the Con-
tention which would have corresponded with
the drcumstanoes of all the states." And
lie suflgestei that "the legislature of the
Unitea States would oertoinly have full
power to provide that in appeals to the sa-
17* V. £
preme court there should be no re-examina>
lion of facts where th^ had been tried la
the original causes by juries;" but if this
"should be thought too extensive, it might be
qualified with a limitation to such causes
only as are determinable at common law in
that mode of trial." 2 Federalist (ed.
1788) pp. 810-821, 335, 336.
At tne first session of the first Congress
under the Constitution, Mr. Madison, in the
House of Representatives, on June 8, 1789,
submitted propoeitions to amend the Consti-
tution by adding, to the clause concerning
the appellate jurisdiction of this court, the
words, "nor shall any fact, triable by a jury,
according to the course of the common law,
be otherwise re-examiniU>le than according
to the principles of the common law;" ani^
to the clause concerning trial bv jurr, these
>^ords: "In suits at common law, between
man and man, the trial by jury, as one of
the best securities to the rights of the peo-
ple, ought to remain inviolate." 1 Annals
of Congress, 424, 435. And those proposi-
tions, somewhat altered in form, were em-
bodied in a single article, which was pro-
posed by Congress on September 25, 1780,
to the l^islatures of the several states, and
upon beinff duly ratified by them, became
the Seventh Amendment to uie Constitution,
in these words: "In suits at common law,
where the value in controversy shall exceed
twenty dollars, the right of trial bv jury
shall be preserved; and no fact tried by a
jury shall be otherwise re-examined, in any
court of the United States, than according
to the rules of the common law."
A comparison of the language of the
Seventh Amendment, as finally made part of
the Constitution of the United States, wit^i
the Declaration of Rights of 1774, with tl'ie
Ordinance *of 1787, with the essays of Mr. [8]
Hamilton in 1788, and with the amendments
introduced hj Mr. Madison in Confess in
1789, strong^ tends to the conclusion that
the Seventh Amendment, in declaring that
"no fact tried by a jury shall be otherwise
re-examined, in any court of the United
States, than according to the rules of the
common law," had in view the rules of the
common law of England, and not the rules
of that law as modified by local statute or
us^^ in anv of the states.
Tnis conclusion has been established, and
"the rules of the common law" in this re-
spect clearly stated and defined, by judicial
decisions.
In United States v. Woneon (1812) 1
Gall. 5, a verdict and judgment for the de-
fendant having been rendered in the district
court of the United States for the district of
Massachusetts in an action of debt for a
penalty, the United States appealed to the
circuit court, and were held not to be enti-
tled to try by a new jury in that court facts
which had been tried and determined by the
jury in the court below. "We should search
in vain," said Mr. Justice Story, "in the
common law, for an instance of an anpellate
court retryi^ the cause by a jury, while the
former verdict and judgment remained in
full force. The practice indeed seems to be
a peculiarity of New England, and, if I am
8T8
8-11
SuFBEMB Court or the United States.
Oct.
not misinformed, does not exist in more than
one (if any) other state in the Union."
And, after quoting the words of the Seventh
Amendment, he observed : "Beyond all ques-
tion, the common law here alluded to is not
the common law of any individual state (for
it probably differs in all) , but it is the com-
mon law of England, the grand reservoir of
all our jurisprudence." "Now, according to
the rules of the common law, the facts once
tried by a ju^ are never re-examined, unlees
a new trial is granted in the discretion of
the court, before which the suit is depend-
ing, for good cause shown; or unlees the
judj^ent of such court is reversed by a su-
perior tribunal, on a writ of error, and a
venire facias de novo is awarded. This is
the invariable usage, settled by the decisions
of ages." 16aliri4, 20.
In Pareone v. Bedford (1830) 8 Pet 488
[7: 732], this court, on writ ol error to a
lower court of the United States, hdd that
[9]*it had no power to re-examine facts Uied by
a jury in the court below, altiiough that
court was held in TiOiiiwiana, where i^ngrees
had enacted that the mode of proceMing
should conform to the laws directing the
mode of practice in the district courts of the
state, and a statute of the state authorized
its supreme court to try anew on appeal
facts tried by a jury in a district court.
Mr. Justice Story, in delivering the judf-
ment of this court, expounding the SevenUi
Amendment to the Constitution, after show-
ing that in the first clause the words "suits
at common law" were used in contradistinc-
tion to suits in equity and in admiralty, and
included "not merely suits which the com-
mon law recognized among its old and set-
tled proceedings," but all suits in which legal
rights, and not equitable rights, were ascer-
tained and determined, proceiBded as follows:
*^ut the other clause of the Amendment is
•till more important; and we read it as a
substantial and independent dause. 'No
fact tried by a jury shall be otherwise re-ex-
amined, in any court of the United States,
than according to the rules of the common
law.' This is a prc^bition to the courts of
the United States to re-examine any facts,
tried by a jury, in any other manner. The
only modes known to uie common law to re-
examine such facts are the granting of a
mrw trial by the court where Uie issue was
tried, or to which the record was properly
returnable; or the award of e, venire fao%a9de
fMMH), by an api)ellate court, for some error
ei law which intervened in the proceed-
ings." 3 Pet. 446-^8 [7 : 736, 737].
This last statement has been often reaf-
firmed by this court. Barreda v. StUhee
(1858) 21 How. 146, 166 [16: 86, 93]; Jue-
ticee T. Murray (1869) 9 WaU. 274, 277
[19: 658,660]; MiUer v. Brooklyn Life In-
eurance Co. (1870) 12 Wall. 285, 300
[20: 398, 401] ; Kniekerhocker Insurance Co,
T. Comstock (1872) 16 Wall. 258, 269
[21 : 493, 498] ; Mercantile Mui. Insurance
Co. V. PoUom (1873) 18 Wall. 237, 249
[21 : 827, 833] ; New York C. d H. R. R. Co.
V. Fraloff (1879) 100 U. S. 24, 31 [25: 531-
535]; Lincoln v. Povoer (1894) 151 U. S.
436, 438 [38 : 224, 225] ; Chicago, BurUng-
876
of tkt
ton d Quincy Railroad Co. v. Chieego (WT)
166 U. S. 226, 246 [41: 979, 988].
The judiciary act of 8q>tember 24, 17W,
chap. 20, drawn by Senator (afttrvuds
Chief Justice) Iflliiwiii Ih. imliissiul ■ilVia
six months after the organizataoa ef the fiv-
. eminent under the ConstitutioB, and m the
day before the first ten •Amendmnrti «er«[1
proposed to the legislatures <rf the
by the First CongMS, in which
eminent men who had been m
convention which formed the
has alw«ys been eonsidered ae a
neous exposition of the highest
Cohens t. Virginia (1821) 6 Wheat 2H,4ti
[5:257, 295]; Parsons v. Bedford,
cited; JSSrs y. Preston (1884) inU.&
256 [28: 419, 420] ; Amm ▼. Kmmsm [/i
ton] (1884) 111 U. & 449, 46S, 4M
[28: 482, 488] ; Wisconsin t. POicm /m. Oh
(1888) 127 U. 8. 265, 207 [32:239, Uf].
That act provided, in H 9 and 12, thst tkt
trial of issues of fact, hi a district or drak
court, in all suits, escept those of eqaity m
admiralty jurisdictkm, should be by jvy;
in i 18. that the trial of issues of fsct ia tkit
court, in the exercise of its original jviiiie
tion in all actions at law against dtixsi ^
the United States, should be liy jury; ia I IT.
that "aU the said eourts of the U^ri
States" should "have power to frtat wts
trials, in cases where there has ben a
by jury,* for reasons for which
have usually been granted in the eoarti d
law;" anduiff22and24, thatiMljeir
ments of the district eourt miffht be ici*si<
by the circuit court, and fimu judnaiti d
the circuit court be reviewed 1^ this eosil
upon writ of error, for errors in law, bet wd
for any error in fact. 1 Stat, at !«. 77, tt»
81, 83, 84. Those provisions, so far si if
eards actions at law, have since rcnaiMd u
force, almost uninterruptedly ; and ikef hm
been re-enacted in the Revised Stateta, d-
lowing the parties, however, to waive s i«7
and luive their ease tried by the eonrt w*-
Stat if 566, 633, 648, 689, 691, 786, mt
The only instances that have eoae t» em
notice, in which Congress has mdertste »
authorize a second trial by jury to be M ■
a court of the United States, while the ^
diet of a jury upon a former trial is s nmi
of record has not been set aside, art te hi
found in two temporary acts paaied 4nf
the last war with Great Britsin, sad is ■
act passed during the War of the BdM*
and continued in foroe for a short tiatsAr
wards, each of which provided that e«t»
actions brought in a state eovrt agaiMi d-
ficers or persons acting under the siUMrirr
of the United States might, afto* §ml jsif
ment, be removed by appeu or writ ef snm J
to the* drcuit court of the United 8tam.^
and that court should "Hhereiipon vnemi ti
try and determine the facts and tiM Isv ■
such action in the same manner ss if l^
same had been there originally eammmtt^
the judgment in such ease notwithstsattv
Aoto of February 4. 1815, chap. 31. Ill U*
and March 3, 1815, diap. 94, U 6, 8: 1 fta^*
at L. 199, 200, 234, 235; Aet of Msn^ ^
1863, chap. 81, i 5; 12 Stat at L. TS7; A^
of May 11, 1866, chap. 80, i 3 ; 14 Stat if
1898.
Capital Tkaotioh Oo. ▼. Hov.
11-13
L. 46. But such a provision, so far aa it
authorized the facts to be tried and de*
terroined in the circuit court of the United
States in a case in which a verdict had been
returned in the state court, was held to be
inconsistent with the Seventh Amendment of
the Constitution of the United States by the
supreme judicial court of Massachusetts, in
a case arising under the acts of 1815 ; and by
the supreme court of New York and bv tliis
court, m cases arising under the acts of 1863
and 1866. Wetherhee y. Johfiaon (1817) 14
Mass. 412; Pairtey. Murray (1864) 43 Barb.
323; 8. C. nom. Justices v. Murray (1860)
9 Wall. 274 [19:658]; MoKee t. Rains
(1869) 10 Wall. 22 [19: 860].
In Justices v. Murray, an action was
brought by Patrie asainst Murray, a United
States marshal, and his deputy, in the su-
preme court of the state of New York, and a
verdict and judgment for the plaintiff were
rendered in that court. The defendant sued
out a writ of error from the circuit court of
the United States, under the act of Congress
of March 3, 1863, chap. 81, f 5; and moved
the state court to stay proceedings. The state
court denied the motion, and refused to make
a return to the writ of error, upon the ground
that the act of Congress, so ifar as it provided
that a case, after verdict and judgment in a
state court, might be removed to the circuit
court of the United States for trial and de^
termination upon both the facts and the law,
in the same manner as if the case had been
originally commenced in that court, was in
violation of the Seventh Amendment of the
Constitution of the United States, and for
that reason null and void. Patrie v. Mur-
ray, 43 Barb. 323. Thereupon the circuit
court of the United States, without express-
ing anv opinion upon this point, granted a
writ of mandamus to the clerk of the state
2] court * Murray v. Patrie, 5 Blatchf . 343, 9
WaU. 276, note [19: 658]. The judgment of
the circoit court ordering a mandamus was
then brought to this court bv writ of error,
and reverMd. Mr. Justice Nelson, in deliver-
ing judgment^ after remarking that the case
(which had been twice argued by very iU>le
counsel) had received the most deliberate
consideration of the court, quoting the state-
ments of Mr. Justice Story in Parsons v. Bed-
ford, above cited, and recognizing that the
second clause of the Seventh Amendment
could not be invoked in a state court to pro-
hibit it from re-examining, on a writ of er-
ror, facts that had been tried by a jury in a
lower court, went on to say: "It is admitted
that the clause applies to the appellate
powers of the Supreme Court of the United
States in all common-law cases coming up
from an inferior Federal court, and also to
the circuit court, in like cases, in the exer-
cise of its appellate powers. And why not,
as it respects the exercise of these powers,
in cases of Federal cognizance coming up
from a state court t The terms of the Amen<^
ment are general, and contain no qualifica-
tion in respect to the restriction upon the ap-
pellate jurisdiction of the courts, except as
to the class of cases, namely, suits at com-
mon law, where the trial has been by jury.
The natural inference is that do other was in-
174 V. B.
tended. Its language, upon any reasonable,
if not necessary, interpretation, we think,
applies to this entire class, no matter from
wiusit court the case comes, of which cogni*
zance can be taken by the appellate court."
The ratio decidendi, the line of thought per-
vadinff and controlling the whole opinion,
was that the Seventh Amendment unidoubt-
edly prohibited any court of the United
States from re-examining facts once tried by
a jury in a lower court of the United States,
and that there was no reason why the pro-
hibition should not equally appl^f to a case
brought into a court of uie united States
from a state court. "In both instances," it
was said, "the cases are to be disposed of by
the same system of laws, and by the same
judicial tribunal." 9 WaU. 277-279 [19:
660, 661].
In Chicago, Burlington, d Quinoy BaUroad
Oo, V. Chicago, 166 U. S. 226, 242-244 [41 :
979, 987] the same course of reasoning was
followed,* and was applied to a case brought [18]
by writ of error from the highest court (S a
state to this court.
It must therefore be taken as established,
by virtue of the Seventh Amendment of the
Constitution, that either party to an action
at law (as distinguished from suits in equity
or in admiralty) in a court of the United
States, where the value in controversy ex-
ceeds twenty dollars, has the rif^ht to a trial
by jury; that, when a trial by jury has been
bad in an action at law, in a court either of
the United States or of a state, the facts
there tried and decided cannot be re-ex-
amined in any court of the United States,
otherwise than according to the rules of the
common law of England; that by the rules
of that law, no other mode of re-examina-
tion is allowed than upon a new trial, either
granted by the court in which the first trial
was had or to which the record was return-
able, or ordered bv an appellate court for er-
ror in law; and therefore that, unless a new
trial has been granted in one of those two
ways, facts once tried by a Jury cannot be
tried anew, bv a jury or otherwise, in any
court of the United States.
The case of enforcing, in a court of the
United States, a statute of a state giving one
new trial, as of right, in an action of eject-
ment, is quite exceptional; and such a stat-
ute does not enlarge, but restricts, the rules
of the common law as to re-examining facts
once tried by a jury, for by the common law
a party was not concluded by a single ver-
dict and judgment in ejectment, but might
bring as many successive ejectments as he
pleased, unless restrained by a 'court of
equity after repeated verdicts against him.
Bacon, Abe. Ejectment, L. Equator Min, d
Smelting Co. v. HaU (1882) 106 U. 8. 86
[27: 114] ; SmaU T. MitoheU (1892) 143 U.
S. 09 [36:90].
m. "Trial by jury," in the primary and us-
ual sense of the term at the common law and
in the American Constitutions, is not merely
8 trial by a jury of twelve men before an ofll-
cer vested with authority to cause them to be
simirooned and impaneled, to administer
oaths to them and to the constable in charge,
and to enter judgment and issue execution
877
Itt-AO
SUFBEMS COUBT OF THS UNITED STATES.
Oct.
on their Tordiot; but it is a trial by a jury
of twelve men, in the presence and under the
|14] supenntendenoe of a judge empowered to *in-
struct them on the law and to advise them
on the iactSy and (except on acquittal of a
eriminal charge) to set aside their verdict
if in his opinion it is against the law or the
evidence. This proposition has been so gen-
erally admitted, and so seldom contested,
that there has been little occasion for its
distinct assertion. Tet there are unequiv-
ocal statements of it to be found in the books.
Lord Hale, in his History of the Common
Law, chap. 12, "touching trial by jury,"
says: "Another excellency of this trial is
this, that the judge is alwa^ present at the
time of the evidence, given in it. Herein he
is able in matters of law, emerging upon the
evidence, to direct them; and also, in mat-
ters of fact, to give them great light and as-
sistance, by his weighing the evidence be-
foie them, and observing where the question
and knot of the business lies; and by show-
ing them his opinion even in matter of fact,
wmch is a great advantage and light to lay-
men. And thus, as the jury assists the
judge in determininff the matter of fact, so
the judge assists the jury in determining
points of law, and also very much in investi-
gating and enlightening the matter of fact,
whereof the jury are the judges." And
again, in summing up the advantages of
trial by jury, he says: "It has the Mvan-
tafle 01 the judge's observation, attention,
and assistance, in point of law by way of de-
cision, and in point of fact hy way of direc-
tion to the juiy." 2 Hale, Hist. CkmL Law,
6th ed. 147, 156. See also 1 Hal^ P. C. 33.
The supreme court of Ohio held that the
provision of article 1, section 10, of the Con-
stitution of that state, requirinff oompensa-
tion for private proper^ taken for the pub-
lic use to "be assessed by a jury," was not
satisfied without an assessment by a jury of
* twelve men under the supervision of a court;
and, speaking by Chief Justice Thurman,
said: "That the term 'jury,' without addi-
tion or prefix, imports a bodv of twelve men
in a court of justice, is as well settled as anv
legal proposition can be." "We agree wiuk
Orimke, J., in Willyard T. HamUtony 7 Ohio,
pt 2, pp. Ill, 118 [30 Am. Dec. 195], that
a jury, properly speaking, is an appendi^
of a court, a tribunal auxiliary to the admin-
istration of justice in a court, that a presid-
ing law tribunal *is implied, and that the
conjunction of the two is the peculiar and val-
uable feature of the jury trial; and, as a
necessary inference, that a mere commission,
though composed of twelve men, can never
be properly regarded as a jury. Upon the
whole, after a careful examination of the
subject, we are clearly of the opinion that
the word 'jurv,' in section 19 of article 1, as
well as in other places in the Constitution
where it oeeurs, means a tribunal of twelve
Bfien, presided over by a court, and hearing
the allegations, evid^ce, and arguments of
the parUes." Lamb t. Lane (1864) 4 Ohio
Bt. 167, 177, 179.
The Justices of the supreme judicial court
of New Hampshire, in an opinion given to
the house of representatives of the state,
878
said : "The terms 'jury,' and trial \j jfmj;
are, and for ages have been, wcQ Iciewa is
the language of the law. Th^ were vest at
the adoption of the Constitutioii, and alvafi,
it is believed, before that time, and alasst
slways since, in a single sense. A jmrj §m
the trial of a cause was a body of tm^tm
men, described as upright, well qnsliiei sad
lawful men, disinterested and impartial, ait
of kin nor personal dependents of cither of
the parties, having their homes within the
jurisdictional limits of the court, drava sad
selected by oflicers free fnmi all bias in fsiv
of or against either party, duly empaariedn-
der the direction of a competent court, twon
to render a true verdict acoordiqc te thi
law and the evidence given them; who, siier
hearing the parties and their evidcace, sad
receivinff the instructions of the court rria-
Uve to uie law involved in the trial, and dt>
liberating, when necessary, apart froB all
extraneous infiuences, must return th^
unanimous verdict upon the issue sahaiittsJ
to them." Opinion of the Juttiem (IM)
41 N. H. 650, 661.
Judce Sprague, in the distriei eonrt of tibi
United States for the district of Miwsrfci'
eetts, said: "The Constitution teevti s
trial by jury, without defining what ihtX
trial is. We are left to the commoa law »
learn what it is that is secured. New tk
trial by jury was, when the Constitotioa vw
adopted, and for generationa before that Xmt
had been, here and in England, a trial of u
issue of fact hj twelve men, under the dinr
tion and superintendence of the court. Tkb
^direction and superintendence was an «ki-^
tial part of the trial." "At the time of Ut
sdoption of the Constitution, it was a psrt
of tne system of trial by jury in csvil mm
that the court mlffht, in its diaorctioa. i*
aside a verdict." "Each party, the lon^ ■
well as the winning, has a right to the 1^
imate trial by jury, with all its sai«f«u^
as understood when the Coastitutioa w
sdopted." United Statee v. 1S6S Bep ^
Merohandiae (1863) 2 Sprague, 8&-M.
This court has expressed the sane ite.
saying; "In the courts of the United Ststa
as in those of England, from which oarpnr
tice was derived, the judge, in suba^ittaf •
case to the jury, may, at his disenba
whenever he thinks it necessary te emti
them in arriving at a just condusioo. em
ment upon the evidence, call th«r att«M
to parts of it which he thinks importaaLsad
express his opinion upon the facta.** Fiafer
hurg d M. Raiiroad Co, v. Puimmm (IIM
118 U. S. 646. 663 [30:267. 2S8]. At^
Mrain: 'Trial by jury in the cowts of tk>
United States is a trial presided om bv •
judge, with authority, not only to rak ir«
objections to evidence and to iastieil lb*
iury upon the law, but also, wImb is ka
ludginent the due admiaistratioa ef j«ti0
requiree it, to aid the Jury by iifliiswf
and commenting upon the tastiMSW. •*
even giving them his opinion em qasitinet d
fact, provided only he submita thoss ^s*-
tions to their determination." Umtei 8mm
V. PhUadelphia d Reodk^ Mmikeed CW
(1887) 123 U. a 118, 114 [31:138, \»}
And see Beff t. Unitel Bftee (1896) !» t.
174 «.&
1898.
Cafttai. Traction Go. t. Hof.
16-19
5. 51, 102, 106 [99: 843, 861, 368]; Thomp-
am ▼. Utah (IB9B) 170 U. S. 343, 850 [42:
1061, 10661 ; Miller on the Constitution, 511 ;
Coolcy, Frbiciples of Constitutional Law,
239.
JV. By tbe common law, justices of the
peace haa some criminal jurisdiction, but no
jurisdiction whatever of suits between man
and man. There were in England, however,
courts baron, county courts, courts of con-
science, and other petty courts, which were
net eourta of recora, and whose proceedings
varied in many respects from the course of
the common law, but which were empowered
to hear and determine, in a summary way,
without a jury, personal actions in whidi
the debt or dfunages demanded did not ex-
Icced forty 'shillings. 3 Bl. Com. 33, 35, 81.
The twdve freeholders summon^ to the
county court of Middlesex, and authorized,
when there assembled, together with the
eoonty derk, and without any judge being
present, to decide by a majority, and in a
saromary wav, causes not exceeding forty
shillinffs, under the statute of 23 Geo, U.,
djtp. sis (1750) commended by Blackstone,
were dearly not a common-law jury. 8 Bl.
Com. 88, and Coleridge's note.
In this country before the Dedaration of
Independence, the jurisdiction over small
debts, which counfy courts and similar
courts had in England, was generally vested
in ^inffle justices of the peace. Whenever a
trial by jurr of anv kind was allowed at
sny staffe of an acnon begun before a jus-
tice of tne peace, it was done in one of two
ways; either by providinff for an appeal from
tbe judgment of the justice of the peace to
a court of record, upon giving bond, with
surety, ''to prosecute the said appeal there
with effect, and to abide the order of said
court," and for a trial in that court by a
common jury, as in Massachusetts; (6 Dane,
Abr. 405, 442; Mass. Prov. Stats. 1697, chap.
8, S 1, and 1699, chap. 2, f 3 (1 Prov. Laws,
State ed. pp. 283, 370) , and Stat 1783, chap.
42) ; or *^ providing for a trial by a jury
of six before the justice of the peace, as in
New York and in New Jersey. 6 Dane, Abr.
417; K. Y. Stats, of December 16, 1737, 1
Smith k Livingston's Laws, p. 238, i 4, and
of December 24, 1759, 2 Id. p. 170, S 4; N. J.
Stat February 11, 1775, AUinson's Laws, p.
4«8; Wanser v. Atkinson (1881) 43 N. J. L.
571, 672.
Justices of the peace in the District of Col-
umbia, in the exercise of the jiurisdiction
conferred upon them by Congress to trv and
determine cases, criminal or dvil, are doubt-
less, in some sense, judicial officers. Wiae v.
Withers, 3 Cranch, 330, 336 [2:457, 458].
But th^ are not inferior courts of the
United Stites, for the Constitution requires
judges of all such courts to be appointea dur-
ing good bdiavior. Nor are they, in any
sense, courts of record. They were never
considered in Maryland as "courts of law.**
WeiM V. Oate (1882) 58 Md. 105, 110. The
Btatutea of Maryland of 1715, chap. 12, and
of 1768, diap. 21 (in Bacon's Laws of Mary-
land), and of 1791, chap 68 (in 2 Kil^s
I Laws) ^defining the dvil jurisdiction of jus-
tices of the peace, were entitled acts "for the
1T4 V. M.
Speedy Recovery of Small Debts out of
Ck»urt" And Congress has vested in them,
"as individual ma^strates,*' the powers and
duties which justices of the peace previously
had under the laws in force in tlM Distriet
of Columbia. Act of Febmarr 27, 1801,
chap. 15, S 11; 2 Stat, at U 107; B^. Stair
D. C. i 995.
A trial by a jury of twehro mn beforo a
justice of the peace, having been unknown
in England or America before the Dedara-
tion of Independence, can hardly have been
within the contemplation of Oonmas in pro-
posinff, or of the people hi rati^uur, the Sev-
enth Amendment to the Constitution of the
United States.
V. Another question having an important
bearine on the validity and the interpreter
tion of the successive acts of Conmss, con-
cerning trial by iury in dvil actions begun
before justices ox the peace in the Distriet
ot Columbia, is whether the right of trial
by jury, secured by the Seventh Amendment
to the Constitution, is preserved by allowing
a common-law trial by jury in a eourt of rec-
ord, upon appeal from a judgment of a jus-
tice of the peace, and upon gmng bond with
surety to prosecute the apiwal and to abide
thejudgment of the appellate court
The question considered and decided by
this court in Callan v. WiUon (1888) 127
U. S. App. 540 [82: 223] though somewhat
analogous, was essentially a SfTerent one.
That case was a criminal case, not affected
5f the Seventh Amendment of the Constitu-
on, but dependii^ upon the effect of those
other provisions of the original ConstitutioB
and of the Fifth and Sixth Amendments,
whidi declare that "the trial of all causae,
except in cases of impeachment, shall be by
iury," that "no person shall be deprived of
life, liberty, or property without due prooeaa
oflaw,"andthatMn all criminal proeecutions
the accused shall enjoy the risht to a speedy
and public trial by an impartial jury." The
point there dedded was that a person ac-
cused of a conspiracy to prevent another per-
son from pursuing his lawful calling, and
by intimidations and molestations to reduce
him to beffgary, had the right to a trial by
*jury in the first instance, and that it was [f^i
not enough to allow him a trial by jury after
having been convicted by a justice of the
peace without a jury. The decision pro-
ceeded upon the ffround that such a con-
spiracy was an ofl^nse of a grave character,
affectinff the public at large, as wdl as ona
the punishment of whidi might involve the
liberty of the dtizen: it was conced^ that
there was a class of minor offenses to which
the same rule could not apply; and the ques-
tion of applying a like nue to dvil cases did
not arise in the case, and was not touched by
the court.
All the other cases dted at the bar, in
whicfh the constitutionalriffht of trial by jurr
was hdd not to be secured bv allowing such
a trial on appeal from a justice of the peace,
or from an inferior court, were criminal
cases. Oreene v. Brigga (1862) 1 Curt. C.
C. 811, 325; 8aco v. Wmtworth (1868) 87
Me. 165 [58 Am. Dec 786] ; Be Dana (1878)
7Ben.l.
879
19-d3
SiTPREMB Court or the Ukited States.
Oct.
On the other hand, the authority of the leg-
islature, consistently with constitutional pro-
visions securing the right of trial by jury
to provide, in civil proceedings for the re-
covery of money, that the trial bv jury
should not be had in the tribunal of first in-
stance, but in an appellate court only, is su^
ported by unanimous judgments of this
court in two earlier cases, the one arising
in the District of Columbia, and the other in
the state of Pennsylvania.
The declaration of rights, prefixed to the
Constitution of Maivland of 1776, declared,
in article 3. that "tne inhabitants of Mary-
land are entitled to the common law of Eng-
land, and the trial bv jury according to the
course of that law;''^ and, in article 21, re-
peated the words of Magna Charta, "No per-
son ought to be taken or imprisoned," etc,
"or deprived of his life, liberty, or property,
but by the judgment of his peers or the law
of the land.^' 1 Charters and Constitutions,
817. 818. The statute of the state of Mary-
land of 1783, chap. 80, incorporatinff a bank
in the District of Columbia, provided that
on any bill or note made or indorsed to the
bank, and e3cpressly made negotiable at the
bank, and not paid when due, or within ten
davs after demand, the bank, upon filing an
affidavit of its president to tne sum due,
{M] might obtain *from the derk of a court an
execution a^nst the i^roDert^ of the debtor;
"and if the defendant shall dispute the whole
or any part of the said debt, on the return
of the execution the court before whom it is
returned shall and may order an issue to be
joined, and trial to be had in the same court
at which the return is made, and shidl make
such other proceedings that justice mav be
done in the speediest manner." 2 Kilty's
Laws. The general court of Maryland, in
1799, held that this statute did not infringe
the constitutional right of trial by jurr.
Bank of Columbia v. Roaa, 4 Harr. k McH.
456, 464, 465. The statute was continued in
force in the District of Columbia by the acts
of Congress of February 27, 1801, chap. 15,
i 5, and March 3, 1801, chap. 24, f 5. 2
8tat. at L. 106, 115; Bank of Columbia v.
Okely (1819) 4 Wheat. 235, 246 [4:659-
662].
In Bank of Columbia v. Okely an execu-
tion so issued was sought to be quashed upon
the ground that the statute of Maryland
violated the Seventh Amendment of tiie Con-
stitution of the United States, as well as the
Constitution of the state of Maryland. But
this court held the statute to be consistent
with both Constitutions, and, speaking by
Mr. Justice Johnson, said: 'This court
would ponder long before it would sustain
this action, if we could be persuaded that the
act in question produced a total prostration
of the trial by jury, or even involved the de-
fendant in circumstances which rendered that
right unavailing for his protection. But a
power is reservM to the jud^, to make such
rules and orders 'as that justice may be
done;' and as the possession of judicial power
imposes an obligation to exercise it, we flatter
ourselves that, in practice, the evils so elo-
quently dilated on oy the counsel do not ex-
ist. And if the defendant does not avail
880
himsdf of the right eiven him, of W
issue made up, and tne trial hj jury,
is tendered to him by the act, it is pren
that he cannot dispute the jnstiee of ths
claim. That this view of the snbjeet is giv-
ing full effect to the Seventh ABcatecai if
the Constitution is not only (Mnrftie
the general intent, but from the tinitm
ing of the artide referred to. Had the
been that 'the trial by jury shall be prt>
served,' it might *have been oonteoded tk«tIS]
they were imperative, and oonld not be dii'
pensed with. But the words are, thai thi
right of trial by jury shall be pmciytd,
which places it on the foot of t lex pro «f m-
troducta, and the benefit of it may thcrefan
be relinquished. As to the words of Hioi
Charta, incorporated into the CoDstltaooi
of Maryland, after vcdumes spoken and wnl-
ten .with a view to their exposition, the pd
sense of mankind has at length settled am
to this: That th^ were intended to ssem
the individual from the arbitrary enrcMi
of the powers of government, nnrestraiaidhf
the established (Mrinciples of private Hfto
and distributive justice. With this exfitt-
Uon, there is nothing left to this iadiridml
to complain of. What he has lost, ht h$
voluntarily relinquished; and the trial ky
jury is open to him. either to arrest the pnr
ress of the law in tne first instance, or to »
tain redress for oppression, if the povcr d
the bank has been aoused. The same
is equallv applicable to the argument
on the third article of the Maryland
tution." 4 Wheat 243, 244 [4: 561].
The Constitution of Pennsylvania of 1771
provided, in article 11 of the dedaratJas^
rights, that "in controversies iufura|
property, and in suits between man aad wtk
the parties have a right to trial by jvy.
whicn ought to be hela sacred," and, n w>
tion 25 of the Frame of GovemiMit, tbit
"trials shall be by jury as heretofore ;" td
the Constitution of 1790, in sectioa • of tti
biU of rights, decUred that "trial by juT
shall be as heretofore, and the right tbM
remain inviolate.'* 2 Charters aad (>■«'
tuUons, 1542, 1646, 1554. The statats d
Pennsylvania, from 1782, required sD i^
counts betweoi the state and its oAevt li ki
settled by the comptroller general, aai i^
proved by the executive council; ani tf >
oalanoe was found due to the state, aitbr
ized the comptroller general to dinet tkt
clerk of the county where the ofHeer n^
to issue summary proeeea to oolket w
amount due. And a statute of Febrvary 11
1785, after reciting "whereas it will bt iffn^
able to the Constitution of this state, ««■
has declared that 'trial by jury sbaU te •
heretofore,' that persona eoneeiTiaf ^^^
selves aggrieved by the *prooeediBgi jf^-*
said comptroller general should bs sO***
to have trial of the facts by a jury, a*^j2
tions of law arising thereupon dstmv*
in a court of record/* enactea that aayw*
person might appeal from the sLllliie** '
award of the comptroller general to tbtj^
preme court of the state, "providid tbt*"
party enter sufficient security" befort s jiV
^'to prosecute sudi appeal with cfftct, tf*
to pay all costs and cnargea whicb ^^
174 1^ *
Capital Tract con Co. y. Hof.
2d-SKi
presM Court shall award, and also pay any
sum of money which shall appear by the
iudraiait of the said court to be due from
um^* to the state; and might have the whole
mattOT tried by a jury upon the appeal. This
statute also provided that the settlement of
any account dt the comptroller general, and
confirmation thereof by the executive council,
whereby any sum of money should be found
due fnnn any person to the state, should be a
lien on all his real estate throughout the
state. 2 Dall. Laws Pa. 44 247, 248, 251.
In Livingston y. Moore (1833) 7 Pet 469,
[8: 751], which came to this court from the
circuit court of the United States for the
eastern district of Pennsylvania, the valid-
ity of a lien so acquired by the state was at-
tacked on the jn^ound, among others, that the
statutes creatine it were contrary to section
€ of the Pennsylvania bill of rights of 1700.
But this court upheld the validity of the lien,
and in an opinion delivered by Mr. Justice
Johnson, after elaborately discussing the
other questions in the case, briefly disposed
of this one as follows : "As to the sixth sec-
tion of the Pennsylvania bill of rights, we
can see nothing in these laws on which to
fasten the imputation of a violation of the
right of trial by jury; since, in creating
the lien attached to the settled accounts, the
right of an appeal to a jury is secured to
the debtor." 7 Pet. 662 [8: 781].
While, as has been seen, the Seventh
Amendment to the Constitution of the United
States requires that "the right of trial by jury
shall be preserved" in the courts of the United
States in every action at law in which the
value in controversy exceeds twenty dollars,
and forbids any fact once tried by a jury to
•*b€ otherwise re-examined, in any court of
the United States, than according to the rules
of the common law," meaning 'thereby the
common law of Encland, and not the law of
any one or more of the states of the Union,
yet it is to be remembered that, as observed
by Justice Johnson, speaking for this court,
in Bank of Columbia v. Okely, above cited,
it is not "trial by Jury," but "the right of
trial by jury," which the Amendment de-
clares "shall be preserved." It does not pre-
scribe at what stage of an action a trial by
jury must, if demanded, be had; or what
conditions may be imposed upon the demand
of such a trial, consistently with preserving
the right to it. In passing upon these ques-
tions, the judicial decisions and the settled
practice in the several states are entitled to
great weight, inasmuch as the Constitutions
of all of Ukem had secured the right of trial
by jury in civil actions, by the words "shall
be preaerved," or "shall be as heretofore," or
"shall remain inviolate," or "shall be held sa-
cred," or by some equivalent expression.
A lonff line of judicial decisions in the sev-
eral states, beginning early in this century,
maintains the position that the constitution-
al right of trial by jury in civil actions is not
infringed by a statute which sets the pe-
cuniary limit of the jurisdiction of justices
of the peace in actions at law hiffher than it
was when the particular Constitution was
adopted, allows a trial bv jury for the first
time upon appeal from the judgment of the
174 v. 8. U. S.. Book 43. 56
justice of the peace, and requires of the ap>
pellant a bond with surety to prosecute t£t
appeal and to pav the judgment of the ap-
pellate court. The full extent and weight
of those precedents cannot be justly appreci-
ated without referring to the tescts of the
statutes which they upheld, and which have
not always been fully set forth in the re-
ports.
The leading case is Emeriok v. Harris
(1808) 1 Binn. 416, which arose under the
statutes of Pennsylvania. The provisions of
the Constitution of the state are quoted
above. The provincial statute of March 1,
1745, i^ve a justice of the peace jurisdiction
of actions to recover the sum of forty shil-
lings and upwards and not exceeding five
pounds; and authorized any person ag-
grieved by his judCTient to appeal to the
court of common pleas, "first entering into
recognizance, with at least one sufficient se-
curi^, at least in double value *of the debt fS^
or damages sued for, and sufficient to answer
all costs, to prosecute the said appeal with
effect, and to abide the order of the said
court, or in default thereof to be sent by
mittimus to the sheriff of the county, by him
to be kept until he shall give such security,
or be otherwise legally discharged." 1 DaU.
Laws Pa. 304, 307. The statute of April 6,
1786, enlarged the summary jurisdiction of
a justice of the peace to sums not exceeding
ten pounds; and. for tiie avowed purpose of
conforming to the Constitution of the state,
gave an appeal to the court of common pleas,
upon the like terms as by the statute of 1746.
And the statute of March 11, 1780, conferred
upon the aldermen of the city of Philadel-
phia the jurisdiction of justices of the peace.
2 Dall. Laws Pa. 304, 305, 660. The statute
of April 19, 1704, extended the jurisdiction
of justices of the peace, as well as of the al-
detmen of Philadelphia, to demands not ex-
ceeding twenty pounds, with a right of ap-
Seal, after judgment, if the amount exceeded
ve pounds, to the court of common pleas,
"in tne same manner, and subject to all other
rectrictions and provisions," as in the stat-
ute of 1745. 3 Dall. Laws Pa. 636-538. In
support of a writ of certiorari to <)uash a
judgment for eleven pounds and six shil-
lings, rendered in the alderman's court of
PhOadelphia upon default of the defendant,
it was argued "that the Constitution, bv di-
recting that trial by jury should be as here- .
tofore, and the right thereof remain invio-
late, had interdicted the legislature from
abolishing or abridging this right in any
case in which it had existed before the Con-
stitution; that a prohibition to do this di-
rectly Vas a prohibition to do it indirectly,
either by deferring the decision of a jury un-
til one, two, or more previous stsjgfes of the
cause had been passed, or by clogging the re-
sort to that tribunal bv penalties of any
kind, either forfeiture of costs, security up-
on appeal, or delav; that the power to ob-
struct at aU implied the power to increase
the obstructions until the object became un-
attainable; and that the instant the enjoy-
ment of the right was to be purchased by
sacrifices unknown before the Constitution,
the right was violated, and ceased to exist as
881
84-27
SUPBEME COUBT OF THE UNITED STATES.
Oct.
before." But the sapreme court of Penn-
sylvania held that the statute of 1704 was
[M]a constitutional ^regulation of judicial pro-
ceedings by l^slative authority. 1 Bmn.
424, 428. See also M' Donald ▼. SoheU (1820)
6 Serg. ft R. 240; Biddle ▼. Commonwealth
(1S25) 13 Serg. ft R. 405, 410; Hainea T.
Let in (1866) 51 Pa. 412.
Soon after the decision in Emerick ▼.
Harria, a similar decision was made by the
supreme court of North Carolina. In the
Constitution of that state of 1776 it was de-
clared that "in all controversies at law, re-
specting property, the ancient mode of trial
b^ jury IS one of the best securities of the
rights of the people, and ought to remain
sacred and inviolable." 2 Charters and Con-
stitutions, 1410. When that Constitution
was formed, justices of the peace had juris-
diction over sums of twenty shillings and
under. In 180.> the legislature extended
their jurisdiction to thirty pounds, "subject,
nevertheless, to the right of appeal, as in
similar cases" — a statute of 1704 having pro-
vided that in all cases of appeals from the
judgment of a justice, the appellant's sub-
scription and acknowledgment of the secur-
ity, attested by the justice, "shall be suffi-
cient to bind the security to abide by and
perform the judgment of the court; and
where judgment shall be against the ap-
pellant the same shall be entered on motion
against the security, and execution shall
iMue against the principal, or against both
principal and securibr, at the option of the
plaintiff." 2 Martin's Laws of North Caro-
lina, pp. 60, 207. "The legislature has,"
said tne coiurt, "given to either party the
right of appealing to a court, where he will
have tiie b^efit of a trial by jury. It can-
not, therefore, be said that the right of such
trial is taken away. So long as the trial by
jury is preserved through an appeal, the
proliminary mode of obtaining it may be
varied at the will and pleasure of the legis-
lature. The party wisning to appeal may
be subjected to some inconvenience m getting
security, but this inconvenience does not in
this, nor in any other case where security is
required, amount to a denial of right."
Keddie v. Moore (1811) 6 N. C. (2 Murph.)
41, 45 [5 Am. Dec 518] ; foUowed in WU-
eon V. Simonton (1821) 8 N. C. (1 Hawks)
482.
The O>nstitution of Tennessee of 1706 de-
clared that "the right of trial by jury shall
f S6] remain inviolate." 2 Charters and *Consti-
tutions, 1674. At the time of the adoption
of that (Constitution, as appears by the terri-
torial statute of 1704, chap. 1, I9 52, 54, jus-
tices of the peace had jurisdiction 'only of
actions for twentv dollars and under; and
either party migkt appeal to the county
court, "first giving security for prosecuting
such appeal with effect, which said appeal
shall be tried and determined at the nrst
court, by a jury of good and lawful men, and
determination thereon shall be final." The
Jurisdiction of a justice of the peace was ex-
tended bv the statute of 1801, chap. 7, to
fifty dollars, "subject, nevertheless, to ap-
peal by either party, to be tried in the county
court by a jury, as in other cases." And
882
the statute of 1809, chap. 63, prpiidaj
an appeal from the jadg^nent d a jaitlai ai
the peace should not be granted, itakaa the
appellant "enter into bond witk goo
sumcient securitr, with a eonditioB to
cute said i^peal;" and that, if tbe . .
should not be returned to the deric of the
county court at the return tens, it
"be lawful for the appellee, oa ^
ticn of the papers in the cause, to
judgment against the appeUsat
securities, for the amount of the
costs, if he should have been the ormaal
fendant; if not, for the amouDt of toti
1 Scott's Laws of Tennessee, pp. 476,
1166. The statute of 1831, chap. 59, Isrthtr
extended the jurisdiction ef a jnstiee «f tke
peace to one hundred dollars. Public Art>
of Tennessee of 1831, p. 83. In a ease
ing under the last statute, the supreae
of Tennessee, while Chief Jostiee
(afterwards a justice of this court) ww s
member thereof, declared it to haw
settled by a long series of its dednioM, kefi*'
ning under the statute of 1801, that mi •
staSite was constitutional, upon the iiwri
that "inasmuch as the party was in afl cms
allowed his appeal, when he could hsvt •
trial by jury, the right of trial by a jmj
was not taken axray ; so that the tenas ei n*
quiring bail or security for the mowy kt-
longed to the legislature to provide, tM
though the securi^ reauired in the cum d
appeal differed from thoee cases whcrt tk
party was brought into court by orifoil
writ, still, as it did not take away the rif&t
of trial by jury, the act was not vMieaatty
tutional." Morford v. Bamea (1835) 8T«l .
444, 446; "followed in Fryor ▼. HfB llSk M
0 Yerg. 416.
The Constitution of Connecticut of Itli
article 1, section 21, likewise decland tM
"the right of trial by jury shall waaa^
violate." 1 Charters and ComsXita/atm,
259. At the time of its adoption, the jm^
diction of justices of the peaice, in m^tm d
trespass, was limited to fifteen doUarv **>
the Revised Laws of 1821, tH. 2, I O, tker
jurisdiction was extended to thirty-tw ^
lars; but in demands for more thaa «^
dollars an appml was allowed to the c^^
court, the appellant to "give sulBocst k«a
with surety, to the adverse party, to fn^
cute such appeal to effect, and to aasvw tS
damages in case he make not his pica p*^*
The supreme court of Connecticut Wm tit
statute constitutional; and Chid Ji^f
Hosmer, in delivering judgment, mii: '*
admit that the trial by jury nust uisli"^
unimpaired ; and shall not now dt«p«ti tkt
there can be no enlargement of a j«stief'» ,^
risdiction, which shaU take from anyose skt
legal power of having his cause htiii kf *
jury, precisely as it mieht hare bee* kbt
the Constitution was adopted. It is is'*
putable that a justice of the peace k ^
powered to hear all causes personally. •>'
that he cannot try them by a jury. The ^
tion,' tiien, is brought to this narrow pciiL
whether the enlargement of a jusUoe** j>^
diction, with the right of appeal, as it ffi^
ed when the (Constitution was adopted. ^ *
violation of the above privilege, seonW ^
1T4 U i
180a.
Oafctal TsAonoH Co. v. Hu#.
27-80
that instnunent. I am dear that it is not;
and that a oonstmction of this nature is
equally unwarranted by the words, and by
the intention, of the Constitution. An in*
strument remains inviolate if it is not in-
fringed; and by a yiolation of the trial by
jury, I understand taking it away, prohibit-
ing it, or subjecting it to unreasonable and
burdensome regulations, which, if they do
not amount to a literal prohibition, are, at
least, Yirtually of that charactor. It never
could be the intention of the Constitution to
tie up the hands of the legislature, so that
so change of jurisdiction could be made, and
no r^guation even of the rig^ht of trial by
jury could be had. It is sufficient, and with-
in Uie reasonable 'intendment of that instru-
ment, if the trial by jury be not impaired,
although it may be subjected to new modes,
and even rendered more expensive, if the pub-
lic interest demands such alteration. A law
containing arbitrarv and unreasonable pro-
visions, made with the intention of annihilat-
ing or impairing the trial by jury, would be
subject to the same considerations, as if the
object had been openly and directly pursued.
But, on the otiier nand, every reasonable reg-
ulation, made by those who value this palla-
dium of our righte, and directed to the at-
tainment of the public good, must not be
deemed inhibited because it increases the
burden or expense of the litigating narties."
**la conclusion, I am satisfied that tne liber-
ty of appeal preserves the right of trial by
jury inviolate, within the words and fair in-
tendment of the Constitution; and that no
such unreasonable hardship is put on the ap-
pellant, by the bond required for the prose-
cution of the appeal, as to justify the asser-
tion that the rignt ci trial by jury is in anv
manner impaired." Beers v. Beers (1823)
4 Conn. 535, 538, 540 [10 Am. Dec. 186]. See
also Colt V. Eves (1837) 12 Conn. 243, 253;
Curtis Y,GiU (1867) 34 Conn. 49.
Before the adoption of the Constitution
of the state of Maryland, each of the stet-
ut«8 of the province "for the speedy recovery
of small debte out of court, before a sin-
fle justice of the peace," would appear to
ave restricted his civil jurisdiction to
claims for thirty-three shillings and four
pence, as in the stetute of 1715, chap. 12, or
for fifty shillings, as in the stetute of 1763,
chap. 21. Bacon's Laws.
By the stetute of the stete of Maryland of
1791, chap. 68, "for the speedy recovery of
small debte out of court," § 1, any one jus-
tice of the peace, of the county wherein the
debtor resiaed, was vested with jurisdiction
to try, hear, and determine "all cases where
the r^ debt and damages doth not exceed
ten pounds current money" (or twenty-six
uid two-thirds dollars), "and, upon full
hearing of the allegations and evidences of
both parties, to give judgment, according to
the laws of the land, and Uie equity and right
of the matter." By 9 6 his jurisdiction was
made exclusive to that extent. By | 4, "in
all cases where the debt or demand doth ex-
ceed twenty 'shillings common money" (or
two and two-thirds dollars), "and either
plaintiff or defendant shall think him or her-
self aggrieved by the judgment of any mag-
174 V. 8.
istrate, he or she shall be at liberty to i^
peal to the next county court, before the jui^
tioes thereof, who are hereby, upon the peti-
tion of the appellant, in a siunmary way, em-
powered ana oirected to hear the allegationa
and proofs of both parties, and determine
upon the same aooordiuff to the law of th*
land, and the equity ana right of the mat-
ter;" and "either of the said parties may de-
mand a trial by jurv, or leave the cause to
be determined bv the court, at their de»>
tion." And by | 5, the appellant was re-
quired to give bond with sufficient sureties,
m double the sum to be recovered, to prose-
cute his appeal, and to pay the appellee, "ia
case the said judnnent shall be affirmed, as
well as the debt, damage, and cost adjudged
by the justice from whose judgment such
appeal shall be made, as also sQl cost and
damage that shall be awarded by the court
before whom such appeal shall be heard,
tried, and determined.^^ Latrobe's Justices^
Practice, 1st ed. 1826, pp. 56, 112, 360, 362;
2 Kilty's Laws.
By uie stetute of Maryland of 1809, chap.
76^ II 1, 6 (3 Kilty's Laws), the exclusive
original jurisdiction of justices of the peaoe
was extended to all cases where the r^ debt
or damages demanded did not exceed fifty
dollars. And by the stetute of Maryland of
1852, chap. 239, their original jurisdiction
was extended to all cases of contract, tort, or
replevin, where the sum or damage or thii^
demanded did not exceed one hundred doF
lars, with a right of appeal to the county
court; and was made concurrent with that of
the county court where it exceeded tttj
dollars.
In Steuart v. Baltimore (1855) 7 Md. 500,
the court of appeals of Maiyland, speaking
b^ Judge Ecoleston, said: "In the third sec-
tion of the old Bill of Righte, it was declared
'that the inhabitante of Maryland are enti-
tled to the common law of England, and the
trial by jury, according to the course of that
law.' Notwithstending tills, the legislature
passed laws at different times, extending the
jurisdiction of justices of the peace in mat-
ters of contract, and giving jurisdiction *in [30]
matters of tort where they had none previ-
ously. These laws, of course, made no provi-
'sion for trials by jury except on appeal to
the county courts, and yet tiiey were con-
stently acquiesced in, and not considered as
being repugnant to the Bill of Rights." The
court then referred to Morford v. Barnes,
Beers v. Beers, and McDonald v. Sohell,
above cited, and added: "These cases fully
establish the principle that where a law se-
cures a trial by jury upon an appeal, it is no
violation of a constitutional provision for
guarding tihat ri^ht, althou«;h such law may
provide for a primary trial without the in-
tervention of a jury. This is upon the
ground that the party], if he thinks proper,
can have his case decided by a jury before
it is finally settled." 7 Md. 511, 512.
To the like general effect are the follow-
ing: Kentucky Stet. January 30, 1812, H
4-6, 2 Morehead & Brown's Digest, pp. 893,
S94; Pollard v. Holeman (1816) 4 Bibb,
416; Head v. Hughes (1818) 1 A. K. Marsh.
372 [10 Am. Dec. 742] ; Feemster v. Ander-
883
80-68
SUPBKMB COUBT OF THE UlOTBD STATSS.
Oct. T
•M (1828) 0 T. B. Mon. 637; Flint River 8.B.
€h. T. Poster (1848) 5 Ga. 104, 208 [48 Am.
Dec 248]; Lincoln ▼. Smith (1855) 27 Vt.
328» 361; Lamb v. Lane (1854) 4 Ohio St.
167, 180; Norton v. McLeary (1858) 8 Ohio
St. 205, 209; Reckner v. Warner (1872) 22
Ohio St. 275, 291, 292; (Doolev, C>)nst. Lim.
6th ed. 505; 1 Dillon, Mun. Corp. 4th ed. f
439.
VI. When the District of Columbia passed
undet the exclusive jurisdiction of the Unit-
ed States, the statute of Maryland of 1791,
ehap. 68, above quoted (having been contin-
ued in force by the statute of that state of
1798, chap. 71, 2 Kilty), was one of the laws
in force m the District.
The act of Congress of February 27, 1801,
chap. 15, in § I, enacted that the laws
in force in the state of Maryland, as they
then existed, should be and continue in
force in that part of the District which
had been ceded by that state to the United
States — ^which, since the retrocession of the
county of Alexandria to the state of
Virginia by the act of Congress of July
9, 1846, chap. 35 (9 Stat, at X. 35), is the
whole of tne District of (Columbia — and
in 9 11, provided for the appointment
of "such number of discreet persons to be
justices of the peace" in the District of Col-
umbia as the President should think ex-
CSlJpedient, *who should continue in office five
}'ear8, and who should "in all matters civil
and criminal, and in whatever relates to
the conservation of the peace, have all the
Sowers vested in, and shall perform all the
uties required of, justices of the peace
as individual magistrates, by the laws nere-
inbefore continued in force in those parts of
said District for which they shall have been
respectively appointed; and they shall have
cognizance in personal demands of the value
of twenty dollars, exclusive of costs; which
sum they shall not exceed, any law to the
contrary notwithstanding." 2 Stat, at L.
104, 107.
In (quoting the provisions of subsequent
acts oi Congress, tne re-enactments of them
in the corresponding sections of the Revised
Statutes of tne District of Columbia will be
referred to in brackets.
On March 1, 1823, Congress took up the
subject in the act of 1823, chap. 24, entitled
^An Act to Extend the Jurisdiction of Jus-
tices of the Peace in the Recovery of Debts
In the District of Columbia." 3 Stat, at L.
743.
The first section of that act gave to any
one justice of the peace, of the county where-
in the defendant resided, jurisdiction to try,
hear, and determine "all cases where the real
debt or damages do not exceed the sum of
fifty dollars, exclusive of costs," "and, upon
full hearing of the allegations and evidence
of both parties, to five judgment, accord-
ing to the laws existing in the said District
of Columbia, and the equity and right of the
matter, in the same manner and under the
same rules and regulations, to all intents and
purposes, as such justices of the peace are
now authorized and empowered to do when
the debt and damages do not exceed the sum
of twenty dollars, exclusive of coets." [Rev.
•84
Stat. D. C. 99 997, 1006.] AadtyMctioai,
the jurisdiction c^ justices ol tke fmet wf
to fifty dollars was made exduive^ [Ber.
Stat. f>. C. § 769.] The r^ercoce ia icetidi
1 was evidently to the act of Coagrm of
February 27, 1801, 9 11» above quoted; ud
sections 1 and 6 of the act of 1823 foUtvel
as to jurisdictional amount, the statate rf
Maryland of 1809, chap. 76, 91 1, 6.
Sections 3 and 4 of the act of Ooogroi rf
1823 made it the duty of every putiet d
the peace to keep a dodcet contauiiBg * a fw- Fl|
ord of his proceedings, and subjected kia t*
damages to any person injured by kii 19-
lect to keep one. [Rev. Stat D. C. 9f IM,
1001.] Thoee provisions were erideitiy
taken from the statute of Marylmd of IM.
chap. 76, 99 4, 5. But they never were eoe-
eidered, either in the state of Maryiiad m
in the District of Columbia, as makisg s
justice of the peace a court ol record.
By section 7 of the act of Congrest of 1881
"in all cases where the debt or donaiid 4atk
exceed the sum of five dollars, and eithr
plaintiff or defendant shall think hia or kh
self aggrieved by the judgment of sij j»
tice of the peace, he or she shall be at 1^
erty to appeal to the next drcnit eoot a
the county in which the said judgmeit ikl
have been rendered, before the jwiges tkrv
of, who are hereby, upon the petitioi d tk
appellant, in a summary way, empovtrti
and directed to hear the allegatiost ui
proofs of both parties, and dctermiBe ip
(he same according to law, and the cfiitT
and right of the matter;" ''and ettber i(
the said parties may demand a trial br JKJ,
or leave the cause to be determined bv tte
court, at their election." [Rev. ^at D. C
99 775, 776, 1027]. These prornkm (»
creasing the requisite sum, howerer^ fna
twenty shillings, or two and two tbirdi M
lars, to five dollars) were evidently tam^
from the statute of Maryland of 1791, cwf
68, 9 4, above cited ; and the provisioi d
S 5 of that statute, which required tbi if
pellant to give bond with sureties to pi?.
if the judgment should be affirmed, 11 «£
the sum and costs adjudged by the imtfa
of the peace, as also thoee awarded of tk
appellate court, was not repealed or wM^
by the act of Congress of 1823, and «f^«^
to have been considered as still in foreentk
District of Columbia. Butt v. Stm^'
(1832) 4 Cranch, C. C. 252.
The same act of 1823, for the flnt tia* ■
the legislation of Congresa, provided tbit tf
tiona miffht be tried by a jury before t ]^
tice of the peace, as follows:
''Sec. 15. In every acUon to be broofcbt ^
virtue of thia act, whore the sua dewM
shall exceed twenty doUara, it shall bt b*
f ul for either of the parties to the rait, tft
er issue joined, and before the jMtiee M
proceed to inquire into the ^mcrita of i^ .)V
cause, to demand of the aaid jvstke tktf
such action be tried br a jiU7; aid ip«
said demand the M^d joitiee is hvthf i*'
quired to issue a venire under hb bud td
seal, directed to any cooatable of tk vmt!
where aaid cause is to be tried, maii^f
him to summon twelve juron to be aai if
pear before the juaUoe ieaoiBt >^ **"'^
114 U&
1898.
Capital T&aotioh Co. y. Hof.
33-30
It nich time and place as shall be therein
expressed; and the lurors thus summoned
&hall possess the qualifications, and be sub-
jfct to the exceptions, now existing by law
m the District of Columbia.
^Sec 16. If any of the persons so sum-
DM>ned and returned as jurors shall not ap-
pear, or be challenged and set aside, the jus-
tice before whom said cause is to be tried
shall direct the constable to summon and re-
tun forthwith a taUa, each of whom shall
be subject to the same exceptions as the ju-
rors aforesaid, so as to make up the number
of twelve, after all causes of challenge are
disposed of by the justice; and the said
twelve persons shall be the jury who shall
iij the cause, each of whom shall be sworn
by the justice well and truly to tr^ the mat-
ter in difference between the parties, and a
true verdict to give, according to evidence;
and the said jury, being sworn, shall sit to-
gether, and hear the proofs and allegations
of the parties, in public, and when the same
is gone through with, the justice shall ad-
minister to the constable the following^ oath,
riz.: *You do swear, that you will keep
this jury together in some private room,
without meat or drink, except water; that
you will not suffer any person to speak to
them, nor will you speak to them yourself,
unless by order of the justice, until they have
Agreed on their verdict.' And when uie ju-
rors have agreed on their verdict, they shall
deliver the same publicly to the justice, who
U hereby required to give jud^ent forth-
with thereon; and the said justice is hereby
authorized to issue execution on said judg-
ment, in the manner, and under the limita-
tiuns, hereinbefore directed." 3 Stat, at L.
746. [Rev. Stat. D. C. §§ 1009-1017.]
These sections, providing for a trial by a
jury before the justice of the peace, would
i^p{>car, from their position in the act, to
have been added, by an afterthought, to the
scheme of the earlier sections, derived from
the legislation of Maryland, *and providing
for a trial without any jury before a justice
of the peace, and for a trial by jury, if de-
manded by either party, in an appellate
court; and were evidently taken, in great
part verbatim, fr(»n the twelfth section of
the statute of New York of 1801, chap. 165
(which gave justices of the peace jurisdic-
tion of actions in which the debt or damages
did not exceed twenty-five dollars), as m(^-
fied by the twenty-second section of the stat-
ute of New York of 1818, chap. 04, which ex-
tended their civil jurisdiction to fifty dol-
lars. The material parts of both those stat-
utes are copied, for convenience of compari-
son, in the margin.f
*The provlEions of the New York statute [SS]
of 1801 (copied in the margin) were re-en-
acted, almost word for word, in the statutes
of that state of 1808, chap. 204, | 0, and of
1813, chap. 53, | 0.
The New York statutes of 1801, 1808, and
1813, indeed, differed from the act of Con-
gress of 1823, in giving a justice of the peace
civil jurisdiction up to twenty-five dollars
only; in authorizing every action "brought
by virtue of this act," without restriction
01 amount, to be tried by a jury before a jus-
tice of the peace; in providing for a jury of
six, instead of a jury of twelve men ; and in
the mode of selecting the jury; but were
construed to authorize the justice of the
peace (as the act of Congress of 1823 after-
wards did in terms) to award a tales in case
of a default of the jurors summoned on the
venire, Zeely y. Yansen (1807) 2 Johns.
386.
The New York statute of 1818, however,
like the act of Congress of 1823, extended the
civil jurisdiction of a justice *of the peace to [36]
fifty dollars, and (in the section oopi^ in
the margin) provided for a trial bv a jury
of twelve men before the justice of the peace,
although it differed from the act of Congress
in «llowing such a trial to be had only when
the sum demanded exceeded twenty-five dol-
lars, whereas the act of Congress allowed it
whenever the sum demanded exceeded twenty
dollars.
The New York statute of 1801 also, in its
^rst section, differed from the act of Con-
gress, by expressly authorizing a justice of
the peace to hold a court, and vesting him
with all the powers of a court of record ; and,
in the twelfth section, by not requiring the
justice of the peace to give judgment "u>rth-
with" upon the verdict of the jurv.
Yet under that statute it was held by the
supreme court of the state of New York, in
per curiam opinions, doubtless delivered by
Clhancellor (tnen Chief Justice) Kent, ana,
before the passage of the act of Congress of
1823, was understood to be settled law in
that state, that upon a trial by a jury before
a justice of the peace (differing in these re-
spects from a trial by jury in a superior
court) , the jury were to decide both the law
and the facts, and the justice was bound to
render judgment, as a thing of course, upon
the verdict of the jury, and had no authori-
ty to arrest the judgment, or to order a new
trial. Felter v. Mulliner (1807) 2 Johns.
181 ; M'HJeil y. Scoffield (1808) 3 Johns. 436;
Hesa V. Beekman (1814) 11 Johns. 457;
Co wen's Justice of the Peace, 1st ed. 1821,
541, 544.
By a familiar canon of interpretation.
t "In every action to be brought by virtue of
this act. It shall be lawful for either of the
parties to the suit, or the attorney of either of
them, after Issue Joined and before the court
shall proceed to Inquire Into the merits of the
cause, to demand of the said court that such ac-
tion bo tried by a jury ; and upon such de-
mand the said justice holding such court Is
hereby required to Issue a venire, directed to
any constable of the city or town where the said
cause Is to be tried, commanding him to summon
twelve good and lawful men, being freeholders
or freemen of such city, or t>elng freeholders of
174 U. S.
such town, where said cause Is to be tried, and
who shall be In nowise of kin to the plaintiff or
defendant, nor Interested In such suit, to be and
appear before such justice Issuing such venire,
at such time and place as shall be expressed In
such venire, to make a jury for trial of the ac-
tion between tfae parties mentioned In the said
venire.'* [It Is then provided that the names
of the jurors so summoned shall be written on
separate papers and put Into a box.] **And on
the trial of such cause such justice, or such In-
different person as he shall appoint for that
purpose, shall draw out six of the said pimeni
1
86-^
SUPBKMB COUBT OT THB UHISED STAXKS.
Oct.
Wr«tofore applied by this court whenever
Congrees, in legislating for the District of
Colun]l>ia, has borrowed from the statutee
•of a state provisions which had receiyed in
that state a known and settled construction
before their enactment hv Congress, that con-
struction must be deemed to have been adopt-
«d by Conffress together with the text which
it expounded, and the provisions must be
construed as they were understood at the
time in the state. Metropolitan Railroad
Co, y. Moore (1887) 121 U. S. 558, 572 [30:
1022, 1020] ; WUlia v. Eastern Trust d Bkg,
Co, (1898) 160 U. S. 295, 307, 308 [42: 752,
758].
(S7] *VII. The questions of the validity and the
effect of the act of Conj^ess of 1823 then pre-
sent themselves in this aspect:
The Seventh Amendment to the Constitu-
Uon of the United States secures to either
party to every suit at law, in which the value
in controversy exceeds twenty dollars, the
ri^ht of trial oy jury; and forbids any such
suit, in which uierehas once been a trial by
jnrr, within the sense of the common law
and of the (Constitution, to be tried anew up-
on the facts in any court of the United
States.
(Congress, when enlar^ins, by the act of
1823, the exclusive original jurisdiction of
justices of the peace in the District of Co-
lumbia frcmi twenty to fifty dollars, mani-
festly intended that the dictates of the 0>n-
stitution should be fully carried out, in let-
ter and spirit. With this object in view.
Congress first enacted that "in all cases" be-
fore a justice of the peace, in which the de-
mand exceeded five dollars, either the plain-
tiff or the defendant should have a ri^t to
app«d from the judgment of the justice of
the peace to the circuit court of the United
States, and either of the parties might elect
to have ''a trial by jury" m that court. Con-
gress also, by way of additional precaution.
further enacted that every ease, im vUdk
sum demanded exceeded twntf
should, if either party so requested,
hr a jury" of twelve men befon titt
of the peace.
In all acts of 0>iigree8 renlatia| Jafirial
proceedings, the very word ^'appesl,'^ rakm
restricted by the context, indicates thel the
facts, as well as the law, invotved ia the
judgment below, may be reviewed ia the i^
rllate court. Wiscart ▼. Daadkf (ITMi
DalL 321, 327 [1:619, 622]; Me
(1890) 135 U. S. 1, 42 [34: 55, 64];
V. Richards (1894) 151 U. & 668, 6C3,
[38:305,307,308].
By secUon 7 of the act of 1823, the r^
of app^d to a court of record was eumsiij
ffiven ''in all cases where the debt or iammi
doth exceed the sum of five dollars, end eii^
er plaintiff or defendant shall think him m
herself aggrieved by the judgment of sbv
justice of^the peace." The words *ia al
cases," in their natural meaning, isifiii
cases which have been tried by a jury brfvt
the justice of the *peace,as well as those tned yK(
by him without a jury; and we pereehv »
necessity and no reason for restnctiag tter
application to the latter class of cases, tai
tnereby allowing the &ct, that upon tht ^
mand of one partr the case has beei xrmk
by a jury before tne justice of Uie pcaei»ti
prevent the other party from appcaliw »
a court of record and obtaining a trial hf
jury in that court.
Neither the direction of section 1, tkal tte
justice of the peace should give jadfaai
"according to the laws existing in tht Di>>
trict of Columbia, and the equity and rifht
of the matter," nor the similar direetin d
section 7, that the case should be detn ■issJ
on appeal "according to law, and the efV^T
and right of the matter," can rcasonaUj ht
construed as conferring chancery jmradw-
tion, either upon the justice of the
one after another; and If any of the persons
whose names shall be so drawn shall not ap-
pear, or shall be challenged and set aside, then
such farther nnmber thereof shall be drawn as
shall make np the nnmber of six who do ap-
pear, after all legal causes of challenge allowed
by the said Justice, unless the said parties agree
that the said constable shall summon six men at
his discretion ; and the said six persons so first
drawn and appearing, and approved by the court
as Indifferent, shall be the Jury who shall try
the cause, to each of whom the said Justice shall
administer the following oath: *You do swear
in the presence of Almighty God, that you will
well and truly try the matter in difference be-
tween— plaintiff and— defendant, and a true
verdict will give according to evidence.*
And after the said Jury have taken the oath
aforesaid, they shall sit together, and hear the
several proofs and allegations of the parties,
which shall be delivered In public In their pres-
ence." [Provision Is then msde for the form
of oath to be administered to witnesses.] **And
after hearing the proofs and allegations, the
Jury shall be kept together In some convenient
place until they all agree upon a verdict, and for
which purpose a constable shall be sworn, and to
whom the said Justice shall administer the fol-
lowing oath, rior..- *ron do swear In the presence
ed Almighty Ood. that you will, to the utmost of
your ability, keep every person sworn on this
Inquest together In some private and convenient
8o6
place, without meat or drink, except
win not suffer any person to speak t»
speak to them yourself, unless by
Justice, unless It be to ssk tkea
have agreed on their verdict, oatll tkcr
agreed on their verdict.* And when tk»
have agreed on their verdict, they aaaU
the same to tbe Justice in the
Is hereby required to give JedgsMat
and to award execution in i
rected.** N. Y. SUt. 1801« chap. 1«&. I IT
**In every action to be brought by vitt»
this act, wherein the sum or balaac* eea
thing demanded, shall exceed twesty-tw i
lars. If either of the parties, the
tomey of either of them, after lasi
before the court shall proceed to laqalrt tas*
merits of the cause, shall demand- e< tht
that such action be tried by a Jary. aad that
Jury shall consist of twelve bma, tbe
be Issued shall In every such
good and lawful men to be su
and the Jury for the trial of ertty
shall In such cases consist of twetv*
stead of alx, as In other cases of tHai
Justice: and the provlaloBs la the
tenth sections of the act above Beat
1818, chap. 6S, re-enactlag the aCstset ef
chap. 165. ii 12. IS], shall be fWl*««a
shall be deemed to apply In eveij
N. Y. Stat. 1818. chap. M. I 2S.
IT4 1L1.
18W.
Oapital T&aotiqh Oo. t. Hov.
89-41
apon the appellate court, or as substituting
the roles of technical equity for the rules <S
law.
The trial by jury, allowed by the seventh
section of the act, in a court of record, in
the presence of a judge having the usual
powers of superintending the course of the
trial, instructing the jury on the law and
advising them on the facts, and setting aside
their verdict if in his opinion against the
lavr or the evidence, was undoubteolv a trial
by jury, in the sense of the common law, and
of the Seventh Amendment to the Constitu-
tion.
But a trial by a jury before a justice of the
peace, pursuant to sections 16 and 16 of the
act, was of quite a different character. Con-
cress, in regulating this matter, mi^ht
doubtless allow cases within the original ju-
risdiction of a justice of the peace to be
tried and decided in the first instance by any
specified number of persons in his presence.
But such persons, even if required to be
twelve in number, and called a jury, were
rather in the nature of special conunission-
era or referees. A justice of the peace, hav-
ing no other powers than those conferred by
Congress on such an officer in the District
of Columbia, was not, properly speaking, a
judge, or his tribunal a court; least of all,
a court of record. The proceedings before
him were not according to the course of the
common law; his authority was created and
defined by, and *rested upon, the acts of Con-
gress only. The act of 1823, in permitting
cases before him to be tried by a jury, did
not require him to superintend the course of
the trial or to instruct the jury in matter of
law; nor did it authorize him, upon the re-
turn of their verdict, to arrest judgment
upcm it, or to set it aside, for any cause what-
ever; but made it his duty to enter judgment
upon it forthwith, as a thing of course. A
body of men, so free from judicial control,
was not a common-law jury; nor was a trial
ty them a trial by jury, within the meaning
of the Seventh Amendment to the Constitu-
tion. It was no more a jury, in the consti-
tutional sense, than it would have been, if
it had consisted, as has been more usual in
statutes authorijsing trials by a jury before
a justice of the peace, of less than twelve
men.
There was nothing, therefore, either in
the Constitution of the United States, or in
the act of Congress, to prevent facts once
tried by such a juiy before the justice of
the peace from being tried anew by a consti-
tutional jury in the appellate court.
VIII. The majoritv of the court of ap-
peals, in the case at bar, in holding that no
appeal lay from a judgment entered by a
justice of the peace on a verdict in the Dis-
trict of Columbia, appears to have been much
influenced by the practice, which it declared
to have prevailed in the District for seventy
years, in accordance with decisions made by
the circuit court of the United States of the
District of Columbia soon after the passage
of the act of Congress of 1823. But the rea-
sons assigned for those decisions are un-
satisfactory and inconclusive.
Such decisions, indeed, were made by the
174 V. B.
eironit oourt in several early cases. DaM
8<m T. Burr (1824) 2 Oranch, C. C. 515 ; Jfod-
dow T. Simoart (1824) 2 Oranch, 0. C. 528;
Denny t. Quem (1827) 8 Oranch, 0. 0. 217;
Smith y. Okaae (1828) 8 Oranch, 0. 0. 848. .
Yet the appellant in one of those cases, whose
appeal haa been dismissed as imauthorized
bf law, was notwithstanding hdd liable on
his bond to prosecute the appeal. Ohaae y.
Smith (1830) 4 Oranch, 0. 0. 90.
The decisions in question would appear,
by the brief notes *of them in the report of [40|
Chief Justice Oranch, to have proceeded
upon the assumption that the trial before a
justice of the peace, by a jury impaneled
pursuant to the act of 1823, was a trial by
jury within the meaning of the Seventh
Amendment to the Constitution, and there-
fore the facts could not be tried anew upon
appeal. In Smith v. Chase, however, that
learned judge (declaring that he spoke for
himself only) delivered an elaborate opinion,
in which he maintained the position that,
upon the demand of a trial by jury, the cause
was taken entirely out of the hands of the
justice of the peace; that he was obliged to
summon and swear the jury, and to render
judgment according to their verdict; that
CO authority was given him to instruct the
jury upon matter of law or of fact, or to
set aside their verdict and grant a new trial;
and that the jury were not boimd by his
opinion upon matter of law, but were to de-
cide the law as well as the fact. 3 Oranch,
C. 0. 351, 352. From these premises he in-
ferred (by what train of reasoning does not
dearly appear) that such a trial oy a jury
before the justice of the peace was a trifu by
jury within the meaning of the Seventh
Amendment to the Constitution; that the
facts so tried, therefore, could not be tried
anew in an appellate court; and that no ap-
[:<eal la^ in such a case. Curiously enough,
that opinion, purporting to have been deliv-
ered at December term, 1828, refers to the
opinion of this court in Parsons v. Bedford^
3 Pet. 446-448 [7: 736, 737], which was not
delivered until Januaiy term, 1830.
In 1863, all the powers and jurisdictioii»
previously possessed by the circuit court of
the District, including the appellate jurisdio-
tion from justices of the peace, were trans-
ferred by Confess to the supreme court of
the District of Columbia. Act of March 8,
1863, chap. 91, §9 1, 3, 12; 12 Stat, at L.
762-764. [Rev. Stat. D. 0. 99 760, 1027.]
The foresoing decisions of- the circuit
court were followed in the supreme court of
the District at general term in 1873, with-
out much discussion, in Fitzgerald v. Leia-
vhan, 3 MacArth. 6; and at special term in
1896, by Justice Bradley in [United States],
Bright wood Railioay Co,, v. O'Neal, 24 Wash.
L. Rep. 406, and by Justice Cox in the pres-
ent case. Oapital Traction Co, v. Hof, 24
Wash. L. Rep. 646. *But each of these two [41]
judges, while holding himself bound by the
previous decisions of the courts of the Dis-
trict, expressed a clear and positive opinion
that they were erroneous.
Apart from the inconsistencies in the opin-
ions delivered in the courts of the District of
Columbia, it is quite clear that tiie decisions
887
41-48
Supreme Court of the United States.
Oct. Texii,
eoiirt49, especially when they involve
fotftioiii of the interpretation of the Con-
■iitation of the United States, and of the
coBBtitationality and effect of acts of Con-
grwB, cannot be considered as establishing the
uiw, or as relieving this court from the re-
sponsibility of exercising its own judgment.
Em parte WiUon (1885) 114 U. S. 417, 425
[29: 89, 02] ; Andrews v. Hovey (1888) 124
U. S. 694, 717 [31 : 657,563] ; The J. B. Runi-
hell (1893) 148 U. S. 1, 17 [37: 345, 349].
IX. The legislation of Congress since the
oct of 1823 has not changed the character
of the oSRce, or the nature of the powers, of
the justices of the peace in the District of
Columbia, or of the juries summoned to try
cases before those justices. The principal
changes have been by enlarging the limits
of the civil jurisdiction of the justices of
the peace, and by expressly requiring secu-
ri^ on appeals from their judgments.
By the act of February 22, 1867, chap. 63,
I 1 (14 Stat, at L. 401), Congress enlarged
the jurisdiction of justices of the peace in
the District of Columbia to "all cases where
the amount claimed to be due for debt or
damages arising out of contracts, express or
implied, or damages for wrongs or injuries
to persons or property, does not exceed one
hundred dollars, except in cases involving
the title to real estate, actions to recover
damages for assault, or assault and battery,
or for malicious prosecution, or actions
against justices of tne peace or other officers
for misconduct in office, or in actions for
slander, verbal or written." [Rev. Stat. D.
G. I 997.] And on the same day, (Congress,
by the act of 1867, chap. 64 ( 14 Stat, at L.
403), provided that "no appeal shall be Id-
lowed from a judgment of a justice of the
peace, unless the appellant, with sufficient
surety or sureties, approved by the justice,
enter into an imdertaking to satisfy and pay
all intervening damages and costs arising
C4S] on the appeal;'' and that, "when such*under-
takin^ has been entered into, the justice
shall immediately file the original papers, in-
cluding a copy of his docket entries, in the
office of the clerk of the supreme court of
the District of Columbia ; and thereupon, as
soon as the appellant shall have made the
deposit for costs required by law, or ob-
tained leave from one of the justices, or from
the court, to prosecute his app^ without a
deposit, the clerk shall docket the cause,"
aiKl it should be proceeded with substantial-
ly in the manner prescribed by the act of
Congress of 1823. [Rev. Stat D. C. 19
774, 1027-1029.]
In 1874, the provisions, above quoted, of
the acts of 1823 and 1867, were re-enacted
( with hardly any change except by subdivid-
ing and transposing sections) in the Revised
Stotutes of the District of Columbia, at the
places above referred to in brackets.
By the act of February 19, 1895, chap. 100.
91 1, 2, justices of the peace of the District
of Columbia have been granted (with the
same exceptions as in the act of February 22,
1867, chap. 63, also excepting, however, ac-
tions for damages for breaches of pn^mise to
marry, and not excepting actions loi assault
888
or for assault and battery) esdosive orip-
nal jurisdiction of "all civil picas aad mo-
tions, including attachment and replcm.
where the amount claimed to be dne or tte
value of the property sought to be icuwced
does not exceed*' one hundred doOan. si^
concurrent original jurisdiction with the «•-
preme court of the District id Colnmha,
where it is more than one hundred and ftc«
more than three hundred doQars; '^tai
where the sum claimed exceeds twenty ^i-
lars, either party shall be entitled to a trii]
bv jury." And by 9 3, "no appeal ikall be
allowed from the judgment of a justice of the
peace in any common-law action, unless tW
matter in demand in such action, or plesM
in set-off thereto, shall exceed the sum of irt
dollars; nor unless appellant, with svflidcit
surety approved by the justice, enters oto
an undertaking to pay and satisfy whatervr
final judgment may be recovered in the tp>
pellate court." 28 SUt at L. 668.
Under the act of 1895, as ondo- the prefv
ous acts of Congress, where th« matter ia
controversy exceeds five dollars in raise, ti
appeal lies to a court of record fron tir
judgment *of a justice of the peace, whrt^[4
rendered upon a verdict or not» and cttW*
party may have a trial by a eommoa-)a«
jury in the appellate court ; and the trial bf
jury in that court is, and the trial bdan «
justice of the peace b not, a trial hj jarv
within the meaning of the Seventh
ment to the Constitution.
The only question remaining to be
ered is of the constitutionality of the pfvn-
sions of the act of 1895, by which the ml
jurisdiction of justices of the peaec i» ex-
tended to three hundred dollars, and extbr-
party, on appealing from the judgmeit of
the justice of the peace to the supmne cort
of the District of (Jolumbia, is required to ct-
ter into an undertaking to pay and tatiiff
whatever judgment may l>e rendered ta thst
court.
For half a century and more, as has Wm
seen, after the adoption of the earliest €^
stitutions of the several states, their eo«rt>
uniformly maintained the constitntioaslitT
of statutes more than doubling the pcciisU'7
limit of the civil jurisdiction of justiea W
the peace as it stood before the adoptioa d
Constitutions declaring that trial bj jtrt
should be preserved inviolate, although thvc
statutes made no provision for a trial If
jury, except upon appeal from the juii;— >
of the justice of the peace, and upon p^iiC
bond with surety to pay the judifmcat ■
the appellate court. And such appear* I*
have been understood to be the law of iiMn-
land and of the District of ColuBibia Meet
and at the time of the passage of the act W
Congress of 1823.
L^islation increasing the elvi] jaiwftp
tion of justices of the peace to two or thne
hundred dollars, and requiring each apfti-
lant from the judgment of a justiee of tht
peace to a court of record, in which a trisl If
jury may be had for the first time, to fire •»-
curity for the payment of the judgmeat if
led to, has not generally hMi
the court appealed
174 Q.&
Capital Traction Co. v. Hof.
i8-4(^
(onsidered as unreasooably obstructing the
i^ht of trial by jury, as is shown by the
lumerous statutes cited in the marginf
'from which it appears that the civil juris-
liction of justices of the peace has been in-
xeased to three hundred dollars in Pennsyl-
'ania, Ohio, Michigan, Kansas, Arkansas,
>>lorado, and CaliKirnia; to two hundred
ind fifty dollars in Missouri; and to two
Lundred dollars in New Yorlr Indiana, lUi-
lois, Wisconsin, Delaware, North Carolina,
^lississippi, and Texas; and that the appel-
ant is required (at least when the appeal
s to operate as a supersedeas) to enter into
i bond or recognizance, not onlv to prosecute
lis appeal, but to pay the judgment of the
ippellate court, in all those states, except
Pennsylvania; and in that state any corpo-
ration, except a municipal corporation, is re-
quired to give such a bond, but other appel-
lants are required to give bond for the pay-
ment of costs only. And we have not been
referred to a single decision in any of those
states that holds such a statute to be uncon-
stitutional in any respect.
The legislature, in distributing the judi-
cial power between courts of record, on the
one hand, and justices of the peace or other
subordinate magistrates, on the other, with
Gi view to prevent unnecessary delay and un-
reasonable expense, must have a considerable
discretion, whenever in its opinion, because
*of general increase in litigation, or other
change of circumstances, the interest and
convenience of the public require it, to en-
large within reasonable bounds the pecuni-
ary amounts of the classes of claims entrust-
ed in the first instance to the decision of jus-
tices of the peace, provided always the right
of trial by lury is not taken away in any
case in wnicn it is secured by the Constitu-
tion.
Havinff regard to the principles and to the
precedents applicable to this subject, we
should not be warranted in declaring that
the act of Congress of 1895 so unreasonably
obstructs the right of trial by jury, that it
must for this reason be held to be unconsti-
tutional and void.
X. Upon the whole matter, our conclusion
is, that Confess, in the exercise of its gen-
eral and exausive power of legislation over
the District of Columbia, may provide for
the trial of civil causes of moderate amount
by a justice of the peace, or, in his presence,
by a jury of twelve, or of any less number,
ulowmg to either party, where the value in
controversy exceeds twenty dollars, the right
to appeal from the judgment of the justice
of the peace of a court of record, and to have
a trial by jury in that court; that Congress,
in every case where the value in controversy
exceeds five dollars, has authorized either
partj to appeal from the judgment of the
justice of the peace, although entered upon
the verdict of a jury, to the supreme court
of the District oi Columbia, and to have a
trial by jury in that court; that the trial by
a jury of twelve, as permitted by Congress-
to be had before a justice of the peace, is not,
and the trial by jury in the appellate court
is, a trial by jury, within the meaning of the
common law, and of the Seventh Amendment
to the Constitution ; that therefore the trial
of facts by a jury before the justice of the
peace does not prevent those facts from being
re-examined by a jury in the appellate court;
that the ri^ht of trial by jury in the appel-
late court IS not unduly obstructed by the
provisions enlarging the civil jurisdiction of
lustices of the peace to three hundred dol-
lars, and requiring every appellant to give
security to pay and satisfy the jud^ent of
the appellate court; that the legislation oi
Congress upon the subject is in all respects
consistent *with the Constitution of the [46}
United States; and that upon these grounds
(which are substantially those tiucen by
Chief Justice Alvey below) the judgment of
the court of appeals, quashing the writ of
certiorari to the justice of the peace, must
be affirmed.
The efTect of so affirming that judgment
will be to leave the claim of Hof agaiiut the
Capital Traction Company open to be tried
by a jury before the justice of the peace, and,
after his judgment upon their verdict, to be
taken by appeal to the supreme court of the
District of Columbia, and to be there tried
by jury on the demand of either party.
Judgment affirmed.
Mr. Justice Brewer concurred in the
judgment of affirmance, but dissented from sa
much of the opinion as upheld the validity
of the provision of the act of Congress re-
quiring every appellant from the judgment
of a justice of the peace to give oond with
surety for the payment of the judgment of
the appellate court.
Mr. Justice Brown did not sit in this-
case, or take any part in its decision.
tAxKANBAB. Digest 1894. H 4317. 4431,
4432.
California. Code of Civil Procedure 1872,
II 114, 974, 978.
CoLOBADO. Rev. Stat. 1867, chap. 60, || 1,
38, 39 ; Gen. Laws 1877, H 1482, 1619, 1520 ;
Gen. Stat. 1888, H 1924, 1979, 1980.
Dei^wabb. Rev. Stat. 1893, chap. 99. if 1, 25.
iLLiiroiB. Rev. Stat. 1874. chap. 79. Sl 18,
62 : Starr ft Curtls*s Stat 1896, chap. 79, || 16,
115.
IKOIANA. R.T. Stat. 1881. ii 1438, 1600.
Kansas. Qen. Stat. 1868, chap, 81, 1 1 2,
121: Gen. Stat. 1897. chap. 103, || 20. 188.
Michigan. Rev. Stat. 1872, SS 5249, 5438;
174 V. B.
Howell's Stat. 1882, H 6814, 7000.
Mississippi. Code 1892, || 2394. 82.
MissouBi. Rev. Stat. 1889, || 6122, 6328.
New Tobk. Stat. 1861, chap. 158; Rev.
Stat. 1875, 6th ed. pt. 8. tit. 2, i 56; tit. 4,.
I 63.
NOBTH Cabolina. Codo 1883, IS 834, 884.
Ohio. Rev. Stat. 1880, IS 585, 6584.
Pbnnstlvania. Stat. July 7, 1879, chap.
211 : Pardon's Digest 1886, 11th ed. Justice of
the Peace, Sl 35, 99, 100.
Tbxas. Rev. Stat. 1879, SI 1539, 1639 ; Rev.
Stat. 1896, Si 1568. 1670.
Wisconsin. Rev. Stat. 1878, H 3672, 8766 ;
Stat. 1898, II 3572, 3760.
88»
46,47
SUPBBICB COUBT OF THB UlOTBD StATSS.
Oct.
HETROPOUTAN RAILROAD COMPANY,
Plff. in Err.,
V,
SAMUEL R. CHURCH.
BRIGHTWOOD RAILWAY COMPANY,
Plff. in Err.,
V.
LEW 28 L O'NEAL and James T. H. Landpn.
(See 8. C. Reporter's ed. 46.)
No. ^f^f Capital Traction Company ▼. Hof,
ante, p. h73, followed.
[Nos. 114, 105.]
Argued 9m4 Submitted January 5, 6, 1899.
decided AprU 11, 1899.
IN ERR0R to the Court of App^s of the
District of Columbia to review judgments
of that court.
See same case below, 11 App. D. C. 57.
Messrs. D. W. Baker and Ifathaniel Wi^
son for Metropolitan Railroad Company,
plaintiff in error.
Mr. Ernest Ii. Sehinidt for Samuel R.
Church, defendant in error.
Messrs. Henry P. Blair and Corcoran
Thorn for the Brightwood Railway Company,
plaintiff in error.
Messrs. Raymond A. Heiskell and II.
J. Colbert for O'Neal et ol., defendants in
orror.
Bt the Coubt:
In No. 114, Metbopolitan Railway
CoicPANY Y. Chxtbch, and No. 105, Bright-
WOOD Railway CoicpAirr v. O'Neal, argued
at the same time, the judgments of the court
of appeals of the District of Columbia, quash-
ing writs of certiorari to set aside proceed-
ings of a justice of the peace under similar
dreumstancesy are likewise affirmed.
C471 JOE KIRBY, Plff. in Err.,
V.
UNITED STATES.
(See 8. C. Reporter's ed. 47-64.)
Presumption of innocenoe of aooused — act of
March S, 1875, as to evidence, unoonstitu-
tiondl- — indictment for receiving stolen
property of the United States — need not
state from whom property was received.
1. The presnmptlon of the Innocence of tlie ac-
cused attends him thronghoat the trial, and
has relation to every fact that mast be es-
tablished In order to prove his gallt beyond
reasonable doubt.
t. The proYlslon of the act of March 8, 1875,
tLat the Jndgment of conTlctlon against the
principal felons shall be evidence In the prose-
cntlon against the receiver, that the property
of the United States, alleged to have been
•mbeisled, stolen, or pnrlolned, had been em-
bessled, stolen, or purloined. Is In violation
of the danse of the United States Constitn-
890
tlon that in criminal proeefttaM the
shall be confronted wfUi tke
against hloL
8. An Indictment for reeefvtng stolen
of tlie United States sofldeatly aUefn Id
ownership of the property when It vw bK
nioosly received by the accused, by niksiH
that the property was that sf the Uaioi
States when stolen, and was stolen tve ian
previously to Its being received by kte. aai
that he received it knowing that It hal has
stolen.
4. An Indictment for reoeiTlng
need not state from wliom
celved it, or state tliat the
son Is unknown to the grand imofs.
[No. 164.]
Argued January 20, 1899.
11, 1899.
Deeid^ AjH
IN ERROR to the District Court of tk
United SUtes for the District of Son
Dakota to review a judgment of that onn
convicting the plaintiff m error, Joe Kirt?
for feloniously reodving property usia
fiom the United States, wiUi intent to r-»
vert the same to his own use. Emtnd.
and case remanded with directions for i
new trial and for further proceedings.
The facts are stated in the opinion.
Messrs. A. O. Sandford, C. O. Bmk$.tgi
Joe Kirhy, propria persona, for the piiii
tiff in error:
The finding of a sufficient indictaot ^
a grand jury is jurisdictional and s r^
of which the accused, under the CosititY
tion, cannot be deprived.
Ex parte Bain, 121 U. S. 1 JO L. el S<1
The first count in the indiotmsnt tsie
which the plaintiff in error was eoancti4
is fatally defective. Every ingrediest d
which the crime is composed moot bo act*-
ally and clearly all^ea.
United States v. Cook, 17 Wall ITi t
L. ed. 539 ; United States ▼. Cruiktkml, K
U. S. 542, 23 L. ed. 588; Reg. v. JTsrti^ »
Car. ft P. 215.
The ownership of the property of th
United States is a jurisdictional qwftia
and such owner^ip at the time the crim *
charged to have been oonunitted ■:b* ^
distinctly alleged and proved.
Affierbach v. McOovim^ 79 Cat MB; *»
ler V. People, 18 Colo. IW; StaU v. tr*
17 Wis. 238; People ▼. Fice, 21 Csl W'
Biggins v. State (Tex. App.) 19 a W. W
State V. Lathrop, 15 Vt. 279 ; Thsmm t
State, 96 Ga. 311.
The indictment is also defective » *J^ *'"
fails to all^^ from whom the plsistif »
error received the stamps which hU ■>■
stolen. ,_
United States ▼. De Bare, 6 Bioa ^
State V. Ives, 85 N. C. (IS Ired. Li »
Foster v. State, 106 Ind. 272 : 2 BiA. >••
Cr. Law, | 1140. .. _
The indictment is also fatally ^ST
for duplicity; it contains coaipMs wJJ
ments against the principal felons, sni »»•
is claimed to be an indiotascnt sgtisot •
plaintiff in error. ^
U. S. Rev. Stat. 9 1024; Sffs » f^ j;
174 0.*
1803.
KiBBT T. UnTBD 8TATB8.
47-49
Wis. 238; Bide t. Longley, 10 Ind. 488|
EllioU y. State, 20 Ala. 80; Btaie y. Doif-
hert, 42 Mo. 242; Btate y. EM, 07 N. 0. 474;
K<at« y. Waimoriaht, 00 Ark. 280.
Tbe mere fact uiat a party has, in the ab-
senoe of the accused, said that he himself is
guilty, is not to be received as eyidence suf-
ficient to justify the conviction of the ae-
cuflcd.
Com, y. miiha, 8 Gray, 460; Btate y.
yeicport, 4 Harr. (Del.) 567; Btate v. Ar-
KoM, 48 Iowa, 566; Btate v. Westfall, 49
Iowa, 328; Hioks*8 Case, 1 N. Y. City Hall
Bee 66; People v. Kraker, 72 Gal. 459; Reg.
V. Jiohinson, 4 Fost. & F. 43; I2«y. y. Pratt,
4 Fost ft F. 315.
If the record of the conviction of the prin-
cipal fdons be laid out of the case, there is
then no evidence that the property was
'^stolen property," and the verdict must be
set aside.
Btate V. Cavenesa, 78 N. C 484.
The possession of stolen stamps by a reg-
ular practitioner in the court ought not to
be considered as a presumption i^ainst him,
unless lon^ continued and coupleawith some
other incriminating circumstances.
Durant v. People, 13 Mich. 351; Btate v.
BuUa, 89 Mo. 595 ; Btate v. Caveneae, 78 N.
C. 484; Wilson v. Btate, 12 Tex. App. 481.
Mr, Jaates E. Boyd, Assistant Attorney
General, for defendant in error:
Commonly in England and in numbers of
our states, the indictment does not aver
from whom the stolen goods were received.
3 Chitbr, Crim. Law, 991 ; Arch. Crim. PI.
ft Ev. lOth Lon. ed. 269, 19th ed. 472; Arch.
New Crim. Proc. 474; Jupitz v. People, 34
HI. 516; Cohen v. People, 5 Park. Crim.
Rep. 330; Btate v. Murphy, 6 Ala. 845; Com,
v. Lakeman, 5 Gray, 82 ; Queen v. Oold-
tmith, L. R. 2 C. C. 74 ; Horan v. Btate, 24
Tex. 161; Rew v. Jervia, 6 Car. ft P. 156;
Thoma^a Caae, 2 East, P. C. 781.
I *Mr. Justice Harlan delivered the opin-
ion of the court:
The plaintiff in error Kirby was indicted
in the district court of the United States
for the southern division of the district of
Scut^ Dakota under the act of Congress of
I March 3d, 1875, "entitled "An Act to Punish
Certain Larcenies, and the Receivers of
Stolen G<x>ds." 18 Stat, at L. 479, chap. 144.
The first section provides that "any person
who shall embezzle, steal, or purloin any
money, property, record, voucher, or valuable
thing whatever of the moneys, goods, chat-
tels, records, or property of the United
States shall be deemed guilty of felony, and
on conviction thereof before the district or
circuit court of the United States in the dis-
trict wherein said offense may have been
committed, or into which he shall carry or
have in possession of said property so em-
bezzled, stolen, or pnrloinea, snail be pun-
ished therefor bj imprisonment at hard la-
bor in the penitentiary not exceeding five
years, or by a fine not exceeding five thou-
sand dollars, or both, at the discretion of the
court before which he shall be convicted."
By the secon«l section it is provided that
*1f any person shall receive, conceal, or aid
X74 V. B.
in concealing, or have, or retain in his pot-
session with intent to convert to his own um
or gain, any money, property, record, vouch-
er, or valuable Uiing wnatever, of ihm
moneys, goods, chattels, records, or proper^
of the United States, which haa theretofore
been embezzled, stolen, or purloined, such
person shall, on conviction before the circuit
or district court of the United States in the
district wherein he may have such proper^,
be punished by a fine not exceeaing five
thousand dollars, or imprisonment at hard
labor in the penitentiary not exceeding five
years, one or both, at the discretion of the
court before which he shall be convicted; and
such receiver may be tried either before or
after the conviction of the principal felon,
but if the party has been convicted, then the
judgment affainst him shall be conclusive evi-
dence in the prosecution against such re-
ceiver that the property of the United States
therein depcribed has been embezzled, stolen,
or purloined." 18 Stat, at L. 479, chap. 144.
The indictment contained three counts,
but the defendant was tried only on the first.
In that count it was stated that Thomas J.
Wallace, Ed. Baxter, and Frank King on the
7th day of June, 189G, at Hiehmore, within
the jurisdif-tion of the court, feloniously and
forcibly broke into a postoffice of the United
States, and feloniously stole, took, and car-
ried away *therefrom certain moneys and[M]
property of the United States, to wit: 3,750
postage stamps of the denomination of two
cents and of the value of two cents each, 1,-
266 postage stamps of the denomination of
one cent and of the value of one cent each, 140 .
postage stamps of the denomination of four
cents and of tne value of four cents each, 250
postage stamps of the denomination of five
cents and of the value of five cents each, 80
postage stamps of the denomination of eight
cents and of the value of eight cents each,
and also United States Treasury notes, na-
tional bank notes, silver certificates, gold
certificates, silver, nickel, and copper coins of
the United States as well as current money of
the United States, a more particular descrip-
tion of whidi the grand jury were unable to
ascertain, of the value of $58.19; and that
the persons above named were severally in-
dict^ and convicted of that offense, and had
been duly sentenced upon such conviction.
It was then alleged that the defendant on
the 9th day of June, 1896, at the ci^ of
Sioux Falls, the postage stamps "so as afore-
said feloniously stolen, taken, and carried
away, feloniously did receive and have in his
possession, with intent then and there to con-
vert the same to his own use and gain, the
said Joe Kirby then and there well Knowing
the said postage stamps to have been there-
tofore feloniously stolen, taken, *and carried
away, contrary to the form, force, and effect
of the statutes of the United States in such
cams made and provided and against the
peace and dignity of the United States."
At the trial of Kirby the government of-
fered in evidence a part of the record of the
trial of Wallace, Baxter, and King, from
which it appeared that Wallace and Baxter
after severally pleading not guilty withdrew
their respective pleas and each pleaded
891
49-62
SUPB£M£ COUBT OF THE UNITED STATES.
Oct.
gouty and was senteuced to confinement in
tjie penitentiary at hard labor for the term
of four years. It appeared from the same
record that King having pleaded not guilty
was found guilty and sentenced to the pen-
itentiary at hard labor for the term of five
years.
The admission in evidence of the record of
the conviction of Wallace, Baxter, and King,
was objected to upon the ground that the
above act of March 3d, 1875, was unconsti-
fM] tutional so *far as it made that conviction
conclusive evidence in the prosecution of the
receiver that the property of the United
States described in the indictment against
him had been embezzled, stolen, or purloined.
The objection was overruled, and the record
offered was admitted in evidence, with ex-
ceptions to the accused.
After referring to the provisions of the act
nf March 3d, 1875, and to the indictment
against Kirby, the court,' among other
things, said in its charge to the jury: "In
order to make out the case of the prosecu-
tion, and in order that you should be author-
ized to return a verdict of guilty in this
case, you must find beyond a reasonable
doubt from the evidence in the case certain
propositions to be true. In the first place it
must be found by you beyond a reasonble
doubt that the property described in the in-
dictment, and whicn is also described in the
indictment against these three men [Wal-
lace, Baxter, and King] who it is alleged
have been convicted, was actually stcuen
from the postofiice at Highmore, was the
property of the United States and of a cer-
tain value. Second. You must find beyond
a reasonable doubt that the defendant Joseph
Kirby received or had in his possession a
portion of that property which had been
stolen from the postoffice at Highmore.
Third. That he received or had it in his pos-
session with intent to convert it to his own
use and gain. Now, upon the first proposi-
tion— as to whether the property described
in the indictment was stolen as alleged in the
indictment — the prosecution has introduced
in evidence the record of the trial and con-
viction of what are known as the principal
felons — ^that is, the parties who it is alleged
committed the larceny. Now, in the ab-
sence of ernj evidence to the contrary,
the record is sufficient proof in this
case upon which you would be author-
ized to find that the property alleged in that
indictment was stolen as alleged; in other
words, it makes a prima facie case on the
part of the government which must stand as
sufficient proof of the fact until some evi-
dence is introduced showing the contrary,
and., there being no such evidence in this
case, you will, no doubt, have no trouble in
[51 J cominff to a conclusion that the property *de^
scribed in the indictment was actually
stolen, as alleged, from the postoffice at
Highmore. But I don't want you to un-
derstand me to say that that record proves
that the stamps that were found in Kirby's
possession were stolen property, or that they
were the stamps taken from the Highmore
postoffice. Upon the further proposition that
the court has suggested, after you have
892
found, by a careful consideratioii of dl fls
evidence, beyond a reasonable doulit, tkat te
property alleged in the indictment was at*-
len, then you will proceed to eamaia
whether or not the defendant erer at amf
time, either on the date alleged in the iaiikt-
ment or any other date within three yean
previous to the finding of the indictmest
had in his possession or received any of tiu
property which was stolen from the poet-
office at Highmore. Now, in order to tai
the defendant guilty of the offoise chaifei
in the indictment, you would have to ind ht*
yond a reasonable doubt from all the cn-
dence that he either actually received a por-
tion or all of the property which was tfals
from the postoffice at Highmore, and that W
leceived that property from the thief a
thieves who committed the theft at the HifW
more postoffice or some agent of these tkiem.
The statute punishes, you will obserre, hmi
the receipt of stolen property, Imowiaf it t»
have been stolen, with the intent descrftei n
the statute, and also the havii^ in the p»>
session of such property, knowing it to ks*
been stolen, with the intent to conrert it %
the person's own use or gain. If yoa iti
beyond a reasonable doubt that any of tk
property which was st<^en at the podoiet
at Highmore was actually receired or kaA n
the possession of the defendant, thci vn
cannot convict unless you further ftad tbl
the defendant had the property in hit vw-
sesfion or received it from the thief or ka
agent, knowing at the time that it was itoiM
property. Now, upon the qnestiaa jf
whether the defendant knew that it «v ««'
len property, you will, of course ctm^idm C
the evidence in the case. You have tW nctt
to find that the person or the deta^ut
knew that it was stolen property froa t^
admissions he may have made, if ht mt^
any, if there is such evidence in the cmk, r
from other circumstances that yoa *"*^^
have the right to infer 'that he* did tir«!M
Now, if a person received property vdr
such circumstances that would satisfy i wm
of ordinary intelligence that it was ita^
property, and you nirther find berood • n»
sonable doubt that he actually did bdic** '
was stolen property, then you have • n(tt
to infer ana find that at the time of tk *«'
ceipt of the property the person knev t^
it was stolen. Now, the next point ia ih
case is in regard to the intent the ikfia^ii*
had in regard to the use or diaponl d ^
property. The statute requires that tin i**
ceipt of stolen property, knowing it to hi«
been stolen, must also be wiih the oM^ *
convert it to the use of the party in «^
possession it is found. There are tttti*
wliich simply punish the knowii^r r«e«>*
ing of stolen property. That was the t^
mon law. But tnis statute has addci t^
further ingredient that it most be 6om "^
the intent to convert it to the party's «<*
US') and gain. It was probably pot ii f*
the reason that the statute ^oes fmrthtf i^
the common law, making it pmishaUi ^
conceal or aid in concealing with tsM *
convert it to his own use and gata. S«**
all these propositions that 1 have cha/^
must be made out by the proMcvtiaa <f
174 U.i
1898.
KiBBT Y. UiaTBD STATES.
5^-55
eonne^ beyond a reasonable doubt, and in
case 70a have a reasonable doubt of any of
these ingredients, it will be your duty to ac-
quit the defendant."
In response to a request from the jury to
be further instructed, the court, after refer-
ring to the indictment and to the second sec-
tion of the act of 1875, said: ''This indict-
ment does not contain all the words of tiie
statute. This indictment charges the de-
fendant with having, on the 9th day of June,
1896, received and had in his possession these
postage stamps that were stolen from the
Unit^ States at Highmore. Now, if you
should find beyond a reasonable doubt from
all the testimony in the case, in the first
place, that the postage stamps mentioned in
the indictment or any of them were stolen
from the poetofiice at Highmore by these par-
ties who, it is alleged, did steal them, and
you further find beyond a reasonable doubt
tluit these postage stamps or any portion of
them were on the 9tb day of June, 1896, re-
ceived by the defendant from the thieves or
their ajs^ent, knowing the same to have *been
so stolen from the United States by these
parties, with the intent to convert the same
to his own use or gain, or if you find beyond
a reasonable doubt that they were so stolen
at the Highmore postoffice, as I have stated,
and that the defendant, on or about the 9th
day of June had them in his possession or
any portion of them, knowing the same to
have been so stolen, with the intent to
convert the same to his own use and gain,
and you will find all these facts beyond a
reasonable doubt, you would be authorized to
return a verdict of guilty as charged."
The jury returned a verdict of guilty
against Kirby. The exceptions taken by him
at the trial were sufficient to raise the ques-
tions that will presently be considered.
As shown by the above statement the
eharffe against Kirby was that on a named
day he feloniously received and had in his
possession with intent to convert to his own
use and gam certain personal property of
the United States, theretofore feloniously
stolen, taken, and carried away by Wallace,
Baxter, and King, who had been indicted
and convicted of the offense alleged to have
been committed by them.
Notwithstanding the conviction of Wal-
lace, Baxter, and King, it was incumbent
upon the government, in order to sustain its
charge against Kirby, to establish beyond
reasonable doubt: ( 1 ) That the property de-
scribed in the indictment was in fact stolen
from the United States; (2) that the de-
fendant received or retained it in his posses-
sion, with intent to convert it to his own use
>r gain; and (3) that he received or re-
tained it with Knowledge that it had been
stolen from the United States.
How did the government attempt to prove
the essential fact that the property was
stolen from the United States? In no other
wsLj than by the production of a record show-
ing the conviction under a separate indict-
ment of Wallace, Baxter, and King — the
judgments against Wallace and Baxter rest-
ing wholly upon their respective pleas of
?u]Ity, while the judgment against King
174 U. 8.
rested upon a trial and verdict of guilty.
With the record of those convictions out of
the present case, *there was no evidence [54]
v/hatever to show that the property alleged
to have been received by ^rby was stcuen
from the United States.
We are of the opinion that the trial ooort
erred in admittingin evidence the record ci
the convictions of Wallace, Baxter, and King,
and then in its charge saying that in the ah-
sence of proof to the contrary the fact that
the property was stolen from the United
States was sufficiently established against
Kirb^ by the mere production of the record
showing the conviction of the principal fel-
ons. Where the statute makes the convic-
tion of the principal thief a condition prece-
dent to the trial and punishment of a re-
ceiver of the stolen property, the record of
the trial of the former would be evidence in
the prosecution against the receiver to show
that the principal felon had been convicted;
for a fact of tnat nature could only be es-
tablished by a record. The record of the con-
viction of the principals oould not, however,
be used to establish, i^inst the alleged re-
ceiver, charged with the commission of an-
other and substantive crime, the essential
fact that the property all^ofed to have been
feloniously received by him was actually
stolen from the United States. Kirby was
not present when Wallace and Baxter con-
fessed their crime by pleas of guilty, nor
when King was proved to be guilty by wit-
nesses who personally testifi^ before the
jury. Nor was Kirby entitled of right to
participate in the trial of the principal fel-
ons. If present at that trial he would not
have been permitted to examine WaHace and
Baxter upon their pleas of guilty, nor
cross-examine the witnesses introduced
against King, nor introduce witnesses to
prove that they were not in fact guiltj of
the offense charged against them. If he
had sought to do either of those things— even
upon the ground that the conviction of the
pricipal felons might be taken as establish-
ing prima facie a vital fact in the separate
prosecution against himself as the receiver
of the property — the court would have in-
formed nim that he was not being tried and
could not be pennitted in anywise to inter-
fere with the trial of the principal felons.
And yet the court below instructed the iury
that the conviction of the principal felons
upon an indictment *against them alctne was [65]
sufficient prima facie to show, as i^inst
Kirby, indicted for another offense, the ex-
istence of the fact that the property was
stolen — a fact which, it is conceded, the
United States was bound to estahlish beyond
a reasonable doubt in order to obtain a ver-
dict of guilty against him.
One of the fimdamental ffoarantf es of life
and liberty is found in the Sixth Amendment
of the Constitution of the United States,
which provides that "in all criminal proeeca-
tions the accused shall ... be eon*
fronted with the witnesses against him." In-
stead of confronting Elirby with witnesses to
establish the vital fact that the propertv al-
leged to have been received by hun had been
stolen from the United States, he was eon-
SOS
5^-68
SUFUOOB OOUST or THB Uhixkd Sxaibb.
Oct.
fronted only with the record of another crim-
inal prosecution, with which he had no con-
nection and the evidence in which was not
riven in his presence. The record showing
tb» result of the trial of the principal felons
was undoubtedly eyidence, as asainst them,
in respect of every fact essential to show
their guilt. But a fact which can be pri-
marily established only by witnesses cannot
be proved against an accuised—- charged with
a different offense for which he may be con-
victed without reference to the principal of-
fender—except by witnesses who confront
him at the trial, upon whom he can look
while bein^ tried, whom he is entitled to
cross-examine, and whose testimonv he may
impeach in every mode auUiorized by the es-
tablished rules governing the trial or con-
duct of criminal cases. The presumption of
the innocence of an accusea attends him
throughout the trial, and has relation to
every fact that must be established in ordra'
toprove his guilt bevond a reasonable doubt.
"Tnis presumption,'' this court has said, "is
an instrument of proof created hj the law in
favor of one accused, whereby his innocence
is established until sufficient evidence is in-
troduced to overcome the proof which the law
has created." Coffin v. United States, 156
U. S. 432, 450 [39 : 481, 493]. But that pre-
sumption in Kirhy'a Case was in effect held
in the court below to be of no consequence;
for as to a vital fact which the government
[S6] was bound to establish affirmativdy, *he was
put upon the defensive almost from the out-
set of the trial by reason alone of what ap-
peared to have been said in another criminal
prosecution with which he was not connected
and at which he was not entitied to be rep-
resented. In other words, the United States
having secured the conviction of Wallace,
Baxter, and King as principal felons, the de-
fendant charged by a separate indictment
with a different crime — ^that of receiving the
property in question with knowledge that it
was so stolen and with intent to convert it
to his own use or gain — ^was held to be pre-
sumptively or prima facie guilty so far as
the vital fact of the property having been
stolen was concerned, as soon as the govern-
ment produced the record of such conviction
and without its making any proof whatever
by witnesses confronting the accused of the
existence of such vital ract. We cannot as-
sent to this view. We could not do so with-
out conceding the power of the legislature,
when 'prescribing the effect as evidence of
the records and proceedings of courts, to im-
pair the very substance of a right long
deemed so essential for the due protection of
life and liberty that it is guarded a^nst
legislative and judicial action bv nrovisions
in the Constitution of the United States and
in the Constitutions of most, if not of all,
the states composing the Union.
lliis precise question has never been before
this court, and we are not aware of any ad-
judged case which is in all respects like the
present one. But there are adjudications
which proceed upon grounds that point to
the conclusion reacheu by us.
A leading case is Rew v. Turner, 1 Moody,
C. C. 347. In that case the prisoner was in-
894
prove a
dieted for f elonionaly
Sarah Kich certain goods and ehattris
tofore feloniously stolen by her fro
Martha Clarke. At the trial before Mr. J»
tice Patteson it was proposed to
confession of Sarah Rich, made before a
istrate in the presence ol the p
which she stated various imtU implieatiag
the prisoner and others as wdl as hsrMlL
The evidence was not admitted, bot the eevrt
admitted other evidence of what Sarah Rieh ,
said 'respecting herself onlv. Tlie priaii !^
was convicted and sentenced. The rmrt cf
the case proceeds: ''Havine sinee tmrwec
that a case occurred before Mr. Baroa Woa£
at York, where two parsons were indicted t»^ \
gether, one for stealing and the other inr j
receiving, in which the principal plwHsJ |
ruilty and the receiver not guilty, and tksx
Mr. Baron Wood refused to allow the tim
of guilty to establish the fact of the stMlaf
by the principal as against the receivfr. tte
learned jud^ thought it right to nbait m
the learned judges the question whethff bt
was right m admitting the oonfetsiea tf
Sarah Rich in the present case. Hie le
judge thought it right to add that the
oner, one Taylor, and Sarah Ridi had '
diately before been tried upon an '
for burglary, and stealing other propvtj ■
the house of Mrs. Clarke on the night if tfc*
22d of August; and that Taylor ani Kkk
Lad been found guilty, but the prisoMr katf
been acquitted, there beinff no proof of hs
presence. The learned iudge did not p*
sentence upon Sarah Ridi immediateij; M
a new jury was called, and the prtsoao- «■
tried as a receiver, so that either fU^
might have called her as a witness. la br
ter term, 1832, all the judges (exespC Lsd
lyndhurst, C. B., and Taunton, J.)
having considered this
ly of opinion that Sarah Rich's
was no evidence against the prt
many of than appeared to think that W
Sariui Rich been ccmvicted, and the nirc
ment against the prisoner stated,
convicticm, but her guilt, the
would not have been any evidence if ^
guilt, which must have been proved ky su^
means ; and the conviction was held vt«« '
In a Uter case, Keahle v. Pajfrne^ S Al A C.
655, 560, whidi was an action ia»til»ii| >
question as to the admiaaion of eertaia fl*^
dence, and was heard in the Qu««n*t W^
before Lord Denman, Chief Justice, sai Lc
tiedale, Patteson, and Williaaa, Jartiv
Mr. Justice Patteson, referring to A» ^
Turner, above cited, said: ''On aa iadHt-
ment for receiving goods felonionslT taMn,
the f dony must be proved ; and aanbr i
judgment against a fdon, nor hi«
womd be evidence against the
such a case I *(mca admitted
plea of guilty by the taker; and it
that I did wronff." A note in '^
Evidence, p. 367,1s to this effect:
v. Turner, 1 Moody, C. C. 547 ; J
cliffe, 1 Lewin, C. a 121 ; Kemkie
8 Ad. ft El. 500, it u sUted that maav et tM
:%
-'.«!
r. to-
judffes (all the jnd^ except two .
bembled) were of opinion that the wetti «
of the principal ymmU s^
the conviction
174 r 9.
199&
KiBBT Y. Unitbd States.
5b-<M)
be eridence of the faet, where the indictment
a^inst the accessory alleged, not the oonyic-
tum, but the guilt of the principal. And on
prin^ple it would seem to be evidence only
when the indictment alleffes the conviction
of the principidy and $impiy to support that
tUegatton."
The leading American case on the question
is Commonv^alth ▼. Eliaha, 3 Gray, 460.
The indictment was for receiving stolen
goods knowing them to have been stolen.
The eourt, speaking by Metcalf, J., said:
'This indictment is against the defendant
alone, and (barges him with having received
property stolen by Joeeph Elisha and Will-
ujn Gigger, knowing it to have been stolen.
It is not averred, nor was it necessary to
aver or prove (Rev. Stat. chap. 126, | 24),
that they had been convicted of the theft.
But it was necessary to prove their guilt, in
order to convict the defendant. Was the
record of their conviction on another indict-
ment affainst them only, upon their several
pleas of guilty to a charge of stealing the
property, legal evidence, against the defend-
uit, that tl^y did steal itt We think not,
either on principle or authorij^. That con-
▼icticm was res inter alios. The defendant
was not a party to the proceedings, and had
no opportunity nor riffht to be heard on the
trial. And it is an elementary principle of
justice, that one man shall not be affected
by another's act or admission, to which he is
a stranger. That conviction being also on
the confession of the parties, the adjudged
ca^cs show that it is not evidence against
the defendant. Rea v. Turner, 1 Moody, C. C.
347, and 1 Lewin, G. 0. 119; 1 Greenl. £v. §
233; Rose Grim. £v. 2d ed. 50; The State v.
Vewport, 4 Harr. (Del.) 567. We express
no opinion concerning a case differing in any
particular from this, but confine ourselves to
Ibe exact 'question presented by these' excep-
tions. Our decision is this, and no more:
The record of the conviction of a thief, on
his plea of guilty to an indictment against
him alone for stealing certain propertv, is
not admissible in evidence to prove the theft,
en the trial of the receiver of that property,
upon an indictment aeainst him alone, whidi
does not aver that the thief has been con-
victcd.'*
To the same general effect are some of the
text-writers. Phillips, in his Treatise on
the Law of Evidence, referring to the rule as
to the admissibility and effect of verdicts or
judgments in prosecutions, says: "A record
of conviction of a principal in felony has
been admitted in some cases, not of modem
date, as evidence against the accessory.
King v. Smith, 1 Leach, G. G. 288; Rew v.
Baldwin, 3 Gampb. 265. This has been
supported on the ground of convenience, be-
cause the witnesses against the principal
might be dead or not to be found, and on
the presumption that the proceedings must
be taken to be regular, and the guilt of the
convicted party to be establisned. Fost.
Disc. iii. chap. 2, | 2, p. 364. But this is not
strictly in accordance with the principle re-
specting the admissibility of verdicts as evi*
dence against third persons. From the re-
port of the recent case of Rew v. Turner, it
174 U. S.
seems that a record of conviction of a priap
cipal in the crime of stealing, who pfeadt
guilty, would not now be received as evidenot
of the guilt of the principal against the r^
ceivers of the stolen property, or the aocaa-
sory after the fact; and it is said to be doubt-
ful whether a record of the conviction of the'
principal on his plea of not guilty would be
admissible against the accessory. As proof
of the foot of conviction, the record would
be admissiUe and conclusive, but it seems
not to be admissible evidence of the guilt of
the convict, as against another person
charged with beinff connected with him in
crime, the record being in this respect rea
inter (Uios acta. It is evidence that a cer*
tain person, named in the record, was con-
victea by the jury, but not evidence as
against a third person, supposed to have
been engaged with him in a particular trans-
action, as to the ground on which the con-
viction proaeeded^ namely, that the convict
conmiitted the criminal act described in the
record." 2 Phillips, Ev. 3d ed. pp. 22-3.
*Taylor in his Treatise on Evidence, after [60]
stating that a prisoner is not liable to be af-
fected by the confessions of his accomplices,
says: ''So strictly is this rule enforced, that
where a person is indicted for receivinff
stolen goods a confession bv the principal
that he was guilty of the theft is no evidenoe
of tiiat fact as against the receiver {Rem v.
Turner) ; and it would be the same, it seems,
if both parties were indicted together, and
the principal were to plead guilty. (Id.)"
1 Taylor, Ev. 6th ed. § 826.
The principle to be deduced from these au-
thorities is m harmony with the view that
one accused of having received stolen goods
with intent to convert them to his own use,
knowinff at tiie time that thev were stolen, is
not wiUiin the meaning of the Gonstitution,
confronted with the witnesses against him
when the fact that the goods were stolen ia
established simplv by the record of another
criminal case with which the accused had no
connection and in which he was not entitled
to be represented by counsel. As heretofore
stated, tne crime charged against Wallace,
Baxter, and King and the crime charged
against Kirby were wholly distinct — none
i^e less so bemuse in each case it was essen-
tial that the government should' prove that
the property described was actusklly stolen*
The record of the proof of a vital fact in one
prosecution could not be takep as proof in the
other to tiie existenceofthe same fact. The dif-
ficulty was not met when the trial court failed
as required by the act of 1875 to instruct the
jury that the record of the conviction of the
principal felons was conclusive evidence of
the fact that the property had been actually
stolen, but merely said that such record made
a prima facie case as to such fact. The fun-
damental error in the trial below was to ad-
mit in evidence the record of the conviction
of the principal fdone as competent proof for
any purpose. That those persons had been
convictea was a fact not necessary to be ee-
tablished in the case against the alleged re-
ceiver; for under the statute he could be
prosecuted even if the principal felons had
not been tried or indictea. As already stated,
895
tu-
yjo
SUPBEliE COUBT or THS UlflTSD STATES
Oct.
CM] the effect of the charge was *to enable the
goyerninent to put the accused, although
shielded by the preeumption of innocence,
upon the defensive as to a vital fact involved
in the charge against him hyr simply produc-
ing the record of the conviction of other par-
ties of a wholly different offense with which
the accused had no connection.
It is scarcely necessary to say that to the
rule that an accused is entitled to be con-
fronted with witnesses against him the ad-
mission of dying declarations is an exception
which arises from the necessity of the case.
This exception was well established before
the adoption of the Constitution, and was
not intended to be abrogated. The ground
upon which such exception rests is that from
the circumstances under which d^ng dec-
larations are made they are equivalent to
the evidence of a living witness upon oath,—
"the condition of the party who made them
being such that every motive to fals^ood
must be supposed to nave been silenced, and
the mind to be impelled by the most power-
ful considerations to tell the truth." Mat-
torn V. United States. 146 U. 8. 140, 161 [36:
917-921]; CJooley, Const, lam. 318; 1 PhU-
lips, Ev. chap. 7, f 6.
For the reasons stated it must be held that
•o much of the above act of Marc^ 3, 1875,
as declares that the judgment of conviction
against the principal felons shall be evidence
in the prosecution against the receiver that
the property of the United States alleged to
have been embezzled, stolen, or purloinml had
been embezzled, stolen, or purloined, is in vio-
lation of the clause of tne Constitution of
the United States declaring that in all crim-
inal prosecutions the accused shall be con-
fronted with the witnesses against him.
Upon this ground the judgment must be re-
versed and a new trial had in accordance
with law. But as the case must ^o back to
the circuit court for another trial, it is
proper to notice other questions presented by
the assignments of error.
The accused contends that the indictment
is defective in that it does not allege owner-
ship by the United States of the stolen ar-
ticles of property at the time they were al-
lied to nave been feloniously received by
him. This contention is without merits The
[M] indictment alleges that the articles ^described
were the prope^ of the United States when
they were feloniously stolen on the 7th day
of June, 1896, and that the defendant only
two days thereafter, on the 9th day of June,
1896, "the postage stamps aforesaid so as
aforesaid feloniously stolen, taken, and car-
ried away, feloniously did receive and
liave in nis possession, with intent then
and there to convert the same to his
own use or gain, the said Joe Kirby
then and there well knowing the said
postage stamps to have been theretofore
feloniously stolen, taken, and carried away."
The stamps alleged to have been feloniously
received bv the accused on the 9th day of
June are thus alleged to have been the same
that were stolen from the United States two
days previously. The larceny did not chanse
the ownership, and it must be taken that the
United States had not regained possession of
896
the stamps before they were reeehei lif^
Kirby, and that the indietmcBt dttrgei ~
they were out of the possession of the UsitaiA
States and were stolen property wha tkcj
came to the hands of the accased.
Another contention by the accued m tihst
the indictment was fatallv defeetire ia mat
stating from whom the defpiidant reeav«i
the stamps. This contention ii tpptRatlr
supported by some adjudications, as is itmtr
v.Ivea, 35 K. C. (13 Lred. L.) 338. Bst
a careful reading of the opinioB in tkit
it will be found uiat the judgment rerti
the ground that the statute of Kortli Cmt>
Una, taken from an old &iffli^ itstiaK.
made the receiver of stolen goods wtntdj aa
accessory and contemplated the case of gss^
being received from the person who itoi*
them. As already stated tne act of CcsfrBH
upon which the present indictmes^ •«*
makes the receiidng of stolen property d tfe
United States with the intoit liy the ituim
to convert it to his o'wn use or gain, W kmm
ing it to have been stolen, a distinct, sateu^
tive felony, for which he can be tr^ ot^
before or a^ter the conviction of the (rno'
pal felon, or whether the latter u tiwL r
not. ' Under such a statute the peraoi ««v
stole the property might be paraowi oi
yet the receiver could be indicted asd f»
victed of the crime committed by him Bafe^
in his New Criminal Procedure njs tka
while some American cases have hdd it to >
^necessary in an indictment againrt tht r> J
ceiver of stolen goods to state fron vkos
he received the goods, "ccHnmonly, in EvkBi
and in numbers of our states, the t
does not aver from whom the BUAm p>a^
were received." Vol. 2, | 983. By as nr
lish sUtute, 7 & 8 Geo. IV., chap. 29. 1 K «
was enacted that "if any person shall mt»*
any chattel, money, valuable security, or «^^
propertv whatsoever, the stading or takoc
whereof shall amount to a fdonj, citkr a
common law or by virtue of this act «%
person knowing the same to have beci fckr
ouslv stolen or taken, every such nttn^
shall be ^ilty of felony, and may be iafr^
and convicted either as an accessory aftir r**
fact, or for a substantive fdony, aad is t^
latter case, whether the principal frioa ika-
or shall not have been previoady coarinn.
or shall or shall not be amenable to j^on *
etc. Under that statute a receiver ii st;>t
goods was indicted. It was ohmttd u«'
one of the counts did not state the msm '
the principal, or that he was unkBovk. Ta
dall, Ch. J., said: "It wUl do. Thi sf^
created by the act of Parliament is vt i*^
ceiving stolen goods from any partictilar ^
son, but receiving them knowing thep ■'
have been stolen. The ouestioa that! ■■
will be, whether the gooos arc atoka. •^
whether the prisoner received them ka»«t"
them to have been stolen. Tour ohjcctin :•
founded on the too particular form of ^
indictment. The statute makes the rfeeinit
of goods, knowing them to have beta ^e^
the offense." Rem v. Jerrts, 6 Car. A P- »*
2 Russell, Crimes, 6th ed. 436. Is 6m^ *
Hazard, 2 R. I. 474 [60 Am. Dee. H]. si in-
dictment charging the accused with fr;*^
ulentlv receiving stolen toods^ knoviar t^
m.
CoeOBOYB T. WiNNET.
6S>6<I
> have been Btolen, was held to be good, al-
lough it did not set forth the name of anv
erson from whom the goods were received,
or that they were received from some person
r persons unknown to the grand jurors. We
berefore think that the objection that the
idiotment does not show f rcmi whom the ac-
osed received the stamps, nor state that
it name of such person was unknown to the
rand jurors, is not well taken. If the
tamps were in fact stolen from the United
tatea, and if they were received by the *ao-
ased, no matter from whom, with the intent
0 convert them to his own use or gain, and
sowing that they had been stolen from the
Jnited states, he could be found guilty of the
rime charged even if it were not shown by
he evidence from whom he received the
tamps. This rule cannot work injustice nor
ie^ive the accused of any substantial right.
f it appears at the trial to be essential in the
»repanki<m of his defense that he should
mow tha name of the person from whom the
^vemment expected to prove that he re-
seived the stolen property, it would be in the
Mwer of the oouH to require the prosecution
Bo give a bill of particulars. Coffin v. United
States, 156 U. S. 432, 452 [39:481,491];
Rosen v. United States, 161 U. S. 29, 35
[40: 606y 608]; Oommontoealth v. (Hies, I
^ray, 466; Rose. Grim. £v. 6th ed. 178, 179,
120.
The Indgment is reversed, and the case is
remanded with directions for a new trial and
for forilier proceedings consistent with law.
KcversmMm
Mr. Justice Brewer did not participate in
the decision of this case.
Mr. Justice Bro
dissented.
and Mr. Justice Me-
THOMAS COSGROVE, Appt,,
V,
EUGENE D. WINNEY, United States Mar-
shal for the Eastern District of Michigan.
(See 8. C. Reporter's ed. 64-60.)
Right of extradited person not to he arrested
for another ojfense until his return to his
own country.
The right of a person extradited under the
treaty of 1800 with Great Britalo, to have a
reasonable time to return to his own country
after his discharge from custody or imprison-
ment on account of the offense for which he
Is extradited, before he can be arrested for
any other offense committed prior to his ex-
tradition, is not lost or waived by going to
his own country and voluntarily returning
while at liberty on ball before his final dis-
charge In the case for which he Is extradited.
[No. 172.]
Buhmitted January 19, 1899. Decided April
U, 1899.
A
PPEAL from an order of the District
Court of the United States for the Eaet-
ern District of Michigan, denying an appli-
174 U. S. U. a. Book 43. 67
cation for a writ of habeas corpus to relieve
Thomas Cosgrove from the custody of the
marshal of the United States upon arrest
upon an indictment for obstructing the mar-
shal in the execution of a writ of attach-
ment and remanding him to the custody of the
marshal. Cosgrove had been arrested after
liavinc been extradited from Canada to the
United States on a criminal charee, and
while he was out upon bail before the trial
of such olTense. Order reversed, and cause
remanded with directions to discharge said
Cosgrove.
Statement by Mr. Chief Justice Fullers
•November 7, 1805, Winney, United States [661
Marshal for the eastern district of Michigan,
made a complaint before one of the police
justices of the city of Detroit within that dis-
trict against Thomas Cosgrove for the lar-
ceny of a boat, named the Aurora, her tackle,
etc., whereon a warrant issued for his arrest.
Cosgrove was a resident of Samia, in the
Province of Ontario, Dominion of Canada,
and extradition proceedings were had in ac-
cordance with the treaty ^tween the United
States and Qreat Britain, which resulted in
a requisition on the Canadian government,
which was dulv honored, and a surrendering
warrant issued May 19, 1896, on which Cos-
grove was brought to Detroit to respond to
the charge aforesaid; was examined in the
police court of Detroit; was bound over to
the July term, 1896, of the recorder's court
of that city; and was bv that court held for
trial, and furnished bail. He thereupon
went to Canada, but«came back to Detroit in
December, 1896.
December 3, 1895, a capias issued out of
the district court of the United States for
the eastern district of Michigan, on an in-
dictment against Cosgrove, on the charge of
obstructing the United States marshal in the
execution of a writ of attachment, which was
not served until December 10, 1896, some
months after Cossrove had been admitted to
bail in the recorder's court.
Cosgrove having been taken into custody
by the marshal applied to the district court
for a writ of habeas corpus which was issued,
the marshal made return, and the cause was
duly argued.
The court entered a final order denying the
application and remanding the petitioner.
From this order an appeal was taken to the
circuit court of appeals and there dismissed,
•whereupon an appeal to this court was al- [6€]
lowed, and Cosgrove discharged on his own
recognizance.
The district judge stated in his opinion
that it appeared "Uiat the property, for the
takinff of which he [CosgroveJ is charged
with larceny, was the vessel which, under
the indictment in this court, ho was charged
with having unlawfully taken from the cus-
tody of the United States marshal, while the
same was held under a writ of attachment
issued from the district court in admiralty."
And further: *'The only question which
arises under this treaty therefore is whether
upon the facts stated in the return which
was not traversed, the petitioner has had the
opportunitj secured hmi by that treaty to
807
9^-9S
SVPBESiK COUBT OF THX UHRB) STAXCS.
Oct. Ti
return to his own country. II ha hms had
■uch opportunity, then article 8 has not
been violated, either in its letter or spirit^
hy the arrest and detention of the petitioner.
It is conceded that he was delivered to the
authorities of the state of Michigan in May,
1896, to stand his trial upon the charge of
larceny. He gave bail to appear for trial in
the recorder's court when required and im-
mediately returned to Canada. On Decem-
ber 10th, 1896, he Yoluntarily appeared in the
state of Michigan, of his own motion, and not
upon the order of the recorder's court, or at
the instance of his bail, and while in this dis-
trict was arrested."
Me8si*9, E. H. Sellers and Oaaaius HoU
tenbeck for appellant:
The treaty of 1889 expressly limits the
surrender to one offense and the trial of the
accused on that offense, and no other, uptil
he shall have had an oi)portunity of return-
ing to the country of his asylum on r^^ain-
ing his liberty.
United States v. Rauacher, 119 U. 8. 407,
80 L. ed. 425; Com. v. Hau>e9, 13 Bush. 697, 26
Am. Rep. 242 ; State v. Vanderpool, 39 Ohio
St. 273, 48 Am. Rep. 431 ; Blandfard v. State,
10 Tex. App. 627; United States v. Waits,
14 Fed. Rep. 130; Ew parte Hihbs, 26 Fed.
Rep. 431; Ea parte Coy, 32 Fed. Rep. 917;
Re Reinitz, 39 Fed. Rep. 204, 4 L. R. A.
236; People, Young, v. Stout, 81 Hun, 336;
Re Rowe, 40 U. S. App. 616, 77 Fed. Rep.
166, 23 C. C. A. 103.
The trial of appellant for another offense
was in violation of the faith and h(mor of the
ffovemment, as well as of an express law of
Congress.
People V. Cross, 135 N. Y. 540; Re Coop-
er, 143 U. S. 501, 36 L. ed. 242; Re Cannon,
47 Mich. 486; State v. Hall, 40 Kan. 345; Re
Rohinson, 29 Neb. 137, 8 L. R. A. 398; E»
parte MoKnight, 48 Ohio St 588, 14 L. R.
A. 128.
Mr, John K. Riehards, Solicitor Gener-
al, for appellee:
A fugitive from justice acquires from that
fact alone no right of asylum in a foreign
country, which exempts him from trial here
if he falls within the clutches of the law.
Ex parte Broi€n, 28 Fed. Rep. 653; Ker
V. IlUnoia, 119 U. S. 436, 30 L. ed. 421 ; Ma-
Hon V. Justice, 127 U. S. 700, 32 L. ed. 283 ;
Lascelles v. Qeorgia, 148 U. S. 537, 37 L. ed.
549; Cook V. Hart, 140 U. S. 183, 36 L. ed.
934.
[•6] *Mr. Chief Justice Fuller, delivered the
opinion of the court:
Article three of the Extradition Conven-
tion between the United States and Great
Britain, promulgated March 26, 1890 (26
Stat, at 1. 1508), and section 6275 of the
Revised Statutes, are as follows:
"Art. III. No person surrendered by or to
either of the high contracting parties sh^
be triable or be tried for any crime or offense,
committed prior to his extradition, other
£97]*than the offense for which he was surren-
dered, until he shall have had an opportun-
ity of returning to the country from which
he was surrendered."
898
''Sae. 6276. Whcnefw any pnoa is itfiv-
«red by any foreign gofcraneit to sa sfeal
of tha united States, for tiie porpoM eHitBH
brought within tiie United Statot s^ tnei
for any crime of whidi be ii Mj mesmi,
the Pmident shall have povci te takt tl
measures for the triiiportitiia
and safekeeping of racii aeeoied pema, n4
for his security acainst lawless vinlf, «-
til the final conclusion of his trial kr tit
crimes or offenses specified la the wanaM rf
extradition, and until his iosl diKhsip
from custody or imprisonment for er sa a^
count of such crimes or dTeaaes, sad kr a
reasonable time thereafter, and stay ^iflif
such portion of the land and aaval knm rf
the United States, or of tiie aiiUtia then<
as may be necessary for the aafgkeyaf at
protection of the accused."
Coegrove was extradited UBdo- the tntfj;
and entitled to all the immnnitiea
to a person so situated; and it is
that the offense for wMch he wai
in the district court was wwnmittirf prar ti
his extradition, and was not extrsntakh.
But it is insisted that althooj^ he eoiUat
be extradited for one offense and tnd kr
another, without ^eing afforded tha ifpv-
tunity to return id Canada, yet aa, aflir ki
had given bail, he did ao return, hit fik»
quent presence in the United Statei «•• ^
untary and not enforced, and therctei ki
had lost the protection of the treaty aai n»
dered himself subject to arreat oa the
and to trial in thediatrieteoort far aa
other than that on which he wai
dered; and this although the proaecstMi a
the state court was stOl pending sad v^
termined, and Cofigrove had not tea
or discharged therefrom.
Conceding that if Coegrove had
in the state of Michigan and withia tmA i
his bail, he would have been exempt, tk tf"
gument is that, as he did not euaUaawly
so remain, and, during hia abacaee ia 0^
ada, his sureties could not have foUovid )m
there and compelled his return, if Ui if
pearance happened to be required aeeoita ^
to the exigent^ *of tha bond, whiek tkbd> ^
stated show that it was not, it foUo«i tte:
when he actually did come back to Hiebp*
he had lost his exemption.
But we cannot concur in thia riev. tW
treaty and atatute aecured to Ouniiw^
reasonable time to return to tha o*^'?
from which he was surrendered^ after ka 4r
charge from custody or impriaoaaMit te*
on account of the offense for which kt m
been extradited, and at the tine of tka «^
rest he had not been so dia^arted by (•**
of acquittal; or conviction and tuapHi*"
with sentence; or the termiaatioB ^^
state prosecution in any way. r«*"
States v. Rauscher, 110 U. a 407, OS [)•
425,434].
The mere fact that ha went to OMa* ^
not in itself put an end to the P'^f'^ff
or to the custody in which he wu b<**J[
his bail, or even authorise the bail to N te
feited, and when he re-entered Hi^if"*J|
was as much subject to the eompalw* m ■*
sureties as if he had not been ihwt
In Taylor v. Taintor, 16 Wsfl. J^l *f
Boa.
Ambbioan Rkfrigbjutok Tbanstt Co. v. Hall.
6t»-7l
21:287» 290], Mr. Justice Swayne, speak-
ig for the courts said: "When bail is given,
he principal is regarded as delivered to the
ustodjr ol his sureties. Their dominion is
continuance of the original imprisonment.
\rhenever th^ chooee to do so, they may
eize him and deliver him up in their dis-
hurge; and if that cannot be done at once,
bey may imprison him until it can be done,
liey may exercise their rights in person or
7 agent. They may pursue him into an-
ther state ; may arrest him on the Sabbath ;
nd, if necessary, may break and enter his
lOuse for that purpose. The seizure is not
tuide by virtue of new process. None is
leeded. It is likened to the rearrest by the
horiff of an escaping prisoner. In [Anony-
aoim] 6 Mod. 231 it is said: 'The bail have
lieir principal always up on a string, and
nay pull tho string whenever th^ please.
Ad render him in their own discharge/
rbe rights of the bail in civil and criminal
ases are the same. They maj doubtless per-
nit him to so beyond the limits of the state
inthin which he is to answer, but it is un-
ifise and imprudent to do so; and if any evil
msue, they must bear the burden of the con-
sequences, and cannot cast them upon the
Alieee."
We think the conclusion cannot be main-
tained on this record that, because of Coe-
px>ve's temporary absence, he had waived or
lost an exemption which protected him while
tie was subject to the state authorities to
Answer for the offense for which he had been
extradited.
The case is a peculiar one. The marshal
initiated the prosecution in the state courts,
ind some weeks thereafter the indictment was
found in the district court for the same act
on which the charge in the state courts was
based. The offenses, indeed, were different,
and different penalties were attached to
them. But it is immaterial that Gosgrove
might have been liable to be prosecuted for
both, as that is not the question here, which
is whether he could be arrested on process
from the district court before the prior pro-
ceeding had terminated and he had had op-
portunity to return to the country from
^^hich he had been taken. Or, rather,
whether the fact of his going to Canada
pending the state proceedings deprived him
of the immunity he posses^ bv reason of
his eictradition so that he could not claim
it though the jurisdiction of the state
courts had not been exhausted ; he had come
back to Michigan ; and he had had no oppor-
tunity to return to. Canada after final dis-
cbaree from the state prosecution.
*We are of opinion that, under the circum-
stances, Cosgrove retained the right to have
the offense K>r which he was extradited dis-
posed of and then to depart in peace, and
that this arrest was in abuse of the high
erocess under which be was originally
rought into the United States, and cannot
be sustained.
Final order reversed and cause remanded
ufith a direction to discharge petitioner,
174 v.n.
AMERICAN R£FRIQERATOR TRANSIT [70]
COMPANY, Plff. in Err,,
V,
FRANK HALL, Treasurer of Arapahoe
County, Colorado.
(See S. C. Reporter's ed. 70-82.)
Tax on railroad cars.
The state noAy tax the average number of re-
frigerator cars used by railroads within the
state, but owned by a foreign corporation
which has no office or place of business with-
in the state, and employed as vehicles of
transportation in the interchange of Inter-
state commerce.
[No. 226.]
Argued and Submitted March 16, 17, 1899.
Decided ApHl 24, 1899,
IN ERROR to the Supreme Court of the
State of Colorado to review a judgment
of that court reversing the judgment of the
District Court ol Arapahoe County in that
State and dismissing a suit in equity
brought by the American Refrigerator Tran-
sit (%mpany, plaintiff, against Frank Hall,
Treasurer of said County to restrain defend-
ant from enforcing payment by plaintiff of
certain taxes assessed upon refrigerator cars
owned by it and used for transnortation over
various lines of railroad. Juagment of iSu-
preme Court affirmed.
See same case below, 24 Colo. 291.
Statement by Mr. Justice Slilraat
In March, 1896, the American Refrigera-
tor Transit Company, a corporation organ-
ized under the laws of the state of Illinois,
filed, in the district court of Arapahoe coun-
ty, state of Colorado, against Frank Hall,
treasurer of said county, a bill of complaint
seeking to restrain the defendant from enforc-
ing payment by the said transit company of
certain taxes assessed upon refrigerator cars
owned by the company, and used for the
transportation of perishable freight over
various lines of railroad throughout the
United States. The bill alleged that the
business in which said cars were engaged
was exclusively interstate commerce busi-
ness; that the company has and has had no
oflice or place of business within the state of
Colorado, and that all the freight trans-
ported in plaintiff's cars was transported
either from a point or points in a state out-
side of the state of Colorado te a point with-
in that state, or from a point in the stete
of Colorado te a point without said state,,
or between points .wholly outside of said
state; that said cars had no taxable situs
within said stete; that said assessineut of
taxes upon said cars was without au-
thority of *law and void and that complain- [71]
ant had no plain or adequate remedy at law.
A demurrer te the complaint was over-
ruled and answer was filed denying; some
and admitting other allegations of the bill.
899
n-78
SUFBEICB COUBT OF THS UnTTED 8tATK&
Oct. Tm.
At the trial the partiee agreed to and filed
the following stipulation:
"let. That plaintiff ia and waa during the
times mentioned in the petition a corpora-
tion duly organized and existing hy Yirlnie of
the laws of the state of Illinois, with its
principal office in the city of East St. Louis,
in saia state ; that it is engaged in the busi-
ness of fumishine refrigerator cars for the
transportation of perishable products over
the various lines of railroads in the United
States; that these cars are more expensive
than the ordinary box or freight car; that
the cars referred to are the sole and exclu-
sive property of the plaintiff, and that the
plaintiff furnishes the same to be run indis-
criminately over any lines of railroad over
which shippers or said railroads may desire
to route them in shipping, and furnishes the
same for transportation of perishable freight
upon the direct request of shippers or of rail-
road companies requesting tne same on be-
half of shippers, but on the responsibility of
the carrier and not of the shipper; that aa
oompensation for the use of its cars plaintiff
received a mileage of three fourths of a cent
per mile run from each railroad company
over whose lines said cars are run, such rate
of payment beinf^ the same as is paid by all
railroad companies to each other lor the use
of the ordinary freight cars of each when
used on the lines of others in the exchange of
cars incident to through transportation of
f reiji^ht over connecting lines of railroads ; that
flaintiff has not, and never has had, any con-
ract of any kind whatsoever by which its
cars are leased or allotted to or by which it
agrees to furnish its cars to any railroad
company operating within the state of Colo-
rado; that it has and has had during said
times no office or place of business nor other
property than ite cars within the stete of
Colorado, and that all the freight transported
in plaintiff's cars in or through the state of
Colorado, including the cars assessed, was
transported in such cars either from a point
fTS] ^^ ppinto in a stete of the United *Stetes
outside of the stete of Colorado to a point in
the stete of Colorado, or from a point in
the stete of Colorado to a point outeide of
said stete, or between points wholly outeide
of said stete of Colorado, and said cars never
were run in said stete in fixed numbers nor
at regular times, nor aa a regular part
of particular trains, nor were any ceitain
cars ever in the state of Colorado, except as
engaged in such business aforesaid, and then
only transiently present in said stete for
inch purposes.
'That, owing to the varying and irregular
demand for such cars, the various railroad
companies within the stete of Colorado have
not deemed it a profiteble investment to
build or own cars of such character, and
therefore relied upon securing such cars
when needed from the plnintiff or corpora-
ttions doing a like business.
'That it is necessary for the railroad com-
panies operating within the stete of Colora-
do, and which are required to carry over
their lines perishable freight, such as fruite,
meate, and the like, to have such character
900
of ears wherein thejr can lafdy
such character of fr»ght.
^d« That the average number of
the plaintiff used in tbie eonrie of tte
ness aforesaid within the state «f Cifaiit
during the year for whidi woA mmmma^
was made would e(|ual forty, and ttat tb
cash value of plaintiff*! can exceeds tht warn
of $250 par car, and that if voA ptsyty
of the plaintiff ia assessaUe and tanUi
within such stete of Cdorado, ikm tie
amount for which aiich ears, ike yefuty
of the plaintiff, is aaewwd by wui itia
board of equalization is just and im— ilH
and not in excess oi the value plaeed wfm
other like property within said itata iv tis
purposes of tiuuition.
"3d. That said company b not doia^ W-
ness in this stete, except as shovi n tUi
stipulation and by the ncto admittei ia At
pleadings.
''4th. That in case it be found by thtcNrt
under the undisputed facts set forth ii Oi
pleadings and the facte herdn lUiialiy
that the authoritiea of the atete of Ori«»
do under existing lawe have no povtr U »
sees or tax the said property of plsiitC
then judgment shall be entered hotii Ir
the 'plaintiff for the rdief prayed ;
judgment shall be entered for the ddeidu^
"The following oonstitutioBa] and ^ttt-
tory provisions are referred to ia thiipi»
ion:
"'All corporations in this ttete, ir dri^
business therein, shall be subject to tsaiia
for stete, county, sdiool, mmiifipil, td
other purposes, on the rial and f&md
pr(^>erty owned or used by them wiuh tki
territorial limite of the authority kvyimtb
tax.' (f 10, art. 10, Stete ComL)
"'Sec. 3765. (K. A. S.) All property, M
real and personal, within the stsl% Ml »
pressly exempt b^ law, ahaD bt rnkj^ ^
taxation. . . /
"'Sec 3804. ... It ilull Ui^^^
said board (the board of eqnalintina) ti»
sess all the property in this stale
used, or controlled by railway earn
telegraph, telephone, and aleepaf er
car companies.
" 'Sec 3805. The president, vies .
general superintendent, auditor, tix tfj^
or some otner <^cer of audi railwsJt "^
ing, or other palace oar, or telegraphy
epnone company, or oorporatioa, e«^
operating, controlling, or navia; i> ^ {^
session in this state any property, ihill v^
nish said board on or before the tftmA^
of March, in each year, a aUtewt #^
and sworn to by one of audi oAem. ^
showing in deteil for the year cndiaf • ^
thirty-first day of December preeidiiV-'
"5th. A fuU liat of rtaiing stock bridiV^
to or operated by such railway eoa^
setting forth the number, eUas, aad nlv ■
all locomotivea, passenger ears, dstphf <^
or other palace cara, erpreas esn, HPf
cars, mail cars, bos cars, eattk can, «■
cars, platform cars, and all other ^^^
cars owned or used by said coaipe^^
statement shall show fiie actatl profwrti*
of the rolling stock in use on the <^°*^^
1888.
American Kbfrigeratob Tbaksit Co. v. Haij.
73-75
XMid, all of which is neoefisaiy for the trans-
wrtation of freight and passengers, and the
iperation of the road within the state dur-
ng the year for which the statement is made,
rhe said statement shall also show the act-
lal proportion of rolling stock of said com-
pany used upon leased lines and lines
}perated with others within the *state, the
ooileage so leased and operated, and the lo-
cation thereof. . . .
''Tib. . . . Whenever it shall be found
that one corporation uses or controls any
property belonging to or owned by another
corporation, said board may assess such
property either to the corporation using or
controliin|^ the same, or to the corporation
by which it is owned or to which it belongs.
But every sudi corporation shall, in uie
statement to said bou^, set forth what prop-
erty belonging to or owned by any other cor-
poration is iised or controlled by the corpo-
ration making the statement."
The cause having come on to be heard,
judgment was entered on behalf of the plain-
tiff, awarding a perpetual injunction as
prayed for in the bill of complaint Thereup-
on an appeal was taken to the supreme court
of the state, from whose decision, reversing
the judgment of the trial court and direct-
ins the dismissal of tiie bill, an appeal was
taken to this court.
Messrs. Judaom Karmom and Percy
Werner, for plaintiff in error:
The cars of the plaintiff in error, under
the agreed facts, acquired no situs in Golo-
rado for the purpose of taxation.
PuUman's Palaoe Oar Oo, v. Pennsylvania,
141 U. S. 18, 35 L. ed. 613, 8 Inters. Ck)m.
Bep. 605 ; Pickard y. Pullman Southern Car
Co. 117 U. 8. 34, 29 L. ed. 786; Pullman
Southern Car Oo. v. Nolan, 22 Fed. Rep.
276; Central R. Oo. y. State Bd. of Assess-
ors, 49 N. J. L. 11; Bain v. Richmond d D.
R. Co. 105 K. C. 363, 8 L. R. A. 299, 3 Inters.
Com. Rep. 149 ; Marye v. Baltimore d 0. R.
Co, 127 IT. S. 117, 32 L. ed. 94; Morgan v.
Parham, 16 Wall. 471, 21 L. ed. 303; Hays
V. Pacific Mail S. S. Oo. 17 How. 596, 15 L.
ed. 254; St. Louis y. Wiggins Ferry Co. 11
Wall. 423, 20 L. ed. 192; Coe v. Errol, 116
U. 8. 517, 29 L. ed. 715; Orandall v. Nevada,
6 Wall. 35, 18 L. ed. 745; Robinson v. Long-
ley, IS Kev. 71; State y. State Board (un-
reported) (Mo.) Dec. 1898.
A state cannot tax the vehides employed
exclusively in the business of interstate com-
merce, where such vehicles have no situs
within the state.
Pullman's Palaoe Oar Oo. y. Pennsylvania,
141 XT. 8. 18, 35 L. ed. 613, 3 Inters. Com.
Bep. 695; Philadelphia d S. 8. Co. v. Penn-
iylvania, 122 U. 8. 346, 30 L. ed. 1205, 1
Inters. Com. Rep. 308; Oorfield v. Coryell,
4 WaiAi. C. C. 379; Brie R. Co. v. State, 31
K. J. L. 631, 86 Am. Dec 226; Broum v.
Maryland, 12 Wheat. 449, 6 L. ed. 689;
Passenger Oases, 7 How. 458, 12 L. ed. 775:
Btate Tarn on Railway Cross Receipts, 15
WalL 292, 21 L. ed. 167; Fargo v. Michigan,
121 U. 8. 230, 80 L. ed. 888, 1 Inters. Com.
Hep. 51.
174 V. n.
Mr. Alexander B. MeKIalej, for de-
fendant in error:
The tax now under eonsideration is not a
license tax, or in any sense a tax for the priv-
ilege of transacting intersta4« commerce.
Adams Exp. Co. v. Ohio State Auditor, 165
U. 8. 194, 41 L. ed. 683, 166 U. S. 185, 41
L. ed. 965; Adams Exp, Oo. v. Indiana, 165
U. 8. 255, 41 L. ed. 707 ; Postal Teleg. Cable
Co. V. Adams, 155 U. 8. 688, 39 L. ed. 311,
5 Inters. Com. Rep. 1; Adams Exp. Co. v.
Kentucky, 166 U. S. 171, 41 L. ed. 9«0; Pull-
man's Palace Car Co. v. Pennsylvania, 141
U. 8. 18,35L.ed. 013, 3 Inters. Com. Rep. 505.
The fact that cars and other vehicles are
employed in interstate commerce does not
in the least abridge the right of a state to
tax them.
The right of a state to tax all subjects
within its jurisdiction is unquestionable,
and this right may, in the discretion of the
legislature, be exercised over all the prop-
erty coming temporarily within its territory.
Union P. R. Co. v. Peniston, 18 Wall. 5,
21 L. ed. 787; Lane County v. Oregon, 7
WaJl. 71, 19 L. ed. 101.
The courts of the United States adopt and
follow the decisions of the highest court of
a state in questions which concern merely
the Constitution or laws of that state.
Bucher v. Cheshire R. Co. 125 U. S. 555,
31 L. ed. 795; Long Island Water Supply
Co. V. Brooklyn, 160 U, 8. 685, 41 L. ed.
1165; Merchants' d Mfrs. Bank v. Pennsyl-
vania, 167 U. 8. 461, 42 L. ed. 237.
*Mr. Justice Slilraa delivered the opinion [T4I
of the court:
In this record we again meet the problem,
so often presented, how to reconcile the
rightful power of a state to tax property
within its borders with its duty to obey those
?irovisions of the Federal (Constitution which
orbid the taking of property without due
Srocess of law, and the imposition of bur-
ens upon interstate commerce.
The frequency with which the question has
arisen is evidence both of its importance and
of its difficulty. The vast increase of com-
merce throughout the country, and the con-
sequent necessary increase of the means
whereby such commerce is carried on. have
been the occasion of many of the cases in
which this court has been called upon to con-
sider the 'subject. The expense involved in [75J
the manufacture of some of the common arti-
cles in daily use and in their transportation
is so great as to be beyond the means of in-
dividuals, and has rendered necessary the
tiggreg&Uon of capital in the form of corpo-
rations. Usually such corporations, though
organized under the law of one state, make
their profits by doing their business in sev-
eral or all of the states, and, while so doing
receive the protection of their laws. When
the taxpayers of one state perceive that they
are subjected to competition by the importa-
tion of articles made in another, or that they
are contributing continually to the prosper-
ity of foreign corporations, what more nat-
ural than that they should demand that
some share of the public burdens should be
put upon such corporations T The difficult
901
75-78
SuPBBMK Couirr of the Uxitkd SrAXts.
Oct. Tbu,
task of the lawmaker ie to meet that natural
and proper demand without infringing upon
the rreedom of interstate commerce, or de-
priying those engaged therein of the equal
protection of the laws.
In the case before us we do not need to go
far in search of the principles which deter-
mine it. We think they may be found in
the cases of Western Union Teleg, Co, v.
' Aity, Qen, ofMaasachuaeita, 126 U. 8. 530
[31 : 790] ; Pullman's Palace Oar Co. v.
Pennsylvania, 141 U. S. 18 [35:613, 3 In-
ters. Com. Rep. 595] ; and Adams Express
Co, y. Ohio State Auditor, 165 U. S. 194 [41 :
683].
In the first of those cases was involved the
question of the validity of a law of Massa-
chusetts, which imposed on the Western
Union Telefipraph Company, a corporation of
the state of New York, a tax on account of
the property owned and used by it within
the state of Massachusetts, the value of
which was to be ascertained by comparing
the length of its lines in that state with the
length of its entire lines. This court held
that such a tax is essentially an excise tax,
and not forbidden by the commerce clause of
the Constitution.
In Pullman's Palace Car Co, v. PennsuU
vania the nature of the case and the conclu-
sion were thus stated by Mr. Justice Gray:
"The cars of this company within the state
of Pennsylvania are employed in interstate
commerce; but their being so employed does
not exempt them from taxation by the state ;
and the state has not taxed them because of
{76] their beine^ so*employed, but because of their
being within its territory and jurisdiction.
The cars were continuously and permanently
employed in going to ana fro upon certain
routes of travel. If they had never passed
beyond the limits of Pennsylvania it could
not be doubted that the state could tax tiiem,
like other property within its borders, not-
withstanding they were employed in inter-
state commerce. The fact that, instead of
stopping at the state boundary, they cross
that boundary in going out and coming back,
cannot affect the power of the state to levy
a tax upon them. The state, having the
right, for the purposes of taxation, to tax
any personal property found within its ju-
risdiction, without regard to the place of the
owner's doraicil, could tax the specific cars
which at a given moment were within its
borders. The route over which the cars
travel extending beyond the limits of th«
state, particular cars may not remain within
the state; but the company has at all times
substantially the same number of cars with-
in the state, and continuously and constant-
ly uses there a portion of its property; and
it is distinctly found, as matter of fact, that
the company continuously, throughout the
periods for which these taxes were levied,
carried on business in Pennsylvania, and had
about one hundred cars within the state.
"The mode which the state of Pennsyl-
vania adopted to ascertain the proportion of
the company's property upon which it should
be taxea in that state, was by taking as a
basis of assessment such proportion of the
capital stock of the company as the number
902
of miles over which it ran its
state bore to the ^Hude nombv of
that and other ttateSy o?er wlueh its
were run. Thia was a inst sad eqntsUt
method of assessment; and if it were ■Jo|4iji
by all the states throng whidi ttee tan
ran, the company would be isseseei! vpoa tki
whole of its capital stock and no more.**
Adams Empress Co, y. Ohio 8tai€ A
was a case wherein wms dra^
the validity of a law of the state of Okii
imposing an assessment upon an expreMeoB-
pany whose business was carried on throv^
several states. The statute required a houi
of assessors "to proceed to sseertaiB sad w-
sess the value*of the pr<^wr^ at expisM. tri-
egrai>h, and telephone companies ia Oba
and in determining the valne of the
erty of said companies in tlii
be taxed within the state aac
as herein provided, said board shell te
guided by the value of said property m
determined by the value of the
capital stock of said companies, aad
other evidence and rules as will
board to arrive at the true value ia
of the entire property of said
within the state of Ohio, in the _
which the same bears to the entire pnp^
of said companies, as determined by thsWa
of the capital stock thereof, and the ^~
evidence and rules as aforesaid."
It was contended, on behalf of the
company, that the law in oueetioa m it-
valid because it sought to unpoee turn «
property beyond the territorial jniisfeda
of Ohio; because ^e aseessments thscii ^
vided for were an invasion of the ea&ttt
tional guaranty of the equal proteetn i
the laws, and because the asseacnoti b-
S>sed a burden upon interstate eBmamtL
ut this court held otherwise. PbrtisM^
the opinion of Mr. Chief Justice FttDv tsf
be appropriately quoted:
"Although the transportation of tk ^
jeotfi of interstate commerce, or the r«Bt^
received therefrom, or the oeeupatioB or ta*-
ness of carrying it on, cannot be dtrseU; a^
jected to state taxation, yet property bdffp
ing to corporations or companies eaptid n
such commerce maybe; ana whatcrcrtki^
ticuhur form of the exaction, if it is esMitii'!^
only proper^ taxation, it will wH bt «a>^
ered as falling within the inhibitloa ti tk
Constitution. Corporations and eaaf>^
engaged in interstate commerce ahooU ^
their proper proportion of the bttrdeM d ^
governments under whose proteetaes 1^
conduct their operations, and tazati« ■
Sroperty, collectible by the ordinary wmM^
oes not affect interstate eoouDcrot «tfcr
wise than incidentally, as all hurlaesi ii ^
fected by the necessity ol oontrihotiaf ^ ^
support of government.
"As to railroad, tdemph, aad slMfflf
car companies, engaged in intenlate iv
merce, it has been men held by this ttf^
that their property, in the seveim] «i>^
throuffh with *their lines or timisi « 1
tended, might be valued as a unit fer tht^
poses of taxation, taking into eoasMsnfi*
the uses to which It was put and all tW •t''
ments making up aggregate value, aad tk2*
B96.
Amsbican RsFaiGKRiLTOB Tbamsit Co. y. Hall.
r»-»o
roporiion of the ^tthole fairly and properly
■Ottrtained might be taxed hy the particular
Mm without Yiolating any Federal restric-
ion.
'Tlie Taluation was thus not confined to
lie wires, poles, and instniments of the tele-
raph company; or the roadbed, ties, rails,
nd spikes of the railroad company; or the
ars of the sleeping-car company; but in-
luded the prooortionate part of the value re-
ultinff from tne combination of the means
y whidi the business was carried on —
. Tttlne existing to an appreciable ex-
ent throughout the entire domain of
operation. And it has been decided that a
»roper mode of ascertaining the assessable
ralue of so much of the whole property as is
titaated in a particular state is, in the case
»f railroads, to take that part of the value
>f the entire road which is measured by the
proportion of its length therein to the length
>f the whole {Pittsburgh, C, C. d 8t, L.
Railioay Co. ▼. Backus, 154 U. S. 421 [38:
1031) ], or taking in the basis of assessment
luch proportion of the capital stock of a
sleeping-oar company as the number of miles
of nulroad over which its cars are run in a
parttcular state bears to the whole number of
miles traversed by them in that and other
states {Pullman's Palace Oar Co, v. PennsyU
fxtnia, 141 U. S. 18 [35: 613, 3 Inters. Com.
Rep. 595] ) , or such a proportion of the whole
value of the capital stock of a telefl^raph
company as the length of its lines witnin a
state bears to the length of its lines every-
where, deducting a sum equal to the value of
its real estate and machinery subject to local
taxation within the state. Western Union
Teleg. Co, v. Taggart, 163 U. S. 1 [41 : 49].
^'Doubtless there is a distinction between
the property of railroad and telegraph com-
pames and that of express companies. The
physical unity existing in the former is lack-
ing in the latter ; but there is the same unity
in the use of the entire property for the spe-
cific purpose, and there are the same dements
of value arising from such use. The oars of
the Pullman Company did not constitute a
physical unity, and their value as separate
I cars did not bear a direct relation to *tbe
valuation which was sustained in that case.
The cars were moved by railway carriers
under contract, and the taxation of the cor-
poration in Pennsylvania was sustained on
the theory that the whole property of the
company might be regarded as a unit plant,
with a unit value, a proportionate part of
which value miffht be reached by the state
authorities on tne basis indicated."
On a petition for a rehearing the questions
were asain fully argued, and the conclusions
reached on the first hearing were reaffirmed.
Adams Express Co, v. Oh%o State Auditor,
166 U. 8. 186 [41: 185]. From the opinion
denying the rehearing, delivered by Mr. Jus-
tice Brewer, a few extracts may be quoted as
applicable to the case in hand :
'^Where is the situs of this intangible prop-
erty? The Adams Express Company has, ac-
cording to its showing, in round numbers
$4,000,000 of tangible property scattered
through different stotes, and with that tan^^i-
ble property thus scattered transacts its
174 V. 8.
business. By the business which it trans-
acts, by combining into a sinffle use all these
separate pieces and articles of tangible prop-
erty, by the contracts, franchises, and priv-
ileges which it has acquired and possesses, it
has created a corporate property of the act-
ual value of $16,000,000. Thus, according to
its figures, this intangible property, its fran-
chises, privileges, etc., is ox the value of
$12,000,000, and its tangible property of only
$4,000,000. Where is the situs of this in-
tangible property? Is it simply where its
home office is, where is found the central di-
recting thought which controls the workings
of the great machine, or in the state which
gave it its corporate franchise, or is that in-
tangible property distributed wherever its
tangible property is located and its work done?
Clearly, as we think, the latter. Every state
within which it is transiicting business and
where it has its property, more or less, may
rightfully say that the $16,000,000 of value
which it possesses springs not merely from the
original grant or corporate power by the state
which incorporated it or from the mere own-
ership of the tangible property, but it springs
from the fact that that tongible property it
has combined with contracts, franchises,*and [80]
privileges into a single unit of property, and
this state contributes to that affgregate value,
not merely the separate value of such
tangible property as is within its limits,
but its proportionate share of the value
of the entire property. That this is true is
obvious from the result that would follow if
all the states other than the one which cre-
ated the corporation could and should with-
hold from it the right to transact express
business within their limits. It might con-
tinue to own all its tangible property within
each of those states, but unable to transact
the express business within their limits, that
$12,000,000 of value attributable to its in-
tangible property would shrivel to a mere
trifle. ... In conclusion, let us say that
this is eminently a practical age ; that courts
must recognize things as they are and as pos-
sessing a value which is accorded to them in
the markets of the world, and that no fine-
spun theories about situs should interfere to
enable these large corporations, whose busi-
ness is carried on through many states, to
escape from bearing in each state such bur-
den of taxation as a fair distribution of the
actual value of their property among those
states requires."
The Constitution of the state of Colorado
provides that all corporations in the state or
doing business therein shall be subject to
taxation on the real and personal property
owned or used by them within the territorial
limits of the authority levying the tax, and
its statutes provide for a board of equaliza-
tion, whose duty it shall be to assess all the
property in the state owned, used or con-
trolled by railway companies, telegraph, tele-
phone, and sleeping or palace car companies;
and that whenever it shall be found that one
corporation uses or controls any property Be-
longing to or owned by another corporation,
said board may assess such property either
to the corporation using or controlling the
903
80-63
Supreme Court of the United States.
Oct. Txka,
■une, or to tlie oorporation to which it be-
loEun.
The American Refrigerator Transit Com-
pany is a oorporation m the state of Illinois,
engaged in the business of furnishing re-
frigerator cars for the transportation of per-
ishable products over the various lines of
railroads in the United States, and receives
[81] as compensation for the use of its cars a*mile-
age of three fourths of a cent per mile from
each railroad company over whose lines said
cars are run.
The receiver of the Union Pacific, Denver,
& Gulf Company reported to the board of
equalization that he had on the line of the
railroad which he was operating within the
state of Colorado forty-two refrigerator cars
belonging to the American Refrigerator
Transit Company on December 31, 1894.
The board thereupon assessed to the Transit
Company said forty-two cars, at a valuation
of two hundred and fifty dollars each^ and
distributed said assesnnent to the different
counties through which the line of said rail-
road extended.
It was stipulated in the trial court "that
it is necessaiy for the railroad companies
operating within the state of Colorado, and
which are required to carry over their lines
perishable freight, to have such character of
cars wherein they can safely transport such
freight; and that, owing to the varying and
irregular demands for such cars, the various
railroad companies within the state of Colo-
rado have not deemed it profitable to build
or own cars of such eharacter, and therefore
rely upon securing such cars when ncKE^ded
from the Transit Company, or corporations
doing a like business."
It was further stipulated "tiiat the aver-
age number of cars of the plaintiff used in
the course of the business aforesaid witiiin
the staite of Colorado during the year for
which such assessment was made would e<^ual
forty, and that the cash value of plaintiff's
ears exceeds the eum of two hundred and
fifty dollars per oar, and that if such prop-
erty of the plaintiff is assessable and taxable
within such state, then the amount for which
such cars, the property of the plaintiff, is
assessed uj said state board of equalization
is just and reasonable, and not in excess of
the value placed upon other like proper^
within saia state for the purposes of taxa-
tion.
Applying the reasoning and conclusions of
* tiie cases hereinbefore cited to those admitted
fads, we have no difficulty in affirming the
Judgment of the supreme court of Colorado
raa&ining Uie vali<!ity of the taxation in
^iiesuon.
The state statutes impose no burdens on
the business of the plaintiff in error, but oon-
IpS] template onlr the assessment and *levy of
taxes upon the property situated within the
etate; tatd the only question is whetherit was
eompetent to aecertain tiie number of the
ears to be snbjeoted to taxation by in<^uiring
in|o the average number used within the
state limits during the period for which the
asseesment was made.
It having been settled, as we have seen,
that where a corporation of one state brings
004
into another, to use and employ, a ^
its movable personal propolj, it" is ^
mate for the latter to impose apoa wmdk MSf
erty, thus used and emplqjred, its fair mmn
of the burdens of taxation unpossd moa ■■-
ilar property used in like way fay its ova
citizens, we think that sndi a tax maj ht
properly assessed and eolleeted, in tmrnt Bet
the present, where the spmAe ud hifiviiMl
items of property so used md empkiysi wt
not continuously the same, bet wen tm-
stantly dianging, aooording to the eilgtMiu
of the business, and that the tax asy ht
fixed by an appraisement and vahntin ^
the MYenge amount of the propsty
habitually used and employed, ihr
the fact that such cars were enpleyBi
vehicles of transportation in the tni
of interstate commerce render tibeir
invalid. Marye v. BiUtimon dO.R.M.(k
127 U. 8. 123 [32: 96]; PwOmm^t Mb«
Oar Co. y. Pennsylvama, 141 U. 8. It [V:
613, 3 Intov. Com. Rep. 595].
The judgment of the 8uprem9 Oomrt if flt
State of Colorado ta aeeordimfif
Mr. Justice
Wliite dissented.
Hairlaa and Mr. JiAi
OUVER WENDELL HOLMES, Jt, iffl,
GEORGE D. HUBST.
)
(See 8. C Reportv^a ed.
Serial fmhUcation im wumMf
tiatea subsequent eopfrifki sf
hook.
The serial pablicatkni of a book la a
magaslne, prior to anj stcpa tataa ti
coring a copyrlsht. Is such a psMatSmd
the same» within the meaabig of tte agf
Congress of February 8, 1881. as ti vtt*
a copyrflgfat of the whole book. oMatorfi^
seqnently, but prior to the peMteattM ^^
book aa an oitlrsty.
[No. 124.]
0
Argued amd SubwUtted Jamumg ii»t1, m
Ordered for Beargumteut /emiery ll» W
Reargued March 3, 1899. DeoM i^
$4,1899.
N APPEAL from a decree of tbt IWM
. States Circuit Ooiirt of Appiali iv«
Second Cireoit affirming the deena d «
Circuit Court of the United StalM l«<^
Eastern District of New York iiwii^'
suit in equity brought 1^ Olifer ^^^^
Holmes, Jr., as executor of the will rf v
late Oliver WendeU Holmea, to oMaii ssjt
junction against the infrfaiMBsat dj^
copyright of a book writt«i hf pki^
testator, entitled 'The Avtosrat i' ^
Breakfast T^ble." Affirmed, .
See same case below, 76 F^ Bif^ TfTi**
61 U. a App. 271.
Statement by Mr. Juatiee jwww»« _ ^
*This was a bin in equitr bv ttoi«^.^
of the will of the late Dr. CHiftr Wai*f
17411
m.
Holmes y. Hubst.
88-85
Udmes, praying for an injunction ag&inat
\tt infringement of the copyright of a book
ri^inally published ^ plaintiff's testator
nder the title of **The A<utocrat of tha
breakfast Table."
The case was tried upon 4ji agreed state-
lent of facts, the material portions of whidi
re as follows:
Dr. Holmes, the testator, was the author
f "The Autocrat of the Breakfast Table,"
rhich, during the years 1857 and 1858, was
ublished b^ Phillips, Sampson, & Company,
f Boston, in twelve successive numbers of
he Atlantic Monthly, a periodical magazine
ublished by them, and having a large circu-
ition. Each of these twelve numbers was
bound voltmae of 128 pages, consisting of a
•art of "The Autocrat of the Breakfast Ta-
le," and of other literary compositions,
liese twelve parts werepublished under an
feement between Dr. Holmes and the firm
Phillips, Sampson, & Company, whereby
he author granted them the privilege of
publishing the same, the firm stipulating
hat they should have no other rignt in or
0 said book. No copyright was secured,
ither by the author or by uie firm or by any
ither person, in any of the twelve ntmabers
10 published in the Atlantic Monthly; but
m November 2, 1858, after the publication of
he last of the twelve numbers. Dr. Holmes
leposited a printed copy of the title of the
)ook in the clerk's office of the district court
4 the district of Massachusetts, wherein th^
luthor resided, which copy the clerk record-
ed. The book was published by Phillips,
Sampson, & Company in a separate volume
m November 22, 1858, and upon the same
lay a copy of the same was delivered to the
tlerk of tne district court. The usual notice,
lamely, "Entered according to act of Con-
n-ess, 1858, by Oliver Wendell Holmes, in the
j\^Tk*B Office of the District Court of the
District of Massachusetts," was printed in
jvery copy of every edition of the work sub-
|equenUy published, with a slight variation
in the edition published in June, 1874.
On July 12, 1886, Dr. Holmes recorded the
title a second time; sent a printed copy of
the title to the Librarian oi Congress, who
recorded the same in a book kept for that
purpose,*and also caused a copy of this rec-
)rd to be published in the Boston Weekly Ad-
i^ertiser; and in the several copies of every
sdition subsequently published was the fol-
lowing notice: "Copyright, 1886, by Oliver
(Vendell Holmes."
Since November 1, 1894, defendant has
K)ld and disposed of a limited number of cop-
ies of the book entitled "The Autocrat of the
Breakfast Table," all of which were copied
by. the defendant from the twelve numoers
9f the Atlantic Monthly exactly as they were
DrifirinalljT published, and upon each copy so
sold or disposed of a notice appeared that the
»ame was taken from the said twelve num-
bers of the Atlantic Monthly.
The case was heard upon the pleadings
uid this agreed statement of facts, by the
circait court for the eastern district of New
fork, and the bill dismissed. (76 Fed. Rep.
757.) From this decree an appeal was tak-
en to the circuit court of appeals for the see-
174 V. B. ^
ond circuit, by which the decree of the dioail
court was affirmed. (51 U. S. App. 271.)
Whereupon plaintiff took an appeal to tiili
court.
Mr, Rowland Cos for appellant, on both
arguments.
lir. Andrew OiUiooly for appellee, oa
both arguments.
*Mr. Justice Brown delivered the opinion [84]
of the court:
This case raises the question whether the
serial publication of a book in a monthly
magazine, prior to any steps taken toward
securing a copyright, is such a publication
of the same within the meaning of the act
of Februanr 3, 1831, as to vitiate a copyright
of the whole book, obtained subseouently but
prior to the publication of the book as an en-
tirety.
The right of an author, irrespective of
statute, to his own productions ana to a con-
trol of their publication, seems to have been
recognized by the common law, but to have
been so ill-defined that from an early period
l^islation was adopted to regulate ana limit
such right. The earliest recognition of'this [86]
common law ri^ht is to be found in the char-
ter of the Stationers' Company, and certain
decrees of the Star Chamber promulgated
in 1556, 1585, 1623, and 1637, providing for
licensing and regulating the manner of print-
ing, and the number of presses throughout
the Kingdom, and prohibiting the publica-
tion of unlicensed books. Indeed, the Star
Chamber seems to have exercised the power
of search, confiscation, and imprisonment
without interruption from Parliament, up to
its abolition in 1641. From this time the
law seems to have been in an unsettled state
— although Parliament made some efforts to
restrain the licentiousness of the press — un-
til the eighth year of Queen Anne, when the
first copyright act was passed, giving au-
thors a monopoly in the publication of their
works for a period of from fourteen to twen-
ty-eight years. Notwithstanding this act,
however, the chancery court continued to
bold that, b^ the common law and independ-
ently of legislation, there was a property of
unlimited duration in printed books. This
principle was affirmed as late as 1769 by the
court of King's bench in the very carefully
considered case of Millar v. Taylor, 4 Burr.
2303, in which the risht of the author of
"Thomson's Seasons" to a monopoly of this
work was asserted and sustained. But a
few years thereafter the House of Lords, upon
an equal division of the judffes, declared tnai
the common-law right had heen taken away
by the statute of Anne, and that authors wero
lunited in their monopoly by that act. Dof^
aldaon y. Beoket, 4 Burr. 2408. This re-
mains the law of England to the present day.
An act similar in its provisions to the statuto
of Anne was enacted by Conffress in 1790, and
the construction put upon Uie latter in Don-
aldson y. Beoket was followed by Una court
in Wheaion v. Peters, 8 Pet. 591 [8: 1055].
While the propriety of these decisions has
been the subject of a ffood deal of controversy
among legal writers, it seems now to be con-
905
8.>-89
SUPBKMS COUBT OF THX UNITBD SXAXES.
Oct.
•idered the settled law of this oountiy and
England that the ri^ht of an author to a
monopoly of hie publications is measured and
determined by the copjrright act — in other
words, that while a right did exist by com-
mon law, it has been superseded by statute.
(8€] *The right thus secured by the copyright
act is not a right to the use of certain words,
because they are the common property of the
human race, and are as little susceptible of
private appropriation aa air or sunlight; nor
IS it the right to ideas alone, since in the ab-
sence of means of communicating them th^
are of value to no one but the au^or. But
the right is to that arrangement of words
which the author has selected to express his
ideas. Or, as Lord Mansfield describes it,
"an incorporeal right to print a set of intel-
lectual ideas, or modes of thinking, communi-
cated in a set of words and sentences, and
modes of expression. It is equally detached
from the manuscript, or any other physical
existence whatsoever." 4 Burr. 2396. The
nature of this property is perhaps best de-
fined by Mr. Justice Erie in Jefferya v.
Boosey, 4 H. L. Cas. 815, 867: "The subject
of property is the order of words in the au-
thor's composition; not the words them-
selves, they being analogous to the elements
of matter, which are not appropriated un-
less i»mbined; nor the ideas expressed by
those words, they existing in the mind alone,
which is not capable of appropriation."
The right of an author to control the pub-
lication of his works, at the time the title to
the "Autocrat" was deposited, was governed
by the act of February 3, 1831 (4 Stat at
L. 436, chap. 16) , wherein it is enacted:
"Sec. 1. That fn»n and after the passing
of this act, any person or persons, being a
eitizen or citizens of the United States, or
resident therein, who shall be the author or
authors of a book or books, map, chart, or
musical composition, which may be now
made or composed, and not printed and pub-
lished, or shall hereafter be made or com-
posed, . . . shall have the sole risht and
liberty of printing, reprinting, publishing,
and vending such book or books, . . .
in whole or in part, for the term of twenty-
eight years from the time of recording l£e
title thereof, in the manner hereinafter di-
lected."
"Sec. 4. Thai no person shall be entitled
to the benefit of this act, unless he shall, be-
fore fuhlioation^ deposit a printed copy of
the title of such book or books ... in
the clerk's office of the district court of the
[S7] district wherein the author *or proprietor
shall reside, etc. And the author and pro-
prietor of any such book . . . shall,
within three months from the publication
of said book, . . . deliver or cause to be
delivered a copy of the same to the clerk of
said district."
The substance of these enactments is that,
by section one, the author is only entitled to
a copyright of books not printed and pub-
lished; and by section four, that, as a pre-
liminary to the recording of a copyright, he
must, before publication, deposit a printed
copy of the title of such book. etc.
The argument of the plaintiff in this con-
906
nection is, that the pubUeatioa of t
ent chapters of the book ia te
Monthly was not a publieatioa of
right book which was the nd>}eet of
utory privil^^ ; that if Dr. Holmei \
riffhted and publiahed the XimStft parte. _
after the other, as they were pabUttsd is the
magazine, or separately, there woeld edO
have remained to him an ^*r¥f^ ri^tt 1
ing relation to the book aa a whole; tkat
copy^i^t did not cover and indnde the
lication of the twdve parts priated aa
were printed in the Atlantic MoaOly,
that while the defendant had a rMt to
copies of those parts and to idf tt
arately or coUectivdjr, he had no right
combine them into a sinffle volmiie, sir
is the real subject of ue oopyri|^
sel further insisted that, if the asthor had
deposited the twelve parts of the book, eat
after the other, as they were coMposed, ha
would not have acquired the ttatatory pciF
il^^ to which he sedcs to give effect; thai t»
secure such copyright it was etseatitl te 4b
three things: (1) Deposit the Utk '"Iks
Autocrat of the Breakfast Tkbk;* (t) ^
posit a copy of the book "Hlie Autocrat rf
the Breakfast Table;" and (3) eoiiply wtt
the provisions concerning notice; thet ht
coula acquire the privilege of eopyrifkt oeif
by depositing a copy of Hm very boek hr
which he was seeking protcrtion; that if As
taking of a copyright for eadi chaptv oe^
ated a privilege which was leee than the *riv>
il^ge which would have been aeqvind If
withholding the manuscript until the hw
waa completed and then taking the eoif-
ri^ht, this copyright is vUid. jEb pons
briefly is that no one of the twchv
rights, if each chapter were euejiktot J
nor*all of them combined, could be Mite te ^
a copyright, in the sense of the statatc^ d
the book, which is the subject of the off
right in question; and that
rately nor collectively could they
the particular privilege, which is the
of the copyriffbt of ^The Autocrat «f tk
Breakfast Table," aa a whole.
We find it unnecessary to
whether the requiremort of
could have been met by a deposit of tfet
book, "The Autocrat of the Breakfast Tkkk'
prior to the publication of the first wt ■
the Atlantic Monthly, or whether, isr t^
complete protection of the auUior, it weU
be necessary that each part should bt t^
rately copyrighted. This would depend )Mxft
ly upon the question whether the tkni
months from the publication, within «W
the author must depodt a eopj of the ksA
with the clerk, would run from the pilfi»
tion of the first or the laat number ia tk
Atlantic Monthly.
That there waa a publieatioa of the e»
tents of the book in question, and of the »
tire contents, is beyond disoute. It leDeei
from this that d^endant raiaht have nps^
lished in another magasine these eeae wm-
bers as they originaOy appeared la the At-
lantic Monthly. He might alao, bi«Dfe tk
copyright was obtained, have puhliehed ttea
together, paged them continuooaly, and heeW
them in a volume. Indeed, the lea rned eoeew*
174 V.l
t83S.
A.TCH(sox, ToPBKA, & Santa Pb R. Co. v. Matthews.
121-128
person within its jurisdiction the equal
protection of the laws, is as untenable
as that which we have considered. The
statute makes no discrimination against
any railroad company in its require-
ments. Each company is subject to the
same liability, and from each the same se-
curity, by the erection of fences, gates, and
cattle guards, is exacted, when its road
passes through, (ilong, or adjoining inclosed
or cultivated fields or uninclosed lands.
There is no evasion of the rule of equality
where all companies are subjected to the
tame duties and liabilities under similar
circumstances."
In Missouri P. RaUtoay Co. v. Maokey,
127 U. S. 205, 209 [32: 107, 109], this court
held not to be unconstitutional a statute of
Kansas making every railroad company li-
able for ail damages done to one of its on-
ployees in consequence of any negligence of
its agents or by any mismanagement of its
engineers or other employee, to any person
sustaining such damage, lliis court said:
"Such leffislation does not infringe upon the
clause of the Fourteenth Amendment re-
quiring equal protection of the laws, because
it is special in its character; if in conflict at
all with tiiat clause, it must be on other
grounds. And when legislation applies to
particular bodies or associations, imposing
npon them additional liabilities, it is not
•pen to the objection that it denies to them
the equal protection of the laws, if all per-
sons brougnt under its influence are treated
alike under the same conditions."
In Minneapolis d 8U Louis Railway Co, t.
Emmons, 149 U. S. 364, 867 [37: 769, 772],
the court held to be valid a statute of Min-
nesota requiring railroad companies within
a named time to build or cause to be built
good and sufficient cattle guards at all wagon
crossings, and good and substantial fences
•n eadi side of their respective roads, and
that failure by any company to perform that
duty should be deemed an act of negligence,
for which it should be liable in treble the
amount of damage sustained. This court
said: 'The extent of the obligations and
2]dutie8 * required of railroad corporations or
companies D^ their charters does not create
any limitation upon the state against im-
posing all such further duties as may be
fleemed essential or important for the safety
of the public, the security of passengers and
employees, or the protection of the property
of adjoining owners. The imposins; of prop-
er penalties for the enforcement of such ad-
ditional duties is unquestionably within the
poUoe powers of the states. No contract
with any person, individual or corporate, can
impose restrictions upon the power of the
states in this respect."
In 8i. Louis d San Francisco Railway Co.
▼. Mathews, 165 U. S. 1, 26 [41: 611, 621],
this court upheld a statute of Missouri pro-
viding that every railroad coriK>ration own-
ing and operating a railroad in that state
should be responsible in damages to the own-
er of any property injured or destroyed by
fire coramunicated directly or indirectly by
locomotive engines in use upon its railroad
—the railroad company being, however, au-
174 U. S.
I thorized to procure insurance on the prop-
erty upon the route of its railroad. It was
there said: "The right of the citizen not to
have his property burned without compen-
sation is no less to be regarded than the
right of the corporation to set it on fire. To
require the utmost care and diligence of the i
railroad corporations in taking precautions
ag^ainst the escape of fire from their engines
might not afford sufficient protection to the
owners of proper^ in the neighborhood of
the railroads. When both parties are
equally faultless, the legislature may proper-
ly consider it to be just that the duty of in-
suring private property against loss or in-
jury caused by the use of dangerous instru-
ments should rest upon the railroad com-
pany, which employs the instruments and
creates the peril for its own profit, rather
than upon the owner of the property, who
has no control over or interest in those in-
struments. The very statute now in ques-
tion, which makes the railroad company li-
able in damages for property so destroyed,
gives it, for ito protection against such oiEun-
ages, an insurable interest in the property
in danger of destruction, and the right to ob-
tain insurance thereon in its own behalf;
and it may obtain insurance upon all such
property generally,- without specifying any
^particular prepay." Observe, that the Mis-[m]
souri statute gave the railroad company for
its protection against the new liability im-
posed upon it the right to insure the prop-
erty likdy to be destroyed by fire.
I do not perceive that the judgment now
rendered finds support in any aajudicatiom
by this court. The above cases proceed upon
the general ground that in the exercise of ite
police powers a state ma^ by statute impose
additional duties upon railroad corporations,
with penalties for the nonperformance of suck
duties, and that such legislation is not, be-
cause of its special chars^ter, a denial of the
equal protection of the laws. It is said to be
01 the essence of classification that "upon
the class are caat duties and burdens differ-
ent from those resting upon the general pub-
lic." But here the state does not prescribe
any additional duties upon railroad com-
panies in respect of the destruction of prop-
erty by fire arising from the operating of
their roads. It simply imposes a penalty
which it does not impose upon other litigante
under like circumstances. It only prescribes
a punishment for assuming to contest a
claim of a particular kind made against it
for damages. The railroad company can es-
cape the punishment onl^ by failing to exer-
cise its privilege of resisting in a court of
justice a demand which it deems unjust Un-
doubtedlv, the state majr prescribe new duties
for a railroad corporation and impose penal-
ties for their nonperformance. But, under
the guise of exerting its police powers, the
state may not prevent access to the courts
by all litigants upon equal terms. It may
not, to repeat the language of the court in the
Ellis Case, ''arbitrarily select one corpora^
tion or one dass of corporations, one indi-
vidual or one class of individuaLs, and visit a
penalty upon them which is not imposed
upon others guilty of like delinquency. Ar-
919
9i-i)4
SUFBKMB COITBT OF THE UNITED STATES.
Oct T
IK ERROR to the Supreme Court of the
State of Louisiana to review a decision of
that eourt in an action of slander of title
brought by Robert K. White, plaintiff,
against August F. Leovy ei al. On motion
to dismiss for want of jurisdiction on the
S'ound that no Federal question was decided.
ismissed.
See same case below, 49 La. Ann. 1600.
The facts are stated in the opinion.
Messrs. Alexander Porter Morse»
Henry J. I«eoTy, and Vietor IieoTy for
defendants in error in favor of motion to
dismiss.
Mr. E. Howard MeCaleb for plaintiff in
error in opposition to motion to dismiss.
f^IJ *Mr. Justice MeXenna delivered the
opinion of the court:
This is an action of jactitation or slander
of title, and is here on error from the su-
preme court of the state of Louisiana. A
motion is made to dismiss for want of ju-
risdiction in this court on the ground that
no Federal question was decided. We think
the motion should be granted.
Both parties, who were respectively plain-
tiff and defendant in the court below, derive
title from the state of Louisiana by patents
which were issued in execution of the grant
to it of swamp and overflowed lands. Plain-
tiff's patent was prior in time to tiiat of de-
fendant, and it is claimed that by the issue
of the latter the state '^aa attempted to im-
mdr the obligations of the contract between
the state of Louisiana and the said Robert
M. White, plaintiff herein, and deprive him of
his propco^ without due process of law, in
violation of the Constitution and laws of the
United States.**
The titie of the state must be assumed,
ind the contest is by which patent that titie
fM] lassed. It seems almost inevitable* that the
questions hence arising would be state ones,
and that the decision of the supreme court
was confined to such a question is nmnifest
from its opinion. 49 La. Ann. 1660.
After defining the action under the Louisi-
ana laws, and stating upon whom the burden
of establishing titie devolved, it said:
The description of the land which was
Surchased bv the plaintiff which was evi-
enced by the patent which issued to the
Slaintiff, is of the foUowinff tenor, vie.: 'All
be unsurveyed marsh west of lots fronting
on the riffht bank of the Mississippi, except
section no. sixteen (16), in townsnip twen-
ty-two (22) south, of range thirtv-one (31)
east, in the southeastern west of the river
land district, containing thirty-eight hun-
dred and forty (3,840) acres, according to
the official plat of the survey of said lands
in the state land office.'
"The number of the patent is 4058, and it
states that the purchase was made with oer^
tificate No. 2261, N. S. L."
The plaintiff's petition, original and sup-
plemental, contained the same description.
'The answer of the defendant a. J.
Leovy," the opinion further says, "is to ti^e
effect tiiat the land claimed by the plaintiff
and caUed for by his patent 'was entered ac-
cording to an oincial plat or survey made by
G. F. Connelly in 1836, (and) . . .
all within a distance of less this two
of the Mississippi river, and all tenllmj
the west of that was at the date of that
vey, and by the plat by whidi White
to have bought. West bay.
* That a fewyears after GomidlyBade
survey the Jump outiet broke thnntgh, aai
the accumulation on the seaward side of mii
marsh and in said bay gradnally raised thr
bed of said bay untfl tiie whole of Mid Wi
bay became marsh land, eonnecti
swamp land to the westward, and at _
of said lands being transferred to the
in 1849 and 1850, by Congress, it wm asts
navigable bay or part of ue sea.'
"The answer then diargei that the fUs-
tiff, well knowing all these facts, sad »
deavoring to perpetuate a fraud ^oa t^
state, 'entered the lands originally aBotzr
by Connelly, and*under his pateirt m» P
endeavoring to daim over sixteen thsaa:
(16,000) more acres in said towMhis'lks
he is entitied to daim thereunder, aailf *»
malicious suit now sedcs to east a dtmi »
on the titie of others who have caterai m
western lands in said township . . .
honestiy and according to law, aaa whs at
in the peaceable and undistazhed jpammim
of the same.' "
The answer of the other dnfrndiil mt
similar. And further —
<an limine litis plaintiff^ eo
exception and motion to strika ooi a
of the defendant's answera oo the p^
that the official plat of survnr of Q. K(h»>
nelly, U. 8. surveyor, made ni 183C sei •
which his patent was based, eaanot htfv-
tioned or impeached by tiM ilcfiadiit ■!
this court is wholly without juriadietiB to
determine whether same b or not vnaaak
and that the said patent cannot be fm^timd
or impeached by the defendant far fnalv
error.
'That the United States ftuiaiMi^, •
the owner of the sea marah adjaeoift ta Ai
seashore and to West bay, 'aeq^iiei il *i
alluvion made by accretion to said hab l»
tween the years 1836 and 1850; nd ate
said lands were mated by the CailidBhia
government to the state of LoaisieM.' iM>
passed to the state by the giaatiag tA d
Congress, and that saaM paaM te thi ffe»
tiff as patentee thereof, and that ht aflfinl
all of said lands as wall aa ^ wat^um
which were added thereto, aa thw wn ^
the time they were granted by w M^
SUtes to the state of LoafaSaM,* said r^
ing act paaaing a fee aimple title la p«^
to the state, not only aa tha laad aaa it *
time of the survev by CoaBeUy ia IM ^
aa it was at the date of the past ni *^
the whole was aequirad by &a plaietf"
patentee.
"His additional repreaeBtatkn ii thi*^
plaintiff aa patentee 'acquired sM ^ ^
land$ in township No. 22 ao«th« raa|« ^ ^
east, on the southeastern west of tht rfi'
land district^ oooor^dMif to the eHrial m^
of $oid lands im the 8t9t9 Immd pfm m 1^
were at the tieM the^f were prmUtd If ^
United States to the state of Loaioaaa*' J
*The dedsion of the district eoart em^^
1T4B.*
Atghibon, Topbka, dc Santa F6 R. Co. y. Matthbwb.
94r-90
kfttr of the motion, and after comment on
be mling the euprane court said:
''Beduoed to a last analysis, the pleadings
neeent for our consideration and aecision a
mnij petitory action, in which the defend-
Jit holds the affirmative side of the contro-
ervj and is bound to succeed on the stren^h
•f his own title, and in deciding the question
if tiUe we are to determine whether the pat-
ints whidi the state issued to H. J. Leovy,
n 1893, reflect a title which is superior and
MLramotmt to the patent which the state is-
(tied to the plaintiff in 1890, to the extent
hat iLey oonflict.
'This controversy is not so much with re-
gard to the character or strength of the re-
jpective parties as it is with regard to the
Lrea or domain which the state actually and
really conveyed to the plaintiff; for it is
luite true and cannot be denied that the
state was wholly without power to convey
to the defendant H. J. Leovy any land in 1893
irhich she had previously sold to the plaintiff
in 1890y without trenching upon the issues
of error or fraud which were excluded from
consideration. In other words', we are to deter-
mine from the evidence before us whether the
plaintifTs patent covers and indudes all the
land in township twenty-two south, of range
thirty-one east, in the southeastern land dis-
trict west of the Mississippi river; for if it
does, in fact, the patents which were subse-
auently issued to tne defendant H. J. Leovy
ao not reflect a paramount title thereto."
The court then gave elaborate considera-
tion to the views of the district court, ex-
pressing its dissent from them ; also at great
length reviewed the evidence and the land
laws of the state and the descriptions of the
respective patents, and concluded as follows :
'*A8, in our opinion, this controversy is
quite similar to the one presented in Buraa
V. O'Brien [42 La. Ann. 528], that is to say,
one for the determination of the area of sea
marsh which is covered by a state patent—
our conclusion is that the plaintiff's patent
4058 does not extend to nor include the land
which is called for by the patents which were
subsequently issued by *tne state to the de-
fendant H. J. Leovy, and that consequently
there is no conflict between them.
lender the jurisprudence and statutes of
this state governing the sale and entry of
swamp and marsh lands, we think it our
<iuty to consider all the provisions and reci-
tals of patents issued therefor and to give
same effect according to their tenor; and
thus considering the patent of the plaintiff,
we regard it as evidencing a sale by measure
and not by estimation of quantity. We con-
sider the words thereof 'containing 3,840
acres' as limiting the words preceding, 'all
the onsurveyed marsh west or lots fronting
on the right bank of the Mississippi,' and
that the reference made thereinto 'the official
plat of the survey of said lands in the state
land office' was intended to verify and con-
firm the statement as to the character and
^ent of the area of land which was actually
eonveyed to the patentee.
^'We are of the opinion that inasmuch as
the plaintiff's patent 4058 calls for 'all the
unsurveyed marsh west of lots fronting on'
174 U. S.
the Mississippi, except section sixteen in
township twenty-two,^ he is not entitled to
survey, select, and appropriate all the dry
land or swamp land above overflow in said
township in order to make out the quantity
of '3,840 acres' he purchased.
"We are of opinion that inasmuch as
the patent conveys 'all the unsurveyed
marsh west of the lots fronting on the
Mississippi,' tho^e lots must be taken as the
initial point from which the area is to be
computed, same being the only fixed and defi-
nite boundary mentioned in the patent.
"Thus considering the law and the evi-
dence, we are of opinion that there should be
judgment in favor of the defendant H. J.
Leovy maintaining his patents as reflecting
the paramount title to the lands which are
therein described, and perpetuating his writ
of injunction."
It is manifest no Federal (juestion was
passed on by the court. Its decision was put
upon an independent ground involving no
Federal question and of itself sufficient to
support the judgment. It merely deter-
mined the extent of the grant to the state ^
and, interpreting the contending patents *as 1^6]
conveyances, decided that the lands described
in that of plaintiff did not embrace the lands
in controversv, and that the lands described
in that of defendant did embrace them. This
was but the interpretation of written instru-
ments, and if it were even apparent to us to
be wrong, which we cannot say, we should
nevertheless be without power to review it.
In Remington Paper Co, v. Watson [173
U. S. 443]. ante, p. 762, we had occasion to
repeat and affirm the rule announced in
Eustis V. Bolles, 160 U. S. 370 [37: 1113],
"that when we And it unnecessary to decide
any Federal question, and when the state
court has based its decision on a local or
state question, our logical course is to dis-
miss the writ of error."
The torit of error is dismissed.
ATCHISON, TOPEKA & SANTA FE RAIL-
ROAD COMPANY, Plff, in Err,,
V.
W. T. MATTHEWS and M. L. Trudell, Co-
partners as Matthews & Trudell.
(See S. C. Reporter's ed. 06-125.)
Fires set hy locomotives — Fourteenth Oof^
stitutional Amendment — Kansas statute
as to fires set hy railroad companies,
1. The legislature has power to provide a pen-
alty for the failure of a railroad company
to prevent the escape of fire from Its loco-
motive, without prescribing any specific duty,
but leaving to the corporation the selection of
the means It deems biest therefor.
2. The equal protection of the laws, which la
guaranteed by the Fourteenth Amendment of
the Constitution, does not forbid classification.
The fact of inequality produced by classifica-
tion does not determine Its constitutionality.
8. The Kansas statute which provides that in
an action against a railroad company for
damages by fire caused by operating the rall-
909
97-9U
Supreme Coubt of the Uioteo States.
Oct.
road, the plaintiff need only establlih the
fact that the fire complained of was canted by
operating the railroad and the amount of
his damages, and that such proof shall be
prima fade evidence of negligence on the ptLtt
of the railroad, and that the plalntifC, if he
recover, shall also be allowed a reasonable
attorney's fee, — Is not In conflict with the
Fourteenth Amendment to the Federal Consti-
tution as denying the equal protection of the
laws to such company, and is valid.
[No. 147.]
Buhmiited January 18, 1899. Decided April
i7, 1899.
IK ERROR to the Supreme Court of the
State of Kansas to review a jud^moDt of
that court affirming the judgment of the Dis-
trict Ck)urt of Cloud County in said State
in favor of W. T. Matthews ei al., plaintiffs,
against the Atchison, Topeka, & Santa Fe
railroad Company for $2,094 damages, and
^25 attorneys' fees, for damages bv fire
caused by the operating of such railroad.
Affirmed,
See same case below, 58 Kan. 447.
The facts are stated in the opinion.
Messrs, Robert Diu&lap and E. D* Kem-
«a for plaintiff in error.
No counsel for defendant in error.
[•7] *Mr. Justice Brewer delivered the opin-
ion of the court:
In 1885 the legislature of Kansas passed
the following act :
''An Act Relating to the Liability of Rail-
roads for Damages hy Fire. .
"Sec. 1. Be it enacted by the Legislature
of the State of Kansas: lliat in all actions
against any railway company organized or
doing business in this state, for cUimages bv
fire, caused by the operating of said rauroad,
it shall be only necessary for the plaintiff in
said action to establish the fact that said
fire complained of was caused by the operat-
ing of said railroad, and the amount of his
damages (which proof shall be prima facie
evidence of negligence on the part of said
railroad) : Provided, That in estimating the
damages under this act, the contributory
negligence of the plaintiff shall be taken in-
to consideration.
"Sec. 2. In all actions commenced under
this act, if the plaintiff shall recover, there
shall be allowed him bv the court a reason-
able attorney's fee, which shall become a
part of the judgment." Sess. Laws 1885,
chaps. 155, 258.
Under it an action was brought in the
district court of Cloud county which resulted
in a judgment against the railroad company,
plaintiff in error, for $2,094 damages and
$225 attorney's fees. This judgment having
been affirmed by the supreme court of the
state, the company brought the case here on
error.
All questions of fact are settled by the de-
cision of the state courts. ( Hedrick v. Atch-
ison, T, d 8. F, R. R. Co, 167 U. S. 673, 677
[42 : 320, 322] , and cases cited in the opinion ) ,
and the single matter for our consideration
is the constitutionality of this statute. It
910
is contended that it Is in eonfliet wHk
Fourteenth Amendment to the Federal
stitution, and this contention
ruled upon by the supreme court of the state
adversely to the railroad company. Ib a«^
port of this contention great rfliimrf ■
placed upcm Oulf, Colorado, d Somla F4 M§.
Po. V. Ellis, 165 U. a 150 [41 : 666]. Ib t^t
case a statute of Texas allowing an
fee to the plaintiffs in actions
road corporations on claims not
in *amount $50, for personal aerTieai n^-^
dered or labor done, or for damaeesi, or te
overcharges on freight, or for stocx HUrf m
injured, was adjudged iinnnnnlitiitiifaal B
was hdd to be simply a statute iBpi
penalty on railroad corporationB tcsr
to pa^ certain debts, and not one to
compliance with any pcdice rcgnlatioaB. It
was so regarded by the supreme eoort of the
state, and its construction was a4HJeytod ia
this court as correct. While the ngki to
classify was conceded, it was said that
classification must be based upon
ference bearing a reasonable and just
tion to the act ifi respect to which the
fication is attempted; that no nm^
selection can ever be justified by ealliqg
classification. And there is no good reusa
why railroad corporations alone shoald to
punished for not paying their debts. Cob-
polling the payment of d^to is not a ftiam
regulation. We see no reason to rhingf tto
views then expressed, and if the statsto to*
fore us were the counterpart of that, «e
should be content to refer to that case as mm-
dusive.
But while there is a similarity, jtt
are important diff^^nces, and diffi
which in our judgment compel an o|.
conclusion, llie purpose of this statato h
not to compel the payment of debts, h«t to
secure the utmost care on the part of ni-
road companies to prevent the escape of tot
from their moving trains. This is obri—
from the fact that liability for damafi* to
fire is not cast upon such corporatioas ia si
cases, but only in those in whidi the fin »
**caused by the operating" of the road. U
is true that no special act of precantioo wm
required of the railroad companies, failve
to do which was to be visited with this yes-
alty, so that it is not precisely like the
utee imposing double damages for
killed where there has been a failure to
Missouri Poj. Ry, Co. v. flumes, 115 C S
512 [29: 46*5]. And yet iU purpose is vt
different. Its monition to the rsnioa^ h
not, pay your debts without suit or voa «&
in addition, have to pay attorney^ km, toi
rather, see to it that no fire escapes f;«i
your locomotives, for if it does yoo viB to
liable, iwt merely for the damages it esana
but also for the reasonable attonKT^ !•*
of the owner of the property injnrtd or 4^
stroyed. It *has beoi frequently befen tto rM|
supreme court of Kansas, has always toss m *
interpreted by that court, asd ito vihfity
sustained on that ground. In ifiissari /to.
Ry, Co. Y. MerriU, 40 Kan. 404, 466, H wm
said:
"The objecUon that this legisUtioa ii »
cial and unequal cannot be sustained, let
176 V.t.
1898.
Atchison, Topeka, «& Sai^ta Ft R. Co. y. Matthews.
99-101
dangerous element employed and the haz-
ards to persona and property arising from
the ninnmg of trains and the operation of
railroads, justifies such a law; and the fact
that all persons and oorj^rations brought
under its influence are subjected to the same
duties and liabilities, under similar circum-
stances, disposes of the objections raised."
And in tiie opinion filed in the present case
that court observed:
"Our statute is somewhat In the nature
of a police regulation, designed to enforce
care on Uie part of railroad companies to
Srevent the conmiunication of fire and the
estruction of property alon^ railroad lines.
It ia not inteni&d merely to impose a burden
on railroad cori>oration8 that private per-
sons are not required to bear, ana the remedy
offered is one tne legislature has the right to
ffiwj in such cases. This is the view hereto-
fore held by this court, which we see no rea-
son for changing. {8t, Louis d San Francisco
By. Co, V. Snaueley, 47 Kan. 637 ; 8t. Louis
d 8. F. R, Co, V. Curtis, 48 Kan. 179; 8i.
Louis d 8, F, R, Co. v. McMullen, 48 Kan.
281; Missouri Pac, R. R, Co, v. denning, 48
Kan. 465)".
It is true that the Ellis Case was one to
recover damages for the killing of a colt by
a passing train. And so it miffht be argued
that the protection of the track from stray-
ing stock and the protection of stock from
moving trains would, within the foregoing
principles, uphold le^slation imposing an
attorney's fee in actions against railroad
corporations. We were not insensible to
this arg^ument when that case was consid-
ered, but we accepted the interpretation of
the statute and its purpose given bv the su-
preme court of Texas, as appears from this
extract from our opinion (p. 153 [41 : 667] ) :
'The supreme court of the state considered
this statute as a whole and held it valid, and
as such it is presented to us for considera-
tion. Considered as such, it is simply a stat-
)]ute imposing a penalty *upon railroad corpo-
rations for a failure to pay certain debts."
And again, referring Bpecifically to this
matter (p. 158 [41:667]): "While this
action is lor stock killed, the recovery of at-
torney's fees cannot be sustained upon the
theory just suggested. There is no fence law
in Texas. The legislature of the state has
not deemed it necessary for the protection of
life or property to require railroads to fence
their tracks, and as no duty is imposed, there
can be no penalty for nonperformance. In-
deed, the statute does not proceed upon any
such theory; it is broader in its scope. Its
object is to compel the payment of the sev-
eral classes of debts named, and was so re-
garded bv the supreme court of the state."
Indeed, the limit in amount ($50), found in
that statute, made it clear that no police reg-
ulation was intended, for if it were the more
stock found on the track the greater would
be the danger and the more imperative the
need of reg^ation and penalty.
So that, according to the interpretation
placed upon the Texas statute by its supreme
court, its purpose was geneially to compel
the payment of small debts, and tl>e fact that
among the debts so provided for was the li-
174 V. S.
ability for stock killed was not sufficient to
justify us in separating the statute into
fragments and upholding one part on a
theory inconsistent with the policy of the
state; while on the other hand, the purpose
of this statute is, as declared by the siipreme
court of Kansas, protection against fire — a
matter in the nature of a police regulation.
It may be suggested that this line of ar-
gument leads to the conclusion that a stat-
ute of one state whose purpose is declared by
its supreme court to be a matter of police
regulation will be upheld by this court as not
in conflict with the Federal Constitution,
while a statute of another state, precisely
similar in its terms, will be adjudged in con-
flict with that Constitution if the supreme
court of that state interprets its purpose and
scope as entirely outside police regulation.
But this by no means follows. This court is
not concluded by the opinion of the supreme
court of the state. Yick Wo v. Hopkins, 118
U. S. 356, 366 [30: 220, 225]. It forms its
own independent judgment as to the scope
and purpose of a statute, while of *cours [101]
leaning to an^ interpretation which has been
placed upon it by the highest court of the
state. We have referred to the interpreta-
tion placed upon the respective statutes of
Texas and Kansas by their highest courts,
not as conclusive, but as an interpretation
towards which we ought to lean, and whidi,
in fact, commends itself to our judgment.
That there is peculiar dancer of Ire from
the running of railroad trtuns is obvious.
The locomotives, passing, as they do, at great
rates of speed, and often when the wind is
blowing a gale, will, unless the utmost care
is taken (and sometimes in spite of such
care), scatter fire along the track. The dan-
ger to adjacent property is one which is es-
pecially felt in a prairie state like Kansas.
It early attracted the attention of its legis-
lature, and in 1860 — long before any rail-
roads were built in the state — this statute
was passed (Laws 1860, chap. 70, sec. 2;
Comp. Laws, chap. 101, sec. 2) : "If any per-
son shall set on fire any woods, marshes, or
pra'ries, so as thereby to occasion any dam-
age to any other person, such person shall
make satisfaction for such damage to the
party injured, to be recovered in an action."
As held in Emerson v. Gardiner, 8 Kan. 452,
its effect was to change the rule of the com-
mon law, which gave redress only when the
person setting the fire did so wantonly or
through negligence, whereas by this statute
the mere fact of setting fire to woods,
marshes, or prairies gave a right to the party
injured to recover damages. And in the
years after the railroads began to be con-
structed, and prior to the passage of the act
before us, the reports of tne supreme court
of that state show tha t nearly a score of ac-
tions had been brought to that court for con-
sideration, in some of which great damage
had been done by fire escaping from moving
trains. Fire catching in the dry grass often
runs for miles, destroying not merely crops
but houses and barns. Indeed, in one case
{Atchison, T, d S, F. R, Co, v. Stanford, 12
Kan. 354 [15 Am. Rep. 362]), it appeared
that the fire escaping nad swept across the
184^-187
SUPBEHS COUBT OF THB UHITBD STATES.
OaTiBL
the First National Bank or offered by it Ib
the regular course of business or for the bene-
fit of any per8<Mi other than the bank or in-
terested in the proceeds, and that the United
States National Baijc in its correspondence
and dealings did not recognize H. Q. Allis,
W. C. Denney, or S. S. Smith personally or
in MIT capacity than as representing the
First National Bank ; and that the transac-
tions were solely with the First National
Bank; and that the correspondence and trans-
actions were usual for the president and
[lS6]ca8hier of a United States ^national bank to
carry on; and that the proceeds of the vari-
ous discounted notes were withdrawn by the
Little Rock bank in the regular course of
business by its officers.
There was a detailed statement of the
transactions between the banks attached to
Hopkins's deposition which is not in the rec-
ord, but instead thereof there appears the
following:
"The account current here referred to be-
gan June 27, 1892, and continued until the
suspension of business of the First National
Bank. It shows almost daily entries of debit
and credit. It shows that the several notes
discounted by the United States National
Bank and rmrred to in the depositions of
the officers of that bank, being forty-nine in
number, were charged against the account of
the First National Bank by the United States
National Bank at the several dates of their
maturity. In two thirds of the instances
where such charges were made the balance to
the credit of the First National Bank on the
books of the United States National Bank
was sufficient to cover the charge. In other
instances the balance to the credit of the
First National Bank was insufficient to meet
the charge at the time of the entry, and in
the other instances the account of the First
National Bank was in overdraft as shown
by the books of the United States National
Bank at the time the charge was made.
The account shows that at the time of the
suspension of the First National Bank the
latter bank had a credit of $467.86 upon the
books of the United States National Bank.
Against this balance the notes in suit with
protest fees were charged on the account
April 17 and May 16, 1893, making the ac-
count show a balance in favor of the United
States National Bank of $24,558.03.
*'Th\B is the paper marked '77' referred to
in the depositions of Henry C. Hopkins,
James H. Parker, Joseph W. Harriman and
John J. McAuliffe, hereto annexed."
The record also shows that "J. H. Parker,
president Joseph W. Harriman, second as-
siatant cashier, and John J. McAuliffe, as-
sistant cashier, each testified to identically
the same facts in the identical language as
Henry 0. Hopkins, and it is agreed that the
depositions of Hopkins shall be treated as
[lS6]the deposition *of each of the said witnesses
without the necessity of copying the deposi-
tion of each witness."
There was proof made of the protest of the
notes*
There was testimony on the part of the
plaintiff showing that it was the custom of
084
the banks at little Rock to ndiifl«|
through their presidents and eukicn oi
after a decision in the Natioml Bisk euel
Cincinnati in January, 1893; iftcrthtl
was done by resolution of tiiebotrdtfl-
rectors, and the banks of New York iii ctit
commercial cities commonly rapiretbitvc.
By a witness who was cashier of tk U'
tie Bock bank from November, 1890, to (k-
tober, 1891, Allis then being preudatitni
shown that it was the custom of tbehoki
to rediscounting notes for the cukiff v »
sistant cashier to refer them totheprfBdC-.
and the president generally dindcd n;
amount and where to send them. ^^
they were referred to the bcftrdoffinaE^
the witness was unable to stj.
On cross-examination the vitaw iatM
that when the discounts were detoiari
on, the cashier or assistant eukiff t»-
acted the business. He, howem. dj •»
membered sending off one lot of £»<>
Mr. Denney, the assistant eukkr, w^
carrying on the correspondesee. Hifli^
remem&r that the president em iii i^
thinff of that kind. ^therMr.DnvTff*
would say to him that soiDetUii| d »
kind was needed, and he vooM ls«t '^
quantity and what correspoaderti i*^
to send to."
There were introduced in eTideM*tki»
ports or statements by the bank tothiO^
{roller of the Currency, showisf tli ii*»
counts and business of the btotof te)l?
17, 1892, and July 12, 1892, to foOtm: »
report of May 17 was sworn to bf W. C I»
nev, cashier, and attested by Jib* ^
E. J. Butler, and H. O. Allii, &«•« *
showed 'notes and bills redisesotai vi
132.40.' The report of Jily U^*
sworn to by H. O. Allis, preiMeit, of <
tested by Charles T. Abelen, E J. Bidff^
John W. Goodwin, directors, ud *^
notes and bills rediscounted, ^^^^^^
The testimony on the part of tk|aj=
in error showed* (we quote fro« Wf ■ M
fendant in error) that "the notei «* *
longed to the First NaUontl Bonk: t^ »
three notes of the Electric Stnet^^J^
Ccmipany were executed to Browi »f *J
for accommodation of Alli«, u* " t«
notes of McCarthy k Joyce Coai« *»
executed and delivered to Allis for mn^
pose of raising money for the oo"W r
placed to iU credit witb the K^ >?^
Bank, to which McCarthy 4 Jojtt Om^V
was indebted ; that neither o* » "Jf *
ever passed upon by the ^**^^!p|**f^
the bank or appeared on the Wj f!
bank ; that after the bank wis •»?:
the notes had been dioconnted ui P*^ ■
its credit, Allis directed the pw»*;*
notes ($25,000) to be placed to hiiff*J
the books of the bank, at whiA tm^
was an overdraft against him of IIW
that Allis was at Uiat time !*>*«**
LitUe Rock bank on Indiridail ■•^Jf"
least $50,000, and was coatiiiwjf,
after indebted to the bank ratil to fc*J\
As to the power of the presideif H «?•
rediscounts or to indorae the «<• ■ "
bank, E. J. Butler. N. Kupierit "f^;
Abeles, who were directors of
\nt^
18U8.
Atchison, Topbka, ft Bauta Fft R. Co. t. Matthicws.
104-107
constitutional law that a legislature Is pre-
sumed to have acted within constitutional
limits, upon full knowledge of the facts, and
with the purpose of promoting the interests
of the people as a whole, and courts will not
lightly hold that an act duly passed by the
leffislators was one In the enactment of
which it has transcended its power. On the
other hand, it is also true that the equal pro-
tection guaranteed by the Constitution for-
bids the legislature to select a person, natu-
ral or artificial, and impose upon him or it
burdens and liabilities which are not cast
upon others similarly situated. It cannot
pick out one individual, or one corporation,
and enact that whenever he or it is sued the
jud^ent shall be for double damages, or
subject to an attorney fee in favor of the
plaintiff, when no other individual or corpo-
(10S]r&tion is subjected to the same rule/Neither
can it make a classification of individuals or
corporations which is purely arbitrary, and
impose upon such class special burdens and
liabilities. Even where the selection is not
obviously unreasonable and arbitrary, if the
discrimination is based upon matters which
have no relation to the ooject sought to be
accomplished, the same conclusion of uncon-
stitutionality is affirmed. Yick Wo t. Bop-
kina, aupra, forciblv illustrates this. In
that case a municipal ordinance of San Fran-
cisco, designed to prevent the Chinese from
carrying on the laundry business, was ad-
Judged void. This court looked beyond the
mere letter of the ordinance to the condition
of things as they existed in San Franciseo,
and saw that under the guise of regulation
an arbitrary classification was intended and
accomplished.
While cases on either side and far away
from the dividing^ line are easy of disposition,
the difficulty arises as the statute m ques-
tion comes near the line of separation. Is
the cla8«ification or discrimination pro-
scribed thereby purelv arbitrary or has it
some basis in that which has a reasonable
relation to the object sought to be accom-
plished? It is not at all to be wondered at
that as these doubtful cases come before this
court the justices have often divided in opin-
ion. To some the statute presented seemed
A mere arbitrary selection; to others it ap-
peared that there was some reasonable basis
of classification. Without attempting to
cite all the cases it may not be amiss to no-
tice, in addition to those already cited, the
following: Missouri v. Letoia, 191 U. S. 22
[25: 989] ; Bayea T. Missouri, 120 U. S. 68
[30:578]; Duncan v. Missouri, 152 U. 8.
377, 382 [38: 485, 487] ; Marohant v. Penn-
sylvania R. R, Co, 153 U. S. 380, 389 [38:
751, 756] ; Chicago, K, d W. R, R, Co, T.
Pontius, 157 U. S. 209 [39: 075]; Lows T.
Kansas, 163 U. S. 81, 88 [41 : 78, 81] ; Plessy
T. Ferguson, 163 U. S. 537 [41 : 256] ; Cov-
ington d L. Turnpike Co, t. Sandford, 164
tJ. S. 578, 597 [41 : 560,567] ; Jones v. Brim,
165 U. S. 180 [41: 677] ; Western U, Teleg,
Co, V. Indiana, 165 U. S. 304 [41 : 725] ; Chi-
cago, B. d Q, R. R. Co, V. Chicago, 166 U. S.
226, 257 [41 : 979, 992] ; Bolden v. Bardy,
169 U. S. 366 [42: 780] ; Savings d L. Sooie- \
803]; Magoun t. Illinois Trust d Savings
Bank, 170 U. S. 283, 300 [42: 1037,1045];
Tinsliy t. Anderson, 171 U. S. 101 [ante, 91].
In some of them the *court was unanimous.[lM]
In others it was divided; but the division in
all of them waa, not upon the principle or
rule of separation, but upon the location of
the particular case one side or the othor ol
the dividing line.
It is the essence of a classification that
upon the class are cast duties and burdena
different from those resting upon the general
public. Thus, when the legislature imposes
on railroad corporations a double liability for
stock killed by passing trains it says, in ef-
fect, that if suit be brought affainst a rail-
road company for stock killed by one of its
trains it must enter into the courts under
conditions different from those resting on
ordinary suitors. If it is beaten in the suit
it must pay, not onlv the damage which it
has done, but twice that amount. If it suc-
ceeds, it recovers nothing. On the other
hand, if it should sue an individual for de-
struction of its livestock it could under no
circumstances recover any more than the
value of that stock. So that it may be said
that in matter of liability, in case of liti-
gation, it is not placed on an equality with
other corporations and individuals; yet this
court has unanimously said that this differ-
entiation of liability, this inequality of riffht
in the courts, is- of no significance upon the
question of constitutionality. Indeed, the
very idea of classification is that of inequal-
ity so that it ffoes without sayinff that the
fact of inequality in no manner detennines
the matter of constitutionalitT.
Our conclusion in respect to this statute
is that, for the reasons above stated, giving
full force to its purpose aa declared by the
supreme court of Kaneas, to the presumption
which attaches to the action of a legislature
that it has full knowledge of the conditions
within the state, and intends no arbitrary
selection or punishment, but simplv seeks to
subserve the general interest of the public,
it must be sustained, and the judgment of the
Supreme Court of Kansas is affirmed.
Mr. Justice Harlan dissenting:
*The statute of Kansas, the validly of[i07]
which is involved in the present case, pro-
vides in its first section that in all actions
against a railway company to recover dam-
ages resulting from fire caused by the operat-
ing of its roi^, it shall only be necessary for
the plaintiff to establish the fact that the
fire complained of "was caused by the operat-
ing of said railroad, and the amount of his
damages (which proof shall be prima fade
evidence of negligence on the part of said
railroad) : Prov%ded, that in estimating the
damages under this act, the contributory
negliffence of the plaintiff shall be taken into
consideration." The second and only other
section provides that "if the plainftiff shall
recover, there shall be allowed him by the
court a reasonable attorney's fee, which shall
become a part of the judgmoit.'* .
Manifestly, the statute applies only to
suits against railroad companies, and onlv to
iy V. Multnomah County, 169 XJ. S. 421 [42: causes of action arising from fire caused by
174 U.S. U.S.. Book 43. . 58 »i3
140-148
SUPBBMS COUBT OF THX UiriTED STATES.
Q, You are simply giving your legal opin-
ion?
A, Well, I nndentood that waa hia aa-
thority.
Other facts are stated In the opinion of the
court
Upon filing the record the defendant in er-
ror made a motion to dismiss, which was
postponed to the consideration of the merits.
Mr, Sterling B. Goekrill for plaintiff
in error.
Meaan, Jolui Fletcher and W. C, Bat-
cliff e for defendant in error.
In this case briefs were also allowed to be
submitt^ in David Armstrong, Receiver of
the Fidelity National Bank of Cincinnati,
Ohio, Appt,, v. Chemical National Bank of
New York, No. 279, by Meaara, John W, Her-
ron and Franda F, Oldham for appellant
and by Meaara, William Worthington, George
H, Teaman, and George O. Kohhe for appel-
lee.
|ft40] *Mr. Justice McKenna, after makinff the
above statement, delivered the opinion <» the
court:
1. To sustain the motion to dismiss, it is
contended that the jurisdiction of the case
depends on diversity of citizenship, and
hence that the judgment of the circuit court
of appeals is final. But one of the defend-
ants (plidntiff in error), though a citizen
of a different state from the plaintiff in the
liMlaction* (defendant in error), is also a re-
ceiver of a national banic appointed by the
Comptroller of the Currency and is an officer
of the United States, and an action against
him is one arising under the laws of the
United States. Kennedy v. Oihaon, 8 Wall.
498 [19: 476] ; Re Chetwood, 165 U. S. 443
[41 : 782] ; Sonnentheil v. Chriatian Moerlein
Brewing Co, 172 U. S. 401 [ante, 492]. It is
however, urged that such appointment was
not shown. It was not explicitly all^^,
but we think that it sufficiently appeared,
and the motion to dismiss is denied.
2. Against the correctness of the action of
the circuit court in instructing a verdict for
the New York bank, it is urged that the dis-
counting of the notes in controversy was for
the personal benefit of Allis, and that the
New York bank was charged with notice of
it because of the nature of the transaction,
the form of the notes and the order of the
indorsements, and also because notice was a
Suestion of fact to be decided by the jury on
be evidence.
It is also contended that the receiver was
entitled to a judgment on the set-off. We
will examine each of the propositions.
1. The arcument to sustain this is that
the facts detailed constitute borrowing
money, and that borrowing is out of the
usual course of legitimate banking business;
and one who loans must at his peril see that
the officer or agent who offers to borrow for
a btuik has special authority to do so. But
is borrowing out of the usual course of legiti-
mate banki^ business?
Banking hi much, if not in the greater
part of its practice, is in strict sense borrow-
026
ing, and we may weU hesitate to
as illegitimate, or regard it is oat of
course of regular business, sad haet
Sidous and questionaUe. "A beak,* asj*
[orse (sec. 2, Banks and Banking), "ia aa
institution usually incorporated intk
to issue its promissory notes iBtended to
culate as money (known as ba^ notes) ;
to receive the money of others oa gcsenl
posit to form a joint fund that suH be
by the institution for ita own hemefit, la
or more of the purposes of makiDg
rary loans and discounts ; of dealing ia
foreign, and d(Mne8tic*bills of cxdiange. coa=.*14
bullion, credits, and the remission of momr^ .
or with both these powers, and with the prrr-
ileges in addition to these basic powers. U
receiving special deposits and mskiaf ce*
lections for the holders of negotiable payp
if the institution sees fit to engage ii iaA
business."
This defines the functions: whst rds-
tions are created by them ? Manifestlr tho*
of debtor and creditor — ^the bank being m
often the one as the other.
A banker, Macleod says, is a tradff «W
buys money, or money and debts, bf oestzsf
other debts, which he does with hu credit'-
exchanging for a debt payable in the fits-t
one payable on demand. Hue, he 071^ ■»
the essential definition of banking. *ne
first business of a banker is not to k>i
money to others but to collect money fn^
others." Macleod, Banking, voL 1, U ^
pp. 109, 110. And Gilbart defines a hsifar
to be "a dealer in capital, or more W^^^
a dealer in money. He is an iatenMsia>
par^ between the borrower and the kais
He borrows of one party and lends to la-
other." Gilbart, Banking, toL 1. a. 1
The very first banking in Kigiaad «■
pure borrowing. It consisted in leuiiisi
money in exchange for whidi pifwi^
notes were given payable to beaiv os *-
mand, and so essentially was this bcriav
as then understood, that the moaopolv |n«
to the Bank of England was aenued V fe**
hibiting any partnership of more tbss at
persons "to borrow, owe, or take vp saj^
or sums of money on their bills or note f>^
able at demand." And it had effect tftl
1772 (aboutthirtyvears),whenthe moaip'?
was evaded by the introduction of the d^*^
system. The relations created are tbe «*
as those created by the issue of Bofe» 1*
both a debt is created — ^the eridcnet sut* *
different. In one case it is a credit m^
banker's books; in the other his vHwt
promise to pay. In the one cast W ^
charges it by paying the orders (ebcb) «
his creditor ; in the other by 1 idiflsf ^
promises. These are the only diffsrei^
There may be others of adrantage aai ^
mate dfect, but with then w« art «* «^
cemed.
But it may be said these fiewa aie ^m^ j
tary and do not *hdp to a eotntlea 4 iH>^
question presented by the record, «M *
not what relation a bank baa or what ps**
its officers may be conaidered as havisf ■ ^
transactions with the general pvhlk ^
what is its relation and what power fti^
cers may be considered as havinf in it* tnsf
174 IT. *
189S.
ATCHISON, ToPKKA, & Santa F6 R. Co. ▼. Matthbwb.
110-llt
Biaterlal. It is all done in the exercise of
the police i>ower of the state and with a view
to enforce just and reasonable police regula-
tions. While this action is for stock lolled,
.the recovery of attorney's fees cannot be sus-
tained upon the theory just suggested. There
is no fence law in Texas. TheTc^slature of
the state has not deemed it necessary for the
protection of life or property to require
railroads to fence their tracks, and as no
duty is imposed, there can be no penalty for
nonperformance. Indeed, the statute does
not proceed upon any such theory; it is
broaoer in its scope. Its object is to compel
the payment of tne several classes of debts
named, and was so regarded bv the supreme
court of the state." Again : "Neither can it
be sustained as a proper means of enforcing
the payment of small debts and preventing
any unnecessary litigation in respect to
them, because it does not impose the penalty
in all cases where the amount in controversy
is within the limit named in the statute.
Indeed, the statute arbitrarily sineles out
one class of debtors and punishes It for a
failure to perform certain duties— duties
which are equally obligatory upon all debt-
ors ; a punisnment not visited oy reason of
the failure to comply with any proper police
regulations, or for the protection of the la-
boring classes or to prevent litigation about
trifling matters, or in consequence of any
special corporate privile^g^es bestowed by the
state. Unless the legislature may arbi-
trarily select one corporation or one class of
corporations, one individual or one class of
individuals, and visit a penalty upon them
which is not imposed upon others guilty of
like delinquency, this statute cannot be sus-
tained. But arbitrary selection can never be
justified by calling it classification. The
equal protection demanded by the Fourteenth
Amendment forbids this."
[Ill] *If the opinions in the EUia Case and in
this case be taken together, the state of the
law seems to be this:
1. A state may not reouire a railroad com-
pany sued for negligently killing an animal
to pay to the plaintiff, in addition to the
damages proved and the ordinary costs, a
reasonable attorney's fee, when it does not al-
low the corporation when its defense is sus-
tained to recover a like attorney's fee from
the plaintiff.
2. A state may require a railroad com-
pany sued for and adjudged liable to dam-
ages arising from fire caused by the opera-
tion of its road, to pay to the plaintiff, in ad-
dition to the damages proved and the ordi-
nary costs, a reasonable attorney's fee, even
if it does not allow the corporation when suc-
cessful in its defense to recover a like attor-
ney]^ fee from the plaintiff.
The first proposition arises out of a suit
brought on account of the killing by the rail-
road of a oolt. The second proposiuon arises
out of a suit brought on account of the de-
struction of an elevator and the property at-
tached to it by fire caused by operating a
railroad.
Having assented in the Ellis Case to the
first proposition, I cannot give my assent to
the suggestion that the second proposition is
174 IT. S.
consistent with the principles there laid
down. Placing the present case beside the
former case, I am not astute enough to per-
ceive that the Kansas statute is consistent
with the Fourteenth Amendment, if the
Texas statute be unconstitutional.
In the former case we held that a railroad
corporation, sued for killing an animal, was
entitled to enter the courts upon equal
terms with the plaintiff, but that that priv-
ilege was denied to it when the Texas stat-
ute required it to pay a special attorney's
fee if wrong, and did not allow it to recover
any fee if right in its defense; and yet al-
lowed the plaintiff to recover a special at-
torney's fee if right, and pay none if wrong.
Upon these grounds it was adjudged thSt
the parties did not stand equal before the
law, and did not receive its equal protection.
In the present case the Kansas statute is
held to be constitutional, altl\ough the par-
ties in^suits embraced by its provisions are[HS)
not permitted to enter the courts upon equid
terms, and although the defendant railroad
corporation is not allowed to recover an at-
torney's fee if right, but must pay one if
found to be wrong in its defense ; while the
plaintiff is exempt from that burden if found
to be vrrong.
In the former case it was adjudged that a
state had no more power to deny U) corpora-
tions the e^ual protection of the law than it
had to individual citizens. In the present
case it is adjudged that in suits affainst a
railroad corporation to recover damages
arising from fire caused bv the operation of
the railroad, a rule of evidence mav be ap-
plied against the corporation which is not
applied in like actions asainst other corpo-
rations or against individuals for the negli-
gent destruction of property by fire.
In the former case it was held that as the
killing of the colt was not attributable to a
failure upon the part of the railroad to per-
form any duty imposed upon it by statute,
there could be no penalty for nonperform-
ance. In the present case it is adjudged *
that the statute may impose a penalty upoa
the defendant corporation for nonperform-
ance, alUiough the negligence imputed to it
was not in violation of any statutory duty.
Suppose the statute in question had been
so framed as to give the railroad corporation
a special attorney's fee if successful in its
defense, but did not allow such a fee to an
individual plaintiff when successful. I can-
not believe that any court, Federal or state,
would hesitate a moment in declaring such
an enactment void as denying to the plain-
tiff the equal protection of the laws. If this
be true, it would seem to follow that a stat-
ute that accords to the plaintiff rights in
courts that are denied to this adversary
should not be sustained as consistent with
the doctrine of the equal protection of the
laws. This oondusion, it seems to me, is in-
evitable unless the court proceeds upon the
theory that a corporate person in a court of
justice may be denied the equal protection of
the laws when such protection could not be
denied under like circumstances to natural
persons. But we said in the Bllis^Case that[119]
915
145-148
SUFBKMK COUBT OW THB UlTITKD dTATIS.
Oct.
baeides, was neither wrong nor unnatural of
itself. But it was further relieved from
question, and any challenge in the indorse-
ments was satisfied by the circumstances.
It is to be rememb^ed that the discount-
ing the notes in controversy was not the only
transaction between the banks. It was one
of many transactions of the same kind.
[IMjThey ^justified confidenoe, and it was con-
firmed by the manner in which the notes
were presented. It is conceded that the
cashier had the power to rediscount the
bank's paper, and it was he who solicited
the accommodation on account of which the
notes were sent to the New York bank. The
notes themselves, it is true, were sent by
AUis, but expressly on the part of the bank,
and subsequent correspondence about them
was conducted with the cashier, as we have
seen. And ttiere could have been no misun-
derstandinff. The letter of the New York
bank which the cashier of the Little Bode
bank answered was specific in the designa-
tion of the notes, their sum and the proceeds
of the discount, and returned one of the
notes not in controversy to be corrected.
To this the cashier replied:
Dec. 20, 1892.
United States National Bank, New York City.
Gentlemen: We have your favor of the
10th inst., inclosing the Dickenson Hardware
Company note for completion, which we
herewith return.
We charge your account with $31,871.27
proceeds of $32,500.00 of discounts.
Yours very truly,
W. C. Denney, Cashier.
Notice was therefore brought to him and
to the bank of the transaction and almost in-
#vitably of its items. Was he deceived as to
the notes which had been sent? It is not
shown nor is it suggested how such deception
was possible, and a presumption of ignorance
cannot be entertained. Therefore, if the
discounts he wrote about in his letter of the
20th of December were not in pursuance of
those he had requested in his letter of No-
vember 25, he ought to have known and ouffht
to have so said. If he had so said, the New
York bank oould have withdrawn the credit
it had given, and Allis's wrong could not
have been committed.
The strength of Uiese circumstances cannot
be resisted. Against them it would be ex-
treme to say that the New York bank was
Eut to further inquiry. Of whom would it
ave incjuired? Not of Allis, the president
{147]of the Little Rock *bank, because his author-
ity would have been the subject of inquiry.
Then necessarily of the cashier ; but from the
cashier it had already heard. He began the
transaction; he acknowledged its close, ac-
oepting the credit which had been created for
the bulk of which he, according to the ar-
gument, was the executive officer. We can
oiecover no negligence on the part of the
Kew York bank. The dealing with the notes
in oontroversv came to it with the sanction
of prior dealings with other notes. It was
conducted with the same officers. It was no
more questionable. The relation of Allis to
928
it, we have seen, was not nnatanl, and if
the indorsement of other notes wna wtL
shown to be bv him, it was not tkawm not to
have been by him. The testimoay of the «f-
ficers of the New York bank was tkai tbs
notes were received and diseoimted in tW
regular course of business, and in no way Af-
ferent from the other notes diseovnted by n
for the Little Bode bank, and that tbcy kwv
the notes were properly indorsed Hr amt d
the duly authorized officers of tlie fmft &-
tional Bank; but as the notes were net b
their possession, they were unable to sCsa
the name of the officer. The testiBoay ff-
posed to this, if it may be said to be opiMuC
IS negative and of no value. 6cmt of at ^
rectors testified that Allis did not havt d» i
power nor did they know of his hai
dorsed the bank's paper for rediscooBt.
knew, however, that the bank's paper i
discounting in large amounts, aad
money was borrowing continual^, bat tbr^
scarcely made an inquiry, and oat of tk^
testifiea that only in a single instsBc* d-:
Allis request the board for power to bom*i
money. The instance is not ideatiifd. o
cept to sajr that it was in the fall of im
Oi whom, in what amount, whether the re-
quest was granted or denied, what ii^ar*
was made, what review of the bosiMH m i^
bank was made, thcnre was abeolnte
about. They surrendered the
solutelv to the president and cashier, tai »
trusted the manner of the exeentioa to thaa
This court said by Mr. Justice Harki, t
Martin v. Wehh, 110 U. a 15 [28: fit]: *!►
rectors cannot, in justice to tWMe whs Aa.'
with the bank, shut their e3res to what ^r \
iuff on ^around them. It is their dvty fei «• 11
ordinary diligence in ascertainiiig the
tion of its business, and to cxeicise
able control and supervision of its
They have something more to do thaa fsm
time to time to elect the officers of tht k^
and to make declaration of divideada TW*
which they ought by proper diligcaee Is ht**
known as to the general coarse of banMV •>
the bank, they may be presumed ts hi*
known in any contest between theeorymtA
and those who are justified by tiM
stances in dealing with its
basis of that course of business.'
Under section 5138, Revised
was competent for the directors to
the president or cashier, or both. Is
the paper of the bank, and, nadcr th»
cumstanoes, the New York bank wssJltf^
fied in assuming that the dcali^ m *
were authorised and executed as asthorwt
Briggs v. fifpauldifi^, 141 U. 8. infU «
People's Bank v. Hanmfaetmrmt^ fi
Bank, 101 U. a 181 [25: 907] :
8Ume, 104 Mich. 521 ; First Ni
of KakmwBoo v. £f tone, 106 MidLMTiffov^
f Ofi V. The Firet National Bmmk §f !»*•«.
26 Wis. 663 [7 Am. Rep. 107] ; TUmm r
aty National Bank of HmHimm.myUk»*
[24 L. R. A. 263].
4. Set-oflr is the dieeharve or nhom d
one demand by an oppoutt one. Ttet rf
plaintiflT in error was so applied sal m
amount due on the notes redveed. Bt eM»
tiUed to no other relief.
1898.
United States t. One Dibtillert,
148-151
Bcott ▼. Armstrong, 14G U. S. 499 [36:
1868], does not apply. In that case it was
held tluLt a debtor of an insolvent national
tank could set off against his indebtedness
o the iMink, which b^xime payable after the
Mink's suspension, a claim payable to him
lefore the suspension. And it was further
&€ld that the set-off was equitable, and there-
fore not available in a common-law action.
But in this case the plaintiff in error
aleaded the set-off. His rieht to do so was
lerived from the law of Arkansas, and that
Law provided: "If the amount set off be
fiqnal to the plaintiff's demand, the plaintiff
shall recover nothing bv his action; if it be
iesa th&n the plaintiff '^s demand, he shall
have ^judgment for the residue only."
(Gould's Arkansas Digest of Statutes, 1020.)
The law was complied with.
It follows tha«t the Circuit Court did not
err in instructing the jury to find for the
plaintiff (defendant in error) , and judgment
%B affirmed.
UNITED STATES, Plff. in Err.,
V.
ONE DISTILLERY et alia and Henry Wol-
tars, William Helm, R. H. Austin, and J.
H. Coffman, Claimants.
(See 8. C Reporter's ed. 149-152.)
When judgment dismiaeing an information
will he affirmed — proof that the property
fcae forfeited.
1. A judgment dismissing an information for
the forfeltare of property, upon the gronnd
that the answer Is admitted to be tme, will
be affirmed If a sufficient ground Is disclosed
In the record, although the ground of dismiss-
al was Insufficient.
X. Where there was no proof of the fraudulent
acts forfeiting the property, alleged In the
Information and denied In the answer, the
Judgment of dismissal will be affirmed.
fNo. 190.]
Argued April 6, 1899, Decided April 24,
1899.
IN ERROR to the Circuit Court of the
United States for the Southern District
of California to review a judgment of that
court affirming a judgment of the Dis!;rict
Court of the United States for the Southern
District of California dismissing an informa-
tion filed in the last-named court to obtain
a decree that certain real and personal prop-
erty which had been seized by a collector of
internal revenue was forfeited to the United
States. Judgment of the Circuit Court af'
firmed.
See same case below, 43 Fed. Rep. 840.
The facts are stated in the opinion.
Mr. James E. Boyd* Assistant Attorney
General, for the plaintiff in error.
Messrs. Samuel O. Hilbom, and Fred-
eric W, Hall for defendant in error.
ft] *Mr. Justice Harlan delivered the opin-
ion of the court:
This was an information filed November
174 U. 8. U. S., Book 43. 59
13, 1888, in the district court of the United
States for the southern district of California
to obtain a decree declaring that certain
real and personal property which had been
seized bv a collector of internal revenue was
forfeited to the United States.
The information was based upon sections
8257, 3281, 3305, 3453, and 3456 of tha Bs-
vised Statutes.
The property in question once belonged to
the Fruitvale Wine & Fruit Company, a cor-
poration of California. The acts that were
set forth as oonstituting the ^rounds of for-
feiture *were recommitted, if at all,
that corporation owned the property. Sub-
sequently, June 9, 1888, the property was
purchased by Wolters, Helm, Austin, and
Coffman at a public sale thereof hj the as-
signee of the ootiifMiny — ^the consideration,
$7,700, being paid in cash to the assignee.
The;^ appeared and filed a demurrer to tiie
original information. The demurrer mm
confessed, and an amended information was
filed Januaiy 11, 1889.
Wolters, Helm, Austin, and Coffman on
the 19th day of April, 1889, filed an answer
to the amended information, controvertinf^ its
material allegations. The answer contained
these among other averments: "That they
[the claimants] have not sufficient informa-
tion in regard to the several wrongful acts
alleged to nave been perpetrated by said cor-
poration on which to lound a bdief; they
therefore, on behalf of said corporation, de-
ny all and singular the alleged fraudulent
acts charged in said information as having
been done and performed by said oorpora-
tion."
On the 21st day of August, 1890, th«
claimants filed an amendment of their origi-
nal answer, in which they averred that In
December, 1888, W. Moore Young, who waa
secretary of the Fruitvale Wine k Fruit
Company, and one of the owners of the prop-
erty in question when the acts complained
of in the original and amended informatioc
were committed, was indicted in Uie same
court, and was convicted and sentenced to
imprisonment for one year in the coun^
jail. The claimants further averred that
the acts complained of in this case were the
same as those relied on by the government
in its prosecution against Tounff, and that
because of the proceedings ana judgment
against Toung the United States ought not
to maintain its present action. The amend-
ed answer concluded: "These daimanti
aver the foregoins in addition to their an-
swer already on file herein, and expressly re-
ly, not only upon this, but upon all of tke
allegations and denials contained in said
original answer. And having fully an-
swered, they pray as th^ have heretofore
prayed in said original answer."
llie demurrer to the aniended answer was
overruled by an order entered October 20,
1890, and an exception was taken *by the[lSI|
United States to the action of the court.
43 Fed. Rep. 846. On the next day the fol-
lowing decree was entered: "This cause
came on reeularly for trial before the court,
sitting without a jury, a jury trial havinff
been expressly waived in writing, the Unitea
029
151-158
SUPBBMS COUBT OF THE VlfTTED StA'
States being represented by Willoughby Cole,
Esq., Unit^ St&te<; attorney, and the claim-
ants by Messrs. Brousseau and Hatch, and
Henry C. McPikc, Esq. Whereupon the
United States attorney announced to the
court that the facte set forth in the amended
and supplemental answer heretofore filed by
the claimants in this action, and to which a
demurrer had been interposed by the United
States and overruled by the court, might be
considered by the court and taken as true
for the purposes of this trial, as if the said
facts had been proved b^ compnetent witness-
es, but that thev were insufficient in law to
eonstitute a defense to this action. There-
mpon the United States, by their said attor-
ney, and the (iaimants by their attorneys
aforesaid, submitted the cause to the court
for its decision upon the pleadings in said
cause and the saia amended and supplemen-
tal answer, the facts as to the matter, as al-
ready stated, being taken as true, ihe court,
after considering the same, orders and de-
crees that the IImI herein be, and the same is
hereby, dismissed."
The case was carried to the circuit court,
and was pending there at its January term,
1891. On the Sad day of February, 1897,
the judgment of the d^trict court was af-
firmed.
It is contended on behalf of the govern-
ment that the amended and supplemental an-
swer did not present a valid defense, and
therefore that the circuit court erred in af-
firming the judgment of the district court.
But if, independently of the particular
question raisea by the amended and supple-
mental answer, the judgment of the district
court dismissing the iiuormation was right
upon any grouM disclosed upon the record,
the judgment of the circuit court affirming
the jud^^ent of the district court should
not be Mid to have been erroneous.
It cannot be doubted that by the informa-
tion and the original answer the distinct is-
fIM]sue was present^ whether the property *in
question was forfeited to the United States
by reason of the wrongful and fraudulent
acts specified in the information. The an-
swer put the government upon proof of those
acts. No proof was however made by the
government to establish the all^^ grounds
of forfeiture. Nevertheless, the ooims was
submitted for deciaion, not only upon the
facts set forth in the amended and supple-
mental answer, taking them to be true, out
mpon the pleadings. So that even if the dis-
trict court had been of opinion that the
amended and supplemental answers were in-
sufficient in law, it still remained for it to
determine the rights of the parties upon the
information and the original answer. As
tne original answer controverted the mater-
ial allegations of the information, and as
the cause was submitted for decision upon
the pleadings, without any proof to sustain
the allegations of fraudulent acts forfeiting
the property, the final order dismissing the
information was proper. If the claimants
\ia^ withdrawn their denials of such allega-
tions of the information as set forth the
grounds upon which the government asserted
the forfeiture of the property in question,
030
Oct.
it would then be neeesaaiy Is
whether the ccmvietion ol Toog
the United States from proesedtig
mation against the property. B«t the
ants did not take that eouse. Th^
careful in the amended aad
answer to say, not only tiiat the
in alleged were in additkm to thoas «t
in their <Mriginal answer, but that tkiy nliBd
upon the £nials oontained ia tbi
answer.
WitlKNit oonsidering the nerits «f
question raised by the amendmwt of t^
swer, we affirm uie judgment of tikt
court upon the ground that then was ■
proof in the case to ovweome the dcnak a
the origfeal answer or the araneats «f il»
information, and to show, as swil tte
claimants, that tHe property
feited. Affirmed,
AMEDEB D. MORAN ef aX^ Pui t\mtn^
Trustees, Petitummtt
V,
CHARLES DILLIKGHAH.
(See & a Beporter's ed. 1»-U&>
When judge before tehom eau»e it hmri #
disqualified to sit on appesL
A jodge who appointed a lecelm la a
sure suit, and made an order aUowtae
monthly sum for services, and ate
the final decree of foredosare aad
delivery of posaeaalon, la dlaqailtiej,
act of Congress of March S, 1891,
I 8, to alt In the drcalt court ef
an appeal from the decree of
concerning the monthly compcsntlM
receiver after a certain
him and the pnrehaaers oa tha
[No. 243.]
feai
If St
If
dm
Submitted AprU 17, 1899,
1899.
DeeUeiMm
t
0
N WRIT OF CERTIORARI to the C^*^
States Circuit Court of Appeals i« tk
Fifth Circuit to review a deent rf t**
court sustaining exceptions to the ws0k^
report, and reversing the decree of tkt C>>
cult C^urt of the United Statei *« *
Northern District of Texas, ete. I^^^J^
Circuit Court of Appeale eet emit m
quashed, and the case remanded to t^^>^
to be heard and determined by a htfcft ^
competent judges.
See same case, 52 U. 8. App. 425, as' 1*
U. S. 737.
The facts are stated in the opialsa
Mr, I.. W. OampbeU for P«titioM%
Messrs. C^eo^KO OlAvk and D. C. t"*"l^
for respondent.
•Mr. Justice 0»ay delivweJ the efto-iH*
of the court:
This is a writ of certiorari ^*^*?
granted bv this court under the art ot Msg
3, 1391, chap. 517, 8 «, to rerw* » Jj^
made by Juage Pardee and Jad|E« ^'t??
MoRAK T. Dillingham.
153-156
In Uie circuit court oi appeals for the filth
circuit upon an appeal to that court from
the circuit court of the United States for the
morthem district of Texas.
The leading question presented by the writ
of certiorari is whether Judffe Pardee was
disoualified to sit at the hearing of that ap-
peml by the provision of 9 3 of that act,
^tliAt no justice or judge before whom a
oause or question may have been tried or
heard in a district court or existing circuit
court shall sit on the trial or heaxing of
such cause or question in the circuit court
•f appeals." 26 Stat, at L. 827.
If Judge Pardee was so disqualified, the
decree in which he took part, even if not ab-
solutely void, must certainly be set aside
and quashed, without regard to its merits.
ViAfnertcan ^Construction uo. t. Jacksonville,
T. <€ K. W. Railway Co, 148 U. S. 372, 387
L37: 486,402].
The material facts bearing upon the ques-
tion oi his disqualification, as appearing by
the record now before this court, are as fol-
Upon a bill in equity, filed April 2, 1885,
in the aforesaid circuit court of the United
States, by the Morgan's Louisiana k Texas
Railroad A Steamship Company against
the Texas Central Railway Company, to fore-
close a mortgage of its railroad and other
property, Judge Pardee, on April 4, 1885,
maae an order, appointing Benjamin Q.
Clark and Charles Dillingham joint receiv-
ers of the property, and appointing John G.
Winter special master as to all matters re-
ferred or to be referred to him in the cause.
Upon a petition filed in that cause by Dil-
lincnam, representing that he had been the
active receiver for seventeen months, and
prayins for an allowance for his services as
such. Judge Pardee, on December 4, 1886,
made an order ''that the receivers be author-
ized and directed to place Charles Dilling-
ham upon the pay roll of the receivers for
the sum of one nundred jand fifty dollars per
month, as an allowance upon his compensa-
tion as receiver in this cause ; this allowance
to date from the possession of the receivers,
and to continue while Mr. Dillingham eives
his personal attention to the business o7 the
eoropany or until the further order of the
court."
On April 12, 1887, Judffe Pardee made a
final decree in the cause, for the foreclosure
of the mortgage; for the sale of the mort-
gaged property by auction ; and for the pay-
ment by the purchasers of "all the indebt-
edness of the receivers incurred by them in
this cause, including all the expenses and
costs of the receivers' administration of the
property," "and also the compensation of the
receivers and their solicitors;" appointing
Dillingham and Winter special master com-
missioners to make the sale, and to execute
snd deliver a deed to the purchasers; and
reserving the right to any party to the cause,
fts^ well as to the receivers and master com-
missioners, to apply to the court for orders
necessary to carry that decree into execution.
Appeals from that decree were taken by the
^iMorgan's ^Louisiana k Texas Railroad &
Steamship Company and by the Texas Cen- '
X74 V. B.
tral Railway Company to this court, which
on November 24, 1890, affirmed that decree.
137 U. S. 171 [34:625].
Pursuant to that decree, on April 22, 1891«
all the property mortgagCKi, except some not
immediately connected with the railroad,
was sold to Moran, Gold, and McHarg, trus-
tees for bondholders. On their petition filed
in the cause. Judge Pardee, on Aueust 28,
1891, made a decree directing Dillingham
and Clark, receivers, to execute and deliver
a deed, and to deliver possession, to the pur-
chasers, of all the property, real and per^
sonal, of the Texas Central Railway Com-
pan^r, in the state of Texas, used for and per-
taining to the operation of its railway; an4
providing "that nothing in this decree con-
tained is intended to affect, or shall be con-
strued as affecting, the status of any pending
or undetermined litigation in which said re-
ceivers appear as parties; such litigation
shall continue to determination in the name
of said receivers, with the right reserved to
said purchasers, should they be so advised,
to appear and join in any such litieation;
and nothing in this decree contained is in-
tended to affect, or shall be construed as
affecting, the receivership of any of the
propertv of the defendant railway company
other than the property so transferred to
said purchasers, possession of which said
propertv other than that so transferred Is
retained for further administration, subject
to the orders of this court;" and "tiiat said
purchasers or said receivers may apply afe
the foot of this decree for such other and
further relief as may be just." The proper-
ty was accordingly delivered to the pur-
chasers in September, 1891. On November
6, 1891, on like petition of the purchasers,
Judge Pardee made a similar decree, except
in directing the deed to the purchasers to
be executed and delivered by Dillingham and
Winter, special master commissioners, and
in other particulars not material to be men-
tioned.
Dillingham afterwards, and until April,
1895, continued to draw and pay to himself
the sum of $150 a month, and returned
quarterly accounts to the master crediting
himself with those sums. On Aimist 25,
1891, he presented a petition, entitl^ in the
cause, to the master, praying him to "make
*to him such an allowance for his services as[lM]
receiver in the above-entitled cause, from the
date of his appointment until his discharge,
as to said master may seem just and proper."
About the same time, a compromise was
made between him and the purchasers, pur-
suant to which he was paid, in addition to
the allowance of $150 a month for the past,
the sum of $20,000 for services as receiver;
and he signed a paper, entitled in the cause,
acknowledging that he had received from
them the sum of $20,000 "in full of my fees
and charges as receiver of the Texas Central
Railway Company, as per agreement." At
the hearings oefore the master upon Dilling-
ham's accounts it was contested between him
and the purchasers whether he was entitled
to $150 monthlv since the compromise. The
master reportea that he was ; and exceptions
by the purchasers to his report were reierred
931
15&-158
Supreme Court or thx XJkitkd Statis.
Oct.
on April 8, 1895, by order of Judjge McCor-
mick, to Abner S. Lathrop, as special master,
who by his report, filed beptember 26, 1896,
found that Dillingham was entitled to the
monthly allowance of $160 until April, 1893,
but was not entitled to it from April, 1893,
to AprU, 1895. That report, on exceptions
taken by tii« purchasers and by Dillingham,
was confirmea by the decree of Judge Swayne
on December 5, 1896; and from that decree
Dillingham took an appeal to the circuit
eourt of appeals..
All the proceedings above stated were filed
in and entiUed of the cause of Morgan's
Louisiana d Texas Railroad d Steamship
Company t. Tewas Central Railway Com-
pony.
The appeal of Dillingham was heard in
the circuit court of appeals by Judge Pardee
and Judge Newman, who, for reasons stated
in their opinion, delivered by Judge Newman,
sustained Dillingham's exceptions to the
master's report, reversed the decree of Jud^
Swayne, and remanded the cause to the cir-
cuit court "with instructions to overrule and
discharge the motions attacking the receiv-
er's accounts." 62 U. S. App. 425, 432.
Moran, Gold, and McHare, the purchasing
trusted, thereupon applied for and obtained
this writ of certiorari. 169 U. S. 737.
The intention of Congress, in enacting that
(157]no judge before *whom "a cause or question
may have been tried or heard," in a district
or circuit court, "shall sit on the trial or
hearing of such cause or question," in the
circuit court of appeals, manifestly was to
reouire that court to be constituted of
lud^ uncommitted and uninfiuenced by
having expressed or formed an omnion in
the court of the first instance. Whatever
may be thought of the policy of this enact-
ment, it is not for the judiciary to disregard
or to fritter away the positive prohibition of
the legislature.
The enactment, alike by its language and
by its purpose, is not restricted to the case
of a judge's sitting on a direct appeal from
his own decree upon a whole cause, or upon
a single question. A jud^e who has sat at
the hearing below of a whole cause at any
stage thereof is undoubtedly disqualified to
sit in the circuit court of appeals at the
hearing of the whole cause at the same or
at any later stage. And, as "a cause," in its
usual and natural meaning, includes all
questions that have arisen or ma^ arise in
ft, there is strong reason for holding that a
Judge who has once heard the cause, either
upon the law or upon the facts, in the eourt
of first instance, is thenceforth disqualified
to take part, in the circuit court of appeals,
at the hearing and decision of the cause or
of any question arising therein. But, how-
ever that may be, a juc^ who has once heard
the cause upon its merits in the court of first
inetanoe is certainly disqualified from sitting
in the dreuit court of appeals on the hearing
and decision of any question, in the same
cause, which involves in any degree matter
upon which he had occasion to pass in the
lower court.
In the present case, all the decrees and or-
ders of Judge Pardee in the circuit court*
932
as well as the decree of Judge Swayae froB
which the appeal in questioB wu f ^rr,
were made in and entitled oi the origiaa]
cause of the bill in equity to foredose tW
mortgage of the Texas Cestrtl Raihny
Company. The order appcHiitii^ Dilli^
ham and Clark receivers upon the filiag of
the bill, the order allowing DiUh^gkaai f-r
his services as receiver the sum of $1M t
month from his taking possession and ^wliiW
he gives his personal attatioii to tke boiK
ness of the ccHupany or until the farther or
der of the ^court," the final decree of ian-l
closure and sale, and the decrees for deiiverr
of possession to the purchasers, were aB sk^
by Judge Pardee; and the appeal ia t^
hearing and decision oi which Im took psit
from tne decree of another judge ^'^^^ ■■ ■■*;
the compensation of Dillin|^iai& si imiwi.
involved a consideration of the seope sai tf
feet of his own order allowing that reabr
a certain sum monthly.
The necessary conclusion is that Met i
Pardee was incompetent to sit on the tfpn: '
in question, and the decree in which he ^-
ticipated was not made by a court tassu
tuted as required by law; and thercfoct U»
court, without considering whether thst 4h
cree was or was not erroneous in ethff i»
spects, orders the —
Decree of the Circuit Court of Appmb u
he set aside and quashed^ and the tarn ir
manded to that court to be there hesr4 td
determined according to law by a hmdk d
competent judges.
MAUDE E. KTMBATJ., P2f . «i »r,
HAKRnsrr a. KIMBALL, John & Ja
and Harriet L Jameft.
(See & C. Reporter*s •«. US-ltt)
When writ of error to state eourt
missed — this court w%U moi
questions.
««Ski»
1. Where one elalmtaff to be
plied to be appointed admlmlstratiti
estate of a deceased
letters of adminlstratioB
and the sttrrogste decided that ate
the widow of the latestata. a»d I
marriage was void by reason of tfet
itj of a decree of divorce fdMed Is
state porporting to disoolve a
rlace.and the surrogate's doeWe
by the appellate courts of the
of error from this comrt to the tfit>
will be dismissed. If a will of tht
Is sabseqoently fonnd, which Is
probate, and letters tttasitafifT
tbereoD by the sorrogatau aad tht
administration revoked,
missal will leave plaintiff la
the adjodlcatloD of the state
was not the widow of thoi
2. This coort cannot decide
and neither laches nor coaeiat of
aothorlse this court to
over a case la which It la
rellet
tf tit
[Ko. 24S.]
m«^&
1898.
AuTBN V. Umitkd States National Bank op New Toxul
136-129
three promissory notes, each for five thou-
sand dollars, payable four months after date,
with interest at the rate of ten per cent per
annum from maturity until paid. Said
Brown and Allis afterwards indorsed and de-
livered said notes to the defendant First Na-
tional Bank, and said bank before maturitv
and for a valuable consideration indorsed,
redisoounted, and delivered said notes to
plaintiff. That on December 7, 1892, the
McCarthy ft Joyce Company, a corporation
resident in the city of Little Bock, Pulaski
County, Arkansas, and organized and doing
business under the lavrs of Arkansas, exe-
cuted and delivered to James Joyce, a citi-
aen of the state of Missouri, its two promis*
sory notes, each for five thousand dollars,
payable to his order at four and five montiis
lespectively after date, with interest from
maturity at the rate of ten per cent per
annum until paid. Said Jovce afterwards
indorsed said notes to the defendant First
National Bank, and said bank before ma^
turity and for a valuable consideration in-
dorsed, rediscounted, and delivered said
notes to plaintiff. Said notes were each at
maturity presented at the First National
[15nr]Bank in LitHe Rode, Arkansas,*for payment,
and payment being refused, they were each
duly protested for nonpayment, the fees for
which, amounting to twenty-five dollars,
were paid bv plaintiff. Copies of said notes,
with the indorsements thereon, are hereto at-
tached, marked 1 to 5 indusive, and made
part hereof. No part of said notes has been
paid, and the same have been presented to the
receiver of said bank for allowance, whidi he
has refused to do."
Judgment was prayed for the debt and
other relief.
Three of said notes are in the following
form:
$5,000. 34181
Little Rode, Ark., Deo. 7th, 1892.
Four months after date we, or either of us,
promise to pav to the order of Q. R. Brown
and H. Q. Allis five thousand dollars, for
value received, negotiable and payable, with-
out defalcation or discount, at the First Na-
tional Bank of Little Rock, Arkansas, with
interest from maturity, at the rate of ten
per cent per annum, until paid.
City Electric St. RV Co.
H. O. Bradford, P*t
W. H. Sutton, Sec'y.
No. A, 73485. Due Apr. 7-10, '93.
The following indorsement appears on
each: "Geo. R. Brown, H. G. Allis, First
National Bank, Little Rock, Arkansas: H.
O. Allis, Pt"
Two of the notes were in the following
form:
•5,000. 34128.
Little Rock, Ark., Deo. 7, 1892.
Pour months after date we, or either of us,
vromise to pay to the order of James Joyce
ore thousand dollars, for value received, ne-
gotiable and payable, without defalcation or
ditoount. at the First National Bank of Lit-
tle Rock, Arkansas, with interest from
174 U. P.
maturity, at the rate of ten per cent per
annum, until paid.
McCarthy & Joyce Co. *
Geo. Mandlebaum, Sec'y & Treas.
A, 73477. No. 2. Due Apl 7-10, '93.
They were indorsed as follows: "James
Joyce, H. O. Allis, First National Bank, Lit-
tie Rock, Ar. ; H. G. AUis, P't"
' *The receiver only answered, and his an-[lS^
swer as finally amended denied that "either
of the notes described in the plaintiff's com-
plaint was ever indorsed and adivered to the
First National Bank; he denies that either
of said notes was ever the property of or in
the possession of said bank ; and denies that
the said bank ever indorsed or delivered
either of said notes to the plaintiff; he de-
nies that said bank ever received any con-
sideration from said plaintiff or any In-
dorsement or ddivery of said notes to
it;" and averred "that the name of the
defendant bank was indorsed on said
notes by H. O. Allis for his personal
benefit without authority from saia bank;
that the said Allis, assuming to act for de-
fendant bank, procured the plaintiff to ad-
vance or loan upon said notes a large sum of
money, which ne appropriated to his own
use: that said Allis had no authority from
said bank to negotiate said loan or to act
for it in any way In said transaction ; if said
transaction oreated an indebtedness affainst
the defendant bank, then the total liaoilitj
of said defendant bank to the plaintiff by
virtue thereof exceeded one tenth of the
plaintifTs capital stock, and the total U-
abilitv of the defendant bank thereby ex-
oeeded the amount of its capital stock act>
ually paid in; that the plaintiff knowinely
permitted its officers *to make such excessive
loan under the drcumstanoes aforesaid;
that the transaction aforesaid was not in the
usual coarse of banking business which
dther the plaintiff or the defendant bank
was authorized to carry on; that the plain-
tiff is not an innocent holder of either of said
notes; that the defendant bank received no
benefit from said transaction ; that it had no
knowledge thereof untU a few days prior to
its suspension ; that no notice of the aishonor
of saia notes was ever siven to the defend-
ant bank." Also that ^'at the date of the
suspension of the First National Bsnk
the United States National Bank was in-
debted to it in the sum of $467.86, that sum
then being on deposit in the said United
States National Bank to the credit of the
First National Bank of Little Rock; and
that the same has never been paid."
The receiver prayed that "he be discharged
from all liability upon the notes sued on
herein, and that he have judgment *against[lM]
the plaintiff for the said sum of $467.86, and
interest from the 1st day of February, 1893."
The plaintiff bank denied the indebtedness
of $467.86, and averred "that at the time
said First National Bank failed it was in-
debted to plaintiff in a large amount, to wit»
the notes sued upon herdn, and plaintiff m-
plied said $467.86 as a eredit i^on taU
indebtedness."
The issues thus made up were brought to
129-181
6UPBEMB COTTBT OF THK UNITED STATES.
Oct. Tbdi,
trial before a jury. Upon the conclusion of
the testimony the court, at the request of
the plaintiff bank, instructed the lury to
find a verdict for it, which the court did, and
denied certain instructions requested bj the
defendant. The jury found for the plaintiff,
as instructed, for the full amount of the
notes sued, less the amount of the set-off,
and judgment was entered in accordance
therewith.
A writ of error was sued out to the circuit
court of appeals, which affirmed the judg-
ment, and the case was brought here.
There had been two other trials. The rul-
ings in which and the action of the circuit
court of appeals are reported in 27 U. S.
Add. 606, and 49 U. S. App. 67.
The defendant assigns as error the action
of the circuit court in instructing the jury
to find for the plaintiff bank and m refusing
the instructions requested b^ the defendant
The latter were nineteen in number, and
present every aspect of the defendant's de-
fense and contentions. They are necessarily
involved in the consideration of the peremp-
tory instruction of the court, and. their ex-
plicit statement is therefore not necessary.
The evidence shows that the New York
bank solicited the business of the Little
Rock bank by a letter written by its second
assistant cashier, directed to the cashier of
the Little Bock bank, and dated June 21,
1892.
Among other things the letter stated: "If
you will send on $50,000 of your good, short-
time, well-rated bills receivable, we will be
pleased to place them to your credit at 4 per
eent"
The reply from the Little Rock bank came,
Bot from its cashier, but from its president,
H. G. Allis, who accepted the offer and in-
closed notes amounting to $50,728, among
|MO]which *were three of the City Electric Rail-
way Company, the maker of* three of the
Botes in controversy. When first forwarded
they were not indorsed, and had to be re-
turned for indorsement. They were in-
dorsed, and the letter returning them was
signed by Allis. To the letter forwarding
them the New York bank replied as follows:
New York, June 27th, 1892.
H. Q. Allis, Eso^ President, Little Rock, Ark.
Dear Sir: We have this day discounted
the following notes contained in favor of the
24th inst., and proceeds of same placed to
your credit.
The notes were enumerated, their amounts
calculated and footed up and discount at 4
per cent deducted, and the proceeds, amount-
ing to $50,216.48, placed to the credit of the
Little Rock bank.
On July 6, 1892, the following telegrams
were exchanged:
New York, July 6th, 1892.
First National Bank, Little Bock, Ark. :
Will give you additional fifty thousand on
short time, well rated bills discounted at five
922
per cent. Money rates ar« little flrmer. Ai-
swer if wanted. U. 8. Nat. Bank.
Little Rock, Ark., July 6, 1892.
United States Nat Bank, N. Y.:
We can use fifty thousand additional tl
five per cent; will send bills to-morrow.
First Nat. Bank.
In accordance with the proposition Urns
made and accepted, H. O. Allis, as president,
wrote on the 9th of July, 1892, to the New
York bank a letter, inclosing what he de-
nominated "prime paper, amounting to $50,-
301.88," and requested proceeds to oe placed
"to our credit and advise." These note*
were discounted and acknowledged. Their
proceeds, less discount, amounted to $49,-
641.68.
On July 26, 1892, the New York bank tel-
egraphed :
•New York, July 26th, 1892. [1«1|
First National Bank, Little Rock, Arlc :
Can take fifty thousand more of your well-
rated bills discounted at five per cent.
U. 8. Nat. Bank.
To this EL O. Allis, as president, answered
as follows:
Littie Rock, Ark., July 20, 1892.
United SUtesNational Bank, New York Citj.
Gentlemen: Your telegram of the 26th.
8a3ring you could take $50,000 more short-
time, well-rated paper, I placed before oor
board to-dav.
While it is two weeks earlier than w« need
it, on account of the rate we will take it now,
and I inclose herein paper as Bated below;
amount, $50,089.93.
Yours very truly,
H. Q. Allis, Presideot
We hold collaterals subject to your order;
see (pencil) notations on paper for rating.
H. O. Allia, Pr.
In the list of notes were two by tbe City
Electric Street Railway Company and twe
by the McCarthy & Joyce Co., who were the
makers of two of the notes in controversy.
There was one by N. Kupferle for $5,006,
"due Nov. 8, 1892." The signifieanoe of this
will be stated hereafter.
These notes were discounted and the fact
oonununicated to EL Q. Allis, Esq., president.
Little Rock, Ark.
The next letter contains notes for diaeooBt
from the Little Rock bank, sent by its cash-
ier, W. C. Denney. The proceeds amonntcd
to $24,413.05, acknowledgment of which was
made.
The next conununication was about the
notes in controversy. It was dated Novem-
ber 25, 1892, and was signed by W. C. Den-
ney, cashier. The letter, however, indodiy
the notes was sent by H. Q. Allis, as presi-
dent. The correspondence is as follows:
The First National Bank of little Rock, Ark.
Nov. 25, 1892.
United StatesNational Bank, New York City.
174 V. m.
r
IDS.
Kelson v. Moloney.
164-167
Suhmitted April 17, 1899. Bedded May
i, 1899.
IN ERROR to the Supreme Court of the
State of New York to review a judgment
if that court for the foreclosure of a mort*
pge in an action brought hj Dennis Molo-
Mj against Samuel Nelson and others, after
li affirmance by t^e Appellate Diyision and
te Court of Appeals of the State. On mo-
dem to dismiss or affirm. Diamissed.
See same ease below, 168 N. T. S61.
Statement by Mr. Chief Justice Fnllert
This was a suit brought hv Dennis Moloney
igainst Samuel Nelson, Albert J. Adams,
ind others, in the supreme court of New
fork, city and county of New York, to fore-
dose a jDOTigAg% on real estate given Me-
lon^ by Nebon to secure a boiul for ten
thousand dollars in indemnification of Mo-
loney against *loss by reason of becoming
bail for one O'Brien. The judge before
whom the case was tried found the facts as
follows:
"I do find that in the month of October,
1891, one Th<mias O'Brien was under arrest
tod oonfined in Albany county jail, charged
with the crime of grand larceny in the first
d^ee, and that on the 16th day of October,
Iwl, he was discharged from custody on giv-
ing a certain bail bond or recognizance in the
torn of ten thousand dollars executed by him-
self^ the defendant, Samud Nelson, and the
plaintilT, Dennis Moloney, conditioned that
the said Thomas O'Brien should appear and
aoBwer the said charge in whatever court
it may be prosecuted.
That the defendant, Samuel Nelson, in or-
der to induce the plaintiff to enter into said
reoojgnizance, agreed to indenuiify him
s^nst liability thereunder, and the plain-
tiff rel^ng upon said agreement ana not
otherwise entered into and executed the same
as aforesaid and the said defendant, Samuel
Ndson, immediately thereafter and in ful-
filment of said af^eement, did execute and
deliver to the plaintiff, Dennis Moloney, the
bond and nu>r^^e set up in the complaint
in this action, which said mortgaffe was
thereafter and on the 17th day of October,
1891, duly recorded in the office of the ro-
ister of the citv and county of New York.
'That thereafter and on the 2d day of No-
vember, 1801, the said Thomas O'Brien was
called upon in the county court of Albany
county to appear and answer the indictment
above referred to, but did not appear and the
hail bond or recognizance executed by said
O'Brien, the plaintiff, Dennis Moloney, and
the defendant, Samud Nelson, wae, on said
2d day of November, 1891, declared forfeited.
"That thereafter and before the commence-
ment of this action, an action was brought
hy the people of the state of New York
against the plaintiff, Dennis Moloney, and
t£e defendant. Samuel Nelson, to recover
upon said forfeite.^ bail bond or recognizance,
and on the 8th day of December, 1891, judg-
ment in said action was duly entered in favor
of the people of the state of New York
against the defendant, Samuel Nelson, and
th« plaintiff. Dennis Moloney, for the sum of
ten thousand and twenty-seven 13-100 ($10,-
174 V. S.
027.13) dollars, and the iudgnient roll *duly[166]
filed in the office of the clerk.of Albany coun-
ty on said date.
'*That thereafter executions u^n said last-
mentioned judgment were duly issued to the
sheriff of Albanv county and the plaintiff's
propert^jT was sold under said execution, and
the entire amount of said judgment paid
wholly by the plaintiff.
"ThtLt no part of the sum of ten thousand
dollars secured bv said bond and mortgage
has been paid to the plaintiff, and defendants
ajg^eed and consented on the trial of this ao-
tion that interest upon said sum of ten thou-
sand dollars should oe computed from the 5th
day of June, 1893."
And thereupon judgment of forecloeurt
and sale for the amount due and for pay-
ment of any deficiency was entered.
Before this suit was commenced Moloneyt
had brought a similar suit against NelsoB
and recovered judgment, which waa reversed
by the general term of the supreme court on
the ground that it had been prematurely
brought, because Moloney had not then pcdd
anytning on account of tne judgment entered
on the u>rfeiture of the criminal recognizance.
Moloney y. Nelson^ 70 Hun, 202. From that
judgment Moloney prosecuted an appeal to
the court of appeals, entering into the usual
stipulation that if the judgment appealed
from was affirmed, judgment absolute might
be rendered against him. The judgment wafl
affirmed ana judgment absolute entered.
Moloney y. Nelson, 144 N. Y. 182. After
that this action was commenced, but in the
meantime Nelson had transferred the prop-
erty morteaged to defendant Adams.
From tne judgment of the trial court Ib
this suit Neleon alone appealed to the appel-
late division of the supreme court in the first
department, hj which it was affirmed. Nel-
son then carried the cause to the court of
appeals, and the judgment of affirmance was
aMrmed. Moloney v. Nelson, 158 N. Y. 361.
The record having been remitted to the su-
preme court, this writ of error was allowed,
and motions to dismiss or affirm submitted.
Mr. Abraaa J. Rose for defendant in er-
ror in favor of motion to dismiss or affirm.
Messrs. William H. Newman and Al-
bert J. Adams, Jr., for plaintiff in error in
opposition to motion.
*Mr. Chief Justice Fuller delivered the[m]
opinion of the court:
It is stated in the opinion of the court of
appeals, by Chief Juoge Parker, that the
defenses interposed by Nelson "upon the
trial, and relied upon here, are: (1) The
stipulation given by the plaintiff on the ap-
peal to this court in a prior action brought to
foreclose the mortgage is a bar to the recov-
ery in this action. (2) The bond and mort-
gage having been eiven to indemnify bail in
a criminal case, tney are void because con-
trary to public policy."
The court of appeals ruled that the con-
tention that the stipulation given on appeal
to that court operated to prevent a recovery
was "without support in authority or rea-
son:" and as to tne second ground relied up-
035
184-187
SUPBEHS COUBT OF THB UHITBD STATES.
Oct. Tbbv.
the First National Bank or offered by it Ib
the regular course of business or for the bene-
fit of any per8<Mi other than the bank or in-
terested in the proceeds, and that the United
States National Baijc in its correspondence
and dealings did not recognize H. Q. AUis,
W. C. Denney, or S. S. Smith personally or
in auT capacity than as representing the
First National Bank ; and that the transac-
tions were solely with the First National
Bank; and that the correspondence and trans-
actions were usual for the president and
[ISSlcashier of a United States ^national bank to
carry on ; and that the proceeds of the vari-
ous discounted notes were withdrawn by the
Little Rode bank in the regular course of
business by its officers.
There was a detailed statement of the
transactions between the banks attached to
Hopkins's deposition which is not in the rec-
ord, but instead thereof there appears the
following :
"The account current here referred to be-
gan June 27, 1892, and continued until the
suspension of business of the First National
Bank. It shows almost daily entries of debit
and credit. It shows that the seyeral notes
discounted by the United States National
Bank and referred to In the depositions of
the officers of that bank, being forty-nine in
number, were charged against the account of
the First National Bank by the United States
National Bank at the several dates of their
maturity. In two thirds of the instances
where such charges were made the balance to
the credit of the First National Bank on the
books of the United States National Bank
was sufficient to cover the charge. In other
instances the balance to the credit of the
First National Bank was insufficient to meet
the charge at the time of the entry, and in
the other instances the account of the First
National Bank was in overdraft as shown
by the books of the United States National
mnk at the time the charge was made.
"The account shows that at the time of the
suspension of the First National Bank the
latter buik had a credit of $467.86 upon the
books of the United States National Bank.
Against this balance the notes in suit with
protest fees were charged on the account
April 17 and May 15, 1893, making the ac-
count show a balance in favor of the United
States National Bank of $24,658.03.
"This is the paper marked 77' referred to
in the depositions of Henry C. Hopkins,
James H. Farker, Joseph W. Harriman and
John J. McAuliffe, hereto annexed."
The record also shovrs that "J. H. Parker,
president, Joseph W. Harriman, second as-
sistant cashier, and John J. McAuliffe, as-
sistant cashier, each testified to identically
the same facts in the identical language as
Henry 0. Hopkins, and it is agreed that the
depositions of Hopkins shall be treated as
[lS6]the deposition *of each of the said witnesses
without the necessity of copying the deposi-
Uon of each witness."
Thert was proof made of the protest of the
notes.
There was testimony on the part of the
plaintiff showing that it was the custom of
the banks at little Rode to rediseouBt
through their presidents and cashiers untO
after a decision in the National Bank case of
Cincinnati in January, 1893; after that it
was done by resolution of the board of di-
rectors, and the banks of New York and other
commercial cities cmnmonly rej|uire that now.
By a witness who was cashier of the Lit-
tle Rock bank from November, 1890, to Oe-
tober, 1891, Allis then being president, it was
shown that it was the custom of the bank as
to rediscountinff not^ for the cashier or as-
sistant cashier to refer them to the president,
and the president generally directed what
amount and where to send them. Whether
they were referred to the board ol directors,
the witness was unable to say.
On cross-examination the witness testified
that when the discounts were determiaed
on, the cashier or assistant cashier trans-
acted the business. He, however, only re-
membered sending off one lot of discounts,
Mr. Denney, the assistant cashier, usuaOy
carrying on the correspondence. He did not
remember that the president ever did any-
thing of that kind, ^ther Mr. Denney or I
woula say to him that something of the
kind was needed, and he would direct the
quantity and what correspondents usually
to send to."
There were introduced in evidence 'Hbe re-
ports or statements by the bank to the Cooip-
troUer of the Currency, showing the redia-
counts and business of the bank, of date May
17, 1892, and July 12, 1892, as follows: The
report of May 17 was sworn to bv W. C. Den-
ney, cashier, and attested by «fames Joyce,
B.* J. Butler, and H. G. Allis, directors, and
showed 'notes and bills rediscounted, $1C,-
132.40.' The report of Julv 12tli was
sworn to by H. Q. Allis, president, and at-
tested by Charles T^ Abeles, E. J. Butler, and
John W. Goodwin, directors, and showed
notes and bills rediscounted, $81,748.80."
The testimony on the part of the plaintiff
in error showed* (we quote from brief of de^lST]
fendant in error) that "the notes never be-
longed to the First National Bank ; that the
three notes of the Electric Street Railway
Company were executed to Brown and Allis
for accommodation of Allis, and the two
notes of McCarthy k Joyce Company were
executed and delivered to Allis for the pur-
pose of raising money for the company to be
placed to iU credit with the First National
Bank, to which McCarthy k Joyce Compaaj
was indebted ; that neither of the notes was
ever passed upon by the discount board of
the bank or appeared on the books of the
bank; that after the bank was notified that
the notes had been discounted and nlaced to
its credit, Allis directed the proceeos of the
notes ($25,000) to be placed to his credit oa
the books of the bank, at which time there
was an overdraft against him of $10,679.44;
that Allis was at Uiat time indebted to the
Little Rock bank on individual notes for at
least $50,000, and was continuoosbr there-
after indebted to the bank until its fidhne."
As to the power of the president to dirsel
rediscounts or to indorse the notes of tke
bank, E. J. Butler, N. Kupferle, and C T.
Abeles, who were directors of the bank at
174 V. n.
UNML
McCain v. Dks Moines.
169-17»
1890 is ^rbolly void and of no effect, the de-
fendant, tLe city of Des Moines, pretended
uid ondertook to exercise the functions of
governnient and the power of taxation over
the territory of Greenwood Park; that the
only 'warrant for the city to act in the prem-
ises is tlie yoid act of the legislature of 1890,
and the city is assuming to levy assessments
and to exercise the power of taxation and to
perform cdl the other functions of municipcd
giovemment under that act; that the suit
herein is one of a civil nature arising un-
der the laws and Constitution of the unit-
ed States; and the sum in controversy *ex-
ceeds $2,000. It appears on the face of the
bill that all the parties are citizens of the
state of Iowa.
The bill further alleges that the city made
a contract with the defendant, the Dee
Moines Brick Manufacturing Company, to
pave a public highway in the town, the ex-
panse of which was to be assessed upon the
property abutting thereon, including the
landa of the complainants, and the work was
all done under color of the act mentioned,
and that it was all illegal for want of au-
thority; that at the time of the passage of
the act and i^e taking of jurisdiction by the
city, the town was exclusively an agricul-
tural community, and there was no advan-
tage in or necessity for the annexation of
the town to the city of Des Moines, and none
of the land in the town had been plotted into
lots hy laying out streets or alleys therein,
and the hishwa^rs within it were imder the
control and jurisdiction of the officers of
Polk county, and that to subject the lands
of complainants or the other lands within
the town to the taxes and assessments threat-
ened hy the city of Des Moines is to take
their property under color of authority from
the void act of 1890, and contrary to the
amendment of the Constitution of the United
States, section 1, article 14.
Further allegations were made, not mar
terial to be stated.
In addition to asking for an injunction
to restrain the city of Des Moines from ex-
ercising jurisdiction over the town of Green-
wood Park, the complainants ask that the
town ''be enjoined to exercise for its own
future benefits under the statutes of Iowa all
functions of municipal government and tax-
ation and works of internal improvement in
the same manner and to the same extent as
the said functions have been exercised by
said defendant prior to March 3, 1890." The
bill further prayed that the city and the
board of public works should be enjoined
from making any levy upon the property of
the complainants to pay the expense of pav-
ing the highway, and that the city be re-
strained from issuing to the Des Moines
Brick Manufacturing Company anjr assess-
ment certificates on accoimt of paving, and
for other relief.
The defendant, the Des Moines Brick Man-
l]iifacturing •Company, demurred to the bill
<m the ground, among others, that it ap-
peared on the face of complainants' bill that
all the parties to the suit were citizens of
the state of Iowa, and that this suit does not
involve an^ question arising under the Con-
174 U. S.
stitution or laws of th« United States, and
therefore the circuit court had no jurisdic-
tion in the case.
The circuit court sustained the demurrer
on the ground of want of jurisdiction, and
pursuant to section 5 of the act of 1891, or-
fEinizing the circuit courts of appeals (26
tat. at L. 826), it has certified the ques-
tion of jurisdiction alone for decision by this
court.
The opinion of the district judge, in di^
missing the bill, b reported in 84 Fed. Kep.
726.
Messrs. William E. Mason and William
O, Clark for appellants.
Messrs. N. T. Onemsey, H. T. Oranger^
and Arthur 0. Graves for appellees.
*Mr. Justice Peekham, after stating the[lT^
facts, delivered the opinion of the court:
The jurisdiction of the circuit court de-
pends upon the act approved August 13, 1888
(25 Stat, at L. 433, chap. 866), a part of
which reads as follows: "That the circuit
courts of the United States shall have orig-
inal cognizance, concurrent with the courts
of the several states, of all suits of a civil na-
ture at common law or in equity, . . .
arising under the Constitution or laws of the
United States. . . ."
As it appears upon the face of the bill that
all the parties are citizens of Iowa, the cir-
cuit court had no jurisdiction on the ground
of diverse citizenship.
Is the suit one arising under the Consti-
tution or laws of the United States? As
was said in the court below, the material
question is whether the exercise of jurisdic-
tion by the city of Des Moines over the terri-
tory purporting to be annexed by the act of
1890 IS lawful. To answer that question it
is*necessary only to refer to the Constitution[17S^
and law of the state of Iowa.
The supreme court of the state decided in
the State of Iowa [em rel. West], v. City of
Des Moines, 96 Iowa, 521 [31 L. R. A. 186],
that the act of 1890 was void because it vio-
lated the constitutional provision in regard
to special legislation. That was an action of
quo warranto brought to test the right of
tne defendant city to exercise corporate au-
thority over the added territory under the
act of 1890. From the report of the facts in
that case it appears that the city was by that
act extended two and a half miles in each
direction from its then present boundary,
and it was provided bv the same act that the
corporate character of any annexed territory
within the extended boundaries should cease
and determine upon the passage of the act.
Other sections of the act provided for the
pavment of the indebtedness of the city so
enlarged and of the indebtedness of the citie»
within the annexed territory, and for the
exemption from taxation for any city pur-
pose of lands included within the extended
limits which had not been laid ofT into lots of
ten acres or less, or which should not subse-
quently be divided into parcels of ten
acres or less by the extension of street*
and alleys or otherwise, and also of lands
occupied and used in good faith for agricul-
93T
171^-175
Supreme Coubt of
tural or horticultural purpose; for the reor-
ganization of the wards of the cities and for
elections therein. It appeared from the census
of 1885 that only the city of Des Moines was
affected by the act of 1890, and that in the
added territory were one city and seyen
incorporated towns. The provisions of the
Mct by which the municipal governments,
other than l^e city of Des Moines, were to
become extinct, and the entire territory to
become one corporation and municipality
were observed, so that in April, 1890, the
change was complete, since whic^ time the
eity of Des Moines has been thus constituted
and has exercised throughout the territory
the rights and functions of a city govern-
ment, including the levy and collection of
taxes, establishmfir, opemng, vacating, chang-
ing, and improving streets, the making of
contracts, and the creating and payment of
debts.
These details, while appearing in the re-
|178]port in 96 Iowa, are *not set up in the com-
plainant's bUl, but their substance is shown
m the allegations therein made, that the
town has ceased to exercise all the functions
of government and taxation, and the city of
Des Moines and the board of public works
are themselves exercising the functions of
government over the town territory.
After the court in the quo warranto case
had determined that tiie act was local legis-
lation, and of that class prohibited b^ the
Constitution, and therefore void, the opinion
therein continues as follows:
"It is next to be determined whether or
not, with the law giving rise to the annexa^
lion absoluteljr void, the legality of the pres-
ent city organization can be sustained under
the nue of estoppel or laches. On this
branch of the case a large number of author-
ities have been cited, aira the newness of the
question, as well as the great interests in-
volved, make it one of ^eat importance. The
foundation for the application of the doctrine
of estoppel is the oonseauenoe to result from
a judgment denying to tne ciiy of Des Moines
municipal authority over the territory an-
nexed, after the lapse of four years, durhig
which time such authority has been exer-
cised, and the changed conditions involving
extensive public and private interests. It
will be remembered that the act of annexa-
tion resulted in the abandonment of eight
municipal governments, which before the an-
nexation were independent, and bringing
them under the single government of the dty
ot Des Moines. This involved a vacation of
all offices in the city and towns annexed, and
the delivery of all public records and proper-
ty to the officers chosen for the city so en-
larged. For four years taxes have been lev-
ied, collected, and expended under the new
conditions; public improvements have been
made, including some miles of street curb-
ing, paving, and sewerage, for which certifi-
eates and warrants have been issued, and
contracts are now outstanding for such im-
provements. In brief, with the statement
that for the four years the entire machinery
of city government has been in operation,
the situation may be better imagined than
expressed. It is hardly possible to oontem-
938
THE United States. Oct. Ti
plate the situation to result from'a jiidgBeBt[11
dissolving the present ci^ organisation, and
leaving the territory formerly cabtaeed j
within corporate lines as it would be left.
Of all the cases to which we are cited,
ing the validity of municipal
where the consequences to resoH
judgToent of avoidance are
one presents a case of such imeertaiDty, nor
where there are the same grounds for
ous apprehension, because of diftrritfa
adjusting rights in this case."
The court then cited Bcvenl cases in
the doctrine of laches had been applied to
sustain a municipal government ii^ere tW
organization, as attempted, was illegaL Set
State V. Loatherman, 38 Ark. 81 ; Jmmmm
V. People, 16 111. 257 [63 Am. Dec JWV
People V. Maynard, 15 Mich. 463; aad thm
the following from Cooley on Constitatkasi
Limitations (page 312, 4th ed.) :
"In proceedings where the ^nestion if
whether a corporation exists or not mxva
collaterally, the courts will not permit it*
coi-porate character to be qnesticmed, if a
appears to be acting under color of law, ad
recognized by the state as suck. . .
And the rule, we apprehend, would be bo dif-
ferent if the Constitution itself preteriM
the manner of incorporation. Eva ia mA
a case, propf that the corporation was scCiif
as such, under legislative action, woald \m
sufficient evidence of right, except as sftiirt
the state, and private parties could not cnlo'
any question of regularity. And the itste
itself may justly be precluded on priact^
of estoppel, from raising any sneh objectMa.
where there has been long aeqaieMeaee asd
recognition."
Continuing with its own opinion, the esvt
stated:
'This, it is true, is a direct proeeedxv If
the state. And, while the language and ■
applied in part to ccdlateral proccediap. ^
seems also to include actions by the itiM
directly. The learned writer sustain tkv
text by a reference to People v. Mtptmi.
supra, Rumaey v. People, 19 N. Y. 41, »i
Lanning v. Carpenter, 20 N. Y. 447. It »3
be seen that importance is given to tW Ihk
that the defective organization takes ^hm
under color of law. Nothing Um cas ht
said of the annexation in this case thaa tfcs^
it was made under color *of law. *ObIv if t^
law' does not mean actual law. 'Gofer/ m
a modifier, in legal parlance, means *sf|Hir'
ance as distinguished from reality.* Oriw
of law means 'mere semblance of legal Hf^*
(Kin. Law Diet k Oloas). In mms «f
the cases the defects as to organiistina ksw
been spoken of as irregularities, bgiaa« ^
which appellant thinks the cases mat ayeh-
cable, bcK^ause this is a void prooeediaff tV»
term 'irregularity* is oftener applied Is
forms or rules of procedure in prartkv thsa
to a nonobservance of the law in otWr vsn.
but it has application to both. It is dttvd
as a Violation or nonobservance of cittl^
lished rules and practices.' Hie aanrcitsM
in question was a legal right under th» ba.
independent of the act held void. It «■# s^
a void thing, as if prohibited by ls« 1W
174 IL&
1898.
MoCadi y. Db8 Moini!:b.
175-178
Bftoet that can be said is that the proceeding
for annexation was not the one prescribeo,
bat it was a violation or nonobservance of
thikt role or law. It seems to us that the
proceeding is no less an irregulariiy than in
the cases cited."
And again on page 636, in speaking of the
ioTalidity of the act of 1890, the court said:
'^ad the act never been passed, and the
same method for annexation been adopted,
with the same conditions as to recognition,
acquiescence, delays, and public and private
interests involved, the same conclusion would
reBult; and hence the act is without the least
■ignificance, nor have we given it a shadow
of bearing, except in so far as it may have
served as a color of law inducing the pro-
eeedings for annexation."
And lastly, in speaking of the consequences
to be apprehendea from a judgment of oust-
er, the learned court said:
"Such a judgment would disrupt the pres-
ent peaceful and satisfactory arrangement
of aU the people of the city, as to its corpo-
rate existence without a benefit, so far as
we know, to any person. The law does not
demand such a sacrifice for merely technical
reasons. In fact, the constitutional vindi-
cation is complete with the declaration that
the act is absolutely void."
It will thus be seen that while the supreme
court of Iowa decided that the act purport-
ing to extend the limits of the city was void
as being in violation of the constitutional
{]provision *in regard to special and local leg-
islation, yet the court also held for the rea-
sons stated that it was sufficient in itself to
constitute, under the circumstances men-
tioned, a color of law for the annexation, and
for the application of the principles of es-
toppel as above mentioned. The l^alil^ of
the present city organization was for those
reasons sustained. It is the same organiza-
tion that the complainants now ask to have
enjoined in this suit from exercising any
function of government in the annexed dis-
trict, and the former organization in the an-
nexed district, which the complainants al-
lege has ceased to exercise those functions,
they now ask the court in this suit to en-
join it "to exercise for its own future ben-
efits under the statutes of Iowa."
To grant the relief demanded would quite
effectually overrule the decision of the state
court upon a question relating purely to the
local law of the state.
The daim of the complainants is based
solely and wholly upon the allegation that
the act of 1890 was void as in violation of
the Constitution of Iowa. Their counsel lay
that down in so many words in their brief.
They say that their claim is "that under a
law declared to be void and uncctastitutional
by the supreme court of the state of Iowa,
the city of Des Moines is still exercising mu-
nicipal control and jurisdiction over tiie
complainants' property." There is an alle-
gation in the bill that the land of the town
was agricultural, but it is not asserted that
the act was a violation of the Federal Con-
stitution because it included such lands.
No such question is made by the bill.
In their brief counsel uree that the act
174 U.S.
was void because, among other things, it was
a violation of the Constitution of Iowa in
bringing agricultural lands, under the cir-
cumstances and to the extent mentioned,
into the control and limits of the city. The
act itself in the third section exempts such
lanos from taxation for an^ city purpose,
when they shall in good faith be occupied
and used for agricultural or horticultural
purposes.
It is therefore quite plain that the coin-
plainants base their case upon the allegation
that their property is about to be*tak6n from[lTV]
them by tne city authorities without due
process of law and in violation of the Con-
stitution of the United States, because the
act of 1890 violates the Ccmstitution of Iowa.
That is a question of law, depending for ita
solution upon the law of Iowa, ami as to
what that law is the Federal courts art
bound in such a case as this by the decision
of the state tribunal. There is no construo-
tion of the Federal Constitution involved in
that inquiry, nor any question as to its ef-
fect upou the complainants' rights in this
suit. The ouestion whether their property
is taken without due process of law must be
decided with sole reference to the law of
Iowa. How can it be said upon such facta
that any question arises under the Con-
stitution or laws of the United States?
The claim of the complainants will not be
defeated by one construction of that clause
in the Constitution or sanctioned hy the
other. Btarin v. New York, 116 U. S. 248
[29: 388]. There is no dispute about oon-
struction in any way whatever; the
only (question is as to the validity of the city
organization, which, as stated, is a matter of
state law.
The case is, however, made still stronger
by the fact that the validity of the present
organization of the city government and the
lawfulness of its exercise of jurisdiction over
{he territory mentioned has been already d*-
cided by the state court, and had been so
decided when this suit was commenced. It
is not important upon what ground the state
court proceeded in arriving at its judgment,
whether it was because the act of 1890 was
valid, or, that being invalid, the lawfulness
of the organization could not be inquired in-
to for the reasons stated in the opinion of
the court above quoted. The oomplainanta
however argue that the state supreme court
in the ouo warranto case did not decide upon
the validity of the oity organization, but
only that the relator, being a nonresident of
the city and paying taxes in a town in the
nominal sum of a dollar a year, would not
be heard upon a question which miffht dis-
turb the peaceful relations that existed in
the territory, and which might also over-
turn the municipal authority of the city of
Des Moines therein. Counsel allege that
these complainants do not attempt to test
the corporate existence *of the city of Des[178]
Moines, but simply to test the right of that
corporation to levy taxes for certain pur-
poses upon the property of the complainants.
The last assertion, so far as concerns the
testing of the corporate existence of the city
in the territorv mentioned, is clearly an er-
030
178-180
SlTPBEMB COUBT OF THB UlflTKD STATBB.
Oct.
ror, because the bill asks relief in the way
of a perpetual injunction to restrain the city
of Des Moines, its officers and agents, from
1 the exercise oi any function of municipal
government or authority or jurisdiction for
the purpose of taxation^ or for works of in-
ternal improvement in the town of Green-
wood Patk, and it asks that the city offi-
cers be perpetually restrained from interfer-
ing with the officers of the town or from ob-
structing them in the administration of the
municipal affairs of the town; and that the
town 'MM authorized and enjoined to exer-
cise for its own future benefits under the
statutes of the state of Iowa all functions of
municipal ^vemment, taxation, and works
of internal improvement, in the same manner
and to the same extent as the said functions
have been exercised by defendant prior to
the 3d day of March, 1890." This prayer
for relief sedcs to test pretty substantially
the corporate existence of the city of Des
Monies in the territory in question. It does,
of course, also seek to test the right of the
corporation to levy taxes for the purposes
named in the bill and upon the property of
the complainants ; but the right to lew tnese
taxes depends entirely upon the legality of
the city organization, so that if the organ-
ization is not lawful, the taxation is eqimlly
invalid.
The commencement of this suit is plainly
an attempt to overturn the decision of the
state court in the quo warranto case. In
our opinion the complainants take much too
narrow a view of the decision of the state
oourt in that case. The facts of the non-
residence of the relator and the smallness of
his interest were spoken of, but they formed
only an insignificant part of other and more
important facts upon which the reasoning of
the court was based. Those other facts were
of a public nature, and the court, in its opin-
. ion, gave great weight to the public interests
that were involved and the great injury that
would fall upon all public as well as pri-
(170]vate •interests by overturning an authority
that had lasted four years, and which had
been initiated under color and by reason of
an act of the legislature. The oourt in truth
decided that the legality of the city organ-
ization could not be inouired into, even in a
direct proceeding brougnt by the state to test
the validity of the act, or, in other words,
the validity must be sustained for the fol-
lowing, among other, stated reasons: The
lapse of time; the actions of the authorities
of both city and town in taking and ^eldinff
possession and jurisdiction; the delivery en
all public records and the closing of all pub-
lic offices by the officers in all the abandoned
municipal governments; the levying, collec-
tion, and expenditure of taxes; the public
improvements made after the passage of the
act : the bonds that had been recall^ by the
city and others issued in their place; the
general recognition of the validity of the mu-
nicipal government bv all classes of the com-
munity ; the color of law under which t^e or-
ganization of the city government had been
practically effected in the territory; and the
inextricable confusion into which the whole
affairs of the city and town would be thrown
940
as the necessary result 4d ^^<m^ that tk»
city government did not extend over the ter-
ritory mentioned. For these pnblie e—iiil-
erations the court refused to pennit fhe i»-
quii^ to be made, even by th* state, iite ^»
validity of the municipal govenunent cf t^
city as enlarged under c^or <rf tlw set ef
1890. That no collateral inquiry wmld fc»
permitted the opinion takes as vaqootiaB-
ably plain.
For the purpose probably of metia^ th*
argument arising from aequieseenee, is art
forth in the quo warranto ease, the cam-
plainants allege in the bill herein that thtf
and the citizens of Gre^iwood Park have moL
assented to or acquiesced in or agreed to th»
acts of the citv of Des Moines, and tha.t ju-
risdiction has been exercised over them witV
out their consent, and without pCTiuttiae
the citizens by election or otherwise to ^
termine whether the pretended acts erf ma-
nexation should be operative or not
all^ations would seem to refer to the 6US»
of mind which the complainants and dtissi
were in during these many years, and the tl
legation of an absence of ^acquieseesiee wrxM 1«J
also seem to have been founded upon the fh-s
that there had been no election by whkb u
determine whether the act should be m^
cepted or not. Neither fact altov the cfe^
to be properly given the opinion in the ca^
mentioned, in the face of the facts actosCr
existing. From the time of the psige d
the annexation act up to the commeaccBnc
of the suit, a period of seven yean, then
is no allegation of any act on the part of tbr
ooroplainants or any other citizen in the «it
of an attempt to test the validity of t^
l^islation with the exception of the «:>
brought by the state upon the rdatioa d
a nonresident property owner who paid tsav
in the amount of one dollar a year. Otk^
wise than as above stated there is no slkp*
tion tending to show dissatisfacUon witb m
legislation prior to September. 1897, vbM
the brick company defendant eotertd nm
the work which led to the asscssmcot ia o-
pute in this suit. During these
city authorities have, as tl^ bill
formed all the functions of govei
the territory, and taxes have been
and collected (presumably from
ants amon^ others), improremeats ro*-
menced and continued, interest oa ka^
paid, and no action taken by anyooc tA jn-
vent these measures or to test their taliotv
What may have been the secret tbo«^t> li
the complainants or other citizens dvriica^
this time must be matter whollr inmateniL
so long as there was such acqoieMcace •>
the part of the public authorities as ha« h^
stated in the opinion of the court ia the f»
warranto case and such as subataBtiaKr if*
pears hy the allegations of the hSl is t^
suit. The particular allegatioits of wme-
quiescence by the complainants do ast ^
tract from the strength of the priactpkB hd
down by the state court, nor oo ihcv b Of
decree affect the full applicability '<4 tJh«*
principles to the facta set up in the ViT ■
this suit. The action of the state afsn^
the city of Des Moines has been the «tf
thine done towards making aay atte*^ t»
174 0.1^
1896.
BoswoKTH V. Terminal Railroad Association of St. Louis.
180-183
test the question of the validity of the leg-
islation prior to the coiumencement of this
suit. In this suit we are bound to take the
law of Iowa as it has been decided to be in
the quo warraato case. In that case it has
been deliberately decided that the validity
|of the organizatiOB*of the municipal govern-
ment in the whole territory in which it has
been in practical operation for so long a time
cannot be the subject of judicial inquiry by
anyone at this late day. Such b^ng the
law of Iowa, we are of opinion that an al-
legation in the bill that this is a controversy
ami a suit of a civil nature arising under the
Constitation and laws of the Umted States
is not supported by the facts appearing in
the bill. The facts allej^ed must show the
nature of the suit, and it must plainly ap-
pear that it arises under the Constitution or
laws oi the United States; that is, there
must be a real and substantial uiepute as
to the effect or construction of the Constitu-
tion or of some law of the United States, up-
on the determination of which the recovery
depends. Shrevepori v. Cole, 129 U. S. 36
[32: 589] iNetD Orleans ▼. Benjamin, 153 U.
8.411 [38:764].
Taking the law of Iowa to be as decided
in the case mentioned, it appears that the
validity of the city government has been sus-
tained by the state court, and in that event
there is not a shadow of a Federal question
in this suit, for if the city government be
valid, the regularity and vali£ty of the pro-
posed assessment necessarily foiiow, and
there cannot be even a pretense that the col-
lection of the assessment would be without
due process of law.
The allegation that the suit arises under
the Constitution of the United States is so
palpably unfounded that it constitutes not
even a color for the jurisdiction of the Cir-
cuit Court. That court was therefore right
in dismissing the bill, and its decree must be
affirmed.
!]C. H. BOSWORTH, Receiver of the Chicago,
Peoria, ft St. Louis Railway Company,
Petitioner,
V,
TERMINAL RAH.ROAD ASSOCIATION
OP ST. LOUIS {Intervening Petitioner).
(See 8. C. Reporter's ed. 182-190.)
When receiver map appeal — power of receiver
to defend claim — costs on affirmance.
1* Wbere on foreclosure of a mortgage, the re-
ceiver of the property Is decreed to pay the
claim of an intervener, the receiver may ap-
peal, although, prior to the decree, the prop-
erty had been sold, under decree of sale, and
bad passed out of his possession.
S. A receiver Is the proper party to defend
the estate against the claims of an Intervener,
and can bind the estate in his possession by
admission of facta
Ik A dismissal of an appeal when the appel-
lant was the proper party to take the appeal,
and was entitled to hearing, cannot be Jnsti-
fled by his admission on the appeal as to the
.merits of the case against him, but the
174 U. S.
proper Judgment in such case Is an afllrm-
ance.
4. Upon affirmance of a decree from which a
receiver has appealed, he should pay the costs
of the appellate proceedings, notwithstanding
error of an intermediate court in dismissing
the appeal instead of aiflrming it.
[No. 211.]
Submitted January 25, 1899. Decided Ma/if
1, 1899.
ON WRIT OP CERTIORARI to the United
States Circuit Court of Appeals for the
Seventh Circuit to review a decree of that
court dismissing the appeal of C. H. Bos-
worth, Receiver of the Chicago, Peoria, ft
St. Louis Railway Company, in an interven-
ing petition filed bv the Terminal Railroad
Association, for labor performed and ma-
terial furnished for the said railway oom-
?any in an action brought b^ the Mercantile
'rust Company against said railway com-
pany for the foreclosure of a mortgage and
the appointment of a receiver. Decree modi'
tied; and as modified, afflrmed.
See same case below, 53 U. S. App. 302.
Statement by Mr. Justice Brewers
. The facts in this case are briefiv these:
On September 21, 1893, the Mercantile Trust
Company, of New York, filed its bill of oom-
glaint m the circuit oourt of the United
tates for the southern district of Illinois
against the Chicago, Peoria, ft St. Louis
lUdlway Company, prajing foredoeure of a
morteage and the appointment of a receiver.
On t£e same day an order wa6 entered ap-
pointing the present appellant receiver of
that road. Among other things the order of
appointment 'directed the receiver to pay "all[189]
claims for materials and supplies which have
been incurred in the operation and mainte-
nance of said properly aurinff the six months
last past, and all ticket tradcaffe traffic bal-
ances due from said railroad.'^ The plain-
tiff, the Mercantile Trust Company, object-
ed to this part of the order, but after argu-
ment the oDJection was overruled. On May
27, 1895, the Terminal Railroad Association
of St. Louis filed an intervening petition,
claiming that it had performed labor and
fnmiehed materials for the defendant rail-
road company within the six months named
in the order of appointment. The receiver
answered, denying the claim. The matter
was referred to a master, who found in favor
of the petitioner, and on Julv 30, 1896, the
following decree was entered:
"It is therefore ordered, adjudged, and de-
creed by the court that the receiver herein
pay to the intervener, the Terminal Railroad
Association of St. Louis, the said sum of
eight thousand one hundred and six^-two
dollars and eleven cents ($8,162.11) out of
the income of said receivership, if anv such .
income is in his hands, and in case he has
not the funds in hand for this purpose, it to
ordered, adjudged, and decreed that the same
be paid out of the proceeds of the sale of the
mortgaged premises in preference to the
mortgage debt, and until paid the same is
041
ii«-iai
6X7P£EME COUBT OF THE UlTITBO STATES.
Oct. Tsum,
every ansucceesful appellant to a charge for
the fee of the attorney for the appellee would
afford no eround for complaint as unequal,
for it would operate on all, and such a rule
for the unsuccessful appellant in certain
causes of action, tested by the nature and
subject of the actions, will be equally free
from objection on the ground of its disorira-
inating character; but to say that where cer-
tain persons are plaintiffs and certain per-
sons are defendants, the unsuccessful appel-
lant shall be subjected to burdens not im-
posed on unsuccessful appellants generally,
u to deny the equal protection of the law to
the party thus discriminated against. It is
to debar certain persons from prosecuting a
eiyil cause before the appellate tribunals of
this state. It is an unwarrantable interfer-
ence with the 'due course of law' prescribed
for litigants generally. . . It is doubtless
true that the act was designed for the relief
«f citizens who became litigants in actions
Jiffainst corporations, because it applies only
•mien a citizen is plaintiff, and it was as-
sumed that the corporation would be appel-
lant, and to avoid discrimination between
parties to the same action it was made to
operate on either party as appellant, but it
[JlI9]^ometimes occurs, and may very *often, that
the citizen plaintiff is an appellant, and in
such cases tne discrimination may operate
eppressively on him. The supreme court of
Alabama declared its act violative of the
Constitution of that state and of the United
States, because of its unjust discrimination
in establishing peculiar rules for a particu-
Ir/ occupation, %. e., 'such as own or control
railroads.' Our objection to the act under
eonsideration is broader, as shown above, em-
bracing in ita scope the right of the citizen
who sues a corporation, for whom we assert
the right to appeal on the same terms grant-
ed to the plaintiffs in like cases, i. e., actions
for damages against wnomsoever brought.
The act was intended to deter from the ap-
pellate court corporations against whom
judgments^ should he rendered for damages,
or citizens of this state suing them for dam-
ages. It was conceived in hostility to citi-
zens as plaintiffs or corporations as defend-
ants in such actions. In either view it is
partial and discriminating against classes of
litigants, denying them access to the appe-
late courts on the same terms and with the
same incidents as other litigants who may
be plaintiffs or defendants in actions for
damages. It is not applicable to all suitors
alike m the class of actions mentioned by it.
. . . An act 'which is partial in its opera-
tions, intended to affect particular inaivid-
uals alone or to deprive them of the benefit
of the general laws, is unwarranted by the
Constitution and is void.' 'A partial law,
tending directly or indirectly to deprive a
corporation or an individual of rights to
property, or to the equal benefits of the gen-
eral laws of the land, is unconstitutional and
#oid.' "
Cases almost without number could be
cited to the same general effect. I refer to
the following as bearing more or lees upon
the ^neral inquiry as to the scope and mean-
018
ing of the clause in the Fourteenth Amend-
ment prohibiting any state from denyicg to
any person within its jurisdiction the equal
protection of the laws. Jolliffe v. Broum, 14
Wash. 1 55 ; Randolph v. Builders at%d Paint-
ers Supply Co, 106 Ala. 501 ; New York lAfs
Ins, Co, V. Smith (Tex. Civ. App.) 41 S. W.
680; St. Louis, I, M, d 8, Ry, Cq v. WO-
liams, 49 Ark. 402; Denver d R, O. Railicay
Co, V. Outcalt, 2 Colo. App. 395; Atchison
d Neb. R, R, Co. V. Baty, 6 Neb. 37 [29 Am.
Rep. 356J; 0*Connell v. •Menominee ^•/[UO]
Shore JAimher Co. [113 Mic'a. 124] 71 N. W.
449; San Antonio d A, P. i:y. Co, v. Wilson
(Tex. App.) 19 S. W. 911 ; City of Janesvilte
V. Carpenter, 77 Wis. 288 [8 L R. A. 808];
Pearson v. City of Porthind, 69 Me. 278;
Burrows v. Brooks [113 Midi. 307] 71 N. W.
460; Middleton v. MiddUton, 54 N. J. £q.
692 [36 L. R. A. 221] ; State v. Ooodwill, 33
W. Va. 179 [6 L. R. A. 621]. Theee adjudi-
cations rest substantially upon the grounds
indicated by this court in Yiok Wo v. Hop-
kins, 118 U. S. 356, 369 [30: 220, 226], where
it was said that "the equal protection of the
laws is a pledge of the protection of equal
laws."
I do not think that the adjudged cases in
this court, to which reference has been made,
sustain the validity of the statute of Kan-
sas.
In Missouri Pacifio Railway Co, t. Bumes,
115 U. S. 512, 522 [29: 463, 466], this court
sustained a statute of Missouri reauiring
every railroad corporation to erect ana main-
tain fences and cattle guards on the sides of
its roads, and for failure to do so subject-
ing it to liability in double the amount of
damages occasioned thereby. The court
said: "The omission to erect and maintain
such fences and cattle guards in the face of
the law would justly be deemed gross negli-
gence, and if, in such cases, wliere injuries
to property are committed, something be-
yond compensatory damages may be awarded
to the owner b^ way of punishment for the
company's negligence, the legislature may fix
the amount or prescribe Uie limit within
which the jur^ may exercise their discre-
tion. The additional damages being by way
of punishment, it is clear that the amount
may be thus fixed ; and it is not a valid ob-
jection that the sufferer instead of the state
receives them . . . The power of the
state to impose fines and penalties for a vio-
lation of its statutory requirements is coeval
with government; and the mode in which
they snail be enforced, whether at the suit
of a private partv or at the suit of the
public, and what disposition shall be made
of the amounta collected, are merely matters
of legislative discretion. The statutes of
nearly every state of the Union provide for
the increase of damages where the injury
complained of results from the neglect of
duties imposed for the better security of life
and property, and make that increase *ln[ltl]
many cases double, in some eases treble, and
even quadruple the actual damages. . . •
The objection that the statute of Minourl
violates the clause of the Fourteenth Amend*
ment. which prohibits a state to deny to any
174 u. m.
898.
BoeWORTH ▼. TSRMIMAL RAILROAD A880CIATI01I OF BT. LoUIS.
186-189
k caae like the present, superior to the righta
kf mortgagor and mortgagee.
Second. He may likewise defend the es-
ate against all claims which are antagonis-
ic to the rights of either party to the suity
iubiect to the limitation that hit mav not in
lach defense question any order or decree of
he court distributing burdens or apportion-
Dg rights between uie parties to tne suity
ff any order or decree resting upon the dia-
retion of the oourt appointing him. As
his is a matter specially pertinent to the
^resent controversy it may be well to oon-
lider briefly the scope of this proposition;
I suit is brought by a mortgagee to fore-
dose his mortgage, and a receiver is ap-
>omted to take possession of fhe mortgage
>roperty. The riffht to have a decree of
foreclosure and sale is an absolute right on
Jie part of the mortgagee, flowing from a
>reach of the conditions in the mortgstge.-
But the appointment of a receiver is a mat-
:er resting largely in the discretion of the
SQurt — not, of course, an arbitrary but a le-
fi\ discretion — and depending, not simply
apon the breach of a condition in the mort-
pfBf but also upon the question of relative
injury and benefit to the parties and the
public by the taking of the property out of
Jie *pos8ession of the mortgagor and placing
ft in the hands of a receiver. In appoint
ng a receiver the court has a right, within
lertain recognized limits, to prescribe the
«nns and conditions of the appointment. A
'eceivership is not essential to a foreclosure
ind sale, and the court is charged, when an
ipplication therefor is made, with the duty
»f inquiring whether, under all the circum-
stances, considering the interests of the par-
ties and the public, it is wise and proper to
<ake possession of the property. It may in
its judgment be necessary to appoint a re-
viver without prescribing any terms. It
nay be that the interests of the parties or
ihe public require that the appointment shall
)e made subject to certain conditions. Now,
;hese conditions, whatever they may be, are
»eyond the challenge of the receiver. He
suy not say directly or indirectly, "I accept
the appointment; I take charge of the proj>-
5tty, but I repudiate the terms and condi-
iions imposed on the receivership." Wheth-
Mr under the present state of the statutory
^w in reference to appeals any review can
!>e had of the terms of such an order, it is
!lear that a receiver, whose rights spring
from the appointment, cannot be heard to
)uestion them.
Third. Neither can he question anjr subse-
jpient order or decree of tne court distribut-
ing the estate in his hands between the par-
ties to the suit. . It is nothing to him wheth-
er all of the property is given to the mortga-
gee or all returned to the mort|?agor. He
is to stand indifferent between the parties,
)-nd may not be heard either in the court
^hich appointed him, or in the appellate
»urt, as to the rightfulness of any order
v^hich is a mere order of distribution between
the parties. In this connection it must be
noticed that an intervener, although for cer-
tain purposes recognized as a party to the
litigation, is not such a party as comes with-
174 U. S.
in the scope of the limitation Just announctcd.
He is one who comes into the litigation as^
serting a right antagonistic or superior to
that of one or both of the parties tJiereto,
and a receiver, who represents, so far as the
property is ooncemed, the interests of the
parties, may rightfully challenge his claim;
provided that in such challenge he does not
question any orders* of the court heretofore[I89i
referred to. Let us take some illustrations:
A suit is brought to foreclose a mortgeige.
a receiver is appointed, and the mort^igea
property taken possession of. A party in-
tervenes, asserting that he has a claim
against the mortgagor and the property but
ooncedinff that it is subordinate to the claim
of the plaintiff mortgagee. Witii that con-
cession, the mortgagee stands perfeotlv indif-
ferent to the question whether the claim be
allowed or not. Still, it cannot be doubted
that in such a case the receiver, holding the
Sroperty against which a claim is made, can
ef end ; and defend not only in the court ap-
Sointing him, but also by appeal. In that
efense he not only represents, it may be
said, the mortgagor's interests, but also pro-
tects the property in his possession.
Take another case: An intervener pre-
sents a claim against the mortgaged proper-
ty which the mortgagor admits. There is,
therefore, no defense to be interposed hi be-
half of the defendant mortgagor, no protec-
tion to be souf^ht for the property, and the
only question is whether such claim, admit-
ted by the mortgagor, is to be satisfied out of
the mortgaged property prior to the claim
of the mortgagee. The latter is the only par-
ty who has an antagonistic relation to tl«
intervener. Now, the receiver who repre-
sents both mortgagee and 'mortgagor, both
plaintiff and defendant, so far as the custody
of the property is concerned, is entitled te
defend against this claim of priorvbr made
by the intervener, and may defend both in
the court appointing him, and also by ap-
peal. It is true in such defense he may not
be lieard to say that the terms and conditions
imposed in the order of his appointment
were improper, but he may defend on the
proposition that the claim presented does
not come wiithin those terms and conditions.
Whatever right, if any, tiie mortgagee plain-
tiff may have to question, in resisting such
claim, the validity of the terms of the ap-
pointment, the receiver cannot do so; and
the only defense he can make is that the
claimed priority has no foundation in the
terms of the order; or, if it be a matter en-
tirely outside of those terms, that it has ne
foundation in any recognized legal or equita-
ble principle.
*In the case at bar one defense, as shown [|gM
by the exceptions taken to the report of the
master, was that the claim of the intervener
was not against the estate, but against some
third party. That defense the receiver had
a right to make. We do not mean that he
alone can act; we do not stop to inquire
what rights either party to the suit may
have in this respect. All we now decide is
that the receiver is a proper party to make
the defense. And when he alone makes it,
when^he carries on the litigation in his own
943
189-191
SUPBBMK COUBT OF THK UNITKD STATCS.
Oct. Ti-rji,
name as reeeiyer, then as the representative
And custodian of the estate he can, subject
to the supervision of the court, bind it by ad-
missions made in good faith in the pro&^ress
of the litigation. And as in the appelate
«ourt, after the appeal had been perfected, he
being the onlj party to the app^, admitted
that it was a just claim ap^nst the mortga-
gor aad within the priority over the mort-
gage prescribed in the order of appointment,
Sis a^unission showed that the allowance was
right, and that the decree ought to be af-
finned. But still, until that admission was
made, there was a pending dispute, and he
was a proper person to appeal from the al-
lowance.
Fourth. He may appeal from an order or
4ecree which affects his personal rights, pro-
vided it is not. an order resting in the discre-
tion of the court. Thus he may not appeal
from an order dischar^ng or removing him,
or one directing him m the administration
of the estate, as for instance to issue receiv-
or's certificates, to make improvements, or
matters of that kind, M of wnich depend on
the sound discretion of the trial court. He
may appeal from an order disallowing him
oommissions or fees, because that affects him
personally, is not a matter purely of discre-
tion, and does not delay or interfere with the
orderly administration of the estate.
Fifth. Hib right to appeal from an allow-
ance of a claim against the estate does not
necessarily fail when the receivership is ter-
minated to the extent of surrendering the
property in the possession of the receiver.
It is a common practice in courts of equity,
anxious as they are to be relieved from the
care of property, to turn it over to the par-
ties held entitled thereto, even before the fi-
nal settlement of all claims against it, and
}190]&t *the same time to leave to the receiver the
further defense of such claims, the party re-
ceiving the property giving security to abide
by any decrees which may finally be entered
against the estate. An admission that the
railway property had been turned over to
the purchaser is not therefore of itself con-
clusive against the right of the receiver to
appeal. And the fact that the trial court
allowed the appeal must in the appellate
court be taken^ in the absence of otner evi-
denoe, as sufficient authentication that such
reservation of authority had been made in
the order directing the surrender of the prop-
orbr.
It seems unnecessary to say more. We
have indicated, so far as it can safely be done
by general propositions, the powers of a re-
ceiver in respect to appellate prooeedings.
We are of opinion that tne decree of the court
of appeals should have been one of affirm-
ance, and to that extent it is modified. Un-
der the admissions of the receiver the cost
of the appellate proceedings should be paid
by him, and this notwithstanding, in our
judgment, the formal order of the court of
api^als dismissing the case was incorrect.
The judgment of the Circuit Court it af-
firmed at the cost of the appellant
944
ELIZABETH M. HUMPHRIES, bj
Next Friend, John W. HoBphrics, Ptf
Ml Err,,
«.
DISTRICT OF OQUJHBIA.
(See & a Beportar'a ed.
Sealed
II
a: a
ik/effKrff,
The absence of the foreaan ef a ivry.
Ill, when the rest of the fvrj to polI«i
sealed verdict, which all sls»ed, to
merely a matter of error, asd docs aac
der a Jndgment entered on tbe verdict a
llty, or subject to a motloa to vacate It
succeeding term of eonrt.
[Ka 230.]
Arguied AprU 4* 1899. DeeidU JTey t
1899.
IN ERROR to the Court of \ppoak ef \^
District of Columbia to reriew a drcwi t
of that oourt reversing a deeisioa ol tha S»
preme Court of the IHstnci and ii— in
the case with instructions toTacatt tke ja£;
ment and set aside the Terdict aad t» ai
a new trial, on the ground that tke
▼erdict was not returned in the pna^a t:
all the jurors. Judgment of Comrt af ir
peala reversed, and case rrmanded wick »
structions to afBrm the judgment of the Se-
preme Court of the District of Ccil—tn
See same ease below, 12 App. D. C 121
Statement by Mr. Justice «Mww«r« i
^This case isbefore uson error to theas'.H^
of appeals of the District of Ccdnarina. TV
f wets are tiiese: On Ma j 22, 1896, the
tiff in error filed an amended
the supreme court of the diatriet,
damages from the defendant,
in error, on account of injoriea eanaad kf •
defective condition of the bridge h<tM
Washinirton and Anaeoetia— a eondittoi i*^
suiting from the negligence of the ddaaifa^
A jury waa impaimM, trial had, ani tm
case submitted to it on November )•> «ik
instructions to return a sealed vvrdict. TV
instructions and the verdict
on the mominff of Deeombar 1»
the following form:
When the jury agree upon a wrdiet vt*
it out, all of the jurors stcn it, date it «a
it up and deliver to tbe forenBan, to to *^
livered in open oourt on the 1st day rf ^
cember, 1896, and in tka presenee of al e^
sign it.
Eliaabeth M. Hum-
phries
V9. \ Ko. 28281. At U*^
The District of Co>
lumbia.
Dated Novcnhv 26, IM
We, the jorora sworm to try tito wtm
IT4V.&
Bda.
HuMPHBiBB Y. DisrniCT OF Columbia.
191-194
lined in the aboy?- wUtitled *cause, find said
ifiue in favor of the plaintiff, and that the
ioney payable to him by the defendant is
he sum of seven thousand dollars and —
I its ($7,000.00).
All sign:
[icbael Keegan.
f. H. St. John,
reo. W. Kearden.
ames D. Avery,
ternard F. Locrait.
ko. W. Amiss.
Leater Q. Thompson.
Wm. J. Tubman.
John T. Wright.
Jos. I. Farrell.
Isaac N. Rollins.
Thos. J. Giles.
The proceedings on December 1 are thus
tated m the record:
*'Come here again the parties aforesaid in
nanner aforesaid, and the same jury return
nto court, except John T. Wright, who does
lot appear, tLoa having said sealed verdict
n his possession as foreman sends the same
o the court by Dr. MeWilliams, who delivers
;he same to the court with the statement
iiat the said John T. Wright is ill and con-
ined to hie bed and physically unable to ap-
pear in court; t^t he, said MeWilliams, is
us attending physician, and as such re-
leived from said Wrij;ht said sealed verdict
irith direction to deliver it to the court;
irhereupon the defendant, by its counsel, ob-
[acted to the reception, opening, and reading
>f said sealed verdict; whereupon, in answer
to the questions of the court, the remaining
jmors severally on their oath say that they
ieyerallv signed said verdict, and that they
law said John T. Wright sign the same, and
that the name 'John T. Wright,' signed there-
to, is in his handwriting; 'thereupon the re-
maining jurors on their oath say they find
laid issue in favor of the plaintiff and as-
sess her damages by reason of the premises
u seven thousand dollars ($7,000).^
"The counsel for the defendant ask that
the jury be polled, which is done, and each
of said* remaining jurors on his oath says
that he finds said issue in favor of the plain-
tiff and aeeesses her damages by reason of
the premises at $7,000."
Upon this verdict a judgment was entered.
T'roceedinfl^s in error were taken, but were
lismissed by the court of *appeals on account
of a failure to have the bill of exceptions
prepared in time. Thereafter, and at a suc-
eeeoing term, the defendant filed a motion to
vacate the judgment on the ground that
there was no valid verdict, which motion was
overruled. On appeal to the court of ap-
peals this decision was reversed and the case
remanded, with instructions to vacate the
Judgment, to set aside the verdict and award
a new trial. 12 App. D. C. 122. This ruling
^ based on the proposition that the ver-
dict was an absolute nullity, and therefore
the judgment resting upon it void, and one
which could be set aside at any subsequent
term.
Mr. Arthur A. Bimey for plaintiff in
error.
Messrs, 8. T. Thomas and A. B. Dnvall
for defendant in error.
! *Mr.Justice Brewer delivered the opinion
of the court:
The single question presented by the rec-
174 U. S. U. S., Book 43. 60
ord, the right to review which is sustained
by Phillips v. Negley, 117 U. S. 665 [29:
1013], is whether the verdict, returned under
the circumstances described, was an absolute
nullity^ or, at least, so far defective that no
valid judgment could be entered upon it.
Such is the contention of the defendant. On
the contrary, the plaintiff insists that what-
ever irregularities may have occurred, or be
apparent in the proceedings, they are sim-
ply matters of error, to be corrected on di-
rect proceedings within the ordinary time,
and in the customary manner for correcting
errors occurring on a trial. Is the defect or
irregularity disclosed a mere matter of er-
ror or one which affects the jurisdiction?
The opinion of the court of appeals, an-
nounced by Mr. Justice Morris, is an exhaus-
tive and able discussion of the question, ar-
riving at the conclusion that the verdict was
an absolute nullity, and therefore the judg-
ment, based upon it, one that could be set
aside, not merely at the term at which it was
rendered, but at smj subeeouent term.
•While appreciating fully the strength of [104]
the argument made by the learned judge, we
are unable to concur in the conclusions
reached. That the verdict returned ex-
pressed at the time it was si^^ned the deliber-
ate judgment of the twelve jurors cannot be
questioned. That it remained the ju(^ment
of the eleven at the time it was opened and
read is shown by the poll that was taken,
and thisut it was still the judgment of the ab-
sent juror at the time he forwarded it to the
court is evident from the testimony. So
the objection runs to the fact that at the
time the verdict was opened and read each
of the twelve jurors was not polled, and
each did not then and there assent to the ver-
dict as declared. That generally the right
to poll a jury exists may be conceded. Its ob-
ject is to ascertain for a certainty that each
of the jurors approves of the verdict as re-
turned; that no one has been coerced or in-
duced to sign a verdict to which he does not
fully assent. It is not a matter which is
vital, is frequently not required by litigants ;
and while it is an undoubted right of either,
it is not that which must be found in the
proceedings in order to make a valid verdict.
Take the case suggested on argument. Sup-
posing the twelve jurors are present, and the
defeated party insists upon a poll of the jury
and that right is denied, can it be that a ver-
dict returned in the presence of the twelve
by the foreman, without dissent, is by rea-
son of such denial an absolute nullity? Is
not the denial mere error, and not that which
goes to the question of jurisdiction? There
are many rights belonging to litigants-*
rights which a court may not properly deny
and yet which if denied do not oust the ju-
risdiction or render the proceedings absolute-
ly null and void.
The line of demarcation between those rul-
ings which are simply erroneous and those
which vitiate the result may not always be
perfectly clear, and yet that such demarca-
tion exists is conceded. This ruling of the .
trial court, conceding it to be error, is on the
hither side of this line, and could only be
taken advantage of by proceedings in error.
045
129-181
SUPBBMK COUBT OF THE UlTITED STATES.
Oct. Tan;
trial before a jury. Upon the conclusion of
the testimony the court, at the req^uest of
the plaintiff bank, instructed the lury to
find a verdict for it, which the court did, and
denied certain instructions requested b^ the
defendant. The jury found for the plaintiff,
as instructed, for the full amount of the
notes sued, less the amount of the set-off,
and judgment was entered in accordanoe
therewith.
A writ of error was sued out to the circuit
court of appeals, which affirmed the judg-
ment, and the case was brought here.
There had been two other trials. The rul-
ings in which and the action of the circuit
court of appeals are reported in 27 U. S.
Add- 605, and 49 U. S. App. 67.
The defendant assip^s as error the action
of the circuit court m instructing the jury
to find for the plaintiff bank and in refusing
the instructions requested hj the defendant
The latter were nineteen in number, and
present every asj^t of the defendant's de-
fense and contentions. They are necessarily
involved in the consideration of the peremp-
tory instruction of the court, and. their ex-
plicit statement is therefore not necessary.
The evidence shows that the New York
bank solicited the business of the Little
Rock bank by a letter written by its second
assistant cashier, directed to the cashier of
the Little Bock bank, and dated June 21,
1892.
Among other things the letter stated: "If
you will send on $50,000 of your good, short-
time, well-rated bills receivable, we will be
pleased to place them to your credit at 4 per
eent."
The reply from the Little Rock bank came,
Bot from its cashier, but from its president,
H. G. AUis, who accepted the offer and in-
closed notes amounting to $50,728, among
tl60]which *were three of the City Electric Rail-
way Company, the maker of* three of the
Botes in controversy. When first forwarded
they were not indorsed, and had to be re-
turned for indorsement. They were in-
dorsed, and the letter returning them was
signed by Allis. To the letter forwarding
them the New York bank replied as follows:
New York, June 27th, 1892.
H. 0. Allis, Eso^ President, Little Rock, Ark.
Dear Sir: We have this day discounted
the following notes contained in favor of the
24th inst., and proceeds of same placed to
your credit.
The notes were enumerated, their amounts
calculated and footed up and discount at 4
per cent deducted, and tne proceeds, amount-
ing to $50,216.48, placed to the credit of the
Little Rock bank.
On July 6, 1892, the following telegrams
were exchanged :
New York, July 6th, 1892.
First National Bank, Little Rock, Ark. :
Will give you additional fifty thousand on
short time, well rated bills discounted at five
•22
per cent. Money rates are little llniier. Ab-
swer if wanted. U. 8. Nat. Bank.
Little Rode, Ark., July 6, 1892.
United States Nat. Bank, N. Y. :
We can use fifty thousand additional at
five per cent; will send bills to-morrow.
First Nat Bank.
In accordance with the proposition Urns
made and accepted, H. G. Allis, as president,
wrote on the 9th of July, 1892, to the New
York bank a letter, inclosing what he de-
nominated "prime paper, amounting to $50,*
301.88," and requested proceeds to oe placed
'*to our credit and aavise." These notes
were discounted and acknowledged. Their
proceeds, less discount, amounted to $49,-
641.68.
On July 26, 1892, the New York bank td-
egraphed :
•New York, July 26th, 1892. [WU
First National Bank, Little Rock, Ark.:
Can take fifty thousand more of your well-
rated bills discounted at five per cent.
(J. 8. Nat. Bank.
To this H. G. Allis, as president, answered
as follows:
Little Rock, Ark., July 29, 1892.
United SUtes National Bank, New York City.
Gentlemen: Your telegram of the 26th.
saying you could take $50,000 more short-
time, well-rated paper, I placed before oar
board to-dav.
While it is two weeks earlier than we need
it, on account of the rate we will take it now,
and I inclose herein paper as listed below;
amount, $50,089.93.
Yours very truly,
H. G. Allis, Presldeot
We hold collaterals subject to your order;
see (pencil) notations on paper for rating.
H. G. Allis, Pr.
In the list of notes were two by the City
Electric Street Railway Company and tv*
by the McCarthy & Joyce Co., who were the
makers of two of the notes in oontroveny.
There was one by N. Kupferle for $5,000,
"due Nov. 8, 1892." The signifieanoe of this
will be stated hereafter.
These notes were discounted and the fset
communicated to H. G. Allis, Esq., president.
Little Rock, Ark.
The next letter contains notes for disoonnt
from the Little Rock bank, sent by its cash-
ier, W. C. Denney. The proceeds amoonted
to $24,413.05, acknowledgment of whidi wsa
made.
The next communication was about tbo
notes in controversy. It was dated Novem-
ber 25, 1892, and was signed by W. C Dn-
ney, cashier. The letter, however, indosiiy
the notes was sent by H. O. Allis, as presi-
dent. The correspondence is as follows:
The First National Bank of little Rode, Ark.
Nov. 25. ISfl
United StateaNational Bank, New York a^.
174 V. L
90S.
MoBBis y. Unitbd States.
198
of this court as to the effect of those stat-
utes on the territory within that District.
L tmndB exempted from the Jurisdiction of
the Liand Office In 1830 are not brought with-
in that Jurisdiction because the waters of the
Potomac river had so far receded in 1869 as
to permit aome sort of possession and occu-
pancy.
2. Where there is an entire want of authority
In the Land Office to grant certain lands held
for pablle purposes, a patent therefor issued
under a mistaken notion of the law is void.
S. The patent to John L. Kldweil for the
''Kldwell Meadows'* did not confer upon him
or hia assigns any title or interest in the
property adyerse to the complete and para-
mount right therein of the United States.
4. Where the Invalidity of the patent was not
apparent on its face» but was proved by ex-
trinsic evidence in a suit by the United
States, and the controversy respecting the
title was not abandoned by the defendants,
they are not entitled to a decree for the re-
turn of the purchase money or for costs.
Ift. A conveyance from trustees, which ought
to have been made, will, after a long lapse
of time, be considered by a court of equity
as having been made.
it. The holders of lots and squares on the line
of Water street In the city of Washington
are not entitled to riparian rights, or to
rights of private property in the waters or
the reclaimed lands between Water street and
the navigable channels of the Potomac river,
unless they can show valid grants from Con-
gress or from the city under the authority
of Congress, or such long and notorious
possession of defined parcels as to justify
a court, under the doctrine of prescription,
in inferring grants : as the intention, never
departed from since the first conception
of the city, was to establish such a street
along the water front for a common access
thereto.
17. The Chesapeake & Ohio Canal Company
does not, either as to lots procured from pri-
vate owners, or as to lands occupied under
the permission of Congress and of the city
authorities, own or possess riparian rights
along the line of Its canal within the limits
of the city.
18. No riparian rights belong to lots north
of Water street, between Seventeenth street
west and Twenty- Seventh street west, as that
street intervenes between such lots and the
channels of the river.
19. No eCTect can be given to the book marked
"Register of Squares" as contradicting or
overriding the plans of the city as adopted
by the President.
20. The decree of the court below as to the
claim of the descendants of Robert Peter to
certain lands near the Observatory grounds,
Is affirmed.
21. The Maryland act of December 19, 1791,
aathorizing licenses for wharves until Con-
gress shall exercise Jurisdiction, did not con-
fer any rights to erect and maintain perma-
nent wharves within the waters of the Poto-
mac river and the Eastern Branch.
22. Where lands and waters are owned by the
govemment In trust for public purposes, and
are withheld from sale by the Land Depart-
ment, without any renunciation of, or failure
to exercise, Jurisdiction and control over
them, an adverse p^^ssession, however long
continued, will not create a title.
23. The failure to construct and open Water
174 U. 8.
street between 13 H street and Maryland
avenue does not create any title in the owners
of land to the water front for wharfing and
other purposes.
24. Oilrners of expensive wharves and ware-
houses erected and maintained, under express
or implied licenses from the city authorities,
on the water front along the Potomac river,
are not to be treated as trespassers in taking
the premises for a government Improvement,
but are entitled to compensation for the value
of their private interests in the structures.
26. The final determination of all the rights
in question, contemplated by the act of Con-
gress of 1886. providing for the determina-
tion of interests in the Potomac river fiats,
should include the determination of the value
of wharves and warehouses owned by li-
censees and standing on lands belonging to
the government.
INo. 49.]
Argued October 26, 27, 28, SI, November 1,
2, 3, 4, 7, 1898. Decided May 1, 1899,
ON APPEAL from a decree of the Supreme
Court of the District of Columbia in a
suit in equity brought by the United States,
plaintiff, against ]!kU,rtiD F. Morris et al., de-
fendants, under an act of Congress to pro-
vide for protecting the interests of the
United States in the Potomac river flats in
the District of Columbia, approved August
15th, 1886, settling the rights, titles, and in-
terests of defendants in and to the waters in
and the soil under the Potomac river in the
city of Washington, and District of Colum-
bia, and their riparian rights on said river,
in said city.
Decree affirmed as to the claims of the
Marshall heirs, and as to the Kidwell patent ;
and as to the several claims to riparian
rights as appurtenant to lots bounded on the
south by water street the case is remanded
for further proceedings.
See same case below, 23 Wash. L. Rep. 745.
Statement by Mr. Justice Shirass
•The act of Maryland, entitled "An Act to[198]
Cede to Congress a District of Ten Miles
Square in This State for the Seat of the Gov-
ernment of the United States," was in the fol-
lowing terms : "Be it enacted bv the gener-
al assembly of Maryland, that tne represen-
tatives of this state in the House of Repre-
sentatives of the Congress of the United
States, appointed to assemble at New York
on the first Wednesday of March next, be
and they are hereby authorized and required,
on behalf of this state, to cede to the Con-
gress of the United States any district in
this state, not exceeding ten miles square,,
which the Congress may fix upon and accept
for the seat of government of the United
States." Kilty's Laws of Maryland, chap.
2, p. 46.
On December 3, 1789, by an act entitled
"An Act for the Cession of Ten Miles Square,
or Any Lesser Quantity of Territory within
This State, to the United States, in Congress
Assembled, for the Permajient Seat of the
General Government," Virginia ceded to the
Congress and government of the United
States a tract of country not exceeding ten
947
198-201
Supreme Coubt of the United States.
Oct. T
miles square, or any lesser quantity, to be
located within the limits of the state, and in
any part thereof as Congress may by law di-
rect, in full and absolute right, and exclusive
jurisdiction, as well of soil as of persons re-
siding or to reside thereon; providing that
nothing therein con^tained should be con-
strued to vest in the United States any riffht
of property in the soil or to affect the rights
of individuals therein, otherwise than the
same shall or may be transferred by such in-
dividuals to the United States; and provid-
ing that the jurisdiction of the laws of the
ccmmonwealtn, over the persons and prop-
erty of individuals residing within the Imiits
of the said concession, should not cease or de-
termine until Congress should accept the ces-
sion, and should by law provide for the gov-
ernment thereof under their jurisdiction.
Congress, by an act entitled "An Aot for
Establishing the Temporary and Permanent
Seat of the Government of the United
States," approved July 16, 1790, accepted a
district of territory, not exceeding ten miles
square, to be located on the river Potomac;
(199]and authorized the President *of the United
States to appoint commissioners, who should,
under the oireotion of the President, survey,
and by proper metes and bounds define and
limit, the district, which, when so defined,
limited, and located, should be deemed tiie
district so accepted for the permanent seat
of the government of the United States. It
was further thereby enaoted that the said
commissioners should have power to pur-
chase or accept such quantity of land on the
eastern side of said river, within the said
district, as the President should deem proper
for the use of the United States, and accord-
ing to such plans as the President should ap-
prove, and that the commissioners should,
prior to the first Monday in December in
the year 1800, provide suitable buildings for
the accommodation of Congress, and Si the
President, and for the public offices of the
Government ; and that on the said first Mon-
ay in December, in the year 1800, the seat
of the government of the United States
should be transferred to the district and
place aforesaid, and that all (^ces attached
to the government should be removed thereto
and cease to be exercised elsewhere. The
act contained the following proviso: "That
the operation of the laws of the state within
said district shall not be affected by this ac-
ceptance until the time fixed for the removal
of the government thereto, and until Con-
§ress shall otherwise by law provide." 1
tat. at L. 130, chap. 28.
On January 22, a. d. 1791, Thomas John-
son and Daniel Carroll, of Maryland, and
Daniel Stewart, of Virginia, were appointed
by President Washington commissioners to
<*arry the foregoing legislation into effect.
On March 3, 1791, Congress passed an
amendatory act, by which, alter reciting that
the previous act had required that the whole
of the district of territory, not exceeding ten
miles square, to be located on the river Po-
tomac, should be located above the mouth of
the eastern branch, the Preeident was au-
tiiorized to make any part of the territory
below said limit, and above the mouth of
048
Hunting creek, a part of the said £stri^ mm
as to include a convenient part of tlie
ern Branch and of the lands lying on
er side thereof, and also the town of
dria, and that the territory so to be *
should form a part of the district
ceeding ten miles square for the
government, but providing that
tained in the act should authorize tlie
tion of the public buildings otherwise
oo the Maryland side of the river
On March 30, ▲. D. 1791, Presides! IK^aa^-
ington issued a proclamation
territory selected by him for the I
the seat of government at follows*
''Beginning at Jones' P<unt, beio^ 1
per cape of Hunting creek in Virgmia,
at an angle^ in the outset, of fortj-ftvv
grees west of the north, and nmBin^ i
direct line ten miles for the first liae;
beginning again at the same Jones' Foiat
running another direct line at a right
with the first across the Potonme tea
for the second line; then from the
tions of the said first and aeeoad liaa^
ning two other direct lines of ti
each, the one croesinff the Eastera
aforesaid and the other the PntiMBef.
meeting each other in a point. "^
The commissioners were
stmcted by the President to have
four lines run, and to report tbrar
In the meantime intereoursa
tween the commissioners and tka
owners of property within the
ing to the sale and oonv^anee bj tke
of land on which a Federal city was
erected. And the foIloirlBg agrasBCBl wm
signed by the proprietoni:
"We, the suDscribo^ in eonsideratisa •(
the great benefits we expect to derfva
having the Federal city laid off
lands, do hereby affree and bind
heirs, executors, and administrators, ta
vey in trust, to the President of tha
States, or commissioners, or sock
persons as he shall appoint, by _
cient deed in fee simple, the wlinle of
spective lands which he may think pn uasr ti
include within the lines of the Fedaral cto.
for the following purposes and <m tbt eaaA
tions following :
"The President shall have the sole fvmm
of directing the Federal eitj to be laid eff ii
what manner he pleases. He may
any number of squares he may thiik
for public improvements, or other
uses, and the lots only *whieh shall he
off shall be a ioint property bctweeu the
tees on behali of the puMie ~
proprietor, and the same shall be fsiriy
equally divided between the pnUie aai
individuals, as soon as may be, after the eicv
shall be laid out.
"For the streets the proprietors shall i*'
ceive no compensation, bnt for the
or lands in any form which shall be tatan
public buildings or any kind of pablic
provements or uses, the propriefeora*
lands shall be so taken, shall reeeiw at the
rate of twenty-five pojuinds per acre, t» W
paid by the public The whole wood tm th»
174 v. &
ftski
189a.
Morris ▼. Unitbd States.
201-208
knd shall be the property of the proprietors,
bat should any be desired by the President
to be reserved or left standing, the same shall
be paid for by the public at a just and rea-
sonable valuation exclusive of the twenty-
five pounds per acre, to be paid for the land
on which the same shall remain.
''Each proprietor shall retain the full pos-
session and use of his land, until the same
shall be sold and occupied by the purchasers
of the lots laid out thereupon, and m all cases
where the public arrangements as to streets,
lots, etc, will admit of it, each proprietor
shall possess his buildings and other im-
provements and graveyards, paying to the
public only one half tiie present estimated
value of the lands on which the same shall
be, or twelve pounds ten shillings per acre.
Bat in cases where the arrangements of the
streets, lots, and squares will not admit of
this, and it shall become necessary to remove
sach buildings, improvements, etc., the pro-
prietors of uie same shall be paid the rea-
sonable value thereof by the public.
"Nothing herein contained shall affect the
lots which anv of the parties to this agree-
ment may hold in the towns of Carrollsburgh
or Hamburgh.
"In witness whereof we have hereto set our
bands and seals, this thirteenth day of
March, 1791."
Among the signers of this agreement
were Robert Peter, David Burns, Notley
Young, and Daniel Carroll.
Subsequently, in pursuance of the agree-
ment, the several proprietors executed deeds
of oonv^ance to Thomas Beall and John
Mackall Grantt as trustees.
'] *It will be found convenient, in view of the
Questions that arise in tlie case, to have the
deeds of David Bums and Notley Young
transcribed in full :
'This Indenture, made this twenty-eighth
day of June, in the year of uur Lord one
thousand seven hundred and ninety-one, be-
tween David Bums of the state of Mary-
land, of the one part, and Thomas Beall (son
of Gieorffe) and John Mackall Gantt of the
state of Maryland, of the other part, Wit-
nesseth: That the said David Bums, for
snd in consideration of tlie sum of five shill-
ings to him in hand paid by the Thomas
Beall and John Mackall Gantt, before the
sealing and delivery of these presente, the
receipt whereof he doth hereby acknowle^e
and thereof doth acquit the said Thomas
Beall and John Mackall Gantt, their execu-
tors and administrators, and also for and in
consideration of the uses and trusts herein-
after mentioned to be performed by the said
Thomas Beall and John Mackall Gantt and
the survivor of them, and the heirs of such
survivor, according to the true intent and
meaning thereof, hath granted, bargained.
Bold, aliened, released, and confirmed, and by
these presents doth grant, bargain, sell,
alien, release, and confirm uuto the said
Thomas Beall and John Mackall Gantt and
the survivor of them, and the heirs of such
survivor, all the lands of him the said David
Bums, lying and being within the following
limite, boundaries, and lines, to wit: Be-
174 V. 8.
ginning on the east side of Rock creek at a '
stone stending in the middle of the road
leading from Georgetown to Bladensburgh,
thence along the middle of the said road to
a stone standing on the east side of llie Keedy
Branch of Goose creek, thence southeasterly
making an angle of sixty-one degrees and
twentjV minutes, with the meridian to a stone
stending in the road leading from Bladens-
burgh to the Eastern Brancn Ferry, thence
south to a stone eighty poles north of the
east and west line already drawn from the
mouUi of Goose creek to tlie Eastern Branch,
thence east parallel to the said east and west
lino to the Eastern Branch, Potomack river,
and Rock creek, to the beginning, with their
appurtenances, except all and every lot and
lots of which the said David Burns is seised,
or to which he is entitled, Iving in *Carrons[203]
burgh or Hamburgh. To have and to hold
the hereby bargained and sold lands, with
their appurtenances, to the &aid Thomas
Beall and John Mackall Gantt, and the sur-
vivor of them, and the heirs of such survivor,
forever, to and for the special trusts follow-
ing, and no other, that is to sav, that all the
said lands hereby bargained and sold, or
such parte thereof as may be thought neces-
sary or proper to be laid out, together with
other lands within the said limite, for a Fed-
eral city, with such streete, squares, parcels
and lots as the President of the United
Stetes for the time being shall approve, and
that the said Thomas Beall and John Mac-
kall Gantt, or the survivor of them, or the
heirs of such survivor, shall convey to the
commissioners for the time being appointed
by virtue of an act of Congress, entitled 'An
Act for Esteblishing the 'i*emporary and Per-
manent Seat of the Government of the United
Stetes,' and their successors, for the use of
the United Stetes forever all the said streete
and such of the said squares, parcels, and
lote, as the President shall deem proper, for
the use of the United Stetes, and that as to
the residue of the lots into which the said
lands hereby bargained and sold shall have
been laid off and divided, that a fair and
equal division of thero shall be made, and if
no other mode of division shall be agreed on
by the said David Burns and the commis-
sioners for the time being, then such residue
of the said lote shall be divided, every other
lot alternate to the said David Burns, and
it shall on that event be determined by lot
whether the said David Burns shall begin
with the lot of the lowest number laid out
on his said lands or the following number,
and all the said lote which may in any man-
ner be divided or assigne<l to the said David
Bums shall thereupon, toc^ether with any part
of the said bargained and sold lands, if any,
which shall not have been laid out in the said
city, be conveyed by the said Thomas Beall
and John Madcall Gantt, or the survivor of
them, or the heirs of su6h survivor, to him,
the said David Burns, his heirs and assigns,
and that the said other lote shall and may
be sold at any time or times in such man-
ner and on such terms and conditions as the
President of the United Stetes for the time
being shall direct, and that the said Thomas
940
204-206
Supreme Coubt of the Uxnxo Status.
Oct. tmMM,
(SM]*Beall and John Mackall Gaatt, or the sur-
vivor of tbem, or the heirs of such survivor,
will, on the order and direction of the Presi-
dent, oonvey all the said lots so sold and or-
dered to be conveyed to the respective pur-
chasers in fee simple, according to the terms
and conditions of such purchasers, and the
produce of the sales of the said lots when
sold as aforesaid shall, in the first place, be
applied to the payment in money to the said
IhBLvid Bums, his executors, administrators,
or assigns, for all the part of the lands here-
by bargained and sold, which shall have been
in lots, squares, or parcels, and appropriated
as aforesaid, to the use of the United States,
at the rate of twenty-fiiFe pounds per acre,
not accounting the said streets as part there-
of, and the said twenty-five pounos per acre
being so paid, or in any other manner satis-
fied, that the produce of the 9ume sales or
what thereof may remain as aforesaid in
money or securities of anv kind shall be
paid, assigned, transferred, and delivered
over to the President for the time being, as a
grant of money, and to be applied for the
purposes and according to the act of Con-
gress aforesaid, but the said conveyances to
the said David Bums, his heirs or assigns,
as well as the conveyances to the purchasers,
shall be on and subject to such terms and
>5ondition8 as shall be thought reasonable by
the President for the time Ming, for regulat-
ing the materials and manner of the ouild-
ings and improvements on the lots generally
in the said city, or in particular streets or
parts thereof for common convenience, safe-
ty, and order; provided such terms and con-
ditions be declared before the sale of any
of tiie said lots under the direction of the
President and in trusts farther, and on the
agreement that he, the said David Bums,
his heirs and assigns, shall and may continue
his possession and occupation of the said
land hereby bargained and sold, at his and
their will and pleasure until the same
shall be occupied under the said appro-
priations for the use of the United States
as aforesaid, or by purchasers, and when
any lots or parcels shall be occupied
under purchase or appropriations as afore-
said, then and not till then, shall the
said David Bums relinquish his occupation
thereon. And in trust also as to the
trees, timber, and woods on the premises
(M5]that he, *the said David Burns, his heirs or
assigns, may freely cut down, take, and use
the same as his and their property, except
such of the trees and wood growing as the
President or commissioners aforesaid may
judge proper and give notice shall be left
for ornament, for which the just and rea-
sonable value shall be paid to the said David
Bums, his executors, administrators, or as-
signs, exclusive of the twenty-five pounds
per acre for the land, and in case the ar-
rangements of the stfeets, lots, and like will
conveniently admit of it. he, tJie said David
Bums, his heirs and assigns, shall, if he so
desire it, possess and retain his buildings and
graveyara, if any, on the herehy bargained
and sold lands, paying to the President at
the rate of twelve pounds ten shillings per
acre, of the lands so retained, because of such
050
buildin|^ and graveyards to be affUei ■
aforesaid, and the same shall be tlwcipM
conveyed to the said David Boms, his kir«
and assigns, with the lots, but if the ir
rangements of the streets, lota, and like vU
not conveniently admit of soeh rciBi-
tion, and it shall become neecaary to i*>
move such bnildinga, then the said Sani
Bums, his exeeators, adminiitfitnn, m ■»-
signs shall be paid the reasoaabk «il»
thereof in the same mannfv as tqnara vec^
er ground appropriated lor the we rf tte
United SUtes are to be naid for. <lai he^
cause it may so happen taat by destk oA
removals of the said Thomas Bedl tiiMa
Mackall Qantt» and from other eaaw. iA^
culties may occur in fullv perfeeUag! tk ak
trust by executing all the said tmnjatm,
if no eventual provision is made, it ii tkev*
fore agreed and covenanted, betweei il At
said parties, that the said Hmmbss BeJI mi
John li. Qantt» or eitho- of then, m tie
heirs of either of them, lawfoHy wmj, as
they at any time, at the request of tk Pm^
ident of^e United SUtes for te tiv Ir
ing. will, convey all or any ol the mM kiA
herd>v bargained and aold which sksl irt
then have been conveyed in exeeotaoa rf Ike
trusts aforesaid to such peraon or piini*
he shall appoint in fee simple, wAjeA to tb
trusts thai remaining to be execetei, mt to
the end that the same may be perfaetii ii*
it is further agreed and granted Uimm d
the said parties, and each of the wuijaim
doth for himself respectivdy and nm k» M
heirs covenant and grant to and wHk tb
others of them that he and they ^sL Md
will, if required by the Prentet ef di
United States for the time being, joii ii m^
execute any further deed or deeds for anf
ing into effect the trusts, puipo— . lai a«
intent of this present dead.
'^n witness whereof, the parties tt ft«
presents have hereunto intertheiirsMy ^
their hands and affixed their wmh tie 4f
and year first above written."
The deed of Notley Toung Is fm 9^^^
tially similar terms.
On December 19, 1791, an wAmm^^
was passed by Maryland, ratifvia; tb ?■»
vious act of cession, and reeitinr tJMt W*
Young, Daniel Carroll of Dnddiafrtai. «■
many other proprietors of the part rf *
land thereinafter mentioiicd to ksw ttf
laid out in a city, had come into it if^
ment, and had conveyed their laadi is "^
to Thomas Beall and John UmMH ft^
whereby they subjected their ha^ to to
laid out as a city, given np pert to »•
United Stotes, and subjected oUmt |tf«
to be sold to raise money, u • <^
tion, to be employed aecwdiaf to v
act of Congress for estabUshiat tketov
porary and permanent seat ^_^^
cmmcnt of the United States, ■■*'
upon the terms and conditloaa luaUtorfto
each of said deeds; that the VitdiHi^
thereafter directed to be laid eetip«""
lands a city, which has ben eaOed tk fl^
of Washington, comprriiending all tlew^
beginning on the east aide of Kodt «**• j
a stone sUnding in the middlt ef tteff**
leading from Georgetown to ***•*' «V
06.
MoRsis Y. UniTBD States.
206-209
lenoe alonjg^ the middle of said road to a
one Btajiding on the east side of the Reedy
ranch of Owmo creek, thence southeaster-
% making an angle of sixiy-one degrees and
ren^ minutes witii the meridian, to a stone
jkndiDs^ in the road leading from Bladens-
argh to the Eastern Branoi Ferry, thence
>nth to a stone eighty poles north of the
iiSt and inrest line already drawn from the
louth of Groose creek to the Eastern Branch,
len east parallel to the said east and west
ne to the Eastern Branch, then with the
raters of the Eastern Branch, Potomac
iyer, and Kock creek, to the beginning.
By section 2, that portion of the "territory
ailed Columbia," *lyinff within the limits of
he state, there was ceded and relinquished
0 the Con^press and the government "full and
ibsolate right and ezdusive jurisdiction, as
eell of soil as of persons residing or to reside
hereon,*' but providing that nothing therein
»ntained should be so construed to vest in
he United States any right of property in
:he soil as to affect the rights of indi\iduals
therein otherwise than the same shall or may
be transferred by such individuals to the
United States, and that the jurisdiction of
the laws of the state over the persons and
property of individuals residing within the
limits of the cession should not cease or de-
termine until Congress should by law pro-
vide for the government thereof.
By section 3 it waa provided that "all per-
sons to whom allotments and assignments of
lands shall be made by the commissioners,
or any two of them, on consent or agreement,
or, pursuant to the act, without consent,
shall hold the same in their former estate
snd interest, and as if the same had been
actually reconveyed pursuant to the said
deed in trust."
By section 5 it was enacted that "all the
lots and parcels which have been or shall be
sold to raise money shall remain and be to
tbe purchasers, according to the terms and
conditions of their respective purchase";
and that a purchase, when made from one
claiming title and, for five years previous
to the statute, in possession, either actually
or constructively, through those under whom
be claimed, was rendered unassailable, and
that the true owner must pursue the pur-
chase money in the hands of the vendor.
Section 7 enacted that the commissioners
might ap^int a clerk of recording deeds of
land wiuiin the said territory, who shall pro-
vide a proper book for the purpose, and
therein record, in a strone, legible hand, all
deeds, duly acknowledged, of lands in the
*aid territory deliver^ to him to be re-
corded, and in the same book make due en-
tries of all divisions and allotments of lands
and lots made by the commissioners in pur-
suance of this act, and certificates granted
by them of sales, and the purchase money
having been paid, with a proper alphabet
in the same oook of the deeds and entries
aforesaid.
B] *By section 9 it was enacted that the com-
missioners "shall direct an entry to be made
in the said record book of every allotment
and assignment to the respective proprietors
in pursuance of this act."
174 U. 8.
By section 12 it was declared that until
the assumption of legislative power by Coo*
gross the commissioners should have power
to "license the building of wharves in the
waters of the Potomack and the Eastern
Branch, adioining the said city, of the ma- '
terials, in the manner and of the ^ctent they
noiay j'udge durable, convenient, and agree- |
ing with ffeneral order; but no license shall
be granted to one to build a wharf before the
land of another, nor shall any wharf be built
in the said waters without a license as afore-
said; and if any wharf shall be built with-
out such license, or different therefrom, the
same is hereby declared a common nuisance;
they may also, from time to time, make reg-
ulations for the discharge and laying of bal-
last from ships or vessels lying in the Poto- ^
mack river above the lower line of the said
territory and Georgetown, and from ships
and vessels lying in the Eastern Branch."
2 Kilty, Laws of Maryland, chap. 45.
While the transactions were taking place
between the commissioners and the several
proprietors, and which culminated in the
deeds of conveyance by the latter to Beall
and Gantt, negotiations were going on be-
tween the President and the commissioners
on the one hand, and the owners of lots in
Carrollsburffh and Hamburgh on the other.
Without fofiowing these negotiations in de-
tail, it seems sufficient to say that an agree-
ment siibstantially similar to the one of
March 13, 1791, was reached with those lot-
owners, and that the territory of those ad-
jacent villages was embraced in the Presi-
dent's proclamation of March 30, 1791.
By a letter contained in the record, dated
March 31, 1791, from President Washington
to Thomas Jefferson, Secretary of State, it
appears that Major L*Enfant was, after the
aforesaid agreements had been reached, di-
rected by the President to survey and lay off
the city; and the President further stated
in that letter that "the enlarged plan of this
agreement having done away the necessity,
and indeed postponed *the propriety, of des [209]
ignating the particular spot on which the
public buildings should be placed until an
accurate survey and subdivision of the whole
ground is made," he has left out of the proc-
lamation the paragraph designating the sites
for the public buildings.
On August 19, 1791, Major L'Enfant pre-
sented to the President his plan of the city,
accompanied with a letter, describing the
plan as still incomplete, and making several
suggestions, particularly one to the effect
that sales should not be made till the com-
pletion of his scheme for the city and the
public buildings should be completed.
On December 13. 1791, the President sent
to Congress a communication in the follow-
ing terms: "I place before you the plan of
the city that has been laid out within the
district of ten miles square, which was fixed
upon for the permanent seat of the govern-
ment of the United States."
Afterwards, on February 20, 1797, on the
occasion of a complaint by Mr. Davidson of
certain deviations from this plan by Major
Ellicott, who succeeded Major L'Enfant as
surveyor. President Washington, in a letter
951
209-212
SUPRCMB COUBT OF THS UNITED STA1E.S.
Oct.
to the oommissioners, said: "Mr. Davidson
is mistaken if he supposed that the trans-
mission of Major Li'£nfant's plan of the
city to Congress was the completion thereof.
Sg far from it, it will appear from the mes-
sage which accompanied the same that it was
given as matter of information to show what
state the business was in, and the return of
it requested. That neither house of Gonmss
Sassed any act consequent thereupon. That
: remained, as before, under the control of
the executive. That afterwards several er-
rors were discoveied and corrected, many al-
terations made, and the appropriations, ex-
cept as to the capitol and the President's
house, struck out under that authority, be-
fore it was sent to the engraver intending
that work and the promulgation tnereof were
to give it the final and regulating stamp."
Subse<]uently dissensions arose between the
commissioners and L'Enfant, which resulted
in the dismissal of the latter, and the em-
ployment of Andrew Ellicott, who, on Feb-
ruary 23, 1792, completed a plan of the city
[810]and delivered it to tne 'President, who, in a
letter to the commissioners dated March 6,
1792, said: "It is impossible to say with
any certainty when the plan of the ci^ will
be 'engraved. Upon Major L'Enf ant's ar-
rival here^ in the latter part of December, I
pressed him in the most earnest manner to
get the plan ready for engraving as soon as
possible. Finding there was no proepectof ob-
taining it through him, at least not in any
definite time, the matter was put into Mr. El-
licott's hands to prepare aboutthree weeks ago.
He has prepared it, but the engravers who
have unaertaken to execute it say it cannot
certainly be done in lees than two, perhaps
not under three, months. There shall, how-
ever, be every effort made to have the thing
effected with all possible despatch."
This so-called fiUicott's plan was engraved
at Boston and at Philadelpnia — ^the engraved
plans differing in that the latter did and the
former did not show the soundings of the
creek and river.
Subsequently, James R. Dermott was em-
ployed to make a plan of the city, which ha
completed prior to March 2, 1797, and on
that day President* Washington, by his act,
reouested and directed Thomas fieall and
Jonn M. Gantt, the trustee, to convey all
the streets in the city of Washington, as they
were laid and delineated in the plan of the
city thereto attached, and also the serveral
s<;uares, parcels, and lots of ground appro-
priated to the use of the United States, and
particularly described, to Gustavus Scott,
William lliornton, and Alexander White,
commissioners appointed under the aist oi
Congress.
On July 23, 1798, President Adams, in an
instrument alleging that the plan referred
to in said request and instruction by Presi-
dent Washington as having been annexed
thereto had been omitted, declared that he
had caused said plan to be annexed to said
writing, and reouested the said Thomas Beall
and John M. Gantt to convey the streets,
squares, parcels, and lots of ground, de-
scribed in the act of the late President of the
United States as public appropriations, to
052
the said Scott, Thornton, and WUU, tai
their successors in office as ffammiMiiin, to
the use of the United States foreier.
*Lots and parcels of gromid were hU t»'||
private purcluisers, fr<Hn time to time, isde
all three of these plans, and uwitimmiBi
have arisen as to the eon^aratm aetha
ticitv of these plans. The partienlan wkm>
in those plans diff^ are stated and fl»
sidered in the opini<m of the coort.
On February 27, 1801, CcmffreM panei tk
act concerning the District en Colnabis isi
its government, and providing 'that tkc kai
of uie state of Maryland as they mam mM
shall be ooirtinued in force in that pert a( Ai
said district which was ceded by tnat ilita'
By the act of Aunist 2, 1882 (22 StaLat
L. 198, chi^. 375) , Congress made tm tmn^
priation for "iinprovin^ the Potflaec nm
in the viciniiy of Washington with
to the improvement of naTigation, the
lishment of harbor lines, and the ruo^i tf
the flats, under the direction of the Qmimn
of War, and in accordance with the jk^m
report made in compliance with the nmui
harbor act approved Man^ 3, 1881, islAr
reports of the Board of Knginefri w"^ ~
compliance with the resolution of the
of Decen]^>er 13, 1881."
This act made it the dn^ of the
General to examine all dAnns oi titli li ie
premises to be improved under thk tff^
priation, and to insititifte a suit or wtm il
law or in equi^ "against miij and aO diin'
ants of title under any patent whkk, k Hi
opinion, was by mistake or i '
or illegally issued for an^ pait of tht
or flats within the Umita of the ~
improvement."
By subsequent acts of Oongrew fvteif
propriations were made for eoetiie»l| m
improvement, amounting to beti
ana threemillionsof d<^lar8,aBdiB
cution of the work ehann
dredged, sea walls oonstrnoted, aai t hup
area reclaimed from the riTU'.
It appearing that daims to the Isiii*
braced within the limits of the improwA
or to parts of them, were made bj thsO^
peake k Ohio Canal Company, ana Ivffv^
other oorporaticms and persons, bcridw tti*
doimlnff under the patent referred ti it^^
act of 1882, Congress passed the set sfpRM'
August 5, 1880(24 Stat at L. S3S), «^.^
"An •Act to Provide for ProteeU^ At l^Hm
terests of the United SUtes in the
River Flats, in the District of
By the first section of this act it «u
the duiy of the Attorney General *li
tute as soon as may be, in the eupii—
of the District of Columbia, a snit tpia^^
persons and corporations who nay ^"^ *
pretend to have any right, title, mim, «^
terest in any part of the land or watv b ■*
District of Columbia within the liaits jrf*
dtir of Washington or exterior to m^^'T
ana in front thereof toward the chiW *
the Potomac river, and oomposinf ttj 9^
of the land and water affeoted ij ^/^
provements of the Potomac river or in ■'*
m charge of the Secretary of Wir. Iw ••
purpose of establishing and makiac ektf "*
right of the United SUtes thereto.* . .
United 8tats8 t. Onb Dibtillsbt.
148-151
Beoit T. Armstrong, 14G U. 8. 400 [36:
1050], does not apply. In that case it was
held that a debtor of an insolvent national
bank could set off against his indebtedness
to the bank, which b^same payable after the
bank's suspension, a claim payable to him
before the suspension. And it was further
held that the set-off was equitable, and there-
fore not available in a oommon-law action.
But in this case the plaintiff in error
pleaded the set-off. His ricrht to do so was
derived from the law of Arkuisas, and that
law provided: "If the amount set off be
equal to the plaintiff's demand, the plaintiff
shall recover nothing bv his action; if it be
less than the plaintiff^s demand, he shall
C^^^lhave ^judgment for the residue only."
(Gould's Arkansas Digest of Statutes, 1020.)
The law was complied with.
It follows that the Circuit Court did not
err in instructing the jury to find for the
nlaintiff (defendant in error), and judgment
%» affirmed.
UNITED STATES, Flff. in Brr.,
ONE DISTILLERY el aUa and Henry Wel-
ters, William Helm, R. H. Austin, and J.
H. Coffraan, Claimants.
(See 8. C. Reporter's ed. 140-152.)
When judgment diamiaHng an information
will he affirmed — proof that the property
ioaa forfeited,
1. A judgment dismissing tn Information for
the forfeiture of property, upon the ground
that the answer Is admitted to be tme, will
be afflrmed If a snfflclent ground Is disclosed
In the record, although the ground of dismiss-
al was Insofflclent
2l Where there was no proof of the fraudulent
acts forfeiting the property, alleged In the
Information and denied In the answer, the
judgment of dismissal will be afflrmed.
fNo. 100.]
Argued April 6, 1899. Decided April 24,
1899,
IN ERROR to the Circuit Court of the
United Statee for the Southern District
of California to review a judffnient of Uiat
court afflrminff a judgment o? the Dis^^rict
Court of the United States for the Southern
District of California dismissing an informa-
tion filed in the last-named oourt to obtain
a decree that certain real and personal prop-
erty which had been seized bv a collector of
internal revenue vras forfeited to the United
States. Judgment of the Oirouit Oourt af'
firmed.
See same case below, 43 Fed. Rep. 846.
The facts are stated in the opinion.
Mr, James E. Boyd* Assistant Attorney
General, for the plaintiff in error.
Meaera, Samuel O. Hllbom, and Fre<l-
erio W. Uall for defendant in error.
C14LO] *Mr. Justice Harlan delivered the opin-
ion of the court:
Thifl was an information filed November
174 U. 8.
U. S., Book 43.
13, 1888, in the district court of the United
Statee for the southern district of California
to obtain a decree declaring that certain
real and personal property which had been
seized by a collector ox internal revenue was
forfeited to the United Statee.
The information was based upon sections
8267. 3281, 3306, 3468, and 3466 of the B*-
vised Statutee.
The property in question once belonged to
the Fruitvale Wine & Fruit Company, a cor-
poration of California. The acts that were
set forth as constituting the ffrounds of for-
feiture *were reconunitted, i? at all, while[li§|
that corporation owned the property. Sub-
sequently, June 0, 1888, the property was
purchased by Wolters, Helm, Austin, and
Ccffman at a public sale thereof by the ae-
signee of the cotiipany — ^the consideration^
$7,700, being naid in caslh to the assignee.
The^ appeared and filed a demurrer to tlM
origmal information. The demurrer WM
confessed, and an amended information was
filed January 11, 1880.
Wolters, Helm, Austin, and Ooffman on
the 10th day of April, 1880, filed an answer
to the amended information, oontrovertinff its
material allegations. The answer contained
these among other averments: 'That they
[the claimants] have not sufficient informa-
tion in reffard to the several wrongful acts
alleged to have been perpetrated by said cor-
poration on which to found a bdief; they
therefore, on behalf of said corporation, do*
ny all and singuiar the alleffed fraudulent
acts charged in said information as having
been done and performed by said oorpora-
Uon."
On the 21st day of August, 1800, th«
daimants filed an amendment of their origi-
nal answer, in which th^ averred that la
December, 1888, W. Moore Toung, who was
secretary of the Fruitvale Wine & Fruit
Company, and one of the owners of the prop-
erty in question when the acts complained
of in the original and amended informatioc
were committed, was indicted in the same
court, and was convicted and sentenced to
imprisonment for one year in the ooun^
jail. The claimants further averred that
the acts complained of in this case were the
same as those relied on by the government
in its prosecution against Toung, and that
because of the proceedings ana Judgment
against Tounff the United States ought not
to maintain iU present action. The an&rad-
ed answer concluded: 'These diUmaati
aver the foregoinff in addition to their an-
swer already on file herein, and expressly ra*
ly, not only upon this, but upon aU oi the
alle^tions and denials contained in said
original answer. And having fully an-
swered, they pray as they have heretofore
prayed in said original answer."
llie demurrer to the amended answer was
overruled by an order entered October 20,
1800, and an exception was taken *by the[lSl!
United States to the action of the court.
43 Fed. Rep. 846. On the next day the fol-
lowing decree was entered: 'This cause
came on regularly for trial before the court,
sitting without a jury, a jury trial having
been expressly waived in writing, the United
oV vzv
Slfi-817
SUPBEHE COUBT OP TUE UNITED STATE5i.
the deed to them from Frederick Paul Har-
ford as Lord Baltimore's successor in title.
n. The claims of ownership made to part
of the reclaimed land by certain defendants,
who assert title under a patent issued by the
United States through the General Land Of-
fice to John L. Kidwell in the year 1869 for
forty-seyen and seventy-one one-hundredths
(47 71-100) acres and to one hundred and
ifty (150) acres of alleged accretion there-
to; and to another tract, the area of which is
not stated, adjoining the Lonf Bridge and ex-
tending therdfrom southwardly between the
Washington and Gleorgetown channels, of
which latter tract they claim to be the equit-
sble owners under an application for a pat-
ent made by said Kidwell in 1871.
m. The claims made by the Chesapeake
A Ohio Canal Company and its lessee, Henry
H. Dodge, to riparian rights from Easby's
Point to Seventeenth street west.
IV. The claims to riparian rights, right
of access to the channel of the river, and- to
accretions, natural and artificial, made by
the owners of lots in squares along the river
west of Seventeenth 'street west, namely,
eauares 148, 120, 80, 63, 22, and square south
oi square 12.
V. The claim made by certain of the de-
scendants of Robert Peter, an original pro-
prietor of lands in the city of Washington,
to certain land near the public reservation
known as the Observatory Grounds.
VI. The claims to riparian privileges and
wharflng rights made by owners of lots in
squares beginning with square 233 and ex-
tending to the line of the Arsenal Grounds.
VII. The daims made by certain persons
occupying wharves below the Long Bridge.
The main determination by the court "of
rights drawn in question" in the suit was a
decree passed October 17, 1805. The decree
adjudicated nearly aU the points in con-
troversy in favor of the United States.
Certain lots and parts of lots in squares
tSlO]63, 80, 120, and 148, *north of their bounda-
ries on Water street and A street, which
were subject to the ebb and flow cd the tide,
were included in the work of reclamation,
and as to them the decree held the owners to
be entitled to compensation for the taking
and inclusion of the same in the improve-
ments.
By the first paragraph of the decree the
claims under class 2, that is, those set forth
in the answers of certain defendants founded
upon a patent issued to John L. Kidwdl in
1860, for a tract of forty-seven and seventy-
one one-hundredths (47 71-100) acres in the
Potomac river, and alleged accretion thereto,
and also to a tract adjoining the Long
Bridge, founded upon an application for a
?atent therefor made by said Kidwell in
871, are held and declared to be "invalid,
▼Old, and of none effect ;** and the said patent
is "vacated, annulled, and set aside." •
By the second paragraph "the claims of
«ach and all of the other parties defendants,
set forth in their respective answers, to any
rights, titles, and interests, riparian or oth-
erwise, in the said lands or water," are held
and declared "to be invalid, void, and of none
effect," except as to the parties owning said
954
lots and parts of lots in the
tioned.
By the third paragraph it is held
dared "that there does not exist {
aforesaid) any right, title, or interest n kbj
person or oorporraon, behig a p^r^ to tkk
cause, to or in any murt of the aald laad m
water," and "that the right aad title of the
said United States (except as aioreaaJd' u
all the land and water iadaded within t^
limits of the said improvemeBts of t^ P>
tomae river and its fli^a, as tte aaid Imaa
are described in the said bill of ramjims.'
is absolute "as against all the dfftMlswIi t»
this cause, and as against all peraoi
soever claiming any rights, titiea,ar
therein who mive failed to appear
forth and maintain their said ri^ta, titlo.
or interests as required by said act ef 0»
gress."
By the fourth paragraph it ia WU fki
the defendants who are owners of the kt> v
parts of lots in souares 63, 80, 129, aad 141
"which are induoed between the Borth &■
or lines of the said improvenMBta of the F^
tomac liver and its flats and the Borth Iv
or Mines of Water street and A sliuit, ■iter.'fl
titled to be indemnifled for whaterer iap^
ment or injury may have been caoH «
their respective rights, titles, or Intsis^ is
said lots or P^rts of lots by the taking sftfa
same by the United States ; the vahw ef mA
rights, titles, interests, or daims to be mm-
tained by this court, exdnsive of tht niss
of any improvement of the said lots or par*
of lots made by or under the iiilhiHiry rf
the said United SUtes."
By theflfthand last para^rapli of tht «►
cree the taking of further tmtimomy «■
authorized, on behalf of the owners sal ■
behalf of the United States, as to the
tive areas of the said lots and parts ef
and of and conceminft the tnie
and value of the said lota and paiti rf
lots.
Such testimony as to ownersh
and values having been talnn and
the court upon consideration thereof, sal
March 2, 1806, passed a farther and
mentary decree, adjudging the vahMs sf tk
said lots and parts of lots so taken to W t«
cents per square foot, and payssest wai S-
rected to be made to sundry pet sot «^
the court found to be the owners of evtMS
of the parods; the ownership of the ms^
ing parcels not bdng, in the onhdea if tt>
court, suiBdently established, the takiif ^
further testimony with respect thenss wi
ordered. The total amount of said ^ehv
found by the court is $20,684.00.
The court having made a report ef to se
tion in the premises to Ooogreos, sgnaMf
to the requirements of tlie act of Aen^ '
1886, an appropriation was made ir Ai
payment of the sums so fdnad to bt das *
the owners of the said lots and parts of M
in said souares; and with two tiupUMj.
namdy, Bichard J. Beall and the trm^m «
the esUte of William Eashy, dswawd, tte
several owners of the property appUcI* **"
der said appropriation act, to the coart i*
the payment to them of the respcetivi t^
ibOa.
MoRAH T. Dillingham.
158-156
in the circuit court ol appeals for the filth
eircuit upon an appeal to that court from
the circuit court of the United States for the
northern district of Texas.
The leading question presented by the writ
of certiorari is whether Judffe Pardee was
disqualified to sit at the hearing of that ap-
peiu by the provision of 8 3 of that act,
^that no justice or Judge before whom a
oause or question may have been tried or
heard in a district court or existing oireuit
oourt shall sit on the trial or hearing of
such cause or question in the circuit ooort
•f appeals." 26 Stat, at L. 827.
If Judge Pardee was so disqualified, the
decree in which he took part, even if not ab-
solutely void, must cenainlv be set aside
and quashed, without regard to its merits.
|154]Amenooii ^Conairuoiion Co, t. Jackaofwiile,
r. d K. W. Railway Co. 148 U. S. 872, 887
[37:486,402].
The material facts bearing upon the ques-
tion of his disqualification, as appearing by
the record now before this oourt, are as fol-
lows:
Upon a bill in equity, filed April 2, 1885.
in the aforesaid circuit court of the United
States, by the Morgan's Louisiana & Texas
Railroad & Steamship Company against
the Texas Central Railway Company, to fore-
close a mortgage of its railroad and other
property. Judge Pardee, on April 4, 1885,
maae an order, appointing Benjamin 0.
Clark and Charles Dillingham joint receir-
ers of the property, and appoinung John G.
Winter special master as to all matters re-
ferred or to be referred to him in the cause.
Upon a petition filed in that cause by Dil-
lingham, representing that he had been the
active receiver for seventeen months, and
pravinff for an allowance for his services as
such, Judge Pardee, on December 4, 1886,
made an order ''that the receivers be author-
ized and directed to place Charles Dilling-
ham upon the pay roll of the receivers for
the sum of one nundred jand fifty dollars per
month, as an allowance upon his compensa-
tion as receiver in this cause ; this allowance
to date from the possession of the receivers,
and to continue while Mr. Dillinja^ham gives
his personal attention to the business of the
company or until the further order of the
court"
On April 12, 1887, Judge Pardee made a
final decree in the cause, for the foreclosure
of the mortgage; for the sale of the mort-
gaged property by auction ; and for the pay-
ment by the purchasers of "all the inacbt-
edness of the receivers incurred by them in
this cause, including all the expenses and
costs of the receivers' administration of the
property," "and also the compensation of the
receivers and their solicitors;" appointing
Dillingham and Winter special master com-
missioners to make the sale, and to execute
and deliver a deed to the purchasers: and
reserving the right to any party to the cause,
aa well as to the receivers and master com-
missioners, to apply to the court for orders
necessary to carry that decree into execution.
Anpeals from that decree were taken by the
[155]Morgan's ^Louisiana & Texas Railroad &,
Steamship Company and by the Texas Cen-
174 U. i.
tral Railway Company to this oourt, whick
on November 24, 1890, affirmed that decree.
187 U.S. 171 [34:625].
Pursuant to that decree, on April 22, 1891,
aU the property mortgaged, except some not
immediately connected with the railroad,
was sold to Moran, Gold, and McUarg, trus-
tees for bondholders. On their petition file4
in the cause, Judge Pardee, on August 28,
1801, made a decree directing Dillingham
and Clark, receivers, to execute and deliver
a deed, and to deliver possession, to the pur^
chasers, of all the propertv, real and per*
sonal, of the Texas Central Railway Com-
pany, in the state of Texas, used for and per-
taininff to the operation of its railway; and
Srovimng ''that nothing in this decree con-
lined is intended to anect, or shidl be con-
Hrued as aifectinff, the status of any pending
or undetermined litigation in which said re-
oeivers appear as parties; such litigatioB
shall conunue to determination in the name
of said receivers, with the right reserved te
said purchasers, should they be so advised,
to appear and Join in any sueh litisations
and nothing in this decree contained is in-
tended to affect, or shall be oonstrued ae
affecting, the receivership of any of the
propertv of the defendant railway company
other than the property so transferr«i to
said purchasers, possession of which said
propertv other than that so transferred is
retained for further administration, subject
to the orders of this court;" and "tiiat said
purchasers or said receivers may apply ak
the foot of this decree for such other and
further relief as may be iust." The proper^
tv was accordingly delivered to the pur^
diasers in September, 1891. On November
6, 1891, on like petition ot the purchasers.
Judge Pardee made a similar decree, except
in directing the deed to the purchasers to
be executed and delivered by Dillingham and
Winter, special master commissioners, and
in other particulars not material to be men-
tioned.
Dillingham afterwards, and until April,
1895, continued to draw and pay to himsdf
the sum of $150 a month, and returned
quarterly accounts to the master crediting
himself with those sums. On August 25,
1891, he presented a petition, entitl^ in the
cause, to the master, praying him to "malce
*to him such an allowance for his services aA[15^l
receiver in the above-entitled cause, from the
date of his appointment until his discharge,
as to said master may seem just and proper.**
\bout the same time, a compronuse was
made between him and the purchasers, pur-
suant to which he was paid, in addition to
the allowance of $150 a month for the past,
the sum of $20,000 for services as recenrer;
and he signed a paper, entitled in the cause,
acknowledging that he had received from
them the sum of $20,000 "in full of my fees
and charges as receiver of the Texas Central
Railway Company, as per agreement." At
the hearings before the master upon Dilling-
ham's accounts it was contested between him
and the purchasers whether he was entitled
to $150 monthlv since the compromise. The
master reported that he was ; and exceptions
by the purchasers to his report were referred
031
1
1808.
Kelson v. Moloney.
164-187
SuhmUted Afiril If, 1899. Decided May
1, 1899.
IN ERROR to the Supreme Court of the
State of New York to review a judgment
•f that court for the foreclosure of a mort-
gage in an action brought by Dennis Molo-
ney against Samuel Nelson and others, after
its afSrmance by the Appellate Division and
the Court of Appeals of the State. On mo-
tion to dismiss or affirm. Dietniseed.
See same case below, 168* N. T. 861.
Statement by Mr. Chief Justice Fnll^vi
Thie was a suit brought bv Dennis Mi^ney
against Samuel Nelson, Albert J. Adams,
•nd others, in the supreme court of New
York, city and county of New York^ to fore-
eloee a mortgage on real estate given Mo-
loney by Ndson to secure a boiKl for ten
thousand dollars in indenmiflcation of Mo-
(166]loney against *loss by reason of becoming
bail for one O'Brien. The judge before
whom the case was tried found the facts as
fellows:
"I do find that in the month of October,
1801, one Thomas O'Brien was under arrest
and confined in Albany county jail, charged
with the crime of grand larceny in the first
deffree, and that on the 16th day of October,
1801, he was discharged from custody on giv-
ing a certain bail bond or recognisance in the
sum of ten thousand dollars executed by him-
self^ the defendant, Samuel Nelson, and the
Slaintiff, Dennis Molo'ney, oomiitioned that
tie said Thomas O'Brien should appear and
answer the said charge in whatever court
it may be prosecuted.
"That the defendant, Samuel Nelson, in or-
der to induce the plaintiff to enter into said
reoo^izance, agreed to indemnity him
acainst liability thereunder, and the plain-
tm reiving upon said agreement ana not
otherwise entered into ana executed the same
as aforesaid and the said defendant, Samuel
Nelson, immediately thereafter and in ful-
filment of said a^eement, did execute and
deliver to the plaintiff, Dennis Moloney, the
bond and mortgage set up in the complaint
in this action, which said mortcMe was
thereafter and on the 17th day of wtober,
1801, duly recorded in the office td the rea-
ister of Uie citv and counbr of New York.
"That thereafter and on the 2d day of No-
vember, 1801, the said Thomas O'Brien was
called upon in the county court of Albany
county to appear and answer the indictment
above referred to, but did not appear and the
bail bond or recofl^izance executed by said
0*Brien, the plaintiff Dennis Moloney, and
the defendant, Samuel Nelson, was, on said
2d day of November, 1801, declared forfeited.
"That thereafter and before the commence-
ment of this action, an action was brought
1^ the people of the state of New York
against the plaintiff, Dennis Moloney, and
the defendant, Samuel Nelson, to recover
upon said forfeite.^ bail bond or recoffnizance,
and on the 8th day of December, 1801, judg-
ment in said action was duly entered in favor
of the people of the state of New York
against the defendant, Samuel Nelson, and
the plaintiff. Dennis Moloney, for the sum of
ten thousand and twenty-seven 13-100 ($10,-
174 U. 8.
027.13) dollars, andthe iudgnient roll *duly[lM]
filed in the office of the clerk.of Albany coun-
ty on said date.
'That thereafter executions upon said last-
mentioned judgment were duly issued to the
sheriff of Albanv county and the plaintiff's
property was sold under said execution, and
the entire amount of said judgment paid
wholly by the plaintiff.
"That no part of the sum of ten thousand
dollars secured b<^ said bond and mortgaoe
has been paid to tne plaintiff, and defendantf
agreed and consented on the trial of this ao-
tioii thai interest upon said sum of ten thou*
sand dollars should be computed from the 6t]i
day of June, 1803."
And thereupon judgment of foreolosora
and sale for the amount due and for pay-
ment of anv deficiency was entered.
Before this suit was commenced Moloney
had brought a similar suit against Ndsoa
and recovered judgment, which was reversed
by the general term of the supreme court on
the ground that it had been prematurely
brouffht, because Molonev had not then paid
anything on account of the judgment entered
on the forfeiture of the criminalrecognizance.
Moloney v. NeUon^ 70 Hun, 202. From that
judgment Moloney prosecuted an appeal to
the court of appeals, entering into the usual
stipulation that if the judgment appealed
from was affirmed, judgment absolute might
be rendered a«ainst nim. The judgment waa
affirmed ana judgment absolute entered.
Molonev v. Nehon, 144 N. Y. 182. After
that this action was commenced, but in f^e
meantime Nelson had transferred the pn^
ert7 mortffaged to defendant Adams.
From the judgment of the trial court im
this suit Nelson alone appealed to the appel-
late division of the supreme court in the nrst
department, by which it was affirmed. Nel-
son then carried the cause to the court of
appeals, and the judgment of affirmance was
affirmed. Moloney v. NeUon, 158 N. Y. 361.
The record having been remitted to the su-
preme court, this writ of error was allowed,
and motions to dismiss or affirm submitted.
iff. Abram J. Rose for defendant in er-
ror in favor of motion to dismiss or affirm.
Messrs. William H. Kewmaa and Al-
hert J. Adams, Jr.^ for plaintiff in error in
oppoeition to motion.
*Mr. Chief Justice Fvllev delivered the[m]
opinion of the court:
It is stated in the opinion of the court of
appeals, by Chief Juage Parker, that the
defenses interposed by Nelson "upon the
trial, and relied upon here, are: (1) The
stipulation given by the plaintiff on the ap-
peal to this court in a prior action brought to
foreclose the mortgage is a bar to the recov-
ery in this action. (2) The bond and mort-
gage having been ffiven to indemnify bail in
a oriminal case, they are void because oon-
trary to public policy."
The court of appeals ruled that the con-
tention that the stipulation given on appeal
to that court operated to prevent a recovery
was "without support in authority or rea-
son;" and as to tne second ground relied up-
035
198-201
SUPREMS COUBT OF THE UlOTEO STATES.
Oct. Teem,
miles square, or any lesser quantity, to be
located within the limits of the state, and in
any part thereof as Congress may by law di-
rect, in full and absolute right, and exclusive
jurisdiction, as weJl of soil as of persons re-
sidinjg or to reside thereon; providing that
nothing therein contained should be con-
strued to vest in the United States any riffht
of property in the soil or to affect the rights
of incuviduals therein, otherwise than the
same shall or may be transferred by such in-
dividuals to the United States; and provid-
ing that the jurisdiction of the laws of the
commonwealth, over the persons and prop-
erty of individuals residing within the lunits
of the said concession, should not cease or de-
termine until Ck)ngress should accept the ces-
sion, and should by law provide for the ^v-
emment thereof under their jurisdiction.
Confess, by an act entitled ''An Act for
Establishiiu[ Uie Temporary and Permanent
Seat of the (Government of the United
States," approved July 16, 1790, accepted a
district of territory, not exceeding ten miles
square, to be located on the river Potomac;
(199]and authorized the President *of the United
States to appoint commissioners, who should,
under the direction of the President, survey,
and by proper metes and bounds define and
limit, the district, which, when so defined,
limited, and located, should be deemed the
district so accepted for the permanent seat
of the government of the United States. It
was further thereby enacted that the said
commissioners should have power to pur-
diase or accept such quantity of land on the
eastern side of said river, within the said
district, as the President should deem proper
for the use of the United States, and accord-
ing to such plans as the President should ap-
prove, and that the commissioners should,
prior to the first Monday in December in
the year 1800, provide suitable buildings for
the accommodation of Congress, and of the
President, and for the public ofiioes of the
government ; and that on the said first Mon-
ay in December, in the year 1800, the seat
of the government of the United States
should be transferred to the district and
place aforesaid, and that all offices attached
to the government should be removed thereto
and cease to be exercised elsewhere. The
act contained the following proviso: "That
the operation of the laws of the state within
said district shall not be affected by this ac-
ceptance until the time fixed for the removal
of the government thereto, and until Con-
gress shall otherwise by law provide." 1
Stat, at L. 130, chap. 28.
On January 22, a. d. 1791, Thomas John-
son and Daniel Carroll, of Maryland, and
Daniel Stewart, of Virginia, were appointed
by President Washington commissioners to
carry the foregoing legislation into effect.
On March 3, 1791, Congress passed an
amendatory act, by which, after reciting that
the previous act had required that the whole
of the district of territory, not exceeding ten
miles square, to be located on the river Po-
tomac, should be located above the mouth of
the eastern branch, the President was au-
thorized to make any part of the territory
below said limit, and above the mouth of
948
Hunting creek, a part of the said
as to include a convenient part of the £aat<
em Branch and of the lands lying on the krv-
er side thereof, and also the town of Alexas-
dria, and that the territory so to be *iiidwMr
should form a part of the district noi ex-
ceeding ten miles square for the seat of t^
government, but providing that nothi^f
tained in the act should authorise the
tion of the public buildinss
on the Maryland side of the river
On March 30, a. d. 1791, Pre^^idest Wsa-
ington issued a proclamation desciftiag tht
territory selected by him for the locstioe if
the seat of government as foUowM
"Beginning at Jones' Pcnnt, bein^ tht wf-
per cape of Hunting creek in Virgnia, aaf
at an angle, in the outset, of forty-iW h-
ffrees west of the north, and running is »
direct line ten miles fcH* the first liae; ths
beginning again at the same Jones' Poiii tmi
running another direct line at a right sab
with the first across the Potomac ttn bub
for the second line; then from tbe ttBrnm-
tions of the said first and seeond Ums. ns-
ning two other direct, lines **f ttn Bda
each, the one croesinff the Eastern Bmdl
aforesaid and the other the Potowsf, mi
meeting each other in a point.**
The commissioners were aeoordi^^ it-
structed by the President to have tSi mH
four lines run, and to r^x>rt tbnr sgtins
In the meantime intereoorse was hal br
tween the commissioners and the ijulmifd
owners of property within the distnet mm-
ing to the sale and conT^janee by tht hitv
of land on whieh a Fedml eitj was It kt
erected. And the fc^owing agrecaat mt
signed by the proprietors:
''We, the subscribers, in mnsiiliiithi ^
the great benefits we expect to doivt &<■
having the Federal ci^ laid off «f« iv
lands, do herdiy affree and bind ovmHik
heirs, executors, and adroinistraton. toii»
vey in trust, to the President of tht \Md
States, or commissioners, or saeh ftnm *
persons as he shall appoint, by goodsali^
cient deed in fee simple, the wMe of sv it^
spective lands which he may tiiink prav *
include within the lines of the Federal^,
for the following purpcees and on the mm
tions following:
"The President shall have the «b pi«v
of directing the Federal citj to be laiAif a
what manner he pleases. He aav i^m
any number of squares he may thiv piy
for public improvementa, or othsr f**^
uses, and the lots only *whieli AaH kt h<>
off shall be a joint proper^ betweai thttnr
tees on behalf of the public and etch fnMt
proprietor, and the same shall be hi&f "^
equally divided between the pohik aai tk
individuals, as soon as may be, after tht «^
shall be laid out.
"For the streets the proprieten AiJ >»
ceive no compensation* but for tW ■^•'*
or lands in any form whidi thai! be tikis ^
public buildings or any kind of pobBf^^
provements or uses, the proprietors* »*»■§
lands shall be so taken, shall rtetivt U tkt
rate of twenty-five pounds per sert. It *»
paid by the public The whole wood •• t>»
1T4 H. i^
im.
Morris t. Unitbd States.
201-208
tend shall be the property of the proprietors,
iHit should any be desired by U^ President
to be reserved or left standing, the same shall
be paid for by the public at a just and rea-
sonable valuation exclusive of the twenty-
five pounds per acre, to be paid for the land
on which the same shall remain.
"Each pr<^rietor shall retain the full pos-
session and use of his land, until the same
shall be sold and occupied by the purchasers
of the lots laid out thereupon, and in all cases
where tiie public arrangements as to streets,
lots, etc, will admit of it, each proprietor
shall possess his buildinffs and other im-
provements and graveyards, paying to the
public only one half the present estimated
Talue of the lands on which the same shall
be, or twelve pounds ten shillings per acre.
But in cases where the arrangements of the
streets, lots, and squares will not admit of
this, and it shall become necessary to remove
soch buildings, improvements, etc., the pro-
prietors of ue same shall be paid the rea-
sonable value thereof by the public.
'Nothing herein contained shall affect the
lots which anv of the parties to this agree-
■lent may hold in the towns of Carrollsburgh
or Hamburgh.
"In witn^ whereof we have hereto set our
hands and seals, this thirteenth day of
Karch, 1791."
Among the signers of this agreement
were Robert Peter, David Bums, Notley
Young, and Daniel Carroll.
Subsequently, in pursuance of the agree-
ment, the several proprietors executed deeds
of conv^aaice to Thomas Beall and John
Mackall Gantt as trustees.
) *It will be found convenient, in view of the
ntions that arise in tliC case, to have the
s of David Bums and Kotl^ Toung
transcribed in full :
"This Indenture, made this twenty-eighth
day of June, in the year of our Lord one
thousand seven hundred and ninety-one, be-
tween David Bums of the state of Mboj-
land, of the one part, and Thomas Beall (son
of Geoi^) and John Mackall Gantt of the
state of Maryland, of the other part, Wit-
sesseth: That the said David Bums, for
and in consideration of tlie sum of five shill-
ings to him in hand peid by the Thomas
B^ and John Mackall Gantt, before the
sealing and delivery of these presents, the
receipt whereof he doth hereby acknowledge
and thereof doth acquit the said Thomas
Beall and John Mackall Gantt, their execu-
tors and administrators, and also for and in
consideration of the uses and trusts herein-
after mentioned to be performed by the said
Thomas Beall and John Mackall Gantt and
the survivor of them, and the heirs of such
survivor, according to the tme intent and
meaning thereof, hath granted, bargained,
sold, aliened, released, and confirmed, and by
these presents doth gran^ bargain, sell,
alien, release, and confirm uuto the said
Thomas Beall and John Mackall Gantt and
the survivor of them, and the heirs of such
survivor, all the lands of him the said David
Burns, lying and being within the following
limits, boundaries, and lines, to wit: Be-
174 U. 8.
ginning on the east side of Kock creek at a '
stone standing in the middle of the road
leading from Georgetown to Bladensburgh,
thence along the middle of the said road to
a stone standing on the east side of the Reedy
Branch of Goose creek, thence southeasterly
making an angle of sixty-one degrees and
twent^v minutes, with the meridian \o a stone
standing in the road leading from Bladens-
burgh to the Eastern Brancn Ferry, thenoe
south to a stone eighty poles north of the
east and west line already drawn from the
mouUi of Goose creek to the Eastern Branch,
thence east parallel to the said east and west
lino to the Eastern Branch, Potomack river,
and Rock creek, to the beginning, with their
appurtenances, except all and every lot and
lots of which the said David Burns is seised,
or to which he is entitled, Iving in *Carrolls-[208]
burgh or Hamburgh. To have and to hold
the hereby bargained and sold lands, with
their appurtenances, to the said Thomas
Beall and John Mackall Gantt, and the sur-
vivor of them, and the heirs of such survivor,
forever, to and for the special tru<(ts follow-
ing, and no other, that is to sav, that all the
said lands hereby bargained and sold, or
such parts thereof as may be thought neces-
sary or proper to be laid out, together with
other lands within the said limits, for a Fed-
eral city, with such streets, squares, parcels
and lots as the President of the United
States for the time being shall approve, and
that the said Thomas Beall and John Mac-
kall Gantt, or the survivor of them, or the
heirs of such survivor, shall convey to the
commissioners for the time being appointed
by virtue of an act of Congress, entitled 'An
Act for Establishing the 'J'emporary and Per-
manent Seat of the Government of the United
States,' and their successors, for the use of
the United States forever all the said streets
and such of the said squares, parcels, and
lots, as the President shall deem proper, for
the use of the United States, and that as to
the residue of the lots into which the said
lands hereby bargained and sold shall have
been laid off and divided, that a fair and
equal division of thero shall be made, and if
no other mode of division shall be agreed on
by the said David Burns and the commis-
sioners for the time being, then such residue
of the said lots shall be divided, every other
lot alternate to the said David Burns, and
it shall on that event be determined by lot
whether the said David Burns shall begin
with the lot of the lowest number laid out
on his said lands or the following number,
and all the said lots which may in any man-
ner be divided or assigne<l to the said David
Bums shall thereupon, toc^ether with any part
of the said bargained and sold lands, if anj^r,
which shall not have been laid out in the said
city, be conveyed by the said Thomas Beall
and John Mackall Gantt, or the survivor of
them, or the heirs of sudi survivor, to him,
the said David Bums, his heirs and assigns,
and that the said other lots shall and may
be sold at any time or times in such man-
ner and on such terms and conditions as the
President of the United States for the time
being shall direct, and that the said Thomas
049
17* -175
SUPBEICS COUBT OP THB UKITED StATCS.
Oct. Tnu.
tural or horticultural purpose; for the reor-
ganization of the wards of the cities and for
elections therein. It appeared from the census
of 1885 that only the ci^ of Dee Moines was
affected hy the act of 1890, and that in the
added territory were one ci^ and seven
incorporated towns. The proylsions of the
met by which the municipal ffoyemments,
other than tiie city of Dee Moines, were to
become extinct, and the entire territory to
become one corporation and municipality
were observed, so that in April, 1800» the
change was complete, since which time the
eity of Des Moines has been thus constituted
and has exercised throughout the territory
the rights and functions of a city ffovern-
ment, Including the levy and collection of
taxes, establishinflf, opening, vacating, chang-
ing, and improving streets, the making of
eontracts, and the creating and payment of
debts.
These details, while appearing in the re-
|I73]port in 96 Iowa, are *not set up in the com-
plainant's bUl, but their substance is shown
in the allegations therein made, that the
town has c^sed to exercise all the functions
of government ana taxation, and the city of
Des Moines and the board of public works
are themselves exercising the functions of
government over the town territory.
After the court in the quo warranto case
liad determined that the act was local legis-
lation, and of that class prohibited by the
Constitution, and therefore void, the opinion
therein continues as follows:
"It is next to be determined whether or
not, with the law ffiving rise to the annexa-
tion abeolutely voia, the legality of the pres-
ent citj organization can be sustained under
the Tme of estoppel or laches. On this
branch of tiie case a large number of author-
ities have been cited, aiM the newness of the
^uesUon, as well as the great interests in-
volved, make it one of ^eat importance. The
foundation for the application of the doctrine
of estoppel is the conseauence to result from
a judgment denyins to toe city of Dee Moines
municipal authority over the territory an-
nexed, after the lapse of four years, during
which time such authority has been exer-
cised, and the changed conditions involving
extensive public and private interests. It
will be remembered that the act of annexa-
tion resulted in the abandonment of eight
municipal governments, which before the an-
nexation were independent, and bringing
them under the single government of the city
of Des Moines. This involved a vacation of
all offices in the city and towns annexed, and
the delivery of all public records and proper-
ty to the officers cliosen for the city so en-
larged. For four years taxes have been lev-
ied, collected, and expended under the new
conditions; public improvements have been
made, including some miles of street curb-
ing, paving, and sewerage, for which certifi-
cates and warrants have been issued, and
contracts are now outstanding for such im-
Srovenients. In brief, with the statement
liat for the four years the entire machinery
of city government has been in operation,
the situation may be better imagined than
expressed. It is hardly possible to contem-
938
plate the situation to result frofD*a jiidgmeBt(174;
dissolving the preseot dtj organixatioe, tad
leaving the territory lonnerly embnced
within corporate lines as it would be left
Of all the cases to which we are cited^ involv-
ing the validity of municipal organnatiooi^
where the consequences to result from a
judgment of avoidance are considered, not
one presents a case of such uncertainty, nor
where there are the same grounds for seri-
ous apprehension, because of diAealties in
adjusting rights in this case."
The court then cited several cases in which
the doctrine of laches had been applied te
sustain a municipal government where the
organization, as attempted, was illegaL Sec
State V. Leatherman, 38 Ark. 81 ; Jametom
V. People, 16 111. 257 [63 Am. Dec 304];
People V. Maynard, 15 Mich. 463; and also
the following from Cooley on ConstitutioDal
Limitations (page 312, 4th ed.) :
''In proceedings where the question of
whether a corporation exists or not arises
collaterally, the courts will not permit its
corporate character to be questioned, if it
appears to be acting under color of law, and
recognized by the stato as sudi. . . .
And the rule, we apprehend, would be no dif-
ferent if the Constitution itself prescribed
the manner of incorporation. Evoi in sndi
a case, proof that the corporation wma acting
as such, under legislative action, would be
sufficient evidence of right, except as against
the state, and private parties could not enter
any question of regularity. And the state
itself may justly be precluded on principles
of estoppel, from raising any such objection,
where tnere has been long aoquieacence and
recognition."
Continuing with its own opinion, the court
stated :
"This, it is true, is a direct proeeedinc by
the state. And, while the language usm is
applied in part to collatoral proceedings, it
seems also to include actions by the state
directly. The learned writer sustains this
text by a reference to People v. Majfnard,
supra, Rumeey v. People, 19 N. Y. 41, and
banning v. Carpenter, 20 N. Y. 447. It will
be seen that importance is given to the fact
that the defective organization takes place
under color of law. Nothing less can be
said of the annexation in this case than that
it was made under color *of law. 'Color of[lTf]
law' does not mean actual law. 'Color,' as
a modifier, in legal parlance, means 'appear*
ance as distinguished from reality.' Color
of law means 'mere semblance of legal right.'
(Kin. Law Diet k Gloss). In some of
the cases the defects as to organization have
been spoken of as irregularities, becsose of
which appellant thinks the cases not ^V^
cable, bcKrause this is a void proceeding. The
term 'irregularity* is oftoner applied to
forms or rules of procedure in practice than
to a nonobservance of the law in other ways,
but it has application to both. It is defined
ss a 'violaUon or nonobservance of ertab*
lished rules and practices.' The annexation
in question was a legal right under the law,
independent of the act held void. It was noi
a void thing, as if prohibited by law. The
174 U. •.
M0BBI8 Y. United States.
206-209
ibnee al<N[ig tlie middle of said road to a
itone standing on the east side of the Reedy
Brandi of Gkx>se creek, thence southeaster-
J, making an angle of sixty-one degrees and
^ren^ minutes with the meridian, to a stone
itanding in the road leading from Bladens-
)aTgh to the Eastern Brandk Ferry, thence
mdh to a stone eighty poles norui of the
isrt and west line already drawn from the
noath of Goose creek to the Eastern Branch,
;heii east parallel to the said east and west
ine to the Eastern Branch, then with the
inters of the Eastern Branch, Potomac
river, and Rock creek, to the beginning.
By section 2, that portion of the "territory
!tlled Columbia," Mying within thelimiteof
;he state, there was ceded and relinquished
4) the Congress and the government "full and
ibsolute right and exdusive Jurisdiction, as
pell of soil as of persons residmg or to reside
thereon," but providing that nothing therein
contained should be so construed to vest in
the United States any right of property in
the soil as to affect the righte of indi\idual8
therein otherwise than the same shall or may
be transferred by such individuals to the
United States, and that the jurisdiction of
the laws of the stete over the persons and
property of individuals residing within the
limits of the cession should not cease or de-
termine until Congress should by law pro-
vide for the government thereof.
By section 3 it was provided that "all per-
BoiiB to whom allotmente and assignmente of
knds shall be made by the conmiissioners,
or any two of them, on consent or agreement,
or, pursuant to the act, without consent,
flhall hold the same in their former estete
snd interest, and as if the same had b^n
actuaUy reconveyed pursuant to the said
deed in trust."
By section 5 it was enacted that "all the
lots and parcels which have been or shall be
sold to raise money shall remain and be to
the purchasers, according to the terms and
conditions of their respective purchase";
and that a purchase, when made from one
claiming title and, for live years previous
to the stetute, in possession, either actually
or constructively, through those under whom
he claimed, was rendered unassailable, and
that the true owner must pursue the pur-
chase money in the hands of the vendor.
Section 7 enacted that the commissioners
iQight appoint a clerk of recording deeds of
land within the said territory, who shall pro-
^de a proper book for the purpose, and
therein record, in a strong, legible hand, all
deeds, duly acknowledged, of lands in the
said territory delivered to him to be re-
corded, and in the same book make due en-
tries of all divisions and allotmente of lands
and lots made by the commissioners in pur-
suance of this act, and certificates granted
uy them of sales, and the purchase money
having been paid, with a proper alphabet
in the same book of the deeds and entries
ttoreaaid.
] .*By section 9 it was enacted that the com-
missioners "shall direct an entry to be made
in the said record book of every allotment
and assignment to the respective proprietors
in pursuance of this act"
^•^4 V. 8.
By section 12 it was declared that until
the assumption of legislative power l^ Con-
gress the commissioners should have power
to "license the building of wharves in the
waters of the Potomack and the Eastern
Branch, adioining the said city, of the ma-
terials, in the manner and of the extent they
may judge durable, convenient, and agree-
ing with general order; but no license shall
be granted to one to build a wharf before the
land of another, nor shall any wharf be built
in the said waters without a license as afore-
said; and if any wharf shall be built with-
out such license, or different therefrom, the i
same is hereby declared a common nuisance;
they may also, from time to time, make reg-
ulations for the discharge and laying of bal-
last from ships or vessels lying in the Poto- t
mack river above the lower line of the said
territory and Georgetown, and from ships
and vessels lying in the Eastern Branch."
2 Kilty, Laws of Maryland, chap. 45.
While the transactions were taking place
between the commissioners and the several
proprietors, and which culminated in the
deeds of conveyance by the latter to Beall
and Gantt, negotiations were goin^ on be-
tween the President and the commissioners
on the one hand, and the owners of lots in
CarroUsburffh and Hamburgh on the other.
Without fofiowing these negotiations in de-
teil, it seems sufficient to say that an agree-
ment su1)stentially similar to the one of
March 13, 1701, was reached with those lot-
owners, and that the territory of those ad-
jacent villages was embraced in the Presi-
dent's proclamation of March 30, 1791.
By a letter conteincd in the record, dated
March 31, 1791, from President Washington
to Thomas Jefferson, Secretary of Stete, it
appears that Major L'Enfant was, after the
sioresaid agreemente had been reached, di-
rected by the President to survey and lay off
the city; and the President further stated
in that letter that "the enlarged plan of this
agreement having done away the necessity,
and indeed postponed *the propriety, of dee [209]
ignatins the particular spot on which tlic
public buildings should be placed imtil an
accurate survey and subdivision of the whole
ground is made," he has left out of the proc-
lamation the paragraph designating the sites
for the public buildings.
On August 19, 1791, Major L'Enfant ]jre-
sented to the President his plan of the city,
accompanied with a letter, describing the
plan as still incomplete, and making several
suggestions, particularly one to the effect
that sales should not be made till the com-
pletion of his scheme for the city and the
public buildings should be completed.
On December 13, 1791, the President sent
to Congress a communication in the follow-
ing terms: *1 place before you the plan of
the city that has been laid out within the
district of ten miles square, which was fixed
upon for the permanent seat of the govern-
ment of the United Stetes.*'
Afterwards, on February 20, 1797, on the
occasion of a complaint by Mr. Davidson of
certain deviations from this plan by Major
Ellicott, who succeeded Major L'Enfant as
surveyor. President Washington, in a letter
051
189-101
SUPBEMB COUBT OF THS UNITED STAIS8.
Oct. Tuui,
name as reoeiver, then as the representatiye
and custodian of the estate he can, subject
to the supervision of the court, bind it by ad-
missions made in good faith in the progress
of the litigation. And as in the appellate
<x)urt, aiter the appeal had been perfected, he
being the only party to the appe^, admitted
that it was a just claim a^^ainst the mortga-
gor SfHd within the priority over the mort-
gage prescribed in the order of appointment,
Sis a<unission showed that the allowance was
right, and that the decree ought to be af-
firmed. ^ But still, until that admission was
made, there was a pending dispute, and he
was a proper person to appeal from the al-
lowance.
Fourth. He may appeal from an order or
decree which affects his personal rights, pro-
vided it is not. an order resting in the discre-
tion of the court. Thus he may not appeal
from an order dischar^ng or removing him,
or one directing him in the administration
of tiie estate, as for instance to issue receiv-
er's certificates, to make improvements, or
matters of that kind, all of wnich depend on
tiie sound discretion of the trial court. He
may appeal from an order disallowing him
commissions or fees, because that affects him
personally, is not a matter purely of discre-
tion, and does not delay or interfere with the
orderly administration of the estate.
Fifth. His» right to appeal from an allow-
ance of a claim against the estate does not
necessarily fail when the receivership is ter-
minated to the extent of surrendering the
Property in the possession of the receiver,
t is a common practice in courts of equity,
anxious as they are to be relieved from the
care of property, to turn it over to the par-
ties hela entitled thereto, even before the fi-
nal settlement of all claims against it, and
}lQO]at *the same time to leave to the receiver the
further defense of such claims, the party re-
ceiving the property giving security to abide
by any decrees whioh may finally be entered
against tlie estate. An admission that the
railway property had been turned over to
the purcnaser is not therefore of itself con-
clusive against the right of the receiver to
appeal. And the fact that the trial court
allowed the appeal must in the appellate
court be taken^ in the absence of other evi-
dence, as sufficient authentication that such
reservation of authority had been made in
the order directing the surrender of the prop-
er^.
It seems unnecessary to say more. We
have indicated, so far as it can safely be done
by general propositions, the powers of a re-
ceiver in respect to appellate proceedings.
We are of opinion that tne decree of the court
of appeals should have been one of affirm-
ance, and to that extent it is modified. Un-
der the admissions of the receiver the cost
of the appellate proceedings should be paid
by him, and this notwithstanding, in our
judgment, the formal order of the court of
api^als dismissing the case was incorrect.
The judgment of Vie Circuit Court ii af-
firmed at the oott of the appellant.
944
ELIZABETH M. HUMPHRIES, by Bm\
Next Friend, John W. Hnmpkrio, nf
in Err,,
«.
DISTRICT OF OQUJMBIA.
(See & a Reporter's ed. l»»-lMu)
Sealed verdict rendered im
tkejwrp.
The absence of the foreman of a
111, when the rest of the Jvry Is
sealed verdict, which all stgaed, is
merely a matter of error, and docs
der a Jndgment entered im the
lity, or subject to a motion to
succeeding term of ooort.
if — ^
Hi
t
I
•( m
[Na 230.]
Argued April 4* i899. Decided JTsy I
1899,
IN ERROR to the Court of \ppcsk ef tv.
District ol Columbia to review a 4cq»* -t
of that court reversing a dedsioB of tkt »*
preme Court of the District mad iimsiiiT
the case with instructions tovaeate the jsct
ment and set aside the verdict and to sw<
a new trial, on the ground that the majmi
verdict was not retunied in the fMutsu r-'
all the jurors. Judgmemt cf Court ef Ir
peala reversed, and case remanded wib m-
structions to affirm the judgment of tht Ss-
preroe Court of the District ol Oiluafca
See same case below, IS App. D. C Itt
*y«
statement by Mr. Justice
*This case is before nson error to thtem'.l
of app^s of the District of Oolnmbis. TW
fvcts are these: On May 22, 1896, the pli»
tiff in error filed an amended dsriaritws a
the supreme court of the district,
damages from the defendant, now
in error, on account of injuries
defective condition of the bridge
Washington and Anaeostisr
suiting fnmi the negligence of the
A jury was impai^lM, trial had, sai tk>
case submitted to it on Novembo' M. «^
instructions to return a sealed wrdkt TW
instructions and the verdict were tHvad
on the mominff of December 1, aad vtft ■
the following form:
When the jury agree upoa a rmdUL «t*
it out, all of the jurors rin it, date tt. wl
it up and deliver to the rorcBsaB, t» kt 4^
livered in ofen court on the 1st day «f ^
cember, 1896, and in thm prsisnes ef il «^
sign it.
Elliabeth M. Hum-
phries
vs.
The District of Co>
lumbia.
No. S8281. At Us.
Dated Novenhv^ 91 IM
We, the iuron sworm to try thi itfi
1T4 «. t
998.
HuMPHBiBS y. District of Columbia.
191-194
uned in the aboT» entitled *cauae, find said
«ue in favor of the plaintiff, and that the
loney payable to him by the defendant is
be stun of seven thousand dollars and — -
iiU ($7,000.00).
All sign:
[ichael Keegan.
y. H. St. J^n.
reo. W. Bearden.
ames D. Avery,
tornard F. Locrait.
rto. W. Amiss.
Letter G. Thompson.
Wm. J. Tubman.
John T. Wright.
Jos. I. Farrell.
Isaac N. Rollins.
Thos. J. Giles.
The proceedings on December 1 are thus
tated m the record:
"Omie here again the parties aforesaid in
nanner aforesaid, and the same jury return
nto court, except John T. Wright, who does
lot appear, and having said sealed verdict
n his possession as foreman sends the same
4) the court by Dr. MeWilliams, who delivers
he same to the court with the statement
;hat the said John T. Wright is ill and con-
Ined to hie bed and physically unable to ap-
pear in court; thai ne, said MeWilliams, is
iis attending physician, and as such re-
leived from said Wright said sealed verdict
irith direction to deliver it to the court;
trh«reupon the defendant, by its counsel, ob-
jected to the reception, opening, and reading
>f said sealed verdict; whereupon, in answer
to the questions of the court, the remaining
JTUors severally on their oath say that they
severally sifi:ned said verdict, and that they
law said Jcmn T. Wright sign the same, and
that the name 'John T. Wright,' signed there-
to, is in his handwriting; 'thereupon the re-
maining jurors on their oath say they find
laid issue in favor of the plaintiff and as-
sess her damages by reason of the premises
as seven thousand dollars ($7,000).^
The oouneel for the defendant ask that
the jury be polled, which is done, and each
of said* remaining jurors on his oath says
that he finds said issue in favor of the plain-
tiff and aseeseee her damages by reason of
the premises at $7,000."
Upon this verdict a judgment was entered.
Proceedings in error were taken, but were
lismissed by the court of ^appeals on account
of a failure to have the biU of exceptions
prepared in time. Thereafter, and at a suc-
eeeoing term, the defendant filed a motion to
vacate tiie judgment on the ground that
there was no valid verdict, which motion was
oremiled. On appeal to the oourt of ap-
peals this decision was reversed and the case
remanded, with instructions to vacate the
judgment, to set aside the verdict and award
a new trial. 12 App. D. C. 122. This ruling
was based on the proposition that the ver-
dict was an absolute nullity, and therefore
the judgment resting upon it void, and one
whidi could be set aside at any subsequent
term.
Ifr. Arthur A. Btmey for plaintiff in
error.
Messrs. 8. T. Thonuui and A. B. DaTall
for defendant in error.
delivered the opinion
I •Mr. Justice
of the court:
The single question presented by the rec-
174 U. 8. U. a, Book 43. 60
ord, the right to review which is sustained
by Phillips V. Negley, 117 U.S. 665 [29;
1013], is whether the verdict, returned under
the circumstances described, was an absolute
nullity^ or, at least, so far defective that no
valid judgment could be entered upon it.
Such is the contention of the defendant. On
the contrary, the plaintiff insists that what-
ever irregularities may have occurred, or be
apparent in the proceedings, they are sim-
ply matters of error, to be corrected on di-
rect proceedings within the ordinary time,
and in the customary manner for correcting
errors occurring on a trial. Is the defect or
irregularity disclosed a mere matter of er-
ror or one which affects the jurisdiction?
The opinion of the court of appeals, an-
nounced by Mr. Justice Morris, is an exhaus-
tive and able discussion of the question, ar-
riving at the conclusion that the verdict was
an absolute nullity, and therefore the judg-
ment, based upon it, one that could be set
aside, not merdy at the term at which it was
rendered, but at an3r subseouent term.
* While appreciating fultv the strength of [194}
the argument made by the learned judge, we
are unable to concur in the conclusions
reached. That the verdict returned ex-
pressed at the time it was si^ed the deliber-
ate judgment of the twelve jurors cannot be
questioned. That it remained the judgment
of the eleven at the time it was open<^ and
read is shown by the poll that was taken,
and thai it was still the judgment of the ab-
sent juror at the time he forwarded it to the
court is evident from the testimony. So
the objection runs to the fact that at the
time the verdict was opened and read each
of the twelve jurors was not polled, and
each did not then and there assent to the ver-
dict as declared. That generally the right
to poll a jury exists may be conceded. Its ob-
ject is to ascertain for a certainty that each
of the jurors approves of the verdict as re-
turned ; tha/t no one has been coerced or in-
duced to sign a verdict to which he does not
fully assent. It is not a matter which is
vital, is frequently not required by litigants ;
and while it is an undoubted right of either,
it is not that which must be found in the
proceedings in order to make a valid verdict.
Take the case suggested on argument. Sup-
posing the twelve jurors are present, and the
defeated party insists upon a poll of the jury
and that right is denied, can it be that a ver-
dict returned in the presence of the twelve
by the foreman, without dissent, is by rea-
son of such denial an absolute nullity? Is
not the denial mere error, and not that which
goes to the question of jurisdiction? There
are many rights belonging to litigants —
rights which a court may not properly deny,
and yet which if denied do not oust the ju-
risdiction or render the proceedings absolute-
ly null and void.
The line of demarcation between those rul-
ings which are simply erroneous and those
which vitiate the result may not always be
perfectly clear, and yet that such demarca-
tion exists is conceded. This ruling of the
trial court, conceding it to be error, is on the
hither side of this line, and could only be
taken advantage of by proceedings in error.
945
194-106
SUPBEME COUBT OF THE U^CITEO STATES.
Oct.
It is not so vital as to make the verdict a nul-
lity or the judgment entered thereon void.
Suppose, after the jury, a4; the end of a pro-
tracted trial, have agreed upon the verdict
[195]and oome into *oourt to announce it, and after
it has been read in open oourt but before a
poll oan be had one of the jurors is sudden*
ly stricken dead, can it be that the whole pro-
ceeding theretofore had become thereby a
nullity T Can it be that after each of the ju-
rors has signed the verdict and after it has
been returned and each is present ready to
respond to a poll, the mere inability to
complete the poll and make a personal appesd
to each renders the entire proceedings of the
trial void? We are unable to assent to such
a conclusion. The right to poll a jury is
certainly no more sacred than the right to
have a jury, and under many 8ta4;utes a trial
of a case, in which a jwrj ia a matter of
right, without a waiver mereof, haa again
and again been held to be erroneous and sub-
1'ect to correction by proceedings in error.
iut it is also held that an omission from the
record of any such waiver is not fatal to the
judgment.
*'The fourth is to the effect that the judg-
ment in the Kansas court was void because
the cause was tried by the oourt without the
waiver of a trial by jury entered upon the
journal. Whatever might be the effect of
this omission in a proofing to obtain a re-
versal or vacation of the judgment, it is very
certain that it does not render the judgment
void. At most it is only error, and cannot be
taken advantage of collaterally." Mawu>eU
T. Stewart, 21 Wall. 71 [22: 564]. See also
same case, 22 Wall. 77 [22: 564], in which
it was said : "A trial by the court, without
the waiver of a jury, is at most only error."
If a trial without a jury, when a jury is
a matter of right and no waiver appears of
record, is not fatal to the judgment, a forti-
ori the minor matter of failing to poll the
jury when it is clear that the verdict haa re-
ceived the assent of all the jurors, cannot be
adjudged a nullity, but must be regarded as
simply an error, to be corrected solely by di-
rect proceedings in review. See, in reference
to the distinction between matters of error
and those which go to the jurisdiction, the
following cases: Ex parte Bigelow, 113 U.
S. 328 [28: 1005]; Re Coy, 127 U. S. 731
[32: 274]; Re Belt, 159 U. S. 95 [40: 88];
Re Eckart, 166 U. S. 481 [41: 1085].
riOAi ^® ^^^ ^^ opinion that the defect com-
l**'jplained of was merely •a matter of error, and
does not render the verdict a nullity. The
judgment of the Court of Appeals will there-
fore he reversed and the case remanded witii
instructions to affirm the judgment of the
Supreme Court of the District of Columbia.
MARTIN F. l^ORRIS et al, AppU,,
v.
UNITED STATES.
(See S. C Beporter'8 ed. 196-359.)
Potomac river embraced in original charter
of Maryland— the navigable waters and
946
soils under them passed as « pmklic t'^mai —
such rights subsequently became tesiM i«
the state — confiscation acts of Mvylmmd —
valid acts—4reaiies of 1783 oj^ IT^i—
equitable obligation — rights of Mer^kmU
heUrs — resolution of Congress of 18S9--
Maryland decision — jurisdietiom of the
Land Office — patent, when void pmttmt t»
John L, KidweU return of ptnhaM
money—ichen oonveyafice from trmetee teiS
be assumed — riparian rights on the ^
iomao — riparian rights ^ Chesepeeks S
Ohio Canal CofApany — ripariem rights ^
lotowners — evidence — deeres ijliwrf
Maryland act of IBTtl-AittU hg edmnm
possession — title by failurs to open Weim
street — owners of wharves and wm iknmm^
when entitled to compenBofiom — li tf
wharves and warehouses.
1. The diarter granted to Lord TtilMawi Ir
Charles I. In 1632, of the Prortaee et Utry
land, embraced the Potomac rlTe* tad tki ■!
under It and the islands tterela. t* U||
water on the eonthem or Ylrslala ihoR.
2. Bj that charter the domlnkm aad pnptMy
In the navigable waters and ia tkc mBi i»
der them pasted as part of the prntpOm
rights annexed to the poUtlctl povos e*
f erred on Lord Baltimore, as a pvlilSe tr« te
the common oae and boieAt of the wWv a»
monlty abont to be established. £Dr
tlon and flsherj, and not as prlTtt*
to be sold for his own emolnmeBt.
8. After the American BevolutloB tkti
right to all navigable waters sad sttk
them, within each state, was held by lti|»
pie for their common ooe, sohject cely ttjli
rights since surrendered by the OoMtfetfM
to the general government.
4. By the confiscation acta of Uupmi d
1781 all the property of the thea tori pm^
tary of Maryland, Inclnding hit rigUi *
any, in the Potomae river and the tidi •^
der it, were confiscated to the ate of cte tfA
5. Such c^mfiscation acts of Maryltti ««« >*
void as in dero^tion of the commtn h* '
of the Constitution and BlU of Ri|kti«Cili
state, nor because Maryland did stC taw tki
power to pass acts of conflscatioa
6. The treaties of 178S and of ITM oi *
Maryland act of 1787 making the ttmss «
1783 the law of the state did aot evcnf »
relieve the lands under the Pototf r***
from such forfeiture and coafltcatka
7. Any equitable obligation of tte tW^
States under Its treaties to rctton tte F9'
erty so confitcated. or to Bak«
therefor, is a matter for Congrctt tt
but is not for the consideratloa of tkt c*i^
In determining the title to proptrty.
8. The heirs of James M. Mtwtofl «■* j
John Marshall have no right, titte. f fc^'g
in any part of the land or wtttr cesf**
any part of the Potomac river, or Iti ii(^ *
charge of the Secretary of Wtr.
9. It was not the Intention of CoaffTMa Ir^
general resolution of 1839. to foftifet I"
lying beneath the waters of the Po*"****]!^
and within the limits of the Vkmkt d o^
ombla, and acquired for pobHr ptfV*
sale by the methods therein provMii
10. The recent decisions of the cotrti d
land, giving to the eUtntes of ttet »*■
construction at variance with thti wW<s JJ*
vailed at the Ume of the ctsiioa tf t»r:
trlct of Columbia, cannot control U»*J^
69Sw
MoBRis ▼. United States.
198
of thli court as to the effect of those stat-
ntes on thtt territory within that District.
L Lands exempted from the Jurisdiction of
the Land Office in 1839 are not brought wlth-
tn that Jorlsdiction becanse the waters of the
Potomac rlyer had so far receded in 1869 as
to permit some sort of possession and occu-
pancy.
1. Where there is an entire want of authority
in the Land Office to grant certain lands held
for public purposes, a patent therefor issued
under a mistaken notion of the law is Told.
1 The patent to John L. Kldwell for the
"Kidwell Meadows'* did not confer upon him
or his aasigns any title or interest In the
property adyerse to the complete and para-
mount right therein of the United States.
4. Where the Inyalidity of the patent was not
apparent on Its face, but was proved by ex-
trinsic evidence in a suit by the United
States, and the controversy respecting the
title was not abandoned by the defendants,
they are not entitled to a decree for the re-
turn of the purchase money or for costs.
(. A conveyance from trustees, which ought
to have been made, will, after a long lapse
of time, be considered by a court of equity
as having t>een made.
6. The holders of lots and squares on the line
of Water street in the city of Washington
are not entitled to riparian rights, or to
rights of private property in the waters or
the reclaimed lands between Water street and
the navigable channels of the Potomac river,
unless they can show valid grants from Con-
gress or from the city under the authority
of Congress, or such long and notorious
possession of defined parcels as to justify
a court, under the doctrine of prescription.
In inferring grants ; as the intention, never
departed from since the first conception
of the city, was to establish such a street
along the water front for a common access
thereto.
7. The Chesapeake & Ohio Canal Company
does not, either as to lots procured from pri-
vate owners, or as to lands occupied under
the permission of Congress and of the city
authorities, own or possess riparian rights
along the line of its canal within the limits
of the city.
B. No riparian rights belong to lots north
of Water street, between Seventeenth street
west and Twenty-Seventh street west, as that
street Intervenes between such lots and the
channels of the river.
X No effect can t>e given to the book marked
"Register of Squares*' as contradicting or
overriding the plans of the city as adopted
by the President.
). The decree of the court below as to the
claim of the descendants of Robert Peter to
certain lands near the Observatory grounds,
is affirmed.
L. The Maryland act of December 19. 1791,
authorising licenses for wharves until Con-
gress shall exercise jurisdiction, did not con-
fer any rights to erect and maintain perma-
nent wharves within the waters of the Poto-
mac river and the Eastern Branch.
2. Where lands and waters are owned by the
government in trust for public purposes, and
are withheld from sale by the Land Depart-
ment without any renunciation of, or failure
to exercise, jurisdiction and control over
them, an adverse possession, however long
continued, will not create a title.
\. The failure to construct and open Water
74 U. 8.
street between 18 V^ street and Maryland
avenue does not create any title in the owners
of land to the water front for wharfing and
other purposes.
24. Owners of expensive wharves and ware-
houses erected and maintained, under express
or implied licenses from the city authorities,
on the water front along the Potomac river,
are not to be treated as trespassers In taking
the premises for a government Improvement,
but are entitled to compensation for the valua
of their private interests in the structures.
26. The final determination of all the rights
in question, contemplated by the act of Con-
gress of 1886. providing for the determina-
tion of Interests In the Potomac river flats,
should *nclude the determination of the value
of wharves and warehouses owned by li-
censees and standing on lands belonging to
the government
INo. 49.]
Argued October 26, 27, 28, SI, November 1,
2, S, 4f 7, 1898. Decided May 1, 1899.
ON APPEAL from a decree of the Supreme
Court of the District of Columbia in a
suit in equity brought by the United States,
plaintiff, against IkOirtin F. Morris et ah, de-
fendants, under an act of Congress to pro-
vide for protecting the interests of the
United States in the Potomac river fiats in
the District of Columbia, approved August
15th, 1886, settling the rights, titles, ana in-
terests of defendants in and to the waters in
and the soil under the Potomac river in the
city of Washington, and District of Colum-
bia, and their riparian rights on said river,
in said city.
Decree affirmed as to the claims of the
Marshall heirs, and as to the Kidwell patent;
and as to the several claims to riparian
rights as appurtenant to lots bounded on the
south by Water street the case is remanded
for further proceedings.
See same case below, 23 Wash. L. Rep. 745.
Statement by Mr. Justice SHlrass
•The act of Maryland, entitled "An Act to[108]
Cede to Congress a District of Ten Miles
Square in This State for the Seat of the Gov-
ernment of the United States,*' was in the fol-
lowing terms : "Be it enacted by the gener-
al assembly of Maryland, that the represen-
tatives of this state in the House of Repre-
sentatives of the Congress of the United
States, appointed to assemble at New York
on the first Wednesday of March next, be
and they are hereby authorized and required,
on behalf of this state, to cede to the Con-
gress of the United States any district in
this state, not exceeding ten miles square,,
which the Congress may fix upon and accept
for the seat of government of the United
States." Kilty's Laws of Maryland, chap.
2, p. 46.
On December 3, 1789, by an act entitled
"An Act for the Cession of Ten Miles Square,
or Any Lesser Quantity of Territory within
This State, to the United States, in Congress
Assembled, for the Permanent Seat of tht
General Government," Virginia ceded to the
Congress and government of the United
States a tract of country not exceeding ten
947
194-196
Supreme Coubt of tue U:?iteo States.
Oct.
It is not so rital as to make the verdict a nul-
lity or the judfinnent entered thereon void.
Suppose, after the jury, at the end of a pro-
tracted trial, have agreed upon the verdict
[105]and come into *court to announce it, and after
it has been read in open court but before a
poll can be had one of the jurors is sudden*
fy stricken dead, can it be tliat the whole pro*
ceeding theretofore had become thereby a
nullity? Can it be that after each of the ju*
rors has signed the verdict and after it has
been returned and each is present ready to
respond to a poll, the mere inability to
complete the poll and make a personal appeal
to each renders the entire proceedings of tho
trial void? We are unable to assent to such
a conclusion. The right to poll a jury is
certainly no more sacred than the right to
have a jury, and under many statutes a trial
of a case, in which a junr is a matter of
right, without a waiver tnereof, has again
and again been held to be erroneous and sub-
i'ect to correction by proceeding in error.
)ut it is also held that an omission from the
record of any such waiver is not fatal to the
jud^ent.
"The fourth is to the effect that the judg-
ment in the Kansas court was void because
the cause was tried by the court without the
waiver of a trial by jury entered upon the
journal. Whatever might be the effect of
this omission in a proofing to obtain a re-
versal or vacation of the judgment, it is very
certain that it does not render the judgment
void. At most it is only error, and cannot be
taken advantage of collaterally." McuotoeU
T. Sietcari, 21 Wall. 71 [22: 564], See also
same case, 22 Wall. 77 [22: 564], in which
it was said : "A trial by the court, without
the waiver of a jury, is at most only error."
If a trial without a jury, when a jury is
a matter of right and no waiver appears of
record, is not fatal to the judgment, a forti"
ori the minor matter of failing to poll the
jury when it is clear that the verdict has re-
ceived the assent of all the jurors, cannot be
adjudged a nullity, but mtist be regarded as
simply an error, to be corrected solely by di-
rect proceedings in review. See, in reference
to the distinction between matters of error
and those which go to the jurisdiction, the
following cases: Ex parte Bigeloto, 113 U.
S. 328 [28: 1005]; Re Coy, 127 U. S. 731
[32: 274] ; Re Belt, 159 U. S. 95 [40: 88];
Re Eckari, 166 U. S. 481 [41: 1085].
We are of opinion that the defect com-
l*'®Jplained of was merely 'a mattor of error, and
does not render the verdict a nullity. The
judgment of the Court of Appeals toill there'
fore he reversed and the case remanded with
instructions to affirm the judgment of the
Supreme Court of the District of Columbia.
MARTIN F. I^ORRIS et al,, Appts.,
V,
UNITED STATES.
(See S. C Reporter's ed. 196-359.)
Potomac river embraced in original charter
of Maryland^-^the navigable uxiters and
046
soils under them passed as a puhUc
such rights subsequentljf became veUed «•
the state~r-oonfisoati<m acts of Msiylmmd —
valid acts— treaties of 1785 and i7»^
equitable obligation — rights of MarskaS
heirs — resolution of Congress of JSS9—
Maryland decision — jurisdktum of fW
Land Offloe — patent, when void-^pat^i to
John L. KtdwM-^r^um of pmtkoM
money — when conveyance from tnuitee wui
be assumed — riparian rights om tks ^
tomac — riparian rights of Chestpeaks S
Ohio Canal Coiiipany — ripariem rights tf
lotoumers — evidence — daorw afrmsi
Maryland act of ISH—tiUe by edsmm
posses8%on^-4itle by failure to open Wsiar
street—owners of wharves and tpii fiiin%
when entitled to compenfotitm mJes ^
wharves and warehouses.
1. The charter granted to Lord HilM—i Iv
Charles L In 1032, of the Prortsce si Hatf
land, embraced the Potomac river tad tkft ■•
nnder It and the ialandf therelB, ts Mil
water on the •oothem or YliflBU Aon.
2. By that charter the dominion aad pnpriiQ
In the navigable waten and ta the met m
der them pasaed as part of the pnnp£l«
rights annexed to the political pows tm-
ferred on Lord Baltimore, as a poUk tiMfis
the common use and benefit of the vWt am
mnnlty about to be estabHriied. tat
tlon and fishery, and not as prtrats
to be sold for his own emolnment.
8. After the American Bevolatloa thei
right to all navigable waters sad mik
them, within each state, was held If to l»
pie for their common nse, snbKct eslyt»a»
rights since surrendered by the CsstfMom
to the general goremment.
4. By the confiscaUon acta of Uujtmi d
1781 all the property of the thca tori fim^
tary of Maryland, Including his riffea t
any, in the Potomac rlrer and the tttk m
der It, were confiscated to the nse of tte mtk.
5. Such confiscation acta of Msrytssi vsti*
void as in dero^tlon of the eommm Iff '
of the Constitution and Bill ot Rlfktirf*
state, nor because Maryland did sot km tli
power to pan acts of confiseatioa.
6. The treaties of 1783 and of ITM ttl *
Maryland act of 1787 making the tmO «
1783 the law of the stste did aoC tfe^ '
relleye the lands under the Vtttmse tm
from such forfeiture and coaflscitlea^^^
7. Any equitable obligation of tk« CW
States under its treaties to reston tte |t^
erty so confiscated, or to ssake
therefor. Is a matter for CoagreM t»
but Is not for the consldcratloa of tkt n*-'^
in determining the title to propeitr.
8. The heirs of James M. UsnhsB mi^
John Marshsll hsTe no right tltla. f >— ^
In any part of the land or water e^f"*J
any part of the Potomac rlTSf. or Iti •* '
charge of the Seeretary of Wsr.
0. It was not the Intention of CosfrMi- Ir^*
genersl resolution of 1839. to eiiJKt ^**
lying benestb the waters of the Vftttmsti^
and within the limits of the PtitTW «^t^
nmbia, and acquired fOr psblk f^f^ •
sale by the methods therein prorldfd
10. The recent decisions of tbe eooro d 1I«T^
land, giving to tbe sUtutcs of t^ ^V
construction st Tarlance with tbst •*» JJ*
vailed at the time of the cesrios rf "*j7
trlct of Columbia, cannot eostrol ft^n^
ms.
MoBBis v. Unttbd States.
198
of tblfl court u to the effect of those stat-
itcs on the terrltorj wtthin that District.
lL Lands exempted from the jurisdlctton of
the Land Office In 1839 are not brought with-
in that jorlsdlction because the waters of the
Potomac rlTer had so far receded In 1869 aa
to permit some sort of possession and occu-
pancy.
S. Whare there Is an entire want of authority
In the Land Office to grant certain lands held
for public purposes, a patent therefor Issued
under a mistaken notion of the law Is Toid.
JL The patent to John L. Kid well for the
**Kldwell Meadows** did not confer upon him
or his assigns any title or Interest in the
property adyerse to the complete and para-
mount right therein of the United States.
4. Where the Inyalidity of the patent was not
ipparent on Its face, but was proved by ex-
trinsic eyldence in a suit by the United
States, and the controversy respecting the
title was not abandoned by the defendants,
they are not entitled to a decree for the re-
turn of the purchase money or for costs.
ft. A conyeyance from trustees, which ought
to haye been made, will, after a long lapse
of time, be considered by a court of equity
as haying been made.
A The holders of lots and squares on the line
of Water street In the city of Washington
are not entitled to riparian rights, or to
rights of private property In the waters or
the reclaimed lands between Water street and
the nayigable channels of the Potomac river,
unless they can show valid grants from Con-
gress or from the city under the authority
of Congress, or such long and notorious
possession of defined parcels as to justify
a court, under the doctrine of prescription,
in Inferring grants : as the intention, never
departed from since the first conception
of the city, was to establish such a street
along the water front for a common access
thereto.
7. The Chesapeake & Ohio Canal Company
does not, either as to lots procured from pri-
vate owners, or as to lands occupied under
the permission of Congress and of the city
authorities, own or possess riparian rights
along the line of Its canal within the limits
of the city.
8. No riparian rights belong to lots north
of Water street, l>etween Seventeenth street
west and Twenty- Seventh street west, as that
street intervenes between such lots and the
channels of the river.
9. No effect can be given to the book marked
"Register of Squares** as contradicting or
overriding the plans of the city as adopted
by the President.
0. The decree of the court l>elow as to the
claim of the descendants of Rol>ert Peter to
certain lands near the Observatory grounds,
is affirmed.
1. The Maryland act of December 19. 1791,
authorising licenses for wharves until Con-
gress shall exercise jurisdiction, did not con-
fer any rights to erect and maintain perma-
nent wharves within the waters of the Poto-
mac river and the Eastern Branch.
2. Where lands and waters are owned by the
government in trust for public puri>oses. and
are withheld from sale by the Land Depart-
ment, without any renunciation of, or failure
to exercise, jurisdiction and control over
them, an adverse possession, however long
continued, will not create a title.
). The failure to construct and open Water
74 U. S.
street between ISH street and Maryland
avenue does not create any title in the owners
of land to the water front for wharflng and
other purposes.
24. Owners of expensive wharves and ware-
houses erected and maintained, under expresn
or implied licenses from the city authorities,
on the water front along the Potomac river,
are not to be treated as trespassers in taking
the premises for a government Improvement,
but are entitled to compensation for the value
of their private interests in the structures.
26. The final determination of all the rights
in question, contemplated by the act of Con-
gress of 1886. providing for the determina-
tion of Interests in the Potomac river flats,
should include the determination of the value
of wharves and warehouses owned by li-
censees and standing on lands belonging to
the government.
INo. 49.]
Argued October 26, 27, 28, SI, November 1,
2, 3, 4, 7, 1898. Decided May 1, 1899.
ON APPEAL from a decree of the Supreme
Court of the District of Columbia in a
suit in equity brought by the United States,
plaintiff, against Ikuirtin F. Morris ei al., de-
fendants, under an act of Congress to pro-
vide for protecting the interests of the
United States in the Potomac river flats in
the District of Columbia, approved August
15th, 1886, settling the rights, titles, and in-
terests of defendants in and to the waters in
and the soil under the Potomac river in the
city of Washington, and District of Colum-
bia, and their riparian rights on said river,
in said city.
Decree affirmed as to the claims of the
Marshall heirs, and as to the Kid well patent ;
and as to the several claims to riparian
rights as appurtenant to lots bounded on the
south by Water street the case is remanded
for further proceedings.
See same case below, 23 Wash. L. Rep. 745.
Statement by Mr. Justice Shirass
*The act of Maryland, entitled *'An Act to[198]
Cede to Congress a District of Ten Miles
Square in This State for the Seat of the Gov-
ernment of the United States," was in the fol-
lowing terms : "Be it enacted bv the gener-
al assembly of Maryland, that the represent
tativee of this state in the House of Repre-
sentatives of the Congress of the Umted
States, appointed to assemble at New York
on the first Wednesday of March next, be
and they are hereby authorized and required,
on behalf of this state, to cede to the Con-
gress of the United States any district in,
this state, not exceeding ten miles square,,
which the Congress may fix upon and accept
for the seat of government of the United
States.*' Kilty's Laws of Maryland, chap.
2, p. 46.
On December 3, 1789, by an act entitled
"An Act for the Cession of Ten Miles Square,
or Any Lesser Quantity of Territory within
This State, to the United States, in Congress
Assembled, for the Permanent Seat of th#
General Government," Virginia ceded to the
Congress and government of the United
States a tract of country not exceeding ten
047
198-201
Supreme Coubt of the United States.
Oct. TisM,
miles square, or any lesser quantity, to be
located within the limits of the state, and in
any fvart thereof as Congress may by law di-
rect, in full and absolute right, and exclusive
jurisdiction, as weJl of soil as of persons re-
siding or to reside thereon; providing that
nothing therein contained should be con-
ttrued to vest in the United States any risht
of property in the soil or to affect the rights
of individuals therein, otherwise than the
same shall or may be transferred by such in-
dividuals to the United States; and provid-
ing that the lurisdiction of the laws of the
commonwealth, over the persons and prop-
erty of individuals residing within the Imiits
of the said concession, should not cease or de-
termine until Congress should accept the ces-
sion, and should by law provide for the gov-
ernment thereof under their jurisdiction.
Congress, by an act entitled ''An Aot for
Establishing the Temporary and Permanent
Seat of uke Government of the United
States," approved July 16, 1790, accepted a
district of territory, not exceeding ten miles
square, to be located on the river Potomac;
(199]and authorized the President *of the United
States to appoint commissioners, who should,
under the direction of the President, survey,
and by proper metes and bounds define and
limit, the district, which, when so defined,
limited, and located, should be deemed the
district so accepted for the permanent seat
of the government of the United States. It
was further thereby enacted that the said
commissioners should have power to pur-
olMtse or accept such quantity of land on the
eastern side of said river, within the said
district, as the President should deem proper
for the use of the United States, and accord-
ing to such plans as the President should ap-
prove, and that the commissioners should,
prior to the first Monday in December in
the year 1800, provide suitable buildings for
the accommodation of Congress, and of the
President, and for the public offices of the
Sovemment ; and that on the said first Mon-
ay in December, in the year 1800, the seat
of the government of the United States
should be transferred to the district and
place aforesaid, and that all offices attached
to the government should be removed thereto
and cease to be exercised elsewhere. The
act contained the following proviso: "That
the operation of the laws of the state within
said district shall not be affected by this ac-
ceptance until the time fixed for the removal
of the government thereto, and until Con-
gress shall otherwise by law provide." 1
tat. at L. 130, chap. 28.
On January 22, a. d. 1791, Thomas John-
son and Daniel Carroll, of Maryland, and
Daniel Stewart, of Virginia, were appointed
by President Washington commissioners to
carry the foregoing legislation into effect.
On March 3, 1791, Congress passed an
amendatory act, by which, after reciting that
the previous act had required that the whole
of the district of territory, not exceeding ten
miles square, to be located on the river Po-
tomac, should be located above the mouth of
the eastern branch, the President was au-
thorized to make any part of the territory
below said limit, and above the mouth of
948
Hunting creek, a part of the said district, m
as to include a convenient part of the East-
em Branch and of the lands lyieg oa the lov-
er side thereof, and also the town of Akxu-
dria, and that the territory so to be *iael9ded;]
should form a part of the district aoC a-
ceeding ten miles square for the teat of thi
government, but providing that nothing eoe-
tained in the act should authorize the erw-
tion of the public buildings otherwiM t^
on the Maryland side of the river Potoaae.
On March 30, A. D. 1791, PreOdest Wisk-
ington issued a proclamation describiif tki
territory selected by him for the locatioB d
the seat of government as fcdlowM
"Beginning at Jones' Pinnt, bein^ tke i^
per cape of Hunting creek in Virgnda, »ak
at an angle, in the outset, of toty-ifi de-
grees west of the north, and nmrnng ii •
direct line ten miles for the first list; tihs
b^inning again at the same Jones' Vaiai mi
running another direct line at a ngkt nyh
with the first across the Potomac tei warn
for the second line; then from tht tawaa^
tions of the said first and second liia, m-
ning two other direci lines <4 ta bAb
each, the <Hie crossing the Eastera Btedl
aforesaid and the other the Potoswr. iii
meeting each other in a point.'*
The commissioners w^ aeeordiittf ■1-
structed by the President to have tti aM
four lines run, and to report their setioa
In the meantime intercourse was M ^
tween the commissioners and the priwH
owners of proper^ within the distnet M*
ing to the sale and oonT^janee by the httr
of land on which a Federal city vm ti ki
erected. And the fc^owing agrecBflk «*
signed by the proprietors:
"We, the subscribers, in eooMBntim 4
the great benefits we expect to derivf bm
having the Federal city laid off ipoij^
lands, do hereby ame and hind cmwif^
heirs, executors, and adroinistralon. j»g»
vey in trust, to the President of the Ciiv
States, or conunissioners, or sndi p««**
persons as he shall appoint, by good aiA^
cient deed in fee simple, the vd^Jt of «« i**
spective lands which he may think p^f ^
include within the lines of the ^•dcril dtr
for the following purposes and oa tW m^
tions following:
<<The President shall have the 9tk p^
of directing the Federal dtj to bs lai""
what manner he pleases. He w»j r<»*
any number of squares he may thiak p<«jg
for public improvements, or otkw P*J^
uses, and the lots only •whidi sktU W W*
off shall be a Joint properW between tktr»
tees on bdialf of the public and esck f^"^
proprietor, and the same shall be fsidf 'f'
equally divided between the pnUie oi »
individuals, as soon as may be, afUr tk a?
shall be laid out.
**For the streets the nroprietort w» '•'
ceive no compensation, but for tkf •^•'J*
or lands in any form which shal! b« *»^.*'
public buildings or any kind of ptibtic^
provements or uses, the proprietort, »**•
lands shaU be so taken, shall thib^ ^ *
rate of twenty-five pounds per sere. *» »•
paid by the public The whole wood m ^
189a.
MoRBiB Y. United States.
201-208
tend shall be the property of the proprietors,
bat should any be desired by the President
to be reserved or left standing, the same shall
be paid for by the public at a just and rea-
sonable valuation exclusive of the twenty-
five pounds per acre, to be paid for the land
on which the same shall remain.
''Each proprietor shall retain the full pes-
session and use of his land, until the same
shall be sold and occupied by the purchasers
of the lots laid out thereupon, and m all cases
where the public arrangements as to streets,
lots, etc, will admit of it, eafh proprietor
shall possess his buildings and other im-
provements and graveyards, paying to the
public only one half the present estimated
value of the lands on which the same shall
be, or twelve pounds ten shillings per acre.
But in cases where the arrangements of the
streets, lots, and squares will not admit of
this, and it shall become necessary to remove
such buildings, improvements, etc., the pro-
prietors of uie same shall be paid the rea-
sonable value thereof by the public.
"Nothing herein contained shall affect the
lots which anv of the parties to this agree-
ment may hold in the towns of Carrollsburgh
or Hamburgh.
'*In witn^ whereof we have hereto set our
hands and seals, this thirteenth day of
March, 1791."
Among the signers of this agreement
were Robert Peter, David Bums, Notley
Young, and Daniel Carroll.
Subsequently, in pursuance of the agree-
ment, the several proprietors execute deeds
of conveyance to Thomas Beall and John
Madcall Gantt as trustees.
K] *It will be found convenient, in view of the
Questions that arise in tlie case, to have the
eeds of David Bums and Notley Toung
transcribed in full :
"This Indenture, made this twenty-eighth
day of June, in the year of uur Lord one
thousand seven hundred and ninety-one, be-
tween David Bums of the state of Mary-
land, of the one part, and Thomas B^l (son
of Georffe) and John Mackall Q&ntt of the
state of Maryland, of the other part, Wit-
nesseth: That the said David Bums, for
and in consideration of tlie sum of five shill-
ings to him in hand paid by the lliomas
Beall and John Mackall Oantt, before the
sealing and delivery of these presente, the
receipt whereof he doth hereby acknowledge
and thereof doth acquit the said Thomas
Beall and John Mackall Gantt, their execu-
tors and administraters, and also for and in
consideration of the uses and truste herein-
after mentioned te be performed by the said
Thomas Beall and John Mackall Gantt and
the survivor of them, and the heirs of such
survivor, according to the true intent and
meaning thereof, hath granted, bargained,
sold, aliened, released, and confirmed, and by
these presente doth grant, bargain, sell,
alien, release, and confirm uute the said
Thomas Beall and John Mackall Gantt and
the survivor of them, and the heirs of such
survivor, all the lands of him the said David
Burns, lying and being within the following
limite, boundaries, and lines, to wit: Be-
174 V. M.
ginning on the east side of Hock creek at a '
stone stending in the middle of the road
leading from Georgetown to Bladensburgh,
thence along the middle of the said road to
a stone stending on the east side of the Reedy
Branch of Goose creek, thence southeasterly
making an angle of sixty-one degrees and
twent^Y minutes, with the meridian l:o a stone
stending in the road leading from Bladens-
burgh to the Eastern Branch Ferry, thenoe
south to a stone eighty poles north of the
east and west line already drawn from the
mouth of Goose creek to tlie Eastern Branch,
thence east parallel to the said east and west
lino to the Eastern Branch, Potomack river,
and Rock creek, to the beginning, with their
appurtenances, except all and every lot and
lots of which the said David Burns is seised,
or to which he is entitled, lying in * Car rolls- [208]
burgh or Hamburgh. To have and to hold
the hereby bargained and sold lands, with
their appurtenances, to the &aid Thomas
Beall and John Mackall Gantt, and the sur-
vivor of them, and the heirs of such survivor,
forever, to and for the special trusts follow-
ing, and no other, that is to sav, that all the
said lands hereby bargained and sold, or
such parte thereof as may be thought neces-
sary or proper to be laid out, together with
other lands within the said limite, for a Fed-
eral city, with such streete, squares, parcels
and lots as the President of the United
Stetes for the time being shall approve, and
that the said Thomas Beall and John Mac-
kall Gantt, or the survivor of them, or the
heirs of such survivor, shall convey to the
commissioners for the time being appointed
by virtue of an act of Congress, entitled 'An
Act for Esteblishing the 'J'emporary and Per-
manent Seat of the Government of the United
Stetes,' and their successors, for the use of
the United Stetes forever all the said streete
and such of the said squares, parcels, and
lote, as the President shall deem proper, for
the use of the United Stetes, and that as to
the residue of the lots into which the said
lands hereby bargained and sold shall have
been laid off and divided, that a fair and
equal division of thero shall be made, and if
no other mode of division shall be agreed on
by the said David Burns and the commis-
sioners for the time being, then such residue
of the said lote shall be divided, every other
lot alternate to the said David Burns, and
it shall on that event be determined by lot
whether the said David Burns shall begin
with the lot of the lowest number laid out
on his said lands or the following number,
and all the said lote which may in any man-
ner be divided or assigned to the said David
Bums shall thereupon, toc^ether with any part
of the said bargained and sold lands, if any,
which shall not have been laid out in the said
city, be conveyed by the said Thomas Beall
and John Madcall GaTitt, or the survivor of
them, or the heirs of such survivor, to him,
the said David Bums, his heirs and assigns,
and that the said other lote shall and may
be sold at any time or times in such man-
ner and on such terms and conditions as the
President of the United States for the time
being shall direct, and that the said Thomas
949
n
801-206
Supreme Court of thb United SxATKsf.
Oct. 1
{M4]*Beall and John Mackall G&ntt, or the sur-
vivor of them, or the heirs of such survivor,
will, on the order and direction of the Presi-
dent, oonv^ all the said lots so sold and or-
dered to be conveyed to the respective pur-
diasers in fee simple, according to the terms
and conditions of such purchasers, and the
produce of the sales of tiie said lots when
sold as aforesaid shall, in the first place, be
applied to the payment in money to the said
David Bums, his executors, administrators,
or assigns, for all the part of the lands here-
by bargained and sold, which shall have heext
in lots, squares, or parcels, and appropriated
as aforesaid, to the use of the United States,
at the rate of twenty-fi\e pounds per acre,
not accounting the said streets as part there-
of, and the said twenty-five pounos per acre
being so paid, or in any other manner satis-
fied, that the produce of the same sales or
what thereof may remain as aforesaid in
money or securities of anv kind shall be
paid, assigned, transferred, and delivered
over to the President for the time being, as a
grant of mon^y, and to be applied for the
purposes and according to the act of Con-
gress aforesaid, but the said conveyances to
the said David Bums, his heirs or assigns,
as well as the conveyances to the purchasers,
shall be on and subject to such terms and
auditions as shall be thought reasonable by
the President for the time Ming, for reffulat-
ing the materials and manner of the build-
ings and improvements on the lots generally
in the said city, or in particular streets or
parts thereof for common convenience, safe-
ty, and order ; provided such terms' and con-
ditions be declared before the sale of any
of the said lots under the direction of the
President and in trusts farther, and on the
a^eement that he, the said David Bums,
his heirs and assigns, shall and may continue
his possession and occupation of the said
land hereby bargained and sold, at his and
their will and pleasure until the same
shall be occupiea under the said appro-
priations for the use of the United States
as aforesaid, or by purchasers, and when
any lots or parcels shall be occupied
under purchase or appropriations as afore-
said, then and not till then, shall the
said David Bums relinquish his occupation
thereon. And in trust also as to the
trees, timber, and woods on the premises
[S05]that he, *the said David Burns, his heirs or
assigns, may freely cut down, take, and use
the same as his and their property, except
. such of the trees and wood growing as the
President or ccmimissioners aforesaid may
judge proper and give notice shall be left
for ornament, for which the just and rea-
sonable value shall be paid to the said David
Bums, his executors, administrators, or as-
signs, exclusive of the twenty-five pounds
per acre for the land, and in ca5^ the ar-
rangements of the stfeets, lots, and like will
conveniently admit of it, he, the said David
Burns, his heirs and assigns, shall, if he so
deflire it, possess and retain his buildings and
graveyard, if any, on the hereby bargained
and sold lands, paying to the President at
the rate of twelve pounds ten shillings per
acre, of the lands so retained, because of such
oso
building and graveyards to bt applied m
aforesaid, and the same shall be tbcreapoa
conveyed to the said David Bums, his Win
and assigns, with the lota, but if the sx^
rangements of the streets, lota, and like viil
not conveniently admit of woA ttbtat
tion, and it shj&l become oeeeMaiy to re-
move such buildings, then the said Dtni
Bums, hia executors, adminiatratocs, or it-
signs shall be paid the reesonahk ftlas
thereof in the same manner aa aqoans sr et^
er ground appropriated for the nn of tkt
United SUtes are to be naid for. ^Avl b*
cause it may so happoi tnst by deathi tif
removals of the saia Thomas Beill aid Joka <
Mackall Gantt, and from other eauei^ M^ I
culties may occur in fullr perfecUafr thi ud
trust by executing all the said eoBwepaem,
if no eventual provision ia made, it is tkr*>
fore agreed and covenanted, between iB tki
said parties, that the said Thomas BasO ui
John M. Gantt, or either of thoa, m tki
heirs of either of them, lawfully maj, iii
they at any time, at the request of the Pr»
ident of the United SUies for the tiM kr
ing. will, convey all or anr of the 9ui, In^
hwebv bargaim^ and sold which ihsl i^
then have been conveyed in exeentioB «f thi
trusts aforesaid to such person or ftxwm m
he shall appoint in fee aimple, sobjeet li tkt
trusts then remaining to be ezscated, mi ti
the end that the same may be perfeetal Ai^
it is further agreed and granted bUvvi d
the said parties, and each of the midMitis
doth for himself respectlTely and Hot k»fl
heirs covenant and grant to and witk tb
others of them that he and they shaB, tai
will, if required by the PresidcBt «f tb
United States for the time being, joia ii td
execute any further deed or deeds for mrrf
ing into effect the trusts, porposM, sai tr«
intent of this present deed.
"In witness whereof, the partiei ta 1h»
presents have hereunto interchawesb^ ^
their hands and affixed their scab tkt #f
and year first above written."
The deed of Kotley Toun^ is ii sskit»
tially similar terms.
On December 19, 1791, an additkwl aA
was passed by Maryland, ratifying tht ft'
vious act of cession, and redtioc thst lWh«
Young, Daniel Carroll of Doddi^rlaa •■
many other proprietors of the put ^ tte
land thereinafter mentioned to havi ta
laid out in a city, had come into sa tft^
ment, and had conveyed their laadi fi trs^
to Thomas Beall and John MsHesII OmA.
whereby they subjected their lawh (» ^
laid out as a city, given up part t» tk
United States, and subjected oth«^ ^
to be sold to raise money, as a av**
tion, to be employed aerarding ti ^
act of Conmss for establishiw tht tv
porary and permanent seat of thi f**'
cmmcnt of the United States, wtift tti
upon the terms and oonditiotts eoataiaii n
each of said deeds; that the Presitat m
thereafter directed to be laid o«t apoa m^
lands a city, which has been oaDei th» otr
of Washington, comprehending all tht ha*
beginning on the east side ofRoek cn"'^
a stone standing in the middle of tW rosi
leading from Qeorsetowa to DUifcaifc*?'^'
1T4 «. ^
MoBBis Y. Unitbd States.
206-200
henoe wlmnfg the middle of said road to a
tone standing on the east side of the Reedy
)ranch of Gkx)ee creek, thence southeaster-
Y, making an angle of sixty-one degrees and
went^ nunutes with the meridian, to a stone
tandisg in the road leading from Bladens-
mrgh to the Eastern Brandi Ferry, thence
oath to a atone eighty poles north of the
ast and ^eest line already drawn from the
nouth of Groose creek to the Eastern Branch,
hen east parallel to the said east and west
ine to the Eastern Branch, then with the
iraters of the Eastern Branch, Potomac
•Wer, and Rock creek, to the beginning.
By aection 2, that portion of the "territory
tailed Columbia," *lyinff within the limits of
the state, there was ceded and relinquished
u> the Congpress and the government "full and
absolnte ri^ht and ezdu&ive jurisdiction, as
irell of soil as of persons residmg or to reside
thereony" but providing that nothiDg therein
contained should be so construed to vest in
the United States any right of property in
the soil as to affect the rights of indi\iduals
therein otherwise than the same shall or may
be transferred by such individuals to the
United States, and that the jurisdiction of
the laws of the state over the persons and
property of individuals residing within the
limits of the cession should not cease or de-
termine until Congress should by law pro-
vide for the government thereof.
By section 3 it was provided that "all per-
sons to whom allotments and assignments of
lands shall be made by the commissioners,
or any two of them, on consent or agreement,
or, pursuant to the act, without consent,
BhiEili hold the same in their former estate
and interest, and as if the same had been
actually reconveyed pursuant to the said
deed in trust."
By section 5 it was enacted that "all the
lots and parcels which have been or shall be
sold to raise money shall remain and be to
the purchasers, according to the terms and
conditions of their respective purchase";
and that a purchase, when made from one
claiming title and, for live years previous
to the statute, in possession, either actually
or constructively, through those under whom
be claimed, was rendered unassailable, and
that the true owner must pursue the pur-
chase money in the hands of the vendor.
Section 7 enacted that the commissioners
might appoint a clerk of recording deeds of
land witiiin the said territory, who shall pro-
vide a proper book for the purpose, and
therein record, in a strong, legible hand, all
deeds, duly acknowledged, of lands in the
8aid territory delivered to him to be re-
corded, and in the same book make due en-
tries of all divisions and allotments of lands
and lots made by the commissioners in pur-
suance of this act, and certificates granted
hy them of sales, and the purchase money
having been paid, with a proper alphabet
in the same Dook of the deeds and entries
aforesaid.
•8] ,*By section 9 it was enacted that the com-
niissioners "shall direct an entry to be made
in the said record book of every allotment
and assignment to the respective proprietors
in pursuance of this act."
^74 U. S.
By section 12 it was declared that until
the assumption of legislative power by Con-
gress the commissioners should have power
to "license the building of wharves in the
waters of the Potomack and the Eastern
Branch, adjoining the said city, of the ma-
terials, in the manner and of the extent they
may judge durable, convenient, and agree-
ing with general order; but no license shall
be granted to one to build a wharf before the
land of another, nor shall any wharf be built
in the said waters without a license as afore-
said; and if any wharf shall be built with-
out such license, or different therefrom, the
same is hereby declared a common nuisance ;
they may also, from time to time, make reg-
ulations for the discharge and laying of bal-
last from ships or vessels lying in the Poto- i
mack river above the lower line of the said
territory and Georgetown, and from ships
and vessels lying in the Eastern Branch."
2 Kilty, Laws of Maryland, chap. 45.
While the transactions were taking place
between the commissioners and the several
proprietors, and which culminated in the
deeds of conveyance by the latter to Beall
and Gantt, negotiations were goin^ on be-
tween the President and the commissioners
on the one hand, and the owners of lots in
Carrollsburgh and Hamburgh on the other.
Without foflowing these negotiations in de-
tail, it seems sufficient to say that an agree-
ment sul)stantially similar to the one of
March 13, 1791, was reached with those lot-
owners, and that the territory of those ad-
jacent villages was embraced in the Presi-
dent's proclamation of March 30, 1791.
By a letter contained in the record, dated
March 31, 1791, from President Washington
to Thomas Jefferson, Secretary of State, it
appears that Major L'Enfant was, after the
aforesaid agreements had been reached, di-
rected by the President to survey and lay off
the city; and the President further stated
in that letter that "the enlarged plan of this
agreement having done away the necessity,
and indexed postponed *the propriety, of des [209]
ignating the particular spot on which the
public buildings should be placed until an
accurate survey and subdivision of the whole
ground is made," he has left out of the proc-
lamation the paragraph designating the sites
for the public buildings.
On August 19, 1791, Major L*Enfant pre-
sented to the President his plan of the city,
accompanied with a letter, describing the
plan as still incomplete, and making several
suggestions, particularly one to the effect
that sales should not be made till the com-
pletion of his scheme for the city and the
public buildings should be completed.
On December 13, 1791, the President sent
to Congress a communication in the follow-
ing terms: "I place before you the plan of
the city that has been laid out within the
district of ten miles square, which was fixed
upon for the permanent seat of the govern-
ment of the United States."
Afterwards, on February 20, 1797, on the
occasion of a complaint by Mr. Davidson of
certain deviations from this plan by Major
Ellicott, who succeeded Major L'Enfant as
surveyor. President Washington, in a letter
9S1
209-21d
SUPRCMB COUBT OF THE UNITED STATES.
Oci.
to the oommissioners, said: "Mr. Davidson
is mistaken if he supposed that the trans-
mission of Major L'£nfant's plan of the
city to Congress was the completion thereof.
So far from it, it will appear from the mes-
sage which accompcinied the same that it was
given as matter of information to show what
state the business was in, and the return of
it requested. That neither house of Congress
passed any act consequent thereupon. That
It remained, as before, under the control of
the executive. That afterwards several er-
rors were discovered and corrected, many al-
terations made, and the appropriations, ex-
cept as to the capitol and the President's
house, struck out under that authority, be-
fore it was sent to the engraver intending
that work and the promulgation thereof were
to give it the final and r^ulating stamp."
Subse(}uently dissensions arose between the
commissioners and L'Enfant, which resulted
in the dismissal of the latter, and the em-
ployment of Andrew Ellicott, who, on Feb-
ruary 23, 1792, completed a plan of the city
[S10]and delivered it to tne *President, who, in a
letter to the conmiissi<mers dated March 6,
1792, said: "It is impossible to say with
any certainty when the plan of the cit^ will
be eneraved. Upon Major L'Enfant'iB ar-
rival here^ in the latter part of December, I
pressed him in the most earnest manner to
get the plan ready for engraving as soon as
possible. Finding there was no prospect of ob-
taining it through him, at least not in any
definite time, the matter was put into Mr. El-
licott's hands to prepare aboutthree weeks ago.
He has prepared it, but the engravers who
have unaerteken to execute it say it cannot
certainly be done in lees than two, perhaps
not under three, months. There shall, how-
ever, be every eCTort made to have the thing
effected with all possible despateh."
This so-called Ellicott's plan was engraved
at Boston and at Philadelpnia — ^the engraved
plans differing in that the latter did and the
former did not show the soundings of the
creek and river.
Subsequently, James R. Dermott was em-
ployed to make a plan of the city, which he
ccHnpleted prior to March 2, 1797, and on
that day President* Washington, by his act.
reauested and directed Thomas Beall and
John M. Gantt, the trustee, to convey all
the streets in the city of Washington, as they
were laid and delineated in l^e plan of tfee
city thereto attached, and also the several
squares, parcels, and lote of ground appro-
priated to the use of the United States, and
particularly described, to Gustavus Soott,
William Thornton, and Alexander White,
commissioners appointed under the act ci
Congress.
On July 23, 1798, President Adams, in an
instrument alleging that the plan referred
to in said request and instruction by Presi-
dent Washington as havinff been annexed
thereto had been omitted, declared that he
had caused said plan to be annexed to said
writing, and requested the said Thomas Beall
and John M. Gantt to convey the streete,
squares, parcels, and lote of ground, de-
scribed in the act of the late President of the
United Stetes as public appropriations, to
0S2
i
the said Scott^ Thomt<m, and White,
their successors in office as eommiMio
the use of the United States forefer.
*Loto and parcels of ground
private purchasers, from time to time,
all three of these plans, and eont
have arisen as to the compantirc
ticitv of these plans. The partienlan
in those plane differ are stated and
sidered in the opinion of the court.
On February 27, 1801, Congress paned
act concerning the District <3 O^nkiB.
ite government, and providing; 'tlwt tka
of uie stete of Maryland as they bow
shall be continued in force in that part of tib
said district which was ceded by tbrnt i
By the act of August 2, 1882 (22 fi^
L. 198, chap. 375), Congress made am
priation for "improvin^^ the Potonac
m the vicinity of WashingUm wi^ rd
to the improvement of navigation, tke
lishment of harbor lines, and the
the flate, under the direction of the
of War, and in accordance with the |daa
report made in compliance with the nvcr ad
harbor act approv^ Mardi 3^ 1881, aidtt>
reporte of the Board of Rngintmrs mmk h
compliance with the reeolutkm of the
of Decaid)er 13, 1881."
This act made it the dxtt^ of tht
General to examine all daims of tttla Is
premises to be improved under this
priation, and to institute a suit or •
law or in equity "against any and all
ante of title under any patent which, ii Hi
opinion, was by mistake or was im\
or illegally issued tor aof part odtke
or flate within the limiU of iht
improvement."
By subsequent aete of CongreM fntkrir
propriations were made for eontiaiiln Ifct
improvement, amounting to batwwi tm
and threemiflionsof d<^lars,aiidiBtepn»
cution of the wwk channel! have hm
dredged, sea walls oonstmoied, mad a hqi
area redainoed from the river.
It appearing that daime to tba bail*'
braced within the limite of the i
or to parte of them, were made bj'tht
peake ft Ohio Canal Company, and W m
other oorporaticms and peraons, btiiiii
doimlnff under the patent relerrad (d ii tit
act of 1882, Congress passed the act appnMl
August 5, 1886(24 Stat, at U S35), eiMiA^^
*<An *Act to Provide for PiotaeUi« tW bfltf
tereste of the United SUtes in thtFo
River Flate, in the District of Ootaih
By the first section of this aet it «■•
the duty of the Attorney G«Mral *lo
tute as soon as may be, Uk the aupiiMS
of the District of Colunnbia, a suit agiiMtdl
persons and oorporaticms who may htit «
pretend to have any right, title* dala, m ^
terest in any part ci tM land or water ia fkt
District of Columbia within tba limits rfftt
dtr ci Washinffton or exterior to said ti^
and in front thereof toward tke tkuad ^
the Potomac river, and composing $mj p^
of the land and water affected ^ A f^
provemento of the Potomae river or its ii**
in diarge of the Secretary of War, lor *•
purpose of establishing and makinc dear It*
right of the United SUtes thereto.*
1T4«.^
189a
MOBBIS Y. UnITBD 8TATB8.
206-200
tlieiioe al<»ij; the middle of said road to a
■tone standing on the east side of the Reedy
Branch of Qooee creek, thence southeaster-
Ij, makinf^ an angle of sixty-one degrees and
twen^ minutes with, the meridian, to a stone
standing in the road leading from Bladens-
burgh to the Eastern Branoi Ferry, thence
south to a stone eighty poles norm of the
eadt and west line already drawn from the
mouth of Qooee creek to the Eastern Branch,
then east parallel to the said east and west
line to the Eastern Branch, then with the
waters of the Eastern Branch, Potomac
river, and Rock creek, to the beginning.
By section 2, that portion of the "territory
[SOT]called Columbia," *lyinff within liie limits of
the state, there was ceded and relinquished
to the Oonffress and the government "full and
absolute right and exclusive jurisdiction, as
well of soil as of persons residms; or to reside
thereon," but providing that nothing therein
contained should be so construed to vest in
the United States any right of property in
the soil as to affect the rights of indi\iduals
therein otherwise than the same shall or may
be transferred by such individuals to the
United States, and that the jurisdiction of
the laws of the state over the persons and
property of individuals residing witiiin the
limits of the cession should not cease or de-
termine until Congress should by law pro-
vide for the government thereof.
By section 3 it was provided that "all per-
sons to whom allotments and assignments of
lands shall be made by the commissioners,
or any two of them, on consent or agreement,
or, pursuant to the act, without consent,
shall hold the same in their former estate
and interest, and as if the same had been
actually reconveyed pursuant to the said
deed in trust."
By section 5 it was enacted that "all the
lots and parcels which have been or shall be
sold to raise money shall remain and be to
the purchasers, according to the terms and
conditions of their respective purchase";
and that a purchase, when made from one
claiming title and, for live years previous
to the statute, in possession, either actually
or constructively, through those under whom
he claimed, was rendered unassailable, and
that the true owner must pursue the pur-
chase money in the hands of the vendor.
Section 7 enacted that the commissioners
might appoint a clerk of recording deeds of
land witiiin the said territory, who shall pro-
vide a proper book for the purpose, and
therein record, in a strong, legible hand, all
deeds, duly acknowledged, of lands in the
said territory delivered to him to be re-
corded, and in the same book make due en-
tries of all divisions and allotments of lands
and lots made by the commissioners in pur-
suance of this act, and certificates grant^
by them of sales, and the purchase money
having been paid, with a proper alphabet
in the same book of the deeds and entries
aforesaid.
[208] *By section 0 it was enacted that the com-
missioners "shall direct an entry to be made
in the said record book of every allotment
and assignment to the respective proprietors
in pursuance of this act."
174 U. S.
By section 12 it was declared that until
the assumption of legislative power hy Con-
gress the commissioners should have power
to "license the building of wharves in the
waters of the Potomack and the Eastern
Branch, adioining the said city, of the ma-
terials, in tne manner and of the extent they
may judge durable, convenient, and agree-
ing with general order; but no license shall
be granted to one to build a wharf before the
land of another, nor shall any wharf be built
in the said waters without a license as afore-
said; and if any wharf shall be built with-
out such license, or different therefrom, the <
same is hereby declared a common nuisance;
they may also, from time to time, make reg-
ulations for the discharge and laying of bal-
last from ships or vessels lying in the Poto- t
mack river at>ove the lower line of the said
territory and Georgetown, and from ships
and vessels lying in the Eastern Branch."
2 Kilty, Laws ofMaryland, chap. 45.
While the transactions were taking place
between the commissioners and the several
proprietors, and which culminated in the
deeds of conveyance by the latter to Beall
and Gantt, negotiations were goins on be-
tween the President and the commissioners
on the one hand, and the owners of lots in
Carrollsburgh and Hamburgh on the other.
Without foflowing these negotiations in de-
tail, it seems sufficient to say that an agree-
ment substantially similar to the one of
March 13, 1791, was reached with those lot-
owners, and that the territory of those ad-
jacent villages was embraced in the Presi-
dent's proclamation of March 30, 1791.
By a letter contained in the record, dated
March 31, 1791, from President Washington
to Thomas Jefferson. Secretary of State, it
appears that Major L'Enfant was, after the
aforesaid agreements had been reached, di-
rected by the President to survey and lay off
the city; and the President further stated
in that letter that "the enlarged plan of this
agreement having done away the necessity,
and indeed postponed *the propriety, of de« [209]
ignating the particular spot on which the
public buildings should be placed until an
accurate survey and subdivision of the whole
ground is made," he has left out of the proc-
lamation the paragraph designating the sites
for the public buildings.
On August 19, 1791, Major L'Enfant pre-
sented to the President his plan of the city,
accompanied with a letter, describing the
plan as still incomplete, and making several
suggestions, particularly one to the effect
that sales should not be made till the com-
pletion of his scheme for the city and the
public buildings should be completed.
On December 13, 1791, the President sent
to Congress a communication in the follow-
ing terms: "I place before you the plan of
the city that has been laid out within the
district of ten miles square, which was fixed
upon for the permanent seat of the govern-
ment of the United States."
Afterwards, on February 20, 1797, on the
occasion of a complaint by Mr. Davidson of
certain deviations from this plan by Major
Ellicott, who succeeded Major L'Enfant as
surveyor. President Washington, in a letter
051
tlfi-817
SUPBBME COUBT OF THE UNITED STATEH.
the deed to them from Frederick P&ul Har-
ford as Lord Baltimore's successor in title.
n. The claims of ownership made to part
of the reclaimed land by certain defendants,
who assert title under a patent issued by the
United States through the General Land Of-
fice to John L. Kidwell in the year 1869 for
forty-seven and sevenly-one one-hundredths
(47 71-100) acres and to one hundred and
fifty (150) acres of alleged accretion there-
to; and to another tract, the area of which is
not stated, adjoining the Lonff Bridge and ex-
tending thercarom southwardly between the
Washington and (Georgetown channels, of
which latter tract they claim to be the equit-
able owners under an application for a pat-
ent made by said Kidwell in 1871.
ni. The claims made by the CShesapeake
& Ohio Canal Company and its lessee, Henry
H. Dodge, to riparian rights from Easby's
Point to Seventeenth street west.
IV. The claims to riparian rights, right
of access to the channel of the river, and- to
accretions, natural and artificial, made by
the owners of lots in squares alonff the river
west of Seventeenth 'street west, namely,
Muares 148, 129, 89, 63, 22, and square south
of square 12.
V. The claim made by certain of the de-
scendants of Robert Peter, an original pro-
prietor of lands in the eitj of Washington,
to certain land near the public reservation
known as the Observatory Grounds.
\n^. The claims to riparian privileges and
wharfing rights made by owners of lots in
squares beginning with square 233 and ex-
tending to the line of the Arsenal Grounds.
Vll. The daims made by certain persons
occupying wharves below the Long Bridge.
The main determination by the court ''of
rights drawn in question" in the suit was a
decree passed October 17, 1895. The decree
adjudicated nearly all the points in con-
troversy in favor of the United States.
Certain lots and parts of lots in squares
(S16]63, 89, 129, and 148, *north of their bounda-
ries on Water street and A street, which
were subject to the ebb and flow <rf the tide,
were included in the work of reclamation,
and as to them the decree held the owners to
be entitled to compensation for the taking
and inclusion of the same in the improve-
ments.
By the first paragraph of the decree the
claims under class 2, that is, those set forth
in the answers of certain defendants founded
upon a patent issued to John L. Kidwell in
1869, for a tract of forty-seven and seventy-
one one-hundredths (47 71-100) acres in the
Potomac river, and ail^^ accretion thereto,
and also to a tract adjoining the Long
Bridge, founded upon an application for a
patent therefor made by said Kidwell in
1871, are held and dedsred to be "invalid,
void, and of none effect;** and the said patent
is "vacated, annuUed, and set aside."
By the second paragraph "the claims of
each and all of the other parties defendants,
set forth in their respective answers, to any
rights, titles, and interests, riparian or oth-
erwise, in the said lands or water," are held
and declared "to be invalid, void, and of none
effect," except as to the parties owning said
9S4
lots and parts of lota in the eqi
tioned.
By the third paragraph it Is luM, and de-
dared "that there does not exist (exeepc s«
aforesaid) any right, title, or imerert n aaj
person or oorpori^on, hdaag a p^rty Xo thii
cause, to or in any nart of the said land or
water," and "that the right and title of ^
said United States (except as mlorceaidi x»
all the land and water mdnded witkia tht
limita of the said improvemcBte of the Pt-
tomae river and its flats, as tba eaid liact
are described In the said bill of
is absolute "as against all the
this cause, and as against all
soever claiming any rights, titles, or intcnai
therein who luive failed to appear and wd
forth and maintain their said righta, tttisL
or interests as required bj eald act ef (3»
M
By the fourth paragraph it ia Md Ost
the defendants who are owners of the leti m
parts of lots in sauares ^, 89, 129. aid lA
Srhich are induoed between the north las
or lines of the said in^rovemente of tht f>>
tomac river and its flats and the nortk im
or *lines of Water street and A sticet, Mitmji
titled to be indemnified for whatever i*9^
ment or hijury may have been tmmm s
their respec^ve rights, titles, or intoii^ n
said lots or |^rts of lota by the taking if te
same by the United States; the Talw ef mA
rights, titles, interests, or daims to be aar^
tamed by this court, exdnstve ci the «sH»
of any improvement of the said lots or fsiv
of lots made by or under the antherity rf
the said United SUtes.**
By the fifth and last paragra^ ef tke *^
cree the takinff of further teatiiMj «
authorised, on oehalf of the owiwis sal m
behalf of the United States, as to the
tive areas of the said lots and parts ef
and of and conceminft the trae
and value of the said lota aad parti ^
lots.
Sudi testimony aa to owaeiship, snm
and values having been taken and ittsisil
the court upon consideration thereof, sai m
March 2, 1896, passed a further and Myf^^
mentary decree, adjudging the valesi ec ^
said lots and parts of lots so taken to k» «■
cents per square foot, and payment wm S-
rected to be made to sundiy persoai *^
the court found to be the owners ef uiiafs
of the parods; the ownership of te nm^
ing parcels not being, in the oohuoa if tfts
court, suffidently established, the tskiif ^
further testimony with respect thfrfit •■
ordered. The total amount of sai4 mitm
found by the court Is $26,684.09.
The court having made a report ef te s»
tion in the premises to Oongrcss, sgrMsUf
to the requirements of the act of Aq|r«^ ^
1886, an appropriation was rasdt fv tk
payment of the sums so fovnd to be Isi **
the owners of the said lota and P^'^ j']'*
in said squares; and with two unpriiei
namdy, Richard J. Beall and the trm^mji
the esUte of William Eashy, dsteawJ. w
several owners ci the property appUej. ^
der said appropriation act, to the coert m
the payment to them of the rsipccCi^ "^
t9S.
Morris y. Unitbd States.
Ma-951
tied now to only one lot or otherwise not
ititled on the new plan to one entire lot, or
J not agree with the President, commis-
oners, or otiier person or persons acting on
^alf of the public on an adjustment of our
iterest, we agree that there shall be a sale
f the lots in which we may be interested
^pectivdy, and the produce thereof in
loney or securities shall be eoually divided,
oe half as a donation for the use of the
'nited States under the act of Congress, the
bber half to ourselves respectively. And we
Qg&ge to make conveyances of our respect-
re lots and lands aforesaid to trustees or
therwise whereby to relinquish our rights
D the said lots and lands, as the President
r such commissioners or persons acting as
foresaid shall direct, to secure to the iJnit-
d States the donation intended by this
greement."
A similar agreement was entered into by
he owners of lots in the town of Hamburgh.
Following these agreements came the con-
veyances by the several proprietors to Beall
md Gantt, trustees. Without quoting from
hem at length, and referring to those of
>avid Bums and Notley Young, copied in
ull in the statement of the case, it is suffi-
Jicnt here to say that the proprietors, by
laid conveyances, completely devested them-
lelves of all title to the tracts conveyed, and
hat the lands were gran ted to the *8aid trus-
€€s, *^to have and to hold the hereby bar-
^ined and sold lands with their appurte-
lances to the said Thomas Beall and John
Vfiickall Gantt, and the survivor of them,
ind the heirs of such survivor, forever, to
ind for the special trust following, and no
>ther, that is to say, that all the said lands
lereby bargained and sold, or such part
thereof as may be thought necessary or prop-
er, be laid out together with the land3 for
i Federal city, with such streets, squares,
[>aroels, and lots as the President of the Unit-
id States for the time being shall approve;
)nd that the said Thomas Beall and John
Mackall Gantt, or the survivor of them, or
the heirK of such survivor, shall convey to
the commissioners for the time being* ap-
pointed by virtue of an act of Congress en-
titled 'An Act for Establishing the Tempo-
rary and Permanent Seat of the Government
of the United States,' and their successors,
for the use of the United States forever, all
the said streets, and such of the said squares,
parcels, and lots as the President shall deem
proper for the use of the United States. And
that as to the residue of the lots into which
fhe said lands hereby bargained and sold
shall have been laid out and divided, that
a fair and equal division of them shall be
made," etc.
In a suit between the heirs of David Bums
and the city of Washington and the United
States this court had occasion to pass upon
the nature of these grants, and used the fol-
lowing language:
"It is not very material, in our opinion,
to decide what was the technical character
of the grants made to the government;
whether they are to be deemed mere dona-
tions or purchases. The grants were made
for the foundation of a Federal city, and
174 V. S.
the public faith was necessarily pledged,
when the grants were accepted, to found
such a city. The very agreement to found
a city was itself a most valuable considera-
tion for these ^ants. It changed the nature
and value of Uie property of the proprietors
to an almost incalculable extent. The land
was no longer to be devoted to agricultural
purposes, but acquired the extraordinary
value of city lots. In proportion to the suc-
cess of the city would be the enhancement of
this value ; and it required scarcely any *aid[250]
from the imagination to foresee that this act
of the government would soon convert the
narrow income of farmers into solid opu-
lence. The proprietors so considered it. In
this very agreement they state the motive
of their proceedings in a plain and intelli-
§ible manner. It is not a mere gratuitous
onation from motives of generosity or pub-
lic spirit; but in consideration of the great
benefits they expect to derive from having
the Federal city laid off upon their lands.
Neither considered it a case where all was
benefit on one side and all sacrifice on the
other. It was in no just sense a case of
charity, and never was so treated in the ne-
gotiations of the parties. But, as has been
already said, it is not in our view material
whether it be considered as a donation or a
purchase, for in each case it was for the
foundation of a city." Van Ness v. City of
Washington and United States, 4 Pet. 284
[7:860].
In Potomac Steamboat Co. v. Upper Poto-
mac S. B. Co, 109 U. 8. 686 [27: 1075], after
an elaborate consideration of the agreements
and conveyances, it was said:
"Undoubtedly Notley Young, prior to th«
founding of the city and the conveyance of
his lana for that purpose, was entitled to
enjoy his riparian rights for his private uses
and to the exclusion of all the world besides.
It can hardly be possible that the establish-
ment of the city upon the plan adopted, in-
cluding the highway on the river bank, could
have left the right of establishing publio
wharves, so essential to a great center of
population and wealth, a matter of altogeth-
er private ownership."
Thomas Johnson, Daniel Carroll, and
David Steuart were, on January 22, 1791,
appointed by President Washington such
commissioners; and on March 30, 1791, by
his proclamation of that date, the President
finally established the boundary lines of the
District; directed the commissioners to pro-
ceed to have the said lines run, and, by prop-
er metes and bounds, defined and limitea;
and declared the territory, so to be located,
defined and limited, to be the district for the
permanent seat of the government of the
United States.
With the lines of the District thus estab-
lished, the next important question that pre-
sented itself was the location of the *Federal[251]
city, in which were to be erected the build-
ings for the accommodation of Congress, the
President's house, and the public offices.
We are here met with a serious contro-
versy as to the place and nature of the river
boundary of the city. The record contains
a large amount of evidence, consisting chief-
065
MoBRiB V. Unitbd States.
217-2:;:3
found to be due to them, and the fund has
been Tory largely disbursed under orders of
the oourt passed on said applications.
From the main decree of October 17, 1805,
appeala were taken as follows :
I *1. By all the defendants embraced in dass
one (1), namely, the heirs of James (M.)
Marshall and the heirs of his brother. Chief
Justioe Marshall.
2. Rv all the defendants embraced in class
two (2) claiming under the Kidwell pat-
en^ etc., namely, Martin F. Morris, Henry
WdlSy Edward H. Wilson, Catherine A. Kid-
well, Enmia McCahill, John W. Kidwell,
Francis L. Kidwell, Ida Hyde, and George
▲. Hyde.
3. By one of the defendants embraced in
dass three (3), namely, the Chesapeake ft
Ohio Canal Company and its trustees.
4. By two of the defendants embraced in
dass four (4), namely, the trustees of the
estate of William Easby, deceased, and Rich-
ard J. Beall.
5. By all of the defendants embraced in
dass five (5), namdy, certain descendants
of Robert Peter.
6. By certain of the defendants embraced
in dass six (6), namely: (a) Charles
Chauncy Savage ei aU; {h) The Washing-
ton St^unboat Company, limited; (c) Ava-
rilla Lambert et oL; (d) William W. Rap-
ley; («) Marr A. 8. Kimmdl Gray; if)
James F. Barber et <U.; (g) William G.
Johnson, assignee of the American Ice Com-
pany; (h) Thomas W. Riley; (i) Edward M.
Willis; (/) Annie E.John8on,widow, sole ex-
ecutrix and devisee of E. Kurtz Johnson, de-
ceased, et ah; (k) Elizabeth K. Riley, in
her own right and as trustee and executrix
of William R. Riley, deceased; {I) The
Great Falls Ice Company; (m) Daniel S.
Evans; (n) Margaret J. Stone; and (o)
Charles B. Church et al,
7. By certain of the defendants embraced
in dass seven (7), namdy, Annie E. John-
son, widow, sole executrix and devisee of E.
Kurts Johnson, deceased, et al,; Charles B.
Church et aL; Danid S. Evans, and William
W. Rapley.
The following reduced copies of the plans
will assist in applying the reanoning of the
opinion. [See opposiU].
No. 1 is the city before the conveyances.
No. 2 is the EUicott plsn.
No. 3 is a portion of the Dermott map,
suffident to indicate the river front in part.
Mr. A. Iioo Knott for the heirs of Jamss
Markham Marshall, appellants.
Messra. John Howard and James V,
Brooke for the hdrs of John Marshall, ap-
pellants.
Meeare. Oeorf^e £. Hamilton and Ha-
thanlel Wilson for Martin F. Morris and
others, appellants claiming under the Kid-
well patent.
Meeara, John K. Cowen, Hnchli. Bond,
Jr^ and Charles F, T, Beale for the Chesa-
peake & Ohio Canal Company, and Joseph
Bryan, John K. Cowen, and Hugh L. Bond
Jr., trustees, appellants.
Meaara. Henry Randall Webb and John
174 U. 1.
Sidney Wehh for Rose L. Easby and Fanny
B. Easby, trustees of the estate of WiUiam
Easby, appellants.
Meaara, J. Holdsworth (Gordon, Arthwr
Peter, and Enoch Totteti for William L. Dun-
lop and the hdrs of Qeorge Peter, deceased,
apoellants.
if r. John Selden for the heirs of Mon-
cure Robinson, deceased, and others, and for
the Washington Steamboat Company, Lim-
ited, appellants.
Meaara, Calderon Carlisle, William
O. Johnson, and Tallmadse A. Lambert
for Willis, American Ice Company, Thomas
W. Riley, Barbour Estate, Great Falls Ice
Company, Van Riswick Estate, Johnson Es-
tate, and Kimmell heirs, appellants.
Meaara, Enoch Totten and Edward A. New-
man submitted a brief for W. W. Rapley, ap-
pellant.
Mr. William F. Mattingly submitted a
brief for Daniel S. Evans, appellant.
Mr. J. M. Wilson submitted a brief for R.
J. Beall, appellant.
Mr. Tallmadge A. Lambert submitted a
brief for Wilhelmina M. Easby-Smith, appel-
lant.
Meaara. Hngh T. Tassart and Holmes
Conrad for the United States, appellee.
*Mr. Justice Shiras delivered the opinion[222]
of the court:
The first question for our determination
arises out of the claims of the heirs of James
M. Marshall and the heirs *of John Marshall [223]
to the ownership of the entire bed of the Po-
tomac river, from shore to shore, including
therein the redaimed lands.
Their claims are based upon two distinct
lines or sources of title, inconsistent with
each other: One originating in the charter
granted by Charles I., King of England, on
June 20, 1632, to Cecil i us Calvert, second
Baron of Baltimore and first Lord Proprie-
tary of the province of Maryland ; the other,
in the charter granted by James II., King of
England, on September 27, 1688, to Thomas
Lord Culpeper.
We do not think it necessary to enter at
length or minutely into the history of the
long dispute between Virginia and Maryland
in respect to the boundary line. It is suffi-
cient, for our present purpose, to say that
the grant to Lord Baltimore, in unmistakable
terms, included the Potomac river and the
premises in question in this suit, and de-
clared Uiat thereafter the province of Mary-
land and its freeholders and inhabitants
should not be held or reputed a member or
part of the land of Virginia, "from which we
do separate both the said province and in-
habitants thereof.''
On September, 1688, Kinst James II., by
his royal patent of that date, granted to
Thomas, Lord C^dpeper, what was called
the Northern Neck of Virginia, and described
as follows:
"All that entire tract, territory, or parcel
of land situate, lying, and being in Virginia
in America, and bounded by and within the
first heads or springs of the rivers of Tappa-
hannock al' Rapahannock and Quiriough al'
Patawonuck rivers, the courses of said rivers
OSS
M^-d65
Supreme Coubt of the Uniteo Static;}.
tlie street, although it might be deemed a
dedication thereof to public use as a street*
But the importance of the fact consists in
the recognition by Youn^ of the existence of
Water street, as an existing or projected
•outhem boundary of the squares.
Stress is laid, in the arguments for the ap-
pellants, on the use of the term *'water lots,"
in the agreonent of December 24, 1793, be-
tween the commissioners for the Federal
buildings, of the one part, and Robert Morris
and James Qreenleaf, of the other part, and
also on the statement made, in that agree-
ment, that Morris and Greenleaf were enti-
tled to the lots in Notley Young's land, and,
of course, to the privileges of wharfing an-
nexed thereto.
It should, however, be observed that the
term "water lots," as used in that agreement,
and elsewhere in the proceedings of the com-
missioners, does not necessarily mean that
such lots were bounded by the Potomac
river. The lots fronting on Water street
were spoken of as "water lots" because next
to that street and nearer to the river than
the lots lying behind — a fact which gave
them additio^ value. That this was the
usage in speaking of "water lots" appears in
Ellicott's map made in 1835, and approved
by President Van IJuren in 183S», where the
lots abutting on Water street on the south
are termed "water lots."
As to the statement in the agreement that
Morris and Greenleaf, as purchasers from the
(M3](K)mmissioners of lots in *Notley Young's
land, would be entitled to the privilege of
wharfing annexed thereto, it must be remem-
bered that that language was used in 1793,
before the division of squares between Not-
ley Young and the commissioners was made.
It is true that in the return made by the
surveyors, on June 15, 1793, of sauares 472,
473, 505, 506, south of 506, and south of
south 506, they bounded said lots by the
Potomac river. But in a further and subse-
quent return, made on December 14, 1793,
these squares are given, in each instance, a
boundary by Water street. And on June 22,
1794, the commissioners adopted the later
survey, as shown by an entry on their min-
utes, as follows:
"The commissioners direct that the sur-
reys and returns made of the part of the city
in Mr. Young's land, adjoining the Potomak,
leaving Water street according to the design
of the plan of the city, be acted on instead
of the returns made by Major Ellicott in
some instances bounded with ard in others
near the water."
And we learn, from the evidence in the
record, that on July 12, 1794, by a letter of
that date, Thomas Freeman, a survevor in
the employ of the commissioners, informed
them that "Water street on Potomak river is
adjusted and bounded."
So that Morris and Nicholson, who suc-
ceeded to the interest of Greenleaf, took un-
der their contract squares laid oflf in Notley
Young's land with a boundary in every in-
stance on Water street.
By various ordinances, from time to time
passed, the city, from its organisation in
1802, exercised jurisdiction over the portions >
970
I*'.
of the Potomac river and the
adjoining the citv and withia ita VmaOL
So, too. Congress, by the act of May U, Utt
(3 SUt. at L. 587, chi^. 104), enacted t^
"the <ntf should have power to muuii tkt
navigation of the Potomac aaa
rivers, adjoining the city, to ereet»
and r^ulate piu>lic i^diamB, aad to
creeks, docks, and basins; to rcgalatc a
manner of erecting and the rates of «^
age at private wharves ; to regulate the wt
chorage, stationing, and mooring ol nrntk.'
CJontroversies arose, involving the ■■>
ing of the agreements •between the ormaTl
proprietors and the United States aatf tk
city of Washington, and as to the cffcfli 4
subsequent acts of Congress and otiIImiw
of the cit^ authorities, and tbeee ^asitiai
found their way into the ooarta.
Van Ness and Wife v. The City of We^
ingtan and the United States, 4 Pet 232 7
842] , grew out of an act of CongreaB ol Mff
7, 1822, authorizing the oorporatioB oIWi^
ington, in order to improve certain psiti f
the public reservations and to drain tW W
grounds adjoining the river, to lay rf "s
building lots certain parte of the ^Mk rr-
ervations and squares, and al*«o a psrt 'i
B street, as laid out and designated ii ^
original plan of the city, which lot» Ar
might sell at auction, and apply the pcww*
to those objects, and afterwards to cadoMi;
planting, and improving other reserrstic*
the surplus, if any, to be paid into the Tm*-
ury of the United SUtes, The act shoo-
thorized the heirs or vendees of tht far^
proprietors of the land on which the atj ^
laid out, who might consider theasdwit'
lured by the purposes of the act, to i»ta*
m the circuit court of the District of Cote-
bia a bill in equity against the united Suta
setting forth the grounds of any dai» tkf
might consider themselves entitled to wt^
the court to hear and determine apoa tk
claim of the plaintiffs, and what portM -
any, of the money arising from tW nk '
the lots they might be entitled to. witi i
right of appeal to this court. ThejjWstJ**
Van XeRs and wife, filed their bin tftii*
the United SUtes and the city of Wi^iat
ton, claiming title to the lots which WH W«
thus pold, under David Buma. the orifin^
proprietor of that part of the dty. oi tit
ground that by the agreement betwwi tto
United States and the original pioynrtm.
upon the laying out of the city, those ivff^
tions and streets were forever to rmmn f*
public use, and without the couwt «f tJ»
proprietors could not be otherwiM ap^np
ated or sold for private use; that W «*
sale and appropriation for private «t tb
right of the United SUtes thereto vsi ^
termined, or that the original propiii*'^
reacquired a right to have the nmmVf^
laid out in building loU for their joist tai
equal benefit with the United Sut«», or t^
they were in equity entitled to the whflh •
a moiety of the •proceeds of the •sle* «! tb ••.
loU. This court held that the United Stit*
possessed an unqualified fee in the ftr^ti
and squares, and that no right or dsia* o-
isUd in the former proprietors or their Ma
a98.
MoRBU V. United Stateb.
865-af7
This decision is criticised by the learned
ouxisel of the appellants as founded on an
nrroneoua assumption by the court, that
3eall and Qantt, the trustees, had made a
^nve^ance, on November 30, 1791, of all the
>reini8es contained in the previous agree-
nentfly including the squares or lots for pub-
ic buildinffs and the land for the streets.
\nd, indeed, it does appear, by the evidence
n the present case, that although both Pres^
lent Washington and President Adams did
Formally re<]uest the trustees to convey to
the commissioners all the streets iA the city
>f Washington, and also the several squares,
parcels, and lots of ground appropriated for
public purposes, yet that the trustees, owing
to disputes and objections on the part of
several of the original proprietors, failed to
ever actually execute such a deed of convey-
ance. Yet even if such an allei^ed state of
facts had been made to appear to the court,
namely, that no conveyance of the land in
the streets had been actually made by the
trustees, we think the conclusion reached by
the court in that case could not have been
different.
In the act of Maryland, ratifying the ces-
sion, and entitled "An Act Concerning the
Territory of Columbia, and the City of Wash-
ington," passed December 19, 1791, was con-
tained the following:
"And he it enacted. That all the S(|uares,
lots, pieces, and parcels of land within the
said city, which have been or shall be ap-
propriated for the use of the United States,
and also the streets, shall remain and be for
the use of the United States ; and all the lots
and parcels, which have been or shall be
sold to raise money as a donation as afore-
said, shall remain and be to the pur-
chasers, according to the terms and condi-
tions of their respective purchase . . ."
In August, 1855, Attorney General dish-
ing rendered to the Secretary of the Interior
an opinion upon the question of the author-
ity of the Commissioner of Public Buildings,
las ^successor of the early commissioners^ to
sell and convey lots in the city of Washing-
ton. Adverting to the act of the legisla-
ture of Maryland of December 19, 1791, and
ci^ng the section above quoted, he said:
'"[Hi is provision seems to have been de-
signed to have the legal effect to vest in the
United States the fee of all the lots, con-
veyed for their use, and also to perfect the
title of purchasers to whom sales had been
or s|ioula be made according to the terms of
the act of Congress." Ops. Atty. Gen. p. 365.
And even if the act of Maryland did not
avail, of itself, to convey unto the United
States a ]^|al statutory title, the facts show
that the United States were entitled to a
conveyance from the trustees, and a court of
equity will consider that as having been done
whicn ought to have been done.
In point of fact the trustees did, by their
deed of November 30, 1796, on the request
of President Washington, convey to the com-
missioners in fee simple all that part of the
land which had been laid off into squares,
parcels, or lots for buildings and remaining
so laid off in the city of Washington, sul^
ject to the trusts remaining unexecuted.
174 U. 8.
In the case of Potoinao Steamboat Co. ▼.
Upper Potomac 8, B. Company, 109 U. 8.
672 [27: 1070], it was held, following Va/m
Ness v. City of Washington, that the fee
of the streets was in the city, and further
that the strip between the squares and lots
and the Potomac river was such a street, and
that there were no private riparian rights
in Notley Young and those who succeeded to
his title.
In the discussion of the evidence that led
to such a conclusion Mr. Justice Matthews
said:
"It has been observed that both squarai
Na 472 and No. 604 are bounded on the
southwest by Water street. This street was
designated on the adopted plan of the city
as occupving the whole line of the river
front, and separating the line of the squares
from the river for the entire distance from
Fourteenth street to the Arsenal grounds.
It is alleged in the bill in respect to this street
that there was traced on the m&p of the city
'but a single line denoting its general course
*and direction; that the dimensions of said[287]
Water street, until the adoption, on the
22d of Februarv, 1839, of the certain plan of
one William Elliott, as hereinafter more par-
ticularly mentioned, were never defined by
law; and that the said Water street was
never, in fact, laid out and made in the city
until some time after the close of the recent
civil war; that before the commencement of
said civil war one high bluff or cliff extended
along the bank of said river in the city of
Washington, from Sixth street west to Four-
teenth street west; that to the edge thereof
the said bluff or cliff, between uie points
aforesaid, was in the actual use and enjoy-
ment of the owners of the land which it
bounded towards the river; that public
travel between the two streets last i^ve
mehtioned, along the said river, could only
be accomplished bv passing over a sandy
beach, and then only when the tide was low;
and that what is now the path of Water
street, between the two streets aforesaid,
was and has been made and fashioned by
cutting down the said cliff or bluff and filling
in the said stream adjacent th^eto.'
"These allegations in substance, are ad-
mitted in the answer to be true, with the
qualification that the width of the street
was left imdefined because it constituted the
whole space between the line of the squares
and the river, whatever that might be deter-
mined to be from time to time ; out ^at the
commissioners, on March 22, 1796, made an
order directing it to be laid out eighly feet
in width from square 1079 to square east of
square 1025, and to 'run out the squares
next to the water and prepare them for di-
vision,' and that it was so designated on the
maps of the city in 1803. If not, the infer-
ence is all the stronger that the whole space
south of the line of the lots was intended to
be the property and for the use of the pub-
lic. Barclay v. HotoeWs Lessees, 6 Pet 498
[8: 477]. In Rowan's Ewers, v. Portland, 8
B. Mon. 239, that inference was declared to
be the legal result of such a state of facts.
"It is quite certain that such a space wai
designated on the official map of the city as
267-270
Supreme Covbt of the Uitited Staxxs.
Oct.
originally adopted, the division and sale of
the squares and lots being made in reference
to it. *What the legal effect of that fact is
we shall hereafter inquire, and while we do
not consider it to be qualified by the circum-
|868] stance, set forth as to the actual history of
the street as made and used, they perhaps
sufficiently account for the doubt and confu-
sion in which the (question of right brought
to issue in this litigation seem for so long
a period to have been involved.
'The transaction between Notley Toung
and the public authorities, as evidenced by
the documents and circumstances thus far
set forth, was e<}uivalent in its result to a
conveyance by him to the United States in
fee simple of all his land described, with its
appurtenances, and a conveyance back to
him by the United States of square No. 472,
and to Greenleaf of square No. 504, bounded
and described as above set forth, leaving in
the United States an estate in fee simple, ab-
solute for all purposes, in the ntrip of land
designated as Water street, intervening be-
tween the line of the squares as laid out and
the Potomac river."
It is earnestly urged in the present case
that the court in that case did not have be-
fore it the Dermott map, and was not aware
that said map was the one approved by Pres-
ident Washington on March 2, 1797. From
this it is reasoned that, if the court had been
informed that the Dermott map was the
real and only official plan, and had seen that
Water street was not laid out or designated
upon it, a different conclusion as to the own-
ership of Water street would have resulted.
It is by no means clear that the Dermott
plan was not before the court. If it was, as
IS now contended, the only plan which was
approved by President Washinjjton as the
official map, it would seem iiery singular that
the able and well-informed counsel who rep-
resented the respective parties in that case
did not think fit to put it in evidence, and
make it the subject of comment.
We are inclined to infer that the Dermott
plan was the very one referred to in the bill
and answer in that case. Thus, in the bill,
in the portion above quoted, it was alleged,
in respect to Water street, that there was
traced on the map of the city "but a single
line, denoting its general course and direc-
tion ;" and in the answer it is stated that the
[869]width of •the street was left undefined, be-
cause it constituted the whole space between
the line of the squares and the rii'er.
An inspection of the Dermott plan dis-
closes such a single line, extending along the
entire river front on both the Potomac and
the Eastern Branch, and outside of the line
of the squares and lots.
But the Ellicott plan, as enprraved in Phil-
adelphia, discloses a well-defined space, of
varying width, between the river and the
line of the lots and squares, extending along
the entire front of the city.
There are expressions used in the opinion
of the court, in that case, that show that
the attention and consideration of the court
. were not restricted to a single map. Thus,
on page 679 [27: 1072], after adverting to
the order of the commissioners on March 22,
Ix.
1796, dircNcting that Water street i^oaU ht
laid out eighty feet in width, the eoort add*
''that it was so desi^^natal oa the nn^ <tf
the city in 1803" — evidently rcteriag to th»
King plan.
Even if so unlikely a fact did exist. Baae-
ly, that in the case in 109 U. S. the DeniDa
map was not considered, we think that tW
conclusion of the court would not I
changed by its inspection. It wa
aerstood to set aside or dispenae
important features of the previous
no doubt, having been made aft^
the surveys had been returned,
curately comported with the lots,
and streets as laid out, than the p
plans. But, as we have seen, it was Bot Hr
self complete. The contention that tt oko-
ted Water street, with the intentioa of thet^
by renouncing the city's claim to a street m
the river, does not impress us as sastaiarf
by the evidence. The preceding pUa^ cxh^
ited a space for such a street, and the ar-
ceeding plans, both that of King in ISOS. aai
that of Elliott, adopted by the city ec«Bn2»
and approved by President Van Bcrea a
1B39, recognize and, in part, define Wear
street. The Dermott plan itself exhihiU tkt
line of a space outside of the line d tat
squares and lots, and that poitioit <rf ibr
space that lies on the Eastern Brmac^ ■
marked on the Dermott plan as Water ttntL
The latest reference to the maps that «*
are pointed to in the reports of thU eoort ■
in Patch v. White, 117 U. S. 221 [»: »*
•where Mr. Justice Woods said: "The i^i*'!^
clearly and without uncertainty dcttfcutf*
a lot on Ninth street, between 1. ud L
streets, well known on the map of the or
of Washington, whose metes, houwb. tai
area are definitely fivea. platted, aad t*-
corded. The map referred to was apfrwK
by President Washington in 179C ui *«-
corded in 1794. Thousands of copic* 9l %
have been engraved and printed. XU fl»^
veyanoes of real estate in tne city made «iaa
it was put on the record refer to it : it b c«
of the muniments of title to all thr pahis
and private real estate in the city M W«i^
ington, and it is probably better know thu
any document on record in the Distncf rf
Columbia. The accuracy of the deseripc-B
of the lot devised, is. therefore, matter of i«»
mon knowledge, of which the court aifM
even take judicial notice.**
It is true that in that case there «•» m
controversy respecting the authenticitr^t)*
city maps, and thut the exprc>«kiti% *^*«m
are found in a dissenting opinioa. ^i.'
such statements made in a closely coatf«t«i
case, where the parties were represeatarf k*
leading counsel, residents of the rttr d
Washington, may fairly be referred to •• i
contribution to the history of the city mtm
Without protracting the di$ctt«Aica v
think, considering the reasonable |»mt«UitT
that a public street or thorooThfarv wtm<
be interposed between the lot^ aad a^vk**
and the navigable river: the lanraate la'
history of the acts of Maryland nhm4 t»
the agreements bet>veei) the original prafrw>
tors; the deeds to the trustees; the nk»
quent transactions between the pi >»titt
174 IT ft
898.
MoBsn Y. Uhitbd Statbs.
270-278
olders and the commissioners; the regula-
ions affecting the use of wharves and docks,
ublisbed by the commissioners; the several
cts of Congress conferring jurisdiction upon
he city over the adjacent waters ; the several
ity maps and plans, b^inning with that of
j'tlniant, sent by President Washington to
?on^es8 in 1791, and ending with that of
^iott, approved by President Van Buren in
839; and the views expressed on the sub-
ect in previous decisions of this court, that
he conclusion is warranted, ttiat, from the
irst conception of the Federal city, the es-
ablishment of a public street, bounding the
ity on the south, and to be ♦known as Water
treet, was intended, and that such intention
las never been departed from.
With this conclusion reached, it follows
hat the holders of lots and squares abutting
m the line of Water street are not entitled
0 riparian rights; nor are they entitled to
'ights of private property in the waters or
he reclaimed lands lying between Water
ttreet and the navigable channels of the riv-
iT, unless they can show valid grants to the
lame from Congress, or from the city under
lothori^ from Congress, or such a long pro-
tracted and notorious possession and enjov-
nent of defined parcels of land as to justify
1 court, under the doctrine of prescription,
in inferring grants.
With these results in view, we shall now
proceed to examine the remaining claims.
The Chesapeake & Ohio Canal Company
w&s incorporated in 1824 by concurrent acts
>f the leigslatures of Virginia and Mary-
land. The object of the company was the con-
struction of a navigable canal from the tide
water of the Potomac to the Ohio river.
By an act approved March 3, 1825 (4
Stat, at L. 101, cnap. 52), Congress enacted
'that the act of the legislature of the state
af Virginia, entitled *An Act Incorporating
the Chesapeake &> Ohio Canal Company,' be,
and the same is hereby, ratified and con-
flnrned, so far as may be necessary for the
F>urpose of enabling any coftipany that may
lereafter be formed, by the authority of
said act of incorporation, to carry into ef-
fect the provisions thereof in the District of
Columbia, within the exclusive jurisdiction
of the United States, and no further."
That portion of the canal which lies with-
in the boundaries of the city of Washington
extends from Twenty-Seventh street in a
southeasterly direction to Seventeenth street,
and appears to have been opened for naviga*
tion in the latter part of 1835. This part of
the canal was wholly constructed north of
the street designed to run between the
squares nearest to the river front and the
river itself. The land occupied by the oanal
company within the cit^ belonged in part to
individual owners and m part to the united
States.
Entering the city so long after the adop-
tion of the several *raaps and plans, the canal
company must be deemed to have been aware
of their contents, and to have been subjected
thereto, except in particulars in which the
company may have been released or exempted
therefrom by the acts of Congress, or by the
authorities of the city. Consequently the
174 U. 8.
company cannot validly claim riparian riffht*
as appurtenant to those lots or parts of lots
which the company purchased from indi-
vidual owners who held lots north of Water !
street. Having themselves, as we have seen,
no riparian rights, such owners could not
convey or impart them to the canal company.
But it is contended, on behalf of the canal
company, that riparian rights attached at
least to those portions of their land which
they acquired bv virtue of the legislation of
Congress, and which were located on the mar-
gtn of the Potomac river.
If it was, indeed, the persistent purpose of
the founders of the city to erect and main-
tain a public street or thoroughfare along
the river front, it would be surprising to find
so reasonable a policy subverted by l^isla-
tion on the part of Congress in favor of this
canal oompanv. To justify such a oonten-
tion we should expect to be pointed to clear
and unmistakable enactments to that effect.
But the acts of Congress relied on are of a
quite different character. Let us briefly ex-
amine them.
There was. In the first place, the act of
March 3, 1825, heretofore quoted, wherein the
act of Virginia incorporating the Chesa-
peake & Ohio Canal Company is ratified and
confirmed so far as may be necessary for the
Surpose of enabling any company that might
tiereafter be formed under the authority of
that act to carry into effect the provisions
thereof in the District of Columbia within
the exclusive jurisdiction of the United
States, and no further. Then followed the
act of May 23, 18:>8 (4 Stat, at L. 292, chap.
85), authorizing the connection of lateral
canals, constructed under authority of Mary-
land and Virginia, with the main stem of the
canal within the District. By the act of
May 24, 1828 (4 Stat, at L. 293, diap. 86),
Congress authorized a subscription oy the
United States for ten thousand shares of the
capital stock of the ^company, and made pro-[278J
vision for the elevation and width of the sec-
tion below the Little Falls, so as to provide
a supply of water for lateral canals or the ex-
tension of the Chesapeake & Ohio Canal by
the United States.
It may be conceded that it is clear from
these enactments that Congress contemplated
the location of the ChesapeeJce & Ohio Canal
along the bank of the Potomac river within
the District of Columbia; and it may be
further conceded that Congress acquiesced in
the route and terminus of the caintl selected
by the company. But it does not follow
from such concessions, or from anything con-
tained in the legislation referred to, that Con-
gress was withdrawing from the city of
Washington its rights in Water street, or
was granting to the canal company a fee
simple in the river margin with appurtenant
riparian rights.
It is further urged, that by the act of
March 3, 1837 (5 Stat 303), Congress
adopted and enacted as a law of the United
States the provision of the Virginia act of
February 27, 1829, in the following terms:
"That whenever it might be necessary to
form heavy embankments, piers, or moles,
at the mouths of creeks or along the river
078
SM-2d7
Supreme Coubt ov tub ITMreo .Siaiej.
Oct. Tsb«,
laws of Maryland which were in force in
1801 had made provisions, but which laws
had remained inoperative, after the cession,
for the want of appropriate officers or au-
thority in the District of Ck)lumbia for their
execution.
The only acts of Maryland which have
been brought to our attention as having been
in force in 1801, under which a disposition
of the lands of the state could be made, are
the acts of November session, 1781, chap. 20,
and of November session, 1788, chap. 44.
The act of 1781, chap. 20, is entitled "An
Act to Appropriate Certain Lands to the Use
of the Officers and Soldiers of This State,
and for the Sale of Vacant Lands." The
preamble recites that there are laree tracts
of land within the state "reserved by the
(M6]late proprietors which may be applied to *the
discharge of the engagement of lands made
to the officers and soldiers of this state, and
that the granting the other vacant lands in
this state would promote population and
create a fund towards defraying the public
burthen." Sections 3 and 4 provide for a
land office, and for bsuing "common or spe>
cial warants of vacant cultivation, and for
the surveyinff of any vacant lands, cultivate
ed or uncultivated."
By the act of November session, 1788,
«hap. 44, all other vacant lands in the state
were made liable to be taken up in Uie usual
manner bv warrant.
It would seem evident that the lands
whose disposition was conteinplated by
these acts were vacant lands which had been
cultivated, or which were susceptible of cul-
tivation.
By such terms of description it would not
appear that the disposition of lands covered
by tide water was contemplated, because
such lands are incapable of ordinary and pri-
vate occupation, cultivation, and improve-
ment, and their natural and primary uses
are public in their nature, for highways of
navigation and commerce.
In the case of State v. Pacific Ouano Co.
22 S. C. 83, the supreme court of South Car-
olina, in discussing a somewhat similar
question, said:
"The absolute rule, limiting landowners
bounded by such streams to high-water mark
unless altered by law or modified by custom,
aecords with the view that the beefs of such
channels below low-water mark are not held
by the state simply as vacant lands, subject
to grant to settlers in the usual way through
the Land Office.
"There seems to be no doubt, however,
that the state, as such trustee, has the power
to dispose of these beds as she may think best
for her citizens, but not being, as it -seems
to us, subject to grant in the usual form un-
der the provisions of the statute regulating
vacant lands, it would seem to follow that in
order to give effect to an alienation, which
the state might undertake to make, it would
be necessary to have a special act of the 1^-
islature expressing in terms and formally
such an intention."
In the case of Allegheny City v. Reed, 24
CMOIPa. 39, it *was held by the supreme court of '
060
Pennsylvania that the provisions of the
eral acts in respect to patents for Uada
not relate to the founaa,tion of an isUo4
whose soil had been swept away by floods.
"The title of the commonwealth to what rt-
maiiked was not gone, bat was no loKtr
grantable under the acts of assembly for
selling islands, ^le foundatioa of the i^
lands belongs to the commonwealth still,
but she holds it, as she does the bed ol te
river and all sand bars, in trust f or mil lisr
citizens as a public hiffhway. The set d
1806 was not a grant of the sUte's title, but
only a mode prescribed in which titles might
thereafter be grsjited. . . . The iuris-
diction is a speieial one, and if the subjeet>
matter, to which the act of 1806 retatsB,
were gone, — ^had ceased to be, — the board ol
)>roperty had no jurisdiction; no more thsa
they would have over any other subject aot
intrusted to their discretion."
In Illinois Central JfaUroad Co. t. lUinoiM,
146 U. 8. 887 [36: 1018], H was reoognisel
as the settled law of this country that the
ownership of and dominion and sovereignty
over lanos covered by tide waters, or naviga-
ble lakes, within the limits of the sefml
states belong to the respective states withli
which they are found, wi^ the conseouMi
right to use or dispose of any portion vmb^
of, when that can be done intAOut suhsts»
tial impairment of the interest of the pii^
lie in such wAters, and subject to the pen^
mount right of Congress to control thdr wk^
igation so far as may be necessary for Iht
rMplation of commerce.
In Shively v. Botolby, 126 U. 8. I [38:
331], the discussion was so thorou^ as ts
leave no room for further ddiate. Tlie eo»'
elusions there reached, so ftur as th^ are s^
plicable to the present case, were as follows:
"It is well setUed that a grant from Iht
sovereign of land bounded by the sea or ty
any navigable tide water, does not pass aiy
title below high-water mark, unless etthsr
the language of the grant, or long usage sb>
der it, dearly indicates that vudi was tht
intention." 152 U. 8. 13 [38: 336].
"We cannot doubt that Congress has tht
power to make grants of land bdow high-
water mark of navigable ^waters in any tcr-[0l|
ritory of the United States, whenever it be-
comes necessary to do so in order to perfons
international obligations or to effect the fat
provement of such lands for the pnNBotisa
and convenience of commerce with loreigi
nations and among the sertfal states, or ts
carry out other piK>lic purposes appropHals
to the objects for whidi the United Stalsi
holds the territory. But Congress has nstv
undertaken by general laws to dlsposs sf
such lands." 152 U. a 48 [38: 349].
"The Congress of the United States, in dis-
posing of &e public lands, has eoastaally
acted upon the theory that those lands,
whether in the interior, or on the cossf>
above high-water mark, may be taken op by
actual occupants, in order to encourage the
settlement of the country; but that the aavi-
gable waters and the soils under thiM,
whether within or above the ebb and flow ol
the tide, shall be and remain public hi^
174 U. i.
1898.
MoBBU Y. UmTSD Statbb.
287-848
mm; and, being chiefly raluable for tlie
public purpoees of oommerce, navigation,
and fishery, and for the improvements neoes-
■arv to secure and promote those purposes,
shall not be ffranted away during the period
of territorial government." 152 U. S. 49
[38:349].
'*Upon the acquisition of a territory by the
United States, whether by cession from one
of the states, or by treaty with a foreign
country, or by discovery and settlement, the
title and dominion passed to the United
States, for the benefit of the whole people
and in tnist for the several states to be ulti-
mately created out of the territory." 162
U. S. 67 [38; 352].
In Mann v. Tacoma Land Company, 153 U.
8. 273 [38: 714], it was again held that the
general l^slatfon of Congress in respect to
8ublic lai^ does not extend to tide lands;
^at the scrip issued by the United States
authorities to be located on the unoccupied
and unappropriated public lands could not
be located on tide lands ; and that the words
^public lands" are habitually used in our
legislation to describe such as are subject to
sale or other disposal under general laws.
As against these principles and these deci-
sions, the claimants under the patent cite
and rely on the case of Broume v. Kennedy
(5 Harr. & J. 195 [9 Am. Dec. 503]), to the
S3S]alleffed effect "that the bed ♦of any of the nav-
i^ble waters of the state may be granted,
and will pass if distinctly comprehended by
the terms of any ordinary patent, issuing
from the land office, subject only to the ex-
isting public uses of navigation, fishery, etc.,
whicn cannot be hindered or impaired by the
patentee."
Our examination of this case has not sat-
isfied us that the decision therein went as
far -as is now claimed. As we read it, the
f^ist of the decision was that, by the common
aw and the law of Maryland, proprietors of
land bounded by unnavigable rivers have a
property in the soil covered by such rivers
ad filum medium (tquw^ and that where one
holding land on both sides of such a stream
had made separate conve3rance6, bounding
on the stream, and the stream had after-
wards been diverted or ceased to exist, the
two original grantees took each to the mid-
dle of the land where the stream had former-
Iv existed, and that a sub9e<]uent grantee of
the territory formerly occupied by tne stream
took no title. Such a decision would have
no necessary application here.
But we are bound to concede that the court
of appeals, in the subsequent case of Wilson
V. Inloes, 11 Qill & J. 352. has interpreted
Browne v. Kennedy as establishing the prin-
ciple that the state has the right to grant
the soil covered by navigable water, subject
to the public or common right of navigation
and fishery, and inferentially that a title,
originating in a patent issued under general
law from the land office, attached to the land,
and gave a right of possession when the wa-
ters ceased to exist.
The decision in Browne ▼. Kennedy was
not made till a quarter of a century after
the cession by Maryland to the United
States, and seems to have been a departure
174 U. 8. U. S., Book 43.
from the law as previously understood and
applied, both during the colonial times and
under the state prior to the cession.
Thus, in Lord Proprietary v. Jennings^ 1
Harr. & McH. 94, an information was filed
by the attorney general of the Lord Proprie-
tor, in 1733, to vacate a patent on the ground
that it had been illegally obtained, and the
case clearly indicates that land under tide
water was not patentable. Smith and Pur-
viance v. State [ew rel, Yatea], 2 Harr. & Mc-
H. 247, was the case of an *appeal from a de-[239I
cree of the chancellor, dated April 27, 1786,
vacating and annulling, on the ground of
fraud and misrepresentation, a patent granted
to Nathanid Smith, June 2, 1783, for a tract
of land called Bond's Marsh. It was dis-
closed in the case that Smith was the owner
of a tract of land called Bond's Marsh,
which had been eranted to one John Bond,
September 16, 17o6, for four acres; and that,
on April 20, 1782, Smith, who had become
the owner of the tract, petitioned for a war-
rant of resurvey, stating that he had discov-
ered some vacant land contiguous thereto,
and that he was desirous of adding the same
to the tract already held by hinL Thereupon
the surveyor of the county was directed ''to
lay out and carefully resurvey, in the name
of him, the said Smith, the said tract of
land called Bond's Marsh, according to its
ancient metes and bounds, adding any va-
cant lands contiguous thereto," etc. On
May 8, 1782, the surveyor certified to the
land office that he had resurveyed the said
original tract oalled Bond's Marsh, and that
it contained exactly four acres, and that
there were seventeeoi and one-half acres of
vacant land added. Upon this Smith ob-
tained frcmi the state a grant on the said cer-
tificate for twenty-one and a half acres un-
der the name of Bond's Marsh resurveyed,
and, July 8, 1784, Smith conveyed for a con-
sideration two undivided third parts of said
tract to Samuel Purviance. The bill averred
that "although the said Smith by his afore-
said petition did allege and set forth that he
had discovered vacant land adjoining the
said tract called Bond's Marsh, there was
not any vacant land adjoining or oon-
ti^ous to the same , but that the whole
which b^ the said grant is granted to tiie
said Smith as vacant land adaed to the orig-
inal tract aforesaid now is and at the time
of obtaining the said warrant and grant was
part of the waters of the northwest branch
of Patapsco river." The bill also averred
that Purviance was not an innocent purchas-
er, but knew that the pretended vacancy in-
cluded in the patent "was not land, but part
of the waters of the northwest branch of
Patapsco river." The decree vacating the
patent was affirmed.
In the footnotes to Baltimore v. MoKin, 3
Bland, Ch. 468, the 'cases of FoujZer v. GoodM7in[ MOJ
and Ritchie v. Sample are referred to. In
Fowler v. Ooodwin the chancellor, on May
19, 1809, refused to direct a patent to issue
because a large part of the land lay in the
waters of Bell's oove. In Ritchie v. Sample
the certificate of survey showed that the
tract applied for was a parcel of the Susque-
hanna river, comprehending a number of
61 061
1
256-250
Supreme Court or the United States.
Oct.
intentions of the founders of the city, and,
so far as possible, are to be reconciled as
parts of one scheme or plan.
Pursuing such a method of investigation,
we perceive that, in the first map submitted
to Congress by President Washin^n on De-
cember 13, 1791, as "the plan of the city,"
there is between the lots fronting on the Po-
tomac and the river itself an open space, un-
doubtedl;^ intended as a thoroughfare and
for public purposes. It is true that this
open space is not named as a street. But
none of the other streets and avenues on this
map are named. And we read in a letter
lM7]of ^the commissioners to Major L'Enfant,
dated September 9, 1701, as follows:
"We have agreed that the Federal district
shall be called *The Territory of Columbia,'
and the Federal city 'The City of Washing-
ton;' the title of the map will therefore be
'A map of the City of Washington in the
Territory of Columbia.' We have also
agreed the streets be nioned alphabetically
one way, and numerically the other; the
former divided into north and south letters,
• the latter into east and west numbers from
the capitol. Major Ellicott, with proper as-
sistants, will immediately take and soon
furnish you with soundings of the Eastern
Branch to be inserted in the man."
This L'Enfant plan contains aJl the essen-
tial features of the city of Washington as
they exist to-day.
Owing to the disputes between L'Enfant
and the commissioners, as already stated,
the former withdrew, and Andrew Ellicott,
who had been acting as an assistant to L'En-
fant, proceeded with the work, with the re-
sult that about October, 1792, the engraved
or Ellicott map was completed and in the
hands of the conunissioners. This map
shows the squares numbered, the avenues
named, and the lettered and numbered
streets all designated. It also shows on the
front on the Potomac river and on the East-
em Branch, between the ends of the lots and
the squares and the water, an open, continu-
ous space or street, extending through the
entire front of the city.
But it must be said of this map that it
did not show all the squares or correctly
place the public reservations, and, indeed, it
was made before the completion of the sur-
veys. As was said by the commissioners in
their letter of February, 1797, "that plan re-
?|uired the doing of many acts to carry it
nto effect, such as the laying out and bound-
ing a water street on the waters which sur-
round the city."
Then came, in March, 1797, the Dermott
map, which indicated the location and extent
of the public reservations or appropriations,
and also certain new squares, not shown on
the engraved plan, and which were laid out
on the open spaces at the intersection of
streets appearing on the engraved plan ; and
also exhibited the progress that had been
r£58]made since 1792, in *laying down the city
upon the ground in accordance with the
scheme of the previous plans. But> as was
eaid by President Jefferson on July 14, 1804,
in a passage previously quoted, "The plan
and declaration of 1797 were final so far as
968
thev went; but even they left mutj Htssa
unfinished, some of which still ratttia t» bi
declared."
President Jefferson was probably U %
form this opinion by his personsl kaowMp
of the situation, which was iDtimate. Aad
here ma^ well be quoted a portioa cit\aif
communication addressed to him br Kks^
las King, surveyor of the dty of Wu^
ton, dated September 25, 1806. in wUek ta»
writer, adverting to tlie several pUn at 9
certain regulations published by the cobu-
sioners on July 20, 1795, said:
"Perfecting this part of the dUb. » u a
leave nothing for conjecture, litigitioi. r
doubt, in the manner wliich sHaI] wok, i-
oord with the published plan:«. »«(vt 'J*
health of the city, and afford ti.e noft f*
venience to the merchants, require>* mmri'
ate attention. . . . The prinfipfe ateW
in the engraved plan, if carried iato rf^
and finally established in the pl^m mt '»aU
out upon the ground, when aided W fn^
r^ulations as to the materials and dd^ "
constructing wharves for vessHs to bj it
and discharge their cargoes on. feoD* «v1
calculated to preserve tie purity of tW i-
The other streets will here termioste n »
street or key, open to the water, aad tis^
ting a free current of air. It wiD fan i
general communication between the vfar**
and warehouses of different mer^Aitc i«i
by facilitating intercourse, ren<kr i pw
service to them than they would deriw f-^
a permission to wharve as they pleaW ^
position of this Water street beinc 4f^
mined, it will ascertain the ext'Tit $ai *'>
ation of the building squares and rtT«^ 4
the made ground, from the bank of the r.-*^
and bring the present as near to tW i^
lished plan as now can be done. It viT ^
fine the extent and privileges of witw ''"*
and enable the owners to improre vit^-a
fear of infringing on the rijjbt^ of '^^^
. . . Along the water side of tW <^
the free current or stream of the riwr *K* ■
be permitted to flow and carry witk h w^'
ever may have been brought f r« A* *""
along 'tiie street-s or sewer*, Tbe w^"-^
permitted beyond this street to the ctar»
may be stages or bridges with pier» tii •**
cient waterways under them. And <• **
wharves so erected, it would seen p»^ *"
prohibit the erection of hou*e» or latax
obstructing a free circulation of air. .
The surveying is now so far complefi t^-
it can be done with the utmost prefi<»«. «*
every foot of ground within tbe \Mt "•
the Federal city, with its appu.tfa»Bt r*
ileges, may be so defined as to preteat Ittss*
tion or doubt on the subject. If it i» 'j
done at this time the evils will iorrft* «^
every year add to our difficulties^ Ft*t ^
from the various decisions or nejWrt*- i-"**
ations, or amendments which barf bi»^
fore taken place, some time an iMn<^**
may be necessary in the arraniwD'* ■"* '
system which shall combine jtt»ti«e *i^*^
venience. If this decision is left to a fs**^
period and our courts of law. tber *•■ *"U
have a partial view of the subjed ■*"_'5
1898.
MoBBiB T. United Statbs.
259-26;»
general rule they may adopt may be attended
with serious disadvantages."
Nicholas King himself prepared a plan or
serial map of sixteen sheets m 1803. There
is evidence tending to show that this was
done in pursuance of an order of the com-
missioners; and in reference to it the record
contains the testimony, in the present case,
of William Forsythe, who had heeu connect-
ed for many years with the office of surveyor
of the city, in subordinate capacities and as
the head of it, and who was in 1876 the sur-
veyor of the District of Columbia. He says:
"I Qan only say that it is the best in point
of execution of the early maps of the city;
and tiiat it has been acted upon ever since
it has been prepared in connection with the
affairs of the surveyor's office, and that the
lines of wharfing indicated upon the map
from Kock Creek to Easby's Point have been
followed; in other words, that all the im-
provements, such as reclamation of land,
and the wharves that have been built in that
section of the city, were made and built in
accordance with the plan of wharfing, etc.,
indicated on this map. . . . The map of
1803 has always, in my recollection going
back forty years in connection with the sur-
Ijveying •department of the city, been consid-
ered and acted upon as an official map, and
from conversation with those who have pre-
ceded me in the surveyor's office, I know that
it was always considered by them as an au-
thentic official map of the city. It has in
fact been the standard map."
While it is true that this map of 1803 was
never officially approved or authenticated by
any President of the United States, as were
the earlier maps, and is not therefore of con-
clusive effect, it is, in our opinion, a legiti-
mate and important piece of evidence.
In connection with the later map of 1803,
prepared by King, ought also to be consid-
ered a series of plans drawn by him and laid
before the commissioners on March 8, 1797,
in a communication, as follows :
"I send you herewith a series of plans ex-
hibiting that part of the city which lies in
the vicinity of the water, and includes what
is called the water property, from the con-
fluence of Rock creek with the Potomac to
the public appropriation for the Marine Hos-
pital on the Eastern Branch. What appears
to me the most eligible course for Water
street, with the necessary alterations in the
squares already laid out, or the new ones
which will be introduced thereby, are distin-
guishable by the red lines which circum-
scribe them, while those already established
are designated by two black lines."
Without pausing to examine the King
map and plans in their particulars, to some
of which we may have occasion to recur at a
subsequent stage of our investigation, it is
enougn to here state that the existence of a
water street in front of the city, and com-
porting, in the main, with its course as laid
down on the engrayed plan of the Ellicott
plan, is distinctly recognized.
The record also contains a n\ap proposed
by William Elliott, surveyor of the city of
Washington, in 1835, and adopted in 1839 by
the city councils and approved by President
174 V. 8.
Van Buren, entitled "Plan of part of the City
of Washington, exhibiting the water lots and
Water street, and the wharves and docks
thereoQ, along the Potomac, from E to T
streets south." This map exhibits Water
street as extendine^ in front *of that part of[26I)
the city embraced in the map, and it also
shows that what are stvled ''water lots"
front on the north side of Water street.
We have not overlooked the fact disclosed
by the evidence in the record that, even dur-
ing the presidency of General Washington,
there were complaints made, from time to
time, of alleged changes or departures from
the L'Enfant and Ellicott plans, and that
also efforts were made, sometimes success-
fully, to get changes allowed. And on No-
vember 10, 1798, a memorial was addressed
to President Adams by some of the proprie-
tors of lands within the city, complaining of
changes made by the Dermott plan in some
of the features of the previous plans, and
calling attention to the incompleteness of
that plan in omitting a delineation of Water
street.
But these complaints appear to have been
ineffectual. Nor are we disposed to under*
stand them as meaning more than a call foi
a perfect delineation of Water street — not a«
asserting that the Dermott plan was an
abandonment of such a street.
In connection with the various maps and
plans must be read the regulations issued by
the commissioners while they were actings
and their contract and agreements with the
proprietors and purchasers.
In July, 1796, certain wharfing regula-
tions were published, containing, among-
other things, the following: "That all the
proprietors of water lots are permitted to
wharf and build as far out into the river of
Potomac and the Eastern Branch as they
may think convenient and proper, not injuring
or interrupting the channels or navigation of
the said waters; leaving a space, wherever
the general plan of the Greets of the city re-
quires it, of equal breadth with those streets ;
which, if made by an individual holding the
adjacent property, shall be subject to his sep-
arate ocupation and use, until the public
shall reimburse the expense of making such
street; and where no street or streets inter-
sect said wharf, to leave a space of sixty
feet for a street at the termination of every
three hundred feet of made ground." This
was certainly an assertion of the control by
the public, then represented by the commis-
sioners, over the *fast land adjoining the[208)
shores and extending to the navigable chan-
nels.
Another fact of much weight is that, in the
division of squares between the commission-
ers and Notley Young, the plats of which
were signed hyr the commissioners and by
Notley Young in March, 1797, the southern
boimdary is given as Water street.
It is doubtless true, as argued in the brief
filed for those who succeeded to Young's title,
that such a division would not, of itself, have
the effect of vesting title in fee to the land
in the United States. Nor, perhaps, would
such a transaction operate as a donation by
Young to the city of the territory covered by
969
M2-265
SUPBEMB COUBT OT THF UnITEO STAT&S.
the street, although it might be deemed a
dedication thereof to public use as a street.
But the importance of the fact consists in
the recognition by Youn^ of the existence of
Water street, as an existing or projected
southern boundary of the squares.
Stress is laid, in the arguments for the ap-
pellants, on the use of the term *'water lots,"
in the agreement of December 24, 1793, be-
tween the commissioners for the Federal
buildings, of the one part, and Robert Morris
and James Greenleaf, of the other part, and
also on the etatement made, in that agree-
ment, that Morris and Greenleaf were enti-
tled to the lots in Notley Young's land, and,
of course, to the privileges of wharfing an-
nexed thereto.
It should, however, be observed that the
term ''water lots," as used in that agreement,
and elsewhere in the proceedings of the com-
missioners, does not necessarily mean that
such lots were bounded by the Potomac
river. The lots fronting on Water street
were spoken of as ''water lots" because next
to thax street and nearer to the river than
the lots lying behind — a fact which gave
them additiomd value. That this was the
usage in speaking of "water lots" appears in
Ellicott's map made in 1835, and approved
by Presidei^t Van Buren in 1831^, where the
lots abutting on Water street on the south
are termed "water lots."
As to the statement in the agreement that
Morris and Greenleaf, as purchasers from the
[M3]conunissioners of lots in *Notley Young's
land, would be entitled to the privilege of
wharfing annexed thereto, it must be remem-
bered that that language was used in 1793,
before the division of squares between Not-
ley Yoimg and the commissioners was made.
It is true that in the return made by the
surveyors, on June 15, 1793, of squares 472,
473, 505, 506, south of 506, and south of
south 506, they boimded said lots by the
Potomac river. But in a further and subse-
quent return, made on December 14, 1793,
these squares are given, in each instance, a
boundary by Water street. And on June 22,
1794, the commissioners adopted the later
survey, as shown by an entry on their min-
utes, as follows:
"The commissioners direct that the sur-
veys and returns made of the part of the city
In Mr. Young's land, adjoining the Potomak,
leaving Water street according to the design
of the plan of the city, be acted on inst^d
of the returns made by Major Ellioott in
some instances bounded with ard in others
near the water."
And we learn, from the evidence in the
record, that on July 12, 1794, by a letter of
that date, Thomas Freeman, a survevor in
the employ of the commissioners, informed
them that "Water street on Potomak river is
adjusted and boimded."
So that Morris and Nicholson, who suc-
ceeded to the interest of Greenleaf, took un-
der their contract squares laid off in Notley
Young's land with a boundary in every in-
stance on Water street.
By various ordinances, from time to time
passed, the city, from its organization in
1802, exercised jurisdiction over the portions
070
tfe
of the Potomac river and the Baatara Braack
adjoining the city and within Ha hmam.
So, too. Congress, by the act of liaj IS, Utt
(3 Stat, at L. 587, chap. 104), a
"the citgr should have power to w
navigation of the Potomac and
rivers, adjoining the city, to tr%
and regidate piSblic wharves, and to
creeks, docks, and basins; to regulate tkt
manner of erecting and the rates of vhari-
age at private wharves ; to regulate the s^
cnorage, stationing, and mooring of vsMck*
Controversies arose, involving tke ■■»;
ing of the agreements ^between the ormsL'fl^
proprietors and the United States aad tk
city of Washington, and as to tbe cffeet tf
subsequent acts of Congress aad i
of the cit^ authorities, and these
found their way into the courts.
Van Ness and Wife v. The City of TTaA-
ington and the United States, 4 Pet. 232 f7
842], grew out of an act <rf Congress oi Miy
7, 1822, authorizing the oorporatioD of Wi*
ington, in order to improve certain partv fif
the public reservations and to draia the 1m
grounds adjoining the river, to lay off s
building lots certain parts of the pohtic r^
ervations and squares, and also a part -
B street, as laid out and designated is tk
original plan of the city, which loU ^
might sell at auction, and apply the ptwttA
to those objects, and afterwards to eadnasp
planting, and improving other leuuistiaeL
the surplus, if any, to be paid into the Trvt*
ury of the United States. The act aho »
thorized the heirs or vendees of the ianm
proprietors of the land on whi^ the city m»
laid out, who might consid^ themseWo »
lured by the purposes of the ad, to iavtibe*
in the circuit court of the District of Ce*^
bia a bill in equity against the cnitcdSum.
setting forth the grounds of any daia tkr
might consider themselves entitled to ■ab
the court to hear and determine Mftm tk
claim of the plaintiffs, and what portica. i
any, of the money arising from tM mk d
the lots they might be entitled to. «iti i
right of appeal to this court. TTie pisiatxf*
Van Ne5i8 and wife, filed their bJU »«»■*
the United States and the city of Ws«kar
ton, claiming title to the lots which had Wr
thus sold, under David Bums, the orira!
proprietor of that part of the eity. aa tte
ground that by the agreement bstaw tte
United States and the original propnctan.
upon the laying out of the city, thoseiMin
tions and streets were forever to rsaan H
public use, and without the coaseat «f tt»
proprietors could not be otherwise a^fiuf^
ated or sold for private uae; that W mk
sale and appropriation for private aw tk»
right of the United SUtea thereto «ts *•
termined, or that the original p«jpnrtrt»
reacquired a right to have the
laid out in building lots for thetr
equal benefit with the United SUtcs.
they were in equity entitled to the %
a moiety of the •proceeds of the sale* erf ^.
lots. This court held that the Unitad SaM*
possessed an unqualified fee ia the
and squares, and that no right or
isted in the former proprietm or their
a98.
MoRBU V. Unitbd Stateb.
865-af7
This decision is criticised by the learned
ouxisel of the appellants as founded on an
mroneous assumption by the court, that
Beall and Qantt, the trustees, had made a
^nveyance, on November 30, 1791, of all the
premises contained in the previous agree-
nents, including the squares or lots for pub-
ic buildings and the land for the streets.
^nd, indeed, it does appear, by the evidence
in the present case, that although both Pres^
lent Washington and President Adams did
formally re<]uest the trustees to convey to
the commissioners all the streets in the city
of Washington, and also the several squares,
parcels, and lots of ground appropriated for
public purposes, yet that the trustees, owing
to disputes and objections on the part of
several of the original proprietors, failed to
ever actually execute such a deed of convey-
ance. Yet even if such an alleged state of
facts had been made to appear to the court,
namely, that no conveyance of the land in
the streets had been actually made by the
trustees, we think the conclusion reached by
the court in that case could not have been
different.
In the act of Maryland, ratifying the ces-
sion, and entitled "An Act Concerning the
Territory of Columbia, and the City of Wash-
ington," passed December 19, 1791, was con-
tained the following:
**And he it enacted, That all the S(|uares,
lots, pieces, and parcels of land within the
said city, which have been or shall be ap-
propriate for the use of the United States,
and also the streets, shall remain and be for
the use of the United States ; and all the lots
and parcels, which have been or shall be
sold to raise money as a donation as afore-
said, shall remain and be to the pur-
chasers, according to the terms and condi-
tions of their respective purchase . . .'*
In August, 1855, Attorney General dish-
ing rendered to the Secretary of the Interior
an opinion upon the question of the author-
ity of the Commissioner of Public Buildings,
]as ^successor of the early commissioners, to
sell and convey lots in the city of Washing-
ton. Adverting to the act of the legisla-
ture of Maryland of December 19, 1791, and
cifing the section above quoted, he said:
'TSiis provision seems to have been de-
signed to have the legal effect to vest in the
United States the fee of all the lots, con-
veyed for their use, and also to perfect the
title of purchasers to whom sales had been
or s|ioula be made according to the terms of
the act of Congress." Ops. Atty. Gen. p. 355.
And even if the act of Maryland did not
avail, of itself, to convey unto the United
States a l^|al statutory title, the facts show
that the United States were entitled to a
conveyance from the trustees, and a court of
equity will consider that as having been done
which ought to have been done.
In point of fact the trustees did, by their
deed of November 30, 1796, on the request
of President Washington, convey to the com-
missioners in fee simple all that part of the
land which had been laid off into squares,
parcels, or lots for buildings and remaining
so laid off in the city of Washington, sul^
ject to the trusts remaining unexecuted.
174 U. 8.
In the case of Potofnao Steamboat Co. ▼.
Upper Potomac 8, B. Company, 109 U. 8.
672 [27: 1070], it wa3 held, following 7(mi
Ness V. City of Washington, that t£e fee
of the streets was in the city, and further
that the strip between the squares and lots
and the Potomac river was such a street, and
that there were no private riparian rights
in Notley Young and thoee who suooeeded to
his title.
In the discussion of the evidence that led
to such a conclusion Mr. Justice Matthews
said:
"It has been observed that both squares
No. 472 and No. 604 are bounded on the
southwest by Water street. This street was
designated on the adopted plan of the city
as occupving the whole line of the river
front, and separating the line of the squares
from the river for uie entire distance from
Fourteenth street to the Arsenal grounds.
It is alleged in the bill in respect to this street
that there was traced on the map of the city
'but a single line denoting its general course
*and direction; that the dimensions of 8aid[287]
Water street, until the adoption, on the
22d of February, 1839, of the certain plan of
one William Elliott, as hereinafter more par-
ticularly mentioned, were never defined by
law; and that the said Water street was
never, in fact, laid out and made in the city
until some time after the close of the recent
civil war; that before the commencement of
said civil war one high bluff or cliff extended
along the bank of said river in the city of
Washington, from Sixth street west to Four-
teenth street west; that to the edge thereof
the said bluff or cliff, between tne points
aforesaid, was in the actual use and enjoy-
ment of the owners of the land which it
bounded towards the river; that public
travel between the two streets last above
mefitioned, along the said river, could only
be accomplished bv passing over a sandy
beach, and then only when the tide was low;
and that what is now the path of Water
street, between the two streets aforesaid,
was and has been made and fashioned by
cutting down the said cliff or bluff and filling
in the said stream adjacent thereto.'
"These allegations in substance, are ad-
mitted in the answer to be true, with the
qualification that the width of the street
was left undefined because it constituted the
whole space between the line of the squares
and the river, whatever that might be deter-
mined to be from time to time ; out that the
commissioners, on March 22, 1796, made an
order directing it to be laid out eighty feet
in width from square 1079 to square east of
square 1025, and to 'run out the squares
next to the water and prepare them for di-
vision,' and that it was bo designated on the
maps of the city in 1803. If not, the infer-
ence is all the stronger that the whole space
south of the line of the lots was intended to
be the property and for the use of the pub-
lic Barclay v. HotoeU's Lessees, 6 Pet 498
[8: 477]. In Rotoan's Ewers, r. Portland, 8
B. Mon. 239, that inference was declared to
be the legal result of such a state of facts.
"It is quite certain that such a space was
designated on the official map of the city as
071
810-24d
SUFRBMB COUBT OF THS UNITED STATE8.
small idandB, and the diancellor held, July
10» 1816, ''that the land covered by the wa-
ter cannot be called grantable land, although
possibly islands mav have been taken up to-
S ether, between which the water someumes
ows."
Of course, the recent decisions of the
couitts of Maryland, giving to the statutes of
that state a oonstruotion at variance with
thai which prevailed at the time of the ces-
sion, cannot control our decision as to the
effeot of those statutes on the territory with-
in the limits of the District of Columbia
since the legislative power has become vested
in the United States. Ould v. Washington
Hospital, 96 U. S. 303 [24 : 450] ; RusseU v.
Allen, 107 U. S. 163, 171 [27: 397, 400] ; De
Vaughan v. Hutchinson, 165 U. 8. 570 [41:-
829].
At the utmost, such decbions can only be
considered cm affecting private rights and
controversies between individuals, lliey
cannot be ffiven effect to control the policy of
the United States in dealing with property
held by it under public trusts.
This aspect of the question was considered
by Mr. Justice Cox of the supreme court of
the District of Columbia, in a case arising
out of the legislation of Congress establish-
ing the Rock Creek park; and wherein the
ef^ct of a patent ffranted by the state of
Maryland, in 1803, for a piece of land after-
wards included in the park, was In question.
It was said in the opinion:
"There is a still more important question,
and that is whether the state of Maryland at
that period could convey any interest, legal
or equitable, in the property. In the act of
1791, ceding this property to the United
States, there is this proviso: That the ju-
risdiction of the laws of this 'state over the
persons and property of individuals residing
within the limits of the cession aforesaid
shall not cease or determine imtil Congress
shall by law provide for the government
thereof, under their jurisdiction in manner
[Mljprovided b^ the article of *the Coodtitution
before recited.' Now this continues in
force the jurisdiction of the laws of the
state of Maryland over the persons and prop-
erty of individuals residing therein. To
make that applicable to the ]>resent case
it would be necessary to have extended it
to the property held by the f^tate; but it
seems to me that it extended no further
than to say that the laws whidi affected
private rights should continue in force
until proper provision was made by Con-
gress. See what the consequences would be
if another construction had been given to it;
The state of Maryland extended to the Vir-
ginia shore, and suppose that after this ces-
sion and before 1801 the state of Maryland
had undertaken to cede to the state of Vir-
ginia the whole bed or bottom of the Poto-
mac river, from its source to its mouth, in-
cluding that part in the District of Colum-
bia, doubtless Congress could have had some-
thing to say about it after the cession had
been made. We are satisfied, therefore, that
the proviso does not continue in operation
the land laws of the state of Maryland, and
consequently no title could be derived at the
062
dates of this snircy and patent m
date when the warrant on wUck
based was taken out. We are
the proviso does not owtiaQe in
the land laws of the state of
the public lands owned by the itefee
the said district, and that
title to such lands could be obtained hf
ent from the state after the act of 1791.
This decision was adopted and tht
approved by this court in the case of
maker r. United States, 147 U. &
187],
If any doubt is left as to whether
intended by the resolution of 1839 to
the river and its subjacent soQ to tW
nary land laws as administered by tW
0£9ce, that doubt must, as we think, 1
moved by a consideration of the cx^m
guase of the proviso therein contained,
holding lands held by the United
public purposes from the operatioa of
acts of Maryland. The language of tht
viso is as follows: **Providei, thet mt^
lands which may have been ceded lo, sr ^
quired by, the United States^ for pulHe pr^
poses, shall not be affected by smck «cia.*
•Placed as this proviso is, at the tad *■* r*
enactment, the natural implicatioa ii
Congress did not intend to include the
which the United States held for pvUie
poses within the scope of the retointioa. b«
added the proviso out of aboDdaat
However this may be, the intention
is clear that, in the administratioa of
land laws by the Secretary of the T
through the General Land Ofike. the
that had been ceded to or acquired Vr im
United States for public purposes JLemd
not be affected.
What were the lands so held by the Vuiai
States? Undoubtedly, the squares and l«
selected by the President as sites Ur tas
President's house, the capitol, and other
lie buildings, and which* had bees, ta
effect, dedicated to public um by the
tors, were not meant, oecause the reniHttv
in terms provides that the lands to te
affected were such as were within the comf
of Washington and without the Itmnits ef tlii
oityof Washington,
There may have been other land heH W
the United States for public purpose* iw>
side of the limits of the city of Ws^hiaet^a
but surely the Potomac river and its hri «
far as they were embraced in the covatr /
Washington, were included in the Urtm d
the proviso. Indeed, it is not too ««r^ t*
say that they constituted the rrrr !«*i
which Congress was solicitous to wttVW':
from sale under proceedings in the Lead
Office.
It cannot, we tliink. be «nrt*^fl''»
claimed that even if, in 1 839. tl»e land« tr-
braced within the Kidwell patent wrrr ff
empted from the juri-Mitotion of the La*d
Office, yet they were brought within tkst
jurisdiction by the fact that the watiT* fcal
so far receded in 1869 as to permit soae m^
of possession and occupancy. Net hatnr
been within the meaning of the reeolatioa rf
1839, they would not be broocht withii «
by a subsequent change of phymieal tottfr
174 v. ft^
MoBBiB y. Unitbd States.
243-245
ion, but a further dedaration by Congress
»f a desire to open them to private owner-
hip -would be necessa^.
fieaidee, the facts of the case show that
>oii^re88 is assertinff title and dominion over
liese lands for public purposes. Whether
'jongreaa should exercise its power over these
eserved *Iands by dredging, and thus restor-
ng navigation and fishery, or by reclaiming
hem from the waters for wharf ing purposes,
>T to convert them into public parks, or by
lubjectinff them to sale, could only be de-
«m)ined oy Congress, and not by the func-
donaries of the Land Office.
If, then, there was an entire want of au-
^orii^ in the Land Office to grant these
lands held for public purposes, a patent so
inadvertently issued, under a mistaken no-
tion of the law, would plainly be void, and
ifford no defense to those claiming under it
lA a^inst the demands of the government.
As was said by this court in 8t, Louis
Smelting d Ref. Oo. v. Kemp, 104 U. S. 641
[2C: 876]:
^ ''Of course, when we speak of the conclu-
sive presumptions attending a patent for
lands, we assume that it was issucKi in a case
where the department had jurisdiction to
act and execute it; that is to say, in a case
where the lands belonged to the United
States, and provision had been made by law
for their sale. If they never were public
prox>erty, or had previously been disposed
of, or if Congress had made no provision for
their sale, or had reserved them, the departs
ment woidd have no jurisdiction to transfer
them, and its attempted conveyance of them
would be inoperative and void, no matter
with what seeming regularity the forms of
law may have been observed. The action of
the department would in that event be like
that of any other special tribunal not having
jurisdiction of a case which it had assumed
to decide. Matters of this kind, disclosing
a want of jurisdiction, may be considered
by a court of law. In such cases the objec-
tion to the patent reaches beyond the action
of the special tribunal, and goes to the exis-
tence of a subject upon which it was compe-
tent to act"
Similar views were expressed in Doolan v.
Carr, 126 U. S. 618 [31: 844], where it was
said:
'There is no question as to the principle
that where the officers of the government
have issued a patent in due form of law,
which on its face is sufficient to convey the
title to the land described in it, such patent
is to be treated- as valid in actions at law as
distinguished from suits in equity, subject,
]*however, at all times to the inquiry whether
such officers had the lawful authority to
make a conveyance of the title. But if those
officers acted without authority, if the land
which they purported to convey had never
been within their control, or had been with-
drawn from that control at the time they
undertook to exercise such authority, then
their act was void — ^void for want of power
in them to act on the subject-matter of the
patent — ^not merely voidable; in which lat-
ter case, if the circumstances justified such
174 U. 8.
a decree, a direct proceeding, with proper
averments and evidence, womd be required
to establish that it was voidable, and ther^
fore should be avoided. . .■ . It is never-
theless a clear distinction, established bv
law, and it has often been asserted in thu
oourt, that even a patent from the ffovem*
ment of the United States, issued with all
the forms of law, mav be shown to be void by
extrinsic evidence, if it be such evidence as
by its nature is cajsable of showing a want
of authority for its issua**
The further contention on the part of the
United States, that the lands embraced with*
in the Kidwell patent lie within the limits
of the city of Washington, and that therefore
they were, for that reason, not grantable by
the Land Office, we have not found it neces-
sary to determine, and we refrain from ez-
pressinff any opinion upon it.
Xor do we need to enter at any len^h into
the question of fraud attending the issue of
the patent. We deem it not improper to say,
however, that the all^ations imputing fraud
to the government officials concerned in the
issuance of the patent, or to those who were
active in procuring it, or in asserting rights
under it, do not appear to us to have been
sustained by the evidence.
We therefore conclude this branch of the
case by affirming the decision of the oourt
below, "that the proceedings of Elidwell, un-
der the resolution of 1839, to obtain a patent
for the 'Kidwell Meadows,' and the issue of
that patent, are inoperative to oonfer upon
the patentee or his assigns any title or inter-
est m the property within its limits, adverse
to the complete and paramount right therein
of the United States."
It is ur^ed on behalf of those claiming un-
der the Kidwell *patent that a court of equity [846]
will not set aside the patent at the suit of
the United States, unless on an offer by the
latter to return the purchase money; that,
in granting the relief, the court will impose
such terms and qualifications as shall meet
the just equities of the opposing party.
As the invalidity of the patent in the pres-
ent case was not apparent on its face, but
was proved by extrinsic evidence, and as the
controversy respecting the title was not
abandoned by the defendants, they were not,
we think, entitled to a decree for a return
of the purchase money, or for costs. Peir*
soil V. Ellioit, 6 Pet. 96 [8: 332].
Before considering the remaining claims it
will be necessary to dispose of the question
of the river boundary of the city of Washing- •
ton.
What place should be selected for the per-
manent seat of government was, as shown by
the histories of the times^ a matter of long
and bitter debate, occupying a large part c3
the second session of the second Congress.
After the claims of Philadelphia and Balti-
more had been adversely disposed of, the
question was reduced to a choice between a
site on the Susquehanna river in Pennsyl-
vania and one on the Potomac river. And
we learn from the recently published jour-
nal of William Maclay, Senator from Penn-
sylvania, 1780-91, and who was an earnest
advocate for the former, that the allegation
963
240^248
Supreme Court of the Uiotbo States.
that a large expenditure would be required
to render the Susquehanna navigable wae
used as a decisive argument in favor of the
site on the Potomac Maclay's Journal, p.
The result was the act of July 16, 1790 (1
Stat, at L. 130, chap. 28), whereby the Pres-
ident was authorized to appoint three com-
missioners to survey and, by proDer metes and
bounds, to define and limit, unaer his direc-
tion, a district of territory, to be located on
the river Potomac By the same act, the
commissioners were empowered ''to purchase
or accept such quantity of land on the east-
em side of the said river, within the said
district," as the President might deem prop-
er for the use of the United states, and ao-
cording to such plana as he might approve,
and were required, prior to the first Mon-
day of December, 1800, to provide suitable
[M6] buildings for the accommodation *of Ooiir
gress and of the President and for the public
offices of the government.
It has been the practice in this country.
In laying out towns, to have the plat surveyed,
and a plan made in accordance with the sur-
vey, designating the streets, public squares,
and open spaces left for commons, wharves,
or any other public purpose. Those streets,
squares, and open spaces are thus dedicated
to the public by the proprietors of the soil,
whether they be the state or private individ-
uals. When a town is situated on a naviga-
ble river it is generally the custom to leave
an open space between the line of the lots
next the river and the river itself. This was
done by William Penn in 1682 in the orig-
inal plan of the city of Philadelphia or the
Delaware river front, and he called it a top
oommon; and in 1784 his descendants, the
former proprietors, in their plan of Pitts-
burgh, adopted a similar measure of leaving
such an open space, and they called it Wa-
ter street. Birmingham v. Anderson, 48
Pa. 258.
In 1789 the proprietors of the land on
which the city of Cincinnati is built pursued
the same policy, and in their plan the ground
lying between Front street and the Ohio
river was set apart as a common for the use
and benefit of the town forever. City of
Cincinnati v. White, 6 Pet. 432 [8:453];
Barclay v. HoioelVs Lessee, 6 Pet. 498 [8:
477] ; Vew Orleans v. United States, 10 Pet
662 [9: 673]; Barney v. Keokuk, 94 U. S.
839 [24 : 228] ; Roxoan's Executors v. Port-
land, 8 B. Mon. 232.
• Our examination of the evidence has led
OS to the conclusion that it was the intention
of the founders of the city of Washington
to locate it upon the bank or shore of the
Potomac river, and to bound it by a street
or levee, so as to secure to the inhabitants
and those engaged in commerce free access
to the navigable water, and that such inten-
tion has never been departed from.
While, as we have already seen, the Unit^
ed States became vested with the control and
ownership of the Potomac river, and its sub-
jacent soil, within the limits of the District,
by virtue of the act of cession by the state of
Maryland, it must yet be conceded that, as to
C^'lthe land above high- water *mark, the title of
064
the United States must be found is the
actions between the private pi
the United States, consisting
agreements entered into by the
their deeds of conveyance to the
their concurrence in the actioB of the
missioners in laying out plats and eiring
tificates, and their recognition oi Uie sew
plans of the city made under the
of the President.
As we have already said, our inqniiT is »
to the intention of the parties to be agtrteH.
but that intention need not be expreaaeA bf
any particular form or ceremony, h«t bbt
be a matter of necessary implication and
inference from the nature and ciresaMtaaeB
of the case.
We cannot undertake to <'**■"**** noa
each and every step of the transaetiona/W
shall briefly refer to those of the Boat af-
nificance.
And, first, in the agreement of Xax^ IX
1791, signed by the principal propricton^ ii-
eluding Robert Peter, David Bums, Vocl^
Toun^, and Daniel Carroll, are the foQeviif
recitals :
"We, the subscribers, in eonsideratMn rf
the great benefits we expect to derhne fron
having the Federal city laid off opoa ok
lands, do hereby acree and bind o«tr«^. sv
heirs, executors, and administratora, to ros-
voy in trust to the President of the Uaitai
States, or commissioners, or such penoa m
persons as he shall appoint, tnr good aa<
sufiScient deeds in fee simple, the whok flf
our respective lands whicn be nay thok
proper to include within the linea of the fW-
eral city, for the purposes and on the tm-
ditions following:
''The President shall have the sole powr
of directing the Federal city to be laid off a
what manner he pleases. He may ntsa
any number of squares he may thiiuc pcvfir
for public improvements, or other p«Wir
uses, and the lots only which shall be hid
off shall be a joint property betwcea tte
trustees on behalf of the public and fart
present proprietor, and the same thaD \m
fairly and equally divided between the pahfir
and the individuals as soon as may be aflv
the city shall be laid out.
''For the streets the proprietors shall it^
cei ve no compensation , *but for the sqnarcs <r, ^t^
lands in any form which shall be takva far
public buildings or any kind of pohlie i»
provements or uses, the proprietors, wWa
iands shall be so taken, shall reoeire at tht
rate of twenty-five pounds per acre, ts hi
paid by the public," etc
And by an agreement of March M, ITVt.
the proprietors of lots in Carroll sbarfK »
eluding Daniel Carroll and Notlcj Tonif. t
wasprovided as follows :
"We, the subscribers holding or cntitM to
lots in Carrollsburgh, agree with each otk«
and with the President of the United StalM
that the lots and land we hold or are cntitM
to in Carrollsburgh shall be subject to be hid
out at the pleasure of the President as fsit
of the Federal city, and that we will rtttkn
one half the quantity of our raspective \m
as near their present sitnatiott as may afiat
with the new plan* and where we msy b» m-
174 v. ft^
99S.
Morris t. Unitbd States.
848-851
[tied now to only one lot or otherwise not
Qtitled. on the new plan to one entire lot, or
o not agree with the President, oommis-
ioners, or otlier person or persons acting on
eh&lf of the public on an aidjustment of our
nterest, we agree that there shall be a sale
f tbe lots in which we may be interested
espectivdy, and the produce thereof in
aoney or securities shall be eaually divided,
me £a.]f as a donation for the use of the
JTnited States under the act of Ck>ngres8, the
^her lialf to ourselves respectively. And we
m^age to make conveyances of our respect-
ve lots and lands aforesaid to trustees or
>thenivise whereby to relinquish our rights
to the said lots and lands, as the President
yr such commissioners or persons acting as
Biloresaid shall direct, to secure to the unit-
ed States the donation intended by this
a^eement.*'
A similar agreement was entered into by
the o'wners of lots in the town of Hamburgh.
Following these agreements came the con-
veyances by the several proprietors to Beall
and Grantt, trustees. Without quoting from
th^m at length, and referring to those of
David Bums and Notley Young, copied in
full in the statement of the case, it is suffi-
cient here to say that the proprietors, by
said conveyances, completely devested them-
selves of all title to the tracts conveyed, and
that the lands were granted to the *said trus-
tees, **to have and to hold the hereby bar-
gained and sold lands with their appurte-
nances to the said Thomas Beall and John
Macdcall Qantt, and the survivor of them,
and the heirs of such survivor, forever, to
and for the special trust following, and no
other, that is to say, that all the said lands
hereby bargained and sold, or such part
thereof as may be thought necessary or prop-
er, be laid out together with the landa for
a Federal city, with such streets, squares,
parcels, and lots as the President of the Unit-
ed States for the time being shall approve;
and that the said Thomas Beall and John
^Tackall Gantt, or the survivor of them, or
the heirK of such survivor, shill «?onvey to
the commissioners for the time being ap-
pointed by virtue of an act of Congress en-
titled 'An Act for Establishing the Tempo-
rary and Permanent Seat of the Government
of the United States,' and their successors,
for the use of the United States forever, all
the said streets, and such of the said squares,
parcels, and lots as the President shall deem
proper for the use of the United States. And
that as to the residue of the lots into which
fhe said lands hereby bargained and sold
shall have been laid out and divided, that
a fair and equal division of them shall be
made," etc.
In a suit between the heirs of David Burns
and the city of Washington and the United
States this court had occasion to pass upon
tne nature of these grants, and used the fol-
lowing language:
**It is not very material, in our opinion,
to decide what was the technical character
of the grants made to the government;
whether they are to be deemed mere dona-
tions or purchases. The grants were made
for the foundation of a Federal city, and '
174 U. 8.
the public faith was necessarily pledged,
when the grants were accepted, to found
such a city. The very agreement to found
a city was itself a most valuable considera-
tion for these grants. It changed the nature
and value of Sie property of the proprietors
to an almost incalculable extent. The land
was no longer to be devoted to agricultural
purposes, but acquired the extraordinary
value of city lots. In proportion to the suc-
cess of the city would be the enhancement of
this value ; and it required scarcely any *aid[260]
from the imagination to foresee that this act
of the government would soon convert the
narrow income of farmers into solid opu-
lence. The proprietors so considered it. In
this very agreement they state the motive
of their proceedings in a plain and intelli-
§ible manner. It is not a mere gratuitous
onation from motives of generosity or pub-
lic spirit; but in consideration of the great
benefits they expect to derive from having
the Federal city laid off upon their lands.
Neither considered it a case where all was
benefit on one side and all sacrifice on the
other. It was in no just sense a case of
charity, and never was so treated in the ne-
gotiations of the parties. But, as has been
already said, it is not in our view material
whether it be considered as a donation or a
purchase, for in each case it was for the
foundation of a city." Van Ness v. City of
Washington and United States, 4 Pet. 284
[7:860].
In Potomac Steamboat Co. v. Upper Poto-
mac S. B. Co, 109 U. S. 686 [27: 1076], after
an elaboraie consideration of the agreements
and conveyances, it was said:
'•Undoubtedly Notley Young, prior to the
founding of the city and the conveyance of
his land for that purpose, was entitled to
enjoy his riparian rights for his private uses
and to the exclusion of all the world besides.
It can hardly be possible that the establish-
ment of the city upon the plan adopted, in-
cluding the highway on the river bank, could
have left the right of establishing publio
wharves, so essential to a great center of
population and wealth, a matter of altogeth-
er private ownership."
Thomas Johnson, Daniel Carroll, and
David Steuart were, on January 22, 1791,
appointed by President Washington such
commissioners; and on March 30, 1791, by
his proclamation of that date, the President
finally established the boundary lines of the
District; directed the commissioners to pro-
ceed to have the said lines run, and, by prop-
er metes and bounds, defined and limited;
and declared the territory, so to be located,
defined and limited, to be the district for the
permanent seat of the government of the
United States.
With the lines of the District thus estab-
lished, the next important question that pre-
sented itself was the location of the *Federal[25l]
city, in which were to be erected the build-
ings for the accommodation of Congress, the
President's house, and the public offices.
We are here met with a serious contro-
versy as to the place and nature of the river
boundary of the city. The record contains
a large amount of evidence, consisting chief-
965
851-268
SUFBEME COUBT OF THE UXITCD STATES.
I7 of maps and plans, of correspondence be-
tween the President and the commiBsioners,
the deeds of conveyance by the original pro-
prietors, and the testimony of old residents,
some of whom had acted as surveyors and en-
gineers during the early history of the city.
We cannot complain of having been leit
unassisted to examine and analyze this mass
of evidence, for we have had the aid of the
painstaking opinion of the court below and
ef a number of able briefs on all sides of the
eontroversy.
• As a national city was to be founded,
which was to be the permanent seat of the
government of the United States, where for-
eign nations would be expected to be repre-
sented, and as the site selected was on a nav-
igable, tide-water river, inviting foreign and
£>mestic commerce, we should naturally ex-
pect to find the city located in immediate
proximitj^ to the river, with public wharves
and landings, and with a municipal owner-
ship and control of the streets and avenues
leading to and bounding on the stream.
As we have seen, the agreement of the pro-
prietors provided that '"the President shall
nave the sole power of directing the Federal
dty to be laid off in what manner he pleas-
■ M
In the exercise of that power the Presi-
dent, at different times, caused several maps
or plans of the city to be prepared, the au-
thenticity and effect of which constitute a
large part of the controversy in the present
case.
The earliest of these plans was that pre-
pared in 1701, bv Major L'Enfant, and was
by him submitted to the President on August
19 of that year. On October 17, 1791, after
advertisement, and under direction by the
President, the commissioners sold a few lots.
On December 13, 1791, by a communication
of that date, the President placed before
Congress this L'Enfant plan. On this plan
the squares were imnumbered and the streets
unnamed.
[862] ^Afterwards differences aroee between
L'Enfant and the commissioners, which re-
sulted in the removal of L'Enfant by the
President early in lid^ch, 1792. Thereupon
Andrew Ellicott was directed by the Presi-
dent to prepare this plan so that it might be
engravea, but Major L'Enfant refu^ to
permit Ellicott to use his original plan, and
Ellicott proceeded to prepare a plan from
materials in his possession and from such
Information as he had acquired while acting
jts surveyor under L'Enfant.
It may be well to mention, though out of
chronological order, that in a letter of Feb-
ruary, 1797, President Washington, in a
letter to the commissioners, referring to
L'Enfant's plan and to certain alterations
tiiat had been made, stated that Mr. David-
son, a purchaser of lots, "is mistaken if he
supposed that the transmission of Major
X'Enfant's plan of the city to Congress was
the completion thereof; so far from it, it
would appear from the message which ac-
companied the same that it was given as a
matter of information only to show what
fltate the.businese was in ; that the return of
it was requested; that neither house of Con-
966
Sess passed anv act conseqneat
at it remained as before onder
of the Executive."
ElHcott completed his plan
before the President on Febroary 20, ITU
This plan was engraved at Bostoa aad as.
Philadelphia — the engraved pUna diA
in the circumstance l£at the lattor did
the former did not exhibit the
the river front and on the
On October 8, 1792, the
who had been notified that "mhtmt 14t
squares were prepared and ready for £w
sicn," had a second public sale of kKs^-t
copy of Ellicott's engraved plan beng cxko^
ited at the sale. Under the general aatkv>
ty conferred upon them by the Prendoo. m
September 29, 1792, to make private mm
at such prices and on sudi terms as tiff
might think proper, the eommissioacn, b-
fore November 6, 1792, had effected ftrna
sales of fifteen lots.
Between 1792 and 1797, this plan of Bb-
cott's known as the "engraved plan," ■»•
circulated by the commismoners iB'theUci' '
ed States, and forwarded to Eoropeaa eocr
tries from the Office of State, as tbe pbs m
the city, and was referred to as sneh W tk
commissioners in their negotiatioiis for m»
for the purpose of carrying on the "'"
buildings.
On Fd>ruary 27, 1797, the
addressed a letter to the President, ia vkci
among other things, they said:
'*What Mr. Davidson aUudes to in Ui »
morial, when he says deriatkms hate hm
made since the publication of the etfm^
Slan, we know not ; that plan reqairtA ^
oing of many actp to carry it into eftrf-
such as the laying out and booBding a nar
street on the waters which suiiowW tn
city, and laying out squares where notf
spaces unappropriated were left ia tttv%
Sarts of the city. Acts of this kind tew ■
oubt from time to time been doae, sad «^
the full consent of all interested."
It appears that the Ellicott nlaa «•«. ■
some respects, incomplete, as it aid w^ ^
all the squares or correctly deliacstt v
public reservations, and was made hthn^
completion of the surveys.
The first appearance of the Deraott w»
that we find in this record, was oa Jot U
1795, when, as appears in the pioewdar^
the commissioners of that date, **Derv(<t i
directed to prepare a plat of the dt; «^
every public appropriation plainly sm 6*^
tinctly delineated, together with tht spT
priation now made by the board lor tk v
tional University and Mini."
On March 2, 1797, by an instrmiwi li^
hi<t hand and seal. President Waahii^ ^
auested Thomas Beall and Jobs IL G^^^
iie trustees, to convey to the eoanuwMff*
all the streets in the dtr of WashiMtoa «
thry are laid out and delineated in Ut ?^
of the city thereto annexed; aad >ho^
several squares, parcels, and Iota of f^
therein described. Though in this eoaa"*'
cation President Washington mcaUeeri '
plan of the citv as anneaed thereto, Y*( *
seems that a plan was not ao ari«^ **'
nexed. And on June 21, 1798, tW ta^
m.
MoBBis T. Unttbd Statm.
258-251
oners wrote « letter to President Adams
1 the following terms :
"At the close of the l&te President's admin-
itration he executed *an act directing the
*ustees of the city of Washington to convey
> the commissioners the streets of said city
ad the grounds which were appropriated to
ublic use. In the press of ousiness the
Ian referred to was not annexed. We now
md it bT Mr. Nourse, with the original act
nd the draft of another act, which appears
0 us proper to be executed by the present
Resident, in order to remove any objection
3 a compliance with the late President's re-
uest arising from the omission above men-
ioned. As these acts are the authentic doc-
imente of the title of the public to the lands
.ppropriated, we shall write to Mr. Craik,
r some other gentleman, to take charge of
heir return rraier than trust them to the
nail."
Accordingly, on July 23, 1708, President
Idams, by an instrument reciting the act ex-
icuted by hie predecessor on March 2, 1707,
lod the non-annexation to that act of the
>lan of the city therein mentioned, makes
mown to Beall and Gantt, trustees, that he
las caused tiie said plan to be annexed to the
laid act, and requests them to convey to the
XHumissioners for the use of the United
^tee forever, according to the tenor of the
ictof Congress of July 16, 1700, "all the
itreeta in the said city of Washington, as
they are laid out and (delineated in the plan
>f the said city hereto annexed, and all the
iquares, parcels, and lots of ground described
In the said act as public appropriations."
The following entry, as of the date of Au-
B^ust 31, 1708, appears in theproceedings of
the commissioners: "Mr. William Craik
ielivered into the office the plan of the dty
of Washington, with the acts of the late and
present Presidents."
Some dispute subsequently arose as to
whether the plan which President Washing-
ton intended to have annexed to his act was
the plam Off Ellicott or that of Dermott.
Thus, in an opinion delivered on December
16, 1820, by Attorney General Wirt to Presi-
dent Monroe, it was said that "if President
Washington has, as Mr. Breckinridge states,
previously ratified Ellicott's engraved plan,
this must be considered as the plan he in-
tended to annex, and it was not competent
for President *Adams to give the instrument
of writinff a different direction by annexing
to it a different plan."
But this opinion was evidently given in
Iterance of the proceedings of the commis-
sioners on June 21, 1708, already referred
to, and in which it appears that, in their
letter to President Adams, they mention that
the plan sent was "the last plan of the citv,
made by Mr. Dermott, and referred to in
Kaid instrument of writing" — ^the said in-
strument of writing being President Wash-
ington's act of March 2, 1707.
We also find in the record that, on Janu-
ary. 7, 1700, Attorney General Lee, in an
opinion giv^i to President Adams, said:
"Already a plan of the city has been ap-
proved and ratified by the President of the
united States, who has signed the plan it-
174 U. 8.
self, or an instrument referring to the plaii«
which I presume is a sufficient authentictr
tion. If this plan, under the President's
signature^ varies from the L'Enfant's or £1*
licotfs essays, they must yield to it, as they
are to be oonsidered only as preparatory to
that plan which received ultimately the for-
mal and solenm approbation of the Presi-
dent. It is not supposed that this is incom-
plete in any respect, except in relation to
the rights appurtenant to the water lots, and
to the street which is to be next to the wa^
tercourses."
The record also contains a copy of a report
of a committee of the House oi Representa-
tives, of April 8, 1802, in which it is said,
referring to the Dermott plan:
"This plan has been signed by Mr. Adams,
in conformity with which the trustees were
directed by him to convey the public grounds
to the United States, and is considered by
the commissioners the true plan of the cit^.
The plan has never been engraved or pub-
lishea. . . . Your committee are of the
opinion that suffering the engraved plan,
which is no longer the true plan of the city, •
to continue to pass as such, may be product-
ive of great deception to purchasers; and
that measures ought to be taken for its sup-
pression."
On July 14, 1804, President Jefferson, in
a communication to Mr. Thomas Monroe, Su-
perintendent of Public Buildings, said:
"The plan and declaration of 1707 were
final so tar as they *went, but even they left[266]
many^ things imfinished, some of which still
remain to be declared."
What would seem to be decisive of the dis-
pute is the fact that in the act or instrument
signed by President Washington on March
2, 1707, is contained, by metes and bounds,
a specification of the reservations, seventeen
in number, and those metes and bounds do
not coincide with the reservations indicated
upon the Ellicott plan, but do accurately co-
incide with the reservations as indicated in
the Dermott plan.
We, therefore, cannot doubt that the Der-
mott map was the one intended bv President
Washington to be annexed to nis act of
March 2, 1707.
But while we regard the Dermott map as
sufficiently authenticated, we do not accept
the contention that it is to be considered as
the completed and final map of the city, and
that it alone determines the questions before
us.
On the contrary, we think it plain, upon
the facts shown by this record, that the Pres-
ident, the commissioners, and the surveyors
proceeded, step by step, in evolving a plan
of the city, under each of the plans men-
tioned lots were sold and private rights ac-
quired. Changes were, from time to time,
made to suit the demands of interested par-
ties, and additions were made as the surveys
were perfected. Even the last map approved
by President Washington, as was said by
President Jefferson in 1804, left many things
unfinished, some of which still remained to
be declared.
In short, we think that these several maps
are to be taken together as representing tne
356-258
Supreme Coxtrt of the United States.
Oct.
intentions of the founders of the city, and,
so far as possible, are to be reconciled as
parts of one scheme or plan.
Pursuing such a method of investigation,
we perceive that, in the first map submitted
to Congress by President Washington on De-
cember 13, 1791, as "the plan of the city,"
there is between the lots fronting on the Po-
tomac and the river itself an open space, un-
doubtedly intended as a thoroughfare and
for public ]purposes. It is true that this
open space is not named as a street. But
none of the other streets and avenues on this
map are named. And we read in a letter
lS57]of *the commissioners to Major L'Enfant,
dated September 9, 1791, as follows:
**We have agreed that the Federal district
shall be called 'The Territoiy of Ck)lumbia,'
and the Federal city 'The City of Washing-
ton;' the title of the map will therefore b<e
'A map of the City of Washington in the
Territory of Columbia.* We have also
agreed the streets be named alphabetically
one way, and numerically the other; the
former divided into north and south letters,
• the latter into east and west numbers from
the capitol. Major Ellicott, with proper as-
sistants, will immediately take and soon
furnish you with soundings of the Eastern
Branch to be inserted in the map."
This L'Enfant plan contains aJl the essen-
tial features of the city of Washington as
they exist to-day.
Owing to the disputes between L'Enfant
and the commissioners, as already stated,
the former withdrew, and Andrew Ellicott,
who had been acting as an assistant to L'En-
fant, proceeded wiui the work, with the re-
sult that about October, 1792, the engraved
or Ellicott map was completed and in the
hands of the commissioners. This • map
shows the squares numbered, the avenues
named, and the lettered and numbered
streets all designated. It also shows on the
front on the Potomac river and on the East-
ern Branch, between the ends of the lots and
the squares and the water, an open, continu-
ous space or street, extending through the
entire front of the city.
But it must be said of this map that it
did not show all the squares or correctly
place the public reservations, and, indeed, it
was made before the completion of the sur-
veys. As was said by the commissioners in
their letter of February, 1797, "that plan re-
quired the doing of many acts to carry it
into effect, such as the laying out and bound-
ing a water street on the waters which sur-
round the city."
Then came, in March, 1797, the Dermott
map, which indicated the location and extent
of the public reservations or appropriations,
and also certain new squares, not shown on
the engraved plan, and which were laid out
on the open spaces at the intersection of
streets appearing on the engraved plan ; and
also exhibited the progress that had been
r£58]niade since 1792, in ^laying down the city
upon the ground in accordance with the
scheme of the previous plans. But> as was
eaid by President Jefferson on July 14, 1804,
in a passage previously quoted, '*The plan
and declaration of 1797 were final so far as
968
tDfae
they went; but even they left
unfinished, some of whidi still
declared."
President Jefferson was probably kd t»
form this opinion by his personal kBovMp
of the situation, which was intimate. Aai
here may well be quoted a portuHi ol a kap
communication addressed to him by SiAo-
las King, surveyor of the city of Waiki*^
ton, dated September 25, 1806. in whkk tm
writer, adverting to tlie several plass tad t>
certain regulations published by the coaBf
sioners on July 20, 1795, said :
"Perfecting this part of the plan, so a» »
leave nothing for conjecture, litigatioa. t
doubt, in the manner which shall ouBt i.*-
cord with the published plan^, secure :m
health of the city, and afford tl.e most as-
venience to the merchants, require^ I— iii-
ate attention. . . . The principle •dafui
in the engraved plan, if carried into c#k
and finally established in the ptan nme '»sU
out upon the ground, when aided fay pnfcr
regulations as to the materials and laodr t
constructing wharves for vessels to 1st •:
and discharge their cargoes on. seei* «*^
calculated to preserve the purity of thf »^
The other streets will here terminate » a
street or key, open to the water, and wis:!-
ting a free current of air. It will fan •
general communication between the «W^"*
and warehouses of different merrhaatA. vi
by facilitating intercourse, render i rmv
service to them than they would deifnp f*^
a permission to wharve as they pkawi TV
position of this Water street beiar 4^**^
mined, it will ascertain the ertrnt sad *f»
ation of the building squares and f^treft* -i
the made ground, from the bank of tW rr«r
and bring the present as near to tte fc^
lished plan as now can be done. It vi!! i^
fine the extent and privileges of wmtw V*
and enable the owners to im prove witV^
fear of infringing on the rij:ht> of ocb<^
. . . Along the water side of the *f^
the free current or stream of the Hrtr s>« :
be permitted to flow and carry with it »*ai
ever may have been brought f pmb tW r:»
along •the streeU^ or sewers Tb^ irtsn -fl|
permitted beyond this stieet to the <*«w'
may be stages or bridges with piers aad <^
cient waterways under them. And re *V
wharves so erected, it would seem profrr f
prohibit the erection of houses or aarstnc
obstructing a free circulation of air. .
The surveying is now so far complrtrf ti«*.
it can be done with the utmost preci«jca iri
every foot of ground within the U«it» -
the Federal city, with its appui teiuBt v^-
ileges, may be so defined as to prereet Uve*-
tion or doubt on the subject. If it H i^
done at this time the evils will innra** «^
every year add to our difl^ulties. Ewa "^
from Uie various decisions or ne|rf«<»^ •J'*^
ations, or amendments which hivf Wn^
fore taken place, some time an iamtfau*
may be necessary in the airanafioflrt «f »
system which shall combine justice witk i»
venience. If this decision is left to a !•*'
period and our courts of law. ther eai •2y
have a partial view of the subject aa' '^
1898.
MoBBis y. Uhitbd States.
25&-262
^neral rule they may adopt may be attended
with serious disadvantages."
Nicholas King himself prepared a plan or
serial map of sixteen sheets m 1803. There
is evidence tending to show that this was
done in pursuance of an order of the com-
missioners; and in reference to it the record
containa the testimony, in the present case,
of William Forsythe, who had been connect-
ed for many years with the office of surveyor
of the city, in subordinate capacities and as
the head of it, and who was in 1876 the sur-
veyor of the District of Columbia. He says:
''I qan only say that it is the best in point
of execution of the early maps of the city;
and that it has been acted upon ever since
it has been prepared in connection with the
affairs of the surveyor's office, and that the
lines of wharfing indicated upon the map
from Rock Greek to Easby's Point have been
followed; in other words, that all the im-
provements, such as reclamation of land,
and the wharves that have been built in that
section of t^e city, were made and built in
accordance with the plan of wharfing, etc,
indicated on this map. . . . The map of
1803 has always, in my recollection going
back forty years in connection with the sur-
]veying *departraent of the city, been consid-
ered and acted upon as an official map, and
from conversation with those who have pre-
ceded me in the surveyor's office, I know ttiat
it was always considered by them as an au-
thentic official map of the city. It has in
fact been the standard map."
While it is true that this map of 1803 was
never officially approved or authenticated by
any President of the United States, as were
the earlier maps, and is not therefore of con-
clusive effect, it is, in our opinion, a legiti-
mate and important piece of evidence.
In connection with the later map of 1803,
prepared by King, ought also to be consid-
ered a series of plans drawn by him and laid
before the commissioners on March 8, 1797,
in a communication, as follows :
"I send you herewith a series of plans ex-
hibiting that part of the city which lies in
the vicinity of the water, and includes what
is called the water property, from the con-
fluence of Rock creek with the Potomac to
the public appropriation for the Marine Hos-
pital on the Eastern Branch. What appears
to me the most eligible course for Water
street, with the necessary alterations in the
squares already laid out, or the new ones
which will be introduced thereby, are distin-
guishable by the red lines which circum-
scribe them, while those already established
are designated by two black lines."
Without pausing to examine the King
map and plans in their particulars, to some
of which we may have occasion to recur at a
subsequent stage of our in vestigia tion, it is
enough to here state that the existence of a
water street in front of the city, and com-
porting, in the main, with its course as laid
down on the engrayed plan of the EUioott
plan, is distincUy recognized.
The record also contains a map proposed
by William Elliott, surveyor of the city of
Washington, in 1835, and adopted in 1839 by
the city councils and approved by President
174 V. S.
Van Buren, entitled "Plan of part of the City
of Washington, exhibiting the water lots and
Water street, and the wharves and docks
thereon, along the Potomac, from E to T
streets south." This map exhibits Water
street as extending in front *of that part of[261)
the city embracea in the map, and it also
shows that what are styled ''water lots"
front on the north side of Water street.
We have not overlooked the fact disclosed
by the evidence in the record that, even dur-
ing the presidency of General Washington,
there were complaints made, from time to
time, of alleged changes or departures from
the L'Enfant and EUicott plans, and that
also efforts were made, sometimes success-
fully, to get changes allowed. And on No-
vember 10, 1798, a memorial was addressed
to President Adams by some of the proprie-
tors of lands within the city, complaining of
changes made by the Dermott plan in some
of the features of the previous plans, and
calling attention to the incompleteness of
that plan in omitting a delineation of Water
street.
But these complaints appear to have been
ineffectual. Nor are we disposed to under*
stand them as meaning more than a call foi
a perfect delineation of Water street — not as
asserting that the Dermott plan was an
abandonment of such a street.
In connection with the various maps and
plans must be read the regulations issued by
the commissioners while they were acting,
and their contract and agreements with the
proprietors and purchasers.
In July, 1795, certain wharfing regula-
tions were published, containing, among'
other things, the following: "That all the
proprietors of water lots are permitted to
wharf and build as far out into the river of
Potomac and the Eastern Branch as they
may think convenient and proper, not injuring
or interrupting the channels or navigation of
the said waters; leaving a space, wherever
the general plan of the streets of the city re-
quires it, of equal breadth with those streets ;
which, if maae by an individual holding the
adjacent property, shall be subject to his sep-
arate ocupation and use, until the public
shall reimburse the expense of making such
street; and where no street or streets inter-
sect said wharf, to leave a space of sixty
feet for a street at the termination of every
three hundred feet of made ground." This
was certainly an assertion of the control by
the public, then represented by the commis-
sioners, over t/he *fast land adjoining the[26S]
shores and extending to the navigable chan-
nels.
Another fact of much weight is that, in the
division of squares between the commission-
ers and Notley Young, the plats of which
were signed b^ the commissioners and by
Notley Young in March, 1797, the southern
boimdary is given as Water street.
It is doubtless true, as argued in the brief
filed for those who succeeded to Young's title,
that such a division would not, of itself, have
the effect of vesting title in fee to the land
in the United States. Nor, perhaps, would
such a transaction operate as a donation by
Young te the city of the territory covered by
069
862-265
Supreme Coubt or the United Statjm.
the street, although it might be deemed a
dedication thereof to public use as a street.
But the importance of the fact consists in
the recognition by Youn^ of the existence of
Water street, as an existing or projected
southern boundary of the squares.
Stress is laid, in the arguments for the ap-
pellants, on the use of the term *'water lots,"
in the agreement of December 24, 1793, be-
tween the commissioners for the Federal
buildings, of the one part, and Robert Morris
and James Greenleaf, of the other part, and
also on the statement made, in that agree-
ment, that Morris and Greenleaf were enti-
tled to the lots in Notley Young's land, and,
of course, to the privileges of wharfing an-
nexed thereto.
It should, however, be observed that the
term ''water lots," as used in that agreement,
and elsewhere in the proceedings of the com-
missioners, does not necessarily mean that
such lots were bounded by the Potomac
river. The lots fronting on Water street
were spoken of as "water lots" because next
to that street and nearer to the river than
the lots lying behind — a fact which gave
them additional value. That this was the
usage in speaking of "water lots" appears in
Ellioott's map made in 1835, and approved
by Presidei^t Van Uuren in 183S>, where the
lots abutting on Water street on the south
are termed "water lots."
As to the statement in the agreement that
Morris and Greenleaf, as purchasers from the
[M3]commissioners of lots in *NotIey Young's
land, would be entitled to the privilege of
wharfing annexed thereto, it must be remem-
bered that that langu€ige was used in 1793,
before the division of squares between Not-
ley Young and the commissioners was made.
It is true that in the return made by the
surveyors, on June 15, 1793, of squares 472,
473, 505, 506, south of 506, and south of
south 506, they bounded said lots by the
Potomac river. But in a further and subse-
quent return, made on December 14, 1793,
these squares are given, in each instance, a
boundary by Water street. And on June 22,
1794, the commissioners adopted the later
survey, as shown by an entry on their min-
utes, as follows:
"The commissioners direct that the sur-
veys and returns made of the part of the city
in Mr. Young's land, adjoining the Potomak,
leaving Water street according to the design
of the plan of the city, be acted on inst^d
of the returns made by Major Ellioott in
some instances bounded with ard in others
near the water."
And we learn, from the evidence in the
record, that on July 12, 1794, by a letter of
that date, Thomas Freeman, a survevor in
the employ of the commissioners, informed
them that "Water street on Potomak river is
adjusted and bounded."
So tiiat Morris and Nicholson, who suc-
ceeded to the interest of Greenleaf, took un-
der their contract squares laid off in Notley
Young's land with a boundary in every in-
stance on Water street.
By various ordinances, from time to time
passed, the city, from its organization in
1802, exercised jurisdiction over the portions
970
of the Potomac river and the
adjoining the city and within Ha
So, too. Congress, by the act of May IS, US
(3 Stat, at L. 587, chap. 104), cMctod th«t
"the cit^ should have powv to musmi tht
navigation of the Potomac aad Awn
rivers, adjoining the dty, to ereet,
and regulate piu>lic wharves, and to
creeks, docks, and basins; to regulate tat
manner of erecting and ih» rates of vhaif-
age at private wharves; to regulate the i^
chorage, stationing, and mooring oi ^ '* '
Controversies arose, involving the
ing of the agreements 'between the o
proprietors and the United States aad tk
city of Washington, and as to the cffeet d
subsequent acts of Congrees and uidiiM
of the cit^ authorities, and tfaeae ifiMarni
found their way into the coorts.
Van Ness and Wife v. The Citf of Wa*-
ingion and the United StaUe, 4 Pet. 232 fT
842], grew out of an act at Congrew ol Mxt
7, 1822, authorizing the oorporatioB of WsA-
ington, in order to improve certain part* af
the public reservations and to drain th» W
grounds adjoining the river, to lay rf a
building lots certain parte oi the pMie tc^
ervatJons and squares, and al«4> a pait ^
B street, as laid out and designated ia tk
original plan of the city, which k^ tk?
might sell at auction, and apply the pv^***^
to those objects, and afterwards to
planting, and improving other rei
the surplus, if any, to be paid into the T
ury of the United SUtes. The act abo •»•
thorized the heirs or vendees of the iorwm
proprietors of the land on which the city «»
laid out, who might consider themselw ir
lured by the purposes of the act, to iaatitsii
m the circuit court of the District of Coh*-
bia a bill in equity against the CnitedSutu
setting forth the grounds of any dais tky
might consider themselves entitled to asb
the court to hear and determine npea tk
claim of the plaintiffs, and what portiea. ^•
any, of the money arising from ibe mik d
the lots they might be entitled to, witk «
right of appeal to this court. The plaiitiK
Van Xefts and wife, filed their bill sftaA
the United States and the city of Wa«KaEr
ton, claiming title to the lots which had Wt
thus sold, under David Buma, the orifi»
proprietor of that part of the city, oa tk
ground that by the agreement bet awe tte
United States and the original propriKfft
upon the laying out of the city, thoae i«Min
tions and streets were forever to rcaait <^
public use, and without the conaeat of t^
proprietors could not be otherwise appnfr^
ated or sold for private use ; that by mA
sale and appropriation for prirate as* tk
right of the United SUtes thereto was A^
termined, or that the original propHKr*
reacquired a right to have the reeerrstwr*
laid out in building lota for their joist ai
equal benefit with the United States, or Uai
they were in equity entitled to the wheb' J
a moiety of the ^proceeds of the aale* cfikiP
loto. This court held that the Unit«l 5^ti»
possessed an unqualified fee in the slm*
and squares, and that no right or daiss tt
isted in the former proprietor* or their Wm
174 U&
La96.
MoRBis V. Unitbd States.
965-217
This decision is criticised by the learned
ooujuBel of the appellants as founded on an
arroneouB assumption by the court, ttiat
Beall and Gantt, the trustees, had made a
conveprance, on November 30, 1791, of all the
premiaes contained in the previous agree-
mentSy including the squares or lots for pub-
lic buildinffs and the land for the streets.
And, indeed, it does appear, by the evidence
in the present case, that although both Pres^
dent Washington and President Adame did
formally request the trustees to convey to
the commissioners all the streets iii the city
of Washington, and also the several squares,
parcels, and lots of ground appropriated for
public purposes, yet that the trustees, owing
to disputes and objections on the part c3
several of the original proprietors, failed to
ever actually execute such a deed of conv^-
ance. Tet even if such an alleged state of
facts had been made to appear to the court,
namely, that no conveyance of the land in
the streets had been actually made by the
trustees, we think the conclusion reached by
the court in that case could not have been
different.
In the act of Maryland, ratifying the ces-
sion, and entitled ''An Act Goncerninff the
Territory of Columbia, and the City of Wash-
ington," passed December 19, 1791, was con-
tained the following:
**And he it enacted^ That all the sc^uares,
lots, pieces, and parcels of land within the
said city, which nave been or shall be ap-
propriated for the use of the United States,
and also the streetSj shall remain and be for
the use of the United States ; and all the lots
and parcels, which have been or shall be
sold to raise money as a donation as afore-
said, shall remain and be to the pur-
chasers, according to the terms and condi-
tions of their respective purchase . . ."
In August, 1855, Attorney General Cush-
ing rendered to the Secretary of the Interior
an opinion upon the question of the author-
ity of the Commissioner of Public Buildings,
I]a8 'successor of the early commissioners, to
sell and convey lots in the city of Washing-
ton. Adverting to the act of the legisla-
ture of Maryland of December 19, 1791, and
cifing the section above quoted, he said:
'This provision seems to have been de-
signed to have the legal effect to vest in the
United States the fee of all the lots, con-
veyed for their use, and also to perfect the
title of nurchasers to whom sales had been
or 8)ioula be made according to the terms of
the act of Congress." Ops. Atty. Gen. p. 355.
And even if the act of Maryland did not
avail, of itself, to convey unto the United
States a legal statutory title, the facts show
that the United States were entitled to a
conveyance from the trustees, and a court of
eoui^ will consider that as having been done
which ought to have been done.
In point of fact the trustees did, by their
deed of November 30, 1796, on the request
of President Washington, convey to the com-
missioners in fee simple all that part of the
land which had been laid off into squares,
parcels, or lots for buildings and remaining
80 laid off in the city of Washington, su^
ject to the trusts remaining unexecuted.
174 U. S.
In the case of Potoinac Sieamhoat Co. T.
Upper Potomac 8, B. Company, 109 U. 8.
672 [27: 1070], it was held, following Fan
yeas V. City of Waahington^ that the fee
of the streets was in the ei^, and further
that the strip between the squares and lots
and the Potomac river was such a street, and
that there were no private riparian rifhts
in Notley Toung and those who suooeeded to
his title.
In the discussion of the evidence that led
to such a conclusion Mr. Justice Matthews
said:
"It has been observed that both squares
Na 472 and No. 504 are bounded on the
southwest by Water street. This street was
designated on the adopted plan of the city
as occupving the whole line of the river
front, and separating the line of the squares
from the river for uie entire distance from
Fourteenth street to the Arsenal grounds.
It is alleged in the bill in respect to this street
that there was traced on the map of the cily
'but a single line denoting its general course
*and direction; that the dimensions of said[297]
Water street, until the adoption, on the
22d of Februarv, 1839, of the certain plan of
one William Elliott, as hereinafter more par-
ticularly mentioned, were never defined by
law; and that the said Water street was
never, in fact, laid out and made in the city
until some time after the dose of the recent
civil war; that before the commencement of
said civil war one high bluff or cliff extended
along the bank of said river in the city of
Washington, from Sixth street west to Four-
teenth street west; that to the edge thereof
the said bluff or cliff, between Uie points
aforesaid, was in the actual use and enjoy-
ment of the owners of the land which it
bounded towards the river; that public
travel between the two streets last above
mentioned, along the said river, could only
be accomplished bv passing over a sandy
beach, and then only when the tide was low;
and that what is now the path of Water
street, between the two streets aforesaid,
was and has been made and fashioned by
cutting down the said cliff or bluff and filling
in the said stream adjacent thereto.'
"These allegations m substance, are ad-
mitted in the answer to be true, with the
qualification that the width of the street
was left undefined because it constituted the
whole space between the line of the squares
and the river, whatever that might be deter-
mined to be from time to time ; out tiiat the
commissioners, on March 22, 1796, made an
order directing it to be laid out eighty feet
in width from square 1079 to square east of
square 1025, and to 'run out the squares
next to the water and prepare them for di-
vision,' and that it was so designated on the
maps of the city in 1803. If not, tiie infer-
ence is all the stronger that the whole space
south of the line of the lots was intended to
be the property and for the use of the pub-
lic. Barclay v. HotoeU'a Leaaeea, 6 Pet 498
[8: 477]. In Rotoan'a Ewera. v. Portland, 8
B. Mon. 239, that inference was declared to
be the legal result of such a state of facts.
"It is quite certain that such a space was
designated on the oflScial map of the city as
971
267-870
SUPBEME COUBT OF THE UlUTED StATKS.
Oct. T
originally adopted, the division and sale of
the squares and lots beinff made in reference
to it. *What the legal effect of that fact is
we shall hereafter inquire, and while we do
not consider it to be qualified by the circum-
{868] stance, set forth as to the actiial history of
the street as made and used, they perhaps
sufiiciently acoount for the doubt and confu-
sion in which the question of right brought
to issue in this litigation seem for so long
a period to have been involved.
**The transaction between Notley Young
and the public authorities, as evidenced by
the documents and circumstances thus far
set forth, was e<juivalent in its result to a
conveyance by him to the United States in
fee simple of all his land described, with its
appurtenances, and a conveyance back to
him by the United States of square No. 472,
and to Greenleaf of square No. 504, bounded
and described as above set forth, leaving in
the United States an estate in fee simple, ab-
solute for all purposes, in the ^trip of land
designated as Water street, intervening be-
tween the line of the squares as laid out and
the Potomac river."
It is earnestly urged in the present case
that the court in that case did not have be-
fore it the Dermott map, and was not aware
that said map was the one approved by Pres-
ident Washington on March 2, 1797. From
this it is reasoned that, if the court had been
informed that the Dermott map was the
real and only oflScial plan, and had seen that
Water street was not laid out or designated
upon it, a different conclusion as to the own-
ership of Water street would have resulted.
It is by no means clear that the Dermott
plan was not before the court. If it was, as
IS now contended, the only plan which was
approved by President Washinj?ton as the
official map, it would seem nery singular that
the able and well-informed counsel who rep-
resented the respective parties in that case
did not think fit to put it in evidence, and
make it the subject of comment-
We are inclined to infer that the Dermott
plan was the very one referred to in the bill
and answer in that case. Thus, in the bill,
in the portion above quoted, it was alleged,
in respect to Water street, that there was
traced on the map of the city "but a single
line, denoting its general course and direc-
tion;" and in the answer it is stated that the
[M9] width of •the street was left undefined, be-
cause it constituted the whole space between
the line of the squares and the river.
An inspection of the Dermott plan dis-
closes such a single line, extending along the
entire river front on both the Potomac and
the Eastern Branch, and outside of the line
of the squares and lots.
But the Ellicott plan, as engraved in Phil-
adelphia, discloses a well-defined space, of
varying width, between the river and the
line of the lots and squares, extending along
the entire front of the city.
There are expressions used in the opinion
of the court, in that case, that show that
the attention and consideration of the court
were not restricted to a single map. Thus,
on page 679 [27: 1072], after adverting to
the order of the commissioners on March 22,
1796, directing that Water street tkooU fce
laid out eighty feet in width, the tamrx aid£ft
"that it was so designated on the ■■pi «f
the city in 1803"— ^dently referrii^ ts ti«
King plan.
Even if so unlikely a fact did exist,
ly, that in the case in 109 U. S. the
map was not considered, we think
conclusion of the court would not
changed by its inspection. It wt
oerstood to set aside or dispense witk tls
important features of the previous laa^ II
no doubt, having been made after mart W
the surveys had been returned, more ac-
curately comported with the lots, aqmrnrvK
and streets as laid out, than the piCTkm
plans. But, as we have seeiL, it was
self complete. The contention that rt
ted Water street, with the intention of
by renouncing the city's claim to a
the river, does not impress us as
by the evidence. The preceding pUas
ited a space for such a street, uid the «r-
ceeding plans, both that of King in ISOS. nri
that of Elliott, adopted by the dty ooaBeii*
and approved by President Van BsreB a
1839, recognize and, in part, define Wair
street. The Dermott plan itself exhibiu tkt
line of a space outside of the line d t^
squares and lots, and that porlioti of wms.
space that lies on the Eastern Braack ■
marked on the Dermott plan as Water ttntt.
The latest reference to the maps that m
are pointed to in the reports of thU camrt m
in Patch v. White, 117 U. S, 221 [»:«**
•where Mr. Justice Woods said: '*The dfTK^i
clearly and without uncertainty de9a^!aat»
a lot on Ninth street, between I. aad I.
streets, well known on the map of the ott
of Washington, whose metes, bouads, la^
area are definitely fixea, platted, aad rt-
corded. The map referred to was appn^H
by President Washington in K9C and t*-
corded in 1794. Thousands of copies of <
have been engraved and printed. AD n»^
veyances of rc^ estate in tne city m^^ vam
it was put on the record refer to it : it if c*
of the muniments of title to all the ^^r.
and private real estate iu the citr of Wb»V
ington, and it is probablv better know* tta
any document on record in the Distnrf ^
Columbia. The accuracy of the dejciipfc--*
of the lot devised, is, therefore, matter of r«»>
mon knowledge, of which the court
even take judicial notice.**
It is true that in that case there
controversy respecting the authentkritrff U*
city maps, and thut the exprt^^iotts 'qe«(f<
are found in a dissenting opiniott. Sti"
such statements made in a closely eoetrctvi
case, where the parties were repre tented hf
leading counsel, residents of the citr if
Washington, mav fairly be refcrrvHl to a« ft
contribution to the history of the citr wm^
Without protracting the diiicQitftine «*
think, considering the reasonable prnliAUIrtT
that a public street or thorou^f«re wnU
be interposed between the loU and «^w^
and the navigable river: the lan^mje* »^
history of the acts of Maryland referred ts.
the agreements between the original
tors; the deeds to the trustees;
quent transactions between the
174 ir&
198.
MoBBiB y. Unitbd Statbs.
270-278
olderB and the commissioners; the reg^ft-
ons affecting the use of wharves and docks,
Liblislied by the commissioners; the several
cts of Congress conferring jurisdiction upon
tie city over the adjacent waters; the several
ity maps and plans, beginning with that of
i'£iif ant, sent by President Washington to
Congress in 1791, and ending with that of
niiott, approved by President Van Buren in
839 ; and the views expressed on the sub-
ect in previous decisions of this court, that
he conclusion is warranted, tiiat, from the
irst conception of the Federal city, the es-
Ablishment of a public street, bounding the
ity on the south, and to be •known as Water
street, was intended, and that such intention
^las never been departed from.
With this conclusion reached, it follows
that the holders of lots and squares abutting
3n the line of Water street are not entitled
to riparian rights; nor are they entitled to
rights of private property in the waters or
the reclaimed lands lying between Water
street and the navigable channels of the riv-
er, iinlees they can show valid grants to the
same from Congress, or from the city under
authority from Congress, or such a long pro-
tracted and notorious possession and enjov-
ment of defined parcels of land as to justify
a court, under th« doctrine of prescription,
in inferring grants.
With these results in view, we shall now
proceed to examine the remaining claims.
The Chesapeake & Ohio Canal Company
was incorporated in 1824 by concurrent acts
of the leigslatures of Virginia and Mary-
land. The object of the company was the con-
st motion of a navigable canal from the tide
water of the Potomac to the Ohio river.
By an act approved March 3, 1825 (4
Stat, at L. 101, cnap. 52), Congress enacted
"that the act of the legislature of the state
of Virginia, entitled *An Act Incorporating
the Chesapeake & Ohio Canal Oompany,' be,
and the same is hereby, ratified and con-
firmed, so far as may be necessary for the
purpose of enabling anv coihpany that may
Hereafter be formed, by the authority of
f^aid act of incorporation, to carry into ef-
fect the provisions thereof in the District of
Columbia, within the exclusive jurisdiction
of Uie United States, and no further."
That portion of the canal which lies with-
in the boundaries of the city of Washington
extends from Twenty-Seventh street in a
southeasterly direction to Seventeenth street,
and appears to have been opened for navig^
tion in the latter part of 1835. This part of
the canal was wholly constructed north of
the street designed to run between the
squares nearest to the river front and the
river itself. The land occupied by the oanal
company within the citjr belonged in part to
individual owners and m part to the United
SUtes.
Entering the city so long after the adop-
2]tion of the several *maps and plans, the oanal
company must be deemed to have been aware
of their contents, and to have been subjected
theceto, except in particulars in which the
company may have oeen released or exempted
therefrom by the acts of Congress, or by the
authorities of the city. Consequently the
174 U. S.
company cannot validly claim riparian riehta
as appurtenant to those lots or parts of lots
which the company purchased from indi-
vidual owners who held lots north of Water '
street. Having themselves, as we have seen,
no riparian rights, sueh owners could not
convey or impart them to the canal company.
But it is contended, on behalf of the canal
company, that riparian rights attached at
least to those portions of their land which
they acquired bv virtue Off the legislation of
Congress, and wnich were located on the mar*
g'.n of the Potomac river.
If it was, indeed, the persistent purpose of
the founders of the city to erect and main-
tain a public street or thoroughfare alons
the river front. It would be surprising to find
so reasonable a policy subverted by legisla-
tion on the part of Congress in favor of this
canal companv. To justify such a conten-
tion we should expect to be pointed to clear
and unmistakable enactments to that effect.
But the acts of Congress relied on are of a
quite different character. Let us briefly ex-
amine them.
There was. In the first place, the act of
March 3, 1825, heretofore quoted, wherein the
act of Virginia incorporating the Chesa-
peake & Ohio Canal Company is ratified and
confirmed so far as may be necessary for the
Surpose of enabling any company that might
tiereafter be formed imder the authority of
that act to carry into effect the provisions
thereof in the District of Columbia within
the exclusive jurisdiction of the United
States, and no further. Then followed the
act of May 23, IS9S (4 Stat, at L. 292, chap.
85), authorizing the connection of lateral
canals, constructed under authority of Mary-
land and Virginia, with the main ^m of the
canal within the District. By the act of
May 24, 1828 (4 Stat, at L. 293, chap. 86),
Congress authorized a subscriptiofn by the
United States for ten thousand shares of the
capital stock of the ^company, and made pro-[278)
vision for the elevation and width of the sec-
tion below the Little Falls, so as to provide
a supply of water for lateral canals or the ex-
teneion of the Chesapeake & Ohio Canal by
the United States.
It may be conceded that It is clear from
these enactmento that Congress contemplated
the location of the Chesapeake & Ohio Canal
along^the bank of the Potemac river within
the District of Columbia; and it may be
further conceded that Congress acquiesced in
the route and terminus of the canal selected
by the company. But it does not follow
from such concessions, or from anything oon-
teined in the legislation referred to, that Con-
gress was withdrawing from the city of
Washington ite righte in Water street, or
was granting to the canal company a fee
simple in the river margin with appurtenant
riparian righte.
It is further urged, that by the act of
March 3, 1837 (5 Stat. 303), Congress
adopted and enacted as a law of the United
Stetes the provision of the Virginia act of
February 27, 1829, in the following terms:
"That whenever it might be necessary to
form heavy embankmente, piers, or moles,
at the mouths of creeks or along the river
973
284-287
SUPBEHB COUBT OF THE UKITEO STATES.
Oct. Tnui,
of erecting and the rates of wharfage at pri-
vate wharves; to regulate the stationing,
anchorage, and mooring of vessels."
On JiOy 29, 1819 (Burch's Dig. 126), the
city council enacted :
''Sec. 1. That the owners of private
wharves or canals and oanal wharves be
obliged to keep them so in repair as to pre>
vent injury to the navigation.
"Sec 2. That no wharf thaU hereafter
be built^ within this corporation, without the
plan being first submitted to the mayor, who,
with a joint committee from the two boards of
the dty council, ehall examine the same, and
[M5]if it ahftll appear *to their satisfaction that
no injury could result to the navigation from
the erection of such wharf, then, and in that
case, it shall be the duty of the mayor to is-
sue a written permission for the accomplish-
ment of the object, which permit shall ex-
Sress 1k>w near such wharf shall i4>proach
tie channel."
By acts of councils approved January 8,
1831, it was enacted:
"See. 1. That it shall not be lawful for any
person or persons to build or erect any wharf
or wharves within the limits of this corpora*
tion who shall not first submit the plan of
such wharf or wharves to the mayor, who,
with a joint committee from the two boards
of the city council, shall examine the same;
and if it shall appear to their satisfaction
that no injury could result to the navigation
from the erection of such wharf or wluirves,
then, in that case, it shall be the duty of the
mayor to issue a written permission for the
accomplishment of the object, which permit
shall express how near such wharf or
wharves shall approach the channel and at
what angle they snail extend from the street
on which thery are erected."
The record discloses a continuous series
of acts and joint resolutions of the city coun-
^ oils, on the subject of improving the naviga-
tion of the Potomac river, the erection and
repair of sea walls on the river, granting
special permission to named persons to build
wharves in front of such walls. The last we
shall notice is the act of March 23, 1863, en-
titled "An Act Authorizing the Mayor to
Lease Wharf Sites on the Potomac River,"
etc. By this act the mayor was authorized
to lease for any term of years, not exceeding
ten, wharf sites in front of any sea wall
theretofore built by the corporation, or in
front of any sea wall that might tiiereeifter
be built in pursuance of any enactment for
that purpose; and it was provided that at
the expiration of ten vears, or sooner, the
said sites and all wharf improvements there-
on should revert to the corporation, and that
if the occupants should fail to keep said
wharves in good repair and to comply with
all the provisions of the act, tiie contract
should cease, and the mayor should notify
them to vacate the premises within ten days.
And this was followed by similar acts in
[t86]1865, 1867, 1870, and 1871, all *as6erting
power by the corporation over the wharves
on Water street.
We think it impossible to reconcile the
succession of acts of Congress and of the city
councils with the theory that the wharves
978
south of Water street were erected by indi-
viduals in the exercise of private rights ci
property in defined parcels of land to thca
belonging. The legislation dearly signifles
that during the entire historr <a the city
Congress and the city authorities have
claimed and exercised jurisdiction for poblie
purposes over the territory occupied by these
wharves ; and that jurisdiction seems to have
been recognized and submitted to by the a|^
pellants and their predecessors in many ia*
stances in which the evidence discloses the
nature of the transactions.
It is eamefttlv urged by the learned eovn-
sel of the appellants that possession and en-
joyment by successive occupants for so loig
a period warrant the presumption of a graat»
and authorities are cited to show that snch
presumptive grant may arise as well froa
the Crown or the state as from an individnaL
As between individuals, this doctrine is wdl-
settled and valuable; and it may be that, in
respect to the ordinary public lands held by
the government for the purposes of sale, o»
cupation, and settlement, tnere might exist
a possession so long, adverse, and exdosivt
as to justify a court of equity or a jury la
presuming a ffrant. But where, as in tht
present case, the lands and waters conceiBsi
are owned by the ffovemment in trosi lor
public purposes, and are withheld from Mlt
by the Land Department, it seems more thaa
doubtful whether an adverse possession, bo^
ever long continued, would create a titla
However, under the facta discloaed in tkii
record, it is unnecessary to determine waA
questions; for, as we have seen, at no tiat
have Congress and the dty authorities r^
nounced or failed to exercise jurisdictioa and
control over the territory occupied \fj thest
wharves and docks.
An effort is made to distinguish the dais
of Edward M. Willis, as alienee of A. L
Harvey, defendant, to land lyinff between
Thirteen-and-a-half street and Mar3rlaBd
avenue, and frontinfr on the Potomac, hj the
drcumstance that Water ^street has miii[i|f]
been actually constructed and opened as a
thoroughfare in front of this land. But it
is not percdved that the failure of the dty
heretofore to open Water street could crcata
any title in Willis to the land and water ly-
ing south of the territory appropriated for
that street. His occupancy, or that of hit
predecessors, of such land for wharfinr or
other purposes may be presumed to mit9
been with the consent of the city authoritio,
but could not, under the facts diown in this
record, avail to raise the presumption d a
grant.
"Disputes undoubtedly arose, some qaite
early, not so much as to what rights bdonftd
to 'water lots,' nor as to what property «•-
stituted a 'water lot/ but, in regard to par*
ticular localities, whether that diaracter st-
tached to individual squares and lots. In
part, at least, the uncertainty arose from the
fact that the plan of the dty, as exhibited
on paper, did not accuratdy correspond si
all pomts with the lines as sunrcjed and
ItiXfS.
MoBBiB y. Ukitbd Statbb.
276-279
limits of the government plan of reclama-
tion, and forsucH portions the court below
•.^Rrarded compensauon. All of these claim-
ants, save two, have accepted and received
the compensation.
Richard J. Beall and the heirs and trustees
of William Easby have refused to accept the
ooxnpensation so awarded them, and have ap-
pealed. Their asserted grounds of appeal
are, first, their alleged rights to riparian and
wharfage privileges on the Potomac river as
appurtenant to their lots, and, second, the
insufficiency of the compensation allowed by
the court below.
An effort is made to distinguish the case
of these lots from that of the lots east of
Seventeenth street by referring to a book
marked "Register of Squares," produced
from among the records of the city, and
wherein squares 63 and 80 are bounded on
the north oy Water street and on the south
by the Potomac river, and square 129 is
bounded on the north by B street and on the
south by the Potomac river.
It was the opinion of the court below that
there was a lack of evidence to prove that
the registers of squares were contemporane-
ous and original books which it was the duty
of the conmiissioners to keep, that the entries
were not in tiieir handwriting, nor in that
of any person whose handwriting is proved,
and that they have not the quality of a pub-
lic record.
We a^ee with that court in thinkine that,
r]in no point of *view, on the evidence adduced
in this case, can effect be given to these ro-
isters of squares as contradicting or over-
riding the plane of the city adopted by the
President, wherein, as we have seen, the
squares in auestion were bounded by streets
interposed between them and the channels
of the river.
The second complaint on behalf of these
appellants is of the insufficiency of the
amount allowed them by way of compensa-
tion.
We have read the evidence on this subject
contained in the record and have been sur-
prised by the discrepancy in tne values put
on these parcels of land by the respective
witnesses — a discrepancy so wide that we
find it impossible to reconcile the testimony,
or to reasonably compromise between the ex-
tremes. In such circumstances we think our
proper course is to adopt the conclusions of
the learned judge who disposed of this mat-
ter in the court below. Acquainted, as he
presumably wsjs. with the locality of the
lands and with the character and experience
of the numerous witnesses, his judgment
would be much safer than any we could in-
dependently form. The fact that the larger
number of those concerned have acquiesced
in the valuation and accepted the award is
not without significance. The claim of Mr.
Beall that he should be allowed interest or
rental value for his property which was
taken possession of by tne United States in
1882 seems entitled to further consideration
by the court below.
The amount awarded to the estate of Will-
iam Easby was made payable in the decree of
the court below to William Easby's heirs.
174 U. S.
The estate was represented in the appeal to
this court by Rose L. Easby and Fanny B.
Easby, styling themselves trustees of the
estate of said William Easby, and by
Wilhelmina M. Easby-Smith, who is de-
scribed as one of the heirs at law and
administratrix de bonis nan oum teatamen*
to annexo of William Easby, deceased.
These parties appear by the record to have
taken a joint appeal, but they are rep-
resented by different counsel. It is now
claimed by the counsel representing Rose
L. Easby and Fanny B. Easby, allegMl trus*
tees of the estate, that the decree awarding
payment to William Easby's heirs should be
amended so as to make the *award payable to[278I
said alleged trustees. It is said that they
were the only parties to the record, repre-
senting said estate, at the time the said
award was made, and apprehensions are ex-
pressed that if the award is distributed to
the different heirs of William Easby injus-
tice will be done the allied trustees, because
it will enable said heirs to receive their pro-
portionate shares directly from the govern-
ment without bein^ compelled to share in the
expenses of the suit. This controversy does
not seem to have been dealt with in the court
below, where it properly belongs, and to
which, atarming the award in other respects,
we shall remit the question.
The next claim is one made bv the descend-
ants of Robert Peter to parcels of land in-
cluded in the government plan of reclama-
tion, and situated near the Observatory
grounds.
In June, 1791, Robert Peter executed and
delivered a conveyance of his lands to Beall
and Gantt in trust that the Federal city
should be laid out upon them and other
lands similarly conveyed by other proprietors.
Robert Peter was one of the signers of the
agreement of March 13, 1701, hereinbefore
mentioned, and the terms of his conveyance
to Beall and Gantt were substantially similar
to those used in the conveyances of David
Burns and Notley Young. There therefore
passed by this deed to the trustees his entire
title to the main land and all his riparian
rights appurtenant thereto.
It is now claimed that, imder the terms of
the agreement and of the conveyance, such
streets, squares, and lots should be laid out
as the President might direct, and convey-
ances be made of them to the United States,
and the residue of said lots should be divided
between the United States and Robert Peter,
and the lots so divided to him, together with
any part of said land which should not have
been laid out in the city, should be conveyed
to Robert Peter in fee by the said trustees;
and it is further claimed that certain parts
of said land were never laid out as part of
the city, nor conveyed either to the United
States or Robert Peter, and that the equi-
table title to such parts, with the riparian
rights appurtenant thereto, is in his heirs,
for which they are now entitled to oompensa-
tion. It is *not denied that, in pursuance of[270]
the agreement and conveyance, the city was
laid out, and its streets, squares, lots, and
boundaries defined, in the several maps or
975
tm-281
SupRKics CouBT or THE Ukitbd Siatbs.
Oct. Tax,
plans approved hj the President and adopted
by the city authorities. Nor has any evi-
dence been adduced that by any act or declar-
ation of the President, or of anyone in au-
thority under him, was any portion of the
lands conveyed by Peter and tlie other pro-
prietors to Beall and Gantt, trustees, ever
excluded from the city. Nor is it denied
that there was a division of lots between
Peter and the commissioners in pursuance of
the agreement and conveyance.
But reliance is placed upon the correspon-
dence between Peter and the conunissioners
tending to show that lands with riparian
privileges remained undivided.
In June, 1798, Nicholas King, in behalf of
Mr. Peter, addressed a letter to the commis-
sioners, representing that it was '*an object
highly interesting to Mr. Peter to know the
bounds, dimensions, and privileges of those
parts of the city generally called water prop-
erty, and assigned to him on the division.
. . . The square south of No. 12 has not
yet been divided between said Peter and the
commissioners. . . . The square No. 22
as at present laid off and diviaed with the
commissioners does not extend to the chan-
nel by several hundred feet. If another
square be introduced to the south of it, that
square will be covered to a small depth with
water, and the proprietors thereof will want
earth to wharf and fill it up with. It will
perhaps be best therefore to redivide square
No. 22 and attach the low ground to it."
Replying on June 28, 1798, the commis-
sioners said:
**When the commissioners have proceeded
to divide a square with a city proprietor,
whether water or other property, they have
executed all the powers vested in them to act
on the subject. It appertains to the several
courts of the states and ot the United States
to determine upon the rights which such di-
vision may give; any decision by us on the
subject would be extrajudicial and nu^-
tory ; of this, no doubt, Mr. Peter, if applied
to, would have informed you. With respect
to square No, 22, tee do not cofweive that it
[S80]i« entitled to *any water privilege, as a street
intervenes between it and the water; but as
there is some high ground between Wa-
ter street and the water, we have no obiec-
tion to laying out a new square between Wa-
ter street and the channel, and divide such
square, when laid out, so as to make, it as
beneficial to Mr. Peter and the public as cir-
cumstances will admit."
This suggestion of the commissioners, to
lay out and divide a square south of Water
street was never acted on. It is plain that
the commissioners would have had no right
to disregrard the action of the President in
establishing Water street as the southern
boimdary of the cit^. It also appears from
the letter of Mr. King that such a proposed
square would have been under the waters of
the Potomac, and therefore consisted of ter-
ritory belonging to the United States as
successor to the sovereignty of Maryland,
and not to them as grantees of Mr. Peter.
In November, 1798, Mr. Peter, with other
persons, as appears in the record, appealed
to the President to have corrections made in
976
the plan of the city, and used the
language:
"We know your exceUency will attai %
the necessity of defining what water priril^
or right of wharfage is attached to tke U>
on the Eastern Brandy the Potomac mc
and Rock creek, also all such streets as an u
be left in wharfing from the ^ore to Or
channel of said waters, uid the extol i>
which those wharves are to be earned; tai
what ground, so made and filled up, dull ^
considered as subject to oeeapaDcy by bvili
ings."
This memorial was referred by te Pis-
dent to the Attorney General, Chaiki Ls
who, in an opinion dated Janiruy 7, IDI
advised against the application to makt bt
departure from the plans of the dty alm^
approved by the President.
In May, 1800, Mr. Peter and the i iroii
sioners agreed upon a drvisioD of mbl**
south of square No. 12, by which four m t^
lots were given to Peter, one of whick fMc!
on Water street, and two others fadi; a
Water street were assigned to the Hvxtt
States; and in a note attached to tbe mtf ^
Mjuare No. 22, signed in 1800 bjr NieMv
King, as •attorney for R. Peter, it i» sturi^
that the commissioners conveyed to B^rt
Peter the lot No. 6 in square Na 22, is e«
sideration of the balance due him W ^
public of square feet in the divisioa oc Ui
Since the year 1800 to the time of tk ir
stitution of this suit no attempt to 'wymA
this settlement, and no assertioB of tisit t»
the land south of Water street, by tfe #
scendants of Robert Peter, appear to k*
been made.
The decree of the court bdow fai rspfft »
this claim is affirmed.
The next class of appellants eooiisb **
those who claim rights of property oa t^
river front between the Long Brid^ as* ***
Arsenal. They all derive title ludcr N^
ley Youn^, and the parcels of land tbcr da:*
are all situated south of Water street ■:<
fall within the limits of the govervaoit J
provement.
In so far as the arguments adraind *
support of these claims are based oa tht t.*
legea abandonment of Water streK ii ti*
Dermott plan, and on the leg^ coiw^i*
supposed to follow from the fad thit t^
trustees never formally conveyed the ■»!«*•
or public reservations, they are diipcwiJ ^
by the conclusions already reached.
But it is further contended that. f««« '
we conclude that Water street was 4«*
to be the southern boundary of the city. ■>"
that the title to said street paswd t» >
United States, yet the facts disriw «^
equities between the United Statt*, m t^
one hand, and the private claisnats, m t>«
other, as to justify a decree in favor of tk^
appellants. Those equities are nid to sn«
out of grants made by the United Stata* vi
the city authorities, from tine to tisL s
respect to wharves and water froatt. «f^
which the appellants and their preihr*^^
acted, and out of the long lapse of txm ^
ing which they have been in undistnrM f^
session.
In considering the faets ralisd ee W t^
MoBRis y. XJnitbd Statbb.
881-284
ppellants we must not lose sight of the con-
lusions already reached, namely, that Not-
■y Young, by his agreement with the other
Toprietors and by his conveyance to the
rustees, had partea with his 'entire title to
he lands described and to the riparian
i^hts appurtenant thereto ; that all the lots
ubsequently conveyed to Notley Youn^ were
ubjcct tjo the plans of the city establishing
Vater street, and did not reinvest him with
lis original riparian rights.
Hence these appellants, claiming under
•Motley Young, can onlj rely, in their conten-
ion now under consideration, on transac-
Aons that have taken place since the division
>etween the commissioners and Notley
iToung; and these we shall now briefly ex-
imlne.
Our attention is first directed to the
twelfth section of the Maryland act of De-
cember 19, 1791 (Kilty's Laws Md. chap.
15 ) , in the following terms :
'^That the commissioners aforesaid, for the
time beins, or any two of them, shall, from
time to time, imtil Congress shall exercise
the jurisdiction and government within said
territory, have power to license the building
of wharves in the waters of the Potomac and
the Eastern Branch, adjoining the said city,
of the materials, in the manner and extent,
they may judge durable, convenient, and
agreeing with general order; but no license
shall be jypranted to one to build a wharf be-
fore the land of another, nor shall any wharf
be built in said waters without license as
aforesaid; and if any wharf shall be built
without such license or different therefrom,
the same is hereby declared a common nui-
sance.**
Here we may pause to observe that the
only power given to the commissioners was
to grant licenses, from time to time, and un-
til Congress should assume and exercise its
jurisdiction within the territory, and it was
declared that any wharf built in the waters
of the Potomac without such license or in
disregard of its provisions was declared to
be a common nuisance.
The licenses contemplated therefore were
temporary, and liable to be withdrawn by
Congress on assuming jurisdiction. Such
legislation certainly cannot be relied on as
either conferring or recognizing righte to
erect and maintain permanent wharves with-
in the waters of the Potomac and the East-
era Branch.
J •On July 20, 1795, the oommissioners pub-
lished the following regulations respecting
wharves :
''The board of commissioners, in virtue of
the powers vested in them by the act of the
Maryland legislature to license the building
of wharves m the city of Washington, and
to regulate the materials, the manner and
extent thereof, hereby make known the fol-
lowing regulations :
**That the proprietors of water lots are
permitted to wharf and build as far out into
the river Potomac and the Eastern Branch
as they think convenient and proper, not in-
juring or interrupting the channels or nav
city requires it, of equal breadth with tho8«
streets, which if made by an individual hold-
ing the adjacent property shall be subject to
his separate occupation and use, until the
public shall reimburse the expense of mak*
mg such street; and when no street or
streets intersect said wharf, to leave a space
of sixty feet for a street at the termination
of every three hundred feet of ground. The
buildings on said wharves to be subject to
the general regulations for bulldinffs in the
city of Washix^^n as declared by the Presi-
dent. Wharves to be built of sudi materials
as the proprietors may elect."
It will be seen that, in publishing these
regulations, the commissioners claimed noau-
thority in themselves, but professed only to
act in virtue of the act of Maryland, and
must therefore be tmderstood as having in-
tended to grant temporary licenses, subject
to the will of Congress when it should take
jurisdiction.
It apj^ars in the record that Notley
Young nimself procured from the commis-
sioners a license to build a wharf on the
Potomac river, and that the wharf appears
as an existing structure upon the map of
1797. The TOard of commissioners was
abolished by an act of Congrese approved
May 1, 1802 (2 SUt at L. 175, chap. 41)
by the second section whereof it was en-
acted:
'That the affairs of the city of Washings
ton, which have heretofore been imder the
care and superintendence of the said com-
missioners, shall hereafter be under the di-
rection of *a superintendent to be a|>pointed[284|
by and under the control of the President of
the United States ; and the said superintend-
ent is hereby invested with all the powers,
and shall hereafter perform all the duties,
which the said commissioners are now vested
with, or are required to perform by or in
virtue of any act of Congress, or any act of
the general assenfbly of Maryland, or any
deed or deeds of trust from the original pro-
prietors of the lots of said city, or in other
manner whatsoever."
This was followed by the act of May 3,
1802, entitled "An Act to Incorporate the
Inhabitants of the City of Washington, in
the District of Columbia." (2 SUt. at L.
195, chap. 53). In it was given to the cor-
poration "full power and authority to reg-
ulate the stationing, anchorage, and moor-
ing of vessels," but no authority to license
or regulate the buildinjr of wharves is given.
Then came the act of February 24, 1804 (2
Stat, at L. 254, chap. 14) , wherein was given
to the city councils power "to preserve the
navigation of the Potomac and Anacoetia
rivers, adjoining the city; to erect, repair,
and regulate public wharves, and to deepen
docks and basins."
By the act of May 16, 1820 (8 Stat, at
L. 583, chap. 104), entitled "An Act to In-
corporate the Inhabitants of the Ci^ of
Washington, and to Repeal All Acts Hereto-
fore Passed for That Purpose," the corpora-
tion was empowered "to preserve the naviga-
tion of the Potomac and Anacostia rivers ad-
igation of the said waters, leaving a space, j joining the city; to erect, repair, and regu-
wherever the general plan of streets in the late public wharves; to regulate the manner
174 U. S. U. S., Book 43. 62 977
tm-281
SUPRKICS COUBT or THE UlOTBD SIAIB8.
Oct. Ten
plana apijroved by the President and adopted
by the city authorities. Nor has any evi-
dence been adduced that by any act or declar-
ation of the President, or of anyone in au-
thority under him, was any portion of the
lands conveyed by Peter and tlie other pro-
prietors to Beall and Gantt, trustees, ever
excluded from the city. Nor is it denied
that there was a division of lots between
Peter and the commissioners in pursuance of
the agreement and conveyance.
But reliance is placed upon the correspon-
dence between Peter and the conmiissioners
tending to show that lands with riparian
privileges remained undivided.
In June, 1708, Nicholas King, in behalf of
Mr. Peter, addressed a letter to the commis-
sioners, representing that it was '*an object
highlv interesting to Mr. Peter to know the
bounds, dimensions, and privileges of those
parts of the city generally called water prop-
erty, and assigned to him on the division.
. . . The square south of No. 12 has not
yet been divided between said Peter and the
commissioners. . . . The square No. 22
MB at present laid off and diviaed with the
commissioners does not extend to the chan-
nel by several hundred feet. If another
square be introduced to the south of it, that
square will be covered to a small depth with
water, and the proprietors thereof will want
earUi to wharf ana fill it up with. It will
perhaps be best therefore to redivide square
No. 22 and attach the low ground to it."
Replying on June 28, 1798, the conunis-
aioners said:
''When the commissioners have proceeded
to divide a square with a city proprietor,
whether water or other property, they have
executed all the powers vested in them to act
on the subject. It appertains to the several
courts of the states and ot the United Stetes
to determine upon the rights which such di-
vision may give; any decision by us on the
subject would be extrajudicial and nu^-
tory ; of this, no doubt, Mr. Peter, if applied
to, would have informed you. With respect
to square No, 22y tee do not conceive that it
IZSOI^ entitled to *any water privilege^ a^ a street
intervenes between it and the water; but as
there is some high ground between Wa^
ter street and the water, we hnve no obiec-
tion to laying out a new square between Wa-
ter street and the channel, and divide such
square, when laid out, so as to make, it as
beneficial to Mr. Peter and the public as cir-
cumstences will admit."
This suggestion of the commissioners, to
lay out and divide a square south of Water
street was never acted on. It is plain that
the commissioners would have had no right
to disregard the action of the President in
csteblishing Water street as the southern
boundary of the ci^. It also appears from
the letter of Mr. King that such a proposed
square would have been under the waters of
the Potomac, and therefore consisted of ter-
ritory belonging to the United States as
flticoessor to the sovereignty of Maryland,
and not to them as grantees of Mr. Peter.
In November, 1798, Mr. Peter, with other
persons, as appears in the record, appealed
to the President to have corrections made in
976
the plan of tha dtj, and used the foUovn;
language:
''We know your ezcdleney will tttcBd \
the necessity of defining idiat water prirfl^
or right of wharfage ia attadied to tk »jci
on the Eastern Brandy the Potonae me
and Rock creek, also all sudi streets is tna
be left in wharfing from the shore to t^
channel of said waters, and the extot to
which those wharves are to be carried: ad
what ground, ao made and filled up, ihiE m
considered as subject to oeeupuiey by \kl^
ings."
This memorial was referred fay t^ Pior
dent to the Attorney General, QiaHei U
who, in an opinion dated Janinry 7, in
advised against the M»plieation to ntia w
departure from the plans of the dtj ilmij
approved by the President
In May, 1800, Mr. Peter and the tmrn^^
sioners agreed upon a divisioa of ifwr
south of square No. 12, by wfaieh Ufai^
lote were given to Peter, one of whiek b«
on Water street, and two others bem •'
Water street were assigned to \ht Ctr-A
Stetes ; and in a note attached to tbe aiif ■
Muare No. 22, signed in 1800 b^ Xkirj^
King, as ♦attorney for R. Peter, it is <*■.■
that the commissioners conve3red to lUr
Peter the lot No. 6 in square Ka 21 is (^
sideration of the balance due bin W »
public of square feet in the dirmos «f W
Since the year ISOO to the time of tb^ e^
stitution of this suit no attempt to wft^
this settlement, and no assertioo of tit> -
the land south of Water street by tk ^
scendante of Robert Peter, appear to kf»
been made.
The decree of the court bdow ii niprt >
this claim is affirmed.
llie next class of appellaxiti eoaiirti "*
those who claim righto of propertr m t*
river front between the Long Brid^ u^ * '
Arsenal. Thev all derive title od* ^-
ley Youn^, and the parcels of lacd tkrc »'
are all situated south of Water »tr«t »<
fall within the limite of the goreroHit '
provement.
In so far as the arguments sdnsfw *
support of these claims are based «a tk *
legCMi abandonment of Water strwt a^
Derraott plan, and on the legal uaii^**
supposed to follow from the fsrt tfcst i"
trustees never formally oonteyed tk^^
or public reservations, they are di^««
by the conclusions already reafhei ^
But it is further contended tbst fw ■
we conclude that Water street wsi dK~
to be the southern boundary of tbe atr «■
that the title to said street pa»N to "
United Stetes, yet the farts Mm «^
equities between the United Statoi •
one hand, and the private ^*"""**'J|n^
other, as to justify a decree is ft** • \^
appellante. Those equities are «i« * "^
out of grante made by the rBit«d ^ «^
the city authorities, from tiw *»
respect to wharves and water fnato.
which the appellants and their .
acted, and out of the long lapse <rf^[^
ing which they have been ia iiadi«w*»
session.
^^^'^#aa* ^ ^^^
In considering the fteti '^JT.^i
m.
MoBRis y. United States.
881-284
ppeDants we must not lose sight of the con-
iasioDS already reached, namely, that Not-
jy Young, by his agreement with the other
roprietors and by his conveyance to the
rustees, had parted with his •entire title lo
iie lands described and to the riparian
iffhts appurtenant thereto ; that all the lots
iibsequently conveyed to Notley Young were
ubjcct to the plans of the city establishing
^ater street, and did not reinvest him with
is original riparian rights.
Hence these appellants, claiming under
rotley Young, can only rely, in their conten-
ion now imder consideration, on transac-
ions that have taken place since the division
etween the conunissioners and Notley
roung; and these we shall now briefly ex-
mine.
Our attention Is first directed to the
welfth section of the Maryland act of De-
ember 19, 1791 (Kilty's Laws Md. chap.
5), in the following terms:
"That the commissioners aforesaid, for the
iroe beins, or any two of them, shall, from
ime to time, imtil Congress shall exercise
he jurisdiction and government within said
erritory, have power to license the building
i wharves in the waters of the Potomac and
he Eastern Branch, adjoining the said city,
)f the materials, in the manner and extent,
hey may judge durable, convenient, and
greeing with general order; but no license
hall be granted to one to build a wharf be-
ore the land of another, nor shall any wharf
•e buOt in said waters without license as
iforesaid; and if any wharf shall be built
without such license or different therefrom,
he same is hereby declared a common nui-
lance."
Here we may pause to observe that the
m\y power given to the commissioners was
0 grant licenses, from time to time, and wi-
il Congress should assume and exercise its
urisdiction within the territory, and it was
leclared that any wharf built m the waters
>f the Potomac without such license or in
lisregard of its provisions was declared to
)e a common nuisance.
The licenses contemplated therefore were
^mporary, and liable to be withdrawn by
Congress on assuming jurisdiction. Such
egislation certainly cannot be relied on as
iither conferring or recognizing rights to
irect and maintain permanent wharves with-
in the waters of the Potomac and the East-
ern Branch.
•On July 20, 1795, the commissioners pub-
lished the following regulations respecting
wharves :
'^Hie board of commissioners, in virtue of
the powers vested in them by the act of the
Niaryland le^lature to license the building
af wharves in the city of Washington, and
to regulate the materials, the manner and
extent thereof, hereby make known the fol-
lowing regulations :
'That the proprietors of water lots are
permitted to wharf and build as far out into
tlie river Potomac and the Eastern Branch
as they think convenient and proper, not in-
juring or interrupting the channels or nav-
igation of the said waters, leaving a space,
wherever the general plan of streets in the
174 U. S. U. S., Book 43. 62
city requires it, of equal breadth with thos«
streets, which if made by an individual hold-
ing the adjacent property shall be subject to
his separate occupation and use, until the
public shall reimburse the expense of mak-
ing such street; and when no street or
streets intersect said wharf, to leave a space
of sixty feet for a street at the termination
of every three hundred feet of ground. Th«
buildings on said wharves to be subject to
the general regulations for buildings in the
city of Washix^^n as declared by ^e Presi-
dent. Wharves to be built of such materials
as the proprietors may elect."
It will be seen that, in publishing these
regulations, the commissioners claimed no au-
thority in themselves, but professed only to
act in virtue of the act of Maryland, and
must therefore be understood as having in-
tended to grant temporary licenses, subject
to the will of Congress when it should takt
jurisdiction.
It appears in the record that Notley
Young nimself procured from the commis-
sioners a license to build a wharf on the
Potomac river, and that the wharf appears
as an existing structure upon the map of
1797. The t^rd of commissioners was
abolished by an act of Congress approved
May 1, 1802 (2 Stat, at L. 175, chap. 41)
by the second section whereof it was en-
acted:
'That the affairs of the city of Washings
ton, which have heretofore been under the
care and superintendence of the said com-
missioners, shall hereafter be under the di-
rection of *a superintendent to be appoint6d[284|
by and under the control of the President of
the United States ; and the said superintend-
ent is hereby invested with all the powers,
and shall hereafter perform all the duties,
which the said commissioners are now vested
with, or are required to perform by or in
virtue of any act of Congress, or any act of
the general assenfbly of Maryland, or any
deed or deeds of trust from the original pro-
prietors of the lots of said city, or in other
manner whatsoever."
This was followed by the act of May 3,
1802, entitled "An Act to Incorporate the
Inhabitants of the City of Washington, in
the District of Columbia." (2 Stat, at L.
19.5, chap. 53). In it was given to the cor- '
poration "full power and authority to reg-
ulate the stationing, anchorage, and moor-
ing of vessels," but no authority to license
or regulate the building of wharves is given.
Then came the act of February 24, 1804 (2
Stat, at L. 254, chap. 14) , wherein was given
to the city councils power "to preserve the
navigation of the Potomac and Anacoetia
rivers, adjoining the city; to erect, repair,
and regulate public wharves, and to deepen
dodcs and basins."
By the act of May 16, 1820 (8 Stat, at
L. 583, chap. 104), entitled "An Act to In-
corporate the Inhabitants of the City of
Washington, and to Repeal All Acts Hereto-
fore Passed for That Purpose," the corpora-
tion was empowered "to preserve the naviga-
tion of the Potomac and Anacostia rivers ad-
joining the city; to erect, repair, and regu-
late public wharves; to regulate the manner
977
tm-281
SUPRKICS COUBT or THE UlOTBD SIAIB8.
plans approved by the President and adopted
by the city autiiorities. Nor has any evi-
dence been adduced that by any act or declar-
ation of the President, or of anyone in au-
thority under him, was any portion of the
lands conveyed by Peter and tlie other pro-
prietors to Beall and Gantt, trustees, ever
excluded from the city. Nor is it denied
that there was a division of lots between
Peter and the c<nnmissioners in pursuance of
the agreement and conveyance.
But reliance is placed upon the correspon-
dence between Peter and the commissioners
tending to show that lands with riparian
privileges remained undivided.
In June, 1798, Nicholas King, in behalf of
Mr. Peter, addressed a letter to the commis-
sioners, representing that it was '*an object
highly interesting to Mr. Peter to know the
bounds, dimensions, and privileges of those
parts of the city generally called water prop-
erty, and assigned to him on the division.
. . . The square south of No. 12 has not
yet been divided between said Peter and the
commissioners. . . . The square No. 22
as at present laid off and diviaed with the
commissioners does not extend to the chan-
nel by several hundred feet. If another
square be introduced to the south of it, that
square will be covered to a small depth with
water, and the pronrietors thereof will want
eartii to wharf ana fill it up with. It will
perhaps be best therefore to redivide square
No. 22 and attach the low ground to it."
Replying on June 28, 1798, the oommis-
•ionei-s said:
''When the commissioners have proceeded
to divide a square with a city proprietor,
whether water or other property, they have
executed all the powers vested in them to act
on the subject. It appertains to the several
courts of the states and ot the United States
to determine upon the rights which such di-
vision may give; any decision by us on the
subject woidd be extrajudicial and nu^-
tory; of this, no doubt, Mr. Peter, if applied
to, would have informed you. With respect
to square No. 22y tee do not coticeive that it
[MO]i« entitled to *any water privilege y a^ a street
intervenes between it an/j the water; but as
there is some high ground between Wa^
ter street and the water, we have no obiec-
tion to laying out a new square between Wa^
ter street and the channel, and divide such
square, when laid out, so as to make, it as
beneficial to Mr. Peter and the public as cir-
cumstances will admit."
This suggestion of the commissioners, to
lay out and divide a square south of Water
street was never acted on. It is plain that
the commissioners would have had no right
to disregard the action of the President in
establishing Water street as the southern
boundary of the cit^. It also appears from
the letter of Mr. King that such a proposed
square would have been under the waters of
the Potomac, and therefore consisted of ter-
ritory belonging to the United States as
flticoessor to the sovereignty of Maryland,
and not to them as grantees of Mr. Peter.
In November, 1798. Mr. Peter, with other
persons, as appears in the record, appealed
to the President to have corrections made in
976
the plan of the city, and naed fW IoHovb;
lanfi^age:
"We know your exoeUency win attead t»
the necessity of defining what water iwiili^i
or right of wharfage ia attadied to tibe Iju
on the Eastern Brandy the PoUmac live^
and Rock creek, also all such streets aa are &
be left in wharfing from the shore ti» tit
channel of said waters, and tiie exteat to
which those wharves are to be carried; sad
what ground, so made and filled up, skaB k«
considered as subject to occnpaiicy bj bsU-
in^"
This memorial was referred hr tht Prk.-
dent to the Attorney General, Charia I^e.
who, in an opinion dated Janii^ry 7, 17W
advised against the application to mtke or
departure from the plans of the dty alnttdr
approved by the President.
In May, 1800, Mr. Peter and the iiMaii
sioners agreed upon a division of t^/mn
south of square No. 12, by which ffosr of tkr
lots were given to Peter, one of whick faatc
on Water street, and two others fadmr <^
Water street were assigned to the Ustt^
States; and in a note attached to the wmf si
Mjuare No. 22, signed in 1800 fa^ Nichalw
King, as 'attorney for R. Peter, it 12 <m^
that the commissioners conveyed to Bekrt
Peter the lot No. 6 in square No. 22, ia me
sideration of the balance due hint hr ^
public of square feet in the diriskm oj lib
Since the year 1800 to the time of thr ii^
stitution of this suit no attempt to i«fii*
this settlement, and no a&sertioB of titk a
the land south of Water street, bj the 4^
scendants of Robert Peter, appear ta fat**
been made.
The decree of the court bdow ia reapcei a
this claim is affirmed.
The next class of appellants noMiiti c'
those who claim rights of property oa tte
river front between the Long Brid^ mmi %**
Arsenal. They all derive title mdcr 5'
ley Youn^, and the parcels of lax»l thcr dar
are all situated south of Water ttxrrU uc
fall within the limits of the ga*«ni»at >
provement.
In so far as the arguments adrmarvd i
support of these claims are baaed oa the i:-
leged abandonment of Water street ia tst
Derroott plan, and on the legal mimqiat^
supposed to follow from i£t fact that t^
trustees never formally conveyed the
or public reservations, they are
by the conclusions already reaelicd.
But it is further contended tint,
we conclude that Water street
to be the southern boundary of tlw city. a*.
that the title to said street pasned to tW
United States, yet the facts dijvioae «vt
equities between the United States, «a tw
one hand, and the private claimaBta. ee tW
other, as to justify a decree in favtsr tt tftiv
appellants. Those equities are said to an*
out of grants made by the United Statai a^
the city authorities, from iimt to
respect to wharves and water froat*^
which the appellants and their
acted, and out of the long lapse of turn H^
ing which they have been in aadiatarbed ^
session.
In considering the facta raUad on bv d*
174 IT. &
M.
MoBRiB y. United States.
881-284
)pellants we must not lose sight of the con- 1 city requires it, of equal breadth with tho8«
usioms already reached, namely, that Not
y Youn^, by his agreement with the other
roprietors and by his conveyance to the
iistees, had parted with his •entire title lo
le lands described and to the riparian
ights appurtenant thereto ; that all the lots
it>sequeTitly conveyed to Notley Young were
iibjcct to the plans of the city establishing
(Tater street, and did not reinvest him with
is original riparian rights.
Hence these appellants, claiming under
rotley Young, can only rely, in their conten-
ion now under consideration, on transac-
ions tliat have taken place since the division
etween the conunissioners and Notley
roung; and these we shall now briefly ex-
imine.
Our attention is first directed to the
welfth section of the Maryland act of De-
jember 19, 1791 (Kilty's Laws Md. chap.
[5), in the following terms :
**That the commissioners aforesaid, for the
time bein^, or any two of them, shall, from
Ame to time, until Congress shall exercise
he jurisdiction and government within said
territory, have power to license the building
>f wharves in the waters of the Potomac and
the Eastern Branch, adjoining the said city,
Df the materials, in the manner and extent,
they may judge durable, convenient, and
agreeing with general order; but no license
shall be fipranted to one to build a wharf be-
fore the land of another, nor shall any wharf
be built in said waters without license as
aforesaid; and if any wharf shall be built
without such license or different therefrom,
the same is hereby declared a common nui-
sance/'
Here we may pause to observe that the
only power given to the commissioners was
to grant licenses, from time to time, and un-
til Congress should assume and exercise its
jurisdiction within the territory, and it was
declared that any wharf built m the waters
of the Potomac without such license or in
disregard of its provisions was declared to
be a common nuisance.
The licenses contemplated therefore were
temporary, and liable to be withdrawn by
Congress on assuming jurisdiction. Such
legislation certainly cannot be relied on as
either conferring or recognizing rights to
erect and maintain permanent wharves with-
in the waters of the Potomac and the East-
ern Branch.
J •On July 20, 1795, the commissioners pub-
lished the following regulations respecting
wharves :
'The board of commissioners, in virtue of
the powers vested in them by the act of the
Maryland legislature to license the building
of wharves m the city of Washington, and
to regulate the materials, the manner and
extent thereof, hereby make known the fol-
lowing regulations :
**That the proprietors of water lots are
permitted to wharf and build as far out into
the river Potomac and the Eastern Branch
as they think convenient and proper, not in-
juring or interrupting the channels or nav-
streets, which if made by an individual hold-
ing the adjacent property shidl be subject to
his separate occupation and use, until the
public shall reimburse the expense of mak*
mg such street; and when no sb'eet or
streets intersect said wharf, to leave a space
of sixty feet for a street at the termination
of every three hundred feet of ground. Th«
buildings on said wharves to be subject to
the general regulations for bulldinffs in the
city of Washii^^n as declared by the Presi-
dent. Wharves to be built of sudi materials
as the proprietors may elect."
It will be seen that, in publishing these
regulations, the commissioners claimed no au-
thority in themselves, but professed only to
act in virtue of the act of Maryland, and
must therefore be imderstood as having in-
tended to grant temporary licenses, subject
to the will of Congress when it should taks
jurisdiction.
It appears in the record that Notley
Young nimself procured from the commis-
sioners a license to build a wharf on the
Potomac river, and that the wharf appears
as an existing structure upon the map of
1797. The TOard of commissioners was
abolished by an act of Congress approved
May 1, 1802 (2 Stat, at L. 175, chap. 41)
by the second section whereof it was en-
acted:
'That the affairs of the city of Washings
ton, which have heretofore been under the
care and superintendence of the said com-
missioners, shall hereafter be under the di-
rection of *a superintendent to be appoint6d[284|
by and under the control of the President of
the United States ; and the said superintend-
ent is hereby invested with all the powers,
and shall hereafter perform all the duties,
which the said commissioners are now vested
with, or are required to perform by or in
virtue of any act of Congress, or any act of
the general assenfbly of Maryland, or any
deed or deeds of trust from the original pro-
prietors of the lots of said city, or in other
manner whatsoever."
This was followed by the act of May 3,
1802, entitled "An Act to Incorporate the
Inhabitants of the City of Washington, in
the District of Columbia." (2 Stat, at L.
195, chap. 53). In it was given to the cor- "
poration "full power and authority to reg-
ulate the stationing, anchorage, and moor-
ing of vessels," but no authority to license
or regulate the building of wharves is given.
Then came the act of February 24, 1804 (2
Stat, at L. 254, chap. 14) , wherein was given
to the city councils power "to preserve the
navigation of the Potomac and Anacoetia
rivers, adjoining the city; to erect, repair,
and regulate public wharves, and to deepen
dodcs and basins."
By the act of May 15, 1820 (8 Stat, at
L. 583, chap. 104), entitled "An Act to In-
corporate the Inhabitants of the City of
Washington, and to Repeal All Acts Hereto-
fore Passed for That Purpose," the corpora-
tion was empowered "to preserve the naviga-
tion of the Potomac and Anacostia rivers ad-
igation of the said waters, leaving a space, [ joining the city ; to erect, repair, and regu-
wherever the general plan of streets in the late public wharves; to regulate the manner
174 U. S. U. S.. Book 43. 62 977
284-287
SUPBEHB Ck)UBT OF THE UNITED STATES.
Oct. Tni^
of erecting and the rates of wharfage at pri-
vate wharves; to regulate the staticming,
anchorage, and mooring of vessels."
On Ji3y 29, 1819 (Burch's Dig. 126), the
city council enacted :
"Sec. 1. That the owners of private
wharves or canals and canal wharves be
obliged to keep them so in repair as to pre-
vent injury to the navi^tion.
''Sec 2. That no wnarf shall hereafter
be built, witiiin this corporation, without the
plan being first submitted to the mayor, who,
with a joint committee from the two boards of
the city council, ehall examine the same, and
if it Ahftll appear *to their satisfaction that
no injury could result to the navigation from
the erection of such wharf, then, and in that
case, it shall be the duty of the mayor to is-
sue a written permission for the accomplish-
ment of the object, which permit shall ex-
Sress how near such wharf shall i4>proach
ie channel."
By acts of councils approved January 8,
Z
1831, it was enacted:
"Sec 1. That it shall not be lawful for any
person or persons to build or erect any wharf
or wharves within the limits of this corpora-
tion who shall not first submit the plan of
such wharf or wharves to the mayor, who,
with a joint committee from the two boards
of the city council, shall examine the same;
and if it shall appear to their satisfaction
that no injury could result to the navigation
from the erection of such wharf or wluirves,
then, in that case, it shall be the duty of the
mayor to issue a written permission for the
accomplishment of the object, which permit
shall express how near such wharf or
wharves shall approach the channel and at
what angle they snail extend from the street
on which thery are erected."
The record discloses a continuous series
of acts and joint resolutions of the city coun-
^ cils, on the subject of improving the naviga^
tion of the Potomac river, the erection and
repair of sea walls on the river, grantina
special permission to named persons to build
wharves in front of such walls. The last we
shall notice is the act of March 23, 1863, en-
titled "An Act Authorizing the Mayor to
Lease Wharf Sites on the Potomac River,**
etc By this act the mayor was authorized
to lease for any term of years, not exceeding
ten, wharf sites in front of any sea wall
theretofore built by the corporation, or in
front of any sea wall that might thereafter
be built in pursuance of any enactment for
thai purpose; and it was provided that at
the expiration of ten vears, or sooner, the
said sites and all wharf improvements there-
on should revert to the corporation, and that
if the occupants should fail to keep said
wharves in ^ood repair and to comply with
all the provisions of the act, tiie contract
should cease, and the mayor should notify
them to vacate the premises within ten days.
And this was followed by similar acts in
[S86]1865, 1867, 1870, and 1871, all *aseerting
power by the corporation over the wharves
on Water street.
We think it impossible to reconcile the
succession of acts of Congress and of the city
councils with the theory that the wharves
978
south of Water street were erected by i^
viduals in the exercise of private rigkiif
property in defined parcels oi land to te
belonging. The legislation dearly apaim
that during the entire historv cic tie 07
Congress and the city anthoritia km
claimed and exercised jurisdictaoa lor ftm
purposes over the territoi^ occupied by te
whiurves ; and that jurisdiction seoBi ti km
been recognized and submitted to by tk »
pellants and their predecessors in auja-
stances in which i£t evidevs disdon ta
nature of the transactions.
It is eamestlv urged by the leanwi a»
sel of the i4>pellants that poMcsrioa tad »
joyment by successive occupants fi»f a kaf
a period warrant the presumptioii of a ;nc
and authorities are cited to show tlttt ca
presumptive grant may arise as vd &a
the Crown or the state as from aa isdiritel
As between individuals, this doctriae ii n>
settled and valuable; and it nmy be tkt a
re^>ect to the ordinary public lands hk If
the government for the purposes of nk. »
cupation, and settl^nent, there aifbt eM
a possession so long, adverse, aad cxdiPi j
as to justify a court of equi^ or s jsr a ^
presuming a ffrant. But wt!ere, as ■ ta
present case, the lands and waters tmarwi
are owned by the government ia tnt ^
public purposes, and are withhdd fraa «k
by the Land Department, it seem mtn ttai
doubtful whether an adverse posssHiflak^
ever long continirad, would ereatt s ok
However, under the laets disdosed ii tks
record, it is unnecessary to detsndii vk
questions ; for, as we have seen, slM M
have Congress and the city aatborte i^
nounced or failed to exercise jnrisdietia td
control over the territory oompicd by tk«
wharves and docks.
An effort is made to distingniak te da
of Edward M. Willis, as alienee of i *^
Harvey, defendant, to land lyiJ* ^■••^
Thirteen-and-a-half street and Marw
avenue, and fronting on the Fotoatc, br »
circumstance that Water •street bii «^
been actually constructed and opend m »
thoroughfare in front of this laad. ht <
is not perceived that the failure d tk ^
heretofore to open Water street ooiM ««■
any Utle in Willis to the land aad «tr ^
ing south of the territory approprii^*'
tl^ street. His occupancy, or tbat W »
predecessors, of such land for wbar^v '
other purposes may be preeumed to ^
been with the consent of the dtr viA^^
but could not, under the facts iho«» «^
record, avail to raise the presoBp^ " *
grant.
Referring to a similar dafan lbi« ««J
said, in Potomac Steamhoaf Co. r. T^***
tomao 8. B. Co. 109 U. a 6W [T : 1*^
"Disputes undoubtedly arowp. «y.<^
early, not 90 much as to what riybttW'i^
to 'water lots,' nor as to what P'^Pf^f^
stituted a 'water lot,* but, ia "^ !V^
ticular localities, whether that Aan^ ^
tached to individual square* asd |^^
part, at least, the uncertainty sW'?f_
fact that the plan of the dty. w g»y
on paper, did not accuratdy ^^""^^t
all pointe with the lines a« ***^0^
189a.
M0BBI8 y. Unitbd States.
287-290
marked on the land. Complainta of thai de-
•eription, and of desiffned departures from
the plan, seem to have been made. It is also
true, we think, that mistakes arose, as per-
haps in the vei^ case of the lote on the north
siae of Water street, owing to the fact that
the street existed only on paper, and for a
long time remained' an unexecuted project;
property appearing to be riparian, De<^use
tying on the water's edse, which, when the
street was actually ma£, had lost its river
front, they were thousht to be 'water lots,'
because appearinfir to be so in fact but were
not so in law, because they were bounded by
the street, and not by the river." Barclay
y. Ho\oeU*9 Leasee, 6 Pet. 505 [8: 480] ; City
of Boston v. Leoraw, 17 How. 426 [15: 118].
There are also defendants who claim the
right to hold certain wharf properties on the
Potomac between the Long Bridge and the
Arsenal, under licenses in writing issued by
the Chief of Engineers for the time being,
authorizing the erection ol wharves. The
power to grant such licenses is attributed to
the C^ief of Engineers as the successor of the
office of Comnussioner of Public Buildings
|88]under the act of *March, 1867. It was the
opinion of the court below that, under the
legislation that preceded the act of 1867, ju-
risdiction with respect to private wharves
had been conferred upon the authorities of
tlie city and that hence the Chief Engineer
wan without any lawful authority to issue
eneh licenses. In so holding the court below
followed the decision of the supreme court
of the district in the case of The Distrid of
Columbia v. Johnson, 8 Mackey, 120.
We see no reason to doubt the soundness
of this conclusion, though, for the reasons
^ready given, even if tne power to grant
such licenses had belonged to the Chief of
Engineers, they would not have vested any
riffhts in fee in the land and water south of
Water street in these appellants.
The contention, on behalf of the Washing-
ton Steaboat Company, as successor to the
title of the Potomac Ferry Company by a
Surchase on June 1, 1881, that the act of
bngress of July 1, 1864, creating the latter
company, operated as a release of the title
of the government to such land as that com-
pany might acquire for its proper purposes,
we cannot accept The legal purport of that
enactment was, as we interpret it, to au-
thorize the ferry company to purchase and
hold such real estate as should be necessary
to carry its chartered powers into effect, but
was not intended as a grant of land on the
part of Congress, or as a legislative admis-
sion of the title of private parties. The pow-
er to purchase land thereby conferred had
room to operate on land north of Water
street and on land situated in the state of
Virginia.
While, hpwever, our conclusion is that no
riparian rights in the waters of the Potomac
river belong to the owners of lots lying north
of Water street, and that no presumption of
grants in fee can arise, in these cases, from
actual occupation of lands and water south
of that street, we do not understand that it
is the intention of Congress, in exercising
its jurisdiction over the territory in ques-
X74 U. 8.
tion, and in directing the institution of these
proceedings, to take for public use, without
compensation, the private property of indi-
viduals situated within the lines of the gov-
ernment * improvement, even where surOi[889]
property may lie south of Water street.
Those who, rdying, some of them, on express
and others on implied licenses from the city
authorities, have erected and maintained ex-
pensive wharves and warehouses for the ac-
commodation of the public, are not to be
treated, as we read the will of Congress, as
mere trespassers.
That such is not the Intention of Congress
we infer, not merely from the fact that, by
the act of 1886, the inquiry was submitted to
a court of equity and not to a court of law,
but from the express language of the act.
Thus, by the first section, it is made "the
duty of the Attorney General of the United
States to institute, as soon as mav be, in
the supreme court of the Distrit't of Colum-
bia, a suit against all persons and corpora-
tions who may have or pretend to have any
right, title, claim, or interest in any part of
the land or water in the District of Ck>lum-
bia within the limits of the city of Washing-
ton, or exterior to said limits and in front
thereof toward the channel of the Potomac
river, and composing any part of the land or
water affected by Uie improvements of the
Potomac river or its fiats in charge of the
Secretary of War, for the purpose of estab-
lishinff and making clear the right of the
United States thereto." The second section
provides "that the suit mentioned in the pre-
ceding section shall be in the nature of a bill
in equity, and there shall be made parties
defendant thereto all persons and corpora-
tions who may claim to have any such rights
title, or interest."
The third section provides that the cause
"shall proceed with all practicable expedi-
tion to a final determination by the said
court of all riffhts drawn in question there-
in; and that uie said court shall have full
power and jurisdiction bv its decree to de-
termine every question of right, title, inter-
est, or claim arising in the premises, and to
vacate, annul, set aside, or confirm any claim
of any character arising or set forth in the
premises."
The fourth section provides that if, on the
final hearing of said cause, the said court
"shall be of opinion that there exists any
right, title, or interest in the land or water
in this act mentioned in eny person or corpo-
raition adverse to the complete *and para-[800X
mount right of the United States, the said
court shall forthwith and in a summary way
proceed to ascertain the value of any such
right, title, interest, or claim, exclusive of
the value of any improvement to the prop-
erty covered by such right, title, or interest
made by or under the authority of the United
States, and report thereof shall be made to
Congress."
It may be well here to mention that it is
disclosed in the record that the wharves
owned by the Potomac Steamboat Company
opposite square 472, and other wharves on
the Potomac, were rented by the government
979
390-292
SUPBEHE COUBT OF THE UNITED STATES.
09. Tm,
during the Civil War, and that rent was paid
for them monthly by the government during
a period of several years. It is not to be
supposed that the United States are now es-
topped by such conduct, but the fact is
worthy of mention as goins to show that the
government did not regard those who owned
the wharves, and to whom the rent was paid,
as trespassers, or that the structures were
an obstruction to navigation and unlawfully
there.
Such recognition by the government of a
ri^ht on the part of tiie wharf owners to re-
ceive rent, and the long period in which Con-
gress has permitted private parties to ex-
pend money in the erection and repair of
wharves and warehouses for the acconunoda-
tion of the public, may be well supposed to
have influenced Congress in providing for an
equitable appraisement of the value of inter-
ests or claims thus arising.
In the twelfth section of the bill of com-
plaint the United States "disclaim in this
suit seeking to establish its title to any of the
wharves included in the area described in
paragraph 3 of this bill, and daim title only
to the land and water upon and in which said
wharves are built, leaving the question of the
ownership of the wharves proper, where that
is a matter of dispute, to be decided in any
other appropriate {proceeding."
Apparently acquiescing in this allegation
or disclaimer, the appellants put in no evi-
dence as to the value of their improvements,
and souffht no flndine on that subject in the
court below, but stooS, both there and in this
court, on their claims of absolute title.
An examination, however, of the lanfuaffe
of the act of 1886, hereinbefore quoted, dis-
[m]closee that it was the plain purpose of *Con-
gress that the court should make "a final de-
termination of all rights drawn in question,"
and should "in a summary way proceed to
ascertain the value of any such right, title,
interest, or claim."
We think it was not competent for the
counsel of the respective parties to disregard
this purpose of Congress and to withhold a
part of the controversy from the action of
the court.
It is not disclosed in this record whether it
is the design of the government, on taking
possession of the wharves and buildings be-
longing to the appellants, to continue them
in the use of the public or to suf^ersede them
by other improvements. Whatever may be the
course pursued in that respect, it should not
deprive the appellants of the right conferred
upon them by the act of Congre^ to have the
value of their Yespective rights, titles, inter-
ests, or claims ascertained and awarded
them.
As to the method to be pursued in valuing
property of so peculiar a character, the cases
of The Monongahela Nav, Co, v. United
States, 148 U. S. 312 [37: 403], and Hetzel
V. Baltimore d O. R. R. Co. 109 U. S. 26 [42:
648], may be usefully referred to.
While, therefore, we affirm the decree of the
court below as to the claims of the Marshall
heirs, and as to the Kidwell patent, and as to
Uie several claims to riparian rights as ap-
980
purtenant to lots bounded
Water street, we reroaod
court below for further
cordance with this opinioii;
dered.
tWiD«[ibf
to ^
tt B » r
Mr. Justice Graj and Mr. Jnitiet
Keana were not present at the
and took no part in the dedsioB.
Mr. Justice Wkite mmd Mr. JvLa
Peekluun dissented.
Mr. Justice Wldte, with wham oaaa
Mr. Justice Peekkma^ disseflling:
The court holds that the owsen tf 1*0
fronting on the Potomac river, who sn j:
pleaded in this record, have no nnr^
rights appurtenant or attached to na i'u
and that they never possessed ri^^ d tie
description.
This conclusion rests prtmarilj i^ »
finding of fact, that is, that it wm* thi ism*
tion of the founders of the city thai s tirM
should bind the city on the csttn n**
front, which street should be the excS^%
property of the public, thus *aittiaf off i' 1
the lotowners facing the river froB — "
tion therewith. Applying to thb
fact the legal principle that wbci
is separate from the water hj
ing to someone else, no ^^panaa rifit^ a-
tach to the land of the former, it is k£i 2a'
the lotowners before the court haw » r
parian privileges which the gumsMWi i
the United States is in any way Umai to »
spect.
Lest the precise theory may not k r»
rately conveyed the clear statencat tjr--*'
contained in the opinion is quoted, vi:
"Our examination of the evident W i*
us to the conclusion th&t it was the uffs^-a
of the founders of the city ol Washi:r>
to locate it upon the bank or fthort «: *-•
Potomac river, and to bound it bj & <**-
or levee, so as to secure to the ishi^u-^
and those en^ged in oommer^ fnc vrv «
the navigable water, and that smA s^*
tion has never been departed frooL**
Again, at the end of the review of tkr -^
dence following the above extract, th» tr-i
states as follows:
"The conclusion is warranted that, im
the first conception of the Federal ritr *.«
establishment of a public street, W»-* '*
the city on south, and to be knovn s« ^•' ' {
street, was intended, and that *nA --** '
tion has never been departed fit^«.
**With this conclusion reachsd. it **•"•
that the holders of lots and square* ate** <
on the line of Water street are wA «^-'''
to riparian rights ; nor are they tatitM '
rights of private property in the ws**^ '
the reclaimed lands lyii^ bef w ^*^
street and the navigable rhaiaak ^ ^^
river."
From the legal propositioa ttel ^
property is separated from a »tr«a *f ^
belonging to another person, sock p(*K^
is not abutting property, and bceet «* ^
titled to riparian ri|rhts, I do aot if""^
I cannot, however, bring my ntad tstk**'
elusion that it was ever eoatcnfiaii^ *
the foundation of the citr of WanfaV'*
MoBBis y. United Statbs.
292-2d5
iRt tbere should be established a street on
le ^veater front so as to cut off the riparian
^Httt of the lot holders. On the contrary,
Y esamination *of the record has forced me
» the conclusion that from the legislation
f Tvliich the city of Washington was found-
1, from the nature of the contracts made by
le o^rners of the land upon which the city
• situated, and from the subsequent statu-
ary provisions relating to the foundation of
^e cfty» and their practical execution,^ it
'as understood and agreed that riparian
ights should attach to the lots fronting on
be river, and that any proj^osed street ac-
aally projected or which it was contem-
lated might ultimately be established was
esigned to be subordinate to the riparian
ights of the lot holders, and was in nowise
ntended injuriously to impair or affect the
anie. It also, in my opinion, clearly ap-
pears that this result was understood by
he lotowners, was contemplated by the
ounders, was approved by legislation, and
vas sanctioned by a long course of admin-
strative dealing ripening into possession in
avor of the lot holders to such a d^ree that
X) now hold that they are not entitled to ri-
[>ariaTi rights would, as I understand the
record, amount to a denial of obvious rights
>f property. Indeed, to disregard the ripar-
ian rights of the lotowners as shown by the
record it seems to me will be e<}uivalent to
confiscation, and that in reason it cannot be
done without imputing bad faith to the il-
lustrious men who so nobly conceived and so
admirably executed the foundation of the
Federal city. Of course, I say this with
the diffidence begotten from the fact that the
court takes a Afferent view of the record,
which therefore admonishes me that, how-
ever firm may be my convictions on the sub-
ject, there is some reason which has escaped
my apprehension.
Even if it be conceded that the record es-
tablished that the intention of the founders
was to bind the city towards the water by
a street which would separate the land of
the lot holders from the river, and that the
fee of such street was to be in the public,
such concession would not be conclusive in
this case. For the record, as I read it, es-
tablishes such conclusive equities arising
from the conduct of the government in an
its departments, in its dealings with the lot
holders and the grantees of the government
land those holding under them, ^as to conclu-
sively estop the government from now assert-
ing any real or supposed technical rule of
law so as to cut off rights of private proper-
ty which the government itself has solemnly
avouched, upon the faith of which persons
have dealt with it, and from which dealings
the nation has reaped an abundant reward.
Before approaching the facts I eliminate
propositions which seem irrelevant, and the
consideration of which may serve to confuse
the issue. Let it be at once conceded, arguer^
do, as found by the court, that whether ri-
parian rights exist does not depend upon de-
ciding whether one or the other of the partic-
ular maps or plans of the city is to be con-
trolling. For in my view of the record the
riparian rights of the lot holders will be
174 U. S.
clearly shown to exist, whatever plan of tlie
city may be considered. For the purpoees
then of this dissent, it is not at all ques-
tioned that the several plans of the city, re-
ferred to in the opinion of the court, are to
be treated each as progressive steps in the
evolution of the original conception of the
city, and therefore are each entitled to be
considered without causing one to abrogate
the efficacy of the other, except where tnere
is an essential conflict. It is also deemed
unnecessary to refer to the events which led
up to the selection of the sites of other cities,
for instance Philadelphia, New Orleans,
Pittsburgh, and Cincinnati, decisions respect-
ing which have been referred to, because in
my judgment the existence of tiie riparian
rights in the city of Washington depends up-
on the proceedings and legislation with refer-
ence to the city of Washington and not to
wholly dissimilar proceeding in relation to
the foundation of other cities.
I come, then, to an examination of the rec-
ord as to the foundation of the city of Wash-
ington. In doing so — in order to avoid repe-
tition and subserve, as far as I can, dcamesi
of statement — the subject is divided into
three distinct epochs : First, that involving
the conception of the city and the steps pre-
paratory to its foundation, with the cessions
by Maryland and Virginia of sovereignty over
the land which was to form the Federal dis-
trict, down to and including the 19th of De-
cember, 1791, when the genei*a] assembly of ^
Maryland passed *an act ratifying the pre-SM8]
vious cession and conferring certain powers
upon the commissioners, etc.; second, the
formative period of the city, in which the
initial steps taken in the period just stated
were in a large measure carried into execu-
tion, and this embraces the period from the
Maryland act of 1791 down to and inoluding
the actual transfer and establishment of the
seat of government in the city of Washing-
ton; and, third, the events subsequent to
the last stated period.
1. EvenU connected toith the ooneeption cf
the city and the steps preparatory to its
foundation down to and including the stat*
ute of Maryland of December 19^ n91»
The cessions by Maryland and Virginia, in
1788 and 1789, of the territory intended for
the seat of government of the United States
need not be recapitulated, as they are fully
stated in the opinion of the court. The ae-
ceptanoe hj Congress, in 1790, of the cessions
just mentioned is also stated fully in the
opinion of the court It is important, how-
ever, in considering this, to bear in mind a
few salient facts: First, that whilst accept-
ing the cessions, it was provided that the seat
of the Federal government should not be re-
moved to the proposed capital until more
than ten years thereafter, that is, the first
Monday of December in the year 1800; seo-
ond, that "until the time fixed for the re-
moval thereto," and until Congress should by
law otherwise provide, the operation of the
laws of the state within the district diould
not be affected b^ the acceptance by Con-
gress; third, whilst the act empowered the
President to appoint three commissioners,
who should, under his direction, define and
981
295-2MJ
SUPUEME COUBT OF THE UlflTED STATSS.
Oct. Tm;
limit the district, and conferred upon the
•ommissiooers authority to purchase or ac-
mfd such quantity of land as the President
nuffht deem proper and to provide suitable
buildinffB for the oocupation of Congress and
of the President and for the public offices of
the government, no appropriation was con-
tain^ in the act for these essential purposes.
On tho contrary, the only means provided by
the act was the authority conferred to accept
ffrants of money or land for the purposes
designated in the act
The controversy which preceded the selec-
tion by Congress of the district ceded by Vir-
[M6]ginia and Mainland, in order to ^establish
therein the oapital of the nation, is portrayed
in the opinion of the court, and, indeed, if
it were not, it is mirrored in the provisions
ad the act of acceptance already referred to.
For, weighing those provisions, the conclu-
sion cannot m escaped that an acceptance by
Congress which left the territory ceded under
the control of the ceding states for a period
of ten years, and made no provision what-
ever, by appropriation of money, for the es-
tablishment of the city, affixed to the act of
acceptance a provisional chara^cter depending
upon the successful accomplishment by Wash-
ington of the plan for the foundation of the
capital which' he bad so fervently advocated.
In other words, that the accepting act de-
volved upon President Washington the ar-
duous duty of bringing into being, within ten
years, the establismnent of the capital and of
securing the means for constructing therein
all the necessary buildings for the use of the
government, without the appropriation of
one dollar of the public money. To the great
respcmsibility thus imposed upon him, Wash-
inflfiton at once addressed himself with that
intelligence and foresight which character-
ized his every act. On January 17, 1791, he
appointed as the commissioners to execute the
Jvovisions of thn act of Congress, Thomas
ohnson, Daniel Carroll, and I>avid Stuart.
The first two were owners of land within the
limits of the proposed city. Mr. Johnson,
after his designation as a commissioner, was,
in 1791, appointed an Associate Justice of
this court, and although he qualified as such,
he still continued to serve as commissioner
during and until after he had resigned his
judicial office.
By the spring of 1791 the- President had
finally determined upon the precise situation
of the proposed capital, locating it on the
banks of the Potomac, within the jceded dis-
trict, at the pK>int where the city of Washing-
ton k now situated. The exact position of
the land where the city was to be established
is shown by the map annexed to the opinion
of the court.
A casual exfunination of this map discloses
that the proposed city began on the banks of
the Potomac at Rock creek, separating it at
that point from Georgetown, following along
[M7]*the course of the river to where the Eastern
Branch emptied into the Potomac, and ex-
tending some distance alonff the banks of the
Eastern Branch. It also shows that all the
land fronting on the water within the desig-
nated limits was fanning land, except at two
points^-the one where the town of Ham-
088
burgh (sometimes called Funkstown)
located, not far from Qeorgetown, aiid the
other where the town of CarroUabun^ wis
situated, on the Eaetem Branch. AH the
faiming land fronting on the river and Esst^
em Branch was owned by Robert Peter,
David Bums, NoUev Young, Daniel Carroll,
William Prout, Abraham Toong, Georgt
Walker, and William Toung.
It is conceded that at the time the eity wu
located on the territory thus selected thst
the owners of all the farming land f rontinf
on the water were entitled under the law of
Maryland to riparian privileges aa appll^
tenant to their ownership and that the ssim
right belonged to the owners of lots frcntiv
on the water in the two towns of Hamborp
and Carrollsburgh. It is, moreover, indjt*
putably established that at the time the st-
lection was made some of the lotowners, hf
wliarves or otherwise, were actually enjcfjiaf
the riparian rights appurtenant to that
property. Inde^, an inspection of the msf
already annexed makes it clear that the loto
in Hamburgh and Carrollsburgh ran down to
the water's edge, and in some instances eir
tended into the water.
A few months after the appointment of the
commissioners, in March, 1791, in order to
aid in the establishment of the city and to
procure the funds wherewith to execute tW
duties imposed by the act of Conm«,
through the infiuence of President Wa^ia^
ton most of the laiger proprietors of the Um
embraced within the limits of the city cut'
exited an agreement, binding themselTet to
convey their lands, for the purposes of tfcs
Fedend city, to such persons aa toe Presidcit
might appoint, expressly, however, exoepCr
ing from the operation dt the agreemeat mmj
lots which the subscribers might own io the
towns of Hamburgh and CarrollsborglL TW
main purposes of this contract were oondsely
expressed *by President Washington is s let [fil-
ter to Mr. Jefferson, then Secretary of State,
of date March 31, 1791, enclosing the proda-
mation fixing the boundary lines of the Fed-
eral district. He said:
"The land is ceded to the public on eoa^
tion that when the whole shall be snnrejei
and laid off as a city ( which Major L'Eafsat
is now directed to do) the present proprietort
shall retain every other lot — and for ntk
part of the land as may be taken for poblis
use. for squares, walks, etc, they shall be al-
lowed at the rate of twenty-five pounds ptr
acre — the public having the right to rsttrvt
such parts of the wood on the land as may be
thought necessary to be prescnrved for om*
ment. The landholders to have the use sad
profits of all the grounds until the ci^ is
laid off into lots, and sale is made of ihom
lots which, by this agreement, become pablie
property — nothing is to be allowed for the
ground which may be occupied as streeto or
alleys."
Subsequently, in order to carry ovt ths
agreement, the lotowners eoavefed their
lands to trustees. The draft of the cooff^
ances, which were executed on June 28, 17fl,
there is every reason to brieve was prepared
by Commissioner Johnson.
Several of the conveyances are act ovt ia
174 V. &
de.
MOBBIB Y. UKITBD StATBS.
:;fUd-;i01
U in the opinion of the court. Suffice it to
7, that the land was conveyed to the trus-
B3 by described boundaries, with the a^
irten&nces. Besides embodying the provi-
>iis contained in the previous ajgreement,
e deeda also contained other provisions toa-
rial to be noticed. Thus, in effect, the por-
>n of the land conveyed which was to inure
the benefit of the public was divided into
ro classes: First, the public reservations,
reetSy and alleys, not intended to be dis-
ised of for purposes of profit but retained
»r the public use; second, the share of the
nbllc in the building lots (one half) in-
tnded as a donation. The land embraced in
\e first class was to be conveyed by the Pres-
lent to the commissioners for the time being
ppointed under the act of Congress, 1790,
for the use of the United Stat^ forever."
he lands included in the second class were
tipulated to be sold and the proceeds ap-
lied aa a *grant of money, etc., out the tnis-
=^es were to retain the title and themselves
!cecute deeds to purchasers of the public lots.
As already stated in the preliminary agree-
nents and the conveyances to trustees exe-
uted by the larger proprietors, their lots
ituated in Carrollsburgh and Hamburgh
rere excepted. On February 21, 1791, a por-
ion of the proprietors of lots in Hamburgh
xecuted an agreement binding themselves
0 sell their lots in that town to the Presi-
Lent of the United States or to such commis-
loners as he might appoint. None of these
ot» would seem to have been situated on or
lear the river, and the agreement may be
lismissed from view. On March 30, 1791,
m a^eement was executed by certain lot-
)wners in Carrollsburgh, Commissioners
Fohnson and Carroll being amon^ the num-
>er. Tt was stipulated that the lots of tne
mbscFibers should be subject to be laid out
IS pa.Tt of the Federal city; each subscriber
lonated one half of his lots, and stipulate
that his half should be assigned to nim in
like aituation (u before; it ^in^, moreover,
provided that in the event of a disagreement
between the owners and the President as to
the allotments made to them, a sale should
be made of the lots and the proceeds be
equally divided. A copy of the agreement is
set out in the margin. t
1 •The contracts just referred to embraced
all the territory included within the pro-
posed city, except certain lots in Carrolls-
burgh and Hamburgh, the owners of which
had entered into no contract* and also cer-
tain lots in these towns owned by nonresi-
dents and others who were incapable from in-
fancv, coverture, or imbecility to consent to
a sale or division of their lots.
I submit that the contracts in question
clearly point out the difference between a
city laid out as was the city of Washington
and a city laid out as the result of a plat
made by a proprietor in which lots are lo>
oated on a street fronting on the river and
intervening between the U>ts and the water.
The President and the commissioners, in deal-
ing with the land embraced within the pro-
posed Federal city, were not acting as own-
ers in their own right, but were acting un-
der the terms and according to the covenants
contained in the contracts between the par-
ties. What was to be ^iven by the propri-
etors was plainly specified, and what was
to be retained by them was also clearly
stated. Riparian rights having been vested
in the owners at the time the contract was
made, it cannot, it seems to me, with fairness
be said that the former proprietors were to
receive as an equal division, one half of their
lots, if in making that division the ffovern-
ment was to strip all the lots, as well those
assigned to the public as those retained by
the proprietors, of the riparian privile^
originally appurtenant to the land. The in-
tention of the contracting parties is plainly
shown by the provisions for the transfer of
the property m Carrollsburgh, where the
owners stipulated that they should retain
one half of the lots, in like situation; and
where the plan to which reference has been
made shows that many of the lots abutted
on the bank of the water in the Eastern
Branch.
But if there be doubt as to the agreements
from which it could be implied that the lot-
owners intended to give, not only one half of
their lots, but all the riparian rights appur-
tenant to the lots which they were to retain,
the official conduct of the commissioners, the
action of President Washington and of all
concerned, including the former proprietors,
demonstrates *th&t the understanding of[301]
everybody concerned in the transaction was
that the half of the lots which were to re-
main to the lotowners should preserve their
riparian privileges, and that tney should be
continued to be exercised, even although it
was proposed, on a plan of the city, that
there should be a street on the entire river
front. And it seems to nie it equally con-
clusively appears that it was plainly under-
stood that the lots which were donated to
the nation, and which were to be sold, for
the purpose of raising money to erect the nec-
essary buildings for the establishment of the
tWe the Subscribers holding or entitled to
Lots In CarroIIsbargh agree with each other
and with the president of the United States that
the lots and land we hold or are entitled to in
Carrollsburgh shall be subject to be laid out at
the pleasure of the president as part of the Fed-
eral City and that we will receive one half the
Quantity of onr respective Lots as near their
present Situation as may agree with the new
plan and where we may be entitled now to only
one Lot or otherwise not entitled on the new
plan to one entire lot or do not agree with the
president. Commissioners or other person or
rinons acting on the part of the public on an
. 74 TT. S.
adjustment of our interest we agree that there
shall be a sale of the Lots In which we may be
Interested respectively and the produce thereof
In money or Securities shall be equally divided
one half as a Donation for the Use of the Unit-
ed States under the Act of Congress, the other
half to ourselves respectively. And we engage
to make Conveyances of our respective Lots and
lands afd to Trustees or otherwise whereby to
relinquish onr rights to the said Lots ft Lands
as the president or such Commrs. or persons
acting as aTd shall direct to secure to the Unit-
ed States the Donation intended by this Agree-
ment.
088
tiUi-vUA
SUPEEME Ck)UBT OF THE UWITED STATES.
ffovemment, should, so far as those lots
fronted on the water, have attached to them
the riparian rights which were originally
appurtenant, and the fact that they had such
original rij^^hts formed the basis upon which
it was hoped that as to these lots a higher
erice would be obtained, because of the ex-
tence of the riparian rights which were in-
tended to be conveyed, and as will be shown
were actually conveyed along with the water
lots which the government sold.
It cannot be m reason successfully denied
that the construction of the agreements be-
tween two parties contemporaneously made
by all concerned, and followed by long years
of official action and practical execution, fur-
nishes the safest guide to interpret the con-
tracts, if there he doubt or ambiguity in
them.
In March, 1791, President Washington in-
trusted the preparation of a plan of the pro-
nosed city to Major L'Enfant On AprS 4,
1791, that officer requested Secretary of State
Jefferson to furnish him with plans of lead-
ing cities and maps of the principal "sea-
Dorts or dock yards and arsenals," and in a
letter to President Washington, dated April
10, 1791, Mr. Jefferson alluded to the fact
that he had sent by post toL'Enfantthe plans
of a number of Continental European cities.
Mr. Jefferson mentioned that he had himself
procured these plans when he was visiting
the named cities. The serious import of the
plans thus sent and the significance resulting
from them I shall hereafter conmient upon.
Among the proprietors who joined in the
agreement and had actually conveyed his
£802]1«lim1 to the trustees was Robert *Peter. His
property was situated abutting on Rode
creek, and on the river from the mouth of
Rock creek to the Hamburgh line. The rec-
ord shows the following letter to the com-
missioners from President Washington:
Philadelphia, July 24, 1791.
I have received from Mr. Peter the indosed
letter proposing the erection of wharves at
the new city between Rock creek and Ham-
burgh. My answer to him is that the propo-
sition is worthy of consideration, ana that
the transaction of whatever may concern the
public at that place in future being now
turned over to you, I have indosed ^e let-
ter to you to do therein whatever you think
best, referring him at the same time to you
for an answer.
The consequences of such wharves as are
suggested by Mr. Peter will, no doubt, daim
your first attention ; next, if they are deemed
a desirable undertaking, the means by which
the work can be effected with certainty and
dispatch; and lastly the true and equitable
proportion which ought to be paid by Mr.
Feter towards the erection of thenL
The pertinent portions of the letter of Mr.
^ Peter, which President Washington trans-
mitted, are as follows:
Georffetown, July 20, 1791.
Sir: — Colond L'Enfant, I understand, has
expressed a wish that I should make propo-
sitions to join the public in the expense of
vo4
erecting wharves to extend from Ike
of Rock creek to the point abov«
called Cedar Point, being tbont
sand feet . . . That the wood akovMke fi-
nished by me on the same terms thmt it ei^
be had from others, and that tbe wMi a
pense should be divided between Ok pvUs
and me in proportion to the property Wi W
each on the water. The streets I rif riiki ■
bdonging to the public and one half the k«L
so that I suppose somewhere abovt eoc tke<
of the expense would be mine, and
thirds the public's.
On August 28, 1791, Mr. Jeff<
from Philadelphia to the con
acknowledging the recdpt of a letter •f?tiB
them to the President, and adding: *¥t,^
L'Enfant having also arrived here aad Ili
the plan of the Federal city before the Pr^
ident, he (the President) was pleased te ^
sire a conference of certain pprsoss ia im
presence on these several subjects."
Further along in his letter Mr. Jrfenn
stated that Mr. Madison and bimslf "^2
be in George Town on the evening of the T*^
or morning of the 8th of next montk, ii ta?
to attend any meeting of the niaiiiiMiMM i
on that day."
In accordance with this soggcstMa. •
September 8, 1791, the records ^>v a vrt-
ing of the commissioners, and it is xKtttt
that "the Hon. Thomas Jefferson, Sttrmrj
of State, and the Hon. James Madiiai it
tended the commissioners in confereaeL*
It^ is further recited: "The foDpvar
queries were presented by the ?>gjetajT ^
State to the commissioners, and the aim*
thereto, with the resolutions folloviag, wv
given and adopted: . . . Whether osr^
the building of a bridge over the Emiti
Branch to l^ attempted, canal set aboat id
Mr. Peter's proposition with respect fr
wharves gone into now or postponed iffi
our funds are better ascertained and h$am
productive?"
In the margin is this notatioa: liat
wait for money."
The foregoing letter of Mr. Peter t» Pw*-
dent Washington dearly conveyed that to
(Peter's) construction of the deed of a**
veyance which he made io the tnute» «•
that the lots to be assig^ned to him aloar ^
river should preserve their ripariaa r^
since he proposed as such owner to cnro*
his riparian rights by building wkarm ■-
der a joint agreement with the ihmbji*
ers, by which the work should be 6am ^
tween the commissioners and hiotaeif ai jtft
proprietors, he of his lots aad thej of tkic
share of the building lota, and as owam ^
the intersecting streets and njMnitiwfc
That such also was the view of PmiM
Washington necessarily foDowi fnMB tkM
that he transmitted Peter's letter to the ««
missioners with what amounted to ma cs|n»
approval of Peter's oonstntctioa ol tht <»
tract, cautioning the cooBmiasioaers «!? *
be drcuraspect as totheoonscqoencas'effl*^
structing the wharves and the proper «»
table proportion of the coat of iij— Usiri
between tne respective partaea ; that k. Nf
on the one hand in the exv^sife ol h^ n*
174 V.i
898.
MoRBiB V. UNrrBD Statbb.
304-800*
rights in front of his lots, and the pub-
ic on the other in the exercise of its riparian
rigbta in front of its own lots and the pub-
ic land. It is worthy of note that the let-
ter of Peter states that he wrote the Presi-
lent under the inspiration and at the sug-
gestion of Major L'JSnfant. If it be true th^
L*£nfant, who was then engaged in makine
the plan under Washington's orders, had
conceived the project of cutting off all the
riparian rights oi the lots fronting on the
river by a proposed street, how can it be con-
ceived, in consonance with honesty or fair
dealing, that he would suggest to Peter the
making of a proposition absolutely inconsist-
ent \irith the very plan which he was then
supposed to be carrying out 7 How can it
be thought that if President Washington en-
tertained the idea, that the engineer em-
ployed by him had such an intention, could
be consistently have favorably indorsed the
proposition which would destroy the very
plan whidi it now is decided was then
adopted and in process of actual execution?
The scrupulous honor, the marvelous ac-
curacy of detail and precision of execution
as to everything which he supeiTised or un-
dertook, which were the most remarkable
characteristics of President Washington, ex-
clude the possibility of any other construc-
tion being placed upon his acts with refer-
ence to Peter's letter than that which I have
thus given. But the reasoning is yet more
conclusive. Mr. Jefferson's letter shows that
before the meeting of the commissioners was
held where Peter's letter was acted upon, the
plan of Major L'Enfant had been laid before
the President and by him transmitted to Mr.
Jefferson. With this plan in his possession,
do the proceedings at the meeting of the com-
missioners at which Mr. Jefferson and Mr.
Madison were present in conference with the
commissioners disclose the slightest repudia-
tion by them or the commissioners of the
construction put by Peter upon the contract?
Emphatically no, for the sole reason ascribed
for not enterin|^ into an arrangement with
Peter is the minute entry, "Must wait for
money."
!^] *At the time this meeting of the commis-
sioners with Mr. Jefferson and Mr. Madison
was held advertisement had been made of an
intended sale of some lote at public auction
in the following October. In a letter of An-
drew Ellicott, a surveyor who had been as-
sisting L'Enfant, which letter was addressed
to the commissioners under date of Septem-
ber 0, 1791, he offered suggestions with ref-
erence to the contemplated sale of loto, re-
markiDg that three things appeared neces-
sary to be attended to:
"First, those situations which will be con-
siderably increased in value when the public
improvemente are made; secondly, those sit-
uations which have an immediate value from
other considerations; and, thirdly, those sit-
viations whose real value must depend upon
the increase and population of the city."
With respect to the second of these consid-
erations he further stated as follows:
"Secondly, it is not probable that the Pub-
lic Improvements will considerably affect
either the value of the Lote from Geo. Town
174 U. S.
to Funks Town; or generally on the Eastern
Branch ; the proximity of the first to a trad-
ing town and good navigation, and tiie second
lyiDg on one of the ^t Harbours in the
Country, must have an immediate value, and
are therefore the most proper plans to oon*
fine the first sales to."
On the same day, also, L'Enfant was in>
structed by the commissioners that the Fed-
eral district should be called "the Territory
of Columbia," and that the Federal city
should be named the City of Washington;
and that the title of the map should be "A
Map of the Citjr of Washington in the Terri-
tory of Columbia."
How can it be that Ellicott, the surveyor
engaged witb Major L'Enfant in laying off
the plan of the city, would have suggested
that the lote fronting on the water would
obtain the best price Because of an advanta-
geous situation, if it had been supposed that
those lote should be, by the effect of the
plan of the city, stripped of their riparian
righte, especially when the Peter letter is
borne in mind and the construction of the
contracte which arise therefrom is token in-
to consideration.
*0n October 17, 1791, a first partial divi[306]
sion of squares or parte of squares was made
with one or more of the former proprietors;
and on the same day and on the two days
following a small number of lote were sold.
At this sale plate of that portion of the
city in which the lote offered for sale were sit-
uated were shown to those in attendance.
As none of these appear to have been near
the water, no further attention need be given
to them.
On October 25, 1791, in his third annual
address. President Washington informed Con-
gress that "a city has been laid out agreeablv
to a plan which will be laid before Congress,^'
and the plan prepared by L'Enfant was
transmitted to Congress on December 13,
1791.
It is obvious from a glance at this plan,
as conteined in the record, that it projected
an open space along the water front, and
showed at various localities separate
wharves extending beyond the open way.
That L'Enfant never contemplated, however,
that the effect of this was to cut off the ri-
parian righte of the lot holders, and cause
the water privileges to be merely appurte-
nant to the street, is shown by his sug|[estioD
to Peter and the contemporaneous circum-
stences which have been already adverted to,
and will be moreover shown hereafter. A
vivid light on this subject is derived from an
additional occurrence which took place at
the meeting of the commissioners with Mr.
Jefferson and Mr, Madison.
At that meeting it is recited that a letter
was written by the oommissioners to the gen-
eral assembly of Maryland, in which occurs
this passage:
"That it will conduce much to convenience
and use, as well as beauty and order, that
wharfing should be under proper regulations
from the beginning. . . . Your memori-
aliste therefore presume to submit to your
honors whether it will not be proper to
. . . enable the commissioners or some
985
306-4^09
Supreme Court of the United States.
Oct.
oUier oorporation, till CongreBs assumes the
gOTernment, to lioenae the building of
iHiaryeB of the materiala, in the manner, and
oi the eirtent they mav judge desirable and
eonTenient. and agredng with general or-
der."
The request embodied in the memorial
I907]thus submitted ^implied that in the judgment
of those by whom it was drawn riparian
rights, embracing the privilege of wharfage,
were attached to the lots fronting on the
river, and authority was deemed necessary
to r^^late the exercise and enjoyment of
such existing rights. There is not a word
in the memorial which can lead to the suppo-
sition t^at the commissioners desired power
to originate rights of wharfage, for the me-
morial asks for authority to license the build-
ing of wharves "of the materials, in the man-
ner, and of the extent they may judge desir-
ble and convenient, and agreeing with gener-
al order." Indeed, if all the riparian rights
as to the lots facing on the river had Seen
destroyed by the eflfect of the drawing of the
L'Ehifant plan, then the requested authority
wae wholly unnecessary, for in that case all
the riparian rights would have been appur-
tenant to a street which belonged to the pub-
lic, and no one would have had the right to
enjoy them without consent of the commis-
sioners, and consequently they would have
had the power, in giving their assent to such
, enjoyment, to affix any condition they
deemed proper, without legislative authority
for that purpose. The mere fact that the
right of a riparian owner to erect wharves
is subject to license and regulation in no-
wise implies the nonexistence of riparian
riffhts and rights of wharfage, for all owner-
ship of that character is held subject to con-
, trol, as to the mode of its enjoyment, by the
legislative authority. I do not stop to make
any copious citation to authority on this
subject, but content myself with referring
to the opinion of Chief Justice Shaw, where
the whole matter is admirably considered, in
Commonwealth v. Alger, 7 Cush. 53.
The argument, then, that, because the ri-
parian right was subject to license and reg-
ukition, it could not have pre-existM
amounts to saying that no riparian right
can ever exist. This follows from an analy-
sis of the contention, which may be thus
stated: Riparian rights exist as rights of
J property and are ever subject to lawful leg-
slative regulation. If, however, they arc
regulated, the necessary result of the regula-
tion is to take away the right. I do not
here further consider this question, because,
IS08]as will hereafter be shown by a statement *of
the commissioners, which was in effect ap-
proved by President Washington, it was ex-
pressly declared that the sole object and pur-
pose of the desircfd regulations was to eompd
the owners, in the enjoyment of their exist-
ing riparian rights as to wharfage, to conform
to some general plan of public convenience.
On December 19, 1701, the general as-
eembly of Maryland passed an act complying
with the above request and conferring au-
thority to license the building of wharves,
as well as excavations and the erection of
buildings within the limite of the dty. The
086
fact that in the same act in which i
the power to license and regulate
there was also conveyed the antiiari^ to li-
cense excavations and the ereetioB ol hnld-
in£8, shows that it was considered tlMt the
act did not originate a ri^t, bat merely cm-
trolled ite exercise. For, can it be amid that
because a lot holder was oUieed to obCais a
license before erecting a bqilaing on kb be,
that therefore his ownership of his bail&|
was destroyed, and that he odd it at the via
of the commissioners? If it
said in reason as to buildings, how
be thus declared aa to the wharvea^
were placed by the act in exactly the
oat^ory? The act of the Maryland
lature in which the foregoing provisian
contained embraced, besides, other ssbjeela
It subjected to division lands in
and Carrollsburgh, not yet conveyed, lor
{>urposes of the Federal dty, a " ^
egskl means to accomplish the divwiaa if
such lands belonging to persons who.
count of mental or other incapacity, ~
hitherto conveyed thdr rights. The
tained a provision as to building ~
vided for the existence of party or
walls between contiguous owners, for a
.ordbook, etc Annexed in the marfint *srpj
tExtracts from act of geaeral
Maryland, dated December 10, 1791 :
After reciting the prodamatloa of
Washington, of date March 20, 1T91.
the bounds of the territory, since ealli4 tki
Territory of Columbia. It waa fartkcr ntterf
In the first section as follows :
'*And whereas. Notley Yoims. DbbM Gami
of Dnddlngton, and many others. proprMsn rf
the greater part of the land berelaafter ■»
tloned to have been laid out In a dty.
an agreement, and have conveyed tbeir
trust to Thomas Beall, eon of Qeorge. aad iiea
Mackall Oantt, whereby they have ni^ycirf
their lands to be laid oat as a city, gtm m
part to the United States, and anbi««t*d
parts to be sold to raise money as a dottati
be employed according to the act of
establishing the temporary and
of the government of the TTntted Statca
and npon the terms and condttloBa cam
In each of the said deeds: and many i
proprietors of lots In Carrollsbortli ead
burgh have also come Into an agrecmeat
jecting their lots to be laid out
one half of the quantity thereof to br miL
and the money thence arising to be applM ■
a donation as aforesaid, and they to br rm
stated In on^ half of the quantity of thtir !■»
In the new location or otherwlae eoaip«MBiii
In land In a dlfCerent situation withia tb» ^
by agreement between the tommlmiomtn mM
them. and. In case of dlsagroeneat. that thf i
just and full compensation shall be msA* ^
money;. yet some of the proprietor* of kci a
Carrollsburgh and Hamburgh, aa well as tm»
of the proprietors of other lands, haw W0L tttm
Imbecility and other caosea, cose lata or
agreement concerning tbeIr laads withli ttt
limits hereinafter men tloned, bot a vary fvirt
proportion of the landholders havlag agmi •
the same terms, the PresMeat of the rwM
States directed a dty to be laM oat. . . .
**Sec 8. And be it mmefd, Tbat all tte
belonging to minors, peraoae abaaat
state, married women, or pen
mentU, or lands the property oC tkla
In the limits of Carrollabnish aad _
T4Ik
MOBBIB Y. UmITBD St.VTBS.
3U-»ii7
isipalTed, a new water lot was given to i^
owner to enable him to have the full enjoy-
ment of his watei* and wharfage privilege.
But that to give the owner another allotment
to secure him an existing right is utterly in-
compatible with the conception that the
rignt did not exist, seems to me too clear fur
anything but statement.
3 ^Dermott also communicated the following
as alterations made after the Ellicott plan
had been published^ having respect to the ex-
ercise of wharfing privileges:
'^n running a water street on the south-
east of Oarrollsburfi^h on the hank and eatah-
lishing the right of icharfing to he governed
by the parallel (or east a/nd toest streets to
the channel). This latter part is not con-
sidered as a difference, but an establishment
of right, to r^^late the privilege hy at all
times. This was done in order to accom-
modate the original proprietors of lots in
that town already established by law. With-
out this there was no mode known at the
time to do it. Similar r^^Iations had taken
place through the rest of the city, of which
the returns of the survevors in the office can
testify. The whole of this met the approba-
tion of the commissioners under the regula-
tions of the 10th of April, 1793."
This explains the presence on the Dermott
map at this locality of a number of new
squares, in the water, with the river side of
the squares open towards the channel. As
Dermott declares, they were designed to
mark the direction for wharfing, and the evi-
dence establishes that lots thus situated in
the water were regarded as appurtenant to
the water squares, or squares bounded
towards the water by an apparent street, and
of which squares an equal aivision was to be
made.
May I again pause to accentuate the fact
that every statement thus made by Dermott
to the commissioners of the changes in the
Ellicott plan are absolutely inconsistent
with the assumed nonexistence of wharfing
rights end, indeed as I understand them, are
irreconcilable with honesty on the part of
Dermott or the commissioners if the riparian
rights had been obliterated. Remember that
the lotowners had a riffht to have the share
of the lots coming to them in "a like or as
good situation" as before, and if not satis-
fied with the share given to them, had the
power to cause the sale of the whole. To
satisfy them and induce them to accept the
allotment, here is the final declaration that
in considering the question of wharfage the
lot holders were assured that their rights
would extend across the proposed street by
parallel east and west lines to the channel.
Can it be believed that Mr. Justice Johnson,
then a member of this court, and all the
1 6] other honorable 'men concerned in the divi-
sion of the lands, would have given such as-
surances to the proprietors to cause them to
accept the allotment, if they knew or believed
that the rights of the lot owners were cut off
by the proposed street, and that there could
be no extension of the east and west lines
across the street to the channel? Mark,
moreover, the express declaration of Mr. Der-
mott, upon whom the duty had been cast of
174 U. S.
platting the surveys of the divisioii, thai
''similar regulations had taken place through
the rest of the city. . . . vHie whole of
this met the approbation of the commission-
ers under the regulations of the 10th of
April 1793." This then, is the situation.
An official concerned with duties respecting
divisions with lotowners solemnly dedaree
that throughout the whole city the lotown-
ers had been assured that the riparian priv-
ities attached to their water lots, which
right of wharfage would extend by east and
west lines across the proposed street to the
cliannel, and that this declaration was ap-
proved by the commissioners; but yet it is
now decided that at the time all this was
done there were no riparian rights to extend
across the proposed street by east and west
lines to the cftiannel, because th^ had all
been cut off by the street in question.
Dermott replied to the question: ''Were
any difficulties ever suggested as to the di-
rection of the wharves or rights of purchas-
ers until the time of Nicholas King?" as fol-
lows:
"None that I know of after the first ar-
rangements had takenplace, in 1793, respect-
ing Carrollsburgh, Hamburgh, and other
piuts of the city. Sometimes purchasers of
water property could not at the first view
understana their privileges, but when ex-
plained to them were generally satisfied;
and I know of no one closing a bargain un-
til fully convinced of their rights of wharf'
age**
Evidently the "first arrangements" re-
ferred to were those made on the initial di-
vision or sale of water property. "Privil-
eges" and "rights of wharfage" are here also
used as synonymous in meaning.
The government having succeed in sell-
ing, at an enhanced price, lots fronting on
the river only after convincing the purcnas-
ers^of their rights to wharfage, it seems to[317]
me that, after all these years, it cannot in
equity be allowed to hold on to the result
of the sales and deny the right of wharfage,
by giving positive assurance as to the ex-
istence of which the sales were alone made
possible.
Mr. Dermott also alluded to the fact that
variations had been made in the published
plan of Ellicott "in order to compensate
original proprietors of lots in Carrollsburffh
ynVi lots on the plan of the city upon the
principles established by law, and as near the
original situation as could be."
In December, 1793, KUicott addressed an-
other letter to the commissioners, from
which it is clearly inferable that the advan-
tages attached to the lots having riparian
rights were deemed to give to those lots a
higher value than those not possessing such
rights.
Dermott, in enumerating the sales of
"public water squares, in lots on navigable
waters," which were sold before a date stated,
mentioned among other property: "The
public water property from squares No. 2 to
10, inclusive." The above souares were on
land which formerly belonffea to Mr. Peter,
and was part of the land in front of which
the negotiations were had in 1791, already
080
ZlZ-'*ii4
Supreme Court of the Uhitkd States.
Oct.
B, 1792, and the plan of the city ^igraved at
Boston was exhibited. During 1792 some
squares were divided with the proprietors,
amonff others Nos. 4, 8, 260, 728, and 729.
Nouiing else of material imfK>rtanoe,
Tequlsite to be noticed, transpired in 1792.
On March 12, 1793, Major Ellicott, who
had been in charge of the surveying depart-
ment, left the service of the commissioners.
Two days afterwards Dermott, who had pre-
pared a plan of that part of the city which
18 covered b^ Hamburgh, and who had laid
down the lines of Hamburgh in different
ink, was requested to do the like with respect
to CarroUsDurgh, so that each might be
ready for division with the proprietors in
AprU.
On April 9, 1793, a number of lotowners in
Hamburgh and Carrollsburgh joined in a
formal conveyance of lots owned by them,
to the trustees named in the deeds of the pro-
prietors of the farmiDg tracts, for the pur-
poses of the Federal city. This was after,
it will be remembered, both the L'Enfant
and Ellicott plans had been prepared, and
the latter extensively circulated. It was
' stipulated in this deed that on the allotment
and division to be made by the commission-
ers, "one half the quantity of the said lots,
pieces, and parcels hereby bargained and
sold shall be assigned and conveyed as near
the old situation as may be to them, the said
Thomas Johns, James M. Lingan, William
Deakins, Jun., Uriah Forrest, and Benjamin
Stoddard, respectively, in fee simple, so that
each respective former proprietor shall have
made up to him one half of his former quan-
tity anu in as good a situation."
if the L'Enfant and Ellicott plans had de-
stroyed all riparian rights, as it is now held,
it is obvious that the provisions of this con-
veyance could not be carried out if the water
lotowners were to receive half of their lands
in the same or as good a situation.
On April 9, 1793, r^ulations were pro-
mulgated by the commissioners relative to
the subject of surveys by the surveying de-
partment, prescribing forms of returns to
be made, etc., addine: "The work is from
(9 13] time to time to be aidded *on the large plat,
which, on being finished, is to be considered
as a record."
On April 10, 17931 James R. Dermott was
appointed to lay on squares into lots, and
regulations were prescribed with respect to
the performance of his duties. He was to
take minutes of the squares from the certifi-
cates of surveys returned to the office of the
clerk of the commissioners, and, from this,
plat the sQuares by a scale of for^ feet in an
inch and oivide the squares into lots, imd in
one corner of the paper containing the plat
of the squares he was to write down the sub-
stance of the certificate from which it was
made, giving the boundaries. Mr. Dermott,
in answers to questions propounded by the
oommissioners on February 28, 1799, enu-
merates thirty squares that were surveyed
in the summer of 1792, havin|f been in a man-
ner bounded and a small ditch cut around
them, but t^e dimensions were not noted on
any document. He said that Mr. Ellicott's
return of their survey and measurement
088
after the 10th of April, 1793,
Ellicott returned to the service of the eitj.
On June 17, 1793, Andrew EDieott far-
warded to the derk of the rnBiaiiiiMiii
three sheets of different parts of Wi
ton, with the returns of tne bomids mad
mensions of the several squares rqii
on the sheets. Sbeet 2 contained
which was formerly
f erences between the new andT old
bein^ delineated in different ooloi
burgh, as formerly, beinf represented
Sheet No. 3 contained uie town called Ckr>
rollsburgh drawn in yellow, so that the i»>
terferences, as in the case of Hambiirflk^
might be rendered conspicuous.
The map of Hamburgh showing interiop^
ences is contained in the record. No «st|'
squares are shown nearer to the water
Nos. 62 and 88. They abut on the
line of what was named Water street in'
burgh, which street was the northerly
ary of the lower range of water lota. Sqi
63 and 89 were subsequently made to ^
brace the water lots, those squares hciar
bounded on the north b^ the south Use of
the old Water street, wnile in the rctan
and plat of survey they are bounded oa the
south by the Potomac river.
*A partial division was made with
the lot owners of Hamburgh and Carmlb'
burgh in 1793. Concerning this, DcnMCt.
in a report to the commissioners made m
Februaiy 28, 1793, answering the
as to whether he knew of any instance
the right of wharfage in the city had
claimed or exercised as to raise a dUpmU^ m
was likely to do so, said:
"The commissioners in 1793, when iStni-
ing Carrollsburgh and Hamburgh, ^^^ t^
suojeci of wharfage under coneidermi^m^
Thfre were only two places where any dif-
ficulty could arise, against which every w-
caution was taken. l%e one place was i
south of 744. In compensating for
was termed tcater property of CarroQsboritK
which lay on that ground, there
lots laid out in that square to satisfv
ants. Upon an investigation of t^ h
it was found that that square most bind m
Canal street to the east, ajid not the
and that it could have no
therefore the new locations of water pref-
erty made in it were withdrawn (exeepi oat*
and placed in square 705, in a much more ad-
vantageous situation than eo«dd be
from the original location ; to this the
inal proprietors acquiesced.**
Three things are evident to me from ^m
statement: First, that the
had considered wharfln^ and fovrnd
culty in recognizing it in every caae h«t tte
instances mentioned, a condition of
impossible to conceive of if i
rignts existed and they had all
in the public; second, that the privilciee la
the water or water lots was treated by D«-
raott and the commissioners aa Mjmmjmem
with the right of wharfing, in othar werdik
with riparian rights ; and, third, that as If
the peculiar location of one of the aqaam
which waa entitled originally to the wsMr
privilege, such privilese was by the new aha
174 lt&
1896.
MoBBiB V. Umitbd States.
ai4-iii7
tBipaired, a new water lot was given to i^
owner to enable him to have the fuU enjoy-
ment of his water and wharfage privilege.
But that to give the owner another allotment
to secure him an existing right is utterly in-
compatible with the conception that the
ri^nt did not exist, seema to me too clear fur
anything but statement.
S] *I>ermott also communicated the following
as alterations made after the Ellicott plan
had been published^ having respect to the ex-
ercise of wharfing priviles^:
'^n running a water street on the south-
east of Oarrollsburfi^h on the hank and eaiab-
lishing the right of icharfing to be governed
by the parallel (or east a/nd west streets to
the channel). This latter part is not con-
sidered as a difference, but an establishment
of right, to regulate the privilege by at all
times. This was done in order to accom-
modate the original proprietors of lots in
tiiat town already established by law. With-
out this there was no mode known at the
time to do it. Similar r^^Iations had taken
p.* ace through the rest of the city, of which
the returns of the surveyors in the office can
testify. The whole of this met the approba-
tion of the commissioners under the regula-
tions of the 10th of April, 1793."
This explains the presence on the Dermott
map at tnis locality of a number of new
squares, in the toater, with the river side of
the squares open towards the channel. As
Dermott declares, they were designed to
mark the direction for wharfing, and the evi-
dence establishes that lots thus situated in
the tcater were regarded as appurtenant to
the water squares, or squares bounded
towards the water by an apparent street, and
of which squares an equal oivision was to be
made.
May I again pause to accentuate the fact
that every statement thus made by Dermott
to the commissioners of the changes in the
Ellicott plan are absolutely inconsistent
with the assumed nonexistence of wharfing
rights and. indeed as I understand them, are
irreconcilable with honesty on the part of
Dermott or the commissioners if the riparian
rights had been obliterated. Remember that
the lotowners had a right to have the share
of the lots coming to them in "a like or as
good situation" as before, and if not satis-
fied with the share given to them, had the
power to cause the sale of the whole. To
satisfy them and induce them to accept the
allotment, here is the final declaration that
in considering the question of wharfage the
lot holders were assured that their rights
would extend across the proposed street by
parallel east and toest lines to the channel.
Can it be believed that Mr. Justice Johnson,
then a member of this court, and all the
11 6] other honorable 'men concerned in the divi-
sion of the lands, would have given such as-
surances to the proprietors to cause them to
accept the allotment, if they knew or believed
that the rights of the lot owners were cut off
by the proposed street, and that there could
be no extension of the east and west lines
across the street to the channel? Mark,
moreover, the express declaration of Mr. Der*
mott, upon whom the duty had been cast of
174 U. S.
platting the surveys of the division, tbAi
''similar regulations had taken place through
the rest of the citv. . . . vHie whole of
this met the approbation of the ocnnmisdon-
ers under the regulations of the 10th of
April 1793." This then, is the situation.
An official concerned with duties respecting
divisions with lotowners solemulv dedaree
that throughout the whole city the lotown-
ers had been assured that the riparian priv-
il^es attached to their water lots, which
right of wharfage would extend by east and
west lines across the proposed street to the
channel, and that this declaration was ap-
proved by the commissioners; but yet it is
now decided that at the time all this was
done there were no riparian rights to extend
across the proposed street by east and west
lines to the cftiannel, because th^ had all
been cut off by the street in question.
Dermott replied to the question: "Were
any difficulties ever suggested as to the di-
rection of the wharves or rights of purchas-
ers until the time of Nicholas King?" as fol-
lows:
"None that I know of after the first ar-
rangements had takenplace, in 1793, respect-
ing Carrollsburgh, Hamburgh, and other
pws of the city. Sometimes purchasers of
water property could not at the first view
understana their privHeges, but when ex-
plained to them were generally satisfied;
and I know of no one closing a bargain un-
til fully convinced of their rights o/ wharf"
age."
Evidently the "first arrangements" re-
ferred to were those made on Uie initial di-
vision or sale of water property. "Privil-
eges" and "rights of wharfage" are here also
used as synonymous in meaning.
The government having succeeded in sell-
ing, at an enhanced price, lots fronting on
the river only after convincing the purcnas-
ers^of their rights to wharfage, it seems to[317]
me that, after all these years, it cannot in
equity be allowed to hold on to the result
of the sales and deny the right of wharfage,
by giving positive assurance as to the ex-
istence of which the sales were alone made
possible.
Mr. Dermott also alluded to the fact that
variations had be«i made in the published
plan of Ellicott "in order to compensate
original proprietors of lots in Carrollsbursh
wiUi lots on the plan of the city upon the
principles established by law, and as near the
original situation as could be."
In December, 1793, Ellicott addressed an-
other letter to the commissioners, from
which it is clearly inferable that the advan-
tages attached to the lots having riparian
rights were deemed to give to those lots a
higher value than those not possessing such
rights.
Dermott, in enumerating the sales of
"public water squares, in lots on navigable
waters," which were sold before a date stated,
mentioned among other property: "The
public water property from squares No. 2 to
10, inclusive." The above sauares were on
land which formerly belonffea to Mr. Peter,
and was part of the land in front of which
the negouations were had in 1791, already
980
817-820
Supreme Coubt of. the Ukited States.
Oct. Tbim,
referred to, for the erection of wharves in
conjunction with the city. They were all
bounded on the Ellicott map on the water
dde by a aireei. Square No. 3, appearing; as
a small triangular piece of ground and as
•butting directly on the river street, was
separated by a street on the west from
square Na 8. Though appearing on the
plan, square No. 3 had not oeen platted or
officially admitted as a square. On Decem-
ber 22, 1793, John Templeman offered to buy
one half — presumably the public half — of
square 8 (which square had been divided
October 8, 1792) , and one half of the square
back of it, "provided that the slip of ground
which lays between the water and streets is
given in, . . . and oblige myself to
build a good wharf and ^rick store immedi-
ately." The proceedings of the oonunission-
ers m January, 1794, recite the sale to Tem-
Sleman of nine lots in square No. 8, and the
elivery to him of a certificate with the fol-
lowing indorsement thereon: ''It is the in-
[S18] tention of *this sale that the grounds across
the street next the water, witn the privilege
of wharfing beyond the street in front, and
of the breadth of the lots, pass with them
agreeably to the general idea in similar «n-
9ianoes**
It will be observed that the conveyance,
in the body of the certificate, was of lots in
square 8, the indorsement evidently beins
designed to indicate what was to be regarded
as appurtenant to ihoee lots.
It seems hardly necessary to suggest that
riparian rights, that is, rights of wharfage,
could not possibly have bean certified as ex-
isting in the land sold to Templeman, "agree'
ably to the general idea in aimilar in-
etancea," if all such rights had been already
cut off by the effect of the L'Enfant aud the
Ellicott maps, for it must be borne in mind
that the property certified, in effect, as ap-
purtenant to the lots in square 8 and sold to
Templeman was delineated on the map as
beinff bounded on the water side by a pro-
posed street.
Let me for a moment consider the conse-
quences of the above transaction. When it
took place it is not denied by anyone that
the commissioners were sedulously engaged
im an effort to dispose of the public lots for
the purpose of obtaining the money to carry
out the great object of establishing the city.
The property sold to Templeman was unques-
tionably separated from the water by a
street on the proposed plans, which had been
distributed and were known ; but more than
this, partially in front of it, on the further
side of the street, lay a small strip of land,
also bounded on the plan on the river side
by an apparent street, and that such square
was marked on the plan as a numbered
sauare, though not actually platted. Tem-
pleman desired to buy the platted square,
out he was unwilling to do so lest it might
be claimed that the small piece of unplatted
land on the opposite side of the street might
cut him off from the river, and thereby de-
prive him of his riparian rights. That he
needed the riparian rights and intended to
use them results from the fact that his prop-
osition contained a guaranty to erect a
990
wharf. It is patent from sudi propoaiUfls
that it entered into the mind of no one to
conceive of the fact that a street laid down
on the plan as in *front of the sauare woiild[tlf|
cut off riparian rights. Now, wiiat did the
commissioners do? They accepted the prop-
osition and sold square 8, expressly declar-
ing that riparian rights should exist in frost
of the square, across the street, "agreeably
to the general idea in similar inatanees.*
Put side by side the decision now made and
the declaration of the commissioners. Then
were no riparian riffhts across the street, be-
cause they had all been destroyed and taken
away from the owners and ffiven to the pub-
lic by the L'Enfant and ElOcott plana. So^
now, it is held. Riparian rights exist across
the street, including wharfage, in all similar
cases; that is, in all cases where the prop-
erty substantially abuts upon the river, but
is bounded by a proposed and projected
street, is the declaration which the commis-
sioners made in the execution of the great
trust reposed in them.
When the effect of this declaratioa is eon-
sidercd in connection with the previous acts
of the commissioners and the contracts and
negotiations of the proprietors, and when the
flood of light whicn it throws upon subse-
quent dealings is ffiven due weight, mj mind
refuses to reach the conclusion thsit npariaa
rights did not attach to the water lota. Caa
it be doubted that this formal and oAdal
declaration of the commissioners became the
guide and the understanding for the saks
thereafter made by the commissioners, and
which they were then oontemplating and ea-
deavoring to consummate? will it be said
that the members of the conunission and all
those associated in the work would have a^
lowed a declaration so delusive and deceptive
to have been made and entered on the min-
utes of the commission, if it had in the re-
motest degree been conceived that riparian
rights did not exist?
The sale to Templeman, as stated^ was aoi
consummated until January, 1794. No sales
in the city took place deserving attention un-
til the 23d of December. 1793. when a con-
tract was made with Robert Morris and
James Greenleaf for the pale of G.OOO lots (to
be selected), averaging 5.265 square feet, at
the rate of thirty pounds per lot, pa^ble in
seven annual instalments, without interest, ^
commencing the Ist of *May, 1794, and wiMi[3IOl
condition of building twenty bride houset
annually, two stories high; covering 1,200
square feet each ; and with further oonditioa
that they should not sell any lots previous to
the 1st of January, 1706, but on condition of
erecting on every third lot one such house
within four years from the time of sale. It
was expressly stipulated that 4,600 of the
lots should be to tne southwest of Massacbn*
setts avenue, and that of those lots *'tbs
said Robert Morris and James Greenleaf
shall have the part of the eity in Sotley
Young*a land" Certain squares were next
specifically excepted from the operation of
the agreement, as also "the lots lying in Osr^
rollsburgh, and . . . the water lots, in-
dudinff the water lots on the Eastern
Branch, and also one half of the lots Ivtng
174 t. 8.
ie98.
HoBBiB ▼. Unitid States.
820-823
In HambuTffb, the lots in that part of the
eitj and b^onginff to it, other than water
lots, beinff to to mvid^d by alternate choice
between the said commissioners and the said
Bobert Morris and James Qreenleaf." Im*
mediately thereafter was contained this pro-
viso: "Provided, however, and it is hereby
agreed by and between the parties to these
5 resents, that the said Robert Morris and
ames Qreenleaf are entitled to the lots in
Notley Young's land, and of course to the
privilege of wharflng annexed thereto."
The word "lots" in the proviso manifestly
meant "water" lots, as there had been pre-
viously an express agreement that Morris
and Greenleaf should "have the part of the
city in NoU^ Young's land.*' As stated,
the proviso followed a stipulation exceptinff
"water lots" generally from the operation of
the agreement. Evidently, therefore, the
proviso was inserted out of abundant cau-
tion, to leave no room for controversy as to
the right of Morris and Greenleaf to the **u)a-
ter" lots in Notley Young's land ; and there-
fore clearly imported that the lots in Notley
Young's land frpntins on the river, and
which had been bounded at that time by both
the L'Enfant and the Ellicott plan and by
the return of surveys by Water street, were
notwithstanding water lots, and entitled to
wharfage as a matter of course.
My mind fails to see that there were no
riparian rights or rights of wharfage at-
tached to the lots bounded by the proposed
[381]* Water street, in view of the express terms of
the above contract. How could it have been
declared that "of course" the water privilege
and consequent right of wharfage went with
the water lots, when it had been long deter-
mined, MS the court now holds, that there
were no water lots and no wharfing privi-
leges to be sold? True, it has heretofore
b^n suggested that this provision in the
Morris and Greenleaf contract may have re-
ferred to lots in Notlev Young's land which
might be water lots other than those on the
Potomac river, as, for instance* lots in Car-
roll sbur^h or on the Eastern Branch. But
all lots m Carrollsburffh and the water lots
on the Eastern Branch were ej^cluded from
being selected by Morris and Greenleaf by
the express terms of the contract, and be-
sides there were no lot«i in the land conveyed
by Notley Young which could be considered
as water lots, other than those fronting on
the Potomac river and on that portion of the
Eastern Branch which the government had
already taken as a public reservation for an
arsenal. The fact is, then, that at the very
time when it is now decided that all riparian
rights had been wiped out and that no wharf-
lng privilege existed as appurtenant to wa-
ter lots, in order to accomplish the successful
foundation of the city an enormous number
of lots were sold under the express guarantee
of the existence of water lots and under the
unambiguous stipulation that such lota
should, of course, enjoy the wharflng privi-
lege. That this sale to Morris and Green-
leaf was submitted to President Washington
before its consummation no one can doubt, in
view of the deep interest he took in the foun*
174 U. S.
dation of the city and of the manifest influ-
ence which the making of the sale was to
have on the accomplishment of his wishes.
Can it be said of Washington that he would
have allowed a stipulation of that character
to go into the contract if he believed that
there were no water lots and no wharflng
privileges because imder his direction they
had all ceased to exist? If this were a con-
troversy between individuals, and it were
shown that a conveyance had been made with
statements in it as to the existence of water
lots and rights of wharfage, would a court
of equity be found to allow the person who
had reaped the benefit of *his assurance by[38^
selling the proper^, to alter his position and
assert as against the purchaser the nonexist-
ence of the very riffhts which he had declared
"of course" existed, in order to consummate
the conveyance? If a court of equity would
not allow an individual to take such a posi-
tion, my conception is that a nation should
not be allowed here to avail itself of an at-
titude so contrary to good faith and so vio-
lative of the elementanr principles of justice
and equity, and, especially, where the stat-
ute on which this controversy is based im-
poses upon the court the duty of administer-
inff the rights of the parties according to the
principles of equity.
It is true that some time after the Morris
and Greenleaf contract was made a certifi-
cate was issued by the commissioners, giving
more formal evidence of the title to the lano,
and describing the lots by reference merely
to the numbers in the squares, witJiout re-
peating the assurance that the lots were wa>
ter lots, and that, "of course," the rights of
wharfage attached as stated in the previous
contract. But neither did the certificate re-
iterate or re-express the obligations assumed
by the purchasers to erect buildings, and so
on. Can the certificate be treated as chang-
ing the covenants of the contract as against
Morris and Greenleaf so far as the water lota
and wharfing privilege are concerned, be-
cause it was silent on this subject, and yet
be not held to have discharged them from the
burdens of the contract, as to which also the
certificate was silent? Can it be imputed to
the commissioners that after the contract
was made, and they hsd duly reaped the ben-
efits arising from it, that, of their own ae-
cord, by the mere fact of the issue of the cer-
tificate, they could discharge themselvee
from the burdens of the contract and hold
on to the benefits? Can a court of equity
recognize such a principle or enforce it? If
not, now in consonance with equity can such
a principle be applied here? But the rec-
ord in my judgment entirely relieves the
mind of the possibility of imputing any
such inequitable conduct to the com-
missioners, for it shows beyond dispute
that after the consummation of the al-
lotments to Morris and Greenleaf, and
to Notley Younr, both these parties or their
ffranteee applied to the commiseioners *for[3M!]
license to erect wharves in front of their
"water lots," and that licenses were issued
as a matter of course. It should also be re-
membered that the expression "water lots"
991
«i8-826
SUPOEME Ck>URT OF THE UNITED STATES.
Oct. Tkhh,
«nd "the wharfing privileges," which Were,
of course, attached ^'thereto," used in the
contract with Morris and Greenleaf, affirma-
tively shows what was the signification of
the words "water lots" as prcTiously made
use of by the commissioners in dealing with
other persons. As there were no lots in Not-
1^ Young's land embraced within the terms
oi the contract which were not separated
from the river by the proposed street on the
L'Enfant or EUicott plan, it follows condu-
eively that the words "water lots" could only
have referred to the lots fronting on the river
and facing on the projected street, which
were deemed water lots because of their situ-
ation, and which were of course entitled in
oonsequence to the privilege of wharfage. It
cannot be gainsaid that at the time the con-
tract with Morris and Greenleaf was made
the L'Enfant plan was known and the Elli-
cott reproduction of it had been engraved
and was extensively circulated. Dealing with
thin ascertained and defined situation the
covenants in the contract with Morris and
Oreenleaf were, in reason, it seems, suscep-
tible alone of the construction which I have
placed upon them. The importance with
which the Morris and Greenleaf contract was
regarded at that time and the influence
wnich it was believed it would exert upon
the successful accomplishment of the foun-
dation of the city is amply shown by a re-
port of the comnussioners made to President
Washington, inclosing, on December 23,
1793, a copy of the Morris and Greenleaf con-
tract. The commissioners said:
"A consideration of the uncertainty of set-
tled times and an unembarrassed commerce
weighed much with us as well as Mr. Morris'
capital, influence, and aetivity. The state-
ment of funds inclosed may enable the pros-
ecution of the work even in a war, in which
event we should (be?) without this contract
have been almost still."
This summary of the events of the year
1793 is concluded with a reference to the
Maryland act of December 28, 1793, passed
as supplementary to the statute of December
IS24]19, 1791.* By the flrst section it would seem
to have been designed to vest in the commis-
sioners the legal title to the lands which had
been conveyed to the trustees, while the third
section provided for division and allotment
by the commissioners of the lots within the
limits of Carrollsbur|^h not yet divided. In
the marginf the sections referred to are in-
serted.
As further evidence that the commission-
ers regarded the special value of "water lots"
to consist in the wharfing privilege, and that
A water lot was not devested of riparian
rights because the lots were bounded towards
the water (either on the plat of survey or on
the plan of the city) , by a street, attentlom k
called to the minutes of the oommisaiooert
in March, 1794, with respect to squares 771
and 802, which, on both the Ellicott and Der-
mott maps, were separated from the water by
Georgia avenue. Return of survey of square
802 was dated September 3, 1793, and
bounded the square on all sides by streets.
*The minutes read as follows (6: 102) : [
"A copy of the following proposition vu
delivered Mr. Robert Walsh, of Baltimore:
Mr. Carroll will sell only half of his half of
the water lots, in square 771 & 802; he will
divide so that the purchaser may have hu
part adjoining.
"The commissioners have for the public a
right in one half of these water lots. They
are willing to dispose of that part.
"Mr. Greenleaf by his contract has a right
to choose the public part in squares 770, 771,
ft 801, 802, except the water lots.
"The commissioners have advised Mr.
Greenleaf that they were in treaty for the
public water lots m squares 771 and 802,
and some adjoining lots, and expected that
Mr. Greenleaf womd havo waived his right
of choice in the back lots; he has not done
so, but desired in case the contract for ^e
water lots was not finished that they might
be reserved as a part of twelve, llie com-
missioners had promised to reserve for him
to accom'odate his friends, under terms of
speedy improvement. So circumstanced, the
commissioners can positively agree for the
public interest in the water lots only, whi^
thev offer at the rate of 200 pounds each,
and the public interest in the rest of the lots
in the four squares, at 100 pounds each, to
take place in case Mr. Greenleaf does not iz
his choice on them.
"But the commissioners, conceiving there
is room on three fourths of the u>ater line
ron WHARFAGE SUFFICIENT TO ORATIFT BOTH,
and that the views of all would be promoted
by the neighborhood and efforts of both in-
terests, would wish rather that on Mr.
Greenleaf coming here, from 10 to 15th of
next month, the two interests might be ad-
justed. The commissioners would have a
pleasure in contributing all in their power,
and assure themselves there would be no dif-
ficulty if all were met together."
The.se squares, because they were '"watw
lots in the Eastern Branch," could not hare
been selected by Greenleaf under the large
contract already referred to, and therefore
the purchase of these lots was a separate
transaction. The fact that the *respective{SSfI
parties referred to in the communication
were contending for the acquisition of the
water lots separated from the river by
Georgia avenue, because they wanted the
ter privileges, clearly shows that it
tSec 1. Be it enacted hy the General Aeeem'
hly of Maryland^ That the certificates granted,
or which may be granted, by the said commis-
sioners, or any two of them, to purchasers of
tots in the eald city, with acknowledgment of
the payment of the whole purchase money, and
Interest. If any shall have arisen thereon, and
recorded agreeably to the directions of the act
concerning the territory of Columbia and the
city of Washington, shall be auflSclent and ef-
992
fectual to vest the legal estate In the pnrcbaa-
ers, their heirs and assigns, according to the
Import of such certificates, without any deed or
formal conveyance.
• • • •
Sec 8. And he it enacted. That the commis-
sioners aforesaid, or any two of them, may ap>
point a certain day for the allotment and as-
signment of one half of the quantity of each
lot of ground in Carrollsburgh and Hambargh,
174 U. &
1898.
HoBBiB ▼. Unitid States.
820-328
in Hamburffh, the lots in that p&rt of the
citj and belonging to it, other than water
lots, beinff to be divided by alternate choice
iMstween the said oommissionera and the said
Bobert Morris and James Greenleaf." Im-
mediately thereafter was contained this pro-
yiso: "Provided, however, and it is hereby
agreed by and between the parties to these
S resents, that the said Robert Morris and
ames Greenleaf are entitled to the lots in
Notley Young's land, and of course to the
privilege of xoharfing annexed thereto,**
The word **lots" in the proviso manifestly
meant "water" lots, as there had been pre-
viously an express agreement that Morris
and Greenleaf should 'Hiave the part of the
city in NoU^ Young's land.*' As stated,
the proviso followed a stipulation exceptins
"water lots" generally from the operation oi
the agreement. Evidently, therefore, the
proTiBo was inserted out of abundant cau-
tion, to leave no room for controversy as to
the right of Morris and Greenleaf to the "wa-
ter** lots in Notley Young's land ; and there-
fore clearly imported that the lots in Notley
Young's land frpntins on the river, and
which had been bounded at that time by both
Uie li'Enfant and the Ellicott plan and by
the return of surveys by Water street, were
notwitiistanding water lots, and entitled to
wharfage as a matter of course.
My mind fails to see that there were no
riparian rights or rights of wharfage at-
tached to the lots bounded by the proposed
1]* Water street, in view of the express terms of
the above contract. How could it have been
declared that "of course" the water privilege
and consequent right of wharfage went with
the water lots, when it had been long deter-
mined, as the court now holds, that there
were no water lots and no wharfing privi-
leges to be sold? True, it has heretofore
been suggested that this provision in the
Morris and Greenleaf contract may have re-
ferred to lots in Notlev Young's land which
might be water lots other than those on the
Potomac river, as, for instance, lots in Car-
rollsbureh or on the Eastern Branch. But
aU lots m Carrollsburgh and the water lots
on the Eastern Branch were excluded from
being selected by Morris and Greenleaf by
the express terms of the contract, and be-
sides there were no lots in the land conveyed
by Notley Young which could be considered
as water lots, other than those fronting on
the Potomac river and on that portion of the
Eastern Branch which the government had
already taken as a public reservation for an
arsenal. The fact is, then, that at the very
time when it is now decided that all riparian
rights had been wiped out and that no wharf-
ing privilege existed as appurtenant to wa-
ter lots, in order to accomplish the successful
fotmdation of the city an enormous number
of lots were sold under the express guarantee
of the existence of water lots and under the
unambiguous stipulation that such lota
should, of course, enjoy the wharfing privi-
lege. That this sale to Morris and Green-
leaf was submitted to President Washington
before its consummation no one can doubt, in
view of the deep interest he took in the f oun*
174 U. 8.
dation of the city and of the manifest influ-
ence which the making of the sale was to
have on the accomplishment of his wishes.
Can it be said of Washington that he would
have allowed a stipulation of that character
to go into the contract if he l)e]ieved that
there were no water lots and no wharfing
privileges because under his direction they
had all ceased to exist? If this were a con-
troversy between individuals, and it were
shown that a conveyance had been made with
statements in it as to the existence of water
lots and rights of wharfage, would a court
of equity be found to allow the person who
had reaoed the benefit of *his assurance by[38^
selling the proper^, to alter his position and
assert as against the purchaser the nonexist-
ence of the very riehts which he had declared
"of course" existed, in order to consummate
the conveyance? If a court of equity would
not allow an individual to take such a posi-
tion, my conception is that a nation should
not be allowed here to avail itself of an at-
titude so contrary to good faith and so vio-
lative of the elementary principles of justice
and equity, and, especially, wnere the stat-
ute on which this controversy is based im-
poses upon the court the duty of administer-
ing the rights of the parties according to tiie
principles of equity.
It is true that some time after the Morris
and Greenleaf contract was made a certifi-
cate was issued by the commissioners, giving
more formal evidence of the titie to the lano,
and describing the lots by reference merely
to the numbers in the squares, without re-
peating the assurance that the lots were wa-
ter lots, and that, "of course," the rights of
wharfage attached as sta.ted in the previous
contract. But neither did the certificate re-
iterate or re-express the obligations assumed
by the purchasers to erect buildings, and so
on. Can the certificate be treated as chang-
ing the covenants of the contract as against
Morris and Greenleaf so far as the water lota
and wharfing privilege are concerned, be-
cause it was silent on this subject, and yet
be not held to have discharged them from the
burdens of the contract, as to which also the
certificate was silent? Can it be imputed to
the conunissioners that after the contract
was made, and they had duly reaped the ben-
efits arising from it, that, of their own ae-
cord, by the mere fact of the issue of the cer-
tificate, they could discharge themselvee
from the burdens of the contract and hold
on to the benefits? Can a court of equity
recognize such a principle or enforce it? If
not, now in consonance with equity can such
a principle be applied here? But the rec-
ord in my judgment entirely relieves the
mind of the possibility of imputing any
such inequitable conduct to the com-
missioners, for it shows beyond dispute
that after the consummation of the al-
lotments to Morris and Greenleaf, and
to Notley Younff, both these parties or their
ffranteee applied to the commissioners *for[3M>]
license to erect wharves in front of their
"water lots," and that licenses were issued
as a matter of course. It should also be re-
membered that the expression "water lots"
991
«i8-826
SUPREMS Ck>Uin OF THE UNITED STATES.
Oct.
«nd ''the wharfing privileges/' which were,
of course, attached ^'thereto/' used in the
contract with Morris and Greenleaf, affirma-
tively shows what was the signification of
the words "water lots" as previously made
use of by the commissioners in dealing with
other persons. As there were no lots in Not-
lev Young's land embraced within the terms
oi the contract which were not separated
from the river by the proposed street on the
L'Enfant or Ellioott plan, it follows conclu-
sively that the words **water lots" could only
have referred to the lots fronting on the river
And facing on the projected street, which
were deemed water lots because of their situ-
ation, and which were of course entitled in
consequence to the privilege of wharfage. It
cannot be gainsaid that at the time the con-
tract with Morris and Greenleaf was made
the L'Enfant plan was known and the Elli-
oott reproduction of it had been engraved
and was extensively circulated. Dealing with
this ascertained and defined situation the
covenants in the contract with Morris and
Oreenleaf were, in reason, it seems, suscep-
tible alone of the construction which I have
placed upon them. The importance with
which the Morris and Grcenleu contract was
regarded at that time and the infiuence
which it was believed it would exert upon
the successful accomplisjiment of the foun-
dation of the city is amply shown by a re-
port of the commissioners made to President
Washington, inclosing, on December 23,
1793, a copy of the Morris and Greenleaf con*
tract. The commissioners said:
''A consideration of the uncertainty of set*
tied times and an unembarrassed commerce
weighed much with us as well as Mr. Morris'
capital, influence, and activity. The state-
ment olf funds inclosed may enable the pros-
ecution of the work even in a war, in which
event we should (be?) without this contract
have been almost still."
This summary of the events of the year
1793 is concluded with a reference to the
Maryland act of December 28, 1793, passed
as supplementary to the statute of December
IS24]19, 1791.* By the first section it would seem
to have been designed to vest in the commis-
sioners the legal title to the lands which had
been conveyed to the trustees, while the third
section provided for division and allotment
by the commissioners of the lots within the
limits of Carrollsbur|fh not yet divided. In
the margint the sections referred to are in-
serted.
As further evidence that the commission-
ers regarded the special value of "water lots"
to consist in the wharfing privilege, and that
s water lot was not devested of riparian
rights because the lots were bounded towards
the water (either on the plat of survey or on
the plan of the city) , by a street,
called to the minutes of the
in March, 1794, with respect to
and 802, which, on both the Ellicod
mott maps, were separated from tlw
Georgia avenue. Ketum of sorrey of
802 was dated September 3, 1793,
bounded the square on all 8ide» by
*The minutes read as follows f 6: 165- :
"A copy of the following pn»ositias n
delivered Mr. Robert Walsh, of BsIH^wt
Mr. Carroll will sell only haH of hit haH «<
the water lots, in square 771 k 802; be «i3
divide so that the purdiaser may have km
part adjoining.
"The commissioners have for the pvUic s
right in one half of these water lots. TWf
are willing to dispose of that part.
"Mr. Greenleaf oy his contract has a riflt
to choose the public part in squares 770, TTL
&, 801, 802, except the water lots.
"The commissioners have advised Mr.
Greenleaf that thejr were in treaty lor tfa
public water lots in squares 771 aad ML
and some adjoining lots, and expected t^
Mr. Greenleaf woiud have waived his nght
of choice in the ba<^ lots; he has not £m
so, but desired in case the contract for tht
water lots was not finished that ther
be reserved as a part of twelve. 'At
missioners had promised to reatm lor Ub
to accom'odate his friends, under terwi «f
speedy improvement. So eircmnstaMed, tkt
commissioners can positivdy agree for tki
public interest in the water lots only, m^oA
thev offer at the rate of 200 pounds mik
ana the public interest in the rest of tW bb
in the four squares, at 100 pomids sack, tt
take place in case Mr. Greenleaf does sot It
his choice on them.
"But the commissioners, concerrisg thin
is room on three fourths of the wmter imt
FOR WHARFAGE SUFFICIENT TO CmATIFT BOfl.
and that the views of all would be praaaii4
by the neighborhood and efforts of b«U is
terests, would wish rather that oi ttr
Greenleaf coming here, from 10 to 15U rf
next month, the two interests mi|(ht ht ad-
justed. The commissioners wonld hsvt ft
pleasure in contributing all in their
and assure themselves there would be bo
ficulty if all were met together."
These squares, because they wvrc
lots in the Eastern Branch," could not te«
been selected by Greenleaf under the Urit
contract already referred to, and thcrrlei*
the purchase of these lots was a aefsntr
transaction. The fact that the *re«pHti«f
parties referred to in the oommnaKStiM
were contending for the acquisitioa of tW
water lots separated from the rirw W
Georgia avenue, because they wanted tW wa-
ter privileges, clearly shows that it vai
tSec 1. Be it emicted by the Oeneral ABBem-
bly of Marpland, That the certificates granted,
or which may be granted, by the said commls-
sloners. or any two of them, to purchasers of
lots in the said city, with acknowledgrment of
the payment of the whole purchase money, and
Interest, If any shall bare arisen thereon, and
recorded agreeably to the directions of the act
concerning the territory of Columbia and the
city of Washington, shall be auflSclent and ef*
992
fectual to vest the legal esUte ta tkt parekaa
ers, their heira and aaalgna. acoordlag to ite
Import of auch certificates, wltboot say
formal conveyance.
Sec 8. ^fitf he it emoted, Tbat tha
alonera aforesaid, or any two of tbeaa. bu iT
point a certain day for the allotncat aad m-
slgnmcnt of one half of the qaaatlty of
lot of ground In Carrol iaborgb aad H**^
198.
MOBBIB Y. UNITIU) StATBS.
826-828
eemed that sucli priyile|[e was appurte-
ant; a.iid that the oommissioners tnoiight
bjLt on three fourths of the water line there
ras i^1ia.rfage room sufficient to gratify both
flakes it plain that it did not occur to the
nind of anybody that the contemplated
treet ^^ould cut off the water lots from the
K>8sea8ion of riparian rights or destroy the
v-harfing privilege.
As already stated, a division of the water
ots in Hamburgh was not made until June,
794. Without stopping to analyze these
Livisions, suffice it to say that in my opinion
:hey affirm the fact that it was not intended
>o cut off the water privile^s of the owners
^hose water lots were divided. It is dear
from the proceedings as to the allotments in
squares 63 and 89 (which embraced most of
the former water lots) that some of these di-
visions in Hamburffh, as already mentioned,
were made as against owners incapable of
representing themselves, and that allotments
were made by the oommissioners by virtue
of the authority conferred by the Maryland
act, which commanded, as I have already
shown, that the allotments should be in
a like situation and that the division
should be eguat The acts of the oommis-
Bioners in the division of the squares re-
ferred to manifest, as understood by me, an
efTort and purpose to comply, not only with
the terms of the contracts for the division of
Hamhurgh, but with the commands of the
statute, and show the preservation of what-
ever rights were appurtenant to the water
lots before the division took place. It may
be worthy of note that one of the lots in
square 63 which was so divided and fell to
the public was sold contemporaneously with
the transaction as a water lot by the front
foot.
I have already referred to the fact that
Dennott in 1799 enumerated the public wa-
ter property previously sold, as part of "the
public water property from squares Nos. 2
to 10, inclusive," formerly land of Robert
Peter, and part of the water lots in front of
which L'Enfant in 1791 had proposed that
n* Peter and the city should jointly erect
wharves. On November 7, 1794, the com-
missioners wrote to General W. Stewart in
part as follows:
"... Willi respect to the water lots,
the squares ^re also not yet divided, and
the commissioners can only sell you the part
of the said two squares" (referring ^o
squares 2 and 10) *^ which shall belong to
the public on making divisions. Such we
have no objections to sell you at 16 dollars
the foot in front."
And on November 11 following the com-
misioners again wrote General Stewart:
"... No. 2 contains at the termi-
nation of the wharf 317 feet. This is to be
paid for by the number of feet in front, but
it includes sauare No. 7" (a small square on
the east), "15,444 square feet, not takes
into any other calculation. No. 10 contains
in front, at high-water mark, 176 feet. At
the termination of the wharf 246. Medium,
on account of the vicinity of the channel.
"N. B. — It must be remembered that only
one half of these squares belong to the pub-
lic."
This shows that at the time of these ne-
gotiations wharves existed in front of the
squares, and that though the squares were
bounded on the plan, towards the water, by
a street, yet that the squares lay partly in
the water, and that the negotiations were
conducted on that basis and with reference
to the wharfing privileges. No other infer-
ence is possible m view of the fact that an
actual charge was made for land beyond the
street and out to the end of the wharf.
A sale was made to Greneral Stewart on
December 18, 1794.
At what was formerly Carroll sburgh, as
already stated, a variation was made from
the Ellicott map by running a water street
on the southeast on the hank, and establish-
ing the right of wharfage to be governed
by the parallel (or east and west streets) to
the channel. Dermott, in his report to the
oommissioners, represented that "the public
water squares, or lots on navigable water
what fell to the public after sat^ying origi-
nal proprietors of lots in Carrollshurgh from
square 611 round to square 705, both inclu-
sive," except four lots in squares 610 and
613, *were sold by a date named. Themain[328]
portion of the water lots in front of Carrolls-
burgh would seem to have been allotted to
former water lotowners. The evidence in this
record, however, as to sales of public water lots
in this locality, clearly exhibits the fact that
apparent squares shown on the Dermott map
as lying wholly or almost entirely in the
water, outside of the line of the assumed
street, were sold, simply as a part of the
water lots on the other side of the projected
street; that is to say, the conveyances were
of those lots by the front foot, in some in-
ptances adding "with the water privileges
east of the same," showing clearly that what
lay east of the street was considered as sim-
ply a part of the property fronting on
tho street, and as necessarily following
it in order not to impair its value.
Instances of this kind are shown by the rec-
ord in connection with squares 667 and east
of 667, squares 665 and 666, and squares
662 and 709. And in the case of square s. s.
667, lying to the south of the street, which
consisted of considerable fast land, a sale
was made of a lot in that square with the
I
not before that time diTided or assigned, pur-
■aant to the said act concerning the territory
of Colombia and the city of Washington, and on
notice thereof In the Annapolis, some one of the
Baltimore, the Eastern, and (Georgetown news-
papers, for at least three weeks, the same
commissioners may proceed to the allotment
and assignment of ground within the said city,
on the day appointed for that purpose, and
therein proceed, at convenient times, till the _
174 V. 8. U. 8.. Book 43. 68
whole be finished, as If the proprietors of such
lots actually resided out of the state ; provided,
that If the proprietor of any such lot shall
object. In person, or by writing delivered to the
commissioners, against their so proceeding as
to his lot, before they shall have made an as-
signment of ground for the same, then they
shall forbear as to such lot. and may proceed
according to the before-mentioned act
003
S28-881
SUFBEMB COUBT OF THS UKITED STATES.
privilege east of the same, being an imnuin*
bered square lying in the water.
It is worthy to be mentioned, although
lout of the order of its date, that lots in one
of the very squares above referred to (No.
667) were conveyed to Qeneral Washington
himself, together with the appurtenant lots
lying in the toater beyond the street, and
that Greneral Washington, in his will (1
Spark's Writings, 582, 585,) referred to the
lots fronting towards the river on the street
as water lots, and made no mention of the
lots in the ioater.
Illustrations like unto those above made
abound in the record, showing that lots
which were separated from the river by a
street delineated upon the plan of the city,
and also by the return of actual survey, were
yet sold by the commissioners for an in*
creased price as water lots, which imported,
as has been shown and will hereafter fur-
ther appear, that riparian privileges were
attftchea to tne lots. The record also cites
instances where application was made to the
commissioners by the owner of a water lot
for a license to wharf in front 6f his lot,
and such license issued. I do not stop to
fM9]*refer in de^il to all auch cases, because
those already enumerated adequately show
the conception of the situation entertained
by all the parties at the time and on the
faith of which they dealt. No single in-
stance to the contrary has been found, nor
has a case been pointed to where the commis-
sioners sold or offered to sell a water privi-
lege or riparian rieht of any kind, including
the right of wharfa^, as appurtenant to a
public street. The importance of this fact
cannot be overestimated. The history of the
times leaves no doubt of the solicitude of
President Washington and of the conmiis-
sioners, whose hopes were enlisted in the per-
manent establishment of the capital, to avail
of every resource to obtain the means where-
with to erect the public buildings, so tnat
the capital might be ready for occupancy at
the time designated in the act of Congress.
If it be true that the riparian rights were
cut off by the intention to make a street
along the river, then all such rights alonff
the whole river front belonged to the Unitea
States and were at the disposal of the com-
missioners for sale. Seeking, as they were
doinff, to make use of every resource by
which funds could be procured, can it be
doubted that if they had aeemed this to be
the case, there would not hkve been men-
tion of the fact on the plans which were put
in circulation, and that there would have
been effort made to sell these available rights
in order to obtain the much desired pecuni-
ary aid? It is certain that the minds of
the commissioners were addressed to the im-
portance and value of the water lots and of
wharfage, because of the many contracts re-
ferring to this subject from the very begin-
ning. The only inference to my mind per-
missible from this is, that as the commis-
sioners were seeking to obtain the highest
possible price for the water lots, becetuse
they enjoyed riparian and wharfin^ privi-
leges, the thought never entered their mind
of destroying tne sale of the water lots by
004
stripping them of that attribote
peculiar value to them.
Let me come now to a
seems to throw audi oopiooa ^^^ «■
situation that it ia ctcb
than the facta to which refi
tofore been made.
*In September, 1794,Menn^ Jc
Stuart were succeeded as omimiwMHMii if
Messrs. Scott and Thornton. In Mn^, ITVii
Commissioner Stuart was aneeeeded 1^ T
missioner White. The views ci tmt i
commissioners on the subject of vtezj
were expressed by them in a oommsaaitai
to the President dated July 24, 17*5.
communication being one transmitti^
the President'a approval regnlitio—
lated by the commissioners as the
tiieir consideration of 'Hhe subject oC
ing the building of wharves." In tte
munication it was expressly dedand
the regulations had been prepared
spcct to the private property tm thm
Ileferring to the Maryland act of
17, 1791, which conferred the power to
ulate wharfing, the commiaaioners
''Had the l^slature of Marriaad
lent on the subject, the holders of
property in the city would have had a n^
to carry their wharves to any cctaaft ti^
pleased under the Bins^ restriction of wd
injuring navigation. The law of tkc ststo
is therefore restrictive of that general ri|ll
naturally flowing from the free net of fnf>
erty, and ought not to be constiiied b^oil
what sound policy and the neceaaitT of Of
policy
case may require."
Adverting to the importmnee of so dnftiii
the regulations as not to impose '^^
calculated to discoura^ those
purchase water lots with their
privileges, the commissioners tail
"Our funds depend in some
sales, and the sales on publie eonftdenet
opinion. Any measure greatly eonatwse^
ing the hopes and wishes of those ii
would certainly be injurioua, and
to be adopted without an evident
Does not the declaration that tht
were adopted with respect to privatt
erty on tne water rebut the contentioi wv
advanced that there was no sndi prowrt; m
the water, because all riparian rints of
rights of wharf ase were exduaively Qm pnf>
erty of the public?
Are these statements of the ooanaiMiaasv
not a complete answer to the conUntioa
the Maryland act was Intended *to
rights of wharfing, and not naerdy to rv^
laie the exercise of existing rights'? At tk
outset attention was called to the £ut ^it
the Maryland law was passed at the
of the commissioners, preferred at a
where Mr. Jefferson and Mr. MadiMa wt
present, and that the very terns of th» rr
quest implied that the commisaioDen 4nM
power to regulate the riparian richts wiiA
they thought were then existhy. Koa.
with all the interveninir transactions, am*
the letter to the President, ahowiac ^tfmi
peradventure the construction sad tRltfff»>
tation affixed to the Maryland aet Jv tkM
to whom it was addressed. OonM WtsUW'
08.
MoBBis Y. United States.
aui>jw4
n, ootild Jefferson, have remained silent if
le letter of the commissioners was an in-
•rrect statement of the understood law on
le subject? The declaration of what the
fi^bta of the water lotowners were as to
narfa^^ is as full and complete it seems
> me SL8 buman language could make it.
The draft of the proposed regulations
dopted by the conmiissioners and which was
iibmitted. by them to the President is not
1 the record, although the communication
0 the President inoicatee its character,
^rreapondence, however, on the subject en-
ued betvreen the President represented by
he Secretary of State and the commission-
ira. It is to^ be inferred that the draft of
he regulations sent to the President con-
joined a provision forbidding water lotown-
ers, in the construction of their wharves any
^uildin^ whatever, the intent appearing to
t>e that the warehouses would be built on
the water lot to which the wharfin|f privi-
l^e ^vas attached. This would maicate
that the commissioners intended by their reg-
ulations to so arranee that any projected
street would not cut off the water rights and
right of wharfage, but would serve merely
as a building line.
Complaint on this subject was made by a
Mr. Barry, and such complaint was thus re-
ferred to in a letter of Commissioners Scott
and Thornton to Secretary of State Ran-
dolph on May 26, 1795:
'*Mr. Barry had purchased on the Eastern
]6ranch, under *an idea of immediately build-
ing, and carrying on trade, but refuses to
build« on being informed of the restrictions
to which everyone muBt be subject in support
of a Water street, which we presume it was
the intention of the executive to keep open
to the wharves, as is the case in Bordeaux
and some other cities in Europe. The in-
convenience pointed out by Mr. Barry is that
in unladinff vessels it would be necessary to
so throu|^ three operations: 1st, tak-
ing out the load ; 2d, conveying it across the
wharves and Water street to the ware-
houses ; 3d]y, by taking 11 up into the ware-
houses. Whereas, if the stores or ware-
houses were to stand on the water edge of
the wharves, the unlading into the ware-
bouses would only be one operation, and it
would save five per centum, and the same in
loading."
Observe that there is not an intimation in
this communication that the commissioners
or anybody else had the faintest conception
that the right to wharf did not exist in favor
of Uie owner of the water lot because of a
proposed street, but there was simply a ques-
tion as to whether the regulations should re-
strict the water lotowner from building
warehouses on his wharves. The wharfing
regulations, as adopted, are annexed in the
3]margin.t As approved, they contained no * re-
striction on the right of water lotowners to
erect warehouses on their wharves, thereby
clearly implving that the complaint of Barry
was treated by President Washington as
well founded, and that the resnilations were
corrected in that respect before final ap-
proval. Comment at much length upon the
regulations is unnecessary, but their perusal
refutes the idea that a street marked upon
the plan of the city as running in front of
water lots operated to deprive such water
lots of riparian privil<^es. The regulations
warrant the inference that the right of
wharfage was intended to attach to such lots
at the boundary of the lot on the water aide,
and that the water street was designed to be
superimposed upon the water privileges. The
requirement was that when tlie proprietor
of the water lot wharfed out in front of hia
lot, he should leave a space for the street,
which, upon the plan of the city, appeared as
bounding the lot on the water, and if in so
wharfing it became necessary to fill up and
make the street, he was to have the exclusive
right of occupancy until reimbursed "the ex-
pense of making such street."
It will also be observed that in the regula-
tions the right is recognired, without qualifi-
cation or reservation of any kind, of all pro-
prietors of water lots to wharf into the river
and the Eastern Branch.
While President Washington had under
consideration proposed wharfing regulations.
Commissioners Scott and Thornton ad-
dressed a letter to Commissioner White on
August 12, 1795. A sentence in this com-
munication illustrates the important nature
of the riparian privileges and refutes the
thought that anyone then supposed that
such a right was received as a favor and was
a mere temporary license, revocable at the
pleasure of the commissioners or of Con-
gress. The letter discussed the advisability
of not requiring a space of sixly feet to be
left between the termination of the wharves
and the channel, and in the course of the
comments it was* said: "Mr. Hoban, agent[334)
for Mr. Barrv, says the intended wharf in his
case, which ne estimates to cost upwards of
twenty thot^and dollars, will terminate in
four feet water." The regulations, as finally
approved, were sent to the commissioners on
September 18, 1795, by President Washing-
ton, with the following communication:
Mount Vernon, 18 September, 1795.
Qentlemen: — ^The copy of the letter which
you wrote to the Secretary of State on the
21 ult., enclosing regulations relative to the
wharves and buildings in the Federal city,
came to my hands yesterday.
If the proprietors of water lots will be
satisfied witn the rules therein established
for the extension of wharves and buildings
thereon, the regulations will meet my entire
tBuilding Begnlatlon No. 4.
(Proceedln«v of CommlBsioners, p. 408.)
City of Washington, July 20th, 1795.
The Board of Commissioners In vlrtae of the
powers vested Id them by the act of the Mary-
land legislature to license the bnlldlng of
wharres In the dty of Washington, ft to regn-
lite the materials, the manner and the extent
174 r. 8.
thereof, hereby make known to those interested
the following regulations:
That all the proprietor! of water lots are per*
mltted to wharf and build as far out Into the
river Potomac ft the Eastern Branch as they
think convenient ft proper, not Injuring or In-
terrupting the channels or navigation of the
said waters, leaving a space wherever the fren-
905
884-836
SuPBKid Court of the Uirmo States.
approbation, and of their ideas on this head
you have no doubt made some inquiries and
decided accordingly. . . .
Can this letter be reconciled with the
ttieor^ that proprietors of water lots had no
riparian privileges and no right to extend
their wharves bMause of a proposed street?
Does not the letter declare the existence of
such rights in unequivocal terms, and also
clearly point out that the words "water lots'*
meant property fronting on the river, to
which riparian rights and consequently
rights of wharfage attached, despite the
presence of the proposed street?
Mark the declaration of President Wash-
ington that he considers the regulations as
relating to the ewtenaion of wharves and
buildings tiiereon, clearly implyinj^ the right
to extend out the wharves from m front of
the water lots, and also showing that he had
in his mind the change which had been made
in the regulations in consequence of the com-
plaint of Mr. Barry, allowing buildings to be
erected by the owners of .water lots on the
wharves which they were entitled to con-
struct. In addition to these considerations,
however, there is one of much greater im-
port which arises from the letter of Wash-
ington, that is, the great importance which
he attached to doine nothing to impair the
riparian rights of the owners of water lots,
for he expressly says:
[935] *"If the proprietors of water lots will be
satisfied with the rules therein established
for the extension of wharves and buildings
thereon, the regulations will meet my entire
approbation.*'
If the rights of the owners of water lots
were not deemed by him a matter of grave
importance, whv should one so scrupulously
careful as Washington always was nave de-
clared, in a public document, that the sat-
isfaction of uie lotowners with the regula-
tions constituted one of the moving causes
for affixing his approval to them? Can it
be said that Washington would have subor-
dinated the execution of a public duty to the
approval of private indiviauals who had no
especial rights in the matter?
It seems to me that this declaration on his
part obviously implied that, as by the results
of the contracts made with the former pro-
prietors, under his influence and at his sug-
gestion, they had given up their property
upon the condition of an unequal division, he
was unwilling that anything should be done
to deprive them of a part of their equal
rights, and therefore he would not approve
any regulations which he considerc^i had
such an effect. In other words, from reasons
of public honor and public faith, he deemed
it his duty to protect the rights of the owners
of water lots. This obligation of publio
faith thus, it seems to me, expressly declared
bv Washington, rests, in mj jud^Bcnt,
the nation to-oay and fthoald be
As I see the factk, it ill ^^^—f
now, when the rights have been Miiwiilti fey
years of possession, to treat tbem mm if tkip
had never existed, and th«s dlnward tke c^
ligations of the public tmsi wlu& Waikaf-
ton sousht so sedulouBly to fnlfiL
Mr. Barry, whose proposal to fa«iU s <
wharf has been above set forth, aad at wtas
complaint the rsgulations were preasBaUj
amended so as to allow tbe boifaiw ti s
warehouse on the wtuLrves, it womM ana
after the adoption of the rcgnlatiaM fasrrf
another difficulty. Certain lots aitsatsd m
square No. 771, whi<A hmd been sold by tie
commissioners to Greenleaf under the tsfnm
statanent that they were entitled t» tts
wharfinff privilege, had been toafej^ tt
Barry ^as the assignse of Oreeslesl Tl<9|
reg\iIations, as I £ave obeerred, ptmvkf
that the wharf owner should, where ths fkm
of the city exhibited a street and at
three himdred feet, leave a space for a
Barry, perceiving the idea that a
street (Georgia avoiue) whidi
across his wharf, would under b
previously made impair the atllity ot Ui
wharf, entered into neffotiatk>Bs with tfe
commissioners on the smnecL *nM —jwifl
of the commissioiisrs adareeaed him tlM »
lowing letter:
Ci^ of Washington, 5tli Oet ITU
Sir : — ^We have had voar favnr of ths M
inst., too late on that day to bs takas ap; •
the board were about risiitf.
It will always give us t£e grssttst ^km^
lire to render every possible aid to Umhs sis
are improving in the city, espeetaDr m m
large a scale as you have adopted. Wc tUik
with you that an imaginary contiBnatka rf
Greorgia avenue through a considerable ~
of tide water, therebjf euttimg ojf tht
privilege of square Ttl to fokirf to the
neZ, too absurd to form a part <rf the
of the city of Washington. TluU it i
was a part of the plan that such it
should be continued through the watv, wd
that your purchase in square 771 rlvss a pv^
feet right to wharf to any extent » froet «
south of the property purchased by yos
injurious to the navigation and to
buildings thereon agreieably to the
tions published.
In other words, the eommtiiionsfi
to relieve him from the effect of the
regulations. Because, in the letter
commissioners, the words
cutting off the water privflese of
to wh£rf to the chsnud," it has ~
that the commissioners must
that the eristence of a street in
water lot, between it and the
of tk
■tTTt
eral plan of the street In the city requires It,
of equal breadth with those streets: which if
made by an Individual holding the adjacent
property shall be subject to his separate occu-
pation and nse until the public shall reimburse
the expense of making tach street, and where
no street or streets Intersect said wharf to leave
a space of sixty feet for a street at the terml-
nation of every three huadred
ground : the bnlldlnc on ssld
ground to be subject to the
for buildings In the elty of
dared by the Presldeet,
of such material as the
By order of the
(Signed) T.
fmftei
wharves to bt
'i^fSTi
)06.
Morris v. United States.
38&-289
aclmicaJIy o^rate to deprive the lot of its
ip&rian privil^^s. But this overlooks the
atire Biibjeet-matter to which the letter of
tie ooxmmssioners related. They were deal-
m: ^with the operation which a projected
treet would have, as complsiinea of by
ia,TTy, on a wharf token huili, and not with
be xdparian right to wharf *to the channel,
rhicli was conceded. Indeed, this becomes
«rf ectly clear when it is considered that the
quare referred to had been the subject not
DTig before of express representations by the
oznniissioners to various would-be {)urohas-
^rs Hi at it possessed wharfing privileges.
Dhis letter oi the commissioners also con-
ains a statement which shows their estimate
>f the theory that a merely projected street
n front of a water lot should cut off riparian
privileges, since they declare that such an
sfiTect to be given to an imaginary street was,
bo use their language, *'t^ absurd" to be
Donsidered.
The period following the approval of the
wharfing regulations by General Washington
affords other illustrations of the sale of wa-
ter lots and the granting of licenses to lot-
owners to wharf across the street in front of
their property — in other words, to enjoy
their riparian rights — which I do not deem
it essential to enumerate in detail, as thev
are simply cumulative of the examples which
I have already given.
There is an interval of about fifteen
months during this time where the records of
the commissioners no longer exist, and there-
fore approach is at once made to the Der-
mott map, which was transmitted by the
commissioners to the President on March 2,
1797. The court has inserted a reduced re-
production simply of that portion of this
map on which is delineated the water front
from the Long Bridge up the Eastern Branch,
and this will answer the purpose of elucidat-
ing what 1 have to say in connection with
the map.
On June 15, 1795, Dermott had been "di-
rected to prepare a plat of the city with
every public appropriation plainly and dis-
tinctly delineated." In consequence of de-
part ires made from the Ellicott map, re-
sulting from changes in the public reserva-
tions or corrections of mistakes which were
developed as existing by subsequent surveys,
as well as from the creation of new squares
a^iJ the obliteration of some old ones, it re-
sulted that the Ellicott plan no longer ac-
curately portrayed the exact situation of the
city, and the Dermott map, when completed,
exhibited the result of all such changes.
It was strenuously claimed in argument
that this map was the final and conclusive
3]p1an of the city, and that an inspection *of it
disclosed that the proposed water street
marked on the plans of L'Enfant and Elli-
cott was omitted. The cOivt finds that this
map was only one step in the evolution of the
city, and that whilst It is true that it did
not mark Water street along the whole front
of the city, it nevertheless delineated a line
binding tfe? fr^nt, which the court considers
indicates that <• Water street was either
then projected or contemplated in the future
to exist in accordance with the face of the
174 V. 8.
L'Enfant and Ellicott maps. Whilst to my
mind the line in question is but a demarca-
tion of the tide line, this is immaterial; for
it is conceded arguendo that the plan is
what it is now decided to be.
One thing, however, is plainly noticeable
on the. Dermott map, viz., that whilst the
line which it is now held indicates the fixed
purpose to there locate a street is patent.
Water street is not named upon the map at
that locality, and such a street is only
named in a short space from square 1079
to square east of square 1025. How the
Water street came to be delineated and
named at this particular locality by Der-
mott is shown by an order made by the
commissioners on March 22, 1796, 'di-
recting the surveyor to "run Water street
to ei^ty feet wide from square 1079 to
square east of square 1025, and run out
the squares next to the water and prepare
them for division." In other words, at the
one place on Dermott's map where a Water
street is specifically statea to exist, it ia
shown that it was the result of a precise or-
der to that effect given by the commissioners.
Tiiat the commissioners could not have con-
sidered that this order cut off riparian rights
from the water lots within the area in ques-
tion is shown by the evidence in the record,
which establishes that the lots there abut-
ting on Water street were sold by the com-
missioners as water lots subsequent, to the
order referred to and with water privileges
attached. (Square 1067, August 15, 1798,
1079, and 1080, November 9, 1796, and Octo-
ber 24, 1798; east of 1025, December 5,
1798.)
On the Dermott map was noted, as al-
ready mentioned, the changes and correc-
tions which had taken place in the interven-
ing time to which I have referred.
The Dermott map also makes clear this
fact that, as by the 'result of the survevs, in[^**J
most instances, the measurement oi the
squares — certainly in front of Notley
Young's land — carried them down to, or sub-
stantially to, the water line along the river
bank, that the projected Water street, taking
the line as delineating such street, was pro-
posed to be established, in great part at
least, in the water.
It seems to me, after what has been said,
nothing further is required to show that,
granting that the line on the Dermott map
was intended to indicate a proposed street, it
was not thereby the intention to abolish the
distinctive characteristics of water lots and
the riparian privileges which were appurte-
nant to them. Dermott himself was familiar
with all the previous transactions, having
been in the service of the city from early in
1792. He had made changes as reported in
the situation of particular pieces of property
in order to preserve the riparian rights and
give them fruition. He stated to the com-
missioners in 1799 (long after it is alleged
his plan was approved by. Washington) that
riparian rights had been the basis of pur-
chases, and that assurances and explanations
as to their existence had caused purchases
to be made which otherwise would not have
taken place. He had supervised the divi-
OQ7
889-842
Supreme Coubt of the United States.
■ion in OaiTollsburgh, which preserved the
riparian rishts. In other words, he had
d^t with uie whole matter, as an officer of
the city, upon the assured assumption of the
existence of the riparian rights attached to
water lots. In no instance, except in a few
cases of an exceptional character,, had he
questioned such rights. And when, in 1709,
he gave a sunmiary of the prior dealings of
the commissioners in relation to water prop-
erty— as to which, as stated, he was person-
ally familiar — ^he observed, after stating that
in some special instances squares touching
or binding upon the water were not given the
privilege of whariinff, in which case they
were sold and divided as upland lota, he said
ai a sure criterion that a lot waA a "water
lot" and, as a corollary, was entitled to "wa-
ter privileges;" that "where squares were en-
titled to water privileges, in the sales these
icerc sold by the front foot, or the privilege
generally mentioned to the purchasers."
[S40] *Under these circumstances to suppose that
the line drawn, on Dermott's plan, along the
river, whether it indicated a projected street
or the line of tide water, was intended to cut
off the riparian rights, would attribute to
him a conduct so inconsistent, not to use
harsher words, as to be beyond explanation.
And when the approval by President Wash-
ington of the Dermott plan is weighed, it
stTlkes me as an express sanction by him of
the existence of the riparian rights and
wharfinff privileges, as attached to water lots
especially in view of all the transactions to
which reference has been made, and particu-
larly in view of his language in approving
the wharflng regulations, in which he said:
"If the proprietors of water lots will be sat-
isfied with the rules therein established for
the extension of wharves and buildings there-
on, the regulations will meet my entire ap-
probation."
During this period occurred the controver-
sy between Nicholas King and the commis-
sioners, which led to a communication on
June 25, 1798, which it is claimed contains
language importing generally that the com-
missioners denied that wharflng privileges
attached to a lot when separate from the
water by a street. But this inference, in view
of all the circumstances, is unwarranted. Mr.
King left the employ of the city in Septem-
ber, 1797, and thereafter looked after the in-
terests of some of the original proprietors.
As representing Robert Peter, he wrote to the
•commissioners on June 27, 1798, urging in
substance that the wharflng regulations
should be made more definite and complete.
He enumerated a number of water squares
owned by Mr. Peter a? entitled to riparian
privileges, and without expressly declaring
that square 22 was a water square, suggest-
ed that the dimensions of that square as then
platted should be enlarged rather than that
a new square should be formed from the low
ground on the south, thus implying that the
square «8 enlarged would be bounded on the
water side by a street. In answering this
communication the commissioners said in
reference to square 22 :
"With respect to square No. 22, we do not
998
conceive that it is entitled to mbj wmttr fri^
ileges as a street inteirenei between it tad
the water; but, sm there ia ioiim bi|^ grooi
'between the Water street and the wmter, w^MIl
have no objection to laying out a new eqvare
between Water street ana the ^**"^^ aad
divide such square, when laid out, eo es to
make it as beneficial to Mr. Peter mad the
public as circumstances will admit.''
That the commissioners did not intend t»
assert that a merely projected street appear-
ing on a plan of the city would take a square
adjacent to the water oat of the category of
water property is evident from the fact that
they Old not dispute Mr. King's assertioe
that the other souares enumerated in his lei*
ter which were txHmded, on the plan of the
city, on all sides by streets, were posscMed
of riparian privileges. The oommiesioaen
evidently assumed Uiat there was fast land
of the entire dimensions of a street sooth of
square 22, and also other fast land bete cm
that street and the water, and that the p«r>
ticular locality justified treat! ns sqnare 2t
as upland property, and called tor the cre-
ation of a new square to the south. It is te
be remarked also that the eommiwionfn
were dealing, not with would-be parfhuiri,
but with tne representative of the forav
proprietor, with whom it was oompetest te
agree that in view of circumstances, vaA sa
s&rted, a square might be laid partly in the
water below a street, which square should
be the 'Vater sauare" to which the riparian
privileges should attach. As then wr
commissioners, about this very time, loU
lots as possessed of riparian privileges whvs
a street was contemplated towards the water
and where some fast land existed (as in the
case of squares 1067, 1079, 1080 and esat of
1025, to which we have already referred as
facing tiiat portion of Water street ezprealy
nam^ on the Dermott map), it is eridMft
that the statement in question was not
as a general declaration in the broad
which might be ascribed to it if the d
stances under which it was made wei
considered.
The examination of the events which
spired in the second period is oondnded with
mentioning that the commissioners, at ta-
rious times, made reports to the Preddaotk
by whom thev were transmitted to OongrcM.
In each of these reports they gave a •*■*•" ^^
ment of the public property in the •dtyoC**'!
Washington, distinguishing between nip-
land " and "water" property, describing tha
latter by the^ number of feet f ronta|^ on tfce
water, and stating the average once whiek
had been realized on the sales of water kte
in the past by the front foot. This lattar
was a criterion which Dermott had prerion^
ly declared to the commissioners was one of
the conclusive tests for determining wbethar
a lot was entitled to be dassed as a watsr
lot, possessed of riparian rights and wharfing
privileges. In none of these reports vai the
claim made that the public posBeaanl all
riparian rights as appurtenant to an exists
ing or proposed street. Certainly saeh a
daim would have been admneed— espedally
as the reports in queatioo were made with a
174 V. M.
MOBRIB Y. UlilTED StaTLS.
84:^-845
rievr "to legislation aathorizing the borrow-
n^ of money on the security of all the pub-
ic property. The same remarks also apply
to tlie forwarding of a copy of the plan of
tlie city, in the same period, to a firm in Am-
steTdajm, through whom the representatives
of tlie city were endeavoring tx> negotiate a
loan. The public property was marked up-
on tli&t plan, but no intimation was given of
the existence of riparian rights distinct
from the squares appearing upon the plan.
Can it be considered that when all the public
property was beinff tendered as a security
for money proposed to be borrowed, that so
valustble a right as the entire wharfing
privities and riparian rights of the city, if
believed to be concentrated in its hands as
appurtenant to a proposed street, would not
even have been referred to or tendered in or-
der to aid in the consummation of the de-
sired loan?
The facts which I have reviewed are not
the only ones establishing the universal ad-
mission and acceptance of the existence of
riparian rights as attached to water lots
during the period examined. Many others
tending in the same direction are foimd in
the record, and are not referred to because
they are merely cumulative. Among one of
the facts not fully reviewed is the presump-
tion which it seems to me arises from the
book described as the register of squares.
The importance and sustaining power of the
results of this book are substantially con-
ceded by the court, but it is held that the
)]*book ou^ht not to be treated as controlling.
Grant this to be so, yet the power of the im-
plications resulting from the book when con-
sidered in connection with the other proof to
which I have adverted seems unquestionable.
The book, however, is not reviewed at length,
since it simplifies examination to refer only
to such matters of proof as are unquestioned
in the record and are undenied in the opinion
of the court; and all the facts which I have
above stated come under this category.
By these means, which have been merely
outlined, the difficulties which beset the es-
tablishment of the city were overcome, and
the seat of government at the time provided
in the act of Congress was transferred to its
present location.
Before passing to the third period of time
it seems to me well for a moment to analyze
the situation as resulting from the events
which have been narrated. One or two con-
siderations arise by necessary implication
from them. Either that all parties con-
cerned in the foundation of the city contem-
plated that a space should separate the
building line from the wharves, so as to have
free communication along the river front,
without impairing the rights of the owners
of the water lots, or that they contemplated
a street, the fee of which would be in the
public along the whole river front, and, ig-
norant of the legal consequence of such a
street, proceeded to dispose of the greater
part of the water lots upon the express un*
derstanding that riparian rights would at-
tach across the street just as if the street
had not been contemplated, and that upon
this understanding everybody contracted and
174 TJ. S.
the rights of everyone were adjusted and
finally settled. For the purpose of this dis-
sent it becomes wholly immaterial to deter-
mine which of these propositions is true, be-
cause if either be so — ^as one or *he other
must be — then the riparian righis, in my
opinion, should be aaiudged to exist, u
seems to me, however, tnat the first hypothe-
sis is the one naturally to be assumed. It
i9ust be borne in mind that L'Enfant, the
engineer selected by President Washington
to draw the plan of the city, was a French-
man. It is in evidence that he requested Mr.*
Jefferson to send him plans of European
cities, *and that his request was complied[344]
with. Thus Mr. Jefferson wrote: "1 ac-
cordingly send him by this post plans of
Frankfort-on-the-Main, Carlsruhe, Amster-
dam, Strasburff, Paris, Orleans, Bordeaux,
Lyons, Montpelier, Marseilles, Turin, and
Milan, on large and accurate scales, which
I procured while in those towns respective-
ly.** The fair presiunption is that L'Enf ant's
request of Mr. Jefferson was the result of a
previous communication to him by Mr. Jef-
ferson that he possessed the desired informa-
tion, for it is impossible to conceive, with all
this information in his possession, that Mr.
Jefferson, who must have come in contact
with L'Enfant, would not have stated to him
the fact. It is also fairly to be assumed that as
Mr. Jefferson had procured in person when
abroad the plans olf all these foreign cities,
that he was looking forward to them as
means of information and guidance to be
used for the future Federal city; otherwise
he would not have undertaken such a labor.
That Mr. Jefferson was familiar with the
plans is of course manifest, for with his
phenomenal faculty of reaching out for
sources of information on all subjects and
storing his mind therewith for future use, it
is impossible to conceive that he had not
vividly before him the method by which
the cities in question were laid out. Now,
it is especially to be remembered that every
one of the cities mentioned by Mr. Jefferson,
the plans of which he had forwarded, were
on the continent of Europe, that is, were sit-
uated in countries governed by the general
principles of the civil law. By that law*
whilst lotowners fronting on a navigable
river have the enjoyment of riparian rights,
this right vested in them is subject to what
the civilians denominate a legal servitude,
that is, an easement, by which they are com-
pelled to leave around the entire river front
an open space or way in order to afford con-
venient access to the water by the public.
Whilst this open way may be used by every-
body, it does not cut off the riparian rights,
but is simply superimposed upon those
rights, tlie lotowner having the enjoyment
of the rights, but being obliged to furnish
the open space which the public may use.
Civil Code of Louisiana, art. 665 ; Duhose v.
Levee Commissioners, 11 La. Ann. 166; Code
Napoleon, art. 650, *and note to the artic1e[345]
in question in the Annotated Code by Fuz-
ier-Hermen (Paris, 1885) p. 880.
Is it not natural to presume, in view of the
country from which L'Enfant came, in the
light of the plans which Mr. Jefferson sent
:$io-84;
Supreme Coubt or the United States.
Ck:T-
lilm and of the knowledge whicb Mr. Jeffer-
son had acquired of these plans, and by the
personal investigation which he had made
in procuring them, that the L'Enfant plan
but exhibited the principle of le^^ service
^ as embodied in the civil law? When one
looks at the LnSnfant plan and bears in mind
the civil-law rule, it strikes me that the plan
but illustrates and carries out that rule.
Strength is added to this view bv consider*
ing the Maryland law of 1791 conferring au-
tiiority upon the commissioners to regulate
wharfage and giving other directions as to
the city. That law was passed at the re-
quest of the commissioners, preferred at a
meeting held when Mr. Jefferson and Mr.
Madison were present. It may properly be
assumed that the draft of so important a law
was, before its passage, submitted to Presi-
dent Washington and his advisers. Now,
the Maryland statute contains two provi-
sions, then and now existing in substantially
all civil-law countries, but at that time not
usual in countries controlled by the com-
mon law; that is, a provision for a builder's
lien, and one directing that houses or build-
ings should be erected in accordance with the
rule of party walls. Was this then new de-
parture discovered by a member of the Mary-
land legislature, or was it not rather suggested
because it prevailed in the continental cities,
the mind of Jefferson being then directed to
the rule in those cities, as it was upon the
plans prevailing in them that the proposed
capital was to be laid out? This view is
greatly fortified by the wharfing regulations,
which were formulated by the commission-
ers and approved by the President. It will
be seen that they provided that when a
wharf was to be extended by the proprietor
of a water lot a space should be left for a
street wherever the general plan of the city
required it, and at intervals of three hundred
feet a space of sixty feet should be left for
new streets. There is an analogy between
the regulations in question and section 38 of
[946] the French ordinance of 1669 on *the eame
subject. Code Civil, by Fuzier-Herman
(Paris, 18S5) p. 880, note 1 to article 650,
where the text of the French ordinance is
stated in full.
But we are not left to mere resemblance on
this subject, for there exists the express dec-
kiration of the commissioners to the effect
that they considered that the continental
rule governed in the plan of the city as to
the Carves, which declaration was in effect
approved by Washington himself. After the
proposed wharfing regulations had been sub-
mitted to the President and while they were
under consideration, the complaint of Mr.
Barry was made, to which reference has been
made, and the letter was written by the com-
missioners to the Secretary of State regard-
ing such complaint and explaining the na-
ture thereof. Now» in that letter, in giving
their reasons why, by the regulations which
they finally submitted, the commissioners
had restricted the erection of buildings on
the wharves, they referred to the open space,
and added "which we presume it was the in-
tention of the executive to keep open to the
wharves as is the case in Bordeaux and some
1000
other cities of Europe." This nnut
been derived from an antecedoit
of the purposes of the plan. It
been approved by Washington, for it i
possible to believe that with this iasp
explanation made to the Secretary A
for submission to the President,
was considering whether he wookl
the regulations, he should not hain
ed such a misapprehcosion if it
Besides, the general conditions iuinlwed
the foundation of the Federal dtj
sively indicate why Washington and J<
son and Madison should ^ve
the city upon the continental plnsa,
which not only Jefferson but L'Enfant
familiar. The contracts with the
tors required an equal division, th
the lotowners in Carrollsburgh aad
burgh an allotment of one hafi the
of their former land in a like or
situation. As the laying off of a street m
as to take away the riparian privil^pei wl
former water lotowners would be ineoayatt-
ble with an equal division or one in like
ation, there was a serious difficoltT in
doing. On the other hand, not to *
open way for public access might weO
been conceived as injurious to the puhlie
terests. The theory of an easement rv
a ready solution for this otherwise t
able difficulty. It afforded an apt mtmm tf
protecting all the rights of the water k*
ers by preserving their riparian rights
wharfing privileges, and at the same
it affordea full protection to iht ri^li rf
the public by keeping an open space on tks
water front, subject, it is true, to the «s»>
cise of riparian rights, but in no way m-
terfering with public utility. Another en*
sideration bears this riew out. That it «s
hoped that the means for establishi^ tks
city to be derived from the sale of lots wnii
be readily aided by the purchase of lou If
residents of France and Holland is
the record, for among the first
the engraved plan was to scnnd copi
to the continent in the hope of
there a desire to purchase, and the
shows that a member of the Amsterdsa
heretofore referred to, aetnally
lots in the city vdth reference to 'the staa
Now, the sagacious men who were Washisf'
ton's advisers must have seen at ow* tM
the plan preserving the riparian rightm. sa4
giving access at the same time to the rrw
front, in accordance with the trstcB «i«^
it may be assumed, existed in the tiunaf
where it was hoped that money wo«l4 ht a^
tained, was much more likely t» nrrm^'^
the desired result than the adoptioa sf s
contrary plan.
But the strongest argument in snMwrt rf
this theory of the purpose of WattiifQM
and the object contCTiplated by the pUs b
that if it be adopted all the facta in uri»
ord are explained and rendered kaiiBwiiii,
one with the other. The plans owr w^aA
controversy has arisen all thea f>oinri<h IW
reason why so much of Water stmni was Ul
in the water becomes apparent. TW en^
traets for tho sale of water lots with rff^
rian rights attached* the r»orts ol the s»
174 V.&
MoBRis V. United States.
347-^0
eyors and the action of the commissioners
11 Uend into a harmonious and perfect
rlkole, ^workinff from an original conception
o a successful consummation of a well-un-
erstood result. The contrary view pro-
luces discord and disarrangement, and leads
to tlie supposition either that the plan of
t street, cutting off riparian rights, was de-
mised in ignorance of its legal resultr— and,
>f course, I have not the audacity to make
vach suggestion as to Washington and Jef-
Eerson and Madison, and Mr. Justice John-
son of this court, and all the other wise men
who lent their aid to the establishment of the
csity— or that the plan of the street, in that
sense, having been devised it was at once de-
f carted from because it was discovered that
t inras not only in conflict with the rights
of tlie lotowners, but also would destroy the
sale of the water lots, hence all the contracts
and dealings and declarations to which I
have referred ensued. But if the theory that
the plan of establishing an easement was
adopted be not true, and it be conceded that
it vrcLS the intention to lay out a street, in
the fullest sense of that word, which would
cut off the riparian rights, such conclusion,
in my judgment, would not at all change the
result in this case, for in that event, I sub-
mit, that the contracts and dealings and rep-
resentations and admissions, upon which the
loto^rners dealt and upon which everybody
acted in changing their respective positions,
brings into play the principle of estoppel,
and compels, in accordance with the element-
ary principles of equity, that the riparian
rights and rights of wharfage which were
bouffht and paid for, and which were solemn-
ly declared to exist in every conceivable
form, should now be respected.
It would thus seem from the events of the
two periods that the riparian rights of the
water lotowners were conclusively established,
and that it is unnecessary for me, in consid-
ering the last and final period, to do any-
thing more than to state that nothing there-
in occurred by which the water lotowners
abandoned or were legally deprived of their
rights. But, from abundant precaution, let
me, in condensed form, refer to the events
of the third period, simply to show that the
riparian rights of water lotowners continued
to be recognized down to so recent a period
as the year 1863, and were not thereafter in-
terfered with in such manner as to give even
color to the contention that the rights were
transferred to the government.
3. Events suhaequeni to March f , 1797,
The legislation b^ Congress and the mu-
9]nicipality of Washington 'with respect to
wharfing practically constitutes the only
facts necessary to oe considered in any re-
view of this period. That legislation, I sub-
mit, until a comparatively recent date, in
no\d8e imported a denial of private owner-
ship of wharfing rights as attached to water
lots, but, on the contrary, establishes their
existence.
I first premise as to the existence of pub-
lic wharves.
On one of the water lots of Hamburgh
there existed in June, 1794, what was termed
the "City Wharf." On the plat of siurvey of
174 V. B.
square 89 this wharf appeared, on lot 10, aa
"Commissioners' Wharf.^' Lot 10 was re-
tained for the public. On January 26, 1801^
the proceedings of the commissioners recite
that a "representation," which was set out,
had that day been sent to the President. la
it the public property of the city was enumer-
ated, and in the course of such enumeratio»
the statement was made that "four wharvea
have been built at the expense of $3,221.88,
which remain in a useful state." As I have
heretofore shown, a number of private
wharves had been built prior to 1800, three
of which appear on the Dermott map, but in
the representation no claim is advanced Uiat
such wharves were public property.
The act of Congress of May 1, 1802 {2
Stat, at L. 175, chap. 41 ) , abolished the com-
missioners and vested their powers in a su-
perintendent. The act of May 3, 1802 (2
Stat, at L. 195, chap. 53), incorporated the
inhabitants of the city. In 1802, as we have
seen, there were at least four, and perhaps
five, wharves, which were owned by the pub-
lie. While authority was given to the corpo-
ration of Washington, by the act of May 3,
1802, to "regulate the stationing, anchorage,
and mooring of vessels," no authority to li-
cense or regulate the building of wharves
wus given. Presumably, as to private
wharves, the regulations oif 1795 were deemed
to be in force.
I pause here to interrupt the chronologi-
cal review of the legislation as to wharfing,
to call attention to a report, bearing date
September 25, 1803, made by Nicholas King,
as surveyor of the city, to President Jeffer-
son on the subject of a water street and
wharves, simply because this communication
is referred to in the opinion of the court.
It is submitted *thaton the face of thecom-[350)
munication, instead of tending to show that
there was question as to the existence of the
wharfing rights, it, on the contrary, express-
ly asserts their existence and relates only
to their definition and regulation. Indeed,
the main purpose of the communication
seems to have been a complaint that the
wharfing regulations as originally proposed
should have been approved by President
Washington without striking out the clause
which forbade the wharf owners from build-
ing on their wharves. And all this becomes
very clear when it is considered that Sur-
veyor King, by whom the letter was written,
was the same person who in previous years
had avowedly asserted the existence of ripa-
rian rights in favor of a former proprietor,
Robert Peter, and made claim* m relation
thereto.
The act of February 24, 1804 (2 Stat, at
L. 254, chap. 14), gave the city councils
power to "preserve the navigationof the Po-
tomac and Anacostia rivers, adjoining the
city; to erect, repair, and regulate public
wharves, and to aeepen docks and basins."
While, under the authority conferred "to
preserve navigation," private wharves could
have been regulated, manifestly no such pow-
er could have been exercised under an au-
thority to **erect and repair and regulate
public w^harves."
That private wharves were not regarded
1001
860-3:iU
Supreme Coubt or the Uioted States.
«8 public wharves is clearly evidenced in the
ordinance of July 29, 1819 (Burch's Dig.
126), passed under the authority grant-
ed by the act of 1804 "to preserve the naviga-
tion of the Potomac." The act reads as k>1-
lows:
"Sec. 1. That the owners of private
wharves or canals, and canal wharves, be
obliged to keep them so in repair aA to pre-
vent injury to the navigation. . . .
"Sec. 2. That no wharf shall hereafter be
built, within this corporation, without the
plan bein^ first submitted to the mayor, who,
with a joint committee from the two boards
of the city council, shall examine the same,
and if it shall appear to their satisfaction
that no injury could result to the navigation
from the erection of such wharf, then, and in
that case, it shall be the duty of the mayor
to issue a written permission for the accom-
^•^Jplishment of the object, which permit 'shall
express how near such wharf shall approach
the channel."
How and where, may I ask, did the private
wharves originate, if no sug& wharves ex-
isted?
That the authority conferred with respect
to public wharves was not supposed to vest
power over all wharves is also indicated in
the act of May 15, 1820 (3 Stat, at L. 583),
which expressly distinguished the two class-
es. The corporation was empowered "to
preserve the navigation of the Potomac and
Anacoetia rivers {^joining the city; to erect,
repair, and regulate public wharves ; to regu-
late the manner of erecting and the rates of
wharfage at private wharves; to regulate
the stationing, anchorage, and mooring of
vessels."
The distinctive character of private whaxves
was still further recognized in the act of
the city councils of May 22, 1821 (Kothweirs
Laws, D. C. 275), by section 1 of which the
mayor was authorized and requested "to ap-
point three intelligent and respectable citi-
zens, not being wharf owners, as commis-
sioners to examine and report to the two
boards a suitable plan to be adopted for the
manner of erecting wharves upon the shores
of the Anacostia and Potomac rivers."
And, by section 2, the mayor was solicited
to wait upon the President, and to request
his appointment of such persons as he might
deem proper, to co-operate with those com-
missioners.
Again, by resolution of the coimcils, ap-
proved September 3, 1827, it was enacted
**that a committee of two members from each
board be appointed to act, in conjunction
with the mayor, in regulating the mode of
erecting wharves," conformably to section 2
of the act of councils approved July 29,
1819.
Similar recognition of private ownership
of wharves is contained in the resolution of
the councils of March 19, 1823, which estab-
lished "as fish docks," amongst other sites,
^the steamboat wharf on the Potomac, near
the bridge over the Potomac, and at Gana's
wharf."
That the preservation of navigation was
the controlling object in the regulation of
private wharves is very distinctly evidenced
1002
in the act of cotrndls, approved Jmmmmij t*
1831, which, in section 6, repealed tke act j
*of oouncik of July 19, 1819, and t& tlie ffx»
section enacted as follows:
"Sec 1. That it shaU not be Uvfvi
any person or persons to build or erect
wharf or wharves within the limite of
corporation, who shall not first
plan of such wharf or wharres to the
who, with a joint committee of
boards of the city council shall
same; and if it shall appear to tkeir
faction that no injury could result to
navigation from the erection of
or wharves, then* in that case, it AmU kc tkt
duty of the mayor to issue a
sion for the accomplishment of
which permit shall express how
wharf or wharves* shall approach tbt
nel, and at what an^e thcj thaO
from the street on wfaidi thej are «r
Four years after the enaetment last m-
ferred to a slight controversy
tated as to the existence of rij^ts ci
Bif^ as attached to water lots oa the
river between the Long Bridge to the
grounds. On April 13, 1835,
the effect that toe city had n
and, without injury to the general
could not admit, tiie existenee ci
rights" of individuals, between the Lmk
Bridge and the Eastern Branch, wmi iaief
nitely postponed. A Mr. Force,
her of the lower board of the city tm
protested against the action thus tahaa. Vt
nave seen how unfounded wa^ the af
Uon contained in this propoaed
In 1839, however, Mr. Force, as vaa^rac of tkt
city, approved a plan of William EUiott Ir
the establishment of Water street and far ifet
reflation of wharfinff thereon. I ihaH m
briefly as possible, ouUine the history of th
plan:
As surveyor of the dty of Washiactoa U
1833, William EllioU (the snbieet oi^^um
privileges" then being before the eoaarii* ^
the city) suggested U> William A. Br»£«v
mayor of the city, "that ystem" whie% ■■•
deemed by the former 'i>e8t for
those privileges in the most eqnitaUe
ner amongst those who own property
on Water street, as well as secunxtf tW f«^
lie rights." It was propoaed by Klliett ■
his plan No. 2, that Water street, haii^
being 'conformed to certain partscalar «r
lines, be rendered evervwhere not Was th0
one hundred feet in width, between the ham
Bridge and the then Arsenal groiiBds. a»i
that the construction of wharves and 4ti^
—of wharves, by individuals owning lots m
the north side of Water street, and if
wharves or docks, by the public,
public appropriations, or the ends of
terminating at the north line of Water ftnrt
— ^between that brid^ and those groandi. It
governed by the principle that the Waltf
street front of any such lot,
or end of street should furnish it a
nel front, only in the proportion
between the total frontage of Water
estimated at 6,280 feet, and the chord, t^
mated at 5,050 feet, measuring tht trtri
channel front — between the Long Brite sad
174 V.t.
MoBRiB Y. United States.
353-856
tlie H&en Arsenal grounds. The plan was
lescxil>ed on its face as of that part of the
city "eadiibiting the water lots and Water
street and the wharves and docks thereon,
■long^ the Potomac, from E to T street south."
It aaeigned, in the ratio proposed by Elliott^
to every souare on the north side of Water
Btree^ a wnarfing site from the south side
of tliat street to the "edse of the channel"
of the Potomac, and to public appropriations
and the ends of streets terminating at Wa-
ter street, sites for docks or other Tike uses.
It represented Water street as of varying
iKridth, and reduced, on its southern limits,
to a curve lying parallel to that describing
the edge of the channel ; and the squares, on
the north side of Water street, to which
i^harfbig sites are assigned, are designated
as 'Skater lots" on the face of the plan. A
more complete recognition of the pre-exist-
ing riparian rights of the water lotowners
than 18 shown on and established by this
plan my mind cannot conceive.
On February 22, 1839, the city councils
adopted the following resolutions:
** Resolutions in relation to the manner in
"which whartes shall be laid out and con-
structed on the Potomac river:
**Resolved, That the plan No. 2, prepared
by the late William Elliott, in eighteen hun-
dred and thirty-five, while survevor of the
city of Washington, regulating the manner
in which wharves on the Potomac, from the
4] bridge to T Street *80uth, and the plan of
Water street, shall be laid out, be, and the
same is, adopted as the plan to be thereafter
followed in laying out the wharves and the
street on the said river: Provided, The ap-
grobation of the President of the United
tates be obtained thereto.
''Resolved, also, That the wharves hereaft-
er to be constructed between the points speci-
fied in the said plan shall be so built as to
allow the water to pass freely under them;
that is to say, they shall be erected on piers
or piles from a wall running the whole dis-
tance on the water line of Water street."
Sheahan's Laws, D.'C. 178 {an. 1857).
These resolutions were approved by the
mayor of the city, Mr. Peter I'orce.
Before their passage and en February 15,
1839, Secretary of the Treasury Woodbury,
afterwards a justice of this court, had re-
ferred plan No. 2 of William Elliott to Will-
iam Noland, Commissioner of Public Build-
ings, and (intermediately) the successor in
office of the commissioners, for the opinion of
that commissioner upon the judiciousness of
the improvement contemplated in the plan.
On February 21, 1839, the day following
the passage of the ordinance, Mr. Noland, ac-
knowledging the receipt of the plan and re-
turning it to the Secretary, reports, "that
after oue deliberation," he believes "the im-
provement proposed would he judicious and
proper."
On February 23, 1839, the day following
the passage of the resolutions, the plan ap-
.proved hy the President, was transmitted by
Mr. Woodbury to Mayor Force.
When it is considered that up to the time
when the Elliott plan received the approval
of President Van Buren, Water street,
174 U. 8.
though contemplated, had not been further
laid down than by the establishment of the
upper boundary or building line, this action
manifestly possesses great significance. The
fact that action with respect to Water street
was incomplete was expressly stated by At-
torney General Lee in nis opinion to Presi-
dent Adams on January 7, 1799, when he
said, referring to the Dermott map:
"It is not supposed that this is incomplete
in any respect, *except in rela/tion to the[355)
rights appurtenant to the water lots and to
the street that is to be next to the water-
courses. . . . The laying off of Water
street, whether done in part or in whole, will
stand in need of the sanction of the Presi-
dent."
As in the President of the United States
therefore was vested the authority to com-
plete the plan of the city in any particular
in which it was defective, the approval of
President Van Buren may properly be re-
ferred to the exercise of that power, and as
entitled to be regarded as a distinct declara-
tion that Water street was not to have the
operation now asserted of devesting the wa-
ter lots fronting towards the river on Water
street of riparian rights. From Washing-
ton, then, to Van Buren, in every form in
which it could be done, the riparian rights
of the lot holders have been continuously and
solemnly sanctioned. I cannot now by any
act of mine destroy them on the theory that
they have never existed.
On May 26, 1840, a permit was issued by
Mayor Force, by virtue of the act of June 8,
1831, to William Easby to wharf in front
of some of the water sauares which original-
ly formed part of the land of Robert Peter,
situate on the Potomac river near Rock creek.
I set out in the marginf the document re-
ferred *to, which exhibits that it was for an[350|]
unlimited time, and with no provision that
tMayor's Office,
Washington, May 26, 1840.
William Easby. of the city of Washington,
having made application for permission to erect
a wharf In front of square No. 12, and extend
a wharf In front of square south of square No.
12, and having submitted to me a plan of said
wharves, which plan has been examined by a
joint committee of the board of aldermen and
board of common council, who have certified
that "no injury will result to the navigation of
the river from the erection and extension of
the wharves upon said plan.**
Permission Is therefore granted to the said
William Easby to erect a solid wharf the whole
extent of square No. 12, in front thereof, and to
extend a wharf In front of square south of
square No. 12, thirty feet, fifteen feet of which
to be solid, as laid down upon said plan which
exhibits the situation of the wharves aforesaid
as proposed to be built by his letter of 8rd of
February. 1840.
Which permission Is granted on the terms and
subject to all the conditions prescribed by the
act entitled "An Act to Preserve the Navigation
of the Potomac and Anacostia Rivers, and to
Regulate the Anchoring and Mooring Vessels
Therein/* approved January 8, 1831 ; and of
any act or Joint resolution that may hereafter
be passed relating to wharves in the city of
Washington.
Peter Force.
1003
856-358
Supreme Court of the United States.
the wharf shoiild revert to the government
as in permits of very recent date^
That on May 25, 1846, a committee of po-
lice, of the lower part of the city councils,
presented to that board a report which in ef-
fect denied the existence of private rights
of wharfing may be conceded. Like the reso-
lution of 1835 it was based upon a super-
ficial inquiry into t^e subject, and like its
predecessor, the resolution of 1835, was "laid
upon the table." Various acts of the city
council, one dated March 8, 1850, another
September 30, 1860, and the other May 3,
1866, appropriating in the asgre^ate $2,600.-
00 for the repair of sea walls along the Po-
tomac at points between the Long Bridge and
the Arsenal grounds, are set out as evidence
of an assertion by the citjr of the right of
ownership to all the riparian privileges in
that locality. I am unable, however, to see
that these circumstances are entitled to the
weight claimed for them. Under the wharf-
ing regulations of 1795 the ultimate cost of
making a Water street was to be borne by
the city, and a sea wall may well be treated
as part of such street. The evidence in the
record also shows that a goodly portion of
tho sea walls along the Potomac in the lo-
caility referred to was built opposite to the
water lots on the north side of Water street
and by the owners of such lots, and that
some of such owners had graded Water street
in front of their lots in order to the exer-
cise of their wharfing privilege. There is
nothing in the record to support the claim
that if the city had at any time constructed
a sea wall, it claimed that the wharfing priv-
ileges in front of such wall had been taken
away from the opposite lots. And the ordi-
nance of the city councils of February 22,
1839, adopting the plan of William Elliott,
clearly rebuts such an inference, for it is
there provided that wharves thereafter **to
be constructed" should "be erected on piers
or piles from a wall running the whole dis-
tance of the water line of Water street." In
£357]other words, although, in *the most solemn
form, it was declared that the owners of the
water lots should enjoy their wharfing rights
by extending their wharves from the sea wall
towards the channel, yet it is now argued
that the construction of the sea wall de-
stroyed the right of the lotowners to the
wharves built oy them in accordance with
the provisions of the ordinance.
That since the act of March 13, 1863, re-
ferred to in the opinion of the court, various
enactments have been passed by the corpo-
ration or its representatives, asserting power
in the nature of private ownership over the
wharves on Water street, and not merely the
possession of power as trustee for the pur-
poses of public regulation or the protection
of navigation, may be conceded, ^ut it is
not claimed nor does it appear from the evi-
dence that there has been such interference
with or disturbance of the actual possession
of the rightful occupants as would constitute
an adverse possession in the city operative
to bar the lawful claims of the real owners
of the wharfing privileges. Similar observa-
tions are also applicable to the licenses is-
sued by the chief of engineers for the time
1004
being during a part of the peno€
ferred to.
It is not necessary to reriew tlw
showing the unequivocal posseesiaB
by the wharf owners up to tkis
state the proof, as to the
time, labor, or money by the
water lots along the Potomiae
the faith of the wharfing
the possession of rimiriaii pi
filling in by than of Water street,
tion of sea walls, the filling in of
the bed of the river beyond Wi
well as various other
so self-evident are these things that the
deems it proper that the defendai
be compensated by the goYemmcBt
ing ousted of the possession of saeh
ments, as wharves and structures
If the demands of equity require tliat
structures be paid for oy the
greater and stronger it the
eluding that the right of property,
faith of which the structores
should not be denied or taken away
just compensation. Neither equity Bor
son are subserved, it seems to me, by
tecting the mere 'incidental riglitwkilit 9^
rooting the fundamental princii^ of pitf
erty upon which the incid^t depeiiiti
Having in what has preceded f«Ily «>
pressed my view of the existeDoe of the li*
parian rights as developed from ^is
it remains only to consider certain j
decisions of this court r«^ied upon
ferred to in the opinion of the court,
ing in the views above expreased a in >^
way affected by the ease of Fan Ifem v.
Mayor, etc., of Washington^ 4 Pet. tSt fT?
842]. That case determined that tW
lie streets in the city of Waahinftea
public property. But the questiatt in
case lies beyond that, and is, first. Was
a public street proposed aroond the
river front or a mere creation of aa
superimposed upon the ripariaa rickts?
second. Granting there was suea
street, in view of the contracts beCwc
original proprietors of the drrisios of t^
squares and lots, and of all the contracts sal
dealings, can the govenuneat be beard to a
case of the character of that before the
to deny the existence of ripartaa rights
rights of wharfage in the owners of
lots fronting on &e alleged street T Tree Jl
is that in Poiomao St^amihoat Co, t. Vm*^
Potomac Steamboat Co, 100 U. S. C7t iTi
1070], the question whethM- a lot frcHrtof «
the Potomac river, lyin^ in that portioa rf
the city formerly constituting thie laal rf
Notley Youn^, had riparian nghta, was oa*
sidered and determined adversely to the Wl-
owner, on the ground that the lots Msf
bounded by Water street on the retsra sal
plat of survev, were thereby separated trsB
the river, anci hence not entiUea to lipaitai
rights. As I have said from the nriao^ rf
law therein enunciated I do not aisseat, M
rest my conclusion on the facts as tWy sis
disclosed in this record. That mmmj m lis
facts which have been considered
were not present in the record ia the
is patent from the opinion in that
174 ILt.
Ratoii Waterworks Co. v. Uaton.
o5t^3ei
\ liowever, it is not contended that the
.efeiftd&nts in this record were either par-
ies €vr privies to the case there decided. A
ondusion on one condition of fact is not
>ln<liTig S8 to another condition of fact be-
ween different parties in a subsequent law-
suit. 1 cannot oring my mind to adopt the
nferences deduced by tne court in the case
us^ ^referred to, in view of what I conceive
>o be the absolutely conclusive proof estab-
JaliiTig the existence of riparian riehts in
favor of the owners. of water lots in uie city
>f l^&ehington. To deny them, it seems to
[He, in view of the record now here, as was
&aid WkX the outset, would be an act of con-
&aca;ti<»i. Of course this is said only as con-
weyiiis mj appreciation of the facts.
As it is beyond my power by this dissent
to enforce the rights of the owners of water
lota to riparian and wharflng privileges, it
vrould serve no useful purpose for me to
measure the claims of such owners by the
principle which I have endeavored to demon-
strate, that is, the existence of the riparian
ri^^tfi. Suffice it for me to say, therefore,
that in my judgment, even granting that
sucli rights exis^ the owners thereof would
not be entitled to compensation if the right
was impaired or destroyed as the conse-
quence of work done by the government in
the bed of the river for the purpose of im-
proving navigation, for all riparian rights
are held subject to this paramount authority.
As a consequence, if injury resulted to ripa-
rian rights in the exercise of this controlling
governmental power, such injury would be
damnum absque injuria. But I think that
where it is simply proposed, as is the case
wiUi many if not all the lots between the
Lidng Bridge and the Arsenal grounds, to ap-
propriate the riparian rights simply by an
arbitrary line running along the edge of the
water on the map, tnereby cutting off all
wharves and buildings thereon upon the the-
ory that none of the riparian rights segre-
^tea by the line were private property, this
IS but an appropriation of private property
requiring just compensation. By these gen-
eral principles, in my judgment, the rights
of the parUes should be determined.
0] RATON
WATERWORKS COMPANY,
Appt,,
TOWN OF RATON.
(See S. C. Reporter's ed. 360-364.)
A suit in equity cannot he sustained for a
legal cause of action.
Warrants of a town in the form of drafts drawn
on the treasurer of the town, signed by the
mayor and countersigned by the recorder of
the town, are. If valid. legal causes of action,
enforceable In a court of law : and It Is error
In a court to consider and determine such
legal controversy In a suit In equity for spe-
clfle performance and for an Injonctlon, but
It should dismiss the salt without prejudice
to the right to bring an action at law.
174 U. 8.
[No. 272.]
Argued April 28, 1800, Decided May 16,
1899.
APPEAL from a decree of the Supreme
Court of the Territory of New Mexico
reversing the decree of the District Court of
Colfax Counter for the specific performance
of warrants issued by the town of Raton,
etc., in a suit in equity brought by the Raton
Waterworks Company against ^e town of
Raton, and directing the District Court to
dismiss the suit. Decree of the Supreme
Court of the Territory reversed, and case re-
manded to that court with di rections to amend
its decree by directing the District Court to
dismiss the bill without prejudice to the
right of plaintiff to his action at law.
See same case below, 9 N. M. — , 49 Pac
898.
Statement by Mr. Justice Shir ass
In August, 1895, the Raton Waterworks •
Company, a corporation organized under the
laws of the territory of New Mexico, filed,
in the district court of the county of Colfax,
territory of New Mexico, a bill of complaint
against the town of Raton, a municipal cor-
poration of that territory.
It was narrated in the bill that a contract
bad been entered into, in July, 1891, between
the waterworks company and the town of
Raton, whereby the company agreed to erect
and maintain waterworks and to supply the
town and its inhabitants, and the town agreed
to pay rental for the use of hydrants in cer-
tain amounts during a period of twenty-five
years; 'that the waterworks company had
fully performed and complied with the con-
tract on its part, at an expenditure of $11 5,-
000; that the town, from time to time, made
certain payments of rental for hydrants fur-
nished; that on January I, 1895, the town,
in pursuance of ordinances, issued to the
waterworks company in payment warrants of
said town, of that date, and falling due one
every six months, and aggregating several
'thousand dollars. Each of said warrant9[361''
was duly drawn on the treasurer of the town
of Raton, »igned by the mayor and counter-
signed by the recorder of said town; that
in pursuance of law it was the duty of the
treasurer of the said town to have and keep
in his oifice a book to be called ''The Registry
of Town Orders," wherein should be entered
and set down, at the date of the presenta-
tion thereof, each of said warrants, and to
pay out of the funds of said town, in his
hands for disbursement, the amount of each
of said warrants, in the order in which the
same were presented to him for payment;
that, subsequently, the board of trustees of
said town wrongfully and without author-
ity of law, and in disregard of the contract
rights of the waterworks company, under-
took to repeal the ordinance in which the
terms and method of payment for the rent
of hydrants were prescribed, and to pass cer-
tain other ordinances in conflict with the pre-
ceding ordinances imder which the rights of
the company had accrued; that, in pursuance
of the latter ordinances, the town treasurer
refused to register warrants held by the
o(»npany and presented for registration;
that, in addition to the amount of said war-
1005
861-868
SuPREiaE Court of thk Ukitcd States.
rants, there will accrue and become due to
the company semi-annually during the con-
tinuance of said contracts the sum of $1,062.-
50; that said town refuses to pay the said
several amounts heretofore accrued and pay-
able, and refuses to pay the said several
amounts which will hereafter accrue, and
eives out and pretends that the said contract
Is inoperative and invalid, and refuses to
perform the same on its part, although in
the possession, use, and enjoyment ca the
said water plant under said contract.
The bill prayed that the town of Raton
should be decreed specifically to perform the
said contract, and to pav the amounts of
said rental which had theretofore accrued
and become payable, and might thereafter
accrue and become payable, in pursuance of
the terms of the contract, and should be en-
joined from e^orcing said repealing ordi-
nances.
The defendant, In its answer, admitted the
making of the contract, the nerformance
thereof by the company; that tne board of
trustees issued to the company the several
warrants, drawn in manner., amount, and
f862]number as alleged in the bill ; *that itwasthe
duty of the treasurer of the town to keep in
his ofiioe a book of registry, but denied that
it was the duty of the treasurer to enter and
set down, at the date of the presentation
thereof, each of said warrants, and to pay
out of the funds of the town in his hands
for disbursement the amount of each of said
warrants in the order in which the same
were presented, or in any other order, said
warrants being illegal, null, and void. Also
admitted the passage of the original ordi-
nance prescribing the method of payment of
rental by the issuance of warrants, and the
passage of the repealing ordinance com-
Elained of, and that it has been and now is
a the possession, use, and enjoyment of the
water plant of the waterworks company.
The answer likewise admitted that it has
• gi^en out that said contract, so far as it
calls for the payment of $1,062.50 semi-an-
nually, is inoperative and invalid, and that
it has refused to pay said sum semi-annual-
ly.
By way of defense, the answer alleged that
defendant, as a municipal corporation of the
territory of New Mexico, is authorized by
law to levy each year and collect a special
tax sufficient to pay off the water rents
agreed to be paid to the complainant, pro-
vided that said special tax shall not exceed
the sum of two mills on the dollar for any
one year ; that said alleged semi-annual ren-
tal of $1,062.50 claimed by the complainant
is far in excess of the amount derivable from
a two-mill tax levy on the assessed value of
property subject to taxation within said
town of Raton, and that said rental, so far
as it is in excess of the proceeds of such a tax
levy, is illegal ; Uiat said original ordinance,
so far as the same imposes upon the defend-
ant the obligation to pay complainant an an-
nual sum greater than the proceeds of a two-
mill tax, or to impose a tax levy greater
than said rate, was and is null, void, and in-
operative, the same having been made and
entered into by defendant's trustees in yio-
1006
lation of law and in exeeas of
oonf erred upon them by the e^tiit— «f
Mexico; and that the
complainant were and are noil mad
cause issued in ezoess ci the
able fran a two-mlU tax levy on
oi taxable property.
*Haying thus answered, tiM
pleaded <^that aU and ever^ tte
complainant's bill mcptioaed
plained oi are mattov whi^ waaj be
and determined at law, and witt
which the complainant is not entitled t»
relief from a court oi canity, and Ais
ant asks that it shall have the
of this defense as if it had denrarred te
complainant's MIL"
The cau«e was heard on bill and
and in September, 1896, the said district
entered a decree in acoordanee witi
prayer of the bill, decreeing that tW
original ordinance, contract, and
should in all things be s
by and on the part of the town
that the town should issue and pay
rants out of any funds or naooeys i
treasury of the town, whether derryed
general or special tiuces. From this
an appeal was takoi to the sop;
the territory, where the decree of the
court was reversed and an order
directing the lower court to dtsiniss tht
at the costs of the
The cause was th«i brought to this
on an appeal from the decree of tts
court of the territory.
Mr, Hemrj A. Forstar* for
The bill made out a proper
ble relief.
National Waierworka Co, y. JTi
27 U. 8. App. 165, 62 Fed. Rep. 853. 1« C
C. A. 653, 27 L. R. A. 827; #•<
ton, 34 Fed. Rep. 95.
Specific performance of tlM
tained in ordinance No. 10, at least ts lh»
extent of declaring it a valid and twhmtm^
contract, binding and obligatory en te
town, and ordering the town to pay th» kf-
drant rentals, should have been grants^
National WaterworkM Co. y. Kmmma CMa
27 U. 8. App. 165, 62 Fed. Rep. 853, 16 C £
A. 658, 27 L R. A. 827.
The town should have been enjoined Imb
further breaches of the contract,
Boston Water Power Co. y. Bsetfon S W,
R. Corp. 16 Pidc. 525; 8t. LomU JL C^. «.
Northwestern 8t. Louis Jt C6. e» Ma •:
Newhurgh d C. Tump. Romd y. M%am, •
Johns. Oh. 101, 9 Am. Dec 274.
A court of equity should restrain ths 9^
forcement of an invalid ordinance,
vested rights granted by a prkH-
would be thereby impaired.
New Orleans Waterworks Os. y.
115 U. S. 674, 683, 29 L. ed. 5SS, B8: Sm
Orleans Gaslight Co. y. Louitimmm Ufki i
H. P. d Mfg. Co. 115 U. a 673,29 L. cd 191.
Walla WoUa City y. WaOm WmXU We^ CW
172 U. S. 1, ante, 341; Foster y. ^eH^
27 Fed. Rep. 899; Quinep y. BmU, IM B.
337; Ballifnore y. Jtodedke, 49 Md. ill. 8
1T41L&
98.
FiBST National Bank of Concord y. Hawkii^s.
868-305
n. Rep. 239 ; People, Davia, t. Bivrievant,
S. Y. 263, 69 Am. Dec. 636.
Jfr. IC. S. LawgliHn, for appdlee:
There is not any equity In complaAunt's
11 bec&UBe the principal object sought is
ecific performance; and on the all^g^ations,
therein averred, the court has no jurisdic-
>n to enforce the relief prayed for.
Phyfe ▼. Warden, 2 Ed. Ch. 47; Pieroe T.
lumb, 74 m. 326.
There was nothinff to act on in the case
. bjkr but the ymli£ty of the warrants is-
led under the contract, and that can be
ttermined in an action at law.
State, Qreat FaUe Waterworks, v. Great
alia, 19 Mont. 618.
Appellant has not exhausted his remedy
t la^MT.
Lrecuit?iZ20 Illuminating Oae Co. T. Lead-
llle, 9 Ck>lo. App. 400; LeadviUe Water Co,
. Lead^Alle, 22 Colo. 297.
This court should affirm the decree of dis-
lissal -with costs, with the modification that
he dismissal is without prejudice to the
ichts of the appellant or the legal holders of
aid inrarrants to bring an action at law.
Ijac€L8sagne ▼. Chapuia, 144 U. S. 119, 36
^ ed. 368; Sanders v. Devereuw, 19 U. S.
Ipp. 630, 60 Fed. Rep. 311, 8 C. C. A. 629;
i Ene. PL ft Prac. 896.
*Mr. Justice Sliiraa delivered the opinion
>f the court:
The waterworks com'pany, when it filed its
i>ill in this case, was m possession of war-
rants that had been issued to it by the town
3f Raton in pursuance of the provisions of a
:;ontract existing between the company and
the town. Those warrants were in the form
of drafts drawn on the treasurer of the town,
signed hy the mayor and countersigned by
the recorder of the town. Thev were for
specific sums of money, payable at fixed
periods, bearing interest from date, and
some of tiiem past due when the bill was
filed.
*In short, the warrants, if valid, were legal
causes of action enforceable in a court of
law. The defendant did not waive the ques-
tion, but averred in its answw that the mat-
ters complained of in the bill were matters
which could be tried and determined at law.
And the supreme court of the territory in
its opinion says: *1f the warrants upon
which payment is sought here are valid, an
action at law is the proper remedy to enforce
their payment. They have been issued, and
are claimed to be outstanding obligations
against dcsfendant town, and it says they are
void, and therefore declines to pay them.
Then, if in any action at law judgment should
be entered in favor of the legal holders, and
defendant's trustees should decline to pro-
vide for their payment, mandamus would be
the proper remedy to compel the necessary
levy.^' [9 N. M. — , 49 Pac. 898.]
In this state of facts we think the courts
below erred in considering and determining
the leffal controversy in a suit in equity, but
shoula have dismissed complainant's bill
without prejudice to its right to bring an
action at law. Barney v. Baltimore, 6 Wall.
280 [18:826]; Kendig v. Dean, 97 U. S.
174 17. 8.
428 [24: 1061]; Rogers v. Durant, 106 U. S.
644 [27:303].
Accordingly, and without expressing or
implying any opinion of our own on the mer-
its of the controversy, the decree of tl^e Su-
preme Court of the Territory is reversed,
and the cause is ronanded to that court
with directions to amend its decree by direct-
ing the. District Court to dismiss the bill
without prejudice to the right of the com-
plainant to sue at law.
FIRST NATIONAL BANK OF CONCORD,
New Hampshire, Plff, in Err,,
V.
EDWARD HAWKINS, Receiver of the In-
dianapolis National Bank, of Inokinapolis.
(See S. C. Reporter's ed. 364-373.)
One national hank cannot acquire the stock
of another — assessment of such stock,
1. One national bank cannot lawfully par-
d^ase and hold tbe stock of another as an In-
vestment.
2. In tbe case of such an actual purchase by
a national bank, it Is not estopped to deny its
liability, as an apparent stockbolder, for an
assessment on such stock ordered by tbe
Comptroller of tbe Currency.
[No. 187.]
Afgued and Suhmitted January tO, 1899*
Decided May 15, 1899,
IN ERROR to the United States Circuit
Court of Appeals for the First Circuit to
review a judgment of that court affirming
the judgment of the Circuit Court of the
United StaAes for the District of New Hamp-
shire in favor of Edward Hawkins, receiver
of the Indianapolis National Bank, against
the First National Bank of Concord for the
recovery of an assessment on the stock of
the Indianapolis bank held by the First Na-
tional Bank of Concord ; said assessment be-
ins' ordered by the Comptroller to enforce the
iudividual liability of stockholders. Judg-
ment of the Circuit Court of Appeals and of
the Circuit Court reversed, and cause re-
nmnded to the Circuit Court, with directions
to enter a judgment in accordance with the
opinion of this court.
See same case below, 33 U. S. App. 747, 79
Fed. Rep. 61, 24 C. C. A. 444.
Statement by Mr. Justice Shirass roo«*
•In May, 1895, Edward Hawkins, as reoeiv-L^^^J
er of the Indianapolis National Bank,
brought a suit, in the Circuit Court of the
United States for the District of New Hamp-
shire, against the First National Bank of
Concord. At the trial a jury was waived,
and the court found the following facts:
"Tbe plaintiff ij» receiver of the Indian-
apolis National Bank of Indianapolis, which
bank was duly organized and authorized to
do business as a national bank association.
The bank was declared insolvent and ceased
to do business on the 24th day of July, 1893 ;
the plaintiff was duly appointed and qualified
1007
•65.366
SUFBEMB COUBT OF THS UlOTED STATES.
receiver of the bank on the Sd day of August,
1893, and took possession of the assets oi the
tMuik on the 8th day of the same month.
"The capital stock of the bank was 3,000
•hares of the par value of $100 each. On the
^th day of October, 1893, an assessment was
ordered by the Comptroller of $100 per share
on the capital stock of the bank, to enforce
the individual liability of stockholders, and
an order made to pay such assessment on or
before the 25th day of November, 1893 ; and
the defendant was duly notified thereof.
"The defendant, bein^ a national banldnff
aseociation, duly organized, and authorized
to do business at Concord, N. H., on the 21st
day of May, 1889, with a portion of its sur-
plus funds, purchased of a third party, au-
thorized to hold and make sale, 100 shares of
the stock of the Indianapolis National Bank
as an investment, and hais ever since held the
same as an investment. The defendant iMUik
has appeared upon the books of the Indian-
apolis bank as a shareholder of 100 shares of
its stock, from the time of such purchase to
the present time. During such noldine the
{S66]defendant bank received annual dividends
declared hj the Indianapolis bank *prior to
Julv, 1893. The defendant has not paid
said assessment or any part thereof."
After argument the court, on July 28,
1896, entered judgment in favor of the plain-
tij? for the sum of $11,646.67 and costs. From
that judgment a writ of error from the
United States circuit court of appeals for the
first circuit was sued out, and t^ that court
the judgment of the trial court was, on
March 5, 1897, affirmed. 33 XJ. S. App. 747.
Fiom the judgment of the circuit court of
appeals a writ of error was allowed to this
oourt.
Mr, Frank 8. Streeter for plaintiflT in
error:
The recent decision in California Bank ▼.
Kennedy, 167 U. S. 362, 42 L. ed. 198, de-
termines the point raised in this case.
No power is granted by U. S. Rev. Stat,
f 5136 to national banks to buy and sell
stocks generally; nor is such power inciden-
tal to the business of banking.
First Nat, Bank v. National Ewch, Bank,
92 U. S. 122, 23 L. ed. 679; Logan County
Nat, Bank v. Toumaend, 139 U. S. 67, 73, 36
L. ed. 107, 110; Re Royal Bank of India, L.
H. 4 Ch. 252 ; Fowler v. Scully, 72 Pa. 456,
13 Am. Rep. 699; Weckler v. First Nat,
Bank, 42 Md. 581, 20 Am. Rep. 95; Nassau
Bank v. Jones, 95 N. Y. 115, 47 Am. Rep.
14.
Upon principle and authority a stockhold-
er's liability to assessment is a contractual
liability.
Richmond v. Irons, 121 U. S. 27, 30 L. ed.
864; Flash v. Conn, 109 U. S. 371, 27 L. ed.
^66; Hodgson v. Cheever, 8 Mo. App. 321;
Manville v. Edgar, 8 Mo. App. 324 ; Queenan
y. Palmer, 117 111. 619; Auitman's Appeal,
98 Pa. 505; SacketVs Harbour Bank v.
Blake, 3 Rich. Eq. 225; Woods v. Wicks, 7
Lea, 40: Ex parte Van Riper, 20 Wend. 614;
Orand Rapids 8av. Bank's Appeal, 52 Mich.
557 ; Lowry v. /n?min 46 N. Y. 119; Coming
▼. McCullough, 1 N. Y. 47.
1008
n
The Concord Bank bad mo
the oontracty and it
against it.
Dartmouth CoUege ▼.
518, 4 L. ed. 629; Bank of United
Dandridge, 12 Wheat. 64, 6 L.ed. 552; Mmi
V. Providence Ins. Co, 2 Craaeh, 127, t L.«l
229; Boaty ▼. Knowlor, 4 Pet. ISS, 7 L. «1
813; Batik of Augueta ▼. Sorie, 12 PSIL SU,
10 L. ed. 274; PerHne t. ginefi— H 4 A
Canal Co. 9 How. 172, 13 L. ed. fS; Op^m
R. d Nwo, Co. ▼. Oregonian JKL do. 130 U. 1
1, 32 L. ed. 837; Logan Cowmtjf Vml, Bmk^
Townsend, 139 U. 8. 67, 35 L. ed. 107: WW
ley V. First Nat. Bank, 47 Vt. 546;
V. First Nat. Bank, 60 Vt. 388. 28
503; Talmage v. PeU, 7 K. Y. 328;
Co. V. Lewiston Inst, for
43, 28 AuL Rep. 9; CroA^r t.
N. Y. 161.
The Concord Bank is not
sist upon the defense of fal^
Central Transp. Co, ▼.
CarCo. 139U.S.24,35L.ed.55;
nia R.Co,y,8t.Loui9,A.dT.H,R.Co.mZ
S. 290, 30 L. ed. 83; Thowtas t. Wi
B. Co. 101 U. a 85, 25 L. ed. 953; Atty.
▼. Oreat Eastern R, Co. L. R. 5 Af^ Oa
473; 8maU T.Smith, L. R. 10 Aml €b.
119; Wenlook T. River Dee Co. L.R. If Aya
Cas. 354; Trevor v. WkitKortk^ L. I. a
App. Cas. 409; MeCormitA v. Mmhet I^
Bank, 165 U. S. 538, 4I Li. ed. 817; TMa r.
R. Co. T. Chicago, R. I. d P. ML Co, lUT.
S. 564, 41 L. ed. 265.
Messrs. Jokm O. OasUaU aai /. V.
Kern, for defendant in errar:
This oourt, recognixliig the fol^cy tf At
law in this respe^ has deeidad tkat At
comptroller has authoribr to make ■■»*
ments upon the shareholders to pay Mi^
and that an assessment made for taat fB-
pose is conclusive both as to seeessitj ir
making it and as to the mmammt of mA
shar^older's liability.
Kennedy v. Oihson, 8 WalL 4m. IfVd.
476; Casey v. OaUi, 94 U. a 873, Ml. M L
ed. 168, 170; National Bmmk T. Ceee. » T.
S. 628, 25 L. ed. 448 ; WmUer. Dmtie^. HZ
8, 527, 24 L. ^. 181.
National banks are not eipi—lj srit^
ited by the law from aeqnimr or itkt^
shares of stock in other eorporaiiQaa. tal a
the contrary, are permitted to do le
certain circumstaiiees.
California Bank ▼. JTsmiedfy, 187 U. &
362, 42 L. ed. 198; Andereon t. nil**
phia Warehouse Co. Ill U. a 47%, » L ^
478; National Bank t. Cmee^ 9f U. a «§.»
L. ed. 448; Bowden ▼. Jckmeon, 187 U. i
251, 27 L. ed. 386.
One is estopped from deoyiw kk liskfil?
by voluntarily holding hiiBsalx o«t Is *
public as the owner of stock.
PuUman v. Upton, 98 U. a 338, 34 LA
818; Sanger ▼. Upton, 91 U. a 58, 21 L ^
220; Upton v. TriHloodt, 91 U. a 41., S L
ed. 203; WeUter ▼. Upton, 91 U. & «. 9
L. ed. 384; Casey ▼. OMi, 34 U. a «, «
L. ed. 168.
The express lajiguage of the ael sf 0»
gress imfMOsing the liabilltj em the fsttf to
wtiom the shares are trm—inieJ oa At
FiBtT Katiohal Bank of Cokcobd y. Hawkihs.
8M-88S
oolcB Off the bank estops the plaintiff in er-
>r to deny its obligation to pay the amount,
nd tlius deprive toe creditors of the failed
anlc of a security which the law dearly in-
snded to afford them. The liability is not
^ntraotual, but statutory.
Bai%]lc of Redemption y. Boston, 125 U. S.
O, 31 li. ed. 689 ; Welles ▼. Larrahee, 36 Fed.
lep. 866, 2 L. R. A. 471; Witters ▼. Bowles,
2 f'ed. Rep. 767; Pauly ▼. State Loan d T.
ro. 166 U. S. 606, 41 L ed. 844; Oitizene'
It ate Bank ▼. Hawkins, 34 U. S. App. 429,
1 Fed. Rep. 369, 18 C. C. A. 78; Cooper Ins.
7o. V. Hawkins, 34 U. S. App. 428, 71 Fed.
ilep. 373, 18 C. C. A. 81 ; Keyser t. Hite,
33 U. 8. 138, 33 L. ed. 531.
*Mr. Justice Sldraa delivered the opinion
>f the oourt:
The questions presented for our consider-
irtioB in this case are whether one national
1m nk can lawfully acquire and hold Uie stock
>l Another as an investment, and, if not,
whether, in the case of such an actual pur-
chase, the bank is estopped to deny its lia^
bility, as an apparent stockholder, for an ae-
seasment on suon stock ordered by the Comp-
troller of the Currency.
By section 5136 of the Revised Statutes a
national banking association is authorized
*'to exercise hj its board of directors, or duly
aathorized officers and agents, sublect to law,
all such incidental powers as shall be neces-
sary to carry on the business of banking; by
discounting and negotiating promissorr
notes, drafts, bills of exchange, and other en*
denoea of indebtedness; by receiving deposits;
by buying and selling exchange, coin, and
bullion ; by loaning moxiey on personal secur-
ity ; and by obtaining, issuimsr, ftnd circulat-
ini; notes according to the provisions of this
title."
In construing this provision, it was said
]by this court, in ^ First National Bwnh v. Na^
iional Ewchange Bank, 92 U. S 122 [23:
679], that '^deiuing in stocks is not expressly
prohibited, but such prohibition is miplied
from the failure to erant the power. In the
honest exercise of tne power to compromise
a doubtful debt owing to a bank, it can hard-
ly be doubted that stock may be accepted in
payment and satisfaction, with a view to
their subsequent sale or conversion into
mon^ so as to make good or reduce an antici-
pated loss. Such a transaction would not
amount to a dealing in stocks."
And in the recent case of California Nat,
Bank v. Kennedi;, 167 U. S. 362 [42: 198],
it was said to be "settled that the United
States statutes relative to national banks
constitute the measure of tho authority of
such corporations, and that they cannot
rightfully exercise any powers except tiiose
expressly granted, or which are incidental
to carrying on the business for which they
are established. No express power to ac-
?uire the stodc of another corporation is con-
erred upon a national bank, but it has been
held that, as incidental to the power to loan
money on personal security, a bank may,
in the usual course of doing such business,
accept stock of another corporation as col-
I;
as pledgee it may become the owner of the
collateral and be subject to liability as other
stockholders. So, also, a national bank may
be conceded to pi«sess the incidental power
of accepting in good faith stock of another
corporation as security for a previous indebt-
edness. It is clear, however, that a national
bank does not possess the power to deal in
slocks. The prohibition is implied from tht
failure to grant the power."
Accordingly it was ndd in that case that
a provision of the laws of the state of Cali-
fornia, which declared a liability on the part
of stockholders to pay the debts of a savinffi
bank, in proportion to the amount of stoSe
held by each, could not be enforced against a
national bank, in whose name stood shares
of stock in a savings bank, it beinff admitted
that the stock of the savinss baiu had not
been taken as security, and that the transac-
tion by which the stock was placed in the
name of the national bank was one not in the
course of the business of banking for which
the bank was organised.
*It is suffgeeted by the learaed circuit [SM}
udge, in his opinion overruling a petition
or a rehearing in the circuit court of ap-
peals, that the question considered in the
case of California Nat. Bank v. Kennedy
was the liability of a national bank as a
stockholder in a state savings bank, while
the question in the present case is as to its
liability as a stockholder in another national
bank, and that therefore it does not follow
beyond question that the decision in the form-
er case is decisive of the present one. 50
U. S. App. 178.
No reason is given by the learned Judge im
support of the solidity of such a distinction,
and none occurs to us. Indeed, we think
that the reasons which disqualify a national
bank from investing its money in the stock
of another corporauon are qmte as obvious
when that other corporation is a national
bank as in the case of other corporations.
The inveshnent by national banks of their
surplus funds in other national banks, sit-
uated, perhaps, in distant states, as in the
present case, is plainly against the meaning
and policy of the statute from which they
derive their powers, and evil consequences
would be certain to ensue if such a course of
conduct were countenanced as lawful. Thus,
it is enacted, in section 5146, that ^every di-
rector must, during his whole term of serv-
ice, be a citizen of the United States, and
at least three fourths of the directors must
have resided in the state, territory, or dis-
trict in which the association is located for
at least one year immediately preceding
their election, and must be resideniB therein
during their continuance in ofiice."
One of the evident purposes of this enact-
ment is to confine the management of each
bank to persons who live in the neighbor-
hood, and who may, for that reason, be sup-
posed to know the trustworthiness of those
who are to be appointed offictns of the bank,
and the character and financial ability of
those who may seek to borrow its money.
But if the funds of a bank in New Hamp-
shire, instead of beinir retained in the cus-
latefal. and by the enforcement of its rights ' tody and management of its directors, are
174 V. 8. U. S., Book 43. 64 1009
868-371
SUPBEME COUBT OF THE UXITED STATES.
Oct. Tnv,
invested in the stock of a bank in Indiana,
the policy of this wholesome provision of the
statute would be frustrated. The property
of the local stockholders, so far as thus in-
[S60}^ested, would not be ^managed by directors
of their own selection, but by distant and
unknown persons. Another evil that might
result, if large and wealthy banks were per-
mitted to buy and hold the capital stock of
otiier banks, would be that, in that wav, the
banking capital of a community might be
concentrated in one concern, and business
men be deprived of the advantages that at-
tend competition between banks. Such ac-
cumulation of capital would be in disregard
of the policy of the national banking law, as
seen in its numerous provisions regulating
the amount of the capital stock and the
methods to be pursued in increasing or re-
ducing it. The smaller banks, in such a case,
would be in fact, though not in form,
branches of the larger one.
Section 5201 may also be referred to as in-
dicating the policy of this legislation. It
is in the following terms :
"No association shall make any loan or
discount on the security of the shares of its
own capital stock, nor be the purchaser or
holder of any such shares, unless such secur-
ity or purchase shall be necessary to prevent
loM upon a debt previously contracted ing[ood
faith; and stock so purchased or acquired
shall, wiUiin six months from the time of its
purchase, be sold or disposed of at public or
private sale ; or, in default thereof, a receiver
may be appointed to close up the business of
the association."
This provision forbiddine a national bank
to own and hold shares of its own capital
stock would, in effect, be defeated if one na-
tional bank were permitted to own and hold
a controlling interest in the capital stock of
another.
Without pursuini^ this branch of the sub-
ject further, we are satisfied to express our
conclusion, upon principle and authority,
that the plaintiff in error, as a national
iMuiking association, had no power or au-
thority to purchase with its surplus funds as
an investment, and hold as such, shares of
stock in the Indianapolis National Bank of
Indianapolis.
The remaining question for our determi-
Bation is whether the First National Bank
of Concord, baring, as a matter of fact, but
without authority of law, purchased and
held as an investment shares of stock in the
[S70]Indianapo1is National Bank, *can protect H^
self from a suit by the receiver of the latter
brought to enforce the stockholders' liability,
arising under an assessment by the Comp-
troller of the Currency, by allc^ng the un-
lawfulness of its own action.
This question has been so recently answered
by decisions of this court that it will be suffi-
cient, for our present purpose, to cite those
decisions without undertaking to fortify the
reasoning and conclusions therein reached.
In Central Transportation Company ▼•
PuUman'a Palace Car Co. 139 U. S. 24 r35:
55], after an examination of the authorities,
the conclusion was thus stated by Mr. Jua-
tice Gray:
1010
"It was argued on behalf of tlie plalatiff
that, even if the contract sued on
because ultra vires and afainat pohtle
icy, yet that, having been rally perfc
the part of the plaintiff, and t&e beaiiti il
it received by the defendant, for the pcrioi
covered by &e declaration, the delm/JMti
was estopped to set up the invalidity of tha
contract as a defense to this action to reeow
the compensation agreed oo for that period
But this argument, though sustjuned by d»>
cisions in some of the states, finds no sup-
port in the judgment of this court. . . .
The riew which this court has taken of the
question presented by this branch of ths
case, and the only view which appears to m
consistent with legal principles, is as fol-
lows:
"A contract of a corporation which is
ultra vires in the proper sense, that is ts
say, outside the object of its creatioa as de>
fined in the law of its organization, aad
therefore beyond the powers conferred upoa
it by the l^slature, i^ not voidable oaly,
but wholly void and of no legal effect. TW
objection to the contract is, not merely that
the corporation ought not to have made it,
but that it could not make it. The eootrscC
cannot be ratified by either party, becaii«
it could not be auUiorixed by either. Xs
performance on either side can give the va-
lawful contract any validity, or be the fova-
dation of any right of action upon it.
"Wlien a corporation is acting with is the
ffeneral scope of the powers oomerrcd npea
it by the legislature, tne corporatioUf as vefl
as persons contracting with it, may bs 0-
topped *to deny that it has complied with iW{ltI]
legal formalities which are prerequisites i»
its existence or to its action, because socli
requisites might in fact have been cooipliei
with. But when the contract is beyond the
powers conferred upon it by existing law,
neither the corporation nor the other party
to the contract can be estopped by assestiag
to it, or by acting upon it, to show that it
was prohibited by those laws."
The principles thus asserted were dirMtly
applied in the case of California Nrnt. Bsak
V. Kennedy, 167 U.'S. 367 [42: 198], wWw
the question and the answer wera thus stated
by Mr. Justice White:
* "The transfer of the stock in questioa to
the bank being unautnorized by law, does tW
fact tJiat. under some circumstances, tW
bank might have legally acquired stock is
the corporation estop the bank from settisf
up the illegality of the transaction f
"Whatever divergence of opinion mtf
arise from conflicting adjudications in terns
of the state courts, in this court it is letUcd
in favor of the right of the corporation ts
plead its want of power, that is to say, to ss-
sort the nullity of an act whidi is an ultf
vires act The cases recoffuise as soond doc-
trine that the powers of corporations srt
such only as are conferred upon them by stat-
ute." ^
There is then quoted a passage frooi tis
decision of the court ia MeCorwUdt v. Msr-
ket National Bank, 166 U. & 5tf [41: ttil.
as follows :
♦The doctrine of ultra wkm, by wWcb a
174 0.*
198.
Pbicb y. Unitbd States.
871-87S
Mitract made by & corporation beyond the
cope of its corporate powers is unlawful
na Toid, and will not support an action,
BBts, as tlus court has ofteoi recognised and
ffinned, upon three distinct grounds: The
bli^&tion of anyone contracting with a cor-
poration to ti^e notice of the legal limits
f ita powers; the interest of the stockhold-
rs not to be subj^ to risks which they have
lever imdertaken, and« above all, the inter-
!st of the public that the corporation shall
lot transcend the powers conferred upon it
)y law."
The conclusion reached was thus ez-
;>res8ed:
'Th^ daim that the bank, in consequence
>f the receipt *by it of dividends on the stock
>f the savings bank, is estopped from ques-
tioning its ownership and consequent lia-
bility, is but a reiteration of Ihe contention
that the acquiring of stock by the bank, un-
der the circumstances disclosed, was not void
but merely voidable. It would be a contra-
diction in terms to assert that there was a
total want of power by any act to assimie the
liability, and yet to say that by a particular
act the liability resulted. The transaction
bein^ absolutely void could not be confirmed
or ratified."
In the present case it is sousht to escape
the force of these decisions by t£e contention
that the liability of the stockholder in a na-
tional bank to respond to an assessment in
case of insolvency is not contractual, but
Btatntory.
Undoubtedly, the obligation is declared by
the statute to attach to the ownership of the
stock, and in that sense may be said to be
statutory. But as the ownership of the
stock, in most cases, arises from the volun-
tary act of the stockholder, he must be re-
garded as havinff agreed or contracted to be
subject to the obligation.
However, whether, in the case of persons
*u% juris, this liability is to be regarded as
a contractual incident to the ownership of
the stock, or as a statutory obligation, does
not seem to present a practical question in
the present case. ^
If the previous reasoning be sound, where-
by the conclusion was reached that, by rea-
son of the limitations and provisions of the
national banking statutes, it is not compe-
tent for an association organized thereunaer
to take upon itself, for investment, owner-
ship of such stock, no intention can be rea-
sonably imputed to Congress to subject the
stodcholders and creditors thereof, for whose
protection those limitations and provisions
were designed, to the same liability by rea-
son of a void act on the part of the officers
of the bank, as would have resulted from a
lawful act
It is argued, on behalf of the receiver, that
the object of the statute was to afford a
speedy and effective remedy to the creditors
of a failed bank, and that this object would
be defeated in a great many cases if the
Comptroller were obliged to inquire into the
3]valiait7 of all the contracts by •which the
registered shareholders acquired their re-
spective shares.
The force of this objection is not apparent
174 V. 8.
It is doubtless within the scope of the Comp*
troUer's duty, when informed by the reporU
of the bank thai such an investment has been
made, to direet that it be at onee disposed
of, but the Comptroller'8 aet in ordering an
assessment, while oonduBive as to the necee-
sity for making it, involves no judffment by
him as to the judicial rights of parties to M
affected. While he, of course, assumes that
there are stockholders to respond to his or-
der, it is not his function to inquire or de-
termine what, if any, stockholders are ex-
empted.
The judgment of the Oirouit Court of Ajh
peale is reversed, the judgment of the Cir^
cuit Court is also reversed, and the cause is
remanded to that court with directions to
enter a judgment in conformity with this
opinion.
WILLIAM M. PRICE, Administrator d
Henry C. Miller, Deceased, Appt,,
v»
UNITED STATES and the Osage Indiana.
(See S. C. Reporter's ed. 878-S79.)
Act of March S, J891 — jurisdiction of court
of claims — property destroyed hy Indians
— construction of the act,
1. Under the act of March 8, 1891, a claimant
may recover the value of his property taken
from him by the Indians, but cannot recover
consequential damages to other property re-
sulting from the taking.
2. The Jurisdiction of the court of claims can-
not be enlarged by Implication.
8. Consequential damages to property not
taken or destroyed are not within the scope
of the act authorising recovery for damages
to property taken or destroyed.
4. The terms "damaged or destroyed" In the
act of March 8, 1886, respecting allowances
by the Interior Department of claims for In-
dian depredations, do not apply to property
not damaged or destroyed, but which the own-
er was prevented from sending to market be-
cause his means of transportation were
destroyed.
[No. 247.]
Argued April 19, 1899, Decided May 15,
1899.
APPEAL from a judgment of the Court of
Claims in favor of William M. Price,
administrator, etc., against the United States
et al, for the taking of certain property ot
the claimant by tne Osage Indians. Af*
firmed. i
See same case below, 33 Ct. CI. 106. '* 1
Statement by Mr. Justice Brewers
This case comes to us on appeal from the
Court of Claims. The matter of dispute is
disclosed by the second and fourth findings
of the court, which are as follows:
Second. <'0n the 26th day of June, 1847,
near the Arkansas river, on the route from
western Missouri to Santa F6, at a place in
1011
t7S-875
SUPBEME COUBT OF THB XJVTTED STATES.
what it now the state of Kansas. Indians be-
looginff to the Osage tribe took and drove
away 82 head of oxen, the property of said
deecStent, wliicfa at the time and place of tak-
[874] ing *were reasonalrfy worth the sum of four
hundred dollars ($400).
''At the time said oxen were taken they
were being used by said decedent in the
transportation of goods along the route
aforesaid, and in conseouence of such tak-
inff decedent was ocnnpelled to abandon the
tnp and to sell his portion of said goods and
four (4) wagons belonging to him for the
sum of one thousand two hundred dollars
($1^00).
The goods and wagons of said decedent at
the time of the deprMation were reasonably
worth the sum of seven thousand six hun-
dred dollars ($7,600).
''Said prc^rly was taken as aforesaid
without Just cause or provocation on the
Krt of the owner or his a^ent in charge and
s not been returned or paid for."
Fourth. "A claim for the property so
taken was presented to the Interior Depart-
ment in June, 1872, and evidence was filed
in support thereof."
Juogment in that court was entered for
$400 (ZS Ot a. 106), to review which judg-
ment the petitioner appealed.
Me$8r8, Jokm €k>ode and F. N. Judaon,
for appellant:
The damages found by the Secretary of the
Interior were the damages acUuilfy sus-
tained by the plaintiff from the Indian dep-
redation.
Price ▼. United Biaiee, 33 Ct. a. 106 ; Bo-
ton ▼. Boston, C. d M, R, Co, 51 N. H. 604,12
Am. Rep. 147 ; McAfee v. Crofford, 13 How.
447, 14 L. ed. 217 ; Hale, Dam. p. 43 ; Mil-
waukee d 8t, P, R. Co. ▼. Kellogg, 94 U. S.
469, 24 L. ed. 256.
llie term "consequential," as applied to
these damages, is essentially misleading.
They were in no sense remote.
1 Sedgw. Dam. (8th ed.) 99 110, 124, 133;
Derry v. Plitner, 118 Mass. 131; Chriffln v.
Oolver, 16 N. Y. 489, 69 Am. Dec. 718w
The act of 1891 and the act of 1885 must
be construed together, and the words "taken
and destroyed,'^ in the act of 1891, must be
eonstrued as the equivalent of "damaged or
destroyed," in the act of 1885.
Valk V. United States, 28 Ot a. 241, 29
Ct. CI. 62; Stoope v. United States, 33 Ct.
01. 223; Friend v. United States, 29 Ct Ci.
425; Johnson v. United States, 160 U. S.
650, 40 L. ed. 531.
The court of claims erred in holding that
the act of March 3, 1891, limited the juris-
diction of the court in allowance of dama^^
from the depredation to cases of total loss or
annihilation.
Pumpelly ▼. Oreen Bay d M, Canal Co. 18
Wall. 166, 20 L. ed. 557 ; Eaton v. Boston, C.
dM.R, Co, 51 N. H. 504 ; Story v. New York
Kiev, R, Co, 90 N. T. 122, 43 Am. Rep. 146;
Be Chestnut Street, 118 Pa. 593; Spencer v.
Point Pleasant d 0, River R. Co, 23 W. Va.
415; Jones v. Erie d W, Valley R, Co, 151
Pa. 46, 17 L. R. A. 758; Chicago, M, d St, P.
1012
R. Co. T, Minnesota, 134 U. S. 456, 33 L.
980, 3 Inters. Com. Rep. 200.
The purpose of the statute of 1891 i
remedial, and the construction which tbe
court of claims placed upon it in the case si
bar defeats the primary purpose ei tbe
enactment
United States ▼. Norihwesterm Smwress
Stage d Transp. Co. 164 U. a 686, 41 L e4
599 ; United States ▼. Gorham, 166 U. S. 314,
41 L. ed. 729 ; Corralitos Stock Co. t. UwUed
States, 33 (X 01. 342; Saloie ▼. Umted
States, 32 Ct. 01. 68.
Messrs. Fraak B. Oroatkwmfta sad
John O. Thompson, Assistant Attorn^ Gca-
eral, for appellees.
*Bir. Justice Brewer delivered the opia^ffll
ion of the oouFt:
The fourth finding simple shows thai a
claim was presented to the Interior Depart-
ment and evidence filed in support ihtreoL
The petition alleges not merdy the fsct of
the presentation of the daim ajid <d the fl*
ing of evidence to sustain it, bat also sa
award by the Secretarr of the amooDt of 16^
800, a sum covering both the value of thi
property taken by the Indians and the eoM^
auential damages resultinir therefrom. A
oemurrer by the defendants barTin^beaofsr^
ruled, a traverse was filed, dtajiBg all tkt
aUegations of the peUtion. ^along tW*^
plei^ings with the findings we mig^t josUv
assume that there had never been any awmra
by the Secretary of the Interior, but oaly a
presentation of a daim and evidraoe in sep-
port thereof; but we notice that the court if
daims speala of the award as though it vis
a fact found. We fed, therefore, eonstraiaei
to consider the case on that basis.
The condusions of the Secretary, both si
to liability and amount, were placed before
the court for consideration by the eleetioa if
the defendejits to reopen the ease. TUs
election opened the whole caseu Leightom v.
United States, 161 U. S. 291 [40: 70S].
The liability of the defendants is not £»•
guted. The single question presented is si
> the amount which may be recovered. TW
value of the property taken was awarded,
and the only question is whether the plaintiff
was entitled, not merdy to the value of tkat
property, but also to the dama^pes to otto
property which resulted as a oon^equenee if
the taking. The property which was not
taken or destroyed, which remained in tte
possession of the plaintiff's intestate, wbick
he could do with as he pleased, the title sal
possession of which were not disturbed, vaa,
as the findings show, reasonably worth $7,-
600. Because out in the unoccupied terri-
tory in which the taking of the ozcb took
Slace there was no marwet, and beeaase hi
ad no means of transporting the property
not taken to a convenient market, he vsi
subject to the whim or caprice of a pasriaf
traveler, and sold it to him for $1,200. Tta
loss therd>y entailed upon him he dains ts
recover under the provisions of the statntc of
March 3. 1891. 26 U. S, Stat at L. eks^
538, p. 851.
The right of the plaintiff to recover it a
174 U.i^
Pbiob y. Umztbd States.
875-878
^lunely statntoi^jr right. The jorisdietioii of
:lfte <»iirt of claims cannot be cmarged by im-
plloation. It matters not what may seem
bo 'tills court equitable, or what obligation
ore may deem ought to be assumed by the
^vtemment, or the Indian tribe whose mem-
oirs were guilty of this depredation, we can-
not go beyond the language of the statute
and impose a liability whidi the government
b&8 not declared its willingness to assimie.
It is useless to die all the authorities, for
they are many, upon the proposition. It is
an aodom of our jurisprudence. The govern-
ment *is not liable to etiit unless it consents
thereto, and its liability in suit cannot be
extended bevond the plain language of the
statute authorizing it. See, among other
cases, Schillinger v. United States (155 U.
S. 103, 166 [39: 108, 110]), in which this
court said: "The United States cannot be
sued in their courts without their consent,
and in fipranting such consent Congress has
an absolute discretion to specify the cases
and contingencies in which the liability of
the government is submitted to the courts
for judicial determination. Beyond the let-
ter of such consent the courts may not go,
no matter how beneficial they may deem or
in fact might be their ^session of a larger
jurisdiction over the liabilities of the gov-
ernment."
N'ow the jurisdiction given by the act of
1891 to the court of daims is over "idl
claims for property of citizens of the United
States taken or destroyed by Indians," etc.
So far as any property was taken or de-
stroyed by the Indians the judgment of the
court of claims awards full compensation
therefor, and no question is made as to the
judgment in that respect. The single con-
tention of the plaintiff is that because of the
taking of certain property the value of other
property not taken or destroyed was, under
the conditions surrounding the petitioner
and such property, diminished. This dim-
inution in value did not arise because of any
change in its quality or condition, but sim-
ply because the petitioner left in possession
of that property was, in consequence of the
taking away of the means of trans-
portation, unable to carry it to a place
where its full value could be lealized. In
other words, the damages which he thus
claims do not consist in the value of proper-
ty taken or destroyed, but are those which
flow in consequence of the taking to property
which is neither taken nor destroyed. In
brief, he asks consequential damages. Now,
as we have said, we are not at liberty to
consider whether there may not be some
equitable claim against the government or
the Indians for such consequential damages.
We are limited to the statutory description
of the obligations which the government is
willing to assume and which it has sub-
mitted to the court of claims for determina-
tion. We may not enter into the wide ques-
tion of how far an individual taking or de-
^ktroying property *belonging to another may
be liable for all the damages which are con-
sequential upon such injury or destruction.
If Congress had seen fit to open the doors of
174 is. 8.
the court to an inquiry Into these matters
doubtless many questions of difficulty might
arise, but as it has only declared its willing^
ness to subject the government to liabili^
for property taken or destroyed we may not
ffo beyond that and adjudge a liability not
based upon the taking or destruction of
property, but resulting from the destruction
or taking of certain property to other prop-
erty not taken or destroyed. Questions,
such as arose in Pumpelly ▼. Green Bay d If.
Canal Co, 13 Wall. 166 [20: 557], as to the
scope of constitutional limitations upon the
right to take property without full compen-
sation, are not pertinent to the present in-
quiry; for, while if the court had free himd
and could adjudge a liability upon the gov-
ernment commensurate to the wrong done,
one conclusion might follow therefrom, yet
we are limited by the other fact that the
liability of the government to suit is a mat-
ter resting in its discretion, and cannot be
enlarged beyond the terms of the act per-
mitting it. Consequential damages! to prop-
erty not taken or destroyed are not within
the scope of the act authorizing recovery for
damages to property taken or destroyed.
We have thus far considered the case as
though it were one de novo and in no way
affected by prior proceedings in the Interior
Department. As heretofore indicated, not-
withstandinff the limited scope of the find-
ings, we thimc we ought, in view of the opin-
ion of the Court of Claims, to consider the
case in the attitude of one for which an
award had been made by the Secretary of
the Interior; that award including, not
merely damages for the property taken and
destroyed, but also what, as we have shown,
were merely consequential damages. Here
we are met by the contention of the plaintiff
that larger jurisdiction is given to tne court
of claims in respect to matters thus deter-
mined by the Secretarv of the Interior. Be-
yond the general jurisdiction given to the
extent heretofore indicated by the quotas
tion from the statute is this, expressed in
the subsequent part of the same section:
"Second. Such jurisdiction shall also ex-
tend to all cases *which have been examined[378]
and allowed by the Interior Department
and also to such cases as were authorized to
be examined under the act of Congress mak-
ing appropriations for the current and con-
tingent expenses of the Indian Department,
and for fulfilling treaty stipulations with
various Indian tribes for the year ending
June thirtieth, eighteen hundred and eighty-
six, and for other purposes, approved March
third, eighteen hundred and eighty-five, and
under subsequent acts, subject, however, to
the limitations hereinafter provided."
It is contended that in cases coming un-
der this clause the court of claims may
award all damages which the Secretary of
the Interior has or might have r^ivcn to the
petitioner. Conceding, for the purpose of
the argument, that this contention is justi-
fied, we cannot see that therefrom any new
measure of liability is established, or, at
least, none that will avail this petitioner.
The act of March 3, 1885 (23 U. S. Stat, at
1013
391-^8
SUPBEHB Ck>UBT OF THE UNITED STATEtt.
Oct. Tdm,
worihg 25 Keb. 246; Boatman y. Shaw, 65
N. Y. 522; Arden y. Wathina, 3 East, 317;
WitHa T. Freeman, 12 Ea8t» 656; Second
Nat. Bank y. Hotoe, 40 Minn. 390; Spear y.
Uyera, 6 Barb. 445; White y. Springfield
Bank, 1 Barb. 225; Stewart y. i9maU, 2
Barb. 559; Younga y. Lee, 18 Barb. 187;
PhcBniw Ina. Co. y. 0%i4roA, 81 N. Y. 225, 37
Am. Rep. 494; Atlantic Nat. Bank y. Frank-
lin, 55 N. Y. 235.
The question of the bona fides of the bank
was for the juiy.
Canajohane Nat, Bank y. Diefendorf, 123
N. Y. 191, 10 L. R. A. 676; Voahurgh y.
Diefendorf, 119 N. Y. 357; Kavanagh v.
Wilaon, 70 N. Y. 177; /oy y. Diefendorf, 130
N. Y. 6; Farmers' d C, Nat, Bank v. Nogoon,
45 N. Y. 762.
The note haying been obtained through
fraud and without consideration, the onua
was upon the holder of showing that the
bank acquired the same in good faith.
American EmcK Nat, Bank y. New York
Belting d Pkg. Co. 148 N. Y. 698; Qra/nt y.
Walah, 145 N. Y. 502; Niokeraon y. Ruger,
76 N. Y. 282; Ocean Nat, Bank y. Carll, 55
N. Y. 441; Firat Nat, Bank y. Green, 43
N. Y. 298.
Whether the notice of fraud to the bank,
through its cashier, was actual or construe-
tiye, it is equally antagonistic to the claim
of good faith.
Angle y. North Weatem Mut. L. Ina. Co,
02 U. S. 342, 23 L. ed. 560; Witter y. Sowlea,
82 Fed. Rep. 762; Loring y. Brodie, 134
Mass. 453; Peopl^a Nat. Bank y. Clayton,
66 Vt. 541; Palmer y. Field, 76 Hun, 230;
Garfield Nat. Bank y. Colivell, 57 Hun, 169;
Produce Bank v. Bache, 30 Hun, 351; Re
Carew, 31 Beay. 39.
The bank is chargeable with knowledge of
its cashier.
Firat Nat. Bank y. Blake, 60 Fed. Rep. 78;
Third Nat. Bank y. Harrison, 10 Fed. Rra.
243; Merchants^ Nat, Bank y. Tracy, 77
Hun, 443.
Meaara, Martin Carey and Wilaon S.
BiaaeU for defendant in error.
|W1] *Mr. Justice Wlilte deliyered the opin-
ion of the court:
The receiyer of the Elmira National Bank,
duly appointed by the Comptroller of the
Currency, sued George M. Israel, the plain-
tifit in error, on a promissory note for $17,-
000, dated New York, May 14, 1893, due on
demand, and drawn by Israel to the order
of the Elmira National Bank, and payable
at that bank. The defenses to the action
were in substance these:
First. That the note had been placed bj
IM2]Israel, the maker, *in the hands of Dayid C.
Robinson, without any consideration, for a
SarticultLT purpose, and that if it had been
iscounted oy Robinson at the Elmira Na-
tional Bank such action on his part consti-
tuted a diyersion from the purposes for
which the note had been drawn and deliy-
ered ; that from the form of the note ( its be-
ing made payable to the bank), from the
official connection of Robinson with the bank,
he being one of its directors, and his per-
sonal relations with the cashier of the bank,
1020
as well as from many other rlrnmiitimm
which it is unnecessary to derail, tk« huk
was charged with such iioUce as to Dm di-
yersion of the note by Robinson as prenated
the bank from being protected as an iimwat
third holder for yalue.
Second. Eyen if the dlsoonnt d the aoto
was not a diyersion thereof from the purpose
contemplated by the drawer, the bank vis
neyertheless subject to the equity arising
from the want of consideration between I^
rael the drawer and Robinson, became, sl-
thouffh the note may haye beoi in form dis-
counted by the bank, it had in reality only
been taken by the bank for an antecedent
debt due it W Robinson. And from this
it is asserted Uiat as the bank bad not part-
ed, on the faith of the note, with any actnil
consideration, it was not a holder for yalne,
and was subject to the equitable defeatis
existing between the original persons.
At the trial the plaintiff offered in eti-
dence the note, the signature and the dis-
count thereof being in effect admitted, sad
then rested its case. The defendant there-
upon offered testimony which it was deeoMt
tended to sustain his defenses. At the doss
of the testimony the court, oyer the defend-
ant's exception, instructed a yerdict in far
yor of the plaintiff. On error to ttte oout
of appeals this action of the trial ooort wis
affirmed.
Both the assignments of error and the ir-
ffument at bar but reiterate and expand ia
diyers forms the defenses aboye stated sal
which it is asserted were supported by cfi-
dence competent to go to the jury, if the trisi
court had not prerented its consideration by
the peremptory instruction which it giie.
The bill of exceptions contains the testi-
mony offered at the trial, and the sole qnet'
tion which arises is, Did the court VvutlTtSM]
instruct a yerdict for the plaintiff? Fitn
the eyidence it undoubtedly resulted that
tiie note was deliyered by the maker to D.
C. Robinson, by whom it was disooonted it
the Elmira National Bank. It also estab-
lished that Robinson at the time of the dis-
count was a director of the bank, had largt
and frequent dealings with it, that be bore
close business and personal relations wHh
the cashier,. and occupied a position of eoDft>
dence with the other officers uid directors
of the bank. The occasion for the girlnfrol
the note and the circumstanoee attendins tbs
same are thus shown by the testimony ci tha
defendant:
"I reside in Brooklyn. I am forty*t«o
years of age. I am at present engased ia
the insurance business. In the months of
April and May, 1893, I was empkrpsd in tht
banking house of I. B. Newoomb k Co., ii
Wall street. New York, as a stenographer
and typewriter. I was not then and am aoi
now a man of property. I know D. C Rob-
inson. At the time I made this note I fid
not reoeiye any yaluable thinff or other eoa-
sideration for the making of it ; I hare neter
receiyed any oonsidSeration for the making of
the note. I had a ccmyenation \rith IX C
Robinson at the time of the making of the
note. He stated to me the c^jeet or pnrwae
for which he desired the note. He laio Is
174 V. t.
1898.
IsBASL y. Gaub.
898-8»6
me that he desired some aocommodation
notes, and he wanted us clerks to make them,
and stated the amount. He said that the
Tea0on he wanted the accommodation note
was that he had exceeded his line of discount
•ad could not ^t any more accommodation;
that ho was building a power house up there
(in Ehnira) and needed some money to ac-
eompUsh that purpose, and that it we would
td?9 iim these notes it would enable him
to accomplish that. He also added that we
would not be put in any position of paying
them at any time; that he would take care
of them, and save us positive assurance on
that point, and naturaUy, knowin^^ the man,
and thinking that he was a millionaire, as
he probably was at that time, we had no
hesitation about going on the notes."
There was no testimony tending to refute
th^e statements or in any way calculated to
enlarge or to restrict them.
fS04] *The defense, then, amounts to this: That
the form of the paper and Robinson's relation
with the bank and its officers were such as to
brinff home to the bank the knowledge of
the transaction from which the note arose,
and that such knowledge prevents a recovery
because Robinson, taking the transaction to be
exactly as testified to by the defendant, was
without authori^ to discount the note.
Granting, argMendo, that the testimony tend-
ed to show such a condition of fact as to
bring home to the bank a knowledge of the
transaction, the contention rests upon a fal-
lacy, since it aesumes that the note was not
given to Robinson to be discounted, and that
is BO using it amounted to a diversion from
the purpose for which it was delivered to
him. But this is in plain conflict with the
avowed object for which the defendant testi-
fied the note was drawn and delivered, since
he swore that he furnished the note because
he was told by Robinson that he needed ac-
commodation, that his line of discount on
his own paper had been exceeded, and that
if he could get the paper of the defendant
he would overcome this obstacle; in other
words, that he would be able successfully to
discount the paper of another person when
he could not rurther discount his own. This
obvious import of the testimony is fortified,
if not conclusively proved, by the form of the
note itself, which, instead of being made to
the order of Robinson, was to the order of
the Elmira National Bank. The premise,
then, upon which it is argued that there was
Sroof tending to show tnat the discount of
^e note by Robinson at the Elmira National
Bank was a diversion, is without foundation
in fact. The only matters relied on to sus-
tain the proposition that there was testi-
mony tending to establish that the note was
diverted, because it was discounted at the
bank to whose order it was payable, are un-
warranted inferences drawn from a portion
of the conversation, above quoted, which the
defendant states he had with Robinson when
the note was drawn and delivered. The part
of the conversation thus relied upon is the
statement that Robinson said, when the note
was given, "that he was building a power
bouse up there (in Elmira) and needed some
money to accomplish that purpose, and if
174 V. 8.
we would give him these notes it *would[8Mi9
enable him to accomplish that." This, it is
said, tended to show that the agreement on
which the note was given was not that it
should be discounted at the Elmira National
Bank, but that it should be used by Robin-
son for obtaining money to build the power
house. In other words, the assertion is that
the mere statement, by Robinson, of tlit
causes which rendered it necessary for him
to obtain a note to be discounted at the El-
mira National Bank had the effect of de-
stroying the very purpose for which the note
was confessedly given. When the real re-
sult of the contention is apprehended its un-
soundness is at once demonstrated. Other
portions of the record have been referred to,
in argument, as tending to show that it could
not hiave been the intention of the defend-
ant, in givinff the note, that Robinson should
discount it, out on examining the matters
thus relied upon we find they have no tend-
encv whatever to contradict or diange the
plain result of the transaction as shown by
the defendant's own testimony.
As the discount of the note at the Elmira
National Bank was not a diversion, but on
the contrary was a mere fulfilment of the
avowed object for which the note was asked
and to oonsummate which it was delivered, it
becomes irrelevant to consider the various
circumstances which *it is asserted tended to
impute Icnowledge to the bank of the purpose
for which the note was made and delivered.
If the agreement authorized the discount of
the note, it is impossible to conceive that
knowledfle of the agreement could have
caused tne discount to be a diversion, and
that the mere knowledge i^at paper has been
drawn for accommodation does not prevent
one who has taken it for value from recover-
ing thereon is too elementery to require oi-
tetion of authori^.
The contention that although it be conced-
ed the note was not diverted by ito discount,
nevertheless the bank could not recover
thereon because it took the note for an ante-
cedent debt, hence without actual considera^
tion, depends, first, upon a proposition of
fact, that is, that there was testimony tend-
ing to so show, and, second, upon the legal
assumption that even if there was such tes-
timonv it was adequate as a l^r^l defense.
*The latter proposition it is wholly unneceB-[306]
sary to consider, because the first is unsup-
ported by the record. All the testimony on
the subject of the discount of the note was in-
troduced by the defendant in his effort to
make out his defense. It was shown, with-
out contradiction, that the note had been dis-
counted by Robinson at the bank, and that
the proceeds were placed to his credit in ac-
count. It was also shown that for some
time prior to the day of the discount his
account with the bank, to the credit of which
the proceeds of the discount were placed, was
overdrawn. The exact state of the account
on the day the discount was made was stated
by the cashier and a bookkeeper of the bank,
and was moreover referred to by Robinson.
On the morning of the discount the debit to
the account of Robinson, by way of over-
draft, is fixed by the cashier at $35,400, and
1021
89^-998
SUPBKICB COUBT OW THX UlTITED STATU.
Oct. Tum,
by the bookkeeper at $35,000. Bobimon
made the foUowing etatement: 'The amonnt
of other notes wiped out the overdraft and
made a balance." The bookkeeper's state-
ment is as follows:
"There was an overdraft of $85,000 against
Mr. Robinson upon the books of the buik on
the ' morning of May the 4th. There were
items coming through the exchanges that
amounted to about ^3,000, and there was a
deposit made of $33,000 to make the over-
draft good. These were to take up the items
that came through the exchanges. I think
that was the way of it His account would
have been overdrawn that night for about
$60,000 if it had not been for the entry on
the books of the proceeds of these notes."
No other testimony tendinff to contradict
these statements, made by Uie defendant's
own witnesses, is contained in the record.
They manifestly show that, although at the
date of the discount there was a debit to the
account resulting from an overdraft, near-
ly the sum of the overdraft was covered
by items ol credit, irrespective of the note
in controversy, and that subsequent to thfi
credit arising from the note more than the
entire sum of the discount was paid out for
the account of Robinson, to whose credit the
proceeds had been placed. With these un-
contradicted facts in mind, proved by the
testimony offered by the defendant, and with
]no testimony tending *the other way, it is ob-
viously unnecessary to go further and point
out the unsoundness of the legal contention
relied upon.
JOHN W. McDonald, as Receiver, Appt,,
V,
GEORGE G. WILLIAMS and John B. Dodd.
(See 8. C. Reporter's ed. 897-408.)
When receiver of natiandl hank cannot re-
cover hack from a stockholder a dividend
paid him out of the capital — U, 8, Rev.
Stat. I 5204.
]. A receiver of a national bank cannot re-
cover back from a stockholder a dividend paid
him, not ont of the profits, but entirely out of
the capital, prior to the appointment of the
receiver, when such stockholder receiving snch
dividends acted In good faith, believing the
same to be nald ont of the profits made by
the bank, and when the bank, at the time snch
dividend was declared and paid, was solvent.
S. The stockholder by the mere reception of
hit proportionate part of snch dividend, does
not withdraw any of the capital of the bsnk
within the meaning of U. & Rev. Stat i
6204.
[No. 257.]
Argued Aprtt tl, 1899. Decided May 16,
1899.
OK CERTIFICATE from the United States
Circuit Court of Appeals for the Second
Circuit certifying certain questions to this
court for instruction in an action brought by
John W. McDonald, as receiver of the CSipital
1022
National Bank, plaintiff, against George 0.
Williams and John B. JkM, ttockholders of
the bank, to recover the amoont of eertaia
dividends received by them before the ap-
pointment of a receiver. Fint qmmUom «•>
etoered in the negative.
Statement by Mr. Juatioe FeeUkaBs
This suit was commenced in the drcnit
court of the United States for the soathcfa
district of New York. It was brought by
the plaintifT, as receiver of the CapiUl Na-
tional Bank of Lincoln, N^raska, for the p«r-
poee of recovering from the defendants, who
were stockholders in the bank, the amovat
of certain dividends received by them before
the appointment of a receiver.
Upon the trial of the case the circuit ooort
decreed in favor of the plaintiff for the re-
covery of a certain amount. The defendaati
appealed from the decree, because it was aot
in their favor, and the plaintiff appealed
from it, because the recovery provided for is
the decree was not as much as he claimed to
be entitled to. Upon the argumeot of th»
appeal in the circuit court m appeals cer-
tain questions of law were presented as to
which that court desired the instruction ef
tiiis court for their proper decision.
It appears from the statement of facts sasds
by the court that the bank suspended paj-
ment in January, 1893, in a oooditiOB ef
hopeless insolvency, the stockholders, indnd*
ing *the defendants, having been aseesjed te(Ml
the full amount of their respective holdiifi,
but the money thus obtained, added to tibe
amount realized from the assets, will not be
sufficient even if all dividends paid dnriaf
the bank's existence were repaia to the re-
ceiver, to pay seventy-five per cent of the
claims of the bank's creditors.
This suit was brought to oomp^ the re-
payment of certain (uvidends paid by the
bank to the defendants on that part of the
capital of the bank represented by their
stock of the par value of $5,000, oa the
f round alleged in the bill that each of nJA
ividends was fraudulently dedared sai
paid out of the capital of the bank, and do!
out of net profits.
A list of the dividends and the amooss
thereof paid by the bank from January. 1885,
to July, 1892, both inclusive, is contaioid
in the statement, and it is added thst
all dividends, except the last (July It
1802), were paid to the defendant Will-
iams, a stockholder to the anooaot ol
$5,000, from the organization of the baak.
The last dividend was paid to the defcadsat
Dodd, who bought Williams's stock, aad W
the same transferred to his own name I>^
cember 16. 1891.
When the dividend of January 6. 1889,
was declared and paid, and when eadi sabee-
quent dividend, down to and including ^^7*
1891, was declared and paid, there were ss
net profits. The capital of the beiak was im-
paired and the dividends were paid oat of
the capital, but the bank was still solrcat
When the dividends of January and Jolf.
1892, were declared and paid there were so
net profits, the capital of the bank was hM^
and the bank actually insolvent.
174 U.&
]8ia.
McDonald y. Williams.
89S-4ttX
The defendanti, neither of whom was an
officer or director, were ignorant of the finan^
cial condition of the htSkf and received the
dividends in good faith, relying on the offi-
cers of the bank« and believing the dividends
were coming out of the profits.
Upon these facts the court desired the in-
struction of this court for the proper dec!-
fion of the foUowinff questions:
First question. Can the receiver of a na-
tional bank recover a dividend paid not at
all out of profits, but entirely out of the
capital, when the stockholder receiving such
dividend acted in good faith, believing the
]same to be paid out of *profits, and when the
bank, at tne time sucn dividend was de-
clared and paid, was not insolvent?
Second question. Has a United States cir-
cuit court jurisdiction to entertain a bill in
equity, brought bv a receiver of a national
bank against stockholders to recover divi-
dends which, as claimed, were improperly
paid when such suit is brought against two
or more stockholdere and embraces two or
more dividends, and when the objection that
there is an adequate renoedy at law is raised
by the answer?
Mr, Edward Winslow False, for ap-
pellant:
The capital of a national bank is a trust
fund for the security of the creditors, and
can be followed into the hands of any volun-
teer.
Story, Eq. Jur. 9 1252; Mumma v. PotO'
moo Co, 8 Pet. 286 (8: 947) ; Wood v. Bum-
tner, 3 Mason, 308 ; Vose v. Orant, 15 Mass.
622; Spear v. Orant, 16 Mass. 14; Curran v.
Arkanaaa, 15 How. 307 (14:707); fiToom-
tnon V. Kimball, 92 U. S. 362 (23:483);
Sawyer v. Hoag, 17 Wall. 610 (21:731);
Barings v. Dahney, 19 Wall. 1 (22: 90) Fmn
V. Broum, 142 U. 8. 56 (35: 936) ; Barileit
V. Drew, 57 N. Y. 587; Tinkham v. Bor$i,
31 Barb. 407; 2 Kent, Com. 307; HoUina v.
Brierfield Coal and Iron Co, 150 U. S. 871
(37: 1113) ; Wabash, St. L. d P. R. Co, v.
Ham, 114 U. S. 587 (29:235); Fogg v.
Blair, 133 U. S. 534 (33: 721) ; Hawkins v.
Glenn, 131 U. S. 819 (33: 184).
The statutes of the United States make
the payment of a dividend out of the capi-
tal of a national bank illegal and ultra
vires,
U. S. Rev. SUt. 9 5204 ; California Bank
V. Kennedy, 167 U. S. 362 (42: 198) ; 7re-
vor V. Whitworth, L. R. 12 App. Cas. 409;
Stringer's Case, L. R. 4 Ch. 476 ; Holmes v.
Newoastle-upon-Tyne Freehold Abattoir Co,
L. R. 1 Oh. Div. 682; Ouinness v. Land Corp,
of Ireland, L. R. 22 Ch. Div. 349;
Macdougall v. Jersey Imperial Hotel Co, 2
Hem. & M. 528; Re Alewandra Palaoe Co.
L. R. 21 Ch. Div. 149; Chooh v. London Bka.
Asso, L. R. 32 Ch. Div. 41; Ooregum Oold
Min, Co. V. Roper [1892] A. C. 125; Trevor
V. WhitiDorth, 12 App. Cas. 409.
Messrs. THeodore De Witt and Oeorge
O. De Witt for appellees.
[899] *Mr. Justice Feekhaav after stating the
fiicts, delivered the opinion of the court:
It will be noticed that the first question
174 17.8.
is based unon the facts that the bank, at
the time the dividends were declared a&d
paid, was solvent, and that the stockholdere
receiving the dividends acted in good faith
and believed that the same were paid out of
theprofits made by the bank.
The sections of the Revised Statutes
which are applicable .to the questions in-
volved herein are set forth in the margin.f
*The complainant bases his right to recover [400]
in this suit upon the theory that the capital
of the corporation was a txust fund for the
payment of creditors entitled to a portion
*tnereof, and havine been paid in the way[401]
of dividends to the snareholaers that portion
can be recovered back in an action of this
kind for the purpoee of paying the debts of
the corporation. He also bases his rights to
recover upon the terms of section 5204 of the
Revised Statutes.
We think the theory of a trust fund has
no application to a case of this kind. When
a corporation is solvent, the theorr that its
capital is a trust fund upon which there is
any lien for the payment of its debts has in
fact very little foundation. No general cred-
itor has any lien upon the fund under such
circumstances, and the right of the corpora-
tion to deal with its property is absolute so
long as it does not violate its charter or the
law applicable to such corporation.
In Cfraham v. La Crosse d M, Railro<id
Company, 102 U. S. 148, 161 [26: 106, 111],
fSec. 6199. Tbe directors of any astodstlOB
maj, semiannually, declare a dividend of so
much of tbe net profits of the association as
they shall Jndge expedient ; but each association
shall, before the declaration of a dividend, carry
one-tenth part of Its net profits of the preceding
half year to Its surplus fnnd until the tame
shall amount to twenty per centum of Its capi-
tal stock.
Sec. 6204. No association, or any member
thereof, shall, during the time It shall continue
Its banking operations, withdraw, or permit to
be withdrawn, either In the form of dividends
or otherwise, any portion of Its capital. If
losses have at any time been sustained
by any such association, equal to or ex-
ceedlng Its undivided profits then on band, no
dividend shall be made; and no dividend shall
ever be made by any association, while It con-
tinues Its banking operations, to an amount
greater than Its net profits then on hand, de-
ducting therefrom Its losses and bad debts. All
debts due to any associations, on which Interest
Is past due and unpaid for a period of six
months, unless the same are well secured, and
In process of collection, shall be considered bad
debts within the meaning of this section. But
nothing In this section shall prevent tbe reduc-
tion of the capital stock of the association under
section fifty-one hundred and forty-three.
Sec 6205. (As amended by section 4 of the
act approved June 80, 1876, 10 Stat, at L. 68
[chap. 166]). Bvery association which shall
have failed to pay up Its capital stock, as re-
quired by law. and e?ery association whose
capital stock shall have become Impaired by
losses or otherwise, shall, within three months
after receiving notice thereof from the Comp-
troller of the Currency, pay the deficiency In
the capital stock, by assessment upon the share-
bolders pro rata for tbe amount of capital
stock held by each ; and tbe Treasurer of the
United States shall withhold the Interest upon
all bonds held by him In trust for any such as-
1023
878-881
SupBEiiE Court of the Uioted States.
Oct.
L. chap. 341, pag6 S76), which provided for
the investiffation by die Interior Depart-
ment of diaims on acoount of Indian depre-
dations, and under which it is alleged that
the Secretary acted in making hid award,
authorized tne Seoretarj "to determine the
kind and value of all property damaged or
destroyed by reason of the depredations
aforesaid." The contention is tliat the
terms "damaged or destroyed" enlarge the
scope of the liabiliiy assumed by the govern-
ment. We are unable to perceive that this
is of any significance in this case. The
property left in the possession of the peti-
tioner was neither damaged nor destroyed by
the action of the Indians in taking away the
other property. Its inherent intrinsic
value was in no manner disturbed. The
damages were not to the properly, consid-
ered as property, but simply conseauential
from the wrong done, and consisted solely
in the fact that the petitioner, wronged by
the taking away of certain property, was
unable to realize the real value of property
not taken, damaged, or destroyed. Nothing
was done by the Indians to disturb the in-
trinsic value of the property left in posses-
sion (k the petitioner, it remained hi& with
full right of control and disposition, in no
[S79]manner 'marred or changed in value, and the
sum of the injury results only from the fact
that he could not remove it to a suitable
market. The property, in itself considered,
was neither taJcen, diunased, nor destroyed.
The only result was that his ability to make
use of that value was taken away because
his means of transportation were destroyed.
The damages were, therefore, consequential,
and not to the property itself. We do not
perceive how, under the statute, the liabil-
ity of the government was enlarged by this
fact.
Th€ judgment of the Court of Olaime is
therefore affirmed.
Mr. Justice WMte, Mr. Justice Peek-
liAiiv and Bir. Justice MeKenaa dissented.
NORTHERN PACIFIC RAILROAD COM-
PANY, et (U., Plffe, in Err.,
V.
SERETTE 0. FREEMAN et dL
(See 8. C. Reporter's ed. 870-384.)
Contributory negligence.
Where a person approached a railway crossing
well known to him, when a coming train was
In foil view, and he conld have seen It while
40 feet distant from tha track If be had used
his senses, bat did not look, or took the
chance of crossing the track before the train
reached him, and was killed, he was guilty of
contributory negligence.
[No. 241.]
Argued and Submitted April IS, 1899, De-
cided May 15, 1899,
IN ERROR to the United SUtes Circuit
Court of Appeals for the Ninth Circuit to
1014
review a judgment of that eoort
Judgment of the Circuit Court ol the
States for the District of Washii^toK ia fa-
vor of Serette O Freeman et oL^
minor children of Thomas A.
against the Northern Paciiie Railway
pany for damages for the death ii aaii
Thomas A. Freeman caused by the
gence of said railway company.
and cause remanded, with directioes to
a new trial.
See same case below, 4S U. S. A^pu
83 Fed. Rep. 82, 27 C. C. A. 457.
Statement by Mr. Justice
*This was an action by the
nor children of Thomas A. FntmMM. erir
inalljr brought in the circuit eoort for tat
District of Washington against the
of the Northern Pacific Railroad
and subsequently, after the discharge of
receiver, continuea against the Kortln n ^m-
cific Railway Company, purchaser at ths
foreclosiire sale, which, by virtue of the ■?»>
visions of the decree of sale, had asMuaUtfa
liabilities of the receiver. The object of tht
action was to recover damages on anrwat af
the death of Thomas A. Freeman, whitk eas
alleged to have occurred by rfsna ei Ifcs
negligence of the company.
The accident occurred at a highway crav-
ing near the eastern corporate limits af tie
town of Elma, in the county of CWhalk. is
the state of Washington, at a poiat afci
the hi|[hway crosses the railway trad: me^
ly at right angles.
Upon the trial, counad for the nBmf
company asked the court to instraet tlK jmj
to return a verdict for the defesdaai,
the ground that the undisputed
showed that the deceased, as he a^
the railway crossing, did not look iq» or 4im%
the track, and did not see the train
was approaching in full view, aa
was guilly of such contributory
as to preclude the plaintilTs froea
inff damages. This the court ufawd, tai
left the case to the jury under the foUovaf
instruction, to whidi exoeptioii was takm
"Where a party cannot see the app^xiar^ if
a train on account of interreniBg ohjerCa to
may rely upon his ears, and whether ki
should liave stopped and listened
circumstances is for you; and if
from the evidence that deceased, Ihoaaa A
Freeman, acted as a man ol ordinarv oi*
and prudence would have dooe as k ar
proacned the crossing, then yo«r wHmc
should be for the plaintiffs, in eaae yea tal
that the defendants were ncgligvwt and thrt
the collision was due to their neriijuata *
Counsel further excepted to the fonoviar
instruction: "There has been aoae tHtt-
mony tending to show that the dsnaal
might have seen the approaching trmia «aai
feet before he reached tae track. If yn to
lieve that the deceased eoold have Mca tto
approaching train ^ hen he waa within a he
*ieet of the trade, then it is for yon is m,
under all the drcumataneea, ehrthB to
used reasonable precaution and
the collision."
Exception waa also taken to
trnwrnH
IT41V.&
NOBTHEBN PaCIFIO R. CO. T. FrBBMAN.
880.881
ion to tlie jury upon the subject of dam-
ages, iMrbich does not beconoe material here.
Plaintiffs recovered a yerdict, upon which
udgment was entered for $9,000. The judg-
aent w&8 affirmed on writ of error by the cir-
'uit court of appeals for the ninth circuit,
»ne jndg^ dissenting. 48 U. S. App. 757.
Mr, O. W. Bvnn, for plaintiff in error:
The facts conclusively proved here are that
he deceased did not look and did not see the
rain until just as the collision occurred.
Chicago, R, I, d P, R, Co. v. Hot^aton, 95
U. S. 697, 24 L. ed. 542 ; Schofield v. C^ico-
70, Jf. d 8i, P. R. Co, 114 U. S. 615, 29 L.
id. 224 ; Texas d P. R, Co, v. Gentry, 163 TJ.
3. 353, 41 L. ed. 186; Cleveland, C, C. d L R,
Vo. V. BUioU, 28 Ohio St 340; Pennsylvania
R. Oo, T. Beale, 73 Pa. 504, 13 Am. Rep. 753 ;
Schaefert v. Chicago, M, d 8t. P. R. Co, 62
Iowa, 624.
Under the circumstances, ordinary care
required that he should have stopped and
looKed and listened at some place, since there
was nothing to prevent his doing so and
nothing to distract his attention.
Brown v. Milwaukee d 8t, P, R, Co. 22
Minn. 165; Ahhett v. Chicago, M, d 8i, P.
R. Co. 30 Minn. 482 ; Mantel v. Chicago, M,
4£ 8t. P. R, Co, 33 Minn. 62; Eaaa v. Grand
Rapids d I, R, Co, 47 Mich. 401 ; Brady v.
Toledo, A, A. d N. M, R, Co, 81 Mich. 616;
Kelson ▼. Duluth 8, 8, d A, R, Co. SSyfis,Z92;
Moore t. Keokuk d W, R, Co, 89 Iowa; 223 ;
Salter v. Utica d B, River R, Co, 75 N. Y.
273; Cincinnati, H. d I, R, Co, v. Duncan,
143 Ind. 524; Philadelphia, W. d B, R, Co,
v. Hogeland, 66 Md. 149, 59 Am. Rep. 159;
Tully V, Fitchhurg R, Co, 134 Mass. 499;
Butterfield v. Western R, Corp, 10 Allen,
532, 87 Am. Dec. 678; Tolman v. Byracuse,
B. d N. 7. R, Co, 98 N. Y. 198, 50 Am. Rep.
649 ; Powell v. New York C, d E, R, R, Co,
109 N. Y. 613.
Messrs. Stanton Warbnrton, /. B.
Bridges, 0, V, Linn, 8idney Moor Heath,
and Hudson d Holt, for defendant in error :
There was sufficient evidence for the court
to submit the case to the jury.
Chesapeake d 0, R. Co, v. 8teele, 54 U. S.
App. 550, 84 Fed. Rep. 93, 29 C. C. A. 81 ;
Mount Adams d E. P. Inclined R, Co. v.
Lowry, 43 U. S. App. 408, 74 Fed. Rep. 463,
20 C. C. A. 596; Travelers^ Ins, jOo. v.
Mitchell, 47 U. S. App. 260, 78 Fed. Rep.
754, 24 C. C. App. 305; Dublin, W, d W. R,
Co, V. 8lattery, Jj, R. 3 App. Cas. 1155.
Contributory negligence cannot avail the
defendant unless shown by a preponderance
of the evidence.
Washington d G, R, Co, v. Gladmon, 15
Wall. 401, 21 L. ed. 114; Hough v. Temas d
P. R, Co. 100 U. S. 213, 25 L. ed. 612; Inland
d 8. Coasting Co. v. Tolson, 139 U. S. 551,35
L*. ed. 270; Texas d P. R, Co, v. Volk, 151 U.
S. 73, 38 L. ed. 78; Texas d P. R, Co, v. Gen-
try, 163 U. S. 353, 41 L. ed. 186; Indianapo-
lis d 8t. L, R. Co, V. Horst, 93 U. S. 298, 23
L. ed. 900.
As a general rule the question of contrib-
ntory negligence is one for the jury.
Washington d G, R, Co. v. McDade, 135
174 U. 8.
U. S. 671, 34 L. ed. 241 ; Texas d P. B. Co. T.
Cody, 166 U. S. 606, 41 L. ed. 1132.
Contributory negligence of the party in-
jured would not prevent him from recovering
if the defendant might, by the exercise of rea-
sonable care and prudence, have avoided the
consequences of plaintiff's negligence.
Inland d 8, Coasting Co, v. Tolson, 139 U.
S. 551, 35 L. ed. 270; Washington d G, R.
Co, T. McDade, 135 U. S. 554, 34 L. ed. 236;
Grand Trunk R, Co. v. Ives, 144 U. S. 429,
36 L. ed. 493; Delaware, L. d W. R, Co. v.
Converse, 139 U. 8. 469, 35 L. ed. 213.
The question of negligence on the part of
defendant was one of fact for the jury to de-
termine. So also the question of whether
there was negligence in the deceased which
was the proximate cause of the injury was
such a question for the jury.
Cincinnati, N. 0. d T. P. R. Co. v. Farra,
31 U. S. App. 306, 66 Fed. Rep. 496, 13 C.
C. A. 602; Chicago d N. W. R. Co. v. Trip-
kosh, 32 U. S. App. 168, 406, 67 Fed. Rep.
665, 14 C. C. A. 615; Lynch v. Northern P.
R. Co. 29 U. S. App. 664, 69 Fed. Rep. 86, 16
C. C. A. 151 ; Texas d P. R. Co. v. Bpradling,
30 U. S. App. 698, 72 Fed. Rep. 152, 18 C.
C. A. 496; Northern C. R. Co. v. Herchiskel,
38 U. S. App. 659, 74 Fed. Rep. 460, 20 C.
C. A. 593; Cohleigh v. Grand Trunk R. Co.
75 Fed. Rep. 247 ; 8t. Louis d 8. F. R. Co. ▼.
Barker, 40 U. 8. App. 789, 77 Fed. Rep. 810,
23 C. C. A. 475; Baltimore d 0. R. Co. t.
Griffith, 159 U. 8. 603, 40 L. ed. 274.
The question presented in this case is
whether plaintiff looked and listened within
a reasonable distance of the crossinff. What
is a reasonable distance is a ouestion to be
determined with re^^ard to all the circum-
stances of this particular case, and is not a
matter of legal judgment, but one of practi-
cal experience.
Wood, Railroads, 1522, 1530, 1548; Nosier
y. Chicago, B. d Q. R, Co, 73 Iowa, 268;
Lindeman v. New York C. d H. R. R, Co. 42
Hun, 306 ; Cleveland, C, d C, R. Co, v. Craw-
ford, 24 Ohio 8t. 631, 15 Am. Rep. 633;
Eagan v. Fitchburg R, Co, 101 Mass. 315;
Lehigh Valley R, Co, v. Hall, 61 Pa. 361;
Eilert v. Green Bay d M. R. Co. 48 Wis. 606.
In the absence of positive evidence to the
contrary it will be presumed that deceased
did all that a prudent man would have done
under the circumstances.
Texas d P. R, Co. v. Gentry, 168 U. 8. 863,
41 L. ed. 186; 8chum ▼. Pennsylvania R. Co.
107 Pa. 8, 52 Am. Rep. 468; Cleveland, C. d
C. R. Co. V. Crawford, 24 Ohio 8t. 686, 16
Am. Rep. 633; Continental Improv. Co. t.
8tead, 95 U. 8. 161, 24 L. ed. 403.
*Mr. Justice Brown delivered the opin-[38f j
ion of the court:
There was testimony from several witness-
es in the neighborhood tending to show that
no whistle was blown by the engineer as the
train approached the crossing. There was
also the testimony of the conductor, engi<
neer, and fireman that the whistle was
blown. As the majority of plaintiffs' wit-
nesses were so located that they would prob-
ably have heard the whistle if it had been
blown, there was a conflict of testimony with
1015
S81-8S4
SXTPBEICK COUBT OF THB UnITB) StATBB.
Oct.
veepect to defendant's negligence which was
properly left to the jury.
Tbe real question in the case was as to
the contributory n^ligence of plaintiffs' in-
testate. For several hundred feet on either
side of the highway crossinff there was a cut
of about eight feet below tne surface of the
surroundine country, through which the /ail-
way ran. The hiffhwa^ approached the cross-
ing b^ a gradual decline, the length of which
was from 130 to 150 feet. Along the greater
portion of this distance the view of a train
approaching, either from the north or the
south, was cut off by the banks of the exca-
vation on either side of the highway ; but at
|S88]a distance of about forty *feet before reach-
ing the toradc the road emerged from the cut,
aiM the view up the track for about 300 feet
was unobstructed.
At the time of the accident. Freeman was
driving along the hiehway, going eastward
from the town of Elma in a farm wagon
drawn bv two horses at a slow trot. He was
a man thirty years of ase, with no defect of
tfj^esight or hearing, and was familiar with
the crossing, having frequently driven the
same team over it. The norses were gentle
and were accustomed to the cars.
The duty of a pereon approaching a rail-
wav crossing whether driving or on foot, to
look and listen before crossing the track, is
so elementary and has been affirmed so many
times by this court, that a mere reference
to the cases of Chicago, R, /. d P, Railroad
Company v. Eouaion, 95 U. S. 697 [24: 542],
and Schofield v. Chicago M, d 8t. Paul Rath
%oay Co. 114 U. S. 615 [29: 224], is a suffi-
dent illustration of the general rule.
There were but three witnesses to the ac-
cident. Two of these were women who were
walking down the highway, and approaching
the crossing on the opposite side, facing the
team. At the time tne deceased was struck
by the train, they were from 200 to 250 feet
away. They testified that the horses were
coming down at a slow trot, not faster than
a brisk walk, and that their speeed was uni-
form up to the time of the accident; that the
decease looked straight before him, without
turning his head either way; that the team
did not swerve but trotted directly on to the
crossing, and that the deceased made no mo-
tion to stop until just as the engine struck
him. The other witness was a little girl,
ten years of age, who was standing on the
hill on the opposite side of the triusk, near
the point where the descent of the highway
into the cut began, and was consequently
from 130 to 150 feet from the railway track.
The deceased passed her and two other young
children who were with her. She testified
that as he passed his head was down, and
he was looking at his horses; that "they
went down aways, and then they run and fiew
back;" that they were going at a slow trot;
that when Freeman saw the train he tried to
{883] pull the horses around, as * if he were trying
to get out of the way, when the train struck
them.
Another witness was driving behind the
team, but he testified to nothing which bore
jpon the material question whether the de-
1016
ceased took any precaution before erosai^^
the track.
So far, then, as there was anv oral testi-
mony upon the subject, it tended to show
that the deceased neither stopped, looked, aor
listened before crossing the track, and Uicr»
was nothing to contradict it. Assumii^
however, that these witnesses, tboufh uneoa-
tradicted, might have beoi mistirm, mad
that the iury were at liberty to disregard
their testimony and to find that he did eon-
ply with the law in this particular, we are
confronted by a still more serious dlAcolty
in the fact that if he had looked and listened
he would certainly have seen the engine hi
time to stop and avoid a collision. He was
a young man. His eyesight and hearinc
were perfectly good. He waii acquainted
with the crossing, with the general ehar-
acter of the country, and with the dcptk
of the excavation noade by the highway
and the railway. The testimony is prae-
tically uncontradicted that for a distance of
forty feet from the railway track he eoold
have seen the train approaching at a dis-
tance of about 300 feet, and as the train was
a freight train, going at a speed not exceed-
ing twenty miles an hour, he would have hdsd
no difficulty in avoiding it. When it appears
that if proper precautions were taken they
could not have failed to prove effectual, tW
court has no right to assume, especially in
face of all the oral testimony, that such pre-
cautions were taken. The comments of Mr.
Justice Field in Chicago, R. /. t£ P. RaOromi
Company v. Houston, 95 U. 8. G97, 702 [24:
542, 544], are pertinent in this oonnectioe:
"Negligence of the company's employees in
these particulars" (failure to whistle or ring
the bell ) ''was no excuse for negligence on her
part. She was bound to listen and to look
before attempting to cross the railroad tr
in order to avoid an approaching train,
not to walk carelessly into the piaoe of , _
sible danger. Had sne used ber senses, she
could not have failed both to hear and to
see the train which was coming. If she
omitted to use them, and walked thought-
lessly upon the track, she was guilty *of eiil*{SII]
pable negligence, and so far contributed to
her injuries as to deprive her of any right
to complain of others. If, using them, the
saw the train coming and yet undertook to
cross the track, instead of waiting for the
train to pass, and was injured, Ute conse-
quences of her mistake and temerity camiet
be cast upon the defendant."
If, in this case, we were to discard the evi-
dence of the three witnesses entirely, there
would still remain the facts that the deceased
approached a railway crossinff well known to
him ; that the train was in full view ; that*
if he had used hi? senses, he could not have
failed to see it; and that, notwithstanding
this, the accident occurred. Judging fmoi
the common experience of men. there can be
but one plausible solution of the problem
how the collision occurred. He did not look;
or if he looked, lie did not heed the wan-
ing, and took the chance of crossing the
track before the train could reach him. la
either case he wa^^ clearly guilty of contriba-
tory negligence.
174 U. iL
UsiTBD Btatbb y. Eoalx^
834-880
The cases in thio oourt relied upon by the
plaintiffs are all readily distingnisnabley
eitlier by reason of the proximity of obstruc-
tions interfering with the view of approach-
Ln^ teains, confusion caused by teains ap-
proaching simultaneously from opposite di-
rections or other peculiar circumstances
tending to mislead the injured party as to
the existence of danger in crossing the track.
Upon the whole, we are of opinion that the
testimony tending to show contributory neg^
licence on the part of the deceased was so
condusive that nothing remained for the
jury, and that the defendant was entitled to
an instruction to return a verdict in its fa-
Tor. The disposition we have made of this
question renders it imnecessary to express
am opinion upon the instruction as to dam-
The judgment of the oourt below must
therefore he reversed, and the cause remand-
ed to the Circuit Ck>urt for the District of
Washington, with directions to grant a new
The Chief Justice and Mr. Justice
dissented from the opinion of the court.
UNITED STATES, Appt.,
V,
JOHN KRALL.
CSee 8. C. Beporter's ed. 385-801.)
Judgment, when not findL
A judgment of the circuit court of appeals In an
action by the United States, adjudging that
defendant had acquired a yalld right to the
waters of a non-naylgable stream, wholly on
the public domain, as against the plaintiff,
subject to the appropriation thereof by a
military reservation, and remanding the cause
to a lower court for further proceedings. Is
not a final judgment for the purposes of an
appeal to this court, as It leayes the actual
rights of the parties to be settled by the lower
court, where defendant alleges that more
water was taken to the reservation than Is
required, and used for other purposes, and
this question remains to be determined.
[No. 216.]
Argued and Submitted April S, 1899. De-
cided May 15, 1899,
APPEAL from the United States Circuit
Court of Appeals for the Ninth Circuit
to review a decree of that court rerersing a
decree of the Circuit Court of the United
States for the District of Idaho and decreeing
that the defendant, John Krall^ had acquired
a valid water right as against the United
States in a stream of water known as Cot-
tonwood Creek, which was non-navigable;
and remanding the cause to said Circuit
Court for further proceedings. Dismissed
for want of juri«diction.
See same case below, 48 U. S. App. 351, 79
Fed. Eep. 241, 24 C. C. A. 643.
The facts are stated in the opinion.
174 V. 8.
Messrs. Cl&arles W. Rnasell and Johm
K. Richards, Solicitor General, for appellant*
Mr, Edcar Wilson for appellee.
*Mr. Justice Wlilte delivered the opinion[888|
of the oourt:
The United States alleged in its bill sub-
stantially as follows :
That in July, 1864, in Boise county, terrl*
tory of Idaho (now Ada county, state of
Idano), a tract of land was duly set aside as a
military reservation for the establishment of
a military post, and that the reservation was
subsequently occupied as such post and so
continued to be used by the government of
the United States, for the purpjose in oues-
tion, up to the time when the bill was filed.
It was alleged, moreover, that flowing across
the reservation was a stream of water known
as Cottonwood creek, which was non-naviga-
ble, but which afforded "an ample supply for
the agricultural, domestic, and practical pur-
poses of the officers and troops of said mili-
tary post, and no more, and that said stream
of water, together with all the uses and priv-
ileges aforesaid, belong to and are tiie property
of plaintiffs; and that from the time of the
occupancv and location of said post, to witj
the montn of July, a. d. J 864, the waters of
said stream have been continually used and
appropriated, and now are used and appro-
priated, for all *agricultural, domestic, and[3861
practical purposes by plaintiff, through ita
said officers and troops.
The bill then averred that at a point oa
said stream above the reservation the defend-
ant, his agents, and employees "are now, and
have been since June, 1804, actually engaged
in wrongfully and unlawfully diverting the
waters of said Cottonwood creek, ana the
whole thereof, from their natural course over
and across the premises hereinbefore de-
scribed. And the said defendant, his agente,
and employees have, since said June, 1894,
been and now are actually engaged in divert-
ing and appropriating the waters of said
stream, and the whole thereof, and prevent-
ing and obstructing the same from flowinj^
in its natural channel across the said mili-
tary reservation, and thereby rendering the
said premises unfit for use and occupancy as
a military poet."
Averring the illegalitv of defendant's acta
in diverting the water from the stream, and
that all the water fiowing in its natural course
was essential for the purpose of the reserva-
tion, the bill asserted the title of the United
States to all the water in the stream, and
prayed that the defendant be enjoined from
appropriating any portion thereof for his use
"as aforesaid." In his answer the defendant
denied that the water drawn off by him de-
prived the reservation of water necessary for
any of ite purposes and on the contrary
charged that there was sufficient water in the
stream to meet the demands, not only of the
water right, which he asserted was vested in
him, but also to supply every demand for wa-
ter which the reservation might need. He
alleged that pursuant to the laws of the ter-
ritory of Idaho, in 1877, he had located a per-
petual water right for five hundred cubio
inches of water, at a point on the stream
1017
3S0-8»U
SUPBEMB COUBT OF THB UNITED StaTKS.
OCX. Tj
abore the place where it flowed through the
reBervation, and that this location of water
right was sanctioned by the laws of the
United States. It was besides averred that
during the years 1S94 and 1895 "one Peter
Sonna, and his associates, whose names are
unknown to this defendant, without defend-
ant's consent, diverted a large amount of the
waters of said stream from the head waters
thereof and above the point on said stream
where plaintiff alleges this defendant has ob-
{MTJstruct^ and diverted the *same, and led the
same through pipes to a reservoir, on said
military post, and that said military post, the
ofScers and troops thereon stationed, have
u«^d the waters so stored in part, and have
permitted large quantities thereof to pass
across said reservation and to be used by the
said Peter Sonna for mechanical and other
purposes/*
A stipulation was entered into between the
parties containing an agreed statement of
facts, which showed substantially this:
That the reservation in question was estab-
lished prior to the initiation by the defend-
ant of his alleged water right ; that "in 1877
the defendant located for agricultural, irri-
gation, and other and domes^tic and useful
purposes, 600 inches of the waters flowing
in Cottonwood creek, and diverted them up-
on the lands adjacent and in the vicinity of
the easterly and southeasterly side of the
military reservation, and has continuously
used, and is now using, such waters, or por-
tions thereof, for agricultural and irriga-
ting purposes ever since that time upon such
la^s. His lands consist of a homestead of
160 acres, a desert entry of 160 acres, and
his wife's desert of about 70 acres; he has
expended between $8,000 and Ji>iO,000 in the
construction of necessary ditches, flumes,
reservoirs, laterals, and other improvements
necessary for the reclamation of such lands,
which were all desert in character, and of a
class known as 'arid lands,' incapable of pro-
ducing crops of fruit without the applica-
tion of water. Bv means of the use of this
' water and the rights claimed under such lo-
cation, he and his grantee have acquired title
to said desert lands, and have been enabled
to cultivate large annual crops of farm pro-
duce annually, and to propagate large or-
chards, which without the water they could
not have done."
The stetement, moreover, indicated the
mode in which the reservation drew its sup-
)ly of water from the stream, some of it
jing taken above the point where the de-
fendant's water right was located, and con-
tained the following:
"On or about the year 1894 one Peter
Sonna and his associates, without the con-
sent of the defendant, went upon the head
waters of said 'Five-Mile Gulch,' one of the
main tributaries of Cottonwood Gulch, and
[888]at sundry points gathered and 'appropriated
the waters of large and flowing spring there
situated, and which are supply springs of
said *Five-Mile Gulch,* and the stream there
situated, and f^>out four miles above the
point of the defendant's diversion, and con-
veyed the waters of said spring by means
of pipes and mains, the latter being common*
1018
bei
ly known as ^-inch pipe,'
tains to the reservoir oedfore
located above the officers' anartcn on tfce
ervation. The reservoir nas a capacity of
about 570,000 gallons. 1^ watcn m
gathered and conducted were and bow art
stored in said reservoir, aad distrdivtad
therefrom from time to time as bcreaftv
shown. A portion of the watera froa tke
spring, if not diverted, would evestailly
flow into Cottonwood creek above ^^— ^
ant's point of diversion.
"The waters stored in the
aforesaid are used for fire porpoees oaly oa
the reservation, and, are also i
through mains about three-quarters mile i
Bois6 City, where they are used ia tlie
ning of a passenger elevator in amt of thr
largest office buildings of the city, for drill-
ing and closet purposes tho^a aad for «»>
mestic [uses] in several dty rendcBeee, aal
in case of danger, for fire purposes, IMrtm^
hydrants located along the line of aad
main."
The lower court concluded that, as X3m
stream waa not navigable and was whoDj as
the public domain, the defendaat kad ■•
right to appropriate any of the waten m
against the United States, and therefoce m-
joined the taking by him of any
from the stream above the reserrati
cept to the extent that license to do so
be given by the commandant of the post
'Tne circuit court of appeals, to whidk t^
cause was taken, referring to Atcitiam «.
Peterson, 20 Wall. 507, 512 [22: 414, 41<];
Baeey v. Gallagher, 20 WaU. 682 [22: 4M]:
Broder v. The Naioma Water d JTw. Com-
pany, 101 U. 8. 274 [25 : 790] ; and Stmr *
Beck, 133 U. S. 541 [33: 761], eoflairf
that the defendant had acquired a valid wa-
ter riffht, even as against the United Stalak
and therefore reveraed the judgmcBt of t^
trial court, and remanded tae eanaa to tlit
court for further proceedinga ia aeeordoM
with the views expresed in its opiaioB. IW
opinion of the court, after atatinf tko rifh
of *the defendant to acquire a water privi-
lege, on public lands of the United Statvt
even as against the United Statee,
as follows:
"His [the defendant's] anpropHatkn
of course, subject to the prior
and use of the waters of the
the government officials for the
the militery post reservation,
sisted of 640 acree of land, and
on the stream in question below the
the appellant's diversion."* ■
It 18 charged in the aasigmncBt of
that the decision of the court of appeals «w
erroneous, first, because it reoofBUpd tte
right of the defendant to aoqtiirt a «s*r^
right as against the United Statea : maA. mt-
ond, because it held that the water ri^ rf
the defendant, which originated after & »
teblishment of the leseitation, eonld diynw
the reservation of water ntceeearr for ito
purposes. This is aseerted to be tM eoo»>
quence of the decree, because H is arfwi
it may be construed as deprivinf tlM fowa^
ment of the riafat to use but a qaaattty if
water which had been previously actnaltv sr
174 V. &
If
lataiti
ISRAJBL y. GAXA.
889'.*i91
ropriated for the use of the reBervation,
bus ^revcntinff it from enjoving the water
Bsential for the purposes of the post, and
endered necessary bv its expansion and de-
elopment. To the first Question the argu-
nent at bar was principally addressed.
Before considering the oAsignments, how-
iver« inre mre met on the threshold of the case
vith the question whether the record is prop-
!rly here, because of the want of finality of
iie judgment rendered by the circuit court
>f appeals. On its face the decree of that
Msurt is obyiously not a final judgment, since
t did not dispose definitely of the issues pre-
lentedy but simply determined one of the le-
^al oaeetions arising on the record, and re-
manded the case to the lower court for fur-
ther proceedings. When the state of the rec-
ord, upon which the state of appeals passed,
is considered in the light of the pleadings
and a^eed statement of facts, it becomes
obyioixB that the decree b^ that oourt ren-
dered was not only not m form, but also
was not in substance, a final disposition of
the oon^royersy. The cause of action al-
lleged in the complaint was the *diyersion of
water by the defendant from the stream, to
the detriment of the re<}uirements of the res-
ervation, by a water right acquired by Uie
defendant after the establishment of the res-
ervation. The agreed statement of facts, al-
though it made it unquestioned tiiat the de-
fendant's asserted water right had been lo-
cated on the stream above the reservation,
after its establishment, also made it equally
cleap that after such location, above the
point where the defendant's water right was
fixed, water had been drawn off and carried
to the reseryation, and there retained in a
reservoir and supplied in part, at least, to
Bois6 City for purposes wholly foreign to the
military post. There was nothing whatever
in the aneed statements of facts by which
it could be determineid whether the amount
of water thus drawn and carried to the post
and used for purposes foreign to its wants
would, if used for the purposes of the post
alone, not have been entirely adequate to sup-
ply every present or potential need. Con-
cluding on the general question of law that
the daendant coald acquire a water right,
as a!;ainst the United States, subject to the
parainoun^ and previous appropriation of the
reservation, the court manifestly, from the
state of the record, was not in a position to
adjudge the rights of the parties without
further proof as to exactly what would be
the situation if water had not, subsequent to
the establishment of the water right of the
defendant, been taken from the sources of
supply above his location and carried to the
reservation and there distributed for other
than reseryation purposes. This condition
of things rendered it therefore essential to
reb;flnd the cause in order that the exact sit-
uation might be ascertained before the rights
of the parties were finally passed upon. The
fact that the decree appealed from was not
finol is moreover conclusively demonstrated
by considering that if on the present appeal
we zbould conclude that the judgment of the
court of appeals was correct, we would be un-
able io dispose of the controversy, and we
174 W. S.
would be obliged, as did the court of appeals,
to remand the case to the bial court for fur-
ther proceedings. The gravamen of the com-
plaint was that the alleged water right of
the defendant had deprived the reservation
of water required for its purposes. *Certain-[891]
ly if on a further trial the proof should es-
tablish that the deficiency of supply at the
raservation arose, not from the drawing off
by the defendant of water covered by his wa-
ter right, but from the act of those who, sub-
sequent to the location of the defendant's as-
serted water right, tapped the sources of the
supply of the stream and carried the water
to the reservation, whence it was distributed
to Boise City, a very different condition of
fact trom that stated in the complaint would
be presented. It follows, from these conclu-
sions, that the judgment below was not final,
and the appeal taken therefrom must be, and
it is, diatntaaed for want of jurisdiction.
* '
•*^R M. ISRAEL, Plff. in Err.,
V.
CliMi i . ' . F. OALE, as Receiver of the El-
mira National Bank.
(See 8. C. Reporter's ed. 891-897.)
Diversion of an accommodation note from Iff
proper use — consideration for its discount.
1. An accommodation note Is not shown to have
been diverted from the use for which It was
given* by disconnting it at a bank at which
It was made payable, merely because the per-
son who obtained it told the maker that he
wanted it for the purpose of a building he
was patting up.
2. A bank which dlscoants an accommodation
note cannot be said to have given no consid-
eration for it because of a large overdraft of
the account of the person from whom It was
taken, when the overdraft was the same day
substantially covered by other credits and
more than the amount of the accommodation
note was snbseqaently paid out on the same
account.
[No. 286 ]
Argued April 25, 26, 1899. Decided May
15, 1899.
IN ERROR to the United SUtes Circuit
Court of Appeals for the Second Circuit
to review a judgment of that court affirm-
ing the judgment of the Circuit Court of the
United States for the Southern District of
New York in favor of the plaintiff, Charles
F. Gale, as receiver of the Elmira National
Bank, against the defendant, George M.
Israel, for the amount of a promissory note.
Affirmed.
See same case below, 45 U. S. iVpp. 210,
77 Fed. Rep. 632, 23 C. C. A. 274.
The facts a^ stated in the opinion.
Mr. Frank SalliTaii Smitliy for plain-
tiff in error:
Robinson's transaction with the bank did
not bind the maker of the note.
The note in suit was without considera-
tion and never had a l^^l inception.
Daniel, Neg. Inst S 174; Wilson v. EUs-
1019
291-898
SupEKMB Cojnn of the United Stateis.
worth, 26 Neb. 246; Boatman ▼. Shaw, 65
H. Y. 822; Arden ▼. Watkins, 3 East, 317;
WilKt T. Freeman, 12 East^ 656; Second
Hat. Bank ▼. J7ou7e, 40 Minn. 390; Spear ▼.
Myere, 6 Barb. 445; WA«(e ▼. Springfield
Bank, 1 Barb. 225; Stewart v. fifmaii, 2
Barb. 559; Youngs ▼. Lee, 18 Barb. 187;
Phomia Ine. Co. v. Church, 81 N. T. 225, 37
Am. Rep. 494; Atlantic Nat. Bank v. Frank"
lin, 55 N. Y. 235.
The question of the bona fides of the bank
was for the jai7.
Canajoharie Nat, Bank v. Diefendorf, 123
N. Y. 191, 10 L. R. A. 678; Voaburgh v.
Diefendorf, 119 N. Y. 357; Kavanagh v.
Wilson, 70 N. Y. 177 ; Joy v. Diefendorf, 130
N. Y. 6 ; Farmers' d C. Nat, Bank v. Noaoon,
45 N. Y. 762.
The note haying been obtained through
fraud and without coneideration, the onus
was upon the holder of showing that the
bank acquired the same in good fkith.
American Emch, Nat, Bank ▼. New York
Belting d Pkg. Co, 148 N. Y. 898; Qra/nt v.
Walsh, 145 N. Y. 502; Nickerson v. Ruger,
76 N. Y. 282 ; Ocean Nat, Bank v. CarU, 55
N. Y. 441; First Nat, Bank y. Qreen, 43
N. Y. 298.
Whether the notice of fraud to the bank,
through its cashier, was actual or construe-
tiye, it is equally antagonistic to the claim
oi fl^>od faith.
Angle y. North Western Mut, L. Ins. Co.
92 U. S. 342, 23 L. ed. 560; Witter y. Sowles,
32 Fed. Rep. 762; Loring y. Brodie, 134
Mass. 453; Peoples Nat, Bank y. Clayton,
68 Vt. 641; Palmer y. Field, 76 Hun, 230;
Garfield Nat, Bank y. ColweU, 57 Hun, 169;
Produce Bank y. Bache, 30 Hun, 351; Re
Carew, 31 Beay. 39.
The bank is chargeable with knowledge of
its cashier.
First Nat. Bank y. Blake, 60 Fed. Rep. 78;
Third Nat, Bank y. Harrison, 10 Fed. Rep.
243; Merchants Nat. Bank y. Tracy, 77
Hun, 443.
Messrs. Martin Carey and Wilson 8.
BisseU for defendant in errcnr.
|W1] *Mr. Justice Wlilte deliyered the opin-
ion of the court:
The reoeiyer of the Elmira National Bank,
duly appointed by the Comptroller of the
Currency, sued George M. Israel, the plain-
tiff in error, on a promissory note for $17,-
000, dated New York, May 14, 1893, due on
demand, and drawn by Israel to the order
of the Elmira National Bank, and payable
at that bank. The defenses to the action
were in substance these:
First. That the note had been placed hj
|MS]Israel, the maker, *in the hands of Dayid C.
Robinson, without any consideration, for a
Sarticullir purpose, and that if it had been
iscounted by Robinson at the Elmira Na-
tional Bank such action on his part consti-
tuted a diyersion from the purposes for
which the note had been drawn and deliy-
ered ; that from the form of the note ( its be-
ing made payable to the bank), from the
official connection of Robinson with the bank,
he being one of its directors, and his per-
sonal relations with the cashier of the bank,
1020
as well as from many other
which it is unnecessary to detail,
was charged with such notiee as ta Ife
yersion of the note by BobiBKi
the bank frcHn being protected
third holder for yalue.
Second. Eyen if the diaeomt ei tke
was not a diyersion thereol from tkc
contemplated by the drawer, tbe
neyertheless subject to the eqoi^
from the want of consideratkm
rael the drawer and Robinson,
though the note may haye been in
counted by the bank, it had in realitj
been taken by the bank for an
debt due it br Robinson. Aad
it is asserted that as the bank had not part-
ed, on the faith of the note, with aoy
consideration, it was not a holder for
and was subject to the eqn
ezistinff between the original nii wt
At the trial the plaintiff offered ia evi-
dence the note, the signature and the ft»-
count thereof being in dfect admitted, mi
then rested its case. The defendant
upon offered testimony which it
t^ded to sustain his defenses. At the
of the testimony the court, over the
ant's exception, instructed a yerdkt ia
yor of the plaintiff. On error to the o
of appeals this action of the trial eovrt ^
affirmed.
Both the assiffnmente of error and the sr>
gument at bar but reiterate and cxpani ta
diyers forms the defenses aboye staled ad
which it is asserted were eujpportcd byen-
dence competent to go to the jury, if the trid
court had not preyented its eonsideratiea If
the peremptory instruction which it yava
The bill of exceptions oontaina ths tartl-
mony offered at the trial, and the sole
tion which arises is. Did the eoort
instruct a yerdict for the plaintiff?
the eyidence it undoubt^rr reenlted tlat
tne note was deliyered by the maker t» H
C. Robinson, by whom it was dliconnlsd M
the Elmira National Bank. It all
lished that Robinson at the time of the
count was a director of the bank,
and frequent dealings with it, that he hift
close business and persoud reletions vitk
the cashier,, and occupied a position of tm^
dence with the other officers and iMisifcai
of the bank. The occasion for the prrag^
the note and the circumstances attendiar t^
same are thus shown by the testimoay el tht
defendant:
*1 reside in Brooklyn. I am lorty^tss
years of age. I am at preeent cngpuM ■
the insurance business. In the noaths d
April and May, 1893, I was employed ia tW
banking house of I. B. Newoomb 4 Ca. ■
Wall street. New York, as a stenogrmphv
and typewriter. I was not then aad aa art
now a man of property. I know D. C 1^
inson. At the time I made this note I M
not reoeiye any yaluable thing or other em-
sideration for the making of it ; I have aew
receiyed any oonsideration for the makiar rf
the note. I had a conyennUioo tiith D C
Robinson at the time of the w**^^ of At
note. He stated to me the object or pniii
for which he desired the noto. Be sail to
174 v. %
1898.
ISRAIL T. GaLB.
898-8116
me that he desired tome accommodation
notes, and he wanted us clerks to make them,
and stated the amount. He said that the
reason he wanted the accommodation note
waa that he had exceeded his line of discount
and could not ^t any more accommodation;
that ho was building a power house up there
(in Elmira) and needed s(»ne money to ac-
complish that purpose, and that it we would
gbn mm these notes it would enable him
to accomplish that. He also added that we
would not be put in any position of paying
them at any time; that he would take care
of them, and save us positive assurance on
that point, and naturally, knovrin^ the man,
and thinking that he was a millionaire, as
he probably was at that time, we had no
hesitation about going on the notes."
There was no testimony tending to refute
these statements or in any way cslculated to
enlarffe or to restrict them.
(8M] *The defense, then, amounts to this: That
the form of the paper and Robinson's relation
with the bank and its officers were such as to
brinff home to the bank the knowledge of
the transaction from which the note arose,
and that such knowledge prevents a recovery
because Robinson, taking the transaction to be
exactly as testified to by the defendant, was
without authori^ to discount the note.
Granting, arguendo, that the testimony tend-
ed to show such a condition of fact as to
bring home to the bank a knowledge of the
transaction, the contention rests upon a fal-
lacy, since it assumes that the note was not
given to Robinson to be discounted, and that
is 00 using it amounted to a diversion fitnn
the purpose for which it was delivered to
him. But this is in plain conflict with the
avowed object for which the defendant testi-
fied the note was drawn and delivered, since
he swore that he furnished the note because
he was told by Robinson that he needed ac-
commodation, that his line of discount on
his own paper had been exceeded, and that
if he could get the paper of the defendant
he would overcome thCs obstacle; in other
words, that he would be able successfully to
discount the paper of another person when
he could not further discount his own. This
obvious import of the testimony is fortified,
if not conclusively proved, by the form of the
note itself, which, instead of being made to
the order of Robinson, was to the order of
the Elmira National Bank. The premise,
then, upon which it is argued that there was
proof tending to show ^at the discount of
the note by Robinson at the Elmira National
Bank was a diversion, is without foundation
in fact. The only matters relied on to sus-
tain the proposition that there was testi-
mony tending to establish that the note was
diverted, because it was discounted at the
bank to whose order it was payable, are un-
warranted inferences drawn from a portion
of the conversation, above quoted, which the
defendant states he had with Robinson when
the note was drawn and delivered. The part
of the conversation thus relied upon is the
statement that Robinson said, when the note
was given, "that he was building a power
house up there (in Elmira) and needed some
money to accomplish that purpose, and if
174 IT. 8.
we would give him these notes it *would[8M9
enable him to accomplish that." This, it is
said, tended to show that the agreement on
which the note was given was not that it
should be discounted at the Elmira National
Bank, but that it should be used by Robin-
son for obtaining money to build the power
house. In other words, the assertion is that
the mere statement, by Robinson, of the
causes which rendered it necessary for him
to obtain a note to be discounted at the El-
mira National Bank had the effect of de-
stroying the very purpose for which the note
was confessedly given. When the real re-
sult of the contention is apprehended its un-
soundness is at once demonstrated. Other
portions of the record have been referred to,
in argument, as tending to show that it could
not have been the intention of the defend-
ant, in givinff the note, that Robinaon should
discount it, out on examining the matters
thus relied upon we find they have no tend-
ency whatever to contradict or diange the
plain result of the transaction as shown by
the defendant's own testimony.
As the discount of the note at the Elmira
National Bank was not a diversion, but on
the contrary was a mere fulfilment of the
avowed object for which the note was asked
and to consummate which it was delivered, it
becomes irrelevant to consider the various
circumstances which *it is asserted tended to
impute knowledge to the bank of the purpose
for which the note was made and delivered.
If the agreement authorized the discount of
the note, it is impossible to conceive that
knowledffe ol the agreement could have
caused the discount to be a diversion, and
that the mere knowledge that paper has been
drawn for accommodation does not prevent
one who has taken it for value from recover-
ing thereon Is too elementary to require ci-
tation of authorihr.
The contention that although it be conced-
ed the note was not diverted by its discount,
nevertheless the bank could not recover
thereon because it took the note for an ante-
cedent debt, hence without actual considera-
tion, depends, first, upon a proposition of
fact, that is, that there was testimony tend-
ing to so show, and, second, upon the legal
assumption that even if there was such tes-
timony it was adequate as a iM^al defense.
*The latter proposition it is wholly unneceB-[396]
sary to consider, because the first is unsup-
ported by the record. All the testimony on
the subject of the discount of the note was in-
troduced by the defendant in his effort to
make out his defense. It was shown, with-
out contradiction, that the note had been dis-
coimted by Robinson at the bank, and that
the proceeds were placed to his credit in ac-
count. It was also shown that for some
time prior to the day of the discount his
account with the bank, to the credit of whidi
the proceeds of the discount were placed, was
overarawn. The exact etate of the account
on the day the discount was made was stated
by the cashier and a bookkeeper of the bank,
and was moreover referred to by Robinson.
On the morning of the discount the debit to
the account of Robinson, hy way of over-
draft, is fixed by the cashier at $35,400, and
1021
89«-4H»
SUFBEliB COUBT OT THB UlTITED STATSS.
by the bookkeeper at $35,000. Bobinaon
made the foUowing etatement; 'The amonnt
of other notee wiped out the oTerdraft and
made a balance." The bookkeeper's state-
ment is as foUows:
'There was an overdraft of $35,000 ajg^ainst
Mr. Robinson upon the books of the buik on
the morning of May the 4th. There were
items coming through the exchanges that
amounted to about ^3,000, and there was a
deposit made of $33,000 to make the over-
draft good. These were to take up the items
that came through the exchanges. I think
that was the way of it. His account would
have been overdrawn that night for about
$60,000 if it had not been for the entry on
the books of the proceeds of these notes."
No other testimony tending to contradict
these statements, made by Uie defendant's
own witnesses, is contained in the record.
They manifestly show that, although at the
date of the discount there was a debit to the
account resulting from an overdraft, near-
ly the sum of the overdraft was covered
hf itesmB oi credit, irrespective of the note
in controversy, and that subsequent to thfi
credit arising from the note more than the
entire sum m the discount was paid out for
the account of Robinson, to whose credit the
proceeds had been placed. With these un-
contradicted facts m mind, proved by the
testimony offered by the defendant, and with
[897] no testimony tending *the other way, it is ob-
viously unnecessary to go further and point
out the unsoundness of the legal contention
relied upon.
Affirmed.
JOHN W. McDonald, as Receiver, Appt,
V,
GEORGE G. WILLIAMS and John B. Dodd.
(See 8. C. Reporter's ed. 897-408.)
When receiver of natianal hank cannot re-
cover hack from a eiockholder a dividend
paid him out of the capital — U. 8. Rev,
Stat. I 5204.
1. A receiver of a national bank cannot re-
cover back from a stockholder a dividend paid
him, not ont of the profits, but entirely out of
the capital, prior to the appointment of the
receiver, when such stockholder receiving such
dividends acted in good faith, believing the
same to be nald oat of the profits made by
the bank, and whra the bank, at the time such
dividend was declared and paid, was solvent.
9. The stockholder by the mere reception of
his proportionate part of such dividend, does
not withdraw any of the capital of the bank
within the meaning of U. 8. Rev. Stat i
6204.
[No. 257.]
Argued April 21, 1899. Decided May 15,
1899.
ON CERTIFICATE from the United States
Circuit Court of Appeals for the Second
Circuit certifying certain questions to this
court for instruction in an action brought by
John W. McDonald, as receiver of the Capital
1022
National Bank, plai
WiUiams and John B.
the banlc, to recover the
dividends received by thcaa bcfim
pointment of a recttver. Fint
ewered in the negative.,
6.
of
Statement by Mr. Jostiee
This suit was commenced in
court of the United States for the
district of New York. It was Imw^fcs kv
the plaintifT, as receiver of the Capital $»
tional Banlc of Lincoln, Nd»rmska,lorthcyv^
pose of recovering from the defendasta. vh»
were stockholders in the bank, the
of certain dividends received by
the appointment of a receiver.
Upon the trial of the
decreed in favor oi the plaintifr far the re-
covery of a certain amount. TVe
appealed from the decree, because h
in their favor, and the plaintiir
from it, because the recovery providcdisr a
the decree was not as much aa be daJaed tr
be entitled ta Upon the s piiMi of ik»
appeal in the circuit court of appeals mt
tain questions of law were preaoted at U
which that court desired the instmetMB «f
this court for their proper decisioe.
It appears from the statement of fads i
by the court that the bank
ment in January, 1893, in
hopeless insolvency, the stockboldera,
ing *the defendants, having been
the full amount of their respective
but the money thus obtained, added t» i^
amount realized from the maeCt. win ast k»
sufficient even if all dividenda paid dana^
the bank's existence were repaia to ^ re-
ceiver, to pay seventy-five per ccat ef At
claims of tne bank's creditora.
This suit was brought to eompel tht n^
payment of certain dividends paid ky tkt
[MLnk to the defendants <m that part el tte
capital of the bank repreeentcd by tk^
stock of the par value of $6,000. oa at
Sound alleged in the bill that each «f md
vidends was fraudulently dedartd mi
paid out of the capital of the bank,
out of net profits.
A list of the dividends aad the
thereof paid by the bank from Jaa«arv. 190
to July, 1892. both inclusive, is ctmiutwi
in the statement, and it is added tfae
sJl dividends, except the last f Jaly !£
1892), were paid to the defendaai 'WiZ^
lams, a stockholder to the aaso^ ^
$5,000, from the organiaatioa of tW hssi
The last dividend was paid to the dtftBdae
Dodd, who bought WUliams'a atDck, aai M
the same transferred to his oiwa aaat Dt^
cember 16. 1891.
When the dividend of Jaauary C \9^
was declared and paid, and when aach saW
?uent dividend, down to and inctudiar ^e^*
891, was declared and paid, thcfe wn m
net profits. The capital of the baak wm »
paired and the dividends were paid «et rf
the capital, but the bank was still sehvtf.
When the dividends of Janoarx aad Jiiv.
1892, were declared and paid there vtf* ■»
net profits, the capital of the bank wm Isrt.
and the bank actuallv insolvcat.
1T4V.1.
J
McDonald y. Williams.
898-401
The defendftiKis, neither of whom was an
aflSoa* or director, were ignorant of the finanr
cmI condition of the bank, and received the
dividends in good faith, relying on the offi-
eers of the bank, and believing the dividends
mrere coming out of the profits.
Upon these facts the court desired the in-
struction of this court for the proper dec!-
fion of the followii^ questions:
First question. Can the receiver of a na-
tional bcmk recover a dividend paid not at
all out of profits, but entirely out of the
oapital, when the stockholder receiving such
dividend acted in good faith, believing the
3 same to be paid out of *proflts, and when the
bank, at tne time sucm dividend was de-
clared and paid, was not insolvent?
Second question. Has a United States cir-
cuit court jurisdiction to entertain a bill in
equity, brought by a receiver of a national
l>ank against stockholders to recover divi-
dends which, as claimed, were improperly
paid when such suit is brought against two
or more stockholders and embraces two or
raore dividends, and when the objection that
tbere is an adequate remedy at law is raised
by the answer?
Mr. Edward Winslow PaiKe» for ap-
pellant:
The capital of a national bank is a trust
fund for the security of the creditors, and
can be followed into the hands of any volun-
teer.
Story, Eq. Jur. 9 1252; Mumma v. Pota-
mac Co. 8 Pet. 286 (8: 947) ; Wood v. Dum-
tner, 3 Mason, 308 ; Vose v. Orani, 15 Mass.
522; Spear v. Orant, 16 Mass. 14; Curran v.
Arkansas, 16 How. 307 (14:707); Scam-
tnon V. Kimball, 92 U. S. 362 (23:483);
Sawyer v. Hoag, 17 Wall. 610 (21:731);
Barings v. Ddbney, 19Wall.l (22: 90) Finn
▼. Brown, 142 U. S. 56 (35: 936) ; Barileii
V. Drew, 57 N. Y. 587; TinkJ^m v. Borsi,
31 Barb. 407; 2 Kent, Com. 307; HolUns v.
Brierfield Coal and Iron Co. 150 U. S. 371
(37: 1113) ; Wabash, 8t. L. d P. R, Co, v.
Ham, 114 U. S. 587 (29:235); Fogg v.
Blair, 133 U. S. 534 (33: 721) ; Hawkins v.
Glenn, 131 U. S. 319 (33: 184).
The statutes of the United States make
the payment of a dividend out of the capi-
tal of a national bank illegal and ultra
vires,
U. S. Rev. Stat. 9 5204; California Bank
V. Kennedy, 167 U. S. 362 (42: 198) ; Tre-
vor V. Whitworth, L. R. 12 App. Oas. 409;
Stringer's Case, L. R. 4 Oh. 475; Holmes v.
Newoastle-upon-Tyne Freehold Abattoir Co,
L. R. 1 Oh. Div. 682 ; Ouinness v. Land Corp,
of Ireland, L. R. 22 Oh. Div. 349;
Macdougall v. Jersey Imperial Hotel Co. 2
Hem. k M. 528; Re Alexandra Palace Co,
L. R. 21 Oh. Div. 149 ; Qooch v. London Bkg,
Asso. L. R. 32 Oh. Div. 41; Ooregum Gold
Min, Co, V. Roper [1892] A. 0. 125; Trevor
v. Whitworth, 12 App. Oas. 409.
Messrs, Tl&eodore De Witt and George
O. De Witt for appellees.
10] *Mr. Justice Peekham, after stating the
f^cts, delivered the opinion of the court:
It will be noticed that the first question
174 U. S.
is based upon the facts that the bank, at
the time tne dividends were declared a&d
paid, was solvent, and that the stockholders
receiving the dividends acted in good faith
and believed that the same were paid out of
theprofits made by the bank.
The sections of the Revised Statutes
which are applicable .to the questions in-
volved herein are set forth in the margin.f
*The complainant bases his right to recover[400]
in this suit upon the theory that the capital
of the corporation was a urust fund for the
payment of creditors entitled to a portion
* thereof, and having been nai^ in the way[401]
of dividends to the shareholaers that portion
can be recovered back in an action of this
kind for the purpose of paying the debts of
the corporation. He also bases his rights to
recover upon the terms of section 5204 of the
Revised Statutes.
We think the theory of a trust fund has
no application to a case of this kind. When
a corporation is solvent, the theorv that its
capital is a trust fund upon which there is
any lien for the payment of its debts has in
fact very little foundation. No a^eneral cred-
itor has any lien upon the fund under such
circumstances, and the right of the corpora-
tion to deal with its property is absolute so
long as it does not violate its charter or the
law applicable to such corporation.
In Cfraham v. La Crosse d M, Railroad
Company, 102 U. S. 148, 161 [26: 106, 111],
tSec. 5199. Tbe directors of any association
maj, semlannnally, declare a dividend of so
much of the net profits of the association as
they shall judge expedient ; bat each association
shall* before the declaration of a dividend, carry
one-tenth part of its net profits of the preceding
half year to its surplus fund until the same
shall amount to twenty per centum of Its capi-
tal stock.
Sec. 5204. No association, or any member
thereof, shall, during the time it shall continue
its banking operations, withdraw, or permit to
be withdrawn, either In the form of dividends
or otherwise, any portion of its capital. If
losses have at any time been sustained
by any such association, equal to or ex-
ceeding Its undivided profits then on hand, no
dividend shall be made ; and no dividend shall
ever be made by any association, while It con-
tinues Its banking operations, to an amount
greater than its net profits then on hand, de-
ducting therefrom Its losses and bad debts. All
debts due to any associations, on which interest
is past due and unpaid for a period of six
months, unless the same are well secured, and
In process of collection, shall be considered bad
debts within the meaning of this section. But
nothing in this section shall prevent the reduc-
tion of the capital stock of the association under
section fifty-one hundred and forty-three.
Sec 5205. (As amended by section 4 of the
act approved June 80, 1876, 19 Stat, at L. 68
[chap. 166]). ICvery association which shall
have failed to pay up Its capital stock, as re-
quired by law, and every association whose
capital stock shall have become impaired by
losses or otherwise, shall, within three months
after receiving notice thereof from the Comp-
troller of the Currency, pay the deficiency In
the capital stock, by assessment upon the share-
holders pro rata for the amount of capital
stock held by each ; and the Treasurer of the
United States shall withhold the interest upon
all bonds held by him In trust for any such a»-
1023
401--i08
SUPBEME Ck>UBT OF THK UlflTKD STATES.
On
ft was said by Mr. Justice Bradley, in the
oourse of his opinion, that "when a corpora-
tion becomes insolvent it is so far civiUy
dead that its propertv may be administered
as a trust fund for tne benefit of its stodc-
holders and creditors. And a court of equi^,
at the instance of the proper parties, will
{408]*then make those funds trust funds, which,
in other circumstances, are as much the ab-
solute properly of the corporation as any
man's properly is his."
And in Hollina t. Brierfield OoaX d Iron
Company, \50 V. S. 371, 383 [37:1113,
1116], it was stated by Mr. Justice Brewer,
in delivering the opinion of the court, and
speaking of the theory of the capital of a cor-
poration being a trust fund, as follows :
"In other words, and that is the idea
which underlies all these expressions in ref-
erence to 'trust' in connection with the
proper^ of a corporation, the corporation is
an entity, distinct from its stONdcholders as
from its creditors. Solvent, it holds its
property as any individual holds his, free
from the touch of a creditor who has ac-
quired no lien; free also from the touch of a
stockholder who, though equitably inter-
ested in, has no legal right to, the property.
Becoming insolvent, the equitable interest of
the stocUiolders in the property, together
with their conditional liaoility to the cred-
itors, places the properly in a condition of a
trust, first for the creditors and then for
the stockholders. Whatever of trust there
is arises from the peculiar and diverse
equitable rights of the stockholders as
against the corporation in its ^
and their conditional llabili^ to iU
ors. It is rather a trust in the
tion of the assets after ponnriirioa by
of equity than a trust atfafhing to tke
eriy, as such, for the direct benefit of
creditor or stodcholder.*'
And also:
"The oiRetn of a eorporatioB act ia a
dary capacity in respect to its property is
their hands, and may be called to mm
for fraud, imt, sometimes, even inere ]
agement in respect thereto; bat, as
itself and its creditors, the eorpora^aoa
simply a debtor, and does not boid its
erty in trust, or subject to a lies !■
favor, in any other sense than docs an
dividual debtor. That is certainly tW
eral rule, and if there be any aastp^
thereto they are not presented by say W
the facts in this ease. Neither the
ency of the corporation, nor the
of an iUegal trust deed, nor the fsili
collect in full all stodc *subseriptioM, Mr tZii
together, gave to these simple e
itors any lien upon the property of the
poration, nor charged any direct tnt<
tt
on.
Othei eases are cited in tlie
holding the same doctrine.
In Wabash, 8t. L. d P. SaUnm^
V. Ham, 114 U. S. 587, 594 [29: 83S,
Mr. Justice Gray, in deUvering the
of the court, said:
"The property of a eorpormtioD is
sociatIoD» upon notification from the Comptrol-
ler of the Cnrrency, until otherwise notified by
him. If any such association shall fall to pay
np its capital stock, and shall refuse to go in-
to liquidation, as provided by iaw» for three
months after receiving notice from the Comp-
troller, a receiver may be appointed to close up
the business of the association, according to the
provisions of section fifty-two hundred and
thirty-four: And provided. That if any share-
holder or shareholders of such bank shall ne-
glect or refuse, after three months' notice, to pay
the assessment, as provided in this section, it
shall be the duty of the l>oard of directors to
cause a sufficient amount of the capital stock
of such shareholder or shareholders to be sold
at public auction (after thirty days' notice shall
be given by posting such notice of sale in the
office of the bank, and by publishing such no-
tice in a newspaper of the city or town in which
the bank is located, or in a newspaper published
nearest thereto), to make good the deficiency,
and the balance, if any, shall be returned to
such delinquent shareholder or shareholders.
Sec. 6140. At least fifty per centum of the
capital stock of every association shall be paid
In before It shall be authorised to commence
business ; and the remainder of the capital stock
of such association shall be paid in instalments
of at least ten per centum each, on the whole
amount of the capital, as frequently as one In-
stalment at the end of each succeeding month
from the time It shall be authorised by the
Comptroller of the Currency to commence busi-
ness ; and the payment of each instalment shall
be certified to the Comptroller, under oath, by
the president or cashier of the association.
Sec. 5141. Whenever any shareholder, or his
assignee, falls to pay any Instalment on the
stock when the same is required by the preced-
1024
ing section to be paid, the directors of
soclatlon may sell the sto^ of
shareholder at public aoctloa, _
three weeks' previous notice thetvof la a
paper published and of general tircmimim »
the city or county where the ssiii IsilM li h>
cated, or if no newspaper Is pnbUabed to mai
city or county, then In a newspaper psMUM
nearest thereto, to any person wbs will pay tte
highest price therefor, to be not less thas tSi
amount due thereon, with the ezpeases ef sA«»
tisement and sale : and the excess. If say. *t£.
be paid to the delinquent shareboMcr. If m
bidder can be found who will pay for
the amount due thereon to the siirliri
the cost of advertisement and sale. tW
previously paid shall be forfeited to „
elation, and such stock shall be soM as tW 6
rectors may order, within six Bsoatks tnm tte
time of such forfeiture, and If not aoU It m^
be canceled and deducted from tho capttai icvd
of the association. If any sack eaaatacas
and reduction shall reduce the capital «f th* »
soclatlon below the minimum of capital n^si ^
by law, the capital stock shall, wtthia Uir?
days from the date of soch caacrlaUoA fe* a
creased to the required aoftoimt : la drfaaT tf
which a receiver may be appointed. ><.tMffif
to the provisions of section flTty-cwo hwutnt
and thirty-four, to close op the bvslacas ■( t^
association.
Sec 5151. The shareholders of
banking association shall be
responsible, equally and rataMy. aad a«( «*
for another, for all contracts. dc6ta. sad ei^i^
ments of such assoclatloa. to the ext««i ^ U*
amount of their stock therein, at the
thereof, in addition to the amoaat
such shares. (The balance of this
immaterial.)
174 V.1
laM.
McDoHALD Y. Williams.
40a-4U5
less a trust fund for the payment of He debte,
in the sense that when the corporation is
lawfully dissolved and all its business wound
up, or when it is insolvent, all its creditors
are entitled in equity to have their debts
paid out of the corporate property before
any distribution thereof among the stock-
holders. It is also true, in the case of a cor-
poration as in that of a natural person, that
any conveyance of property of the debtor,
without authority of law, and in fraud of
existing creditors, is void as against them."
These cases, while not involving precisely
the same question now before us, show there
is no well-defined lien of creditors upon the
capital of a corporation while the latter is
a solvent and going concern, so as to per-
mit creditors to question, at the time, the
disposition of the property.
The bank being solvent, although it paid
its dividends out of capital, did not pay tnem
out of a trust fund. Upon the subsequent
insolvency of the bank and the appointment
of a receiver, an action could not be brought
by the latter to recover the dividends thus
paid on the theory that they were paid from
a trust fund, and therefore were liable to be
recovered back.
It is contended on the part of the com-
plaint, however, that if the assets of the
bank are impressed with a trust in favor of
its creditors when it is insolvent, they must
be impressed with the same trust when it is
solvent ; that the mere fact that the value of
the assets of the corporation has sunk be-
low the amount of its debts, although as yet
unknown to anybody, cannot possibly make a
new contract between the corporation and its
creditors. In case of insolvency, however,
•4] * the recovery of the money paid in the ordinary
Tiding what particular act shall be evidence
of insolvency or bankruptcy, it may be and
it sometimes is quite difficult to determine
the fact of its existence at any particular pe-
riod of time. Although no trust exists while
the corporation is solvent, the fact which
creates the trust is the insolv6n(^^, and when
that fact is established at that instant the
trust arises. To prove the instant of crea-
tion may be almost impossible and yet its
existence at some time may very easily be
proved. What the jM*ecise nature and extent
of the trust is even m such case may be some- .
what difficult to accurately define, but it
may be admitted in some form and to soma
extent to exist in a case of insolvency.
Hence, it must be admitted tiiat tne law
does create a distinction between solvency
and insolvency, and that from the moment
when the latter condition is established the
legaliln^ of acts thereafter performed will be
decided by very different 'principles than* in[M5]
a case of solvencv. And so of acts com-
mitted in contemplation of insolvency. The
fact of insolvency must be proved in order
to show the act was one committed in con-
templation thereof.
Without reference to the statute, there-
fore, we think the right to recover the divi-
dend paid while the bank was solvent woiQd
not exist.
But it is urged on the part of the com-
plainant that section 5204 of the Revised
Statutes makes the payment of a dividend
out of capital illegal and ultra vires of the
corporation, and Uiat money thus paid re-
mains the property of the corporation, and
can be followea into the hands of any volun-
teer.
The section provides that "no association,
1
way without condition is allowed, not on the of »nv member thereof, shall, during the
ground of contract to repay, but because the ' time it shall continue its banking operations.
money thus paid was in equity the money
of the creditor ; that it did not belong to the
bank, and the bank in paying could bestow
no title in the money it paid to one who did
not receive it bona fide and for value. The
assets of the bank while it is solvent may
clearly not be impressed with a trust in
favor of creditors, and yet that trust may
be created by the very fact of the insolvency
and the trust enforced by a receiver as the
representative of all the creditors. But we
do not wish to be understood as deciding
that the doctrine of a trust fund does in
truth extend to a shareholder receiving a
dividend, in good faith believing it is paid
out of profits, even though the bank at the
time of the payment be in fact insolvent.
That question is not herein presented to us,
and we express no opinion in regard to it
We only say that if such a dividend be re-
coverable, it would be on the principle of a
trust fund.
Insolvency is a most important and mate-
rial fact, not only with individuals but with
corporations, and with the latter as with the
former the mere fact of its existence may
ebange radically and materially its rights and
obligations. Where there is no statute pro-
174 IT. S. U. S., Book 43.
withdraw, or permit to be withdrawn, ei-
ther in the form of dividends or otherwise,
any portion of its capital." What is meant by
this language? Has a shareholder with-
drawn or permitted to be withdrawn in
the form of a dividend any portion of
the capital of the bank when he has sim-
ply ana in good faith received a dividend de-
clared by a board of directors of which he
was not a member, and which dividend he
honestly supposed was declared only out of
profits? Does he in such case within the
meaning of the statute withdraw or permit
to be withdrawn a portion of the capital?
The law prohibits the making of a dividend
by a national bank from its capital or to an
amount greater than its net profits then on
hand, deducting therefrom its losses and bad
debts. The fact of the declaration of a divi-
dend is in effect the assertion by the board of
directors that the dividend is made out of
profits. Believing that tiie dividend is thus
made, the shareholder in |2rood faith receives
his portion of it Can it be said that in thus
doing he withdraws or permits to be with-
drawn any portion of the capital of the cor-
poration? We think he does not withdraw
it by the mere reception of his proportionate
66 lOM
405-408
Supreme Coubt of the United States.
Oct. Tbm,
part of the dividend. The withdrawal was
initiated by the declaration of the dividend
by the board of directors, and was consum-
mated on their part when they permitted
nayment to be made in accordance with the
[4M>0]^eclaration. We think this language *im-
plies some positive or affirmative act on the
part of the shareholder by which he knowing-
IV withdraws the capital or some portion
tnereof, or with knowledge permits some act
which results in the withdrawal, and which
might not have been so withdrawn without
* his action. The permitting to be withdrawn
cannot be founded upon the simple receipt of
a dividend under the facts stated above.
One is not usually said to permit an act
which he is wholly ignorant of, nor would
he be said to consent to an act of the commis-
eion of which he had no knowledge. Ought
it to ^»e said that he withdraws or permits
the withdrawal b^ ignorantly, yet in entire
^ood faith, receiving his proportionate part
of the dividend? Is each shareholder an ab-
jolute insurer that dividends are paid out of
profits? Must he employ experts to exam-
ine the books of the bank previous to receiv-
ing each dividend? Few shareholders could
make such examination themselves. The
shareholder takes the fact that a dividend
has been declared as an assurance that it was
declared out of profits and not out of capi-
tal, because he knows that the statute pro-
hibits any declaration of a dividend out of
capital. Knowing that a dividend from cap-
ita would be illegal, he would receive the
dividend as an assurance that the»bank was
in a prosperous condition and with unim-
pairea capital. Unda* such circumstances
we cannot think that Congress intended by
the use of the expression ''withdraw or per-
mit to be withdrawn, either in the form of
dividends, or otherwise," any portion of its
capital, to include the case of tne passive re-
ceipt of a dividend by a shareholder in the
bona fide belief that the dividend was paid
out of profits while the bank was in fact
solvent. We think it would be an improper
construction of the language of the statute
to hold that it covers such a case.
We are strengthened in our views as to
the proper construction of this act by refer-
ence to some of its other sections, 'tne pay-
ment of the capital within a certain time Is
Provided for b;^ sections 5140 and 5141. Sec-
ion 5151 provides for the individual respon-
sibUity of each shareholder to the extent of
his stock at the par value thereof in addi-
tion to the amount invested therein. (These
shareholders have alreadv been assessed un-
{40T]ier *this section). And section 5205 pro-
vides for the case of a corporation whose
capital shall have become impaired by losses
or oihertoi9€, and proceedings may be taken
by the association against the shardiolders
for the payment of i£b deficiency in the capi-
tal within three months after receiving no-
tice thereof from the Comptroller. These
various provisions of the statute impose a
very severe liability upon the part of holders
of national bank stock, and while such pro-
visions are evidently imposed tor the purpose
102A
of securing reasonable aaiety t»
deal with the banks, W9 may
say, in view of this wbola BjtUm of liiUi-
ty, that it is unoeeesaarr, aad that it wwM
be an unnatural eonstmefioa of fke kspufi
of section 5204 to htAd ihmt ia a castsKka
this a shareholder, by tlie reeeipi of a 4m-
dend from a solvent bank, kad witUnn «
permitted to be wttlidr»VB ai^ portioB if ni
capital.
We may concede that tlie dliwilms vks i^
dared the dividend under waA etiemitae-
ces violated tlie law, and that their set «■§
therefore illegal, but the reesptka d tti
dividend hj the shareholder in good kiA, m
mentioned in the questloiiy was^a wafi
or designedly improper act. Seaee thf »
bility of the sharaiolder shoold not ke »
larged bv reason of the eonduet of the 4ir»
tors. They may have rendered thtMaiw
liable to prosecution, but tlie liability if tkr
shareholder is different in matk a esse; aat
the receipt of a dividoid under the dreB-
stances is differott frcnn an act whiek mtif
be said to be generally illegal, sac^ tt tk
purchase of stodc in one netionsi bask W o-
other national bank for an investncit mm-
ly, which is never proper. Firgt JlMiimd
Bank of Concord v. aauMma, Reeeiwtr, j^
decided [174 U. S. 364, oale 1007].
The declaration andjpayment of a 4iiiU
is part of the course of boainess of thoc m-
porations. It is the thing for whi^ i«iy ■»
established, and its payment is looked for ■
the appropriate reemt of the bosioeM vk^
has been done. The preeumptioB of }tpi^
attaches to its declaration and papMH, ^
cause declaring it is to assert that it is pin-
ble out of the profits. As the fUhde hm
Srovided a remeay under section 520S far d»
npairment of the capital, which iecMa tk
case of an impairment produced by tkt pif
mcnt of a dividend, *we think the psyaftCi
and receipt of a dividend under the mw-
stances detailed in the question eertiM ^
not permit of its recovoy back bj a leuiw
appointed upon the subsequent iasohwct 4
the bank.
The facts in the various English esMi dud
by counsel for complainant are » MCMf
unlike those which exist in this case tkst m
useful purpose would be subserred ky s f^
erence to tbem. Not one holds tkst s t**-
dend declared under such facts as tki* <■«
assumes can be recovered hmtk in sack m
action as this.
We answer the first qnesuoa ia the m^
tive.
The second question relates to the jv^
diction of a court of eouity over aa Ktw*^
this nature. It is evident that tte ssi^*
was propounded to meet the ease oi a i^
firmative answer to the first qnertioa
In that event the second would n^sin is
answer. As we answer the first qam* '^
the negative, and the second qnestioB «•
scarcely touched upon in the arfanest *
think it unnecessary to answer it ii srdr i»
enable the court below to proceed ^J^
ment in the case. The firtt qmmiim ev *
eeriifMl in the negativ.
tS98.
Btonb y. FARMBBa* Bahk of Ebntuckt.
409-411
SAMUEL 1L STONE, Auditor, ei al., AppU.,
V,
FARMERS' BANK OF KENTUCKY.
FARMERS' BANK OF KENTUCKY^ Appt.,
V.
SAMUEL H. STONE, Auditor, et al
(Bee 8. C Reporter** ed. 409-412.)
Bea judicata a$ to town.
An adjudication that an irreyocable contract ex-
lata which precludes the enforcement of a tax
law In conflict with the contract Is ret judi-
cata as to an attempt to enforce such tax law
In succeeding years against the parties to
•nch an adjudication, but it is not rea judicata
as to those who were not parties thereto.
[Noe. 385, 886.]
Argued February 28, March t, $, 1899, De-
cided May 16, 1899.
APPEALS from & decree of the Circnit
Court of the United States for the Dis-
trict of Kentuclnr in a suit in equity brought
by the Farmers'^ Bank of Kentud^ against
Samuel H. Stone, auditor of that state, and
others constituting the state board of valua-
tion and assessment, et al., decreeing that a
certain adjudication constituted res judicata
as to the city of Frankfort, the county of
Franklin, the city of Henderson, and the coun-
ty of Henderson, preventing the collection
of certain taxes, but did not constitute such
ree judicata as to the defendants the county
of Scott and the city of Georgetown. De-
cree, so far as it ^ranted relief against the de-
fendants other than the county of Scott and
the city of Georgetown, affirmed by a divided
court ; and so far as it adjudicated in favor
of defendants the county of Scott and the
city of Georgetown, affirmed.
See same case below, 88 Fed. Rep. 987.
Statement by Mr. Justice Wliltet
These appeals were taken from a decree
rendered in a suit in equity brought by The
Farmers' Bank of Kentucky against Samuel
H. Stone, Auditor, Charles Finiey, Secretary
of State, and G. W. Long, Treasurer of the
Commonwealth of Kentucky, constituting a
State Board of Valuation and Assessment;
the Board of Councilmen of the City of
Frankfort; the County of Franklin; the City
of Henderson ; the County of Henderson ; the
City of Georgetown : and the County of Scott.
The object of the bill and of an amended and
supplemental bill was to restrain the val-
nation of the franchise of the complainant
under the provisions of a revenue act of
Kentucky, enacted November 11, 1892, as
also the certification of such valuation and
the collection of taxes thereon for the years
1896, 1896, 1897, and 1898.
It was averred in the bill that the com-
£lainant was chartered on February 16, 1850,
:> endure until May 1, 1880; and that in
174 U. 8.
and by the fifteenth section of the charter oi
complainant it was provided as follows:
"It shall be the duty of the cashier of the
principal bank, *on the 1st day of July, 1851, [410]
and on the 1st day of July in each succeed-
ing year during the continuance of this
charter, to pay to the treasury of this com-
monwealth fiity (50) cents on each one
hundred doUars of stock held and paid
for in said bank, which shall be in full
for all tax or bonus: Provided, That no tax
shall be paid until said bank goes into oper-
ation: And provided further. That the tax
or bonus hereby proposed to be imposed on
each share of stock m this bank, or such as
shall hereafter be imoosed on each share,
is hereby set apart and forever dedicated to
the cause of education on the common school
system; and that whenever the same, or any
{>art thereof, shall be diverted otherwise by
egislative enactment, said bank shall then
be exonerated from the payment of any tax
or bonus whatever."
It was further averred that on March 10,
1876, the charter of the bank was extended
to ^y 1, 1905, bv the following enactment:
"Sec. 1. That the charter of the Farmers'
Bank of Kentucky as amended be extended
for the period of twenty-five (25) years from
the termination of its charter as therein
fixed: Provided, That said charter and
amendments shall be subject to amendment
or repeal by the general assembly by general
or special acts: And provided further, That
whilst the privileges and franchises so grant-
ed may be changed or repealed, no amend-
ment or repeal shall impair other rights pre-
viously vested."
It was then averred that after the exten-
sion of tho charter, in consequence of an at-
tempt of the county of Franklin to coUect
a tax from the bank for county purposes, un-
der the authoritv of an act of Kentucky
Eassed in 1876, which statute, it was alleged
y the bank, was in violation of the charter
exemption of the bank, the complainant
brought, and carried to a successful termina-
tion in 1888, in the court of appeals of Ken-
tucky, a suit to enjoin the county named
from collectinff the taxes complained of. The
judgment rendered was pleaded as rea judi-
cata.
The enactment, on May 17, 1886, of a law,
commonly denominated as the Hewitt act, re-
lating to the taxation ol *banks, was next[411]
statea in the bill. An acceptance of the
terms of that act was averred, which it was
elaimed constituted an irrevocable contract
with the complainant. It was next alleged
that on November 11, 1892, the l^slature
of Kentucky passed a revenue act which sub-
lected banks in the state to county and munic-
ipal taxation, and to a much greater rate of
taxation than was provided In the Hewitt
act. 0>mplainant then pleaded as res judicata
judgments rendered in 1895 and 1896 in its
favor by courts of the state of Kentucky, in
suits brouffht by the bank to enjoin attempts
to collect mm it alleffed franchise taxes un-
der the supposed auuiority of the revenue
act of 1802. The defendants, who were par-
10S7
411-418
Supreme Court of the United Staiss.
ties to the suits in question, were averred
to be the county of Franklin and the sheriff
of that county; the board of councilmen of
the city of Frankfort ; the city of Henderson ;
and the county of Henderson and its sheriff.
The several decrees, it was alleged, conclu-
sively established that the acceptance of the
Hewitt act constituted an irrevocable con-
tract with the bank as respected taxation,
and that the revenue act of 1892, in certain
particulars, imnaired such contract, and in
so far as it did so was in violation of the
GonBtitution of the United States and void.
Certain o) the defendants filed pleas to the
jurisdiction. All the defendants demurred
to the bill, and some filed answers, to which
plaintiff filed replications. The demurrers
and nleas were overruled, and the cause was
heara upon the pleadings and attached ex-
hibits. On January 21, 1898, a final decree
was entered sustainins the claims of res judi-
cata made in the bill, and granting the re-
lief prayed for so far as respected the assess-
ment, certification, and collection of fran-
chise taxes for the benefit of the defendants
the board of councilmen of the city of Frank-
fort, the county of Franklin, the city of Hen-
derson, and the county of Henderson. It was
held that by the judgments relied upon by
complainant it had been conclusively adjudi-
cated as to those defendants that the Hewitt
act constituted an irrepealable contract, and
that the provisions of the revenue act of
1892 in conflict with that act impaired the
terms of such contract, and were void. 88
[412]Fed. Rep. 987. *The decree adjudged that as
to the defendants the county of Scott and the
city of Georgetown, who were found not to
have been either parties or privies to the rec-
ords and decrees constituting res judicata,
that no irrevocable contract had been estab-
lished, by judgment or otherwise, and as to
those defendants the bill was therefore dis-
missed. From the decree thus entered both
parties appealed to this court.
Messrs, Ira Julian, W, E. Julian, L. L.
Bristow, J, C. B. Sehree, W, 8, Taylor, At-
torney General of Kentucky, T. H, Crockett,
and James H, Polsgrove for Samuel H.
Stone, et al.
Messrs. John W. Rodman and W, 8*
Prior for Farmers' Bank of Kentucky.
[41S] *Mr. Justice White, after making the fore-
going statement, delivered the opinion of the
court:
llie decree below, so far as it granted the
relief prayed as sjndnst the defendants other
than tne city of Georgetown and the county
of Scott, is affirmed by a divided court. The
decree, so far as it adjudicated against the
complainant and in favor of the defendants
the city of Georgetown and the county of
Scott, Uiose defendants not having been par-
ties or privies to the judgments pleadea as
res judicata, must be affirmed upon the au-
thority of the decision in Citizens* Savings
Bank of (hoenshoro v. City of Owenshoro and
A. M. C. Simmons, Taw Collector [173 U.
S. 636, ante, 840].
And it is so ordered.
1028
SAMUEL H. STONE, Anditer, H at, l^po,
r.
BANK OF COMMRKCR
(See & C Reporter's ed. 412-AXL}
Invalid agreement a$ to ahidimf the remt -^
a test suit in retation to
of city attorney — when esioppei
arise from payment of iamet dmiismi tt
sue as ground for estoppeL
1. The agreement of the cowlwliiiri §1 Ot
sinking fund of the dty of I^oaisrlDc a4 tm
attorney of the dty with eertals boki.
companies, etc.. indodlng the Ba^ •<
merce, that the rights of tboee
to certain limitations of t^-ntitm
ahide the resolt of test aalts to he
was heyond the power of sach
and attorney, and invalid : aad the 4tam €
the test suit brooght in pursoaaoe •< wtA
agreement is not res judietUm mm t» that at
actnally parties to the record.
2. A city attorney whose duties by stttvii at
to give legal advice to the dty oAeos mi
hoards, and to proeecnte and defead siriti tar
the dty, has no power to Mad the dtj li
such an agreement.
8. The payment of the mooey for tam te !li
commissioners of the •tiiMi>y tmmA
to such agreement, not exceeding the
really legally doe. althoogh dlapated. dsa mi
estop the dty of LonisvlUe tnm MMtai
the invalidity of sndi agreetacat er to 1^
rights, nor make the deme la wmA
res judicata in favor of the bank.
4. The bank not having beea legally
by the payment of the money doe fv
there is no basis for aa
equity for a decree relleviag It
taxation.
S. The omission to ane formed no
an estoppel, aa it must be Mmvmtd chit tto
bank knew the agreement to be tBTaUA rim
being no dispute as to the facts aai m b»
representations made.
[Na 362.]
Argued February t8, March t, 3, IM 1^
oided May IS, 1S$9,
A
PPEAL from a judgment of the Omi
Court of the United SUtes for tht Iht-
trict of Kentucky decreeing that the Raat d
Commerce, plaintiff in an action afua*
Samuel H. Stone, auditor, #t al., it catitM
to the benefit of the decision in the ca« i^
the LouisviUe Ba9Uemf Compemy v.
son, under which its right to be tsxti
the Hewitt law, and not otherwise » «*
judicata, and its shares of stock tsMmpt trm
all other taxation. Re versed, and esft i*'
manded, with inatructiona !• fi— iw ^
suit.
See same caae below, 88 Ted. Bc^ SM.
Statement by Mr. Juttioe Feshlis«»
•The bUl in this caae was AM la 1»? ^.04
the Bank of Commeree, a ctti»a tad n^
dent of the city of LonisrOle in the ftstt if
Kentucky, for the purpoat of ubUisif i>
injunction restraining the dcfcaduti n«
aoseoeing the complainant emd ftem ("^"^
log or attempting to coUeet aay taxc* ki«4
898.
Stohe ▼. Bank of Oommbbcb.
4ia-416
tpon the aMessment spoken of in the bill,
Jid for & final decree establishing the con-
mct right of the complainant to be taxed
n the metiiod prescribed by the act of May
.7, m6, known as the Hewitt act, the terms
)f wluch it alleged it had accepted. The
>ill sought to perpetually enjoin the defend-
inte from assessing the franchise or prop-
erty of the complainant in any other man-
ler than under that act. The material pro-
risions of the Hewitt act are pet out in the
>pinion of the court, delivered by Mr. Jus-
tice White, in the case of the Citizona' Sav-
ings Bank of Otoenahoro, Plaintiff in Error,
7. City of Otoenahoro, 173 U. S. 636 [ante,
S40].
In 1891 Kentucky adopted a new Ck>nsti-
tution, section 174 of which, providing for
the taxation of all property in proportion to
its value, is also set forth in the above-cited
case.
The legislature of the state in 1892 passed
an act in relation to the taxation of banks
and other corporations which was in con-
flict with the Hewitt act, and provided for
taxing the*banks in a different manner from
that act, and also subjected the banks to lo-
cal taxation, the total being much more on-
erous than that enforced under the Hewitt
act.
The complainant was incorporated under
an act of the legislature of Kentucky ap-
proved February 10, 1865, and it had ail the
powers granted by that act and the several
amendments thereof as alleged in its bill.
There were various other banks in the city
of Louisville which also alleged that they
had accepted the terms of the Hewitt act,
and bv reason thereof had a valid contract
with the state that they should be taxed only
under the provisions of that act.
The complainant alleges in its bill that
early in the year 1894 a demand was made
on the part of the defendant the city of
Louisville, based upon the act of 1892 and
the ordinance adopted in pursuance thereof,
for the payment of a license tax equal to
four per cent of its sross receipts into the
sinking fund of the city. The banks denied
their liability to pay any tax other than that
provided in the Hewitt act, and hence arose
the differences between tiie city and the
banks.
No litigation had been commenced for the
purpose of testing the questions at issue be-
tween the city and the banks, although ne-
gotiations looking to that end had been in
progress between the city attorney of Louis-
ville and the members of the sinking fund
board, on the one hand, and the counsel for
.the various banks and trust companies on
the other. There is set forth in the bill of
the complainant the action of the sinking
fund board as follows:
Sinking Fund Office, Feb'y 13, 1894.
A oommitt^, consisting of Messrs. Thomas
L. Barrett, Jolm H. Leathers, and Greorge W.
Swearingen, appeared before the board on be-
half of the banks who are members of the
Louisville clearing house, and stated that it
was the purpose of said banks to resist the
payment of the license fee demanded of them
174 U. S.
under the license ordinance approved Jan*
uary 29, 1894, on the ground that said banln
were not legally liable to pay the same, but,
in order to save the sinking fund *from any[416]
embarrassment occasioned by their refusal
to pay said license fee, the banks, with two
or three exceptions, were willing to enter in*
to an arraiigement whereby they woiQd pay a
part of the amount demanded of them and
lend the sinking fund the balance thereof, to
be repaid, with interest at four per centum
per annum, if it was finally deciaed and ad-
judged that the banks were not liable to pay
saicT license fees.
After discussion, the president was, on mo-
tion of Mr. T^ler, seconded by Mr. Summers,
authorized to enter into the following ar-
rangement with the different banks, trust
and title companies who will be subject to
the payment of the license fees if the license
ordinance is finally adjudged to be valid and
enforceable:
First. To accept from each of said banks
and companies a payment equal to the differ-
ence between the amount they now pay to
the state for state taxes and the amount they
would be required to pay for state taxes un-
der the provisions of what is known as the
''Hewitt bill." This sum shall be an actual
payment, not to be repaid under any drcum-
stanoes, but its payment shall not in any
manner or to any extent prejudice the banks
or companies paying it or be taken as a
waiver of any legal right which they hav«
in the premises.
Second. In addition to making the above
payments the said banks and companies,
save those selected to test the j|uestion in-
volved, shall each lend to the sinking fimd
a sum which, added to said payment, will
equal four per centum of its gross earnings
during the year 1893, and the sinking fund
will toecute for said loans its obligations,
agreeing to repay the same, with interest at
four per centtun per annum, when and if it
shall be finally adjudged by the court of last
resort that said banks or companies are not
liable to pay the license fee retiuired by the
ordinance aforesaid, but if it is finally ad-
judged that they are liable to pay said li-
cense fee, then the said loan shall be taken
and deemed as a payment of said license fee,
and the obligation to repay the same shall
be void.
Third. The banks or companies selected
to test the question involved will each lend
the sinking fund a sum equal to four per
centum of their g^oss earnings for the year
1893, and *will receive ther^or the obliga-[419]^
tions of the sinking fund as above described.
Fourth. This arrangement is to be entered
into with the understanding that the said
banks and companies will institute without
delay and diligently prosecute such actions
as may be necessary to settle and adjudge
the right and liabilities of the parties in the
premises, and pending such procedings the
sinking fund will not prosecute them or any
of them for doinff business without license.
A true copy. Attest:
0. M. Terry,
Secretary and Treasurer.
1029
416^19
SUPBEMK COUBT OF THE UlCITED STATES.
Following the above, the complainant's bill
eontains what is termed a "stipulation be-
tween the city of Louisville, the commis-
sioners of the sinking fund of tiie city of
Louisville, and the banks, trust and title
companies of the city of Louisville," which
stipulation reads as foUows:
It is agreed between the cit^ of Louisville,
the oonmiissioners of the sinking fund of the
city of Louisville, represented by H. S. Bar-
ker, city attorney, acting under the advice
and by the authority of l£e board of sinking
fund commissioners, given at a regular meet-
ing of said board, and the mayor of the cit^
of Louisville, on the one part, and the vari-
ous banks, trust and title coinpanies of
the city of Louisville, acting by Humphrey
ft Davie and Helm & Bruce, their attorneys,
of the other part:
First. That in February, 1894, it was
agreed between the city of Louisville and the
board of sinking fund commissioners, actins
together in the interest of the said city and
the various banks, trust and title ocxnpanies,
acting through their committee, to wit,
i Messrs. Thomas L. Barrett, John H. Leath-
ers, and George W. Swearingen, and their
eounsel, to wit, Messrs. Humphrey ft Davie
and Helm ft Bruce, that the question of the
liabilitjr of said banks and trust and title
companies to pay municipal taxes, either li-
cense or ad valorem, otherwise than as pro-
vided by the revenue law, commonly known
as the Hewitt bill, should be tested bv ap-
T)ropriate litigation looking to that end.
[^^7] ^Second. In order to effectually test the
question as to all of said companies they
were divided into three classes, it being un-
derstood that all who had accepted the pro-
visions of the said Hewitt bill would fall in
one or the other of the classes named, to wit:
A. Banks whose charters had been granted
prior to 1856.
B. Banks whose charters had been granted
subsequent to 1856.
G. National bonks.
It being understood that the trust and
title companies which had accepted the pro-
visions of the Hewitt bill would fall in dass
B, above named.
Third. In pursuance of that agreement
the sinking fund commissioners caused to be
issued warrants against the Bank of Ken-
tucky, representing dass A, the Louisville
Banking Company, representing class B, and
the Third National Bank,* representing^ class
C, and these banks respectively applied for
a writ of prohibition against the city court
of Louisville proceeding with the hearing,
that being the manner pointed out by i&
eity charter for testing the validity of city
4>rainances.
It was distinctly understood and agreed
at that time, and this agreement was made
for the best interest of all parties to it, that
if any bank in any class should eventually
fail to establish the existence and validity of
the contract which it was claimed was made
under the Hewitt bill, that all of that class
should thereafter regularly and promptly
submit to I he existing laws and pay tneir
taxes; and it was also agreed that if any
1030
bank of any dass should succeed in
lishing a contract and the valid
under the Hewitt bill, that that
empt all banks and ccnnpanias Uli^g vi^
in that dass from the payment of '
cept as provided in the Hewitt bOL
Fourth. On the faith of this
of the banks and companies aforesaid paU
into the sinking fund the amoaats at taaa
claimed against them, under the tcrss sari
conditions named in the minutes of the auk
ing fund commissioners oi Febmsry U
1894, an attested copy of whii^ is
tached as part hereof, but at a later date
in further *rdianoe upon said a|^r '
said banks and companies, ezeept
tuajly involved in tne test caset, paid t^
whole of the amount of taxes
heretes:
rdaiead
against them by the dty of lioaisviQe vitk-
out reservation, until the onertiaa tka
raised should be finally disponea of.
HnmphrcT ft Dafit.
Hdm ft Brace.
For Banks, Trust and Title Onnpaaiei cf At
City of Louisville.
H. S. Barker^ City Att^.
Approved: C. H. Gihsoa
Pres't Ck>m'rs Sinking Fund City «f Ua
A true copy. Attest: Huston Qolsa
Artliitr Potar.
M. McLoi«hfia
The Louisville Banking CompaBy wm ms
of the banks which brought an aeCioa Isr At
purpose of testing the qnestioa of its VtM^
ty to taxation. Tlie diarter of thai «»
pany was granted subsequent to tke jmt
1856, and, in that respect, it was like the ^
fendant bank. It also daimed to haw »
cepted the provisions of the Hewitt aeC h
the litigation which followed, the JjommiSt
Banking Company was adjudged by thi fl>«t
of appeals of CLentucky to have an imprnkt
ble contract throughout its diarter siiiiii
to be taxed under the Hewitt act, aad je4t
ment pursuant to that adjudicatioa wst •-
tered in favor of that company. TW cb»
plainant herein daimed the benefit sf tk
foregoing adjudication, and the cirmii «s«t
allowed it, and gave judgment as follow:
''I. That the complainant is entitled ts tk
benefit of the proceedings taken in the cm*
of the LouisvilU Banking Compmmp v. Jl f
Thompson, Judge, etc., in the JefTeraoa essrt
of common pleas, and the proeeediqgt takm
in said cause on appeal to the ooart d Ap-
peals of Kentucky, wherein the Limhtu*
Banking Company was appellant aad tk
said R. H. Thompson, juoie, etc., asd tit
dty of Louisville were appdees, to th« ■■*
extent as if the complainant had bsaa a fsr
ty to said proceedings. I
•"2. That it is ret fudiemf bctwM t^ 42i|
complainant and the city of LoaisvUW tki:
the complainant is entitled to be taxed iiAr
what is known as the Hewitt leteam ls«
and not otherwise, and it is thenrfore si-
judged, ordered, and decreed that the dslsai
ants Samud H. Stone. Charles FiadWj. is'
George W. Long are perpetnaUy
and restrained from making any as
«.)<»<
under the act of November 11, ISM, or ctrth
fying the same to the dty of Lo«i*TiT1« «9«a
Stonb y. Bahx op Comkbbgb.
41»-48t
ikny righto, properties, or franchlBes, or
•liiLres of stock of the complainant, and that
WLXiy proTlsiona of the Constitution of the
st&'te of Kentucky and any provision of the
Baid. act of November 11, 1892, or of the city
cbArter which may be construed as authoris-
ing -Uie levy or assessment of any tax against
tlie complainant, ito righto, properties, or
franchises, other than is allowed by the said
Se^vitt law, is, during the corporate eodstonce
of the complainanC unconstitutional and
void, and that the complainant and ito shares
of stock are exempt from all other taxation
^wliatooever, except as prescribed in the said
Hewitt law, so long as said tax shall be paid
diiring the corporate existence of complain-
The defendanto appealed directly te this
court from the judgment of the circuit court,
under the provisions of section 5 of ine act
of 1891 (26 Stot. at L. 826) , because the case
involved the application of the Constitution
of the United States, and because a law of
the state of Kentucky was claimed to be in
contravention of that Constitution.
Neaara, Henry Xiaae Stone and William
S. Taylor, Attorney General of Kentucky,
for appellanto.
Messrs, James P. Helm and Helm Bruee
for appellees.
03 *Mr. Justice Peokluun* after stoting the
facto, delivered the opinion of the court:
We have already decided, in Citizens' Ba^
ings Bank of Otoenshoro v. Oity of Owens*
horo, 173 U. S. 636 [ante, 840], that in the
case of a bank whose charter was granted
0]sul»equently to the *yeax 1856, and ^ich
had accepted the provisions of the Hevritt
aot. and nad thereafter paid the tax speci-
fied therein, there was nevertheless no irre-
pealable contract in favor of such bank that
It should be thereafter and during ito corporate
existence taxed under the provisions of that
act. And in the same case we hdd that the
bank was properly toxed under the act of
the legislature of Kentucky passed in 1892.
Unless the complainant is right in ito conton-
tion that it is a privy to the judgment in the
ease of the Louisville Banking Company
(mentioned in the foregoing stotoment) , and
that the question is res judicata in ito favor,
the complainant has failed to make good ito
claim to be exempted from the provisions for
it4 toxation under the act of 1892. The cir-
cuit court has hdd that the complainant was
entitled to be regarded as privy to the judg-
meTit above mentioned in favor of the Louis-
ville Banking Company (88 Fed. Rep. 398),
and that it could therefore avail itoelf of the
Judgment in that case as res judicata,
Tbe sole question to be determined in this
case lit as to the validity and elTect of the
agreement above set forth. The complain-
ant herein was not in fact a party to the
judgment in the Louisville Banking uompany
Case, and it can only obtoin the benefit en
that judgment by virtue of the agreement.
The oonomiseioners of the sinking fund
form a separate and distinct corporation
from the city of Louisville, and no right is
shown to sign or make the agreement for
174 U. S.
itself or to bind the city therel^. The a^pree-
ment is not signed by tht mayor, nor is it
pretended that there was any action on the
part of the general council of the city an*
thorizing the making of the agreemenL It
was signed by the dty attom^f and if ha
had no power to sign on behalf of the city
there is nothing to create any liabilitr on ita
part by virtue of the agreement, unless the
payment of the money therein 8p<^en of
operates by way of estoppel to prevent the
city from setting up the invalidity of such
agreement. The effect of the payment of the
money will be adverted to hereaftor.
Upon ito face there is no agreement even
formally made between the city of Louisville
and the banks of which the complainant
herein is one, unless the signature of the city
*atton^ makes a valid agreement for the[4Sl]
city. When the agreement w^s made no suit
had been commenced by any of the parties;
no litigation in reg^d to mattors in dispute
was pending. Prior to the making of the
agreement it was a question altogether in the
future as to what means shoulabe adopted,
and what suito commenced, for the purpose
of estoblishing the righto of the various par-
ties, as claim^ by them. The question as to
what course should be pursued was not one
of law only. It was also one of policy. The
stipulation actually entered into was of an
adminifrtrative as well as of a legal nature,
involving the administration of &e law re-
garding taxation and the best means of de-
termining the legal questions involved in the
dispute, while at the same time obtoining,
so far as possible, payment of the taxes
claimed by the commissioners of the sinking
fund as due from the various banks and trust
companies. These were questions which an
attomev would have no power to decide, and
concerning which he would have no power to
make any agreement.
An attorney, in his capacity merely as
such, has no power to make any agreement
for his client before a suit has b^n com-
menced or before he has been retoined to
commence one. Before the commencement of
a suit, or the giving of authority to com-
mence one, there is nothing upon which the
authority of an attorney to act for his client ,
can be based. If before the commencement
of any suit an attorney assumes to act for his
principal it must be as agent and his actual
authority must appear, and if it be not shown
it cannot be inferred by comparison with
what his authority to act would have been if
a suit were actually pending and he had in
fact been retained as attorney by one of the
parties. The authority of an attorney com-
mences with his retoiner. He cannot while
acting generally as an attorney for an estoto
or a corporation accept service of process
which commences the action without any au-
thoritv so to do from his principal. This
was directly decided in Starr v. a all, 87 N.
C. 381, and Reed v. Reed, 19 S. C. 548, so far
as regards a personal defendant, but the same
rule would follow in case of a corporation
unless authority to appear were specially
given.
*When an attorney has been retained he has[4S8]
certoin implied powers to act for his client,
1031
422-424
SUPBEMS COUBT OV THK UlCITID STATM.
Oct. Tkxuk,
in a suit actually commeiiced, in the due and
orderly conduct of the case through the
courts. In cases of suits actually pending
he may agree that one suit shall abide the
event of another suit involving the same
question, and his client will be bound by this
agreement. Ohlqueat v. Fartoell, 71 Iowa,
231; North Missouri R. Company v. BiepK'
ens, 36 Mo. 150 [88 Am. Dec. 138] ; Eidam
V. Finnegan, 48 Minn. 53 [16 L. R. A. 507] ;
Oilmore v. American C Insurance Company,
67 Cal. 366; 1 Lawson, Rifi[hts, Rem. & Pr.
f 173, p. 292 ; 1 Thompson, Trials, 9 195.
One case has gone to the extent of holding
the attorney's authority to agree that the
case of his client should labide that of an-
other included his right to asree that the
case should abide that of anouier involving
the same question, although his client was
not a party to that case and had no power
to interfere in its prosecution or defense.
Scarriti Furniture Company t. Moser, 48
Mo. App. 543, 548.
There might perhaps be some doubt about
the correctness of adecision which so extended
the power of the attorney. It would be car-
rying the authority of an attorney & good
way to thus hold. It is not, however, in the
least necessary for us to decide the question
In this case.
All the above cases relate to the authority
ni the attorney after the actual commence-
ment of suit and after the jurisdiction of
the court has attached and the affreementf
made were in the discharge of the duties ow-
ing as between attorney and client, and sub-
let to the supervision and power of the court
itself.
Nothing of the kind exists In the agree-
ment here in question. It is more than a
mere agreement of an attorney to abide the
event of a decision in an actually existing
suit. This agreement was not in the execu-
tion of the general power of an attorney to
decide upon the proper conduct of a suit then
on its way through the courts. It was an
a^eement much more than that, and of a
different nature. As we have said, the ques-
tion to be determined was one of policy as
well as of law; eminently one for the con-
[4SS]8ideration of the city authorities, Its *mayor,
and its general council, aided and assisted
by the advice of the attorney of the city.
But it was a decision of a corporate nature,
and not one to be decided by any but the cor-
poration, and it was one which we think was
oeyond the power of an attorney to make
while acting merely in his capacity ae at-
torney before suit brought and without spe-
cific authority.
We are also of opinion that as city at-
torney he had no greater power to bind the
dty by that agreement than would an at-
torney have in the case of an individual. The
power of an attorney to conduct an actually
existing suit, and in Its proper conduct to
agree to certain modes or conditions of trial,
cannot be enlarged by implication, so as to
embrace a power on the part of an attorney,
befove litigation is existin|if and before he has
been retained to conduct it, to enter into an
agreement of the nature of thie one. It
might be convenient to have such power and
1038
the commencement of a suit and a retaiacr
to defend may be a mere tedmicality, bat thm
power of an attorney depends upon the ao-
thoritv given him to commence a suit or to
defend a suit actually brought, and he has bo
power as an attorney until such fact exist*.
Section 2909, Revised SUtutes of Kea-
tucky, provides that —
''There shall be elected by the eeneralcooa-
cil, immediately upon the assembling of tii«
new board, a city attorney, whose duty H
shall be to give legal advice to the mayor aB4
members of the general council, and all
other officers and m)ards of the city in ihm
discharge of their official duties. If re-
quested, he shall give his opinions in writ-
ing, and thev shall be preserved for refer-
ence. It shall also be his duty to proMcute
and defend all suits for and against the city,
and to attend to such other l^al business at
m^ be prescribed by the general counciL''
We do not think this section gave him the
power to bind the city by the agreement ia
question. He is undoubtedly the retained
attorney of the city in every suit brought
against it, and it would have been his dn^
to take charge of the litigation when it
should arise between the banks and the com-
missioners of the sinking fund or the dty ei
Louisville. That Is, when the suit was com-
menced, the statute operated in plaee *of «^MJ
retainer in case of a personal client. When
suits were commenced against the city it was
his duty to defend them, but he had no power
to appear for the city as a defendant ia a
suit which had not been commenced or to ae*
cept service of process and waive its aenriee
upon the proper officer, without anthority
from that officer. Merely as city attorney,
he had no larger powers to bind his dieota
before suit was commenced than he wdqM
have had in the case of an individual in like
circumstances. There must be something is
the statute providing for the dection or ap-
pointaent of an attorney for a corporatioa
that would give such power: otherwise it
does not exist. We find nothing of the kind
in the statute cited. The supreme court of
New York hdd, at special t^rm. that the
counsel to the corporation of the dty of Kew
York had no greater powers than an ordi-
nary attorney to bind his client. People v.
Mayor, etc, of Keto York, 11 Abb, Fr. 66.
The agreement here In question, it is per*
ceived, is much more extensive than a mere
agreement to abide the event of another
suit, and it is quite plain that it embrace*
more than the attorney had the right to bind
the city to, even if an action liad then been
commenced and the agreement was made ia
that action. However imperative mar have
been his duty to save costs and expen«*es to
the dty, he was not authorized on that ac-
count to enter into agreements of the nature
of this one, where no suits had been com-
menced against the city and the commence*
ment of \raich he had no power to provide for.
Nor do we see that the commiasionera of
the sinking fund were granted any power im
make the stipulation in question; certainly
none to bind the dty of Louisville, (hu at-
tention has not becoi drawn to anv statute
174 U. B.
198.
Stone y. Bank of Cohhbbob.
421-427
iving them po^vier to make an agreement of
lis nature.
Parties dealing with a municipal corpora-
ion are bound to know the extent of the pow-
re lawfully confided to the officers with
horn they are dealing in behalf of such oor-
oration, and they must guide their conduct
ccordingly. Murphy ▼. City of Louisville,
Bush, 189.
Aa a result, we think the stipulation was
ot a valid one, *bindinff either the commis-
ioners of the sinking fund or the city of
lOuisville.
It is contended, however, on the part of
omplainant that the pavment of ike monev
0 tbe commissioners of the thinking fund.,
•ursuant to the provisions of the stipu-
ition and its receipt by them estops the cil^
•f Louisville from assertin^^ the invalid-
ky of the stipulation. The claim of
omplainant on this branch of the case
B in substance that it has tlie right un-
ler the agreement to the benefit of the
udgment m favor of the Louisville Bank-
ng Company as res htdicata in its fa-
'or, because the city, having received the
noney by virtue of the agreement, is es-
opped by that fact from insisting upon its
nvalidity.
The money was paid to the commissioners
>{ the sinking fund and not to the city, which
s a separate and distinct corporation. No
!orporate act on the part of the city is shown
lince the payment which recognizes or ap-
proves it. There is no ratification by the
•ity of Louisville of this unauthorized act of
its attorney. In speaking of the act of the
attorney as unautnorized we do not mean
to reflect in the slightest degree unfavorablv
upon the conduct of the city attorney, whicn
^eerns by this record to have been prompted
solely by a regard for the best interests of
the city and by the most scrupulous good
faith. We speak only of the act as one for
which the law would not hold the city an-
swerable.
But let us look for a moment at the po-
sition occupied by the respective parties and
the facts which surround this alleged estop-
pel upon the city, and for this purpose the
invalidity of the agreement is assumed. The
banks of which complainant was one. at the
time this agreement was entered into, con-
ceded that they were liable to the payment of
taxes under the Hewitt act, and denied that
they were liable to pay taxes under the act
of 1802. The city, on the contrary, asserted
the right to tax under the act of 1892, and
the question became one for judicial decision.
The banks paid the moneys spoken of in the
agreement, and proceedings were inaugu-
rated to test the legal question involved in
the dispute. *It is alleged on the part of the
complainant that the t^es under the act of
1892 were and are greater in amount than
under the Hewitt act, and it is not alleged
or contended that the amount of moneys
paid by the various banks was any greater
than would have been due and payable under
the act of 1892. That is, the banks have in
fact paid no more than they ought to have
paid if they had complied with the provi-
174 U. 8.
sions of the act of 1892. This court has just
decided in the Owenshoro Case (above cited)
that the claim, on the part of the banks, of
an irrepealable contract under the Hewitt
act was not well founded, and that the banks
(so far as concerns that contention) have
been liable to pay taxes under the act of 1892
ever since that act was passed. The com-
plainant now asserts that because the banks
paid the money which they did under the
agreement above mentioned (although such
money was certainly no more than they were
legally bound to pay under the act of 1892)
that tiierefore the city is estopped from set-
ting up the invalidity of this agreement. The "*
result would be that complainant by virtue
of the judgment in the Louisville Banking '
Company Case oould only be taxed under the
Hewitt act for the remainder of its corporate
existence, although the act of 1892 is a per-
fectly vflJid act under which, but for the
judgment above mentioned, the complainant •
womd be liable to much greater taxation
than the Hewitt act provides for. We think
these facts form no basis for the equitable
estoppel claimed by the complainant. The
payment of money by complainant under the
agreement, when it ought to have paid at
least as large a sum under the act of 1892,
but which it refused to pay under that act,
because it denied the validity thereof, we
think is not the basis for an appeal to the*
equitable powers of a court. As a result of
the judicial inquiry, it is seen that the banks
have been at all times liable to pay taxes
under the act of 1892. The fact that they
disputed this liability and paid the money
under an agreement which did not admit the
validity of the act of 1892 forms no basis
for this equitable estoppel, when the fact ap-
pears that the moneys actually paid were
certainly no more than the banks were liable
to pay under *the disputed act. If, however ,[427|
it were found that the banks had paid at any
time an amount greater than they would
have been liable to pay under the act of 1892,
the city, by the passage of the ordinance ap-
proved August 6, 1895, provided a means for
crediting any bank with the amount of such
overpayment. In no way, therefore, has the
complainant been legally damaged by the
payment of the money to the sinking fund.
The only thing that may be said is, that by
virtue of the agreement, the complainant
paid, and the sinking fund received, the
money at the times mentioned, which other-
wise would have been refused; but when we
come to consider that, although the legal
question was in dispute, the right was really
with the city, and the banks were really li-
able to pay taxes under the act of 1892, we
think the payment they then made under
the agreement would form no equitable es-
toppd in favor of complainant. If so, it
would thereby be enabled to secure for itself
the benefit of the plea of res jtidicata, and
would thus prevent the application of the
act of 1892 to it during its corporate exist-
ence. This result would not, in our opinion*
be an equitable one, and as complainant has
not in reality suffered legal injury by the
103a.
427-439
Supreme Court of the United States.
payment of the money, there is no basis for
the support of an estoppel.
An equitable estoppel which is to prevent
the state from receiving the benefit of an ex-
ercise of its power to alter the rule or rate
of tucation for all the time of the existence
of a business corporation should be based
upon the clearest equity. It is fitly denom-
inated an equitable estoppel, because it rests
upon the doctrine that it would be against
the principles of equity and good conscience
to permit the party against whom the estop-
pel is sought to avail nimself of what ii^gnt
otherwise be his undisputed rights. The
payment of money under the circumstances
of this case, not exceeding the amount really
legally due for taxes, although disputed at
the time, does not seem to work such an
equitable estoppel as to prevent the asser-
tion of the otherwise legal rights of the city.
Nor does the fact wat the complainant
bank, upon the execution of the agreement,
[4M]omitted to sue and obtain * judgment against
the city, add any force to the daim of es-
toppel.
The complainant, it must be assumed,
knew the invalidity of the agreement because
of the lack of power on the part of those who
signed it to bind the city or the sinking fund
as a corporation. There was no dispute aa
to facts, and no misrepresentations were
made. The law made the invalidity. Know-
ing the agreement to be invalid, the omission
to sue forms no ground upon which to base
the estoppel. The complainant had no valid
agreement upon which to stand, and if it
<nnitted to sue it was at its own risk. There
would seem to be no reason of aji equitable
nature springing out of the facts herein why
the complainant should not hereafter be
bound to pay the taxes prescribed In the act
of 1892.
We think the judgment of the (Hrouii
Court should he reversed, and the case re-
manded, with instructions to dismiss the
bill, and it is so ordered.
Mr. Justice Harlan and Mr. Justice
Wliite dissented.
CITY OP LOUISVILLB, itpp#.,
V,
BANK OF COMMERCE.
(See 8. C. Reporter's ed. 428.)
9Ume V. Bonk ofOommeroe, ante, 1028, followed.
[No. 363.]
Argued February 28, March ft, S, 1899. De-
cided May 15, 1899.
APPEAL from judgment of the Circuit
Court of the United States for the Dis-
trict of Kentucky.
See same case below, 88 Fed. Rep. 398.
Messrs. Henry Lane Stone and Will-
iam S, Taylor, Attorney General of Ken-
tucky, for appellant.
Messrs. James P. Helm and Helm Bruce
for appellee.
In the above case the same quMtki is im-
volved that has just bc«n determiBed ia S«.
362, [ante, 1028], and there will be a lib
order reversing the judCTicBt asd
the case to the CircaitOovrt witk
to diemiss the bilL
Mr. Justice Har1a»
Wliite dissented.
Mr. Ji
FIDELITY TRUST k SAFETY
COMPANY, Appi^
V.
CITY OF LOUISVILLK.
yACu;«
FIDELITY TRUST k SAFETY
COMPANY, Appt^
V,
SAMUEL H. STONE, Auditor of
counts, et mL
VAOX
LOUISVILLB TRUST COMPANY, l|pC,
V.
CITY OF LOUISVILLB.
LOUISVILLE TRUST COMPANY, Ifpt.
V,
SAMUEL H. STONE, Auditor of PaWei»
counts, et mL
(See 8. a Reporter's ed. 4S»-4n.)
lUegal agreement as to
to which the agreewtent do€» moi
1. The commissioners of tlie rf^M^^
the city attorney of the city of VomSm^ms
no power to make tbe agreement wttk tfet
comnanles, appellants, upon wklck tkv
to establish that they were prlvtce te th
cree In favor of the Louisville
pany, which established, by
reTocable contract sprlAglat fnim tht
act and the want of powec to tmpali
assessing or collecting thm taxas la
versy.
2. No such contract arose from tkat ac
corporations chartered after 1S9C er
charters were extended subeeqacat 1
m ^
urn
year.
[Noe. 400, 407, 406, 400.]
Argued February 28, Ifardk 2. S, 189$. J^
oided May 15, 1899.
APPEALS from decrees of tko Orvrt
Court of the United States for tW Ik»
trict of Kentucky sustaininf dearamrt »
the complaint in each of the abow^^atitU
cases, and dismissing the same; thcv teoc
actions brought by the above aaawJ a^
lants to enjoin the assessment aad
of certain taxes. AtJUrmed.
See same case below, 88 Fed. Btf. 40f.
Statement by Mr. Justice
In these cases the rcspcctiw
panics who are anpellanta, all fov
Kentucky corporations chartered sahM ,
to the year 1866, filed their letpeitiw
Thibd National Bank of Louisvillb v. bTOM^.
4:2U-4«5*J
to anjoin the assessment and collection of
eertain taxes. The want of power to assess
and collect the taxes complained of was in
each bill made to depend upon two substan-
tially identical grounds, which were briefly
First. That a leffislative act of the state
of Kentucky, passea in 1886, and desijpmted
as the Hewitt act, had created an irrevo-
cable contract between the state and the com-
plainants, from which it arose that the taxes
sought to be enjoined could not be assessed
and collected without violating the clause of
the Constitution of the United States for-
bidding impairment by a state of the obliga-
tions of a contract.
Second. That in a suit previously brought
by the Louisville Banking Company, a Ken-
tucky corporation, it had oeen finally decided
by the court of appeals of the state of Ken-
tucky that the act in question (the Hewitt
act) had created in favor of the corporations
accepting its provisions an irrevocable con-
tract, which could not be impaired without
violating the Constitution of the United
l]StateB. It was averred in each of *the bills
that, although the complainants were not
parties to the suit brought by the Louisville
frf^T!l"Ticr Company, they were each, neverthe-
lefls, pnvies to the record and decree rendered
thereu because of a certain agreement,
which, it was averred, had been entered in-
to between th6 complainants, the commis-
sioners of the sinking fund, and the city of
Ix)uisville, through Uie city attorney, from
which the privity relied on was asserted to
have been created. The agreement in ques-
tion was stated in full in each of the bills.
By virtue of the privity thus asserted the
decree rendered in favor of the Louisville
Banking Company was pleaded as establish-
ing conclusively, by the estoppel arising from
the thing adjudged^ the irrevocable nature
of the contract springing from the Hewitt
act and the want of power to impair it by as-
sessing or collecting the taxes m controver-
sy, ^e court below decided that the com-
plainants were not privies to the decision in
the case of the Louisville Banking Company,
because tiiere was such a difference between
the business of a banking company proper
and that of a trust company that neither the
commissioners of the sinking fund nor the
city attorney of the city of Louisville had
lawful power to agree that the liability of
the trust companies to taxation should abide
the result of the case brought by the Louis-
ville Banking Company to test the right to
tax it contrary to the contract which it was
charged the Hewitt act had embodied. Be-
cause of the want of privity held not to ex-
ist, for the reason just stated, the court be-
low decided that the plea of the thing ad-
judged was untenable. On the merits of
the case, the court below held that, as each
of the complainants had been chartered aft-
er the year 1856, subsequent to an act
adopted by the Kentucky legislature in that
year, reserving the right to repeal, alter, or
amend all charters thereafter granted, there
was not an irrevocable contract, and hence
that the levy of the taxes complained of did
174 U. S.
not impair contract oblieations. For these
reasons the court sustuned demurrers to
each of the bills, and diamiaetd them. 88 Fed.
Rep. 407.
Messrs, James P. Hela and Helm Brue$
for the trust companies, appellants.
Messrs, Henry Iiane Stone and WUHam
8, Taylor, Attorney General of Kentucky, for
appellees.
*Mr. Justice Peokham delivered the opin-[Ml]
ion of the court:
It is unnecessary to determine whether the
distinction between the business of a bank
and that of a trust company was such as to
cause it to be illegal to have agreed that the
liability of the .trust companies to taxation
contrary to the* Hewitt act should abide the
result of the controversy as to the Louisville
Banking Company, since we have just de-
cided in Samuel H, Stone, Auditor, et al,, v.
Bank of Oommeroe, No. 362. [174 U. S. 412,
ante, 1028], that» irrespective of any distinc-
tion whidi might exist between the business
of a bank eo nomine and that of a trust com-
pany, the commissioners of the sinking
ftmd and the city attorney were without
power to have made the agreement upon
which the complainants relied in order to
establish that they were privies to the de-
cision in favor of the Louisville Bankins
Company. The plea of the thing adjudged
depending upon the existence of privity he-
ing thus disposed of, there remains only to
consider the alleged existence of an irrevo-
cable contract arising from the Hewitt act
That no such contract arose from that act as
to corporations chaj*tered after 1856, or
whose charters were extended subsequent to
that year, was decided in Oitiaens' Savings
Bank of Ownshoro v. (Hty of Ov>enshoro,
173 U. S. 636, ante, 840. Indeed, the opin-
ion in that case and the opinion announced
in Stone v. Bank of Oommeroe, supra, are de-
cisive against the appellants, who were com-
plainants below, as to every issue which
arises for decision on these records, and tht
deorees helovo rendered are therefore of-
firmed.
THIRD NATIONAL BANK OF LOUISh »3«1
VILLE, Appt,,
V,
SAMUEL H. STONE, Auditor of Public Ac-
counts, et ol.
(See 8. C. Reporter's ed. 432-434.)
Decree, when not res judicata — taaes upon
franchises of nationtU hanks,
1. A decree establishing the existence of an Ir-
revocable contract exempting or limiting the
taxation of a bank for the term of Its orlgl-
nal charter Is not res judicata as to whether
the bank Is subject to taxation after that
charter Is renewed.
2. State taxes Imposed opon the franchises and
property of a national bank, and not upon
the shares of stock In the names of the share-
holders, are Illegal, under XT. S. Bev. Stat. |
6219.
[Na 404.]
1085
4^:-4'M
SuPBEicE Court of thb United States.
Ooi.
Argued February 28, March 2, S, 1899. De-
cided May 15, 1899.
APPEAL from a decree of the Circuit
Court of the United States for the Dis-
trict of Kentucky sustaining the demurrer
and dismissing a suit in equity brought by
the Third National Bank of Louisville, plain-
tiff, a^nst Samuel H. Stone, auditor, et al,,
to enjoin the assessment cd certain taxes.
Reversed, and case remanded for further
proceedings.
See same case below, 88 Fed. Rep. 990.
The facts are stated in the opinion.
Messrs, James P. Helm and Helm Bruce
for appellant.
Messrs, Henry Itane Stone and WiU-
iam 8. Taylor, Attorney General of Ken-
tucky, for appellees.
[482] *Mr. Justice White delivered the opinion
of the court:
The appellant, a banking corporation or-
ganized under the national banking act, and
whose charter was renewed on August 6,
1894, for a period of twenty years, filed its
bill to enjoin the assessment of certain taxes
for the years 1895, 1896, and 1897. The
grounds of relief set out in the original and
amended bills were substantially as follows:
First. That the corporation had accepted
the terms of an act of the general assembly
of the state of Kentucky, denominated as the
Hewitt act, from which it resulted that there
was an irrevocable contract protecting the
bank from all municipal taxation and from
all state taxation except such as was imposed
by the Hewitt act. The provisions of the
Hewitt act thus relied on were fully stated
in Citizens* Savings Bank of Owenshoro v.
The City of ^Owenshoro and A. M. C. Stm-
|483]mofM, Tax Collector [173 U. S. 636], anti),
840. Moreover, it was alleged that on the
18th day of June, 1894, the city of Louisville
having theretofore attempted to collect from
the bank certain license taxes, contrary to
the terms and conditions of the contract cre-
ated by the Hewitt act, the bank commenced
suit to prohibit the collection of said taxes,
and thai these proceedings culminated in a
decree of the court of appeals of the state of
Kentucky prohibiting the collection of the
taxes in question, on the ground that the
bank had an irrevocable contract, arising
from the Hewitt act, which could not be im-
paired. The bill specifically alleged that the
decree thus rendered by the court of appeals
of the state of Kentucky constitutea the
thing adjudged, and by the presumption aris-
ing therefrom established oeyond power of
contradiction the existence of the irrevocable
contract right. In addition the bill alleffed
that the taxes in question were illegal be-
eause they were imposed on the franchise and
property of the bank in violation of the act
of Congress with reference to the taxation of
national banks by the respective states. Rev.
Stat. § 5219. The taxes were, moreover,
averred to be in violation of the act of Con-
Tress, because they were discriminatory, and,
036
in addition, were illegal because they
in certain designated reepeets, icpugmM ti
the Conetitution and laws of the stste d
Kentucky.
An opinion was filed by the eonrt hoUai
that as well in this case as in anotlcr mm
considered at the same time relating to t^
taxes for the years 1893 and 18W
to the bills should be overruled
for preliminary injunctions ^
Fed. Kep. 990. The record, however,
lishes teat, subsequently, on
of the court being directed to the iia
that the term of the original barter s*
complainant had expired in the iatantl
between the levy of taxes for the yean 194
and 1895 (the charter ha^ving been n
and extended on Aiu^ust 6, 1894 k the
entered a decree in the case at bar
demurrers to the original and an
and dismissing the suit. From the
so made this appeal was tnken.
The assertion of an irrevoeabie e
arising from the 'Hewitt met is dispond j^Oi
by the opinion in Citizens' Savings Beak i
The City of (hcenshoro and A. ¥. C. A»
mons, supra. The contention that the pn-
sumption of the thing adjudged fsko tUi
case out of the ruling in that case is «i^
out foundation, because the suit bnni^ ti
prohibit the collection of the taxas mi m
which the judgment relied on was iimkid
related to taxes for years prior to tht a-
piration of the charter and before the «»
was renewed. Indeed, the suit wbenii tk
jud^ent relied upon as constitiitiir ^
judicata was rendered was oommeneed Mn
the expiration of the original charter. Xit-
ifestly, as decided by the court bdov, 1 4^
cree establishing the existence of aa in««*>
cable contract, exempting or liaiitii; tk
bank from taxation for one charter tcr^
ifl not the thing adjudged as to whether tk
bank was subject to taxation durinf i w
period of existence derived from a rew«tl d
its original charter life, for. howefrr ?*^
suasive the reasons supporting the cowMea
that the corporation could not be taxid Ir
ing its original charter. It was obHwff
impossible to have decided that the nme nh
applied to an extension, whirh oalr ttm-
menced after the initiation of the sait'wir^
in was rendered the decree relied cm vt»
stituting res judicata. A que<tion esost k
held to have been adjudged before to ftM»
on the subject could possibly hare tiwa
For these self-evident reav>n«. in Vnr «v
leans v. Citizens* Bank, 167 r. S, ri '«
202], where a plea of res judicete a* ti •
contract right of exemption wa« maiataiv^
after the renewal of a charter, th* "^
eliminated from consideration all the jaiBr
ments which had been rendered prior to tk
period when the amended charter took ^t^
These considerations would rmdrr it w^
essary to affirm the judgment hat for A*
fact that the taxes which it was acmtht k »
join were imposed upon the fraBcfci*** «■
property of the bank and not upon tht thai*
of stock in the names of the sharchoM0«> ^
follows, therefore, that they were iIkt«L ^
9d8. Ia>ui8Villb y. Third Nat. Bank. LomBYiLLK ▼. CinzsNs* Nat. Bank. 484-480
auBe in yiolation of the act of Conjsress.
hjoenshoro yational Bank y. The Oity of
Hoenshoro and A. if. O, Bimmona [173 u.
}. 664], ante 860. T^ decree heloto must
herefore he reversed, and the case be re-
nanded for farther proceedings in oonform-
tj to thia opinion, uid it is so ordered.
CITY OP LOUISVILLE, AppU
V,
THIRD NATIONAL BANK.
(See 8. C. Reporter's ed. 4S8.)
Tawea on franchise of national hank, when U-
legal.
Vaxes such as are In question tn this snit are
illegal, because lerled upon the property and
franchise of the national bank, and not upon
the shares of stock In the names of the share-
holders. Third Nat. Bank v. Stone, No. 404,
mnte, 1036, followed.
[No. 364.]
Argued Fehruary 28, March 2, S, 1899,
Decided May 15, 1899.
APPEAL from a decree of the Circuit
Court of the United States for the Dis-
trict of Kentucky in an action brought by
the Third National Bank holding tha/t the
plaintiff has a contract with the state of
Kentucky under which the corporation and
its shares of stock cannot be taxed at a
greater rate than that prescribed in the Ken-
tucky act of May 17, 1886, etc Decree
whicn restrained the collection of the taxes
affirmed.
See same case below, 88 Fed. Rep. 990.
The facts are stated in the opinion.
Messrs, Henry Iiane Stone and WtlZtom
8. Taylor, Attorney General of Kentucky,
for appellant.
Messrs. James P. Helm and Helm Bruce
for appellee.
^1 *Mr. Justice Wliite delivered the opinion
of the court :
The a{>pellee, the Third National Bank,
filed its bill to enjoin the collection of certain
taxes, relying upon grounds in all respects
like unto those alleg^ in case No. 404, just
decided. There was, however, this difference
between the facts of the latter case and those
arising on this record: In this case the
taxes sought to be enjoined were levied prior
to the renewal of the charter of the bank.
Because of this difference the court below
concluded that the want of power to assess
and levy was conclusively established by the
presumption of the thing adjudged arisiuff
from the decree of the court of appeals of
Kentucky, to which we have referred in case
No. 404. We need not, however, consider the
question of res judicata upon which the court
below based its conclusion, as we have in case
No. 404, just announced, held entirely with-
out reference to the plea of res judicata that
taxes in form exactly like those here in quee-
174 U. 8.
tion were illegal because levied upon the
property and franchise ot tJie bank, and not
upon the shares of stock in the names of the
shareholders. It follows, therefore, that the
decree helow, which restrained' the collection
of the taxes, was oorrect, and H i$ therefore
affirmed.
Cnr OP LOUISVILLE, Appi., [48q
17.
CITIZENS' NATIONAL BANK.
CITIZENS' NATIONAL BANK OF LOUIS-
VILLE, Appt.,
V.
SAMUEL H. STONE, Auditor of Public Ac-
counts, et al,
(See 8. C. Reporter's ed. 486, 487.)
Third Nat, Bank w. Stone, ante, 1036, and
Louisville V. Third Nat Bank, ante, 1037.
followed.
[Nos. 866, 406.]
Argued Fehruary 28, March 2, S, 1899. Do-
cided May 15, 1899,
APPEALS from decrees of the CircuitCourt
of the United States for the District of
Kentucky to the effect that tiie plea of ree ^^
judicata established an irrevocable contract
by virtue of the decree in the case of Third
National Bank v. Oity of Louisville, as to
taxes for years prior to tiie date of the ex-
tended charter, but not as to taxes imposed
after the extension of the charter, because
such taxes were not in controversy when said
suit was tried; and that the Citizens' Na-
tional Bank, seeking to enjoin the collection
of certain taxes^ was without right to relief
in No. 406, but in the first case. No. 366, was
entitled to the relief sought. Decree in No.
366 affirmed, and in No. 406 reversed, and
the last-mentioned case, No. 406, remanded
to the court below for further proceedings.
The facts are stated in the opinion.
Messrs. Henry Lane Stone ajidWilliam
ff. Taylor, Attorney General of Kentucky, for
the City of Louisville, appellant in No. 365.
and Samuel Stone, auditor, appellee in No.
406.
Messrs. jAmes P. Helm and Helm Bruce
for appellee in No. 866, and for appellant in
No. 406.
*Mr. Justice Wliite delivered the opinionl^^l
of the court:
The Citizens' National Bank was organized
on the 8th day of August, 1874, its charter
being stipulated to endure for a period of
twenty years. On April 1, 1894, the charter
was renewed and extended for twenty ^ears.
The bank in these two cases filed its bills to
enjoin the collection of certain taxes on the
ground that by the effect of a statute of the
state of Kentucky, usually referred to as the
Hewitt act, an irrevocable contract had been
entered into between the state and the bank,
from which it resulted that the taxes com-
plained of could not be levied without im-
1037
436-480
SUPREMS COUBT OF THX UNITED STATES.
pairing the obligations of such contract. It
was, moreover, averred that the existence of
this contract had been judicially determined
in a suit between the Third National Bank
and the ei^ of Louisville, to which suit tha
Citizens' National Bank, although not a
party, was a privy because of cerwn agree-
ments alleged to have been made between tl^
city of Louisville and the bank at the time
the suit was brought by the Third Nati<mal
Bank. In consequence of this fact it was
alleged tiiat the existence of the contract
between the Citizens' National Bank and the
[487]9tate hadbeen * judicially determined, and the
decree to that c^ect was pleaded aa res judi-
cata. In addition the taxes in question
were alleeed to be illegal because miposed
upon the franchise and property of the bank,
and because they were discriminatory, and
they were averred besides to be iH^^l under
the state Constitution and laws. The lower
court held that the plea of res judicata
established aji irrevocable contract aa to
the taxes for years prior to the date of
the extended charter, but that the thing ad-
Judged did not conclude that there was an ir-
revocable contract as to taxes imposed after
the date of theextension of the charter, because
such taxes were not and could not have been
in controversy in the cause in which the prior
judgment had been rendered. Upon these
ffrotmds, in the second case, that is. No. 405,
it decided that the complainant was without
right to relief, and in the first case. No. 366,
that it was entitled to the relief sought.
These two cases are in all material respects
identical with the cases of The Third Nation-
al Bank of Louisville v. Samuel H, Stone,
Auditor of Public Accounts, et dl, [174 U. S.
432, ante, 1035], and City of Louisville v.
The Third National Bank [174 U. S. 435,
ante, 1037],which have just been decided. For
the reasons given in the decisions rendered
in those cases it is ordered that the decree
below rendered in No. 365 be, and the same is
hereby, affirmed, and that rendered in No. 405
be, and the same is hereby, reversed, and that
the last mentioned case {vie,. No. 405) be re-
manded to the court below with directions
to take such further proceedings as may be
in conformity to this opinion, and it is so or-
dered.
[488]FiitST NATIONAL BANK OP LOUIS-
VILLE, Appt.,
V.
CITY OP LOUISVILLE.
FIRST NATIONAL BANK OP LOUIS-
VILLE, Appt,
V.
SAMUEL H. STONE, et oL
CBee 8. C. Reporter's ed. 438, 480.)
7am cm franchise or intangihU properly of
national hank.
State taxes Imposed on the franchiaea or tn-
tangible property of a national bank are Il-
legal, and cannot be nnheld as being the
equivalent of a tax on the shares of stock la
the names of the sbareholdera, and therefore
not violating the act of Congre«.
1088
[Nos. 635, 634.]
Argued Fehruary 28, Monk 8; S,
Decided Ifay U, 1899,
APPEALS from deereea of tke
Court of the United Statea Cor tkt
trict of Kentudcy in two
brought by the First Natkaal
ville to enjoin the aasessmeat
of certain taxes, ded
although imposed on the
gible proper^ of the bank,
lent of a tax on the sharea of
names of the shardioldera, and
violate the act of Congreaa.
versed, and the cases remanded
tions for further proceedinea.
See same case bdow, 88 I^d. RepL 499.
The facts are stated in the
Messrs. Jamea P. Kelas
for appdlant.
Messrs. Hemry Itane 8t#me aad
S. Taylor, Attorney General of
for appellees.
property rf
*Mr. JuaUce White delivend tte
of the court:
In these two cases the appelant fiad m
bills to enjoin the assessnoent and ennemi
of certain taxes. The groonda npos vhiek
the prayer for relief in each
were substantiaUy aa follows:
First, that the taxes in
levied upon the franchise
the bsnk, and not upon the aharea of
in the names oi the ^areholdera,
therefore illegal; second, that
were discriminatory, because, aa a
quence of the exemption of ccrtaia
banke from taxation by special covin
property of the bank was taxed at a
rate than other moneyed capital, ta
tion of the act of Congress ; asd, tkird. tktf
the taxes were illegal because not ia
formit^ to the state ConstitatioB
provisions of the state lawa.
The court below decided that, altkovg^ d« '
taxes were imposed *or contemplated tp te 1^
assessed on the franchise or intamrible pvp-
erty of the bank, nevertheless they
equii^ent of a tax on the shares of
the names of the shar^oldcra« mmd
did nc^ violate the act of
moreover held that the remaieiag
were without merit. 88 Fed, Rep^
The law under which the taxes la
were levied is the same cme whidi
sidered in Ofcenshoro yatiomal
tiff in Error, ▼. The Cify of
A. M. 0. Simmons. 173 U. S.
850]. The theory of equivalency
t&e obufl below decreed the
tW
[
was in that case fully examined* aad hM »
be unsound. It follows that the
law rendered in these eaac
It is therefore ordered that said
reversed, and the casea be
lower court with directioaa for
proceedings as may be ia vmicrmUt^ «tt
this opinion. And it ia to ordered.
LOUIBTILLB Y. BANK OF LOUIBVILLB.
4»)HM1
€jm OP LOUISVILLE, Appt.
V,
BANK OF LOUISVnXE.
SAMUEL H. STONB, Auditor, et dk,
V,
BANK OF LOUISVILLB.
<8m 8. C. Beporter*8 ed. 4S9-446.)
rrepealdbU contraei cw to fckvaiioti — ohar-
ter tohioh ia subjeot to the power of the
legialatwre to amend or repeal,
A repealable charter cannot glre rise to an
Irrepealable contract right to an exemption
from, or limitation of, taxation.
;. Where an extended charter of a bank waa
subject to the power of the legislature to
amend or repeal It, conferred by a general law,
no Irrevocable contract limiting the power of
the state to tax can be based upon a claose
tn the original charter limiting Its rate of
taxation.
[Nos. 359, 358.]
trailed February 28, March 3, S, 1399. De-
cided May 15, 1899.
k PPEALS from decrees of the Circuit
jL Court of the United States for the dis-
;rict of Kentucky in an action brought bj
he Bank of Louisyille against the city of
liouisville, and in another action brought hy
lie Bank of Louisville against Samuel M.
Stone, auditor, to enjoin the collection of cer-
ain taxes, deciding that the plaintiff, by vir-
;ue of an agreement referred to in the opin-
on, was a privy to a decree rendered by the
;^ourt of Appeals of Kentucky In a test case,
Lnd that a plea of res judicata was well tak-
^n. Reversed, and oases remanded, with di-
rections to dismiss the suits.
Statement by Mr. Justice Whites
*The Bank of Louisville in these two oases
Sled its bills to enjoin the collection of cer-
tain taxes. The matters to which the bill
in the first case (No. 359) related were cer-
tain franchise taxes for the years 1893 and
1894, the assessment and certification of val-
uation whereof had been made prior to the
Sling of the bill. Those covered by the bill
In the second case (No. 358) were, general-
ly speaking, like those embraced in the pre-
ceding suit, but were for different years —
that IS, for 1895, 1896, and 1897, and by an
amendment the taxes of 1898 were also in-
cluded. These taxes, however, had not been
certified at the time the bill was filed, and
the relief contemplated was the enjoining of
the valuation of the franchise and the certi-
fication of the same for the purposes of taxa-
tion, as well as the subseauent collection of
the taxes to be levied tnereon. Omitting
reference to the averments distinctly relat-
ing to the jurisdiction in equity, the ease
made by the bills was this:
It was alleged that the bank was chartered
on February 2, 1833, to endure until January
1. 1853; that pursuant to an act approved
February 16, 1838, the provisions of whidi
174 U.S.
had been complied with, the charter exist-
ence was extended for nine years; that bv an
act of February 15, 1858, duly accepted by
the bank, its charter privileges were con-
tinued in full force for twentr years from
the Ist of January, 1863; and finally that
by an act of May 1, 1880, which the bank
had duly acceptea, its charter was extended
for twenty years from January 1, 1883. It
was alleged thai by the sixth section of the
original charter it was provided, amons other
thlnffs, that the cashier of the bank ''shall,
on the first day of July, 1834, and on the
same day annually thereafter, pay unto the
treasurer of the state twenty-five cents on
each share held by the stockholders in said
bank, which shall be in full of all tax or
bonus on said bank; provided, that the l^is-
lature may increase or reduce the same; but
at no time shall the tax imposed on said
stock exceed fifty cents on each share held
in said bank." The tax, the bills admitted,
by an act approved February 12, 1836, had
been increased to fifty cents a share.
*In general language, it was averred that[441]
by certain decisions rendered by the courts
of Kentucky in the years 1838, 1869, and
1888, it was held that similar languaf^e to
thai contained in the charter of complainant
constituted a contract preventing a higher
rate of taxation than that provided for in
the charter, and that from all or some of
these decisions it resulted that the extension
of an original charter, under the law of Ken-
tucky, carried with it all the rights and priv-
ileges, including the limit of taxation, con-
tained in the original charter. No decision,
however, prior to 1880, by the Kentucky
court of appeals, was referred to, holding
that the mere grant of a charter, or an ex-
tension thereof, was not subject to repeal,
alteration, or amendment, if such power was
reserved by a general law in force when the.
charter was enacted or the extension was
granted. There was no averment that the
complainant was either a party or a privy
to the suits in which the decisions referrea
to had been rendered.
In both bills it was averred at length that
the general assembly of the state of Ken-
tucky had enacted tne statute known as the
Hewitt act, and that the bank had accepted
its provisions. This act and its acceptimce,
it was asserted, constituted an irrevocable
contract, protected from impairment by the
Constitution of the United States, thus se-
curing the bank against any form of taxa-
tion other than that provided in the Hewitt
act. It was in both bills then declared that
in 1894 the city of Louisville asserting a
right to collect taxes from the bank, in vio-
lation of the contract embodied in the Hewitt
act, for the purpose of testing the right of
the city to do so, an agreement was entered
into between the ccnnnussioners of the sink-
ing fund, the city of Louisville through the
ci^ attorney, and the attorneys of the com-
plainant and of other banks and trust com-
panies, by which representative suits were
to be brouffht, and it was agreed that the lia-
bility of the ccnnplainant to any other taxa^
tion than tiiat imposed by the Hewitt act
should abide the result of tiie test suits in
1039
441-444
SUPBEME COUBT OF THK UlOTBD STATES.
Oct. Ttec
question ; that in compliance with this agree-
ment a suit was brought by the Bank of iLen-
tuckj, which like the complainant had been
originally chartered before 1856, in which
|442]last-named *year an act had been passed in
Kentucky reserving the right to repeal, alter,
or amend all charters subsequently panted,
subject to certain exceptions provided ex-
pressly in the act of 1856, and that this
suit had culminated in a final decree by the
court of appeals of Kentucky holding that
the newitt act was an irrevocable contract,
and that the banks which had accepted it
were not liable to anv other taxation than
that therein specifiea. Averring that the
suit brought by the Bank of Kentucky was
the test suit contemplated by the agreement,
as determining the liability of the complain-
ant to other taxation than that imposed by
' the Hewitt act, the decree in the suit of the
Bank of Kentucky was ijleaded as res judi-
oaia. In addition, the bills asserted that if
the Hewitt act was held by this court not
to constitute an irrevocable contract, then
the complainant was entitled to be restored
to its rights under its charter as extended,
and was consequently not subject to the par-
ticular taxes, the assessing and collection of
which it was the object of the bills to pro-
' rent.
The court below held that the complainant,
by virtue of the agreement refer rea to, was
a privy to the decree rendered by the court
of appeals of the state of Kentucky in favor
of the Bank of Kentucky in the test case in
question, and hence decided that the ^lea of
res judicata was well taken. • From its de-
crees enforcing these conclusions the appeals
in both these cases were taken.
Messrs. Henry Iiane Stone and WiUiam
8, Taylor, Attorney General of Kentucky,
for appellants in both cases.
Msssrs, Alexander Pope Hnmphrey
and (George M, Davie for appellee in both
cases.
f442] *Mr. Justice White, after making the
foregoing statement^ delivered the opinion of
the court :
The unsoundness of the plea of the thinff
adjudged, upon which the lower court rested
its decision, results from the opinion an-
nounced in Stone v. The Bank of Commerce
[174 U. S. 112, ante, 1028], and City of Louis-
viUe V. The Same [174 U. S. 428, ante,
fM3]l034]. It was there held that the ^agreement
of the commissioners of the sinking fund of
the city of Louisville and the attorney of the
city with certain banks, trust companies,
etc., including the complainant bank, that
the rights of those institutions should abide
the result of test suits to be brought, was de-
hors the power of the commissioners of the
sinking fund and the city attorney, and there-
fore that the decree in the test suit in ques-
tion did not constitute res iudicata as to
those not actually parties to the reoord.
Tlie want of foundation for the assertion
that the Hewitt act created an irrevocable
eontract between the complainants and the
city is also disposed of by the decision in The
Citizens' Savings Bank of Owensboro, Plain- '
1040
tiff in Error, v. The Ciijt cf Owemahon mi A.
M. C. Simmons [173 U. S. 636, mmU, 840].
There is no ground for distiognishiag thk
case from the one last referred to. Tme it k
that the original charter of the eompUiBtat
differs somewhat from Uie charter of the Cit-
izens' Savings Bank of Owensboro, inffmtwt
as the charter of the Citisens* Saving* Buk
contained simply a limitation of ^»^*i^ ta
a fixed rate, whilst the charter now in qaci-
tion, although establishing a stated rate, pro-
vided that uie named rate might be redoeal
or increased, but should not be increased h&
yond a mawimum sum. This limit as to Um
power to increase, it has been argued, took
the case out of the reach of the act of 185C
since it was a plain expression of the Itps-
lative intent that there should be no iaenut
beyond the maximum stated.
At Uie time the charter was extended, ii
1880, the act of 1836 had increased the Unit
of taxation fixed by the original charter tt
the maximum therein allowed of fifty eciti
on each share. Conceding, arguendo, tkat
the charter, as thus extended, carried witk
n, infto the new period, the limitation of tax-
ation fixed by virtue of the orinnal dmur
and by the act of 1836 increasing the sa
to fifty cents on each share, neverthdeat thi
case is covered by the decision in the Citi-
zens* Savings Bank of Owensboro, tspra
There is nothing in the extending act ex-
pressing the plain intent of the Icfftslatvt
that the charter as extended should be sot
subject to the repealing power resored bf
the actof 1856. The act of 'extension, UMrv^lUl
fore, was not taken out of the general rak
arising from the act of 1866, that is to isj,
it was not embraced in the exception bcb-
tioned in that act, saving from the power to
repeal, alter, or amend "all charters sad
grants of or to oorporations or ameDdnw^i
thereof" when "the contrary intent be there-
in plainly expressed." No such intoit betas
plainly expressed in the extending act, it ioF
lows Uiat the charter as extendai was iab>
ject to repeal. It is impossible, in ceiH»>
nanoe with reason, to conceive of an imlia-
ited irrepealable contract right when there b
no unlimited irrepealable contract tnm
which the ri^ht can be derived. And yK ta
such conclusion does the reasoning ntuwiri-
ly conduce which asserts that a repealafcb
charter gave rise to an irrepealable oootraeC
riffht. Granting that the extending act ia
substance amounted to a re-enaetmeat ii is
manpr words of the provision found in tke
original charter, such provision as re f artad
be<»Lme but a part of a whole contract w\iA
was subject to repeal. The right to rcpttl
embracing the whole, covered also neeesaarilj
the provisions found in the whole. The lia^
itabon of taxation in the original charter
was during the life of the corporation. If
carried forward by the amendment it was
only for the new period, thsft is dniing the
extended charter. But for all this czteMsi
period the charter was subject to repeal, al
the will of the legislature, and the power la
terminate the charter involred the uwnto
tive right of ending tfaoM stipnlatiom whkk
were onl> to last during the barter. TW
argument that, although the power to ^y^
Stephens t Chetiokeb Nation.
444-447
tlie cK&rter was reserved, the power to alter
the t&xation, without repealmg the charter,
did not arise, is but a form of stating the
proposition which we have already noticed,
and which amounts to the assertion that the
lesser is not contained in the greater power.
We must construe the extending act as a
i^hole, especially in view of the origin and
implied import of acts reserving the power
to repeal, alter, or amend, as fuUy stated in
<Htisens' Savings Bank of Oioenahoro uhi
9upra^ We think that the extending act was
sQl>ject to the reserved power of repeal, free
from limitations inconsistent with the exer-
cise of the right. The elementary general
]rule is that *on questions of exemption from
taxation or limitations on the taxing power,
asserted to aris^ from statutory contracts,
doubts arising must be resolved against the
cdaim of exemption. We cannot imply from
tbe mere presence in the extended charter of
tlie limitaticm of taxation, found in the orig-
inal charter, a restraint on the power to
repeal, alter, or amend, when such restraint
does not flow from the provisions of the ex*
tending act taken as a whole. It results
from Ime fact that the extended charter was
subject to repeal, that the complainant had
no vrref^rocaJbie contract limiting the power
of the etatte to tax. Having no such right,
it, of course, cannot assert that it must, if
the Hewitt act was not an irrepealable con-
tract, be restored to the contract rights ex-
isting at the date of the enactment of the
Hewitt act. The nonexistence of the prior
rig^bt precludes the thought that a restora-
tion could be possible.
From the foregoing reasons it follows that
the decrees heUno rendered toere erroneous,
mnd they must be and are reversed, and the
eases be remanded with directions to dismiss
the bills, and it is so ordered.
Mr. Justice Harlan dissents on the
ground that there was privity, and therefore
fudicaia.
WTLLTAM STEPHENS, Mottie J. Ayers,
Stephen 6. Ayers, Jacob S. Ayers, and
Mattie Ayers, Appis.,
V,
CHEROKEE NATION.
CHOCTAW NATION, AppU
V,
P. R. ROBINSON.
JENNIE JOHNSON et ol., Appts.
V,
CREEK NATION.
CmCKASAW NATION, Appi.,
V.
RICHARD C. WIGOS et al.
(See 8. a Reporter's ed. 445-492.)
1. Congress may provide for the review of the
action of commissions and boards created by
It exercising only quasi Judicial powers, and
can do so in respect to tribal authorities.
174 U. 8. U. S., Book 43. 66
2. The act of Joly 1, 1808, In extending the
remedy of appeal to this court from the Unit-
ed States court in the Indian Territory, is not
invalid because retrospective, nor* an inva-
sion of the Judicial domain, nor destructive
of vested rights, although the decrees of the
latter court were made final by statute, the
expectation of a share in the public lands
and money of the tribe not being such an
absolute righ'^ of property as to prevent their
review by a higher court under subsequent
legislation.
8. The appeal thus granted to this court ex-
tends only to tbe constitutionality or validity
of the legislation aflTecting citizenship or the
allotment of lands In the Indian Territory.
4. An act of Congress is not unconstitutional
because It supersedes a prior treatju
5. Tbe acts of Conf^ress in respect to the de-
termination of citizenship In Indian tribes
are not unconstitutional as impairing or de-
stroying vested rights, as the lands and
moneys of these tribes are public, and are not
held in individual ownership.
[Nos. 423, 453, 461, 496.]
Argued and Suhmitted Fehi-uary 2S, 24, 27,
March 6, 7, «, 1899. Decided May IS,
1899.
APPEALS from judgments of the United
States court in the Indian territory ad-
judicating the rights of the several appli-
cants named in the prooeedinffs in the above-
entitled actions to become and to be enrolled
as citizens of the several tribes of Indians
therein named. Affirmed,
Statement by Mr. Chief Justice Fuller t
^Bj the sixteenth section of the Indian ap-[4461
propriation act of March 30, 1893 (27 Stat,
at L. 612, 645, chap. 209) , the President was
authorized to appoint, by and with the ad-
vice and consent of the Senate, three commis-
sioners "to enter into negotiations with the
Cherokee Nation, Choctaw Nation, Chicka-
saw Nation, the Muscogee (or Cre^) Na-
tion, the Seminole Nation, for the purpose of
the extinguishment of the national or tribal
title to any lands within that territory now
held by any and all of such nations or tribes,
either by cession of the same or some part
thereof to the United States, or by the allot-
ment and division of the same in severalty
among the Indians of such nations or tribes,
respectively, as may be entitled to the sam^
or by such other method as may be agreed
upon between the several nations and tribes
aforesaid, or each of them, with the United
States, with a view to sudi on adjustment,
upon the basis of justice and equity, as may,
with the consent of such nations or tribes of
Indians, so far as may be necessary, be requi-
site and suitable to enable the ultimate cre-
ation of a state or states of the Union which'
shall embrace the lands within said Indian
territory."
The commission was appointed and entered
on tibe discharge of its duties, and under the
sundry civil appropriation act of March 2,
1895 (28 Stat at L. 939, chap. 189). two ad-
ditional members *were appointed. It i8Com-t44T]
monly styled the "Dawes Commission."
1041
447-449
SUPBEliS COUBT OF THX UlflTED StATKS.
The Senate on March 29, 1894, adopted the
following resolution:
"ResoHed, That the oommittee on the
Five Giviliced Tribes of Indians, or any sub-
oommittee thereof appointed by its^ chair-
man, is hereby instructed to inquire into the
present condition of the Five Civilized Tribes
of Indians, and of the white citizens dwell-
ing among them, and the legislation reouired
and appropriate to meet the needs and wel-
fare of such Indians; and for that purpose
to visit Indian territory, to take testimony,
have power to send for persons and papers,
to administer oaths, and examine witnesses
under oaths; and shall report the result of
such inquiry, with recommendations for leg-
islation ; the actual expenses of such inquiry
to be paid on approval of the chairman out
of the contingent fund of the Senate."
The oommittee visited the Indian territory
accordingly, and made a report May 7, 1894.
Sen. Rep. No. 377, 53d Cong. 2d Sess. In
this report it was stated : 'The Indian ter-
ritory contains an area of 19,785,781 acres,
aiKl is occupied b^ the Five Civilized Tribes of
Indians, consisting of the Cherokees, Creeks,
Choctaws, Chickasaws, and Seminoles. Each
tribe occupies a separate and distinct part,
except tiiat the Choctaws and Chickasaws,
though occupying separately, have a ocmi-
mon ownership of that part known aa
the Choctaw and Chickasaw territory, with
rights and interests aa recognized in
their treaties as follows: The Choctaws,
three fourths, and the Chickasaws, one
fourth. The character of their title, the
area of each tribe, together with the popula-
tion and an epitome of the legislation con-
cerning these Indians during &e last sixty-
Ave years, is shown by the report of the oom-
mittee on Indian affaire, submitted to the
Senate on the 26th day of July, 1892" (Sen.
Rep. No. 1079, 62d Cong. 1st Sess.), and so
much of that report as touched on thoee
points was set forth.
The oommittee then save the population
from the census of 1890 aa follows: Indi-
(448] ans, 50,055; colored Indians, colored *c|aim-
ants to Indian citizenship, freedmen, and
colored, wholly or in part, 18,636; Cldnese,
13; whites, 109,393; whites and colored on
military reservation, 804; population of
Quapaw Agency, 1,281 : or a total of 180,182 ;
and said: "Since the taking of the census
of 1890 there has been a large accession to
the population of whites who make no claim
to Indian citizenship, and who are residing
in the Indian territory with the approval <3
the Indian authorities. It is difficult to say
^at the number of this daes is, but it can-
not be leas than 250,000, and it is estimated
by many wdl-informed men as much larger
. than that number and as high as SQOfiW),**
After describing the towns and settlements
peopled by whites, and the character of the
Indian territory, its climate, soil, and nat-
ural wealth, the report continued:
"This section of country wa^ set apart to
the Indian with the avowed purpose of main-
taining an Indian community beyond and
away from the influence of white people. We
f^tipulated that thev should have unre-
1042
stricted self-government aad fnll
tion over persons and nroperty
respective limits, and that wc
them against intmsioai of wkite
that we would not incorporate th
litical organization witnoot thiiir
Every treaty, from 1828 to aad fiwliwtiwg
trealy of 1866, was based oa this
elusion of the Indians froai tka
nonparticipation l^ the whitH a
litical and industrial affairs. Wm
possible for the Indians of tkat
country to maintain their tribal
and their Indian pc^ty, laws,
tion if they wished so to dou Aisd. if
the isolation and exdusiveBeas wii^fct to hi
given to them by our solenni tiftisi m ^r
stroye<L and they are ofemin bgr a
tion of strangers five timet ia
their own, it is not the fault of
nient of the United States^ bat
their own acts in admitting
zenship under their laws aad bj
white people to come within
tion, to become traders,
low professional pursuits.
"It must be assumed ia
Suestion that the Indians
etermined to abandon the policy of
siveness, and to fredy admit whits
within Uie Indian territory, for it
possible that they can intend to
removal of the whits people either by
government of the Umtea Ststss or
own. They must have realised tkaft
their policsy of maintaining aa
munity ismated from the whites
doned for a time, it
The oommittee next referred to iht
white people denominated by tbs
intruders, in respect of whom there had h^
but litUe complaint in other ssetiow sf tks
Indian territory than that of the
Nation; and went on to say:
"The Indians of the Indian
tain an Indian govemmsat, hava
bodies snd executive sad ]adieisl
All controversies betweea Tanisa
disposed of in these local eoorts;
versies between white people aad
not be settled in these eoorts, tat
taken into the oourt of tbs tsiillstj
lished by the United States. T^is
established in accordance with the
of the treaties with the Cboetaws;
saws. Creeks, and Seminoles. bat as
vision seems to hava been atads ia the
with the ChMokees. We thiak it
admitted that there is Just eaam af
plaint among the Indians as to ths ehanrts
of their own courts, snd a good 4mX sf 4a-
satisfaction has been saui esecd as ts As
course of procedure and final detsrmaaiaa
of matters submitted to these ooarls. TW
determinations of these ooorts srs ftasi
so far, the government of the Uaitsd
has not directly interfered with theii
minations. Perhape we dMoId eoDBi
recent case where the Seerstarr sf iht Is*
terior thought it his doty to
prevent the executioa of a anmhar sf O^m^
taw citizens."
The report then rsespitolatsi As M^
L898.
bXEPHBHS ▼. CHBROKBB NATION.
449-4»3
^^ion oonf erring certain jurisdiction over parte
ol tlie Indian territory on the district courta
mi the United States for the western district
of ArkawMie, the eastern district of Texas,
mnd the district of Elansas ; the establishment
of the United Sbites court in the Indian ter-
I itorji the inclusion of a portion of *the In-
dian territoi^ within the boundaries of the
territory ol Oklahoma, and the creation of a
SMW Indian territory, over parts of which the
iurisdiction of the district courts of Ar-
Icaneas and Texas remained; and, for reasons
assigned, recommended the appointment of
-two additional judges for the United States
eourt in the Indian territory, and of ad-
dlUonal commissioners, and that the juris-
diction of the district courts should be with-
drawn*
The matter of schools was considered ; and
finally the question of title to the lands in
the Indian territory; and the committee
■tated:
''As we have said, the title to these lands is
held by the tribe in trust for the people. We
have shown that this trust is not being prop-
erly executed, nor will it be if left to the
Indians, and the question arises: What is
the duty of the government of the United
States with reference to this trust? While
-we have recognized these tribes as dependent
nations, the government has likewise recog-
nized its guardianship over the Indians and
its obligations to protect them in their prop-
Artv and personal rights.
'^In the treaty with the Cherokees, made
in 1846, we stipulated that ibey should pass
laws for equal protection, and for the secur-
ity of life, liberty, and property. If the
tribe fails to administer its trust property
hy securing to all the people of the tribe
equitable participation in the common prop-
erty of the tribe, there appears to be no re-
drefis for the Indian so deprived of his rights,
nnless the government does interfere to ad-
minister such trust.
''Is it possible because the |;overnment has
lodged the title in the tribe m trust that it
is without power to compel tfie execution of
the trust in accordance with the plain pro-
▼isions of the treaty concerning such trust?
Whatever power Congress possessed over the
Indians as semi-dependent nations, or as
persons within its jurisdiction, it still pos-
sesees, notwithstanding the several treaties
may have stipulated that the government
would not exercise such power, and thereifore
Congress may deal with this question as if
there had been no legislation save that which
provided for the execution of the patent to
the tribes.
I] *"If the determination of the question
whether the trust is or is not being properly
executed is one for the courts and not for the
legislative department of the government,
then Congress can provide by law how such
questions shall be determined and how such
trust shall be administered, if it Is deter-
mined that it is not now being properly ad-
ministered.
"It is apparent to all who are conversant
with the present condition in the Indian ter-
ritory that their system of government can-
not continue. It is not only non-American,
174 U. S.
but It is radically wrong, and a chance is
imperatively demanded in the interest of the
Indian and whites alike, and sueh change
cannot be much longer delayed. The situa-
tion grows worse and will continue to srow
worse. There can be no modification of the
system. It cannot be reformed. It must be
abandoned and a better one substituted. That
it will be difficult to do your committee freely
admit, but because it is a difficult task is no
reason why Congress should not at the earli-
est possible moment address itself to this
question."
On Nov. 20, 1894, and Nov. 18, 1895,
the Dawes Commission made reports to Con-
gress of the condition of affairs m the Indian
territory in respect of the manner in which
lands were held oy the members of the tribes,
and of the manner in which the citizenship of
said tribes was dealt with, finding a deplor-
able state of affairs and the general preval*
ence of misrule.
In the report of November 18, 1895, the
commission, among other things, said: ''It
cannot be possible that in any portion of this
country, government, no matter what its
origin, can remain peaceably for any length
of time in the hands of one fifth of the people
subject to its laws. Sooner or later violence,
if nothing else, will put an end to a state of
affairs so abhorrent to the spirit of our insti-
tutions. But these governments are of our
own creation, and rest for their very being
on authority granted by the United States,
who are therefore responsible for their char-
acter. It is bound by constitutional obliga-
tions to see to it that government everywhere
within its jurisdiction rests on the consent
6f the governed. There is already painful
evidence that in some parts of the territory
*this attempt of a fraction to dictate term9[452]
to the whole has already reached its limit,
and, if left witiiout interference, will break
up in revolution."
And the commission, after, referring to
tribal legislation in the Choctaw and Chero-
kee tribes bearing on citizenship, the manipu-
lation of the rolls, and proceedings in In-
dian tribunals, stated: ^The commission is
of the opinion that if citizenship is left, with-
out control or supervision, to the absolute
determination of the tribal authorities, with
power to decitizenize at will, the greatest in-
lustice will be perpetrated, and many good
and law-abiding citizens reduced to oeg-
gary."
And further:
''The commission Is ccmipelled to report
that so long as power in these nations re-
mains in the hands of those now exercising
it, further effort to induce them by negotia^
tion to voluntarily agree upon a change that
will restore to the people the benefit of the
tribal property and that security and order
in government enjoyed by the people of the
United States will be in vain.
"The commission is therefore brought to
the consideration of the question : What is
the duty of the United States government
toward the people, Indian citizens and Unit-
ed States citizens, residing in this territory
under governments which it has itself erected
within its own borders?
1043
452-455
SUFBEMB COUBT OW THB UkITSD St.
Oct. Tarn,
'Vo one conversant with the situ&tion can
doubt that it ia impossible of oontinuance.
It is of a nature that inevitabhr grows worse,
and has in itself no power of regeneration.
Its own history bears testimonj to this truth.
The condition is every day becoming more
acute and serious. It has as little power as
disposition for self-reform.
"Nothing has been made more clear to the
commission than that change, if it comes at
all, must be wrought out by the authority of
the United States. This people have been
wisely given every opportunity and tendered
every possible assistance to make this chance
for themselves, but they have persistently
refused and insist upon being left to continue
present conditions.
"There is no alternative left to the United
[453]state8 but to 'assume the responsibility for
future conditions in this territory. It has
created the forms of government which have
brought about these results, and the contin-
uance rests on its authority. Knowledge of
how the power granted to govern themselves
has been perverted takes away from the
United States all justification for further de-
lay. Insecurity of life and person and prop-
erty Increasing every day makes inunediata
action imperative.
''The pretense that the government is de-
barred by treaty obligations from interfer-
ence in the present condition of affairs in
this territory is without foundation. The
present conditions are not 'treaty conditions.'
There is not only no treaty obligation on the
part of the United States to maintain, or
even to permit, the present condition of af-
fairs in the Indian territory, but, on the con-
trary, the whole structure and tenor of the*
treaties forbid it. If our government is ob-
ligated to maintain the treaties according to
tneiT original intent and purpoee, it is m>li-
Rated to hlot out at once present conditions.
It has been most clearly shown that a restor-
ation of the treaty status is not only an im-
possibility, but if a possibility, would be dis-
astrous to this people and against the wishes
of all, people and eovemraents alike. The
cry, therefore, of Uiose who have brought
about this condition of affairs, to be let alone,
not only finds no shelter in treaty obliga-
tions, but is a plea for permission to further
violate those provisions.
''The commission is compelled by the evi-
dence forced upon them during their exam-
ination into the administration of the so-
called governments in this territory to re-
port that these governments in all their
Dranches are wholly corrupt, irresponsible,
and unworthy to be longer trusted with the
care and control of the money and other prop-
ertv of Indian citizens, much less their lives,
which they scarcely pretend to protect"
By the Indian appropriation act of June
10, 1896 (29 Stot. at L. 321, 339, chap.
398), the commission was "directed to con-
tinue the exercise of the authority already
conferred upon them by law, and endeavor
to accomplish the objects heretofore pre-
ecribed to them and report from time to
time to Congress;" and it was further pro-
vided as follows:
r45Al *"That said commlsafon if further author-
1044
ized and directed to proceed at ohm to
and determine the application of all pa
who may apply to them for dtJunshtp ia
any of said nations, and after radi beariif
they shall determine the right of raeii ^
plicant to be so admitted and mtnOm;
Provided, however. That sudi appUeatioo
shall be made to such commissioiiers withia
three months after the passaffs of this act
"The said commissicm shall dedde all sock
applications within ninety days after ths
same shall be made.
"That in determining all suob applicatioos
said commission shall respect all laws of tte
several nations or tribes, not focoosisteot
with the laws of the United States, and aH
treaties wi^ either of said nationa or tribes,
and shall give due force and effect to the
rolls, usages, and customs of eadi of said
nations or tribes: And provid^d^ further.
That the rolls of citixensiiip of the sercnJ
tribes as now existing are hereby confinned,
and any person who shall daim to be eati-
tied to be added to said rolls aa a dtiicn of
either of said tribes and whose right thereto
has either been denied or not acted upoa, or
any dtizen who may within three mootltt
from and after the passage of thla act desirt
such citizenship, may apply to the legally
constituted coturt or committee designated
by the several tribes for sudi dtianshlp,
and such court or committee diall detennint
such application within thirty d&ys from the
date tnereof.
"In the performance of such duties saii
commission shall have power and authoritf
to administer oaths, to laroe prooeas for aid
compd the attendance of witnesaes, and to
sena for persons and papers, and all deposi-
tions and affidavits and other evidmce in say
form whatsoever heretofore taken where tks
witnesses giving said testimony are dead or
now residSig beyond the limits of said tcr
ritory, and to use every fair and reasoatHs
means within their readi for the pnrpost
of determining the rights of persons daia-
ing such citizenship, or to protect aar of said
nations from fraud or wrong, and the rolli
so prepared by them shall be hereafter bdd
ana considerea to be the true and correct
rolls of persons entitled to the ri|^t« of cit-
izenship in said several tribes: rroviiei.
That if the *tribe, or any person be acgrieredl^H]
with the decision of the tribal anSoritiei
or the commission provided for in this aeC«
it or he may appeal from sudi dedsi<m to Um
United States district court: Provided, heto-
ever. That the appeal shall be taken wttkia
sixty days, and tne Judgment ol the eocrt
shall be final.
"Tliat the said Commission, after the cx>
pi ration of six months, shall cause a cob*
plete roll of dtizenship of each of said na-
tions to be made up from their records, sad
add thereto the names of dtizens whose riglit
may be conferred under this act, and laid
rolls shall be, and are herd>y, made roQi ef
citizenship of said nations or tribes, sohjeot
however, to the determination of the Uattsi
States courts, as provided herein.
"The conunission is herdijf required ta
file the lists of members as ihej finally ap-
prove them with the Oommissiooer of la-
174 v. t.
Stbphbns ▼. Chbkoeeb Natioit.
455-458
lian Affairs to remain there for use as the
inal judgment of the duly constituted au-
LlM>ritie8. And said conmiission shall also
[nake a roll of freedmen entitled to citizen-
ftUp in said trihes and shall include their
names in the lists of members to be filed
vrith the Commissioner of Indian Affairs."
By the act of March 1, 1889, entitled "An
Act to Establish a United States Court in the
Indian Territory, and for Other Purposes"
(25 Stat, at L. 783, chap. 333), a United
States court was established, with a single
1'ud^e, whose jurisdiction extended over the
ndian territorjr, and it was provided that
two terms of said court should be held each
year at Muscogee in said territory on the
first Mondays of April and September, and
such special sessions as might be necessary
for the despatch of business in said court at
such times as the judge might deem expe-
dient.
On May 2, 1890, an act was passed "to
Provide a Temporary Government for the
Territory of Oklahoma, to Enlarge the Ju-
risdiction of the United States Court in the
Indian Territory, and for Other Purposes,"
(26 Stat, at L. 81, 93, chap. 182), which en-
acted "that for the purpose of holding terms
of said court, said Indian territory is here-
by divided into three divisions, to be known
as the first, second, and third divisions;"
the divisions were defined ; the places in each
division where court should be held were
]enumerated; and it was provided that *the
"judge of said court shall hold at least two
terms of said court in each year in each of
the divisions aforesaid, at such regular times
as such judge shall fix and determine."
March 1, 1895, an act was approved, en-
titled "An Act to Provide for the Appoint-
ment of Additional Judges of the United
States Court in the Indian Territory." 28
8tat. at L. 603, chap. 145. The first section
of this act declarea: "That the territory
known as the Indian territory, now within
the jurisdiction of the United States court
in said territory, is hereby divided into three
judicial districts, to be known as the North-
em, Central, and Southern Districts, and at
least two terms of the United States court
in the Indian territory shall be held each
year at each place of holding court in each
district at such regular times as the judge
for each district shall fix and determine.
The Northern District shall consist of all the
Creek country, all of the Seminole country,
all of the Cherokee country, all of the coun-
try occupied by the Indian tribes in the Qua-
paw Indian Agency, and the townsite of the
Miami Townsite Company. . . . The
Central District shall consist of all the Choc-
taw country. . . . The Southern Dis-
trict shall consist of all the Chickasaw coun-
try."
The act provided for two additional judges
for the court, one of whom should be judge
of the northern district, and the other judge
of the southern district, and that the judge
then in office should* be judge of the central
district. The iudges were clothed with all
the authority, both in term time and in va-
cation, as to all causes, both criminal and
civil, that might be brought in said district,
174 U. 8.
and the same superintending control over
commissioners' courts therein, the same au-
thority in the judicial districts to issue writs
of habeas corpus, etc., as by law vested in the
judge of the United States court in the In*
dian territory or in the circuit or district
courts of the United States. The judge of
each district was authorized and empowered
to hold court in any other district for the
trial of an^ cause which the judge of such
other district was disqualified from trying,
and whenever on account of sickness or for
any other reason the judge of any district
was unable to perform the duties of his of-
fice, it was provided that either of the*other[45Tl
judges might act in his stead in term time
or vacation. All laws theretofore enacted
conferring jurisdiction upon the United
States courts held in Arkansas, Kansas, and
Texas, outside of the limits of the Indian
territory as defined by law as to offenses
committed within the territory, were re-
pealed and their jurisdiction conferred after
September 1, 1896, on the "United States
courts in the Indian territory."
By section eleven of this act it was pro-
vided :
"Sec. 11. That the judges of said court shall
constitute a court of appeals, to be presided
over by the jud^e oldest in commission as
chief justice of said court; and said court shall
have such jurisdiction and powers in said In-
dian territory and such general superintend-
ing control over the courts thereof as is con-
ferred upon the supreme court of Arkansas
over the courts thereof by the laws of said
state, as provided by chapter forty of Mans-
field's Digest of the Laws of Arkansas, and
the provisions of said chapter, so far as they
relate to the jurisdiction and powers of said
supreme court of Arkansas as to appeals and
writs of error, and as to the trial and deci*
siou of causes, so far as they are applicable,
shall be, and they are hereby, extended over
and put in force in the Indian territory; and
appeals and writs of error from said court in
said districts to said appellate court, in cri^i*
inal cases, shall be prosecuted under the pr<^
visions of chapter forty-six of said Mans-
field's Digest, by this act put in force in the
Indian territory. But no one of said judges
shall sit in said appellate court in the deter-
mination of any cause in which an appeal
is prosecuted from the decision of any court
over which he presided. In case of said pre-
siding judge being absent^ the judge next
oldest in commission shall preside over said
appellate court, and in such case two of said
judges shall constitute a quorum. In all
cases where the court is equally divided in
opinion, the judgment of the court below
shall stand affirmed.
"Writs of error and appeals from the final
decisions of said appellate court shall be al-
lowed, and may be taken to the circuit court
of appeals for the eighth judicial circuit in
the same manner and under the same regula-
tions as appeals are taken from the circuit
courts of the United States. Said *appellater453i
court shall appoint its own clerk, who shall
hold his office at the pleasure of said court,
and who shall receive a salary of one thou-
1045
468-460
SUFBXICS COUBT GW THE UlOTBD STATBS.
Ooc
sand two hundred dollars per annum. The
marshal of the district wherein such appel-
late court shall be held shall be marshal of
such court. Said appellate court shall be
held at South McAlester, in the Choctaw Na-
tion, and it shall hold two terms in each
year, at such times and for such periods as
may be fixed by the court."
By the Indian appropriaticm act of June
7. 1897 (30 Stat at L. 84, diap. 3). provi-
Bion was made for the appointment of an ad-
ditional judge for Uie United States court in
the Indian territory, who was to hold court
at such places in the several judicial dis-
iricifl therein, and at such times, as the ap-
pellate court of the territory miffht desig-
nate. This judge was to be a member of the
appellate court and hare all the authority,
exercise all the powers, and perform the like
duties as the other judges of the court, and
it was "Provided, that no one of said judges
4hairsit in the hearing of any case in said
appellate court which was decided by him."
By this act of June 7, 1897, it was also
provided:
''That the commission appointed to negotl-
.vte with the Five Civilized Tribes in the In-
dian territory shall examine and report to
Congress whether the Mississippi Choctaws
under their treaties are not entitled to all
the rights of Choctaw citizenship except an
interest in the Choctaw annuities: Pr<h
vided further. That on and after January
first, eighteen hundred and ninety-eight, the
United States courts in said territory shall
have original and exclusive jurisdiction and
authority to try and determine all civil
causes in law and equity thereafter insti-
tuted, and all criminal causes for the punish-
ment of any offense cbmmitted after January
first, eighteen hundred and ninety-eight, by
any person in said territory, and the United
States Commissioners in said territory shail
have and exercise the powers and jurisdic-
tion already conferred upon them by exist-
ing laws of the United States as respects all
persons and property in said territory; and
the laws of tne United States and the state
of Arkansas in force in the territory shall
[459] apply to all persons therein, irrespective *of
race, said courts exercising jurisdiction
thereof as now conferred upon Uiem in the
trial of like causes; and any citizen of any
one of said tribes otherwise qualified who can
speak and understand the English language
may serve as a juror in any of said courts.
"That said commission shall continue to
exercise all authority heretofore conferred
on it by law to n^;otiate with the Five
Tribes, and any agreement made by it with
any one of said tribes, when ratified, shall
operate to suspend any provisions of this act
if in conflict therewith as to said nation:
Provided, That the words 'rolls of citizen-
ship,' as used in the act of June tenth, eigh-
teen hundred and ninety-six, making appro-
priations for current and contingent ex-
penses of the Indian Department and fulfill-
ing treaty stipulations with various Indian
tribes for the fiscal year ending June thir-
tieth, eighteen hundred and ninety-seven,
shall be construed to mean the last authen-
1046
ticated rolls of each tribe whieh bavt ben
approved by the councfl of the nation, aid
the descendants of those appearing oa voA
rolls, and such additional names and tMr
descendants as have been subaequentlT added,
either by the councfl of vaA natloa, the
duly auUiorized courts thereof, or the eoa-
mission under the act of Jane tenth, eightea
hundred and ninety-six. And all other Bam«
appearing upon such rolls shall be open to
investigation by such commissioii for a
period of six months after the passage of this
act. And any name appearing on aueh toQs
and not confirmed by the act of June tenth,
eighteen hundred and nine^-aix, aa herciB
construed, may be stricken therefrom by soeh
commission where the party affected shtll
have ten days' previous notice that eaid eoa-
mission will investigate and detennine the
right of such party 1^ remain upon audi roD
as a citizen of sudi nation: Provided also,
That anyone whose name shall ba strickca
from the roll by such commission shall have
the right of appeal, as provided in the act ol
June tenth, eighteen nundred and niaety-
aix.
"That on and after January firai, lighftiii
hundred and ninety-eight, all acta, ordi-
nancee, and resolutions of the eoaneil of
either of the aforesaid Five Tribes pasiiil
shaU be certified * immediateH^ upon thcii(4ill
passage to the President of the United Statei
and shall not take effect, if disi^proved bj
bim, or untfl thir^ days after tbair pess-
affe: Provided, That this aot shaU not ap-
ply to resolutions for adjournment, or any
acts, or resolutions, or ordinaacea in rdsp
tion to negotiations with ommniMioaers
heretofore appointed to treat with said
tribes."
From the annual report of the eoBmissioa
of October 3, 1897, it appears that there had
been presented, in accor4ance with the pt^
visions of the act of 18M, ''some aeren thott*
sand five hundred daims, representing neaf^
ly, if not quite, seventy-five thooaand indi-
viduals, each daim requiring a separate ad-
judication upon the evidence upon which it
rested;" and that ''about one thooeawd ap-
peals have been taken from the deeisiona of
the oonimission." And the cmnmisaion said:
'The condition to which these Five IVibsi
have been brought by their wide departure
in the administration of the governments
which the United States committed to their
own hands, and in the uses to whidi thiy
have put the vast tribal wealth with which
they were intrusted for the common eQJoy>
ment of all their people, has been folly set
forth in former reports of the commission as
well as in the reports of congressional eoB-
mittees commissioned to make inouiry oa the
ground. It would be but repetition to at-
tempt again a redtal. Longer service aaoeg
them and greater familiari^ with their con-
dition have left nothing to modify either of
fact or oondusion in former reports, bnt en
the contrary have strengthened convietioBB
that t^erccan be no core of the evils engen-
dered by the perversion of theee great trasts
but their resumption bj the giffwammA
which created than.**
1T4 V. t.
98.
Strphrns v. Chebukeb Nation.
460-468
June 28, 1898, an act was approved, en-
tied **An Act for the Protection of the Peo-
le of the Indian Territory, and for Other
urpoaes." 30 Stat, at L. 495, chap. 517.
he second section read:
"Sec. 2. That when in the progress of any
vil suit, either in law or equity, pending in
le United States court in any district in
iid territory, it shall appear to the court
lat the property of any trihe is in any way
ffected oy the issues heing heard, said
ourt is hereby authorized and required to
lake said tribe a party to said suit by serv-
« upon the chief *or governor of the tribe,
nd the suit shall thereafter be conducted
nd determined as if said tribe had been an
riffinal pai*ty to said action."
And t^ third and eleventh sections in
Art:
''Sec. 8. That jsaid courts are hereby given
urisdiction in their respective districts to try
aaes against those who may claim to hold as
aembers of a tribe and whose membership is
lenied by the tribe, but who continue to hold
(aid lands and tenements notwithstanding
he objection of the tribe ; and if it be found
ipon trial that the same are held unlawfully
i^inst the tribe by those claiming to be
nembers thereof, and the membership and
ri^bt axe disallowed by the commission to
the Five Tribes, or the United States court,
md the judgment has become final, then said
Dourt shall cause the parties charged with
Luila^ully holding said possessions to be re-
moved from the same and cause the lands
and tenements to be restored to the person or
persons or nation or tribe of Indians entitled
to the possession of the same."
«*i
Sec. 11. That when the roll of citizenship
of any one of said nations or tribes is fully
completed as provided by law, and the sur-
vey of the lands of said nation or tribe is al-
so completed, the commission heretofore ap-
pointed under acts of Congress, and known
as the 'Dawes Commission,' shall proceed to
allot the exclusive use and occupancy of the
surface of all the lands of said nation or
tribe susceptible of allotment among the citi-
eens thereof, as shown by said roll, giving to
each, so far as possible, his fair and equal
share thereof, considering the nature and
fertility of the soil, location, and value of
same. . . . When such allotment of the
lands of any tribe has been by them com-
pleted, said commission shall make full re-
port thereof to the Secretary of the Interior
for his approval: Provided, That nothing
herein contained shall in any way affect any
vested legal rights which may have been
heretofore grttnted by act of Congress, nor be
•o construed as to confer any additional
rights upon any parties claiming under any
t]nicih act of *Congress: Provided further,
That whenever it s^l appear that any mem-
ber of a tribe is in possession of lands, his
allotment may be made out of the lands in
his possession, including his home if the
holder so desires : Provided further. That if
the person to whom an allotment shall have
been made shall be declared, upon appeal as
herein provided for, by any of the courts of
174 U. S.
the United States in or for the aforesaid ter*
ritory, to have been illegally accorded rights
of citizenship, and for that or any other rea-
son declared to be not entitle<l to any allot-
ment, he shall be ousted and ejected from
said lands."
Section 21 was as follows:
"That in making rolls of citizenship of the
several tribes, as required by Jaw, the com-
mission to the Five Civilized Tribes is au-
thorized and directed to take the roll of
Cherokee citizens of eighteen hundred and
eighty (not including freedmeii) as the only
roll intended to be confirmed by this and pre-
ceding acts of Congress, and to enroll all per-
sons now livinff whose names are found on
said roll, and all descendants born since the
date of said roll to persons whose names are
found thereon; and all persons who have
been enrolled by the tribal authorities who
have heretofore made permanent settlement
in the Cherokee Nation whose parents, by
reason of their Cherokee blood, have been
lawfully admitted to citizenship by the tribal
authorities, and who were minors wlicn their
parents were so admitted ; and they shall in-
vestigate the right of all other persons whose
names are found on any other rolls and omit
all such as may have been placed thereon by
fraud or without authority of law, enroll-
ing only such as may have lawful right
thereto, and their descendants bom since
such rolls were made, with such intermar-
ried white persons as mav be entitled to citi-
zenship under Cherokee laws.
"It shall make a roll of Cherokee freed-
men in strict compliance with the decree of
the court of claims rendered the third day
of February, eighteen hundred and ninety-
six.t
*"Said commission is authorized and di-[463]
rected to make correct rolls of the citizens
by blood of all the other tribes, €diminating
from the tribal rolls such names as may have
been placed thereon by fraud or without au-
thority of law, enrolling such only as may
have lawful right thereto, and their descend-
ants bom since such rolls were made, with
such intermarried white persons as ma^ bs
entitled to Choctaw and Chickasaw citizen-
ship under the treaties and the laws of said
tribes.
"Said commission shall have authority to
determine the identity of Choctaw Indians
claiming rights in the Choctaw lands under
article fourteen of the treaty between the
United States and the Choctaw Nation con-
cluded September twenty-seventh, eighteen
tArticle IX of the treaty of July 19, 1866,
with the Cherokee Nation (14 Stat at L. 799,
801), Is as follows: "The Cherokee Nation hav-
ing voluntarily. In February, eighteen hundred
and sixty-three, by an act of their national
council, forever abolished slavery, hereby cove-
nant and agree that never hereafter shall either
slavery or Involuntary servitude exist in their
nation otherwise than In the punishment of
crime whereof the party shall have been duly
convicted In accordance with laws applicable
to all the members of said tribe alike. They
further agree that all freedmen who have been
liberated by voluntary act of their former own-
ers or by law, as well as all free colored persons
who were In the country at the commencement
1047
463-466
SUPBEJtfB COUBT OF THE UNITID STA'
hundred and thirty, and to that end they
may administer oaths, examine witnesses,
and perform all other acts necessary thereto
and make report to the Secretary of the In-
terior.
"The roll of Creek f reedmen made by J. W.
Dunn, under authority of the United States,
[464]prior to March fourteenth, 'eighteen hundred
and sixty-seven, is hereby confirmed, and
said commission is directed to enroll all per-
sons now living whose names are found on
said rolls, and all descendants bom since the
date of said roll to persons whose names are
found thereon, with such other persons of
African descent as mav have been rightfully
admitted by the lawful authorities of the
Creek Nation.
"It shall make a correct roll of all the Choo-
taw f reedmen entitled to citizenship under
the treaties and laws of the Choctaw Na-
tion, and all their descendants born to them
since the date of the treaty.
"It shall make a correct roll of Chickasaw
freedmen entitled to any rights or benefits
under the treaty made in eighteen hundred
and sixty-six between the United States and
the Choctaw and Chickasaw tribes and their
descendants bom to them since the date of
9aid treaty; and forty acres of land, includ-
ing their present residences and improve-
ments, shall be allotted to each, to be se-
lected, held, and used by them until their
rights under said treaty shall be determined
in such manner as shall be hereafter pro-
vided by Congress.
"The several tribes may, by agreement, de-
termine the rights of persons who for any
reason may claim citizenship in two or more
tribes, ana to allotment of lands and dis-
tribution of moneys belonging to each tribe;
but if no such agreement be made, then such
claimant shall 1^ entitled to such rights in
one tribe only, and may elect in which tribe
he will take such right; but if he fail or
refuse to make such selection in due time, he
shall be enrolled in the tribe with whom he
has resided, and there be given such allot-
ment and distributions, and not elsewhere.
"No person shall be enrolled who has not
heretofore removed to and in gooa faith set-
tled in the nation in which he claims citi-
zenship :ProtH<ied, however, That nothing
contained in this act shall be so construea
as to militate against any rights or privi-
leges which the Mississippi Choctaws may
have under the laws of or the treaties with
the United States.
"Said commission shall make such rolls
descriptive of the persons thereon, so that
[465]they may be thereby identified, and *it is au-
thorized to take a eenoos oC tmA of
tribes, or to adopt any otlMr neaas hf
deemed necessary to enaUe tbeai to
such rolls. They shall hM,w aeeeas to aS
T(Aia and records of the several tnbei, oii
the United States court in Indiaa itrrrsarf
shall have jurisdiction to compd the oAavt
of the tribal governments and cnatodiaai rf
such rolls and records to ddi^er saaia to
commission, and on their rel
to do so to punish them as for c
also to reouire all citizens ai wnid tnhm^
persons who should be so enndled, to
before said conunission for nnmUBMiif. aX
such times and places as may be fixed ky md
commission, and to enforce obfdifans ol a3
others concerned, so far as the aaiae aay ht
necessary, to enable said eomminoii to mki
rolls as herein required, and to ptmisk aaf-
one who may in any manner or hy any Beni
obstruct said wotIL
"The rolls so made, whoi approved by ^
Secretary of the Interior, shall be fiasL a£
the persons whose names are foond
with their descendants thereafter
them, with such persons as may
according to tribal laws, shall ml
tute the several tribes whidi
''The members of said eommissiQn
performing all duties required of
law, have authority to administer
amine witnesses, and ytskd for
papers; and any parson who aliiaB wiSa^
and knowingly make any false
oath to any material fact or
any member of said commission,
other officer authorized to administer
to any affidavit or other paper to bt IM «
oath taken before said commission, rittll It
deemed guilty of perjury, and on
thereof shcdl be punished aa tar
fense."
"Sec. 26. That on and after tfae^
this act the laws of the rarions trt
tions of Indians shall not be enlofTai it
law or in equity by the courts of the VwaM
States in the Indian territory.*
"Sec. 28. That on the first day of Mf,
eighteen hundred and ninetr-eigkt, all txA
courts in Indian territory shall be ~
and no officer of said courts shaD
have any authority whatever to do or
form any act theretofore ^aut^KM-isad ^
law in connection with said coarta, or to f^
ceive any pay for same; and aO dvtl mi
criminal causes then pending in any mA
court shall be transferred to the tMtad 53tos»
court in said territory b^ filii^ witk tkt
clerk of the court the original p«p«n is tte
suit: Provided, That this section ihsO art
of the rebellion, and are now residents therein,
or who may return within six months, and their
descendants, shall have all the rights of native
Cherokees : Provided, That owners of slaves so
emancipated In the Cherokee Nation shall never
receive any compensation or pay for the slaves
so emancipated."
Referring to that article, the court of claims,
February 18, 1806. transmitted a commonlca-
tlon to the Commissioner of Indian Affairs,
stating: "The court Is of the opinion that the
elanses In that article In these words. *aod are
now residents therein, or who may return with-
in six months, and their descendants,* were In-
1048
tended for the protection of tbe
tlon, as a limitation upon the amibcr •t
who might avail themselves of the
the treaty ; and consequently, tbat
to both the freedmen and the fre»
sons previously named In the arttdc
to say, freedmen, and the deoeaadaats «f
men, who did not return wlthta six
excluded from the benefits of lbs tnaty
the decree. The court la also of tk»
that this period of six moatbs «x
date of the promnlgatloa of tbe txvaty,
11. 1866. and consequently did net
February 11, 1861." SlCt. CI. 148.
1T4
»i«f
189a
StXPHEKB Y. OhBBOXBB NAflON.
466-409
be in force as to the Chickasaw, Choctaw,
and Creek trihes or nations until the first
day of October, eighteen hundred and ninety-
eight."
Section twenty-nine ratified the agreement
made by the commission with commissions
repreeentinff the Choctaw and Chickasaw
tribes, April 23, 1897, as amended by the act,
and for its going into effect if ratified before
December 1, 1898, by a majority of the whole
number of votes cast by the members of said
tribes at an election held for that purpose,
**promded, That no person whose right to
citizenship in either of said tribes or nations
is now contested in original or appellate pro-
ceedings before any United States court snail
be permitted \o vote at said election;"
^ana if said agreement as amended be so
ratified, the provisions of this act shall then
only apply to said tribes where the same do
not connict with the provisions of said agree-
ment."
Then followed the agreement referred to,
containing provisions as to allotments, rail-
roads, town sites, mines, jurisdiction of
courts and tribal legislation, and stating:
•It is further agreed, in view of the modifi-
cation of legislative authority and judicial
Jurisdiction herein provided, and the neces-
sity of the continuance of the tribal govern-
ments so modified, in order to carry out the
requirements of this agreement, that the
same shall continue for the period of eight
years from the fourth day of March, ei^t-
cen hundred and ninety-eight. This stipu-
lation is made in the belief that the tribal
ffovernments so modified will prove so satis-
nctory that there will be no need or desire
for further change till the lands now occu-
pied by the Five Civilized Tribes shall, in the
opinion of Congress, be prepared for admis-
sion as a state in the Union. But this pro-
vision shall not be construed to be in any re-
spect an abdication by Congress of power at
any time to make needful rules ana regula-
tions respecting said tribes." The agree-
t467]inent was ^ratified by the two nations in Au-
gust, 1898. Kep. Com. Ind. Affairs, 1898, p.
Section thirty made similar provision in
respect of an agreement with the Creek Na-
tion, which is set forth.
The Indian appropriation act of July 1,
1898 (30 Stat, at L. 571, 691, chap. 545),
continued the authority theretofore con-
ferred on the commission by law, and con-
tained this provision:
"Appeals shall be allowed from the United
States courts in the Indian territory direct
to the Supreme Court of the United States
to either party, in all citizenship cases, and
in all cases between either of the Five Civil-
ized Tribes and the United States involving
the constitutionality or validity of any. leg-
islation affecting citizenship, or the allot-
ment of lands, in the Indian territory, under
the rules and regulations governing appeals
to said court in other cases: Provided.Thut
appeals in cases decided prior to this act
must be perfected in one hundred and twenty
davB from its passage; and in cases decided
subsequent thereto, within sixty days from
final judgment; but in no such case shall the
174 U. 8.
work of the commission to the Five Civilized
Tribes be enjoined or suspended by any pro-
ceeding in, or order of, any court, or of any
judge, until after final judgment in the Su-
preme Court of the United States. In cases
of appeals, as aforesaid, it shall be the duty
of the Supreme Court to advance such cases
on the docket and dispose of Uie same as
early as possible."
Tnereupon numerous appeals were prose-
cuted to this court, of which one hundred
and sixty-six were submitted on printed
briefs, with oral argument in many of them.
Four of these appesJs are set out in the title,
numbered 423, 453, 461, 496, and the remain-
ing one hundred and sixty-two are enumer-
ated in the margin, t
*The proceedings in these four appeals ars[468]
sufficiently stated as follows :
No. 423. — Stephens et al, v. The Cherokee
Nation.
William Stephens; Mattie J. Ayres, his
daughter ; Stepnen G. Ayres, Jacob S. Ayres,
and Mattie Ayres, his grandchildren, *applied[469j
to the Dawes Commission for admission to
citizenship in the Cherokee Nation, August
9, 1896; the nation answered denying the
jurisdiction of the commission, and on the
merits; and the application was rejected,
whereupon applicants appealed to the United
States court m the Indian territory, northern
district, where the cause was reierred to a
special master, who reported on the evidence
that the applicants were Cherokee Indians
by blood. The court, Springer, J., accepted
tXo. 436, Cobb et al. v. Cherokee Nation ; No.
438, Coldwell et al. v. Choctaw Nation : No.
445, Castoe et al. v. Cherokee Nation ; No. 446,
Anderson et al. v. Cherokee Nation ; No. 447,
Clark et al. v. Choctaw Nation : No. 449, Choc-
taw Nation y. MIckle et al. : No. 450. Same v.
Skaggrs : No. 451. Same v. Godard et al. ; No.
452, Same v. Grady : No. 4.54, Morgan et al. v.
Creek Nation: No. 456. Bridges et al. v. Creek
Nation : No. 457, Cherokee Nation v. Parker et
al. : No. 458, Same v. Gilliam et. al. ; No. 459,
Bell et al. v. Cherokee Nation ; No. 460, Trnltt
et ol. V. Cherokee Nation ; No. 404. Jordan et
al. V. Cherokee Nation ; No. 465. Ward et al. v.
Cherokee Nation : No. 466, Wassom et al. v.
Muskogee or Creek Natloc ; No. 469, Chickasaw
Nation V. RoflF et al. : No. 470. Same v. Troop ;
No. 471, Same v. Love: No. 472, Same v. Hill
et al. : No. 473, Same v. Thompson et al. : No.
474, Same v. Love : No. 475. Same v. Poe et al. ;
No. 476. Same v. McDuffle et al. : No. 477, Same
V. McKlnney et al. : No. 478, Same v. Bounds et
al. : No. 479. Same v. King et al. : No. 480.
Same v. Washington et al. ; No. 481, Same
v. FItzhugh et al. : No. 482, Same v.
Jones et al. : No. 483, Same v. Sparks et
al. : No. 484. Same v. Hill et al. : No. 4 85.
Same v. Arnold et al. : No. 486, Same v. Brown
et al. : No. 487, Same v. Jolnes et al. : No. 488,
Same ▼. Halford et al. ; No. 489. Same v. Foyner
et al. : No. 490. Same v. Albright et al. : No.
491. Same v. Doak et al. : No. 492, Same v. Pass-
more ; No. 493. Same v. Laflln et al. ;
No. 494. Same v. Law et al. : No. 495,
Same v. Saey : No. 497, Same v. Woody et al. ;
No. 498. Same ▼. Cornish et al. ; No. 499, Same
V. MtSwaln ; No. 500. Same ▼. Standlfer ; No.
501, Same ▼. Bradley et al. ; No. 502. Same ▼.
Alexander et al. ; No. 503. Same v. Sparks et
al. : No. 604. Same ▼. Story et al. : No. 505,
Same ▼. Archard et al. : No. 506, Same ▼.
Keys : No. 507. Same v. McCoy ; No. 508, Same
1040
469-471
i^UPBSMB' COUBT OT THE UHUBD SXAXBB.
the findings of the master that William
Stephens was one-fourth Indian and three-
fourths white ; that he was bom in the state
of Ohio; that his father was a white man
and a citizen of the United States; that hia
mother's name was Sarah and that she was
a daughter of William Ellington Shoe-boote,
and that her father was known as Captain
Shoe-Boots in the old Cherokee Nation; that
his mother was born in the state of KenUicky,
and that she moved afterwards to the state
of Ohio, where she waa married to Robert
[470]Stephens, *the father of William; that Will-
iam Stephens came to the Cherokee Nation,
Indian territory, in 1873, and has resided in
the Cherokee Nation ever aince; that soon
after he came to the Cherokee Nation he
made application for his mother and him-
self to be readmitted as citizens of that na-
tion; that the Conmiission who heard the
case waa convinced of the genuineness of his
claim to Cherokee blood, and so reported
to the chief, but rejected his application on a
technical ground; that the chief, in a mes-
sage to the council, srtated that he was con-
vinced of the honesty and genuineness of the
claim, and wished the council to pass an act
recognizing Stephens as a full citiaen; but
this was never aone. The court, referring to
• the master's report, said:
^t is further stated that he has improved
eonfiiderable property in the nation, and has
continuously lived there as a Cherokee citi-
sen, and at one time was permitted to vote
in a Cherokee election. It app^rs from the
evidence in the case that this applicant
comes within the following provision of the
Cherokee Constitution : *Whcnever any citi-
zen shall remove with hia effeeti
limits ol this nation aad beoomc
of any other government, all Ms ri^^te
privileges as a citizen of this natM
cease: Provided, neverthelm9y Tkaa
tional oouncil shall have power to
by law to aU the rights ol
such perscm or persons wte msy at
desire to retom to the natioa
ing the national eotmcil lor
sion.' l%ere was a
ilar to this in the
Cherokee Nation as it existed
removal of the tribe west ol the
river. The provisionjost quoted is
Constitution of the Cherokee Naiiosi
constituted.
'*The mother of the principal
heretofore stated, was bora iB
Kentucky, and from that state
to the state of Ohio, where aha
father pf the prindpHU Hafawt in
Her status was then fixed as that oi
had taken up a residence in the
had ceased to be a citizen of t^
Nation, and she cannot be iiailmlllirf
zenship in the nation eoEoeot bj
with the Constitution uid mws ol the
as dedared by tike Supreme Oovrt im.
of The Eastern Band of Cherokee
against The Cherokee Natkm ajid Ite
SUtes.
"The master states the riilmsat ^
jected by the eommission of tte
tion upon a technical groond. TW
upon which the decision was baaed w
the names of the claimants did not
upon any of the autiientieated rsQs
V. Vaughan et al. ; No. 609. Same v. Dorchester
et al. : No. 510, Same v. Duncan ; No. 611, Same
V. Phillips ct al. ; No. 612, Same v.
Lancaster ; No. 613, Same v. Goldsby et al. ;
No. 614, Same v. East et al. ; No. 616.
Same v. Bradshaw et al. : No. 616, Same
V. Graham et al. ; No. 617, Same v. Bnrch
et al. : No. 518, Same v. Palmer et al. ; No. 610,
Same v. Watkins et al. ; No. 620, Same v. Holder
et al. : No. 521, Same v. Jones et al. ; No. 622,
Same v. Worthy et al. : No. 628, Same v. Sartin
et al. : No. 524, Same v. Woolsey et al. ; No.
625, Same v. Arnold et al. : No. 626, Same v.
Paul et al. : No. 527, Same v. Peery et tl. ; No.
628, Same v. Stinnet ; No. 629. Same v. Stinnet
et al. ; No. 530. Same v. Duncan ; No. 631. Same
V. T^a et al. : No. 532. Same v. Hamilton : No.
633. Same v. Pitman ; No. 634. Same v. Carson
et al. : No. 535. Same v. Shanks et al. ; No. 636.
Same v. Paul : No. 637. Clark et al. v. Creek
or Muskogee Nation : No. 538. Tulk et al. v.
Same : No. 530, Hubbard et al. v. Cherokee Na-
tion: No. 540. McAnnally et al. v. Same: No.
541. Brashear et al. v. Same: No. 642. Condry
et al. V. Same : No. 543. Dial et al. v. Same : No.
544, Mnnson et al. v. Same : No. 546, Hubbard
et al. V. Same : No. 546. Trotter et al. v. Same ;
No. 647. Hill et al. v. «nme : No. 648. Russell et
al. V. Same : No. 549. Balrd et al. v. Same ; No.
650. Blnns et al. v. Same : No. 551. Smith et al.
V. Same : No. 552. Henley et al. v. Same ; No.
653. Same v. Same : No. 554. McKee et al. v.
Same: No. 555. Singleton et al. v. Same: No.
656. Brown et al. v. Same : No. 657. Fllprin et
al. V. Same: No. 658. Gambill et al. v. dame:
No. 550. Brewer et al. v. Same ; No. 660. Aber-
rinmbie et al. v. Same: No. 561. Watts et al. v.
1050
Same ; No. 562, Hackett et aL ▼.
Pace et at V. Same: No. 664,
Same: No. 666, Barp et at ▼.
Mayherry et al. v. Same; No. M7,
Same : No. 668, Lloyd v. Sasse : If«.
ford et at v. Same; No. ClfK Braackt
Same; No. 571, Black tt aL ▼.
Archer tt aL v. Same: No. 6TS. H
V. Same; No. 574, Bayes et aL v.
No. 576, Rowell et aL v.
Armstronf et aL ▼. Same: Na. fTT,
et aL V. Same; No. 678. "•^■■i^* «(
Choctaw Nation ; No. 67». Wade et aL v.
kee Nation : No. 582. Choctaw Natl— v.
et al. : No. 588, Same v. Qoodall ct aL : II
Same v. Bottoois et aL ; No. 68ft, 9mmm v.
et aL : No. 586. Same v. Blake et aL ; H
Same v. Randolph tt aL ; New US^
Golns et al. ; No. 688. Same ▼. D«tti
No. 690, Same ▼. Tbonus: Ne. Ml.
Jones et aL ; No. 692, Meredith et aL v.
kee Nation : No. 588. Polndezter et aL v.
No. 588, Steen et aL ▼. Same : Na. laii
et aL ▼. Same : No. 600. Prseslsy et aL v.
No. 601« Elliott et aL v.
Walker et al. v. Same : No. 808.
V. Same : No. 612, Watts tt aL v.
Haslewood et al. v. Same : No. 814.
V. Same: No. 615. Harper tt aL ▼.
616. Armstronf et al. v. Same : Ne. 81T.
et al. V. Same : No. 818. ISbell eC aL v.
No. 618, Wllteahercer et aL ▼. Saaae: H
Baker v. Creek Nation : No. 848. Caie v
taw Nation ; No. 644. CndlS et aL v.
No. 646, SlaytoB et aL v. BasM : NW
et al. V. Same ; No. 84T, CopiptdKe v.
648. Nahore et aL ▼. Besit : Ne^ 881.
aL V Same.
1T«
•L «
98.
Stbfhsnb v. Cherokee Nation.
471-47S
-esent Cherokee Nation or of the old Chero-
te Xation. The commission which passed
Km bis application was created under the
it of the council of December 8, 1886.
''Robert Stephens, the father of the prin-
pal claimant in this case, was a citizen of
te United States and a resident of the state
: Ohio, and the mother of the claimant Wil-
am Stephens had abandoned the Cherokee
ation and ceased to be a citizen thereof.
heref ore the principal claimant at the time
I his birth was a citizen of the United
tates, taking the status of liis father. I
oubt whether he could become a citizen of
le Cherokee Nation without the aflirmative
ction of the Cherokee council. The evidence
i.ils to disclose that he has ever applied to
ny of the oommisaions that had jurisdic-
Lon to admit him as a citizen of the Chero-
ee N'ation. The commission to which he
id apply for enrollment as a citizen of the
ThercMcee Nation -having held that his name
id not appear upon any of the Cherokee
oils of citizenship, his application was re-
ected. He never having been admitted to
itizenship as required by the Constitution
Jid laws of the Cherokeee Nation, the judg-
nent of the United States Commission re-
ecting this case is affirmed, and the appli-
atioQ of the claimants to be enrolled as cit-
sens of the Cherokee Nation is denied."
Judgment affirming the decision of the
Dawes Commission refusing applicants' en-
"ollment and admission as citizens of the
[^erokee Nation was entered December 16,
1 897, whereupon a motion for rdiearing was
lied, which was finally overruled June 23,
L898, and judgment again entered that appli-
Ants **he not admitted and enrolled as citi-
Eens of the Cherokee Nation, Indian terri-
tory.** From these decrees applicants prayed
*an appeal to this court August 29, 1893,
which was allowed and perfected September
2, 1808, and the record filed here October 3,
1898.
No. 468. — The Choctaw Nation v. F. R. Rob-
inson,
September 7, 1896, F. R. Robinson applied
to the Dawes Commission to be enrolled as
an intermarried citizen. His petition set
forth that he was a white man ; that he mar-
ried a woman of Choctaw and Chickasaw
blood, September 21, 1873, by which mar-
riage he had five children ; that she died, and
he married a white womun August 10, 1884,
with whom he was still living. The Choc-
taw Nation answered, objecting that the
Dawes Commission had no jurisdiction be-
cause the act of Congress creating it was un-
constitutional and void; that Robinson had
not ajpplied for citizenship to the tribunal of
the Choctaw Nation constituted to try ques-
tions of citizenship; and that he ought not
to be enrolled "because he has not shown by
his evidence that he has not forfeited his
rights as such citizen by abandonment or
remarriage." The Dawes Conunission granted
the application, and thereupon the (%octaw
Nation appealed to the United States court
in the Indian territory, central district. The
eause was referred to a master, who made a
report, and thereafter, June 29, 1897, the
174 V. 8.
court, Clayton, J., found that Robinson wae
"a member and citizen of the Choctaw Na-
tion by intermarriage, having heretofore
been legally and in compliance with the laws
of the Choctaw Nation married to a Choc-
taw woman by blood, and that said F. R.
Robinson was by the duly constituted au-
thorities of the Choctaw Nation placed upon
the last roll of the members and citizens of
the Choctaw Nation, prepared b^ the said
Choctaw authorities, and that his name is
now upon the last compieted rolls of the
members and citizens of the said Choctaw
Nation," and thereupon decreed that Robin-
son was "a member and citizen, by intermar-
riage wth the Choctaw Nation, and entitled
to all the rights, privileges, inmiunities, and
benefits in said nation as such intermarried
citizen and said member ;" and directed a cer-
tified copy of the judgment to be transmitted
to the commission. From this decree the
*Choctaw Nation prayed an appeal Septem-[479]
her 21, 1898, which was on that day allowed
and perfected.
No. 461. — Jennie Johnson et al, v. The Creek
Nation,
This was a petition of Jennie Johnson and
others to the Dawes Commission for admis-
sion to citizenship and membership in the
Creek Nation. It seems to have been pre-
sented August 10, 1896, on behalf of one hun-
dred and twelve applicants, to have been
granted as to sixty-two, and to have been
denied as to fifty-seven by whom an appeal
was taken to the United States court in the
Indian territory, northern district. The
cause was referred to a special master, and
on June 16, 1898, the court. Springer, J., ren-
dered an opinion, in which, after considering
various laws of the Muscogee or Creek Na-
tion bearing on the subject, certain decisions
of tribal courts, the action of a certain "com-
mittee of eighteen on census rolls of 1895,"
and of the council thereon adopting the re-
port of that committee, in respect of appli-
cants, the court concluded that appellants
were not entitled to be enrolled as citizens
of the Creek Nation, and entered judgment
accordingly, whereupon an appeal was
prayed from said decree and allowed and per-
fected September 27, 1808.
No. 496. — The Chickasaw Nation v. Richard
C, Wiggs et al,
Richard C. Wiggs filed an application be-
fore the Dawes Commission to be admitted
to citizenship in the Chickasaw Nation, as-
serting, among other things, that he was a
white man ana prior to October 13, 1875, a
citizen of the United States, on which day
he lawfully married Georgia M. All^n, a
native Chickasaw Indian and member of
the Chickasaw Tribe; and also an applica-
tion on behalf of his wife, JuRie Wiggs, at
the time of their marriage, which was m ac-
cordance with the Chickasaw laws under
such circumstances, a white woman and
citizen of the United States, and their
daughter Edna Wi^gs, August 15, 1896.
The Chickasaw Nation, September 1, 1896,
filed with the commission its answer to
these applications, which, after denying
the Jurisdiction of the commission, trav-
1051
478-477
SUFBSMB GOUBT OT THK UlTIXKD SXAXBB.
ersed the allegations of the applications.
(474]»November 15, 1896, the Dawes Commission
admitted Richard C. Wiffgs to citizenship
in the Chickasaw Nation, but denied the ap-
plication as to Mrs. Wiggs and their
daughter. Thereafter an appeal was taken
on behalf of the wife and daughter to the
United States court in the Indian territory,
southern district, and a cross appeal by the
Chickasaw Nation from the decision of the
commission admitting Wiggs to citizenship.
The court referred the cause to a master in
chancery, who made a report in favor of
Wiggs, but against bis wife and daughter.
The court, Townsend, J., found "that all of
the applicants are entitled to be enrolled as
Chickasaw Indians, it appearing to the
court that the said Richard C. Wiggs, being
a white man and citizen of the United
States, was married in the year 1875 to
Georgia M. Allen, who was a native Chicka-
saw Indian by blood. Said marriage was
solemnized according to the laws of Ijie
Chickasaw Nation; that in the year 1876
the said wife of the said Richard C. Wiggs
died ; that from and after said marriage the
said Richard C. Wiggs continued to reside
in the Chickasaw Nation and to claim the
rights of citizenship in said nation, and as
such he served in the Chickasaw legislature,
and was also sheriff of Pidcens county, in
said nation; that in the year 1886 the said
Richard C. Wiggs was lawfully married, ac-
cording to the laws of the Chujuisaw Nation,
to Miss Josie Lawson, and that ever since
said marriage the said Wiggs and his pres-
ent wife have . resided in the Chickasaw
Nation and claimed the rights of citizenship
therein, and that there has been bom unto
them a daughter, Mary Edna Wiggs"; and
thereupon entered a decree, December 22,
1897, admitting Richard C. Wiggs, his wife,
and their daughter, "to citizenship in the
Chickasaw Nation and to enrollment as
members of the tribe of Chickasaw Indians,
with all the rights and privileges appertain-
ing to such relation; and it is further or-
dered that this decree be certified to the
Dawes Commission for their observance."
From this decree an appeal was allowed
and perfected July 11, 1898.
Messrs. Heber J. May, CalTin Ii. Her-
bert, 8. IC Porter, Charles A. KeiKwin,
A. H. Garland, R. C, Garland, M. M. Edmis-
ton, Henry M, Furman, William I, Cruce,
Andrew C, Cruce, James C. Thompson, WiU-
iam M. Cravens, C. C. Potter, Joseph M. Hill,
James Brizzolara, 8. H. Barr, Yancey Lewis,
William Ritchie, W. W. DudXey, L, T, Mich-
ener, Wilkinson d Kennedy, Eugene Easton,
J, 8. Amote, Thomas Norman, Robert H.
West, James L, N orris, W. A, Ledhetter,
Dorset Carter, B. D, Davidson, J, W. John-
son^ 8, T, Bledsoe, 8ilas Hare, Jacob (7.
Hodges, P. D. Brewer, M. M. Lindly, J. A,
Hale, J. Q, Ralls, J, F. Sharp, and Walter
A. Logan, for various claimants, including
those whose cases were argued and those
which were submitted on briefs as stated in
the opinion.
1052
Messrs, William T.
kiasoB Call, A. W, Coderea
Dunca9i for Cherokee Katioa.
Mr. Jeremiah II. WOeaa
taw Nation.
Messrs. Holiaee CaaraA
B. Paine for the Chickasaw Nation.
Mr. Ben T. DmTal filed
Muskogee Nation.
SBi Mi
. •
*Mr. Chief Justice
opinion of the court:
These appeals are from deerem of tht
United States court in the Indiaa
sitting in first instance, rendered ia
pending therein involving the right oi
ous indiWduals to citizenship in some see i^
the four tribes named; most of
to that court by appeal from the
the so-called Dawes Commissioa
some were from decisions of tribal
tics; many questions are oommoa to
all; and it will be assumed that in aQ J
them the decrees were rendered and As
court had finally adjourned before the pet-
sage of the act of July 1, 1898,
appeals to this court.
The act of June 10, 18D0,
if the tribe or any person be
the decision of the tribal autborxtMB er tte
commission provided for in this act, it er fes
may appeal from such decision to tbe
States district court: Provided^
That the appeal shall be taken witbia ^.
days, and tne judgment of the eoort than W
final."
It must be admitted that tbe n«A
ninited States district coort^ wen MtB0* |
rately used, as the United States eonrt n tfe
Indian territory was not a distriet or arrmt J
court of *the United States {Re jraU^Isr.HV
S.263,26d [34:107,110]).
had, at the date of the aet, hnisdictian
in. But as, manifestly, tbe appeal i
be taken to a United States conrt batim «»
risdiction in the Indian territory, sm'h
view of the other terms of the act kssriif
on the immediate subject^natta-. U mf
nothing of subsequent legislation, it h iter
that the United States conrt in tbe Imtm
territoij was the court referred ta TkM
conclusion, however, may fairly be mii ^
involve the rejection of tbe word "diffenT
as a descriptive term, and reading tbt ■»«*-
skm as gianting an H^P«^ to tbt UaM
States court in thb Indian tmiiimj, ste
Suestion arises whether the jndf
nal by the statute are tbe jt
that court in the several districts
by the act of March 1, 1895, or of tW
late court therein provided for, which asv
be referred to later on, since it is dbjKtd
in the outset that no appeal from tW ^m-
sions of the Dawes Commision or of tht nv
bal authorities could be granted ts of
United States court; and, furtbermon^ tkil
at all events, it was not eompetcnt lor Om
g^ress to provide for an appeal froM tht ^
crees of the United States eonrt fai tW laim
territory after such decrees bad bsa iw*
dered and the term of court bad ezpirsi ari
especially as they were made final If Hi
statute.
lT4V.fi
1806,
Stbphbks y. Chbbokbb Nation
477-480
As to the first of these objections, conced-
am the constitutionality of the legislation
staer^dse, we need spend no time upon it, as
it is firmly establisned that Ck>ngress may
pmvide for the review of the action of com-
missions and boards created by it, exercising
only qnasi judicial powers, by the transfer
af their proceedings and decisions, denomi-
nated appeals, for want of a better Uam, to
judicial tribunals for examination and deter*
mination de novo; and, as will be presently
seen, eould certainly do so in respcKst of the
action of tribal authorities.
The other objection, though appearing at
first blush to be more serious, is also unten-
able.
The contention is that the act of July 1,
1898, in extending the remedy by appeal to
this court was invalid because retrospective,
an invasion of the judicial domain, and de-
structive of vested rights. By its terms the
lact was to operate ^retrospectively, and as
to that it may be observea that while the
general rule is that statutes should be so
construed as to give them only prospective
operation, yet where the language employed
expresses a contrary intention in unequivocal
terms, the mere fact that the legislation is
retroactive does not necessarily render it
void.
And while it is undoubtedly true that leg-
islatures cannot set aside the judgments of
courts, compel them to grant new trials, or-
der the discnarge of offenders, or direct what
steps shall be taken in the progress of a
Sdicial inquiry, the grant of a new remedy
way of review has been often sustained un-
der particular circumstances. Colder v.
BuU, 3 Dall. 386 [1 : 648] ; Bampeyreao ▼.
United States, 7 Pet. 222 [8: 665] ; Freeborn
▼. Smith, 2 Wall. 160 [17:922]; Garrison
▼. New York, 21 Wall. 196 [22: 612] ; Free-
land V. Williams, 131 U. S. 405 [33: 193];
Essem Public Road Board ▼. Skinkle, 140 U.
8.334 [35:446].
The United States court in the Indian ter-
ritory is a legislative court and was au-
thorized to exercise jurisdiction in these citi-
zenship cases as a part of the machinery de-
vised by Ck>ngress in the discharge of its du-
ties in respect of these Indian tribes, and,
assuming that Congress possesses plenary
power of legislation m re^rd to them, sub-
ject only to the Constitution of the United
states, it follows that the validity of re-
medial legislation of this sort cannot be ques-
tioned unless in violation of some prohibition
of that instrument.
In its enactment Congress has not at-
tempted to interfere in any way with the
judicial department of the government, nor
can the act be properly regarded as destroy-
ing any vested right, since the ri^ht asserted
to be vested is only the exemption of these
judgments from review, and the mere ex-
pectation of a share in the public lands and
moneys of these tribes, if hereafter distrib-
uted, if the applicants are admitted to citi-
zenship, cannot be held to amount to such
an absolute right of property that the orig-
inal cause of action, which is citizenship or
not, is placed by the judgment of a lower
court beyond the power of re-examination by
174 U. 8.
a higher court though subsequently author-
ized by general law to exercise jurisdiction.
This brings us to consider the nature and
extent of the 'appeal provided for. We re-[*^^l
peat the language of the act of July 1, 1898,
as follows:
"Appeals shall be allowed from the United
States courts in the Indian territory direct
to the Supreme Court of the United States
to either party, in all citizenship cases, and
in all cases between either of the Five Civil-
ized Tribes and the United States involving
the constitutionality or validity of any legis-
lation affecting citizenship or the allotment
of lands in the Indian territory under the
rules and regulations governing appeals to
said court in other cases: Provided, That
appeals in cases decided prior to this act
must be perfected in one hundred and twenty
davs from its passage; and in cases decided
subsec^uent thereto, within sixtv days from
final judgment; but in no such case shall
the work of the Commission to the Five Civil-
ized Tribes be enjoined or suspended by any
proceeding in, or order of, any court, or of
any judge, until after final judgment in the
Supreme Court of the United States. In
cases of appeals, as aforesaid, it shall be the
duty of the Supreme Court to advance such
cases on the docket and dispose of the same
as early as possible."
This provision is not altogether clear, and
we therefore inquire. What is its true con-
struction? Was it the intention of Con-
gress to impose on this court the duty of re-
examining the facts in the instance of all
applicants for citizenship who might appeal ;
of construing and applying the treaties with,
and the coiwtitutions and laws, the usage?
and customs of, the respective tribes; of re-
viewing their action through their legislative
bodies, and the decisions of their tribal courts
and commissions ; and of finally adjudicating
the right of each applicant under the pres-
sure of the advancement of each case on the
docket to be disposed of as soon as possible?
Or, on the other hand, was it the intention
of Congress to submit to this court only the
question of the constitutionality or validity
of the legislation in respect of the subject-
matter? We have no hesitation in saying
that in our opinion the appeal thus granted
was intended to extend only to the constitu-
tionality or validity of the legislation af-
fecting citizenship or the allotment of lands
in the Indian territory.
'Two classes of cases are mentioned : ( 1 ) [480]
Citizenship cases. The parties to these cases
are the particular Indian tribe and the appli-
cant for citizenship. (2) Cases between either
of the Five Civilized Tribes and the United
States. Does the limitation of che inouiry
to the constitutionality and validity oi the
legislation apply to both classes? We think
it does.
It should be remembered that the appeal
to the United States court for the Indian ter-
ritory under the act of 1896 was in respect
of decisions as to citizenship only, and that
in those cases the jurisdiction of the Dawes
Commission and of the court was attacked
on the j^round of the unconstitutionality of
the lec:islation. The determination of that
* ^ 1053
480-483
SuPBiMB CknjBT Of THB Uhubd Stahs.
Oov. Ttm,
question was necessarily in the mind of Con-
gress in providing for the appeal to this
court, and it cannot reasonably oe supposed
that it was intended that the question should
be reopened in cases between the United
States and the trib^. And yet this would
be the result of the use of the words "affect-
ing citizenship" in the qualillcation if that
qiuilification were confined to the last-ncuned
oases. The words cannot be construed as re-
dundant and relected as surplusage, for they
oan be given full effect; and it cannot be as-
sumed that they tend to defeat, but rather
that they are in effectuation of, the real ob-
ject of the enactment. It is true that the
Srovision is somewhat obscure, although if
^e comma after the words "idl citizenship
oases" were omitted, or if a comma were in-
serted after the words "the United States,"
that obecuritv would practically disappear,
and the rule is well settled that, for the pur-
pose of arriving at the true meaning of a
statute, courts read with such stops as are
manifestly required. Eammock y. Farmers'
Loan and Trust Company^ 105 U. S. 77, 84
[26: nil, 1114]; VniM States v. Laoher,
134 U. S. 624, 628 [33: 1080, 1083] ; United
Stdtes V. Oregon d 0. Railroad Company, 164
U. S. 541 [41: 545].
On any possible oonstruction, in cases be-
tween the United States and an 1 ndian tribe,
no appeal is allowed, unless the constitution-
ality or validity of the legislation is in-
volved; and it would be most unreasonable
to attribute to Conffress an intention that
the right of appeal niould be more extensive
[4Ml]in *casee between an Indian tribe and an In-
dividual applicant for citizenship therein.
Reference to prior l^islation as to . > peals
to this court from the United States court in
the Indian territory coniflrms the view we en-
tertain.
By section five of the judiciary act of
March 3, 1891 (2^ Stat, at L. 826, chap.
517), as amended, appeals or writs of error
might be taken from the district and circuit
courts directly to this court in cases in which
the jurisdiction of the court was in issue;
of conviction of a capital crime; involving
the construction or application of the Consti-
tution of the Unitea States; and in which
the constitutional itjr of any law of the United
States, or the validity or construction of any
treaty made imder its authority, was drawn
in question.
Bv section 6 the circuit courts of appeals
established bv the act were invested with ap-
pellate jurisdiction in all other cases.
The thirteenth section reads: "Appeals
and writs of error may be taken and prose-
cuted from the decisions of the United states
court in th/e Indian territory to the Supreme
Court of the United States, or to the circuit
court of appeals in the eighth circuit, in the
same manner and under the same regulations
as from the circuit or district courts of the
United States, under this act"
The act of March 1. 1805, provided for
the appointment of additional judges of the
United States court in the Indian territory
and created a court of appeals with such su-
perintendinff control over the courts in the
Indian territory as the supreme court of Ar-
1064
kaiiMs possessed over tht eoorta ol that
state by the laws th^eof ; and the act site
provided that "write ol error and appesb
from the final decisions of said appdlato
court shall be allowed, and may be tuxm la
the circuit court of i^peab lor tba eUith
judicial circuit in the same manner aadW
der the same regulations as upeala are tal>
en from the circuit court of tha Uattsl
States," which thus in terms deprived tkat
oourt of jurisdiction of appeala from the In-
dian territory trial court under aectioB 13 «f
the act of 1891. Prior to the act of 189$
the United States court in the Indian •tmU^
tory had no jurisdiction over coital essei,
but by that act its jurisdiction waa exteadsi
to embrace them. And we held in Browm v.
United States, 171 U. S. 631 [amU, 312], that
this court had no jurisdiction over eapitsl
cases in that court, the appellate jnrisdietioi
in such oases being vested in the appdUte
court in the Indian territory. Whe&er tke
effect of the act of 1895 was to raider iht
thirteenth section of the act of 1891 wboHj
inapplicable need not be considered, as the
judffxnents of the United Statea conrt ia thi
Indian territorr in these citizenship csaei
were made final in that court by the set of
1896, and this would cut off an appeal to this
court, if any then existed, whether the finali-
ty spoken of applied to the judgments ol t^
trial court or of the appellate ooort Ami
when by the act of July 1, 1898, it was pro-
vided that "appeals shall be allowed horn
the United States courts in the Indian tcrri>
tor^ direct to the Supreme Court of tke
United States, . . . under the roles sal
reg'^lations governing appeals to said eosrt
in other cases," the legislation, taken tofKb-
er, justifies the oondimon that the distriba-
tion of jurisdiction made by the act of Ifsrdi
3, 1891, was intended to be observed, namely,
that cases falling within the els seta pro-
scribed in section five should be broogbt di-
rectly to this oourt, and M other eases to
the appelate court, ^ose decision, as tho
legislation stands, would in eases ol the kial
under consideration be flnaL We do aol
think, however, that the analogy soes so fv,
in view of the terms of the act of 1^8, thsl
in cases brought here the ^ole case woaM
be open to aajudication. The matter to br
considered on the appeal, like the appeal i^
self, was evidently intended to be restridel
to the constitutionality and validity ol tho
legislation. The only ground on whidi thif
court held itself to be anthoriaed to oonsito
the whole merits of the case upon an appssl
from the circuit court of the United Statsi
in a case in which the constitntionality of t
law of the United States was involved, mrfv
section 5 of the act of March 3. 1891. ehsa
517, was because of the express limitatioa n
another part of that section of appeals npoi
the question of jurisdiction ; and there is no
kindred limitation in the act now before «a
Homer v. United States, 143 U. 8. 570, S77
[36 : 266, 269] . The judgmoits of the*eo«rt(4BS;
in the Indian territory were made fiinal, smi
appeals to this court were eonfined, ia etr
opinion, to the question ol euMstlinUoBsliiy
or validity <mly.
Was the legislation of 1896 and 1897. so
1696.
Stephens v. Cherokee Natioh.
468-489
lir MM it authorized the Dawes Commission
to determine citizenship in these tribes, con-
•litiitionalf If so, the courts below had Ju-
ilfdiotion on appeal.
It is true that the Indian tribes were for
years allowed by the United States to
all laws and regulations for the gov-
ernment and protection of their persons and
property, not inconsistent with the Consti-
tution and laws of the United States; and
numerous treaties were made b^ the United
States with those tribes as distinct political
societies. The policy of the goyernment, how-
ever, in dealing wiUi the Ii^ian nations waa
definitively expressed in a proviso inserted in
the Indian appropriation act of March 3,
1671 (16 Stat, at L. 644, 566, chap. 120),
to the effect :
fThat hereafter no Indian nation or tribe
within the territory of the United States
shall be acknowledged or recognized as an in-
dependent nation, tribe, or power with whom
the United States may contract by treaty:
Provided, further, That nothing herein con-
tained shall be construed to invalidate or im-
Cdr the obligation of axiv treatv heretofore
wfuUy made and ratified witn any such
Indian nation or tribe," which was carried
forward into section 2079 of the Revised
Statutes, which reads:
"Sec. 2070. No Indian nation or tribe with-
in the territory of the United States shall
be acknowledged or recognized as an inde-
pendent nation, tribe, or power with whom
the United States may contract by treaty;
but no obligation of any treaty lawfully
made and ratified with any such Indian na-
tion or tribe prior to March third, eighteen
hundred and seventy-one, shall be hereby in-
validated or impaired."
The treaties referred to in argument were
all made and ratified prior to March 3, 1871,
but it is "well settled that an act of Congress
may supersede a prior treaty and that any
questions that may arise are beyond the
sphere of judicial cognizance, and must be
f 4S4]roet by the political department of the 'gov-
ernment." Thomas v. Oay, 160 U. S. 264,
271 [42: 740, 743], and cases cited.
As to the general power of Congress we
need not review the decisions on the subject,
MB they are sufficiently referred to by Mr.
Justice Harlan in Cherokee Nation v. South-
ern Kansas Raihoay Company, 136 U. S.
641, 663 [34: 206, 301], from whose opinion
we quote as follows :
"The proposition that the Cherokee Nation
Is sovereign in the sense that the United
States is sovereign, or in the sense that the
aeveral states are sovereign, and that that
nation idone can exercise the power of emi-
nent domain within its limits, finds no sup-
port in the numerous treaties with the Cher-
ekee Indians, or in the decisions of this
ecmrt, or in the acts of Congress defining the
lebitiona of that people with the* United
States. From the oeginning of the govern-
ment to the present time, they have been
treated as Vards of the nation,' 'in a state
ef pupilafle,' 'dependent political communi-
'lioldinfl
Iff such relations to the general
Mvemment that they and their country, as
oedared by Chief Justice Marshall in Chero-
174 V. 8.
kee Nation v. Oeorgia, 6 Pet. 1, 17 [8: 25,
21], 'are considered by foreign nations, as
well as by ourselves, as being so completely
under the sovereignty and dominion of the
United States that any attempt to acquire
their lands, or to form a political connection
with them, would be considered by all as an
invasion of our territory and an act of hos-
tility.* It is true, as declared in Worcester
V. Georgia, 6 Pet. 616, 667, 560 [8: 483, 490,
504] , that the treaties and laws of the United ,
States contemplate the Indian territonr as
completely separated from the states and the
Cherokee Nation as a distinct community,
and ( in the language of Mr. Justice McLean
in the same case, p. 683 [8: 609]), that 'in
the executive, legislative, and judicial
branches of our government, we have admit-
ted, by the most solemn sanction, the exist-
ence of the Indians as a separate and dis-
tinct people, and as being vested with rights
which constitute them a state, or separate
community.' But that falls far short of say-
ing that they are a sovereign state, with nosu-
perior within the limits of its territory. By
the treaty of New Echota, 1835, the United
States covenanted and agreed that the lands
ceded to •the Cherokee Nation should at no[*S5J
future time, without their consent, be in-
cluded within the territorial limits or ju-
risdiction of any state or territory, and that
the government would secure to that nation
'the right by their national councils to make
and carry into effect all such laws as they
may deem necessary for the government of
the persons and property within their own
coimtry, belonging to tneir people or such
persons as have connected themselves with*
them'; and, by. the treaties of Washin^on,
1846 and 1866, the United States guaranteed
to the Cherokees the title and possession of
their lands, and jurisdiction over their coun-
try. Revision of Indian Treaties, pp. 66, 79,
86. But neither these nor any previous
treaties evinced any intention, upon the part
of the government, to discharge them from
their condition of pupilage or dependency,
and constitute them a separate, independent,
sovereign people, with no superior within
its limits. This is made clear by the deci-
sions of this court, rendered since the cases
already cited. In United States v. Rogers,
4 How. 667, 572 [11: 1106, 1107], the court,
referring to the locality in which a particu-
lar crime had been comjnitted, said: 'It is
true that it is occupied by the tribe of Chero-
kee Indians. But it has been assigned to
them by the United States as a place of domi-
cil for the tribe, and they hold and occupy it
with the consent of the United States, and
under their authoritv. . . . We think it
too firmly and clearly established to admit
of dispute that the Indian tribes residing
within the territorial limits of the United
States are subject to their authority.* In
United States v. Kagama, 118 U. S. 375, 379
[30:228,230], the court, after observing
that the Indians were within the geographi-
cal limits of the United States, said: 'The
soil and the people within these limits are
under the political control of the government
of the United States, or of the states of the
Union. There exist within the broad do-
1065
485-488
Supreme Coubt or thb Unitkd Btatbs.
Oor. TnoL
maiD of sovereignty but these two. . • .
Tliey were, and always have been, regarded
as having a semi-independent position when
they preserved their tribal relations; not as
states, not as nations, not as possessed of the
full attributes of soverei^ity, but as a
separate people, with the power of reg-
ulating their internal and social relations,
[486]and *tnus far not brought under the laws of
the Union or of the state within whose limits
they resided. . . . The power of the gen-
eral government over these remnants of a
raoe once powerful, now weak and dimin-
ished in numbers, is necessary to their pro-
tection, as well as to the safety of those
among whom they dwell. It must exist in
that government, because it has never existed
anywnere else, because the theater of its ex-
ercise is within the geographical limits of
the United States, because it has never been
denied, and because it alone can enforce its
laws on all the tribes.' The latest utter-
ance upon this general subject is in Ohootaw
Nation v. United States, 110 U. S. 1, 27 [30:
306, 315], where the court, after stating that
the United States is a soverei^ nation lim-
ited only by its own Ck)nstitution, said: 'On
the other hand, the Choctaw Nation falls
within the description in the terms of our
Constitution, not of an independent state or
sovereign nation, but of an Indian tribe. As
such, it stands in a peculiar relation to the
United States. It was capable under the
terms of the Constitution of entering into
treaty relations with the government of the
United States, although, from the nature of
. the case, subject to tl^ power and authority
of the laws of the United States when Con-
gress should choose, as it did determine in
the act of March 3, 1871, embodied in sec-
tion 2070 of the Revised Statutes, to exert
its legislative power.'"
Sucn being the position occupied by these
tribes (and it has often been availed of to
their advantage), and the power of Congress
in the premises having the plenitude thus in-
dicated, we are unable to perceive that the
legislation in question is in contravention of
the Constitution.
By the act of June 10, 1806, the Dawes
Commission was authorized ''to hear and de-
termine the application of all persons who
ma^ apply to them for citizenship in said
nauons, and, after such hearing tney shall
determine the right of such applicant to be
so admitted and enrolled," but it was also
provided:
'*That in determining all such applica-
tions said commission f^hall respect all la^-s
of the several nations or tribes, not inconsis-
tent with the laws of the United States, and
(487]all ^treaties with either of Sftid nations or
tribes, and shall give due force and effect to
the rolls, usages, and customs of each of
said na/tions or tribes: And provided fur^
ther, That the rolls of citizenship of the sev-
eral tribes as now existing are hereby con-
firmed, and any person who shall claim to
be entitled to be added to said rolls as a citi-
zen of either of said tribes, and whose riffht
thereto has either been denied or not amd
upon, or any citizen who may within three
months from and after the passage of this
1056
act desire sudi dtizeniliip, may >^ply to At
hnuMse
legally constituted court or oomi
nated by the several tribes for waA eititti*
ship, and sudh court or oommlttes shall 4^
termine such application witliiii thirij dsjB
from the date tnereof."
The act of June 7, 1807, dedared that tkt
commission should "oontinne to exerdse all
authoritv heretofore conferred on it by lav
to negotiate with the Five Tribes, and ear
agreement made by it witii any one of Mid
tribes, when ratified, shall operate to «at>
pend any provisions of this act if in eoslliet
therewith as to said nation: Provided,
That the words 'rolls of citizenship/ as vm4
in the act of June tenth, eightesn hundred
and ninety-six, making apprc^riatlons for
current and oontingeDt expenses of the In-
dian Department and fulfillinff treaty ttiptt*
lations with various Indian tnoes for the fi^
oal Tear ending June thirtieth, eigbteen hm-
dred and nlnei^-seven, shall be ooostmed ta
mean the last a^ithenticated rolls of sack
tribe which have been approved 1^ the eo«ii-
cil of the nation, and the desnendanti of
those appearing on such rolls, and siidi sd£-
tional names and their descendants as hsvt
been subseauently added, either bj the eoo-
cil of sucn nation, the dulr aathorind
courts thereof, or the eommissMm under te
act of June tenth, eighteen hundred sad
ninety-six. And all other names appearing
upon such rolls shall be open to investigi-
tion by such oommission for a period of six
months after the passage of thu met Ail
any name appearlnff on such rolls and lot
confirmed bv the act of June tenth, sigfataei
hundred and ninety-six, as herein eonsUaeJ,
may be stricken therefrom by such voaa^
sion where the party affected shall have ten
da^s' previous notioe that said fflmimlwriiTi
*will investigate and determine the right ol[4MJ
such party to remain upon such roll as a oit-
izen of such nation: Provided^ also, that
any one whose name shall be striken fn»
the roll by such commission shall [have] tho
right of app^, as provided in the act d
June tenth, eighteen hundred and ninetr-ilx.
"That on and after Januarr first, drhtsM
hundred ajid ninety-eiffht, all acts, oraiBin-
oes, and resolutions of the eonncfl of cithar
of the aforesaid Five Tribes passed ahall bt
certified immediately upon their passage ta
the President of the Uidted States and shafl
not take effect, if disapproved by him, or a-
til thirty days after their passage; ~
vided, lliat this act shall not applr to
lutions for adjournment, or any aela, or r»
olutions, or ordinances in relation to Dtg»
tiations with commissioners heretofore a^
pointed to treat with said tribes."
We repeat that in view of the paraaosat
authority of Congress over the ImUan tribsi,
and of the duties imposed on the gotermnwi
by their condition ox dependency, we cssast
say t£at Congress could not empower tha
Dawes Commission to determine, in the muh
tier provided, ^o were entitled to tHiain
ship in each of the tribes and make ont eai^
red rolls of such citizens, an aaaanHal pr^
liminarr to effective action In ynomotJes ef
the best interests of the tribes. It nsy ba
remarked that the legislation aaena to iimt
174 vTi
1098.
Stbphjsmb t. Chsrokrb Nation.
488-19;
nize, especially the act of June 28, 1898, a
distinction between admission to citizenship
merely and the distribution of property to be
subsequently made, as if there might be cir-
eumstances under which the right to a share
in the latter would not necessarily follow
from the ooncession of the former. But in
any aspect, we are of opinion that the const!-
ttttlonality of these acts in respect of the de-
termination of citicenship cannot be suc-
cessfully assailed on the ground of the im-
pairment or destruction of vested rights.
The lands andmoxMjB of these tribes are pub-
lic lands and pubuo moneys, and the asser-
tion by anj parUeular applicant that his
riffht uierein Is so vested as to preclude in-
?iury into hit wUpOB involves a contradiction
n terms.
The Judgments in these eases were ren-
,480]dered before the passage *of the act of June
28. 1898, commomy known as the Curtis act,
and necessarily the effect of that act was not
considered. As, however, the provision for
an appeal to this court was nmde after the
passage of the act, some observations upon it
are required, and, indeed, the inference is not
unreasonable that a principal object intend-
ed to be secured by an appeal was the testing
of the constitutionality en this act, and thst
may have had controlling weight in inducing
the granting of the right to such appeal.
The act is comprehensive and sweeping in
its character, and notwithstanding the ab-
stract of it in the statement prefixed to this
opinion, we sgain call attention to its provi-
sions. The act gave jurisdiction to the
United States courts in the Indian territory
in their respective districts to try cases
against those who claimed to hold lands and
tenements as members of a tribe and whose
membership was denied by the tribe, and au-
thorized their removal from the same if the
claim was disallowed; and provided for the
allotment of lands by the Dawes Commission
among the citizens of any one of the tribes
as shown by the roll of citizenship when ful-
ly completed as provided by law, and accord-
ing to a survey also f ullv completed ; and
"that if the person to whom an allotment
shall have been made shall be declared, upon
appeal as herein provided for, by any of the
courts of the United States in or for the
aforesaid territory, tO have been illegally ac-
corded rights of citizenship, and for that or
any other reason declared to oe not entitled
to anv allotment, he shall be ousted and
ejected fr<»n said lands."
The act further directed, as to the Chero-
kees, that the commission should "take the
roll of Cherc^ee citizens of eighteen hundred
and eighty, not including freedmen, as the
only roll intended to be confirmed by this
and preceding acts of Congress, and to enroll
all persons now living whose names are found
on said roll, and all descendants bom since
the date of said roll to persons whose names
are found thereon ; and all persons who have
been enrolled by the tribal authorities who
have heretofore made permanent settlement
in the Cherokee Nation whose parents, by
AOO] reason of their Cherokee blood, *have been
lawfully admitted to citizenship by Ihe tribal
ant^ovitie^, and who were minors when their
x74 U, S. U. S., Book 43.
parents were so admitted ; and they shall in-
vestigate the right of all other persons whose
names are found on any other rolls and omit
all such as may have been placed thereon by
fraud or without authority of law, enrolling
onlv such as may have legal right thereto,
ana their descendants born since such rolls
were made, with such intermarried white
Sersons as mav be entited to citizenship un-
er Cherokee laws.'* And that the commis-
sion should make a roll of Cherokee freed-
men, in compliance with a certain decree of
the oourt of claims ; and a roll of all Choc-
taw freedmen entitled to citizenship under
the treaties and laws of the Choctaw Nation,
and all their descendsjits bom to them since
the date of the treaty ; and a roll of Chicka-
saw freedmen entitled to any rights or bene>
fits under the treatv of 1806, and their de-
scendants ; and a roll of all Creek freedmen,
the roll made by J. W. Dunn, under the au-
thority of the United States, prior to Mardh
14, 1867, being confirmed, and the commis-
sion being directed to enroll all persons now
living whose names are found on said roll,
and their descendants, with "such other
persons of African descent as may have been
rightfully admitted by the lawful authori-
ties of the Creek Nation."
The commission was authorized and di-
rected to make correct rolls of the citizens by
blood of all the tribes other than the Chero-
kees, "eliminaUng from the tribal rolls such
names as may have been placed thereon by
fraud or without authority of law, enrolling
such only as may have lawful right thereto,
and their descendants born since such rolls
were made, with such intermarried white
Sersons as may be entitled to Choctaw and
hickasaw citizenship under the treaties and
laws of said tribes."
It was also provided that "no person shall
be enrolled who has not heretofore removed
to and in good faith settled in the nation in
which he daims citizenship."
The commission was authorized to make
the rolls descriptive of the persons thereon,
so that th^ might be thereby identified, and
to take a census of each of said tribes, "or *tc[40I]
adopt any other means by them deemed nec-
essary to enable them to make such rolls;"
and it was declared that "the rolls so made,
when approved by the Secretary of the Inte-
rior, shall be final, and the persons whose
names are found thereon, with their descend-
ants thereafter born to them, with such per-
sons as may intermarry according to tribal
laws, shall alone constitute the seversl tribes
which they represent."
The ^LCt provided further for the resub-
mission of tne two agreements, wiUi certain
specified modifications, that with the Choo-
taws and CSiickasaws, and that with the
Creeks, for ratification to a popular vote in
the respective nations, and tnat, if ratified,
the pitAriaions of these affreements so far ae
differing from the act snould supersede it.
The Choctaw and Chdokasaw agreement was
accordingly so submitted for ratification Au-
gust 24, 1898, and was ratified by a large
majority, but whether or not the agreement
with the Creeks was ratified does not appear.
The twenty-sixth section provided that.
67 1057
491-498
SlTPBEMB COUBT OV THE UinTSD STATKS.
OoT. Temm^
after the passage of the act, "the laws of the
various trlhes or nations of Indians shall not
be enforced at law or in equity by the courts
of the United States in the Indian terri-
tory;" and the twenty-eighth section, that
after July 1, 1898, all tribal courts in the In-
dian terntory should be abolished.
The agreement with the Choctaw and
Ghickasaw tribee contained a provision con-
tinuing the tribal government, as modified,
for the period of e^ht years from March 4,
1898; but providea that it should ''not be
oonshned to be in any respect an abdication
by Ck)ngress of power at any time to make
needful rules ana regulations respecting said
tribes,"
For reasone already ffiven we regard this
act in general as not obnoxious to constitu-
tional objection, but in so holding we do not
intend to intimate any opinion as to the ef-
fect that changes made thereby, or by the
agreements referred to, may have, if any, on
the status of the several applicants, who are
parties to these appeals.
The elaborate opinions of the United
States court in tne Indian territory by
Springer, J., Clayton, J., and Townsend, J.,
contained in these records, some of which are
[408] to be found *in the report of the Commission-
er of Indian Affairs for 1898, page 479, con-
sider the subject in all its aspects, and set
forth the various treaties, tribal constitu-
tions and laws, and the action of the many
tribal courts, commissions, and councils
which assumed to deal with it, but we have
not been called on to go into these matters,
as our condusion is that we are confined to
ate question of constitutionality merely.
As we hold the entire legislation constitu-
tional, the result is that all the judgmenU
mu8t he affirmed,
Mr. Justice Wliite and Mr. Justice Me-
Kenita dissented as to the extent of the ju-
risdiction of this court only.
OFFICE SPECIALTY MANUFACTURING
COMPANY, Appi,,
FENTON METALLIC MANUFACTURINQ
COMPANY.
(See S. C. Reporter's ed. 492-499.)
JudioiaX notice of u»e of a device — Hoffman
patent void — not infringed,
1. A semicircular hand hole or recess, for
grasping the books. In upright partitions for
holding books, is so old a device that the
court can take judicial notice of Its use,
long prior to the Hoffman patent of April 7,
1891, for Improvement In storage cases for
books.
8. The Hoffman patent Is only an aggregation
of old, well-known devices, each of which
performs Its own function In the old waj. and
such patent Is void.
t. Limiting the Hoffman patent to the claims
as described. It Is not Infringed by any of de-
fendant's devices.
[No. 253.]
Argued April tO, 1899. Decided May 15,
1899.
106l>
APPEAL from a decree of the Court of Ap>
peals for the District of CdumUa af-
fimung the decree of the Supreme Court of
that District in favor of the Fenton Metal-
lic Manufacturing Company, plaintiff, and
sustaining the validity of a patent iasned to
Horace J. Hoffman for improvementj ia
storage cases for books and allowing dam-
ages in a suit in equity brought by eaid eoo-
pany against the Office Specialty Maanfae*
turing Co. Reversed, ana case remanded*
with directions to dismiss the suit.
See same case below, 12 App. D. C. SOL
See also Fenton Metallic Mfg. Oo, t. Che»e^
73 Fed. Rep. 831, 84 Fed. Bep. 893.
Statement bv Mr. Justice Br^wmt
This was a bill in equity filed in the te-
preme court of the District of Columbia by
the Fenton Metallic Manufacturing Coin-
pan^ against the appellant to recover for tl»s
infringement of letters patent number 450.-
124, issued April 7, 1891, to Horace J. Hoff-
man for improvements in storage cases lor
books.
In the specification the patentee declares
that "the object of my invention is to facili-
tate the handling and prevent the abranoa
and injury* of heavy books, etc It consists
essentially, *of the peculiar arrangement offtfS!
the guiding and supporting rollers, and d
the peculiarities in the construction of the
case and shelves hereinafter specifi^ly art
forth."
The following drawing of one of the shdres
exhibits the peculiar features of the inven-
tion. The drawing explains itself so per-
fectly that no excerpt from the spedficatioa
18 necessary to an undenUnduig of tb.
claims.
The two claims allied to have been in-
fringed are as follows:
"1. In a storage case for books, etc., Um
combination of a supporting rack or shdf
composed of metallic strips and having a re-
entrant bend or recess in its front edge and
rollers joumaled in said rack and projecting
above and in front of the same on each side
of said bend or recess, substantially as de-
scribed.
''2. In a book shelf, the combinaiioa ol a
supporting frame, a series of horisootal roll-
ers, the front roller in two separated sec-
tions, the intermediate part of the fraae
being carried back to permit the admisska
of the hand between said roller seetioBa, sa^
stantially as described.'*
The defendant, the Office Specialty Mana-
facturing Company^ was the aseifnei^
174 v. •»
L896.
Stephens v. Cherokee Natioh.
488-489
Ear MB it authorized the Dawes Commission
ta> dflrtermine citizenship in these tribes, con-
liltuUonalf If so, the courts below had Ju-
risdiction on appeal.
It is true that the Indian tribes were for
Liiy years allowed by the United States to
all laws and regulations for the gov-
Bmxnent and protection of their persons and
property, not inconsistent with the Consti-
tation and laws of the United States; and
Dumerous treaties were made b^ the United
Statee with those tribes as distinct political
societies. The policy of the gOTernment, how-
Bver, in dealing -with the IiMlian nations waa
definitively expressed in a proviso inserted in
the Indian appropriation act of March 3,
1871 (16 Stat, at L. 644, 566, chap. 120),
to the effect:
'That hereafter no Indian nation or tribe
within the territory of the United States
sh&U be acknowledged or recognized as an in-
dependent nation, tribe, or power with whom
the United States may contract by treaty:
Provided, further, That nothing herein con-
tained shall be construed to invalidate or im-
Eair the obligation of anv treaty heretofore
i-wfuUy made and ratified witn any such
Indian nation or tribe," which was carried
forward into section 2079 of the Revised
Statutes, which reads:
''Sec. 2070. No Indian nation or tribe with-
in the territory of the United States shall
be acknowledged or recognized as an inde-
pendent nation, tribe, or power with whom
the United States may contract by treaty;
but no obligation of any treaty lawfully
made and ratified with any such Indian na-
tion or tribe prior to March third, eighteen
hundred and seventy-one, shall be hereby in-
validated or impaired."
The treaties referred to in argument were
all made and ratified prior to li&rch 3, 1871,
but it is "well settled that an act of Congress
may supersede a prior treaty and that any
questions that may arise are beyond the
sphere of judicial cognizance, and must be
]met by the political department of the 'gov-
ernment." Thomas v. Qay, 160 U. S. 264,
271 [42: 740, 743], and cases cited.
As to the general power of Congress we
need not review the decisions on the subject,
at they are sufficiently referred to by Mr.
Justice Harlan in Cherokee Nation v. South'
em Kansas Railway Company, 135 U. S.
641, 653 [34: 205, 301], from whose opinion
we quote as follows :
nThe proposition that the Cherokee Nation
is sovereign in the sense that the United
States is sovereign, or in the sense that the
■everal states are sovereign, and that that
nation aJone can exercise the power of emi-
nent domain within its limits, finds no sup-
port in the numerous treaties with the Cher-
okee Indians, or in the decisions of this
ooort, or in the acts of Congress defining the
nlationfl of that people with the* United
States. From the oeginning of the govern-
ment to the present time, they have been
treated as Vards of the nation,' 'in a state
of pupflafle,' 'dependent political communi-
tiee,' lioloinff such relations to the general
fovermnent that they and their country, as
declared ^ Chief Justice Marshall in Chero-
174 U. 8.
kee Nation v. Georgia, 5 Pet. 1, 17 [8: 25,
31], 'are considered by foreign nations, as
well as by ourselves, as being so completely
under the sovereignty and dominion of the
United States that any attempt to acquire
Uieir lands, or to form a political connection
with them, would be considered by all as an
invasion of our territory and an act of hos-
tility.' It is true, as declared in Worcester
V. Georgia, 6 Pet. 516, 567, 560 [8: 483, 400,
504] , that the treaties and laws of the United .
States contemplate the Indian territorv as
completely separated from the states and the
Cherokee Nation as a distinct community,
and (in the language of Mr. Justice McLean
in the same case, p. 583 [8 : 500] ) , that 'in
the executive, legislative, and judicial
branches of our government, we have admit-
ted, by the most solenm sanction, the exist-
ence of the Indians as a separate and dis-
tinct people, and as being vested with rights
which constitute them a state, or separate
community.' But that falls far short of say-
ing that they are a sovereign state, with nosu-
perior within the limits of its territory. By
the treaty of New Echota, 1835, the United
States covenanted and agreed that the lands
ceded to 'the Cherokee Nation should at no[*85J
future time, without their consent, be in-
cluded within the territorial limits or ju-
risdiction of any state or territory, and that
the government would secure to that nation
'the right by their national councils to make
and carry into effect all such laws as they
may deem necessary for the government of
the persons and property within their own
country, belonging to their people or such
persons as have connected themselves with*
them'; and, by. the treaties of Washin^on,
1846 and 1866, the United States guaranteed
to the Cherokees the title and possession of
their lands, and jurisdiction over their coun-
try. Revision of Indian Treaties, pp. 65, 70,
85. But neither these nor any previous
treaties evinced any intention, upon the part
of the government, to discharge them from
their condition of pupilage or dependency,
and constitute them a separate, independent,
sovereign people, with no superior within
its limits. This is made clear by the deci-
sions of this court, rendered since the cases
already cited. In United States v. Rogers,
4 How. 567, 572 [11: 1105, 1107], the court,
referring to the locality in which a particu-
lar crime had been compiitted, said': 'It is
true that it is occupied by the tribe of Chero-
kee Indians. But it has been assigned to
them by the United States as a place of domi-
cil for the tribe, and they hold and occupy it
with the consent of the United States, and
under their authority. . . . We think it
too firmly and clearly established to admit
of dispute that the Indian tribes residing
within the territorial limits of the United
States are subject to their authority.* In
United States v. Kagama, 118 U. S. 375, 370
[30: 228, 230], the court, after observing
that the Indians were within the geographi-
cal limits of the United States, said: 'The
soil and the people within these limits are
under the political control of the government
of the United States, or of the states of the
Union. There exist within the broad do-
1065
485-488
Supreme Coubt or thb Unitkd Scjltbs.
ma in of sovereignty but these two. . . .
They were, and always have been, regarded
9LS having a semi-independent position when
they preserved their tribal relations; not as
states, not as nations, not as possessed of the
full attributes of sovereignty, bat as a
»eparate people, with the power of reg-
ulating their internal and social relations,
[486]and *&us far not brought under the laws of
the Union or of the state within whose linkits
they resided. . . . The power of the gen-
eral government over these renmants of a
race once powerful, now weak and dimin-
ished in numbers, is necessary to their pro-
tection, as well as to the safety of those
among whom th^ dwell. It must exist in
that government, because it has never existed
anywnere else, because the theater of its ex-
ercise is within the geographical limits of
the United States, bemuse it has never been
denied, and because it alone can enforce its
laws on all the tribes.' The latest utter-
ance upon this general subject is in Ohoctaw
yation y. United States, 119 U. S. 1, 27 [30:
306, 315], where the court, after stating that
the United States is a soverei^ nation lim-
ited only by its own Constitution, said: 'On
the other hand, the Choctaw Nation falls
within the description in the terms of our
Constitution, not of an independent state or
sovereign nation, but of an Indian tribe. As
such, it stands in a peculiar relation to the
United States. It was capable under the
terme of the Constitution of entering into
treaty relations with the government of the
United States, although, from the nature of
. the case, subject to tl^ power and authority
of the laws of the United States when Con-
gress should choose, as it did determine in
the act of March 3, 1871, embodied in sec-
tion 2070 of the Revised Statutes, to exert
its legislative power.'"
Sudi being tne position occupied by tiiese
tribes (and it has often been availed of to
their advantage) , and the power of Congress
in the premises having the plenitude thus in-
dicated, we are unable to perceive that the
legislation in question is in contravention of
the Constitution.
By the act of June 10, 1896, the Dawes
Commission was authorised "to hear and de-
termine the application of all persons ^o
may apply to them for citizenship in said
nations, and, after such hearing tney shall
determine the right of such applicant to be
so admitted and enrolled," but it wae also
provided:
'*That in determining all such ajoplica-
tions said commission shall rdspect all la\i's
of the several nations or tribes, not inconsis-
tent with the laws of the United States, and
(487]all ^treaties with either of sftid natione or
tribes, and shall give due force and effect to
the rolls, usages, and customs of each of
said nations or tribes: And provided fur^
ther. That the rolls of c^tixenship of the sev-
eral tribes as now existing are herebjr con-
firmed, and any person who shall claim to
be entitled to be added to said rolls as a citi-
zen of either of said tribes, and whose riffht
thereto has either been denied or not amd
upon, or any citizen who may within three
months from and after the paaeage of this
1056
act desire such eJtiiwnrfitp, bi^ lyfiy te
legally constituted court or earn — "
niUted by the several tribes far
ship, and sudi court or eooBittee
termine such applicattoa vitkia thkiy
from the date thereof."
The act of June 7, 1897, deda
commission should "oontlsne to
authorHy heretofore ecmferred em it W
to negotiate with the R^e TrSboi^ aad
a^eement made by it with aay amt ol
tribes, when ratified, diaU
pend any provisiona ^
therewith as to said
That the words 'rolls of eil
in the act <^ June tenth,
and ninety-six, malring appro^iatiaai
current and contingeDt tcmamm el tkt ]»>
dian Department mSd fulfilling trmt^ iUf»
lations with various Indian ti&ca for tht i»»
oal year ending June thirties figfcti^a
dred and nine^-seven, diaU be nitie
mean the last authenticated roOs el
tribe which have been approted hf t^
cil of the nation, aad the
those appearing on such rolls, ajid
tional names and their ilnnrniiia«
been subeeouentl jr added, eltlMr by tke
cil of vack nation, the dnl^
courts thereof, or the eomr*
act of June toith, eisliti
ninety-six. And all other
upon such rtdls shall be opca to
tion by such commission for a ptriod of
months after the passage <tf tlua mdL I
any name appearing on maA rolls and at
confirmed by the set of June
hundred and ninety-six,
may be stricken therefrom by
sion where the party affected skaU
days' previous notice that said en
*yml mvestigate and determine tke right ;'j
such party to remain apon such roll ns ar-
izen of such nation: Provided, eto, Tkm
any one ^ose name shall be sUkAm fr^
the roll by sudi commission skall [base] tks
righted ftpp^f *• proyided In tks mk d
June tent^, eighteen hundred and nsnaKr^B.
'That on and after Jannanr first, ilot—
hundred aad ninety-eiffht, aU nets, ecdiai»
ces, and resoluticms of the taoaeSi el eithn'
of the aforesaid Five Tribes pnaasd skaC te
certitied immediately upon tMr pnas^v ^
the Presid^t of the Umted States and iteX
not take effect, if disapproved 1^ Um. or »^
til thirty days after their pMesgsr f»»
vided, lliat this act shall not apply te le^
lutions for adjournment, or any nees, er n»>
olutions, or ordinances in relation te
tiations with commissioners
pointed to treat with said tribes."
We repeat that in yiew of tW
authority of Congress over the Ii
and of the duties imposed on the
by their condition of dependency,
say t£at Congress could not cmi
Dawes CommiMion to determine, in th»
ner provided, ^o were entitled to
ship in each of the tribes and i
reot rolls of sudi dtinsns, an
liminary to effective aoUoa in pnmttim if
the best interests of the tr&es. It mtf U
remarked that the legislation eesBs to rsHr
iT4«ri
«.
Stsphbmb t. Chbbokeb Nation.
488-19;
», especially the act of June 28, 1898, a
(tinction between admission to citizenship
Tely and the distribution of property to be
bsequently made, as if there might be cir-
Distances under which the right to a share
the latter would not necessarily follow
m tiie concession of the former. But in
y aspect, we are of opinion that the consU-
tionality of these acts in respect of the de-
rmlnation of dtizenship cannot be suc-
ssfully assailed on the ground of the im-
irment or destruotion of vested rights,
le lands and moneys d these txibes are pub-
3 lands and public moneys, and the asser-
3n by any particular applicant that his
^ht therein is so vested as to preclude in-
ury into his statos involves a contradiction
I terms.
The judgments in these eases were ren-
ered before the passage *of the act of June
S. 1898, commonly known as the Curtis act,
nd necessarily the effect of that act was not
dnsidered. As, however, the provision for
n appeal to this court was made after the
•assage of the act, some observations upon it
re required, and, indeed, the inference is not
inreasonable that a principal object intend-
d to be secured by an appeal was the testing
if the constitutionality of this act, and that
aay have had controllmg weight in inducing
he granting of the right to such appeal.
The act is comprehensive and sweeping in
its character, and notwithstanding the ab-
stract of it in the statement prefixed to this
opinion, we again call attention to its provi-
sions. The act gave jurisdiction to the
United States courts in the Indian territory
in their respective districts to try cases
against those who claimed to hold lands and
tmiements as members of a tribe and whose
membership was denied by the tribe, and au-
thorized their removal from the same if the
claim was disallowed; and provided for the
allotment of lands by the Dawes Commission
among the citizens of any one of the tribes
as shown by the roll of citizenship when ful-
ly completed as provided by law, and accord-
ing to a survey also fully completed; and
*'tnat if the person to whom an allotment
shall have been made shall be declared, upon
appeal as herein provided for, by any of the
courts of the United States in or for the
aforesaid territory, tO have been illegally ac-
corded rights of citizenship, and for that or
any other reason declared to ue not entitled
to any allotment, he shall be ousted and
ejectea fr<»n said lands."
The act further directed, as to the Chero-
kees, that the commission should ''take the
roll of Cherokee citizens of eighteen hundred
and eighty, not including freedmen, as the
only roll intended to be confirmed by this
and preceding acts of Congress, and to enroll
all persons now living whose names are found
on said roll, and all descendants born since
the date of said roll to persons whose names
are found thereon ; and all persons who have
been enrolled by the tribal authorities who
}iave heretofore made permanent settlement
in the Cherokee Nation whose parents, by
l]i'eason of their Cherokee blood, *have been
lawfully admitted to citizenship by the tribal
antiiorltie«5, and who were minors when their
i74 U. S. U. S., Book 43.
parents were so admitted ; and they shall in-
vestigate the right of all other persons whose
names are found on any other rolls and omit
all such as may have been placed thereon by
fraud or without authority of law, enrolling
onlv such as may have legal right thereto,
and their descendants born since such rolls
were made, with such intermarried white
Sersons as mav be entited to citizenship un-
er Cherokee laws." And that the commis-
sion should make a roll of Cherokee freed-
men, in compliance with a certain decree of
the court of claims; and a roll of aJl Choc-
taw freedmen entitled to citizenship undmr
the treaties and laws of the Choctaw Nation,
and all their descendants bom to them since
the date of the treaty ; and a roll of Chicka-
saw freedmen entitled to any rights or bene*
fits under the treat v of 18(!6, and their de-
scendants; and a roll of all Creek freedmen,
the roll made by J. W. Dunn, under the au-
thority of the United States, prior to March
14, 1867, being confirmed, and the commis-
sion being directed to enroll all persons now
living whose names are found on said roll,
and their descendants, with "such other
persons of African descent as may have been
rightfully admitted by the lawful authori-
ties of the Creek Nation."
The commission was authorized and di-
rected to make correct rolls of the citizens by
blood of all the tribes other than the Chero-
kees, "eliminating from the tribal rolls such
names as may have been placed thereon by
fraud or without authority of law, enrolling
such only as may have lawful right thereto,
and their descendants born since such rolls
were made, with such intermarried white
Sersons as may be entitled to Choctaw and
hickasaw citizenship under the treaties and
laws of said tribes."
It was also provided that "no person shall
be enrolled who has not heretofore removed
to and in good faith settled in the nation in
which he claims citizenship."
The commission was authorized to make
the rolls descriptive of the persons thereon,
so that they might be thereb^r identified, and
to take a census of each of said tribes, "or *to[40I]
adopt any other means by them deemed nec-
essaiy to enable them to make such rolls;"
and it was declared that "the rolls so made,
when approved by the Secretary of the Inte-
rior, shall be final, and the persons whose
names are found thereon, with Uieir descend-
ants thereafter born to them, with such per-
sons as may intermarry according to tribal
laws, shall alone constitute the several tribes
whic^ they represent."
The «U!t provided further for the resub-
mission of the two agreements, wHh certain
specified modifications, that with the Choc-
taws and CSiickasaws, and that with the
Creeks, for ratification to a popular vote in
the respective nations, and tnat, if ratified,
the prtmsions of tbese acrreements so far ae
differing from the act should supersede it.
The Choctaw and Chdckasaw agreement was
accordingly so submitted for ratification Au-
gust 24, 1898, and was ratified by a large
majority, but whether or not the agreement
with the Creeks was ratified does not apMar.
The twenty-sixth section provided thatg
67 1057
Buriuun Codxt of thk Uirmv BiAita.
dian territorj should be ftboliahed.
The agrMment witli the GhoetAW uid
Cfaickasaw tribM oontaiiied a, prorlBion con-
tinuing Hht tribal goTerament, as modified,
(or the period at t&ht ytara from March i,
1898; but pTOTided that it should "not be
coDtrtrned to be in May reapeet an abdication
bj Congress of poirer at any time to make
needful rule* ana r^ulations Teapecting eaid
For reasone already ffiven we regard this
•et in general ae not obnoxiotu to constitu-
tioiutl objection, bnt in so holding we do not
intend to intimate any opinion as to the ef-
fect that changes made thereby, or by the
agreements referred to, may have, if any, ~ ~
the status of the several applicants, who
parties to these appeals.
The elaborate opinions of the United
States court in uie Indian territory by
Springer, J., Clayton, J., and Town 9 end, J.,
contained in these records, some of which are
(49S]to be found 'in the report of the Commission-
er of Indian Affairs for 18S8, page 470, con-
sider the subject in all its aspects, and set
forth the various treaties, tribal constitu-
tions and laws, and the a«^OD of the many
tribal coorta, oommissions, and councils
which assumed to deal with it, but we have
not been called on to |^ into these matters,
■8 our conclusion is that we are confined to
tlie question of constitutionality merely.
As we hold the entire legislation constitu-
tional, the result la that all the judgments
must be affirmod.
Mr. Justice Wblte and B(r. Justice Me-
Kenna dissented as to the extent of the ju-
rlsdiotion of this court only.
(See a C. Seportcr's ed. 4BZ-409.)
Jtidioial notiae of MM of o dwiee — Hoffman
patent void — not in/ringed.
1. A semlclrcnlar hand bole or recess, lor
gruplDg tbe books, la DprlBht partitions tor
holding hooks. Is so old a dBTlee that the
eoDrt can take judicial notice at Its dm,
long prior to tbe Hoffman patent ot April T,
1BB1. tor ImprovemeDt In storage easet tor
S. The HoSman patent Is only an aggregatlOD
of old, wctl-knowii devices, each at wblch
performs Its ows function In the old way, and
•neb patent la void.
S. Umltlag the Hoifman patent to the claims
aa described. It Is not Infringed bj anj ot de-
tendant'a derlcea.
[No. 253.]
Argutd ApHl to, 1899. Decided May IS,
I8B9.
105»
APPEAL from a decree of tba CmuI «f Af
peals for the District of riiliiwMi af-
firming the decree of the Snprwaa Covt rf
that District in favor of the Pota ViAf-
lie -- - - - .-
Horace J. Hoffman tor impr _
BtoTBge cases for books and aDowiar ba-
ages in a suit in equity brought bj aairf av-
pany a^inst the Office Sp« '"' — " ' '
turing Co. Reversed,
with directions to dismiss the s_ _
See same caM below, 13 App. D. C. SL
See also Fanton Metallic Mfg. Go. t. aar„
73 Fed. Rep. 631. S4 Fed. Bep. WL
Statement br Mr. Justice Brvwmi
This was a bill in equity filed ia ite «-
preme court of the District of ColsKhia *■
the Fenton Metallic Manutaftniing Cf-
pan^ against the appellant to recover fcl IM
infringement of letters patent uiiniba Ot-
124, issued April 7, 1891, to Htnacc J. B^
man for impTOv^menta in sttHage csmi ic
books.
In the ,
that "the o .
tate the handling and prevent the shsii ■
and injury of heavy books, etc. It cbmk-
ossentially, *of the peculiar arrang^B^ fl
the guiding and supporting rollrn. aa^ >-
the peculiarities in the constroctiaa tf •"■»
case and shelves hereinafter ipcciAaDT wt
forth."
The following drawing of one of the ihliii
e\hibits the peculiar featarcs of the lara-
tion. The drawing eiplaina itaelf v pr-
fectly that no excerpt from the speeiflcBt<:
is necessary to an understandiag ef a*
The two claims allied to have han l»
fringed are as follows:
"1. In a storsge case for boolca. etc tit
combination ot a supporting rack « sW!
composed of metallic strips ud haviaf s n-
entrant bend or recess in its (roat edc* ai
rollers joumaled in said radc and prajacu*:
above and in front of the «i"
'8. In a book shelf, the eomhiutiea «l a
supporting frame, a series of horiaiHital r«'>-
srs, the front roller In two separated wp
tions, the intermediate part of tlw fna*
being carried back to permit the silai—
of the hand between said roller scetiowk i^
antially as described."
The defendant, the Office Sperialtr 1Isb»
facturing Company, was th* swiwt.
174 e.«.
Offiob Spboialtt Mfo. Co. t. Fbnton Metallic Mfg. Oa
49»-40«
L^brou^h mesne assiffmnenta of Jewell and
fiTawnmn, whose application for a patent,
lUed November 6, 1888, was put in interfer-
e-Kice in the Patent Office with the applica-
bmon of Hoffman, filed February 12, 1887, and
tlic interference proceedings on behalf of
■iXewell and Tawman, were ^conducted by the
parties who subsequently formed the Office
•ialty Manufacturing Ck>mpany. The
aminer of Interferences, the Board of Ex-
fluniners-in-Chief, and the Commissioner of
IPatents euccessively decided in favor of Hoff-
xnan, to whose assignees the letters patent
^were subsequently issued. During the pen-
dency of the interference, the Hoffman appli-
cation was divided, as permitted by the rules
of the Patent Office, to secure a patent for
certain features not involved in the inters
Terence.
Upon a hearing on pleadings and proofs
» decree was entered adjudging the patent
to be valid, and the first and second claims
thereof to have been infringed bv the defend-
ant ; and the case was sent to the auditor to
determine and report the profits and dam-
ages resulting from the infringement.
After certain proceedings, taken with re-
spect to several infringing devices, not nec-
ef>8ary to bo here set forth, a final decree
was entered in favor of the plaintiff, which,
•o far as respects the validity of the patent,
-was affirmed by the court of appeals, with
an allowance for damages, which had been
rejected by the supreme court. 12 App. D.
C. 201. Whereupon the defendant appealed
to this court.
Messrs. Melyllle Chnroli and Joseph B,
Church for appellant.
Mr. Charles Elwood Foster for appel-
lee.
4} *Mr. Justice Brown delivered the opinion
of the court:
We conFider the auestion of the validity
of this patent as the decisive one in this
case. Tjie patent was adjudged to be valid
by the supreme court of the District of Co-
lumbia, as well as by the court of appeals.
It had been held to be invalid by Judge La-
combe, sitting in the circuit court for the
southern district of New York, upon a mo-
tion for a preliminary injunction {Fenton
MetalHo Manufacturing Co. v. Chase, 73 Fed.
Rep. 831), and by Judge Wheeler, upon a
final hearing of the same case (84 Fed. Rep.
893).
15] *The elements of Hoffman's combination
as described in the first claim allured to be
infringed, are ( 1 ) a supporting rack or shelf
competed of metallic strips ; (2 ) a re-entrant
beiid or recess in its front edge for the in-
sertion of the hand; and (3) rollers jour-
naled in the rack and projecting above and
in front of the same on each side of the re-
cess. In the second daim the combination
is described as ( 1 ) a supporting frame ( ap-
parently including one &t wood as well as
of metal; (2) a series of horizontal rollers,
the front rollers being in two separated see-
tiona: (3) the intermediate part of the
frame being carried back to permit the ad-
mission of the hand between said roller sec-
174 U. M.
tions. It may be remarked in passiiur that
none of the decisions in the Patent Office in
the interference proceediogt dealt with the
question of prior devices.
The introauction of rollers in book shelves
is undoubtedly a convenient and valuable
device for preventing the abrasion of larffe
and heavy books which are obliged to be laid
flat upon the shelves, especial^ when th^
are subjected to frequent handling; but the
employment of roller shelves at the time
Hoffman made his application for a patent
(February 12, 1887) was by no means a
novelty. Indeed, plaintiff's own eipert tes-
tifies uiat "it was common to use what were
called roller shelves, the same consisting of
frames or supports and longitudinal parallel
rollers, which extended the entire leiu^ of
the shelf and served to reduce friction ia
putUnff books upon and withdrawing them
from Sie shelf. One form of such shelves
is shown in complainant's exhibit. Office
Specialty Manufacturing Company's cata-
logue. Figure 16." This exhibit shows a
shelf frame made of beni metal, firmly riveted
together, containing three continuous rollers,
each of the fidl length of the shelf, made of
steel in tubidar form. Continuing, the wit-
ness said:
"The use of such shelves was, and is, how-
ever, limited because of certain defects; for
instance, one of the principal defects is the
liability of the person placing the book upon
the shelf to have the fingers pinched between
the book and the front roller in placing ths
book on the shelf. With light, small books
this, of course, was not a matter of special
importance, *and the shelves canbeuseawith[40Q
such books, but the class of books for which
such shelves are especially adapted is heavy
books, such as are used in keeping; govern-
ment records, weighing, in many instances,
from ten to twenty-six or even thirty pounds,
and quite large, and with such books the lia-
bility to injure the fingers in puttinff tfiem
on said taking them from the shelf u very
great."
So long before Hoffman's application as
the year 1870, Samuel H. Harris had ob-
tained a patent. No. 107,042, for a shelf of
three parallel wooden rollers covered with
sheet metal, the specification of which seems
to assume that wooden rollers had thereto*
fore been used in iron cases for books.
A patent issued in 1876 to John L. Boonei
No. 182,157, describes his invention as con*
sisting "in attaching rollers to the front
edge9 of book shelves so that when a book is
withdrawn from or placed upon the shelf it
will move over the roller instead of over ths
edge of the shdf." This is to obviate ths
danger of the book being abraded by ths
sharp corners of the shelf over which it is
dragged, especially if the shelf is higher than
the level of the person's head who handles
it.
A patent issued in 1885 to Walter H. Co-
nant shows a similar arrangement of front
rollers to protect the Ixxto.
In a patent to Marion T. Wolfe of Octo>
ber 7, 1879, No. 220,265, there is shown a
book case in which three series of short roll*
ers, each inserted in what the patentee calls
1059
007-609
8UPBB1CB Ck>UBT OF THE UNTIXD STATES.
OofC Teb«.
ed in the opinion in the Mitchell County
Case: so far as the prior cases are cited at
all th^ are cited with a|>proyal, and there
is certainly nothing to indicate that the
court intended to oyerrule them. That court
had not changed in its personnel since the
prior judgments, except the first, were pro*
nounced, and it is not probable that the judges
would have changed their views without
•ome reference to such change. Indeed, but
one of the earlier oases was cited in the
Mitchell County Case {Bassett v. El Paso,
88 Tex. 175), and that supports rather than
conflicts with the opinion. As we read them,
thegr merely decided that somie provision for
payment must be made. In the Mitchell
County Case the question was for the first
time presented whether the laws of 1881 and
1887 were constitutional, and whether action
taken under these laws was an adequate
compliance with the requirement that provi-
sion should be made ''at the time of creat-
ing" the debt for a sufficient tax to pay the
^ntiBrest ani to provide a two per cent sink-
ing fund. It was held that they were. This
overruled nothing, because the question had
never before been decided, and the point was
not made in tiie courts below in this case.
We are simply called upon, then, to deter-
mine what is the law of Texas upon the sub-
ject, since, under Revised Statutes, section
721, the ''laws of the several states . . .
shall be regarded as rules of decision in trials
at common law in the courts of the United
States." While if this case had been brought
before this court before the decision in the
Mitchell County Case, we might have taken
[508]the view that was *taken by the courts be-
low, treating the question as one hitherto un-
settled in uiat state, we find ourselves re-
lieved of any embarrassment by the decision
in the Mitchell County Case, which mani-
festly applies to this case and requires a re-
versal of their judgment.
But assuming that the later ease was in-
tended to overrule the prior ones, and to lay
down a difTerent rule upon the subject, our
conclusion would not be different. In deter-
mining what the laws of the several states are,
which will be regarded as rules of decision,
we are bound to look, not only at their Ck>n-
stitutions and statutes, but at the decisions
of their highest courts giving construction to
them. Potk^s Lessee v. WendaX, 9 Cranch,
87 [3: 666] ; Luther v. Borden, 7 How. 1, 40
[12: 681, 698] ; Vesmith v. Sheldon, 7 How.
812 [12:925]; Jefferson Branch Bank y.
Bkelly, 1 Black. 436 [17:173]; LeffingweU
T. Warren, 2 Black, 599 [17: 261] ; Christy
T. Pridgeon, 4 Wall. 196 [18: 322] ; Post v.
Kendall County Supervisors, 105 U. S. 667
[26: 1204] ; Bucher v. Cheshire Railroad Co.
125 U. S. 655 [31:795].
If there be any inconsistency in the onin-
lons of these courts, the general rule is {hat
we follow the latest settled adjudications in
g reference to the earlier ones. The case of
^nited States v. Morrison, 4 Pet 124 [7:
804], seems to be directly in point. The
United States recovered ludgment against
Morrison, upon which a n. fa. was issued,
soods taken in execution and restored to the
debtor under a forthcoming bond. This
1064
bond having been forfeited, an execution
awarded thereon by the judgment cd the dis-
trict court, rendered April, 1822, which it
was asserted created a lien upon tlie lands,
and overreached certain conveyances uadflt
which the defendants claimed, dated Fcbrv-
ary and March, 1823. The circuit court was
of opinion that the lien did not owmimtk
these conveyances. But the court of apfwali
of Virginia having subsequently dcelded
that the lien of a judgxnent oootinued pend-
ing proceedings on a writ of fL fa., this conrt
adopted this subseouent construction by sock
court, and reversea the decree of the cireaxt
court.
In Oreen v. Neal^s Lessee, 6 Pet. 291 [8:
402], a construction given by the supreme
court of Tennessee to the statute of Itmita-
tions of that state having been ovemalcd,
this court followed *the later case, althoQ|ri(SM;
it had previously adopted the rule laid dovi
in the overruled cases. See also LeffingveU
V. Warren, 2 Black, 599 [17: 261] ; FairfieU
V. Gallatin County, 100 U. S. 47 [25: 544].
In Morgan y. Curtenius, 20 Haw. 1 (15:
823], the circuit court placed a constmctioa
ui>on cui act of the legislature in accordance
with a decision of the supreme court of Illi-
nois wfth reference to the very same oonwy-
ance, and it was held that, that being the«e>
tied rule of property which that court was
bound to follow, this court would affira iU
judgment, though the supreme court of the
state had subsequently overruled its own de*
cision, and had given the act and the ssat
conveyance a di£»rent construction. We do
not consider this case as necessarily confiici-
ing with those above cited.
An exception has been admitted to thif
rule, where, upon the faith of state dediaoas
affirming the validity of contracts made or
bonds issued under a certain statute, other
contracts have been made or bonds isMcd
under the same statute before the prior ess«
were overruled. Such contracts and bonis
have been held to be valid, upon the prind-
ple that the holders upon purehasiBg svA
bonds and the parties to sucn contracts were
entitled to rely upon the prior decisions st
settling the law of the state. To have heU
otherwise would enable the state to set a trap
for its creditors bv inducing them to nih>
scribe to bonds and then withdraw! nir their
only security. Qelpclce v. Duhuque, 1 Wafl^
175 [17: 620]: Havemever v. /oioa Commtf,
3 Wall. 294 [18: 38] : MitcheU y. BwrUmf
ton, 4 Wall. 270 [18: 350] ; Riggs ▼. Joknttm
County, 6 Wall. 166 [18:768] : Lee Coumtg
Supers. V. Rogers, 7 Wall. 181 [19:160V.
Chicago v. Sheldon, 9 Wall. 50 [19 j 594]:
Oloott V. Pond du Lac County Supervison^
16 Wall. 678 [21 : 382] : Dou<tlass ▼. Pike
County, 101 U. S. 677 [25: 968] : Burgem r.
Seligman, 107 U. S. 20 [27: 359].
Obviously this class of cases has no ap-
plication here. The bonds were issued in
good faith for a valuable consideratioe r^
ceived by the county, and were purchased by
the plaintiff with no notice of infirmity st^
taching to them. If certain dedsioas, pn>>
nounced after the bonds were issued, threw
doubt upon their validity, those doubts have
been removed by a later decision protKntBeiag
J9SL
Wadb t. Tratis Countt.
499-501
In determining wbat tbe laws of a state
aj-e, which will be regarded as rules of de-
cision, this court will look, not only to its
Constitution and statutes, but at the decisions
of its highest court giying construction to
tliem.
If there be any inconsistency in the opin-
Ions of such highest court, this coirt will
generally follow the latest settled at^^dlca-
tions in preference to the earlier ones.
w County bonds issued in good faith for a val-
oable consideration are valid in the hands
of a bona fide holder, although the prior state
decisions are against their yaiidity, if the
subsequent state decisions are in fayor of
tlieir validity.
[No. 267.]
Lrgued April 26, 1899. Decided May 15,
1899.
ON WRIT OF CERTIORARI to the United
States Circuit Court of Appeals for the
Fifth Circuit to review a judgment of that
court affirming the judgment of the Circuit
Court of the United States for the Western
District of Texas sustaining a demurrer and
dismisaing a suit brought oy Albert Wade,
plaintiff, against the county of Travis to re-
cover the amount of certain coupons of bonds
issued by said county to build an iron bridge
over Colorado river. Judgments of the Cir-
cuit Court of Appeals and of the Circuit
Court reversed, and case remanded to said
Circuit Court for further proceedings.
See same case below, 72 Fed. Rep. 985, and
62 U. S. App. 395, 81 Fed. Rep. 742, 26 C. C.
A. 589.
Statement by Mr. Justice Browns
This was an action brought in the circuit
court for the western district of Texas by
the plaintiff Wade, who is a citizen of the
state of Illinois, against the county of Tra-
vis, to recover upon certain interest coupons
detached from forty-seven bonds issuea by
the defendant for the purpose of building an
iron bridge across the Colorado river.
The petitioner set forth that in July, 1888,
the defendant, being authorized so to do en-
tered into a contract with the King Iron
Bridge Manufacturing Com^ny of Cleve-
land, Ohio, for the construction of a bridge
for public use over the Colorado river, the
company agreeing to complete the same bv
November 15, 1888, in consideration of which
^khe defendant ^agreed to pay the sum of $47-
000 in six per cent bonds, payable in twenty
years after date.
Thai prior to the making of such contract,
to wit, February 23, 1888, uie defendant, act-
ing though its commissioners' court, levied
for the year 1888 and subsequent years, until
otherwise ordered, an annual ad valorem tax
of twenty cents for general purposes, and an
annual ad valorem tax of fifteen cents for
road and bridge purposes, on each one hun-
dred dollars' worth of taxable property in such
county; that on February 13, 1889, the com-
missioners' court of the coun^ levied for the
year 1889 an ad valorem tax of fifteen cents
on each one hundred dollars' worth of prop-
erty for road and bridiire nurposes and an
174 U. S.
ad valorem tax of five cents to create a sink-
inff fund for bridge bonds, and to pay the
interest on suoh Minds; that the defendant
delivered to the bridge company upon its con-
tract for erecting the bridge five bonds on
December 6, 1888, ten bonds on December 22,
1888, ten bonds on Februarv 12, 1889, and
the remaining twenty-two of such bonds on
July 3, 1889, such bonds beinff signed by the
county judge, countersigned oy the county
clerk, and registered by the county treasur-
er; that the several levies in question had
not been appropriated for any other purpose
b^ the county, or^ at least, a sufficient por-
tion of them remained unappropriated to pav
the interest and sinking fund upon su<»
bonds, and that it was the intention of the
commissioners' court to use these levies with
a view of providing ah annual fund sufficient
to pay the interest, and to provide the sink-
ing fund required by law. The petition fur-
ther averred that plaintiff purchased the
coupons for a good and valuable considera-
tion in open market, and that he is the legal
owner and holder of the same; that on Janu-
ary 16, 1896, he presented such coupons to
the county treasurer and demanded payment
thereof, which was refused.
The county demurred to the petition upon
six different grounds, the first and material
one of which was that the petition failed to
allege that "at the time the debt was created
for which the bonds were issued, upon the
coupons of which this suit is brougnt, any
provision was made for the ^interest, and at[501]
feaet two per cent sinking fund upon such
bonds."
The circuit court was of opinion that, at
the date of the execution of tne contract for
erecting the bridge, the commissioners' court
should have made a distinct and specific pro-
vision for the interest upon such bonds and
for a sinking fund, and thereupon sustained
the demurrer and dismissed tne cause. 72
Fed. Rep. 985.
The plaintiff appealed to the circuit court
of appeals, which affirmed the judgment of
the circuit court. 52 U. S. App. 395. Upon
plaintiff's petition a writ of certiorari was
subsequently allowed by this court.
Messrs. Joseph Pazton Blair and
Frank W. Haekett for petitioner.
Messrs, Clarenee H. Bliller and Fnuw
Fiset for respondent.
*Mr. Justice Brown delivered the opiniou[50Ii
of the court:
This case involves the validity of certain
bonds issued by the county of Travis in pay-
ment to the Kina Iron Bridge Manufactur-
ing Company for the construction of a bridge
over the Colorado river; and, incidentally^
the weight to be given to alleged conflicting
decisions of the supreme court of Texas as to
the validity of sucn bonds.
As bearing upon this question, the follow*
ing sections of article XI. of the Constitution
of Texas, upon the subject of "Municipal
Corporations," are pertinent:
"Sec 2. The construction of jails, court-
houses, and bridges, and the establishment of
county poor houses and farms, and the lav-
1061
491-498
SUPBEMS COUBT OF THS UNITVD STATXS.
OOIL Temm^
alter the passage of the act, "the laws of the
various tribes or nations of Indians shall not
be enforced at law or in equity by the courts
of the United States in the Indian terri-
tory;" and the twenty-eighth section, that
' after July 1, 1898, all tribal courts in the In-
dian terntory should be aboli^ed.
The agreement with the Choctaw and
Chickasaw tribes contained a provision con-
tinuing the tribal governnient, as modified,
for the period of e§ht years from March 4,
1898; but providea that it should "not be
construed to be in any respect an abdication
by Congress of power at any time to make
needful rules ana regulations respecting said
tribes."
For reasons already eiven we regard this
«ct in general cm not obnoxious to constitu-
tional objection, but in so holding we do not
intend to intimate any opinion as to the ef-
fect that changes made thereby, or by the
agreements referred to, may have, if any, on
the status of the several applicants, who are
paHies to these appeals.
The elaborate opinions of the United
States court in tne Indian territory by
Sprin^^, J., Clayton, J., and Townsend, J.,
contained in these records, some of which are
|402]to be found *in the report of the Commission-
er of Indian Affairs for 1898, page 479, con-
sider the subject in all its aspects, and set
forth the various treaties, tribal constitu-
tions and laws, and the action of the many
tribal courts, commissions, and councils
which assumed to deal with it, but we have
not been called on to go into these matters,
as our conclusion is that we are confined to
the question of constitutionality merely.
As we hold the entire legislation constitu-
tional, the result is that all the judgments
must he affirmed,
Mr. Justice Wlilte and Mr. Justice Me-
Kemia dissented as to the extent of the ju-
risdiction of tills court only.
OFFICE SPECIALTY MANUFACTURING
COMPANY, Appt.,
FENTON METALLIC MANUFACTURINO
COMPANY.
(See 8. C. Reporter's ed. 402-490.)
Judicial noiioe of use of a device — Hoffman
patent void — not infringed,
1. A semicircnlar band hole or recess, for
grasping the books, in aprigbt partitions for
holding books, is so old a device that the
court can take judicial notice of Its use,
long prior to the HofFman patent of April 7,
1891, for improvement In storage cases for
books.
8. The HofFman patent Is only an aggregation
of old, well-known devices, each of which
performs Its own function in the old way, and
snch patent is void.
t. Limiting the Hoffman patent to the claims
as described. It is not infringed by any of de-
fendaot's devices.
[No, 268.]
Argued Apfil 20, 1899, Decided May 15,
1899.
105P
APPEAL from a decree of the Court of Ap-
peals for the District of Cdtuiibia af-
firming the decree of the Supreme Oovrt «f
that District in favor of the Fentoa Metal-
lic Manufacturing Company, plaintiff, and
sustaininff the vanditj of a patent iasiied to
Horace J, Hoffman f(^ improvemeitta ia
storace cases for books and allowing daa-
ages in a suit in equity brought by eald 0001*
pany against the Office Specialty Maaofae-
turing Co. Reversed, and case remanded,
with directions to dismiss the suit.
See same case below, 12 App. D. C. SOL
See also Fenton Metallic Mfg, Oo, t. Cheer,
73 Fed. Rep. 831, 84 Fed. Bep. 893.
Statement bv Mr. Justice Bro^rat
This was a bill in equity filed in the su-
preme court of the District of Columbia bv
the Fenton Metallic Manufacturing Coo'
pany against the appellant to recover for the
infringement of letters patent number 450.-
124, issued April 7, 1891, to Horace J. Hoff-
man for improvements in storage cases for
books.
In the specification the patentee dedam
that "the ooject of my invention is to facili-
tate the handling and prevent the abrasioa
and injury of heavy books, etc It eonsisti.
essentially, *of the peculiar arrangenuBt ci[W^
the guiding and supporting rollers, and of
the peculiarities in the construction of tht
case and shelves hereinafter ape^ficaDy Mt
forth."
The following drawing of one of the shdm
exhibits the peculiar features of the invn-
tion. The drawing explains itself so per-
fectly that no excerpt from the specifieatioa
is necessary to an understanding of the
claims.
The two claims alleged to have bcea !>>
fringed are as follows:
"1. In a storage case for books, etc, ths
combination of a supporting rack or ihelf
composed of metallic strips and having a re-
entrant bend or recess in its front ed^ sad
rollers joumaled in said rack and projecting
above and in front of the same on each tnb
of said bend or recess, substantially as de-
scribed.
'^2. In a book shelf, the combination td a
supporting frame, a series of boriaootal rsG-
ers, the tront roller in two separated mc-
tions, the intermediate part of the frans
being carried back to permit the admissioa
of the hand between said roller sections, sal^
stantially as described."
The defendant, the Office Spedalty Maiie-
facturing Company, vras the assicnNb
174 U. t.
)98.
Wade v. Tbayis County.
504-007
alues rapidly increase, the extortion from
le taxpayers of large amounts of money in
coess of the amount necessary to satisfy
tie interest and principal of the bonds, and
tu8 in turn would invite municipal oorrup-
Lon and extravagance."
In MoNeal v. City of Waco, 89 Tex. 83
1895) , plaintiff sued the city on a contract
or building cisterns for fire protection, to
ecover the contract price for one and dam-
ages for refusing to allow him to complete
be others. The petition failed to show a
>roTision for taxes to pay interest and a
(inking fund, or an existing fund for the
>aynient; nor did the contract show facte
'rom which the court could say that it was
m item of ordinary expenditure. It was
leld that a general demurrer to the petition
should have been sustained, and it was also
leld that the word ''debt'' included every pe-
mniary obliga/tion imposed by contract oat-
side of the current expenditures for the year.
To same effect is Howard v. Smith, 91 Tex.
8.
*Such was the construction placed by the
supreme court of Texas upon the consti-
tutional provision at the time when the case
under consideration was decided by the
courts below. It was held by the circuit
court that the county commissioners' court
should have made provision at the time the
contract was executed, July 8, 1888, by levv
of a tax or otherwise, for a sinking fund,
and the interest on the bonds issued for the
erection of the bridge; that the levv made
by the conuniseioners' court in February,
1888, could not be held applicable to the
bonds in controversy, for the manifest rea-
son that the contract for tiie erection of the
bridge was not then in existence nor even
in the contemplation of the parties, so far as
the allegations of the netition disclosed ; that
the ffeneral levy maae in Februarv, 1889,
could not be held applicable to the bonds of
the bridge company for two reasons: Firsts
because it was made some six months after
the execution of the contract; and, second, be-
cause the order of the commissioners' court,
authorizing the levv, made no reference what-
ever to the bonds in controversy nor to the
contract between the county and the bridge
company. The circuit court of appeals came
practically to the same conclusion.
Since these cases were decided, however,
the supreme court of Texas has put a con-
struction upon the Constitution, which fully
supports the position of the plaintiff in this
case. In Mitchell County v. The City Nat,
Bank of Paducah, 91 Tex. 861, decided in
January, 1898, the action was upon inter-
est coupons attached to bonds issued by the
coimty for the purpose of building a court-
house and jail, and upon others for con-
structing and purchasing bridges. An act
had been pass^ in 1881 with reference to
the creation of courthouse debts similar to
the act subsequently passed in 1887 respect-
ing bridge bonds, a copy of which is given
alrave. The same defense was made — ^that
at the time of the creation of the debts the
county made no provision for levying and
collecting a sufficient tax to pay the interest
and sinking fund, although for the year 1881
174 U. S.
the court levied a courthouse and jail ta^
of twenty-five cents on the one hundred dol-
lars, repeated during subsequent years, and
increased to fifty cents; and every year after
the issue of the *bonds for bridge purposes[S06}
the court levied fifteen cents on the one hun-
dred dollars as a tax for road and bridge pur-
poses. It was held, quoting Baaaett v. El
Faso, 88 Tex. 176, that it was unnecessary
to ascertain the rate per cent required to be
levied in order to raise the prc^per sum and
to actually levy that rate of tax at the time;
that if the laws of 1881 and 1887 had never
been passed, the county would have had no
authority under the Ck>nstitution to contract
the debts represented by the bonds, nor to
levy a tax for the payment of the interest
and sinking fund on such debts. The power
to do so could be derived from the legislature
only. "We understand," said the .courts
"that the provision required by the Ckmsti-
tution means such fixed and definite ar^
rangements for the levying and collecting of
such tax as will become a legal right in fa-
vor of the bondholders of the bonds issued
thereon, or in favor of any person to whom
such debt might be jpayable. It is not suffi-
cient that the municipal authorities should
by the law be authorized to levy and col-
lect a tax sufficient to produce a sinking
fund greater than two per cent, but to
comply with the Constitution the law
must itself provide for a sinking fund
not less than two per cent, or require of
the municipal authorities to levy and col-
lect a tax sufficient to produce tiie minimnm
prescribed by the Constitution." It was
held that, the laws of 1881 and 1887 having
been enacted for the purpose of putting into
force the constitutional provisions, it was
the doty ot the courts to so construe the laws
as to make them valid and give effect to
them. The court came to the conclusion that
these laws did make such provision for the
levying and collecting of a tax as was re-
quired by the Constitution, and tnat, in case
the court had refused to levy the tax after
the bonds were issued and sold, tiie bond-
holders would have been entitled to a man-
damus to compel the commissioners' court to
levy such tax as purely a ministerial du^.
The bonds, with certain immaterial excep-
tions, were held to be valid obligations of
the county.
It is <}uite evident that if this case had
been decided and called to the attcoition of
the courts below, the validity of the bonds
involved in this action would have been sus-
tained, and *the main auestion involved in this[507]
case is whether we snail give effect to this
decision of the supreme court of Texas, pro-
nounced since the case under consideration
was decided in the courts below, and giving,
as is claimed at least, a somewhat different
construction to the Constitution of the state.
We do not ourselves perceive any suc^
inconsistency between the case of MitcheU
Covntyy, The City Nat. Bank, and the earlier
cases, as justifies the county, in the case un-
der consideration, in claiming that the su-
preme court of Texas had overruled the set-
tled law of the state and set in motion a new
departure. No such inconsistency is indicat-
1063
007-609
BUPBBICB Ck>UBT OF THE UNTIXD StATCS.
OoK. T
ed in the opinion in the Mitchell County
Case; so far as the prior cases are cited at
all they are cited with approval, and there
is certainly nothing to indicate that the
court intended to overrule them. That court
had not changed in its personnel since the
prior judgments, except the first, were pro*
nounced,and it is not probable that the judges
would have changed their views without
§am% reference to such change. Indeed, but
one of the earlier oases was cited in the
Mitchell County Case {Bassett v. El Paso,
88 Tex. 175), and that supports rather than
conflicts with the opinion. As we read them,
they merely decided that somie provision for
payment must be made. In the Mitchell
County Case the question was for the first
time presented whether the laws of 1881 and
1887 were constitutional, and whether action
taken under t^ese laws was an adequate
compliance with the requirement that provi-
sion should be made '*at the time of creat-
ing" the debt for a sufficient tax to pay the
''interest and to provide a two per cent sink-
ing fund. It was held that they were. This
overruled nothing, because the question had
never before been decided, and the point was
not made in t^ courts below in this case.
We are simply called upon, then, to deter-
mine what is the law of Texas upon the sub-
ject, since, under Revised Statutes, section
721, the "laws of the several states . . •
shall be regarded as rules of decision in trials
at common law in the courts of the United
States." While if this case had been brought
before this court before the decision in the
Mitchell County Case, we might have tak^i
[508]the view that was *taken by the courts be-
low, treating the question as one hitherto un-
setUed in uiat state, we find ourselves re-
lieved of any embarrassment by the decision
in the Mitchell County Case, which mani-
festly applies to this case and requires a re-
versal of their judgment.
But assuming that the later case was in-
tended to overrule the prior ones, and to lay
down a different rule upon the subject, our
conclusion would not be different. In deter-
mining what the laws of the several states are,
which will be regarded as rules of decision,
we are bound to look, not only at their Con-
stitutions and statutes, but at the decisions
of their highest courts giving construction to
them. PoWs Lessee v. WendaX, 9 Cranch,
87 [3: 665] ; Luther v. Borden, 7 How. 1, 40
[12: 681, 598] ; Ifesmith v. Sheldon, 7 How.
812 [12:925]; Jefferson Branch Bank v.
Bkelly, 1 Black. 436 [17:173]; Leffingtoell
T. Warren, 2 Black. 599 [17: 261]; Christy
v. Pridgeon, 4 Wall. 196 [18: 322]; Post v.
Kendall County Supervisors, 105 U. S. 667
[26: 1204] ; Bucher v. Cheshire Railroad Co,
125 U. S. 555 [31:795].
If there be any inconsistency in the onin-
ions of these courts, the general rule is {hat
we follow the latest settled adjudications in
S reference to the earlier ones. The case of
United States v. Morrison, 4 Pet. 124 [7 :
804], seems to be directly in point. The
United States recovered judgment against
Morrison, upon which a n. fa. was issued,
ffoods taken in execution and restored to the
aebtor under a forthcoming bond. This
1064
.»
bond having been forfeited, ma
awarded thereon by the judgawBt ai
trict court, rendered April, 1822.
was asserted created a lien npoa 1
and overreached certain eoBTcraa
which the defendants «*i^>»^^
ary and March, 1823. The orcoit
of opinion that the lien did Boi
these conveyances. But the camit ei
of Virginia haviiig sobseqiieBtly
that the lien of a judgment coatixamd
ing proceedings on a writ of fi. ia^ tkis
adopted this subseauent oonstmctioa bj
court, and reversea the decree oitim
court.
In Green v. NeaVs Lessee^ 6 Pet. »1 :*;
402], a construction given by tJbe
court of Tennessee to the statute of
tions of that state having been
this court followed *the later cmat
it had previously adopted the mle laii
in the overrulea cases. See aUo Le^
v. Warren, 2 Black, 599 [17: 261] ; Ft
V. Gallatin County, 100 U. S. 47 [23: »44
In Morgan v. Curtenius, 20 How. 1
823], the circuit court placed a camatn
ujjon cui act of the l^islature in
with a decision of the supreme eoart at IS^
nois with reference to the very same tmevw^
anoe, and it was held that, that bei^ tke«fc.
tied rule of property which t^al eovrt m
bound to follow, this court would mMrm i»
judgment, though the supreme oovrt «f tie
state had subsequently overruled its ««■ ^
cision, and had given the act and tke aai
conveyance a different oonstmetioa. We is
not consider this case as neee
ing with those above cited.
An exception has bem admitted te
rule, where, upon the faith of stale
affirming the validity of contracts
bonds issued under a certain
contracts have been made or
under the same statute before tlie prior
were overruled. Such contracts sad
have been held to be valid^ upon Uie
pie that the holders upon pur^asta^
bonds and the parties to sucn coatracts
entitled to rely upon the prior dc
settling the law of the state. T6
otherwise would enable the state to
for its creditors by inducing tbcm tc ^-m^
scribe to bonds and then withdrawi^r tVv
only security. Gelpcke v. Z>ii^«f«e, 1 Wt*
175 [17: 520]: Haremcvtr v. /ok« OwbNl
3 Wall. 294 [18:38]: VifrJkWf v. gtmriwm^
ton, 4 Wall. 270 [18: 350] : Riqfs r. J^km^^
County, 6 Wall. 166 [18: "768]: Lf9 C-mmH
Supers, V. Rogers, 7 Wsll. 181 fit. i«p'
Chicago v. Sheldon, 9 Wall, 50 [1>: 5»M
Oloott V. Fond du Lae County 8mp
16 Wall. 678 [21:382]: Dom^mas
County, 101 U. S. 677 [25: 9«81 :
Seligman, 107 U. S. 20 [27: 359].
Obviously this class of cas
plication here. The bonds were
good faith for a induable oonsklcratl . ,
ceived by the county, and were p«r«4aM^ Vr
the plaintiff with no noUoe of aflrmitr at-
taching to them. If eertain decisiosK* yre-
nounced after the bonds were tfw«ed. t^rrm
doubt upon their validitr, those d<mbts have
been removed by a later decision pmw«viw-«t
T. ^O*
Thb Olindb Rodbiqubs.
609-511
Jiequivocallv in favor of their ♦validity. In
he theory of the law the construction given
D the bonds of this descnription in the Mitoh-
Zl County Case is and always has been the
»roper one, and, as such, we have no hesita-
lon in following it So far as judgments
'endered in other cases which are final and
utappealabla are concerned, a different quea-
;don arises.
The judgments of the Court of Appeals and
3f the Circuit Court must he reversed, and
the case remanded to the Circuit Ck>urt for
l;he Western District of Texas for further
proceedings In conformity with this opinion.
THE OUNDE R0DRIQUE8.
(See 8. C. Reporter's ed. 610-689.)
ft
Vessel captured in attempting to run a
blockade — what is an effective blockade-^
eingle blockading cruiser — right to put in
further proofs — evidence of evil intent —
probable cause for capturing vessel^-de'
etruction pf papers — when restitution will
he decreed conditionally — when intention
to run blockade is presumed-^terms of
restitution of captured vessels,
1. A vessel actually captured In attempting to
enter a blockaded port, after warning entered
on ber log by a cruiser off that port only a
few days before, cannot dispute the efficiency
of the force to wbich she was subjected.
S. An effective blockade Is one tbat is so ef-
fective as to make it dangerous in fact for
vessels to attempt to enter the blockaded
port.
8. The effectiveness of a blockade Is not de-
termined by the number of the blockading
force. If a single modem cruiser blockadlug
a port renders it in fact dangerous for other
craft to enter the port, the blockade is
practically effective.
4. Where the claimant has declined to put In
further proofs as to the violation of the
blockade under the order of the district court,
he cannot, as a matter of right, demand that
the cause shall be opened again for further
proof.
0. The evidence of evil Intent must be clear
and convincing, before a merchant ship be-
longing to citizens of a friendly nation will
be condemned for attempting to run a block-
ade.
8. Probable cause for making the capture of
a vessel for fittemntlng to run a blockade ex-
ists where there are sufficient circumstances
to warrant suspicion, though they may turn
out to be not sufficient to* warrant condemna-
tion.
7. The concealment and destruction of papers
of a captured vessel authorize the presump-
tion of an Intention to supnress incriminat-
ing evidence but such presumption Is not
conclusive when the concealment was owing
to forgetfulness, and the destruction to the
belief that the papers were useless.
8. Byen If the facts are not found to be suf-
ficient to condemn, restitution will not neces-
sarily be made absolutely, but may be decreed
conditionally as each case requires; and an
order of restitution does not prove lack of
probable cause.
' 8. Where the captured vessel had been warned
of the blockade aud was on a course toward
174 U. 8.
the blockaded port, and was steadily parbu-
ing It, and when signaled persisted on her
course, and did not change It until after a
shot was fired, and two of her papers which
would have strongly corroborated her crim-
inal Intent were destroyed, — the intention to
break the blockade was to be presumed.
10. Restitution of the. captured vessel awarded
in this case without damages, and on payment
of the costs and expenses incident to her cus-
tody and preservation, and of all costs in the
cause except the fees of counsel.
[No. 704.]
Argued April 11, 1$, 1899. Decided May 1$,
1899.
APPEAL from a decree of the District
Court of the United States for the Dis-
trict of South Carolina in a prize case in
which a libel was filed by the United States
against the Steamship Olinde Rodrisues and
cargo, for violation of blockade, holding that
the blodcade of San Juan, Porto Rico, was
not an effective blockade and ordering the
restitution of the ship to the claimants. The
steamship ¥ras owned and claimed by La
Compagnie G^n6rale Transatlantioue, a
French corporation. Decree modifiea, and
M modified, affirmed.
See same case below, 01 Fed. Rep. 274.
Statement foy Mr. Chief Justice Fuller t
*This was a libel filed by the United[5Il]
States against the steamship Olinde Rod-
rigues and cargo in the district court for
South Carolina, in a prize cause, for vio-
lation of the blockade of San Juan, Porto
Rico. The steamship was owned and claimed
by La Compagnie G4n6rale Tranaatlantique,
a French corporation.
The Olinde Rodrigues left Havre, June
16, 1898, upon a re^ar voyage on a West
Indian itinerary prescribed by the terms of
her postal subvention from the French gov-
ernment. Her regular course, after touch-
ing at Paulliac, France, was St Thomas,
San Juan, Port au Platte or Puerto Plata,
Cape Haytien, St. Marque, Port au Prince,
Gtonaives, and to return by the same ports,
the vovage terminating at Havre. The proc-
lamation of the President declaring San Juan
in a state of blodcade was issuea June 27,
1898. The Olinde Rodrigues left Paulliac
June 19, and arrived at St. Thomas July 3,
1898, ajid on July 4, in the morning, went
into San Juan, Porto Rico. She was seen
by the United Stated auxiliary cruiser Yo-
semite, then blockading the port of San Juan.
On the fifth of Jmy 1898, the Olinde
Rodrif^ues came out of tne port of San Juan,
was signalled by the Yosemite, and on com-
municating with the latter asserted that she
had no knowledge of the blockade of San
Juan. Thereupon a boarding officer of the
Yosemite entered in the log of the Olinde
Rodrigues an official warning of the blockade,
ajid she went on her way to Puerto Plata and
other ports of San Domingo and Haiti. She
left Puerto Plata on her return from these
Jorts, July 16, 1898, and on the morning of
uly 17 was captured by the United States
armored cruiser New Orleans, then block-
ading the port of San Juan, as attempting to
1065
911^14
SUPBBME Ck>T7BT OF THB UNIXBD SIAXSS.
Oct. T
enter that port. A price crew was put on
[612]board and tne vessel was *taken to Cnarles-
ton. South Carolina^ where she was libelled,
as before stated, July 22, 1898. Deposi-
tions of ofiScers, crew, and persons on board
the eteamship were taken b^ the prize com-
missioners in preparatario, in answer to cer-
tain standing interroffatories, and the papers
and documenta found on board wiere put in
evidence. Depositions of officers and men
from the cruiser New Orleans were also taken
4€ bene ease, but were not considered on the
preliminary hearing except on a motion by
tbe dletrict attorney for leave to take further
proofs.
The cause having been heard on the evi-
dence in preparatorio, the district judffe
ruled, August 13, for reasons given, that the
Olinde Rodrigues could. not, under the evi-
dence as it stood, be condemned for her entry
into the blockaded port of San Juan on July
4, and her departure therefrom July 5, 1898 ;
nor for attempting to enter the same port on
Jidy 17; but that the depositions de bene
es«c justified an order allowing further proofs,
wad stated also that an order might be en-
tered, "discharging the vessel upon stipula-
tk>n for her value, should the claimant so
dect" 89 Fed. Rep. 109. An order was
accordingly entered that the captors have
ninety d&ys to supply further proof "as to
t3ie entry of the 'Olinde Rodrigues' into the
rort of San Juan, Porto Rico, on July 4,
898, and as to the courses and movements
of said vessd on July 17, 1898;" and "that
the claimants may thereafter have such time
to offer testimony in reply as may seem
proper to the court.**
The carffo was released wiuiout bond, and
en Septenu>er 16 the court entered an order
releasing the vessel on "claimants' giving
bond by the Compagnie O^n^rale Transat-
lantique, its owners, without sureties, in the
sum of $125,000 conditioned for the payment
oiP $125,000 upon the order of the court in
the event that the vessel should be con-
demned." The bond was not given, and the
vessel remained in custody.
Evidence was taken on behalf of the United
States, and the cause came on for hearing
on a motion by the claimants for the dis-
charge and restitution of the steamship on
the grounds: ( 1 ) That the blockade of San
Juan at the time of the capture of the Olinde
fS18]Rodrigue8 was not an effective ^blockade;
(2) ^nmt the Olinde Rodrigues was not vio-
lating tihe blockade when seized.
The district court rendered an opinion De-
conber 13, 1898, holding that the blockade
of San Juan was not an effective blockade,
and entered a decree ordering the restitution
of the ship to the claimants. 91 Fed. Rep.
274. From this decree the United States ap-
pealed to this court and assigned errors to
the effect: (1) That the court erred in
holding tiiat t^ere was no effective blockade of
the port of San Juan on July 17, 1898 ; (2)
that the court erred in not finding that the
Olinde Rodrigues was captured while she was
violating the blockade of San Juan, July 17,
1898, and in not decreeing her condemnation
CM lawful prize.
10G6
J/eff«rt. J. P. Keaaedj
M. Hoyty Assistant Attorney
John W, Griggs, Attorney
pellanL
Messrs. Ed^vmrd K. J
Jones, d Chvin fcnr appellee.
at tte
*Mr. Chief Justice
opinion of the court:
We are unable to eoncor with
District Judce in the eoodi
blockade of the port cf San Ji
this steamship was captured
fective blockade.
To be binding, the Modcade
and the blockading force moat be
but is there ainr rule of law
the presence of a particular foree ia
in order to render a blodcade effectrre? W«
do not think so, but on the eontraiy, thmi tht
test is whether the blockade ia prairtiraTy
effective, and that that Is a qnestaoa, tboi^
a mixed one, more of fact than of lav.
The fourth maxim of the DedaratioB tf
Paris (April 16, 1856), was:
in order to be biniding, must be
is to say, maintained by a foree
really to prevent access to the edast cf tat
enemy." Manifestly this broad dc4latti^
was not intended to be literally appHcd. *1W SI4
object was to correct the abuse, la tW car>
part of t^century,of paper blockadasL. vtev
extensive coasts were put under htorlraide bf
proclamation, without the preseace «f si?
force, or an inadeouate force; mad tW ^aet-
tion of what mignt be sufBcienft forer «■•
necessarily left to be determined aeeordiag ts
theparticular circumstances.
This was put by Lord Russd in Us asti
to Mr. Mason of February 10, 16<1, thw
'The Declaration of Paris was ia trwth fr
rected against what were onee teaiaeJ *9Mv
blockades;' that is, Uodcades not saMsiMJ
by any actual force, or sostainad bv a b»-
toriously inadequate naval forea,
an occasional appearance of a
in the ofling or the like. . . .
pretation, therefore, placed br Her MaiMtr^
ffovemment on the Declaration was. tKat a
blockade, in order to be respected by ^emt^t}*
must be practically effective. . . . It •
proper to add that the same view «f :te
meaning and effect of the artidea of tW TWi^
laration of Paris, on the subfert of Ui«i>
ades, which is above explained, was takia H
the representative of the Unitttd Statas at th»
Court of St. James (Mr. Dallas) dvriar t^
communications jiirhich passed betwta t^
tvro governments some years before th# pn^
ent war. with a view to toe acre^^kn «^ t»»
United States to that Declaration.* BiA
Int. Taw, i 260, p. 730, note.
The quotations from the Parliament mrr ^
bates of May, 1861. given by Mr. Dai^ a
note 2^fi to the eig? th editSoa of WbeatM m
International Law, afford intereatim %Dm^
trations of what was considered tht mmfm^
of effectiveness ; and an extract is al«e flknt
given from a note of the Departmeat ef Fi*^
eign Affairs of France of September. 1M1. m
which that is defined: "Fbrees svArimt %r
prevent the ports beinc approached wither
exposure to a certain cungtr.*
lT4«.ft
898.
Thb Oldioib Rodrigues.
514-517
In The Mercurius, 1 C. Rob. 80, 84, Sir
William Scott stated: "It is said this i^ass-
i«re to tSie Zuyder Zee was not in a staie of
>iockad.e ; but the ship was seized immediate-
y on entering it; and I know not what else
m necessary to constitute blockade. The
po^wers who formed the anned neutrality in
the last war understood blockade in thii
sense; and ^Russia, who was the principal
party in that confederacy, describea a place
to be in a state of blockade when it is dan-
gerous to attempt to enter into it."
And in The Frederick Molke, 1 C. Rob. 86,
the sanrie great jurist said : ''For that a legal
blockade did exist results necessarily from
these facts, as nothing farther is necessary
to cM^nstitute blockade than that there
sbould be a force stationed to prevent com-
munication, and a due notice, or prohibition,
g^ven to the party."
Such is the settled doctrine of the English
and American courts and publicists, and it is
embodied in the second of the instructions
issued by the Secretaiy of the Navy, June 20,
1808, General Order No. 492: "A blockade to
be efTective and binding must be maintained
by a force sufficient to render ingress to or
egress from the port dangerous."
Clearly, however, it is not practicable to
define what degree of danger shall constitute
a test of the efficiencv and validity of a
blockade. It is enough if the danger is real
and apparent.
In The Franoieka, 2 Spinks, Eccl. ft Adm.
Rep. 128, Dr. Lushington, in passing on the
question whether the blockade imposed on the
port of Riga was an effective blockade, said :
'•What, then, is an efficient blockade, and
bow has it been defined, if, indeed, the term
definition can be applied to such a subject?
The one definition mentioned is, that erress
or entrance shall be attended with evident
danger; another, that of Chancellor Kent (1
Kent's Com. 146), is that it shall be appar-
ently dangerous. All these definitions are
and must be, from the nature of blockades,
loose and uncertain; the maintenance of a
blockade must always be a question of de-
gree,— of the degree of danger attending ships
going into or leaving a blockaded port.
Nothing is further from my intention, nor,
indeed, more opposed to my notions of the
Law of Nations, than any relaxation of the
rule that a blockade must be efficiently main-
tained; but it is perfectly obvious that no
force could bar the entrance to absolute cer-
tainty; that vessels may get in and get out
during the night, or fogs, or violent winds,
or occasional absence ; that it is most difficult
to judge from numbers alone."
«1 ^"It is impossible/* says Mr. Hall ( 8 260) ,
"to fix with any accuracy the amount of dan-
ger in entry which is necessary to preserve
the validity of a blockade. It is for the prize
courts of the belligerent to decide whether in
a given instance a vessel captured for its
breach had reason to suppose it to be non-
existent; or for the neutral government to
examine, on the particular facts, whether it
is proper to withhold or to withdraw recogni-
tion."
In The Hoffnung, 6 C. Rob. 112, 117, Sir
William Scott said: **When a squadron is
174 U. S.
driven off by accidents of weather, which
must have entered into the contemplation of
the belligerent imposing the blockade, there
is no reason to suppose that such a circum-
stance would create a change of system, since
it could not be expected uiat anv blockade
would continue many months, without beinff
liable to such temporary interruptions. But
when a squadron is driven off by a superior
force, a new course of events arises, which
may tend to a very different disposition of
the blockading force, and which introduces,
therefore, a very different train of presump-
tions, in favor of the ordinary freedom of
commercial speculations. Ita such a ease tht
neutral merchant is not bound to foresee or
to conjecture that the blockade will be re-
sumed." And undoubtedly a blockade maT
be so inadequate, or the negligence of the bel-
ligerent in maintaining it may be of such a
character, as to excuse neutral vessels from
the penalties for its violation. Thus in the
case of an alleged breach of the blockade of
the island of Martinique, which had been car-
ried on by a number of vessels on the dif-
ferent stations, so communicating with eacb
other as to be able to intercept all vessels
attemptinff to enter the ports of the island,
it was held that their withdrawal was a neg-
lect which "necessarily led neutral vessels to
believe these ports might be entered without
incurring any risk." The Nancy, 1 Acton,
67, 69.
But it cannot be that a vessel actuallv cap-
tured in attempting to enter a blockaded
port, after warning entered on her log by a
cruiser off that p^t only a few days before,
could dispute the efficiency of the force to
which she was subjected.
As we hold that an effective blockade is a
blockade so effective *a8 to make it dangerous[517]
in fact for vessels to attempt to enter the
blockaded port, it follows that the question
of effectiveness is not controlled by the num-
ber of the blockading force. In other words,
the position cannot be maintained that one
modem cruiser though sufficient in fact is
not sufficient as matter of law.
Even as long ago as 1809, in The Nancy, 1
Acton, 63, w&re the station of the vessel
was sometimes off the port of Trinity and, at
others, off another port more than seven
miles distant, it was ruled that, "under par-
ticular circumstances a single vessel may be
adequate to maintain the olockade of one
port and co-operate with other vessels at the
same time in the blockade of another neigh-
boring port;" although there Sir William
Qrant relied on the opinion of the command-
er on that station that the force was com-
pletely adequate to the service required to
be perform^!.
The ruling of Dr. Lushington in The Fraw-
oieka, above cited, was to that effect, and the
text books refer to other instances.
The learned district ludge, in his opin-
ion, refers to the treaty between Prance and
Denmark of 1742, which provided that the
entrance to a blockaded port should be closed
by at least two vessels or a batterv on shore;
to the treaty of 1760 between Holland and
the Two Sicilies prescribing that at least six
ships of war should be ranged ai a distance
1067
007-609
8UPBB1CB Ck>UBT OF THE UnITXD STATES.
OofT. T
ed in the opinion in the Mitchell County
Case; so far as the prior cases are cited at
all th^ are cited with approval, and there
is certainly nothing to indicate that the
court intended to overrule them. That court
had not changed in its personnel since the
prior judgments, except the first, were pro-
nounced, and it is not probable that the judges
would have changed their views without
•ome reference to such change. Indeed, but
one of the earlier oases was cited in the
Mitchell County Case {Bassett v. El Paso,
88 Tex. 175), and that supports rather than
conflicts with the opinion. As we read them,
th^ merely decided that somie provision for
payment must be made. In the Mitchell
County Case the question was for the first
time presented whether the laws of 1881 and
1887 were constitutional, and whether action
taken under Uiese laws was an adequate
compliance with the requirement that provi-
sion should be made ''at the time of creat-
ing" the debt for a sufficient tax to pay the
''inierest and to provide a two per cent sink-
ing fund. It was held that they were. This
overruled nothing, because the question had
never before been decided, and the point was
not made in the courts below in this case.
We are simply called upon, then, to deter-
mine what is the law of Texas upon the sub-
ject, since, under Revised Statutes, section
721, the ''laws of the several states . . •
shall be regarded as rules of decision in trials
at common law in the courts of the United
States." While if this case had been brought
before this court before the decision in the
Mitchell County Case, we might have taken
[508]the view that was *taken by the courts be-
low, treating the question as one hitherto un-
settled in uiat state, we find ourselves re-
lieved of any embarrassment by the decision
in the Mitchell County Case, which mani-
festly applies to this case and requires a re-
versal of their judgment.
But assuming that the later ease was in-
tended to overrule the prior ones, and to lay
down a different rule upon the subject, our
eonclusion would not be different. In deter-
mining what the laws of the several states are,
which will be regarded as rules of decision,
we are bound to look, not only at their Con-
stitutions and statutes, but at the decisions
of their highest courts giving construction to
them. Polkas Lessee v. Wendal, 9 Cranch,
87 [3: 665] ; Luther v. Borden, 7 How. 1, 40
[12: 681, 598] ; Nesmith v. Sheldon, 7 How.
812 [12:925]; Jefferson Branch Bank y.
Shelly, 1 Black, 436 [17: 173]; Leffingwell
T. Warren, 2 Black, 699 [17: 261]; Christy
v. Pridgeon, 4 Wall. 196 [18: 322] ; Post v.
Kendall County Supervisors, 105 U. S. 667
[26: 1204] ; Bucher v. Cheshire Railroad Co.
126 U. S. 556 [31:795].
If there be any inconsistency in the onin-
ions of these courts, the general rule is {hat
we follow the latest settled adjudications in
S reference to the earlier ones. The case of
United States v. Morrison, 4 Pet 124 [7 :
804], seems to be directly in point. The
United States recovered judgment against
Morrison, upon which a n. fa. was issued,
ffoods taken in execution and restored to the
debtor under a forthcoming bond. This
1064
bond having been forfeited, an
awarded thereon by the judgment of tbe
trict court, rendered April, 1822, wf ~
was asserted created a lien npon ihm
and overreached certain convey aDcei
which the defendants claimed, dated
ary and March, 1823. The drcait
of opinion that the lien did not
these conveyances. But the ooiirt «f
of Virginia having subsequeBtlj
that the lien of a judgment eontiiuii
ing proceedings on a writ of fL la^
adopted this subsequent constmctioii by
court, and reversea the decree oi iht anmn
court.
In Oreen v. NeoTs Les9ee, 6 P^ »1 [S:
402], a construction given by the wimtf
court of Tennessee to the statute of liKita-
tions of that state having been '**«--r«>^«
this court followed *the later ca* .
it had previously adopted the rule laid
in the overruled cases. See also Leffk^f^tC
V. Warren, 2 Black, 699 [17: 261] ; FmarfmU
V. QaUatin County, 100 U. S. 47 [25: S44].
In Morgan y. Curtenius, 20 Hov. 1 [IS:
823], the circuit court placed a eoastmetiaa
u^on an act of the legislature in aeoordAM*
with a decision of the supreme eoort of Illi-
nois wfth reference to the very Mune eov
anoe, and it was held that, that being xht
tied rule of property which that eomt
bound to follow, this court woold alErm its
judgment, though the supreme oovt ol Ike
state had subsequently overruled its o«m it-
cision, and had given the act and tke mam
conveyance a di&rent construction. We ^
not consider this case aa n ~
K-^'
M
ing with those above cited.
An exception has been admitted to tkit
rule, where, upon the faith of state ~
affirming the validity of contracts
bonds issued under a certain statstc;
contracts have been made or beads
under the same statute before the prior
were overruled. Such contracts and
have been held to be valid, upon the ^
pie that the holders upon pnrchasiair
bonds and the parties to sucn contracts
entitled to rely upon the prior dccuao.
settling the law of the state. To hav» WU
otherwise would enable the state to set a trsf
for its creditors by inducing then to «^
scribe to bonds and then withdrawing tSnr
only security. Oelpcke v. Duhuqwe. 1 WtC
176 [17: 520] : Havemcver v. loum Cvmmtw,
3 Wall. 294 [18:38]: Mitrken t. Bmrhmr
ton, 4 Wall. 270 [18: 350] : Ri^^gs t. Jokmrm
County, 6 Wall. 166 [18:768] : L^ Cnwmtf
Supers, V. Rogers, 7 Wall. 181 [1>: 1«*\
Chicago v. Sheldon, 9 Wall. 50 [19:5i«4**
Oloott V. Pond du IjOc County ^HMrrv-m
16 Wall. 678 [21:382]: Dou<fU»t r. fO*
County, 101 U. S. 677 [25 : 968] : Bmrjtm «.
Seligman, 107 U. S. 20 [27: 3591,
Obviously this class of eases Has m> a^
plication here. The bonds were issotd a
good faith for a valuable oonsideratioe i^
ceived by the county, and were narc)ia»d if
the plaintiff with no notice of inftnaitr at-
taching to them. If oertain decisicMw,' prr
nounced after the bonds were iwnrd. tkrve
doubt upon their validity, those donbts havs
been removed by a later decision praiwiesrisi
174 1L&
Thb Olindb Rodbiqubs.
609-511
l-ianeqnivocallj in favor of their ^validity. In
'^he theory of the law the construction given
-fco the bonds of this description in the Mitoh'
^U County Case is and always has been the
T>rop^ one, and, as such, we have no hesita-
tion in following it. So far as judgments
rendered in other cases which are final and
-unappealable are concerned, a different quea-
'^on arises.
The judgments of the Court of Appeals and
c;/ the Circuit Court must he reversed, and
-file case remanded to the Circuit Court for
•the Western District of Texas for further
proceedings In conformity with this opinion.
THB OUNDE R0DRIQUE8.
(See 8. C. Reporter's ed. 610-689.)
Vessel captured in attempting to run a
blockade — what is an effective blockade —
Hngle blockading cruiser — right to put in
further proofs — evidence of evil intent —
probable cause for capturing vessel—de'
etruction pf papers — when restitution will
he decreed conditionally — when intention
to run blockade is presumed — terms of
restitution of captured vessels.
1. A vessel actually captured In attempting to
enter a blockaded port, after warning entered
on her log by a cnilser off that port only a
few days before, cannot dispute the efficiency
of the force to which she was subjected.
S. An effective blockade Is one that is so ef-
fective as to make It dangerons In fact for
vessels to attempt to enter the blockaded
port.
8. The effectiveness of a blockade Is not de-
termined by the number of the blockading
force. If a single modem cruiser blockading
a port renders It In fact dangerous for other
craft to enter the port, the blockade Is
practically effective.
4. Where the claimant has declined to put In
further proofs as to the violation of the
blockade under the order of the district court,
he cannot, as a matter of right, demand that
the cause shall be opened again for further
proof.
5. The evidence of evil Intent must be clear
and convincing, before a merchant ship be-
longing to citizens of a friendly nation will
be condemned for attempting to run a block-
ade.
tt. Probable canse for making the capture of
a vessel for fittemntlng to run a blockade ex-
ists where there are sufficient circumstances
to warrant suspicion, though they may turn
out to be not sufficient to* warrant condemna-
tion.
7. The concealment and destruction of papers
of a captured vessel authorize the presump-
tion of an intention to supnress incriminat-
ing evidence but such presumption Is not
conclusive when the concealment was owing
to forgetfulness, and the destruction to the
belief that the papers were useless.
8. Even If the facts are not found to be suf-
ficient to condemn, restitution will not neces-
sarily be made absolntely, but may be decreed
conditionally as each case requires; and an
order of restitution does not prove lack of
probable canse.
0. Where the captured vessel had been warned
of the blockade and was on a course toward
174 V. S.
the blockaded port, and was steadily parbu-
ing it, and when signaled persisted on her
course, and did not change It until after a
shot was fired, and two of her papers which
would have strongly corroborated her crim-
inal Intent were destroyed, — the intention to
break the blockade was to be presumed.
10. Restitution of the. captured vessel awarded
In this case without damages, and on payment
of the costs and expenses Incident to her cus-
tody and preservation, and of all costs in the
cause except the fees of counsel.
[No. 704.]
Argued April 11, IS, 1899. Decided May 1$,
1899.
APPEAL from a decree of the District
Court of the United States for the Dis-
trict of South Carolina in a prize case in
which a libel was filed by the United States
against the Steamship Olinde Rodriffues and
cargo, for violation of blockade, holding that
the blockade of San Juan, Porto Rico, was
not an effective blodsade and ordering the
restitution of the ship to the claimants. The
steamship was owned and claimed by La
Compagnie G^n6rale Transatlantioue, a
French corporation. Decree modifiea, and
M modified, affirmed.
See same case below, 01 Fed. Rep. 274.
Statement by Mr. Chief Justice Fuller t
*This was a libel filed by the United[5Il]
States against the steamship Olinde Rod-
rigues and cargo in the district court for
SoutAi Carolina, in a prize cause, for vio-
lation of the blockade of San Juan, Porto
Rico. The steamship was owned and claimed
by La Compagnie G6n6rale Tranaatlantique,
a French corporation.
The Olinde Rodrigues left Havre, June
16, 1898, upon a regular voyage on a West
Indian itinerary prescribed by the terms of
her postal subvez^ion from the French gov-
ernment. Her regular course, after touch-
ing at Paulliac, France, was St. Thomas,
San Juan, Port an Platte or Puerto Plata,
Cape Haytiexi, St. Marque, Port au Prince,
Gtonaives, and to return btr the same ports,
the voyage terminating at Havre. The proc-
lamation of the President declaring San Juan
in a state of blockade was issued June 27,
1898. The Olinde Rodrigues left Paulliac
June 19, and arrived at St. Thomas July 3,
1898, and on July 4, in the morning, went
into San Juan, Porto Rico. She was seen
by the United Stated auxiliary cruiser Yo-
semite, then blockading the port of San Juan.
On the fifth of JiUy 1898, the Olinde
Rodrif^ues came out of tne port of San Juan,
was signalled by the Yosemite, and on com-
municating with the latter asserted that she
had no knowledge of the blodcade of San
Juan. Thereupon a boarding officer of the
Yosemite entered in the log of the Olinde
Rodrigues an official warning of the blockade,
and she went on her way to Puerto Plata and
other ports of San Domingo and Haiti. She
left Puerto Plata on her return from these
Jorts, July 16, 1898, and on the morning of
uly 17 was captured by the United States
armored cruiser New Orleans, then block-
ading the port of San Juan, as attempting to
1065
911^14
SUPBBME COTTBT OF THB UnIXBD STA'
enter that port. A price crew was put on
[612]board and tne vessel was *taken to Cnarles-
ton. South Carolina^ where she was libelled,
as before stated, July 22, 1898. Deposi-
tions of ofiScers, crew, and persons on board
the eteamship were taken b^ the prize com-
missioners in preparatario, in answer to cer-
tain standing interrogatories, and the papers
umI documents found on board were put in
eyidence. Depositions of officers and men
from the cruiser New Orleans were also taken
4€ bene esse, but were not considered on the
preliminary hearing except on a motion by
Hie district attorney for leaye to take further
proofs.
The cause having been heard on the evi-
dence in preparatorio, the district jud^e
ruled, August 13^ for reasons given, that the
Olinde Rodrigues could. not, imder the evi-
dence as it stood, be condemned for her entry
into the blockaded port of San Juan on July
4, and her departure therefrom July 5, 1898;
nor for attempting to enter the same port on
July 17; but that the depositions de bene
eMC justified an order allowing further proofs,
uid stated also that an order might be en-
tered, "discharging the vessel upon stipula-
tion for her value, should the claimant so
elect" 89 Fed. Rep. 109. An order was
accordingly entered that the captors have
ninety (fiiys to supply further proof "as to
t3ie entry of the 'Olinde Rodrigues' into the
port of San Juan, Porto Rico, on July 4,
1898, and as to the courses and movements
of said vessel on July 17, 1898;" and "that
the claimants may thereafter have such time
to offer testimony in reply as may seem
proper to the court."
The carffo was released wiuiout bond, and
en Septeiiu>er 16 the court entered an order
releasing the vessel on "claimants' giving
bond by the Compagnie O^n^rale Transat-
lantique, its owners, without sureties, in the
sum of $125,000 conditioned for the payment
of $125,000 upon the order of the court in
the event that the vessel should be con-
demned." The bond was not given, and the
vessel remained in custody.
Evidence was taken on behalf of the United
States, and the cause came on for hearing
on a motion by the claimants for the dis-
charge and restitution of the steamship on
the grounds: ( 1 ) That the blockade of San
Juan at the time of the capture of the Olinde
fS18]Rodrigues was not an effective ^blockade;
(2) lliat the Olinde Rodrigues was not vio-
lating tihe blockade when seised.
The district court rendered an opinion De-
conber 13, 1898, holding that the blockade
of San Juan was not an effective blockade,
and entered a decree ordering the restitution
of the ship to the claimants. 91 Fed. Rep.
274. From this decree the United States ap-
pealed to this court and assigned errors to
the effect: (1) That the court erred in
holding that there was no effective blockade of
the port of San Juan on July 17, 1898 ; (2)
that the court erred in not finding that the
Olinde Rodrigues was captured while she was
violating the blockade of San Juan, July 17,
1898, and in not decreeing her condemnation
as lawful prize.
10G6
J/effsrs. J. P.
M. Hoyty Assistant Attorn^
John W, Griggs, Attomej
pellanL
Messrs. Edwmrd K. J<
Jones, d Gfovm Unt appellee.
*Mr. Chief Justice
opinion of the court :
We are unable to concur witk tbe
District Judge in the eoodi
blockade of the port of San Ji
this steamship was captured
fecUve blockade.
To be binding, the blockade
and the blockading force must be
but is there any rule of law
the presence of a particular force m
in order to render a blodcade cffectrve?
do not think so, but on the eontrmry, tkai
test is whether the blockade is
effective, and that that is a qoestMB,
a mixed one, more of fact than of lav.
The fourth maxim of the Declare tii si
Paris (April 16, 1856), was:
in order to be binidiiig, must be
is to say, maintained by a fores
really to prevent access to ths edast of xkm
enemy." Manifestly this broiid deftahi-n
was not intended to be literally spplirf *1W S34|
object was to correct the abase^ u the tsrW
part of tiieceintury,of paper blockades, vhn
extensive coasts were put under blockade ^
proclamation, without the prasence of sjtf
force, or an inadeouate force ; and tke fsm-
tion of what mignt be sufBdent fore* «■•
necessarily left to be determined aceordiaf t»
theparticular circumstances.
This was put by Lord Rossdl in Us asts
to Mr. Mason of February 10, 1961, the*
'The Declaration of Paris was in tratk di-
rected against what were onoe teained *pa»«
blockades;' that is, blodcades not vneteiaal
by any actual force, or snstninnd by a b»>
toriously inadequate naval forea,
an occasional appearance of a
in the ofling or the like. . . .
pretation, therefore, placed by Her Mawrtv^
^vemment on the Declaration was. tba: a
blockade, in order to be respected by ne«t-iS
must be practically effective. ... It b
proper to add that the same Tiev of the
meaning and effect of the articles of tW tw*^
laration of Paris, on the subject of Wm^
ades, which is above explained, was takea Vv
the representative of the United Statas at t)t»
Ck>urt of St. James (Mr. Dallas) dvrinr **«
communications jiirhich passed Wtwtsn the
tyro governments some years before tWe frv*-
ent war. with a view to toe acre^»ion of tW
United States to that Declaration.* HsiTk
Int. Taw, i 260, p. 730, note.
The quotations from the Pariiamcntary d^
bates of Mav, 1861, given by Mr. Dsm n
note 2.^3 to the eig) th editSoa of Wbeatsn m
International Law, afford interestinir tUns^
trations of what was considered tW ■laiaii
of effectiveness : and an extract is also tlnte
given from a note of the Department ef F«*^
eiffn Affairs of France of September, 1M1. m
which that is defined: "Florees snArirvt tt
prevent the ports beinc approached withenl
exposure to a certain cungtr."
808.
Thb Oldioib Rodrigues.
514-517
In The Mercurius, 1 C. Rob. 80, 84, Sir
^^Villiam Scott stated: "It is said this ijass-
ssffe to the Zuyder Zee was not in a ttate of
T^lockade ; but the ship was seized immediate-
ly on entering it; and I know not what else
2b necessary to constitute blockade. The
powers who formed the armed neutrality in
^he last war understood blockade in thii
I sense; and ^Russia, who was the principal
party in that confederacy, describea a place
-to be in a state of blockade when it is dan-
gerous to attempt to enter into it."
And in The Frederick Molhe, 1 C. Rob. 86,
^e same great jurist said: "For that a legal
Iblockade did exist results necessarily from
these facts, as nothing farther is necessary
to constitute blockade than that there
should be a force stationed to prevent com-
munication, and a due notice, or prohibition,
given to the party."
Such is the settled doctrine of the English
and American courts and publicists, and it is
embodied in the second of the instructions
issued by the Secretaij of the Navy, June 20,
1898, General Order Mo. 492: "A blockade to
be effective and binding must be maintained
by a force sufficient to render ingress to or
egress from the port dangerous."
Clearly, however, it is not practicable to
define what degree of danger shall constitute
a test of the efficiency and validity of a
blockade. It is enough if the danger is real
and apparent.
In The Franoieka, 2 Spinks, Eccl. ft Adm.
Rep. 128, Dr. Lushington, in passing on the
question whether the blockade imposed on the
port of Riga was an effective blockade, said:
'"What, then, is an efficient blockade, and
how has it been defined, if, indeed, the term
definition can be applied to such a subject?
The one definition mentioned is, that egress
or entrance shall be attended with evident
danger ; another, that of Chancellor Kent ( 1
Rett's Com. 146), is that it shall be appar-
ently dangerous. All these definitions are
and must DC, from the nature of blockades,
loose and uncertain; the maintenance of a
blockade must always be a question of de-
gree,— of the degree of danger attending ships
going into or leaving a blockaded port.
Nothing is further from my intention, nor,
indeed, more opposed to my notions of the
Law of Nations, than any relaxation of the
rule that a blockade must be efficiently main-
tained; but it is perfectly obvious that no
force could bar the entrance to absolute cer-
tainty; that vessels may get in and get out
during the night, or fogs, or violent winds,
or occasional t^sence ; that it is most difficult
to judge from numbers alone."
6] ^"It is impossible," says Mr. Hall ( 8 260) ,
"to fix with any accuracy the amount of dan-
ger in entry which is necessary to preserve
Uie validity of a blockade. It is for the prize
courts of the belligerent to decide whether in
a given instance a vessel captured for its
breach had reason to suppose it to be non-
existent; or for the neutral government to
examine, on the particular facts, whether it
is proper to withhold or to withdraw recogni-
tion."
In The Hoffnung, 6 C. Rob. 112, 117, Sir
William Scott said: "When a squadron is
174 V. S.
driven off by accidents of weather, which
must have entered into the contemplation of
the belligerent imposing the blockade, there
is no reason to suppose that such a circum-
stance would create a change of system, since
it could not be expected uiat anv blockade
would continue many months, without beinff
liable to such temporary interruptions. But
when a squadron is driven off by a superior
force, a new course of events arises, which
may tend to a very different disposition of
the blockading force, and which introduces,
therefore, a very different train of presump-
tions, in favor of the ordinary freedom of
commercial speculations. Ita such a case the
neutral merchant is not bound to foresee or
to conjecture that the blockade will be re-
sumed." And undoubtedly a blockade mav
be so inadequate, or the negligence of the bel-
ligerent in maintaining it may be of such a
cmiracter, as to excuse neutral vessels from
the penalties for its violation. Thus in the
case of an alleged breach of the blockade of
the island of Martinique, whidi had been car-
ried on by a number of vessels on the dif-
ferent stations, so communicating with each
other as to be able to intercept all vessels
attemptinff to enter the ports of the island,
it was held that their withdrawal was a neg-
lect which "necessarily led neutral vessels to
believe these ports might be entered without
incurring any risk." The Nancy, 1 Acton,
67, 59.
But it cannot be that a vessel actuallv eap-
tured in attempting to enter a blockaded
port, after warning entered on her log by a
cruiser off that pm only a few days before,
could dispute the efficiency of the force to
which she was subjected.
As we hold that an effective blockade is a
blockade so effective *aB to make it dangerou^5I7]
in fact for vessels to attempt to enter the
blockaded port, it follows that the question
of effectiveness is not controlled by the num-
ber of the blockading force. In ouier words,
the position cannot be maintained that one
modem cruiser though sufficient in fact is
not sufficient as matter of law.
Even as long ago as 1809, in The Nancy, 1
i^cton, 63, wtore the station of the vessel
was sometimes off the port of Trinity and, at
others, off another port more than seven
miles distant, it was ruled that, "under par-
ticular circumstances a single vessel may be
adequate to maintain the olockade of one
port and co-operate with other vessels at the
same time in the blockade of another neigh-
boring port;" althouffh there Sir William
Qrant relied on the opinion of the command-
er on that station that the force was com-
pletely adequate to the service required to
be performed.
The ruling of Dr. Lushington in The Fran^
oiaka, above cited, was to that effect, and the
text books refer to other instances.
The learned district judge, in his opin-
ion, refers to the treaty between France and
Denmark of 1742, which provided that the
entrance to a blockaded port should be closed
by at least two vessels or a batterv on shore;
to the treaty of 1760 between Holland and
the Two Sicilies prescribing that at least six
ships of war should be ranged ai a distance
1067
517-520
SUPBKICB COXTBT OF THB URIXID fi^ATBi.
slightly greater than gunshot from tiie en-
trance; and to the treaty between Prussia
and Denmark of 1818, which stipulated that
two vessels should be stationed before every
blockaded port; but we do not think these
particular a^eements of special importance
nere, and, indeed Ortolan, by whom they
are cited, sa^ that such stipulations cannot
create a positive rule in au cases even be-
tween the parties, "since the number of ves-
sels necessary to a complete investment de-
pends evidently on the nature of the place
blockaded." 2 Ortolan, 4th ed. 330, and note
2.
Nor do we regard Sir William Scott's
judgment in The Arthur (1814) Dodson,
423, 425, as of weight in favor of claimants.
In effect the ruline sustained the validity of
the maintenance of blockade by a single ship,
and the case was thus stated: ''I%is is a
[618]claim made by one of His Majesty's *ships to
share as joint-captor in a prize taken in the
river Ems by another ship belonging to His
Majesty, for a breach of the blockade im-
posed by the order in council of the 26th of
April, 1809. This order was, among others,
issued in the way of retaliation for the meas-
ures whidi had been previously adopted by
the French government against the commerce
of this country. The blockade imposed by
it is applicable to a very great extent of
ooast, and was never intended to be main-
tained according to the usual and re^lar
mode of enforcing blockades, by stationing a
number of ships, and forming as it were an
arch of circumvallation around the mouth
of the prohibited port. There, if the arch
fails in any one paH, the blockade itself fails
altogether; but this species of blockade,
whidi has arisen out of the violent and un-
just conduct of the enemy, was maintained
by a ship stationed anywhere in the neigh-
borhood of the coast, or, as in this case, in
the river itself, observing and preventing
every vessel that might endeavor to effect a
passage up or down the river."
Blockades are maritime blockades, or
blockades by sea and land ; and they may be
either military or commercial, or may par-
take of the nature of both. The question of
effectiveness must necessarily depend on the
circumstances. We agree that the fact of
a single capture is not decisive of the effect-
iveness of a blockade, but the case made on
this record does not rest on that ground.
We are of opinion that if a single modem
cruiser blockading a port renders it in fact
dangerous for other craft to enter the port,
that is sufficient, since thereby the blockade
is made practically effective.
What, then, were the facts ae to the ef-
fectiveness of the blockade in the case before
vsT
In the proclamation of June 27, 1808, oe-
eurs this paragraph: 'The United States
of America haa instituted and will maintain
an effective blockade of all the ports on the
south coast of Cuba, from Cape Frances to
Cape Cruz, inclusive, and also of the port of
San Juan, in the island of Porto Rico."
(Proclamation No. 11, 30 Stat at L. 34.)
The blodcade thus announced was not of the
1068
coast of Porto Rico, bat of the pert *ef
Juan, a town of less than 25,000 inkahitoti
on the northern coast of Porto Rieet, «m &
single entrance. From June 27 t* Jely 14.
1898, the Yosemite, a mer^iaBt skip om-
verted into an auxiliary emiee
the port. Her maximum speed
and one-half knots; and ho-
5-inch rapid firing guns, six O-poandcrL t«9
1 -pounders, with greatest range of three lad
one-half miles. While the ToseBit* w
blockaaing the port she ran the mmed tnag-
port Antonio Lopez aground six wH» from
San Juan ; gave a number of seotral wBb«
official notice of the blodude: ■aiiJ tS
many from the port; and oo the 5th of Jc>r
1808, wrote into the log of the OUadr %i
rigues, off San Juan, the official iiaiauif _.''
the blockade of San Juan. On Jmly 14 «ss
thereafter the port was Uodaded i^ fhe a^
mored cruiser New Orleansu vhoee BaDB-a
speed was twenty-two knots, and her n»
ment six 6-inch breech-loadix»|^ Hies. Usr
4.7 -inch breech-loading rifles, ten
four 1.5-inch guns, corresponding to
ers; four3-pounder8in the tops; fovr 37
imeter automatic guns, oorrespoodiw Is ]
pounders. The range of her guns was it«s>4
rl
one-half sea miles or six and a onarter
ute miles. If stationary, she eoald commMait
circle of thirteen miles in diameter; if min-
ing at maximum speed, she eonld esw b
five minutes any point on a circle of «■»-
teen miles diameter ; and in ten misHtcs uf
point on a circle of nineteen miles disaesr
her electric search lights could sweep tfte««
by night for ten miles distance; her mM.n
power made her independent of siefc tf^
currents ; in these respects and in her tSw^
ment and increased range of gims xhe bb te*
surpassed in effectiveness the old-tiae ««f
ships that it would be inadmisaible to M
that even if a century ago more thaa am ik9
was believed to be rej^uired for an eff«um
blockade, therefore this cruiser
cient to blockade this port.
Assuming that the Olinde
tempted to enter San Juan July I^, te*
can he no question that it was ilsntiiii ^
her to do so, as the result itsdf 4tm»
strated. She had had actual wanusf tWw
days before; no reason existed for tW fsr
position that the blockade had bec^i pn*^ .
mitted or relaxed ; *her commander \md *' >■
right to experiment ss to the praciiml «^
fectiveness of the blockade, and. if he iitf «
he took the risk ; he was believed to be wtk-
ing the attempt, and was immedistvfy rt»-
tured. In these circumstances the v^**
cannot be permitted to plead that the Mvt^
ade was not legally effective.
After the argument on the motSoe tv ^
charge the vessel, application was vs4r H
counsel for the claimant to the diitn'
judge, by letter, that the Navy Depsrt*r«t
be requested to furnish the court wHk sB ^
ters or despatches of the comma ndert of ^^
sels blodcading the port of Ssn Jaas ii f'
spect to the sufficiencv of the force. As^ *
motion was made in this court **f<r' as or^
auUiorizing the introduction into the nerri
of the despatches of Captain $ir«lw u^
174 11&
Thb Olindb Rodrioues.
620-528
^OInInander Davis/' dated June 27, 1898,
■nd July 26, 1898, and published by the Navy
>epa,rtment in the ''Appendix to the Report
*^:f the Chief of the Bureau of Navigation,
S98," pp. 224, 225, 642.
To this the United States objected on the
:- rounds that isolated statements tran^mit-
.Iq^ official information to superior officers,
uxS consisting largely of opinion and hear-
t^ky, were not competent evidence; that the
slaimants had been afforded the opportunity
>o offer additional proof, and had not availed
:;.henDi8elves thereof; that if the court desired
bo have these papers before it, then the ffov-
Brnment should be permitted to define their
meaning by counter proofs; and certain ex-
planatory affidavits were, at the same time,
tendered for consideration, if the motion
^ivere granted.
We need not specifically rule on the mo-
"tion, or as to the admissibility of either the
despatches or affidavits, as we are satisfied
-that the despatches have no legitimate ten-
dency to establish that the blockade was not
effective so far as the exclusion of trade from
tbis port of the belligerent, whether in neu-
tral or enemy's trading ships, was concerned.
This country has always recognized the es-
sential difference between a military and a
commercial blockade. The one deals with the
exclusion of trade, and the other involves the
consideration of armed confiict with the bel*
lififerent. The necessity of a greater block-
ading force in the latter case than in the
former is obvious. The difference is in kind,
and in degree.
3 *Our government was originally of opinion
that commercial blockades in respect of neu-
tral powers ought to be done away with;
but tnat view was not accepted, and during
the period of the Civil War the largest com-
mercial blockade ever known was estab-
lished. Dana's Wheat. Int. Law, 8th ed. p.
671, note 232; 3 Whart. Int. Dig. S 361.
The letters of Captain Sigsbee, of the St.
Paul, and of Commander Davis, of the Dixie,
must be read in the light of this recognized
distinction ; and it is to be further remarked
that after the letter of Captain Sigsbee of
June 27 the New Orleans was sent by Ad-
miral Sampson' officially to blockade the port
of San Juan, thereby enormously increasing
its efficiency.
In his report of June 28, Appendix, Rep.
Bur. Nav. 220, 222, Captain Sigsbee describes
an attack on the St. Paul off the port of
San Juan, June 22, by the Spanish cruiser
Isabella II. and by the torpedo boat destroy-
er Terror, in which engagement the St. Paul
severely injured the Terror, and drove the
attacking force 9ack into San Juan, and in
his letter of June 27 he wrote : "It is advisa^
ble to constantly keep the Te*'ror in mind as
a possible active force ; but, leaving her out
of consideration, the services to be performed
by the Yosemite, of blockading a well-forti-
fied port containing a force of enemy's ves-
sels whose aggregate force is greater Uian her
own, is an especially difficult one. If she
permits herself to be driven away from the
port, even temporarily, the claim may be set
up. that the blockade is broken."
174 F. S.
It is true that in closing his letter of June
27 Captain Sigsbee said: "I venture to sug-
gest that, in order to make the blockade of
San Juan positively effective, a considerable
force of vessels is needed off that port, enou^
to detach some to occasionally cruise about
the island. West of San Juan the coast, t al-
though bold, has outlying dangers, making
it easy at *Dresent for blockade runners hav-[5M]
ing local pilots to work in close to the port
under the land during the night."
But we are considering the blockade of the
port of San Juan and not of the coast, and
while additional vessels to cruise about the
island might be desirable in order that the
blockade should be positively effective, we
think it a sufficient compliance with the ob-
ligations of international law if the blockade
made egress or ingress dangerous in fac^
and that the suggestions of a zealous Ameri-
can naval commander, in anticipation of a
conflict of armed forces before San Juan,
that the blockade should be brought to the
highest efficiency in a military as well as a
commercial aspect, cannot be allowed to have
the effect of showing that the blockade which
did exist was as to this vessel ineffective in
point of law.
And the letter of Commander Davis of the
Dixie, of July 26, 1898, appears to us to have
been written wholly from the standpoint of
the efficiency of the blockade as a military
blockade. He says: ''Captain Folger kept
me through the night of the 24th, as he had
information which led him to believe that
an attack would be made on his ship during
the night. There are in San Juan, Porto
Rico, the Terror, torpedo gunboat; the Isa*
bella II., cruiser ; a torpedo boat, and a gun*
boat. There is also a Qerman steamer,
which is only waiting an opportunity to slip
out." And further: **It is Captain Folger's
opinion that the enemy will attempt to raise
tne blockade of San Juan, and it is my opin-
ion that he should be reinforced there with
the least possible delay."
In our judgment these naval officers did
not doubt the effectiveness of the commercial
blockade, and had simply in mind the desira-
bility of rendering the blockade, as a mili-
tary blockade, impregnable, by the possession
of a force sufficient to successfully repel any
hostile attack of the enemy's fleet. The
blockade was practically effective; had re-
mained so; and was lesal and bindine, if
not raised by an actual driving away of the
blockading force by the enemy; until the hap-
pening of which result the neutral trader had
no right to ask whether the blockade, as
against the possible superiority of the ene-
my's fleet, was or was not effective in a mil-
itary sense.
*But was this ship attempting to enter the[5M|
port of San Juan, on the morning of July
17, when she was captured? It is contended
fThe coast thus referred to is described In a
work entitled "Navigation of the Gulf of Mexico
and the Carrlbean Sea," Issued by the Navy De-
partment, vol. I. 842, tboe : "The shore appears
to be skirted by a reef, Indoaing numerous small
cays and Islets, over which the sea breaks vio-
lently, and it should not be approached wlthhi
a distance of fc*^r miles."
1060
028-585
SUFBKMS COUBT OV THE UHITKD SlASBl.
by counsel for the claimant that if the rul-
ings of the district court should be disap-
proved of, aa <»portwnity ihowld eiiU be^
given it to put in further proofs in res^t
of the violation of the blockade, notwith-
standing it had declined to do so under the
order of that court. That order gave ninety
days to the captors for further proofs, and
to the claimant, thereafter, such time for
testimony in reply as might seem proper. Af-
ter the captors had put in their proofs, the
claimant, without introducing anything fur-
tiier, moved for the discharge and restitution
of the steamship on the ground of the inef-
fective character of the blockade, and because
the evidence did not justi^ a decree of con-
demnation; but undertone to reserve the
right to adduce further proof, in the event
tluit its moUon should be denied. The die-
trict court ccMnmented with disfavor upon
such an attempt, and we think the claimant
could not as matter of right demand that the
cause should be opened again. The settled
practice of prize courts forbids the taking of
further proofs under such circumstances;
and in the view we take of the cause it would
subserve no useful purpose to permit this to
be done.
On the proofs before us the case is this:
The Olinde Rodrigues was a merchant vessel
of 1676 tons, belonging to the Compagnie
G^n^rale Transatlantique, engaged in tBe
West India trade and receiving a subsidy
from the French government for carrying its
mails on an itinerary prescribed by the pos-
tal authorities. Her regular course was
from Havre to St. Thomas, San Juan, Puer-
to Plata, and some other ports, returning by
the same ports to Havre. She sailed ream
Havre, June 16, and arrived at St. Thomae
July 8, and at San Juan the morning of
July 4. The proclamation of the blockade
of San Juan was issued June 27, while she
was on the sea. The United States cruiser
Yosemite was on duty in those waters, block-
ading the port of San Juan, and when her
commander tiffhted the Olinde Rodrigues
coming from the eastward toward the port
he mi^e chase, but before reaching her she
had turned in and was under the protection
[SM]*of the shore batteries. He lay outside until
the next morning — ^the morning of July 6—
when he intercepted the steamship as she
was coming out, and sent an officer aboard,
who made this entry in her log: "Warned
off San Juan, July 5th, 1898, by U. S. S.
Yosemite. Commander Emory. John Bums,
Ensiffn, U. S. Navy." The master of the
Olinde Rodrigues, whose testimony was tak-
en in preparatoriOf testified that when he en-
tered San Juan, July 4, he had no knowledge
that the port was blockaded, and that he first
heard of it from the Yosemite on July 5,
when he was leavinjif San Juan. After the
notification he continued his voyage on the
rified itinerary, arriving at Qonaives,
last port outward, on July 12. On his
return voyage he stopped at the same ports,
taking on freight, paasengers, and mail for
Havre. At Gape Havtien, on July 14, he
received a telegram from the agent of his
company at San Juan, telling him to hasten
his arrival there by one day In order to take
1070
on fiftr first-daas
that the ship would not too^ at Saa
bjoi wo«M be at St TlioiiiaB ok the ITtk.
The purser testified that on t^ recei|C tf
the (^le from the consignee at Saa Jan,
he told the captain 'that since w wtn ad-
vised of the blockade of Porto Rico by t^
war ship, it was absolutely aeeeaoary aot te
stop"; and that ''before me, the mgat n
Cape Haytien, sent a caUes^raaB, aayiif
'Daim [the vessel] will not stop at 8aa Jmm,
the blockade being notified.' "
The ship's master further testifted t^t «■
the outward voyage at each port he hai
warned the agency of the compaiiy aad Ut
postal department that he woold aot to«ca
at Porto Rico, that he would sot take pas-
sengers for that point, and that the Icttcn
would be returned to St. Thomas, aad thst
having received his dearanee P^pen *^
Puerto Plata at half-past five o'clock oa t^
eveninff of July 15, he did not leave sso:
six o'clock in the morning of Jnly 16, ••
he did not wish to find >^im^y^f at aight '
Che coast of Porto Rico.
The ship was a large and valuable
lon^g to a great steamship eoaipaay tf
world-wide reputation; she was on her rr
turn voyage laden with tobacco, sugar, cafa.
and other products of that region; she lai
no cargo, passengers, or mail for ^Saa Josr C^
she had arrived off that port ia broad dtv
light, intentionally according to tlie eaptaii
her regular itinerary on her retoni to Frsaev
would have taken her from Port an Plsttc ts
San Juan, and from San Juan to St.
and thence to Havre, but as San Jasa
blockaded and she had bMn warned off.
could not lawfully stop there, her roots
from Port au Platte to St. Thomas,
led her directly by and not manj lailcs fna
the port of San Juan.
The only possible motive wliicli eoaU W
or is assigned for her to attempt to hrmk
the blockade is that the consignee at Sis
Juan cabled the captain at Cape Haytki
that he must stop at San Juan aad taks tftv
first-class passengers. At this thmt the A«i
of Admiral Cervera had been dcAtrored - 5^b»
tiago had fallen ; and the long reiga' of Sps^
iu the Antilles was drawing to aa tmL
Doubtless the transportation of fifty trti-
class passengers would prove renraacratm
especially as some of them might be Spsaak
officials, and SfMinish archives and record*
and Spanish treasure, might accompavr thm
if they escaped on the ship. It is forriUy
argued that these are reasonable infeviarr«
and afforded a sufficient motive for the coa
mission of the offense. But as when tV
guilty intent is established, the lack of m^
tive cannot in itself overthrow it, se :W
gresence of motive is not in itself mflh'wt
> supply the lade of evidence of intent. Xw
in this case, the captain not only te»t:M
that he answered the cable to the cffert tkal
he should not stop at San Juaa, bat tte
purser explicitly stated that the ac««t >t
Cape Haytien sent the telegrmai for tht «ar
tain, specifically notifying the ageat at Sm
Juan tnat the ship would not stop there, tks
blockade having oeen notified. It is trm
that the cablegram was not produced, bat
18M.
Thb Olimdb R0DBIGUB8.
5«^8N
this was not to be expected in taking the
depositions in preparaiorio, and partieuuurly
as it was not the captain's own oabl^ram,
but that of the agent at Cape Havtien. There
is nothing in the evidence to the oontrary,
and under the liberality of the rules of evi-
dence in the administration of the civil l»w,
we must take this as we find it, and, as it
stands, the argument that a temptation was
held out is answered by the evidence that it
was resisted.
I *Such being the situation and the evidence
of the ship's officers being «n>licit that the
vessel was on her way to St. Thomas and had
no intention of running into San Juan, the
decree in her favor must be affirmed on the
merits, unless the record elsewhere furnishes
evidence sufficient to overcome the conclusion
reasonably dedudble from the facts above
stated.
Among the papers delivered to the prize
master were certain bills of health, five of
them by consuls of France, namely, July 9,
from St. More, Haiti, ffiving the ship's desti-
nation as Havre, witn intermediate ports;
July 11, from Gonaives, Haiti, giving no des-
tination; July 13, from Port au Prince; July
14, from CapeHaytien; July 15, from Puerto
Plata, — all naming Havre as the destination ;
and tiiree by consuls of Denmark, July 13,
from Port au Prince, July 14, from Gape
Haytien, and July 15 from Puerto Plata, all
naming St. Thomas as the destination.
When the captain testified August 2, in an-
swer to the standing interrogatories, he said
nothing about any Spanish bills of health.
The deposition was reread to the captain,
August 3, and on the next day, August 4, he
wrote to the prize commissioners desiring to
correct it, saying: "I fear I have badlv in-
terpreted several questions. I was asked if I
haa destroyed any papers on board or pass-
ports. I replied, no. The papers— aocu-
ments — on board for our voyage had been de-
livered up proper and legal to the prize mas-
ter. This is absolutely the truth, not in-
cluding in the documents two Spanish bills
of health, one from Port au Prince and one
from Gape Haytien, which we found in open-
ing our papers, although they had not been
demanded. Not having any value for us, I
said to the steward to destroy them on our
arrival at Gharleston, as we often do with
papers that are useless to us. The regular
expedition only counts from the last port,
which was Puerto Plata, and I refused to
take it from our agent for Porto Rico. I
swear that at my examination I did not t^ink
of this, and it is only on my return from sign-
ing that the steward recalled it to me. I
never soufi^ht to disguise the truth, since I
wish to advise you of it as soon as possible."
On the 5th of August the purser answered
Ithe interrogatories, *and testified that papers
were given him by the consignees of the
steamer at Port au Prince in a box at the
time of sailing, and he found in the box one
manifest of freight in ballast, and it was the
same thing at Gape Haytien. At Puerto
Plata the aeent of the company came on
board on their arrival there, and "the captain
told hira that there was no Spanish dear-
ance: there was no need of it; and it was not
174 U. S.
taken." The captain mid to flie agent "it mm
not necessary beoanse we are not going to
San Juan, being notified of the blodcade."
"When we arrive in a port we put up a pla-
card of the date of departure and the time
of sailing and the destination, and it was put
up by my personal order from the captain tnat
we sailed from St. Thomas directly, and it
was fixed up in the niffht of the 15th of July.
. . . We were to start on the morning of
the 16th, at 6 o'clock in the morning, the cap-
tain sayinff he did not want to fall into the
hands of fiie American cruisers during the
night. The night before our arrival in
Gharlestbn, the doctor says to me, 'I have a
bill of health, Spanish account, from Gape
Haytien and Port au Prince,' and I told him
I would speak to the captain and ask him
what to do with these papers that I had found
in assorting my papers — these papers in the
pigeon holes. I told the captain that morn-
ing, and he told me that we had better de-
stroy them, because we don't want them;
that it is not our expedition, and that a true
exposition is valuable only for the last port
to the Spanish port."
On the 5th the captain was permitted to
testify, in explanation, saying, among other
things: "The reason that we did not give
up the two bills of health is because th^ did
not form a part of the clearance of our ship
for our itinerary, and they were left in the
pigeon holes where they were. It was at the
time of our arrival at the quarantine at
Gharleston that the purser spoke to me of
them, and I told him that they were good
for nothing and to tear them up. The cap-
tain wishes to add that he did not remem-
ber the instance the other day about the de-
struction of papers that he has just told us
about and that he never had anv intention
to disguise anything or to deceive."
*Gounse] for the Grovernment insist that the(SS8]
intention of the Olinde to run the blockade
is necessarily to be inferred from the pos-
session of these bills of health and their al-
leged concealment and destruction. Doubt-
less the spoliation of papers, and, though to
a less degree, their concealment, is theoreti-
cally a serious offense, and authorizes the
presumption of an intention to suppress in-
criminating evidence though this is not an
irrebuttable presumption.
In The Ptzarro, 2 Wheat 227, 241 [4:
226, 229], the rule is thus stated by Mr. Jus-
tice Story: "Goncealment, or even spolia-
tion of papers, is not of itself a sufficient
ground for condemnation in a prize court.
It is, undoubtedly, a very awakenine cir-
cumstance, calculated to excite the vigilance,
and to justify the suspicions, of the court.
But it is a circumstance open to explanation^
for it may have arisen from accident, neces-
sity, or superior force; and if the party in
the first instance fairly and franklv explains
it to the satisfaction of the oourt, it deprives
him of no right to which he is otherwise en-
titled. If, on the other hand, the spoliation
be unexplained, or the explanation appear
weak and futUe; if the cause labour under
heavy suspicions, or there be a vehement pre>
sumption of bad faith, or ffross prevaneop
tion, it is made the ground 01 a denial of f ar-
1071
tM-MO
SUPSBlfB COUBT OF THE tJNITKD STATES.
Oct.
iher proof, and condemnation ensues from
defects in the evidence M^ich tiie party is not
permitted to supply."
It should be remembered that the first dep-
osition of the captain was given in answer to
standing interrogatories, and not under an
oral examination; that the statute (R. S. S
4622) forbade the witness "to see the inter-
roffatories, documents, or papers, or to con-
sult with counsel, or with any persons inter-
ested, without special authority from the
court'*, that he was bom and had always
lived in France, and was apparently not con-
versant with our language; indeed, he pro-
tated, as "neither understanding nor speak-
ing English," "against all interpretation or
translation contrary to my thought;" that
the deposition having been read to him the
day aner it was taken, he detected Ha want
of fullness, and immediately wrote the prize
commissioners on the subject with a view to
[SM]correction; *and that it was after this, and
not before, that the purser testified.
Transactions of this sort constitute in
themselves no ground for condemnation, but
are evidence, more or less convincing, of the
existence of such ground ; yet, taking the ev-
idence in this case together, we are not pre-
pared to hold that the explanation as to how
these bills came to be received on board, neg-
lected when the papers were surrendered,
and finally torn up, was not sufficient to ob-
viate any decisive inference of objectionable
intention.
The government further insisted that the
Olinde Rodrigues refused to obey the signal
from the New Orleans to heave to and stop
instantly, and turned only after she had
fired, and that this conclusively esteblished
an intention to violate the blockade. The
theory of the government is that the French
4hip purposely held on so as to get under the
Protection of the batteries of Sui Juan*
107t
«
The log of the Olinde Rodngnes itila:
6.30, noticed the heighU of San Joo. At
7.20, took the bearings of the ftHtras it 4S
degrees, eight miles and one-half au— m
Noticed, at 7.50, a man-of-war. At SJI,ib
signalled 'J. W.,' ["heave to and itM »
stantly"]. I went towards it and wait tt-
rangnnento in order to receive the vWi
boat which is sent to us."
In a communication to the Amhaaaitf if
France at Washington, writtcB Jnlr 17, uri
purporting to give a full aceount of the Bi^
ter, the captain said that he "was fomt ti»
before seeing her signal, oa aeeooBt «< xst
distance and of the Bun. Snspectiaf v^
she wanted, I hoisted the 'pereeifw ik
stopped."
He testified that he tamed hit thmI *•
the warship before the gfotn was fa^L v^-^
was at 8.12, but on this point the criin*
is strongly to the contrary. We arc 'ada^
Elk that some allowance phcfM be
tothink
for imperfect recollection in the rapid pu^
age of events. The Olinde Rodrijnie* ^v
comparatively a slow sailer iten tb tve<--
knots) , and if the captain stopped oa tn-*z
the signal, and turned towards the w t- -
with reasonable promptness, a setlM f:*
pose to Mefy the signal ought not to W :- SI
puted, whether she started towards tW K"
Orleans just before, just after, or jwst m *>
shot was fired.
The stress of the contention of ttt fprnr
ment is, however, that the Olinde Roanrv
was on a course directly into the port of ^
Juan at the time her progress was tmrti^
It is extremdy difficult to be predse h •«*
a matter, as her course to res^ St Tltrw
necessarily passed in face of San Jiaa ?»
captain atteched to his explanatory dkUr-
a sketch, "showing the usual route tad *^
actual route which he was taking at tke ra*
of the capture, with the position of tW (»
taring smp and kb oiwb ihlp,'' as kXkm
Tbb OuxdM BoouaDBk
XifliSi'
4'
%'*
"i
But It ftppfl&ra from Gm ratrlM of tiiB mm^
and officer on the log of the Olinde Rodrlgaea
that the ihip w«a mim ooe to flv* o'elodc in
themoniiiigof Jnl7 17 on the course (u oor-
iwted), S. 69 E., And th>t fratn alz to eight
o^doek the cmme wm 8. T8 E.
The ttiptain tertlBed tfakt tt the time of
etptoie '^ 1
174 U. S.
■*!
''l h*d hwt puaed the port of Su
U. S., Book 4S. 0
Joan, dbont 7 or 8 mnee eutwu4 of ttt
port, and aimut & mile* from shore, sbont 9
miles from Morro. They judged the dlataiuM
in posBing as thej do from all points."
The Moond officer aaid that "thty wen >
milea from San Juan after having pasted the
port of San Juan and gone i mileB eut el
lOTS
SUPBKMS COUBT OF TIIS UlOTBD StaTSS.
Hill tastimony strOdngly confirms Cap-
tain Folger's candid ezpreuion of opinion
that though the maater of the Olinde Rod-
rigaea may htre been ffoing in and out of
that port for years, he did not measure the
distanoes, but 'Vould run so far down the
ooast and order them to steer to a certain
point to head in."
The oommander of the New Orleans ad-
mitted "that south 69 is the proper
beforehand for the Culebra Piwsgf^
passage through whidi to reaiA SL ~
as), but contested that the Fmeh n
was making that course.
Lieutenant Eoonej, the aarigBtar tf
New Orleans, laid dowa Ike
a chart as foUowas
(Os
r>
1074
m»^
180S.
Thb Olixdb RoDRienuL
58a-08i
[588] *The point C it seven and two-thirdB miles
from Morroy bearing S. W., and five milee
from point D., the intersection of a line
drawn west with north and south ime
through Monro. D. is five and two-thirda
ooilet from Monro. The range of Monro guna
was six and one-half miles, and the ranoe of
the shore batteries, three ndles east of Morro,
' also six and one-half miles. Accordinff to
this plat, the Olinde Rodrigues was slightly
within the range of the Monro guns, but not
within the range ol the shore batteries. .The
New Orleans when she fired was close to the
range of the shore batteries and something
orer a mile outside of the totreme range of
the Monro guns.
And it is urged that the conclusion is in-
evitable that tSt French ship intended to run
into the port and to draw the pursuing
eruiser within the range of the Spanish guns.
If her beinff in the neighborhood were not
aatisfaetoriQr explidned; if she persistently
ignored the signal of the cruiser ; and if her
course was a course into the port of San
Juan and not a proper course to reach St.
Thomas, — then the conclusion may be ad-
mitted ; but it is not denied that sne was in
the neighborhood in the discharge of her
duty, and we have already seen that she may
be consistently regarded as not having defied
the signal.
On the part of the captors, the witnesses
concurred that the Olinde Rodrigues's course
was laid for the port of San Juan, while on
her behalf this was denied, except so far as
her course for St. Thomas took her near the
blockaded port. In addition to the witnesses
from the New Orleans the telegraph opera-
tor on the Morro testified that the Olinde
Rodrigues was coming directly toward the
Morro, but changed her course when the shot
was fired.
A principal reason given by the witnesses
for concluding that the Olinde Rodrigues was
making for San Juan was that her masts, as
seen from the deck of the New Orleans, were
open, thus indicating that she was sailinff
south or toward the port of San Juan. It
was admitted that this would not necessarily
be so unless the New Orleans was on the same
line east and west with the other vessel, or,
[084]in other words, if the *New Orleans were to
the north of the Olinde Rodrigues. the let-
ter's roasts might appear open without nee*
essarily indicatinff that she was sailing
south, or towaros the land. Lieutenant
Rooney did not see her until after she w«s
captured. He is positive as to the approxi-
mate position of the New Orleans early in
the morning before thepiinde Rodrigues was
sighted, which had not occurred when he
went below at 7.30, and he is positive as to
the position of the New Orleans after the
capture. He places the position of the New
Orleans at 6.60, when ttie last bearing ob-
servation was taken, at fifteen miles north of
the coast and of the Morro. At nine o'clock
bearings were again taken, and she was
about seven and two-thirds miles from the
Morro. lieutenant Rooney explained in his
testimony the proper courses for a vessel
sailing to St. Thomaa, and stated that sever-
al courses might be properly steered, that
174 V. 8.
one of them would be to pass about twelve
mOes north oi the harbor of San Juan, and
that there was nothing impracticable in a
vessel reaching Culebra Point, with a view
of going to St. niomas, on a course of S. 69
£. from midnight to 6 o'clock, and a change
at 6 o'dodc to S. 73 £. He alao teatified
that a vessel bound for San Juan on an ordi-
nary commercial voyage would have been
nearer the shore than ^niere the Olinde Rod-
rigues was when she was captured, and that
it was probable that if she intended to ffo
to San Juan and avoid the New Orleans she
would have hugged the shore and not been
out at sea.
Some of the evidence, in short, had a ten-
dency to show that Uie Olinde Rodrigues,
when aailinff on a proper courae for St.
Thomas, woiud be drawing to the south, and
that the New Orleans was to the north of
her, in which case, obviously, the nearer the
vessels approached the more open would the
maata of tne Olinde Rodrigues appear. But
the clear preponderance was that the cap-
tured ship was to the west of a north and
south line drawn through Morro, and run-
ning nearly south just hefore or when the
New Orleans fired.
It is impossible to deny that the testimony
of Captain Folger, the commander of the
New Orleans, and of his officers, was extreme-
ly stronffand persuasive to establish that the
^Olinde Rodrigues, when brought to, waa in-[685]
tentionally heading for San Juan, and pur-
suing her course in such a manner as to draw
the blockading cruiser in range of the ene-
mies' batteries, and yet we must conaider it
in view of the evidence on behalf of the cap-
tured ahip, and of the undisputed facta tena-
ing to render it improbable that any design
of attempting to isolate the blodcade was
entertained. The Olinde Rodrigues had
neither passengers nor cargo for San Juan;
in committing the offense, she would take
tiie risk of capture or of being shut up in
that port; she was a merchantman engased
in her regular business and carrying the
mails; she was owned by a widdy known
and reputable company; her reguli^ course,
though interruptea by the blodcade of that
port, led directly by it, and not far from it;
and the testimony of her captain and officers
denied any intention to commit a breach.
The evidence of evil intent must be dear
and convincing before a merchant ship be-
longing to citizens of a friendly nation will
be condemned. And on a careful review of the
entire evidence, we think we are not com-
pelled to proceed to that extremity.
But, on the other hand, we are bound to
say that, taking all the circumstances to-
gether and giving. due weight to the evidence
on behalf of the captors, probable cause for
making the capture undoubtedly existed;
and the case disclosed does not commend this
vessd to the favorable consideration of the
court.
Probable cause exists where there are dr-
cumstances sufficient to warrant suspicion
thou|^ it may turn out that the facts are
not sufficient to warrant condemnation.
And whether they are or not cannot be de-
termined unless the customary proceedings
1075
941-^8
SUPBBMS COUBT OF THC UinTB) STATES.
Imn had given no value for his oony^yunoe.
On the loth of September, 1890, Mehan con-
veyed an undiviaed half interest in the
daims, by a deed duly acknowledged and re-
corded, to Dewitt C. lumer, and on the 22d
of November. 1890, a like deed of one-third
interest to tne defendant Bell H. Chandler,
neither of whom gave value for his convey-
ance, and both of whom had notice of her
equities, and of Mehaa's knowledge thereof,
and that Mehan had given no value for his
conveyance. On the 8th day of January,
1891, the defendant Turner convered an un-
divided one-sixth to the defendant F. C.
Fisher, who had knowledge of her equities,
and the notioe and knowledge of the prior
parties. On the 15th of October, 1890, she
commenced an action for divorce from said
Dal^, and on the 14th day of May, 1891, a
decree was rendered therein in her favor dis-
solving the marriage and awarding her the
mining claims in controversy, and permitting
her to resume her maiden name of "Angela
Bias."
On 4he 18th of October, 1890, and before
Oohn bought the daims, she commenced an
action against Daley, Mehan, and Turner to
quiet the title to the claims, and caused to
be filed in the recorder's office of the county
where the property was situated a notice of
tbe penden<^ of the action, containing a
stat^ent of the nature of the action and of
her ownership of and a description of the
claims; and Adolph Cohn took title from
Mehcui after the filing and recording of such
noUce.
She prayed to be decreed owner of the
daims, and that defendants be adjudged to
have no interest in thmn, and that thdr deeds
be canceled.
The other defendants made default, and
the trial proceeded on the issues made be-
tween appellant and appellee, and judgment
was rendered for her and duly entered. A
motion for a new trial was made, but was
overruled on the 26th day of November, 1892.
A bill of exceptions was submitted by the
r542]appellant on the *lBt of December, 1892, and
settled and allowed on the 15th of said month
hj the judge who presided at the trial, after
objections made by appellee were heard and
considered.
The bill of exceptions recites "that on the
27th cf May, 1892, the above cause came on
regular for trial, and during the progress
thereof the following proceedings were had.
as more fully appears in the statement of
facts filed herein expressly referred to, and
the exceptions to rulings of court as therein
shown are made a part of this bill of excep-
tions."
Then follows an enumeration of the rul-
ings and the motion for new trial and the
ruling thereon.
A statement of facts or what is called such
was submitted to the counsel of appellee on
the 16th of December, 1892. It was entitled
in the court and cause, and contained the
following recital :
"Transcript of shorthand notes of testi-
mony, &c., taken from the trial of the above-
entitled cause, at the courtroom of said court,
in the dty of Tombstone, on Friday, the
1078
(
twenty-seventh day of May, a. d.
9.30 o'dock A. M., before the
Richard E. Sloan, presiding)
out a jury, in the presence Si W. C.
Eisq., attonM^ for, and W. H.
of counsel with plaintiff, and Janei
Eso., attorn^ for defendant Ancela
Daley; Allen IL English, Esq^ for c
Fculowing this recital is a verbat'
script of the proceedings axid of the
by question and answer, and of the
of tne court. It oonduded by the foOoviiJi
recital:
I>ia< it
The foregoing 102 pages and doeoBeite
herdn referred to ana to be copied iato tke
transcript of the clerk when directed is m^
mitted to the opposite party, the ileffia^iii,
by plaintiff as a full statement of teds ia
(he trial of this cause, and is by the
tiff agreed to as such.
Dec 16th, 1892. W. H. Ban
Att^ for Plaiatit.
The record contains the foUowii^g:
We agree that the f(
typewriting entitled *in the above
tain a transcript <^ the
en at the trial of said cause, whidi
therein with the clerk of the court
her 25th, 1892, but said pages also
matter not in sudi transcript mhim
to wit:
''Clerk will here copy said notict is fins-
script," and many sucn commands,
ing on page 3 of transcript, all
or directing the derk to insert is
ficript all the documentary eridenfe isCrr
duced by plaintiff (appdUnt) at the trid,
but none, except in one instance, of the 4ifr
umentary evidence of defendant (apprikt*.
though defendant introduced in iiiihw
many documents, including the depontka d
A. J. Mehan, as shown hf said transcriiC
pages 37 to 40, inc., and the alleged *'«t»t»>
ment of facts" is not such nor erm a hk
statement of the evidence, and w» do ml
agree thereta James RetDy.
Attorney for Angda Diar
Allen K. Eaflnl;
Of
Counsd for plaintiff in the above estitid
cause of Cohn v. Jfe^n et oi., haring hmmm
fore, to wit. on the 16th day of Deeenhir.
1892, submitted to me a statement el fseti
in said cause, and the same having bea
thereupon submitted to counsd for dtfisi
ants, and being b^ them disagreed to a* <«f^
rect, and being likewise found by me to W
incomplete bemuse omitting doramevtary
evidence, said counsd for plaintiff did tWfv^
after, to wit, on the 6th day of March, IM.
submit the foregoing as an amended itai^
ment of facts in said cause, and the mb*
was on said sixth day of March, 18n, bf
me approved and signed.
Richard S. Sloan, Jn4fa
A completed statement was not filed tfl
May, 1893. The judgment wa» mOrmtd m
appeal to the supreme court of the Ictiilsry.
and the case was then brought here
1T4II.S.
189S.
COHH T. DaLET.
588-541
of tbe gune of Morro and of the shore bat-
teries. In facty when the shot was fired she
was within the range of the Morro's gaoB,
The eFidence is overwhelming that she did
not change her course until after the shot
was fired, even though she may have stopped
as soon as she saw the signal. The turning
point into the Culebra or Virgin Passage
was perhaps fortv miles to the eastward, ami
while she could have passed the port of San
Juan on the course she was on, it would have
been within a very short distance. The dis-
regard of her duty to shun the port and not
approach it was so flagrant that the inten-
tion to break the blocki^e was to be presumed
though we do not hold that that was a pre-
sumption de jure.
The ship's log was not produced until three
hours after she was boarded, and it now ap-
pears that the papers furnished the board-
ing officer, "said to be all the ship's papers,"
did not include two Spanish bills of health in
which San Juan was entered as the vessel's
destination. These were destroyed after the
ship reached Charleston, and were, therefore,
D3iQ the ship's ^possession when the other pa-
pers were delivered. Had they been shown, as
they should have been, can it be denied that
they would have furnished strong corrobora-
tion of criminal intent? Or that their de-
struction tended to make a case of "strong
and vehement suspicion T"
The entire record considered, we are of
opinion that restitution of the Olinde Rod-
rigues should be awarded without damages,
and that payment of the costs and expenses
incident to her custody and preservation, and
of all costs in the cause except the fees of
counsel, should be imposed upon the ship.
The decree of the District Court will he so
modified, and as modified affirmed,
•
Mr. Justice MoKenna dissented on the
f round that the evidence justified condemna-
ion.
ADOLPH COHN, Appt,
V,
ANGELINA DALEY and A. J. Mehan.
(See S. C. Reporter's ed. 580-645.)
Appeal from territorial judgment — when H
will he assumed that the evidence supports
the judgment,
1. It mast be assumed that the evidence sup-
ports the judgment, on appeal from a territo-
rial court. In which there Is no statement of
facts In the nature of a special verdict* under
the act of Congress of April 7. 1874.
3. A statement of facts not filed within the
time required by Aris. Rev. Stat. || 848-845,
cannot be considered as part of the record on
appeal from the supreme court of that terri-
tory.
[No. 136.]
Argued and Submitted April 4, 5, 1899, De-
cided May 15, 1899.
APPEAL from a judgment of the Supreme
Court of the Territory of Arizona affirm-
ing the judgment of the District Court of
174 V. n.
said territory in and for the county of Oo*
chise to quiet title to certain mining claims
in an action by Adolph Cohn against
Angelina Daley et dl. The other defendants
having made defauH, judgment was rendered
on the trial for the defendant Daley. Af»
firmed.
The facts are stated in the opinion.
Messrs. Maroas A. Smith and Barnes
d Martin for appellant.
Messrs, James K. Rcdinston and James
Reilly for appellee.
*Mr. Justice MoKenna delivered the[639]
opinion of the court:
This is an action to quiet title to certain
mining claims in the territory of Arizona.
*The anpellantwas plaintiff in the oourt[B40]
below, and the appellee was one of the defend-
ants impleaded with A. J. Mehan, Dewitt C.
Turner, and Bell H. Chandler.
Appellant claims to derive title from one
A. J. Mehan under an execution sale upon a
jud<!ment obtained by him against Mehan in
one of the justices' courts of Cochise county,
in said territory, and a deed executed in pur-
suance of such proceedings and purchase.
The appellee aenied the ownership of appel-
lant, and asserted a superior right upon the
following allegations: That on the 11th of
April, 1890, and for more than five years be-
fore, she and one James Daley were husband
and wife, and lived together as such. At
the time of the marriage he owned no money
nor property of any kind, but thart she had
three thousand dollars "in United States coin
and currency"; and prior to the 11th of
April, 1890, she and Daley used all of said
money "in prospecting for, locating, and pro-
curing, preserving, and maintaining titles to
mines and mining claims," and owned the
claims in controversy on the said 11th of
April. During the coverture she was unedu-
cated and Utterly ignorant of the language,
laws, and customs of the United Stat^ and
the territory, and Daley was fairly well
versed therein ; and, oonfidinff and reiving on
"the advice of her said husband," advanced
him her mone^ "to procure, preserve, and
maintain the title" to the mining claims, and
he took advantage of her ignorance and the
confidence reposed in him, "and took and
kept' the title to all of said mining claims,
and interests in mining claims in his owtt
name," without her knowledge or consent,
and on the 11th of April, 1890, he abandoned
her, and has not since returned to or com-
municated with her.
On the 2d of September, 1890, Dalev con-
veyed the claims by deed duly acknowledged
and recorded in the recorder's office of Co-
chise county, of said territory, to A. J. Me-
han, who gave no value therefor, and who
had full notice and knowledge of all her equi-
ties.
The appellant claims to own the claims by
virtue of an attachment, judgment, execution
sale thereunder, and a constable's *deed inthe[641]
case of Adolph Cohn v. A. J, Mehan, Cohn
was plaintiff in the action and the purchaser
at the sale, and at that time and long prior
thereto had full notice and knowledge of her
equities, and notice and knowledge that Me-
107T
546-549
SUPBEMK COUBT OF THE UinXED BftATEM,
gnmted, tliat all that was attached to it be-
oame part of it and partook of its exemption
from taxaticML
^o support its contention appellant urges
fhe technical meaning of the phrase, 'right of
way/ and daims that the prmiary presump-
tion is that it was used in its technical sense.
Undotibtedlj that is the presumption, but
such presumption must yield to an opposing
context, and the intention of the legislature
othervrise indicated. Examining the statute
we find that whatever is panted is exactly
measured as a physical thing, not as an ab-
stract right. It is to be two hundred feet
wide and to be carefully broadened, so as to
include grounds for the superstructures in-
dispensable to the railroad."
After further consideration of what was
gpranted, we also said: ''The interest
granted by the statute to the Atlantic A Par
cific Railroad Company therefore is real es-
tate of corporeal quality, and the principles
lS47]of such apply. One of these, and *an elemen-
tal one, IS that whatever is erected upon it
becomes part of it.'' And we conduded that
not only the rieht of way was exempt, but all
its superstructures were exempt. But our
conclusion was ennressly based on the terms
of the statute, and we took care to affirm the
rule of construction which had been an-
nounced many times and in many ways, that
the taxing power of the* state is never pre-
sumed to be relin^uidied unless the inten-
tion be expressed m terms too clear to be
mistaken. If a doubt arise as to the intui-
tion of the legislature, that doubt must be
solved a^inst exemption from taxation.
Applying this rule to the act of July, 1866,
the exemption from taxation must be con-
fined to the right of way granted by the
United States by section 2 of the act, and to
the superstructures which become a part of
it, ana not to the right of way which the
railroad compleuiv may have acquired under
section 7, or indepenaently of that section.
Section 1 creates the corporation and author-
izes it to construct and maintain a continu-
ous railroad and telegraph line from and to
certain points, and invests the company with
the powers, privileges, and immunities nec-
essary to effect that purpose. Section 2 pro-
vides: "That the right of toay through the
public lands be, and the same is hereby
granted, to the said Atlantic A Pacific Rail-
road Company . . . for the construction
of a railroad and telegraph line as proposed.
• . . Said way is granted to said railroad
to the extent of one hundred feet
in width on each side of said railroad
where it may pass through the public do-
main, . . . and the right of way shall
be exempt from taxation within the terri-
tories of the United States."
The right of way which is granted and the
right of way which is exempt from taxation
is precisely identified by the natural and
first meaninff of the words used and their
relations. It would require an exercise of
construction to extend the exemption, and
efven if there are reasons for it, there are
certainly reasons against it, and in such con-
flict the rule requires that the latter shall
prevail.
1080
2. It is contended b^ tke appellee that Os
assessment was invalid becanse the lavs el
the territory required the mmemmmt *of
right of way and its uuprntU-mbbBm to
be made as an entirety.
The contention is t^xAniral. It ia not en-
plained that the valuation of the
rures was excessive, but that they
seesed as personal property, and 1
validly assessed, because by the laws of Urn
territory the term "real estate" iadi '
lands to which title has been acquired
improvements, and the term "tmpra
includes all buildings, stmetures,
and fences erected upon or fixed to
whether title has been acquired or not.
The record does not afford the mfm «f
ludginff of the contention as dearly as
be wished, but we think it is not
The intervening petition, whk
basis of the proceedings, proceeds
ground that omissions were made in'
ments of property to the railroad cc ^
for a series of years beginning with the v
1892 and ending with 1896, and that
tions were made of said property
laws of the territory for said
valuation of the property and
levied against it are stated, and
tion of Uie property is attached.
It is alleged that tue receiver of the
pany refuses payment because he
the property is exempt fnmi tax
the act of July, 1866; but it la
"that the said exemption from
tends only to the ri^it of way i^raatcd Is
said railroad company on each side ef its
railroad whtere it may pass throofrh the ,
lie domain, and does not extoid to aay'
provements made upon the right ef
nor to the said right of way itself wk,
f masses through Um not iiicliided in the
ic domain."
It is prayed that 'Hhe said taxea. so
as aforesaid/' be declared a lien on the ^
erty in the hands of the receiver. a»] Thai
be ordered "to pay the said taxea.*
relief is also prayed.
To the petiuon of interventioQ the
submitted pleas respectivdy to the daia ef
taxes for each of the years. The plMS
were substantially alike, and alleged the m-
sessment of the company's property for
of the years, with a description
tion of it, the value at which it i
and the taxes levied against it mmi the
amounts of taxes paid bv the coanpaaj.
In the first plea It i^ alleged that tW esto*
pany through its officers made a rctsra to
the county assessor of its propertr litaetoi
in the county, and a copv of the retnrn is sS>
tached and made part of the plea. Dm
inating the proper^ upon which the ,
were paid and that in the return of the
pany assessed, the plea alleges:
"That the other property returned by tte
taxing officers of said railroad compaay tor
said year was and is the property vpoa whiA
the taxes are paid as abore stated, mmi m
shown by Receiver's Exhibits S awl C
"That the only pretended or HaivMd %r^
of taxes against anv property of the AtlaatJs
k Pacific Railroad Company for tW mU
lT4 1l.t.
i8i»a
Nbw Mexico t. Unitbd Statbb Tbost Co.
548-Sa
If the 80-calIed Btatement of facto wui
filed in time under the Arizona Revised
Statutes, it was not "a statement of the facto
in the nature of a special verdict made and
[Mk4]certiiled l^ *the court below" under the act
of AprU 7, 1874. 18 Stat, at L. 27, 28, chap.
80. We must assume, therefore, that the
evidence supporU the judgment. MarthM
T. BurtU, 172 U. S. 630 [ante, 679].
Was the statement filed in time to become
A part of the bill of exceptions T Certainly
not, if it was not on file at the time of the
settlement of the bill of exceptions or did not
afterward become a part of the record. It
was submitted on the 16th of December, but
not agreed to. It was not approved and
signed bv the judge who tried the case until
l&rch, 1808, and not filed until May, 1893.
The Bevised Statutes of Arizona provide
as follows s
<<843. (Sec. 196.) After the trial of any
cause either party may make out a written
statement of the facto given in evidence on
the trial and submit the same to the oppo-
site party or his attorney for inspection.
If the psjrties or their attorneys asree upon
such stotement of facto, th^ shall sign the
same, and it shall then be submitted to the
judge, who shall, if he find it correct, ap-
prove and sign it, and the same shall be filed
with the dene during the torm."
"844. (Sec. 196.) If the parties do not
agree upon such stotement of facto, or if the
judge do not approve or sign it, the parties
may submit their respective statomento to
the judffe, who shall from his own knowl-
edge, wlui the aid of such stotomento, dur-
ing the term, make out and sign and file
with the derk a correct stotement of the
facto proved on the trial, and such stote-
ment shall constituto a paurt of the record."
"846. (Sec. 197.) The court may by an
order entered upon the record during the
term authorize tne stotement of facto to be
made up and signed and filed in vaoation,
at any time not exceeding thirty days after
the adjournment of the term."
The record shows that the November term
of the court at which the case was tried
was finally adjourned December 29, IB92.
The stotement was therefore not filed within
the time required by the stotute, and can-
not te be considered as part of the record.
The rulings of the court, as exhibited in
the bill of exceptions, are assigned as error.
But for an understonding of the rulings the
testimony in the case is necessary, and we
[645] . re *preduded from lookins at it, because it
14 not properly a part of the bill of excep-
tions, for the reasons we have given.
It follows that on the record there is noth-
ing for our review, and judgment is affirmed.
tERRTTORY OP NEW MEXICO, Appt,,
V,
UNITED STATES TRUST (X)MPANY OF
NEW YORK et oJ.
(See S. C. Reporter's ed. 646-661.)
Saemption from UusaiUm of railroad right
of KToy — separate valuation.
i. The exemption from taxation of a railroad
174 U. 8.
right of way, given by | 2 of the act of Oon-
gress of July 27, 1866, granting lands to the
Atlantic tt Pacific Railroad Company, do«
not extend to the right of way acqnlred am-
der I 7, or. Independently of that sectloa.
from private owners.
2. The designation of some railroad Improve
ments by name, and giving some of tbem a
separate valoatlon, does not Invalidate' tiielr
assessment ss realty.
[No. 169.]
Leave granted to /Ue petition for rehearingt
and counsel allowed thirty days to fUe ad-
ditional brief M, March 6, 1899. Rehearing
granted and case taken on kriefe hereto-
fore filed, April 17, 1899. Decided May
15, 1899.
APPEAL from a judgment of the Supreme
Court of the Territory of New Mexico on
petition for rehearing of the cause, which is
Xrted in 172 U. S7l71, 186, imte, 407, 413,
re judgment of the Supreme Coiut of tha
Territory was affirmed. That judgment is
reversed, and the cause remanded for further
proceedings.
Mr. Frank W. Cnaaey for appellaat.
Messrs. O. K. Stenrj, B. D. K— a, and
Robert Dunlap for appellees.
•Mr. Justice MoKemsa ddivered th€[6M]
opinion ot the oourt:
This case was submitted with No. 106,
which was between the same parties, and on
the authority of the opinion in that case the
judgment of the supreme court of the terri-
tory was affirmed. 172 tJ. 6. 171, 186 [ant€,
407, 418].
The cases were arsued together, and it
was supposed involved identically the same
questions dependent upon a statement of
facts which were stipulated. No distinction
between the cases *was indicated in the oral[5M]
arffument, and a reference <^ a few lines in
a brief of thirty-five pages was overlooked.
In the petition for rehearing our atteniion
was called to the fact that uiere is a sub-
stantial difference between the matters in-
volved in this cause and thoee arising in Na
106. The ditferenoe is this: In 106 the
right of wav was in Bernalillo county
through land which was public domain,
whilst in this case the right of way is in
Valencia county across the public domain for
33 miles only, and for 60.7 miles over land
which was held in private ownership at the
Ume of the grant to the railroad by the aoi
of 1866. In other words, the railroad com-
panv derived its right of way for 33 milea
in Valencia county under section 2 of the
act of July 27, 1866, and to 66. 7 miles un-
der the power conferred by section 7 of said
act. This difference was not adverted to in
No. 106, and we will now consider the effect
of it. In the opinion in 106 we said:
''The right of way is granted to the ex-
tent of two hundred feet on each side of the
railroad, including necessary grounds for
station buildinffs, workshops, etc What^
then, is meant bv the phrase, 'the right of
wayT' A mere right of passage, says appel-
lant. Per contra, appellee contends that the
fee was granted, or, if not gnranted, that such
a tangible and corporeal property was
688.558
SUPBEMK COUST OF THE UlOTED STATES.
poration of another tiaie — oorporatum a
eiii0en of the state of its creation — furi^
diction of suit — suit to cancel a guaranty,
etc., can only be brought in court of equity
— power of railroad corporation to guar'
antee bonds of another corporation — when
guaranty not ultra vires — rights of bona
fide holders — when validity (usumed— ob-
ligation to inspect records — jurisdioUon
depending upon citizenship,
1. A corporation of one state may be made a
eorporatlon of another state by tbe legisla-
ture of that state In regard to property and
acts within Its territorial jnrlsdlctlon.
S. A. corporation created by a state remains
a citizen of that state for the purposes of the
jurisdiction of the Federal coarts, althongh
also created a corporation of another state.
t. Jnrlsdlctlon of a snit, oooe acqnlred by a
conrt of the United States by reason of the
requisite citizenship. Is not lost by a change
In the dtlsenshlp of either party pending the
suit.
4. A snit to cancel a guaranty of negotiable
bonds which might otherwise pass Into the
hands of bona fide purchasers, and to restrain
•olts upon the gnarantyt becaose of facts not
appearing npon Its face, can only be brooght
in a conrt of equity.
5. A railroad corporation, unless authorised
by Its act of Incorporation or andther statute,
has no power to guarantee the bonds of an-
other corporation.
6. The guaranty by one railroad company of
the bonds of another Is not ultra vires In the
sense of being outside of Its corporate powers
when expressly authorised by a statute of
the state of Its creation ; the prerequisite
prescribed by the statute, that It should be
made upon the petition of a majority of the
stockholders. Is only a regulation of the mode
and agencies by which the corporation should
exercise tbe power granted to It.
7. A guaranty of t>onds by a corporation,
which could be lawfully made only by a peti-
tion of the majority of Its stockholders, which
was not obtained. Is enforceable by Ixma fide
holders of the bonds, but inralid as to other
holders.
6. One who takes from a railroad or business
corporation. In good faith and without actual
notice of any Inherent defect, a negotiable
obligation Issued by order of the board of
directors, signed by the president and secre-
tary in the name and under the seal of the
corporation, and disclosing upon its face no
want of authority, has the right to assume
its yalldlty If tlie corporation could, by any
action of Its. officers or stockholders or of
t>oth. have authorised the execution and Issue
of the obligation.
•. Records of a railroad corporation are pri-
vate records which a purchaser of bonds Is
not obliged to Inspect to see whether a guar-
anty thereon was authorised by a majority
o' the stockholders.
10. The rights and liabilities of a state corpo-
ration, as a corporation of other states than
that which created It, cannot be adjudicated
in a suit In a Federal court In which the ju-
risdiction depends upon Its citlsenship In that
state, and would be ousted by citlsenship in
the other states.
[Noe. 29, 30.]
Argued May 4, 5, J898. Decided May 15,
1899.
1082
0
AlbuT. A
N WRITS OF CERTIORARI t»
ed States Circuit Court of
the Sixth Cireuit to leiigw a
that court roTerawg the decree of
cuit Court <^ the United SUtes for the
trict of Kentucky, entered for the
against all the d^endants in a suit n
brought by the LouisviUe, Ni
Chicago Railway Company
ville Trust Company et «<., lorthe
tion of a contract and of a naraaty i
upon Ixmds issued by the RiehaMod, Si
asville, Irvine, A Beattyrille Railway
pany and held by other defendeats,
an injunction against suits
supplemental bill was tiled
Louisyille Banking Com
holding the guaranteed
ctiit Court of Appeals further
suit to be dismissed as to the
Trust Company and the Louisville
Company except as to forty-five
by the latter comfMiny ; and as to these
ordered an injunction against salts c
guaranty, etc Decree ol ^re«it Coait
Appeals in the first caai
remanded to the United States Greait
with directions to dismiss the suit as
the Louisville Trust Company; aad
second case decrees of both lower
versed and case remanded to the U
States Circuit Court, with directieas tB
ter a decree in conformity with the
of this court.
See same case below, 69 Fed. Rc^ 431. i
67 Fed. Rep. 42, and 43 U. 8. App. SMC
Fed. Rep. 433, 23 a C. A. S78.
Statement by Mr. Justioe Ovatyi
This was a bill in equity, filed Aw^ t
1890, in the circuit court of the Csititf
States for the district of Kentucky, hr ite
Louisville, New Albany, 4 Chieajro Ra^^tf
Company (hereafter called the New AAaw
Company) , described as *^ eorporatasa <■>
organised and existing under the lam «tf :»•
state <^ Indiana," agains* the Ohio VsDr
Improvement k Contract Conpaay (hwft
er called the conetructioa wampanv * . t^
Richmond, Nicholasville, Irvine, and ^atfry
ville Railway Company (hereafter ealM t««
Beattyville Company), ^and the Loain^*
Trust Company, all oorporatioae of the i(s>
of Kentucky, and other citixens of Kcataitv
of Now York and of Illinoia, for the
Uon of a contract between the New
Company and the constructioa com
of a guaranty indorsed by the Ke
Company, in accordance with that
upon bofiGs issued by the Beattyville <>»
pany and held by the other defcodaala aV
for an injunction against suite thcr««a. TW
Louisville Banking Compaay, a co
of Kentucky, and ^er bondholders
erwards made defendants by a
biU.
The bill alkged that the
fraudulently placed on the hoods of the
tyville Company by a minority of the pkui-
tifTs directors, who» as individuals, barf »
cured the option to buy the bo«de at a We
price; and also averred that the gaenatt
was void, for want of the Draeaaee of a ftr^
1896.
LouisyiLLB, N. A. & C. R. Co. y. Louisvillx Tkdbt Oou
54^-raB
jrear, remaining unpaid, Ib that shown to have
been extended and levied upon the 'rk^ht of
way, of the Atlantic & Pacific Railroaa Com-
panj, which was and is assessed at the lump
sum of $327,103, upon the assessment roU
for said year, together with the further sums
placed in said assessment roll in the column
headed "Value of cattle,' opposite the words
contained in the column in said assessment
roll headed "Name of property owners/ save
and except as hereinafter stated.
"The names and sums referred to are aa
follows :
Bio Puerco, 1st $1,888 00
El Rito, 3rd 541 00
Laguna, 4th 077 00
Cubero, 6th 2.145 00
McCarty's, 7th 082 00
Grants, 8th 1,383 00
Blue Water, 9th 3.160 00
San Jose, 2nd 1,316 00
— "All of which is shown by the said as-
sessment and levy of taxes upon said assess-
ment roll, as wiU full^ appear by reference
to said Receiver's Exhibits No. 1 and No. 2,
and the indorsements thereon.
I50] •"That prior to the first day of January,
1804, the Atlantic k Pacific Railroad Com-
pany paid each and every item of taxes as-
sessed and levied against it or its property
in said Valencia county, territory of New
of way was assessed, and the taxes levied
against the assessed value of its 'right of
way,* and that levied against the figures set
opposite the names of the stations aa here-
inabove set forth and dttcribed."
The right of way, therefore, wan assessed
in 1892, and whatever taxes were due on it
or any part of it were left delinquent.
As to the other years the record is not
much less definite. It appears that the ri^ht
of way was assessed, and the taxes levied
against it were not paid. In all the pleas
tliere is a careful allegation of payment of
the taxes which were concedeil to be valid
and as careful a one that the company re-
fused "to pay the balance of the taxes be-
cause of tne fact that the assessment as
made by the assessor was an assessment of
the right of way and station srounds of the
Atlantic k Pacific Railroad, wnich were and
are exempt under the act of Congress cre-
ating saia railroad company." It is mani-
fest that the risht of way was assessed and
the taxes were delinquent. In what manner
were the additional assessments made? It is
shown in the exhibit to the intervening pe-
tition. We select the assessment for 1892.
The assessments for the other years are the
same, the amounts only being different to a
small extent.
"The following was omitted in the assess-
ment of the year 1892, and was not put upon
the assessor's book, and is now, in accord-
ance with the provisions of sections 2847 and
2848, here listed, valued, and assessed by the
collector:
"The cross ties, rails, fish plates, bolts, spikes,
bridges, culverts, telegraph line and other
structures erected upon the riffht of way
of the Atlantic k Pacific R&ilroad Com-
pany in the county of Valencia, and con-
stituting 'improvements' upon the land
174 V. 8.
embraced within said right of way wher*
same runs over what was public domain
of the United States when said right ci
way was granted to said company, 8S
miles in length, valued at $6,600 per
mile $214,600
*"Also the cross ties, rails, fish plates, bolts,[651]
spikes, bridges, culverts, telegraph line and
other structures erected upon the right of
way of the Atlantic & Pacific Railroad Com-
pany in said county of Valencia, and con-
stituting "improvements" upon the land
embracM within said right of way where
it runs over land which was held in pri-
vate ownership at the time of the grant of
said ri^t of way to said railroad com-
pany, 60.7 miles, valued at $0,500 per
mile .$394,560
Station houses, depots, switches^
water tanlcs and all other im-
provements at Rio Puerco station $1,800
Station houses, depots, switches,
water tanks and all other im-
provements at San Jose station. . 640
Station houses, depots, switches,
water tanks and all other im-
provements at El Rito station. . • 600
Station houses, depots, switches,
water tanks and all other im-
provements at La Guna station. . 2,100
Station houses, depots, switches,
water tanks and all other im-
provements at Cubero station. . . 600
Station houses, depots, switohes,
water tanks and all other im-
provements at McCarty's station 1,300
Station houses, depots, switches,
water tanks and all other im-
provements at Qrant's station . . . 3,100
Station houses, depots, switches,
water tanks and all other im-
provements at Blue Water station 1,300
$11,340*
The assessment were not, as contended by
appellee, of personal property. They Vrere
clearly of real estate, and because Uie im-
provements were designated by name and
some of them given a separate valuation
did not invali£te their assessment as real
estate. It was mere description which did
not change the essential or legal character d
the superstructures.
It follows from these views that —
The judgment of the Supreme Court of tk9
Territory muat be reveraedy and the cause
remanded for further proceedings in accord*
ance with this opinion; and it is so ordered.
LOUISVILLE, NEW ALBANY, k CmCA-rsStt
GO RAILWAY COMPANY, Petitioner,
LOUISVILLB TRUST COMPANY.
LOUISVILLE, NEW ALBANY, k CHICA-
GO RAILWAY COMPANY, Petitioner,
LOUISVILLE BANklNG COMPANY.
(See 8. C. Reporter's ed. 663-577.)
Corporation of one ttate may ^ made a eor^
1081
956-l{58
SUPSBMS COUBT or THE UNITED SXAIKS.
Amend an A4st Entitled 'An Aet to Incorpo*
rate the Louisville, Neiw Albany, k Chica^
Bailway/ approved April 8, 18iB0," enacted
that "the Louisville, ifew Albany, k Chica^
Railway Ck>mpany is hereby authorized and
empowered to indorse or guarantee the prin-
cipal and interest of the bonds of any rail-
way company now constructed, or to be here-
after constructed, within the limits of the
state of Kentucky; and ma^ consolidate its
rights, franchises, and privileges with any
railway ccmpany authorized to construct a
railroad fnxn the cit^ of Louisville to any
point on the Virginia line; such indorse-
ment, guaranty, or consolidation to be made
upon such terms and conditions as may be
agreed upon between said companies; or it
may lease and operate any railway chartered
under the laws of the state of Kentucky:
Provided, it shall not lease or consolidate
with any two lines of railway parallel to
each other." Kentucky Stat. sees. 1881,
chap. 870, p. 251.
llie New Albany Ck>mpany was not shown
to have formally accepted the statutes of
Kentucky of 1880 and 1882, or to have ever
organized as a corporation under those stat-
utes. But the defendants, as evidence that
it had accepted a charter of incorporation
from the state of Kentucky, relied on the fol-
lowing documents:
let. Two deeds to it of lands in Jefferson
eounty, made and recorded In 1881, in which
it was described as "of the city of Louisville,
Kentud^."
2d. Two mortgages executed by it to trus-
tees in 1884 and 1886, including its railway
in Indiana and in Jefferson county, in each
of whi(^ it was described as "a corporation
duly created and existing under the laws of
Indiana and Kentucky."
3d. A lease to it from the Louisville South-
|W7]em Railway *Ck>mpany, in 1888 (more fully
stated below), in whidi It was similarly de-
scribed.
4th. A petition (the date of which did not
appear in the transcript) that an action
brought against it in a court of the state
of Indiana might be removed into the cir-
cuit court of the United States, upon the
ground that it was a corpcnration of Ken-
tucky.
6th. Proceedings in 1887, in a court of
Jefferson county, for the condemnation of
lands in that county upon a petition in which
^e Louisville, New Albany, A Chicago Rail-
way Company states that it is a corporation,
and that it is duly empowered by its charter
by an act of the general assembly of the com-
monwealth of Kentucky to purchase, lease,
or condemn in said state sucn real estate as
may be necessary for railway, switches, side
tracks, depots, yards, and other railway pur-
poses, and to construct and operate a rail-
road in said state."
On Marcb 8, 1883, the legislature of In-
diana passed a statute, entitled ''An Act to
Authorize Railroad Companies Organized
under the Laws of the State of Indiana to
Indorse and Quarantee the Bonds of Any
Railroad Company Organized under the
1084
Laws oi Any Adjoining State," tke
provisions of whidi were as foUovs:
"Sec 1. The board of direeton ef
railway company CMganized
suant to the laws of the
whose line of railway
state in either direction, may, npoo the
tion of the holders ol a majority of the
of such railway company, direct tftc
tion by such railway company of aa n
ment guaranteeing the pajmokt of the ^
cipal and interest of the bonds of aay 'rail-
way c<mipany organized under or pii is
to the laws of any adjoining state, the mt-
structlon of whose line or Uiws of rail«aT
would he beneficial to the
of the railway so indorsing or
such bonds.
"Sec 2. The peUUon of the stoe^heUn.
specified in the preceding section of this mc
shall state the facts relied ob to tho* tki
benefits accruing to the company
or guaranteeing the bonds above
*" Sec 3. No rail way company shalL
the provisions of this act, indone or
antee the bonds of any such railway
pany or ccnnpanies, as is abov«
to an amount excelling one half oi tk»fm
value of the stock of the railway
so indorsing or guaranteeing as a
under this act" Indiana Stat. 18SX
127, p. 182; Rev. Stat. If 3951«-«9$le.
On December 10, 1888, the New
Company took a lease, in wkick it
scribed as ''a corporation orgaaued
isting under the laws o^ the state of
and of the state of Kentoek,
Louisville Southern Railroad 'CcaaMf. »
corporation of Kentucky, of the radnaiS rf
the latter, running from Ix>iusTille la
through sundry oUier place
and connecting at Va^aille
with a railroad then being comatrmetmi If
the Beat^rville Company to BeattyviDa of
which would, if completed, rxtand the as-
nections of the New Albany Cooipaay a as-
siderable distance towards the Vtrgmis tea
The Beattyville Company had, oa Otokw
11, 1888, made a contract with the Ok» T»
ley Improvement and Contract Ooaifaay. ^
which that company agreed to
equip its line of railroad; aad, i
oration thereof, the Beattyville
agreed to execute and issue to the
tion company Its flrst-mortgace
$25,000 a mile, dated July 1, I8«
able in thirty years, with interest at th» »
nual rate of 8 per cent : and to
that company the subscriptioas
from rounicifmlities, and to
company all its capital sto^
would have to be issued on
subscriptions.
On October 8, 1889, the boaH of
of the New Albany Company, as appearW **
its records, passed a remutioe
president and secretary to exeeote,
seal of the company, a contract witl
structlon company, whl^ contract
that company as a corporation of the
of Kentucky, and the New Albasy
as "a corporation organised aad aaittiat •-
t» Ihrt
thtae
1898.-
Looi8VTLLE» N. A. & C. R. Co. y. LouitYiLLm Tbust Co.
558-5M
nun of the directors at the meeting which di'
rected it to be executed, as well as for want
of a previous petition in writing by a ma-
jority of the stockholders, pursuant to a
statute of Indiana.
Pleas to the jurisdiction, asserting that
theplaintilT was a corporation and a citizen
of Kentucky, as well as demurrers to the bill
for want of equity, were overruled by the
court. 69 Fed. Rep. 481, 432, 67 Fed. Rep.
42.
The case was afterwards heard upon
plendinffs and proofs, and, so far as is mate-
rial to be stated, appeared to be as follows:
The New Albany Company, by articles of
incorporation, filed with the secretary of
state of Indiana in January, 1873, reciting
its purchase at a judicial sale at New Al-
bany of the railroad and franchise, and all
the property, real and pco'sonal, of another
railroaa company whose line of railroad ran
from New Albany to Michigan City in the
state of Indiana, and expr^sed to he made
''for the purpose of carrying out the design
of the said purchase, and forming a corpora-
tion of Indiana," became a corporation, un-
der the statute of Indiana of March 3, I8669
which contained these provisions:
"The said corporation shall have capacity
to hold, enioy, and exercise, within other
states, the aforesaid faculties, powers, rights,
franchises, and immunities, and such odiers
554]a8 *may be conferred upon it by anv law of
this state, or of any other state in which any
portion of its railroad may be situate, or in
which it may transact any part of its busi-
ness; and to hold meetings of stockholders
and of its board of directors, and to do all
corporate acts and things, without this state,
as validly and to the same extent as it may
' do the same within the state, on the line
of sudi road." Indiana Stat. 1866, chap.
20, 9 6, p. 68; Rev. SUt. 9 3949.
'*Any railroad company incorporated un-
der the provisions of this act shall have the
power and authority to acauire, by purchase
or contract, the road, roadbed, real and per-
sonal property, rights and franchises, of any
other railroad corporation or corporations
which may cross or intersect the line of such
railroad company, or any part of the same
or the use and enjoyment thereof, in whole
or in part; and may also purchase or con-
tract for the use and enjoyment, in whole
or in part, of any railroad or railroads ly-
ing within adjoininff states; and may as-
sume such of the debts and liabilities of
such corporations as may be deemed proper."
''Any railroad company incorporated under
the provisions of this act shall also have
power to consolidate with other railroad cor-
porations in the continuous line, either with-
in or without this state, upon such terms as
may be agreed upon bv Uie corporations own-
ing* the same." Indiana Stat. 1866, chap.
20, 9 7, p. 68; Rev. Stat. 9 3951.
On April 8, 1880, the legislature of Ken-
tucky passed a statute, entitled "An Act to
Incorporate the New Albanv A Chicago Rail-
way uompany," which took effect upt>n its
passage, and the first two sections of which
were as follows:
"Sec. 1. The Louisville, New Albany, 4
174 V. n.
Chicago Railway Company, a corporation or-
ganised under the laws of the state of Indi-
ana, is hereby constituted a corporation,
with power to sue and be sued, contract and
be contracted with, to have and use a com-
mon seal, with the power incident to corpo*
rations, and authority to operate a railroad.
"Sec 2. The Louisville, New Albany, A
Chicago Railway Company is hereby author-
ized to purchase or lease, for depot purposes
in the city of Louisville or countjr of Jeffer-
son, such *real estate as may be oeemed by it[56S]
to be necessary for passenger and freight
depots and transfer, machine shops, and for
all switches or turnouts necessary to reach
the same; and is also authorized to connect
with any railroad or bridge now operated or
used, or which may be he?eafter operated or
used, in said county of Jefferson, and may
build any such connecting lines, or lease or
operate the same; and for all said purposes
shall have the right to condemn all property
required for the carrying out of the objects
herein named; and may oond the same, and
secure the pavment of any sudi bonds by a
mortgue 01 its property, rights, and fran-
The third section of that statute directed
how proceedings for the condemnation of
such real estate should be conducted in the
courts of the state of Kentucky. Kentucky
Stat. sess. 1879, chap. 868, p. 233.
On Biay 6, 1881, the New Albany Company
(describing itself as "a corporation existing
irnder the laws of the state of Indiana," and
as owning and operatinff a line of railroad
from New Albany to Bfichigan Cit^ in thi^
same state) , and the Chicago k Indianapolis
Air Line Railwav Company (describing it-
self as "a consolidated corporation organized
and existing under the laws of the s&tes of
Indiana and Illinois," and as having in proo*
ess of construction a line of railway extend-
ing from Indianapolis in Indiana to a con-
nection with a railroad at or near Qlenwood
in Illinois so as to secure a connection with
Chicago in that state), consolidated their
stock and property, under the laws of In-
diana and of Illinois, "so as to create and
form a consolidated corporation, to be called
and known as the Louisville, New Albany,
k Chicago Railway Company," by articles of
consolidation, the third of whidi provided,
in accordance with the statutes of Indiana,
that "t^e said consolidated corporation here-
by created shall be vested with all the rights,
privileges, immunities, and franchises wnidh
usually pertain to railroad corporations un-
der t^e laws of the respective states of Illi-
nois and Indiana, wherein the lines of its
railroad are situate, and shall also be vested
with all and singular the riffhts, powers,
privileges, immunities, capacities, and fran-
chises which before the execution *of these[55q
articles were lawfully possessed or exercised
bv either of the parties hereto;" and the
ninth of which provided that "the principal
place of business and the general office of the
consolidated corporation shall be established
in the city of Louisville, Kentucky."
On April 7, 1882, the lesislature of Ken-
tucky, by a statute enUtlod "An Act to
1083
956-l{58
SUPSBMS COUBT OF THE UNITED SXAIKS.
Amend an A4st Entitled 'An Aet to Incorpo*
r&to the Louisville, New Albany, A Chica^
Bailwav/ approved April 8, 1880," enacted
that "the Louisville^ New AUMiny, k Chica^
Railway Ck>mi>an7 is hereby authorized and
empowered to indorse or guarantee the prin-
cipal and interest of the b<mds of any rail-
way company now constructed, or to be here-
after constructed, within the limits of the
state of Kentucky; and ma^ consolidate its
rights, franohiBes, and privileges with any
railway ccmpany authorized to construct a
railrosbd fnxn the cit^ of Louisville to any
point on the Virginia line; such indorse-
ment, guaranty, or consolidation to be made
upon such terms and conditions as may be
agreed upon between said companies; or it
mav lease and operate any railway chartered
under the laws of the stete of Kentucky:
Provided, it shall not lease or consolidate
with any two lines of railway parallel to
each other." Kentudcy Stat. sees. 1881,
chap. 870, p. 251.
The New Albany Ck>mpany was not shown
to have formally accepted the statutes of
Kentucky of 1880 and 1882, or to have ever
organized as a corporation under those stet-
utes. But the defendanto, as evidence that
it had accepted a charter of incorporation
from the stete of Kentucky, relied on the fol-
lowing documente:
let. Two deeds to it of lands in Jefferson
county, made and recorded In 1881, in which
it was described as "of the city of Louisville,
Kentucky."
2d« Two mortgages executed by it to trus-
tees in 1884 and 1886, including ite railway
in Indiana and in Jefferson county, in each
of which it was described as "a corporation
duly created and existing under the laws of
Indiana and Kentucky."
3d. A lease to it from the Louisville South-
|W7]em Railway ^Company, in 1888 (more fully
steted below), in whidi it was similarly de-
scribed.
4th. A petiti<m (the date of which did not
appear in the transcript) that an action
brought against it in a court of the stete
of Indiana might be removed into the cir-
cuit court of the United Stetee, upon the
ground that it was a corporation oi Ken-
tucky.
6th. Proceedings in 1887, in a court of
Jefferson county, for the condemnation of
lands in that county upon a petition in which
*the Louisville, New Albany, A Chicago Rail-
way Company stetes that it is a corporation,
and that it is duly empowered by ite charter
by an act of the general assembly of the com-
monwealth of Kentucky to purchase, lease,
or condemn in said stete sucn real estete as
may be necessary for railway, switches, side
tracks, depote, yards, and other railway pur-
poses, and to construct and operate a rail-
road in said stete."
On March 8, 1883, the legislature of In-
diana passed a stetute, entiUed "An Act to
Authorize Railroad Companies Or^ranized
under the Laws of the State of Indiana to
Indorse and Quarantee tiie Bonds of Any
Railroad Company Organized under the
1084
Laws oi Any Adjoining State," t^
provisicms of whidi were as follows:
"Sec 1. The board of dixwtors ef
raOway company organized under
suant to the laws of the state of
whose line of railway g
state in either direction, may, npoo thi
tion of the holders of a majority of the
of such railway company,
tion by such railway company of aa
ment guaranteeing the paymoit of the ,
dpal and interest of tiie bonds of aay Vail-
way company organized under or
to the laws of any adjoining state, tht
struction of whose line or Unes of rail
would be beneficial to the
of the railway so indorsing or
such bonds.
"Sec 2. The petition of the
specified in the preceding section of tkk
shall stete the facte relied on to
benefite accruing to the compaay
or guaranteeing the bonds above i
*** Sec. 3. No railway company shaU,
the provisions of this act, indorse or
antee the Ixmds of any such railway
pany or companies, as is abov«
to an amount exceeding one half oi thtpm
value of the stodc of the railway
so indorsing or guaranteeing as s
under this act" Indiana Stat. 18S1,
127, p. 182; Rev. Stet. ff 3951«-99$lc
On December 10, 1888, the Kew
Company took a lease, in wkiek it
scribed as ''a corporation orgaaiscd
isting under the laws of tlie state of
and of the stete of Kentacky," fran tki
Louisville Southern Railroad Onus^. »
corporation of Kentu^cy, of the railnai! d
the latter, running from Looisvillc to
through sundry other plaeea is
and connecting at Versailles in
with a railroad then being rami ii lei t*
the Beattyville Company to BeattyviDt, of
which would, if completed, rrtend the as-
nections of the New Albany Cotnpaar a as-
siderable distance towards the Virgiliia *
The Beattyville Company had, oa Oe
11, 1888, made a contract with the Olus
ley Improvement and Contract
which that company agreed to
equip ite line of railroad; and. i
oration thereof, the BeattjrHW
agreed to execute and issue to tlie
tion company ite first-mortgage
$25,000 a mile, dated July 1, 188*. aad ftf-
able in thirty years, with interest at th# »
nual rate of 8 per omt: and to
that company the subscriptioas
from municipalities, and to hmm
company all ite capital sto^
would have to be issued on accooat «f <■*
subscriptions.
On October 8, 1889, the board of dltmm*
of the New Albany Company, as apv«an< H
ite records, passed a reeolutioe etdeim ::«
president and secretary to exeeote, uair- tl»
seal of the company, a contract with tW «r
struction company, whi^ contract dt^riM
that company as a corporatioa of the M*
of Kentucky, and the New Albany Ooa^a^
as "a corporation organised aad existiat a^
OaBipaB7.lv
1808.
LouiByiLLB, R. A. & C. R. Co. t. Louisyillb Trust Oo«
558-661
the laws of the states of Indiana and
Kjemtucky," and contained these stipula-
tions:
"Fourth. The said New Albany Ck>mpan7
a^reoB to and *with the said construction
companv that it will, from time to time, as
the said filrst-mortffage bonds are earned by
and delivered to the said construction com-
pany pursuant to the terms of their said
construction contract, g[uarantee the pay-
ment by the said Beattyville Company of the
principal and interest of the said bonds in
manner and form following, that is to say,
by indorsing upon each of said bondB a con-
tract of guaranty as follows:
** *For value received, the Louisville, New
Albany, & Chicago Railway Company here-
by guarantees to the holder of the within
bona the parent, by the obligor thereon,
of the principal and interest thereof in ac-
cordance with the tenor thereof.
** 'In witness whereof the said railway
company baa caused its corporate name to
be signed hereto by ite president and its seal
to be attached by its secretanr.'."
''Sixth. In consideration oi the premises,
the said construction company agrees to
transfer and deliver to the said New Albany
Company three fourths of the entire capitcd
stock of the said Beattyville Company, the
said delivery to proceed part passu with the
guaranteeing of the said bonds by the said
New Albany Company: $3,000 at par of the
said stock being aelivered for each $4,000 of
bonds guaranteed."
This contract was dated October 9, 1889;
was signed in the name of each company by
its president and secretary and under ite
corporate seal; and a copy of it was spread
upon the records of the board of directors
of the New Albanv Company.
The charges of fraud against the directors
who took part in that meeting were dis-
proved; and the evidence failed to establish
that the meeting was not in every respect a
lawful one.
But no petition of a majority of the stock-
holders for the execution of the guaranty
was presented, as required by the statute of
Indiana of 1883, above cited. Nor was there
any evidence that the stockholders ever au-
thorized or ratified the contract between the
New Albany Company and the construction
company, or the guaranty executed in ac-
cordance therewith.
Pursuant to that, contract, and before
;0]March 12, 1890, the *dtock of the Beattvville
Company was delivered to the New Albany
Companv ; a guaranty, in the terms specified
in the fourth article of that contract, and
bearing the signature of the New Albany
Company by m president and secretarv and
its corporate seal, was placed on 1185 bonds
for $1,000 each of the beattyville Company;
and the bonds thus guaranteed were put on
tiie market by the construction company.
On March 12, 1890, the annual meeting of
the stockholders of the New Albany Com-
pany was held, a new board of directors was
elected, and the meeting was adjourned to
March 22, 1890, when it was voted by a ma-
jority of the stockholders to reject and dis-
approve the contract with the construction
174 V. $.
company, and the guaranty placed on the
bonds of the Beatty^lle Company, as haying
been made without legal authorify or the ap>
proval of the stockholders, and to empower
the board of directors to take all proceedings
necessary od* proper to cancel such cootraiot
and giuurantv, aind to rdieve the qompckny
from any obligation or liability by reason
thereof.
Many of the bonds so guaranteed and put
on the market, including one hundred and
twenty-five bonds purchased by the Louis-
ville Trust Company, and ten bonds pur-
chased by the Louisville Banking Company,
were taken from the construction company
by the purchasers in good faith, and with-
out notice or knowled|[e that there had been
no petition of a majority of the stockholders
for the execution of the guaranty; and forty-
five of the bonds were purchased from the
construction company by the Louisville
Banking Company after the meeting in
March, 1890, and with notice that the ma-
jority of the stoddiolders had not petitioned
for, but had disapproved, the guaranty. - *
The Beattyville Company and the con-
struction company went on with the work
of constructing the Beattyville railroad un-
til the summer of 1890, when they both be-
came insolvent, and their property passed
into the hands of receivers.
The plaintiff, in its bill, tendered back
the stock which it had received, and the
stock was deposited in the office of the clerk
of the court
The circuit court entered a decree for the
plaintiff against *all the defendants. 09[66]4
Fed. Rep. 431. The Louisville Trust Criro-
pany and the Louisville Banking Company
and other bondholders appealed to the cir-
cuit court of appieals, widch reversed the
decree of the circuit court, and ordered the
bill to be dismissed as to the Louisville Trust
Company and the Louisville Banking Com-
ry, except as to the forty-five bonds held
the latter company; and, as to these
bonds, ordered an injunction against suits
on the guaranty against the plaintiff as a
corporation of Indiana and Illinois, and that
there be stamped on each of these forty-five
bonds, under its ^aranty, these words:
'This ^aranty is binding only on the Louis-
ville, New Albany, & Chicago Railway Com-
panv, a corporation of Kentucky. It is not
binding on the Louisville, New Albany, ft
Chicago Railway Company, a corporation of
Indiana and Illinois.'' 43 U. S. App. 550.
The plaintiff applied for and obtained these
write of certiorari. 164 U. S. 707, mem.
Messrs. E. O. Field, G. W. Kretaln8er»
and James 8. Pirtle for petitioner:
The appellee, created by the consolidation
of Illinois and Indiana companies, could
not, by general contract, bind itself, if sudi
contract was not authorized by the state of
one of its constituents.
Shields v. Ohio, 95 U. S. 319, 24 L. ed.
357; Atlantic d G. R. Oo,y. Georgia, 98 U. S.
359, 25 L. ed. 185; Olearu>ater v. Meredith,
1 Wall. 25, 17 L. ed. 604.
The general and implied corporate powers
of appellee, as a consolidated corporation,
1085
Ml. 668
SUFBKMX COUBT OF THE VlHTED STATES.
were limited by the articles of consolidatioii,
And the laws of ita creation, to the ownership
and operation of railroads wholly within the
■tates of Indiana and Illinois.
ThomoB y. West Jersey R. Co. 101 U. S.
82, 25 L. ed. 952; Oregon R. d Nov, Co. ▼.
Oregonian R. Co, 130 U. S. 1, 32 L. ed. 837;
Pearoe y. Madison d I. R, Co. 21 How. 441,
16 L. ed. 184; Bmesi ▼. NiohoUs,fi'a.Jj.Caa.
418; Balfour ▼. Ernest, 5 C. 6. N. S. 600;
Ridley y. Plymouth 8. d D, Grinding d Bak-
ing Co. 2 Exch. 711; Bedford R. Co, y. Bow-
ser, 48 Pa. 29; People, Pedbody, y, Chicago
Oas Trust Co, 130 111. 268, 8 L. R. A. 497 ;
Davis y. Old Colony R, Co, 131 Mass. 258, 41
Am. Rep. 221.
The appellee had no general power to lend
its credit or guarantee the a^ts of any
other enterprise or company.
Colman y. Eastern Counties R. Co, 10
Beay. 1; East Anglian R. Co, y. Eastern
Counties R, Co. 11 C. B. 775; Pearce y, Madi-
son d I. R, Co, 21 How. 443, 16 L. ed. 184.
It requires special l^islatiye power to au-
thorize the purchase of the stock or to guar-
antee the d^t of any other company or en-
terprise.
People, Peahody, y, Chicago Oas Trust Co,
130 111. 268, 8 L. R. A. 497; Sumner y. Mar-
ey, 3 Woodb. k M. 105; Mechanics d Work-
ingmen^s Mut, 8av, Bank d Bldg, Asso. y.
Meriden Agency Co. 24 Conn. 159 ; Starin y.
Oenoa, 23 N. T. 439.
Those dealing with a special agent must
take notice that his authority, as such spe-
dal agent. Is not general but limited, and
no presumption wiU be substituted for actu-
ally absent special authority.
Pratt y. Short, 79 N. T. 437, 35 Am. Rep.
531 ; VdUey R. Co. y. Lake Erie Iron Co. 46
Ohio St 44; Hackensack Water Co. y, De-
Kay, 36 N. J. Eq. 548; Martin y. Oreat Falls
Mfg. Co. 9 N. H. 51 ; Leif oiite y. Bank of
North America, 3 Dill. 44; Bpencey, Mobile
d M, R, Co. 79 Ala. 5K5 ; Ernest y. ViohoUs,
6 H. L. Cas. 418; Chambers y. Manchester d
M. R, Co, 5 Best & S. 588.
Messrs, Bv^skt^ta Slierley, St. Jolut
B07I6, and Bamett, Miller, d Bamett for re-
spondents:
The directors of the "Monon," under the
powers granted by the Kentucky act of 1882,
had the right to make the ffuarant^.
Hoyt y, Thompson, 19 N. Y. 216; Louis-
ville, E. d 8t, L, B, Co, y. McVay, 98 Ind.
393, 49 Am. Rep. 770; Thompson y, Nachee
Water d Sewer Co, 68 Miss. 423; Rodder y.
Kentucky d O, E. R, Co, 7 Fed. Rep. 796;
tJcLshua d L, R. Co, y, Boston d L. R. Co, 27
Fed. Rep. 825, 136 U. S. 356, 34 L. ed. 363 ;
Wood y, Wlielen, 93 HI. 153; Hendee y. Pin-
kerton, 14 Allen, 387 ; Beveridge y. New York
Elev, R. Co, 112 N. Y. 1, 2 L. R. A. 648;
Flagg y, Manhattan R, Co, 10 Fed. Rep. 431 ;
MoCullough y. Moss, 5 Denio, 575 ; Moses y.
Tompkins, 84 Ala. 613 ; Dana y. Bank of
United States, 5 Watte & S. 223 ; Hutchinson
y. Oreen, 91 Mo. 367 ; Oashwiler y, Willis, 33
Cal. 11, 91 Am. Dec. 607; Conro y. Port
Henry Iron Co. 12 Barb. 27 ; Clark y. Bar^
nard, 108 U. S. 436, 27 L. ed. 780.
The guaran^ indorsed on the Beattyyille
bonds is negotiable.
1086
KUUan y. AshUy, 24 Ark. 511, 91
519; Cooper y, Dedrick, 22 Barb. 51«:
ridge y, Davis, 20 VL 499 ; Webster y. Cutk,
17 ni. 466; Jackson y. FooU, 12 TmL 1a
37; Studabaker y. Cody, 54 Ind. S8€; Dmem
y. WeUs, Fargo, d Co. 104 U. S. im.»L.et
690; Toppan y. Cleveland C. d C. R, Os. I
Flipp. 74.
The power of the board of direeton w
make the guaranty was so exercBaed m %
bind the appellee in fayor of boaa ft^
holders.
Battles y. Laudenslager, 84 Fa. 4«f;
Stoney y. American L. Ins. Co. 11 Paige, OS
Farmers* Nat. Bank y, Sutton Mf§. Cm, <
U. S. App. 312, 52 Fed. Rep. 191, 3 C C i.
1, 17 L. R. A. 595; Farmer^ d M. Bmak t.
Butcher^ d D, Bank, 16 N. Y. 125; B%m^
y, Michigan S, d N, S, R. Cos. 22 K. Y. •»
Mechanic Bkg, Asso. y. New York 4 L
White Lead Co. 35 N. Y. 505 : WHf Id t.
Pipe Line Co. 101 Pa. 204, 47 Am. Bep. Tfl:
Hackensack Water Co. y. DeKoiy, M 9. J.
Eq. 548; Credit Co. y. Howe Mack. Ce. H
Ck)nn. 357 ; CMpcke y, Dubuque, 1 WalL ttl
17 L. ed. 524 ; Oenesee County 8mv^ Bemk t.
Michigan Barge Co. 52 Midi. 438 ; BiH %
Daggett, 97 Mass. 494.
The guaranty is yalid as the aet of tht if-
pellee's agent.
Humboldt Twp, y. Long, 92 U. S. MS. fl
L. ed. 752; Jiastem Countiee JL Os. t.
Hawkes, 5 H. L. Cas. 331 ; Kinytm y. WsU-
ford, 17 Minn. 239, 10 Am. Rep. 165 ; Cte«i
y. Johnson, 54 111. 296; Bursom r. Bwsttmf-
ton, 21 Mich. 415, 4 Am. Rep. 497: M^
Dougald y. Lane, 18 Oa. 444 ; Norwidk «
Norfolk R, Co, 4 El. & Bl. 397 : Story m
Agency, Sees. 452, 562 ; Fitxherhert w. Me-
ther, 1 T. R. 11; Lodbe y. Stemms, 1 HA.
563, 35 Am. Dec. 382; Haekett r. (Mmm,
99 U. S. 608, 25 L. ed. 363; New Terkdf.
H, R, Co, y, Schuyler, 34 N. Y. 31 ;
River Bank y. Aymar, 3 Hill, 262.
*Mr. Justice Grmy* afto- stating the
as aboye, ddivered the opinion of ue
The plaintiff, the Louisyille, New Hlfcay.
& Chicago Railway Company, nndodbta^f
became a oorporation of the state of
in 1873 by its incorporation
the general statute of 1865 of that
Whether it afterwards became a
tion of the state of Kentudcy also
ly oontested at the bar, and depends «paa tir
legal effect of the statute of Kentmtkj rf
1880.
That statute (bein^ the trst statstt rf
Kentucky affecting this oorporatloa) is ^
soribed indeed in its title, as well aa ia tit
title ol the statute of 1882 amesdi^ it, m
"An Act to Incorporate" this eompaay. s!-
thouffh in the title of the first *sUtalt t^.
wora'TiOuisyille" in its name is ooutted. fv
the first words of the enacting part of tke
sUtute of 1880, it is ''the Louisyille. THee
Albany, & Chicago Railway Company, a «v^
poration orsaniied under the taws «f ttt
state of Indiana," and not any otk
ration, or any association of natiual
that is '^hereby constituted a
with the usual powers of eocporatkas,
with "authority to operate a railioad.* Ab<
174 V.t.
1898.
LomsYiLLBy N. A. & C. R. Co. y. LotisviLLB Trust Co.
562-M4
ft is the oorporation to described thsty bj
the oUier provisions of that statute, may
purchase, lease, or oondemn real estate re-
3uired for railroad purposes in the countrof
elTerson, and may connect with any otner
railroad in that county, or build, lease, or
operate any such connecting line, "and may
bond the same, and secure the payment of
any such bonds by a mortgage of its prop-
orfy, rights, and franchises p and, by the
amendatory statute of 1882, may guarantee
the bonds of, or consolidate with, other cor-
porations authorized to ccmstruct railroads
uk Kentucky.
This court has often recognized that a
corporation of one state may Se made a cor-
poration ol another state by the legislature
of that state, in regard to property and acts
within its territorial jurisdiction. Ohio d
Miasiuippi Railroad Company v. Wheeler, 1
Black, 286, 297 [17: 130, 133] ; Baltimore d
O. Railroad Co. ▼. Harris, 12 Wall. 65, 82
[20: 854, 858] ; Chicago d N. W. Railtoay Co.
▼. Whiiion, 18 Wall. 270, 283 [20: 571, 676] ;
IndianapoUa d 8t, L, Railroad Co, ▼. Vance,
96 U. 8. 450, 457 [24: 752, 756] ; Memphis d
Cfharleston Railroad Co, ▼. Alabama, 107 U.
S. 581 [27 : 518] ; Clark ▼. Barnard, 108 U.
S. 436, 451, 452 [27:780, 786]; Stone ▼.
Farmers' Loan d Trust Co. 116 U. S. 307, 334
[29: 686, 645] ; Oraham ▼. Boston, Hartford,
d Erie Railroad Co. 118 U. 8. 161, 169 [30:
196, 201] ; Martin ▼. Baltimore d Ohio RaiU
road Co. 151 U. 8. 673, 677 [38: 311, 313].
But this court has repeatedly said that, in
order to make a oorporation, already in ex-
istttice under the laws of one state, a corpo-
ration of another state, "the language used
must imply creation or Adoption in such
form as to confer the power usually exercised
orer corporations by the state, or by the leg-
islature, and such allegiance as a state cor*
poration owes to its creator. The mere ffrant
of privileges or powers to it as an exminff
oorporation, without more, does not do this.^
Pennsylvania Railroctd Co. v. 8t. Louis, Ah
[663]fon, d Terre Haute ^Railroad Co. 118 U. 8.
290, 206 [30: 83, 88] ; Qoodleit v. Louisville
d Nashville RaUroad Co. 122 U. S. 391, 408,
408 [30: 1230, 1232, 1233]; 8t. Louis d San
Francisco Railtoay Co. ▼. James, 161 U. 8.
545, 561 [40: 802, 808].
The acts done by the Louisrille, New Al-
bany, ft Chicaffo Railway Company, under
the statutes oi Kentucky, while affording
ample evidence that it had accepted the
grants thereby made, can hardly sifect the
question whether the terms of those statutes
were sufficient to make the oompcmy a oor-
poration of Kentuclcy.
But a decision of the question whether the
plaintiff was or was not a corporation of
Kentucky does not appear to this court to
be required for the disposition of this case,
either as to the jiurisdiction, or as to the
merits.
As to the jurisdiction, it being clear that
the plaintiff was first created a corporation
of the state of Indiana, even if it was after-
wards created a oorporation of the state of
Kentucky also, it was and remained, for the
purposes of the Jurisdiction of the courts of
the united 8tates, a citizen of Indiana, the
174 V. 8.
state by which it was originally ereatad. It
oould neither have brought suit as a cor-
S>ration of both states against a corpora-
on or other citizen of either state, nor
could it have sued or been sued as a corpora^
tion of Kentudqr* in any coiirt of the United
States. Ohio d Mississippi Railroad Co. r.
Wheeler, I Black, 286 [17:130]; 3t. Louie
d San Francisco RaUtoay Co. \. James, 161
U. 8. 545 [40:802] ; St. Joseph d G. I. RaiU
road Co. v. SteeU, 167 U. 8. 659,663 [42:315,
317]; Barrow Steamship Co. v. Kane, 170
U. 8. 100, 106 [42: 964, 967].
In St. Louis d San Francisco Railway Co,
y. James, the oompcmy was organized and
incorporated under the laws of the state of
Missouri in 1873, and owned u railroad ex-
tending from Monett in that state to tha
boundary line between it and the state of
Arkansas. The Constitution of the state of
Arkansas provided that foreign corporations
might be authorized to do business in this
state under such limitations and restrictions
as might be prescribed -by law, but should
not have power to appropriate or condemn
private property. The Wislaturc of Ar-
kansas, by a statute of 1881, provided that
any railroad company incorporated by or
under the laws of any other ntate, and hav-
ing a line of railroad to the boundary *of Ar-[664]
kuisas, might, for the purpose of continu-
ing its line of railroad into this state, pur-
chase the property, rights, and franchises
of any railroad company organized under tha
laws of this state, and thereby acquire the
right of aninent domain possessed by that
company, and hold, oonstruct, own, and
operate the railroad so purchased as fully as
that company might have done; and that
"said foreiffn railroad company" should be
subject to ful the provisions of all statutes
relating to railroad corporations, including
the seirice of process, and should keep an
office in the state. Pursuant to that stai*
ute, the St. Louis & San Francisco Rail*
way Company, in 1882, purchased from
railroad corporations of Arkansas their rail*
roads, frandiises, and property, includ*
ing a railroad connecting at the bound*
ary line with its own railroad, and
extending to Fort Smith in Arkansas, and
thencefora owned and operated a continu-
ous line €4 railroad from Monett in Missouri
to Fort Smith in Arkansas. In 1889 the
legislature of Arkansas passed another stat-
ute providing that every railroad oonwra*
tion of any oUier state, which had purchased
a railroad in this state, should, within sixty
days from the passage of this act, file a oopy
of its articles of mcorporation or charter
with the secretary of state of Arkansas, and
should ''thereupon become a corporation of
this state, anything in its articles of incor-
poration or diarter to the contrary notwith*
standing." And the 8t Louis ft San Fran*
Cisco Rulway Compcmy forthwith filed with
the secretaiy of state of Arkansas a copy of
its artides of incorporation under the laws
of Missouri, as required by this statute.
In an action brought by a citizen of Mis*
souri against that company In the circuit
court of the United States for the wefftem
1087
054-M7
Supreme Court or the U^otbd 9ia
district oi ArkaiiBas, to recover for its neg-
ligence on that part of its road within the
state of Missouri, the company pleaded to
the jurisdiction that it was a citizen of Mis-
souri; and the question was certified to this
court whether the company, by filing a copy
of its articles of incorporation under the
laws of Missouri with the secretary of state
of Arkansas, and continuing to operate its
railroad through that state, l«ecame a cor-
poration and citizen of the state of Ar*
(665] *This court, speaking by Mr. Justice
Shiraa, upon a careful review of the earlier
cases, answered that question in the negative.
The fundamental proposition deduced
from the previous decisions was thus stated:
'There is an indisputable legal presumption
that a state corporation, when sued or suing
in a circuit court of the United States, &
composed of citizens of the state which cre-
ated it, and hence such a corporation is it-
self deemed to come within that provision
of the Constitution of the United States
which otmfers jurisdiction upon the Federal
courts in 'controversies between citizens of
different states.' "
The court frankly recognized that "it is
competent for a railroad corporation or-
ganized under the laws of one state, when
authorized so to do by the consent of the
state whidi created it, to accept authority
from another state to extend its railroad
into such state, and to receive a grant of
powers to own and control, by lea^ or pur-
chase, railroads therein, and to subject it-
self to such rules and regulations as may be
prescribed by the second state;" and that
''such corporations may be treated by each
of the states whose legislative grants they
accept as domestic corporations.*' 161 U. S.
562 [40:808].
But the court went on to say: The pre-
sumption that a corporation is composed of
citizens of the state which created it accom-
panies such corporation when it does busi-
ness in another state, and it may sue or be
sued in the Federal courts in such other
state aa a citizen of the state of its original
creation." And after referring to the provi-
sions of the statutes of Arkansas of 1881
and 1880, the court added: "But whatever
may be the ^ect of such legislation, in the
way of subjecting foreign railroad compa-
nies to control and regulation by the local
laws of Arkansas, we cannot concede that it
availed to create an Arkansas corporation
out of a foreign corporation, in such a
sense as to make it a citizen of Arkansas,
within the meaning of the Federal Confltitu-
tion, so as to subject it as such to a suit by a
citizen of the state of its origin. In order to
bring such an artificial body as a corpora-
tion within the spirit and letter of that
Constitution, as construed by the decisions
of this court, it would be necessary to cre-
[666]ate *it out of natural persons, whose citizen-
ship of the state creating it could be im-
puted to the corporation itself." 161 U. S.
662, 566 [40: 808,809].
In that case, the Constitution of Arkansas
denied to forcogn corporations the right of
1088
^tM
eminent domain; and tiie
tion acquired that right,
ated a railroad in Aik
statutes authorizing it to piut^taae the
erty, rights, and franchises of Aikmamm mt-
porations, and requiring it to file a esff ^
its articles of incorporation or charter wtik
the secretary of state of Arkaiisaa, ami m-
acting thai it should 'thereopon haeaH s
corporation of this state, AJUTthi^g in iSs sr-
tides of incorporation or eiiartcr to the «»
trary notwithstanding." Tot it ww Wi
that it was not thereby made a
of Arkansas, in the senae of the
the Constitution, and of the aoteof
conferring jurisdiction on the
United States by reason oi 4'*
ship.
The statutes of Arkanaas in
quite as far, to sa^ the least,
tutinff a corporation of aaot.
poration of tne state enaetiiig
as the statutes of Kentucky did ia the «hb
at bar.
The consolidation of the JjcmmwQh,
Albany, & Chicago Railway Compmmj,
the same name, with a raurood inrmr^^ tf
niinois in 1881, clearly does aot atfct tte
question of jurisdioti<Mu That
appears, by cases cited at the bar, te
been in accordance with the law of Ibl
but not to have been aothoriaed by tife ta«
of Illinois. LouUviUe, New Alhmmp^ dChga-
go Railway Co, v. Boney, 117 lad. 9$l {IL
R. A. 435] ; American Lamm dl Trmet <h v.
Minnesota d NortkweMtem RmHrwrnd <hi UT
IlL 641. It may have been ratiflcd ky wrr
recent legislation in miooia. miaess 9taa
June 9, 1807 ; Laws of 1897, p, 281 ; MUmef
V. ColumhuM, Chicago, d indimmm MaOmm Ck
83 ni. 348, 362. But jorisdictioa of a
once acquired by a court of the Umitsd 5
by reason of the requisite citiseoship. m
lost by a change in the citizenship of
party pending the suit. Morfmm ▼. M
2 Wheat. 290 [4 : 242] ; Clarke ▼.
eon, 12 Pet 164 [9: 1041]; Kctmigthmgrn^
Richnumd Silver Min, Co. 158 U. & 41, «
[39:889,892].
*The demurrers to the bill for wantolsf.
t^ were rightly overruled, and were aeC b
sisted on in this court. The object of ththl
was that the guaranty upon a |Freat
of ne|[otiable bonds, which mint o
pass into the hands of bona fide pmi ^
might be canceled, and suits apoo the
anty restrained, because of facts
inff upon its face. The relief sowht
omy be had in a court of equity. iUnum 1
ElltoU, 6 Pet 96, 98 [Si 332, 333] . Ortd
Chute V. Winegar, 16 Wall. 37^ 37« [t*
174, 175] ; Robb v. V09, 155 U. S. 13 [9
62] ; Springport v. Teutomia Saeimet BmL
76 N. Y. 397 ; Fuller v. Ferciooi. IM ^
381.
We are then brought to the racstioe ef tto
validitv of the guaranty bv the Louvru'it
New Albany, k Chicago Railway CkMipsav /.
the bonds of the Beattyville Oms
tween the parties before ns« am
circumstances shown by this record
A railroad corporation, wnless
by its act of incorporation or by
LoUIfVILLB, N. A. ft C. R. Co. v. LoUISVILLK 'IkU&a v,o.
5U7-6;0
tee to do 80, has no power to guaraiiiee the
Mftds of another oorporiition ; and such a
uaranty, or any contract to give one, if not
uthorized by statute, is bejrond the scope of
be powers of the corporation, and stnctlj
Itra frires, unlawful, and void, and incapa-
le of being made good by ratification or es-
oppel. Central Transportation Co, v. PulU
tan'a Palace Car Co, 139 U. S. 24 [86: 55],
nd 171 U. S. 138 [ante, 108]; Jackson-
ille, M, P, Railway <C- Vav. Co, v. Hooper,
60 U. S. 514, 524 [40: 515, 523] ; Union Pa-
ifio Railway Co, v. Chicago, Rook Island, d
Pacific Railway Co, 163 U. S. 564, 581 [41:
165, 271] ;Califomia Nat. Bank v. Kennedy,
67 U. S. 362, 367, 368 [42: 198, 200] ; Davis
\ Old Colony Railroad Co, 131 Mass. 258 [41
Wm. Rep. 221] ; Humboldt Min, Co, v. Varie-
y Iron Works Co, 22 U. S. App. 334.
The real question in the case is whether
;hi8 guaran^ yas valid under the laws of
[ndiana, the state by which the guarantor
9vas originally created a corporation, and as
I. corporation of which it brought this suit.
Some rdiance was placed upon the statute
»f Indiana of 1865, authorizing any railroad
oompany incorporated under Its provisions
(as the New Albany Company was) to con-
solidate wHh any railroaa corporation hav-
ing a connecting line, either within or with-
out the state, or to acquire, by purchase or
** contract, its jprc^rty, rights, ana franchises,
3r the use and enjoyment thereof, in whole or
in part, and to "assume such of the debts and
liabilities of such corporations as may be
deemed proper." It was argued that the
powers thus given embraced the contract bv
which the New Albany Company agreed with
the construction company, in consideration
of receiving from it a controlling interest in
the stock of the Beattyville Company, to
guarantee the bonds of that company.
But the New Albany Company never con-
solidated itself with the Beattyville Com-
pany, or aoauired by purchase or contract its
property, rights, and franchises, or the use
or enjoyment thereof, in whole or in part It
is doubtful, to say the least, whether a mere
purchase of three fourths of its stock could
authorize an assumption of its debts, under
the statute of 1865, if that statute had re-
mained in full force. In Hill v. "Sishet, 100
Ind. 341, cited a/t the bar, a purchase of the
stock of one railroad company by another
was upheld, not as equivalent to a purchase
of the property and franchises, but as a rea-
sonable means to the accomplishment of tiie
consolidation of the two companies.
But we cannot doubt that, as was held by
both courts below, the statute of Indiana of
1883 superseded and repealed, as to matters
within its scope and terms, the provisions
of all former staiutes of the state on the sub-
ject.
The statute of Indiana of 1883 is entitled
''An Act to Authorize Railroad Corporations
Organized under the Laws of the Sta4« of
Indiana to Indorse and Guarantee the Bonds
of Any Railroad Com]>any Organized under
the Laws of Any Adjoining S&te" ; and en-
acts, in § 1, that *'the board of directors of
any railway company organized under and
pursuant to the lawv of the state of Indiana,
174 U. 8. U. S.. Book 43. 69
whose line of railway extends across the state
in either direction, may, upon the petition of
the holders of a majority of the stcMsk of such
railway company, direct the execution by
such railway company of an indorsement
guaranteeing the payment of the principal
and interest of the bonds of any railway com-
Cy organized under or pursuant to the
8 of any adjoining state, the construction
of whose fine or lines of railway would be
beneficial *to the business or traffic of the raiI-[669]
way so indorsing or c^uaranteeing such
bonds." Section 2 provides that such peti-
tion of the stockholders shall state the facts
relied on to show the benefits accruing to ''the
company indorsing or guaranteeing the
bonus." And section 3 provides that "no
railway company shall, under the provisions
of this act," indorse or guarantee such bonds
to an amount exceeding naif the par value of
the stock of "the railway company so indors-
ingor guaranteeing."
The Ix)ui8ville, New Albany, k Chicago
Railway Company was a railway company
organized under and pursuant to the laws of
Indiana, and ite line of railway extended
across the state from south to north. On
October 8, 1889, the board of directors, at a
regular meeting, passed a resolution, entered
upon its records, authorizing the president
and secretary to execute under seal of the
company a contract by which the company
agreed ynih. a corporation which was con-
structing ^e railroad of the Beattyville
Company, a railroad corporation of Ken-
tucky, to guarantee the payment by the
Beattyville Company of the principal and in-
terest of bonds of that company, hy indors-
ing on each bond a guaranty, executed in like
manner, by which "for value received, the
Louisville, New Albany, k Chicago Railway
Company hereby ^arantees to the holder of
the within bond the payment, by the obligor
thereon, of the principal and interest thereof
in accordance with tne tenor thereof." The
contract, as well as the guaranty on many of
the bonds, was accordingly executed by the
president and secretary and under the seal
of the company, and the contract was spread
upon the records of the board of directors.
No petition of a majority of the stockhold-
ers for the execution of the guaranty was
ever presented, as required by the statute:
there was no evidence that the stockholders
ever authorized Or ratified the contract or the
guaranty; and, at the next annual meeting
of the stockholders, in March, 1890, it was
voted to reject and disapprove both the con-
tract and the guaranty, as having been made
without legal authority or the approval of
the stockholders.
Before that meeting was held, one hundred
and twenty-five *of the bonds thus guaranteed[670]
had been sold by the construction company
to the Louisville Trust Company, and ten
bonds to the Louisville Banking Company,
each of which companies took those bonds in
good faith and without notice that no peti-
tion had been presented by a majority of the
stockholders for the execution of the guar-
anty.
Forty-five more of the bonds were pur-
chased hv the Louisville Banking Company
10S9
610-572
SUPBKMS GOUBT OF THE UNITED STATES.
from Uie oonstmctioii company after that
meeting, and with notice that a majority of
the stcMkholders had never petitioned for,
but had diaapproved, the execution of the
guaranty. The LouisTille Banking Com-
pany, thus havinff notice, when it to9c these
forty-fiye bonds, that the prerequisite to the
execution of the guaranty, und^r the statute
of Indiana of 1883, had not been complied
with, was not a bona fide holder of these
bonds, and should not be allowed to enforce
theguaranty thereon against the plaintiff.
The controverted question is whether the
bonds which the Louisville Trust Company
and the Louisville Banking Company, re-
spectively, purchased in good faith, and with-
out notice of the want of the assent of the
majority of the stockholders, are valid in
the hands of these companies.
The ffuaranty by the Louisville, New Al-
bany, £ Chicago Railway Company of the
bonds of the &attyville Company was not
ultra vires, in the sense of being outside the
corporate powers of the former comi>any; for
the statute of 1883 expressly authorized such
a company to execute such a guaranty, and
its board of directors to direct its execution
by the company. The statute, indeed, made
it a prerequisite to the action of the board
of directors that it should be upon the pe-
tition of a majority of the stockholders ; but
til is was onlv a reflation of the mode and
the af^encies by which the corporation should
exercise the power granted to it.
The distinction Mtween the doing by a
corporation of an act beyond the scope of the
powers granted to it by law, on the one side,
and an irregularity in the exercise of the
granted powers, on the other, is well estab-
libhed, and has been constantly recognized
by this court.
It was clearly indicated in two of its earli-
[671]3st judgments on *the subject of ultra vireg,
both of which were delivered by Mr. Justice
Campbell. ,
In Pearoe v. Madison d Indianapolis Rail-
road Co. 21 How. 441 [16: 184], two rail-
road corporations of Indiana were held not
to have tne power to purchase a steamboat to
be employed on the Oiiio river, to run in con-
nection with their railroads, because this
** diverted their capital from the objects con-
templated by their charters, and exposed it
to perils for which they afforded no sanc-
tion ;" "persons dealing with the managers of
a corporation must take notice of the limi-
tations imposed upon their authority by the
act of incorporation;" "the public have an
interest that neither the managers nor stock-
holders of the corporation shall transcend
their authority; "'and the contract in ques-
tion "was a departure from the business" of
the railroad corporations, and "Uieir officers
exceeded their authority." 21 How. 443,
445 [16 L. ed. 186].
In Zahriskie v. Cleveland, OoUunhus, d
Cincinnati Railroad Co, 23 How. 381 [16:
488], the statutes of Ohio empowered rail-
road corporations, "by means of their sub-
scription to the capital stock of any other
company, or otherwise," to aid it in the con-
struction of its road, for the purpose of form-
ing a connection between the two lines, pro-
1090
vided that no such aid ehoold be
unta two thirds of the etwkfcnM
sented and voting at a mwiflBg eaOad by^^^
directors should hare aaeei
directors of three railroad
a contract with another rmOroed
to guarantee its hoods, mm part of mm
ment for connecting the four roads;
bonds were aoocMrdinglT guaraateed,
issued to bona fide headers, withoai
ing of the stodchcdders haTiag
But, upon evidence that the
subsequently assented to the
bonds were held to be valid; and Oe
expressl]^ declared that the doetriae Aai a
corporanon cannot vary from the objeet sf
its creation, and that peraoiia cWa liag viih
a compckny must take notice of whatew is
contained in the law of ita orgaalaatia
not apply to "those eases in which a
ration acts within the range of its
authority, but fails to oomplr
formality or regulation *whleh it
have neglected, but which it haa
disregard." 23 How. 398 [16: 497].
Again, in Central TramsportmHom Oa a.
Pullman's Palace Car Co. 1S9 U. & 24 [IS:
55], this court, in summing up the renh si
previous decisions, stated the aaoM
lion as follows: ''A contract of a
tion, which is ultra vires in the prai
that is to say, outside the object of its
tion as defined in the law oi its
tion, and therefore beycmd the
ferred upon it by tiie legislaturep'ie
able only, but wholly void and of no
effect; the objecticm to the eontraet is
merely that the corporation oacht
have made it, but tnat it eonid no
it; the contract cannot be ratified by
pskrty, because it could not have
ised bj either; no perfom
can give the unlawful contract a^y
or be the foundation of any right of
upon it. When a corporati<m is
in the general scope of the po^
upon it by the legislature, the
well as persons contradting with' it, nmy ts
estopped to deny that it has ei *' * ^^
the legal formalities whidi are
to its existence or to its action,
requisites miffht in fact have
with. But when the contract is liijijaii tie
powers conferred upon it by ead^tii^ tea^
neither the corporation, nor the
to the contract, can be estopped, bv m
ing to it or by acting upon it, to snow
it was prohibited by those lawa." im U
8. 59 [35:68].
In Bt. Louis, VamdaUa^dTwrrmBi
road Co. v. Tmrre Haute d /adieaeaeiii
road Co. 145 U. a 303 (36: 738], om of tte
earties rdied on a provision of a elatalt d
llinois that it should not be lawfnl Ibr s^
railroad company of Illinois, or its dirsefesf\
to consolidate its road with any imilroad «^
of the st«4e, to lease its road to
compel^ out of the state, or to ,_
railroad out ol the state, "withont bav^
first obtained the written consent of all «
iatte
the stodcholders of said
state of Illinois, and any eontraet
conipolidation or lease imA wulj be
174 V.%.
residivl
itraetTir
1898.
LoniflviLLB, N. A. & C. R. Co. t. LoftisriLLB Trust Co.
973-575
witiKmt bftving first obtained said written
con—n^ signed by the resident stoddiolders
Klin niinoiB, shaU be nuU and ymd." *0f that
statute, this court said: "It did not limit
the scope of the powers conferred upon the
ootpora«on by law, an excess of whicn could
not be ratified or be made good by estoppel ;
but only prescribed regulations as to the
manner of exercising corporate powers, com-
plin ncc with which the stockholders might
iraive, or the corporation might be estopj^d,
by lapse of time, or otherwise, to deny." 145
U.S. 403 [86:752].
A corporation, though legally considered a
person, must perform ite corporate duties
through natural persons, and is impersonated
in and represented b^ ite principal officers,
the presiaent and mrectors, who are not
merely its agents, but are, generally speak-
ing, the repreeentatiTes of the corporation in
its dealings with others. Shaw, Ch. J., in
BurrUl ▼. Nahani Bank, 2 Met 163, 166,
167 [35 Am. Dec. 305] ; Comstock, J., in Hoyt
V. Thompson, 10 N. T. 207, 216. And the
appropriate form of verifying any written
ODiigation to be the act of the corporation is
by affixing the signatures of the president
aind secretary and the corporate seal.
The bonds cd theBeattyville Company were
instruments negotiable by delivery; and the
Carantv indoned upon each of them hj the
uisriUe, New Albany, & Chicago Railway
Company was signed oy the president and
■ecr«taiy and under its corporate seal, and
wae in terms payable to the holder thereof
and itself negotiahle.
One who takes from a railroad or business
corporation, in good faith, and without ac-
toAl notice of any inherent defect, a negotia-
ble obligation issued by order of the board of
directors, signed by the president and secre-
tary in the name and under the seal of the
eorporation, and disclosing upon ite face no
want of authority, has the right to assume
its validity, if the corporation could, by any
action ol its officers or stodcholders, or of
both, have authorised the execution and issue
of the obligation.
In MerchcnW Nat, Bank v. State Nat.
Bank, 10 Wall. 604 [10: 1008], this court
stated, as an axiomatic principle in the law
of corporations, this proposition : "Where a
party deals with a corporation in good faith
— ^the transaction is not ultra vires — and he
is unaware of any defect of authority or oth-
k]er irregularity on the *part of those actins;
for the corporation, and there is nothing to
excite suspicion of such defect or irregulari-
ty, the corporation is bound by the contract,
although such defect or irregularity in fact
exists. If the contract can be valid under
any circumstances, an innocent party in such
a case has a right to presume their existence,
and the corporation is estopped to deny
them." 10 Wall. 644, 645 [10: 1018 j. The
proposition was supported by citations of
many English ana American cases, and
among them Royal Briiiah Bank v. Tur-
^loifid (1856) 6 El. & Bl. 327. And the jus-
tioes of this court, while differing among
themselves in the application of the principle
to municipal bonu, liave always treated
Rofful Briiieh Bank v. Turquand as well de-
174 V. 8.
dded upon its facts. Knox County Comrf.
v. AspifiufaUj 21 How. 530, 545 [16: 208»
210]: Moran v. Miami County Comre, 2
Black, 722, 724 [17:342, 344]; Oelpcke v.
Dubuiiue, 1 Wall. 175, 203 [17: 520, 525];
8t. Joseph Twp, v. Rogers, 16 Wall. 644, 666
[21 : 828, 339] ; Humboldt Ttop. v. Long, 92
U. S. 642, 650 [23: 752, 756]. And see Zo-
1>riskie v. Cleveland, Columbus, d Cincin*
nati Railroad Co, 23 How. 381 [16:488],
above dted.
Royal British Bank v. Turquand was an
action upon a bond siened by two directors,
and under the seal of the company, and given
for money borrowed by a joint-stock com-
pany formed under an act of Parliament lim-
itiiu; its powers to the acts authorized by its
deed of settlement, and whose deed of settle-
ment provided that the directors might so
borrow such sums as should, by a resolution
gassed at a general meeting of the company,
s authorize to be borrowed. The defense
was that no such resolution had been passed,
and that the bond had been given without the
authority of the shareholders. The court of
exchequer chamber, affirming the judgment of
the Queen's bench, without passing upon the
sufficiency oi the resolution in that cose, held
the company liable on the bond ; and, speak-
ing by Chief Justice Jerris, said: **Wemay
now take for granted that the dealings with
these companies are not like dealings with
other partnerships, and that the parties
dealing with them are bound to read the stat-
ute and the deed of settlement. But they
are not bound to do more. And the par^
here, in reading the deed of settlement, would
find, not a prohibition from borrowin|;, but
a ^permission to do so on certain condiUons.[676]
Finding that the authority might be made
coipplete by a reeolution, he would have a
rif^ht to infer the fact of a resolution author-
izing that which on the face of the document
r.ppe&red to be legitimately done." 6 El. ft
Bl. 332.
The decision in Royal British Bank v. Tur*
quand has been followed, and Lord Wenelev-
dale's dicta to the contrary, a year later, in
Ernest v. Nicholls (1857) 6 H. L. Cas. 401,
418, 419, have been disapi>roved or oualified,
in a long line of decisions in Englana. Agar
V. AthmcBum Life Assurance Society (1858)
3 C. B. N. S. 725, 753, 755; Prince of Wales
Life d Educational Assurance Co, v. Harding
(1858) El. Bl. t £1. 183, 221, 222; Re Athe-
nfeum Life Assur. Society ( 1858) 4 Kay A T.
549, 560, 561; Fountaine v. Carmarthen R,
Co, (18G8) L. R. 5 Eq. 316, 321; Colonial
Bank of Australasia v. Willan (1874) L. R.
5 r. C. 417, 448; Mahony v. East Holyford
Min, Co, (1875) L. R. 7 H. L. 869, 883, 893,
894, 902 ; County of Gloucester Bank v. Rud-
ry Merthyr Steam d H,C, Colliery Co. [1895]
1 Ch. 629, 633. The only English decision
cited at the bar, which appears to support
the opposite conclusion, is Commerdtl Bank
V. Great Western Railway Co, (1865) 3
Moore, P. C. C. N. S. 295, which, unless it can
be distinguished on its peculiar circumstan-
ces, is against the general current of authori-
ty. See also a very able judgment of the
court of errors and appeals of J^ew Jersey,
delivered by Mr. Justice Depue, in Backen^
1091
588-586
SUPBEMK OCUBT OF THX UHHSD STATPL
Texas Railway, for the purposes of said con-
tract stated, and that we do agree to assume,
and do hereby assume, all risks incident to
such employment, and that said receiyers
shall in no case be liable to us for any injury
or damaees sustained by us during such time
for which it would not be liable to its regular
employees.
(Signed) J. O. Richart
M. B. Smizar.
The cattle were transported oyer the line
of the Missouri, Kansas, & Texas Railway to
Hannibal, Missouri, and from that point the
cars in which they were contained passed to
the line of the Wabash Railway destined for
Chicaffo. At or near Chi<»go an unreasonmp
ble dday was occasioned in the transporta-
tion of* the cattle by the negligence of em-
ployees of the Wabash Railway, resulUng in
damage, for whicfti -the shippers subsequently
brou^t an action against the receiyers of
the Missouri, Kansas, & Texas Railway to
[U4]recoyer for the breach *of the contract of uiip-
ment. Judgment haying been -entered upon
the yerdict of a jury in fayor of the plaintilTs,
an appeal was prosecuted by the receiyers to
the supreme court of the state, and was heard
in diyision No. 2. There was a jud^pnent re-
yersin^ the lower court, and a motion for a
rehearing was denied. Between "Uie time of
the decision of the supreme court and the
oyerruling of a motion for a rehearing both
the receiyers had died, and the railway com-
pany has resumed possession of its road.
i This fact haying been called to the attention
of the sui>reme court, the railway company
was substituted as appellant instead of the
receiyers, and a rehearing was ordered. The
oaee was transferred to the court in banc, and
was argued before that tribunal. Thereaft-
er a ^^cision was rendered affirming tiie
judgment of the trial court, and motion for
a rehearing was denied. 133 Mo. 59 [35 L.
R. A. 110]. The case was then brought by
writ of error to this court
By the assignments of error it is asserted,
and in the argument at bar it has been stren-
uously urged, that the Missouri statute aboTe
quoted is in conflict with the Constitution
of the United States, because it is a regula-
tion of commerce between the states, and
that the supreme court of Missouri hence
erred in giying effect to the statute in the
decision by it rendered. The statute as in-
terpreted oy the supreme court is asserted
to operate to depriye the railway of the
power of making a through shipment of
interstate commerce business oyer connecting
lines, without becoming liable for the negli-
gence of the connecting carriers. In other
words, the argument is that the effect of the
Missouri statute, as interpreted by the high-
est court of that state, is to depriye a rail-
way company, transacting the business of in-
terstate commerce, of all power to limit its
liability to its own line, and, hence, compels
it, if interstate commerce is engaged in or a
through bill of lading for such traffic is is-
sued, to become responsible for the articles
carried throughout the entire route, thereby
entailing upon the carrier receiying the goods
the risk of negligence by other carriers
1096
along the line;, eiy«n althoi^
situated beyicmd the state u
tract was made or the
This, it is insisted, is a direct
posed by the state upcm Intenkate
since it forbids a earri
that commerce, unless it nibjeets
liability for the faults of
which it cannot guard and for
not preyiously liable, and,
essary effect, jpunidies the t^
a through bill of lading lor
merce, ther^yy twiding to
through transportation of
state to state, and having a direct
table tendency to defeat the portioe ef tte
proyisions of the sixth section ci tte Aet ts
Regulate Commerce, as amwwiffd Marck X
1889(26 Statat L.S55,dmp.S82K]
to the subject of Jotnt rates A
tinuous roads of different
seyenth eeoti<m of the origiBal
Februai^ 4, 1887 (24 Stat. «t L. S8S)V
was designed to cause the earria^e of fni^
to be continuous from the plaee d
to the place of deetinati^m.
The contention adyanced in
?)ropositions is, howerer, witboot
rom the fact thai it proceeds i^,
roneous assumption of the poipert of the
Missouri statute in question, stnee tks «•>
preme court of Missouri, in
statute in the ease before na, haa,ln the
positiye terms, declared that it
tended to and did not prerent a
fstjged in interstate eommeree
iting his liability to his own lins^
far from doing this the statute left ihm mf-
rier the amplest power to make
tion in receiying goods for interstate
riage and in issmng a through hSU of ~
therefor. In eommenting on ihm sCatn
court said:
'The proyision of the statvte is
Srhereyer any property is reeeired bj a
mon carrier to be transfored froB c
to another.' This language does not
but rather recoffnises, the ri^fat of the oarnv
to limit its contract of carnage to the «rf rf
its own route, and there deliysr the
to the connecting carrier.
"There can be no doubt, then, that
the statute, as wdl as nndsr ihm B^fUA
law, the csxrier can, by eontraet, limit te
duty and obligation to carriage orm its sen
route."
Again, in summing op its ooaclnsioas* tta
court said:
^'^e are unaUe to see, as oontmiisJ hy i»^
fendant, that the eonstruetion we giwe this
statute makes it repugnant to the pioilil—
of the Constitution of the United Staiaik
which giyes to Congress alone the
reffulate commerce among the statei
^'The act in no wa^ <^>erateB as a
tion of trade and business among the
No burden or restriction on tran^»orta
imposed. Carriers are left free to
thmr own contracts in reirard to
tion for their seryioes for
tween the states, snbjeet to
rcffulations."
I The reasoning now relied on then is,
174 V.
1898.
Missouri. E. & T. R. Co. v. McCann & Smizeb.
578-580
Q *Mr. Chief Justice Fuller delivered tlie
opinion of the court:
After a careful re-examination of this
record we adhere to the judgment heretofore
rendered, and the petition for rehearing must
be doiied.
In the opinion heretofore deliyered, and re-
ported 170 U. S. 681 [42: 1105], it wassUted
't^hat a g^rant from the state of Sonora was re-
lied on, and not a grant from the Mexican
ffovemment. This was in accordance with
&e petition originally filed, but it appears
t;liat it had been stipulated and agreed below
l>etween counsel for the government and the
claimant that the petition should be consid-
ered as amended so as to claim title from
both the nation and the state. That stipu-
lation, however, did not appear in the record,
but this was not material, as we did not re-
gard the erant, whichever its allej^ed source,
as a valid one, for the reasons given.
We remain of opinion tDat, from and after
the adoption of the Constitution of 1836, no
^Ipower existed in the separate ^states to make
such a grant as this. Camou v. United
States, 171 U. S. 277 [43: 163], related to a
flprant made prior to 1836, and ruled nothing
«> the contrary ol the decision in this case.
Construing the various applicable stat-
utes and decrees in relation to the sale of
public lands, which were in force April 12,
i838, the date of the alleged mint, t^ether,
'we think it clear that the Board of Sales
'which assumed to act in this matter had no
power to sell and convey these lands so as
to vest the purchaser with title, unless the
aale was approved by the general govern-
ment, and that it was not so approved.
Purthermore, this Board of Sales din not as-
sume to comply with the requirements of t^e
law in makmff this sale. The members of
the board really professed to be officers of
the state, and to act for the state, although
the grant was declared to be maide in the
"name of the free, independent, and sovereign
state of Sonora as well as of the august Mexi-
can government." But it seems to us that
they referred to the nation as it existed un-
der the Federal system of 1824, as contra-
distinguished from the supreme central sys-
tem that was in existence in 1838. We un-
derstand that when this grant purports to
have been made, the officers ana people of
Sonora were undertaking to carry on their
government as a sovereign and independent
state under tht national Constitution of 1824
and the laws passed thereunder, as well as
the state Constitution of 1825, and subse-
quent laws, in violation of the National Con-
stitution of 1836 and the laws promulgated
under that instrument. This refusal to rec-
ognize their constitutional obligations put
them in antagonism to the general govern-
ment, and, aluiough appellee s counsel deny
that Sonora was in rebellion, and say that at
tiie time of tbe sale she "was a conservative
protestant against the dictatorial proceed-
ings which gave rise to the central ^stem,"
we cannot agree that this sale was conducted
In accordance with the paramount law, and
It does not appear that the national govern-
ment ever ratified or approved the grant.
The various Constitutions and laws bearing
174 V. S.
on the subject are set out in our previous
opinion, and also to a considerable extent re-
peated in Faxon v. United States, 171 U. S.
244 [43: 151].
Petition denied.
MISSOURI, KANSAS, A TEXAS RAIL-[5801
WAY COMPANY, Plff. in Err.,
V.
McCANN A SMIZER, A Cojpartnership Com-
posed of William C. McCann and Milton
B. Smizer.
(See 8. C. Reporter's ed. 580-500.)
Interpretation of State statute — carrier*9
potcer to restrict his liability under Mis-
souri statute.
1. This court accepts the Interpretation of a
statute of a state affixed to It by the court of
last resort thereof.
2. The Missouri statute of 1889 making a rail-
road company Issuing bills of lading for the
transportation of property liable for damages
to the property caused by the negligence of
another railroad company over whose lines
the property passes does not curtail the power
of the company to restrict Its liability by con-
tract* to Its own line, by a restriction In un-
ambiguous terms put into the portion of Its
agreement reciting the contract to carry, and
such statute Is not. as affecting Interstate
transportation, repugnant to the Federal Con
■titutlon.
[No. 11.]
Argued January 7, 10, 1898. Reargument
ordered January 24, 1898. Reargued Oc-
tober 11, 1898. Decided May 22, 1899.
IN ERROR to the Supreme Court of tho
State of Missouri to review a judgment of
that court affirming the judj^ent of the
trial court in favor of plaintiffs McCann ft
Smizer against the Missouri, Kansas, ft
Texas Railway Company for damages to cat-
tle transported upon its contract of ship-
ment. Affirtned.
See same case hclow, 133 Mo. 60, 35 L. R.
A. 110.
The facts are stated in the opinion.
Mr. Georse P* B. Jaokaon, for plaintiff
in error:
In the absence of the statute under con-
sideration, Mo. Rev. Stat. 1889, § 944, what
has been desi^ated as the "American rule"
was in force in the state of Missouri; and
under that the carrier, plaintiff in error
here, was not to be regarded as a "forward-
er" beyond its own line, and not liable for
delays which occurred on a subsequent con-
necting line, in the absence of a special
contract assuming the duties and liabilities
of a common carrier beyond its own line.
Michigan C. R. Co. v. Mineral Springs
Mfg. Co. 16 Wall. 318-324, 21 L. ed. 297-
301 ; Ogdensburg d L. C. R. Co. v. Pratt, 22
Wall. 123, 22 L. ed. 827; St. Louis Ins. Co.
V. St. Louis, V. T. H. d I. R. Co. 104 U. 8.
146, 26 L. ed. 679; Myrick v. Michigan C.
R. Co. 107 U. S. 102, 27 L. ed. 326; Coates
1003
SUPBEICE GOUBT OF THE UinXID StA*
▼. United States Esop. Oo, 46 Mo. 238; Snider
▼. Adams Exp, Co. 68 Mo. 376; Cfrover d
Baker Sewing Mach, Co. v. Missouri P. R,
Co, 70 Mo. 672, 35 Am. Rep. 444; Dimmitt
y. Kansas City, St, J, d C, B, R. Co. 103 Mo.
433.
In the al)6ence of the etatute in question,
the carrier could lawfully contract against
liahility for loss or damage occurring on a
connecting line, or occasioned by the negli-
gence of a connecting carrier.
Hunter v. Southern P. R, Co, 76 Tex. 195;
Central Trust Co, v. Wahash St, L. d P. R.
Co, 31 Fed. Rep. 247 i Piedmont Mfg. Co. y.
Columbia d Q. R, Co. 19 S. C. 353.
Beyond its own line a railroad company is
not a common carrier in the strict sense of
the term, but is a private carrier for hire;
that is, but a bailee for hire, and as such
may contract against its own negligence,
and certainly against liiat of any other
party.
Story, Bailm. §§ 33, 495; 2 Story, Oontr.
§ 752a, and note; Pish ▼. Chapmany 2 Ga.
349; Griswold v. Illinois C. R. Co. 90 Iowa,
265, 24 L. R. A. 647; Stephens ▼. Soutf^em
P. Co. 109 Cal.,86, 29 L. R. A. 751; Hart-
ford P. Ins. Co, y. Chicago, M. d St. P. R.
Co. 36 U. S. App. 162, 70 Fed. Rep. 201, 17
CCA. 62, 30 L. R. A. 193.
If a special consideration for the agree-
ment limiting the liability of the carrier is
necessary, it can be found in the special rate
charged for shipment. The statement in the
contract that tne rate was a special one is
prima facie evidence of the fact; and that
the same rate is given to everyone under the
same circumstances does not prevent its be-
ing a reduced or special rate.
McPadden y. Missouri P, R, Co. 92 Mo.
343; Rogan v. Wahash R. Co, 61 Mo. App.
665 ; Duveniok v. Missouri P. R, Co. 57 Mo.
App. 550.
FrioT to the last opinion of the supreme
court of Missouri in this case the statute
in question received a construction which
save it the effect of making an unlimited
bill of lading prima facie evidence of a spe-
cial contract assuming the duties of a com-
mon carrier to the destination on another
line, but still recognizing the right to limit
the carrier's liability to its own road.
Dimmitt v. Kansas City, St. J. d C. B. R.
Co. 103 Mo. 433 ; Nines v. St, Louis, I. M. d
S. R. Co. 107 Mo. 475; P. A. Drew Glass Co.
V. Ohio d M, R, Co, 44 Mo. App. 416; His-
torical Pub. Co. y. Adams Exp. Co, 44 Mo.
App. 421 ; Hill v. Missouri P. R, Co. 46 Mo.
App. 519.
The statute as now construed is a r^ula-
tion of commerce ; and as by its terms it ap-
plies to shipments to points "within or witn-
■out this state" (Missouri), and in the case
at bar is made to control the shipment from
Hk point in Missouri to a point in Illinois,
it is r^ulation of commerce among the
Hail V. DeCuir, 96 U. 8. 485, 24 L. ed.
647 ; Leisij v. Hardin, 136 U. S. 100, 34 L.
ed. 128, 3 Inters. Com. Rep. 36; Wabash, St,
L, d P. R. Co. V. Illinois, 118 U. S. 571, 30
L. ed. 249, 1 Inters. Com. Rep. 31; Illinois
C. R. Co. V. Illinois, Uo U. S. 142, 41 L. ed.
1004
107; Stanley ▼. Wahash, Bt. L, d P. E. C%.
100 Mo. 435, 8 L. R. A. 54S, 3 latera. Cm.
Rep. 176; Grimes v. Bddp, 126 Mo. 1«, SI
L. SL A. 638; Selvege v. Bt. Lome d B, f,
R. Co. 135 Mo. 163.
Because it is a regnlatioB of liiteiitoli
commerce the statute in qwettJoa, Mok. Bm,
Stat. 1889, § 944, is in oonfliet wxtk U. S.
Const, art. 1, S 8, and is therefore toU.
Messrs. J. H. Bodes, R. B. Brietom, oi
Charles B. T eater, for dJef aidant in error:
The supreme court of MiaKmri did hC
err in deciding that Mo. Bev. Stat. IBM, I
044, is not repugnant to ihm OonatitstiaB rf
the United States.
DimmiU v. Kansas OUy, Bt. J.d C.B.M.
Co, 103 Mo. 440; MoCmm ▼. Eddy, 1» Ife
59,36L.R.A.110; Uverpod d G. W. B$e^
Co, V. Pheniw Ins. Co. 129 U. & 3t7, S L
ed. 788 ; New Jersey Steam Bam. Co. ▼. JTap-
ohatUa^ Bank, 6 How. 344, 12 L. ei. 40.
Michigan C. R. Co. v. Mineral Bprm^s Mff
Co. 16 WalL 818, 21 L. ed. 297; Wev rWt
C, R, Co. y. Lockwood, 17 WalL 357, 21 L
ed. 627 ; Ogdensburg d L. O. R. Co. y, PrOtX.
22 WaU. 123, 22 L. ed. 827; Bamk of Km-
tucky V. Adams Ewp. Co. 93 U. 8. 174, 23 L
ed. 872.
The court did not err in retuiag te gm
the three instructions asked by plaim#
wherebv it claimed release froin aD nekflcr
after tiie stock left its road. Tte eamr
cannot stipulate to release ite^ tram va
own negligence or the ne^igeaea ai ia
agents.
Grover d Baker SeuA/ae Maeh. Ob. ▼. Xi»>
souri P. R. Co. 70 Mo. 674; FeOidey ▼. fL
Ijouis, K, C, d N. R, Co. 74 Mo. 162, 41 Aa
Rep. 309; Ohio d M R. Co. t. MaOar^
96 U. S. 258, 24 L. ed. 698; Ofdemak^f i
L. C. R. Co. y. Pratt, 22 WalL 122, 2i L
ed. 827; New York C. R. Oo. ▼.
17 Wall. 357, 21 L. ed. 627.
A earrier cannot make a throa|^
or undertake to ship or d^v«r to a
beyond its line, unequivocally br eoc^
binding itself to carry and dcurer te t
point of destination, and at tka i
limit its liability for negligeaee
on its own road. Sudi oontraets are
public polipy.
McCann v. Eddy, 133 Mb. 69, IS U K. L
110; Halliday y. St. Louis, K.C.dV.BiCk
74 Mo. 161, 41 Am. Rep. 309.
Contracts limiting liability are %e W was-
etrued bv the courts most etroagly
the carrier, and all doubts aad
will t>e resolved in favor of the eUpipcr.
Hale, Bailm. & C 9, 433; Levirmf ^
Union Transp. d Ins. Co. 42 Mo, 88. 97 Ak
Dec. 320; Hutchinson, Carriers, 223, f Se
The plaintiff in error has not effeeCaaTv
contracted against such neriigcaee fai t^
case, because (a) it has not dime so la cfaa*
plain, and spedfie terms, and beeaaae f b^ kr
the terms of the fourth danse of tbe ear-
tract the carrier is bound epeeifteally far Mi
negligence.
Westoott y. Fargo, 61 N. T. S42, 19 A&
Rep. 300; Maguin v. ZHweetore, Si K. T.
168; Nicholas v. New York C. d B. M. M.
Co. 89 N. Y. 370; CatMU ▼. BaUimmn 4
0. R, Co. 93 N. Y. 682, 46 Aa^ Rea. 20
174 11.1.
1898.
MI680UBI, E. & T. R. Co. V. MoCann & Smizbk.
580-588
HoUappU ▼. BofM, W. d 0. R. Co. 86 X.
Y. 275.
There was an expressed, but no real, con-
sideration for such alleged releases. Plain-
tiff's uncontradicted evidence shows a total
liMsk of sudi alleffed consideration.
MoFadden v. Missouri P. R, Co, 92 Mo.
351; Fontaine v. Boatmen* s 8av, Inst, 57
Mo. 552; York Mfg. Co, y. Illinois C. R. Co.
Z WaU. 107, 17 JU ed. 170; McMillan y.
Michigan S, d N. I. R. Co. 16 Mich. 116, 03
Am. Dec. 208.
tO] *Mr. Justice Wlilte delivered the opinion
of the court:
A statute of the state of Missouri, found
in Uie Revised Statutes of that state, 1889,
chap. 26, reads as follows:
H] *"Sec. 944. Whenever any property is re-
ceived by a common carrier to be transferred
from one place to another, within or without
tbis state, or when a railroad or other trans-
portation company issues receipts or bills of
lading in this sta£e, the common carrier, rail-
road or transportation company issuing sudi
bill of lading shall be liable for any loss, dam-
age, or injury to such property, caused by its
negligence or the n^iffenoe of any other
common carrier, railroad or transportation
company to which such property may be de-
livered, or over whose line such property may
pass; and the common carrier, railroad oar
transportation company issuing any such re-
ceipt or bill of ladinff shall be entitled to re-
cover, in a proper action, the amount of any
loss, damage, or injury it may be reauired to
pay to the owner of such property from the
common carrier, railroad or transportation
eompany, through whose negligence the loss,
dama^, or injury may be sustained."
Whikt this statute was in force the de-
fendants in error shipped from Stoutsville
in the state of Missouri, on the line of the
Missouri, Kansas, k Texas Railwav, to Chi-
cago, Illinois, which was beyond the line of
that road, ninety-nine head of cattle. At the
iXsmt of the shipment a bill of lading was de-
livered to the shippers. The portions of the
contract pertinent to the questions here aris-
ing for consideration are as follows:
^^This agreement made between (George A.
Bddy and H. C. Cross, receivers of the Mis-
coun, Kansas, k Texas Railway, parties of
the first part, and M. B. Smizer, party of the
neoond part, witnesseth that whereas the re-
ceivers of the Missouri, Kansas, & Texas
Kailway transport the live stock as per above
roles and regulations, and which are hereby
made a part of this contract, by mutual
agreement between the parties hereto; now,
therefore, for the consideration and mutual
covenants and conditions herein contained,
said party of the first part is to transport
for the second party the live stock described
below, and the parties in charge thereof, as
hereinafter provided, namely: six cars said
to contain 05 head of cattle m. or 1. o. r. from
S8S] stoutsville ^station, Missouri, to Chicago, II-
iinois, station, consigned to Brown Bros. &
Smith, care Union Stock Yards at Ohioago,
Illinois, at the through rate of 17% c. per
hundred pounds, from Stoutsville, Missouri,
to Chicago, Illinois, subject to minimum
J 74 IT. S.
weights applying to cars of various lengths
as per tarin rules in effect on the day of ship-
ment, the same being a special rate, lower
than the regular rates, or at a rate mutually
agreed upon between the parties, for and in
consideration of which said second party
hereby covenants and agrees as follows :
"1st. That he hereby releases the party of
the first part from the liability of common
carrier in the transportation of said stock,
and agrees that such liability shall be that
of a mere forwarder or private carrier for
hire. He also hereby agrees to waive re-
lease, and does hereby release, said first parly
from any and all liability for and on account
of any delay in shipping said stock, after the
delivery thereof to its agent, and from any
delay in receiving same after being tendered
to its agent.
"4th. That the said second party for the
consideration aforesaid hereby assumes, and
releasee said first party from, risk of injury
or loss which may be sustained bv reason of
any delay in the transportation of said stodc
caused by any mob, strike, threatened or
actual violence to person or property, from
any source; failure of machinery or cars, in-
jury to track or yards, storms, floods, escape
or robbery of any stock, overloading cars,
fright of animals, or crowding one upon an-
other, or any and all other causes except the
negligence of said first party, and said n^li-
gence not to be assumea, but to be proved l^
the said party of the second part.
"13th. And it is further stipulated and
agreed between the parties hereto, that in
case the live stock mentioned herein is to be
transported over the road or roads of any
other railroad company, the said party of the
first part shall be released from liability of
ever^ kind after said live stock shall have
left its road, and the party of the second part
^hereby so expressly stipulates and agreea,[68S]
the understanding of both parties hereto—
that the party to the first pari shall not be
held or aeemed liable for anything beyond
the line of the Missouri, Kansas, & Texas
Railway, excepting to protect the through
rate of freight named herein."
When this bill of lading was executed an
ancillary agreement was indorsed thereon, as
follows :
"We, the undersized persons in charge of
the live stock mentioned in the within con-
tract, in consideration of the free pass fur-
nished us by the Missouri, Kansas, k Texas
Railway, Geo. A. Eddy, and H. C. Cross, re-
ceivers, and of the other covenants and
a^eements contained in said contract, in-
cluding rules and regulations at the head
thereof and those printed on the back there-
of, all of which for the consideration afore-
said are hereby accepted by us and made a
S art of this contract, and of the terms and con-
itions of which we hereby agree to observe
and be severally bound bv, do hereby express-
Iv agree that during the time we are in
charge of said stock, and while we are on our
return passage, we shall be deemed employees
of said receivers of the Missouri, KanAan. k
1095
mi»5M
the act of 1867, tlie making of a deed of gen-
eral afisiffnment was deem^ to be repugniaiit
to ^e policy of tlie bankrupti^ laws, and, tm
a necessary oonsequenov^^i'^^^^^^ *^ <^
of bankruptcy pw Be. This is shown by an
examination of tlie decisions bearing upon
the point, both Engliaeh and American. In
Olobe Insurance Co. y. Cleveland Inauranoe
Co. 14 Nat Bankr. Reg. 311, 10 Fed. Osuk
488, tiie subject was ably reviewed and the
authorities are there oopiously collected.
The decision in that case was expressly relied
upon in Re Beieenihal, 14 Blatdif. 146,
where it was held that a voluntary asa%n-
ment, without preferences, valid under the
laws of the atate of New York, was void aa
against an aeeig^nee in bankruptcy, and this
latter case was approvingly referred to in
Reed v. Molntyre, 98 U. S. 513 [25: 173]. So,
also, in Boeee v. JTiii^, 108 U. S. 379, 385
[27: 760, 763], H was held, citing (p. 387
[27 : 763] ) Reed v. Mclniyre, that what-
ever might be the effect of a deed of general
assignment lor the benefit of creditors, when
considered apart from the bankrupt act, such
a deed was repugnant to the object of a bank-
ruptcy statutie, and therefore was in and of
itself alone an act of bankruptcy. The fore-
going decisions related to deeds of ^neral as-
signment made during the operation of the
bankrupt act of 1867 (14 Stat at L. 536.
chap. 176), or the amendments thereto of
1874 and 1876 (18 Stat at L. 180, chap.
390; 19 Stat, at L. 102, chap. 234). Nci-
[M6]ther, however, *the act of 1867, nor the
amendments to it, contained an express
provision that a deed of general assign-
ment should be a conclusive act of bankrm>t-
cy. Such consequence was held to arise.
SUPBBMB COUBT OF THB UnITB> BcASBB.
from a deed of that deacriptl—, m %
■ult of the dauae, in tlie act of 1M7»
ding aaflignmrnts with '*iabmt to iklay, 4^
fraud, or hinder^ ereditorsy and
Erovision avoidinj; oertain acta
iy, defeat, or hinder the eiWHtw «■ jam
act Rev. Stmt. 5021, ff 4, 7. Nov, whs il
is considered that the present law, altkam^
it only retained some <tf tiw pfoviaiaBa rf
the act of 1867, contains an
tion that a deed of general
authorize the involuntary baakramtn^ «f tks
debtor making such a deed, all dodbC as Ǥ
the scope and intent of the Imm is
The condusive result of a deed of
signment under all our pn
a^, as well as under the RngliA
laws, and the significant import of the
poration of the previous rule, by an
statement in Uie present statute ha
lucidly expounded by Addison Brovn^ J. At
OuttoUlig 90 Fed. B^. 475, 478.
But it IS arffoed that whatever awy hvv
been the rule in previous bnnkrapt
utes, tiie present act, in other than
ticukur provision just considered,
a dear intention to depart from the
rule, and henoe makes insolvent i
tial prerequisite in every case. Tc
this proposition reliance is plneed
agraph e of section 8, whidi raads ss
lows:
"e.^ It shall be a complete defenst te
proceedings in bankruptcr inetitiKed
the first subdivision of this section to
and prove that the party proeeeded
was not insolvent as defined in tUs
the time of the filing the petition
him, and if sotvency at sneh date Is
while insolvent any creditor to obtain a pref-
erence through legal proceedings, and not hav-
ing, at least five days before a sale or final dis-
position of any property affected by snch pref-
erence, vacated or discharged snch preference;
or (4) made a general assignment for the b^oefit
of his creditors ; or (5) admitted In writing his
Inability to pay his debts and his wUllngness
to be adjudged a bankrupt on that ground.
5. A petition may be filed against a person
who Is insolvent and who has committed an act
of bankruptcy within four months after the com-
mission of such act Such time shall not expire
until four months after (1) the date of the re-
cording or registering of the transfer or assign-
ment when the act consists In having made a
transfer of any of his property with Intent to
hinder, delay, or defraud his creditors, or for
the purpose of giving a preference as hereinbe-
fore provided, or a general assignment for the
benefit of his creditors. If by law such recording
or registering Is required or permitted, or. If
It Is not, from the date when the b^Deflclary
takes notorious, ezcluslTe, or continuous posses-
sion of the property unless the petitioning cred-
itors shall have received actual notice of such
transfer or assignment
0. It shall be a complete defense to any pro-
ceedings In bankruptcy. Instituted under the
first subdivision of this section, to allege and
prore that the party proceeded against was not
Insolyent, as defined In this act at the time <^
the filing the petition against him, and If sol-
Tency at such date Is proved by the alleged
bankrupt, the proceedings rtiall be dismissed,
and, under said subdivision one, the burden of
proving solvency shall be on the alleged bank-
rupt.
1100
d. Whenever a
tlon has been filed, as berelabefiore
der the second and third s«
section, takes lasne with and
tlon <^ his Insolvency. It shall be
appear In court on the bearlnc wWk Us
papers, and accounts, and T^rt?«tt te
tlon, and give testimony ss to all
Ing to establish solvency or
case of his failure to so attsnd
examination, the burden of provtnc his
shall rest upon him.
e. Whenever a pettttoa Is filed %y
for the purpose of havtag
bankrupt and an appllcatloa Is laea* to
charge of and hold the property «f
bankrupt or any part of the
adjudication and pending a beartec on the
tlon, the petitioner or applicant akan file to
same court a bond with at I
snfilclent sureties, who shall
jurisdiction of said court to be
court or a judge thereot la
court shall direct condlttoned fbr
In case such petition Is
spondent his or her personal
costs, counsel fees, expenses, and
sloned by such selsure, taktag.
of the property of the alleesd
If such petition be dismissed by tbs
withdrawn by the petitioner, the
respondents, shall be allowed all
fees, expenses, and damages orrsslsnid by
selsure, taking, or detention of
Counsel fees, costs, expenses, snd
be fixed and allowed by the
the obligors la sucb bonds.
174 «.&
Qborob M. Wbst Co. y. Lxa Brothkrs & Co.
996-590
f^m Alleged bankrupt the proceedings shall
t dismissed, and under said subdivision one
i« l>urden of proving solvency shall be on
le Alleged bankrupt.'^
Tl^e areiiment is that the words "under the
ne^ subdivision of this section" refer to all
le provisions of para^aph a, because that
&r>&paph, as a whole, is the first part of the
Kstion. separately divided, and although
esi^nated by *the letter a, it is nevertheless
y \>e ooneidered, as a whole, as subdivision
But whether the words "first subdivision
f ifliis section/' if considered intrinsically
nd apart from the context of the act, would
e Iiela to refer to paragraph a as an entire-
y or only to the first subdivision of that
^&iragraph, need not be considered. We are
oncemed onlv with the meaning of the
rords as used in the law we are interpreting.
^o^v, the context makes it plain that the
rords relied on were only intended to relate
o the first numerical subdivision of para-
prsiph a. Thus, in ^e last sentence of para-
p-a.pii o the matter intended to be referred
» by the words "first subdivision of this sec-
aon/' used in the prior sentences, is addition-
klly desiniated as follows : "and under said
raJbdivision one." etc., language which can-
not possibly be in reason construed as refer-
ring to the whole of paragraph a, but only to
rubdivision 1 thereof.
This is besides more abundantly shown by
pa.Tagraph d, which provides as follows:
**d. Whenever a person ajrainst whom a
petition has been filed as hereinbefore provid-
ed under the second and third subdivisions
of this section takes issue with and denies
the allegations of his insolvency, it shall be
bis du^ to appear in court on the hearing
"with his books, papers, and accounts, and
submit to an examination, and give testi-
mony as to all matters tending to establish
solvency or insolvency, and in case of his
failure to so attend and submit to examina-
tion the burden of proving his solvency shall
rest upon him."
This manifestly only refers to enumera-
tions 2 and 3 found in paragraph a, which,
it will be remembered, moke it essential
that the acts of bankruptcy recited ^^hould
bave been committed by the debtor while in-
solvent. Indeed, if the contention advanced
irere followed, it would render section 3 in
many respects meaningless. Thus, if it
'were to be held that the words "first sub-
division of this section," used in paragraph
C referred to the first division of the section
<^-that is, to paragraph a as a whole — it
would follow that the words "second and
third subdivisions of this section," used in
paragraph d, would relate to the second and
Ithird divisions of *the section — that is, .to
paragraphs h and e. But there is nothing
in these latter paragraphs to which the ret-
erence in paragraph d could possibly apply,
and therefore, under the construction as-
serted, paragraph d would have no signifi-
eance wnatever. To adopt the reasoning re-
ferred to would compel to a further unten-
able conclusion. If the reference in para-
graph e to the ''first subdivision of this sec-
tion" rdates to para^^ph a in its entirety,
then all the provisions in paragraph a would
174 U. 8.
be governed by the rule laid down in para-
graph c. The rule, however, laid down in
that paragraph would be then in irrecon-
cilable confilct with the provisions of para-
graph d, and it would be impossible to con-
strue Uie statute harmoniously without
eliminating some of its provisions.
Despite the plain meaning of the statute
as shown by the foregoing considerations, it
is ursed that the following provision con-
tained in paragraph h of s^ion 3 operates
to render any and all acts of bankruptcy
insufficient, as the basis for proceedings in
involuntary bankruptcy, unless it be proved
that at the time the petition was filed the al-
leged bankrupt was insolvent. The provi-
sion is as follows : "A petition may be filed
against a person who is insolvent and who
has committed an act of bankruptcy within
four months after the commission of such
act." Necessarily if this claim is sound,
the burden in all cases would be upon the
petitioning creditors to allege and prove
such insolvency. The contention, however,
is clearly rebutted by the terms of para-
graph o, which provides as to one of the
classes of acts of bankruptcy, enumerated
in paragraph o, that the burden should be
on the debtor to allege and prove his sol-
vency. So, also, paragraph d, conforming in
this respect to the requirements of para-
graph a, contemplates an issue as to the :»ec-
ond and third classes of acts of bankruptcy,
merely with respect to the insolvency of
the debtor a4 the time of the ootntnission of
the act of bankruptcy. Further, a petition
in a proceeding in involuntary bankruptcy
is defined in section 1 of the act of 1808,
enumeration 20. to mean "a paper filed
. . . by creditors alleging the commis-
sion of an act of bankruptcy by a debtor
therein named."
*It follows that the mere statement in t\' [6M]
statute, by way of recital, that a petition
may be filed "against a person who is insol-
vent and who has committed an act of bank-
ruptcy," was not designed to superadd a fur-
ther requirement to those contained in para-
graph a of section 3, as to what should con-
stitute acts of bankruptcy. Tliis reasoning
also answers the argument based on the fact
that the rules in bankruptcy promulgated by
this court provide in general terms for an
allegation of insolvency in the petition and
a denial of such allegation in the answer.
These rules were but intended to execute the
act, and not to add to its provisions by
maldng that which the statute treats in
some casee as immaterial a material fact in
every case. Therefore, though the rules and
forms in bankruptcy provide for an issue as
to solvency in casee of involuntary bank-
ruptcy, where by the statute such issue be-
comes irrelevant, because the particular act
relied on, in a given case, conclusively im-
ports a right to the adjudication in bank-
ruptcy if the act be established, the al-
legation of insolvency in the petition be-
comes superfiuous, or if made need not be
traversed.
Our conclusion, then, is that, as a deed of
general assignment for the benefit of credi-
1101
6i9-608
SUPBEMK GOTTBT OF THE UhIXSD SxAXBB.
tors 18 made by the bankruptcy act alona
sufficient to justify an adjudication in in-
Toluntary bankruptcy against the debtor
making such deed, without reference to his
solvency at the time of the filing of the
petition, that the denial t>f insolvency by
way of defense to a petition based upon the
msJdng of a deed of general assiffnmoit, is
not warranted by the bankruptcy law; and,
therefore, that the question oertified muBi
ke anawered in the negative.
And it is so ordered.
rCOOlCOLUMBUS CONSTRUCTION COMPANY,
* Plff. in Err.,
V.
CRANE COMPANY.
(Bee & a Reporter's ed. 600-608.)
Several separate appeals, or writs of error,
not aUotoed in same ease, at same time, to
separate oourttu
The act of 1891 (26 Stat at L. 826) does not
aathorlse several separate appeals or writs
of error, on the merits, in the same case and
at the same time to two appellate courts:
and therefore the writ of error In this conrt,
which was taken while the case was pending
In the circuit coort of appeals. Is dismissed
[No. 462.]
Submitted April 17, 1899. Decided May t2,
1899.
IN ERROR to the Circuit Court of the
United States for the Northern District
of Illinois in an action brought by the Co*
lumbus Construction Company against the
Crane Company. On motion to dismiss.
Dismissed.
See same case below, 46 U. S. App. 52, 73
Fed. Rep. 984, 20 C. C. A. 233.
Statement by Mr. JusUce Sliiraas
In May, 1801, the Columbus Construction
Company, a corporation of the state of New
Jersey, brought in the circuit court of the
United States for the northern district of
Illinois an action at law against the Crane
Company, a corporation of the state of Illi-
nois, llie case was put at issue, and tlie
trial resulted in a verdict and judgment in
favor of the plaintiff in the sum of $48,000.
This judgment was reversed by the circuit
oourt of appeals upon a writ of error sued
out by the defendant. 46 U. S. App. 52.
Thereafter the case was affain tried and re-
sulted in a verdict and ju^^ent in favor of
the defendant, upon a plea of set-off, in the
sum of $98,085.94, as of the date of March
2 1898.
' On the 25th day of August, 1898, a writ
of error to reverse t^s judgment was sued
out by the plaintiff from the circuit court of
appeals of tne seventh circuit, where the case
is now pendinff.
On theirth day of September, 1898, the
plidntiff also sued out a writ of error from
this court. On April 17, 1899. the defendant
1102
in error filed
oi error; and o& the
in error filed a petxtion li
orari to the drniit eooxt
sevcnQi
Jfessrt.
Wing, and Thomae L.
defendant in error, In
Messrs. J. B. C«st«r
for plaintiff in error, in
to nigm'ffs.
*Mr. Jostiee IDilnui detivmd
of the oourt:
This record diedoeee tbat
ing two writs ol error to the j
circuit oourt— one in the Urn
cuit court of appeals for the
sued out <m the 25th day of
H
eClM
and one in this oourt, sued ost em the STu
day of September of the same y«ar. It alv
appears that the jurisdictkn d
oourt is not in question, bot the
is that that oourt erred in the
jurisdiction.
We are of the opinion that tiM
(26 Stat at L. 826), ja'
write of error were sued out. docs ast sm-
template eev«ral separate sppeah or wc*
of error, on the ments, iii the aaflw ease std
at tiie same time to two appellate
tiiat, therefore, the writ in this
was taken while the case was niiaiTlM la ifti
circuit oourt of appeals, en^^ tmm A»
missed.
Such a question was eoosidered Vf 4a
court in McLisk ▼. Roff, 141 U. 8. 961 [S-
893].
That was a case of a writ of
this oourt to the United States
Indian territory, where a suit
and undecided, and the object of
was to get the opinion of this i
question whether the lower oow
diction of the suit. This oourt held thsi A
was not competent for a partj
jurisdicticm of t^ trial court to
question here on a writ of erro
fore final judgment^ and the writ
inffly dismissed.
In the opinion, read by Mr. Ji
mar, it was said:
''It is further ar^ped, im
contention of the plaintiff in
should be held that a writ of
lie upon a question of jnrisdietien
er final judgment, suoh raUng
confusion and absurd oonsemMaea
auestion of jurisdiction would be
bis court, wnile the ease on its
be certified *to theeircoit oonrt of
that the case would be before twe
appellate courts at one and the
and that the supreme court
the suit upon tne question of
while the circuit court of
properly affirm the judgment
court upon the nerits.
"The Unwej which undarliss this ^»
ment is the sssumptioa that the net ef uM
contemplates several sMSjmte snessli in As
1T4 V.ft
of At
ifa
ti^itts
Columbus CoNflTBucnoN Co. y. Cramb Co.
603-604
jooe ease, and at the same time to two ap-
^^11 ate courts. No such provision can be
!o-oj:id in the act, either in express terms or
igr implication. The true purpose of the act,
lA C^aihered from its context is thai the writ
v£ error, or the appeal, maj be taken only
a^^t<er final judf^eni, except in the cases
specdfled in section 7 of the act.
**Wlien that judgment is rendered, the par-
>gr stfainst whom it is rendered most deot
iv4i«thar he will take his writ of error or ap-
peal to the supreme court upon ihe question
of Jurisdiction alone, or to the circuit court
a£ appeals upon the whole case; if the lat-
ter, then atke circuit court of appeals may, if
let deem proper, certify the question of juris-
dlotion to this court."
'We think the main purpose of the act of
1891, which was to relieve this court of an
eenormouB overburden of cases by creating a
xie^r and distinct court of appeals, would be
defeated, if a party, after resortine to the
^^xcuit court of appeals and while nis case
tiiere pending, could be permitted, of his
motion, ana without procuring a writ
of oertiorari, to bring the cause into this
Moreover, it is evident that such a movement
is premature, for the controversy ma^ be de-
eidm by tiie circuit court of appeals in favor
of the plaintiff in error, and thus his resort
to this court be shown to have been unneces-
^uUtnan*8 Palaee Car Co, v. Central
Transp. Co. 171 U. S. 138 [ante, 108], is
referred to as a case^ in which there was
pending at the same time an appeal from a
decree of the circuit court to the circuit
oourt of appeals and to this court. An ob-
vious distinction between that case and this
ie that there the appeal was first taken to
tiiis court. Accordingly the circuit court of
appeals declined either to decide the case on
I3it8 merits or *to dismiss the appeal, while the
ease was pending on a prior appeal to this
court, and continued the cause to await the
result of the appeal to the supreme court.
89 U. 8. App. 30^
Without, therefore, oonsiderinff other
ffrounds ureed in the brief of the defendant
va, error on Its motion to dismiss, we think a
due regard for orderly procedure calls for a
distniaeal of the writ of error; and it is so
osdered.
COLUMBUS CONSTRUCTION COMPANY,
Petitioner,
V,
CRANE COMPANY, Respondent.
(See 8. C. Reporter's ed. 608.)
[No. 782.]
Buhmitted April 17, 1899. Decided May
n, 1899.
ON PETITION for writ of certiorari to
the United States Circuit Court of Ap-
peals for the Seventh Circuit. Writ of oer^
iiorari denied.
Meaara. J. B. Ouster and 8. 8. Oresory
lor petitioner.
174 U. S.
Meeera. Cl&arles 8. Holt, Russell M.
Wing, and Thomaa L. Chadhoume, Jr., for
respondent.
. The petition for the writ of certiorari is
denied.
RIO GRANDE IRRIGATION & COLONI^
ZATION COMPANY, Appt.,
V.
CHARLES H. GILDERSLEEVE.
(See S. C. Reporter's ed. 603-610.)
Withdratoal of appearance of attorney-^
how brought into the record — motion l»
aet aaide judgment,
1. The withdrawal of the appearance of an at-
torney without leave of the conrt leaves the
record in a condition for a valid judgrment
by default for want of appearance, If there la
no claim that the attorney has acted in colIn-
■ion with the plaintiff, or without authority,
or by mistake.
2. A letter of an attorney withdrawing appear-
ance may be brought into the record by bill
of exceptions which seta It forth at length,
and states that It was filed by the plaintiff
in the case.
8. A motion to set aside a judgment is ad-
dressed to the discretion of the trial court,
and where the exercise of that discretion haa
been approved by the supreme court of the
territory, this court will not overrule those
courts, unless misuse or abuse of discretion-
ary power plainly appears.
[No. 254.]
Argued April 20, 21, 1899. Decided Ma/y
22, 1899.
APPEAL from a judgment of the Supreme
Court of the Territory of New Mexico
affirming the judgment of the District Court
for Bernalillo County in that Territory
denying a motion to vacate a judgment, etc.,
in an action brought by Charles H. Gilder-
sleeve, plaintiff, against the Rio Grande Ir-
rigation Company, upon a promissory note.
Affirmed.
See same case below, 9 N. M. — , 48 Pao.
309.
Statement by Mr. Justice Shiraas
This was action of assumpsit begun in the
district court for Bernalillo county, territory
of New Mexico, on the 17th day of July,
1S94, by Charles H. Gildersleeve against the
Rio Grande Irrigation Company. The dec-
laration is in the ordinary form, containing
a special count upon a promissory note for
the sum of $50,760, daied June 30, 1890,
bearing interest at the rate of twelve per
cent, and containing also the common counts
in assumpsit. The note sued on was payable
to P. R. Smith and indorsed by him and de-
fendant in error, and a copy thereof was filed
with the declaration, and also a copy *of n[604|
resolution of the directors of defendant au-
thorizing the giving of a note, not to P. R.
Smith, but to the Second National Bank of
New Mexico. Upon this declaration process
was issued, service of which was made upon
1103
004-606
SUPBEHE COUBT OV TKB UvmD
J. Francisco Chavez, a director and stodc-
holder of plaintiff in error. Process waa re-
turnable on the first Monday of Angusty
1894, under the provision of the praotioe act
of 1891, and on the 3d day of August, 1894,
defendant below entered itn appearance by
H. L. Pickett, its attorney. On the 16th day
of September, 1894, the plaintiff filed in the
office of the clerk of the district court a let-
ter from Bfr. H. L. Pickett, addressed to
plaintiff's attorneys, in whid; the writer
states that he withdraws the appearance at
the request of Colonel P. B. Smith (who is
the original payee of the note sued on).
Thereupon the clerk of the district court
made and filed a certificate of nonappear-
ance, and on the same day a judgment was
entered, based upon the said certificate,
which judgment Is for the sum of $76,-
893.80.
Afterward, and on the 16th day of No-
vember, 1894, during the next term of the
district court after the judgment had been
entered in Vacation, the defendant below
filed a motion to vacate the judgment for
defects and irregularities apparent on the
face of the record. This motion was not
heard until the 6th of September, 1896, when
it was denied by the court; and on the 9th
day of September, 1896, defendant below
filed a second motion to vacate the judgment
for reasons set forth in the accompanying
affidavit filed therewith and also filed at the
same time its proposed pleas verified by
oath. The affidavit with said motion shows,
in substance, that the plaintiff below re-
ceived from defendant below, in the summer
of 1889, 60,000 shares of its capital stock
and the sum of $1,610,000 In Its first-mort-
gage bonds, for the purpose of purchasing
certain property in New Mexico for said
company. It further appears from said affi-
davit that the plaintiff below did purchase
a portion of the property in New Mexico and
turned back to the company a portion of
the bonds and stock in lien of the property
whidi he did not purchase, and retained the
remainder of the bonds and stock as his own
[€06]property, but induced *the company to assist
nim in raising the money necessary to make
final payment for the Vallecito grant by ex-
ecuting a promissory note for $47,000, the
note in the present case having been subse-
?uently given in renewal of the first note,
n other words, it is shown that the indebt^
edness was that of the plaintiff below, and
not of the company ; that the company never
received any money on said note nor any
benefit therefrom, but was merely an aceora-
modation maker to assist the plaintiff be-
low in carrving out his contract with the
company. At the time of the execution of
said note for $47,000 the plaintiff below
agreed to deposit as collateral security there-
to $120,000 of bonds of the company, and it
H further shown by said affidavit that the
said collateral has never been accounted for
in any manner. The district oourt entered
judgment denying the motion.
"Die defendant company sued out a writ
of error to review the case in the supreme
court oi the territory, where the judgment
1104
of the distriot ocmrt
was then brought to this eovrt faj
ror, and afterwards aa H?^ ^'**
the case thus appearing twiee on tke
4>t this court as Noe. 1& and 254.
Mr. Trmatk V^. Clmmmj lor
if estrt. J. H. MeOewam aad A
reii for appdlee.
I.. VflP-
*Mr. Justice
of the oourt:
It is conceded that the Bio Qraaie Irrifs-
tion ft Colonizatioii Compaiij was Af
served with process, and that aa
was entered on its behalf bj H. L.
a qualified attorney. The
in the case is whether the solneqaeBt
drawal of his appearanee by the attomv.
without leave of the court, left the reeord ist
condition in whidi a judgment br MxaA
for want of an appearance coold he vaBAT
entered.
*Case8 aredted by the appeHaat^
in which it has been hdd that ^e
ance of a defendant, once regularly
cannot be withdrawn witiKNit leave ef tkp
court. United Statet t. Omrry^ 6 How. Ul
[12: 366]; Dafio t. Adamu, IS m.
But an examination of
doses that this is a mle dfigiMd far 4v
benefit and protection of
Usually the question has
had been no service of process on tte
ant, and where, therefore, s witMfawil if
appearance by the attorney woold leave tti
nlaintiff without ability to proceed by #*
faulting the defendant for want of aa 9-
pearance. It was ssid hy this cowt ■
Oreighion t. JTerr, 20 WalL IS ftttSll?-
'The appearance gives rights and btsiitu a
the conduct of a suit to oestroy whieh ^ s
withdrawal would work great injastirs to
the other parties.**
United States v. Ouny, ea^ra, wm a at
in equity which had passed to a teal dai'w
and the defendant, desiring to appeal, imri
a citation to the complainant, wUdi citstire
was served on the person who had bcffi **-
tomey of record during the trial of the f^
The attorney subsequently by sftAatii ftitpi
that he was not the attorney of tta sfs Jht
at the time the dtation wwm sunsd ea na.
tiiat he had been dlseharved froBi all Asty ■
attorney, and had so iiuomied tho mui^
at the time of the same. The Talidity sf tht
appeal was therefore atta^nd on the
that there had been no proper
citation. This court said :
'The dtation is undonbtedly
cording to the established
of chancery. No attorney or
withdraw his name after he has
it on the record without the leava of At
court. And whUe his name irmtls— t%iM
the adverse party has a right ta trmd Mb
as the authorised attorn^ or aoMcifaf. tai
the service of notice npon him fa as saM m
if served on the party ninsdl Ani w>|i»
sums that no oourt woold povH an atNniV
who had appeared at tha trial with tht Ma
tlon of the party, expfaw or hapttsi t»
Rio Gbandb Ibrigatioh A 0. Co. y. Gildebslkbyb.
6c&-6Gv
^^^thdraw his name after the case was finally
decided. For if thai could be done, it would
ll=>e impossible *to serve the citation where the
'jpSLTtj resided in a distant country or his
plaxse of residence unknown, and would in
^very case occasion unnecessary expense and
difficulty, unless he lived at the place where
'^he court was held. And, so far from per-
snitting an attorney to embarrass and im-
^>ede the adnpnistration of justice by with-
drawing his name after trial and mial de-
<*ree, we think the court should regard any
mttempt to do so as open to just rebuke."
Sloan V. Witthank, 12 Ind. 444, was a suit
on a promissory note, and to which the de-
fendant appeared. He then withdrew hie
mppearance and th4 case went to trial, and
Tesulted in a judgment in favor of the plain-
±iff. On error, the sunreme court of Indiana
"held that the witharawal of appearance
carried with it the answer, and the court
should then have entered judgment as by de-
fault, instead of goin^ to trial, but that this
^^as a mere irregularity which could not in-
jure the defendant, and could not be taken
advantage of on appeal.
So it was held by the supreme judicial
court of Massachusetts, that it was no
^ound for reversing a judgment rendered on
the default of the defendant, after he had
appeared and then withdrawn his appear-
ance, that thft date of the writ was a year
earlier than the fact. Fay v. Hayden, 7
Gray, 41.
A case, indeed, might arise of collusion be-
tween the plaintiff and the attorney of the
defendant, out in such case the court, on due
and prompt application to it, would no
doubt defeat any attempt on the part of the
plaintiff to take advantage of a corrupt de-
reliction of duty on the part of the defend-
ant's attorn^. But it m not pretended in
the present case that there was any collu-
sion practised between the plaintiff and the
defendant's attorney, nor that the latter,
either in entering or withdrawing defend-
ant's appearance, acted without auttiority or
by mistake.
It is, however, strenuously contended that
the record does not show that the defendant
below ever attempted to withdraw its ap-
pearance, and that hence the judgment by
default for want of an appearance had no
basis. By this is meant that the letter of
Pickett, the attorney, cannot be regarded as
part of the record.
I08] *^6 agree, however, with the supreme court
of the territory, that this letter, which con-
stituted the withdrawal of appearance, waa
sufficiently brought into the record by the
defendant's bill of exceptions, in which it is
Bet forth at length, and wherein it is averred
that said paper, signed by Pidcett, was filed
by plaintiff in eaid cause. The mere fact
that a paper is found among the files in a
cause does not of itself make it a part of the
record. But it maj be put into the record
by a bill of exceptions, or something which
is equivalent; so, at least, to enable the su-
preme court of the territory to deal with it
as part of the record. England v. Gehhardt,
112 U. S. 502 [28:811].
It is not claimed that this court, upon this
174 U. S. U. S., Book 43. 7
record, can look into the merit* of the case.
The only matter for our consideration k
whether the supreme court of the territory
erred in affirming the judgment of the triM
court den^ng tbe defendant's motion to va-
cate the judgment entered in default of an
appearance.
The judgment by default was entered on
September 15, 1804, in vacation, and en
November 16, 1894, and during the next suo-
ceeding term, a motion was made on bdialf
of the defendant company to vacate the judg-
ment. This motion was, on September 5,
1805, denied; and on September 0, 1895, an-
other motion, accompanied with an affidavit
of a defense on the merits, was filed, and thl«
motion was likewise denied.
There ia a rule prescribed by the supreme
court of the territory, in the following
terms:
"No motion to set aside any finding or
judgment rendered in vacation shall be en-
tertained, unless it shall be filed and a copy
thereof served upon the opposite party wi&
in ten days after the entry of such finding
or judgment."
As no discretionary power was reserved
to the trial judge he could not dispense with
this rule of court. As was said in Thomp-
son V. Hatch, 3 Pick. 512:
''A duly authorized rule of court has the
force of law, and is binding upon the court
as well as upon parties to an action, and can-
not be dispensed with to suit the circum-
stances of any particular case. • . . The
courts may 'rescind or repeal their rules,[609]
without doubt; or, in establishing them,
may reserve the exercise of discreuon for
particular cases. But the rule once made
without any such qualification must be ap-
plied to all cases wnich come within it, un-
til it is repealed by the authority whidi
made it."
However, the sunreme court of the teni«
tory did not consiaer it necessarr to deter-
mine whether the trial court could have set
aside the judgment on an application filed
after the ten aays had expired, if a dilicent
effort and a showing of merit had Seen
made, but held that there was such an ap-
?iarent lack of diligence in this case that the
rial court proper^ refused to set the ju<^-
ment aside.
A motion, even if made within the time
prescribed by the rule, to set aside a judg-
ment, is adaressed to the discretion of the
trial court, and where the exercise of that
discretion has been approved by the supreme
court of the territory, we should not feel dis-
posed to overrule those courts, unless misuse
or abuse of discretionary power plainly ap-
peared; and we cannot say that tnis is sudi
a case.
Even if we could regard this, not as a mere
application under the rule to vacate a judg-
ment, but as a proceediu!; of an equitable
character outside of the rule, we should be
compelled to reach the same conclusion. In
Branson v. Sohulten, 104 U. 8. 417 [26; 800],
it was said:
"The question relates to the power of the
courts and not to the mode of procedure
It is whether there exists in the court the
> 1105
5M-609
SiTPBBMS COTTBT OV THB UVUBD SXAIBB.
tors Is made by the bankniptinr aet alone
BulBcient to justify an adjudication in in-
Toluntarj buikruptcy against the debtor
making such deed, without reference to his
solvency at the time of the filing of the
petition, that the denial -of insolvency by
wav of defense to a petition based upon the
msiking of a deed of general assignment, is
not warranted by the bankruptcy law; and,
therefore, that the question certified WMUt
he answered in the negativem
And it is so ordered.
reooicoLUMBus construction company,
* Plff. in Brr.,
V.
CRANE company.
(Bee 8. C Reporter's ed. 600-608.)
Several separate appeals, or iorits of error,
not alloiced in same case, at same time, to
separate oourtM.
The act of 1891 (26 Stat at L. 826) does not
aathoriie teTeral separate appeals or writs
of error, on the merits, in the same case and
at the same time to two appellate courts;
and therefore the writ of error in this court,
which was taken while the case was pending
In the drcuit court of appeals^ Is dismissed.
[No. 462.]
Buhmitted AprU 17, 1899. Decided May tt,
1899.
IN ERROR to the Circuit Court of the
United States for the Northern Diatrict
of Illinois in an action brought by the (}o-
lumbus Construction Company against the
Crane Company. On motion to diamiss.
Dismissed.
See same case below, 46 U. S. App. 62, 73
Fed. Rep. 984, 20 C. C. A. 233.
Statement by Mr. Justice Sliiraai
In May, 1801, the Columbus Construction
Company, a corporation of the state of New
Jersey, brought in the circuit court of the
United States for the northern district of
Illinois an action at law against the Crane
Company, a corporation of the etaie of Illi-
nois. Ijie case was put at issue, and tha
trial resulted in a verdict and juogment in
favor of the plaintiff in the sum of $48,000.
This judgment was reversed by the circuit
court of appeals upon a writ of error sued
out by the defendant. 46 U. S. App. 52.
Thereafter the case was again tried and re-
sulted in a verdict and juqg^ent in favor of
the defendant, upon a plea of set-off, in the
sum of $98,085.94, as of the date of March
2, 1898.
On the 25th day of August, 1898, a writ
•f error to reverse this judgment was sued
out by tihe nlaintiff from the circuit court of
appeals of tne seventh circuit, where the ease
is now pendinff.
On the 27th di^ of September, 1898, the
plaintiff also sued out a writ of error from
this court. On April 17, 1899. the defendant
1102
in envr filed a iiioti0« ta
of error; and on tiie saina daj tiM plaintiff
in error filed a petition lor a vrtt ol certi-
orari to the drraii oonri of i^peala ol th«
seventh circuit.
Messre. Ckarlea S. MeUt, Rmmstt Jf.
Wing, and Thomas L. Okadbomrme, /r., lor
defendant in error, in fsLrar of motiott to die-
miss.
Messrs. J. B. Ovatav and S. S.
for plaintiff in error, in oppoaitioa to
to aismisa.
*Mr. jQsUce Sldna deliverad tha o^miarimi]
of the court:
This record diedoses that there are pasd
ing two writs of error to the jndsmeBt of tke
circuit courts— one in the Umtea States cir-
cuit court of appeals for the aeventli etreeit,
sued out on the 25th day of Angnst, 1898.
and one in this court, sued out on the 27th
day of September of the same year. It also
appears tnat the jurisdiction of the drciiit
court is not in question, bat tiM cootentioa
is that that court erred in tiie eoDsrelae of its
jurisdiction.
We are of the opinion that tiie act of 1891
(26 Stat, at L. 826), under which tbe»
writs of error were sued out, doea not eo»-
templata eeveral separate appeala or writs
of error, on the merits, in the aama oaea aad
at the same time to two appellate eoorta, aad
that, therefore, the writ in this court, which
was taken while the case was pending in the
circuit court of appeals, maglit to do die-
missed.
Such a question was considered by this
court in MoIAsh v. Roff, 141 U. 8. 661 [SS:
893].
That was a case of a writ of error ireim
this court to the United States court for the
Indian territory, where a suit was peadiiy
and undecided, and the object of tae wnt
wae to get the opinicm of tale court em the
auestion whether the lower eourt had juris-
Iction of the suit This court hM that it
was not competent for a party deoriag tha
jurisdiction of t^ trial court to bring thai
Jiuestion here on a writ of error sued ovt b^
ore final judgment, and the writ n
ingly dismissed.
In the opinion, read bj Mr. Juatiee
mar, it waaeaid:
''It is furtiier argued, la aapport of the
contention of the pliUntiff la error, that if it
should be held that a writ of error would not
lie upon a questioii of jurisdictioo nntfl afV
er final judgment, such ruling would kad ta
confusion and absurd eonsequenoee ; that the
auestion of jurisdiction would be eartified la
bis court, wliile the case on ita nerila would
be certified *to theeireuit court of appeals ;(fM|
that the case would be before two esparale
appellate courts at one and tho saiM ihmi
and thai tiie supreme court micht diiisB
the suit upon tae quastloB of juriadietieB
while the circuit court of ^peale ■dfhl
properly affirm the judgment of the low
court upon the merits.
"The falla^ which underliea thia igi^
ment is the assumption that the ad of iftl
McDoHALD y. Ohkmzoal National Bank.
OU-^U
bsonml Bank, and that, in particular, it had
r>«ceived on January 23, 1893, five thouaand
Sjoll&rs from the Packers' National Bank,
a^^jid. two thouaand dollars from the Schuster
^Sax National Bank, and divers other sums
From others, on that day and since; that tha
defendant had refused to account for and pay
over to the c(»nplainant the said collections.
^A^erefore it was prayed that an accounting
l^e had, and that the defendant be ordered
"tjo pay over vrhat might be thereby found
The defendant bank answered, admitting
trlie preliminary allegations of the bill, but
denying its knowledge of the 'insolvcfncy of
t:lie Capital Nation^ Bank on or prior to
^January 21, 1893, but averring that up to
^be 23d day of January, 1893, it was in-
formed and did believe that the said Capital
IS'ational Bank was entirely solvent, and
dealt with it and gave it credit as a solvent
l>ank.
The answer denied that on and after Janu-
ary 21, 1893, it had ceased to pay and re-
fused to pay all drafts drawn upon the de-
fendant by the Capital National Bank, but
admitted that on the 23d day of January,
1803, because of information then for the
first time received of the struggling condi-
tion of said bank, the defenduit bank did
refuse to pay the drafts of the Capital Na-
tional Bank, which was then indebted to the
defendant in the sum of at least $13,992.93
on balance of account, besides large amounts
of negotiable paper, indorsed by the Capital*
National Bank, then held by and previously
purchased or discounted by the defendant
bank, and the proceeds of which had been
credited to the account of the Capital Na-
tional Bank — all of which transactions were
averred to have been made in the usual
coarse of business between the banks and
without any knowledge, notice, or belief on
the part of the defendant bank that the Capi-
tal National Bank was insolvent or in dan-
ger of becoming so.
The answer denied that the defendant had,
since January 22, 1893, received many and
large sums of money belon^ng to and for
account of the Capital National Bank, but
admitted that since January 21, 1893, it had
received certain remittances and payments in
the form of checks or drafts, for account of
the Capital National Bank, all which it had
placed to the credit of the Capital National
bank, which had left the Capital National
Bank indebted to the defendant bank in a
laree sum, in the form of balance of account
ana negotiable paper indorsed to the defend-
ant by the Capital National Bank; and the
answer allegea, on information and bdief,
that said remittances and payments were
made by the Capital National Bank, or by
other MLnks ana bankers, bv the dire^ion
and order of said Capital National Bank,
thrcufh the United States mails, and were
8]90 ordered, niade,4nd remitted *bef ore the ap-
Dointment of any receiver for said Capital
National Bank, and before it ceased to pay
its (^ligatioDS or had suspended its usuiu
and (N'oinary banking business, and that
said remittances bv said Capital National
Bank, or by other banks and bankers, by it
174 U. 8.
ordered to be made to tlw ddtandaafty mn
made in the ordinary and aceustomad eount
of business between the defendant mod tte
Capital National Bank, and wh«D reoeivtd
bj tiie defendant were bj it placed to tha
credit of the Capital National Bank.
The answer admitted that it had reoeived
the sums of $2,936.60, $816.79, $736, $6,000,
and $2,000 on the 23d day of January, 1893 ;
that the said sums of $2,936.60 and $816.79
were remitted to the defendant on or about
the 19th day of January, 1893, and the said
sum of $736 on or about the 20th day of
January, 1893, by the said Capital National
Bank, which, on said respective days, de-
posited and delivered the same in the United
States mail, in letters addressed to the de-
fendant, in the usual and accustomed course
of business, and before said Capital National
Bazik had suspended payment or stopped
business, and before it was taken charge of
by the receiver ; that the said sum of $6,000
was remitted to the defendant on or about
the 19th day of Januarv, 1893, by the Padc-
ers' National Bank, and the Said sum of $2,-
000 was remitted to this defendant by the
Schuster National Bank on or about January
19, 1893, by beinff b}[ said banks respectively
deposited in the United States mail, in let-
ters addressed to the defendant, in the usual
course of business, and before the Capital
National Bank suspended payment or stopped
business, and before it was taken diarge of
by the receiver. And the answer allegcn, on
information and belief, that said remittances
to it by the Packers' National Bank and the
Schuster National Bank respectively were
made in virtue of orders and directions pre-
viously given to them by said Capital Na-
tional Bank on or about January 18, 1893,
in the usual coiurse of business between them
and the Capital National Bank.
A replication was filed and evidence put
in on behalf of ' the respective parties. It
was stipulated that the Capital National
*Bank continued to transact the usual andr6141
ordinary business of a national bank up tQ
the close of banking hours on January 21,
1893; that the ordinary mail time between
Lincoln, Nebraska, and the dtv of New
York is fifty hours; between Lincoln and
South Omaha, Nebraska, where the Packers'
National Bank is situated, is two hours
and forty minutes; between South Omaha
and New York City, forty-eight hours and
thirty-seven minutes; between Lincoln and
St. Joseph, Missouri, where the Schuster
Haz National Bank is located, is seven
hours and twenty-eight minutes, and be-
tween St. Joseph and New York City is flf^
hours and fifty-five minutes. The complain-
ant put in evidence an account or statement,
furnished by the defendant to the complain-
ant, showing the transactions between the
Capital National Bank and the Chemical
National Bank from January 3, 1893, to
January 27, 1893, showing a balance on the
last day of $13,317.94, a^^st the Capital
National Bank and in favor of the Chemical
National Bank.
The complainant likewise put in evidence
a draft drawn on January 13, 1893, by the
1107
JOCMil
SUPBSME COUBT OF THX UlOTED STATSS.
Mxthority to set aeide, vacate, and modify its
final judgments after the term at which thi^
were rendered; and this authoritj^ can
neither be conferred upon nor witiihefd from
the courts of the United States hj the stat-
utes of a state or the practice of its courts.
"We are also of opinion that the general
current of authority in the courts <^ this
country fixes the line beyond which they can-
not go in setting aside their final judgments
and decrees, on motion made after the term
at which they were rendered, far within the
case made out here. If it is an ej^uitable
Kwer supposed to be here exercised, we
ye shown that a court of equity, on the
most formal proceeding, taken in due time,
[€10]oould *not, aocordine to its estsiblished prin-
ciples, have granted the relief whidi was
prayed for in this case. It is also one of the
principles of equity most frequently relied
upon uat the pari^ seeking relief in a case
lite this must use due diligence in asserting
his rights, and that negligence and laches in
that regard are equally dectual bars to re-
lief." ^^
The judgment of the Supreme Court of the
Territory, affirming that of the District
Court, is affirmed.
In Hhe case of Tick Rio Grands iBHieA-
TiON k Colonization Company, Plainiilf in
Error, v. Chablbs H. Gildebsleeve, No. 163,
October Term, 1898, the writ of error ia die-
missed.
JOHN W. McDonald, as Receiver of the
Capital National Bank of Lincoln, Ne-
braska, Appt,,
V,
CHEMICAL NATIONAL BANK.
(See S. C. Reporter's ed. 610-621.)
Conduet of hanking institutions — payment
hy insolvent havJc, when not invaUd as
preference — taking possession of hank by
the comptroller— remittances, when de^
Uvered.
1. It Is a matter of common knowledge that
banks and other corporations continue In
many Instances to do their regular and ordi*
nary business for long periods, tboogh In a
condition of actual Insolyency as disclosed by
subsequent events.
Payments made In the due course of busi-
ness by a bank which Is actually Insolvent do
not constitute Invalid preferences. If they
were not made In contemplation of Insolvency,
or witb a view to prefer one creditor over an-
other.
8. The taking possession of a bank by the
Comptroller of Currency does not prevent
remittances then In course of transmission by
mall to another bank In the regular course of
business. In pursuance of n general arrange-
ment by which they are to be credited on a
constantly overdrawn account, from consti-
tuting payments on the account.
4. The mailing of checks and remittances by
a bank to another with which Its account Is
constantly overdrawn. In accordance with a
general understanding that the proceeds of
siich remittances are not to be returned but
1106
to be credited on the acco«al,
delivery to the bank to which
whose propertT thereta Is neC
paired by an act of
before the remittances are
[No. 242.]
ArffMcd AprU IS, 1S99. Decided Me, 9.
1899.
APPEAL from a decree of ^s Ui
States Circuit Court of Appeals fsr tkt
Second Circuit affirming the decree of tks
Circuit Court of the United States isr tkt
Southern District of New York dJamiafcae a
suit in eqoity brought by the reeenrcr 3f tte
Capital National Bank of LineoLa. Ndbrsib.
sfainst the Chemical National Baak of Scv
York, for an accounting for moneys recckvei
by defendant helonfine to amd lor the sr>
count of the Capitiu National Bank, vkkik
the defendant had refused to aeeoont for ni
pay over to plaintiff, and for a deent that
defendant should pay ovtr the
due. Affirmed,
Statement by Mr. Justice
In January, 1896, Kent K. Haydea. ss fle
duly appointed receive* of tbe Capital Xs-
tioual Bank of Lincoln. Nebraska* tied a
the circuit court of the United States Isr tfts
southern district of New York a bfll of ei»
plaint a^inst the Chemical Katioaal Btak
of New York.
*The bill alleged that the Capital SmtaBsCmK
Bank, on tbe 21st day of January, 103. w
insolvent and stopped doing hnsiaePk mt
that on the 22d day of January, ISn. tkt
Comptroller of the Currency doeed wd taift
and took possession of its assets emd sCsin
that for a period long prior to tJbe ISCk ^
of January, 1893, the said baak was amr
vent, and its insolvency was kaowa ts s3
its officers; that ever since tlie Sd di^ d
June, 1884, there had been mutual um o-
tensive dealings between the two baaks sW^t
named, in which each had acted fsr tit
other, as correspondent banka do. for thi
making of collections and the creditiaffjrf
the proceeds thereof; that the Gapttal^Cs'
tional Bank kept an active deposit
with tbe defendant, and that
the basis of such accounts
periodic times during all said period, ii^
any balance after the correctioii of wn*^
mutually agreed to be charged cm* creditri.
was at sudi periods credited or dchitcd m
the fact might be, upon the books of mA d
said banks to a new account, asd the fnir
accounts thereby and in that maaaer ad;*!-
ed and settled.
That the defendant bank had rvfavd ft
pay or honor the drafts drawn upoa n W
the Capital National Bank presented m e
since .January 21, 1893; that siaet Jaaav*
22, 1893, the defendant bank had m«iis<
many and large sums of money Wloagiar v
and for the account of the Capital XstVaf^
Bank, some of it being the sums of t2J3&*.
$81f».79 and $735, from the olBc«r« cf ite
Capital National Bank, and the rert trm
the third parties which remitted the mm to
the defenaant for account of the Caf»it*1 X»>
174 r. t
McDoHALD y. Ohkmzoal National Bamii.
OU-^U
bional Bank, and that, in particular, it had
received on January 23, 1893, five thouaand
ioll&ra from the Packers' National Bank,
and. two thouaand dollars from the Schuster
ECauc Naticmal Bank, and divers other sums
from others, on that day and since; that the
defendant had refused to account for and pay
over to the c(»nplainant the said ooUectiona.
VkTberefore it was prayed that an accounting
be had, and that the defendant he ordered
to pay over what might he thereby found
due.
The defendant bank answered, admitting
tbe preliminary allegations of the bill, but
■denying its knowledge of the 'insolvency of
tlie Capital National Bank on or prior to
January 21, 1893, but averring that up to
tbe 23a day of January, 1893, it was in-
formed and did believe that the said Capital
National Bank was entirely solvent, and
dealt with it and gave it credit aa a solvent
bank.
The answer denied that on and after Janu-
ary 21, 1893, it had ceased to pay and re-
fused to pay all drafts drawn upon the de-
fendant by the Capital National Bank, but
admitted that on the 23d day of January,
1803, because of information then for the
first time received of the struggling condi-
tion of said bank, the defendant bank did
refuse to pay the drafts of the Capital Na-
tional Bank, which was then indebted to the
defendant in the sum of at leaat $13,992.93
on balance of account, besides large amounts
of negotiable paper, indorsed by the Capital*
National Bank, then held by and previously
purchased or discounted by the defendant
bank, and the proceeds of which had been
credited to the account of the Capital Na-
tional Bank— all of which transactions were
averred to have been made in the usual
course of business between the banks and
without any knowledge, notice, or belief on
the part of the defendant bank that the Capi-
tal National Bank was insolvent or in dan-
ger of becoming so.
The answer denied that the defendant had,
since January 22, 1893, received many and
large sums of money belon^^ng to and for
account of the Capital National Bank, but
admitted that since January 21, 1893, it had
received certain remittances and payments in
the form of checks or drafts, for account of
the Capital National Bank, all which it had
placed to the credit of the Capital National
bank, which had left the Capital National
Bank indebted to the defendant bank in a
large sum, in the form of balance of account
ana negotiable paper indorsed to the defend-
ant by the Capital National Bank; and the
answer allegea, on information and bdief,
that said remittances and payments were
made by the Capital National Bank, or by
other banks ana bankers, bv the direction
and order of said Capital National Bank,
thrcuffh the United States mails, and were
18]90 ordered, niade,4nd remitted *bef ore tiie ap-
oointment of any receiver for said Capital
National Bank, and before it ceased to pay
its obliffatioDS or had suspended its ususd
and oroinary banking business, and that
said remittances bv said Capital National
Bank, or by other banks and bankers, by it
174 V. 8.
ordered to be made to tlie def«Dda]ift» mn
made in the ordinary and aoeuatomad eount
of business between the defendant mod tte
Capital National Bank, and when reoeivtl
bj tiie defendant were by it placed to the
credit of the Capital National Bank.
The answer admitted that it had received
the sums of $2,935.60, $815.79, $735, $6,000,
and $2,000 on the 23d day of January, 1893;
that the said sums of $2,935.60 and $815.70
were remitted to the defendant on or about
the 19th day of January, 1893, and the said
sum of $735 on or about the 20th day of
January, 1893, by the said Capital National
Bank, which, on said respective days, de-
posited and delivered the same in the United
States mail, in letters addressed to the de-
fendant, in the usual and accustomed course
of business, and before said Capital National
Bank had suspended payment or stopped
business, and before it was taken charge of
by the receiver; that the said sum of $5,000
was remitted to the defendant on or aibout
the 19th day of Januarv, 1893, by the Padc-
ers' National Bank, and the Said sum of $2,-
000 was remitted to this defendant by the
Schuster National Bank on or about January
19, 1893, b^ being by said banka respectively
deposited m the united States mail, in let-
ters addressed to the defendant, in the usual
course of buainees, and before the Capital
National Bank euspended payment or stopped
business, and before it was taken charge of
by the receiver. And the answer allegM, on
information and belief, that said remittances
to it by the Packers' National Bank and the
Schuster National Bank respectively were
made in virtue of orders and directions pre-
viously given to them by said Capital Na-
tional Bank on or about January 18, 1893,
in the usual course of business between them
and the Capital National Bank.
A replication was filed and evidence put
in on behalf of ' the respective parties. It
was stipulated that the Capital National
*Bank continued to transact the usual andr6141
ordinary business of a nationsd bank up tQ
the close of banking hours on January 21,
1893; that the ordinary mail time between
Lincoln, Nebraska, and the dtv of New
York is fifty hours; between Lincoln and
South Omaha, Nebraska, where the Packers'
National Bank is situated, is two hours
and forty minutes; between South Omaha
and New York City, forty-eight hours and
thirty-seven minutes; between Lincoln and
St. Joseph, Missouri, where the Schuster
Haz National Bank is located, is seven
hours and twenty-eight minutes, and be-
tween St Joseph and New York City is fifty
hours and fifty-five minutes. The complain-
ant put in evidence an account or statement,
furnished by the defendant to the complain-
ant, showing the transactions between the
Capital National Bank and the Chemical
National Bank from January 3, 1893, to
January 27, 1893, showing a balance on the
last day of $13,317.94, a^^st the Capital
National Bank and in favor of the Chemical
National Bank.
The complainant likewise put in evidence
a draft drawn on January 13, 1893, by the
1107
JOCMil
SUPBSME COUBT OF THX UlOTED StATSS.
Mxthority to set aside, vacate, and modify its
final judgments after the term at which they
were rendered; and this authoritj^ can
neither be conferred upon nor witiihefd from
the courts of the United States by the stat-
utes of a state or the practice of its courts.
'^e are also <^ opinion that the general
current of authority in the courts <^ this
country fixes the line beyond which they can-
not go in setting aside their final judgments
and decrees, on motion made after the term
at which they were rendered, far within the
case made out here. If it is an ej^uitable
power supposed to be here exercised, we
nave shown that a court of equity, on the
most formal proceeding, taken in due time,
[•10]oould *not, aocordinff to its established prin-
ciples, have granted the relief which was
prayed for in this case. It is also one <^ the
principles of equity most frequently relied
upon that the pari^ seeking relief in a case
lite this must use due diligence in asserting
his rights, and that negligence and laches in
that regard are equally dectual bars to re-
lief."
The judgment of the Supreme Court of the
Territory', affirming ti^at of the District
Court, is affirmed.
In the case of Tick Rio Grands Ibbiga-
TiON k Colonization Company, Plainiiff in
Error, v. Chablbs H. Gildebsleevb, No. 163,
October Term, 1808, the writ of error ia dis-
missed.
JOHN W. McDonald, as Receiver of the
Capital National Bank of Lincoln, Ne-
braska, Appt.,
V,
CHEMICAL NATIONAL BANK.
(See S. C. Reporter's ed. 610-621.)
Conduct of hanking institutions — payment
hy insolvent havJc, when not invoMd as
preference — taking possession of hank by
the comptroller--remittances, when de-
livered,
1. It Is a matter of common knowledge that
banks and other corporations continue In
many Instances to do their regular and ordi-
nary business for long periods, though In a
condition of actual Insolvency as disclosed by
subsequent events.
Payments made In the due course of bust-
ness by a bank which Is actually Insolvent do
not constitute Invalid preferences. If they
were not made In contemplation of Insolvency,
or with a view to prefer one creditor over an-
other.
8. The taking possession of a bank by the
Comptroller of Currency does not prevent
remittances then In course of transmission by
mall to another bank In the regular course of
business. In pursuance of n general srrange-
ment by which they are to be credited on a
constantly overdrawn account, from consti-
tuting payments on the account.
4. The mailing of checks and remittances by
a bank to another with which Its account Is
constantly overdrawn. In accordance with a
general understanding that the proceeds of
Ruch remittances are not to be returned but
1106
to be credited on tbe
delivery to the bank to wUdi
whose propertT therein la
paired by an act of
before the remittances
[No. 242 ]
Argued April IS, 1S99. Decided Mmy St
1899.
APPEAL from a deeree of ^e Unitii
States Circuit Court of Appeab lar lis
Second Circuit affirming the decree at tks
Circuit Court of the United States for tte
Southern District of New York diamian^ s
suit in equity brought by the receiver 3f ike
Capital National Bank of Lincoln. Ncbrai^
sfainst the Chemical National BsLBk of Xc»
York, for an accounting for naaocys nttimi
by defendant belonging to and for the ar>
count of the Capitu Nationai Bank. wUeb
the defendant had refused to aoeooat for sal
pay over to plaintiff, and for a decree tkst
defendant should pay over tbe ***i*"** uMti
due. Affirmed,
Statement by Mr. Justiee
In January, 1896, Kent K. Havdcn, as tl«
duly appointed receiT^* of tbe {^pital S*-
tioual Bank of Lincoln. Nebraska, Hed m
the circuit court of the Uniteti States far tis
southern district of New York a bill at tern-
plaint a^inst the Chemical Katioaal Bssk
of New York.
*The bill alleged that tbe CAfMta] NatsMTBC
Bank, on the 2l8t day of Jan nary, \9H, «■*
insolvent and stopped doing boaiiiev^ sac
that on the 22d dav of Janaary, 19I3. tia
Comptroller of the Currency doeed said bsik
and took possession of its assets and aCssi.
that for a period long prior to tbe l$ck Aiv
of January, 1893, the said baak was ami-
vent, and its insolvency was kaowv to sB
its ofiBcers; that ever since tbe 2d 4bv rf
June, 1884, there had been mutual aa^ o^
tensive dealings between tbe two beak* ak^
named, in which each had arted hr tkt
other, as correspondent banks do. for iht
making of collections and tbe t'leditiai if
the proceeds thereof; that tbe Capital Xa>
tional Bank kept an active depONt
with the defendant, and that settli
the basis of such accounts
periodic times during all a
any balance after the oorrectioa of
mutually agreed to be charged or crtditsl
was at such periods credited or dc4>lt«d m
the fact might be, upon the books of ca«k «(
said banks to a new account, and tbe ^nsr
accounts thereby and in that maaacr adnsi-
ed and settled.
That the defendant bank bad refwiad w
pay or honor the drafts drawn opes it W
the Capital National Bank presented cm sr
since .January 21, 1893; that aiaee Jaaaart
22, 1893, the defendant bank bad nrrrM
many and large sums of moner bek^nv ^
and for the account of the Capital N&rMasI
Bank, some of it being tbe suma of S^JO&Mi.
$816.79 and $735, from tbe oOcen of ite
Capital National Bank, and tbe rwt fMi
the third parties whidi remitted tbe msbt to
the defenaant for account of tbe CsiMtsi Xs-
174 IT. S
1898.
McDonald y. Ohkmzoal National Bank.
011-^U
I. Bank, and that, in particular, it had
received on January 23, 1893, five thonaand
dollars from the Packers' National Bank,
and two tiionaand dollars from the Schuster
Hax National Bank, and divers other sums
from oU^rs, on that day and since; that the
defendant had refused to account for and pay
over to the c(»nplainant the said collections.
^^lierefore it was prayed that an accounting
be had, and that the defendant be ordered
to pay over what might be thereby found
due.
The defendant bank answered, admitting
Capital National I5anlc on or prior
January 21, 1803, but averring that up to
the 23d day of January, 1893, it was in-
formed and did believe that the said Capital
National Bank was entirely solvent, and
dealt with it and gave it credit aa a solvent
bank.
The answer denied that on and after Janu-
ary 21, 1893, it had ceased to pay and re-
fused to pay all drafts drawn upon the de-
fendant by tiie Capital National Bank, but
admitted that on the 23d day of January,
1893, because of information then for the
first time received of the struggling condi-
tion of said bank, the defenduit bank did
refuse to pay the drafts of the Capital Na-
tional Bank, which was then indebtiBd to the
defendant in the sum of at leaat $13,992.93
on balance of account, besides large amounte
of negotisi>le paper, indorsed by the Capital'
National Bank, then held by and previously
purchased or discounted by the defendant
bank, and the proceeds of whidi had been
credited to the account of the Capital Na-
tional Bank — all of which transactions were
averred to have been made in the usual
course of business between the banks and
without any knowledge, notice, or belief on
the part of the defendant bank that the Capi-
tal K^ational Bank was insolvent or in dan-
ger of becoming so.
The answer denied that the defendant had,
since January 22, 1893, received many and
large sums of money belon^^ng to and for
account of the Capital National Bank, but
admitted that since January 21, 1893, it had
received certain remittances and payments in
the form of checks or drafts, for account of
the Capital National Bank, all which it had
placed to the credit of the Capital National
Bank, which had left the Capital National
Bank indebted to the defendant bank in a
large sum, in the form of balance of account
aDQ negotiable paper indorsed to the defend-
ant by the Capital National Bank; and the
answer allegea, on information and belief,
that said remittances and payments were
made by the Capital National Bank, or by
other Mtnke ana bankers, bv the direction
and order of said Capital National Bank,
thrcuffh the United States mails, and were
18]90 ordered, niade,4nd remitted *before the ap-
oointment of any receiver for said Capital
National Bank, and before it ceased to pay
its (^ligatiooe or had suspended its usual
and ordinary banking business, and that
said remittances by said Capital National
Bank, or by other banks and bankers, by it
174 V. 8.
ordered to be made to the d«f«Dda]ift» mn
made in the ordinary and aceustomad eount
of business between the defendant and tte
Capital National Bank, and when reoeivtd
bj tiie defendant were by it placed to tha
credit of the Capital National Bank.
The answer aomitted that it had reoeived
the sums of $2,935.60, $816.79, $735, $6,000,
and $2,000 on the 23d day of January. 1893;
that the said sums of $2,935.60 and $815.79
were remitted to the defendant on or about
the 19th day of January, 1893, and the said
sum of $735 on or about the 20th day of
January, 1893, by the said Capital National
Bank, which, on said respective days, de-
posited and delivered the same in the United
States mail, in letters addressed to the de-
fendant, in the usual and accustomed course
of business, and before said Capital National
Bank had suspended payment or stopped
business, and before it was taken charge of
by the receiver; that the said sum of $6,000
was remitted to the defendant on or aibout
the 19th day of Januarv, 1893, by the Fade-
ers' National Bank, ana the Said sum of $2,-
000 was remitted to this defendant by the
Schuster National Bank on or about January
19, 1893, b^ being b}[ said banks respectively
deposited m the United States mail, in let-
ters addressed to the defendant, in the usual
course of business, and before the Capital
National Bank suspended payment or stopped
business, and before it was taken charge of
by the receiver. And the answer allegcn, on
information and belief, that said remittances
to it by the Packers' National Bank and the
Schuster National Bank respectively were
made in virtue of orders and directions pre-
viously given to them by said Capital Na-
tional l^Lnk on or about January 18, 1893,
in the usual course of business between them
and the Capital National Bank.
A replication was filed and evidence put
in on behalf of ' the respective parties. It
was stipulated that the Capital National
*Bank continued to transact the usual and[614]
ordinary business of a national bank up to
the close of banking hours on January 21,
1893; that the ordinary mail time between
Lincoln, Nebraska, and the cit^ of New
York is fifty hours; between Lincoln and
South Omaha, Nebraska, where the Packers'
National Bank is situated, is two hours
and forty minutes; between South Omaha
and New York City, forty-eight hours and
thirty-seven minutes; between Lincoln and
St. Joseph, Missouri, where the Schuster
Haz National Bank is located, is seven
hours and twenty-eight minutes, and be-
tween St. Joseph and New York City is fifty
hours and fifty-five minutes. The complain-
ant put in evidence an account or statement,
furnished by the defendant to the complain-
ant, showing the transactions between the
Capital National Bank and the Chemical
National Bank from January 3, 1893, to
January 27, 1893, showing a balance on the
last day of $13,317.94, a^^st the Capital
National Bank and in favor of the Chemical
National Bank.
The complainant likewise put in evidence
a draft drawn on January 13, 1893, by the
1107
614-^lJ
SUPBBME COUBT OF THB UlOTED STATES.
CVt. Tj
Capital National Bank on the Chemical
National Bank for $6,000, to the order of T.
H. Barlow, cashier; and a protest of said
draft for nonpayment on January 17, 1893 ;
also a statement of yarious drafts drawn by
the Capital National Bank on the Chonical
National Bank, at different times, in favor
of third parties, and protested for nonpay-
ment on and after January 24, 1893. These
protested drafts amounted to $44,264.66.
The defendant called as a witness its
oa&hier, William I. Quinlan, who testified
that when the draft for $5,000 to the order
of T. M. Barlow, cashier, was presented and
Kyment refused, the Capital National Bank
d no deposits or funds on deposit with Uie
Chemical National Bank out of whlcii sudi
draft could be paid, and that the account of
the Capital National Bank had been over-
drawn for some time. The defendant put
in evidence a letter dated January 19, 1893,
from the Packers' National Bank, inclosing
its draft for $6,000 on the Fourth Nationsd
Bank of New York, to be placed to the credit
of the Capital National Bank, and letter,
C€16]dated Januarv 18, 1893, *{Tom the Schuster
Hax National Bank, indoeing its draft for
$2,000 on the Chemical National Bank, to
the credit of the account of the Capital Na-
tional Bank.
Further evidence was put in by the re-
spective parties, which it does not seem
necessary to state.
On March 16, 1897, after argument, upon
the pleadings and proofs, the circuit court
dismissed the bill of complaint with costs.
An appeal was taken from this decree to the
circuit court of appeals for the second cir-
cuit, and on January 31, 1898, tliat court
affirmed the decree of the circuit court. And
from the decree of the circuit court of ap-
peals an appeal was taken and alloMed to
this court.
Mr, Edirard Winsloir Paise« for ap-
pellant:
After the Comptroller of the Currency,
through his examiner, had taken possession,
no creditor could keep anything.
First Nat. Bank v. Colby, 21 Wall. 609,
22 L. ed. 687 ; White v. Know, 111 U. S. 784,
28 L. ed. 603; Scott v. Armstrong, 146 U. S.
499, 36 L. ed. 1059.
The fact that the other remittances were
mailed before the bank examiner took posses-
sion does not make them the property of the
Chemical National Bank as of the date of
mailing.
Canterbury v. Bank of Sparta, 91 Wis.
53, 30 L. R. A. 845; Johnson v. Sharp, 31
Ohio St. 611, 27 Am. Rep. 529; M'Ktnney
▼. Rhoads, 5 Watts, 343 ; Dargan v. Richard-
son, Cheves, L. 197; Kirkman v. Bank of
America, 2 Coldw. 397 ; Mitchell v. Byrne, 6
lUch. L. 171.
The remittances were mailed after the
commission of an act of insolvency, as wd!
«s in contemplation of insolvency.
Brown v. Montgomery, 20 N. Y. 287, 76
Am. Dec. 404.
Messrs. Ocorse H. Teaatam, and Charge
C. Kobb4, for appellee:
The bill of complaint should have been
1108
dismissed for want of equity, t^ere hnm »
allegation of any act of inaolTency, mm «(ii-
tent to prefer, nor of int^t to pi
application of assets.
Case V. Citizens' Bank, 2 Woods, S
Hayes v. Beardsl€y,'l3(i N. T. 299; JCu^^t*
T. HiU, 23 Fed. Rep. 311; Dutcker r /•-
porters* d T. Nat. Bank, 59 N. Y. 5 : r:>f
V. Smith, 24 Conn. 310, 63 An Dec lO
Tiffany v. Lucas, 15 WaU. 410, 21 L. ed. m
Title vests by deposit in the United Su:»
mail.
The deposit of drafts or ciiecks in the patf-
office to be carried to the Cbexnieal y&tmsl
Bank was such a delivery as to vest the tisk
in that bank.
Johnson V. Sharp, 31 Ohio 8tw 611, ST A&
Rep. 529; M'Kinney v. Rhoads, 5 Wmtti.
343; Kirkman v. Bank of Awt^riea, 2 Ooltm
397 ; BueU v. Chapin, 99 Maaa. 594. 97 Am.
Dec. 58; Morgan v. Rickardstm, 13 Aika.
410; United States v. Jackson, 29 F*^. Btff
503; United States y, Jones, 31 fM-R^. TTi
It is not suffici^it that the parmevi ^
operate as a preference. Tliere nm<t be tte
actual commission of an act oi iasdrutr m
the payment must be made in coal
of insolvency, or with the intoit to
Jones, Corp. S S3; Bergen t.
Fishing Co, 42 N. J. Eq. 397.
*Mr. Justice SUims delivered the
of the court:
The Capital National Bank of
'Nebraska, was organized as
sociation under the laws of the United^
in June, 1884, and continued to
usual and ordinary business of a
bank up to the dose of banlrinfr
January 21, 1893. On January 22, 1^*1 s
bank examiner took possessiop, and thrtw-
after, about Februaiy 6, 1993, a leuJiit
was duly appointed.
The Chemical National Bank ai TIss
York, a banking association organiatd w-
der the laws of the United StiUes asd daaf
business as such in the dtj of New T«rt.
carried on, for some years, a lar^e
intercourse with the Capital NatJonal
The receiver filed the bin in thi«
seeking to make the Chemieal Katinaal
Bank account for certain
or
^^•Qt
by it after the suspension of Un* Captts2
National Bank.
The nature of the intercom le bit»ef th»
two banks was thus described in a
of the bill :
•"Ever since the second diy of J
there have been mutual and
ings between the two banking
alwve named, in which each was actfnr ''<^
the other, as correspondent banks do, for tW
making of collections and the ^redttiar ^
the proceeds thereof and transmittnc st-
counts of the same, indudinf; co^ts of wr
test and other expenses, and the CafM
National Bank also kept an artiw dufuit
account with the defendant, and that •vftlr-
ments on the basis of such ac't^noatM whv
made at periodic times duriiiK all «ii
period, and any balance, after the fwi^tiM
of errors, mntaally agreed to be e*i«rsvd m
credited, was at sucK periods cmittH «r
174 IT. t.
Tb98.
McDonald y. Chsmical National Bank.
616-618
debited, as the fact might be, upon the books
of each of said banks to a new account, and
"Cbe prior accounts thereby and in that man-
ner adjusted and settled."
The complainant's case depends, under the
evidence, on an application of tlie provisions
of section 5242 of the Revised Statutes,
i^hich is as follows:
"All transfers of the notes, bonds, bills of
exchange, or other evidences of debt owing
to any national banking association, or of
deposits to its credit; all assignments of
mortgages, sureties on real es&te, or of
judgments or decrees in its favor; all depos-
its of money, bullion or other valuable thing
for its use or for the use of any of its share-
holders or creditors; and all payments of
money to either, made after the commission
of an act of insolvency or in contemplation
thereof, made with a view to prevent the ap-
plication of its assets in the manner pre-
scribed by this chapter or with a view to the
preference of one creditor to another except
m payment of its circulating notes, shall be
utterly null and void; and no attachment,
injunction, or execution shall be issued
against such association or its property be-
fore final judgment in any suit, action, of
pioceeding in any state, county, or munici-
ipal court."
It appears in evidence that on January 18,
1803, the account of the Capital National
Bank with the defendant bank was over-
drawn to the amount of $84,486.19, and
that, by sundry remittances made, the
amount overdrawn stood, on January 21,
1893, at the sum of $25,515.32. It further
appears that on January 18, 1893, the
T]Schu»ter Hax National Bank of St. •Joseph,
Mi.^souri, remitted by mail $2,000 to the de-
fendant for the credit of the Capital Nation-
al Bank; on January 19 the Packers' Na-
tional Bank of South Omaha, Neb., remitted
by mail to the defendant $5,000 for the cred-
it and advice of the Capital National Bank;
on January 20 the Capital National Bank re-
mitted to the defendant by mail a package
of small items amountincr to $735 and a
package amounting to $2,035.60, and on the
21st a similar package amoimting to $833.-
64. On January 23 the defendant received
the remittance of $2,000 of the 18th, and of
$5,000, $815.79, and $2,035.60 of the 19th,
and the remittance of $735 of the 20th ; and
on the 24th of January it received the remit-
tance of $833.04. With these remittances
credited the account of the Capital National
Bank stood, on January 24, 1893, overdrawn
$13,317.94.
The claim of the complainant is to recover
all the sums received by the defendant bank
on January 23 and 24 as having been trans-
ferred and received contrary to the statute.
The bill of complaint contains no alle^tion
of any act of insolvency prior to January 22,
1893, or of any payment made in contempla-
tion of insolvency, or of any payment made
with a view to prevent the application of the
bank's assets In the manner prescribeil in
the statute or of any payment made with a
view to the preference of one creditor to an-
other.
174 U. 8.
It is true that, in the course of the trial,
it appeared that, on the 17th day of Janu-
ary-, 1893, the Chemical National Bank re-
fused to pay a check for $5,000 drawn on it
by the Capital National Bank to the order
of T. M. Barlow, and it is contended that
such refusal by the Chemical National Bank
is to be regarded aa an act of insolvency on
the part of the Capital National Bank. It ia
difficult to see any foundation for this con-
tention in the mere fact that the Chemical
National Bank refused, on January 17, to
make further advances on the credit of the
Capital National Bank. Such refusal may
have been occasioned by a shortage of money
on the part of the bank in New York, and
because its funds on that day were needed
for other purposes, and was entirely consist-
ent with the absolute solvency of the Ne-
braska bank.
*Nor can a finding that the payments and[618]
remittances made to the Chemical National
Bank on the dates above mentioned were
made in contemplation of insolvency and
with an intent to prefer that bank be based
on the mere allegation that the Capital Na-
tional Bank was actually insolvent, and that
its insolvency must have been known to its
officers. It IS matter of common knowledge
that banks and other corporations continue,
in many instances, to do their regular and
ordinary business for long periods, though
in a condition of actual insolvency, as dis-
closed by subsequent events. It cannot sure-
ly be said that all payments made in the due
course of business in such cases are to be
deemed to be made in contemplation of insol-
vency, or with a view to prefer one creditor
to another. There is often the hope that, if
only the credit of the bank can be kept up by
continuing its ordinary business, and by
avoiding any act of insolvency, affairs may
take a favorable turn, and thus suspension of
payments and of business be avoided.
In the present instance there was not only
no allegation of payments made in contem-
plation of insolvency, or with a view to pre-
fer the Chemical National Bank, but there
was no evidence that, up to the closing hours
of January 21, 1893, the Capital National
Bank had failed to pay any depositor on de-
mand, or had not met at maturity all its ob-
ligations. And the evidence fails to disclose
any intention or expectation on the part of
its officers to presently suspend business. It
rather shows that, up to the last, the opera-
tions of the bank and its transactions with
the Chemical National Bank were conducted
in the usual manner. It may be Uiat those
of its officers who knew its real condition must
have dreaded an ultimate catastrophe, but
there is nothing to justify the inference that
the particular payments in question were
made in contemplation of insolvency, or with
a view to prefer the defendant bank. The
Chemical National Bank was no more pre-
ferred by these remittances several days be-
fore suspension than were the depositors
whose checks were paid an hour before the
doors were closed. Indeed, it is stipulated
that the Capital National Bank continued to
transact its usual and ordinary business up
1109
618-621
SuPAEME Court of the Unttbd States.
Oct.
to the doM of banking houra on January 21,
1893.
[•10] *The yi«w of the courts Mow was thai
these payments and remittances were not
made in contemplation of insolvency, or with
a yiew to prefer the Chemical National Bank,
and our escamination of the eyidenoe has lea
tts to tiie same conclusion.
It remains to consider another proposition
very strongly pressed on behalf of the ap-
pellant, and that is, that the moneys and
checks remitted to the defendant bank which
did not reach it till after the bank examiner
had taken possession could not, in law, be-
come the property of the defendant bank, but
remained part of the assets of the insolyent
bank, for which the defendant must account
to the receiyer in order that the proceeds
mBy be ratably divided among the creditors.
it is said that the taking possession of
the bank by the Comptroller of the Currency
is a distinct declaration of insdyency, and
oases are cited in wKich it has been said by
this court that the business of the bank must
•top when insolvency is declared {White
T. Know, 111 U. S. 784 [28: 603]) ; and that
the state of case, where the dami sought to
be offset is acquired after the act of insol-
vency, cannot sustain such a transfer, be-
cause the rights of the parties become fixed
as of that time. Scott v. Armstrong, 146 U.
8. 490 [36: 1059].
The law is doubtless as thus stated, but
does it apply to the present case?
It is conceded in his brief bv the learned
counsel of the appellee that if the dndfts
and checks had been deposited in the mail
Sursuant to any agreement or even if the
efendant had known anythine about them,
. they miffht have been regarded as the prop-
erty of uie Chemical Natu>nal Bank as of the
date of mailing. But he ur^ that this was
only the case St a bank sending the chedcs of
other parties to its sgente for collection and
deposit; that it coulahave sent them to any
other agent had it pleased, and that after it
had once put them in the mail it could have
taken them out again. And queries are put
as to which bank would have suffered the
loss if the checks had been destroyed in tran-
sit, or if they had proved to be worthless.
But here we have the case, not of a casual
remittance, but of remittances sent from
[€SO]tiroe to time, and frequently, during a *long
course <^ business between the banks con-
cerned. There may have been no special
agreement as to each particular remittance,
but there was plainly a seneral agreement
that remittances were to oe made oy mail,
and that their proceeds were not to be re-
turned to the Capital National Bank, but
were to be credited to its constantly over-
drawn account.
Whose the loss might be, if the packages
were destroyed in transitu, or if the chedcs
proved uncollectible, are not questions that
concern us now. It is sufficient, for present
purposes, to say that t^e inference is war-
ranted that it was understood between the
parties that these remittances were to be
made through the mails, and that they were
1110
in the nature of payments oo geaarml a**
count.
Nor ean it be conceded that, exceot on i
extraordinary occasion and on evidence
isf actory to the postoffice authorities, a letter
once mailed can be withdrawn by the party
who mailed it. When letters are placed in
a postoffice they are within the legaj cnitody
of the officers of the government sad it is tbe
duty of postmasters to ddiver them to the
persons to whom they are addressed. Unittd
States v. Pond, 2 Curt. C. C. 265; BwttU v.
Ohapin, 99 Mass. 594 [97 Am. Dec 58];
Morgan v. Richardson, 18 Allen, 410; Tofr-
loe V. Merchants' F. Ins, Oo. 9 How. 390 [13:
187].
However, it is not pretended in tlds case
that the checks were destroyed or proved
worthless, or that the Capital National Bank
either withdrew the renuttanoes or eoonter-
manded their delivery.
We think that the oourts below w^l hdd
that, under the facts of this case, the mailing
of these checks and remittances was a deliv-
ery to the Chemical National Baidc,
property therein was not destroyed or
paired by a subsequent act of baBkruptcy.
It is finally urged that, however it mmj
be as to the reouttaaees received throocli
the mail on January 23, 1893, yet that Uis
payment or remittance of $833.64, MeueiPei
on .January 24, was a payment inade after
the declaration <^ insolvency, and most there*
fore be accounted for by the defendant bank.
*It is claimed that there was no evideaecCCti;
that this remittance came by mail, aad that
all there is in the case is Uie admission by
the defendant bank <^ its receipt of that sob
on January 24, 1893.
But it is to be observed that no mcBtios k
made in the bill of this particular itcai,
though the other litigated items are speci-
fied, and to the latter only was the proof di-
rected. In the absMice of evidenee as to any
other method of transmission, and in
of the fact that all the other payments
made by mail, it would seem to be a
able inference that such was the ease of ihis
remittance. The record disclose* that the
cashier of the Qiemical National Bank tes-
tified in tiie case. He had furnished the
complainant with a statement of the ac-
counts between the banks from January 3,
1803, to January 24, 1803, induding this
particular item ; but he was not eross-exaah
ined as to this item. Had he been so exam-
ined, a more particular statement in rcspeet
to it would have been, no doubt, elicited. It
was apparently assumed that the history of
this payment did not differ from that of the
others; and the effort now made in leepeet
to it seems to be in the nature of an aftar>
thought, too late to permit an explanatkm.
Upon the whole case, we are of the opinion
that the decree of the Court of Appeals
correct, and its decree is aoeordingly
Mr. Justice White, Mr. Justice
and Mr. Justice MeKeasa
174 cm.
1898.
NOBTHEBH PaCIFIO R. CO. Y. Dr LaCBY.
622-624
[NORTHERN PACIFIC RAILWAY COM-
PANY, Plff. in Err^
V,
JAMBS DB LAOEY.
(See S. C. Reporter's ed. 622-688.)
Railrond land grant — pre-emption claim —
resolutian of Congress — forfeiture of
claim — evidence,
1. The flling of a map of definite loeatloB of a
railroad determines the right of the railroad
company to the land under the land grant acta
of Congress.
2. Where there was a pre-emption claim at the
time of the passage of the land grant act of
1864, the land would not pass under that
irrant.
8. The grant of land by the act of Congreaa
of July 2, 1864. was not blotted out, with
respect to an interrenlng pre-emption claim,
by the resolution of Congress adopted May
«ll. 1870. making a further grant.
4. The failure of a pre-emption claimant to
make proof and payment within the thirty
months required by U. S. Bey. Stat. | 2267,
forfeits his right without any cancelation on
the records.
5. When no proof and no payment have been
made within the time provided for by the law,
the record will show the fact, and that the
right of the claimant has expired and the
dalm Itself has ceased to exist.
[No. 154.]
Submitted January 18, 1899. Ordered for
reargument March IS^ 1899. Leave grant-
ed to file brief on behalf of United States
January 9, 1899. Resubmitted April 11,
1899. Decided May 22, 1899.
IN ERROR to the United States Circuit
Court of Appeals for the Ninth Circuit
to review a juc^^ent of that court affirming
the judgment of the Circuit Court of the
United States for the District of Washing-
ton, dismissing tbe oomplaint of the plain-
tiff, the NorthSrn Pacific Railway Company,
against the defendant, James De Lacey, for
the recovery of the possession of 160 acres
of land in the state of Washington. Judg-
ment of the United States Circuit Court of
Appeals for i^e Ninth Circuit reversed and
case remanded to the United States Circuit
Court for the Western Division, District of
Washington, for further proceedings.
See same case below, 66 Fed. Rep. 450, 44
U. 8. App. 257.
Statement by Mr. Justice Pookham:
This is an action of ejectment brought by
the plaintiff in error against the defendant
to recover possession of IGO acres of land
situated not far from Tacoma in the state of
Washington.
The land lies within the primary limits'
of the land grant both of the main line of the
railroad of plaintiff in error, as definitely
located between Portland and Puget sound,
and the Cascade branch, as definitely located
between tiie point where the railroad leaves
the main line and crosses the Cascade motm-
tains to Puget sound.
It appears from the facts found upon the
174 U.S.
trial, without a jury, that the plaintiff's
predecessor was incorporated under the aot
of Congress of July 2, 1864, and received a
grant of public lands by virtue of S 3 of that
act ( 13 Stat, at L. 366, chap. 217.) A far-
ther grant was made by virtue of the joint
resolution of Congress, adopted May 31,
1870. 16 Stat at L. 378, ttesolutloii Na
67.
The company surveyed and definitely lo-
cated the line of its *Dranch road eztendinff[6M]
from Tacoma to South Prairie, and on Man£
26, 1884, filed its map showing such line of
definite location in the office of the Commis-
sioner of the General Land Office. The land
in controversy is within the limits of the
grant to the company as defined by this map
of definite location, and i^ within the linxvts
of the grant under the act of July 2, 1864.
The following statement is taken from the
finding of facts by the trial judge:
"Xn. April 9, 1869, one John Flett filed
declaratory statement No. 1227, declaring
his intention to purdiase certain lands which
are described in the complaint, under the
Jaws of the United States authorizing the
pre-emption of unoffered lands. Whether or
not Flett was at this time Qualified to enter
the land under the pre-emption or homesteeUi
laws does not appear.
"Xni. In the fall of 1869 Flett left the
land in controversy and did not thereafter
reside thereon, although it is recited in the
decision of the Secretary of the Interior in
a contest between the railroad company, De-
Laoey, Flett, et al., before the Interior De-
partment, involving the land here in contro-
versv, that in Septonber, 1870, Flett went to
the local land c^ce and told the officers ihiat
he had come to prove upon his claim; that
they told him it was railroad land, and that
he had lost it ; that Flett did not then ac-
tually offer to make proof, but acquiesced in
the advice of the local officers that he was
not .entitled to sumbit proof under his filing."
''XV. The defendant, James De Laoe^,
settled upon the land in controversy in April,
1886. April 5, 1886, he applied to make
homestead entry thereon. His application
was rejected for the reason that the land fell
within the limits of the grant to the rail-
road company on both main and branch lines.
From this decision by the register and re-
ceiver De Lacey appealed to the Commis-
sioner of the General Land Office.
"XVI. September 7, 1887, John Flett sub-
mitted proof in support of his pre-emption
claim, founded upon his declaratory state-
ment filed April 9, 1869.
*"XVII. Afterward, under the in0truc-[624]
tione of the Commissioner, a hearing was
had, at which all the parties, the railroad
company, James De Lacey, John Algyr, and
John Flett were present. July 27, 1889, the
receiver of the district land office found that
Flett had not voluntarily abandoned the
land in 1869, and that his entry should be
reinstated. From this finding all the par-
ties but Flett appealed to the Commissioner
of the Qeneral Land Office, and December 5,
1889, the Commissioner sustained the find-
ing of the receiver. Thereafter the other
parties to the contest appealed to the Sec-
1111
024-627
SUPBKHB COUBT OF THE UNITED STATES.
retary of the Interior. September 28, 1891,
the Secretary of the Interior reversed the
ruling of the Commissioner of the Greneral
Land Office, and awarded the land in contro-
versy to the railroad company.
"December 13, 1892, letters patent of the
United States, regular in form, were issued,
conveying the land in controversy to the
plaintiff.^
"XIX. Flett's declaratory statement was
not formally canceled upon the records until
December 23, 1891.
"XX. The defendant is in possession of
the land and withholds such possession from
the plaintiff."
It also appeared that the railroad com-
ny on May 10, 1879, transmitted to the of-
of the Secretary of the Interior a map
showing its relocated line of general route,
which map was on June 11, 1879, sent to the
Commissioner of the General Land Office by
the Secretary for filing, with instructions to
withdraw the lands coterminous therewith
from sale, pre-emption, or entry for the ben-
efit of the railroad company, and the map
was duly filed on that day. The land in*
controversy is within the line as relocated.
The conclusions of law of the circuit court
were in favor of the railroad company, and
^e court held that prior to June 11, 1879,
when the map of general route as relocated
wan filed, ana after the abandonment of the
land by John Flett, the same was public land
of the United States, not reserved, sold,
nunted, or otherwise appropriated, and free
from pre-emption or other claims or rights;
&nd that from that date (June 11, 1879) the
[625]land was reserved from sale,* pre-emption, or
entry, except by the railroad company, by vir-
tue of fixing the line of general route of the
branch line coterminous therewith; that this
reservation became effective from and after
the receipt of the order of the Conmiissioner
at Uie United States district land office on
JuH- 19, 1879.
^ Judgment in favor of the plaintiff for the
recovery of the possession <k the land was
duly entered. Upon appeal by the defendant
to the circuit court of appeals for the ninth
circuit, that court reversed the judgment
and remanded the cause to the circuit court
for further proceedings not inconsistent with
the views expressed in the opinion of the
court of appeals. Judgment in accordance
with the opinion of 'that court was subse-
quently entered by the circuit court, dismiss-
ing the plaintiff's complaint, and awarding
coets to the defendant. This was under ob-
jection of plaintiff, which claimed the right
to a new trial, and exception was taken
thereto.
It appearing that the plaintiff, the North-
ern Pacific Rsiilway Company, had subse-
quently to the hearing acquired the rights of
the original plaintiff to the property de-
scribed in the complaint, it was substituted
as plaintiff in this action. A .writ of error
was then taken to the United States circuit
court of appeals for the ninth circuit, where
the judgment of the circuit court was af-
firmed. The plaintiff by writ of error
brought the case here for review.
Tlie opinion of the circuit judge, given up-
1112
on the trial erf the ca4iae, is reported ii ■
Fed. Rep. 450, and thiit of the circuit mat
of appeals in 44 U. S. Ap|i. 257.
and Ji
B.Iflrr
Messrs, C. W. Bi
for plaintiff in error.
Messrs. W. H. Pritekax^ A. W,
lard, and H, F, Xorria for def endsat a. m-
ror.
Mr. Charles W. Russell^ Awstint kv
tomey. Department of Justice, filed a \nd
for the United States by leave of tbe
*Mr. Justice PeeUtaaa, after stadxr
facts, delivered the opinion of the ontn
The grant of lands to aid the coBstiwiKa
of that portion of the main line of the nl-
road of the plaintiff in error, betveea Pert-
land and Puget sounds dates from the ycoL
resolution of May 31, 1870, and prior totis:
time there was no land ^rant in aid of tW
construction of that portion of the rmL
United States v. yorihem Paci^ BtHraai
Company, 152 U. S. 284, 292 [38: 443, 44r,
At the time of the adoption of the rwit-
tion of 1870 there had been filed, April *
1869, in the local land cfllee the statenac ^i
John Flett, declaring his Intentioa to pa^
chase the lands in dispute under the U«9 ^
the United States authorizing the pre «u»
tion of unoffered lands, and that entrr farar
unforfeited and uncanceled, operated tf a-
cept the lands from that ^rant. We asr
therefore confine our attention to the c^iM
under the act of July, 1864. and the «Aah
quent proceedings which relate to that rnTt
At the time of the passage of that art t^
United States owned the land in qiie»tipt «
public land, and as to that land it kad at
specified in the third section thereof, ** J
title, not reserved, sold, granted, or
wise appropriated, and free from
tion, or other claims or rights^** and' wo
tion of this land had at that tine )h«
"granted, sold, reserved, occupied by hemt
stead settlers, or pre-empted, or cvtbenme im-
posed of." On the 26th of March, 1884. ite
plaintiff had filed its map of definite l«»
tion in the ofiBce of the CoounisaioDer of tte
Greneral Land Office, which map i atif in^
the land in controversy.
The filing of such a map of defiaite Im*-
tion of a railroad determines the right <*f t^
railroad company to the land under the U«l
grant acts of Congress. Kansas Pmnfir Ks^
way Company v. Diinmryer, 113 U. S 99
[28: 1122] ; Siouw City d I. F, Toum Ut i
Land Company v. Oriffey, 143 U. S. 32 ;)(
64], a grant similar in its nature to tW c»
under consideration.
If there had been a pre-emption claiv it
the time of the passage of the act of 1^44.
the land would not have pa«Md nnJer tha:
.grant Bardon r. Northern Pacific iuihvei
Co. 146 U. S. 535 [36: 806].
*It is contended that at the time ( Mm' h-\
26, 1884) when the map of definite lontit'
was filed, the declaratory statement of FVtx.
filed in the local land oAce in 186». rcDmn#4
there as a record, and wa^ an assertion of spr»>
emption claim, and the defendant maisteto
that under the case of Whitney t. Tmwi**, )5I
U. S. 85 [30: 906], the land described is Ual
174 v. ft
308L
NOBTHIXN WoiFIC R. CO. Y. Db LACkY.
627-6S9
ed&jratorr statement was excepted from the
ra/nt. to the railroad company, and that the
ompanT therefore never acquired title to
he land by filing its map of ^finite, location
mder the grant contain^ in txie act' of 1864.
mte learned judge, in delivering the opin-
on of the circuit oourt of appeals m the case
»t l>axy quoted the following language from
lie opinion of this oourt in Whitney v. Tay^
Of, supra, p. 02 [39: 008].
"Xhat when on the records o^ the local land
iffioe there is an existing claim on the part
tf an individual under the homestead or pre-
sznption law, which has been recognized by
;lie officers of the government and has not
>een canceled or set aside, the tract in respect
:o ^which that claim is existing is excepted
from the operation of a railroad land grant
son-taining the ordinary excepting clauses,
i.nd. this, notwithstanding such daim may not
t>e enforceable by the claimant, and is subject
to cancelation by the government at its own
suggestion or upon the application of other
p&rties. It was not the intention of Con-
gress to open a controversy between the
claimant and the railroad company as to the
veJidity of the former's claim ; it was enough
that the claim existed, and the question of its
validity was a matter to be settled between
tHe government and the claimant, in respect
to wnich the railroad company was not per-
mitted to be heard.'*
The circuit judee then stated that the con-
t;r«olling fact in uiis case was ''that at the
time of the definite location of the plaintiff's
road, opposite which the land in controversy
is situated, there was on the record of the
local land office Flett's declaratory statement
i^hich had not been altered, amended, can-
celed, or set aside; and that fact operated to
except the land in respect to which the claim
existed from the grant to the railroad com-
pany."
] *The single Question in this case is, there-
fore, whether the nfooeedings in the case of
Flett were of sucn a nature as to prevent
the grant to the company under the act of
1864 from taking effect at the time of the
filing of its map of definite location, March
26, 1884.
The defendant contends that the land in
controversy was excluded by operation of
law from the oprant of 1864 by the resolu-
tion of May 31, 1870. Herein he assumes
that the effect of that resolution was to blot
out the grant under the act of 1864. The
resolution did not have that effect. It was
not an amendment to the third section of the
act of 1864 which granted the lands. If at
that time (1870) certain claims had been
filed against this land by reason of which it
was excepted from the grant of 1870, such
fact has no bearing upon the provisions of
the act of 1864, at which time there was no
claim upon this land, and if none existed
when the map of definite location was filed
In 1884, the grant included the land. The
assertion that when the grant of 1864 was
made there was a pre-emption claim in ex-
istence is not borne out in law or fact by as-
serting the existence of such a claim when
the grant of 1870 was made, and that by
operation of that resolution the grant of 1864
174 U. 8.
was so amended as to exclude that land. It
was not excluded. The fact that no claim
existed at the time the act of 1864 was passed
remained notwithstanding the adoption of
the resolution of 1870, and the question there-
fore still recurs whether in 1884, when the
map of definite location was filed, there was
any claim upon this land which excepted it
from the srant by virtue of the act oi 1864.
It is well to examine the statutes relating
to the right of pre-emption under which the
declaratory statement of Flett was filed in
order to determine the rights, if any, which
he had at the time when the company's map
of definite location was filed.
That statement, filed by Flett in 1869, was
to the effect that he intended to purchase the
land which he described, "under the laws of
the United States, authorizing the pre-emp-
tion of unoffered lands." By the term "un-
offered lands" is meant those public lands of
the United States which have not been *of-[629]
fered at public sale. By section 3, chapter
51, of the act of Congress making further
provision for the sale of public lands, ap-
proved April 24, 1820 (3 Stat, at L. 566),
the price for which public lands should be
offered for sale after the first day of July,
1820, was fixed at $1.25 an acre, and it was
provided that at every public sale the highest
Didder, who should make payment as pre-
scribed, should be the purchaser, but no land
was permitted to be sold at either public or
private sale for a less price than $1.25 an
acre; and it was further provided in that
section that "all the public lands which shall
have been offered at public sale before the
first day of July next, and which shall then
remain unsold, as well as the lands that shall
thereafter be offered at public sale, according
to law, and remain unsold at the close of
such public sales, shall be subject to be sold
at private sale, by entry at the land office, at
one dollar and twenty-five cents an acre, to
be paid at the time of making such entry as
aforesaid; with the exception," etc.
After the passage of this act the public
lands came to be spoken of as "unoffered
lands/' or those which had not been exposed
to public sale, and "offered lands," or thoi^
which had been so exposed and remained un-
sold, and under the statute regulating the
sales of public lands it would seem that un-
offered land could not be purchased at any
price or in any manner in advance of the
public sale, while offered land was at all
times subject to purchase by the first appli-
cant at a fixed price. Johnson v. Towstey,
13 WaJl. 72, 88 [20: 486, 488].
By the act approved September 4, 1841,
entitled "An Act to Appropriate the Pro-
ceeds of the Sales of the Public Lands, and
to Grant Pre-Emption Rights" (5 Stat, at
L. 453, chap. 16), there was granted, by the
tenth section thereof, to every person being
the head of a family, etc., "who since the
first day of Jiine, a. d. eighteen hundred and
forty, has made or who shall hereafter make
a settlement in person on the public lands
to which the Indian title had been at the
time of such seiilement extinguished, and
which has been, or shall have been, surveyed
prior thereto, and who shall inhabit and im-
1113
62)M32
Supreme Coubt of the United States.
Oot. Tbu,
5 rove the same, and who has or shall erect a
wellinff thereon, shall be, and is hereby, au-
thorized to enter with the register of the
[MO]land office *for the district in which sudi land
may lie, by legal subdivisions, any number
of acres nit exceeding one hundred and six-
ty, or a quarter section of land,toincludeUi«
residence of such claimant, upon paying to
the United States the minimum price of such
land, subject, however, to the fcilowing Ihn-
itations and exceptions," etc.
By this section it will be seen that the
right of pre-emption was extended equally
to unoffered and offered lands.
By section 14 it was provided, however,
that the selection of unoffered lands shoidd
not dela^ the sale of such lands beyond the
time which miffht be appointed by the proc-
lamation of the President, nor should the
provisions of the act be available to any per-
■on who should fail to make the proof and
Sayment and file the affidavits required, un-
er section 18 of the same act, before the day
appointed for the commencement of the
salea.
In regard to the so-called offered lands,
it was provided by section 15 of the act as
Mlows:
''Sec. 15. Af%d he it further mooted, That
whenever any person has settled or shall set-
tle and improve a tract of land, subject at the
time of settlement to private entrr, and
■hall intend to purchase the same unaer the
provisions of this act, such person shall in
the first case, within three months aft-
er the passage of the same, and witiiin
the last thir^ days next after the date
of such settlement, file with the register
of the proper district a written state-
ment, describing the land settled upon, and
declaring the intention of such person to
claim the same under the provisions of this
met; and shall, where such settlement is al-
ready made, within twelve months after the
passage of this act, and where it shall here-
after be made, wiihin the same period after
the date of such settlement, make the proof,
affidavit, and payment herein required ; and
if he or she shall fail to file such written
■tatanent as aforesaid, or shall fail to make
such affidavit, proof and payment, within
the twdve months aforesaid, the tract of
land so settled and improved shall be sub-
ject to the entry of any other purchaser."
The result of the passage oif thia act was
to grant the right to pre-empt 160 acres of
|ni]^t£er offered or unoffered land, and *that as
to the unoffered lands the filing of a pre-
emption declaratory statement wao not re-
quired, and the right of the pre-emptor to
make due proof and payment remainra until
the time fixed by the proclamation of the
President for the public sale of lands, at
which time (if the proper proof and pay-
ment had not been made) tiie landv might
be offered and sold to the highcftt bidder, and
if not sold they would become subject to pri-
vate entry by the first applicant at the min-
imum price. As to the offered lands, the
right of the pre-emptor was dependent upon
his filing a declaratory statement in the lo-
1114
oal office, as stated in eeoUoB IS ol the ait
above ouoted.
By tna fifth section of the act approred
Harch 8, 1848 (5 Stat, at L. 019, dian. 9$).
it was provided that sctUew under tM pr^
emption aet of 1841, upon mioirered laad,
should "make known their daima, in wrii-
inff, to the register of the proper land eOee,
within three months from tlie date of tUi
act when the settlement has already bees
made, and within thoree months from the ttne
of the settlement when such settlement shall
hereafter be made, ffiving the desig:ttatioti ei
the tract and the time <m seUlement? other-
wise his claim to be forfeited and the traet
awarded to the next settler, in the order
of time, on the same traet of land, wlio ehall
have given such notice and otherwiae eon-
plied with the conditions of the l&w.**
Tbkinff these two acts of 1S41 and Ua
and reading them together, it is seen that
there was a difference between unoffered and
offered lands by reason of the fact that on
unoffered lands the right or privile^re to se-
cure land by a pre-emption Aing cootimed
an to the oommenoement of the pubUe s^
wnenever that might be, and if that right
or privflege had not been eocereiaed and the
land was offered at publie sale and not aold,
it then became subject to private entry by
the first applioant, while on offered lands the
right or nnvilege to secure them by a prs-
emption filing continued for twelve nonths
after the date of the settlement, and if the
pre-emptor failed to file the declarators state-
ment or make the proper affidavit within the
twelve months, 'the traet of land so settled
and improved shall be subject to the entry
of any other purchaser."
^Congress by an act approved May 20. 180S{MI|
(12 Stat, at L 392, diap. 75), provided for
the sale of public lands for bomieateads, and
sinoe that ume the practice of disposl]i|g of
the publie lands at publie sale ban gradoat-
ly been abandoned, although the authority
reoMdned. Tlie abandonment of these mib-
lie sales resulted in ^ving to thoee who ImS
made pre-emption filings unon unoffered
land an unoertain time witnin whidi to
prove or oomplete their proof and paynest,
because their time lasted untO the day of the
publie sale prodaimed by the President. As
these publie sales were abandoned, the re-
sult was that these daJmaaU were not nndsr
any obligation to make proof and payment
atalL
By the second section of the aet apprond
July 14, 1870 (16 Stat at L. 279, chap. 272).
it was provided that ''all datmanta of pre-
emption rights shall hereafter, when ao
shorter period of time is now prescribed by
law, make the proper proof and payment lor
tiie lands daimed, within dghteen moaths
after the date preecribed for filing their
declaratory notioes shall have enired:
Provided, That where aaid date shall have
dapsed before the psseage of this act, said
pre-emptors shall have one year after the
passage hereof in which to make ivdi proof
and paymeni.**
That aet was amended by reeolutkin Kei
' 52, approved Mirdi 3, 1871 (10 Stat at L.
174 V. a
1808.
NoBTHBBN Pacific R. Co. y. Db Lacby.
683-635
•01 ) , hj wliich twelve months in addition to
that provided in the act were given to claim-
ants to make proof and payment. Adding
the twelve months given bj this resolution
to the eighteen months given by the act of
1870 all claimants of pre-emption rights
^vere given thirty months to make the proper
proof and payment for the lands claimed.
These various provisions are found in the
United States Revised Statute:) from section
2257 to and including section 2267, the lat-
ter section giving the thirty months as
stated.
We thus find that since 1871 all claimants
of pre-emption rights lost those rights by
operation of law, unless within thirty
montlis after the date prescribed for filing
their declaratory notices they made proper
proof and payment for the lands clain^d.
i3]The filing of their declaratory statement *and
the record made in pursuance of that filing
became without legal value if within the
time prescribed by the statute proper proof
and payment were not made. Whether such
proof and payment were made would be mat-
ter of record, and if they were not so made
the original claim was canceled by operation
of law and required no cancelauon on the
records of the land office to carry the forfeit-
ure into effect. The law forfeited the right
and canceled the entry just as effectually as
if the fact were evidenced by an entry upon
the record. The mere entry would not cause
the forfeiture or cancelation. It is the pro-
vision of law which makes the forfeiture, and
the entries on the record are a mere acknowl-
edgment of the law, and have in and of
themselves, if not authorized by t^e law, no
effect. The law does not provide for sudi a
cancelation before it is to take effect. The
expiration of time is a most effective can-
celation.
In such a case as this, where the forfeit-
ure occurs by the expiration of the thirty
months within which to make proof and pay-
menty the record shows that the claim has
expired ; that it no longer exists for any pur-
pose, and therefore it cannot be necessary
in order that the law shall have its full
operation that an acknowledgment of the
fact should be made by an officer in the land
ofiSce. The law is not thus subject to the
act or the omission to act of that officer.
The case of Whitney v. Taylor, 168 U. S.
85 [30: 906], cited in the opinion of the cir-
cuit court of appeals as decisive of the case
* at bar, we think has not the effect given to
it by the learned court below. The land in
that case was within the granted limits of
the grant to the Central Pacific Railroad
Company by the act of July 1, 1862. 12
Stat, at L. 489, chap. 120. That company
filed its map of definite location March 26,
1864. It was held that the tract being sub-
ject to the pre-emption claim of one J., at
the time when the grant to the railroad com-
pany took effect, was excepted from the oper-
ation of that grant. It was subject to the
claim of J. because in May, 1857, he had filed
his statement, paid the fees reouired by law,
and the filing was duly enterea in the prop-
er government record; and at that time, as
has been seen by the above review of the stat-
174 U. 8.
utes, *there was no period within which a pre-[M4]
emptor was compelled to prove up and pay
for his claim, except that it should be done
before the land was offered at public sale
by the proclamation of the President. The
tract in dispute had not been so offered at
the date of the definite location of the road,
and it was held that J.'s tbne to make proof
and payment had not enired at the time of
the filing of the map of definite location, and
that consequently his was an existing claim
of record at that date.
The citation from the opinion of the court
in Whitney y. Taylor shows that the state-
ment was made with reference to that im-
portant and material fact; that it was an
existing claim on the part of the claimant at
the time of the filing of the map of definite
location. Whether that claim were an en-
forceable one or whether there were facts
which when brought to the attention of the
government miffht induce it to cancel it, or
the fact that tne government might at its
own suggestion cancel the claim, were held
not to affect the question. The material fact
that it was an existing claim was the fact
upon which the case was decided.
In this case, such fact does not exist.
There was no existing claim at the time of
the filing of the map of definite location by
the plaintiff herein. It had expired and be-
come wholly invalid by operation of law.
The thirty months had expired years before
the filing of this map.
In Northern Paotfio Railroiid Company
y. Oolhum, 164 U. S. 383, 388 [41: 479, 480],
it was stated in the coume of the opinion
that there were "other questions in this case,
such as the significance of sn eofpired fiUng,"
which were not considered by the supreme
court of the state or noticed bv counsel, and
which were left for consideration thereafter.
This shows that the case of Whitney v. Tay-
lor was not regarded by the court, or by the
J'ustice who wrote the o)>inion therein, as
laving a controlling bearing upon the ques-
tion as to tlie effect of an expired filing un-
der circumstances such as are developed in
this case.
If claims which were of such a nature as
to be described as "existing" were made in
r^ard to any of the lands which *other wise [635]
might be included in the grant to the railroad
company, we reiterate what was said in the
Dunmeyer Case {supra) — tha;t it is not oon-
ceivable that Congress intended to place those
parties, the railroad company and the vari-
ous claimants to the land, in the attitude of
contestants, with the right in each to require
proof from the other of complete performance
of its obligations. On the contrary, we would
say that if there were at the time of the fil-
ing of the map of definite location an actual
existing claim, even though it might turn
out to be wholly unfounded, the land thus
claimed would not pass by the erant. This
he« been decided as lately as Northern Paoifio
Railroad Company v. Sanders, 166 U. S. 620
[41 : 1139]. In the case under consideration
there was, at the time of the filing^ of the map
of definite location, no claim within the mean-
ingof the statute.
The ri^ht of Flett, obtained br the filini^
1115
635-638
SUPBEHS COUBT OF THE UNITED STATES.
of his statement, waa the right of pre-emp-
tion only. In otiier words, the right of pur-
ehafie before any otber person, and by the law
of Congress that right ceased at the expira-
tion of thirty months from the filing of that
itatement. Thereafter there was no daim,
lor it had ceased and determined, and with
reference to the right it was of no moreya-
lidity after the expiration of that time than
if the statement had never been filed. After
the filing of a statement and while the time
18 running within which to make proof, there
is an inchoate right on the part of the pre-
emptor which the government recognizes, as
in Friahie v. Whitney, 9 Wall. 187 [19: 668].
It was held in Johnson v. Towsley, 13 Wall.
72, 90 [20: 485, 489], that in case the pre-
emptor failed to file his declaration of in-
tention within three months from the time of
settlement, aa provided for in the fifth section
of the act of 1843 (6 Stat, at L. 620, chap.
86), he nevertheless would have the ri^ht
after the expiration of the three months,
being in possession, to then make and file his
declaration, provided no other party had
nmde a settlement or had given notice of his
intention to make one and no one would be in-
jured by the delay. But the case ia far from
holding that after the declaration has been
filed and the time in which to prove up and
[€86] make payment •upon his claim has wholly ex-
pired, that the claim nevertheless still ex-
ists in sufficient force to prevent the transfer
of title to the company under the act of Con-
gress, simply because the officer of the land
office has failed to perform a mere ministerial
duty by canceling of record a claim which has
really ceased to exist by operation of law.
A claim is not an existing one where by the
record it appears that the right to make proof
and payment has expired under the terms of
the statute.
It appears that it has not been the prac-
tice of the Interior Department to enter any
formal cancelation of an expired pre-emption
filing upon the books of the office ; its practice
has oeen to take no action concerning them.
They have simply been treated as abandoned
claims. State of Alabama, 3 Land Dec. 315,
817.
Reference is made in the briefs to the cir-
cular of Commissioner Drmnmond, dated Sep-
tember 8, 1873, in which he says:
"By the operation of law limiting the period
within which proof and payment must be
made in pre-emption cases, such claims' are
constantly expiring, the settler not appear-
ing within such time to consummate his en-
try. These expired filings are classed with
those actually abandoned or relinquished."
And again in the circular of November 8,
1879. the Commissioner said:
"Where application is made by a railroad
company to select lands on which pre-emp-
tion filings have heretofore been made and
canceled, or where the same have expired by
limitation of law, no other claim or entry ap-
pearing of record, you will admit the selixj-
tions, m accordance with Uie rules governing
in the premises herein communicated. No
proofs by the companies concerning such
claims will hereafter be required."
The effect given by the land department to
1116
what is termed an "expired fili^^ of fhe i»-
ture of the one in suit has not
It was in substance held in
such expired filing amounted to ^
in the meaning *of the statute, and that t^MT]
land did not pass under the graot to t^
railroad company. Emerson ▼. C<«tn2 ^•-
cific Railroad Company, 3 Land Dee. 117
same ca.se on motion for a rehearing. 3 Lab!
Dec. 271 ; Schetka v. y art hem Pacific fiO-
road Company, 5 Land Dec 473; AUem r
Northern Pacific Railroad Company. € Icsi
Dec. 520 ; Fish v. Xorthem Pacific
Company, 21 Land Dec. 165; san
motion for a rehearing, 23 Land Dec. IS. Oi
the other hand, we have been referred to tat
cases of Northern Pacific Uailroad Comfmaf
V. Stovenour, 10 Land Dec. 645 ; Meittm- r.ft
Paul etc. Railroad Company, 14 Laad D«t.
624; Union Pacific Railroad Compmmm x.
Hartwich, 26 Land Dec 680: Wi^U
tral Pacific Railroad Company, 27
182; Central Pacific Railroad Compmmf r
Hunsaker, 27 liand Dec 297. The Ua tm
cases cited touch the question vary
it at all.
The latest decision of the land
which our attention has been called »
Union Pacific RaUroad Company r
cided February 1, 1899. 28 Land Dec T^ la
that case the Secretary refers to t^ caam
which have been cited above, holding thai m
expired filing excepted the land from a ^ruc
to the railrc^ company, and he givet hi»
sons for the decisions of the de
those cases, which he thinks
altogether in conflict with the other
of the department.
Althoujgh these decisions i
harmonious, it would seem that the
of the departm«it not to enter as canceM u
expired filing has be«[& uniform, aad tte
record has b^n left to speak for itself .
For the reasons which we hare alualy
criven, we think it was unnecessanr to
the cancelation on the record of the
order to permit the law of Conf^^ss to hat*
its le^l effect. That effect shonld act te
dependent upon the action or nonactW t4
any oflQoer of the land department. WS*
no proof and no payment have been ma^
within the time provided for by the law. tV»
record will show that fact, and that the nf%t
of the claimant has expired and the eUm
itself has ceased to exist.
A case of this kind, which simply
tates a reference 'to the record to
whether the filing had expired and wit)i it
the rights of the claimant, differs frov t^
case where a filing may have beraBe »a>*'«t
to cancelation ; but the record doe« not *him
it, and the right to cancel depend* nvm r^
dence to be found dehors the record. Ta ■**
case, while the facts might invalidate tkt
daim, yet as they are not of record and r^
quire to be ascertained, the claim it«clf.
though possibly not enforceable, i^ «4il1 tt
existing claim within the meaninir of tk* U«,
and it would remain such until mmtvUtv
had taken place or some other act drae !»>
gaily terminating the existence of the rUaa
upon the fact# as found in t%l« ca«. ft
174 V. 8.
McMuiiLEN y. Hoffman.
688-640
to us that there was no claim against
"ttt^ land at the time of the passage of the act
of 1864, and that years before the time of the
filijag of the map of definite location in 1884
t.lie claim that once existed (in 1869) in
fairor of Flett had ceased to exist in fact and
in law, and the title to the land passed to
l^e railroad company by virtue of the grant
oontained in the act of 1864 and by reason
of the filing of its map of definite location
I^&rch 26, 1884. When, therefore, the de-
fendant settled upon the land in April, 1886,
ajid applied to make homestead entry there-
on, his application was rightfully rejected
for the reason that title to the land had
passed to the railroad company, as above
mentioned, and therefore he was not entitled
to make the entry.
For the same reason, when John Flett, in
September, 1887 (submitted proof in sup-
port of his pre-emption claim, founded upon
nis declaratory statement filed April 0, 1869
(and which claim ho had abanaoned since
1870), he was too late. His right had ex-
pired many years before 1884, at which time
-the right to the land passed to the company,
and he had no right to prove up on his aban-
doned and expire claim.
The record shows that at the time of the
(Mymmencement of this action the railroad
company was tbe owner and entitled to the
immediate possession of the land in contro-
versy, and that it was entitled therefore to
judgment in its favor, and the courts below
err^ in dismissing its complaint.
19] "^The judgment of the United States Circuit
Court of Appeals for the Ninth Circuit ia re-
versed, and the case remanded to the Circuit
Court for the Western Division, District of
Washington, for further proceedings not in-
consistent with the opinion of this court.
So ordered.
Mr. Justice Harlan and Mr. Justice Mo-
dissented.
JOHN Mcmullen, Petitioner,
V.
JULIA E. HOFFMAN, Executrix of Lee
Hoffman, Deceased.
(See 8. C. Reporter's ed. 639-670.)
Secret agreement between bidders far public
contract, when illegal — action on contract
— unity of contract — contract partly writ'
ten and partly parol — partnership ac-
counting.
1. A secret agreement between bidders for a
i)tibllc contract, by which their separate bids
are pat in after mutual consultation and
agreement, and they have a common Interest
In each bid. If any are accepted, and are to
share as partners In any contract obtained,
iB illegal in Its nature and tendency. It is
not necessary to show the particular effect of
the contract, as such contracts are condemned
by public policy.
1. One of the parties cannot maintain an ac-
tion on the valid part of the contract relat-
ing to the partnership, by discarding or omit-
ting to prove that portion which Is Illegal.
174 XT. 8.
8. The unity, of such a contract cannot bt
severed or its effect altered by patting part
of It In writing and leaving the rest In paroL
4. A written contract which appears to bt
legal on Its face may be proved to be only
part of a contract the other portions of which
were illegal.
5. In any action broaght In which It is neces-
sary to prove an Illegal contract in order to
maintain the action, courts will not enforce
It, nor will they enforce alleged rights di-
rectly springing from such contract.
8. An accounting of the profits of a partner-
ship win not be awarded where the partner-
ship was only part of a contract of which
the other portions were illegal.
[No. 271.]
Argued April 27, 28, 1899. Decided May 22,
1899.
ON WRIT OF CERTIORARI to the United
States Circuit Court of Appeals for the
Ninth Circuit to review a decree of that
court in an action brought by John McMullen
against Lee Hoffman and on his death re-
vived against Julia E. Hoffman as the execu-
trix of nis will for an accounting of profits
upon a contract with the city of Portland
wnich the circuit court of appeals holds to
be illegal, reversing the decree of the Circuit
Court of the United States for the District
of Oregon. Judgment of Oiroutt Court of
Appea& affirmed.
See same case below, 69 Fed. Rep. 500, 75
Fed. Rep. 547, 48 U. S. App. 596, 83 Fed.
Rep. 372, 28 C. C. A. 178. See also 170 U.
S. 705, mem.
Statement by Mr. Justice PeoUiams
*This action was originally brought by the[Q4Q]
complainant McMullen against one Leo Hoff-
man, and he having died before the trial,
the action was revived against the defendant
Julia E. Hoffman, as tne executrix of his
will. When the defendant is hereinafter
spoken of the original defendant is intended.
The complainant filed his bill against the
defendant seeking an accounting of profits
that he alleged hSd been made by the defend-
ant upon a certain contract for the construc-
tion of what is termed the Bull Run pipe
line and which contract was entered into be-
tween liie city of Portland in the state of
Oregon, and the defendant on or about March
10, 1893. The complainant bases his right
to share in the profits of that contract by
virtue of another contract in writing between
himself and the defendant herein, executed
March 6, 1893. That agreement reads as
follows:
This agreement, made and entered into by
and between Lee Hoffman, of Portland, Ore-
gon, doing business under the name of Hoff-
man & Sates, partv of the first part, and
John McMullen, of San Francisco, Cali-
fornia, party of the second P&i^ witness-
eth: Tnat, whereas, said Hoffman and
Bates have with the assistance of said Mc-
Midlen at a recent bidding on the work of
manufacturing and laying steel pipe from
Mount Tabor to the head works of the Bull
1117
«^o-4>4;s
SUPlkKMB COUBT OF THK UlOTKD StaTSS.
Run water system for Portland, submitted
the lowest bid for such work, and expect to
enter into a contract with the watc^ com-
mittee of the city of Portland for doinff such
work, the contract having been awarded to
said Hoffman and Bates on said bid:
[Ml] *It is now hereby agreed that said Hoff-
man and said McMuIlen shall and will share
in said contract equally, each to furnish and
pay one half of the expenses of executing the
tame, and each to receive one half of the
profits or bear and pay one half of the losses
which shall result therefrom.
And it is further hereby agreed that if
either of the parties hereto shall get a con-
tract for doing or to do any other part of the
work let or to be let by said committee for
bringing Bull Run water to Portland, the
profits and losses thereof shall in the same
manner be shared and borne by said parties
equally, share and share alike.
Witness our hands and seals this 6th day
of March, ▲. D. 1893.
John McMullen. [Seal.]
Lee Hoffman. [Seal.]
The contract for manufacturing and lay-
ing the steel pipe was awarded to the defend-
ant at a public letting of the whole work at
Portland of which the manufacturing and
laying of the pipe was a part, and the whple
work was divided into classes, and separate
bide called for and received for each claaa.
The defendant put in bids in the name of
Hoffman & Bates for several classes, while
the plaintiff in the name of the San Francisco
Bridge Ck>mpany (of which he was an of-
ficer) put in separate bids for the same
classes.
The bids of complainant and defendant for
the several classes of the work were aa fol-
lows:
Conduit from head works to Mount Tabor
of wrought iron or steel, making and laying
pipe:
Hoffman & Bates $466,722 00
San Francisco Bridge Company. 514,664 00
(The profits arising out of this contract
are the subject of the controversy herein.)
Head works —
Hoffman & Bates $17,800 00
San Francisco Bridge Company. 16,550 00
[M2] •Bridges-
Hoffman & Bates $33,562 04
San Francisco Bridge Company. 31,270 07
Also for steel conduit for head works
to Mount Tabor —
Hoffman & Bates $359,278 00
San Francisco Bridge Company. 848,781 00
There were several other bids by different
bidders for these various classes. The bid
in the name of Hoffman & Bates for the man-
ufacture and laying of the wrought iron or
steel pipe from the head works to Mount
Tabor being $465,722, was the lowest out of
1118
eight bids, the various bids from the
to the lowest being as follows :
The Risdon Iron & Loeomotive
Works StOO^
The Bullon Bridge Company. . .
Oscar Huber SZIS7%
San Francisco Bridge Company. 514jM4
Wolff, Buen^, & Zwidcer 4»S.fin
Ferry Hinckle & Robert Wake-
field 4SljN*
E. W. Jones & O. W. Wagner. . . 47T«5S
Hoffman & Bates
All these bids were before the
the part of the city, and were taken into tarn-
sideration at the time the award waa maM
to the defendant. After the aeeeptaaee «l
his bid for the manufacturing and layiaf «l
the pipe the defendant entered isfto a tarn-
tract with the city of Portland to de tie
work mentioned in such bid and
the performance of the contract as
for therein. The work was dalT <
and the city paid defendant tae
price for the same, retaining the
provided for therein, as aecuritj' thai
terms of the contract had been fnuy
with.
The complainant alleges tliat
after securing the contract, went on with tkt
work thereunder, but refused to
to participate in the profits
or to examine the books of tl^
and that although he (eom|ilminaat) fm-
nished some of the cajiital and
*some of the services provided for in the
tract with the city, and participated in i
of the expenses of the executioa of the
tract, ana devoted some of his t»e
tention to the proper perfonnanee
and was at all times ready to do
required of him by his agreement of
ship, yet that the defendant
moneys paid by the city and
fused to account to him for any part
and denied that he had anr intcrast
right to any portion of mm niot^ya
complainant, tnerefore. asked for am
ing between himsdf and defendant, as pscV
ners, and for a decree for the
TW
him of one half the profits arising fran the
hi^ihe
contract, the whole of whi^
amotintal to $80,000 (the courts bdov «y
the evidence shows they were$14OjO0O) ; t^
a receiver might be appointed to taks ehaift
of the property of the partnership, its »«^
ords, books, papers, etc, and that tm M«^
ant might be restrained during the pcoricary
of the suit from making sale or other diff*-
sition of the tools, equipments, or other wat-
sonal property belonging to the ^is 1 1 asi shif
and from drawing from the city of ^irtlaM
the moneys withMd by it on account ef tte
contract, as wdl as any other moaer dat lir
other work done by the defendant nndtr tht
contract of partnership.
The answer of the defendant. whiW d««^
ing many of the alle^rations of the coaiplsist
set up as a special defense the making of ss
agreement between the parties i of which tht
partnership a^eement was a portkaK W
the terms of which they were to pot in ki^
174 U. t^
1808.
McMULLBN Y. RorvuAH.
0i.<^, vai
for Uie construction of the work, the com-
pUkinant in the name of the San Francisco
bridge Company and the defendant in the
lutme of Hoffman & Bates; that the hids
should not be in reality competitive, but
sbould be submitted to each other before they
"were put in, and their terms shouM be mu-
tually agreed upon, the higher bids to be
mer^T formal, and the bids themselves as
a^preed upon should be delivered to the wa-
ter conmiittee; that if either party received
the contract, they should both share in the
profit or loss resulting from its performance,
but that their mutual interest in each other's
bids should not be made known when the
bids were offered, so that it would appear
4] that they were apparently 'competing for the
various classes of the work ana for furnish-
ing the material, when in fact they were
not. This agreement, the defendant alleged,
was carried out, and Uie contract secured by
means thereof.
The court upon motion of the complain-
ant granted a temporary injunction aa
prayed for in the bill. Exceptions were tak-
en to certain parts of the answer of the de-
fendant as being insufficient. Material por-
tions of these exceptions were overruled by
the court upon the ground that the answer
set up an illegal contract between the par-
ties, and one which could not be enforcea by
either. 69 Fed. Rep. 509.
Upon the final hearing of the case the
Aame jud^, becoming convinced that he had
erred in nis former decision in overruling
the exceptions to the answer, decided that
the case as made on the part of the defend-
ant showed no defense to the complainant's
cause oi action, and thereupon he made a
decree for an accounting pubstantially as
asked for in the complainant's bill. 75 Fed.
Rep. 547.
An appeal from the decree oi the circuit
court was taken to the United States circuit
court of appeals for the ninth circuit, ajod
that court neld that the contract between the
parties was illeffal, and that no action could
be maintained Uiereoy by either, and the de-
cree in favor of the complainant was there-
fore reversed. 48 U. a, App. 596. Com-
plainant then applied to this court for a writ
of certiorari to review the judgment of the
circuit, court of appeals, which was granted
May 9, 1898. 170 U. S. 705, mem.
Messrs, William A. Bfaary and L. B.
Cozy for petitioner:
No partnership touching the work in con-
troversy resulted from anything which
transpired between Hoffman and McMullen
prior to the award made upon Hoffman's
bid, nor until they had signed the partner-
ship agreement oi March 6, and entered upon
the performance of the work contemplated
therein.
Fotoell y. Maguire, 43 Cal. 11 ; Rehoul v.
Chalker, 27 Conn. 114; Wilson v. Oamphell,
10 111. 388 ; Lycoming Ins. Co, v. Barringer,
73 ni. 230; Doyle v. Bailey, 75 111. 418;
Meagher v. Reed, 14 Colo. 335, 9 L. R. A.
455.
McMuUen's cause of suit was not based
upon the partnership contract, but upon the
174 V. 8.
dut^ of Hoffman to account to him for VmJI
their earned profits, which duty flprew ont st
and rested upon their relationship as part-
ners.
Hanks v. Baher, 53 111. 292 ; Chaoe v. Traf-
ford, 116 Mass. 532, 17 Am. Rep. 171; Tm-
ant V. EUiott, 1 Bos. & P. 8 ; Farmer v. Ru$»
sell, 1 Bos. & P. 296.
An obligation will be enforced, though iB>
directly connected with an ille^ transa^
tion, if it is supported by an independent
consideration, so that the plaintiff does not
require the aid of the illegal transaction to
make out his case.
Stoan V. Scott, 11 Serg. & R. 155; Arm*
strong v. American Each, Nat, Bank, 183 U.
S. 433, 83 L. ed. 747; Frost v. Plumh, 40
Conn. Ill, 16 Am. Rep. 18; Wright v. Pipe
lAne Co, 101 Pa. 204, 47 Am. Rep. 701.
The grounds upon which McMullen is en-
titled to recover in this suit have been estab- '
lished and repeatedly declared by this court
and by other courts of the Union, both Fed-
eM and state.
Planters' Bank v. Union Bank, 16 Wall.
483, 21 L. ed. 473; Union P, R, Co. v. Di#-
rant, 95 U. S. 576, 24 L. ed. 391 ; Wann v.
Kelly, 2 McCrary, 628; Hippie v. Rice, 28
Pa. 406; Oilliam v. Brown, 43 Miss. 641;
Willson V. Owen, 30 Mich. 474 ; Owen v. Da*
vis, 1 Bail. "ti. 315; Harvey v. Vamey, 98
Mass. 118; Lewin, Trusts, 68; McDaniel v.
Maofwell, 21 Or. 202; Smith v. Huhhs, 10 Me.
71; Ownes v. Otones, 23 N. J. Eq. 60; King
V. Winants, 71 N. C. 469, 17 Am. Rep. 11.
Each portion of said agreement between
Hoffman and McMullen was readily sever*
able from the other, and each was substia-
tially a distinot contract, which could, if
necessary, be enforced quite independently
of the other.
Oregon Steam Nav, Co, v. Winsor, 20
Wall. 70, 22 L. ed. 319; Pickering v. Ilfra-
combe R, Co, L. R. 3 C. P. 235; Bank of
Australasia v. Breillat, 6 Moore, P. C. C.
200; Treadwell v. Davis, 84 Cal. 601, 94 Am.
Dec. 770; Erie R. Co. v. Union Locomotive
d Exp, Co. 35 N. J. L. 240.
The action of McMullen in submitting a
high bid for the work in suit had no ration-
aJ tendency tx> deceive the water committee.
Wicker v. Hoppock, 6 Wall. 94, 18 L. ed.
752 ; Veaeie v. Williams, 8 How. 134, 12 L.
ed 1018; Conolly v. Parsons, cited in 3 Ves.
Jr. 625, note e; National Bank of the Me*
tropolis V. Sprague, 20 N. J. Eq. 159.
Mr. Rafas Bfallory, for respondent:
McMullen and Hoffman combined, not at
honest bidders, but to prevent competition.
Atoheson v. Mallon, 43 N. Y. 147, 8 Am.
Rep. 678; Doolin v. Ward, 6 Johns. 195;
Wilbur V. How, 8 Johns. 444 ; Swan v. Cfior*
penning, 20 Cal. 182 ; Gulick v. Ward, 10 N.
J. L. 107; Thompson v. Davies, 13 Johns.
112; Holladay v. Patterson, 5 Or. 177 ; Rich'
ardson v. Crandall, 48 N. Y. 848; Oibbs v.
Smith, 115 Mass. 592; Engelman v. Shrain*
fca, 14 Mo. App. 438 ; Woodruff v. Berry, 40
Ark. 251 ; Jenkins v. Frink, 30 Cal. 586, 89
Am. Dec. 184; Hunter v. Pfeiffer, 108 Ind.
197.
Agreements, the natural tendency of
which is to prevent competition in sales at
1119
t44-0i7
SUPBCMB COUBT OF THE UXITED STATES.
Oct. TkkM,
•astion or letting upon sealed bids, are con-
trary to public policy, and cannot have the
■id of the courts to enforce them.
Sharp V. Wright, 35 Barb. 236; People ▼.
Stephens, 71 N. Y. 527; Hilton v. Eokereley,
6 El. & Bl. 64; Oibha y. Smith, 115 Mass.
592.
The law leaves parties to illegal contracts
as it found them.
Bartle v. Kutt, 4 Pet. 187, 7 L. ed. 825;
Dent V. Ferguson, 132 U. S. 50, 33 L. ed.
242; Meguire v. Oorwine, 101 U. S. 108, 25
L. ed. 899 ; Woodstock Iron Co, v. Richmond
d D. Extension Co. 129 U. S. 643, 32 L. ed.
819; Miller y. Davidson, 8 HI. 518, 44 Am.
Dec. 715.
[644] *Mr. Justice PeoUiaiii, after stating the
facts, delivered the opinion of the court:
The foregoing statement shows that there
is a difference of opinion in the courts below
[646]as to the law applicable to the *case. The
Question is one of importance, involving a^ it
oes the principles which should control in
resard to the procurement of oontracts at
public lettings for work to be awarded to the
lowest bidder. Assuming the same facts, the
courts below have come to opposite coodu-
sions upon the character of the contract and
upon the riffht of the complainant to obtain
redress for his alleged wrongs.
It was on account of the general import-
ance of the question and the many lettings
for public works b^ the government and by
municipal corporations which are affected by
the law relative to bidding, that this court
thought it a proper case to issue the writ of
certiorari herein. The cases upon the sub-
ject are not entirely harmonious, and we
think it well to again consider some of them
and so f ar afl possible to remove the doubta
which seemingly have arisen in this branch
<jf the law.
Looking in the record before us, we find
that the pleadings, and proofs taken herein,
ehow that for some time prior to the 6th of
March, 1893, the city of Portland intended
to add to its water supply by bringing to the
<!ity the water from a creek or river called
Bull Run, some thirty miles distant, and for
that purpose it had issued through its water
committee proposals for bids to build the
works, which proposals were divided into sev-
eral different classes as already stated.
The complainant McMullen, living in San
Francisco and being a large stodcholder in
and nmnager of the San Francisco Bridge
Company, came to Portland for the purpose
of giving his attention to the matter, and if
possible to make an arrangement with the
defendant by which they might together be-
come bidders for the work. He and the de-
fendant had many interviews before the time
of delivering the bids arrived, and they fi-
nally agreed that each party should put in
separate bids in his own or his firm name, or
in the name of his company, for certain
classes of the work, but that thev both
should have a common interest in each bid if
any were accepted. This community of in-
terest was to DO kept secret and concealed
from all persons, including the water com-
mittee. Each was to know the amount of
1120
the other's bid, and *all bids were to be pvt{«Mi
in only after mutual consultatioo and agree-
ment. Bids for the various dasees of work
were put in as above set forth, and aao^
them the bid for the manufacture and layiaf
of the pipe, which was accepted by the water
committee. All of them were put in panu-
ant to this agreement, part or them lo tbt
name of Hoffman & Bates and part in iks
name of the San Francisco Bridge Company.
The bid in the name of the S^ Fraaeiseo
Bridge Company for the manufacture of tbt
pipe was nearly $50,000 higher than tte
amount bid in ^e name of Hoffman ft Bates,
and was put in after consultation with aad
approval by the defendant. This last }ni
was put in, as stated by Mr. McMoDea
in his evidence, as a matter of form only, and
to keep the name of his company before the
eublic, but it appeared on its face to be a
»na fide bid. The water committee reeeived
the bids in ignorance of the existence of thb
agreement and in the supposition that all
the bids whidi were received were made ia
good faith, and they all received oonsidcra-
tion at the hands of the committee. After
the computations were made by whidi it ap-
peared that the bid of the defeodant wma ths
lowest for the manufacture and laying of the
pipe, the contract was awarded him, and af-
terwards that portion of the agreemcBt
which had been made between the parties to
this combination, vie,, that rating to the
partnership, was reduced to writii^, and h
£et out in the foregoing statement.
Upon these facts the question arising b
whether a contract between the parties
themselves, such as is above set forth, b 3-
legftlT In order to answer the questiofi w»
would first naturally ask what is its direct
and necessary tendency? Most dearly thsi
it tends to induce the belief that there b
really competitioh between the parties mak-
ing the different bids, although the troth b
that there is no sudi competition, and that
they are in fact united in interest. It wooU
also tend to the belief on the part of the eam-
mittee receiving the J>ids that a bona ids
bidder, sedcin^ to obtain the eontrart, re-
^rded the price he named, althoi^ mne^i
higher than the lowest bid, as a fair one for
the purpose of enabling him to realize r«a-
sonaole profits from its performance. A bid
thus made 'amounts to a represeotation that[#4tj
the sum bid is not in truth an unreaeonable
or too great a sum for the work to be dose.
We do not mean it is a warranty to that
effect or anything of the kind, but simply
that a committee receiving such a bid and ae-
sumlng it to be a bona fide bid would aata
rally regard it as a representation that tli*
work to be done, with a fair profit, would, la
the opinion of the bidder, cost the amoost
bid. Hence it would almost certainly t««d
to the belief that the lower bid was not aa
unreasonably high one, and that it woold be
unnecessary and improper to reject all the
bids and advertise tor a new letting. TW
fact that there were other bids even higher
than that of the San Francisco Brid|re Onn-
pany, for the manufacture and laying o# tiw
pipes, does not alter the tendency of tiw
agreement, when carried into effect^ to create
174 v. S.
189S
McMULUBK y. HOFFMAH.
64^-650
or to strengthen the belief on the part of
the committee in the fact of an active com-
petition and tbe bona fide character of that
coxnpetition, and thai the lowest bid would be
in all probability a reasonable one. It is, in
truth utterly impossible to accurately or ful-
ly predict all tne vicious results to be ap-
prehended as the natural effect of this kind
of an agreement. It cannot be said in all
cases just what the actual effect may have
been.
The natural tendency and inherent charac-
ter of- the agreement are also unaffected by
any evidence produced on the part of the
complainant, that the chairman of the water
committee had, when examined nearly three
years after the occurrence, no recollection as
to the bid of the bridge company or that it
had any particular effect upon his mind, and
that he said that the contract was awarded
to the lowest bidder simply because he was
the lowest bidder, and wiUiout reference to
the bid of the bridge company.
The question is not whether in this par-
ticular case an^ member of the water com-
mittee did or did not remember the fact that
the bridge compajiy had made a bid, or that
such bid had no effect upon his mind.
The question is not as to the effect a
particular act in fact had upon a member of
the water committee, but what is the tend-
ency and character of the agreement made be-
3jtween the parties; and that tendency *or char-
acter is not altered by proof on the part of a
member of the committee, given several years
afterwards, that he had no special recollec-
tion that such a bid had been made. The
evidence is that all the bids that were ^iven
received the consideration of the committee,
and there can be no doubt that the more bids
there were, seemingly of a bona fide char-
acter, the more the committee would be im-
pressed with the idea that there was active
oorapetition for the work te be done.
It might readily be surmised that if these
parties had bid in competition, one or both of
the bids would have been lower than their
combined bid. It was not necessary, how-
ever, te prove so difficult a fact. The infer-
ence would be natural.
In Richardson v. Crandnll, 48 N. Y. 348,
862, the court said : "In all cases where con-
tracts are claimed to be void as against pub-
lic policy, it matters not that any particular
contract is. free from any teint of actual
fraud, oppression, or corruption. The law
looks te the general tendency of such con-
tracts. The vice is in the very nature of the
contract, and it is considered as belonging
to a class which the law will not ix>lerate,"
citing Atcheson v. Mallon, 43- N. Y. 147 [8
Am. Rep. 678].
Although these remarks were made when
the court was dealing with the case of a bond
taken colore officii, yet the principle applies
equally to a case like the one at bar, and in-
deed it is seen that such was the view of the
judge delivering the opinion, since he cited
Atcheson v. Mallon, which in ite nature is a
case very similar to the one now before us.
The vice is inherent in contracte of this
kind, and iU existence does not in the least
174 U. S. U. 8., Book 43.
depend upon the success whicih attends tlia
execution of any particular agreement.
In Providence Tool Company v. Norris, 2
Wall. 45, 56 [17 : 868, 871], the court said, in
speaking as to ill^^ agreemente:
"It is sufficient to ob^ve, generally, thai
all agreements for pecuniary consideration!
to control the business operations of the gov-
ernment, or the regular administration of
justice, or the appointmente to public of-
fices, or the ordinary course of legislation,
are void as against public policy, without
reference to the question whether improper
means are contemplated or used in their exe-
cution."
* And in King v,De Berenper, 3 Maule & S.[640]
67, 72, cited in Scott v. Broton [1892] 2 Q.B.
724, 730, Lord Ellenborough, Ch. J., said:
"A public mischief is stated as the object
of this conspiracy ; the conspiracy is by false
rumors to raise the price of the public funds
and securities ; and the crime lies in the act
of conspiracy and combination to effect that
purpose, and would have been complete, al-
though it had not been pursued to lU conse-
quences, or the parties had not been able to
carry it into effect The purpose itself is
mischievous; it strikes at the price of a
vendible commodity in the market, and if it
gives it a fictitious price by means of false
rumors, it is a fraud levelled against all the
public, for it is against aill such as may pos-
sibly have anything to do with the funds on
that particular day."
Contracte of the nature of this one are il-
legal in their nature and tendency, and for
thai reason no inquiry is necessary as to the
particular effect of any one oontr8[ct, because
it would not alter the general nature of con-
tracte of this description or the force of the
public policy which condemns them.
In the case at bar the illegal character of
the agreement is founded, not alone upon the
fact that it tends to lessen competition, but
also upon the fact of the commission of a
fraud oy the parties in combining their in-
tereste and concealing the same, and in sub-
mitting different bids as if they were bona
fide, when they knew that one of them was so
much higher than the other that it could not
be honestly accepted, and when they put it in
for the sake of keeping up the form and of
strengthening the idea of a competition which
did not in fact exist. The tendency o{ such
agreemente is bad, although in some particu-
lar case it might be difficult to show that It
actually accomplished a fraud, while ite in-
tention to do so would be plain enough.
Therefore, when it is urged that these parties
had no intention of bidding for this work
alone, and that unless they had combined
their bids neither would have bid at all, and
hence the ag^reement between them tended to
strengthen instead of to suppress competi-
tion, this answer to •the illegality of the tran3-[650]
action is insufficient. The evidence, how-
ever, does not show that if these parties had
not agreed upon a combination neither would
have bid alone. It shows complainant came
to Portland to see the defendant and to con-
clude their arrangemente to go into the com-
bination, but we are by no means of the opin-
ion that the evidence shows that if they nad
71 11«1
•00-608
SuFBEMB Court of thk UmTEo States.
not combined they would not haye bid at all.
Complainant's company had bid alone at a
prior letting, some time before, and had then
been tiie lowest bidder for the contract, which
the city did not award because of a lack of
means of payment for the work consequent
upon a yeto by the goyemor of the bill pro-
yiding for the issuing of bonds to make such
payment. And it seems that the defendant
nimself was well able to carry on the con-
tract alone.
If it be granted that the fact was proyed
that neither party would haye bid separately
and that by yirtue of the combination a bid
was made which otherwise would not haye
been offered, the significance of the other
facts in the case is ncS thereby altered. Those
other facts are the concealment of the inter-
est which the parties had in each other's
bids, and the making of what were under the
circumstances nothing more than fictitious
bids for this and the other classes of work
for which both parties put in bids, evident-
ly for no other purpose than to endeavor
thereby to deceive the committee into believ-
ing that there was real competition between
them, when in fact there was none. If there
had been competition, the bid of each for the
contract that was obtained might very likely
have been lower than the one that was ac-
cepted. It is not necessary to prove that
fact in order to show the nefarious charac-
ter of the agreement.
The reason given for the making of these
fictitious bids by the complainant, that it
was a formal matter and to keep the name of
his company before the public, is entirely in-
adequate. The bids actually put in by them
for the other classes of work had the same
tendency to strengthen belief in the reality
of the competition -whidi in fact did not ex-
ist between these persons. The whole trans-
action was intentionally presented to the
water committee in a false and deceptive
light.
[661] *Upon general principles it must be appar-
«it that oiddings for contracts for piiblic
works cannot be surrounded with too many
precautions for the purpose of obtaining per-
fectly fair and bona fide bids. Such precau-
tions are absolutely necessary in order to
prevent the successful perpetration of fraud
in the way of combinations among tho^e who
are ostensible rivals but who in truth are
secretly banded together for the purpose of
obtaining contracts from public bodies such
as municipal and other corporations at a
higher figure than they otherwise would.
Just how the fraud is to be successfully
worked out by the combination, it is not nec-
essary to show. It is enough to see what
the natural tendency is. Public policy re-
?[uires that oflBcers of such corporations, act-
ng in the interest of others, and not using
tiie sharp eye of a practical man engaged in
the conduct of his own business and not con-
trolled by the powerful motive of self-inter-
est, should, so far as possible and for the
sake of the public whom they represent, be
protected from the dangers arising out of a
concealed combination and from fictitious
bids.
To hold contracts like the one involved in
1122
this case illegal is not to create
of law for the purpoM of alfordni^ tlw
tection spoken of. It is irat enforcny m
rulsb and applying it to sock facta m
in this case oeoanse It natnnilj 6ts
Its enforcement here is to bat
feet the public policy upon n
itself is founds. Pec^le wht> h^wm
guilty of the conduct exhibited in tlus
cannot be heard to say that althoogb
arrangement was fraudulent
they would nevertheless have obtais^ the
contract even if they had not been gmJBxw if
the fraud, because the bids show thew wtn
the lowest bidders. The bids might ktw
been lower yet if there had beoi
where there was in fact com^binatwin
parties must accept the con^eq
mg from entering into the agr<
in this case all of which they
and included in which and as
thereof was the agreement with the ct^ aM
the written agreement of partnership
tween themselves.
In Hyer v. Richmond Traetufm C*
108 U.S. 471 [42 L. ed. 547],in*»peaki^ ■*!*(
the cliaracter of the agreement in that "^
Mr. Justice Brewer remarked that the
of a combination "lies in the fact of
concealment, and deception; tb« one af^
cant, though apparently antagonionf titt
other, is really supporting the latter^ tp-
plication, and the public authorities ai« ■»
led bv statem^its and repreeentations eB»
in^ from a supposed adverse, but in feel
friendly, source.''
In that case the demurrer admitted the il-
legation of the complaint that the ttmnktm
tion of the two interests asking for the m^
cession from the common eounol was knvwa
and announced to that body before ita dio-
sion was made. The case simply shows Om
part which concealment takes in a eonU-
nation, being in fact one of the great da^fvi
springing therefrom.
In Ateheson v. Jfa/Ion, 43 K. Y. l<7. ISt
Judge Folger, in ddivering tho opinion sf
the court, said:
"But a joint proposal, the resnlt of hoo><
co-operation, though it might prewet tW
rivalry of the parties, and thos 1c«mb etm-
petition, is not an aet forbidden by p«l£t
policy. Jo^ntadventures are allowed,
are public and avowed, and not
ride, as well as the profit, is joint,
ly assumed. The public may obtain at
the benefit of the joint responsibility, ^wi
of the joint ability to do the serriea. 7\e
public agents know, then, all tfiat there is ii
the transaction, and can more jvsti
mate the motives of the bidders, and
the merits of the bid."
We have here nothing to do with a
nation of interest whidi is open and
whidi appears upon the face of tbe bU ani
which is therefore known to alL Sw^ a
combination is frequently proper, if
sential, and, where no eonceahn— i Is
Used and the fact is known, thora mmj W ■•
ground whatever for judging it to be In of
manner improper.
But in this case th«n la Bncn mm than
174 v. 6
McMULLXN y. HOFFIUN.
65IM65
eoncealment. There is the active fraud in
the putting in of these, in substance, ficti-
tious bids, in their different names, but in
truth forming no competitive bids, and put in
for the purpose already stated. It is not
1 3too mu^ to saj that the most perfect *good
faith is called for on the part of bidders at
these public letUngs, so far as concerns
their position relating to the bids put in by
them or in their interest. The making of
fictitious bids under the circumstances de-
tailed herein is in its essence an illegal and
most improper act; indeed, it is a plain
fraud, perpetrated in the effort to obtain
the desired result.
The evidence shows that this written part-
nership agreement was only a part of the en-
tire agreement existing between the parties.
That agreement coverra and was clearly in-
tended to cover their whole action from the
time they agreed to put in their bids in a
eoromon interest up to and including the
execution and performance of the contract
obtained from the city. The agreement (of
which that for a partnership was but a por-
tion) was that they should combine their
interests; that ttiej should put in bids
known to eadi ; that they should conceal the
fact of their combination; that they should
put in fictitious bids without expectation
or purpose of having them taken; that if
the contract were procured they should per-
form the work as partners and share ex-
penses and divide profits. No division of
that contract into two periods, the one prior
and the other subsequent to the written
agreement between the parties, can be made.
n%e complainant cannot count only upon
the contract of partnership as evidenced by
the writing of March, 1893. That writing
evidenced only a portion of the agreement
that had been made between these parties, the
result being that, although their agreement
was in the first instance by parol, a portion
of it was subsequently reduced to writing.
Tlie whole contract is none the less one and
indivisible, just as much as if it had all
been put in writing. If it had been, it
would scarcely be argued that complainant
might maintain an action by relying on that
part of it which was valid and relating to
the partnership between them, and that he
mi^ht discard or omit to prove that portion
which was illegal. If the complainant did
not, the defendant could, prove the whole
contract, as well the part lying in parol as
that which was reduced to writinff, so that
the court might, upon an inspection of the
whole contract, determine therefrom its
^^icharacter. The unity of the 'contract is not
severed or its meaning or effect in any degree
altered by putting part of it in writing and
leaving the rest in parol.
Concluding as we do that this agreement
between these pcurties is as a whole of an ille-
gal nature, and that the portion thereof
which is reduced to writing cannot be sepa-
rated from the balance of the agreement, the
question then arises as to the result of such
eonclusion upcm the parties to the agreement.
There are several old and very familiar
Boaxims of tho common law which formulate
174 U. 8.
the result of that law in regard to illcnl
contracts. They are cited in all law hoSkm
upon the subject, and are known to all of iMi
Tney mean substantially the same iMog
and are fotmded upcm the same principles
and reasoning. They are: Em dolo tnalo turn
oritur actio; Ew paoto iUicito non oritur ao'
tio; Em turpi causa non oritur actio. About
the earliest illustration of this doctrine is
almost traditional in the famous case of
The Highwayman, It is stated that Lord
Kenyon once said, by way of illustration,
that he would not sit to take an account be-
tween two robbers on Hounslow Heath, and
it was questioned whether the legend in re-
crard to the highwayman did not arise from
that saying. It seems, however, that the
case was a real one. He did file a bill in
2aity for an accounting against his partner,
though it was no sooner filed and its real
nature discovered than it was dismissed
with costs, and the solicitors for the plain-
tiff were summarily dealt with by the court
as for a contempt in bringing such a case
before it. 1 Lindlev, Partnership, 5th ed.
94, note n; 9 Law Quarterly Beview (Lon-
don), pp. 105-197.
The authorities from the earliest time to
the present unanimously hold that no court
wilt lend its assistance in any way towards
carrying out the terms of an illegal contract.
In case any action is broueht in which it is
necessary to prove the illegal contract in
order to maintein the action, courts will not
enforce it, nor will they enforce any alleged
rights directly springing from such contract.
In cases of this kind Bie maxim is Potior
eat conditio defendentia,
*The following areonly a fewofthenumer-[055]
ous cases upon the subject in England and
in this country: Eolman v. Johnson (1775)
1 Gowp. 341; Booth v. Hodgson (1796) 6 T.
R. 405; Thomson v. Thomson (1802) 7 Ves.
Jr. 470; Shiffnery, Gordon (1810) 12 East,
296; Sykes v. Beadon (1879) L. R. 11 Gh.
Div. 170; Scott v. Brown (1892) 2 Q. B.
724; Belding v. Pitkin (1804) 2 Cai. 147a/
Atcheson v. Mallon (1870) 43 N. Y. 147;
Leonard v. Poole (1889) 114 N. Y. 371 [4
L. R. A. 728] ; Wheeler v. Russell (1821) 17
Mass. 258, 281 ; 8neU v. Dwight (1876) 120
Mass. 0; MtMrshall v. Baltifnore d 0. Rail'
road Company (1853) 16 How. 314, 334 [14:
953, 961]; McBlair y, Qihhes (1854) 17
How. 232 [15: 132] ; Ooppell v. Hall (1868)
7 Wall. 542 [19:244]; Trist v. Child
(1874) 21 Wall. 441, 448 [22:623, 624];
Woodstock Iron Company v. Richmond d D.
Eatension Company (1888) 129 U. S. 643
[32:819]; 1 Lindley, Partnership, 6th ed.
98, note, giving the result of the American
cases.
The general proposition is not disputed,
but certain explanations as to its meaning
and extent have been announced by the
courts in cases now to be referred to, and the
effort has been to show that the case before
us comes under some of the exceptions to
the rule, and ought not to be governed by
the so-called harshness of the ride itself.
If the partnership agreement that is con-
tained in the writing above set forth is in
1123
655-658
Supreme Court of the United States.
truth but part of an entire a^eement, which
contains utterly illegal proYisions, then this
action cannot be maintained within any of
the authOTities.
It is onlj by proving the partnership
agreement aa an entire agreement, separate
and free from the balance of the agreement
between the parties, that argument can be
made in favor of its validity. It haa been
sometimes said that where a contract, al-
though it be illegal, has been fully executed
between the parties so that nothin|^ remains
thereof for completion, if the plaintiff can
recover from the defendant moneys received
by him without resorting to the contract, the
court will permit a recovery in such case.
The cases cited as illustrating the exception
are, among others, Tenant v. Elliott (1797)
1 Bos. & P. 2; Farmer v. Russell (1798) 1
Bos. & P. 296; Sharp v. Taylor (1849) 2
[•66]Phill. Ch. 801, 817; •Armstrong v. Toler
(1826) 11 Wheat. 258, 269 [6:468, 471];
McBlair v. Oihhes, supra, 17 How. 232, 235
[15: 132, 134]; Brooks v. Martin (1863) 2
Wall. 70 [17: 732] ; Planters' Bank v. Union
Bank (1872) 16 WaU. 483 [21: 473]; Arm-
strong v. American Exchange National Bank
of Chicago (1889) 133 U. S. 433, 466 [33:
747, 759].
Upon the point as to the ability of the
plaintiff to make out his cause of action
without referring to the illegal contract, it
may be stated that the plaintiff for such pur-
pose cannot refer to one portion only of the
contract upon which he proposes to found
his right of action, but that the whole of the
contract must come in, although the portion
upon which he founds his cause of action
may be legal. Booth v. Hodgson, 6 T. R.
405, 408; Thomson v. Thomson, 7 Ves. Jr.
470; gmhrey v. Jemison, 131 U. S. 336, 348
133: 172, 177].
In the first of the above cases the plaintiff
sought to maintain his action by referring
to that part of the contract which was not
illegal, and to ask a recovery upon that
alone. Lord Kenyon, Chief Justice, observed
that it seemed to be admitted by counsel for
plaintiff "that if the whole case were dis-
closed to the court there was no foundation
lor the demahd. They say to the court,
'suffer us to garble the case, to suppress such
parts of the transaction as we please, and to
impose that mutilated state of it on the court
as the true and genuine transaction, and
then we can disclose such a case as will en-
able our clients to recover in a court of law.'
Such is the substance of this day's argument.
It is a maxim in our law that a plaintiff
must show that he stands on a fair ground
when he calls on a court of justice to admin-
ister relief to him."
lilr. Justice Ashhurst, in the same case,
taid : "The plaintiffs wish us to decide this
case on a partial statement of the facts,
thereby admitting that if the whole case be
disclosed they have no prospect of success;
but we must take the whole case together,
and upon that the plaintiffs cannot recover."
Mr. Justice Grose said: "We cannot de-
cide on a part of the case; and taking the
whole together, and assumpsit cannot be
raised from one part of the caae when the
1124
other parts *of it negatiTe
The defendant therefore had ji
In Thomson v. Thomson, s«prs, the pbia-
tiff was not permitted to recover, bccaaM kt
had no claim to the money exeept tkrovgt
the medium of an iU^al agrgjuumt, Iks
master of the roUs (Sir WiUiaai Gtbk>
said: "If the case could have
to this, that the company had paid this
the hands of a third person for the v» il
the plaintiff, he might have recovered tnm
that third person ; who jcould not have Ml
up this objection (the illegality of the eoa-
tract) as a reason for not pcrfomuof \m
trust. Tenant v. Elliott is, I think, la §■-
thority for that. But in this iostanoc it h
paid to the party; for there can be bo dilv^
ence as to th^ payment to his agent. Tha
how are you to get at it, except thiovg^ tka
agreement. There is nothing coUatenl; ii
lespect of which, the agreement ben; ml
of the question, a collateral <l^w*^«^ ariia;
as in the case of stock jobbing differcMBi
Here vou cannot stir a step bat thronr^ that
illegal agreement; and it is impoeeiUe far
the court to enforce it. I miut thentot
dismiss the bill."
And in Emhrey y. Jemison, anprt, il-
though the action was upon four negotubSt
notes, the court would not permit a leemnj
to be had upon them, because the eowide**
tion for the notes was based upon a ecctnet
which was illegal. Mr. Justice HarUa. a
delivering the opinion of the courts sai^ t^
the plaintiff could not "be permitted to tt:^
draw attention from this feature of th«t7«»-
action by the device of obtaining notei fx
the amount claimed under that illegal a|rw>
ment; for they are not founded on ajn-'irv
or independent consideration, but are nit
written promises to pay that whidk the oK>
gor had verbally agr^ to pay. They A»
not, in any just sense, oonstitvte a '
or collateral contract based upon a valid
sideraUon. Nor do they represent
of value, in the hands of the
which, in good conscience, bdongs to ite
plaintiff or to his firm. Although th« h«r>
den of proof is on the obligor to show tW
real consideration, the execution of the »•*»
could not obliterate tiie substantive fart th«t
they grew immediat^y out of, and are dirtct-
ly connected .*with, a wagetini^ contrw*
They must therefore be regarded as taintad*
with the illegality of that contract^ the Waa^
fits of which the plaintiff sedca to obcata bf
this suit. That the defendant execntad tW
notes with full knowledge of al) the facte i*
of no moment. The defense he makes it art
allowed for his sake, but to maintain the aal>
icy of the law," citing CoppM v. ITalCt
Wall. 642, 668 [19: 244, 248].
In the latter case Mr. Justice Swa^
livering the opinion of the courts saSd :
"Whenever the ill^ality appeara,
the evidence oomes from one aide or the
er. the disdoeure is fatal to the ease. 5*
consent of the defendant ean nentralia* ito
effect. A etipulatioa In the moat aol^m
form to waive the objection would b» tainted
with the vice of the original eootmct, and
void for the same reasons, Whietm the
contamination ranches H Aaatroya. TW
1T4 1I.K.
93.
MoMuLLBN y. Hoffman.
658-661
rinciple to be extracted from all the caees
, tha^t the law will not lend its support to
claim founded upon its violation."
These authorities uphold the principle that
le >vhole case may be shown, and the plain-
S cannot prevent it by proving only so
inch as mi^ht sustain his cause of action,
nid then objecting that the defendant him-
Blf brings in the balance which was not nee-
saary for plaintiff to prove.
The cases above cited ad illustrative of the
xceptions to the general rule also show
/bat is meant by the cause of action being
ounded on some new consideration, or upon
L contrQxrt collateral to the original illegal
»ne.
In Tenant v. Elliott, supra, it was held
;liat where two persons had entered into an
llegal contract in reeard to insurance, and,
k loss bavins occurred, the insured paid the
cnoney to a uiird person to be paid to plain-
tiff, the third person could not nimself retain
bbe money because it arose out of an illegal
oontract. Eyre, Chief Justice, asked "wheth-
er lie who had received the money to anoth-
er's use on an illegal contract can be allowed
to retain it, and that not even at the desire of
those who paid it to him ?**
In such case clearly the defendant had
nothing whatever to do with the illegality of
the original contract. He received •tne mon-
ey to be paid to another, and when he re-
ceived it for that purpose he promised, either
expressly or by implication arising from the
facts, that he would deliver the money to the
plaintiff, and when he refused to do it the
plaintiff could recover upon this express or
implied contract, without resorting in any
nianner to the original contract between him-
self and another, which in its nature was il-
legal, but with which the defendant was in
nowise concerned.
Farmer v. Russell, supra^ is to the same
effect. The defendant received the money
from a third person to deliver to the plain-
tiff, and it was held that he was bound to pay
it to the plaintiff, athough the original con-
sideration upon which the money was to be
paid the plaintiff by the third person was il-
legal. Eyre, Chief Justice, said: •
"It seems to me that the plaintiff's demand
arises simply out of the circumstances of
money being put into the defendant's hands
to be delivered to him. This creates an <n-
dehitatus, from which an assumpsit in law
arises, and on that action on the case may
be maintained. . . . The case therefore
is brought to this, that the money is got into
the haiMis of a person who was not a parl^ to
the contract, who has no pretence to retain
it, and to whom the law could not give it by
rescinding the contract. Though the court
will not suffer a party to demand a sum of
money in order to fulfil an illegal contract,
yet there is no reason why the money in this
cose should not be recovered notwithstand-
injr the original contract was void. The dif-
ficulty with me is, that the contract with the
carrier cannot be connected with the contract
between the plaintiff and the man at Ports-
mouth, and in that view T think the verdict is
not to be supported. However, I incline to a
new trial on another ground. It does not
174 U. S.
clearly appear that the defendant was noi
himself a party to the original contract; for
there was a oircumstanoe in the report which
gave much countenance to the idea that th»
carrier knew what he was doing, viz,, that he
was lending his assistance to an infamous
traffic. In that case, the rule Melior est con"
ditio possidentis will apply; for if the con-
tract with him be stained bv anything ille-
gal, the plaintiff shall not be heard in a court
of law."
*The verdict in this case had been for the[660X
defendant.
There was a question in the case whether
the defendant was privv to the contract be-
tween the plaintiff and the man at Ports-
mouth. The goods transported were counter-
feit pennies or half pence, and it was the
opinion of Eyre, Chief Justice, that if the de-
fendant had been privy to the original ille-
gal agreement so that the whole thing was
but one transaction, the plaintiff could not
have recovered. Mr. Justice ^ooke was of
opinion that it was not important whether
the defendant were privy or not; that if the
contract were illegal, the plaintiff could not
recover from the defendant in an^ event.
The other two judges were of opimon that
the money having been delivered to the de-
fendant for the purpose of being paid to the
plaintiff, the deienoant was bound to make
such payment without reference to the ille-
gality in the original transaction.
The difference m the principle upon which
a recovery was allowea in these two cases
and that upon which the defense in this case
is based is very dear. In the case before us
tlie cause of action erows directly out of the
illegal contract, and if the court distributes
the profits it enforces the contract which is
illegal. But where A claims money from B,
although due upon an illegal contract, and
B acknowledees the obligation and waives
the defense of illegality and pays the money
to a third party upon his promise to pay it
to A, the third party cannot successfully de-
fend an action Drought by A to recover the
money by alleging tnat the original contract
between A and B was illegal. This is the
principle aecided, and we ^think correctly de-
cided, in the cases cited. It was certainly
no business of the third party to inquire into
the reasons which impelled the person to give
him the money to pay to the plaintiff. That
was a matter between those parties, and if the
party from whom the money was due admit-
ted his indebtedness and chose to pay it, the
defendant, who received it upon his promise
to pay the plaintiff, would have no possible
defense to en action by the plaintiff to com-
pel such payment. Such an action is in no
sense founded upon an illegal contract. That
matter was closed when the party 'owing tbp[661J
money under it paid it to a third person to
be paid to the plaintiff. The action by the
plaintiff in such case is founded upon a new
contract upon a totally different considera-
tion and of a perfectly legitimate character.
The next case cited by complainant as an
authority for the maintenance of this action
is Sharpy, Taylor, supra. It was stated bv the
chancellor in that case tfliat where one of two
partners had possessed himself of the prop-
1125
Wi-SM
SUPBEMS COUBT OF THB UlOTKD StaTBB.
«rty of the firm, be could not be allowed to
retain it bj merely showing that in realizing
it some provision of some act of Parliament
bad been violated or neglected or that some
provision of a foreign statute relating to the
re^pistry of vessels had not been complied
with.
Lord Chancellor Cottenham, in the coarse
of his opinion, said:
^The violation of law suggested was not
mnj fraud upon the revenue, or omission to
pay what might be due; but, at moet, an in-
vasion of a parliamentarv provision, sup-
posed to be beneficial to the ship owners of
this country; an evil, if any, which must re-
main the same, whether the freight be divid-
ed between Sharp and Taylor, according to
their shares, or remain altogether in the
bands of Taylor. As between these two, can
this supposed evasion of the law be set up as
a defense by one against the otherwise clear
title of the other? In this particular suit,
oan the one tenant in common dispute the
title common to both? Can one of two part-
nen possess himself of the propertv of the
Arm, and be permitted to retain it, if he can
■how that, in realizing it, some provision in
some act of Parliament has been violated or
neglected T Can one of two partners, in any
Import trade, defeat the other hj showing
that there wvis some irregularitv m passing
the goods through the custom house T The
. answer to this, as to the former case, will be,
that the transaction allied to be illegal is
oompleted and closed, and will not be in any
manner affected bv what the court is asked
to do, as between the parties. Do the authori-
ties negative this view of the case? The dif-
ference between enforcing illegal contracts
and asserting title to money which has aris-
[662]<^n^ro™ them is distinctly taken in* Tenant v.
EUioti and Farmer v. Ruasell, and recognized
and approved by Sir William Grant in Thom-
90f% V. Thomaan. But the alleged illegality
in this case was not in the freight being paid
to English subjects claiming as owners of the
ship, as in Campbell v. Innea [4 Bam. & Aid.
426]. The importation of the goods in a ship
American built, and not professing to have
any English r^stry, would not be illegal,
and the American owner might assign the
freight to ejiyone; assuming this to be so,
I am of opinion that, under the authorities
referred to, Taylor, who received the freight
4>n account of himself and Sharp, cannot set
tip this defense to Sharp's claim. Upon
^ese grounds, therefore, independently of
^e submiBsion in the answer, this part of
*the decree is, I think, right."
These observations show that the judtrment
>did not fto upon the illegality arisins: from a
mere violation or neelect of a provision of an
•act of Parliament relatinf? to vessels, and the
agreement waa not classed among those con-
tracts which are of such an illegal nature
that courts refuse to enforce them. Some of
the observations of the chancellor, made bv
way of illustration regarding the rule itself,
have been since doubted by the English
eourts, as in the case of Sykes v. Beadofty au-
wra, where Jessel, master of the rolls, in hold-
ing ^at an illegal contract could not be en-
forced by one party to it as againart the other,
1126
directly or indirectly, said timi thcra
several dicta of Lord Oottanham'a In Bhian
v. Taylor, which he tiiought were aoi good
law, and the master of the n^ romarfced:
"It is no part of a ooort of justice to aid
cither in carrying out an ilkgal contract, or
in dividing the proceeds arising from an ilia*
gal contract, bcrtween the {larUes to that il-
legal contract. In my opinion, no action eaa
be maintained for the one purpose more than
for the other."
Continuing, the master of the rolls ob-
served:
"Then Lord Cottenham goes on, in Sharp
V. Taylor, to say: 'Do the aathoriiies nqg-
ative this view of the case? The differeBee
between enforcing ill^al contracts and as-
serting title to money which has arisen froia
them IS distinoUy taken in Tenant v. Elliott
and Farmer v. Kuaaell, *and recognized aa^^^
approved by Sir William Grant in Thotneon
V. Thomson,' Yes; but not in that way. I
have already explained fdiat those eases
were. Those were not cases in which one of
the two parties to an illegal contract sought
to recover from the other a ^lare of the pro-
ceeds of the illegal contract. Then he goes
on to distinguish Sharp v. Taylor in a wiy
which probiU)ly diatingulAes it from eases
which would be open to exception on tks
ffround of criminality. Those are all the au-
thorities to which I think it necessarv to re-
fer. I think the principle is dear that 70a
cannot directly enforce an illmJ oontraet,
and you cannot ask the court to assist yoa
in carrying it out. You cannot enforce it di-
rectly ; that is, by claiming damages or cob-
peneation for the breach of it, or contriba-
tion from the persons making the profits re-
alized from it."
Sharp V. Taylor should not be carried st
all beyond the facts of the case as set oat ia
the report.
In McBlair v. Oibhee, eupra, tiie qnestioa
was in relation to the validity oi an asaiga-
ment by an lusignor of his interest in an i^
le^l contract. The payment of the money
arising therefrom baa Men, subseancBtly ts
the assignment, provided for by the paity
owing it,* and the dispute arose between the
representatives of the assignor and those of
the assignee as to which were entitled to the
share originally due to the aaaignor. It
was claimed on the part of the
tives of the assignor that the original
tract being Illegal, the sale and aasignmeol
of an interest therein from him to the as-
signee was also illegal, and eonseqnefltiT
that such interest, equitable or le^aL pssset
to the assignor's executors. Mr. Jnstiec Nd*
son, however, in delivering the opinion of tht
court, said :
"But this position is not maintainsfela
The transaction, out of which the assigoiDsat
to Oliver arose, was uninfected with any ine>
gality. The consideration paid was not osly
legal, but meritorious, the relinqnishracat df
a debt due from Goodwin to hnn. Hie as*
signment was subsequent, eollatera] to. sal
wholly independent of, the illegal tiinMf
tions upon which the principal contract ass
founded. Oliver (the assignee) *vas not s[iM}
party to these timnsaetaonSy sor in any asy
174 U. &
1893.
MoMULLBH Y. HOFFXAH.
OOl-GOd
connected with them. It may be admitted
that even a uubsequent collateral contract, if
made in aid and in furtherance of the exe-
cution of one infected with illeffalitj, j>ar-
takes of its nature, and is equally in viola-
tion of law; t>ut that is not this case. OH-
ver» by the assienment, became simply owner
in the place of Goodwin, and as to any public
po'ncy or concern supposed to be involved in
the making, or in the fulfilment of such con-
tracts, it was a matter of entire indifference
to whidi it belonged. The assignee to<^ it,
liable to any defense, legal or eouitable, to
v^hich it was subject in the hanos of Qood-
ymn. In consequence of the illegality the
contract was invalid, and incapable of being
enforced in a court of justice. The fulfil-
ment depended altosether upon the voluntary
act of Mina, or of those representing him.
1^0 obligation existed, except what arose from
a senee of honor on the part of those deriving
a benefit from the transaction out of which
it arose. Its value rested upon this ground,
mad this alone. The demand was simply a
debt of honor. But if the party who might
eet up the illegality chooses to waive it, and
pay tne money, lie cannot afterwards reclaim
it. And, if even the money be paid to a third
pereon for t&e other party, sucn third person
oanmt eet up tiie illegalitT^ of the contract on
which the payment has beisn made, and with-
hold H for hhnself.''
What is meant by a collateral contract or
a cause of action arising therefrom, which
does not require reference to the principal
illegal oontmct or transaction, is still fur-
ther iUtwtrated in Armstrong v. Toler, 11
Wheat. 268 [6: 468]. In the course of his
opinion Mr. Chief Justice Marshall assumed
the facts to be that the plaintiff, during a
war between this country and Great Britain,
contrived a plan for importing goods on his
own account from the country of the enemy,
and goods were also sent to B by the same
vessel. The plfiintiff, at the request of B, be-
came surety for the payment of the duties
which acerued on the goods of B, and was
compelled to pav than, and the question was
whether he could maintain an action on the
promise of B to return this money, and the
6IS]*oourt held that such an action could be sus-
tained. The court said:
The case does not suppose A to be con-
eemed, or in any manner instrumental in
promoting the illegal importation of B, but
to have been merely engaged himself in a
similar illegal transaction, and to have de-
vised the plan for himself, which B after-
wards adopted."
And again: 'The questions whether the
plaintiff had any interest in the goods of the
defendant, or was the contriver of, or con-
cerned in, a scheme to introduce them, or
consented to become the consignee of the de-
fendant's goods, with a view to their intro-
duction, were left to the jury. The point of
law decided is, that a subsequent independ-
ent contract, founded on a new considera-
tion, is not contaminated by the illegal im-
portation, although such illegal importation
was known to Toler, when, the contract was
made, provided he was not interested in the
174 U. 8.
^oods, and had no previous concern in their
importation."
And at page 274 : ^In most of the cases
cited by the counsel for the plaintiff in er-
ror, the suit has been brought by a party to
thf^ original transaction, or on a contract so
connected with it as to be inseparable from
it. As, where a vendor in a foreign country
packs up goods for the purpose of enablinjg
the vendee to smuggle them; or where a suit
is brought on a policy of insurance on an il-
legal voyage; or on a contract which
amounts to maintenance; or on one for the
sale of a lottery ticket where such sale is
prohibited; or on a bill which is payable in
notes issued contrary to law. In these, and
in all similar cases, the consideration of the
ver>' contract on which the suit is brought
is vicious, and the plaintiff has contributed
to the illegal transaction."
The case of Armstrong v. American Ex-
change yat. Bank, supra, is similar to the
cases of Tenant v. Elliott and Farmer v. Rus-
sell, and was decided upon the same princi-
ple.
Counsel for the complainant also refer to
a case where a plaintiff had let his horse to
the defendant on Sunday, and the defendant
had injured the horse by his recklessness and
negligence, and a recovery against him was
bad for the damages 'occasioned bysuchneg-[660]
ligence, notwithstanding the illegality of the
contract of hiring, bemuse in violation of
the law relating to the Sabbath day. Hall
V. Corcoran, 107 Mass. 251 [9 Am. Rep. 30].
In that case the court held the cause of
action was not founded upon the contract,
but defendant was held liable by reason of
his improper and nep^lectful conduct in re-
gard to the horse in his possession, and which
conduct was a violation of the le^l duty he
owed to the owner of such horse, irrespective
of contract. The case was a clear instance
of a proper recovery based upon collateral
facts, ana not founded upon any original il-
legal contract.
The same principle was held in Welch y.
Wesson, 6 Gray, 505, as the damase done
plaintiff by the wilful act of defendant in
running into him with his sleigh had noth-
ing to do with the race they were engaged
in.
To the same effect is Woodman v. Eulh
hard, 26 N. H. 67 [7 Am. Dec. 310]. The
act of damage to the horse upon which the
liabilitv rested was not connected with or
part of the illegal Sunday hiring.
We think it clear that these cases cited ai
authority for a recovery in this case upon
the ground of completion of the illegal con-
tract or of a new contract upon a good con-
sideration, do not touch the case before us,
with the possible exception of Sharp v. Taff*
tor, supra, and that case ought not to be ex-
tended.
In the case at bar, the action depends upon
the entire contract between the parties, part
of which we hold was illegal. The partner-
ship part of the agreement cannot oe sepa-
rated from the rest. Tlie complainant's
claim to profits rests upon the entire con-
tract; his right is based upon that which is
illegal and utterly void, and he cannot sepa-
1127
566-669
SUPBEME COUBT OF THE UNITED STaTES.
Oct. Teb^
rate his cauno of action from the illegal part
and claim a recovery upon the written por-
tion providing for ajod efvidencing the part-
nership.
We come now to a consideration of the two
oases upon which the counsel for the com-
plainant speciaily rely for the maintenance
of this action. They are Brooks ▼. Martin,
2 Wall. 70 [17: 732], and Planters' Bank v.
rZmon Bank, 16 Wall. 483 [21:473]. Of
iWTjti^e 'two cases, Brooks v. Martin is the more
like this one, although the cases are by no
means precisely similar. The partnership in
that case was stated by the court, in its opin-
ion, to have been really engaged, probably
with the full knowledge of all its members,
in dealing in soldiers' claims long before any
scrip or land warrants were issued by the
government and contrary to the ninth sec-
tion of tlie act of February 11, 1847, provid-
ing for the granting of land warrants to be
issued to the soldiers.
The main object of the ninth section of the
act was. as the court stated, to protect the
soldiers against improper contracts of the
precise character of those shown in the rec-
ord. It was further said that the traffic for
which this partnership was formed was il-
legal, and that if a soldier who had sold his
claim to these partners had refused to per-
form his contract or to do any act which was
necessary to give them the full benefit of
their purchase, no court wOuld have com-
pelled him to do it or give them any relief
against it; or if one of the partners, after
thn siting of the articles, had said to the
other,°1 refuse to proceed with this partner-
ship because the purposes of it are ille^l,"
the other partner would have been entirely
without remedy. And if, on the other hand,
one of the partners had said, "I have bought
one hundred soldiers' claims, for which I
have agreed to pay a certain sum which I
require you to advance, according to your
contract," the other partner might have re-
fused to comply with such demand, and no
court would nave given either of the part-
ners any remedy for such refusal.
The court further stated that upon the
facts existing, all the claims purchased by
the partner naving been turned into land
warrants and the warrants having been sold
or located, and where the purchase of the
daim had been made prior to the date of the
warrant, assignments having been subse-
quently made by the soldiers, and the portion
of the lands located having been sold partly
' for cash and partly on mortgage, and the
assets of the partnership consisting then al-
most wholly of caah securities or of lands, —
all these facts appearing, the partner in
whose possession the profits of the partner-
[668Js]j|p •were could be compelled to account by
the other partner, and that the fact that
such partner had given a release procured
from nim by fraud was no bar to his action
for such an accounting.
The action was sustained upon the theory
that the purpose of the partnership agree-
ment had been fully closed and completed;
substantially all the profits arising there-
from had been invested in other securities
or in lands, and that therefore it did not lie
1128
in the mouth of the partner who had kf
fraudulent means obtained posseftsios and
control of these funds to say to the other
that the original contract was iUegaL The
wrong originally done or intended to the
soldier had been wiped out by the acta of the
soldier and his waiver of any claim by reajoa
of the illegal contract The transaction
which were illegal, the court said, had be-
come accomplished facts, and oonld not bs
affected by any action which the court might
take. The cases of Sharp v. Taylor, Temoni
V. Elliott, Farmer v. Russell, Thomson v.
Thomson, and McBlair v. Gihbes were dted
as authority for the proposition.
We have already a averted to each of them,
and we admit it is quite difiicult to see how,
with the exception of Sharp v. Taylor, the
principle upon which they were decided
could be applied to the case* then before the
court.
There is a difference between the case be-
fore us and that of Brooks v. Martin^hfCAum
in the latter case the fact existed that the
transactions, in resard to which the caue
of action was basc^, were not fraudulent,
and they related in some sense to prirate
matters, while in the case before the coart
the entire contract was a fraud and wm« il-
legal, and related to a public letting by a
municipal corporation for work involrini; a
large amount of money, and in which the
whole mimicipalitv was vitally interested.
It may be difficult to base a distinction of
principle upon these differences. We do
not now decide whether they exist or not
We simply say that taking that case into
due and fair consideration, we will not ex-
tend its authority at all bejrond the facts
therein stated. We think it should not coa-
trol the decision of the case now before at.
•In Planters* Bank v. Union Bank, supr^li
Confederate bonds had been tent by om
party to the other for sale, and the bonds
had been sold by such party as a^ent of the
plaintiff and tlieir price paid to buA afeat
of the party sellin|^, and the court held that
an action would lie to recover the proceeds
of that sale thus paid to the plainUiTsageBt,
although no suit could have been maintained
by plaintiff against the purchaser for the
purchase price of the bonds, because their
sale was an ill^fal transaction. But when
the purchafte price of the bonds was paid, it
certainly did not rest with the person who
received the money upon an express or im-
{died promise to pay it over to set up the il-
egality of the original transaction. When
the bank received the funds, there was rafsad
an implied promise to pay them to their
owner, and a recovery could be sustained
upon the same ground taken in Tenant r.
Elliott and the other cases abovie mentioned.
It is impossible to refer to all the csms
cited from the various state courts regardinc
this question. Some of them we ahouM
hesitate to follow. The cases we have eon-
mented upon we think give no snpport for
the claim that the case now before us foras
any exception to the rule which, as we be-
lieve, clearly embraces it. We most take
the whole agreement, and remember that the
174 V. &
IbOS.
XJnitbd Statu t. Dudley.
6C9-678
action is between the onginal parties to it;
that there is no collateral contract and no
new consideration and no liability of a third
party. The partnership is but a portion of
the whole agreement.
We most Uieref ore comeback to the propo-
sition that to permit a recovery in this case
ia in substance to enforce an ille^ contract,
and one which is illegal because it is against
public policy to permit it to stand. The
court refuses to enforce such a contract, and
it permits defendant to set up its illegality,
not out of any regard for the defendant who
sets it up, but oiuy on account of the public
interest. It has been often stated in similar
eases that the defense is a very dishonest
one, and it lies ill in th^ mouth of the defend-
ant to allege it, and it is only allowed for
public considerations and in order the better
to secure the public against dishonest trans-
actions. To refuse to erant either party to
l]un illegal *con tract judicial aid for the en-
forcement of his alleged rights under it
tends strongly towards reducing the num-
ber of such transactions to a minimum. The
more plainly parties understand that when
they enter into contracts of this nature they
place themselves outside the protection of the
law, so far as that protection consists in aid-
ing them to enforce such contracts, the less
inclined will they be to enter into them. In
that way the public secures the benefit of a
rigid a&erence to the law.
Being of the opinion that the contract
proved in this case was illegal in the sense
that it was fraudulent, and entered into for
improper purposes, the law will leave the
parties as it finds them.
fhe judgment of the Circuit Court of Ap-
peals vjoa right, and must he affirmed.
UNITED STATT^S, Appt.,
V.
FRANK DUDLEY.
(See S. C. Reporter's ed. 670-674.)
Duty on eawed hoards and plank.
Sawed boards and plank planed on one side,
tongued, and grooved, are to be classified as
dressed lumber and admitted free of daty an-
der Y 676 of the tariff act of August 28, 1804,
and are not dutiable under Y 181 as furniture
or manufactures of wood.
[No. 103.]
Argued April 19, 1899. Decided May 22,
1899.
ON WRIT OP CERTIORARI to the United
States Circuit Court of Appeals for
the Second Circuit to review a judgment of
that court afiirminff (by division of opinion)
the judgment of uie Circuit Court of the
United States for the District of Vermont,
reversing the decision of the board of general
appraisers, which held that sawed boards
and plank planed on one side, tongued and
T'ooved, were not entitled to \m admitted
74 U. 8.
free of duty under the tariff act of 1894, and
which Bustained the action of the collector in
imposing a dul^ of 25 per oent upon said
lumber as a manufacture of wood. Jud^
ment of the Circuit Courtof Appeals a/^rmeS.
See same case below, 45 U. S. App. 654, 79
Fed. Rep. 75, 24 C. a A. 440.
Statement by Mr. Justice Browat
This case originated in a petition filed ia
the circuit court of the Unit^ Statea for the
district of Vermont, for the review of a de-
cision of the board of general appraisers to
the effect that certain imports made by the
petitioner into the port of Newport, of
"sawed boards and plank, planed on one side,
tongued and grooved," and entered aa
"dressed lumber, were not entitled to be ad-
mitted free of duty as "sawed boards, plank,
deals, and other lumber, rough or dressed,"
under the tariff act of August 28, 1894.
In June, 1895, Dudley imported from Can-
ada eight carloads *of boards and plank,[671]
planed on one side and grooved, or tongued
and grooved. The collector imposed a duty
of twenty-five per cent upon this lumber aa
a "manufacture of wood,*' under paragraph
181 of the tariff act of August 28, 1894,
which reads as follows (28 Stat at L. 521) :
"House or cabinet furniture, of wood, wholly
or partly finished, manufactures ol wood
or of which Wood is the component material
of chief value, not specially provided for in
this act, twenty-five per centum ad valorem."
The importer protested, claiming that they
should have been imported free of duty aa
"dressed lumber" under para^aph 676.
The board of general appraisers sustained
the action of the collector, and the importer
filed this petition for review in the circuit
court, which reversed the decision of the
board. On appeal by the United States to
the circuit court of appeals, where the cause
was heard by two judges, who were divided
in opinion, the judgment of the circuit court
was affirmed.
Whereupon the United States applied for
and were granted a writ of certiorari from
this court. '
Mr. Hemry H. Hoyt, Assistant Attorney
General, for appellant.
Mr, C. A. Pronty for appellee.
*Mr. Justice Brown delivered the opin*[671]
ion of the court:
The imports in this case were eight car-
loads of spruce boards and plank, planed on
one side, and tongued and grooved. They
varied from one to three inches in thickness,
from four to eleven inches in width, and from
twelve to twenty feet in length. Some were
"butted to exact lengths." They were pre-
pared for use by what is known as a "flooring
machine," which is a combination of a simple
planing machine with a matching — or
tonguinff and grooving — ^machine. Some of
the smaller mills use separate machines for
planing and matching, the combination ma-
chine seeming to be of cwnparatively •recent[672J
origin. The boards were adaptable for floor-
ing, ceiling, sheathing, etc.
They were assessed for duty under para-
1120
e7»-«74
Supreme Court of the United Sta'
ffraph 181 of the tariff act of August 28,
1894, which imposed a duty of twenty-five
per cent ad valorem upon '^ouse or cabinet
fomiture, of wood, wholly or partly flniahed,
manufactures of wood or of which wood is
the component material of chief value, not
specially provided for in this act."
Upon the other hand, the importer insist-
ed that they should have been admitted free
<rf du^ under paragraph 676, which exempts
''sawea boards, plank, deals, and other lum-
ber, rough or dressed," except certain lum-
ber of valuable oibinet woods.
Forty-seven witnesses were examined be-
fore the board of general appraisers, twenty-
three of whom t^tified that lumber which
had been planed, grooved, tongued, or beaded
was still ''dressed lumber," even when finally
fthaped for the carpenter to put together in
roofing, fiooring, ceiling, etc., and twenty-
four testifyinp^, in substance, that the term
was only applicable to such as had been mere-
ly planed upon one or both udes, and brought
to an even thickness. It was admitted by
witnesses upon both sides that in ordering [
such articles the term "dressed lumber"
would not sufficiently describe them, and that
they were usually ordered by description or
by their specific designation, as fioorinff, etc
Ordinarily, the fa^ that an artide in the
Erocess of manufacture takes a new name
I indicative of a distinct manufacture, as
was intimated in Tide Water Oil Co. v. Unit-
ed States, 171 U. S. 210 [ante, 1S9] but
we do not think it important in this case
that "dressed lumber" is divisible into floor-
ing, sheathing, and ceiling, since sawed lum-
ber is none the less sawc^ lumber, though
in its different forms and usee it goes under
the names of beams, rafters, joista, clap-
boards, fence boards, bam boards, and tne
like. In other words, a new manufacture is
usually accompanied bv a change of name,
but a change of name does not uways indi-
cate a new manufacture. Where a manufac-
tured article, such as sawed lumber, is usable
•for a doren different purposes, it does not or-
dinarily become a new manufacture until re-
duced to a condition where it is used for one
£073]*thing onl^. So long as "dressed lumber" is
in a condition for use for house and ship
buildinff purposes generally, it is still
"dressea lumber"; but if its manufacture
has so far advanced that it can only be used
for a definite purpose, as sashes, blinds, mold-
inffs, spars, boxes, furniture, etc, it becomes
a "manufacture of wood." It follows that
the words "flooring, ceiling, sheathing," do
not under this act describe a new manufac-
ture, but rather the different purposes for
which sawed lumber may be usm. It is
much like the commercial division of lum-
ber into "selects, common, and culls," v^ich
are all lumber, but of different qualities.
None of these are in realitv new names, but
merely specifications of the more general
term "lumber." Indeed a manufacturer re-
ceiving an order for lumber could not possi-
bly fill it to the satisfaction of his customer,
without knowing the purpose for wfaidi it
was designed, or the quality desired.
The fact that "dres^d lumber" is ordered
under the names of fiooring, ceiling, sheath-
1130
ing, does not indicate tliat it k
"dressed lumber," but ratlwr tkat it s «l a
quality or width speetallr adapted ta Aoat
purposes. Had it becai ox a particalar ^mi-
ity, width, and thidmeaa, aad nn iat*
lengths which would make it nsaklc oeiyhr
the manufacture of boxes, perhaps H Eicti
be termed a "manufacture of wood* far zm
purposes of this act. It ia tree that th*
lumber in question was ia a eonditioB te te
used for fiooring without further mmaaSag-
ture, except such reductions in Icagth ■« tks
dimensions of the room might reqvire; krt
it was also usable for oeiliiig, nWathtaf mat
for similar purposes wiUi no further abva-
tions. Had it so far been changed as t» b
serviceable for only one thin^ it im
that it might be regarded aa a sq
independent manufacture, tlfeongh
case of Tide Water (HI Co. t. Uwdtmd
171 U. S. 210 [oiile, 1391, this
of some doubt. But while
upon one or both sides mmj be
lumber," we think that when
grooved it is still "dressed Inmbei,* and vt
a new and distinct manufaetnre. In sAv
words, that tonguing and grooving is aa si-
ditional dressing, but it does not Bsks is t
different arti<^ Lumber treated ia tfcn
*way is still known in the trade as Isnrilr Ct
advertised as lumber; handled as htabw '
shipped as lumber; bought and sold hf t^
thousand feet like lumbo'.
We also think that some light
prop^ construction of the words
ture of wood" in paragrapli ISI is
1^ the fact that it is used in
"house or cabinet furniture of
or partly finished," and is folio ned W ds
words "or of which wood is the
material of chief value." Hiis
cate an article "made up" of
to furniture or other artide in w%irh
is used alone or in connection with
other material. It seems to ns qvite
that it could not have been intended te
to lumber whidi had only passed
stage of planed lumber by beiiy
and grooved.
Upon the facts of the present
of opinion that the imports in
should have been daseifiea as *
her," and the judgmmU of ikm CiremU C^mi
of Appeals is therefore
LOmSVILLE TRUST COHPANT.
V,
LOUISVILLE. NEW ALBANY, h CHICA-
00 RAILWAY COMPANY e€ mL
(See 8. C. Reporter's ed. €74
Foreclosures of railroad
rights of creditors — coU
interests of unsecured
neglect which tciU not
against a foreclosure.
1. It Is a fact of CO
closoree of railroad
mean, not the dsstisctlue
of all tmt*rv«eB ^
1T4 V. ft
3L8DS.
LOUISYILLB TbUBI Co. Y. LOUIBYILLB, N. A. & C. R. Co.
67:h-07/
the mortgagor and a transfer to the mort-
gagee alone cf the full title, but that such
proceedings are carried on In the Interest of
all parties who have any rights in the mort-
gaged property, whether as mortgagee, credit-
or, or mortgagor.
S. A foreclosure which attemps to preserve
any interest or right of the mortgagor In the
property after the sale must necessarily se-
cure and preserve the prior rights of general
creditors thereof.
8. Foreclosure of a railroad mortgage by col-
Inalon between bondholders and stockholders,
for the purpose of destroying the Interests of
unsecured creditors, may be set aside on their
application as a fraud.
4. The failure of an unsecured creditor to in-
tervene at the first instant on a bill for the
foreclosure of a railroad mortgage filed in
the avowed interest of all creditors, without
taking any action to notify them or bring
them into court, will not be a fatal delay or
neglect which will prevent relief against a
foreclosure by collusion to preserve the rights
of bondholders and stockholders and to cut
off unsecured creditors.
[No. 203.]
Argued ApHl 24, 1899. Decided May 92,
1899.
ON WRIT OP CERTIORARI to the United
States Circuit Court of Appeals for the
Seventh Circuit to review a decree of that
court affirminj^ the decree of the Circuit
Court of the United States for the District
of ludiana denying an intervening petition
filed by the Louisville Trust Company
against the Louisville, New Albany, & Chi-
cago Railway Company in an action insti-
tuted by John T. Mills, Jr., in said Circuit
Court, against the Louisville, New Albany,
A Chicago Railway Company, for the ap-
pointment of a receiver of said company, and
the niaralialins of its assets, and the aacer-
taining and enforcement of the liene and pri-
orities, whether by mortgage or otherwise,
of all of the creditors of said company, its
assets, and for a division of the proceeds
among the creditors. The intervening peti-
tion prayed Uiat the decree of foreclosure and
sale entered in the cause be set aside, and
that certain mortgages be declared to be in-
valid, and that the assets of said compcwy
be declared to be a fund to be distributed
among its creditors, and for the distribution
thereof. Decrees of Circuit Court and Cir-
cuit Court of Appeals reversed, and case re-
manded to the Circuit Court, with instruc-
tions to set aside the sale, and to ascertain
whetlier there was any lesal agreement be-
tween the bondholders and the stockholders
to preserve their rights and destroy the in-
terests of unsecured creditors, and, if such
was the agreement, to refuse confirmation of
the sale until the interests of unsecured
creditors shall have been preserved, etc.
See same case below, 69 Fed. Rep. 431, and
43 U. S. App. 550, 76 Fed. Rep. 433, 22 C. C.
A. 378. and 56 U. S. App. 208, 84 Fed. Rep.
639, 28 C. C. A. 202.
Statement by Mr. Justice Brewers
(76] *The facts in the case are as follows : The
Louisville, New Albany, & Chicago Railway
174 U. S.
Company, hereinafter called the New Albany
company, in 1889 and 1890 placed a guar-
anty upon $1,186,000 of the first-mortgage
bonds of a Kentud^ railroad corporation.
In April, 1890, the New Albany company,
guarantor, commenced a suit in the circuit
court of the United States for the district
of Kentucky against divers parties claiming
to hold such bonds to have the guaranty de-
clared void. In 1894 that court rendered a
final decree, sustaining its contention, and
adjudffinff the guaranty ultra vires and void.
69 Fed. Rep. 431. From that decree the
holders of the guaranty bonds appealed to the
circuit court of appeals for the sixth circuit,
which, in June, 1896, reversed the decree of
cancelation, and held the guaranty binding.
43 *U. S. App. 550. On application of thc[676]
New Albany company the case was then re-
moved on certiorari to this court, and at the
time of the proceedings hereinafter referred
to was still undecidM. Judgment therein
has since been entered sustaining the euar-
aniy. Louisville, New Albany, d Chicago
Railway Company v. Louisville Trust Com-
pany [174 U. S. 652, ante, 1081].
After the decision* in the circuit court of
appeals, and on August 24, 1896, one John T.
Mills, Jr., commenced an action in the cir-
cuit court of the United States for the dis-
trict of Indiana, alleeing that he was a cred- ^
iter of the New Albany company to Uie
amount of $494,911.36. That company ap-
peared and confessed judgment, and an ex-
ecution was issued and returned unsatisfied.
Whereupon Mills filed his bill of complaint
in the same court, based upon this unsatis-
fied execution, and praying the appointment
of a receiver. The biu set forth the prop-
erty belongiDg to the judgment debtor the
New Albany company, alleged that its cap-
ital stock amounted to $16,000,000, of whidi
$7,000,000 was preferred; that its outstand-
ing funded debt, divided into five classes,
amounted to $7,700,000 in six per cent bonds,
and $6,100,000 in five i>er cent bonds. The
bill also alleged the existence of a floating
debt, amounting to nearly $1,000,000, con-
sisting of outstanding notes and other obli-
gations, held b^ the complainant and other
ona fide creditors. It then set forth the
guaranty of the bonds of the Kentud^ Rail-
road Company, the proceediDgs in court by
which the guaranty nad been sustained, and
averred that the officers of the defendant
company reported a diminution of current
earnings by reason of a short wheat crop and
lessen^ traffic, and that it would be imprac-
ticable to realize from the earnings after the
payment of operating expenses, taxes, and
rentals a sum sufficient to pay the shortly
accruing mortgage interest. The bill also
alleged many matters, among others the fact
that the lines of the New Albany company
were in three different states and subject to
the jurisdiction of different courts, which
seemed to justify the taking possession of
the property by a receiver to prevent its dis-
memberment or any disturbance of its cont
tinned operations as a common carrier. The
prayer of the bill was :
^"Inasmuch, therefore, as the complainant[677]
has no adequate remedy at law for the griev*
1131
3Ti-0;ii
SUPBEME COXTBT Of THS UNITED STATES.
ances hereinbefore stated, and can only have
relief in equity, he files this bill of complaint
in behalf of himself and all others Iq luce re-
lation to the said j^roperty, and prays that
due process of law issue against the defend-
ant, the LouisYille, New ^banv, & Chicago
Railway Company, and that it be summoned
to appear in this court and answer this bill,
but without oath, all answers under oath be-
ing hereby expressly waived under the rules
to stuid to and abide by such orders and de-
crees as the judges of this court mav from
time to time enter in the premises; that for
the purpose of enforcing the rights of com-
plainant and all other creditors of said in-
solvent corporation according to their due
equities and priorities, and to preserve the
unity of the said railwa;^ system as it has
been and now is maintained and operated,
and to prevent the disruption thereof by the
separate attachments, executions, or levies,
this court will forthwith appoint a receiver
for the entire railroad. . . . That the
court will fully administer the trust fund,
in which the complainant is interested as
a judgment creditor, and will for such pur-
pose marshal all the assets of said insolvent
corporation, and ascertain the several liens
and priorities existing upon the said svstem
of railways or any part thereof and the
amount due upon each and every of such
liens, whether by mortgage or otherwise, and
oiforce and decree the rights, liens, and equi-
ties of each and all of the creditors of the
said Louisville, New Albany, & Chicago Rail-
way Company, as the same may be finally as-
certained and decreed b^ the court upon the
respective claims and interventions of sev-
eral of such creditors or lienors in and to,
not only Uie said line of railroad, appurte-
nances, and equipments, or any part of them,
but also to and upon each and every portion
of the assets ana property of the said in-
solvent corporation, and that said railroad
and all the assets of such corporation shall
be sold by proper decree of the court, and the
proceeds dividedamongthe different creditors
according as their liens and priorities may
be decreed by the court, and for such other
and further relief as to. the court may seem
[678]proper and as may be necessary to * further
enforce the rights and equities of the com-
plainant and ul other creditors of such cor-
poration."
The New Albany company appeared by its
general solicitor, filed its answer admitting
the materia] allegations of the bill and inter-
posing no objections; whereupon the court
made an order appointing as receiver a gen-
tleman who was the vice president of the
company and its general manager. The or-
der of appointment was in the ordinary form
of such orders.
All of these proceedinffs, including the fil-
ing of the original complaint, the confession
of judgment, the issue and return of the
execution, the filing of the bill and the ap-
pointment of a receiver, took place on the
same day, to wit, August 24. Up to this
time there had been no default in any of the
interest due on the several series of bonds.
On November 12, 1896, the trustees in one of
the mortgages, one executed May 1, 1890,
1132
filed a bill of forecloanrey
in the payment of interest a
1896. On the same dm^ Umb
other mortgage, dated SmMnmrj I,
a similar bill, alleging desalt oa
1896. On November 24, 189«, the
application of the receiver, entered
authorizing the receiver to borrw
on receivers certificates, pay&ble out oi the
earnings, and expend the sanw in the eaa-
struction of new bridges, the r^air of fre^pbt
cars and engines, the buillastiii^ a
new alignment of track, and Uie
of engines and cars with air brakes and
matic couplers. What action
der this order is not disclosed in tbe
although the final decree provided ii
ment in advance of the bonds **oi WMf m-
debtedness of said receiver whldi has ml
been or shall not be paid ont of the
and income of the property coming
hands of said receiver.^ On the 14lh da; rf
December, 1S96, the trustee in a
executed September 1, 1894,
closure, ailing default on Di 1 1 !■!■ r X,
1896. On the 21st of December, 189ft, aa m-
der of consolidation was made of
eral foreclosure suits.
On the 28d of January. 1897. the netiti
the Louisville "Trust Companr, filed iti pK^
tition asking generally to be admitted ta if-
pear in the suit and to take <iich «tep6 %it
proceedings in its own b^ialf as it v«^t
deem necessary, whi^ petition w»s «a^
tained, and leave granted accordinHy. T\ji
petition alleged the indorsement beiet^rfw*
referred to of the bonds of the
Railway Company by the New
pany, that it, the petitioner, was the hoWf
of $125,000 of those bonds, and had
a decree adjudging the validity of the
anty.
On the same day the various parties to tte
foreclosure suits having all appeared aai
filed so far as was necessary answers ateit
ting the allegations of the bills, a. decree «as
entered foreclosing the three mortipnrr* *
suit and directing a sale of the propcrtr
On February 27, 1897, the LonisriUe Tti
Company filed a full interreaiog
verified by affidavit, setting forth
antv of the Kentudcy bonds, its
of $125,000 of them, the decree of
of appeals and the certiorari obtained fnaa
this court b;|^ the New Albany companr. tht
proceedings m the action instituted by* Jaka
T. Mills, Jr., in respect to which it alk|pd
that "the said J. T. Mills, Jr., cUimcd t» to
a creditor to the amount of $4M.911.3S^ %tf
did not disclose or discover to the covt to
his proceedinsiB that he was not a
creditor, but he was at the time. If a
itor at all, secured with collateral
the value whereof is unknown to ytynr
tioner. And the petitioner char;^ea that t^
proceedings in bciialf of the aa»d John T
Mills, Jr., were procured by the aaid Sew
Albany company for the purnoee of
ing and delaying the general or
creditors of the said company in t] .
rocnt of their debts ; ana that sinoa tke <•-
try of the said order of appointment na iki^
has been taken in the said canse, sithtt to
1T4 V. &
1898.
LouiSYiLLE Trust Co. v. Louisyillb, N. A. & C. R. Co.
679-682
ascertain or to bring into court the assets,
'which are subject to the payment of the said
debts, and no proceeding has been taken to
notify or to bring before the court the said
seneral or unsecured creditors." It then set
forth the ^Una of the foreclosure bills, tiie
entry of the decree of foreclosure, and al-
leged "that prior to the entry of the said
0]decree the 'holders of the bonds secured by
the mortgages to the Farmers' Loan & Trust
Company and the Central Trust Company
aforesaid, and the holders of the preferred
and common stock of the said Louisville,
New Albany, k Chicago Railway Company,
or a part thereof, had entered into an ar-
rangement or agreement for the purpose of
procuring the sale of the said property, its
purchase by and in behalf of the parties en-
tering into such combination and reorganiza-
tion thereof, and the issue of securities to
the said parties, including said stockholders,
without the payment of the debts and lia-
bilities of the said company, and for the pur-
pose of hindering and aelaying the said cred-
itors and with a view to prevent the collec-
tion or enforcement of such debts and lia-
bilities; and that the said decree of sale was
obtained b^ the said company and said oom-
plainants in order to carry out such unlaw-
ful purpose and to prevent the general or
unsecured creditors of the eaid company
from having an opportunity to be heard in
matters arising in the said cause."
It is also alleged that the New Albany
company was formed by consolidation, and
that one of the consolidating companies was
a corporation of Illinois and had its property
in that state; that it had no nower to enter
into such consolidation as haa been decided
by the supreme court of that state, and there-
fore that the mortgages executed by the New
Albany company and which were being fore-
closed were not liens upon so much of its
property as had belongea to the Illinois cor-
poration and was situated in ttot state. It
also claimed that under the provisions in the
mortgages there had been no such default as
justiSed a foreclosure, and prayed as fol-
lows:
"Wherefore, vour petitioner prays that the
decree of foreclosure and sale heretofore en-
tered in this cause be set aside, that the pre-
tended consolidations herein mentioned be
adjudged void, and that the said mortgages
before mentioned be declared to be invalid;
that this cause be referred to a commis-
sioner to ascertain and report what assets
of the said New Albany company are em-
braced by any liens, and what are not so
included, and the amounts and descriptions
thereof; and that, among other things, the
31]master be directed to ascertain 'what portion
of the capitiJ stock has not been paid for,
and the amounts due thereon; and that the
re<«iver herein be directed to take steps to
enforce the collection of any amounts due
to the said company; that due and proper
advertisement be given for the proof of debts,
and that said master be directed to ascer-
tain and report the names of the creditors
herein and the amounts of debts due to
them ; that it be adjudged that the said mas-
ter ascertain what net earnings have ac- '
174 Ih S.
erued, and shall hereafter accrue, from tht
operation of the said railway in the hands
of the receiver, and that the amount thereof
be adiudged and declared to be a fund to be
distributed among the general and unsecured
creditors of the said company; and that all
such other and further proceedings be had
for the sale of the assets of the said ooa^
pany and the distribution thereof, according
to law and the rights of the parties."
On the 9th of March, 1897, its petition WM
denied. On the 10th of March a sale WM
made by the master appointed therefor, and
on the same day his report thereof was filed
and the sale confirmed. An appeal wa«
taken by the Louisville Trust Cmnpany to
the court of appeals of the seventh circuit,
which appeal was argued on the 16th day
of November, 1897. On the 6th of January,
1898, the decree of the circuit court was af-
firmed. 56 U. S. App. 208. Whereupon ap-
plication was -made to this court, and the
proceedings were brought before it by cer-
tiorari.
Mes8ra, St. John Boyle and S^va^ar
Sherley for petitioner.
Messrs, Adrian H. Jollne, Herbert B.
Turner, George W, Kretzinger, and E, O.
Field for respondents.
*Mr. Justice Brewer ddivered the opin[681]
of the court:
The questions in this case are novel and
important They •arise on the foreclosure of[681]
certain railroad mortgages, and suggest to
what extent the same rules and considera-
tions obtain in them as in the foreclosures of
ordinary mortgages upon real estate. It
goes without saying that the proceeding in
the foreclosure of an ordinary noorteage on
real estate is simple and speedy, no one
need be considered except the mortgagor and
mortgagee and if they concur in the dispo-
sition of the foreclosure it is sufficient, and
the court may properly enter a decree in ac-
cordance therewith. Other parties, although
claiming rights in antagonism to both or
either mortga^r and mor^agee, may be con-
sidered outside the scope of the foreclosure,
and whatever rights they may have may
properly be relegated to independent suits.
But this court long since recognized the
fact that in the present condition of things
(and all judicial proceedings muj9t be ad-
justed to facts as they are) other inquiries
arise in railroad foreclosure proceedings ac-
companied by a receivership than the mere
matter of the amount of the debt of the mort-
ga^r to the mortgagee. We have held in a
series of cases that the peculiar character
and conditions of railroad propertv not only
justify, but compel, a court entertaining fore-
closure proceedings to eive to certain limii>ed
unsecured claims a priority over the debts
secured by the mortgage. It is nee^eas to
refer to the many cases in which this doc-
trine has been affirmed. It may be, and hai
often been, said that this ruling implies
somewhat of a departure from the apparent
priority of right secured by ac ontract obli-
gation duly made and duly recorded, and yet
Uiie court, recognizing that a railroad is not
1133
C82-68S
SUPBElfS COUBT or THE UmTKD STATES.
•imply private property, bat also an instru-
ment of public service, haa ruled that the
character of its businese, and the public ob-
lij^tione which it aeeumes, justify a limited
displacement of contract and recorded liens
in behalf of temporaiT and unsecured cred-
itors. These ccmdusions, while they to a
certain extent iniored the positive promises
of contract and recorded obli^atione, were
enforced in obedience to equitable and public
oonsideratione. We refer to these matters,
not for the sake of reviewing those decisions,
but to note the fact that foreclosure proceed-
[688]ings of mortgages covering extensive ^railroad
properties are not necessarily, conducted
with the limitations that attend the fore-
closures of ordinary real-estate mortgages.
We notice, again, that railroad mortgages,
or trust deeds, are ordinarily so larse in
amount that on foreclosure thereof only the
mortgagees, or their representatives, can be
. considered as probable purchasers. While
, exceptional cases may occur, yet this is the
rule, as shown by the actual facts of fore-
closure proceedings, as well as one which
might be expected from the value of the
property ana the amount of the mortgage.
We may not shut our eyes to any facts of
common knowledge. We may not rightfully
say that the contract of mortgage created
certain rights, and that when those rights
are established they must be sustained in the
courts, and no inquiry can be had beyond
those t^hnical rights. We must therefore
recognize the fact, for it is a fact of common
knowledge, that, whatever the legal rights
of the parties may be, ordinarily foreclosures
of railroad mortgages mean, not the destruc-
tion of all interest of the mortgagor and a
transfer to the mortgagee alone m the full
title, but that such proceedings are carried
on in the interests of all parties who have
any rights in the mortgaged property
whether as mortgagee, crediter, or mort-
gagor. We do not stop to inquire, because
uie question is not presented by this record,
whetner a court is lustified in permitting a
foreclosure and sale which leaves any in-
terest in the mortgagor, to wit, the railroad
company and its siockholders, and ought not
always to require an extinction of all the
mortgagor's interest and a full transfer to
the mortgagee, representing the bondholders.
Assuming that foreclosure proceedings may
be carriS on to some extent at least in the
interests and for the benefit of both mort-
' gagee and mortgagor (that is, bondholder
and stockholder), we observe that no such
proceedings can be rightfully carried to
consummation which recognize and preserve
any interest in the stockholders without also
recognizing and preserving the interests, not
merSy of the mortgagee, but of every cred-
itor of the corporation. In other words, if
the bondholder wishes to foreclose and ex-
clude inferior lienholders or general unse-
(684]cured creditors *and stockholders be may do
so, but a foreclosure which attempts to pre-
serve any interest or right of mortgagor in
the property after the sale must necessarily
eecure and preserve the prior rights of gen-
eral creditors thereof. This is ba^ upon the
familiar rule that the stockholder's mterest
1134
in the property is subordinate to tke r%hto
of creditors; first, of secured, and tksa ccn-
secured, creditors. And any arraageseBt of
the parties by which the subordiBaie rig^kti
and interests of the stoekboldera are mir
tempted to be secured at the cip<ii erf tks
prior rights of eith^ dass of creditoffa camm
within judicial denunciation.
Now, the intervening petition of tW pe-
titioner, duly verified, directly diarged thaS
the foreclosure proceedings were for theheaa-
fit alone of bondholder imd stockholder mmi
under an agreement between the two tar a
sale and purchase for both, and with a view
of thereby excluding from any interest ia tka
property all unsecured creditors; that tha
agreement was entered into after and ia eia-
sequence of the decree of the United Sutn
courts of appeals adjudgini; the New ABiaay
company liable on its guaranty. If that
fact oe true would it not be, and we qvote the
language of the court of appeala, ^'a tiaPSitf
upon equity proceedings?^ Oaa H be that
when in a court of law the right of aa na-
secured creditor is judicially determined aal
that judicial determination carries with it a
right superior to that of the mortgasor, tht
mortgagor and mortgagee can enter laio la
agreement by which through the fom rf
equitable proceedings all t&s right of tha
unsecured creditor may be wiped oat, tai
the interest of both mortgagor and ■srl
gagee in the property preserved and eia-
tinued? The question carries ita ova ■»
swer. Nothing of the kind can be tolerated.
Beyond the positive and verified
of the petition of the Louisville Trost
pany are many facts appearimr in tht
which strongly support this alle^tloa
a corporation whose stodc consists of SIC-
000,000, $7,000,000 of which is pref ored stact.
all of which must be expected to be wipvd
out if a mortgage interest of $13,800,M9 ii
fully asserted, hastens into court and eoa-^
fesses judgment on an alleged unsecured *lift-v
bility; on the same day responds to aa sf-
plication for a receiver and aasents thertte;
makes no effort during the recei^^ershiy ts
prevent default in interest obligations: ta«fc-
ly, at least, consents to an order made oa s^
plication of the receiver for the laeat el
$200,000 worth of receiver's certifi<«te» ia
aid of betterments on the road, when the
same sum might have paid the interest sad
delayed the foreclosure; when foinliwan
bills are filed not only makes no dewis]. b^
admits all the averments of mortgage oUk
gation and default — in other words,
debtor most willing to have all ita
destroyed, and this because of
wheat crop; these matters sug^rest, at
that there is probable truth in the
averment of the petitioner that all
by virtue of an agreement between i
and mortgagor (bondholder and stock
to preserve the relative interests of both, aal
simply extinguish unsecured indcbtedacsa
When, in addition to this fact, it appean
that these proceedings are initiated wHhia a
few days after a decree of the circuit remrt
of app^s — a decree final unless bronght ts
this court for review in its discretion Vr
tiorari; that a large amount of
174 V
LOUISYILLB TiiUftT OO. Y. L0UI8TILLB, N. A. & C. R. Co.
685-688
Lsodebtadnest was bj that decree cast upon
bSie mortgaffor, we cannot doubt that sucn a
='^>ndition of things was presented to the tilal
^lourt that it ought, in disoharffe of its obli-
g^:ations to all piu*ties interested in the prop-
i^-rty, to have made inquiry and ascertained
k.liat no such purpose as was alleged in the
L^mtervening petition was to be consummated
k>y the foreclosure proceedings.
It is said by the appellee that the Louis-
^^lle Trust Company was dilatory, and that
b^ reason thereof it was not entitled to con-
sideration in a court of equity. There is
^Kmie foundation for this contention, and yet
'twere was not such delay as justified the
<M>iirt in refusing to enter upon an inquiry.
indeed it does not appear that either the
^rcuit court or the circuit court of appeals
considered the petitioner dilatory or denied
dts application on the around of delay. It
must be borne in mind that the bill of com-
plaint filed on August 24 by one who had
'tliat da^ become, by consent of the defend-
&nty a judgment creditor, was affirms tiyely
I ''for the purpose of enforcing the 'rights of
complainant and all other creditors of said
inBofyent corporation according to their due
equities and priorities," and U> "decree the
rights, liens, and equities of each and all of
the creditors of the said Louisville, New Al-
bany, k Chicago Railway Company as the
same may be finally ascertained and decreed
by the court upon the respective claims and
interventions of several of such creditors or
lienors in and to, not only the said line of
railroad appurtenances and equipment or
any part 01 them, but also to and upon each
and every portion of the assets and property
of the said insolvent corporation."
Although this bill was filed in the avowed
iilterest of himself and all other crclitors,
no action was taken to notify any creditors
or to bring them into court to present their
several claims. Any creditor might well
haye waited, even with knowledge of what
had taken place, and after an examination
of the bill thus filed, until publication or
other notice. Whether this petitioner was,
in fact, aware of these proceedings is not dis-
closed. Even if it were, its waiting a rea-
sonable time for what in the ordinary course
of procedure all creditors had a right to ex-
pect, is not a neglect which destroys its
equities. It, and all other creditors, might
justly assume that this proceeding was in-
itiated in good faith to subject the property
of the oonunon debtor to the payment of all
its debts ; primarily it may be its secur^
debts, but also generally all its debts, secured
or unsecured, and that whenever it was nec-
essary due notice would be 'given and all
creditors called upon to present their claims.
It would not have been justified in treating
this proceeding as solely in the interest of
the mortgagee and mortgagor, the bond-
holder and stockholder, and for the purpose
of destroying all claims of unsecured credi-
tors.
It is true that the filing of the bills of fore-
closure was notice of an intent to subject the
property belonging to the mortgagor to the
satisfaction of the mortgage. And for the
purposej of the present inquiry it may be
174 U. %.
conceded that the intervening petition dl^
closed no legal defense to the daims of ths
mortflagee^ to foredoeurs. In other wor^
for the inquiry we desire to pursue we shall
assume without question that the matters
referred to in the petition in respect to the
property *in Illinois, the decison of thesu-[687]
preme court of that state and the effect of
the attonpted consolidation, and all other
matters stated or suggested, separately or
together, constitute no valid defense to ths
foreclosure bills. But this foreclosure pro-
ceeding did not either directly or by sugges-
tion disclose any purpose to protect ths
mortgagor, the stockholder, at the expense
of unsecured creditors. And, as heretofore
stated, this unsecured creditor was not
bound to presume that there was any such
purpose in the minds of the two parties to
the foreclosure. So that its failure to in-
tervene at the first instant cannot be fatal
delay or neglect.
It is also true that no evidence was offered
b^ the petitioner in support of the allega-
tions of its petition, but it is not true that
in revising and reversing the final action of
the circuit court we are acting on mere sus-
picion, or disturbing either settled rules or
admitted rights. The allegations of this in-
tervening petition as to the wrong intended
and being consummated were specific and
verified. The delay, under the circum-
stances, was not such as to deprive the pe-
titioner of a right to be heard. The facts
apparent on the face of the record were such
as justified inquiry, and upon those facts,
supported by the positive and verified allega-
tions of the petitioner, it was the duty of the
trial court to have stayed proceedings, and
given time to produce evidence in support of
the charges. Taking them as a whole, they
are very suggestive, independent of positive
allegation ; so suggestive at least, that, when
a distinct and verified charge of wrong was
made» the court should have investigated it.
We cannot shut our eyes to the nLct that
one claiming to be a general creditor for
nearly half a million of dollars commences
proceedings to establish his right, which, by
the consent of the debtor, result on the very
day in a judgment, execution, and return
thereof unsatisfied, a bill for a receivership
and the appointment of a receiver ; and yet
notwithstanding tills was initiated in sup-
port of Uiis large claim, as well as for the
protection of other unsecured creditors,
shortly thereafter foreclosure proceedings
are instituted and carried on to completion,
which absolutely ignore the rights of this
alleged 'unsecured creditor, and leave as th€[688]
restut of the sale himself the actor who has
brought on the possibility of foreclosure
stripped of all rights in and to the mort-
gaged property. Was he a real creditor,
and did that real creditor make a generous
donation of this large claim T Were ar*
rangements made with him and the stock-
holders to protect both, and by virtue of
such arrangements was this foreclosure
hastened to its close T Questions like these
whidi lie on the surface of the^e proceedings
cannof be put one side on the suggesticm
that they present only matter of suspicion.
1135
•o8-«90
SuPBEifr CouBT or the Ukited States.
Oct. T
It if no answer to the^e objecticms to say
that a bondholder may forecloee in his own
separate interest, and, after acquiring title
to the mortgaged property, may give what
interest he pleases to anyone, whether stock-
kolder or not, and so these several mortga-
Ses foreclosing their mort^ges, if proceed-
g in their own interest, if acquiring title
for themselves alone, may donate what in-
terest in the property, acquired by foreclo-
sure thev desire. But human nature is some-
thing whose action can never be ignored in
the courts, and parties who have acquired
full and absolute title to property are not as
a rule donating any interest therein to
stranffers. It is one thing for a bondholder
who has acquired absolute title by fore-
closure to mortgaged property to thereafter
give of his interest to others, and an entirely
different thing whether such bondholder, to
destroy the interest of all unsecured credi-
tors, to secure a waiver of all objections on
the part of the stockholder and consummate
speedily the forecloaure, may proffer to him
an interest in the property after the fore-
closure. The former may be beyond the
Sower of the courts to inquire into or con-
emn. The latter is something which on the
face of it deserves the condemnation of every
court, and should never be aided by any de-
cree or order thereof. It involves an offer, a
temptation, to the mortgagor, the purchase
price thereof to be paid, not by the mortga-
gee, but in fact by the unsecured creditor.
We may observe that a court, assuming in
foreclosure proceedings the charge of rail-
road property by a receiver, can never right-
fully oecome the mere silent registrar of the
[680]agreements "of mortgagee and mortgagor. It
cannot say that a foreclosure is a purely
technical matter between the mortgagee and
mortgagor, and so enter any order or decree
to which the two parties assent without fur-
ther inquiry. No such receivership can be
initiated and carried on unless absolutely
subject to the independent judgment of the
court appointing the receiver; and that
court in the administration of such receiver-
ship is not limited simply to inquiry as to
the righte of mortgagee and mortgagor,
bondholder, and stocknolder, but considering
the public interests in the property the pe-
enliar circumstences which attend large rail-
road mortgages, mast see to it that all equi-
table righte in or connected with the prop-
erty are secured.
While not intending any displacement of
the ordinary rules or righte of mortgagor
and mortga gee i n a f ored wure we bel ieve that
under the circumstences as presented by this
record there was error ; that the charge alleged
positively, and supported by many circum-
stances, of collusion between the bondholder
and the stockholder, to prevent any benefi-
eial result inuring by virtue of the decree of
the circuit court of appeals for the sixth. cir-
cuit in reference to the guaranty obligations
of the New Albany company, was one com-
pelling investigation, and the order wiU
therefore he tiMt the decrees of the Circuit
Court and of the Circuit Court of Appeale he
reversed, and the case be remanded to the
circuit court, with instructions to set aside
1136
the confirmation of sale; to
it is true as alleged thai tks
oeedings weremadeinpiimiaBeeaf
ment Mtween the bondholder aa
er to preserve the rights of both
the interests of nnwernred i
that if it shall appear that
agreement between these parties to
permit the confirmation of sale mtfl
tereste of unsecured creditors have
served, and to take such other aad
proceedings as shall be in etmbamitj
Decree accordingly.
Mr. Justice
UNITED STATES. A^pi^
V.
RIO GRANDE DAM t, IRRIGATIOX
PANT, and the Rio Grande JrhgBXim
Land Company, Limited.
(See a C. Reporter's ed. e0O-71C)
Judicial notice of naviffobUity of
what is a navigable river — a state
destroy the right of the Vnited Fit
right of general govemfnent to
navigability of navigable
appropriation of %oater for mimimg er *9
arid lands — obstructiim prohibited ly m*
of Congress,
1. The courts can take jndfelal
river Is navigable, bat not of tbe fact at
point between Its moath and Its
gability ceases : thst fact U to be
by evidence unless it Is a ssatter o£
knowledge.
2. The mere fact that logs, poles, aai
are floated down s stream
In times of high wster does aot
navigable river.
8. In the absence of spedflc antbor'*?
Congress s state cannot by its legliiifw
stroy the right of the United States ss mm
of the lands bordering on a scrsaa t»
contlnaed flow of Its wsters.
n a
4. The jurisdiction of the general
over Interstate commerce end Its aatsrml U^
waya vests In thst goveraoMat tbe rigSe >
take all needed messares to preserve t^ mt^
gablUty of the nsvlgsble wstercowss «f ite
country, even sgalnst any state actiea
6. The acts of Congress which permit tbe m^
proprlation of water In aid of mlalag
tries end for the redsmstioo of aiid
do not authorise the sppropristlea «f
waters of the sooree of aavlgabia
above the point of oavlgaMltty. to
extent as to .destroy or ssriovsly tajart
nsvlgsblllty.
6. The prohibition by tbe set of
September 10. 1890. sgalast tbe
any obstmctlon to the navigable
any waters. Includes not only sa
In the nsvlgsble portion of tbe
slso snythlng. wherever or bowewr
destroy the navigable capsctty of oa* ef a*
nsvlgsble waters of the United Stataa
[No. 216.]
Argued Vovember 7, S. tS9S* i^wiiti Vs*
8f , 189$.
174 v. &
XThitbd States y. Kio Gramdb Dam & 1. Co.
690-093
A PFBAL from a decree of the Supreme
3l Court of the Territory of New Mexico
Lffirming the decree of the District Court of
.ha Third Judicial District of New Mexico
xk m suit in equity brought by the United
States to restrain the Rio Grande Dam & Ir-
rigation Company from constructins a dam
)toroBa the Kio Grande River in the terri-
tory of New Mexico, and from appropriating
the waters of that stream for the purposes
[>f irrigation, d€terminin|^ that the Rio
Grrande River is not navigable within the
territory of Mexico, and that the United
States is not entitled to the relief asked for,
that the complaint is without equity, and
that the temporary injunction be dissolved.
Reversed, ana case remanded, ^ith instruc-
tioiifi to set aside the decree of dismissal and
to make inquiry as to whether the construc-
tion of the dain and appropriating of the
aaid wators would diminish the navigability
of the Bio Grande, and, if so, to enter a de-
cree restraining such act.
See same case below, 9 N. M. — , 61 Pac.
674.
Statement by Mr. Justice Brewers
On May 24, 1897, the United States, by
their Attorney General, filed their bill of
complaint in the district court of the third
judicial district of New Mexico against the
Hio Grande Dam & Irrigation Company, the
purpose of which was to restrain the de-
xenaant from constructing a dam across the
Bio Grande river in the territory of New
Mexico, and appropriating the waters of
that stream, for the purposes of irrigation.
A temporary injunction was issued on the
filing of the bill. Thereafter, and on the
19Ul day of Jime, 1897, an amended bill was
filed, making the Rio Grande Irri^tion &
Land Company, Limited, an additional de-
fendant, the scope and purpose of the amend-
ed bill being similar to that of the original.
The amendd bill stated that the original de-
feiiaant was a corporation organized under
the laws of the territory of New Mexico, and
L]the new defendant a corporation 'organized
under the laws of Great Britain. It was
averred that Uie purpose of the original de-
fendant, as set forth in its articles of in-
corporation and as avowed by it, was to con-
struct dams across the Rio Grande river in
the territory of New Mexico at such points
as might be necessary, and thereby "to accu-
mulate and impound waters from said river
in unlimited c^uantities in said dams and res-
ervoirs, and distribute the same through said
canals, ditches, and pipe tines." The new
defendant was charged to have become in-
terested as lessee of or contractor with the
original defendant. The bill further set
forth that the new defendant "has attempted
to exercise and has claimed the right to ex-
ercise all the rights, privileges, and fran-
chises of the said original defendant, and has
given out as its objects as said agent, lessee,
or assignee, as aforesaid, to construct said
dams, reservoirs, ditches, and pipe lines, and
take and impound the water of said river,
and thereby to create the largest artificial
lake in the world, and to obtain control of
the entire flow of the said Rio Grande and
174 U. S. U. S.. Book 43. -^ 72
divert and use the same for the purposes of
irrigating large bodies of land, and to supply
water for cities and towns, and for domestic
and municipal purposes, and for milling and
mechanical power;" "that the Rio Grande
receives no addition to its volume of water
between the projected dam and the mouth
of the Conchos river, about three hundred
miles below, and that the said Rio Grande,
from the point of said projected dam to the
mouth of the Conchos river, throughout al-
most its entire course from the latter part
to its mouth, fiows through an exceedingly
porous soil, and that the atmosphere of uie
section of the ooimtry through which said
river fiows, from the point above the dam to
tlw Gulf of Mexico is so dry that the evapo-
ra^on proceeds with great rapidity and Uiat
i)h9 impounding of tne waters will greatly
increase the evaporation, and that from these
causv but little water, after it is distributed
over |he surface of the earth, would be re-
turned to the river." The bill also averred
that tUs Rio Grande river was navigable and
had bean navigable by steamboats from its
mouth iVee hundred and fifty miles up to
the towu of Roma, in the state of Texas;
that it *was susceptible of navigation abovGr602I
Roma to a point about three himdred and
fifty miles below £1 Paso, in Texas, and then,
after stating that there were certain rapids
or falls which there interfered with naviga-
tion, it alleged navigability from El Paso
to La Joya, about one hundred miles above
Elephant Butte, the place at which it was
proposed to erect the principal dam, and that
it had been used between those points for the
fioating and transportation of rafts, logs,
and poles. The bill further alleged "that
the impounding of the waters of said river
by the construction of said dam and reser-
voir at said point, called Elephant Butte,
about one hundred and twenty-five miles
shove the city of El Paso, said point being
in the territory of New Mexico, and the di-
version of the said waters and the use of the
same for the purposes hereinbefore men-
tioned, will so deplete and prevent the fiow
of water through the channel of said river
below said dam, when so constructed, as to
seriously obstruct the navi^ble capacity of
the said river throughout its entire course
from said point at Elephant Butte to its
mouth." Then, after denying that any au-
thority had been ^ivei^ by the United States
lor the construction of said dam, it set
forth the treaty stipulations between the
United States and the Republic of Mexico in
reference to the navigaoility of the Rio
Grande, so far as it remained a boimdary
between the two nations.
To this amended bill the defendants filed
their joint and several pleas and answer.
The pleas were principally to the effect that
the site of the proposed dam was wholly
within the territory of New Mexico, and
within its arid region ; that in pursuance of
several acts of Congress the Secretary of the
Interior and the officers of the Geological
Survey had located and segregated from the
public domain a reservoir site called "38" on
the river just above Elephant Butte, and an-
other called "39" just below that point; that
1137
e«»-e95
SuPBEMs Court of the United States.
subsequently, in pursuance of another act of
Congress, these and all other reservoir sites
woi'e thrown open to corporate and private
entry; that the original defendant had ap-
plied to enter the two site^, "38'* and "89*;
[€M]that it was incorporated under the laws *of
New Mexioo and had complied with all the
laws of that territory in reference to the con-
struction of reservoirs and dams and the di-
version of waters of public streams; that it
had duly filed proof of its organization, its
maps of survey of reservoir and canals, with
the Secretary of the Interior, and had se-
cured his approval thereof in accordance
with the laws of the United States. The an-
swer admitted incorporation, the purpose to
construct a dam and reservoir at Elephant
Butte, and then proceeded, "but in so far as
that portion of said bill is concerned, which
charcee that the Rio Grande Irrigation &
Land Company, Limited, is seeking to obtain
control of the entire flow of said Rio Grande,
and to divert and use the same, these de-
' fendants state that the entire flow of the
Rio Grande during the irrigation season at
the point or points where these defendants
are seeking to construct reservoirs upon the
same, has long since been diverted and is now
owned and b^eficially used bv parties other
than theee defendants, in which diversion
and appropriation of said waters these de-
fendants have no property rights, and that
r neither one of the defendants is sedcing or has
ever sought to appropriate or divert by means
of structures above referred to, or contem-
plated diversion by means thereof, of any of
the waters of said Rio Grande usually flow-
ing in the bed thereof during the time when
the same are usuallv put to beneflcial use
by those who have heretofore diverted the
same; but on the contrary these defendants
state that it has been their intention, and
their eole intention, by means of the struc-
tures which they contemplate and which are
complained of in said bill, to store, control,
divert, and use only such of the waters of
said stream as are not legallv diverted, ap-
propriated, used, and owi^d by others, and
that these defendants have contemplated and
now contemplate that any beneficial rights
by them acquired in such stream by virtue
of such structures will be very largdy only
so acquired to the excess, storm and flood
waters thereof now unappropriated, usdess,
and which go to waste.^'
The answer also denied that the river was
sosoeptible of navigation, or had been navi-
sated above Roma, in the state of Texas, or
had been used beneflcially for the purposes
of navigation in the territory of New Mexico,
[M4]or was susceptible *of being so used ; that the
oontemplatea use of the waters would deplete
the flow thereof through the channd so as
to seriously obstruct the navigability of the
river at any point below the proposed dam;
that defendants were proposing to construct
a dam and reservoir without due process ol
law, or that the contemplated dam and res-
ervoir would be a violation of our treaties
with Mexico. The United States flled a gen-
eral replication. Defendants moved to dis-
solve the temporary injunction, while the
government moved to have the several pleas
1138
bin
set down for argument as tojftcir
ciency as a defense. Several
documents were filed by tbe
ties. On July 31, 1897» tiie
tm for hearing, whereapon Hm
tered a decree, whidi rei ~
ties appeared by th^r rnwf I
rale heretofore made upon tibc
Rio Grande Dam & Irrigatioa
to show cause, if any It
injunction, heretofore granted,
it from maintaining uid
in the Rio Grande river at a
Elephant Butte, fully described in t^
inal and amended bills, filed
said order, should not be
the said complainant, the United
America, havmj^ filed aa amcadi
said cause, making the Rio Graade
k Land C<nnpany, Limited, a party
imder, and the said defendant, xa
said amended bill, having filed
in bar and having also answered said
ed bill and also filed
dissolve the injunctloii and to
the - original and amended bOb
filed by complainant
complainant tdiereupon ^
motion to set down aefendants* pleas
gument as to their suflSciency
said suit as a matter of law, and the
having heard the arguments ci
having read the siBdavits, ea
logical reports, agricultural
of engineers and of the Secretary ef Wi
histories and other soorcea of i
and having had submitted to it
map of the territory of Kew
the United States of Americ
source, trend, course, and movtk of tW
Grande river in New Mi
out the United States, and beiw fnlly *
vised thereby, doth take judicial newt
the fact, and doth thereliy detennii
the Rio Grande river is not navigaUe
the territory of New Mexieo. and dotk
as a matter of law, that said aoMndei
does not state a case entitling tte
ant to the relief asked for in tte prayw rf
said amended bill, and that tlie aaaw fo «i*^
out equity, and, the complainant bavinf fw-
ther declinedtoamend said bill, tbeeovldrii
order, adjudge, and decree, that the tmii »
junction, heretofore issued, herein be 4i»>
solved, and that said cause be. and tW mam
hereby is, dismissed, and that the
have and recover their reasonable
in to be taxed against eomplainant^*
An appeal was taken to Uie sapiiM
of the territory, whidi. on Jannary S, I
affirmed the decree. From this i
the United States appealed to tUs
iff. Jokn W. Oiicss, Attorney
for appellant.
Mr, J. K. M eOowam for appsDea.
delivered tke epl*^^
sf tte
*Mr. Justice
ion of the court:
The first ouestloa is as to the
decision of tne trial eourt and what
fore presented to us for consideration. W»
this a final hearing upon pleading* slsaa.
174 V.t.
Uhitbd States y. Rio Orandb Dam & I. Co.
693-aU8
vritli all tiM facto alleged in the answer ad-
Daitted to ba true, or a final hearing upon
pleadings and pnx^ with the decree in effect
Dudinjg the truth of those facto T Without
shopping to inquire whether the record shows
A. strict compliance with the technical tules
cȣ ^^^ procedure, we think the terms of
tixB final order or decree, as well as the lan-
£rnage of the opinion filed by the trial judge,
clearly discloee what he decided, and what,
Uierefore, is presented to this court for re-
view. It appears that no depositions were
"taken. Certain afBdavito and documento
-v^eace filed, matter proper for presentation on
clu application for the continuance or dlssolu-
t^ion of a temporary injunction. The final
[order or decree enumerates *the different mo-
tions, and adds that the court having heard
tihe argumento of counsel and having read
tlie affidavito, etc., 'doth take judicial notice
of the fact and doth thereby determine that
tlie Rio Grande river is not navigable within
tbe territory of New Mexico, and doth find,
SLS a matter of law, that said amended bill
does not state a case entitling the complain-
ant to the relief asked for in the prater of
fiaid amended bill, and the same is without
equity, and the complainant having further
declined to amend said bill," the injunction
is dissolved and the bill dismissed.
Obviously, the only matter of fact which
the court attempted to determine (and that
determination appears to have been based
Sartly upon the affidavits and documento
led and partly upon judicial notice) was
that tflie Rio Grande river was not navigable
within the limito of the territory of New
Mexico, and, so determininf^, it adjudged
and decreed thatf the complainant's bill was
without e(^uity. In other words, finding
that the Rio Grande river was not naviga-
ble within the limito of the territorv of Jsew
Mexico, and that the avermento of the bill
in that respect were not true, it held that,
conceding all the other avermento of the bill
to be true, the plaintiff was not entitled to
relief.
The supreme court of the territory, as ap-
pears from ito opinion, held that the Rio
Grande river was not navigable within the
limito of the territory of New Mexico; that,
therefore, the United Stotes had no jurisdic-
tion over tbe stream, and that, assuming ito
non-navigability within the limits of the ter-
ritory, the plaintiff was not, under the other
facto set foilh in the bill, entitled to any re-
lief. Whatever criticisms may be expressed
ms to the form In which the proceedings were
bad and the decree entered, these distinctly
appear as the matters decided by the trial
and supreme oourto, and to them, therefore,
our inquiry should run.
The trial court assumed to take judicial
notice that the Rio Grande was not naviga-
ble within the limito of New Mexico. "Die
right te do this was conceded by the counsel
for the government, on the hearing below, a
'•oncessfon which the Attorney General, on
7] he argument before us, declined to 'continue.
rhe extent to which judicial notice will go
is not, in all cases, perfectly clear. There
are indisputably certoin matters as to which
there is a legal imputotlon of knowledge.
174 v. S.
In Qreenleaf on Evidence, sees. 4, 5 And G,
the author enumerates many of these. Fur-
ther, he adds as a general proposition : "In .
fine, oourto will generally take notice of
whatever ought to be generally known with-
in the limito of their jurisdiction.*' Brown
V. Piper, 91 U. S. 37 [23: 200]. While this
will undoubtedly be accepted as an accurate
stotement of the law, it is obvious that
there might be, and in fact there is, much
difficulty in determining what ought to be
generally known. So that the application of
this rule has, as might be expected, led to
some conflict in the authorities.
It was said in The Apollorif 9 Wheat. 362-
374 [6: 111-114] : "It has been very justly
observed at the bar that the court is bound
to toke notice of public facto and geograph-
ical positions." In Peyroux v. Howard et al,
7 Pet. 324 [8: 700], the court held that it
was "authorized judicially to notice the sit-
uation of New Orleans for the purpose of
determining whether the tide ebbs and fiows
as high up the river as that place.'' In The
Montello, 11 Wall. 411-414 [20: 191, 192], it
was observed: "We are supposed te know
judicially the principal features of the ge-
ography of our country, and, as a part of it,
wnat streams are public navigable waters of
the United Stotes." But the force of this
general statement is qualified by the declara-
tion at the close of the opinion: "As the de-
cree must be reversed ana the cause remanded
to the court below for further proceedings,
the parties will be able to present, by new
allegations and evidence, the precise char-
acter of Fox river as a navigable stream, and
not leave the matter to be inferred by con-
struction from an imperfect pleading."
This case came again to this court ( 20 Wall.
430 [22 : 391] ) , and the record there discloses
that testimony was introduced on the second
hearing for the purpose of throwing light
on the question of navigability.
In Wood V. Fowler, 26 Kan. 682-687 [40
Am. Rep. 330], the supreme court of that
stote said : "Indeed, it would seem absurd
to require evidence as to that which every
man of common 'information must kno\v.[608]
To attempt to prove that the Mississippi or
the Missouri is a navigable stream would
seem an insult to the intelligence of the
court. The presumption of general knowl-
edge weakens as we pass to smaller and less
known streams; and yet, within the limito
of any stote the navigibility of iits largest
rivers ought to be generally known, and the
courto may properly assume it to be a mat-
ter of general kncwledge and toke judicial
notice hereof."
It is reasonable that the courto toke JU'
dicial notice that certoin rivers are nav^
igable and others not, for these are matters
of general knowledge. But it is not so clear
that it can fairly be said, in respect to ft
river known to be navigable, t^at it is,
or ought to be, a. matter of common
knowl^ge at what particular place be-
tween ito mouth and its source navigability
ceases. And so it may well be doubted
whether the courto will toke judicial notice
of that fact. It would seem that such a ma^
ter was one requiring evidence and to be de-
1139
098-701
SiTPBEKE Court or thk United states.
CX^ Tj
termined by proof. That the Rio Grande,
fipeaking generally, is a navigable river is
Clearly shown by .the affidavits. It is also a
matter of common knowledge, and therefore
the courts may properly take judicial notice
of that fact. But how many know how far
up the stream navigability extends? Can
it be said to be a matter of general knowl-
edge, or one that ought to be generally
known? If not, it should be determined by
evidence. Examining the affidavits and oSher
evidence introduced in this case, it is dear
to us that the Rio Grande is not navigable
within the limits of the territory of New
Mexico. The mere fact that logs, poles, and
rafts are floated down a stream occasionally
and in times of high water does not make
it a navigable river. It was said in The
Montello, 20 Wall. 430, 439 [22: 391, 394],
"that those rivers must be regarded as pub-
lic navigable rivers in law which are nav-
igable in fact. And they are navigable in
fact when they are used, or are susceptible
<Mf being used, in their ordinary condition, as
highways for commerce, over which trade
and travel are or may be conducted in the
customary modes of trade and travel on
water." And again (p. 442 [22:394]):
"It is not, however, as Chief Justice Shaw
said [Rowe v. Cfranite-Bridge Corp.] 21 Pick.
|V99]344^ 'every small creek in "which a fishing
skiff or gunning canoe can be made to float at
high water, which is deemed navigable, but in
order to . . . give it the character of a
navigable stream, ... it must be gen-
erally and commonly useful to some pur-
pose of trade or apiculture.'"
Obviously, the Rio Grande within the lim-
its of New Mexico is not a stream over which
in its ordinary condition trade and travel
can be conducted in the customary modes of
trade and travel on water. Its use for any
purposes of transportation has been and is
exceptional, and only in times of temporary
high water. The ordinary flow of water is
insufficient. It is not like the Fox river,
which was considered in the Montello, in
which was an abundant flow of water and a
general capacity for navigation along its en-
tire length, and although it was obstructed
at certain places bv rapids and rocks, yet
these difficulties could be overcome by canals
and locks, and when so overcome womd leave
the stream in its ordinary condition suscep-
tible of use for general navigation purposes.
We are not, therefore, disposed to question
the conclusion reached by the trial court and
the supreme court of the territory, that the
Rio Grande within the limits of New Mexico
is not naiigable.
Neither is it necessary to consider the
treaty stipulations between this country and
Mexico. It is true that the Rio Grande, for
several hundred miles above its mouth, forms
-the boimdary between this country and Mex-
ico, and that the seventh article of the treaty
between the United States and Mexico of
February 2, 1848 (9 Stat at L. 928), stipu-
lates that "the River Gila and the part of the
Hio Bravo del Norte lying below the southern
iMundary of New Mexico beinff, agreeably to
the flfth article, divided in uie middle be-
tween i^e two Republics, the navigation of
the Gila and of the Bravo bdow
ary shall be free and oommoB to tbe
and citizens of both oountneB, sad
shall, without the consent of tke
struct any work that may impede
rupty'in whole or in part, the exereifle a<
right, not even for the purpose of im
new methods of navigatioii.
stipulations contained in the _
shall *not impair the territocial
either Republic within ita cetabi
its." But by the fourth article of tlie
den treaty of. December 30, 1853 (10
L. 1034), it waa provided that *tbe
provisions, stipulationa, and
tained in the eeventh article of the
Guadalupe Hidalgo shall remain
only so lar as regards the Rio Bravo M
Norte, below the initial of the wmid hammkKj
provided in the first artide oi tkis traa37»
that is to say, below the interseetioB of the SI
degree 47' 30^ parallel of latitude, vitk Urn
boimdary line established bj the late Umtf
dividing said river from its month npwai4m
according to the fifth arti^e of the trea^ if
Guadalupe." And on December 26, 18M. a
convention was conduded between the Uaitai
States and Mexico (26 Stat, at L. 151f >«
which provided for an intematioaal honni-
ary commission, to which waa given, by aii>
icle five, the power to inquire, npon tarn'
plaint of the local authoritiea» whiths
works were beinff constructed in tht fit
Grande prohibited by any prior treaty ^^^if^
lations. There is no suggestion in the (9
that any action by these coaunissionsrB wm
invoked, although it appears from one of Iks
affidavits that uie commission has
constituted. Now it is ddmted by
whether the construction of a dtm, at lis
place named in New Mexico, a plaee wha4f
within the territorial jurisdienon of lis
United States, is a violation of any ef tks
treaty stipulations above referred
being, primarily at least, limited to that
tion of the river which forms the
line between the two nations; and
whether the fact that the Rio Grands is
tially within the limits of Mexico
that nation, under the rules of
law, any right to complain of the total s^
propriation of its waters for legitinate sis
of the people of the United States. Sndk fn»
tions mi^ht under some circnmstaaee* he m-
teresting and important; but here tht tt»
Grande, so far as it is a navigable strsaa. fia
as mudi within the territory of the Uaiftpi
States as In that of Mexioo, it befnf . «he«
nsvigable, the boundary between the tve na-
tions, and the middle of the <*^Jitf< Wte
the dividing line. Now, the cbHigmtimm
the United States to preserve for thctr evi
citizens the 'navigability of its nariciSV
waters is certainly as great as any artsinr W
treaty or intemationu law to other aatiw
or their citiz^is, and if the propo*^ daa sa<
appropriation of the waters of th^RioOrmnii
constitute a breach of treaty oblifratinni «r
of international duty to Mexico, they si»
constitute an egual iniury and annn ts the
people of the United States.
We may, therefore, properly limit onr ln>
quiry to the effect of tlie proposed dam sad
1T4 v. &
Unitbd Statss y. Rio Gbakdb Dam & 1. uo.
701-70a
a^pfiropriation of waters upon the navigabil-
i^ of the Rio Grande^ and, in oaae such pro^
posed action tends to destroy such naviga-
bUitjy the extent of the right of the govern-
ment to interfere. The intended oonstruc-
tion of the dam and impounding of the wa^
tar are charged in the bill and admitted in
the answer. The bill further charges that
the purpose is to obtain control of the entire
flow ci the river, and divert and use it for
irrigation and suppljring waters for munici-
pal and manufacturing usee; that, by rea-
son of the porous soil, the dr^ atmosphere
ajid consequent rapid evaporation, but little
water thus taken from the river and dis-
tributed over the surface of the earth will
ever be returned to the river, and that this
appropriation of the waters will so deplete
MM prevent the flow of water through the
channel of the river below the dam as to
eeriouslj obstruct the navi^ble capacity of
the river throughout its entire course even to
its mouth. The answer, while denying an
intent to appropriate all the waters of the
Rio Grande, states that the entire flow, dur-
ing tike irrigation season, at the point where
ddendants propose to construct reservoirs,
had long since been diverted, and was owned
and beneficially used by parties other than
defendants, that they did not seek to disturb
such appropriation, but that their sole in-
tention was to appropriate only such waters
as had not alreaay been legally appropriated,
and that the beneficial rights to be acquired
in the stream by virtue of the structures
would be vei7 largely only' so acquired from
the excess, storm waa fiood waters now un-
appropriated, useless, and going to waste. In
other words, the bill charges that the defend-
ants, at the places where they proposed to
02]ccnstruct their dam, ^intend thereby to ap-
propriate all the waters of the Rio Grande,
and defendants oualify that charge only so
far as they say tnat most of the flow of the
river is already appropriated, and th^ only
propose to take the balance. The bill charges
that such appropriation of the entire flow
will seriously oostruct the navifi^ility of
the river from the place of the dam to the
mouth of the stream. The defendants deny
this, but as the court found that there was
no equity in the bill, and dismissed the suit
on that ground, we must for the purposes
of this inquiry assume that it is true, that
defendants jure intending to appropriate the
en tiro unappropriated flow of the Rio Grande
at the place where they propose to construct
their dam, and that such appropriation will
seriously affect the navigability of the river
where it is now navigable. The right to do
this is claimed by defendants and denied by
the government, and that, generally speak-
ing, is the question presented for our con-
sideration.
The unquestioned rule of the common law
was that every riparian owner was entitled
to the continued natural flow of the stream.
It is enough, without other citations or quo-
tations, to quote the language of Chancellor
Kent (3 Kent, sec. 439) :
"Everv proprietor of lands on the banks of
a river has naturally an equal right to the
use of the water which flows in uie stream
174 V. S.
adjacent to his lands, as it was wont to run
(ourrere aolehai) without diminution or
alteration. No proprietor has a right to
use the water, to the prejudice of other pro-
prietors, above or below him, imless he has
a prior right to divert it, or a title to some
exclusive enjovment. He has no property in
the water itself, but a simple usufruct while
it passes along. Aqua currit et debet cur-
rere ui ourrere aolehat is the language of the
law. Thou|^h he may use the water while it
runs over his land as an incident to the land
he cannot unreasonably detain it, or
give it another direction, and he must re-
turn it to its ordinary channel when it leaves
his estate."
While this is undoubted, and the rule ob-
tains in those states in the Undon which have
simply adopted the common law, it is also
true that as to every stream within its do-
minion *a staie mav change this common-law[703|
rule and permit tne appropriation of the
flowing waters for such purposes as it deems
wise. Whether this power to change the
common-law rule and permit any specific and
sepsrate appropriation of the waters of a
stream belongs also to the legislature of a
territory, we do not deem it necessary for
the purposes of this case to inquire. We con-
cede, arguendo, that it does.
Although this power of changing the com-
mon-law rule as to streams within its domin-
ion undoubtedly belongs in each state, yet two
limitations must be recognized: First, that
in the absence of specific authority from Con-
gress a state cannot by its legislation de-
stroy the right of the United States, as the
owner of lands bordering on a stream, to the
continued flow of it^ waters; so far at least
as may be necessary for the beneficial uses
of the government property. Second, that
it is limited by the superior power of the
general government to secure the uninter-
rupted navigability of all navigable streams
within the limits of the United States. In
other words, the jurisdiction of the general
government over interstate commerce and its
natural highways ve^ts in that government
the right to take all needed measures to pre-
serve 5ie navigability of the navigable water-
courses of the countrv even against any state
action. It is true tiere have been frequent
decisions recognizing the power of the state,
in the absence of congressional legislation,
to assume control of even navigable waters
within its limits to the extent of creating
dams, booms, bridges, and other matters
which operate as obstructions to navigabil-
ity. The power of the state to thus legislate
for the interests of its own citizens is con-
ceded, and until in some wav Congress as-
serts its superior power, and the necessity
of preserving the general interests of the
people of all the stotes, it is assumed that
state action, although involving temporar-
ily an obstruction to the free navigability of
a stream, is not subject to challenge. A
long list of cases to this effect can be found
in the reports of this court. See, among
others, the following : Wilson v. Black Bird
Creek Marsh Co, 2 Pet. 245 [7 : 412] ; Oilman
V. Philadelphia. 3 Wall. 713 [18:96]; Es-
eanaha Co, v. Chicago, 107 U. S. 678 [27:
1141
r03-706
SUPBEMK COUBT OF THS UNITED StATBS.
442] ; Willametie Iron Bridge Co. ▼. Hatch,
126 U.S. 1 [31: 629].
[T04] *A11 this proceeds upon the thought that
the nonaction of Congress carries with it an
implied aasent to the action taken bj the
state.
Notwithstanding the unquestioned rule of
the common law in reference to the right of
a lower riparian proprietor to insist upon
the continuous flow of the stream as it was,
and although there has been in all the west-
em states an adoption or recognition of the
common law, it was early devdoped in their
history that the mining industry in certain
states, the reclamation of arid lands in others,
compelled a departure from the common-law
ride, and justified an appropriation of flow-
ing waters both for mining purposes and for
the reclamation of arid lands, and there has
come to be recognized in those states, by cus-
tom and by state legislation, a different rule
— a rule which permits, imder certain cir-
cumstances, the appropriation of the waters
of a flowing stream for other than domestic
{>urposes. So far as those rules have only a
ocal significance, and affect only questions
between citizens of the state, nothing is pre-
sented which oalls for any consideration by
the Federal courts. In 1866 Congress passed
the following act (14 Stat, at L. 253, chap.
262; Rev. Stat 2339):
"Whenever, by priority of possession,
riffhts to the use of water for mining, agri-
eiutural, manufacturing, or other purposes,
have vested and accru^, and the same are
recognized and acknowledged by the local
customs, laws, and the decisions of courts,
the possessors and owners of such vested
rights shall be maintained and protected in
tl^ same; and the right of way for the con-
struction of ditches and canals for the pur-
poses herein specified is acknowledged and
confirmed; but whenever any person, in the
construction of any ditch or canal, injures
or damages the possession of any settler on
the public domain, the party committing
such injury or damage shall be liable to the
party injured for suoh injury or damage."
The effect of this statute was to recognize,
so far as the United States are concerned,
the validity of the local customs, laws, and
decisions m courts in respect to the appro-
priation of water. In respect to this, in
Broder f, Natoma Water d Min, Company,
101 U. S. 274, 276 [25: 790, 791], itwassaid:
[T06] *'1t is the established doctrineof this court
that rights of miners, who had taken posses-
sion of mines and worked and developed
them and the rights of persons who had con-
structed canals and ditches to be used in min-
ing operations and for purposes of agricultu-
ral irrigation, in the region where such arti-
ficial use of the water was an absolute ne-
cessity, are rights which the government had,
by its conduct, recognized and encouraged
and was bound to protect, before the passage
of the act of 1866. We are of opinion that
the section of the act which we have quoted
was rather a volimtary recognition of a
pre-existing right of possession, constituting
a valid claim to its continued use, than the
establinhment of a new one."
In 1877 an act was passed for the sale of
1142
desert lands, which contained in its first
tion this proviso (19 Stat, at L.
107):
"Provided, however. That tke rig^ ts tts
use of water by the persona so condufti^ Os
same on or to any tract of desert laad «f mk
hundred and forty acres shall depend^
bona fide prior appronriatioB ; aad
right shall not exceed the amovntt of
aotually appropriated and neeesearil
for the purpose of irrigation
tion; and all surplus water over and
such actual appropriation and vm
with tne water of all lakes, rivers,
sources of water supply upon the public haii
and not navigable, snail remain and be hrii
free for the appropriation aad use ef the
public for irrigation, mining, a»d euiefM
turing purposes subject to existing ri^la*
On Mardi 3, 1891, an act wai
pealing a prior act in respect to
ture, tht eighteenth section of
vided (26 Stat, at L. 1101) :
"That the right of way thro^eli the
lands and reservations of the United
is hereby, granted to any canal or ditdi
pany fonrod for the purpose of
and duly organized under the laws sjf
state or temtoiy which shall have fisi
may hereafter file, with the Secretary sf As
Interior a copy of its articles of
tion, and due proofs of its o
the same, to the extent of
pied by the water of the reserrour and sf tkt
canal and its ^Uuterals, and fifty feet am
side of the marginal limits thereof; alas thi
right to take, from the onblie lanls
to the line of the osaal or dit^
earth, and stone necessary for the
lion of such canal or ditch : Proridetf,
no such right of way shall be so located ss
io interfere with the proper oecnpaBoe W
the government of any sudi reserraties, sai
all maps of location shall be subject to te
approval of the department of tJie gmws
ment having jurisdiction of sndi reserfBii«»
and the privilege herein granted ahaU aot ki
construed to interfere with the eoatrol sf
water for irrigation and other parpoees i»>
der authority of the respective states or ti^
ritories."
Obviously by these acts, so far as they sfr
tended. Conferees recognized and ease
the appropriation of water in contra
of the common-law rule as to ooBtanoo
To infer therefrom that Congress' inteBded to
release its control over the navigable stresHS
of the ooimtry and to grant in aid of mtaiic
industries and the recuunatioB of arid laais
the right to appropriate the waters am tks
sources of navigable streams to sneh an cr
tent as to desUoy their naviffahflity. b «s
carry those statutes beyond mat tMr flrir
import permits. This legislatioB most bet^
terpreted in the light of existing fsrtt t\mk
all through this mining region in the wsst
were streams not navigable, wLoee walsn
could safely be appropriated for miBiag nd
agricultural industries, without seiiiws la*
terference with the navigability ef the jiwen
into which those waters flow. And in ra^
crence to all these cases of purely loeal lalsf
est the obvious purpose of OongTies was ts
United States ▼. Rio Gbandb Dam & I. Co.
706-709
give its assent, so far as the public lands
vrere concerned, to any system, although in
eontravention to the common-law rule, which
f permitted the appropriation of those waters
or legitimate industries. To hold that Con-
press, by these acts, meant to confer upon any
state the right to appropriate all the waters
of the tributary streams which unite into a
navigable watercourse, and so destroy the
navigability of that watercourse in deroga-
tion of the interests of all the people of the
XJnited States, is a construction which can-
not be tolerated. It ignores the spirit of the
^lle^slation *and carries the statute to the
verge of the letter and far beyond what under
the circtmistances of the case must be held
to have been the intent of Congress.
But whatever may be said as to the true
intent and scope of these various statutes,
we have before us the legislation of 1800. On
September 19, 1890, an act was passed con-
taining this provision (26 Stat, at L. 454,
sec. 10) :
"That the creation of any obstruction, not
affirmatively authorized by law, to the navi-
gable capacity of any waters, in respect of
which* the United States has jurisdiction, is
hereby prohibited. The continuance of any
* such obstruction, except bridges, piers, docks,
and wharves, and similar structures erected
for business purposes, whether heretofore or
hereafter ereatea, shall constitute an offense,
and each week's continuance of any such ob-
struction shall be deemed a separate offense.
Every person and every corporation which
ehall be guilty of creating or continuing any
such unlawful obstruction in this act men-
tioned, or who shall violate the provisions of
the last four preceding sections of this act,
shall be deemed guiltv of a misdemeanor, and
on conviction thereof shall be punished by a
fine not exceeding five thousand dollars, or
by imprisonment (in the case of a natural
person) not exceeding one year, or by both
such punishments, in the discretion of the
court ; the creating or continuing of any un-
lawful obstruction in this act mentioned may
be prevented, and such obstruction may be
caused to be removed, by the injunction of
any circuit court exercising jurisdiction in
any district in which such obstruction may
be threatened or may exist; and proper pro-
ceedings in equity to this end may be insti-
tuted under the direction of the Attorney
General of the United States."
As this is a later declaration of Congress,
80 far as it modifies any privileges or rights
conferred by prior statutes, it must be held
controlling, at least, as to any rights attempt-
ed to be created since its passa^; and all
the proceedings of the appellees in this case
were subsequent to this act. This act de-
clares that "the creation of any obstruction,
not affirmativeljr authorized by law, to the
08]navifable capacity of any * waters in respect
to ^ich the Upited States has jurisdiction,
is hereby prohibited." Whatever may be
said in reference to obstructions existing at
the time of the passage of the act, under the
authority of state statutes, it is obvious that
Congress meant that thereafter no state
should interfere with the navigability of a
stream without the condition of national as-
174 U. S.
sent. It did not, of course, disturb any of
the provisions of prior statutes in respect to
the mere appropriation of water of non-navi-
gable streams m disregard of the old com-
mon-law rule of continuous flow, and its only
purpose, as is obvious, was to affirm that as
to navigable waters nothing should be done
to obstruct their navigability without the as-
sent of the national government. It was an
exercise by Congress of the power, oftentimes
declared by this court to belong to it, of na-
tional control over navigable streams; and
various sections in this -tatute, as well as in
the act of July 13, 1892 (27 Stat, at L. 88,
110), provide for the mode of asserting that
control. It is ur^ed that the true construc-
tion of this act limits its applicability to
obstructions in tfie navigable portion of a
navigable stream, and that as it appears that
although the Rio Grande may be navigable
for a certain distance above its mouth, it is
not navigable in the territory of New Mex-
ico, this statute has no applicability. The
language is general, and must be ^iven full
scope. It is not a prohibition of any ob-
struction to the navigation, but any obstruc-
tion to the navigable capacity, and anything
wherever done or however done, within the
limits of the jurisdiction of the United States
which tends to destroy the navigable capac-
ity of one of the navigable waters of the
United States, is within the terms of the
prohibition. Evidently Congress, perceiving
that the time had come when the growing
interests of commerce required that the navi-
gable waters of the United States should be
subjected to the direct control of the national
fovernment, and that nothing should be done
y any state tending to destroy that navi-
gability without the explicit assent of the
national government, enacted the statute in
question. And it would be to improperly
ignore the scope of this language to limit it
to the acts done within the very limits of
navigation of a navigable stream.
•iSie creation of any such obstruction may[709]
be enjoined, according to the last provision
of the section, by proper proceedings in equity
under the direction of the Attorney General
of the United States, and it was in pursuance
of this clause that these proceedings were
commenced. Of course, when such proceed-
ings are instituted it becomes a question of
fact whether the act sought to be. enjoined
is one which fadrly and directly tends to ob-
struct (that is, interfere with or diminish)
the navigable capacity of a stream. It does
not follow that the courts would be justified
in sustaining any proceeding by the Attorney
General to restrain any appropriation of the
upper waters of a navigable stream. The
question always is one of fact, whether such
appropriation substantially interferes with
the navigable capacity within the limits
where navigation is a recognized fact. In
the course of the argument this suggestion
was made, and it seems to us not unworthy
of note, as illustrating this thought. The
Hudson river runs within the limits of the
state of New York. It is a navigable stream
and a part of the navigable waters of the
United States, so far at least as from Al-
bany southward. One of the streams which
1143
7ou-;ij
Supreme Coubt of the Ukitkd States.
flows into it and contributes to the volume
of its waters is the Croton river, a non-navi-
gable stream. Its waters are taken by the
state of New York for domestic uses in the
city of New York. Unauestionablj the state
of i^ew York has a right to appropriate its
waters, and the United States may not ques-
tion such appropriation, unless thereW the
navigabilitv of tne Hudson be disturbed. On
the other hand, if the state of New York
should, even at a place above the limits of
na.vi^bility, by api^opriation for any do-
mestic purposes, diminish the volume of war
ters, which, flowing into the Hudson, make
it a navi^ble stream, to such an extent as to
destrov its navigability, undoubtedly the
jurisdiction of the national government
would sxise and its power to restrain such
appropriation be unquestioned; and within
t£e purview of this section it would become
the right of the Attorney General to insti-
tute proceedings to restrain such appropria-
tion.
Without pursuing this inquiry further we
[VlOl&re of the <^inion *that there was error in
the conclusions of the lower courts ; that the
decree must he reversed, and the case remand-
ed, with instructions to set aside the decree
of dismissal, and to order an inquiry into
the question whether the intendra acts of
the defendants in the construction of a dam
and in appropriating the waters of the Rio
Grande wul substantially diminish the navi-
gability of that stream within the limits of
S resent navi^bility, and if so, to enter a
ecree restraining those acts to the eztmt
that they will so diminish.
Mr. Justice Gray and Mr. Justice M e-
Keimm were not present at ib» argument,
and took no part in the decision.
CHICAGO. ROCK ISLAND, & PACIFIC
RAILWAY COMPANY, Plff. im Err.,
V,
E.H. STURM.
(See 8. C Reporter's ed. 710-718.)
Ewemption laws — jurisdiction in gariUsh^
fnent*
1. Exemption laws are not part of the con-
tract : they are part of the remedy and sob-
Ject to the law of the fomm.
S. Jurisdiction In garnishment of a debt dae
to a nonresident creditor may be acquired
without serrlce on him except by publication,
so as to make a judgment against him valid
and entitle It to full faith and credit in other
states.
[No. 236.]
Buhmitted ApHl 5, 1899. Decided May tt,
1899.
rf ERROR to the Supreme Court of the
State of Kansas to review a judgment of
that court affirming the judgment of the
Court of Appeals of that state, which af-
firmed the Judgment of a Justice's Court of
1144
Republic County, KiTittai, ia fa:
Sturm, plaintiff in an
him^against the Chicago^ Bock
Pacific Railway Compaiiy lor
dered to diefendant» whick
garnishment prooeedinga im
Reversed, and eaae renttuded
ceedings.
Statement by Mr. Jnstiee
The defendant in errw hroa^kt mm
against the plaintiff *in er
court of Bdleville, RranUle
for the sum ot $140, for
ment was rendered for him
$140 and interest and eoata.
The plaintiff in error appealed
judgment to the district oourt of thm
to whidi court all the papera
mitted, and the case dodketed for
On the 10th of October, 1894, tke
called for trial, when pli
a motion for continuance, supfoiteJ fey «e
affidaTit affirming that on tte Utk mj tf
December, 1893, in the eoiuity of Fstt^
wattmnie and state of lowm, one A. H. W^
lard commenced, an action a^sinrt S. K.
Sturm in justices' court beforo Ori4e Tk
a justice df the
for eaid
peace
cover the sum of $78.6S, with intorert
rate of ten per cent per annom, aod
same time sued out a writ of at
garnishment, and duly gamtubod
tiff in error, and at that tine
error was indebted to defendant
the sum of $77.17 for
wages sought to be recorered in
Thnt plaintiff in error filed its
mitting such inddytedneaa;
That at the time of the
said action in PoCtawattomIe eoonly tke d^
f endant was a nonresident of tks state il
Iowa, and that serriee npos Kia
made by publication^ aiid that
judgment was rendered against
plaintiff in error aa garnishee for the son if
$76.16, and costs of suit amounting to il9»
and from such judgment appealed to
trict court of said eounty, where
was then pending undetermined;
That the moneys sought to bo
in this action are the same inoneya
be recoTcred in the gamisbnMOt
ings, and that under the laws of
courts had jurisdiction thereof, and
said moneys were not at the time of tW
nishment exempt from attachment,
tion, or garnishment; that the jostico of tha
peace at all of the times of the
was a duly qualified and acting Jnstire^
that all the proceedings were
prior to the commenceoient cf tlie
action, and that if the ease *be oootinocd a^-^TS
til Vit next term of the court the action m
Iowa will be determined and the r%kts sf
plaintiff in error protected.
•The motion was denied, and Om plaintiff
in error pleaded in answer the
alleged in the affidayit for contii
attired to the answer a t^ertifled eofr tf
the proceedings in the Iowa ronrtaL It also
alleged that it was a corporation dnH er>
17411. a
5:i3
1808.
OmoAoo, H. 1. A P. K. Co. v. Btuhm.
71*^-714
~j
*■ »
gaaized under the laws of the states of mi-
nois and Iowa, doing burliness in the state of
!.'.
k. ^
The defendant in error replied to the an-
swer, and alleged that the amount due from
^^ plaintiff in error was for wages due for serv-
^ ices rendered within three months next
prior to the commencement of the action;
that he was a resident, head of a family,
^Jbh ' And that the wages were exempt under the
izr laws of Kansas, and not subject to gaxnish-
— - ment proceedings; that plaintiff in error
J, -^ knew tnese facts, and that the Iowa court
, , had no jurisdiction of his property or per-
son.
Evidence was introduced in support of the
issues, including certain sections of the laws
of Iowa relating to service by publicatioo,
and to attachment and garnishment, and
judgment was rendered for the defendant in
'" ~ error in the amount sued for.
A new trial was moved, on the ground,
''' amonff others, that the "decision is contrary
--" to and in conflict with section 1, article IV.,
^ of the Constitution of the United States."
The motion was denied.
On error to the court of appeals, and from
^ -- thence to the supreme court, the judgment
was aflSrmed, and the case was then brought
here.
The defendant in error was notified of the
?- suit against him in Iowa and of the pro-
1^ ceedinffs in jp^amishment in time to have pro-
tected nis rights.
The errors assigned present in various
,:- ways the contention that the supreme court
■7- of Kansas refused to give full faith and
credit to the records and judicial proceed-
ings of the courts of the state of Iowa, in
« violation of section 1, article IV. of the Con-
stitution of the United States, and of the
^ act of Congress entitled "An Act to Prescribe
r the Mode in Which the Public Acts, Kec-
^' ords, and Judicial Proceedings in Each
718]State *shall be Authenticated so as to Take
Effect in Every Other Staites," approved May
26, 1890.
Meaan, W* F. ETans and M. A. I«ow
for plaintiff in error.
No counsel for defendant in error.
£713] *Mr. Justice MoKennm delivered the
opinion of the court :
How proceedings in garnishment may be
availed of in defense — whether in abatement
or bar of the suit on the debt attached or
for a continuance of it or suspension of exe-
cution— ^the practice of the states of the
Union is not uniform. But it is obvious and
necessary justice that such proceedings
should be allowed as a defense in some way.
In the pending suit plaintiff in error
moved for a continuance, and not securing it
pleaded the proceedings in garnishment in
answer. Judgment, however, was rendered
against it and sustained bv the sunreme
court, on the authority of Missouri Paoifio
Railway Co, v. Shariti, 43 Kan. 375 [8 L.
R. A. 385], and "for the reasons stated by
Mr. Justice Valentine in that case."
The facts of that case were as follows:
The Missouri Pacific Railway Company was
174 V. 8.
indebted to Sharitt for services performed
in Kansas. Sharitt was indebted to one J.
P. Stewart, a resident of Missouri. Stewart
sued him in Missouri, and attached his
wages in the hands of the railway company,
ana the latter answered in the suit in ac-
cordance with the order of garnishment on
the 28th of July, 1887; admitting indebted-
ness, and on the 29th of September was or-
dered to pay its amount into court. On the
27th of July Sharitt brought an action in
Kansas against the railway company to re-
cover for his services, and the company in
defense nleaded the garnishment ana order
of the Missouri court. The amount due
Sharitt having been for wages, was exempt
from attachment in Kansas. It was held
that the garnishment was not a defense. The
facts were similar therefore to those of the
case at bar.
The j^ound of the opinion of Mr. Justice
Valentine was *that the Missouri court ha(ll714]
no jurisdiction because the situs of the debt
was in Kansas. In other words, and to
quote the language of the learned justice,
'Hhe situs of a debt is either with ihe owner
thereof, or at his domicil ; or where the debt
is to be paid ; and it cannot be subjected to a
proceeding in garnishment anywhere else.
. . . It is not the debtor who can carry
or transfer or transport the property in a
debt from one state or jurisdiction into an-
other. The situs of the property in a debt
can be changed only by the change of loca-
tion of the creditor 'who is the owner thereof,
or with his consent."
The primary proposition is that the situs
of a d^t is at the domicil of a creditor, or,
to state it negatively, it is not at the domicil
of the debtor.
The proposition is supported by some
cases; it is opposed by others. Its error
proceeds, as we conceive, from confounding
debt and credit, rights and remedies. The
right of a creditor and the obligation of a
debtor are correlative but different things,
and the law in adapting its remedies for or
against either must regard that difference.
Of this there are many illustrations, and a
proper and accurate attention to it avoids
misundersd^nding. This court said by Mr.
Justice Gray in Wyman v. Halstead, 109 U.
S. 666 [27 : 1069] : "The general rule of law
is well settled, that for the purpose of found-
ing administration all simple-contract debts
are assets at the domicil of the debtor." And
this is not because of defective title in tho
creditor or in his administrator, but because
the policy of the state of the debtor requires
it to protect home creditors. Wilkina v. EU
lett, 9 Wall. 740 [19: 586]; 108 U. S. 256
[27:718]. Debts cannot be assets at the
domicil of the debtor if their locality is fixeJ
at the domicil of the creditor, and if tiie pol-
icy of the state of the debtor can protect
home creditors through administration pro-
ceedings, the same policy can protect homo
creditors through attachment proceedings.
For illustrations in matters of taxation,
see K%rtl<ind v. Hotchkiss, 100 U. S. 491 [25:
568] ; Pulltnan*8 Palace Oar Company t.
Penmylvania, 141 U. S. 18 [35:613. 3 In-
ters. Com. Rep. 595] ; Savings d Loan Soripfii
1145
714-717
SupBEME Court of the United States.
Oct.
T. Multnomah County, 160 U. S. 421 [42:
803].
Our attachment laws had their origin in
lM6]the custom of *London. Drake, sec. 1. Under
it a debt was regarded as being where the
debtor was, and questions of jurisdiction
were settled on that regard. In Andrews t.
Clerke, Carth. 25, Lord Chief Justice Holt
summarily decided such a question, and
stated the practice under the custom of Lon-
don. The report of the case is brief, and is
as follows:
"Andrews levied a plaint in the sheriff's
courts in London and) upon the usual sugges-
tion that one T. S. (the garnishee) was debt^
or to the defendant, a foreign attachment
was awarded to attach that debt in the
hands of T. S. Which was accordingly done;
and then a diletur was entered, which is in
the nature of an imparlance in that court.
"Afterwards T. S. (the garnishee) pleaded
to the jurisdiction setting forth that the
cause of debt due from him to the defendant
Sir Robert Clarke, and the contract on whicb
it was founded, did arise, and was made at
H. in the county of Middlesex, extra /um-
dictionem curus; and this plea beinff over-
ruled, it was now moved ( in behalf of T. S.,
the garnishee) , for a prohibition to the sher-
iff's court aforesaid, suggesting the said
matter (tn^r.), that the cause of action did
arise extra jurisdictionem, etc., but the pro-
hibition was denied because the debt always
follows the person of the debtor, and it Is
not material where it was contracted, espe-
cially as to this purpose of foreign attach-
ments ; for it was always the custom in Lon-
don to attach debts upon bills of exchange,
and goldsmith's notes, etc., if the goldsmith
who gave the note on the person to whom the
bill i« directed, liveth within the city, with-
out any respect had to the place where the
debt was contracted."
The idea of locality of things which may
be said to be intangible is somewhat confus-
ing, but if it be kept up the ri^ht of the
creditor and the obligation of the debtor can-
not have the same, unless debtor and credit-
or live in the same place. But we do not
think it is necessary to resort to the idea
at all or to give it important distinction.
The essential service of foreign attachment
laws is to reach and arrest the payment of
what is due and might be paid to a nonresi-
dent to the defeat of his creditors. To do
[716]it you must go to the •domicil <rf his debtor,
and can only do it under the laws and pro-
cedure in force there. This is a legal neces-
sity, and considerations of situs are some-
what artificial. If not artificial, whatever
of substance there is must be with the debt-
or. He and he only has something in his
hands. That something is the res, and gives
character to the action as one in the nature
of a proceeding in rem, Mooney v. Buford
d George Mfg, Co. [34 U. S. App. 581] 72
Fed. Rep. 32 ; Conflict of Laws, sec. 549, and
notes.
To Ignore this is to give immunity to debts
owed to nonresident creditors from attach-
ment by their creditors, and to deny neces-
sary remedies. A debt may be as valuable
as tangible things. It is not capable of
1146
manual seizure, as thcj aiCy \nk b
than they can it be approprialad kj
ment without process and t^ powu to
cute the process. A notte to
must be given, and can onlj bo ^^Wi <■& ^
forced where be is. Tliis, as we iisKe alrea^F
said, is a necessity, and it eanaoi be eraiei
by the insistence upcm fictions or rcftooKBto
about situs or the rights of the ereditor. Of
course, the debt is the property of tbe
itor, and because it is, the Iaw seeks to
ject it, as it does other propertj, to the psy^
ment of his creditors. If it eaii be '
any other way than by process
jurisdiction of his debtor, thaC way
occur to us.
Besides the propositioo whl^ i
discussed there are involred ia the
of the Sharitt Case the propoeitkiBs thst a
debt may have a situs where it is psyitht
and that it cannot be made migratory by ths
debtor. The latter was probuly es|
as a consequence of the primary
and does not require separate
Besides, there is no fact of di&nge of
dl in the case. Tue plabitiff in
not tem^oiarily in Iowa. It wmi
corporation and a resident €i the
was such at the time the debt sued
contracted, and we are not ooneemed to is>
3uire whether the cases which decide that a
ebtor temporarily in a state cnnnot be ssr^
nisheed there, are or nx^ not jnstiifld If
principle.
The proposition that the dtas of a Mt
is where it is to be paid is indeAnite. "AB
debts are payable every where^ vnleas *tt«WT4
be some special limitation or provismi is rfr>
spect to the payment; the mle being tfcsi
debts as such have no loons or sitas, b«t se-
company the creditor everywhere, and ■••
thorize a demand upon the debtor
where." 2 Parsons, Cootrmcts, 8th ed.
Hie debt involved in the pending
no "special limitation or provision in
to payment." It was payable ga
could have been sued on in Iowa,
fore was attachable in Iowa. This b tht
principle and efi'eet of the best cowsiiiinA
cases — ^the inevitable effect from the nataie
of transitory actions and the purpose of for^
eign attachment laws if we would cKfaroi
tluit purpose. Bmhree r. Hsims, 6 Jshaa
101 ; HuU V. Blaise, 13 Mass. 153; mmkm v.
WUliams, 6 Pick. 286; Hantma t. Shmp
Bros, 85 Qa. 124 [8 L. R. A. 514] ; fforMyv.
Great Northern B^y Co, 50 Minn. 405 [17 L
R. A. 84] ; MoKoMy v. Kepkairi^ mmd tht Ail-
timore d 0. R'd Co, 15 W. Va. 609; J>ftbirv.
Union P, Railroad Co, 49 Iowa, 688: Vo*
tional Fire Ins, Co, r. Chamhm^ 53 K. X
Eq. 468; Holland r. The Mo^Ue d OkU Ti
Co. 16 Lea, 414; Pomeroy r, Ramd, Jfc.TsOp.
d Co, 157 m. 176; Berry Bros. t. yelmm
Davis d Co, 77 Tex. 191 ; Wysfh Bsiisiw
d Mfg, Co. T. Lang, 127 Mo. 842 (t? L. K 1.
651] ; HowUmdr. Ohioayo, R.LSP.aryOt.
134 Mo. 474.
Mr. Justice Valentine also tipisMit tht
view that "if a debt is exempt froa a }nft-
cial process in the state where it is ersaftiC
the exemption will follow the debt as an In*
cident thereto into any other slats or jnri»>
174 V, &
189S.
OmoAGO, R. I. ft P. R Co. v. Campbbll. Dayu y. Coblbns. 717-719
dioiion into ^viiich- the debt may be* supposed
to be carried." For thle he cites some oases.
It is not dear whether the learned justice
considered t^t the doctrine affected the ju-
risdiction of the Iowa courts or was but an
incident of the law of situs as expressed by
him. If the latter, it has been answered by
what we have already said. If the former,
it cannot be sustained. It may have been
error for the Iowa court to have ruled
against the doctrine, but the error did not
destroy jurisdiction. 134 Mo. 474.
But we do not assent to the proposition.
Exemption laws are not a part of the con-
tract; they are part of the remedy and sub-
ject to tiie law of the fof um. Freeman, Exe-
cutions, sec 209, and cases cited ; also [Min-
[VI8]eral Pomi R. Co. v. •Barron], 83 111. 365;
[CarMon t. Memphis d C. R. Co.] 88 Tenn.
646 [8 L. R. A. 412] ; [Conley v. Chiloote] , 25
Ohio St 820; Alhrechi v. Treiiachke, 17 Neb.
205 ; O'Connor v. Walter, 37 Neb. 267 [23 L.
R. A. 650] ; [Chicago, B, d Q. R. Co. v.
Hoore], 31 Neb. 620; Moore v. Chicago, R. /.
d P. R. Co. 43 Iowa, 385; Broadatreei v.
Clark, D. d C. M. d 8i. Paul R. Co., Oar-
nishee, 65 Iowa, 670 ; Stevens for Use, etc., v.
Broum, 20 W. Va. 450. See also Bank of
United Statee r. Donnally, 8 Pet. 361 [8:
974] ; Wilcox V. Hunt, 13 Pet 378 [10 : 209] ;
Toumaend v. Jemison, 9 How. 407 [13:
194]; Walworth v. Harris, 129 U. S. 365
[32:712]; Penfield v. Chesapeake, 0. d 8.
W. R. Co. 134 U. S. 351 [33: 940]. To the
extent to which lew fori governs, see Ck)nfliot
ot Laws, 571 ef sea.
There are cases for and cases against the
proposition that it is the duty of a garnishee
to notify the defendant, his creditor, of the
pendency of the proceeding, and also to
^ make the defense of exemption, or he will be
Precluded from claiming the proceedings in
efense of an action against himself. We
need not con\ment on the cases or reconcile
them, as such notice was given and the de-
fense was made. The plaintiff in error did
all it could and submitted only to the de-
mands of the law.
In Broadsireet r. Clark et al. 65 Iowa, 670,
the supreme court of the state decided that
exemption laws pertained to the remedy, and
were not a defense in that state. This rul-
ing is repeated in Willard v. Sturm, 96 Iowa,
555, and applied to the proceedings in gar-
nishment now under review.
It follows from these views that the Iowa
court had jurisdiction, and that the Kansas
courts did not give to the proceedings in
Iowa the faith and credit they had tnere,
and were hence entitled to in Kansas.
The judgment is reversed, and the case re-
manded for further proceedings not incon-
sistent with this opinion.
CHICAGO, ROCK ISLAND, k PACIFIC
RAILWAY COMPANY, Plff. in Err.,
DAVID CAMPBELL.
(See S. C. Reporter's ed. 718, 719.)
Ohieago, RocU island 4 Paet/le Railwaif Com-
panj/ T. StHrm, No. 236. ante, 1144, followed.
[No. 235.]
174 V. 8.
Submitted April 5, 1899. Decided May 22,
1899.
IN ERROR to the Supreme Court of tlM
State of Kansas.
The facts are stated in the opinion.
Messrs. W* F. Evans and M. A. I«ow
for plaintiff in error.
Ko counsel for defendant in error.
Mr. Justice MoKennmt
*Tho facts of this case are substantial lv[719)
the same as in No. 236 [174 U. S. 710, ante,
1144J except as to the amount involved, and
the court in which the proceedings in at-
tachment were conuoencea, and —
The judgment is reversed, and the case re-
manded for further proceedings not incon-
sistent with this opinipn.
LUCY T. DAVIS. Millard P. McCormick,
and Virginia- Alabama Company. Pl^s. in
Err.,
LOUIS COBLENS and BCartin Lauer.
(See 8. C. Reporter's ed. 719-727.)
Evidence of adverse pos^esiHon — statute of
limitations — Joint action of ejectment —
when both plaintiffs barred — oross-ewam'
ination of uitness — instruction to iury.
1» The eoDtlnnttloD of the sdverse possession
of a part of a square used as a brick yard,
after the removal of tbst business. Is a ques-
tion (or the Jury, where there Is evidence that
some old brick were left on the premises, and
the entire square wss sdvertised for rent of
sale by the clslmants by posting four signs
thereon, one sign being on -the part In dispute,
and they actually leased the whole square and
paid taxes thereon.
2. By the ststute of Umltstlons of the Dis-
trict of Columbia the cumulstlve dlssblUty
of an heir of a woman who died during the
dlssblllty of coverture csnnot arrest the run-
ning of the ststute of limitations.
8. If one plaintiff In a joint action of eject-
ment cannot recover, his coplalntlffs csnnot.
4. When once the ststute of limitations has
run against one of two parties entitled to a
Joint action of ejectment. It operates as a
bar to such joint action.
5. The extent and manner of the cross-exami-
nation of a witness, even though It extends
to matters not connected with his examina-
tion In chief. Is within the discretion of the
court.
6. Where a requested Instruction to the jury
Is based upon the testimony of an uncontra-
dicted witness, and assumes his credibility,
the modification of it by the court, that the
weight of bis testimony Is a question for ths
Jury, does not discriminate against him.
[No. 246.]
Argued April 18, 19, 1899. Decide^l May
tt, 1899.
IN ERROR to the Court of Appeals of the
Dif^trict of Columbia to review a judg-
ment of that oourt affirming a judgment of
1147
719-722
SUFBEICS Ck>X7BT OF THS XXRnED STAXB8.
tbB Supreme Ck)urt of that District in favor
of defendants, Louis Coblens ei a{., in an
action of ejectment brought bj Lucy T. Da-
yis et dl., plaintiffs, for lands in the city oi
Washington, D. C. Affirmed,
See same case below, 12 App. D. C. 51.
The facts are stated in the opinion.
Messrs, Franklin H. Maokey and W,
Moshy Williams for plaintiffs in error.
Messrs, J. J. Darlington and W, H,
Sholes for defendants in error.
2T90] *Mr. Justice MeKenna delivered theopin-
ion of the court:
This is an action of ejectment brought by
the plaintiffs in error and one Charles M. N.
Latimer against the defendants in error for
ninety-nine one-hundredths iff^) undivided
part of original lot ten (10), in square 1031,
in the city of Washington, D. C.
The declaration was in the usual form, and
defendants pleaded not guilty, on which is-
sue was joined.
The plaintiffs derive title from Richard
Young as heirs at law or grantees of heirs
at law. The defendants daim by adverse
possession under daim of title under an exe-
cution sale upon a judgment recovered
against said Richard Toung some time in the
year 1826.
The case was tried by a jury. Before the
case was submitted leave was granted to
amend the dedaration by strikingout plain-
tiffs Charles M. N. Latimer and William W.
Boarman. The verdict was for defendants.
And after a motion for new trial was made
and denied, judgment wajs entered in accord-
ance therewith. The plaintiffs appealed to
the court of appeals, where the judgment
was affirmed, ana the case was brought here.
Tliere are deven assignments of error in
plaintiff's brief. •All but three relate to in-
structions given or refused or modified con-
cerning adverse possession. The plaintiffs
contended for or objected to instructions
which submitted the question of adverse pos-
session to the jury. The other assignments
of error will be noted hereafter.
1. The evidence of adverse possession con-
tained in the bill of exceptions is as fol-
lows:
"The defendants thereupon further offered
evidence tending to prove that on March 8,
[7S1]1875, Isaac P. Childs, and *Rrantee of the
whole of square 1031 under a deed from Alex-
ander R. Shepherd, bearing date the 22d day
of February, 1875, the same being one of the
chain of conveyances off**red m evidence
by the plaintiff as tending to show a
common source of title, took possession
of the whole of said square, converted it into
a brick yard, and continued to hold and use
it as such, openly, notoriously, exclusivdy,
continuously, and in a manner hostile to all
the world, until January, 1892, when he and
his immediate grantees sold and conveyed the
said square as an entirety to the defendants
for sixty-seven thousand dollars, of which
thirty thousand was paid in cash and thirty-
seven thousand dollars, deferred purchase
money, was secured upon the ground by a
deed of trust, upon which the defendants
have ever since paid the interest ; that by the
1148
terms of the sale said Childi 4
to be allowed until 'Fthruurj, IMS,
move from said square; tliat ihew e
in occupation and poeseesiaB of tiie
said square under said defendaMta*
rent therefor down to the month of
1893, with the consent of
and that they hdd said
time after October without the
the defendants, but not dispntiag
being tmants holding over; that they
moved the greater part of thor effects ~
said square in the late fsM or early wiati
1893~'4, but did not remove entiiely i
about the month of May, 1895 ; that ikt ftnt
structure placed by \hem on the
they took possession in 1&75 wen
more bride Idlns erected on lot 10,
these kilns were the last from whi^ tht
bride were removed when they left; thit
these bride were in process of removal stag
during the wint» of 1893-'94, and that a
part of the machinery used by than ia fts
making of bride, namdy, two larM nBa%,
with widch the clay was crushed bmre haam
made into brick, were not iemo%^ an
May, 1895; that these rollers suiid aome na-
chinery were hauled awav in two foui hern
wagons as late as about Max 20, 1895: thil
the machine house was located on the aorA
part of lot 1, in said square, at or ahoat s
point indicated by the witseas Charles Chflii
on a plat of the square exhibited to "thejaiyi^*
and that the rollers and maehinery
north of the machine house; and on
examination in remd thmto the
Charles Childs testified as follows:
" a don't know but what the rollers
have been on lot 10. Hie
stood right in here (indieatuv),
rollers misht have been on lot 10.'
'The defendants further offered
tending to show that in November, 1993,
defendant caused four siffns to be posted, e
about four feet square, to the effect that ths
entire square was for sale or rent on aepli'
cation to them, one at eadi eomcr of ths
square, one of them beinjg loeated oa lot 19;
that some of the old brick were I^t en ths
ground, which the witness thought Childs 4
Sons abandoned, but they did not charge 4»^
fendants for them, whidi were suitable fsr
use in building, and were still there; thst
defendants made no use of them, bat that
witness thought they would have need thns
if they had gone into building operatienf:
that dther in the latter part of Marvh er
the first part of April, 1894, the defendants
rented the entire souare to one Joha JL
Downing, who rentea it for the purpose if
converting it Into a base ball park, bat did m*
use it for that purpose; that be occupied ths
house which was on lot 7 for a dairy hmeh
and sublet a portion of said house for a hai^
her shop ; that the acts he did in reference ts
the occupation of the vacant ground ia that
square were as follows: Tliat he prevmtW
various parties from depositing tools, losl
boxes, and railroad iron on th
though none was attempted to be
on lot 10 ; that on the said square there
a couple of holes wherethebnckkilBahad«^
isted, and thatth«« aiathe fonndatwae if
174 v. &
IflM.
DaYIS y. OOBLBMS.
■ome kilns built of bride still there, and that
the said Downing remained as sueh tenant in
oeeopation of the said square, as aforesaid, un-
til June, 1895, when he sold his daby lundi to
a Mrs. Schulx, who took possession the same
day; that after Isaac Chuds k Sons left the
square, which was in the winter of 1898~'4,
perhaps along in November, December, Janu-
ary, and February, they sold certain bride
kilns, some of which were on lot 10, to James
D. Childs, who in turn sold them to others,
by whom they were taken away; that said
[7S3]Jamee D. Childs did *not daim the land said
bricks were on; that Mrs. Schultz continued
in occupation of the property from June,
1805, down to- the tune of the trial; that
she rented the house with the priyileffe of
using tha entire square, provided she ndther
placed nor permitted others to place any-
thing unlawful upon it, and that she had
stopped parties from dumping earth upon
the square and from driving across it^ though
she inade no use of it herself.
"The defendants thereupon produced as a
witness in their behalf Qoff A. Hall, assist-
ant assessor of the District of Columbia, who
gave testimony tending to prove that he had
examined the tax booEs from 1875 down to
the time of the trial, and that throughout
that period the taxes on said lot 10 had been
assessed and paid in the name of the defend-
ants and those under whom they daimed.
«frhereupon the plaintiff in rebuttal gave
testimony tendinff to prove that the brick
yard was established some time in the fall
of the year 1875 and disappeared some time
in 1898, leaving nothins remaining but the
remnants of tiie old brioc yard, ana that the
brides were all removed from the kilns about
March or April, 1894."
We think the evidence was suffident to
justify the action of the court in submitting
the ouestion to the Jury, and the exceptions
baeea on such action were not well taken.
2. Did the adverse possession apply to the
title derived by the plaintiff Lucy T. Davis
from her mother, Tracenia Latimer, and to
the title of the plaintiff Millard P. McCor-
mick, derived from his mother, Elizabeth Mc-
Cormick?
It is one of the contentions of the plain-
tiffs that it did not apply to those titles, and
error is based on a refusal of the court to
so instruct the Jury. The adverse poeses-
sion began February 22, 1875; suit was
brought May 17, 1805. There were therefore
twenty years and a few months adverse pos-
session. Eichard Toung, the common source
of title, died in 1860, testate. His will in
effect devised the property in controversy to
Matilda, his wife, for life ; remainder to Tra-
cenia and Elizabeth and other children.
Both were then married. Their mother, the
life tenant, died October 7, 1874. Tracenia
[T241»died November 17, 1879, and her husband
April 20, 1880. She left two children, one
of whom is the plaintiff. Elizabeth died
March 22, 1889. Her husband survived her,
but died July 2, 1891. October 14, 1887, she
and her husband conveyed their interests to
their son, the plaintiff, Millard P. McCor-
rnick. From the death of Elizabeth and her
husband, five and four years respectively
174 U. 8.
elapsed before suit, and from the date of the
conveyance to Millard over eight years. As-
suming that Tracenia Latimer and Elizabeth
McCormick were under disability when th#
adverse possession commenced, did that pos-
sesaion ever run against their interests, and
if to, when did it commence to run?
The statute of limitations in force in the
District is that of James I. chap. 16. Under
that statute no suit for lands can be main-
tained, except "within twenty years next aft-
er the cause of action first descended or fall-
en, and at no time after the said twenty
years." Additional time is given to those
under disability, as follows: "That if any
person . . . shall at the time of said
right or title of entry be or shall be at the
time of the said right or title first descended,
accrued, come or fallen within the age of
twenty-one years, feme covert, non oompoa
mentis, imprisoned, that then such person
and persons, and his and their heir and heirs,
shall or may, notwithstanding the said
twenty years be expired, bring his action, or
make his entry as he might have done before
this act; (2) so as such person and per-
sons, or his or their heir and heirs, snail
within ten years next after his and their full
age, discoverture, coming of sound mind, en-
largement out of prison, or death, take ben-
efit of, and sue forth the same, and at no
time after the said ten years." Seo. 2,
p. 869, Compiled Stat Dint. Columbia.
More than twenty years dapsed after Tra-
oenia's right accrued, as we have seen, be-
fore suit was commenced, and more than
ten years of that time accrued after her
death and that of her husband. She died
under disability, but that made no differ-
ence. By the terms of the statute the time
of limitation of suit commenced to run upon
her death affainst her heir, Lu<^ T. Davis,
and expired in ten years. No disability •ofE'^M]
Lucy T. Davis, if she was under any, arrest-
ed the running of the statute. Cumulative
disabilities cannot be used to that effect
Thorp V. Raymond, 16 How. 247 [14: 023] ;
Demarest v. Wynkoop, 3 Johns. Ch. 120 [8
Am. Dec. 467] ; Smith v. Burtte, 9 Johns.
174; Jackaont Swartout, v. Johnson, 5 Cow.
74 [15 Am. Dec. 433] ; Walden v. The Heirs
of Gratz, 1 Wheat. 292 [4: 94]; Hogan v.
Kurtz, 94 U. S. 773 [24:317]; Mercer's
Lessee v. Selden, 1 How. 37 [11:38]; Mo-
Donald v. Hovey, 110 U. S. 619 [28: 269].
The bar of the statute was therefore com-
plete against her. But it was not complete
against Millard McCormick. Ten years of
the period of adverse possession had not run
after the death of hie parents or after the
conveyance to him and oefore suit was com-
menced; and we are brouffht to the conten-
tion that a verdict should nave been rendered
lor him. Passing on and disposing of the
contention adversely, Mr. Justice Shepard,
speaking for the court of appeals, said:
"The rule is old and well established, that
if one plaintiff in a joint action of eject-
ment cannot recover, his coplaintiffs cannot.
Morris v. Wheat, 8 App. I). C. 379. 385.
Hard as this rule may seem to be, it was fol-
lowed in that case in obedience to the deci-
sion of the Supreme Court of the United
1149
725-728
8UPBEME COXTBT OW THE UinTED STATES.
States in Marateller y. McClean, 7 Cranch,
156, 159 [3:300, 301]. In that case Mr.
Justice Story said: 'It seems to be a set-
tled rule that all the complainants in a suit
must be competent to sue, otherwise the ac-
tion cannot be supported.' And again:
'When once the statute runs a^^inst one of
two parties entitled to a joint action, it
operates as a bar to such joint action.' See
also Shipp V. Miller, 2 Wheat. 316, 324 [4:
248, 251] ; Dickey v. Armstrong, 1 A. K.
Marsh. 30, 40.
"There has been no legislation affecting
the rule of practice in the District of Colum-
bia, and we do not consider it within our
province to make a change therein.
"The apparent hardship to this plaintiff
micht have been avoided by a separate suit
on nis behalf.
"The original rule at common law was
that tenants in common could only sue sepa^
rately because they were separately seised,
and there was no privity of estate between
[7S6]them. ^Mohley y. Brunner, 59 Pa. 481 [98
Am. Dec. 360] ; Corhin v. Cannon, 31 Miss.
570, 572 ; May v. Blade, 24 Tex. 205, 207 ; 4
Kent, Com. 368.
"The practice soon became general, how"
ever, in the United States to permit them to
sue each other jointly or severally as they
might elect. 7 Enc PI. & Pr. 316, and cases
cited. This seems to have been the practice
in the District of Columbia, and, so far aa
we are advised, has never been questioned.
Tenants in common may join in an action if
they prefer to do so, but it is with the risk
of the failure of all if one of them fail to
make out a title or right to possession."
These remarks express the rule correctly.
It was urged at the argument by defend-
ants in error, though not claimed in their
brief, that neither Traoenia Latimer nor Eliz-
abeth McCormick were under disability at
any time during the period of adverse pos-
session. The argument was that by the mar-
ried woman'a act of April 10, 1869 (16 Stat
at L. 45, chap. 23), were given the ?ame
remedies in regard to their property that
they would have had if unmarried.
The co(ntention presents an interesting
question, and maybe involves the further one
whether their husbands ever became tenants
try the curieajr- But we need not pass on
them. Assuming the disability of Tracenia
and Elizabeth and such tenancy, the errors
assigned on the instructions given or refused
were not well taken.
3. There was introduced in evidence as
part of the chain of title of the plaintiff,
Lucy T. Davis, a deed from her to John H.
Walter and a reconveyance from him to her.
From the latter was excepted "so much of all
the lands and tenements above mentioned as
had been conveyed to the party of the first
part (Walter) to other persons prior to
the filing of a bill in equi^, cause 11,637, of
the supreme court of the District of Colum-
bia."
Walter was called as a witness by plain-
tiff; testified that such reconveyance was the
only one he had made of lot 10 — the lot in
controversy. Thereupon defendant's counsel
cross-examined him at great length, against
1150
the objeotioQ of plaintiffs, *
business of buying and selling
the extent otitaad character. The
of the oourt permitting thB
tion is assigned as error. We
in it. The aueBtion of plaintiirs'
was a general one and opened mMMj tU^p
to particular inquiry. Toe eztentaad
ner of that inquirv was ne
the discretion of tne oonrt,
extended to nu^tters not connected
examination-in-chief. In Rea v. Jfi
17 Wall. 532 [21:707], it was aald:
the cross-examination is directed to
not inquired about in the principel
tion, its course and extent is teijr l^*p^
subject to the control of the ecnirt ib tkt «*
ercise of a sound discretion and the ■*—'■■
of that discretion is not reviewable om a won
of error."
It is also objected that Walker was m^
jected to discriminating remarks hf tht
court. Plaintiff requested the loUovi^f !»•
struction :
'*The jurr are instructed that there k m
testimony in ihis case tending to rdbet At
testimony of the witness John H. W
that he never conveyed lot 10 in
in this case to any person other than the
veyance by the deed to plaintiffs Charisi X,
N. Latimer, Lucy T. Davis,
the jury would not he juatified in
the contrary,**
The court struck oat the words in
and inserted instead, ''and the weight fee It
given his testimony is a proper
the juiy."
The instruction as requested
credibility of the witness;
question was sulHnitted to the jury,
the judges of it, and we cannot snpposc
the jury misundentood the court
lieved a discrimination was inteode«
To the other assignments of errof
considerati<m is not necessary to be
Judgment affirmed.
MARCUS A. SPURR, Petitiomer, [BC
V,
UNITED STATES.
(See 8. C. Reporter's ed. TtS-TSfll
Insufficient instruetiem to jery.
In answering a question of the Jut In a fn»
entlon onder U. 8. Rev. 5^at. | S308L ter ^
lawful certification of a cli«ck,
come In after consultation, end
law as to certlflcmtlon wbea m
pears to the credit of the drai
court assumes to answer It by
that section, Its failure to exptala ths muM
Ing of "wilful violation** as used In I U tf
the act of Confress of 1882. when
anfs counsel requests It. Is i
not cured by mere reftrciice Xm tbe
charge.
[No. 448,]
Argued March IS, H, 189$.
tt, J899,
Decided tf sp
174 V. M.
1898.
Sfubr v. Umitbo Btatei.
729-781
OK WRIT OF CEBTIORARI to the United
States Circuit Court of Appeals for the
Sixth Circuit to review a judgment of that
court affirming the judgment of the Circuit
Court of the united States for the Middle
Diatrict of Tennessee eonvictinff Marcus A.
Spurr for the yiolation of U. S. Rev. Stat.
§ 5208, in regard to certification of checks
by an officer of a national Itank. Judgment
of the Circuit Court of Appeal^ and of the
Circuit Court reversed, and cause remanded
to the latter court for a new trial.
See same case below, 69 U. S. App. 603, 87
Fed. Rep. 701, 31 C. C. A. 202.
Statement by Mr. Chief Justice Fnller:
(7S9] *Spurr was tried in the circuit court of the
United States for the middle district of Ten-
nessee on three indictments, each containing
several counts, for the violation of section
5208 of the Revised Statutes, which pro-
vides:
"It shall be unlawful for an^ officer, clerk,
or agent of any national banking aasociation
to certify any check drawn upon the associa-
tion unless the person or company drawing
the check has on deposit with the association
at the time such check is certified an amount
of money equal to the amount specified in
such check. Any check so certified by duly
authorized officers shall be a good and valid
obligation against the association; but the
act of any officer, clerk, or agent of any asso-
ciation, in violation of this section, shall sub-
ject such bank to the liabilities and proceed-
uiffs on the part of the Comptroller as pro-
vided for in section fifty-two hundred and
thirty-four."
By section 13 of the act of Congress ap-
proved July 12, 1882 (22 Stat, at L. 162,
chan 290), it is provided:
"That any officer, clerk, or agent of any
national banking association who shall wil-
fully violate the proviRions of an act entitled
'An Act in Reference to Certifying Checks by
National Banks,' approved March third,
eighteen hundred ana sixty-nine, being sec-
tion fifty-two hundred and eight of the Re-
vised Statutes of the United States, or who
shall resort to any device, or receive any fic-
titious obligation, direct or collateral, in or-
der to evade the provisions thereof, or who
sliall certify checks before the amount there-
of shall have been regularly entered to the
credit of the dealer upon the books of the
banking association, shall be deemed guilty
of a misdemeanor, and shall, on conviction
thereof in any circuit or district court of the
United States, be fined not more than five
thousand dollars, or shall be imprisoned not
more than five years, or both, in the discre-
tion of the court,"
The iTidictments charged that Spurr, be-
ing the president of the Commercial National
Bank of Nashville, Tennessee, wilfully vio-
lated theprovisionsof section 5208 of the Re-
vised Statutes by wilfully, unlawfully, and
knowingly certifying certain checks drawn bn
[•MJsaid bank by Dobbins and Daz^, well *know-
iug that Dobbins and Dazey did not have on
deposit with the bank at tne times when the
checks were certified, respectively, an amount
of money equal to the respective amounts spec-
174 V. 8.
ified therein. They were consolidated and tried
together, and a verdict of equity returned as
foDows: "Came the United States attor-
ney, and also the defendant in proper person,
and came also the jury heretofore mipaneledy
and upon their oaths do say that thev find
the defendant guilty as charged in the indict-
ment, and recommend him to the mercy of the
court."
Motions for new trial and in arrest ei
judgment were made and overruled, and
judgment entered on the verdict in these
words :
"And thereupon the United States, by its
district attorney, moved the court for sen-
tence upon the verdict of the jury heretofore
rendered, upon count No. 2 of indictment No.
7004, count No. 2 of indictment No. 8139,
counts Nos. 1 and 4 of indictment No. 7994,
count No. 3 of indictment No. 8139, count No.
2 of indictment 8078 and count No. 6 of in-
dictment No. 8139. The defendant wae
thereupon called upon by the court to stand
and was asked by the court if he had any-
^ing further to say why the sentence of the
law should not be pronounced against him,
and he replied that he had nothine further to
say than ne had already said ; and the court,
bein^ cognizant of the facts attending said
verdict and of the manner in which the issues
found by said verdict were submitted to the '
jury, finds and so orders and adjudges that
said verdict is applicable to indictment No.
7904, counts 1 and 4, and indictment No.
8139, count 3, all of which are based upon a
check certified by the defendant, dated Janu-
ary 3d, 1893. and upon said verdict upon said
count of said indictments, the court orders
and adjudges that the defendant be confined
in the penitentiary of the state of New York,
at Albany, New York, for two years and six
months from this date."
The several counts of the consolidated in-
dictments charged the certification by de-
fendaxKt of four checks drawn by Dobbins
and Dazey between December 9, 1892, and
February 13, 1893, both indusive, on the
Commercifl] National Bank, aggr^ating $95,-
641.95. The bank was organiz^ in 1884,
and ^defendant was its president and onel^^^l
Porterfield its cashier from its organization
to its failure, March 25, 1893. D^bins and
Dazey were engaged in the purchase, sale,
and exportation of oetton, and their financial
standing and credit were excellent. When
the four checks in question were certified by
defendant the accounts of Dobbins and Dazey
were overdrawn, and the evidence was that
their account was continuously and largely
overdrawn during the period covered by
these checks, except on one day, and that
"this fact was known to Porterfield, the
cashier, and all the employees of the bank
under him in authority." But "there was
also evidence tending to show that Porterfield
misrepresented the real state of the Dobbins
and Dazey account to the defendant and the
committees and the directors of the bank, by
statements made to them, and also in his
sworn reports to the Comptroller of the Cur-
rency, wherein the overdrafts in the bank
were very largely understated." There waa
also evidence on behalf of defendant to the
1151
731-784
Supreme Coitbt <» the Unitbd States.
€ltect "that he had no knowledge of the fact
that the account of Dobbins and Dazey was
overdrawn on the books of th« bank at the
time of the certification of any of the checks
upon whidi he is indicted, nor at any time
during the period covered by the dates of the
checks;" that when he certified these checks
he Inquired in everv instance either of the
eashier or of the exchange clerk, and in every
instance received information that sufficient
funds and credits of Dobbins and Dazey were
then in the bank to cover the checks certified,
and that he never at any time certified a
sheck without receiving such information,
and that he relied u^n it as true ; that if the
cashier was in, he inauired of him; if not,
he inquired of the excnange clerk; these be-
ing the appropriate sources of information.
The evidence on this head is given in mudi
detail in the bill of exceptions.
The bill of exceptions also stated —
"After the jury were charged and had re-
tired from the courtroom to consider their
verdict, and had been deliberating for some
hours, thev returned to the courtroom and
asked the following question, which was writ-
ten out in pencil fuid handed to the court:
praS] •'* *We want the law as to the certification
of checks when no money appeared to the
credit of the diuwer.'
"The court then said: *The juiy state
that they want the kuw as to the certification
of a ohedc where there is no money to the
credit of the drawer.
1 cannot better answer this question which
the Jury has put to the court, than by read-
kiff the section of the Kevised Statutes which
relates to tibat subject.'
"(Reads from sec. 6208, Rev. Stat) : It
•hall be unlawful for any officer, clerk, or
agent of any national banking association to
certify any check drawn upon the associa^
tion unless the person or company drawing
tiie check has on deposit with the associa*
tion, at the time suoh check is certified, an
amount of money equal to the amount speci-
fied in such check.'
•"Does this answer your question?'
TOBEMAN OF THE JURT: TCS, sIr.*
'TvE Ckaimr: *I read it asrain so that you
may all understand it.' (The court read
again tiiat part of section 5208, Rev. Stat
quoted above, and added) :
"Is that all, gentlemen? The $30,000
was the credit allowed, and these overdrafts,
as the court understands from the testimony
in the case, were in excess of that. The ac-
count of Dobbins & Dazey — the overdrafts —
were in excess of the amount which Dobbins
A Dazey had as a limit of line of credit
" 'I charge you in addition to the instruc-
tions I gave you this morning, that a check
drawn upon a bank, where the drawer has
no funds, creates no obligation against the
bank, and it does not create any obligation
until it is certified as good by an officer of
the bank, and that makes the check good as
to the holder of it, and the bank then be-
comes estopped, although there was no war-
rant for the drawing of the check, as against
the bona fide holder. So that the obligation
of the bank to meet it in such case is made
BO by the act of the officer who certifies it to
1152
be good. That is wliat is memat kj falat
certification. It is the c^iiijixkf br ma aft-
oer d a bank that a chedc is good wmb
are no funds there to meet it
*" Tou understand what I ha^ye said
is to be taken in connectloB with what I
before instructed you.'
"As the jury were retirinff, 4 aw if I for 4m-
fendant said to the court that he Unin|.hr
what the jury wanted was the act of 1682
making it a misdemeanor to wilfully riakmM
the section of the Revised Statutes wiuA the
court had read to them, and that the coat
ought to read and explain that set to As
jury; the court asked if coansel lefaned tm
the act prescribing the penalty for false mt-
tification, and on oeing answered ia the sl-
firmative, stated that the jnry had
to do with that
"To this action of the court ia
twice section 5208 of the Berised
and in failing to read and erplaia the
of 1882, in response to the jury's
and to the adcutional instmetioiis givea fee
the jury at this time begimdng with fta
words rthe $30,000' and ending with ths
words 'to meet it,' the defendsat thaa sal
there excepted.**
Senicnoe having been praMMiaeed as h»>
fore stated, the case was taken on error to
the circuit court of appeals for the siztt di^
cult, and the judgment was affirmed, SB XL
S. Anp. 663, whereupon the at
brought to this court on certiorari.
Jf etsr*. Johm A. Pitts, AlWrt :
ton* and Bailey P. Waggemer for
Hewn, Edward Baxter an
Tompnon, Assistant Attomsj Oensnl,
respondent
/oh» 0.
*Mr. Chief Justice Faller daUyarad th^VK
opinion of the court:
It was not denied that defendant
the checks, and that the account of
and Dazey was overdrawn when the
cations took place. The questions for
mi nation were defendant's knowledge of ths
state of Dobbins and Dasey'tt accooat whaa
the checks were certified and his intent ia
the certifications.
Section 5208 made it unlawful for aay oA-
cer, deric, or sgent *of any national haakia<[T3ff
association to certify any diedc drawa vpoa
it, unless the drawer of the chedc had oa ds^
posit at the time such check was certifled aa
amount of money equal to the anoimt speci-
fied ther^, and provided the eonseqacaeas
which should follow on a yiolation of ths
section. Then came section thirteen d ths
act of July 12, 1882, which made a wilfai
violation of section 5208 criminal, aad de-
nounced a penalty thereon.
These sections were under eonsidsratioa la
Potter V. United State; 155 U. 8. 438, 441
[39: 214, 217], and the court said:
"The charge is of a wilful violatiom.
is Ihe language of the statute. Seetloi
of the RevisM Statutes makes it anlawfal
for any officer of a national bank to cntify
a cheque unless the drawer has on deposit at
the time an equal amount of money. Btai
this section carries with it no penal tyaicaiast
174 V. M.
1808.
Spurr v. United 8tate8.
784-: 37
the wrongdoing officer. Section 13 of the
act of 1882 impoaee the penalty, and impoeee
it upon one Vho shall wilfully Tiolate/ etc.,
mA well aa upon one 'who shall resort to any
device/ etc., *to evade the provisiona of the
&ct;' 'or who shall certify cheques before the
iunount thereof shall have been regularly en-
tered to the credit of the dealer upon the books
of the banking aseociatioD.' The word 'wilful'
ie omitted from the description of offensee in
the latter part of this section. Its presence
in the first cannot be regarded as mere sur-
plusage ; it means something. It implies on
the part of the officer knowledge and a pur-
pose to do wrong. Something more is re-
quired than an act of certification made in
excess of the actual deposit, but in ignorance
of that fact or without any purpose to evade
or disobey the mandates of the law. The
significance of the word 'wilful' in criminal
statutes has been considered by this court.
In Felton v. United States, 96 U. S. 699, 702
124 : 875, 876] , it was said : 'Doinff or omit-
ting to do a^thing knowingly and wilfully
implies not only a knowledge of the thing,
but a determination with a bad intent to do
it or to omit doing it. The word "wilfully"
says Chief Justice Shaw, in the ordinary
sense in which it is used in statutes, means
not merely "voluntarily," but with a bad pur-
pose.' [Com, V. KneeUmd] 20 Pick. 220.
Sylt is frequently understood,* ♦says Bishop,
'as signifying an evil intent without justifi-
able excuse.* Crim. Law, vol. 1, § 428.
"And later, in the case of Evans v. United
States, 153 U. S. 684, 694 [38:830, 834],
there was this reference to the words 'wil-
fully misapplied': *In fact, the CTayamen of
the offense consists in the evil design with
which the misapplication is made, and a
count which should omit the words "wil-
fully,** etc., and "with intent to defraud,"
would be clearly bad.' ...
'*While it is true that care must be taken
not to weaken the wholesome provisioiw of
the statutes designed to protect depositors
and stockholders against the wrongdoings of
"banking officials, it is of equal' importance
fhpt they should not be so construed as to
make transactions of such officials, carried
on with the utmost honesty and in a sincere
belief that no wrone was being done, crimi-
nal offensee, and subjecting them to the se-
vere punishments which may be imposed un-
der those statutes."
The wrongful intent is the essence of the
crime. If an officer certifies a check with
the intent that the drawer shall obtain so
much money out of the bank when he has
none there, such officer not only certifies un-
lawfully, but the specific inteoit to violate
the statute may be imputed. And so evil
design may be presumed if the officer pur-
posely keeps himself in ignorance of whether
the drawer has money in the bank or not, or
is grossly indifferent to his duty in respect
to the ascertainment of tliat fact.
The defense was that defendant had no
actual knowledge that Dobbins and Dazey
had not sufficient funds in the bank to meet
the checks, nor knowledge of f^tcts putting
him on inquirv; that, on the contrary, he
believed that they had such funds ; that this
174 V. 8. U. S.. Book 43. 73
belief was founded on information he re-
ceived from the cashier or the exchange clerk,
the proper sources of information, in re-
sponse to inquiries which he made in each in-
stance before he certified; that he honestly
relied on that information, and that he had
the right to do so. Defendant, was entitled
to the full benefit of this defense, and in or-
der to that, it was vital that the meaning
of "wilful violation," as used in section 13 of
the act of 1882, should be clearly explained
to the jury.
*It appears from this record that, aliter tfae[786)
case had been committed to the jury, and
they had had it under consideration for some
hours, thev returned to the courtroom, and
asked the following question, which was writ-
ten out: "We want the law as to the certi-
fioation of checks when no money appeared
to the credit of the drawer." The court then
read to the jury the first part of section 5208
of the Revised Statutes, and inquired : "Does
this answer your question?" To which the
foreman replied: "Yes, sir." The court
again read that ^art of the section, and made
certain observations, among other thixijgs,
that a false certification "is the certifying
by an officer of a bank that a check is good
when there are no funds to meet it."
The record shows that then, "as the jury
were retiring, counsel for the defendant said
ti> the court that he thought what tiie jury
wanted was the act of 1882 making it a mis-
demeanor to wilfully violate the section of
the Revised Statutes which tiie court had
read to them, and that the court ought to
read and explain that act to the jury; the
court asked if counsel referred to the act pre-
scribing the penalty for false certification,
and on bein^ answered in the affirmative,
stated that the jury had nothing to do with
that." Exception was taken to the reading
twice of the part of section 6208, and th«
failure to read and explain the act of 1882,
and to the additional instructions given by
the court.
We think thai the learned circuit judge
•clearly erred in declining the request of ooun-
sel in respect of section 13.
It is true that it was not part of the func-
tion of the jury to fix the penalty, and the
remark of the court "that the jury bad noth-
ing to do with that," undoubtedly referred to
the penalty only, though, as the matter ap-
pears in the record, tiie jury may well
enough have understood it differently. But
it was the act of 1882 that made the certifi-
cation of checks, if in "wilful violation" of
section 6208, a criminal offense, and liie
word "wilful" "implies on the part of the of-
ficer knowledj^e and a purpose to do wronj^,"
and plainly it was in relation to the point
of "wilful violation" that counsel wi^ed
the court to read and expound that section.
It seems to us that it *was the duty of the[787}
court to do so, if the question put by the
an, since ''the law as
jury was answered at
to the certification of checks when no mon^
appeared to the credit of the drawer" in-
volves civil oonsequences under section 6208,
and criminal oonsequences under section 13,
unless it is to be held that every certification
where funds are lacking constitutes a wilful
1153
787-789
SVFBEMB COXTBT OF THS UlCITBD STATES.
Violation of section 5208. We cannot accept
the view tliat because when the court asked
the jury whether the first part of section
5208 answered their question, the foreman
replied in the affirmative, therefore there was
no error in the failure to call their atten-
tion to section 13. If the court was satisfied
that the law applicable to the case was em-
bodied in the first part of section 5208, the
jury were bound to oe satisfied also; but we
are of opinion that that was an insufficient
definition, and was therefore erroneous.
However the court went further, and said:
"I charge you,' in addition to the instruc-
tions I gave you this morning, that a check
drawn upon a bank, where tiie drawer has no
funds, creates no obligation until it is certi-
fied as ffood by an officer of the bank, and
that ma^es the cheek good as to the holder
of it, and the bank then becomes estopped,
although there was no warrant for the draw-
ing of the check, as asainst the bona fide
holder. So that, the oUigation of the bank
to meet it in such case is made so by the act
of the officer who certified it to be good. That
ifl what is meant by false certification. It
is the certifying by an officer of a bank that
a chedc is good when there are no funds there
to meet it.
"You understand what I have said now is
to be taken in connection with what I have
before instructed you."
We fear that these instructions, following
in direct connection with what had passea
in reference to section 5208, may have led
the jury to understand the law of the case
to be ioaJt the false certification thus defined
constituted a criminal offense under the stat-
ute, and ihtJt that impression was not ren-
dered harmless by the admonition that what
was tiien said was to be taken with what had
been said before.
At all events, we think it would be goine
lW8]too far to hold *that that caution operated
to obviate the error in failing to explain sec-
tion 13 at this particular juncture. The
jury had been considering their verdict for
several hours, and had then in effect re-'
S [nested a more complete definition of the of-
ense. This the court assumed to give, but
it was incomplete, and what was omitted can-
not properly be held to have been supplied,
under the circumstances, by the reference to
prior instruotions. The court had indeed,
in the original charge, used the words "wil-
fully" and "wilful" in the following instruc-
tions:
"If you find from the proof that the ac-
count of Dobbins and Dazey, upon the books
of the bank, was overdrawn continuously
during the period covered by the dates of the
checks certified by the defendant, and t^at
- the defendant was in fact ignorant of audi
overdraft; and that he certified the several
checks mentioned in the indictment believing
si the time thai the exchange deposited bv
Dobbins and Dazey on the days upon which
eaid chedcs were certified, was sufficient or
more than sufficient to cover the amount of
said checks, besides the overdraft already ex-
Minf, then he is not guilty and you should
acquit him, unless such ignorance of the
overdraft was wilful as elsewhere explained
1154
in the court's instjructiona. Ib tUs
tion, vou will bear in mind wkat I have
viousfy charged you, that if tikis
eral, and not a special, mcooont of
and Daze^, that the exchange whidi
was appliofthle in the first ^*ee to the bqa^
dation of the previoosl^ existing ovcrdnft
before there could be said to be any fiii^i ts
the account of Dobbins and Daxey to
to the (flecks."
"If t^e proof fails to satisfr yo«r
clearly and beyond a res sons hie doobt^ thai
the defendant did actually know, at the tiai
he certified the checks mentioiied is the is-
dictment, that Dobbins and Daaey dM m^
have on deposit in the bank
and credits to meet the rherks
then you should acquit him,
convinced by the proof beyond a
doubt that lie wilfully, deaigDedly,
faith — these words mean substantially tka
same thing — shut his eyes to the fmdL sad
purposely refrained *f rom inquiry or ~
gation for the purpose of avoiding
edge."
The court had also said thmt *^
if the defendant acted in good faith a
ing these certifications, believing that
state of the account of Dobbins
justified it, he is not guilty of the oSi
charged. Mere negligence or cardeasaeM
accompanied by Md faitii would not
him guilty." And other passages of
purport mi^ht be quoted.
But the jury desired further advice m u
what constituted criminal certificmtioa. w
wilful violation of section 5208, and preitr^
a request which required a oomprchcAhu
answer. The response was in the natnrt d
a separate charge, and we are unable to «*•-
elude that the error in declining at that tint
to call attention to section 13 was cured bv
tlie bare reference to the original ehaxee.
Manr other errors were assigBeu ai
pressed, in argument, but, as the particvlar
points may not arise in the same way cm ^
other triid, we prefer to refrain froB e^
pressing any opinion upon them.
The judgment of the Circuit Comrf cf Ap-
peals ia reversed; the judgw^ent cf th* rw^
cuit Court is also reversed, and the eauv r*-
manded to that court with a direetmi to jsI
aside the verdict and grant a
Mr. Justice Brown and Mr. Justice
dissented.
SAN DIEGO LAND ft TOWN OOMPAXT.
Appt^
V.
CITY OF NATIONAL CITY awl John C
Koutsan, George W. Deford, 8. 8. JohvtK,
J. H. Kincaid. and Fred H. Saabom, Trw-
tees of Said City.
(See 8. C Beporter*s •«.
Formol notice of fiwing voter rat
tunity to he heard — judicial
— basis of calculation — losses from
button.
1. Formal notice as to the precis^ 4av
1T4 JL &
189a
San Diseo Land & Town Co. y. National Citt.
740-74S
which wtter rates will be fixed by ordinance
need not be given to a company whose rates
•re thus fixed, under the California Constitu-
tion, which gives notice of the fact that or-
dinances wll! be passed annually In February
to take effect on the 1st of July then next,
•nd the statutes of the state requiring the
company to make an annual statement of Its
rate-payers, revenue, and expenditures, at
least thirty days prior to June 15th.
3. An opportunity to be heard upon the ques-
tion of watei: rates fixed by ordinance Is not
denied where such rates are fully considered
In conferences between the officers of the cor-
poration, whose rates are fixed, and the munic-
ipal authorities, and such officers are heard,
although they are not allowed to be present
at the final meeting when the ordinance Is
passed.
S. Judicial interference should never occur
with the collection of rates established under
legislative sanction, unless the case presents,
clearly and beyond all doubt, such a fiagrant
attack upon the rights of property, under the
^Ise of regulations, as to compel the court
to say that the rates prescribed will neces-
sarily have the effect to deny Just compensa-
tion for private property taken for public use.
4. The reasonable value of property, rather
than Its original cost. Is to be taken as the
basis of calculation In determining whether
rates fixed under legislative authority con-
stitute a fair compensation for the use of
the property, so that the owners are not de-
prived of their property without due process
of law.
5. The losses from distribution of water to con-
sumers outside of the city are not to be con-
sidered In fixing by ordinance the rates for
consumers within the city.
[No. 25.]
Buhmitted October 11, 1898. Decided May
22, 1899.
APPEAL fr<mi a decree of the Circuit
Court of the United States for the South-
em District of California dismissing a suit
brought hj the San Di^o Land & Town Com-
pany a^inat the City of National City et al.
to obtain a decree that the water rat^ fixed
ly the defendant city were void; that the
Constitution and laws of California and the
Tiroceeding of the Trustees of the City were
In violation of the Federal Constitution, luid
that the plaintiff should be entitled to rea-
sonable water rates, etc Affirmed,
See same case below, 74 Fed. Rep. 79.
Statement by Mr. Justice
^O] *This appeal brings up for review a decree
of the circuit court of the United States for
the southern district of California dismiss-
ing a bill filed in that court by the San
Diego Land ft Town Company, a Kansas cor-
poration, acainst the city of National City,
a municipsu corporation of California, and
John G. Routsan and others, trustees of
tliat city and citizens of California. 74 Fed.
B«p. 79.
The nature of the cause of action set out
In tlM bill ia indicated by the following
statement:
Hie Constitution of California declares —
That "iMO corporation organized outside
the limits of this state shall be allowed to
174 U. 8.
transact business within this state on more
favorable conditions than are prescribed by
law to similar corporations oorganized under
the laws of this state." Art. 12, § 15;
•That "the use of all water now appfopri-[741J
ated, or that may hereafter be appropriated,
for sale, rental, or distribution, is hereby de-
clared to be a public use, and subject to the
regulation and control of the state, in the
manner to be prescribed b^ law; provided,
that the rates or compensation to be collected
by any person, company, or corporation in
this state for the use of water supplied to
any city and county, or city or town, or th«
inhabitants thereof, shall be fixed, annually,
by the board of supervisors, or city or
county, or city or town council, or other
governing body of such city and county, or
city or town, by ordinance or otherwise, in
the manner that other ordinances or l^s-
lative acts or resolutions are passed by such
body, and shall continue in force for one
year, and no longer. Such ordinances or
resolutions shall 1^ passed in the month of
February of each year, and take effect on
the first day of July thereafter. Any board
or body failing to pass the necessary ordin-
ances or resolutions fixing water rates,
where necessary, within such time, shall be
subject to peremptory process to compel ac-
tion at the suit of any party interested, and
shall be liable to such further processes and
penalties as the legislature may prescribe.
Any person, company, or corporation collect-
ing water rates in any city and county, or city
or town in this state, otherwise than as so
established, shall forfeit the franchises and
water works of such person, company, or cor*
poration to the city and county, or city or
town where the same are collected, for th«
public use." Art. 14, 9 1 ; and.
That "the riffht to collect rates or com-
pensation for the use of water supplied to
any county, city and county, or town, or the
inhabitants thereof, is a franchise, and can-
not be exercised except by authority and in
the manner prescribed by law." Art. 14, 9 2.
By an act of the legislature of California
passed March 7th, 1881, it was provided:
"9 1. Hie board of supervisors, town
council, board of aldermen, or other legisla-
tive body of any city and county, city or
town, are hereby authorized and empowered,
and it is made their official duty, to annually
fix the rates that shall be charged and col-
lected by any person, company, association,
or ^corporation for wator furnished to any[74S]
such city and county, or city or town, or the
inhabitants thereof. Such rates shall be
fixed at a regular or special session of such
board or other legislauve body, held durins
the month of February of each year, and
bhall take effect on the first day of July there-
after, and shall continue in force and effect
for the term of one year and no longer.
"9 2. Hie board of supervisors, town coun-
cil, board of trustees or other legislative
body of any county, city, or town, are hereby
authorized, and it is made their duty, i^
least thirly days prior to the 15th day of
January of each year, to require, by ordin-
ance or otherwise, any corporation, company,
115S
74S-749
SUPREMB COUBT Of TBE UNITID STA<
or persons supplying water to such county,
city, or town, or to the inhabitants thereof,
to furnish to such board or other governing
body in the month of January of each year,
a detailed stat^mient, rerified by the oath of
the president and secretary of such corpora-
tion or company or of such person, as the
case may be, showing the name of each
water-rate payer, his or her place of resi-
dence, and the amount paid tor water by
each of such water payei-s during the year
preceding the date of such statement, and
also sh(minff all revenue derived from all
sources, and an itemized statement of ex-
penditures made for supplying water during
■aid time." SUts. of Cal. 1881, p. 54.
By an ordinance of the board of trustees
of Uie defendant city approved February
21st, 1895, certain rates of compensation to
be collected by persons, companies, or cor-
porations for the ube of water supplied to
that city or its inhabitants, or to corj^ra-
tions, companies, or persons doing business
or using water therein, were fb^ for the
year beginning July Ist, 1895.
For the purposes of thai t ordinance the uses
of water were divided into four dasi^es,
namely, domestic purposes, public purposes,
mechanical and manufacturing purposes,
and purposes of irrigation; the rates for
each class were prescribed; and it was pro-
vided that no person, company, or corpora-
tion should charge, collect, or receive water
rates in the city except as Uius established.
[743] *The bill in this case questioned the ^did-
ity of the above ordinance upon the follow-
ing grounds:
That no nodae of the fixing of the water
rates was given, nor opportunity presented
hor a hearing upon the matter of rates; that
no provision in the Oonstitution or< laws of
California, under and by virtue of whidi
the board of trustees assumed to act, re-
quired or authorized such notice ; that wat«r
rates were fixed by the board arbitrarily,
without notice or evidence, and were unrea-
sonable and unjust, in that under them ttte
plaintiff could not realize therefrom, and
from all other sources within and outside of
the limits of tiie defendant city, a sufficient
sum to pay its ordinary and necessary operat-
ing expenses, or any dividends whatever to
stockholders, or any interest or profit on its
investment; that no long as tl^ ordinance
remained in force the plaintiff would be re-
quired by the laws of California to supply
water to all consumers within the eitr at
the rates so fixed, which could only be done
at a loss to the plaintiff; and that to com-
pel the plaintiff to furnish water at those
rates would be a practical confiscation and
a taking of its property without due process
of law.
The bill also alleged that the defendant
eity was composed m large part of a terri-
tory of farming lands devoted to the raising
of fruits and other products, only a small
part thereof being occupied by residences or
Dusiness houses;
That prior to the adoption of the ordi-
nance above set forth, the plaintiff, in order
to meet in part the large outlay it had been
1156
compelled to make in and anovt its
system, had established a rate of ob
dred dollars per acre for a ^erpetoal
rig[ht for the purposes of imgation, and r-
qiured the purchase and pajmcBt for tack
water right oefore extending its distribatiiis
system to lands not yet supplied with vmler
or furnishing such lands witfc wmter, wtaA
rate was made uniform and apf»lieablc aUi
to all lands to be furnished witJi
in and outside of the city, and
for a wattt* rigfit had ever sino
as a condition upon which aloi
be supplied to consumers for the prnprnu t£
irrigation, and many oonsumerv prior to thr
^adoption of the ordinance had pwrrheie'
such water right and paid iheareiaT;
That the rate charged for sn^ water rifhft
was reasonable and luat sind wi
to enable the plaintiff to keep op
its water system so as to supply
consumers requiring and needing the «aa
and without which it could not operate nai
extend its plant so as to render it araiUW
and beneficial to all water eoosamem tkst
could with the necessary expaiditore be ai^
plied from the system;
That the lands covered by plaintiff*! m-
tem were arid and of but little vahw wit^
out water, and a water rifffat soch as itgrus-
ed to consumers increased the land in rsiw
more than three times the amount eSbmifti
for such right and was of great valne to tb
landowner;
That the above ordinance fixed the tobl
charge that mi^t be made by the plaiatif
for water furnished for purposes of irrifeS'
tion at four dollars per acre
and as construed by the city
deprived the plaintiff of all right to asks
any charge for water rights, and the nit
was fixed without taking into account or sih
lowing in any way for such water right:
That the amount of four dollars per
per annum was unreoJ^naUy lam mmi
quired the plaintiff to furnish wmtar to
sumers within the limits of the city lor
poses of irrigation for less than it f ui siihe^
the same to consumers outside of the Htj f<r
the same purpose, and so low that it eoaU
not furnish the same without positiT« le«
to itself ;
That large numbers of persons rcsidiif
within the city owning land therein and ^
siring to irrigate the same were ilinisailin.
that their lands be connected with the plain-
tiff's fjstem and supplied with water «t t^
rate of four dollars per acre per annum wai
wititout any payment for a water ri^t. asd
under the laws of the state of California if
water was once furnished to such partin
they thereby obtained a perpetual r^^t is
the use of water on their lands without ps?^
ment for such water rights; and.
That until the questions as to the
of the ordinance and of the right of the
tiff to diarge for a water right *as a
tion upon whidi it would furnish
purposes of Irrigation wwe detcrvinad, the
plaintiff oould not safely charge for sudb wa-
ter rights or collect fair and reasoaabls rmiss
for water furnished by reason of wUeh It
1T4 v.!.
t«i
u^
ac ;
1898.
Ban Dmao Land & Town Co. v. National Citt.
746-747
%T
r_
^. ^
wcmld be damaged in the turn of twenty
^ ^ thousand dollars.
^^ The relief asked was a decree adjudging
•^^^ tliat the rates fixed by the defendant ci^
n 7'. were void ; that the CJonstitution and laws of
1- - Calif omia and the proceedings of the def end-
- ^ ant's board of trustees under them were in
::•-< violation of the Constitution of the United
I :^ . States, and particularly of the first section of
■'■','- the Fourteenth Amen<unent; and that the
~.'^ taking of the plaintiff's water, without pay-
^j., ment for the water ri^ht or the riffht to the
use thereof, was in violation of the Bill of
Kights of the Constitution of California.
The plaintiff also prayed that if the court
determined that the state Constitution and
laws relating to compensation for the use of
water for public purposes were valid, then
that it be declarea by decree that the rates
fixed in the ordinance were arbitrary, un-
reasonable, unjust, and void; that the board
of trustees be ordered and required to adopt
a new and reasonable rate oi charges; and
that the enforcement of the present ordi-
nance be enjoiDcd.
The plaintiff asked that it be .further de-
creed that it was entitled to charge and col-
lect for water rights at reasonable rates as
a condition upon which it would fui-nish wa^
ter for the purposes of irrigation, notwith-
standing the rates fixed by the trustees for
water sold and furnished.
It was denied that the rates fixed by the
ordinance in question were unreasonable or
unjust, or that the plaintiff could not realize
within the city sufficient to pay the just
proportion that the city and its inhabitants
ought to contribute to the expenses of the
plaintiff's system, nnd as mudi more as the
city and its inhabitants should justly and
reasonably pay toward interest and profit on
plaintiff's investment as the same existed
wh«n the ordinance was enacted. It was al-
leged that under the annual rates fixed by
tl^ ordinance the income of the plaintiff in
the city would be about the same as that
derived and being derived by it under the or-
r46]dinance previouslv in force ; *that it was not
true that plaintifif could only supply consum-
ers within the city at the rates so fixed at a
loss; and that to compel the plainUff to fur-
nish water at said rates was not a practical
confiscation of its property or a taking of it
without due process of law.
The defendants admitted that the city was
composed in considerable part of a territory
of farming lands devoted to the raising of
fruits ana other products, and that a part
thereof was occupied by residences and busi-
ness houses. But it was averred that the
population of the city when the ordinance
was adopted was about 1.300 persons; that
the area within its boundaries laid out in
town lots was about 800 acres, divided into
6,644 lots, of which the plaintiff in January,
1887, owned 4,200; that the land within the
boundaries of the city not laid off into town
lots comprised about 3,500 acres of which
the plaintiff in January, 1888, owned 1,289%
acres; that when the ordinance was passed
plaintiff continued to own about 3,688 of said
lots and about 1,184 acres of land; and that
the number of acres of farming land not un-
_^, *■
<■' t
der irrigation in the city at the time when
the ordinance was passed was about 610.
It was further stated that since the plain-
tiff established the rate of $100 per acre for
such ''perpetual right for the purpose of ir-
rigation'' it bad in no instance supplied wa-
tor to any land not already under irrigation
except on purchase of said "water right" and
payment tnerefor; and that the rate diarged
tor said "water right" was not reasonable or
just nor necessary to enable plaintiff to keep
up and extend its water system, so as to sup-
ply water to consumers who required and
needed the same.
The defendants insisted that the laws of
California did not confer upon the city or its
board of trustees the power to prescribe by
ordinance or otherwise that the purchase
and payment of such "water rights'' should
be a condition to the exercise of the right of
consumers to use any water appropriated for
irrigation as already stated or any water
supply affected with the public use; that $4
per acre was not unreasonably low; and thai
such rate did not require the plaintiff to fur-
nish water to consumers within the city for
purposes *of irrigation for less than it fur-[747]
nished the same to consumers outside of the
city for the scune purposes, or that it could
not furnish the same without positive loss to
itself.
It was further averred that up to December,
1892, plaintiff by its public representations
and continuous pracuce voluntarily eon*
ferred and annexed such perpetual rights to
the use of the water on the lands of SH per-
sons who requested the samA without the pay-
ment of any consideration therefor except the
annual rateof $3.50 per acre adopted by itun-
der its entire system within and without the
city, in addition to dbarges made for tap oon^
neotions with its pipe, ranging from $12 to
$50 for eadi such connection; that in De-
cember, 1892, it changed its rule and prac-
tice, and from that time on until February,
1895, diarged and eooicted the payment at
and for a so-called water right of $50 per
acre, and from ihe latter date $100 per acre,
for the privilege of connecting with its sys-
tem any lands not then already under irriffa-
tion from it; and that since December, 1892,
it had at all times declined and refused to
connect and had not in fact connected any
lands with its irri|^ting system except upon
payment made to it of such rates of $50 and
$100 per acre respectively for the "water
right ;^' and that whether plaintiff could or
could not safely charge for such water rights i
bad been in no way by law committed to said
board of trustees to determine.
The cause having been heard upon the
pleadings and proofs, the bill was dis-
missed. 74 Fed. Rep. 79.
Messrs. G. Wiley Wells, John D, Works,
Bradner W, Lee, and Lev>is it. Works for ap-
peUant.
Meaare, IrHne Pnngan and Daniel Jf • '<
Hammock for appellees.
*Mr. Justice Harlan, after stating the case[747]
as above, delivered the opinion of the court:
While admitting that the power to limit
1157
747-750
SUPBEMS COUBT OT THS UinTED StATKS.
Oct. T
charges for water sold by a corporation like
[748] itself has been too often upheld to *be now
questioned, the appellant contends that the
Constitution and statutes of California re-
latins^ to rates or compensation to be col-
lected for the use of water supplied to a mu-
nicipality or its inhabitants are inconsistent
with the Constitution of the United States.
It is said that the state Constitution and
laws authorized rates to be established with-
out previous notice to the corporation or
person immediately interested in the matter,
and without hearing in any form, and there-
fore were repugnant to the clause of the Fed-
eral Constitution declaring that no state
shall deprive any person of property without
due process of law.
Upon the point just stated we are referred
to the decision of this court in Chicago, M. d
8i. P. Railway Co, v. Minnesota, 134 U. S.
418, 452, 456, 457 [33: 970, 977, 980, 981, 3
Inters. Com. Rep. 209]. Tluit case involved
the constitutionality of a statute of Minne-
sota empowering a commission to fix the rates
of charges by railroad companies for the
transportation of property. The supreme
court of tiie state held that it was intended
by the statute to make the action of the com-
mission final and conclusive as to rates and
that the railroad companies were not at liber-
tj, in any form or at any time, to question
them as being illegal or unreasonable. This
court said : '^This being the construction of
the statute by wliich we are bound in con-
sidering the present case, we are of opinion
that, 80 construed, it conflicts with the Con-
stitution of the United States in the particu-
lars complained of by the railroad company.
It deprives the company of its right to a ju-
dicial investigation, by due process of law,
under the forms and with the machinery pro-,
vided by the wisdom of successive ages for
the investi^tion, judicially, of the truth of
a matter in controversy, and substitutes
therefor, as an absolute finality, the action of
a railroad commission which, in view of the
powers conceded to it by the state court, can-
not be regarded as clothed with judicial func-
tions or possessing the machinery of a court
of justice." "By the second section of the
statute in Question it is provided that all
oharges made by a common carrier for Uie
transportation of passengers or property
shall be equal and reasonable. Under this
provision the carrier has a right to make
equal and reasonable charges for such trans-
^740]portation. •In the present case, the return
alleged that the rate of charge fixed by the
commission was not equal or Reasonable, and
the supreme court held that the statute de-
prived the company of the right to show that
judicially. The question of the reasonable-
ness of a rate of charge for transportation
by a railroad company, involving, as it does,
the element of reasonableness, both as re-
gards the company and as regards the
Snblic, is eminently a question for ju-
icial investigation, requiring due process
of law for its determination. If the com-
pany is deprived of the power of charging
reasonable rates for the use of its property,
and snch deprivation takes place in the ab-
senos of an investigation by judicial machin-
1158
ery, it is deprived of the lawfal use of im
property, and thus, in snbrrtaiwg and eSsEX.
of tuie property its^, without doe proceas a
law, and in violation of the CobsUuuioc u
the United States; and in so lar as it is Ua
deprived, while other persons are pem^nM
to receive reasonable profits npoa x^ea n-
vested capital, the company is deprired «c
the equal protection of the laws." ObMnt
that this court based its internretaii^ic ji
the statute of Minnesota upoa the coibtrv-
tion given to it by the sapreme eoart oj iz^
state.
Wha;t this court said about the Minsf^a
statute can have no applicatioii to the prei-
ent case unless it be nuuie to appear thai '.*
Constituti(m and laws of CaiiiorBia mr^c
the municipal authorities of that state v:*^
power to fix water rates arbitrarily, vit^z
investigation, and without permittiBgr ts»
corporations or persons affec^ied theRkx *
make any showing as to rates to be eul-tru
or to be heard at any time or in any war ^^
on the subject. 'Hie contention of appc..^
is that suc^ is the purpose and neftwi'T --
feet of the Constitution of the state. ' ^ *
are not at liberty so to interpret that tBftrs
ment. What the supreme court of Calii c-
nia said in Spring Valley Water Wm-tM j
San Francisco, 82 Cal. 286, 30«, 307. 3I»
315 [6 L. R. A. 756], upon tUs sa^.v'
would seem to be a sufficient maswcr to u*
views expressed by the appellanL In ti^
case it was contended that a board of svov-
visors had fixed rates arbitrmrily, wi^rr:
investigating, without any exercise of ja^
ment or discretion, without any ref(
what they should *be, and without ref^
either to the expense incurred in
water or to wnat was fair
therefor. The court said:
tion does not contemplate any
fixing rates. It is not a matter of
work or an arbitrary fixing of rate
reference to the rights of the water
or the public. When the Constitntian sr»>
vides for the fixing of rates or eootp
it means reasonable rates and fmst
sation. To fix such rates and
it is the duty and within the j
the board. To fix rates not
compensation not just is a plain riolatScv
it<% duty. But the courts cannot,
board has fully and fairly investj
acted, by fixing what it believes to
able rates, step in and say its action shaC te
set aside and nullified beonuse the eonrts. a>
on a similar investigation, have eovte u t
different conclusion a.* to the ruasnnaTJutf ■■
of the rates fixed. There most be art : .
fraud in fixing the rates, or they mustt b* «c
palpably and grossly unreaM>niib1e and r*^
just as to amount to the same thin^.** •'T •
fact that the right to store and daspcme '
water is a public use subject to the eontrm* '
the state, and that it^ r^ulatioo is pmn '
for by the state Constitution, does not aff^-c
the qiiestion. K^ulation as provided for n
the Constitution does not mean conA«catfr-«
or taking without just compensation. If -t
docs, then our Constitution is clearly In t* i^
lation of the Constitution of the' Vr:T*4
States, which provides that this shall i« ^t Se
174 V. %.
^
I*
1898.
San Diego Land & Town Co. t. National Onr.
750-758
done. The n-ound taken by the appellant is
that the fbdnff of rates is a legialaiive act;
that by the Serins of the Ckmstitution the
board of supervisors are made a part of the
legislative department of the state govern-
ment and exclusive power given them which
cannot be encroached upon by the courts.
. . . This court has held that the fixing
of water rates is a legialaiive act, at least
to the extent that the action of the proper
bodies clothed with such power cannot be
controlled by writs which can issue only for
the purpose of controlling judicial action.
Spring Valley Water Works v. Bryant, 52
Cal. 132; Spring Valley Water Works v. City
and County of San Franoiaoo, 52 Cal. Ill;
Spring Valley Water Works v. Bartlett, 63
[761]Cal. 245. '"Diere are other cases holding the
act to be legislative, but whether it is judi-
cial, legislative, or administrative is inuna-
terial. Let it be which it may, it is not
above the control of the courts in proper
cases. . . . We are not inclined to the
doctrine asserted by the appellant in this
case, that every subordinate body of officers
to whom the les^islature delegates what may
be regarded as l^islative power thereby be-
comes a part of the legislative branch of the
state government &nd beyond judicial con-
trol. In the case of Davis v. Mayor, etc, of
New YorkfSupra [1 Dwer, 451-497], it is fur-
ther said: '. , . The doctrine, exactly as
stated, may be true when applied to the leg-
islature of the state, which, as a oo-ordin-
ate branch of the government, representing
and exercising, in its sphere, the sovereigpi-
ty of the people, is. for political reasons, of
manifest force, wholly exempt in all its pro-
ceedings from any legal process or judicial
control; but the doctrine is not, nor is any
Jortion of it, true, when applied to a subor-
inate municipal body, which, although
clothed to some extent with legislative, and
even political, powers, is yet. in the exercise
of all its powers, just as subject to the au-
thority and control of courts of justice, to
legal process, legal restraint, and legal cor-
rection, as any other body or person, natural
or artificial."* Again: **0n the part of
the respondent it is contended, in support of
the decision of the court below, that notice
to tiie plaintiff of an intention to fix the rates
was necessary, and that without such notice
being given, the action of the board was a
taking of its property without due process of
law. But the Constitution is self-executing,
and as it does not require notice, we think no
notice was necessary. It does not follow,
however, that because no notice is necessary,
the board are for that reason excused from
applying to corporations or individuals in-
terested to obtain all information necessary
to enable it to aot intelligibly and fairly in
• fixing the rates, lliis is Its plain duty, and
a failure to make the proper enort to procure
all necessary information from wnatever
source may defeat its action."
In the more recent case of San Diego Wa^
ier Co, y. San Diego, 118 Cal. 556, 566 [38
L. R. A. 4601], the state court, referring to
[7631]* section 1 of the Constitution of California,
said that the meaning of that section was
that "the governing lK>dy of the municipal-
174 V. 1.
ity, upon a fair investigation, and with the
exercise of judgment and discre]|ion, shall fix
reasonable rates and allow just compensa-
tion. If they attempt to act arbitrarily,
without investigation, or without the exer-
cise of judgment and discretion, or if they
fix rates so palpably unreasonable and un-
just as to amount to arbitrary action, they
violate their dutv and go beyond the powers
conferred upon them. Such was the conclu-
sion reached by this court in Spring Valley
Water Works v. San Francisco, 82 Oal. 286
[6 L. R. A. 756], 16 Am. St Rep. 116, to
whidi conclusion we adhere. Although that
case was decided without the light cast on
the subject by later decisions of t£e Supreme
Court of the United States, and contains
some observations that perhaps require
modification, we are satisfied with the oor-
rectnees of the conclusion [construction]
there given to this section of the Constitu*
tion."
Was the appellant entitled to formal no-
tice as to the precise day upon which the
water rates wotdd be fixed oy ordinance?
We think not. Hie Constitution itself was
notice of the fact that ordinances or resolu-
tions fixing rates would be passed annually
in the month of Febniary in each year and
would take effect on the first day of July
thereafter. It was made b^ statute the duty
of the appellee at least thirty days prior to
the 15th day of January in each year to ob-
tain from the appellant a detailed statement,
showing the names of water rate payers, the
amount paid by each during the preceding
year, and ''all revenue derived from au
sources," and Uie^expenditures made for sup-
plying water during said time." It was toe
right and duty of appellant in January of
ei^ month to make a detailed statement,
under oath, showing every fact necessary to
a proper conclusion as to the rates that
shoula be allowed by ordinance. Act of
Marcb 7tli, 1881, § 2, above cited. Provision
was thus made for a hearing in an appropri-
ate way. The defendant's l>oard coiud not
have refused to receive the statement re-
ferred to in the statute, or to have dtdv con-
sidered it and given it proper weight in de-
termining rates. If the state by its consti-
tution *or laws had forbidden tne tity or its[759]
board to receive and consider any statement
or showing made by the appellant touching
the subject of rates, a different question
would have arisen. But no such case is now
presented. In Kentucky Railroad Tarn Oases,
115 U. S. 321, 333 [29:414, 417], it waa
said : "This return made by the corporation
through its oflicers is the statement of its
own case, in all the particulars that enter
into the question of the value of its taxable
property, and may be verified and fortified
by such explanations and proofs as it may
see fit to insert. It is laid by the auditor of
public accounts before the board of railroad
commissioners, and constitutes the matter on
which they are to aet. They are required to
meet for that purpose on the first day of
September of each year at the office of the au-
ditor at the seat of govenunent. . . .
These meetings are pubUo and not secret.
1159
758-756
SUPBEMS OOUBT OV THE UmiKD STA1S8.
Tbc time and plioe for liolding them an
fixed by law."
Th^ e is no ground to say that the appe-
lant did not in fact baye or was denied an
opportunity to be heard upon the question
of rates. On the contrary, it appears in eyi-
dence that the subiect of rates was consid-
ered in conferences between the local author^
ities and the officers of the appellant. Those
i^cers may not haye been present at the
final meeting of the city board when the or-
dinance complained of was passed. They
were not entitled, of right, to be present at
that particular meeting. They were heard,
and there is nothing to justify the conclu-
sion that the case ol the appellant was not
fully considered before the ordinance was
parsed. .
That ft was competent for the state of
Oalifomia to declare that the use of all wa-
ter appropriated for sale, rental, or distribu-
tion should be a public use and subject to
public regulation and control, and that it
oould confer upon the proper municipal cor-
poration power to fix tne rates of compensa-
tion to be collected for the use of water sup-
plied to any city, county, or town or to the
inhabitants* thereof, is not disputed, and is
not, as we think, to be doubted. It is equal-
ly dear that tiiis power could not be exer-
cised arbitararily and without reference to
what was just and reasonable as between the
public and those who appropriated water and
(y64]supplied it for ^f^eneral use; for the state
cannot by any of its agencies, legislative, ex-
ecutive, or judicial, withhold from the own-
ers of private property just compensation for
Its use. That would be a deprivation of
propeoi^ without due process of law. Ohi'
eago, Burlington, d Q, Railroad Co, v. Ohi-
oago, 166 if. S. 226 [41 : 979] ; Smyth t.
Ames, 169 U. S. 466, 524 [42: 819, 841]. But
H should also be remembered that tiio ju-
diciary ought not to interfere with the col-
lection of rates established under legislative
sanction unless they are so plainl]^ and pal-
pably unreasonable as to make their enforce-
ment equivalent to the taking of property
for public use without such compensation as
under all the circumstances is just both to
the owner and to the public : that is, judicial
interference should never occur unices the
ease presents, clearly and bey<md all doubt,
such a fiagrant attack upon the rights of
property under the guise of regulations as to
compel the court to say that the rates pre-
scribed will necessarily have the effect to
deny just compensation for private proper^
taken for the public use. Chicago d Orand
Trunk Railway Co. v. WeUman, 143 U. S.
339, 344 [3G: 176, 179] ; Reaqan v. Farmen*
Loan d Tru3t Co. 154 U. S. 362, 399 [38:
1014, 1024, 4 Inters. Ckmi. Rep. 560] ; Smyth
T. Ames, above cited. See also Henderson
Bridge Co. v. Henderson City, 173 U. 8. 592,
614, 615 [ante, 823, 831].
In view of these principles, can it be said
that the rates in question are so unreason-
able as to call for judicial interference in be*
half of the appellant? Such a question is
always an emoarrassing one to a judicial
tribunal, because it is primarily for the de-
termination of the legislature or of some
1160
0^«i
public agency designated bj it. Bat
it is alleged that a state ensrtmf
or destroys rights secured by tte
tion of the United States a judicial
arises, and the courts. Federal
must meet the issue, taking
to entrench upon the autiiori^ bihi,ia| to
a different department, nor to dian^m a
statute unless it be unmistakably
to the fundamental law.
What elements are invcrivcd in t3sm
inquiry as to the reasonableaeas of
tablished by law for the use of proparty hv
the public? This question received ■»
consideration in Smyth y. Amee,
That case, it is *true. r^ated to
lished b^ a statute of Nebraska
companies doing business in thai
the principles involved in huA a
plicable to the present case. It
contended that a railroad company
tied to exact such charges for
as would enable it at all times,
pay operating expenses, but to
terest regularly aooruiitf upoti all its
standing obligations and justify a £vi
upon ail its stock; and that to prokAit it
from maintaining rates or diargea lor
Krtation adec^uate to aU those
a deprivation of propertr i
process ol law, and a oenial of the
tection of the laws. After
this broad proposition involyed a
tion of the relations between thm pvhtie sal
a railroad corporation, that sndi a
tion was created for public
performed a function of the atate^
its right to exercise the power of
domain and to charge tolls was eiiua pri*
marily for the benefit of the pnblie. &is
court said : '^t cannot, therefore, be
ted that a railroad eorporatkxi
a highway under the authority of tbe
may fix its rates with a view solely to its
own interests, and ignore the rights of the
eublic But the rights of the public woeU
e ignored if rates for the transportatiea «(
persons or property on a railroad are exacted
without reference to the fair vahie of the
property used for the public or the fair
of tne services rendered, but in
that the corporation may meet operating
penses.pay the interest on its obIigatioaa,aad
declare a dividend to stockholders. If a rail-
road corporation has bonded its ptopeity lor
an amount that exceeds its fair valoe, or ff
its capitalization is largely flctitioua, it mmj
not impose upon the public the bardm «f
such increased rates as may be required far
the purpose of realixinff profits npca ivck
excessive valuation or fictitiottB capitslisa
tion ; and the apparent value of the piupeitf
and franchises used by the eorporatiea, m
represented by its stocks, bonds, and oUifa-
tions, is not alone to be considered wWn de>
tennininc the rates that may be rsasiinal'v
charged.'*^ 169 U. S. 544 [42: 848]. In thf,
same case H was also said that "Hhe *ba%iW^W
of all calculation as to the reaaoaableaass ef
rates to be charged by a corporation Main-
taining a highway under leffislatiye aaactiam
must be the fair value of Uie property naed
by it for the convenience ef the puolic. Aad
174 V. S.
s
189&
San Diego Land & Town Co. y. National Citt.
756-758
in order to aaoertain that yalue, the original
cost of ooDstruction, the amount expended in
permanent improvements, the amount and
**^ market value of its bonde and stock, the
present as compared with the original cost
of construction, the probehle earning cape<>-
'-- ity of the property under particular rates
- prescribed by statute, and the simi required
•^ to meet operating expenses, are all matters
'^ for consideration, ana are to be given such
weight as may be just and right in each case.
We do not say that there may not be other
matters to be regarded in estimating the
value of the property. What the company
is entitled to ask is a fair return upon the
value of that which it employs for the public
convenience. On the other hand, what the
public is entitled to demand is that no more
De exacted from it for the use of a public
highway than the services rendered by it are
reasonably worth." 169 U. S. 546 [42:
819].
This court had previously held in Coving-
ton d LesDxnyton Turnpike Road Company
T. Sandford, 164 U. S. 578, 596, 598 [41 :
560, 566, 567] , — ^which case involved the rea-
fionableness of rates established by legislap
tlve enactment for a turnpike company, —
that a corporation performing public services
was not entitled, as of rifi^ht and without ref-
erence to the interests of the public, to real-
ize a given per cent upon its capital stock;
that stockholders were not the only persons
wlfoee riehtfl or interests were to be consid-
oned; and that the rights of the public were
not to be ignored. The court in that case
further said : "Each case must depend upon
its special facts ; and when a court, without
assuming itself to prescribe rates, is required
to determine whether the rates prescribed bv
the legislature for a corporation control-
ling a public highway are, as an entirety, so
unjust as to destroy the value of its property
for all the purposes for which it was ac-
(mired, its duly is to take into consideration
tbe interests both of the public and of the
owner of the property, together with all
7&7]other 'circumstances that are fairlv to be con-
sidered in determining whether the legisla-
ture has, under the guise of regulating rates,
exceeded its constitutional authority, and
practically deprived the owner of property
without due process of law. . . . The ut-
most that any corporation operating a pub-
lic highwav can rightfully demand at the
hands of the le^is]atiu*e, Vhen exerting its
ffeneral powers, is that it receives what un-
oer all the circumstances is such oompensar
Hon for the use of its property as will be
just both to it and to the public."
These principles are recognized in recent
decisions of the supreme court of California.
San Diego Water Co. v. City of San Diego
(1897) 118 Cal. 556 [38 L. R. A. 460] ; Red-
lands L. ti C. Domestic Water Co. v. City
of Redlands (1898) [121 Cal. 365], 53 Pac.
843. 844.
' The contention of the appellant in the
present case is that in ascertaining what are
]ust rates the court should take into consid-
eration the cost of its plant; the cost per
annum of operating the plant, including in-
terest paid on money borrowed and reason-
174 V. 8.
ably necessary to be used in constructing the
same; the annual depreciation of the plant
from natural causes resulting from its use;
and a fair profit to the company over and
above such (marges for its services in supply-
itg the water to consumers, either by way
of interest on the money it has expended for
the public use, or upon some otiier fair and
equitable basis. Undoubtedly, all these mat-
ters ought to be taken into consideration,
and such weight be given them, when rates
are being fixed, ae under all the circum-
stances will be just to the company and to
the public. The basis of calculation sug-
gested by the appellant is, however, defect-
ive in not requiring the real value of the
property and the fair value in themselves of
the services rendered to be taken into consid-
eration. What the company is entiUed to
demand, in order that it may have just com-
pensation, is a fair return upon the reason-
able value of the property at the time it la
being used for the public. The property may
have cost more than it ought to nave cost,
and its outstanding bonds for money bor-
rowed and which went into the plant may
be in excess of the real vidue of the prop-
erty. So that *it cannot be said that the[768]
amount of such bonds should in every case
control the question of rates, although it
may be an element in the inquiry as to what
is, all the circumstances considered, just
both to the company and to the public.
One of the points in dispute involves the
question whether the losses to the appellant
arising from the distribution of water to
consumers outside of the city are to be con-
sidered in fixinff tiie rates for consumers
within the city. In our judgment the circuit
court properly held that the defendant ci^
was not required to adjust rates for water
furnished to it and to ite inhabitants so as
to compensate the plaintiff for any such
losses. This is so clear that we deem* it im-
necessary to do more than to state the con-
clusion reached by us on this point.
One of the questions pressed upon our con-
sideration is whether the ordinance of the
city should have expressly allowed the ap-
pellant to charge for what is called a "water
right." That right, as defined by appel-
lant's counsel, is one "to the continued and
perpetual use of the water upon the land to
which it has been once supplied upon pay-
ment of rates therefor estoblished by the
company." In the opinion of the circuit
court it is said that "no authority can any-
where be found for any charge for the so-called
water right." This view is controverted
by appellant, and cases are cited which, it is *
contended, show that the broad declaration
of the circuit court cannot be sustained.
Fresno Canal d Irrig, Co, v. Rov>ell, 80 Cal.
114: Fresno Canal d Irrig. Co. v. Dunhar,
80 Cal. 530; San Diego Flume Co. v. Chase,
87 Cal. 561 ; Clyne v. Benicia Water Co. 100
Cal. 310; San Diego Flume Co. v. Souther
(C. C. A.) 90 Fed. Rep. 164.
We are of opinion that it is not necessary
to the determination of the present case that
this question should be decided. We are
dealing here with an ordinance fixing rates
or compensation to be collected within a
1161
758-761
SuPBEiCB Cocnrr or the Unitxd States.
Oct. Tkric,
given year for the use of t^ater supplied to a
city and its inhabitants or to any corpora-
tion, company, or person doing business or
uding water within the limits of that cil^.
In our judgment, the defendant correctly
says in its answer that the laws of the state
[760]^haye not conferred upon it or its board of
trustees the power to prescribe by ordinance
or otherwise that the purchase and payment
for so-called "water rights" should be a con-
dition to the exercise of the right of consiun-
ers to use any water appropriated for irri-
gation or affected with a public use.
The only issue properly to be determined
by a final decree in this cause is whether
the ordinance in question fixing rates for
water supplied for use within the city is to
be stricken down as confiscatory by its neces-
sary operation, and therefore in violation
of the Constitution of the United States. If
the ordinance, considered in itself, and as
applicable to water used within the city, is
not open to any such objection, that dis-
poses of the case, so far as any rights of the
appellant may be affected by the action of
the defendant. The appellant asks, amons
other things, that it be decreed to be entitled
to charee and collect for "water rights" at
reasonable rates cts a condition upon which it
will furnish water for the purposes of irri-
gation, notwithfitanding the rates fixed by
the defendant's board of trustees for water
sold and furnished within the city. Tliat is
a question wholly ajiart from the inquiry
as to the validity under the Constitution of
the United States of the ordinance of the de-
fendant fixing annual rates in performance
of the duty enjoined upon it by the Constitu-
tion and laws of the state. Counsel for ap-
pellant, while insistinff that the circuit court
erred in saying that there wba no such thing
as a "water right/' says: "The Constitution
of the state has nothing whatever to do with
a water right or the price that shall be paid
for it. It simply provides for fixing Hie an-
nual rental to be paid for the water fur-
nished and used. When one obtains his
water right by purchase or otherwise, he has
H right t^ demand that the water shall be fur-
nished to his lands at the price fixed, as
provided by law, and that the company shall
exact no more. But he must first acquire
the right to have the water on such terms.
Whether in fixing the annual rates to be
charged, the body authorized to fix them can
take into account the amount that has been
reoeiv^ by the company for water rights, is
another question, and one that is not pre-
sented in this case. Nor is any question
[700]raised *a8 to what would be a reasonable
amount to exact for a water right, or whether
the courts can interfere to determine what
la a reasonable amount to charge therefor."
These reasons are sufiicient to sustain the
conclusion already announced, namely, that
the present case does not require or admit
of a decree declaring that the appellant may,
in addition to the rates established by the
ordinance, charge for what is called a "water
right" as defined by it. It will be time
enough to decide such a point when a case
actually arises between the appellant and
1162
some person or corporation involving the
question whether the former may require, as
a condition of its furnishing water within
the limits of the city on the terms prescribed
by the defendant's ordinance, that it be also
paid for what is called a ^water right."
We will not extend this opinion by an an-
alysie of all the evidence. It ia sufficient to
say that upon a careful Boniiiny of the testi-
mony our conclusion is that no case is made
that will authorize a decree declaring that
the rates fixed by the defendant's ordinance,
looking at them in their entirety — and we
cannot properly look at them in anv other
light — are such as amount to a taking of
property without just compensation, and
therefore to a deprivation of property with-
out due process of law. There is evidence
both ways. But we do not think that we
are warranted in holding that the rules upon
which the defendant's Mard proceeded were
in disregard of the principles heretofore an-
nounced by this court in the oases cited.
The case is not one for judicial interference
with the action of the local authorities to
whom the question of rates waa committed
by the state.
The decree dismissing the hill is affirmed.
CITY OF RICHMOND, AppU,
SOUTHERN BELL TELEPHONE & TELE-
GRAPH COMPANY, Appellee,
(See 8. C. Reporter** ed. 761'77&)
A telephone company not entitled to benefit
of act of Congress for the use of post roads
of July 24, 1866,
A telephone company whose bnalness Is the
electrical transmission of articulate speech
between different points Is not entitled to the
benefit of the act of Conjirress of July 24. 1866
(U. S. Rev. Stat. SS 5263-5268). respecting
the use of post roads by telegraph companies.
[No. 204.]
Argued April 24, 25, 1899. Decided May
22, 1899.
ON WRIT OF CERTIORARI to the United
States Circuit Court of Appeals for the
Fourth Circuit to review a aecree of that
court reversing the decree of the Circuit
Court of the United States for the Eastern
District of Virginia which overruled a de-
murrer to the complaint, and decreed that
the Southern Bell Telephone Company haa,
under the act of Congress of July 24, 1866,
the right to construct and maintain its lines
over and along the streets of the city of Rich-
mond, etc. The Circuit Court of Appeals held
that while said company was entitled to the
privileges of the said act of Congress, this
right was to be enjoyed in subordinatiAn to
public and private rights and to the power
of the municipality to regulate the use of the
highways, and therefore remanded the cause
to the Circuit Court with instructions to
modify the injimction. Decree of Circuit
174 U. S.
[7611
llli
1898.
Richmond y. Southebn Bell Telbphonb & Txlbgraph Co.
r61-764
Court of Appeals affirmed so far as it revers-
es the decree of the Circuit Court, and cause
remanded, with directions for further pro-
ceedings in the latter court.
See same case below, 78 Fed. Hep. 868, and
42 U. S. App. 686, 697, 698, 85 Fed. Rep. 19,
28 C. C. A. 659.
The facts are stated in the opinion.
Messrs, Henry R. Pollard and O. V.
Xeredltli for appellant.
Messrs. Hill Carter, Addison I«. Hol-
lada7» and George H, Fearons for appellee.
^^1 *Mr. Justice Harlan delivered the opinion
<A the court:
The principal question in this case is
whether the circuit court and the circuit
eoort of appeals erred in holdine that the ap-
pdlee was entitled to claim the oenefit of the
Srovisions of the act of Congress approved
uly 24th, 1866, entitled "An Act to Aid in
the Construction of Telegraph Lines, and to
secure to the Government the Use of the
Same for Postal, Military, and Other Pur-
poses." 14 SUt. at L. 221^ chap. 230.
1^ that act — ^the provisions of which are
preserved in sections 5263 to 5268, inclusive,
title LXV. of the Revised Statutes of the
United States — it was provided:
"9 ]. That any telegraph company now
organized, or which may hereafter be organ-
ize under the laws of any state in this
XJnion, shall have the right to construct,
▼•^Imaintain, and •operate lines of telegraph
through and over any portion of the public
domain of the United States, over and along
any of the military or post roads of the Unit-
ed States which have been or may hereafter
be declared such by act of Confess, and
over, under, or across the navigable streams
or waters of the United States: Provided,
That such lines of telegraph shall be so con-
structed and maintained as not to obstruct
the navigation of such streams and waters,
or interfere with the ordinary travel on such
military or post roads. And any of said
companies shall have the risht to take and
use from such public lands the necessary
stone, timber and other materials for its
Jiosts, piers, stations, and other needful uses
n the cons«truction, maintenance, and opera-
tion of said lines of telegraph, and may pre-
empt and use such portion of the unoccu-
pied public lands subject to pre-emption
through which its lines of telegraph may be
located as may be necessary for its stations,
not exceeding forty acres for each station;
but such stations shall not be within fifteen
miles of each other.
"5 2. That telegraphic communications be-
tween the several departments of the govern-
ment of the United States and their officers
and agents shall, in their transmission over
the lines of any of said companies, have pri-
ority over all other business, and shall be
sent at rates to be annually fixed by the Post-
master General.
*'S 3. That the rights and privileges here-
by granted shall not be transferred by any
company acting under this act to any other
corporation, association, or person: Pro-
videdt however, That the United States may
at any time after the expiration of five years
174 V. 8.
from the date of the passage of this act, for
postal, military, or otner purposes, purchase
all the telegraph lines, nroperty, and effects
of any or all of. said companies at an
appraised value, to be ascertained by five
competent, disinterested persons, two of
whom shall be selected by the Postmaster
General of the United States, two by the
company interested, and one by the four so
previously selected.
'*i 4. That before any telegraph company
shall exercise any of the powers or privileges
conferred by this act, such company shall file
their written acceptance with the Postmas-
ter ^General, of the restrictions and obliga-[7M]
tions required by this act." 14 Stat at L.
221, chap. 230.
Subsequently, by an act approved June 8th,
1872, all the waters of the United States dur-
ing the time the mail was carried thereon;
all railways and parts of railways which
were then or might thereafter be put in oper-
ation ; all canals and all plank roads ; and all
letter-carrier routes established in any city
or town for the collection and delivery ca
mail matter by carriers, — ^were declared by
Congress to be "post roads." 17 Stat, at L.
308, chap. 335. These provisions are pre-
served in section 3964 of the Revised Statutes
, of the United States.
By an act approved March 1st, 1884, "all
public roads and highways, while kept up
and maintained as such," were declared to be
"post routes." 23 Stat, at L. 3, chap. 0.
Proceeding under an act of the legislature
of New York of April 12th, 1848, and acte
amendatory thereof, certain persons associ-
ated themselves on the 11th day of Decem*
ber, 1879, under the name of the Southern
Bell Telephone ft Telegraph Company. The
articles of association stated that tiie gen-
eral route of the line or lines of the com-
5 any should be from its office in the city of
few York, "by some convenient route
through or across the states of New Jersey
Pennsylvania, Delaware, Maryland, and Vir-
ginia, or otherwise, to the city of Wheeling
or some other convenient point in the state
of West Virginia, and thence to and between
and throughout various cities, towns, points, *
and places within tAiat part of the state of
West Virginia lying south of the Baltimore
ft Ohio Railroad, and within the states of '
Virginia, North Carolina, South Carolina,
Georgia, Alabama, and Florida, the said line
or lines to connect the said cities of New
York and Wheeling together, and the said
ot^er cities, towns, points, and places, or
some of them, or points within the same, to-
gether or with each other or with said cities
of New York and Wheeling."
By an ordinance passed by the city of
Richmond on the 26th day of June, 1884, it
was provided: "1. Permission is hereby
granted the Southern Bell Telephone ft Tele-
graph Company to erect poles and run suit-
able wires thereon, for the purpose of tele-
phonic communication throughout the city •of [764J
Richmond, on the public streets thereof, on
such routes as may be specified and agreed
on by a resolution or resolutions of the com-
mittee on streets, from time to time, and
1163
764-766
SUPBBMB COUBT OF THB UNIIXD STATS8.
Oct.
upon the conditionB and under the provisions
of this ordinance. 2. On any route conceded
by the committee on streets, and accepted
by the company, the sai^ company shall, un-
der the direction of the city engineer, so
place its poles and wires as to allow for the
use of the said poles by the fire alarm and
police telegraph, in all cases giving the
choice of position to the city's wires,
wherever it shall be deemed advisable by the
council or the proper committee to extend the
fire alarm and police telegraph over such
route. 3. The telephone company to furnish
telephone exchange service to the city at a
special reduction of ten dollars per annum
for each municipal station. 4. No shade
trees shall be disturbed, cut, or damaged by
the said company in the prosecution of the
work hereby authorized without the permis*
sion of the city engineer and consent of the
owners of property in front of which such
trees may stand, first had and obtained; and
all work authorized by this ordinance shall
be, in every respect, subject to the city engi-
neer's supervision and control. 5. The ordi-
nance may at any time be repealed by the
council of the city of Richmond; such repeal
to take effect twelve months after the ordi-
nance of resolution repealing it becomes a
law."
The Code of Virginia adopted in 1887, V
1287, provided that "every telegraph and every
telephone company incorporated by this or
any other state, or by the united States, may
construct, maintain, and operate its line
along any of the state or county roads or
worlu, and over the waters of the state, and
iidong and parallel to any of the railroads of
the state, provided the ordinary use of such
roads, works, railroads, and waters be not
thereby obstructed; and along or over the
streets of anv city or' town, with t^e consent
of the council thereof."
Under date of Februarv 13th, 1889, the
Southern Bdl Telephone a Telegraph Com-
pany filed with the Postmaster General its
written acceptance of the restrictions and
obligations of the above act of July 24th,
1866.
[765] *The present suit was brought bv that com-
pany in the circuit court of the United
States affainst the city of Richmond.
The bill alleged that the plaintiff was en-
gaged in the business of a ''telephone" com-
pany, and of constructing, maintaining,
and operating "telephone" lines in, through,
and between the states of Virginia,
West Virginia, North Carolina, South
Carolina, Georgia, Alabama, and Florida;
that it had been so engaged for a period of
about fifteen years, during which time it had
continuously maintained at various places
in said states and in Richmond, Virginia, an
exchange, poles, wires, instruments, and all
other apparatus and property necessary for
the maintenance and operation of "tele-
phones and telephone lines," and had erected
and maintained through and along the cer-
tain streets and alleys of that city numerous
poles and wires for conducting its business;
that it had so conducted its business and
erected and maintained its lines, wires, and
1164
poles under and by authority of the
council and board of aldermen of the city of
Richmond, the legislature of Virgiiiia, umd
acts of the Congress of tiie United States;
that its "telephone" wires and poVes wer*
used by its subscribers in conneeticmwith tke
Western Union Telegraph Company vadcr
an agreement between the plaintiff aad tkat
company for the joint use of the poles
fixtures of both companies in seoding aad
ceivin^ messages; that its biuincsB was
part interstate commerce by reasoa of
connections with the above tdeg^rapk
pany; and that its status wms that of %
tel^aph company under the laws d tho
United States, and of the state of Virgiam
and of other states of the United States, aad
that it was and is in fact diartered a^ a ts^
waph company under the genml la»m •<
New xork.
The plaintiff also aDeged that H had ac-
cepted the act of Confreaa of Jnly i4th»
1866; that by virtue of su^ aeeeptsaee it
became entitled to construct, mmintaia. aad
operate lines of telephones over aad aloag
any of the military roads and postt roads eC
the United States, which had then beea or
might thereafter be declared sodi by lav;
that the streeto, alleys, and highway* of the
city of Richmond are poet roada of the
United States; that the several departBi
of the *govemmeot of the United States
cated in Richmond have used ia that city
the plaintiff's dectrical conductors,
er facilities for the transmission oif
tions, orders, and information to
per<wns in the administration of
tal affairs and on other business throochoot
the several states and the district ol Cotaai-
bia and in foreign countries ; that
by virtue of the Virginia Code, scctii
the plaintiff was authorised and cm:
to construct, maintain, and operate
of poles and wires, with necessary facilitisa.
along and over the streeU of any dty «r
town in Virginia with the coneeat of the
council thereof, and under and bj virtae «f
the power and authority therein eotiffcrred.
all of which was additional to the right irrwa
by the above act of Congress, it nsaiataiafd
and operated ite lines in the streets of the
city of Richmond, and had in all reapeita
complied with the legal obligatSoaa aad re>
quiremente imposed ; that relyin|r apon its
right to erect, maintain, and operate itn Mmn
along and over the streeto and alley* of Kich-
monS. it entered upon said streeto and aD^Tt
and had conducted its business aad exvmitcd
ito contracto. of which a large nnmher wvrv
in force, to furnish and mffwti *telephoaie*
facilities to the residento of Riehmoad aad
to persons outside of the dty of Rirbmoad.
and with the officers and agents of the Ftd-
eral government; and that under the art «f
Congress of 18ft6 it was and Is entitled te
maintain and operate ito lines throagh aad
over the street;^ and alleys of the city cf
Richmond, ^'without reffarH to tk^ comtrmi
of the 8aid oiiyf and it did la fact lecete
many of ito poles and wires and begia the
operation of ito business trttAovf a^pfvnif It
the 9aid city for p€rm%9tion to 4o sn,*"
174 v. 1.
1898.
Richmond y. Southebn Bell Tblsphonb & Telboraph Co.
766-769
The bill then referred to an ordinanoe of
the cilT approved July 18th, 1S91, and al-
leged that it was in conflict with the plain-
tin's rights and void. It referred also to a
subsequent ordinance of December 14th,
1894, repealing the ordinance of June 26th,
1884, granting the right of way through the
city to the plaintiff, and providing '*'that in
accordance with the fifth section of said or-
dinance all privileges and rights panted by
said ordinance shall cease and be determined
787]at the expiration *of twelve months from the
approval of this ordinance by the mayor."
Keference was also made in the bill to two
ordinances passed September 10th, 1896, by
one of which it was provided, among other
things: "1. That all poles now erected in
the streets or alleys of the city of Richmond,
for the support of wires used in connection
with the transmission of electricity, except
such as support wires required by the city
ordinances, to be removed and run in con-
duits, shall hereafter be allowed to remain
only upon the terms and conditions herein-
after set forth. 2. No pole now erected for
the support of telephone wires shall remain
on any street in said city after the 15th day
of December, 1895, unless the owner or user
of such pole shall first have petitioned for
and obtained the privileges of erecting and
maintaining poles and wire:? for telephone
purposes in accordance with the conditions of
this ordinance, and such other conditions as
the council may see fit to impose. And if such
owner, failing to obtain such privilege as
above required, shall negleci or fail to re-
move such pole or poles and telephone wires
supported thereon from the streets or alleys
of the city by the 20th day of December,
1895, and restore the street to a condition
similar to the rest of the street or iilley con-
tiguous thereto, the said owner shall be li-
able to a fine of npt less than five nor more
than one hundred dollars for every such pole
80 remaining in the street or alley; to be im-
posed b^ the police justice of the city; each
day's failure to be a separate oiTensc."
By the other ordinance of September 10th,
1895, it was, among other things, provided:
**The city council will grant permission to
any company, corporation, partnership, or
individual to place its wires and electrical
conductors in conduit under the surface of
said streets of the city; any such individu-
al, partnership, corporation, or company de-
siring such permission shall petition to the
council therefor; such petition shall name
the streets, alleys, and the side and portions
thereof to be used and occupied by such con-
duits, and shall submit maps, plans, and de-
tails thereof to accompany such petition."
The bill contains additional allegations to
the effect —
That the fifth section of the ordinance of
1768]! 884 was null *and void; that the ordinances
roi erred to. were unreasonable, ultra vires,
and unconstitutional; that the plaintff was
entitled, "independent of and superior to the
consent of the oity of Richmond/' to "con-
struct, maintain, and operate" its lines "over
arid alon^' the streets of that city; that tele-
?hoT)e companies and their business were em-
74 V. 8.
braced by the terms of the act of Congress^
and that, in fact, telephone and telegraph
companies were, for the purposes embraced
by tnat act, one and the same ; that the post
roads spoken of in the act were not limited
to routes on the public domain, but embraced
all post roads of the United States that had
been or might hereafter be declared such by
Congress; that the streets and alleys of the
defendant being post roads, the plaintiff had
the riffht vnder the act of Congress "to oc-
cupy tne streets and alleys of the city of
Richmond for its purposes, guaranteed to it
by the Constitution and laws of the United
States, superior to any power in the said
oity to prevent it from so doing;** and that
it "claims not only the right to maintain its
present poles and wires along the streets and
alleys now occupied by it, but to extend them
to other streets and alleys as iis business and
the business interests of the country and its
patrons may require."
The city demurred to the bill of complaint,
but the demurrer was overruled. 78 Fed.
Rep. 858.
An answer was then filed which met the
material allegations of the bill and the cause
was heard upon the merits.
In the circuit court a final decree was en-
tered in accordance with the prayer of the
bill, as follows: "The court, without passing
on the rights claimed by the complainant
company under the laws of Virginia and the
ordinances of the city of Richmond, is of
opinion and doth adjudge, order, and decree,
that the complainant company has, in ac-
cordance with the terms and provisions and
under the protection of the act of Congress
of the United States approved July 24th,
1860 (which is an authority paramount and
superior to any state law or city ordinanoe
in conflict therewith), the right 'tx> construct,
maintain, and operate its lines over and
along' the streets and alleys of Hie city of
Richmond; both those now ^occupied by the[760]
complainant company and those not now so
occupied, and to put up, renew, replace, and
repair its lines, poles, and wires over and
along said streets and alleys, as well as to
maintain, construct, and operate the same,
and to connect its lines with new subscribers
along said streets and alleys, and the said
city of Richmond, its agents, officers, and all
others are enjoined and restrained from cut-
ting, removing, or in any way injuring said
lines, poles, and wires of i^e complainant
company, and from preventing or interfering
with the exercise of the aforesaid rights by
the complainant company, and also from tak-
ing proceedings to inflict and enforce fines
ana penalties on said company for exercising
its said rights. And the court doth ao-
judge, order, and decree that the defendant
do pay to the complainant its costs in this
suit incurred to be taxed by the clerk, and
this cause is ordered to be removed from the
docket and placed among the ended causes,
but with liberty to either party hereto on
ton days' luytice to the other to reinstate this
cause on the docket of this court, on motion,
for the purpose of enforcing and specifically
defininff, should it become necessary, their
respective rights under this decree."
* ^ 1165
769-772
SUFBKMB COTJBT OV THE UnITSD STATES.
The city asked tliat the decree be modified
by inserting therein after the words "con-
struct and operate the same," the following
words: "so far as to reoelye from and deliver
to the Western Union Teleerai^h Company
messages sent from beyond uie limits of the
^ state of Virginia or to be sent beyond the
said limits;''^ and by inserting therein after
the words, "interfering with the exercise of
the aforesaid rights by the complainant com-
pany/' the following words: ^so far as the
reception from and delivery to the Western
Union Tel^praph Company of any message
sent from beyond the linuts of this state of
Virginia, or to be sent b^ond said limits."
But counsel for complainant objected, and
the court (using the language of its order),
^intending by said injunction to enloin the
city from interfering with the local business
and messages, as well as those of an inter-
state charactcor," refused to so modify the de-
cree.
^^ Upon appeal to the circuit court of appeals
|770]it was hdd *that tiie plaintiff came witiiin
the protection and was entitled to the priy-
ileees of the act of Congress of July 24^ 1866 ;
ana tltat under that Mt it had the right to
construct, maintain, and operate lines of tele-
gra|^ over and along any of the post roads
of tne United States, and "when an effort is
made, or threatened, to deal with it as a
trespasser, it can refer to that act."
The circuit court of appeals also held that
the privileges so granted were to be enpoyed
in subordination to public and private rights,
and that the municipality could establish
lawful provisions regulating the use of the
highways mentioned in the act of Congress.
'This being so," that court said, "the in-
lunction granted by the circuit court is too
broad in its language and effect. There
should have been va» recognition of a proper
exerdse of the police power by the municipal
corporation and the use by the complainant
of its poles and lines should have oeen de-
clared to be subject to such regulations and
^ restrictions as may now or may be Hereafter
imposed by the cify council of Richmond, in
the proper and lawful exercise of the police
power." 42 U. S. App. 686, 697, 698.
The decree of the circuit court was re-
versed, and the cause was remanded
to that court with instructions to mod-
ify tiie terms of the injunction therein
granted so as to conform to the principles
declared in the opinion of the circuit court
of appeals. Judge Brawley concurred in
the result, but was not inclined to assent to
so mudi of the opinion as held that a tele-
phone company, such as was described in
this case, and whose business was local in
character, was within the purview of the act
of Congress of July 14th, 1866, relating to
tel^aph companies.
Tne case is now before this court upon writ
ef certiorari.
; ^ The plaintiff's bin, as we have seen, pro-
ceeded upon the broad ground that it is en-
titled, in virtue of the act of Congress of
1866, to occupy the streets of Richmond with
itB lines without the consent, indeed against
the will, of the municipal authorities of that
. city. That, it would seem, is the ground
^ 1166
upon which the decree of Qie .^»«^
rests; Mor it was dedared bj tliat eovrt tha^ftll
the plaintiff had the right, under th«
visions and protection of that a«t, t»
struct, maintain, and operate its lines
and along the streets ana nUejs ol
both those then occupied by the plaimif
company and those not then ao oee^icd,
and to put up, renew, replaee, and repair ui
lines, poles^ and wires over and along waA.
streets and alleys, and to maintaia, eoe-
struct, and operate the same, as well as «•
connect its lines with the
along the streets and alleys of the city.
The circuit court of appeals, while ~
ing that the plaintiff was entitled to avmil
itself of the provisions of the act of IM4,—
a question to be presentlj oonsidercd, — si4>
judged that the rights and privileges graatcd
b^ that act were to be enjoyed in sobordiBs-
tion to public use and private righta, aai
subject to anj lawful exercise of uie polk*
power belonging to the state or to one of its
municipalities. This was in aocordaaee vith
what this court had adjudged to be the woft
and effect of the act of 1866.
In ^eiiem Union Tele^^raph Co, ▼. [Attf.
Gen. of] Massachusetts, 125 U. S. 530. ^4«.
[31: 790, 793], it was held that the aK tf
1866 was a "permissive" statute, and thai *il
never could have been intended by the Coa-
gress of the United States, in oonferria^ apse
a corporation of one state the anthontr t»
enter the territory of any other state and erect
its poles and lines therein, to establish ths
proposition that such a company owed la
obedience to the laws of the state into ^kh
it thus entered, and was under no oUigatJea
to pay its fair proportion of the taxes br^
essary to its support."
In 8t, Louis v. Western Uni4>m TeUfrmpk
Co, 148 U. S. 92, 100 [37: 380, 383]. w^iA
involved the question whether a eorpontioa
proceeding under the act of 1866 eonld oe
cupy the public streets of a city withovt
making such compoisation as was reasoaab^v
required, it was said to be a misecHMeptxa
to suppose that the franchise or prrrilcflt
gran tea by the act of 1866 carried ''with k
the unrestricted right to appropriate the p«^
lie property of a state. It is iDce anr oChcr
franchise, to be exercieed in snbordJiMatica
to public as to privaterighta. *Whi1eagT«stnV|
from one government may supersede and
abridge fnuichises and rifffats bod at the w3
of its grantor, it cannot i3>ridge any propettr
rights of a public diaracter crealea by the
authority of another sovereignty. Ko eae
would suppose that a franchise fran the PM-
eral government to a corporation, state er
national, to construct interstate roads er
lines of timvel, transportation or co— aai-
cation, would anthoriae it to enter vpoa the
private property of an Individoal, and ap>
propriate it wiUiout oompensatioB. Ko saK
ter how broad and comprehensive otifbt be
the terms In whidi the franchise was graatsd,
it would be confessedly subordinate to Iks
right of the individual not to be deprived e(
his property without Just
And the principle b the sail
the grant or frandilse from the
government, a corporation ssimmi te
1 8U8.
Richmond ▼. Southern Bbll Tblbphone & Telegraph Co.
772-775
upon propertr of a public nature belonging
to a state. It woula not be claimed, for in-
stance, that under a franchise from Congress
to construct and operate an interstate rail-
road the grantee thereof could enter upon the
Atate-house grounds of the state, and con-
struct its depot there, without payin|^ the
▼aJue of the property thus appropriated.
Although the state-house grounds M prop-
erty devoted to public uses, it is property
devoted to the public uses of the state, and
fiTopa*ty whose ownership and control are
n tiie state, and it is not within the compe-
tency of the national government to dispos-
sess the state of such control and use or ap-
propriate the same to its own benefit or the
Denefit of any of its corporations or grantees,
without suitable compensation to the state.
This rule extends to streets and highways;
they are the public property of the state.
While for the purposes of travel and com-
mon use they are open to the citizens of every
state alike, and no state can by its legislation
deprive a citizen of another state of such
common use, yet when an appropriation of
sny part of this public property to an exclu-
sive use is sought, whether by a citizen or a
corporation of the same or another state, or
s corporation of the national government, it
is within the competency of the state, repre-
senting the sovereignty of that local pub-
^311ie, to *exact for its benefit compensation for
this exclusive appropriation. It matters not
for what the exclusive appropriation is taken,
whether for steam railroads or for street
railroads, telegraphs, or telephones, the state
may if it chooses exact from the party or cor-
poration given such exclusive use pecuniary
com]>ensation to the general public for being
deprived of the common use of the portion
thus appropriated."
But independently of any question as to
the extent of the authority granted to "tele-
graph" companies by the act of 1866, we are
of opinion that the courts below erred in
holding that the plaintiff, in respect of the
particular business it was conducting, oould
invoke the protection of that act. The plain-
tiff's charter, it is true, describes it as a
telephone and telegraph company. Still, as
disclosed by the bill and the evidence in the
cause, the business in which it was engaged
and for the protection of which against hos-
tile local action it invoked the aid of the Fed-
eral court, was the business transacted by
usinff what is commonly called a "telephone,"
which is described in an agreement between
the Western Union Telegraph Company and
the National Bell Telephone Company in
1879, as "an instrument for electrically
transmitting or receiving articulate speech."
Our attention is called to several adjudged
cases in some of which it was said that com-
munication by telephone was communication
by telegraph. Attortiey Chneral v. Edison
Telephone Co, L. R. 6 Q. B. Div. 244, 265;
Chesapeake d Potomac Telephone Co, v. BaV'
iimore d O. Telegraph Co. 66 Md. 399 [59
Am. Rep. 167] ; Wisconsin Telephone Co. v.
City of Oshkosh, 62 Wis. 32 ; [State, ea reZ.]
Duike, V. Central New Jersey Telephone Co.
63 N. J. L. 341 [11 L. R. A. 664] ; Cumher- ^
land Telephone d Telegraph Co. v. "United*
174 XT. 8.
Electric Railway Co. 42 Fed. Rep. 273 [12
L. R. A. 544]. Upon the authority of those
cases it is contended that the act of Congress
should be construed as embracing both tele-
phone and tel^raph companies.
The English case was an information filed
for tiie purpose of testing the question
whether the use of certain apparatus was an
infringement of the exclusive privilege given
to the Postmaster Greneral by certain acts of
Parliament as to the transmission of "tele-
fln*ams." The court held that the Postmaster
^General was entitled, looking at the mani-(T7€J
fest objects of those acts and under a reason-
able interpretation of their words, to the ex-
elusive privilege of transmitting messages or
other communications by any wire and ap
paratus connected therewith used for tele-
graphic communication, or b^ any other ap-
paratus for communicating information by
the action of electricity upon wires. The
Maryland case inv<^ved the question whether
a company organized under a general incor-
S oration law of Maryland was authorized to
0 a general telephone business. In the Wis-
consin case some observations were made
touching the question whether telephone com-
panies, although not specifically mentioned
m a certain general law of that state, could
be incorporated with the powers given to
tel^raph companies by that statute, which,
as die report of the case shows authorized
tiie formation of corporations ror the pur-
pose of building and operating telegraph
lines or conducting the business of telegrapn-
ing in any way, *^r for any lawful \)usines8
or purpose whatever." The New Jersey case
involved the question whether a company
organized under the act of that state to in-
corporate and regulate telegraph companies
was entitled to operate and condemn a route
for a telephone line. The last case involved
the rights of a telephone companv under stat-
utes of Tennessee, one of whicli related in
terms to telegraph companies, and the other
authorized foreign and aomestic corporations
to construct, operate, and maintain such
telegraph, telephone, and other lines neces-
sary for the speedy transmission of intelli-
gence along and over the public ways and
streets of the cities and towns of that state.
It was held in that case that a telephone com-
pany under its right to construct and operate
a telegraph was empowered by statute to es-
tablish a telephone service. None of those
cases involved a construction of the act of
Congress; and the general language em-
Sloyed in some of them cannot be regarded as
ecisive in respect of the scope and effect of
that act, however pertinent it may have been
as to the meaning of the particular statutes
under examination.
It may be that the public policy intended
to be promoted by the act of Conflrress of 1866
wouldsuggest the granting to * telephone com'[77S]
panies of the rights and privileges accorded
to telegraph companies. And it may be that
if the telephone nad been known and in use
when that act was passed, Congress would
have embraoed in its provisions companies
employing instruments for electrically trans-
mitting articulate speech. But the question
is, not what Congress might have done in
1167
7:5-777
SUPBEMB COTJBT OF THE UNITED STATES.
1866 nor what it may or ought now to do,
but what was in its inind when enacting the
statute in question. Nothing was then dis*
tinctly known of any device hr which articu-
late speech oould be electrically transmitted
or receiyed between different points, more or
less distant from each other, nor of com-
panies organized for transmitting messages
in that mode. Bell's invention was not made
public until 1876. Of the different modes
now employed to electrically transmit mes-
sages between distant points, Confess in
1866 knew only of the invention then and
now popularly called the tel^praph. When,
therefore, the act of 1866 speaks of telegraph
companies, it could have meant only such
companies as employed the means then used
or embraced by existing inventions for the
purpose of transmitting messages merely by
sounds of instnmients and by signs or writ-
ings.
In 1887 the Postmaster General submitted
to the Attorney General the question
whether a telephone company or line, offer-
ing to accept the conditions prescribed in
tiUe LXV of the Revised Statutes (being
the act of 1866), could obtain the privileges
therein specified. Attorney General Garland
replied: "The subiect of title LXV of Re-
vised Statutes is telegraphs. In all its sec-
tions the words 'telegraph,' 'telegraph com-
pany and 'telegram,' define and limit the
subject of the le^lation. When the law was
made, the electric telegraph, as dbting^ished
from the older forms, was what the lawmak-
ers had in view. The electric telegraph,
when the law was made, as to the gen^*al
public, transmitted only written communica-
tions. Its mode of conduct is yet substan-
tially the same. This transmission of writ-
ten messages is closely analogous to the
United States mail service. Hence the ac-
ceptance of the provisions of the law by the
telegraph company was reauired to be filed
[776]with the Postmaster General,* who has charge
of the mail service. Under the several sec-
tions embraced in the title, in consideration
of the right of way and the grant of the right
to pre-»npt 40 acres of land for stations at
intervals of not less than 15 miles, certain
privileges as to priority of right over the
line, also the right to purchase, with power
to annually fix the rate of compensation,
were secured to the government. Governmen-
tal communications to all distant points are
almost all, if not ail, in writing. The useful
government privileges which formed an im-
portant element in the legislation would be
entirely inapplicable to telephone lines, by
which oral communications only are trans-
mitted. A purchase of a telephone line cer-
tainly was not in the mind of the lawmakers.
In common and technical language alike,
telegraphy and telephony have different sig-
nifications. Neither includes all of the oth-
er. The science of telephony as now under-
stood was little known as to practical iitility
in 1866, when the greater part of the law
contained in the title was passed. Tele-
phone companies therefore are not within
the 'category of the grantees of the privi-
leges conferred by the statute.' If similar
1168
privileges ought to be granted to
o(Mnpanies, such a grant would eo
the scope <^ l^isIaBve rmthflr tiiaa
trative power.^ 19 Ops. Atty. Gcd. 37.
It is not the function of the judiciary, ke-
cause of discoveries after the act of 180C, u
broaden the provisions of that act so that It
will include corporations or eompaaies
were not, and oould not have been at
time, within the contempIatioB of
If the act be construed as
phone companies, numerous one
readily suggested. May a tttephone eoB-
pany, of right, and without refer eace to tht
will of toe states, oonstmet and maiaf H m
wires in every city in the territory in whkk
it does business? May the eoss&tiited as-
thorities of a city permit the oeeapaney saly
of certain streets for the business of the tarn-
pany? May the company, of rights til ev«7
street and alley in every dty or town in tls
country with poles on which its wires a»
strung, or may the local authorities fsrU
the erection of any poles at all ? May a tern-
pany run wires into every house in a eitj. at
*ihe owner or occupant may desire, or mmr'
the local authorities limit the nusabei n
wires that may be constructed and used vh^
in its limits? These and other qvesti?*
that will occur to ever^ne indicate the en-
fusion that may arise if the act of Comu*
relating only to telegraph companies, be «-
oonstr^^ as to subject to national
the use and occupancy of the streets of
and towns by telephone companies
only to the reasonable exercise of the poln
powers of the state. But even if it were en-
ceded that no such confusion would nrobatfr
arise, it is dear that the oourts shnvld aoit
construe an act of Congress relating in tcfsa
only to "telegraph** companies as inten^^ to
conifer upon companies engaged in telt^h—
business any special rights in the HieHs «(
cities and towns of the country, uuW» orik
intention has been clearly nuuiifwted. V-t
do not think that any such intcntaoa hm
been so manifested. The condosioB tte
the act of 1866 confers upon telephoaie c«»-
panics the valuable rights and piiiifaf
therein specified is not authorized by aar rt-
plicit language used by Congress, mad caa te
justified by implication only. But we v
unwilling to rest the construction of an im-
portant act of Congress upon implicmtin
merely; particularly if that eonatriKti-t
might tend to narrow the full control alwt*
exercised by the local authoritie* of *w
states over streets and alleys within t^ •
respective jurisdictiona If Congrena 4e«z*^
to extend uie provisions of the act of 19^
to companies engaged in the busiiMw of «hr
trically transmitting articulate apeech — tkifi
is, to companies popularly known as teUph^w
companies, and never otherwise deeiipiatad -t
common speech — ^let it do so in plain wnrik.
It wHl be time enough when sn^ legMati:^
is enacted to conaider any questioQ^ of cae-
stitutional law that may be suggested by it.
Something was said in argument as to tks
power of Congrest to eontrol the sw rf
streets in the towns and dties of the eeva-
try. Upon that question it Is sot wtuwaiT
1T4 V. ft.
1898.
Oakbs y. Unitbd Statbs.
777-780
to express any opinion. We now adjudge
only tnat the act of 1866, and the sections of
the Revised Statutes in which the proTisions
of that act have been preserved, have no a^
plication *to telephone companies whose busi-
ness is that of electrically transmitting ar-
ticulate speedi between different points.
What rights the appellee had or has under
the laws of Virginia and the ordinances of
the city of Richmond is a 4|uestion which the
circuit court did not decide, but expressly
waived. It is appropriate that that ques-
tion should first be considered and deter-
mined by the oourt of original jurisdiction.
The decree of the Oirouit Oourt of Appeals
so far aa it reverses the decree of the Circuit
Court is affirmed, and the cause is remanded
with direetions for such further proceedings
in the Circuit Court as may be m conform-
ity with the principles of this opinion and
consistent witn law.
It is 80 ordered.
SARAH A. OAKES, Appi.,
V,
UNITED STATES.
(See 8. C. Reporter's ed. 778-796)
Capture of vessel hy naval forces of United
States — act of August 6, 1861 — when ves-
sel is not recaptured from the enemy —
Confederate archives, tohen evidence —
claim for oompensatUm for vessel captured
hy the insurgents.
1. The captare of a vessel while dismantled
and lying by the bank of a river, when made
by the navai forces of the United States, al-
though nnder the general control of the War
Department. Is not deemed to have been made
by the Army, Instead of the Navy.
1. A libel alleging that tae seizure of a vessel
**was made for the reason that said steamer
was osed. by and with the knowledge and con-
sent of the owner. In aiding the present re-
bellion against the United States, contrary to
the act of Angost 6, 1861,'* sufflclently al-
leges that she was so used with the knowl-
edge and consent of her owner, as well as
that she was seised for that reason.
t. A vessel purchased by the Confederate gov-
ernment from an agent of the owner, al-
though without the owner's authority, con-
sent, or knowledge. Is not, when captured by
the United States, within the provisions of
the act of Congress of March 8, 1800, provid-
ing for the restoration to the owners of
private vessels recaptured from the enemy, as
there can bo no recapture where there has
been no capture.
4. Certified copies from the Confederate Ar-
chives OflSce, of official communications be-
tween high civil and military officers of the
Confederate States are competent evidence to
show that the Confederate authorities ob-
tained possession of a vessel by purchase,
and not by capture or bv other forcible and
compulsory appropriation
ft. The claim of the heir at law of a part own-
er, for compensation for his Interest In a ves-
sel alleged to have been captured by the In-
surgents and recaptured by the United States
during the War of the Rebellion, cannot be
174 U. 8.
U. S.. Book 43.
74
sustained where the claimant wholly fnlTs to
support his allegation that the vessel was
captured by the Insurgenta
[No. 19.]
Argued April 20, 1898. Decided May 22,
1899.
APPEAL from a judgment of the Court of
Claims deciding that Sarah A. Oakes,
heir at law of Hugh Worthington, was not
entitled to recover compensation for his in-
terest in a steamboat claimed to have been
captured by the insurgents and recaptured
by the United States during the War of tha
Kebellion. Affirmed.
See same case below, 30 Ct CI. 378.
Statement by Mr. Justice Gray:
*This was a petition under the act of Con -[779]
^ess of July 28, 1892, chap. 313 (copied
m the marginf) , filed in the court *of claim8[780]
January 9, 1895, by Sarah A. Oakes, the
heir at law and next of kin of HughWorth-
ington, to recover compensation for his in-
terest in the steamboat Eastport, alleeed in
the petition to have been captured by uie in-
fAn Act to Confer Jurisdiction on the Court
of Claims to Hear and Determine the Claim
of the Heir of Hugh Worthlngton for His In-
terest In the Steamer Bastport
Whereas It Is claimed the steamer Bastport
was taken by the United States, Anno Domini
eighteen hundred and sixty-two, and converted
Into a gunboat ; and
Whereas It Is claimed at the time of such
taking one Hugh Worthlngton, then of Metropo-
lis, Massac county, Illinois, but since deceased,
was the owner of three-fifths Interest In said
steamer, and no compensation has been paid to
said Hugh Worthlngton or his heirs; and
Whereas his daughter. Mrs. Sarah A. Oakes,
of Metropolis, Illinois, claims that Hugh Worth-
lngton was a loyal cltlsen, that she Is his only
heir at law, and Is justly entitled to receive
from the United States compensation • for the
value of her father's Interest In said steamer :
Therefore
Bo It enacted by the Senate and House of
Representatives of the United States of America
In Congress assembled. That full jurisdiction Is
hereby conferred upon the court of claims to
hear and determine what are the just rights In
law of the said Sarah A. Oakes. as heir of Hugh .
Worthlngton, deceased, and that from any
judgment so entered by said court of claims
either party may appeal to the Supreme Court
of the United States, for compensation for the
value of said Worth Ington's Interest In said
steamer Bastport. That upon proper petition
being presented by said Sarah A. Oakes, her
heirs, executors, or administrators, to said
court, said court Is authorised and directed to
Inquire Into the merits of said claim, and If on
a full hearing the court shall find that said
claim Is just, the court shall enter judgment In
favor of the claimant and against the United
States for whatever sum shall be found to be
due.
Sec. 2. That In case judgment shall be rend-
ered against the United States, the Secretary of
the Treasury shall be. and he Is hereby, author-
ized and directed to pay the claimant, her heirs,
executors, or administrators, whatever sum
shall be adjudged by the court to be due out of
any money In the treasurv not otherwise appro-
priated. 27 Stat. at. L. 820.
1169
780-783
SUFBEMB COUBT OT THB UllIXD ST.
Burgcnts, and recaptured by the United
States, during the war of the rebdlion.
The facts of the case, as found by the oourt
of claims, were in substance as follows:
At the outbreak of the War of the Rebel-
lion, the steamboat Eastport, of 570{f tons
burthen, duly enrolled at Paducah, Ken-
tucky, and commanded by Captain Elijah
Wood, was plying between the ports of Nash-
yiUe, Tennessee, and New Orleans, Louisi-
ana, engaged in the cotton trade. After
the beginning of the war, she continued, un-
der Wood's command, to ply between points
on the Ohio river until May, 1861, when, in
consequence of the blockade of the Missis-
sippi river by the United States forces at
Cairo, Illinois, she was tied up at Paduo^,
and there remained until August, 1861, un-
denroing extensive repairs under the orders
of Captain Wood, and of Hugh Worthing-
ton, who was the owner of three fifths of her,
the remaining two fifths being owned by two
other persons.
About the last of August, or early in Sep-
[781]tember, 1861, when *the United States forces
were about to take possession of Paducah,
t&nd while the Eastport was in the possession
and under the control of Captain Wood, he
took her, with a small crew, without Wor-
thineton's knowledge or consent, from Pa-
duca^h up the Tennessee river to a place near
the mouth of the Sandy river, a few miles
above Fort Henry, within the lines of the
Confederate forces. Captain Wood returned
to Padumh a few months afterwards, and
continued to reside there until his death,
about the dose of the war. What disposi-
tion he made of the Eastport does not ap-
pear, although papers in the Confederate
Archives Office show what is stated in tiie
certificate copied in the margin.! Nor does
it appear whether the sum of money stated
therein was paid to Captain Wood, nor
whether he ever rendered an account thereof
to the other owners,* nor whether they re-
ceived any part of that sum, nor where they
are, nor what has become of their interests
in the Eastport, nor why they are not seek-
ing payment for the value thereof.
Some time between September, 1861, and
(7M] February 7, 1862, *tiie Eastport wae in the
possession of the Confederate forces, but
whether by reason of capture, or of purchase
from Captain Wood, does not appear; and
before t^e latter date she was taken by those
forces to Cerro Gordo, Tennessee, and work
tUnder date of October SI, 1861, General L.
Polk, C. 8. Army, telegraphed from Columbus,
Ky., to the Secretary of the Navy, C S., that
'nbe price of the steamer Eastport is $12,000 :*'
and on the same date J. P. Benjamin, acting
Secretary of War, C. S., telegraphed to General
L. Polk directions to **buy the steamer Bastport
If thought worth $12,000 demanded.*'
Under date of November 28, 1861, General L.
Polk, in a letter from Colnmbus, Ky., addressed
to General A. S. Johnston, C. S. A., stated that
he bought the steamer Eastport by authority
of the Secretary of the Navy.
Under date of January 6. 1862, General L.
Polk wrote to J. P. Benjamin. Secretary of War,
C 8., as follows : *'By virtue of the authority
from the War Department of October 31, I
bought the steamer Eastport, and she is now
IITQ
was there beg^ to tranaform
gunboat tor use in the Confederate
On FebmaiT 7, 1862, while At w
under the bank c^ the Tenne
Cerro Gordo, and being converted iato a
boat for use in the Confederate eerrlec^
the iron and other materials therefor
board, and havinj^ been dismantled,
upper works, cabin and pilothooae eat
but before riie had been fompletnd, er
been used, or was in eonditioiB for use, fai aay
hostile deinoii8trati<« against the Xhsited
States, she was boarded under the fire of thm
enemy (whether that fire wae froni the wcm-
sel or from the land does not appear) mmA
captured by detachments of ma
boats from three United States
commanded by a lieutenant in the KaTj,
part of the naval forces on the weete
ters, then under the control oi the W;
partment, and oommanded 1^ Captaia
drew H. Foote, who wae swing
commission from the President oi Avgnact S
1861, apiKHnting him a raptain in the Ka.v>«
and under an order from the Secretary ii
the Navy of August 30, 1861, direeCxa^ 1 ~
"to take command of the naval
upon the western waters, bow
under the direction of the War
and to proceed at once to St. Lovia, to
himself in oommunication with Major
oral Fremont) commanding the army of the
West, and to co-operate fufiy and fredj with
him as to his own movements, and to
requisitions upon the War
throu^ him. Immediately aft*
ture. Captain Foote reported hie
together with the report of the
commanding the gunboats, to the
of the Navy, who communicated
Congress. At the time of the eu»tttro, bo
land forces were near the seene thereof, or
took ai^ active part therein.
The £asl»ort was brought fay
to Mound City, Illinois, on the Ohio ri
arriving there about February 26, 18tt ;
was there, on the recommendation of Oap^Bls
*Foote, oonveited by the United States iatoa
gunboat; and about August, 1862, went iato
commission as such with a full eompletBeBi
of officers and men of the Navr; and eost»>
ued in the service as part of the Miesi—ippl
squadron until April, 1864, when eho
sunk by running upon a torpedo, and
blown up by her commander to prevent
capture by the Confederate foroee^
nndersoing the necessarj alteratSoas to
her into a gunboat**
Under date of January 16, 1862. J. P.
mln. Secretary of War. C 8.. wrote to
L. Polk as follows: **I shall order the
sary funds forwarded at once for the
Under date of February 2. 186S.
Polk, in a statement to- the C 8.
War of the disborsement of ctrtata
fives as one item, **Am*t expended la
of steamer Bastport as per receipt of
Peters, A Q. M.. $9,688.92.**
No farther informatloB oa the subject
within inquiry has been found la said
By authority of the Secretary of War:
F. C Aiasworch.
Colonel U. & Army, Chief of
174 v.
18M.
Oak£8 y. Umitbd States.
78S-780
Ekstport and all oth«r yeaselB of the Nary
perfonning aarTioea on the western waters
were under the control of the War Depart-
ment until October 1, 1802, when th^ were
tamed orer to the Navy Department^ pur-
suant to the act of Congress of July 16» 1862,
diap. 186, 12 SUt. at £. 587.
Cm July 17, 1862. in the district court of
the United States for the southern district
of Illinois, the district attorney of the Unit-
ed Statea filed a libel in admiralty against
the Eastporty alleging "that on or about the
20th day <^ June, a^ d. 1862, in the Mis-
sissippi riTer near Columbus, Kentucl^,
there was seized by George D. Wise, captain
. and assistant quartermaster, with gunboat
flotilla (and which he hereby reports for
condemnation), the steamer Eastport, and
which waa brought into said district. Said
seisurewas made for the reason that said
steamer was used by and with the knowledge
and consent of the owner in aiding the pres-
ent rebellion against the United States, con-
trary to the act of August 6, 1861. The
said attorney therefore Mks that process of
attachment may issue against said steamer,
and the monition of tms honorable court,
and that all persons haying an interest in
the same may be made parties herein, snd
that on a final hearing of this case your
honor will adjudge and decree condemnation
of said boat and order that the same may be
sold.** Thereupon the court issued a moni-
tion, reciting that the libel had been filed by
the district attorney and Captain Wise; and
commanding the marshal to attach the East-
port and dSain her in his custody until the
further order of the court; and to give no-
tice by publication in a certain newspaper
publiuied at Springfield in that district for
fourteen days before the day of trial, "and by
notice posted up in the most public manner
for the space of fourteen days at or near the
place <^ trial, of such seizure and libel, to all
(784]persons claiming the said steamer ^Eastport,
boats, tackle, apparel, and furniture, or
knowing or having anything to say why this
eourt should not pronounce affainst the
same, according to the prayer of Uie said li-
bd,** to appear before the court at Spring-
field on September 2, 1862. The marshafs
return on the monition stated that by vir-
tue thereof he had "attached the within-
named boat, and made proclamation of the
same;*' and notice was published as ordered.
And on that day the court entered a decree,
reciting the attachment and notice, and tiiat,
notwithstanding proclamation made, no one
had appeared or interposed a daim; and ad-
judging "that the default of all persons be,
and the same are, accordingly nereby en-
tered, and that the allegations of the libel
in this cause be taken as true against said
property, and that the same be con^mned
as forfeited to the United SUtes," and be
sold by the marshal. Pursuant to that de-
cree the Eastport was sold October 4, 1862,
by the marshal to the United States for the
sum of 910,000, which, after deducting al-
lowances to the clerk, to the marshal, and to
the district attorney, was ordered by the
court to be "equally divided between the
174 V. 8.
United States and George D. Wise, the in-
former herein."
Of those proceedings. Hugh Worthington
had no notice or knowledge until after the
sale of the vessel under them; but whether
her other owners or Captain Wood had any
does not appear.
Before and throughout the war, Worth-
ington was a citizen and resident of Metropo-
lis, Illinois, about ten miles above Paducah,
and was loyal to the United States, and gave
no aid or comfort to the rebellion. He died
in March, 1876, intestate and without prop-
erty, and having received no compensation
from the United States for the use or value
of the Eastport. The claimant, Sarah A.
Oakes, is his daughter, and his sole surviy-
ingheir at law and next of kin.
When Captain Wood ran the Eastport up
the Tennessee river, she was worth $40,000.
When she was captured by the United States
forces, she was worth $30,000. During the
time she was used by the United Sta&s, a
fair and reasonable rental for her was $160
a d^.
*The court of claims decided that theolaim-[785]
ant was not entitled to recover against the
United States, and dismissed the petition.
30 Ct CI. 378. The claimant appealed to
this court.
Mr. Joka O. Tmj for appellant.
MeasTi. Xioiils A. Pradt« Assistant At*
tomey General, and John G. Copers for ap-
pelU
*Mr. Justice Qrmj, after statinff the ca6e[785]
as above, delivered the opinion of the court:
The special act of Congress of July 28,
1802, chap. 313, under which the petition in
this case was filed, confers iurisaiction up-
on the court of claims "to hear and deter-
mine what are the just rights in law^ of the
claimant, as the daughter and heir at law
of Huffh Worthington, to compensation for
the viuue of his interest in tne steamboat
Eastport, alleged to have been taken by the
United States in 1862, and converted into a
gunboat; and authorizes and directs that
court, upon her petition, "to inquire into the
merits of said daim, and if on a full hearins
the court shall find that said daim is just,^
to render judgment in her favor and against
the United States for whatever sum shall
be found due. 27 Stat, at L. 320. •
Under this act, the question whether ''said
claim is just" is the same as the question
"what are thejust rights in law^ of the-
claimant as Worthin^n's daughter and
heir; and this necessarily depends upon the
question what had been his legal right to
compensation from the United States ra* the
value of his interest in the vessd. -«*-«
The act neither recognizes the daim as a
valid one, nor undertiuces to pass upon its
validity; but simply empowers the court of
claims to hear and determine whether the
daim is valid or invalid; and the determina*
tion of that issue embraces not only the
Suestions whether the claimant was the
aughter and heir at law of Worthington^
whether he was a loyal citizen of the United
States, whether he was the *owner of three
1171
/-
786-788
SUPBBICB COUBT OT THI UNITED STATES.
Oct. Tkrm,
fifths of tihe Eastport, and wlietliar the ves-
sel was taken and applied to the use of the
United States, hut all other questions, of
law or of fact, affecting the merits of the
daim. United BiaieM t. Oumming, 130 U.
8. 452 [32: 1029].
The leading facts of the case, as found hy
the court of daims, are as follows : Worth-
ington was a loyal citizen of the United
States, residinfi^ at Metropolis in the state of
Illinois; and uie claimant was his daughter
and only heir at law. Early in the war of
the rebellion, in consequence of the blockade
of the Mississippi river by the forces of the
United States, tibe Eastport was tied up at
Paducah in the state of JSlentucky, her home
port, undergoing extensive repairs under the
orders of her master, Captain Wood, and of
Worthington, who owned three fifths of her.
She was afterwards taken by Wood, wrthout
Worthington's knowledge or consent, up the
Tennessee river within the lines of the Con-
federate forces, and came into their posses-
sion ; and while in their possession, ana being
transformed into a gunooat for use in the
Confederate service, having on board the iron
and other materials therefor, and having
been dismantled, and her upper works, oabin,
and pilot-house out away, but before she had
been completed or used, or was in condition
for use, in any hostile demonstration against
the United States, she was captured by part
of the naval forces of the United States
on the wesftem waters, then under the con-
trol of the War Department. No land forces
took part in the capture, or were in the
neighborhood at the time. The Eastport
was immediatdy brought by her captors to
Mound City, Illinois, and was afterwards
converted zfj the United States into a gun-
boat, and put in commission in the Navy as
such.
The questions of law presented by the rec-
ord are not free from difficulty.
BjjT the law of nations, as recognized and
administered in this coimtry, when movable
property in the hands of the enemy, used, or
intendea to be used, for hostile purposes, is
captured by land forces, the titio passes to
the captors as soon as they have reduced the
property to firm possession; but when such
property is captured by naval forces, a judi-
[787]cial ^decree of condemnation is usually neces-
sary to complete the title of the captors.
1 Kent,* Com. 102, 110; Halledc's Interna-
tional Law,* chap. 10, S 7, chap. 30, S 4 ; Kirk
V. Lynd, 106 U. S. 315, 317 [27 : 193, 194].
The Eastport, at the time of her capture
by the forces of the United States, was in
the hands of the Confederate forces, and was
being transformed into a gunboat for use in
the Confederate service, with the iron and
other materials therefor on board. Al-
though not yet in condition for hostile use,
sh<> was clearly intended for that use. Oon-
sequently if, as the court of claims held,
her caipture was made by the Army of the
United States, it cannot be doubted that the
capture was at once complete upon her be-
ing taken into the possession of the national
forces, and brought by them to Mound City,
Illinois, in February, 1862.
The grounds on which the decision of the
1178
court of claims proceeded were that by tiie
Army appropriation act of July 17, 1861 ( It
Stat, at li. 263, chap. 6), there was appro-
priated for "gunboats on the western nverSp
one million dollars;" t^at, at the time of tlM
capture of the Eastport^ the gunboats and
the naval forces of the United States on
those riv«rs were under the control of the
Wsjr Department; that she was on inland
waters, and could not be regarded as mari-
time prize; that she was lying dismaatlftl
b^ the bcuik of a river, where tha aeisors
might as well have been made by a deUdb-
ment from the Army, as by one from tfaa
Navy; and that, in view of these facts, the
Eastport must be considered as having hmm.
captured by the Armv.
In support of that oondusion, rcferepcs
was made to United States t. i$9 J-M
Bales of Cotton, Woolw. 236. Bat that ease
was wholly diflTerent from the case at bar.
In thai case, a battali<m of cavalry, eom*
manded by an officer of the Army of the
United States, went in vessels in the service
of the United States up the Mississippi river,
and landed in the stiUe of Mississippi, and
penetrated into counter in the control of the
Confederate forces, and, after a conflict with
them, to<^ from their possession a quantity
of cotton, and brought it by the river to the
state of Arkansas ; and Mr. Justice *MillerX788]
sitting in the circuit court, hdd tliat the oot-
ton BO captured was not within the juris-
diction of a prize court. The eroands of his
decision are sufficiently shown by the folloiv-
in^ extract from his opinion:
^1t is not supposed or alleged that sjbj
of these vessels were officered by govemmenl
officers. They were not even armed vessels*
and could not take part ii^ any action, or
contribute in any manner by belligcreol
force tx> the capture. It is not shown thai
th^ remained after they landed the forces;
ana the fair inference is that they did not
It is averred that the eotton was eonreyed
by the soldiers to the river, and tiiat it was
taken thence to the state of Arkansas; bvi
it is not alleged that it was so taken 1^ Iht
vesseLs. In short, the entire statement Is
consistent with the fact that the vess^ and
crews were in the employment of the War
Depu-tment, and were used merely as trans-
ports to carry the troops; and it is consist-
ent with no other supposition. It is also
evident that the capture was not made on
the banks of the river, but some distance
inland, where the vessds could render no
other assistance than to land the forces, and
roceive them again. I cannot conceive that
the employment by the government fd no*
armed steamboats, for the mere purpose of
transporting troops from one pouii to an*
other on the Biississippi river, can render
every capture made by the troops or detadi-
ments so transported prise of war, and let In
the crews and officers of those vesseli to a
share of the prise moatij. Such vesseli aie
in no sense war vessels, and are ndther ex-
pected nor fitted to take part in engage-
ments.'' Wodw. 266, 257.
In the case at bar» on the other hand, it
appears, by the facts found by the conrt
ol claims* that the Ba0tport» while water-
174 U. S.
lasa
Oakbi t. Umitxd Statu.
788-791
borne, was boarded and taken by detach-
menta of men in small boats from three
United States gunboats, armed yesselSy oom-
manded by a lieutenant in the Navy, and
gart of the navsl forces on the western wa-
»rB, commanded by a captain in the Navy,
who reported the capture to the Secretary of
the Nayy; and that, at the time of the cap-
ture, no land forces were near the scene
thereof, or took any active part therein.
Under these circumstances, we are not pre-
[780]par6d *to hold that the capture was made by
the Army, aiKi not by the naval forces of
the United States, although the latter, at
the time and place, were under the general
control of the War Department.
If it was not a capture by the Army, it
was clearly a capture hv the naval forces;
uid t^e United States rely upon the proceed-
ings for the condemnation and sale of the
EastpcHTt in the district court of the United
States for the southern district of Illinois,
which are stated in the record.
Those proceedings, as appears on the face
of the lioel, were instituted under the act
of Congress of August 6, 1861, chap. 60, the
material provisions of which axe as follows:
Section 1 enacts that, if the owner of any
property, of whatsoever kind or description,
''shall purchase or acquire, sell or give/'
with "intent to use or employ the same, or
suffer the same to be used or employed," or
"shall knowingly use or employ, or consent
to the use and employment of the same,*'
in aiding, abetting, or prcmioting the then
existing insurrection, "all such property is
hereby declared to be lawful subject of prize
and capture, wherever found; and it shall ue
the duty of the President of the United
States to cause the same to be seized, con-
fiscated, and condemned."
Section 2 gives jurisdiction of the proceed-
ings for condemnation of such property to
'Hhe district or circuit court of the United
States having jurisdiction of the amount, or
in admiralty, in any district in which the
same may be seised, or into which they may
be taken and prooeedings first instituted."
Section 3 provides that "the Attorn^ Gen-
eral, or any district attorney of the United
States [in the district] in which said prop-
erty may at the time be, may institute the
proceedings of condemnation, and in such
ease they shall be wholly for the benefit of
the United States; or any person may file
an information with such attorney, in which
ease the proceedings shall be for the use of
such informer and the United States in equal
parts." 12 Stat, at L. 319.
In the proceedings for tlie condemnation
of the Eastport, the libel alleged that sue
[790]had been seized, In June, 1862, by *an assist-
ant quartermaster, "with gunboat flotilla,"
and that "said seizure was made for the rea-
son that said steamer was used by and with
the knowledge and consent of the owner in
aiding the present rebellion against the
United States, contrary to the act of August
e. 1861." This is a sufficient allegation that
■ne was so used with the knowledge and
eonsent of her owner, as well as that sne was
seized for that reason, and brings the ease
within the first seetiott of that act. The
174 V. M.
proceeding were in eonformity with tha
practice in admiralty, and were not go?*
emed by the strict nUes that prevail in re-
gard to indictments or criminal informations
at oommon law. Union Ina, Co. v. Unitiid
8tat08, 6 WaU. 760, 763 [18: 879, 881] ;Th0
Oonfiacation Oaaea, 20 Wall. 02, 104-107 [22:
320, 322, 323].
like libel was filed, as required by the
second and third sections oi that act, by
the district attorney of the United States,
in the district court of the United States, In
a district into which the Eastport had be^n
brouffht. The libel seems to have been filed
by the district attorney on the information
of the assistant quartermaster ; but this was
unimportant for any purpose, except for the
distribution of the proeeeos of the sale after
condemnation.
The expressions in the opinions In The
Confiacatton Cases, 20 Wall. 92, 109 [22:
320, 324], and in United States v. Winches-
ter, 99 U. S. 372, 376 [25 : 479, 480], cited by
the appellant as tending to show that the
proceedings for condemnation were void, for
want of a preliminary order of the President
of the United States directing the seizure
of the Eastport and the institution of the
proceedings, were delivered in cases in which
proceedings for the confiscation of land, or
of cotton captured on land, were sought to
be maintainea under the act of July 17, 1862»
chap. 195 (12 Stat, at L. 589), and are not
easily to be reconciled with earlier judg-
ments of this court under the same act.
See Pelham v. Rose, 9 Wall. 103 [19 : 602] ;
Miller v. United States, 11 Wall 268 [20:
135].
But the act of 1861 differed materially,
in its object, and in its provisions, from th«
act of 1862. As was observed by Chief Jus-
tice Waite, speaking for the court, in Kirh
V. Lf/nd, 106 U. S. 316 [27: 193] the act of
1861 was passed by Congress in the exercise
of its power under the Constitution "to make
rules 'concerning captures on land and[7011
water," and was aimed exclusively at the
seizure and confiscation of property used in
aid of the rebellion, "not to pumsh the owner
for any crime, but to weaken the insurrec-
tion"; but the act of 1862 proceeded upon
the entirely different principle et confiscat-
ing property, without regard to its use, by
way of punishing the owner for being en-
gaged in rebellion and not returning to his
allegiance. The act of 1861 did not reouire
(as the act of 1802 did) that proceeaings
for condemnation of the property in question
should be instituted "after the same shall
have been seized;" and the set of 1861 ex-
pressly authorized (as the aet of 1862 did
not) puch proceedings to be instituted by
"the Attorney General or any district at-
torney of the United States [in th^ district]
in which said property may at the time be."
The case at bar presents no aueBtkm of th«
construction of the act of 1862.
The Eastport having been captured by the
United States forces, and taken into the firm
possession of the United States, before the
institution of the prooeedings for oondemna-
tion; those proeeedings having been insti-
tuted by Um district attorney, under the au- '
1178
791-794
SUFBBMB GOUBT OF THK UrIIKD SxATB.
thority expressly given him by the act of
)8G1, in a proper court of the United States
in a district into which she had been taken;
and thereupon, according to the usual course
of proceedings in rem in admiralty, the ves-
sel having b^n taken into the custody of the
marshal under a writ of attachment from
the court, and notice published to all per-
sons interested to appNear and show cause
against her condemnation, and no one hav-
ing appeared or interposed a claim at the time
and place appointed for the hearing; we
find it difficult to resist the oondusion that
the decree of condemnation thereupon en-
tered was valid, as against her former owners
and all other persons, under the act of 1861 ;
that the proceedings cannot be collaterally
impeached; and that the sale under that de-
cree passed an absolute title to the United
States.
But, apart from the question whether the
record shows a complete title in the Ulast-
port to have vested in the United States, the
claimant has wholly failed to show that
[70S] Worthington *had €My legal right to com-
pensation from the United States for his in-
terest in the vessd.
The counsel for the claimant contends that,
the capture having been made on navigable
waters by vessels of the United States, the
claimant is entitled to compensation for the
value of Worthington's interest in the East
port, under the act of Congress of March 3,
1800, chap. 14, S 1, which was as follows:
''When any vessel other than a vessel of
war or privateer, or when any goods, which
•ball hereafter be taken as prize by any ves-
sel acting under authority from the govern-
ment of the United States, shall appear to
have before belonged to any person or per-
sons resident within or under the protection
of the United States, and to have been taken
by an enemy of the United States, or under
authority, or pretense of authorit}[, from any
Srince, government, or state against which
be United States have atithorized, or shall
authorize, defense or reprisals, such vessel
or goods not having been condemned as prize
bv competent authority before the recapture
thereof, the same shall be restored to the
former owner or owners thereof, he or thoy
paying, for and in lieu of salvage, if retaken
uv a public vessel of United States, one-
eiffhth part, and if retaken by a private ves-
ad of tne United States, one-sixth part, of
the true value of the goods so to be re-
stored, allowing and excepting all imposts
and public duties to which the same may be
liable. And if the vessel so retaken shfill
appear to have been set forth and armed as
a vessel of war, before such capture or after-
wards, and before the retaking thereof, as
aforesaid, the former owner or owners, on the
restoratiop thereof, shall be adjudged to pay,
for and in lieu of salvage, one moiety of the
true value of such vessel of war, or as priva-
teer." 2 Stat, at L. 10.
That act was a regulation of the /us
poBtUminii, by which things taken by the
enemy were restored to their former owner
upon coming again under power of the na-
tion of which he was a citizen or subject.
Hie fua postliminii, derived from the Roman
1174
law, and regulated in modem tiaes bj
ute or treaty, or by the usage of ctviUaed ■»-
ti(Mis, has been ^rested by emincot jvrists vb-^
on the duty of the soverdn to proCaet kos
citizens and subjects ana their ptupsitf
against warlike or vi<dent acts of tte cbchT-
Vattel's Law of Nations, lib. 3, dup. 14, |
204; Halleck's International Law, dnp. 35.
SS 1, 2. He is under no sndi obtlgiatiaK ts
protect them against unwise bargains, or
against sales nuide for inadequjits eon
eration, or by an agent or cusiodiaB im
cess of his real authority. The /■»
litninU attaches to proper^ taken by thie
emy with the strong hand against the wi3
of its owner or custodian, and not to prop-
erty obtained by the enemy by negotaatioB or
purchase.
The act of 1800 is entitled ''An Act Prv-
viding for Salvage in Cases of
and applies only to recaptures
emv. In order to come within its
and its very words, the property in ^
must "have been taken by an enemy of t^
United States," and "retaken" by a nohik
or private vessel of the United &stea
Where there has been no capture, tlMre
be no recapture. That enactment has
substantially embodied in latar
Act of June 30, 1864, chui. 174, i 29; U
Stat at L. 314; Rev. SUt. § 4652. The ai»
ilar provision of the English prine acta «w
held by Sir William Scott to be ina|»plicaUt
to a British ship captured from the ^
during a war between the tw
which before the war had been
demned, and sold under the revenue laws of
France, although the French seiaore was al-
leged to have been violent and vninact. TW
Jeune Voyaffeur, 5 C. Bob. 1. mithcr tW
English statutes nor our own have ew boi
held to apply to property whidi had eooH is-
to the enemy's posisesfllon, hw pnrdnss sr
otherwise, with tne consent of tha iiansi sr
of his agent.
- In the present case, the only facts fsoal
by the court of claims (otho* than may W
ascertained from the palters in che Confed-
erate Archives Office) whidi can be suppote^
to have any bearing on the questioa wMb«
the Eastport came into the pnssnsslna of tks
Confederate forces by capture, or by p«^
chase, are these: Before ana thrcmTucal
the war of the rebellion, Worthing^oe, buf
the owner of three fifths of the Eastport, wm
a citizen and resident of Illinoia, was 107ml
to *the United States, and save no aid or cost
fort to the rebellion, and neither knrw of'
nor consented to, the Eastport beinfr takos
by her captain. Wood, within the lines «f
the Confeaerate forces. This predfndes asf
inference that Worthington himself partin-
pated in, or consented to, a transfer of tks
tZastport to the Confederate authoritlea; bat
it does not negative the suppositloii tliat ibs
was sold to Uiose authorities br Wood, or
by the owners of the other two flflka of bar
That Wood's possession and oontiol of l«^
was by Worthington's authori^ mad
is evident from the facts that Wi
owned more than one half of 1
she was being extensively rspairsd,
orders of both Wood aai Wc
174111:1.
Oases y. United States.
794r^797
■r!*rL
1 a ^ shortly before Wood took her within the Con-
J^:ai federate lines. At that time she was an un-
ui^^z: sxmed vessel, and fit for commercial pur-
tsciz poees only.
^ a It is stated in the finding of facts that it
tjs:v, ^d not appear what disposition Wood made
v^l of the Eastport, nor whether he was paid
rn^ purchase money for her, nor whether he ever
C£xt^ mccounted for such money to the other own-
2 7. era, nor whether they had received any part
^ lyV of it, nor whether she came into the posses-
,jy^7, sion of the Confederate forces liy capture,
"^' or by purchase from Wood.
U^ If the matter rested here, there would be
i, 'I / nothing to warrant the court in concluding
7.7r that the Eastport came into the possession
^^r of the Confederate forces by capture or other
forcible appropriation. But it does not rest
T —, here.
~^v^ Upon the question whether the so-called
.V- Confederate States acquired possession of
^ the Eastport by capture or by purchase, the
extracts from the Confederate archives,
made part of the facts found by the court of
claims, appear to this court to have an im-
'^ ^-^ portant baring, and to be competent, though
^ ' not conclusive, evidence.'
^ ' ' The government of the Confederate States,
- ^ although in no sense a government de jure,
and never recognized by the United States
^4 ::: sus in all respects a government de facto, yet
was an organized and actual government,
^jt's:^ maintained by military power, throughout
:y"- the limits of the states that adhered to it,
t:::^.' except to those portions of them protected
Tec -2 ^6]* from its control oy the presence of tne armed
rvx" forces of the United States; and the United
'y-i" States, from motives of humanity and ex-
pediency, had conceded to that government
Bome of the rights and obli^tions of a bel-
lifferent Prize Cases, 2 Black, 635, 673,
,-r- 674 [17:469, 478]; Thoringion v. Bmith, 8
^r: Wall. 1, 7, 9, 10 [19: 361, 363, 364] ; Ford v.
^^ ' Burget, 97 U. S. 694, 604, 605 ; [24 : 1018,
.^ 1021]; The Lilla, 2 Sprague, 177, and 2
Cliff. 169.
No better evidence of the doings of that
organization assuming to act as a govern-
']j^: ment can be found than in papers contempo-
, !; raucously drawn up by its officers in the per-
/"^ formance of their supposed duties to Uiat
government.
For the collection and preservation of such
papers, a bureau, office, or division in the
War Department (now known as tiie Con-
federate Archives Office) was created by the
Executive authority of the United States
fK>on after the close of the war of the rebel-
lion, and has been maintained ever since.
• )f
:<.'^-
T^'':^'
^i
.-H ^
f
v--"
o
and has been recognized by many acts of Con
gress.
For instance, Congress, beginning in 1872,
has made frequent appropriations '^to enable
^ the Secretary ol War to have the rebel ar-
''' chives examined and copies furnished from
time to time, for the use of the Qovernment."
Acts of May 8, 1872, chap. 140, and March
3,. 1873, ohap. 226, 17 Sta*. at L. 79, 600;
^^; August 16, 1876, chap. 287, March 3, 1877,
<^ • chap. 102, 19 Stat at L. 160, 310; June 19,
1878, chap. 329, 20 Stat at L. 196; June 21,
1S79, chap. 34, June 16, 1880, chap. 226,
< March 3, 1881, chap. 130, 21 Stat at L. 23,
^ 174 U. 8.
I?
226, 402. And the appropriations for the
War Department in 1882 included one "for
traveling expenses in connection with the
collection of Confederate records placed by
gift at the disposal of the government^
Act of August 6, 1882, chap. 389, 22 Stat at
li. 241. Congress has also occasionally made
appropriations "to enable the Secretary of
the Treasury to have the reM archives and
records of captured property examined, and
iRformation lurndBhca therefrom for the use
of the government" Acts of March 3, 1876,
ohap. 130, 18 Stat at L. 376; March 3, 1879,
chap. 182, 20 Stat, at L. 384; June 16, 1880,
chap. 236, 21 Stat at L. 266. It has once,
at least, made a>n appropriation "for col*
lectins, compiling, ana arrama^ng the naval
records of the war of the reibellion, includ-
ing Confederate ♦naval records." Act of Julyl^**!
7, 1884, chap. 331, 23 Stat ait L. 185. And
it has made appropriations "for the prepara-
tion of a gencoul card index of the books,
muster rolls, orders, and other official papers
preserved in the Confederate Archives Of-
fice." Acts of May 13. 1892, chap. 72, and
March 3, 1893, chap. 208, 27 Stat, at L. 86,
600.
It would be an anomalous condition of
things if records of this kind, collected and
preserved by th« jpovemment of the United
Staites in a public office at great expense,
were wholly inadmissible in a court of jus-
tice to show flaots of which they afford the
most distinct and appropriate evidence, and
which, in the nature of things, can hardly
be satisfactorily proved in any other man-
ner.
The act of March 8, 1871, chap. 116, | 2,
provided for the appointment of a board of
coramissioners, "to receive, examine, and con*
sider the lustice and validity of such claims
as shall be brought before them, of those
citizens who remained loyal adherents to the
cause and the government of the United
States during the wvtr, for stores or supplies
taken or fumiehed during the rebellion for
the use of the Army of \& United States in
states proclaimed as in insurrection against
the United Sta/tes, including the use and loss
of vesnels or boats while employed in the
military eervioe of the United States." 16
Stat at L. 624. Bh^ the act of April 20,
1871, chap. 21, | 1, it was enacted that "all
books, records, papers, and documents rela-
tive to tramactaonB of or with the late so-
called government of the Confederate States,
or the ffovemment of any state lately in in-
surrectioin, now in the possession, or which
may at any time oome into the possession, of
the government of the United States, or of
any department thereof, may be resorted to
for information by the boMrd X)f commis-
sioners of clcdms created by act approved
March 8, 1871 ; and copies ti^ereof, duly cer-
tified \f7 the officer having custody of tiie
same, uiall be treated wi& like force and
effect 80 the original.'' 17 8faat at L. 0.
The latter act thus not only allowed a par^
ticular board of commissioners, appointed to
pass upon certain claims against uie United
States for property taken for the use of the
Army during the war of the rebellion, *to[797]
have access to sddi archives for information
1175
797,798
SUPBEMX OOUBT OV TBB UhIXID StAlBiL
«8 to transactions of or with tlia so-called
|;oTernnient of the Confederate Stat'' ; but
it declared the records and papers in suoh
archives, or dul^ certified copies thereof, to
be ccMnpetent evidence of sucn transactions.
Section 882 of the RcviEed Statutes, also,
re-eDactinjg; earlier acts of Congress, provides
that "copies of any books, records, papers, or
documents in any of the Executive l)epart-
ments, authenticated under the seals of such
Departments respectively, shall be admitted
in evidence equally with the originals there-
of." And, by section 1076, tne court of
claims has "power to oall upon any of the
Departments for any information or papers
it may deem necessary;" "but the heaa of
any Department may refuse and omit to
eomply with any call for informaticm or
papers, when, in his opinion, such ccmi-
glianoe would be injurious to the public in-
srest"
The certificate of the ofllcer of the United
States in chsjm of the Confederate Archives
Office, embodiM in the finding of fact, would
appear to have been furnished upon a call
f roni the court of claims ; and it is not open,
at this stage of the case, to objection for not
being under the seal oi the War Department,
sinoe that court has found that the papers in
that <^oe show the facts stated in that cer-
tificate. Those facts consist of official com-
nunications, between high civil and military
officers ai tht OMifederaU Statee^ including
I17«
a deraatdi from ob» d ttrfr
tucky, October SI, 1861, to
the navy, thttt Hm mtice d tts
$12,000, a reply of the
of the same date, ^viqg
general to boy her If thoi^gfct
sum; a letter of January ft, IMi,
the general to the secrehay ef
f onmng him that, liy virtae «f
thority, he had boo^it her, and
being cmverted into a gunboat; a
January 16, 1862, from the eecrelaiT of '
to the general, saying that he woold at «
order to be forwarded the nfifgasery fa
for the Eastoort; and a statemewt «f
buraements, oated Febmary 2, 186S. \fw
l^eneral to the secretarr of war, im whkk
item was a sum of $9,68832, "<
purchase of Steamer Eartport.*
*Not going beyond what is leqnlied
purposes of this case, we are of npfniw
the originals of these commnnicationB,
consequently the certified copies
from the Confederate Ardiive
competent and oersuasive evidence
Confederate autnorities did not obtain
session of the Eastpbrt by capture or bj
forcible and compulsory appropriation.
The elaimaat therefore wbolfy faHa to snn^
port Ihe allegation of her petHion that tte
fcastport was cultured hj the inanrgcnla.
FOIjIjO"WINa- AUK MEMORANDA
ALL CASES DISPOSED OF AT OCTOBEB TEEM, 1898,
WITBOXTf OPINIONS, AND NOT NLSKWHSBN OB 0THNBWI8N UIPOBTSD IN THIS NDITION.
TENTH RULE.
Sopom Land & Mining Gompant, Appel-
lant, V. United States ei al, [No. 38.]
Appeal from the Court of Private Land
Claims.
Mr, Oeorge Lines for appellant. The At-
torney Oeriral for appellees.
Ootoher 11, 1898. Dismiseedy pursuant
to the 10th Bule.
V,
jAiixs T. Stabk, Plaintiff in Error,
United States. [No. 87.]
In Error to the District Court of the
United States for the Northern District of
Alabama.
Mr. John T. Morgan for plaintiff in error.
The Attorney Oeneral for defendant in
error.
December 6, 1898. Dismissed, pursuant
to the 10th Rule.
Sabah Williams, Plaintiff in Error, v.
State of Geoboia. [No. 101.]
In Error to the Supreme Court of the
State of Georgia.
Mr. John R. Cooper for plaintiff in error.
Mr. J. M. TerreU for defendant in error.
December 9, 1898. Dismissed with costs,
pursuant to the 10th Rule.
MissouBi Paooio Railway Company,
Plaintiff in Error, v. Cbowell Litmbeb &
Gbain Company. [No. 135.]
In Error to the Supreme Court of the State
of Nebraska.
Messre. John F. Dillon and W. 8. Pierce
for plaintiff in error. No counsd for de-
fendant in error.
JanMary 12, 1899. DiBmissed with oo«t8,
pursuant to the 10th Rule.
Washingtdn ft Georgetown Railroad
Company, Plaintiff in Error, v. Lbonidab
W. Grant. [No. 141.]
In Error to the Court of Appeals of the Dis-
trict of Columbia.
Measre. Enoch Totten and R. Rosa Perry
for plaintiff in error. No counsel for de-
fendant in error.
January IS, 1899. Dismissed with eosts,
pursuant to the 10th Rule.
Julian Martinez et aX., AppeUante, e.
United States. [No. 166.]
Appeal from the Court of Priyate Land
Claims.
Mr. T. B. Oatron for appeUaats. The
Attorney General for appellee.
January 17, 1899. jJismissed, pursuant
to the 10th Ride.
Mariano S. Otebo, Appellant, v. United
States. [No. 168.]
Appeal from the Court of Private Land
Claims.
Mr. T. B. Oatron for appellant. The At-
torney General for appellee.
January 18, 1899. Dismissed, pursuant
to the 10th Rule.
Union Paoifio Railway Company, Plain-
tiff in Error, v. David Gochsnaiteb et al.
[No. 204.]
In Error to the Supreme Court of the
State of Kansas.
Mr, John P, DUlofi for plaintiff in error.
No counsel for defendant? in error.
January 24, 1899. Dismissed with costs,
pursuant to the lOth Rule.
Francis G. Posey et al,. Plaintiffs in Error,
V. Julia Hanson. [No. 206.]
In Error to the C>ourt of Appeals of the
District of Columbia.
Mr, P. H. Mackey for plaintiffs in error.
Messrs, H. Randall Webb and John Sidney
Webb for defendant in error.
January 2J^ 1899. Dismissed with costs,
pursuant to the 10th Rule. '
Joseph Raymond, Appellant, v. City of
New Orleans. [No. 234.]
Appeal from the Circuit Court of the
United States for the Eastern District of
Louisiana.
Mr, Samuel T. Fisher for appellant. No
counsel for appellee.
April S, 1899. Dismissed with costs,
pursuant to the 10th Rule.
John W. Sohofield et al,. Appellants, v.
Horse Springs Cattle Company. [No.
261.]
Appeal from the Supreme Court of the
Territoiy of New Mexico.
Mr, w, B. Ohilders for appellants. Messrs,
J, H, McGowan and H, L, Warren for appellee.
April H, 1899. Dismissed with oosts, pur-
suant to ti^ 10th Rule. ^
Aloinda M. Ohappell et al,, Plaintiffs in Er-
ror, V. Edmondson Aventtb, Catonsvillb,
ft Elucott City Electric Railway Com-
pany. [No. 258.]
In Error to the Circuit Court of Baltimore
County, State of Maryland.
Mr. Thomae O. OhappeU for plaintiffs im
error. Messrs, John N. Steele and William
H. Buokler for defendant in error.
April 18, 1899. Dismissed with eosts, por-
soant to the lOOi Rule.
IITT
OUPBBMB COUBT OF THB UHITKD t^TATU.
ucr. 1'
TWENTY-EIGHTH RULE.
The United States, Appellant, v, Thx
MiOXTEL JOVEB & CARGO. [Na 378.]
Appeal from District Court of the United
States for the Southern District of Florida.
The Attorney General for appellant. WU-
helmua Mynderae for appellee.
August 24, 1898, Dismissed pursuant to
28th Bula.
The United States, Appellant, v. The Ca^
ALINA, Eduardo Fano, Claimant, [379].
Appeal from District Court of the United
States for the Southern District of Florida.
The Attorney General for appellant. Wi^
helmua Mynderae for appellee.
Auguat 24, 1898, Dismissed pursuant to
28th Rule.
MISCELLANEOUS.
Charles J. Meadoworoft, et al,, Plaintiffe
in Error, v. People of the State of Illi-
nois. [No. 33.]
In Error to the Supreme Court of the
State of Illinois.
Meaara, Edwin Walker and Arthur J, Eddy
for plaintiffs in error. No counsel for de-
fendant in error.
October 10, 1898, Dismissed with costs,
on motion of counsel for plaintiffs in error.
Dueanoo Land and Coal Cokpant, Appel-
lant, V, Roger C. Evans et al, [No. 131.]
Appeal from the United States Circuit
Court of Appeals for the Eighth Circuit.
Mesara, David C. Beaman and Luoiua if,
Outhhert for appellant. Mr, John R, flmith
for appellees.
October 10, 1898, Dismissed per stipula-
tion.
CoviNOTON ft Cincinnati Elevated Rail-
road ft Transfer ft Bridge Cohpant,
Plaintiff in Error, v. William F.Wilson.
[No. 173.]
In Error to the Circuit Court of the
United States for the District of Kentucky.
Mr, C, B. Simrall for plaintiff in error.
No counsel for defendant in error.
October 10, 1898. DismiMed with costs,
€11 authority of counsel for plaintiff in error.
Mariano S. Otero, Appellant, v. Untibd
States. [No. 179.]
Appeal from the Court of Private Land
Claims.
Mr, T, B. Catron for appellant. The At*
iomey General for appdlee.
October 11, 1898, Dismissed, on author-
ity of counsel for appellant.
1178
Henderson National Bawe, Flmimiif im
ror, V, Cmr or Huimwr. [Ho. S01.1
In Error to the Ooort oi i^pcals of
State of Kentucky.
Mr, Malcolm Teaman for plaistiff im
Mr. J, P. aia/y tot defandant in
Ootoher 11, 1898. Di^^isMd, per
tion.
Fbanoib L Gowkn, Sole Beoeivvr. ete^
tiff in Error, v. Laura B. Bush,
tratrix, ete. [No. 42.]
In Error to the United States OrtseA
Court of Appeals for the Ei^th dreiut.
Measra, Samuel Dickaon and John W. M*^
Loud for plaintiff in error. Jf r. W. B. C
Clayton and Joa, M, HiU lor defendant ia
error.
October 14, 1898. Dismissed witk
per stipnlatiaD.
United States, AppeUani, v. C^rr or
QUERQUE. [No. 40.]
Appeal from the Court of Prirmte
Claims.
The Attorney General, the SoUeitor
eral, and Mr, Matt, G. Beynolda for apftcl-
lant. if r. Prank W. Clancy for app^lee.
October 17, 1898, Decrees rereracd on the
authority of United Statee t. Santa P4
166 U. a 681 [41:8771 and
manded with directionB to proeeed
in the matter o# amendments, new
and otherwise as Justice and eqni^
quire.
Kate McDonnell, SurriTing
Petitionmra, v, Mercantilb Tkosr OoH-
PANT et aL [No. 811.]
PeUtion fbr a Writ oi Oertiorari to thm
United States Cirenit Coart of Appeals Ur
the Fifth Circuit
Meaara, Gregory L, and Barry T, ■!?■■>>
for petitioners. Meaara, W, A, Blommt, D. P.
Beator, and Leopold Wallaeh for
ents.
October n, 1898. Denied.
Mutual Reskbvb Fund Lds Abwociai
Petitioner, v, J. K. DuBon, Administra-
tor. [No. 830.]
PetiUon for a Writ oi Certiorari to tke
United States Circuit Ooort of Appeals far
the Ninth Cirenit
if r. J, B, Poraker for petitkMMr. Mr. Jt
E, McParland for respondent
October 17, 1898, Denied.
Third National Bank ov
Petitioner, v. National Banx or
Vallet. [No. 887.]
Petition for a Writ oi Certiorari to tke
United States Circuit Ooort oi Appeala lor
the Fifth Circuit
Mr, Henry B. Tomphima for petitiooir.
if r. W. D. ilUe for respondent
Oolo5er 17, 1898. Denied.
171, ITS, ITS, 1T4 IT. t
189a
MBMOBANDOM CASEh.
FKkd. J. KiESEL & Ck)KP4irr, Petitioner, «.
Sun Insubanob Office of London. [No.
391.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
tlie Eighth Circuit.
Mr. Abbot R, Heytoood for petitioner. Mr,
T. 0. Van NesB for respondent.
October n, 1898. Denied.
John B. Russell, Petitioner, v. Fbbdebiok
Steabnb & Co. [No. 410.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
Messrs. Henry M, Campbell, Bphraim Ban-
ning, and Thomas A, Banning for petitioner.
Messrs. R. A. Parker and O. F. Burton for
respondent.
October 17, 1898. Denied.
Jbbsb Lk MacDaniel, Pistxiioner, v. Unitkd
States. [No. 416.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
ttte Fourth Circuit.
Mr. Tracy L. Jeffords for petitioner. The
Attorney General and Assistant Attorney
General Boyd for respondent.
October 17, 1898. Denied.
Katie MoK. Ibvine, Appellant, v. United
States. [No. 441.]
Appeal from the Court of Private Land
Claims.
October 17, 1898. Docketed and dis-
missed, on motion of Mr. Solicitor General
Richards for appellee.
Jaoob Gk>LD et al.. Appellants, v. United
States. [No. 442.]
Appeal from the Court of Private Land
Glaimn.
October 17, 1898. Docketed and dis-
missed, on motion of Mr. Solicitor General
Bicharda for appellee.
ToLLBSTON Club, of Chicaoo, Plaintiff in
Brror, v. John H. Clough. [No. 219.]
In Error to the Supreme Court of the
Btate of Illinois.
Mr. Frederic Ullman for plaintiff in error.
Messrs. Frank J. Smith, Addison L. Garden,
and Randall W. Bums for defendant in er-
Oote^^er ^7, 1898. Dismissed, per stipulsr
tloo.
CiTT OF New Obleans Appellant, v. John
S. Wabneb. [No. 336.]
Aj^>eal from the United States Circuit
Court of Appeals for the Fifth Circuit.
Messrs. Samuel L. (Hlmore and Branch K.
Miller for appellant. Messrs. Richard De
Oray, J. D. Rouse, Wm. Grant, and Wheeler
H. Peokham for appellee.
October 2^, 1898. Dismissed on the au-
thority of Tennessee ▼. Union d P. Bank, 152
U. S. 454 [88: 611] ; Sawyer v. Kochersperg-
er, 170 U. S. 303 [42: 1046]. (Mr. Justice
Wliite took no part in the consideration
and disposition of this motion.)
Michael Jeskb et al, Plaintiffs in Error, o.
Nettie L. Cox et al. [No. 217.]
In Error to the Superior Court of Mil-
^raukee Counly, State of Wisconsin.
Mr. Rublee A. Cole for plaintiffs in error.
Mr. Howard Morris for defendants in error.
October 24, 1898. Dismissed on the au-
thority of Missouri P. R. Co. v. Fitzgerald,
160 U. S. 582 [40: 542]; Meyer v. Cow, 169
U. S. 735 [42: 1207] ; McIAsh v. Roff, 141 U.
S. 661 [35: 893]; Vnion Mut. L. Ins. Co. y.
Kirchoff, 160 U. S. 374 [40: 461].
Aabon H. Zbokendobf et al.. Appellants, v.
Louis Zecxendobf, Guardian, etc [Na
46.]
Appeal from the Supreme Court of the
Territory of Arizona.
Messrs. Francis J. Heney and Duane E.
Fom for appellants. Mr. E. M. Marble for
appellee.
October 24, 1898. Decree affirmed, with
oosts, on the authority of Gray v. Howe, 108
U. S. 12 [27 : 634] ; Salina Stock Co, v. Sa-
Una Creek Irrig. Co. 16^ U. S. 117 [41 : 93].
Henbt Gabdbs, Petitioner, v. United
States. [No. 426.]
Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth
Circuit.
Mr. J. R. Beckwith for petitioner. The
Attorney General and The Solicitor General
for respondent.
October 24, 1898. Denied.
Louis Gallot, Petitioner, v. United States.
[No. 427.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Mr. J. R. Beckuyith for petitioner. The
Attorney General and The Solicitor General
for respondent.
October 24, 1898. Denied.
CiTT OF Attica, Habpeb Countt, Kansas,
Petitioner, v. Spbinqfield Safe Deposit
& Tbust Company. [No. 346.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Mr. Wm. T. S. Curtis for petitioner. Mr.
Henry A. King for respondents
October 24, 1898. Denied.
P. LoBiLLABD Cohpant, Petitioner, v. Chbis-
TIAN Pepeb. [No. 418.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Messrs. M. B. Philipp and Frederic D. Mo-
Kennay for petitioner. Mr. SnUth P. Chilt
for respondent.
October ffl, 1898. Denied
1179
SUFBEMB Ck>nRT OF THB UlimD BTATBS.
J. Hbnbt JtTBOENB, Sheriff, ete.9 Appellant,
V. YoT Sano. [No. 60.]
Appeal from ^e Distriot Court of tlie
United States for the Dietrict of MontAna.
Mr, C. B. Nolan for appellant. Mr. A. 0.
Botkin for appellee.
October SI, 1898, Final order reyersed
with costs, and cause remanded with di-
rection to discharge the writ and digmiss
the petition, on the authority of Washington
y, Coovert, 164 U. S. 702 [41: 1182], and
oases cited*
CowTuiEJiTAL National Bank of New
York Citt, Petitioner, v. Mabt Jknnssb
Heilman et al, [No. 419.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Messrs. John L. Cadwaladcr and Addison
0, Harris for petitioner. Messrs. Charles
W. Smith, John 8. Duncan, Alexander (HU
ohrist, and 0. A. De Bruler for respondents.
October SI, 1898, Denied.
Knights Temflabs & Masons' Lifb Indkic-
NiTT Company, Petitioner, v. Cabbdb B.
Converse. [No. 443.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
Mr. CJiarles H. Aldrich for petit icmer.
Mr. James 11. Hopkins for respondent.
October SI, 1898. Denied.
Nelson Mobbis et dl.. Petitioners, v. Bob-
EBT B. Stewabt et al. [No. 463.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
ifr. Charles H. Aldrich for petitioners.
Messrs. Samuel P. McConnell, H. M. PoU
lard, and Horace K. Tenny im respondents.
November 7, 1898. Denied.
Fabmebs' Bank of Nobbobne, et aX,, Plain'
tiffs in Error, v. John £. Rosellb.
[No. 167.]
In Error to the Supreme Court of the
State of Missouri.
ifr. Morton Jourdan for plaintiffs in er-
ror. Messrs. William B, King and William
E. Harvey for defendant in error.
November 7, 1898. Writ of error dis-
missed, on the authority of Meyer r. Cow,
169 U. S. 735 [42: 1207]; MoLish ▼. Roff,
141 U. S. 601 [35 : 803] ; MissouH v. An-
driano, 13S U. S. 406 [34: 1012]; Dower r.
Richards, 161 U. S. 666 [38 : 308] ; Union
Mut. L. Ins. Co. r, Kirohoff, 160 U. S. 874
[40:461].
1180
Eugenia A. Webstee Bobs, Piaimtif «■ Er-
ror, V. GflOBQE QoBDON Kon, €$ mL [Sol
400.]
In Error to the SupraM Cdort of
State of Bhode Island.
ifeMTt. Heber J. Ma^ sad /. M.
for plaintiff in error. Mesere. Johm R.
Clover and Stephen H, OUn for dfffiidaBiB
in error.
November 7, 18S9. Writ of error d]»
missed, on the authority of Omley Btmve On.
Y. Butler County, 166 U. S. 648 [41: 1149] ;
Pim T. St. Louis, 166 U. a 273 [41: 714] ;
Zadig r. Baldwin, 166 U. a 485 [41: 1067];
Kipley ▼. lUinois, 170 U. a 182 [42 : 998].
Pbteb MoCabtnet et oL, AppeOamtm, et.
Susan Fletchek et al. [Na 184] ; mad
Annie C. McCabtnet et aL, AppeUamta, c.
Susan Fletcheb et al, [No. 185.]
Appeals from the Court oi Apprali of the
Disbnct of Columbia.
Messrs. A. S. Worthington and Hn§h T.
Taggari for appellants. Messrs. W. L. Cote
and Edmund Burke for appellees,
^oi^em&er 7, 1898. Dismiseed wi^
on motion of ifr. A. S. Worthington for
pellants.
WnxxAM K.
John F. Kumleb, Petitioner, v.
Hale. [No. 352.]
PeUtion for a Writ of Certiorari
United States Circuit Court of
the Sixth Circuit.
Mr. Orville S. Brumbadt for peti
Messrs. Barton Smith, Bnfms H.
and John P. Wilson tor respondent.
November H, 1898. Demed.
to t^
Sioux CiTT, O^iEUx, ft Westebn Railway
Company, Appellant, v. ICanhattan
Tburt Compant [No. 62], and Ssouz
Crrr, O^eill, ft Westebn Railway Com-
pany et al.. Appellants, v. Hanhaxtav
Tburt Company. [No. 63.]
6n a Certificate from the United 8tiat«
Circuit Court of Appeals for tlio Eighth Cir-
cuit.
Messrs. John C. Coomhs and Henry J, Tmi^
lor for appellants. Meatre C W. Wiekere-
ham, John L. Cadwalader, and John L. We^
ster for appellee.
Norember U, 1898. Certifleate dfsmisiert,
on the authority of United States t. Umiom P.
R. Co. 168 U. a 612 [42: 561]. and eases
cited; Cross y. Evans, 167 U. a 60 [42:
77] ; Warner r. New Orleofie, 197 U. a 467
[42: 239] ; Packer y. Nimm, 19 Pet. 406 [»
473]; Wiggins r. Cray, 24 How. SOS [16
688] ; BnfiM ▼. Jordan, 110 U. a 680 [30
523].
Atiab Steamship Oompany, PeHHomer, e.
La Boubgoonb, bio. [No. 434.1
PetiUon for a Writ of Certiorari to t^
United States Cirenit Govt of App«k f»
the Second Circuit.
ifr. Everett P. WhoeUr lor p^tiHoMr.
If r. Edward K. Jones for reipo»diEt.
yooem5er H, 1898. Denied.
171. ITS, 179, 174 V. a
1896.
MBMORANDUH UA8B8.
Chabij&s B. Wheeler, Petitioner, v. La
BouBGOONE, Etc. [No. 603.]
Petition for a Writ of Certiorari to tlie
Umted States Circuit Court of Appeals for
tlie Secofid Circuit.
Mr, Everett P, Wheeler for petitioner.
Mr, Edward K. ^ones for respondent.
November U, 1898. Denied.
Edwapo Clifford, Appelkint, v. Whuam
Heller, Sheriff, etc. [No. 804.]
Appeal from the Circuit Court of the
United States for the District of New Jersey.
Mr. William D, Daly for appellant. Mr,
James 8. Erwin for appellee.
November H, 1898. Order aflirmed, with
oosta.
Ukited States and the Comanche Indians,
Appellants, v. Samuel W. Hood. [No.
266.]
Appeal from the Court of Claims.
The Attorney Qcneral, Assistant Attorney
Oeneral Thompson, and Charles W, Russell
for appellants. Messrs. Silas Hare and
John Wharton Clark for appellee.
November H, 1898. Judgment affirmed
by a divided court.
MiOHiOAiT Stove Company, Petitioner, v.
Fuller Warren Company. [No. 597.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
tke Seventh Circuit.
Messrs. Ephraim and Thomas A. Banning
for petitioner. Messrs. Edward P. Vilas
and muis H. Bottum for respondent.
November 28, 1898. Denied.
Charles Aoolphe Low et al.,- Petitioners, v.
Farmers' Loan Jk Trust Company, Wil-
liam H. Blackford, et al. [No. 300.]
On Writ of Certiorari to the United States
Circuit Court of Appeals for the Fourth Cir*
cuit.
Messrs. Charles Steele and William
D. Outhrie for petitioners. Messrs. John K.
Cowen, E. J. D. Cross, Hugh L. Bond, Jr.,
Eerbett B. Turner Oeorge Rountree, and
Itobert 0. Burton tor respondents.
November 29, 1898. Dismissed, per stipu-
laUon.
Johns Hopkins University, Appellant, v.
Baltimore & Ohio Railroad Company
et al. [No. 320.]
«0n a Certificate from the United States
Circuit Court of Appeals for the Fourth
Circuit.
Messrs. Bernard Carter, Arthur Oeorge
Brown, and John J, Donaldson for appellant.
Messrs. Hugh L. Bond, Jr., and El. J. D.
Crost for appellees.
December 2, 1898. Dismissed, per stipula-
tion, on motion of Mr. W. H. Bucicler for ap-
pelL
United States, Appellant, v. Daniel Van
Iderstine. [No. 56.]
Appeal from the Court of Claims.
The Attorney Oeneral, Assistant Attorney
Oeneral Pradt, and Mr. Oeorge H. Oorman
for appellant Messrs. RusseU Duane and
Harvey Spalding for appe)]ee.
December 5, 1898. Judgment affirmed by
a divided court.
Dean Linseed Oil Company, Petitioner, v.
United States. [No. 468.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit. ^
Messrs. Elihu Root and S. B. Clarke for
petitioner. The Attorney Oeneral and the
Solicitor Oeneral for respondent.
December 6, 1898. Dcoiied.
Lake Street Railroad Company, Petition-
er, V. William Ziegler et aL [No. 605.]
Petition for Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
Mr. Charles H. Aldrich for petitioner. Mr.
John J. Herriok for respondents.
December 6, 1898. Denied.
Howard M. Holden, Plaintiff in Error, v.
A. E. Watson et al [No. 233.]
In Error to the Supreme Court of the State
of Kansas.
Mr. 0. H. Dean for plaintiff in error. Mr.
Silas Porter for defendants in error.
December 5, 1898. Dismissed with costs,
on motion of counsel for plaintiff in error.
Seiolb Beokner, Appellant, v. Walter
Scott. [No. 93.]
Appeal from the Supreme Court of the
Territory of Arizona.
Mr. Arthur Brown for appellant. No
counsel for appellee.
December 9, 1898. Dismissed with costs,
on authority of counsel for appellant.
Citizens' Bank of Tina, Petitioner, v.
Georoe Adams et al. [No. 622.]
Petition for Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
Mr. Francis A. Riddle for petitioner. Mr.
Mason B. Loomis for respondents.
December 12, 1898. Denied.
St. liouis & San Franoisoo Railway Com-
pany, Plaintiff in Error, v. W. N. Barker.
[No. 70.]
In Error to the United States Circuit
Court of Appeals for the Eighth Circuit.
Messrs. L. F. Parker, A. T. Britton^ and
A. B. Browne for plaintiff in error. Messrs.
William M. Cravens and Oeorge E. Nelson
for defendant in error.
December 12, 1898. Judgment affirmed
with costs, and cause remandml to the United
Slates court In the Indian territory, central
district.
''"•81
BUFBBMB GOUBT OF THB UhITID StATBS.
Oec
Clara Wheblbi, AftpeUani, v. Chabum
KiDGELT MoBlaib et aU [No. 77.]
Appeal from the Court of Appeals of tlie
District of Columbia.
Messrs, Alphonso Hart and O. A. Keigwin
for appellant. Mr, J, J. DarUngian for ap-
pellees.
December It, 1898. Decree affirmed^ with
costs.
Habt 8. CHAPLm, Appeliani, r. UHirKD
States. [No. 68.]
Appeal from the Court of Claims.
Mr, James Lowndes for appellant. The
Attorney General and Assistant Attorney
Qenerdl Pradt for appellee.
December 12, 1898. Jud^ent refversed
and cause remanded with a direction to enter
judgment for the claimant, on the authority
of United States r. Elliott, 164 U. S. 878
[41:474].
Henbibtta Fuixxb et al., Appelkmte, v.
United States. [No. 69.]
Appeal from the Court of daima.
Jur. James Lowndes for appellants. The
Attorney General and Ass\stant Attorney
General Pradt for appellee.
December 12, 1898. Jud^pnent reversed,
and cause remanded with a <&rection to enter
Judgment for the claimants, on the authority
of United States r. EUiott, 164 U. & S7S
[41:474].
UifiTBo States, Appellant, v. Habt W. Kid-
deb et oL [No. 78.]
Appeal from the Court of Claims.
The Attorney General and Assistant At'
tomey General Pradt for appellant. Mr.
James Lowndes for appellees.
December 12, 1898. Judgment affirmed^on
the authority of United States ▼. BlUott, 164
U.S. 373 [41:474],
James B. Davis, Appellant, v, Unitkd
States. [No. 633.]
Appeal from the Court of Claims.
December 12, 1898. Docketed and dis-
mipeed, on motion of Mr. Solicitor General
Richards for appellee.
LrvEBPOOL & LoNDOir & Globe Insubanob
CoMPAirr, Petitioner, v. Bdwiw McNeill,
Receiver, etc. [No. 613.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit.
Messrs. William Allen Butler and John
Notman for petitioner. Mr. L. B. Com for
respondent.
December 19, 1898. Denied.
Salicen Bbick ft LuMBEB CoMPAiTr, Lim*
ited, Appellant, v. Hbnbt Dieok et ol.
[No. 660.]
Appeal from the District Court of the
United States for the Eastern District of
Louisiana.
January 8, 1899. Dodceted and dismisi«d
with costs, on motion of Mr. Frederic D.
McKenney for appellees.
1182^ ^^
BoBEBT L. Tatlob, Goverxior, ei oL, P^ti-
tioners, v. Louisvillb k NABBfnxs
boad Compaht. [No. G26.]
Petition for a Writ of Certiormri to
United States Cireoit Court of Appeals
the Sixth Circuit.
Messrs. George W. Pickle, WUUmm L.
Granbery, and A. D. Marks for petitiooera.
Mr. J. M. Dickinson for respondott.
December 19, 1898. This ia an aopliea-
tion for a writ of oertionuri to ievia» a
decree of the eircoit court of appeals for tka
sixth circuit <m i^P«^ from an utterlocvtory
order, and Is denied, on the authoritj of Cft*-
00^0 d N. W. R. Co. T. Osborne, 146 U. S
364 [36: 1002]; Forsyth v. Hmmmomd, IM
U.S. 606 [41:1095].
iNTBBir ATIONAL BaHK OV 8t. LoUIB, PeH-
tioner, v. Ebebhabd Fabbb. [No. 638.]
Petition for a Writ ci Certiorari to the
United States Circuit Coort of Appeals for
the Second Circuit.
Mr, Robert D. Murray tor petHsoaar. JTr.
Francis Forbes for respondents
January 9, 1899. Denied.
William T. DoifitBU.^ PetitUmer, «. Boaroir
Towboat Company. [No. 665.]
Petition for a Writ of Certiorari to t^
United States Circuit Court of Appeals for
the First Circuit
if essrt. Bugene P. Carver and B. B. ffle4-
gett for petitioner, ifestrt. Lewie 8. Dmb-
ney and Frederie Cunningham far
dent.
January 9, 1899. Denied.
Ln> C Habmon, as Reoeirer, PMattf t»
Error, v. National Pabx Bank ov tbb
Citt of New Tobk. [No. 111.]
In Error to the United States CfreaH
Court of Appeals for the Second Cireoit.
ifr. Frederie J. Swift for plaintiff ia er^
ror. ifr home F. Doyle for defendaat la
error.
January 9, 1899. tludgmrat afirmed with
oosts, on ^e anthoritj of Pmuly r. SUte
Loan d T. Co. 165 U. S. 606 [41: 644] and
cause remanded to the circuit eoart of the
United States for the southern distrki of
New York, with a direction to render jadf>
ment in accordance with the mandata of the
United States court of appeals.
Gbobob Kinnbab, Plaintiff im Brror, t.
Fbedebick Bausman, as Beeeirer, cte.
[No. 104.]
Appeal from the United Statas Gireait
Court of Appeals for the Ninth Obeoit.
Mr. George Turner for plaintiff ia errer.
ifr. J^-edertol; Bauswtam far defendant la er*
ror.
January 9, 1899. Dismissed for want of
jurisdiction, on the authority of Union If at
L. Ins. Co. T. Kirehoff, 160 U. a 574 [46:
461]. and cases cited.
171. ITt. ITS, 174 V. U.
18W.
Mbmoranduh Cases.
Ci^ARENCE H. Venner, PcUtioner, v. Farm-
ers* Loan & Trust Company. [No. 684.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
3/r. Alfred Russell for petitioner. Mr.
Frederick B. Van Vorst for respondent.
February 27, 1899, Denied.
Adrian Waterworks Company, Petitioner,
V, Farmers' Loan & Trust Company.
INo. 686.]
Petition for a Writ of Certiorari to tlie
United States Circuit Court of Appeals for
the Sixth Circuit.
Mr. Andrew Howell for petitioner. Mr.
Frederick B. Van Vorst for respondent
February 27, 1899. Denied.
MnAUBN Gin ft Machine Company et al.,
Plaintiffs in Error, v, German Bank
[No. 342.]
In Error to the Supreme Court of the State
of Tennessee.
Mr, William M. Randolph for plaintiffs in
error. Mr. 0. W. Metcalf for defendant in
error.
February 27, 1899. Dismissed, on the au-
thority of Eustis v. Bolles. 150 U. S. 361
[37 : nil] ; MissouH P. R. Co. v. Fitzgerald,
160 U. S. 556 [40: 536] ; Egan v. Hart, 166
U. S. 188 [41: 680], and other cases.
Northern Pacdtio Railroad Company,
Plaintiff in Error, v. Neptune Lynch,
Sr. [No. 121.]
In Error to the United States Circuit
Court of Appeals for the Ninth Circuit.
Mr. William Wallace, Jr., for plaintiff in
error. Mr, John B. Clapberg for defendant
in error.
February 27, 1899. Judgment affirmed,
wiili costs, and cause remanded to the circuit
court of the United St^ates for the district ol
Montana.
United States, ex rel. John H. Adriaano,
Petitioner v. Kichard H. Alvey, Chief
Justice, etc., et al. [No. 627.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Columbia.
Messrs. William A. Meioy and William A.
Cook for petitioner. The Attorney General
and the Solicitor General for respondents.
March 6, 1899 Denied.
WnxiAK T. Gilbert, Receiver, etc.. Appel-
lant, V. Washington Beneficial Endow-
ment Association et al. [No. 90.]
Appeal from the Court of Appeals of the
District of Columbia.
Messrs. Tlwmas M. Fields and Henry D.
Hotchkiss for appellant. Messrs. A. A. Lips*
oomb, Samuel F. Phillips, Frederic D. Mo-
Kenney, James E. Padgett, and Edwin For*
rest for appellees.
March 6, 1899. Dismissed, on the author-
ity of Lodge v. Twell, 135 U. S. 232 [34:
153] ; McOourkey v. Toledo d 0. C. R. Co.
146 U. S. 536 [36: 1079], and cases cited.
Geoman Insurance Company of Freeport,
Illinois, Plaintiff in Error, v. First Na-
tional Bank of Boonvillb, New York.
[No. 159.]
In Error to the Supreme Court of the State
of Kansas.
Mr. A. P. Jetmore for plaintiff in error.
Messrs. W. H. Rossington and Charles
Blood Smith for defendant in error.
March 6, 1899. Dismissed, on the author-
ity of Oxley Sta^e Co. v. Butler County, 166
Tj; S. 648 [41: 1149] ; LouisvilU d N. R. Co.
y. Louisville, 166 U. S. 709 [41: 1173], and
other cases.
Keokuk ft Hamilton Bridge Company,
Plaintiff in Error, v. People of the State
OF Illinois. [No. 23.]
In Error to the Supreme Court of the Stat«
of Illinois.
Mr. F. T. Hughes for plaintiff in error.
Mr. E. C. Akin for defendant in error.
March IS, 1899. Dismissed, on the au-
thority of Ross v. King, 172 U, S. 641 [ante,
1180], and cases cited.
Platt Rogers, as Mayor, etc., et al.. Plain-
tiffs in Error, v. Ellen Theresa Mob-
GAN et al. [No. 228.]
In Error to the United States Circuit
Court of Appeals for the Eighth Circuit.
Messrs. George Q. Riohm^td and Platt
Rogers for plaintiff in error. Messrs. Will-
ard Teller and H. M. Orahood for defend-
ants in error.
March IS, 1899. Dismissed, on the au-
thority of Clark v. Kansas City, 172 U. S.
334 [ante, 467] ; Kinnear v. Bausman, 172 U.
S. 644 [ante, 1182], and casee cited.
State Bank of Ambia, Petitioner, v. Chi-
cago Title & Trust Company, as Trustee,
et al. [No. 719.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
Messrs. Gtto Gresham and Daniel Fraser
for petitioner. Messrs. Samuel 0. Pickens
and Smiley N. Chambers for respondents.
March IS, 1899. Denied.
F. E. Jordan et at.. Plaintiffs in Error, v.
John Duke et al. [No. 7881.
In Error to the Supreme Court of the
Territory of Arizona.
Mr. John B. Clayberg for plaintiffs in er-
ror. No counsel for defendants in error.
March 16, 1899. Dismissed, with costs,
on the authority of counsel for plaintiff in er-
ror.
F. E. Jordan et al. Plaintiffs in Error, o.
George n. Schuerman. [No. 739.]
In Error to the Supreme Court of the Ter-
ritory of Arizona.
Mr. John B. Clayberg for plaintiffs in er*
ror. No counsel for defendant in error.
March 16, 1899. Dismissed, with costs,
on the authority of counsel for plaintiffs in
error.
75 lid's
SCPBBMK COUBT OP THB UnITKD BTATBB.
William V. Mabmion, Appellant, v, John
MoClkllan, Executor, etc [No. 245.]
Apl^eal from the Court of Appeals of the
District ol Ck>luinbia.
Messrs. Oeorge E, Hamilton and M, J.
Colbert for appellant. Mr. William G. John-
son for appellee.
March 17, 1899. Dismissed, with costs,
on motion of Mr. M. J. Colbert for appdlant.
CONSOLIDATBD WATER COMPANT et ol., Ap-
ptMants, V. K S. Baboook et al, [No. 231].
Appeal from the Circuit Court of the
United States for the Southern District of
California.
Messrs Horace 8. Oakley, C. K. Davis,
Frank B. Kellogg, and C. A. Severance for
appellants. Messrs. H. E. Doolittle Will-
iam J, Hunsaker^ A. T, Britton, and A. B.
Browne for appellees.
Ifarc^ 20, 1899. Dismissed, on the au-
thority of Maynard v. Heoht, 151 U. S. 324
[38: 179] ; Van Waqenen v. BeuxM, 160 U.
8 360 [40: 460] ; Davis v. Geissler, 162 U.
S. 290 [40 : 972] ; Cornell v. Qreen, 163 U. S.
76 [41 : 76], and cases cited.
Geobgb W. Childs Drexel et al.. Executors,
etc., Plaintiffs in Error, v. United States.
[No. 47.]
In Error to the United States Circuit
Court of Appeals for the Third Circuit.
Messrs. K. C. Dale, O. 8. Oraham, and
Clayton E. Emig for plaintiffs in error. The
Attorney General for defendant in error.
March 20, 1899. Dismissed, per stipula-
tion, on motion of Mr. Solicitor General Rich'
ards for defendant in error.
Phcenix Assubanob Company of London,
Plaintiff in Error, v. Fibb Depabtment
OF the Citt of Montqomebt et al. [No.
763.J
April S, 1899. Docketed and dismissed,
with costs, on motion of Mr. A. E. Browne, in
behalf of Mr. John T. Morgan for defendants
in error.
Hfnby Lockhabt, Plaintiff in Error and Ap-
pellant, V. J. A. Johnson et al. [No. 762.]
In Error to and Appeal from the Supreme
Court of the Territory of New Mexico.
April S, 1899. Docketed and dismissed,
with costs, on motion of Mr. A. B. Brotone,
for defendants in error and appellees.
Anderson Qratz, Trustee, et al., Petitioners,
V. Land & Rtvbr Impbovement Company
et al. [No. 270.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
Mr. Henry 8. Wiloow for petitioners.
Messrs. John C. Bpooner, A . L. Sanborn and
Maxwell Evarts for respondents.
ApHl 11, 1899. Denied.
1186
Mextcaw Centbal Railway Oompaxy
titioner, v. A. M. Mabshau.. [Ki
Petition for a Writ of
United States Circuit Ooort of
the Fifth Circuit
Messrs, A. T. Britton and A. B.
for petitioner. No counsel for
April U, 1899. Denied.
Oliver C. Bobbyshell,
V. United States. [No. 58.]
In Error to the United States Cixent
Court of Appeals for tbo Third Circuit.
Messrs. F. Carroll Breweter and Cl^wtmm F.
Ewig for plaintiff in error. Th^ Attormtf
General for defendant in error.
April tl, 1899. Dismissed per stipolal
on motion of Mr. SoUcitcr General
for the defendant hi error.
Dax-
Unitbd States et al., App^lants, v.
Fallowell. [No. 321], and
United States et aU, Appellamf, «.
line Mackey. [No. 322], and
United States et oL, AppeUamts, v.
DEL S. I^athxbwood. [No. 323],
United States et aL, Appellants, v.
EBT Cabteb. [No. 324], and
United States et aU, App^lmm
Chables H. Hittson. [No. 325]
United States et al., AppellmmiM, v.
ScBOGQiNS. [No. 326], and
United States et al.. Appellants^ v.
ING P. Jennings. TNo. 327], and
United States et aL, Appellants, v.
P. MoCbacken. [No. 328], and
United States et aL, App^amta, w.
Woody. [No. 329.]
Appeals from the Court of
The Attorney General for
Mr. John Wharton Clarke for ap
April 11, 1899. Dismissed, on
Mr. Assistant Attorney Oemarml
for appellanta.
S. F. Chapman, Petitioner, v. Ynxow
LAB Lumbeb Company. [No. 7S4.]
Petition for a Writ of Certionm to the
United SUt^ Circuit Court of Appeals for
the Fourth Circuit.
Messrs. J. F.BtUUtt and R.A.Ayrrt for t«^
titioner. Mr. John If. Baldwin for rr»p^a-
dent.
April n, 1899. Denied.
Marvin F. Scair, Petitioner, v. Wirrim'^
North Carolina Land Company h oL
[No. 748.]
Petition for a Writ of Oartkirari to tks
United SUtes Circuit Court of Appeali §m
the Fourth Circuit.
Mr. A. O. Avery for peiitioocr. Ko
sd for respondents.
April 17, 1899. Denied.
171* ITS, ITS, 1T«
1898.
Memorakdux Casks.
AwTON Glaw, Petitioner, v, Pennstlvaioa
Company. [No. 717.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Sixth Circuit.
Messrs, Charles Dick and Frederick 0.
Bryan for petitioner. Mr, WilUam B. San-
tiers for respondent.
April 17, 1899, Denied.
WaxiAM J. Bbtan et al, Plaintiffs in Error,
V, United States. [No. 682.]
In Error to the United States Circuit
Court of Appeals for the Ninth Circuit.
Mr, John T, Carey for plaintiff in error.
The Attorney Cfeneral for defendant in error.
April 17, 1899, Dismissed, per stipula-
tion, on motion of Mr, Solicitor General
Richards for appellee.
Chajilrs Stobbow et al,. Petitioners, v,
Texas Consolidated Compress & Mant7-
FACTUBiNO Company. [No. 761.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Mr, W, 8, Hemdon for petitioners. Mr.
J. M, MoCormiok for respondent.
April 2k, 1899, Denied.
Board of County Commissioners of Pratt
County, Kansas, Petitioner, 9, Socjiety
FOR Sayings. [No. 777.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Mr, 8, 8. Ashhaugh for petitioner. No
counsel for respondent.
April 24, 1899, Denied.
Florida Mortgage & Investment Com-
pany, Limited, Petitioner, v, Daniel A.
FiNLAYSON. [No. 786.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Messrs, N, B, K, Pettingill and T, M,
Shackleford for petitioner. Mr, W, B,
Lamar for responaent.
April 24, 1899, Denied.
Travis County, Petitioner, v. King Iron
Bridge ft Manufactxtrino Company. [No.
781.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Fifth Circuit.
Mr. Clarence B, Miller for petitioner. Mr,
M, W, Oamett for respondent.
May i, 1899, Denied.
C<EUR d'Alene Railway ft Navigation
Company et al.. Petitioners, v, William
L. Spalding. [No. 747.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Ninth Circuit.
Messrs, C W, Bunn, A, T, Britton, and A,
B, Browne icft petitioners. Messrs, John
09ode and Willis Sweet for respondent.
May /, 1899, Denied.
Sioux City, O'Neill, ft Western Railway
Company et al,. Petitioners, v, Manhat-
tan Trust Company. [No. 779.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Messrs, John C, Coomhs and Henry J. Tay"
lor for petitioners. Messrs, John L, Weh-
ster and O. W, Wickersham for respondents.
May 1, 1899. Denied.
Julius Stein wen der et al., Petitioners, v.
The Mexioan Prince, etc. [No. 793.]
Petition for a Writ ol Certiorari to the
United States Circuit Court of Appeals for
the Second Circuit.
Messrs. Lawrence Kneeland, Harrington
Putnam, and Leiois Cass Ledyard for peti-
tioners. Mr, J. Parker Kirlin tot respond-
ent.
May 1, 1899. Denied.
Board of County Commissioners of Scott
County, Kansas, Plaintiff in Error, v.
State of Kansas. [No. 261.]
In Error to the Supreme Court of the
State of Kansas.
Mr, 8. 8, Ashhaugh for plaintiff in error.
Mr. .4. A, Oodard for defendant in error.
May 1, 1899. Dismissed, on the author-
ily of Union Mut. L, Ins. Co. v. Kirchoff, 160
U. S. 374 [40:461].
Samuel H. Stone, Auditor, etc., et al.. Ap-
pellants, V. President, etc., of the Bank
OF ELentuoky [No. 350], and
City of Louisville, Appellant, v. Pres-
ident, ETC., of the Bank of Kentucky
[No. 357], and
Samuel H. Stone, Auditor, etc., et al.,
Appellants, v, Loxtisvills Banking Com-
pany [No. 360], and
City of Louisville, Appellant, v, Louis-
ville Banking Company [No. 361], and
Samuel H. Stone, Auditor, etc., et al.
Appellants, v. Deposit Bank of Frank-
fort [No. 387.]
Appeals from the Circuit Court of the
United States for the Di:)trict of Kentucky.
Messrs, H, L. Stone, W. 8. Taylor, and Ira
Julian for appellants. Messrs. Alex. Pope
Humphrey, Qeorge M. Davie, James P. Helm,
Helm Bruce, and Frank Chinn for appellees.
May 15, 1899. Affirmed with costs, by a
divided court.
Albert R. Wiiittier, Petitioner, e, Elisha
A. Packer. [No. 734.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the First Circuit.
Messrs. Arthur D, Bill and Chapin Broxon
for petitioner. Mr, James J. Storrow for
respondent.
May 15, 1899. Denied.
nsr
SUFBEMB COUBT OF THB UnITBD STATBS.
OVEBWEIOHT COTHXTEBBALAKCm ElEFATOB
CoupAirx, Petitioner, v, Impboyed Qbdeb
OF Red Men's Haix Association. [No.
796.]
Petition for a Writ of Certiorari to tlie
United States Circuit Court of Appeals for
the Ninth Circuit.
Messrs, Frederic D. MoKenney and W. H,
E. Hart for petitioner. Mr. M, A. Wheaton
for respondent.
May 15, 1899. Denied.
United States, Petitioner, v. Eoesslsb ft
Hasslacheb Chbmioal Company. [No.
102.]
On Writ of Certiorari to the United States
Circuit Court of Appeals for the Second Cir-
cuit.
The Attorney Cfeneral for petitioner. Mr,
Albert Comstook for respondent.
May 15, 1899, Dbmissed per stipulation,
on motion of Mr, Solicitor General Richards
for petitioner.
PiTTSBUBO, Cincinnati, Chicago, ft St.
Loins Railway Company, Plaintiff in Er-
ror, V. William J. Montgomeby. [No.
727.]
In Error to the Supreme Court of the
State of Indiana.
Mr, Nathan 0, Ross for plaintiff in error.
No counsel for defendant in error.
May 15, 1899, Dismissed with costs, on
authority of counsel for plaintiff in error.
City of Milwaukee, Petitioner, v, Shaileb
ft SCHNIGLAU Co. [No. 804.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Seventh Circuit.
Mr, C, B. Hamilton for petitioner. Mr,
James 0. Flanders for respondent.
May 22, 1899, Denied.
Centbal Trust Company of New York,
Trustee, Petitioner, v. State of Minne-
sota, Intervener. [No. 820.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
the Eighth Circuit.
Messrs, Louis Marshall and Jed L, Wash"
hum for petitioner. Mr, J, B, Richards for
respondent.
May 22, 1899. Denied.
Atlantic Lumbeb Co., Petitioner, v, L.
BucKi & Southern Lumbeb Co. [No.
821.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals for
ihe Fifth Circuit
Messrs. R, B, Liggett and T, F, McChirry
for petitioner. Mr, B, Bishee for respon-
.dent.
May H, 1899. Denied.
INSUBANCE Company or
Petitioner, «. The
823.]
Petition for a Writ of Certiormri
United States Circuit Court of
the Second Circuit.
Mr, Lawrence Kneeiand for
Mr, Everett P. Wheeler for
May 22, 1899. Denied.
United States, Petitioner, 9. H. Bacma*-
ACH & Co. [Na 824.]
Petition for a Writ of Certiorari to the
United States Circuit Co^irt of Appeals for
the Second Circuit.
The Attorney General mod The ScHcito"
General for petitioner, ifr. Stepkem G.
Clarke for respondent.
May 22, 1899. Denied.
Thomas M. Adams et aL, Admiaistrater,
etc.. Petitioners, v. Benjamin K. Covas
ei al, Trustees. [No. 1 13.]
On Writ of Certiorari to the Onited $9to««9
Circuit Court of Appeals for the SIxtli Cir-
cuit.
Messrs. Lawrence MaawtXl, Jr., Jdkm F.
Eager and J, L. AnderBon for petHioiii>
Messrs. Judson Harmon, Johm J. Olidim,
and John Little for respondents.
May 22, 1899, Decree affirmed, with eoela.
by a divided court, and cause remanded to
the circuit court of the United States for the
district ci Kentudcj.
United Staivs et aL, AppeOamie^ «. Air
ASKA Packebs' Asso. et oL [No. 76a.]
Appeal from the Circuit Court of the
United SUtea for the DUtrict of WaaUi^
ton.
The Attorney General and The SoUeUer
(General for appellants. Messrs. O. W. Dorr^
A. F. Burleigh, A. T. Britton, and A. A
Browne for appellees.
May 22, 1899. Dismissed, per stipula-
tion, on motion of .Ifr. Bdicitor
Richards for appellants. .
John G. Schmidt, Appeilani, «. Jon H.
WnxiAMS, Administrator ete^ et eL
[No. 347.]
Appeal from the District Court of the
United States for the District of New Jervey.
Jfr. J, Warren Ooulston for appellaat.
Mr. 0. 0. Burlingham for appdleea.
May 22, 1899. Dinniiiaed, per atipvla-
tion.
171» 17S» ITS, 174 Xf. 8.
APPENDIX I.
^npvtmt^ (£^onti erf the WLnxUA J^tates.
OCTOBRB TUBM, 1898.
GEKERAX OKDEES IN BAI^KRTJPTOT.
In parsuanoe of the powers conferrea by
the Constitution and laws upon the Supreme
Court of the United States, and particular-
ly by tiie act of Congress approved July 1,
1808, entitled "An Act to Establish a Uni-
form System of Bankruptcy throughout the
United States," it is ordered, on this 28th
day of November, 1808, that the following
rules be adopted and established as general
orders in bankruptcy, to take effect on the
first Mondajr, beins the 2d day of January,
1800. And it is further ordered that ail
proceedings in bankruptcy had before that
day, in accordance with the act last afore-
said, and being in substantial conformity
either with the provisions of these general
orders, or else with the general orders es-
tablished by this court under the bankrupt
act of 1867 and with any general rules or
special orders of the courts in bankruptcy,
stand good; subject, however, to such fur-
ther regulation by rule or order of those
courts as may be necessary or proper to car-
ry into force and ^ect the bankrupt act of
1898 and the general orders of this court.
1.
DOCKET.
The clerk shall keep a docket, in which the
cases shall be entered and numbered in the
order in which they are commenced. It
shall contain a memorandum of the filing of
the petition and of the action of the court
thereon, of the reference of the case to the
referee, and of the transmission by him to
the clerk of his certified record of the pro-
ceedings, with the dates thereof, and a mem-
orandum of all proceedings in the case ex-
cept those dulv entered on the referee's certi-
fied record aforesaid. The docket shall be
arranged in a manner convenient for refer-
ence, and shall at all times be open to pub-
lic inspection.
2.
PILING OP PAPERS.
The clerk or the referee shall indorse on
each paper filed with him the day and hour
of filing, and a brief statement of its char- 1
acter.
a
PROCESS.
All process, summons, and subpoenas shall
issue out of the court, under the seal there-
of, and be tested by the clerk; and bluiks,
with the signature of the clerk and seal of
the court, may, upon application, be fur-
nished to the referees.
4.
CONDUCT OF PROCEEDINGS.
Proceedings in bankruptcy may be con-
ducted by the bankrupt in person in his own
behalf, or by a petitioning or opposing credit-
or; but a creditor will onl^ be allowed to
manaee before the court his individual inter-
est. Every party may appear and conduct
the proceedings by attorney, who shall be an
attorney or counselor authorized to practise
in the circuit or district court. The name
of the attorney or counselor, with his place
of business, shall be entered upon the dock-
et with the date of the entry. All papers
or proceedings offered by an attorney to be
filea shall be indorsed as above required,
and orders ^ranted on motion shall contain
the name of the party or attorney making
the motion. Notices and orders which are
not, by the act or by these general orders,
required to be served on the party personally
may be served upon his attorney.
5.
FRAME OP PETITIONS.
All petitions and the schedules filed there-
with snail be printed or written out plainly,
without abbreviation or interlineation, ex-
cept where such abbreviation and interlinea-
tion may be for the purpose of reference.
6.
PETITIONS IN DIFFERENT DISTRICTS.
In case two or more petitions shall be
filed against the same individual in different
district, the first hearing shall be had in
the district in which the debtor has his dom-
1180
Appendix L
icil, and the petition may oe amended by
inserting an allegation of an act of bank-
ruptcy committea at an earlier date taan
that first alleged, if such earlier act is
charged in either oif the other petitions ; and
in case of two or more petitions against the
same partnership in different courts, each
having jurisdiction over the case, the peti-
tion first filed shall be first heard, and may
be amended by the insertion of an allegation
ot an earlier act of bankruptcy than that
first alleged, if such earlier act is charged
in either of the other petitions; and, in
either case, the proceedings upon the other
petitions may be stayed until an adjudica-
tion is made upon the petition first heard:
and the court which malces the first adjudi-
cation of bankruptcy shall retain jurisdic-
tion over all proceedinffs therein until the
same shall be closed. In case two or more
petitions shall be filed in different districts
bv different members of the same partner-
ship for an adjudication of the bankruptcy
of said partnership, the court in which the
petition is first filed, having jurisdiction,
shall take and retain jurisdiction over all
proceedings in such bankruptcy until the
same shall be closed; and if such petitions
shall be filed in the same district, action
shall be first had upon the one first filed
But the court so retaining jurisdiction shall,
if satisfied that it is for uie greatest conven-
ience of parties in interest that another of
said courts should proceed with the cases,
order them to be transferred to that court.
7.
PRIORITY OP PETITIONS.
•
Whenever two or more petitions shall be
filed by creditors against a common debtor,
alleging separate acts of bankruptcy com-
mitted by said debtor on different day^
within four months prior to the filing of
said petitions, and the debtor shall appear
and show cause against an adjudication of
bankruptcy against him on the petitions,
that petiuon shall be first heard and tried
which alleees the commission of the earliest
act of baiucrupU^; and in case the several
acts of bankrupt^ are alleged in the differ-
ent petitions to have been committed on the
same day, the court before which the same
are pending may order them to be consoli-
dated, and proceed to a Rearing as upon one
petition; and if an adjudication of bank-
ruptcy be made upon either petition, or for
the commission of a single act of bankruptcy,
it shall not be necessary to proceed to a hear-
ing upon the remaining petitions, unless pro-
ceedings be taken bv the debtor for the pur-
pose of causing sucn adjudication to be an-
nulled or vacated.
8.
PROCEEDINGS IN PARTNERSinP
CASES.
Any member of a partnership, who re-
fuses to join in a petition to have the part-
nership declared bankrupt, shall be entitled
to resist the prayer of the petition in the
same manner as if the petition had been
llOO
filed by a creditor of the partnership, and
tice of the filing of the petition shall be
given to him in the same manner as provided
by law and by these rules in the case of a.
debtor petitioned against; and he shall h*v«
the riffht to appear at the time fixed by tkm
court for the hearing of the petition, and to
make proof, if he can, that the partottrakip
is not insolvent or has not committed aji act
of bankruptcv, and to make all defanaea
which any debtor proceeded against is enti-
Ued to take by the provisions of the act;
and in case an adjuaication of bankruptcT'
is made upon the petition, such partner shaU
be required to file a schedule of his d^bts
and an inventory of his property in the aama
manner as is required by the act in caaea of
debtors against whom adjudication of bank-
rupt47 shall be made.
9.
SCHEDULE IN INVOLUNTARY BANX*
RUPTCY.
In all cases of involuntary bankruptcj ia
which the bankrupt is absent or cannot be
found, it shall be the duty of the petition! ii;{
creditor to file, within five days after tha
date of the adjudication, a schedule giTing
the names and places of residenoe of iQl the
creditors of the bankrupt, according to tha
best information of the petitioning creditor.
If the debtor is found, and it served with bo-
tioe to furnish a schedule of his creditors
and fails to do so, the petitioning creditor
may apply for an attacnmaot against tha
debtor, or may himself furnish miSk sdiediila
as aforesaid.
la
INDEMNITY FOR EXPENSES.
Befora incurring any expense in pnbUsb*
ing or mailing noucee, or in traveliii^, or ia
procuring the attendanoe of witnesses, or ia
perpetuating testimony, the dark, marshal,
or referee may require, from the bankm^ or
other person in whose behalf the du^ u to
be performed, indemnitv for such ezpanML
Money advanced for this purpose hj tha
bankrupt or othar person shall be repaid him
out of the eitate as part of the cost of ad*
miniataring the same.
11.
AMENDMENTS.
The court may allow amendments to tha
petition and schedules on application of the
petitioner. Amendments shall be printed or
written, signed and verified, like original pa>
Utions and schedules. If amendmenta are
made to separate schedules, the mme mast
be made aeparatdy, with proper refereseea.
In the application for leave to aoMnd, tha
petitioner shall state the oanae of the
in the paper originally filed.
IS.
DUTIES OF REFEREE.
1. The order referring a case to a
shall name a day upon which the baakro^
Gbnsbal Ordbbs in Bankruptcy.
shall attend before the referee; and from
that day the bankrupt shall be subject to the
orders of the court in all matters relating to
his bankruptcy, and ma^ receive from the
referee a protection a^^ainfit arrest, to oon>
tinue until the final adjudication on his ap-
plication for a discharge, unless suspended
or vacated by order of the court. A copy
of the order shall forthwith be sent by mail
to the referee or be delivered to him personal-
ly by the clerk or other officer of tne court.
And thereafter all the proceedings, except
such as are required by the act or by these
general orders to be had before the judge,
shall be had before the referee.
2. The time when and the place where the
referees shall act upon the matters arising
UDder the several cases referred to them shall
be fixed by special order of the jud^e, or by
the referee; and at such times and places the
referees may perform the duties wnich they
are empowered by the act to perform.
3. Applications for a discharge, or for the
approval of a composition, or for an injunc-
tion to stay proceedings of a court or officer
of the United States or of a state, shall be
heard and decided by the judge. But he may
refer such an application, or any specified is-
sue arising thereon, to the referee to ascer-
tain and report the facts.
13.
APPOINTMENT AND REMOVAL
TRUSTEE.
OF
The appointment of a trustee by the cred-
itors shall be subject to be approved or dis-
approved by the referee or by we judge ; and
he shall be removable by the judge only.
14.
NO OFFICIAL OR GENERAL TRUSTEE.
No official trustee shall be appointed by
the court, nor any general trustee to act in
classes of cases.
15.
TRUSTEE NOT APPOINTED IN CERTAIN
CASES.
If the schedule of a voluntary bankrupt
discloses no assets, and if no creditor appears
at the first meeting, the court may, by order
setting out the facts, direct that no trustee
be appointed; but at any time thereafter a
trustee may be appointed, if the court shall
deem it desirable. If no trustee is appointed
as aforesaid, the court may order tnat no
meeting of the creditors other than the first
meeting shall be called.
16.
NOTICE TO TRUSTEE OF HIS APPOINT-
MENT.
It shall be the duty of the referee, immedi-
ately upon the appointment and approval of
the trustee, to notify him in person or bv
mail of his appointment ; and the notice shaA
require the trustee forthwith to notify the
referee of his acceptance or rejection of the
trust, and shall contain a statement ai the
penal sum of the trustee's bond.
IT.
DUTIES OF TRUSTEE.
The trustee shall, immediately upon en-
tering upon his duties, prepare a ccmiplete
inventory of all the property of the bank-
rupt that comes into hie possession. The
trustee shall make report to the court, with-
in twenty days after receiving the notice of
his appointment, of the articles set oflf to the
bankrupt by him, according to the provi-
sions of the forty-seventh section of the act,
with the estimated value of each article, and
any creditor may take exceptions to the
determination of the trustee within twenty
days after the filing of the report. The ref-
eree may require the exceptions to be argued
before nim, and shall certify them to the
court for final determination at the request
of eitiier party. In case the trustee shall
ne|;lect to file any report or statement whi^h
it is made his duty to file or make by the act,
or by any general order in bankruptcy, with-
in five OBLYB after the same shall be due, it
shall be the duty of the referee to make an
order requiring the trustee to show cause be-
fore the judge, at a specified time in the
order, why he should not be removed from
office. The referee shall cause a copy of the
order to be served upon the trustee at least
seven days before the time fixed for the hear-
ing, and proof of the service thereof to be
delivered to the clerk. All accounts of trus-
tees shall be referred as of course to the
referee for audit, unless otherwise specially
ordered by the court.
18.
SALE OF PROPERTY.
1. All sales shall be by public auction un-
less otherwise ordered by the court.
2. Upon application to the court, and for
good cause shown, the trustee may be author-
ized to sell any specified portion of the bank-
rupt's estate at private sale; in which case he
shall keep an accurate account of each arti-
cle sold, and the price received therefor, and
to whom sold; which account he shall file at
once with the referee.
3. Upon petition by a bankrupt, creditor,
receiver, or trustee, setting forth that a part
or the whole of the bankrupt's estate is per-
ishable, the nature and location of such per-
ishable estate, and that there will be loss if
the same is not sold immediately, the court,
if satisfied of the facts stated and that the
sale is required in the interest of the estate,
may order the same to be sold, with or with-
out notice to the creditors, and the proceeds
to be deposited in court.
19.
ACCOUNTS OP MARSHAL.
The marshal shall make return, under
oath, of his actual and necessary expenses in
the service of every warrant addressed to
1101
Appendix L
him, and for custody of property, and other
services, and other actual and necessary ex-
penses paid by him with vouchers therefor
whenever practicable, and also with a state-
ment that the amounts charged by him are
just and reasonable.
20.
PAPERS FILED AFTER REFERENCE.
Proofs of claims and other papers filed
svibsequently to the reference, except such aa
call for action by the judge, may be filed
either with the referee or with the clerk.
21.
PROOF OF DEBTS.
1. Depositions to prove claims against a
bankrupt's estate shall be correctly entitled
in the court and in the cau^e. When made
to prove a debt due to a partnership, it must
appear on oath that the denonent is a mem-
ber of the partnership; woen made by an
agent, the reason the aeposition is not made
by the claimant in person must be stated;
and when made to prove a debt due to a cor-
poration, the deposition ^all be made by the
treasurer, or, if the corporation has no treas-
urer, by the officer whose duties most nearly
correspond to those of treasurer. Deposi-
tions to prove debts existing in open account
shall state when the debt Mcame or will be-
come due; and if it consists of items matur-
ing at different dates the avera:^ due date
shall be stated, in default of which it shall
not be necessary to compute interest upon it.
All such depositions shall contain an aver-
ment that no note has been received for such
account, nor any judgment rendered thereon.
Proofs of debt received by any trustee shall
be delivered to the referee to whom the cause
is referred.
2. Any creditor may file with the referee
a request that all notices to which he may
be entitled shall be addressed to him at any
place, to be designated by the postoffice box
or street number, as he may appoint; and
thereafter, and until some other designa-
tion shall be made bv such creditor, all no-
tices shall be so addressed; and in other
cases notices shall be addressed as specified
in the proof of debt.
3. Claims which have been assigned before
proof shall be supported by a deposition of
the owner at the time of the commencement
of proceedings, setting forth the true con-
sideration of the debt and that it is entirely
unsecured, or if secured, I he security, as is
required in proving secured claims. Upon
the filing of satisfactory proof of the assign-
n'.ent of a claim proved and entered on the
referee's docket, the referee shall immediate-
ly give notice by mail to the original claim-
ant of the filing of such proof of assignment;
and if no objection be entered within ten
days, or within further time allowed by the
referee, he shall make an order subrogating
the assignee to the original claimant. If
objection be made, he shall proceed to hear
and determine the matter.
4. The claims of peisons contingently lia-
1102
ble for the bankrupt mar be proved !■ tlH
name ol the creditor i^en knovn bj tka
party contingently liable. When the as—
of tne creditor is unknown, sodi daim ^mj
be proved in the name of the par^ eo
gently liable; but no dividend ahail be
upon such daim, except upon m
proof that it will diminish pro
original debt.
6. The execution of any letter of
to represent a creditor, or of aa
of claim after proof, mar be prawwd or .
knowledged before a referee, or a United
States commissioner, or a notary F^^^^^
When executed on behalf of a partaeruip or
of a corporation, the person ezeeotia^ tke
instrument shall make oath that he is a
member of the partnership, or a duly au-
thorized dficer of the corporation
behalf he acts. When the person
is not personally known to the officer
the proof or aomowledginent, his Sdenti^
shall be established by satisfaetorr prootf.
C. When the trustee or any creditor shall
desire the re-examination of any claim iled
againsft the bankrupt's estate, lie may apply
by petition to the referee to whom the
is referred for an order for such ro-e
nation, and thereupon the referee shall
an orderfixingatimefor hearing the
of which due notice shall be given
addressed to the creditor. At the time ap-
pointed the referee shall take the examiaa-
lion of the creditor, and of any witne^^es
that may be called by either party, ami if it
fthall appear from such examination that the
claim ought to be expunged or diminished,
the referee may order accordingly.
TAKING OF TESTIMONY.
The examination of witne<%see before the
referee may be conducted by the part^ in
person or by his counsel or attorney, and the
witnesses shall be subject to examiaatiaa
and cross-examination, which shall be had
in conformity with the mode now adopted in
courts iA law. A deposition taken upon an
examination before a referee shall be taken
down in writing by him, or under hie diree-
tion, in the form of narrative, unleea he de-
termines that the examination shall be by
question and answer. When completed it
shall be read over to the witness and atoned
by him in the presence iA the referee. The
referee shall note upon the deposition any
question objected to, with his decision there-
on; and the court shall have power to deal
with the coeta of incompetent, immaterial^ or
irrelevant depositions, or parts of
may be just.
ORDERS OF REFEREK.
In all orders made by a referee, it »haI1 to
recited, according as the fact mar be« that
notice was siven and the manner toer^ t : yt
that the order was made by consent ; or that
no adverse interest was represented at tto
hearing; or that the order
hearing adverse interest*.
QSNBBAL ObDBBS IN BaNKBUFTCT,
24.
TRANSMISSION OF PROVED CLAIMS
TO CLERK.
The referee shall forthwith transmit to
the clerk a list of the claims proved against
an estate, with the names and addresses of
th« proving creditcNra.
2S.
SPECIAL MEETING OF CREDITORS.
Whenever, by reason of a vacancy in the
office of trustee, or for any other cause, it
becomes necessary to call a special meeting
of the creditors in order to carry out the
purposes of the act, the court may call such
a meeting, specifying in the notice the pur-
pose for which it is called.
26.
ACCOUNTS OF REFEREE.
Every referee shall keep an accurate ao-
ccunt of his traveling and incidental expens-
es, and of those of any clerk or other officer
attending him in the performance of his du-
ties in any case which may be referred to
him; and shall make return of the same im-
der oath to the judge, with proper vouchers
when vouchers can be procured, on the first
Tuesday in eadi month.
27.
REVIEW BY JUDGE.
When a bankrupt, creditor, trustee, or
other person shall desire a review by the
judge of any order made bv the referee, he
shall file with the referee hie petition there-
for, setting out the error complained of; and
the referee shall forthwith certify to the
judge the question presented, a summary of
the evidence relating thereto, and the finding
and order of the referee thereon.
28.
REDEMPTION OF PROPERTY AND COM-
POUNDING OP CLAIMS.
Whenever it may be deemed for the benefit
of the estate of a bankrupt to redeem and
discharge any mortgage or other pledge, or
deposit or lien, upon any property, real or
personal, or to relieve said property from
any conditional contract, and to tender per-
formance of the conditions thereof, or to
compound and settle any debts or other
claims due or belonging to the estate of the
bankrupt, the trustee, or the bankrupt, or
any creditor who has proved his debt, may
file his petition therefor; and thereupon the
court shall appoint a suitable time and place
for the hearing thereof, notice of which shidl
be given as the court shall direct, so that
all creditors and other persons interested
may appear and g^ow cause, if any they
have, why an order should not be passed by
the court upon the petition authorizing such
act on the poxt of the trustee.
20.
PAYMENT OF MONEYS DEPOSITED.
No moneys deposited as required by the
act shall be drawn from the depository un-
less by check or warrant signed oy the clerk
of the court, or by a trustee, and counter-
signed by the judge of the court, or by a
referee designated for that purpose, or by
the clerk or his ajssistant under an oath made
bv the judge, steting the date, the sum, and
the account for which it is drawn; and an
entry of the substance of such check or war-
rant, with the date thereof, the sum drawn
for, and the accoimt for which it is drawn,
shall be forthwith made in a book kept for
that purpose by the trustee or his derk ; and
all checks and drafte shall be entered in the
order of time in which they are drawn, and
shall be ntunbered in the case of each estate.
A copy of this general order shall be fur-
nish^ to the depository, and also the name
of any referee or clerk authorized to coun-
tersign said checks.
30.
IMPRISONED DEBTOR.
If, at the time of preferring his petition,
the debtor shall be imprisoned, the court, up-
on application, may order him to be pro-
duced upon habeas corpus, bv the jailer or
any officer in whose custody he may be, be-
fore the referee, for the purpose of testifying
in any matter relating to his bankruptoy;
and, if committed aft^ the filing of his pe-
tition upon process in any civil action found-
ed upon a claim provable in bankruptcy, the
court may, upon like application, discharge
him from such imprisonment. If the peti-
tioner, during the pendency of the proceedings
in bankruptoy, be arrested or imprisoned
upon process m any civil action, the district
court, upon his application, may issue a writ
of hab^ corpus to bring him before the
court to ascertain whether such process has
been issued for the collection of any claim
provable in bankruptcy, and if so provable he
shall be dischargea; if not, he shall be re-
manded to the custody in which he may law-
fully be. Before granting the order for dis-
cbarge the court shall cause notice to be
served upon the creditor or his attorney, so
as to give him an opportunity of appearing
and being heard before the granting of the
order.
31.
PETITION FOR DISCHARGE.
The petition of a bankrupt for a discharge
shall state concisely, in accordance with the
provisions of the act and the orders of the
court, the proceedings in the case and the
acte of the bankrupt.
32.
OPPOSITION TO DISCHARGE OR COM-
POSITION.
A creditor opposinff the application of a
bankrupt for his discharge, or for the con-
APPBNDIX 1.
flrmation of a composition, shall enter his
appearance in opposition thereto on the day
wnen the creditors are reouired to show
cauBe, and shall file a specincation in writ-
ing of the grounds of his opposition within
ten days thereafter, unless the time shall be
enlarged by special order of the judge.
33.
ARBITRATION.
Whenever a trustee shall make application
to the court for authority to submit a con-
troversy arising in the settlement of a de-
mand against a bankrupt's estate, or for a
debt due to it, to the determination of arbi-
trators, or for authority to compound and
settle such controversy by agreement with
the other party, the application shall clearly
and distinctly set forth the subject-matter of
the controversy, and the reasons why the
trustee thinks it proper and most for the in-
terest of the estate that the controversy
should be settled by arbitration or other-
wise.
34.
COSTS IN CX)NTESTED ADJUDICA-
TIONS.
In cases of involuntary bankruptcy, when
the debtor resists an adjudication, and the
court, after hearing, adjudges the debtor a
bankrupt, the petitioning creditor shall re-
cover, and be paid out of the estate, the
same costs that are allowed to a part^ recov-
ering in a suit in eauity ; and if the petition
is dismissed, the debtor shall recover like
costs against the petitioner.
35.
COMPENSATION OF CLERKS, REFER-
EES, AND TRUSTEES.
1. The fees allowed by the act to clerks
shall be in full compensation for all services
performed by them in regard to filing peti-
tions or other papers required by the act to
be filed with them, or in certifying or deliv-
ering papers or copies of records to referees
or other officers, or in receiving or paying
out money; but shall not include copies fur-
nished to other persons, or expenses neces-
sarily incurred in publishing or mailing no-
tices or other papers.
2. The compensation of referees, pre-
scribed by. the act, shall be in full compen-
sation for all services performed by them un-
der the act, or under these general orders;
but shall not include expenses necessarily in-
curred by them in publishing or mailing no-
tices, in traveling, or in perpetuating tet-
timonv, or other expenses necessarily in-
curred in the performance of their duties
under the act, and allowed by special order
of thejudge.
3. The compensation allowed to tnisteee
br the act shall be in full compensation for
the services performed by them; but shall
not include expenses necessarily incurred in
the performance of their duties and allowed
upon the settlement of their accounts.
4. In any ease In which the fees of the
1104
clerk, referee, and trustee are mat
by the act to be paid by a debtor before
his petition to be adjudged a bankntpty
judge, at any time during the peade
the proceedings in bankruptcy, may
those fees to be paid out of the estate
may, after notice to the bankrupt, and
isfactory proof that he then has or can
tain the money with which to pay
order him to pa^ them within a
fied, and, if he Mils to do sOy naay
petition to be dismissed.
38.
APPEALS.
1. Appeals from a court of bankruptcy te
a circuit court of appeals, or to the iiipiiM
court of a territory, shall be allowed by a
judge of the court appealed from or o# the
court appealed to, and bhall be regulatedL
except as otherwise provided in the act, by
the rules governing appeals in equity ia tia
courts of the United States.
2. Appeals under the act to the
Court o< the United States from a
court of appeals, or from the snpmue
of a territory, or from the supreme eourt ef
the District of Columbia, or from any
of bankruptcy whatever, shall be takes
in thirtv days after the judgment or d
and shall be allowed by a jud^ ci the
appealed from, or by a justice of the Su-
preme Court of the United States.
3. In everv case in which either party Is
entitled by the act to take an appeal to the
Supreme Court of the United Statee» the
court from which the appeal Uee shall^ at er
before the time of entering its judgmcBt er
decree, make and file a fiirainff ci tbm faebk
and its conclusions of law tho^ou, stated
separately; and the record tranemittod ti
the Supreme Court of the United States fei
such an appeal shall consist only of the
pleadinffs, the judgment or decree, the ftud-
ing of nets, and Uie conclusions of law.
37.
GENERAL PROVISIONS.
In proceedings in equity, instituted lor the
purp<fU^f»r]^ng iilto
of the act or for enforcing the nshte and
remedies given by it, the rulee m e^^i^
practice established by the Suprene Govt ef
the United States shaU be followed ae
ly as may be. In proceedings at law.
tuted for the sam^ purpose, the practice and
procedure, in cases at law shall be followed
as nearly as may be. But the judge nay, l»
special order in anv ease, vary Um tkmm el-
lowed for return of prooeae, for eppeeraaes
and pleading, and for taking teetimouT aad
publication, and may otherwise miomj the
rules for the prroaration ai any parti cuhr
case 10 at to facilitate a speedy ~
88.
fOBlf&
The eeferal fomm
era! orders shall be ubeeiied
Budi alterations as may be
the eireumttaneee of aqy
FORMS IN" B^ISTKRUPTCY.
[N. B. — Oatbs required by the act, eacoept upon hearings in oourt, may be admiiils-
tered by referees and by officers aathorized to administer oaths in proceedings be-
fore the oourts of the united States, or under the laws of the stiute where the
are to be taken. Bankrupt act of 1898, chap. 4, S 20.]
[Fork Na L]
DiBTOB'8 Fannoir.
Te the Honorable
Judge of the District Court of the
United States for the ^District
of
The petition of , of , in the
eMmty of , and district and State of
— , [9tat0 oooupation], reepeetfuUy
wpi'eeents;
That he ha« had his prindnal place of
hosiness [or ha« resided, or hs« nad his dom-
idl] for the greater portion of six months
Dext immediately preceding the filing of this
petition at . within said judicial dis-
l^
triet; that he owes debts which he is unable
to pay in full; that he is willing to surren-
der all his property for the b^efit of his
ereditors except such as is exempt by law,
and desires to obtain the benefit of the acts
of Congress rdating to bankruptcy.
That the sdiedule hereto annexed, marked
A, and Terifled bf your petitioner's oath, con-
tains a fall and true statement of all his
4ebtSy and (so far as it is possible to ascer-
tsin) tiie namee axid places of residence of
Us ereditors, and sucn further statements
Mneeming saiid debts as are required by the
^xnvisions of said acts :
That the schedule hereto annexed, marked
B, and Terifled by your petitioner's oath, con- '
tains an aoenrate inventory of all hk pn^
erty, both real and personal, and sndh fov^
thcfr statements concerning said niopertj at
are required by the provisions of iud aets:
Wheraf on your petitkmer pnm thnA he
may be adjudged by the oourt to M a ~
rupt within the purview of said aeti.
-, Aiiormtif,
United States of Ameriea^ IHitriet ef
-, the netitioning debtor
mentioned and dMcribe^ in the ®oing
Stition, do hereby make solemn oath that
e statements contained therein are true ao-
cording to the best of my knoidedge, far
f ormau<m, and bdief .
^ jf wv^vOW^v .
Snbseribed and sworn to before
— day of , A. D. 18—.
this
lOfficiai character,]
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Affbhoix L
SCHEOULK B. (6)
BOOKS. PAPBR8, DEEDS, AND WRITINGS RELATING TO
AND ESTATE.
The following Is a tme list of all books, papers, deeds, and writlncs
trade, bosiness, dealings, estate, and effects, or any part thereof, which, at
petition, are in my possession or nnder my custody and control, or which are
sion or custody of any person in trust for me, or tor my use, beoeflt, or
of all others which liave been heretofore, at any time, in mj poasessloB*
cr control, and wliich are now held by the part ies whose nsmss are
the reason for their custody of the same.
Books.
Oath to Sohkditub B.
United States of America, District of
On thia
day of
A. D. 18 — , before me penootXLj eame
^
w
the person mentioned in and who subscribed to the foregoing schedule, and wlio^
me first duly sworn, did declare the said schedule to be a statem^it of all his
both real and personal, in aooordanoe with the aete of Congrewi relating to baakmpCcyi
12M
{O4I0M
I
Forms in Bankiiuptcy.
SuicMARY OF Debts aitd Assets.
[From the statements of the bankrupt In Schednlet A and B.]
Schedule
A* • • •
ti
• • • •
••
«•
ii
••
Schedule
£Lm • • •
Schedule
«^* • • •
Schedule A....
•«
• 4
Schedule
«A • • • •
Schedule
B....
Schedule
B....
«<
*«
««
«•
«4
•«
««
««
M
•«
M
M
M
«4
4«
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4«
•4
Schedule
B....
«<
(4
t*
44
*4
• 4
«•
44
Schedule
B....
Schedule
B....
Schedule
B....
1 (1) Taxes and debts due United States
1 (2) Taxes due States, counties, districts, and mu-
nicipalities.
1 (3) Wages
1 (4) Other debts preferred by law
2 Secured claims
8 Unsecured claims
4 Notes and bills which ought to be paid by
other parties thereto.
6 Accommodation paper
Schedule A, total
1 Real estate
2-a Cash on hand
2-b Bills, promissory notes, snd securities
2-c Stock in trade
2-d Household goods, &c.
2-e Books, prints, and pictures
2-f Horses, cows, and other animals
2-g Carriages and other vehicles
2-n Farming stock and Implements
2-1 Shipping and shares In vessels
2-k Machinery, tools, &c
2-1 Patents, copyrights, and trade-marks
2-m Other personal property
3-a Debts due on open accounts
3-b Stocks, negotiable bonds, &c
3-c Policies of insurance
3-d Unliquidated claims
8-e Deposits of money In banks and elsewhere . . . •
4 Property In reversion, remainder, trust, Ac ..
6 Property claimed to be excepted
6 Books, deeds, and papers
Schedule B, total
[FoBM No. 2.]
Pabtnbbship Petitiov.
To the Honorable
Juc^ of the District Court of the United
States for the District of :
respectfully
The petition of
represents :
That your petitioners and
have be^ partners under the firm name of
, having their principal place
of business at , in the county of ,
and district and State of
for the
greater portion of the six months next im-
mediately preceding the filing of this peti-
tion ; that the said partners owe debts which
they are unable to pay in full; that your
petitioners arc willinjj: to surrpnder r11 their
proper^ for the benefit of their creditors, ex-
cept such as is exempt by law, and desire to
obtain the benefit of the acts of Congress re-
lating to bankruptcy.
That the schedule hereto annexed, marked
A, and verified by oath, contains a full
and true statement of all the debts of said
partners, and, as far as possible, the names
and places of residence of their creditors,
and such further statements concerning said
debts as are required by the provisions of
said acts.
Tliat the schedule hereto annexed, marked
B. verified by oatSi, oontains an ac-
curate inventoiy of all the property, real and
personal, of said partners, and such further
statements concerning said property as are
lequired bv the provbions of said acts.
And said further states that
the schedule hereto annexed, marked C, veri-
fied by his oath, contains a full and true
statement of all his individual debts, and,
as far as possible, the names and places of
residence of his creditors, and such further
statements concerning said debts as are re-
auired by the provisions of said acts; and
that the schedule hereto annexed, marked D,
verified by his oath, contains an accurate in-
ventory of all his individual property, rwJ
and personal, and such further statements
concerning said property as are required by
the provisions of said acts.
And said further states that
the schedule hereto annexed, marked E, ver-
ified by his oath, contains a full and true
statement of all his individual debts, and, as
far as possible, the names and places of resi-
dence of his creditors, and such further
statements roncernin^ said debts as are re-
quired by the provisions of said acts; and
that the schedule hereto annexed, marked P,
verified by his oath, contains an accurate in-
1207
Appbhdix L
ventoTj of all his individual property, real
and personal, and such further statements
oonceming said property as are required by
the proyisions of said acts.
And said further states
that the schedule hereto annexed, marked G,
verified by his oath, contains a full and true
statement of all his individual debts, and, as
far as possible, the names and places of resi-
dence of his creditors, and such further
statements concerning said debts as are re-
Quired by the provisions of said acts; and
that the schedule hereto annexed, marked H,
verified by his oath, contains an accurate in-
ventory of all his individual property, real
and personal, and such further statements
concerning said property as are required by
the provisions of said acts.
And said further states that
the schedule hereto annexed, marked J, veri-
fied by his oath, contains a full and true
statement of all his individual debts, and,
as far as possible, the names and places of
residence of his creditors, and such further
statemeoits oonceming said debts as are re-
Quired by the provisions of said acts, and
that the schedule hereto annexed, marked K,
verified by his oath, contains an accurate in-
ventory of all his individual property, real
•ad personal, and such further statements
concerning said property as are required by
theprovisions of said acts.
Wherefore your petitioners pray that the
said firm may be aajudged by a decree of the
court to be bankrupts within the purview ot
said "
Peiiiionert.
; Attorney.
"— "— — — , the petitioning debtors
mentioned mad deeeribed in the foregoing p»>
titioa, do herel^ make solemn oath that the
stateBMBti eontmined therein are true accord-
ing to the best of their knowledge, informal
tioD, and belkC
Petitionerw,
Subeerlbed mad sworn to before me this -
day of — , A. D. 18—.
[Official ohar<ioier,]
[Schedules to be annexed corresponding
with schedules under Form No. 1.1
1208
[Form No. 3.]
Cbeditobs'
To the Honorable
the District Court of the United
the district of :
The petition of
and
of
-, of
and
That
of
-, respectfully shows :
, of , has lor
greater portion of six months next
the date of filing this pc^tion, had
cipal place of business, [or resided,
his domicil] at , in the county
and State and district aforesaid, and
debts to the amount of $1,000.
That your petitioners are creditors of
, having provable daiss
amounting in the aggregate, in exeesa of se-
curities held by than, to the sum oi
That the nature and amount <tf jtmr
tioners' dmims are as follows:
And your petitioners further
that said is
that within four months next preoediag the
date of this petition the said
committed an act of bankruptcy, la tbml hs
did heretofore, to wit» on toe day e<
Wherefore ymir petitioBsrs pray tks*
service of this petition, with a sutypoHta, mmj
be made upon , as provided in tte
acts of Congress rdating to bankruptcy, aad
that he may be adJudgM by the eourt to be
a bankrupt within the purview of said
', Atfomey.
United SUtes of Amariem, Dlstriei e<
three of the petitioners above named, do
by make solemn oath that the staismcnts
contained in the foregoing petition, sab-
scribed by them, are true.
Before me,
— 189— ,
this
day el
[OffMal
[Schedules to be annexed co:
with schedules under Form No. 1]
0
[FOBM No. 4.J
Oroeis to Show Cause upon Cbeditobs'
Petition.
Forms in Bankbuptct.
[FoBM No. 6.]
Denial op Bankbuptct.
In the District Court of the United States
for the District of .
In the matter of
In Bankruptcy.
Upon consideration of the petition of
that be declared a bankrupt,
it is ordered that the said do ap-
pear at this court, as a court of bankruptcy,
to be holden at , in the district afore-
said, on the day of , at — o'clock
in the noon, and show cause, if any
there be, why the prayer of said petition
should not be granted ; and
It is further ordered that a copy of said
petition, together with a writ of subpcena,
be sorved on said , by delivenng
the same to him personally or by leaving the
same at his last usual place of abode in said
district, at least ttve days before the day
aforesaid.
Witness the Honorable , Judge
of the said court, and the seal thereof, at
, in said district, on the day of
. A. D. 18 — .
\
seal of )
the court.)
Olerh,
[FoBM No. 5.]
SuBPCENA TO Alleged Bankrupt.
United States of America,
District of
To
•, in said district, greeting:
For certain causes offered before the Dis-
trict Court of the United States of Anoerica
within and for the district of , as
a court of bankruptcjr, we command and
strictly enjoin you, laying all other matters
aside and notwithstandinff any excuse, that
you personally appear before our said Dis-
trict Court to be nolden at , in said dis-
trict, on the — —day of , A. D. 189 — ,
to answer to a petition filed by
in our said court, praying that you
may be adjudged a bankrupt ; and to do fur-
ther and receive that which our said District
Court shall consider in this behalf. And
this you are in no wise to omit, under the
pains and penalties of what may befall
thereon.
Witness the Honorable , judge of
said court, and the seal thereof, at ,
this day of , A. D. 18&— .
( Seel of )
( the court. )
Clerk.
In the District Court of the United Stotes
for the District of .
In Bankruptcy.
At , in said district, on the
— , A. D. 18—.
-day of
And now the said appears, and
denies that he has committed the act of bank-
ruptcy set forth in said petition, or that he
is insolvent, and avers that he should not be
declared bankrupt for any cause in said pe-
tition allied; and this he prays may be m-
2uired of by the court [or, he demands that
he same may be inquired of by a jury].
Subecribed and sworn- to before me this
■ day of 9 A. D. 18—.
[Official ohatracter.}
[Form No. 7.]
Ordeb fob Jury Trull.
In the District Court of the United States
for the District of .
V Id Bankruptcy.
At
18—.
in said district, on the —day of
Upon the demand in writing filed by
, alleged to be a bankrupt, that the fact
of the commission by him of an act of bank-
ruptcy, and the fact of his insolvency may be
inquired of by a jury, it is ordered, that said
issue be submitted to a jury.
i
Seal of )
the court. }
CJrrl:.
1209
Afpbndix I.
[FcAM No. 8.]
Special Wabbaiyt to Mabshai^
In the District Ck)urt of the United States
for the District of
In the matter of
In Bankruptcy.
To the marshal of said district or to either
of bis deputies, greeting:
Whereas a petition for adjudication of
bankruptcy was, on the — day of , A. D.
18 — , filed against , of the county
of and State of , in said district,
and said petition is still pending; and where-
as it sausfactorily appears that said
has committed an act of bankruptcy [or has
neglected, or is neglecting, or is about to so
neglect his proper^ that it has thereby de-
teriorated or is thereby deteriorating or is
about thereby to deteriorate in yalue], you
are ther^ore authorized and required to
seize and take possession of all tne estate,
real and personal, of said , and of
all his deeds, books of account, and papers,
and to hold and keep the same safely subject
to the further order of the court.
Witness the Honorable , judge of
the said court, and the seal thereof, at ,
in said district, on the of , A. D.
189—.
( Seal of )
\the court.)
Clerk.
BETUBN BT MARSHAL THEREON.
By virtue of the within warrant, I have
taken possession of the estate of the within-
named , and of all his deeds, books
of account, and papers which have come to
my knowledge.
Marshal [or Deputy Marshal],
Fees and ewpenses.
1. Service of warrant
2. Necessary travel, at the rate of six
cents a mile each way
8. Actual expenses in custody of prop-
erty and other services as fol-
lows
[Here state the particulars.]
1210
Marshal [or Deputy MarAat],
., A. D. 18—.
District of —
Personally appeared heiem mm
, and noade oath that the
penses returned by him have been
incurred and paid by him, mad are
reasonable.
Referee m» Bankrmptei^
IFOBM No. 9.]
Bond or Petitionino
Know all men by these presents : Tkat w%
, ae principal, and , m
sureties, are held and firmly bound uato
in the full and just sum of
dollars, to be paid to the said
ecutors, administrators, or aaeigna, to whiA
payment, well and truly to be made, we bind
ourselves, our heirs, executors, and admis-
istrators, jointly and severally, by the^e
presents.
Signed and sealed this day of A.
D. 189—.
The condition of this obligation is sntk
that whereas a petition in bankrupt^ has
been filed in the district court of the United
States for the district of against
the said , and the said has applied
to that court for a warrant to the mar^al
of said district directing him to seixe and
hold the property of said , subieel
to the further orders of said district eovrt.
Now, therefore, if such a warrant shall Ittt
for the seizure of said proper^, and if the
said shall indemnify the said
— — for such damages as he shall sustain in
the event such seizure shall prove to have
been wrongfully obtained, then the above ob-
ligation to be void; otherwise to remain in
full force and virtue.
Sealed and delivered in presence of —
fSEAL]
[SEAU]
Approved this
189—.
day of
District Judge,
[FORM No. 10.]
Bond to Marshal.
Know all men by these presents: lint «^
as principal, and
sureties, are held and firmly bound nato — *-
, marshal of the United States for the
district of , in the fuU and jnst
sum of
— dollars, to be paid to tbo said
, his executors, aoministrators. or
assigns, to which payment, wril and truly le
be made, we bind ourselves, our heira,
tors, and administrators, jointly and
ly, by these presents.
Signed and sealed this day of
A. D. 189—.
Forms in Bankruptcy.
The condition of this obligation is such
that whereas a petition in banlcniptcv has
been filed in the district court of the United
States for the district of , against
the said , and t^e said oourt has
issued a warrant to the marshal of the
United States for said district, directing;
him to seize and hold property of ^e said
, subject to the further order of the
court, and the said property has been seized
by said marshal as directed, and the said dis-
trict court upon a petition of said
has ordered the said property to be released
to him.
Now, therefore, if the said properly shall
be released accordingly to the said ,
and the said , being adjudged a
bankrupt, shall turn over said property or
pay the value thereof in money to the trustee,
then the above obligation to be void; other-
wise to remain in full force and virtue.
Sealed and delivered in the presence of —
Approved this
189—.
day of
rSEAL.1
[BEAL.]
[SEAL.]
— . A. D.
Diatrioi Judge.
[Form No. 11.]
aojudioation that debtor is not bank-
RUPT.
In the District Court of the United States
for the District of .
Id the matter of
In Bankmptcy.
At
in said district, on —day of
•, A. D. 18 — , before the Honorable
•, judge of the district of
This cause came on to be heard at
in said court, upon the petition of
— that
be adjudged a bankrupt within the true
intent and meaning of the acts of Ck)ngress
relating to bankruptcy, and [Here state the
proceedings, whether there wns no opposi-
iian, or, if opposed, state what proceedings
were had].
And thereupon, and upon consideration of
the proofs in said cause [and the arguments
of counsel thereon, if any], it was found that
the facts set forth in said petition were not
proved; and it is therefore adjudged that
said was not a bankrupt, and tnat said
petition be dismissed, with costs.
Witness the Honorable , judge of
said court, and the seal thereof, at , in
said district, on the day of , A. D. 18 — ,
\
Seal of 1
the court. >
Clerk.
[Form No. 12.]
Adjudication of Bankruptot.
In the District Court of the United States
for the District of .
Id the matter of
y In Bankraptej.
Bankrupt .
of
At
in said district, on the
-day
A. D. 18 — , before the Honorable
judge of said court in bank-
ruptcy, the petition of that
be adjudged a bankrupt, within the
true intent and meaning of the acts of Con-
gress relating to bankruptcy, having been
heard and duly considered, the said
is hereby declared and adjudged bank-
rupt accordingly.
Witness the Honorable , judge of
said court, and the seal thereof, at , in
said district on the day of , A. D.
18—.
{
Seal of 1
the ooorti
(nerk.
[Form No. 13.]
Appointioent, Oath, and Report of Ap-
praisers.
In the District Court of the United States
for the District of ,
In the matter of
Bankrupt .
In Bankruptcy.
It is ordered that
— , of , and -
,of
of -
— , three
disinterested persons, be, and the^ are here-
by, appointed appraisers to appraise the real
and personal property belonging to the estate
of the said bankrupt set out in the schedules
now on file in this court, and report their
appraisal to the court, said appraisal to be
made as soon as may be, and the appraiaers
to be dul^ sworn.
Witness my hand thia day of ^
A. D. 18—.
Referee in Bankruptcy.
Dbtrict of
SS:
Personally appeared the within named
and severally made oath that they
will fully and fairly appraise the aforesaid
real and personal proper^ according to their
best skill and judigment.
Subscribed and sworn to before me this
— day of , A. D. 189 — .
[Official character.']
1211
.U'PK^DIZ 1.
We, the undersigned, having been notified
that we were appointed to estimate and ap-
praise the real and personal property afore-
said, haye attended to the duties assigned
us, and after a strict examination and care-
ful inquiry, we do estimate and appraise the
same as follows:
Dolls.
Cts.
In witness whereof we hereunto set our
hands, at
18—.
this day of
A. D.
[FoBif No. 14.]
Obdeb of Refebenob.
In the District Court of the United 8lat«
for the District of ,
In the matter of
Bankrupt .
In Bankmptcj.
'.Ot
in the county
Whereas , v* . — .««. -^
of and district aforesaid, on the
day of , A. D. 18 — , was duly adjudged
a bankrupt upon a petition filed in this court
by [or, affainst] him on the day of ,
A. D. 189 — , according to the provisions of
t^e aeta of Congress relating to bankruptcy.
It is thereupon ordered, Uiat said matter
be referred to , one of the referees
in bankruptcy of this oourt» to take such
further prpceedinss therein as are required
by said acts; and that the said
shall attend before said referee on the — -
day of at , and thenceforth shall
submit to such orders as oMiy be made by
said referee or by this court relating to said
^bankruptcy.
Witness the Honorable , judge
of the said court, and the seal thereof, at
, in said district, on the day of
. A. D. 18—.
[Form Xa 15.]
Obdeb of Refebezcce m Judob's
In the District Court of the United
for the District of .
In the matter of
IB
Whereas on the
a petition was filed to have
in the county of
day of , A. D.
and district
Seal of )
the court. I
Clerk.
aforesaid, adjudged a bankrupt
the provisions of the acts ol Congress
ing to bankruptcy; and whereas the jt
of said court was absent from
at the time of filing said petition [or, im eeas
of involuniarjf bankruptcy, on the mtat day
after the last day on which pleadings wgkft
have been filed, and none have been fUed by
the bankrupt or any of his ereditors], it u
thereupon ordered that the said matter bt
referred to , one of tbe referees in
bankruptcy of this court, to eonaidsr said
petition and take such proceedings therciB
as are required by said acts; ana that the
said shall attend before said ref-
eree on the day of , A. D. 18>— , at
Witness my hand and the seal of the
court, at , in said district, on tlie — day
of , A. D. 189—.
( Seal of 1
I the eoorti
[FoBM Na 16.]
Bdsbb's Oath of Officb.
do solemnly
I, , do solemnly swear thmt I vil
admii^ter Justice without respect to
sons, and do equal right to the poor mai le
the rich, and dat I wUl faithfully and im-
putially discharge and perform sil the du-
ties incumbent on me as referee in bank-
ruptcy, according to the beat oi mj abflitiss
and understanding, agreeably to the Ccwsti-
tuUon and laws of Uie United SUtes. Se
help me Qod.
Subscribed and sworn to before se tUs
— day of -^-^ A- D. 18—.
Di9trici /vd^
1212
[F6BH No. 17.]
Bonn or Bosub.
Know all men by theee preMota: TWt «•
of as priaolpal. aai
of and si
as sureties are held and ftn^y
bound to the United States of Amriea in
the sum of dollars, lawful money ol the
FORMB IN BANKBUPTCT.
XJTiited States, to be i>a!d to the said United
States, for the payment of which, well and
tmlj to be made, we bind ourselves, our
Heirs, executors, and administrators, jointly
^nd severally, l^ these presents.
Signed and sealed this — day of , A.
D. 18»— .
The condition of this obligation is such
that whereas the said , has been on
the — day of , A. D. 18 — , appointed by
the Honorable , judge of the dis-
trict court of the United States for the
district of . a referee in bankruptcy, in
and for the county of
in said district.
under the acts of Congress relating to bank-
ruptcy.
Now, therefore, if the said shall
well and faithfully discharge and perform
all the duties pertaining to the said office of
referee in bankruptcy, then this obligation
to be void ; otherwise to remain in full force
and virtue.
Si|^ed and sealed
m the presence of
f [L. 8.]
, [L. 8.]
, [L. 8.]
Approved this — day of A. D. 189 —
Diatriot Judge,
[Form No. 18.]
NonoB or Fib8t Mbbtino of Cuditdbs.
In the District Court of the United States
for the — District of , In Bankruptcy.
In the matter of
Bankrupt .
• In Bankruptcj.
of
in the
To the creditors of
county of , and district aforesaid, a
bankrupt.
Notice is hereby given that on the
day of ,A.D.18--*,thesaid
was
duiy adjudicated bankrupt; and that the
first meeting of his creditors will be held
at in — , on the — day of , A. D.
18 — , at o'clock in the noon, at
which time the said creditors may attend,
prove their claims, appoint a trustee, ex-
amine the bankrupt, and transact such other
business as may properly come before said
meeting.
Referee in Bankruptcy,
[Form No. 19.]
List of Debt8 Proved at First MBEmro.
In the District Court of the United States
for the District of ,
In the matter of
Bankrupt
In Bankruptcy.
At , in said district, on the — day of
•, A. D. 18 — , before , referee
# — - — —
in bankruptcy.
The following is a list of creditors who
have this day proved their debts;
Names of
creditors.
Residence.
Debts
proved.
Dolls.
Cts.
Referee in Bankruptcy.
[Form No. 20.]
General Letter of Attornet nr Fact
when crednor 18 not represented bt
Attornet at Law.
In the District Court of the United States
for the District of
In the matter of
Bankrupt .
In Bsnkroptcf.
To
I,
and State of
of , in the county of
-, do hereby authorize
vou, or any one of you, to attend the meet-
ing or meetings of creditors of the bankrupt
aforesaid at a court of bankruptcy, where-
ever advertised or directed to be holden, on
the dav and at the hour appointed and no-
tified bv said court in saia matter, or at
such other place and time as may be ap-
pointed by the court for holding such meet-
1213
Appendix L
ing or meetings, or .at which such meeting
or meetings, or any adjournment or adjourn-
ments thereof may be held, and then and there
from time to time, and as often as there may
be occasion, for me and in my name to vote
for or against any proposal or resolution
that may be then submitted under the acts
of Congress relating to bankruptcy; and in
the choice of trustee or trustees of the es-
tate of the said bankrupt, and for me to
assent to such appointment of trustee; and
with like powers to attend and Tote at any
other meeting or meetings of creditors, or
sitting or sittings of the court, which may be
held therein for any of the purposes afore-
said; also to accept any composition pro-
posed by said bankrupt in satisfaction of his
debts, and to receive payment of dividends
and of money due me under any composition,
and for any other purpose in my interest
whatsoever, with full power of substitution.
In witness Whereof I have hereunto signed
my name and affixed my seal the — day of
, A. D. 189—.
[L. 8.]
Signed, sealed, and delivered in presence
of —
Admowledged before me this — day of
— , A. D. 189—.
[OfficM character,]
[Form No. 21.]
Special Letter or Attornet of Fact.
In the matter of
Bankrupt .
In Bankniptcy.
To
I her^y authorize you, or any one of you,
to attend the meeting of creditors in this
matter, advertised or directed to be holden
at , on the — day of , before ,
or any adjournment thereof, and then and
there for and in name to vote
for or against any proposal or resolution
that may be lawfully made or passed at
such meetine or adjourned meeting, and in
the choice oi trustee or trustees of the
tate of the said bankrupt.
^•.1
In witness whereof I have hereunto signed
my name and affixed my seal the — day of
, A. D. 189—.
Signed, sealed, and delivered in presence
of —
Acknowledged before me this — day of
— , A. D. 18 — .
1214
[Official character.]
[Form No. ££.]
APP0IITTME2TT or TRUBTKK BT
In the District Court of the United
for the District of
In the matter of
Bankrupt
la Baakrvptey.
At
in said district, on the — day il
-, A. D. 18 — , before
bankruptcy.
This being the day appointed ^7 the
for the first meeting of creditors in the
bankruptcy, and of which due notice
been given in the [here insert the
the nexospaptra in which notice
liehed] , we, whose names are hereunder writ-
ten, beinff the majority in number and in
amount of claims of the creditors of tlw w4
bankrupt, whose claims have been alloved,
and who are present at this meetins, do bcr»-
by appoint , of , in Uie commty
of and State of , to be the trastei
— of the said bankrupt's estate and cffecta
Signatures
of creditors.
BesldencM of
the
Ordered that the above appointmeBt «<
trustee — be, and the same m hereby a^
proved.
Referee im Bmmkrmpiep.
[F6RH Na 23.]
ApponiTMENT or Trustix bt
In the District Court of the United
for the District of — *
la Baakmptci
At , in said district, oa the — dav
of , A. D. 18 — , before » rJ-
eree in bankruptcy.
This being the day appointed by the eemxt
for the first meeting of creditors nader the
Forms in Bankruptcy.
•aid bankruptcy, and of wliich due notice
bas been giTen m the [here insert the names
of the newspapers in which notice was pulh
Ushed} 1, the undersigned referee of the said
court in bankruptcy, sat at the time and
place above mentioned, pursuant to such no-
tice, to take the proof of debts and for the
choice of trustee under the said bankrupt-
cy; and I do hereby certify that the credit-
ors whose claims had been allowed and were
present, or duly represented, failed to make
choice of a trustee of said bankrupt's estate,
and therefore I do hereby appoint ,
of , in the county of and State of
^ as trustee of the same.
Referee in Bankruptcy.
[FoBM No. 24.]
NoncE TO Trustee of His Appointment.
In the District Court of the United States
for the District of .
In the matter of
} In Btnkmptcy.
Bankrupt
To
of , in the county of
and district aforesaid
I hereby notify you that vou were duly ap-
pointed trustee [or one of the trustees] of
the estate of the above-named bankrupt at
the first meeting of the creditors, on the —
day of , A. fi. 18—, and 1 have approved
said appointment. The penal sum of your
bond aa such trustee has oeen fixed at
dollars. You are required to notify me
forthwith of your acceptance or rejection of
the trust.
Dated at the day of , A. D.
Referee in Bankruptcy,
[Form No. 25.]
Bond of Trustee.
Know all men by these presents: That
we, , of , as principal, and
, of , and , of ,
as sureties, are held and firmly bound unto
the United States of America m the sum of
dollars, in lawful money of the United
States, to be paid to the said United States,
for which payment, well and truly to be
made^ we bind ourselves and our heirs, exec-
utors, and administrators, jointly and serer-
ally, by these presents.
Signed and sealed this — day of , A.
D. 189—.
The condition of this obligation is such,
that whereas the above-named
was, on the — day of , A. D. 189 — , ap-
pointed trustee in the case pending in bank-
ruptcy in said court, wherein Is
the bankrupt, and he, the said ,
has accepted said trust with all the duties
and obligations pertaining thereunto:
Now, therefore, if the said ,
trustee as aforesaid, shall obey such orders
as said court may make in relation to said
trust, and shall faithfully and truly account
for all the moneys, assets, and effects of the
estate of said bankrupt which shall come in-
to his hands and possession, and shall in
all respects faithfully perform all his official
duties as said trustee, then this obligation
to be void: otJicrwise, to remain in full
force and virtue.
Signed and sealed in the
presence of —
— , [seal.]
—
— , [seal.]
— , [seal.]
[Form No. 26.]
Ordeb Appbovino Trustee's Bond.
At a court of bankruptcy, held in and for
the District of , at , , this —
day of , 189—.
Before
-, referee in bankruptcy.
in the District Court of the United States
for the District of
In Bankniptcj.
It appearing to the Court , of
and in said district, has been duly ap-
pointed trustee of the estate of the above-
named bankrupt, and has given a bond with
sureties for the faithful performance of his
official duties, in the amount fixed by the
creditors [or by order of the court], to wit,
in the sum of dollars, it is ordered that
the said bond be, and the same is hereby, ap-
proved.
»
Referee in Bankruptcy.
1215
Appendix I.
[Form No. 27.]
Obdeb that no Tbusteb be Affuihtbd.
In the District Court of the United States
for the District of
In the matter of
' In Bankmptcy.
Bankrupt .
It appearing that the schedule of the bank-
rupt discloses no assets, and that no creditor
has appeared at the first meeting, and that
the appointment of a trustee of the bank-
rupt's estate is not now desirable, it is here-
by ordered that, until further order of the
court, no trustee be appointed and no other
meeting of the creditors be called.
Referee in Bankruptcy.
[FOBM No. 28.]
Obdeb fob Examination or Bankbupt.
In the District Court of the United States
for the District of .
In the matter of
Bankrupt .
In Bankruptcy.
At , on the — day of
Upon the application of
-, A. D. 1^-*
, trus-
tee of said bankrupt [or creditor of said
bankrupt], it is ordered that said bankrupt
attend before , one of the referees
in bankruptcy of this court, at on the
day of , at — o'clock in the
noon, to submit to examination under the
acts of Congress relating to bankruptcy, and
that a copy of this order be deliver^ to him»
the said Dankrupt, forthwith.
Referee in Banhruptey.
[FoBM No. 29.]
Examination of Bankbupt ob Witness.
In the District Court of the United States
for the District of '-,
In the matter of
Bankrupt .
In Bankmptcy.
-, A. D. 18 — , before
of-
the referees in bankrupt^ oi said
, of , m us temmtf ei
and State of , being duly swm «
amined at the time and place above
tioned, upon his oath says. [Emre
euhetanoe cf e»im%naHom of fmt§S\
', Referee in Benkrmfte^
[FoBM No. so.]
Summons to WiTirx8&
To :
Whereas
of , and State of
adjudged bankrupt, and the jproeeedii
bankruptcy is pending in the District
of the united States for the
These are to require yon, to
summons is directed, personal^
appear before , one of 1
in bankruptcy of the said court, at
on the day of , at — o'dodc
the noon, then and there to be
in relation to said bankruptcy.
Witness the Honorable , Jodgsof
court, and the seal thereof at ^
day of , A. D. 189 — .
Bbtubn or Summons io W
In the District Court of the United
for the District of
la BaaknipCcy.
On this day of , A. D, 18 — , be-
fore me came , of , in the
county of and State of , and
oath, and says that he did, on — , the
day of , A. D. 189 — , personally
, of , in the ooonty of
and State of , with a tme eopy of the
summons hereto annexed, by deli^isg the
same to him; and he further makes oath,
and says that he is not intsrsstsd in ths pro>
ceeding in bankruptcy named in said son-
mens.
Subscribed and sworn to before
— day of , A. D. 18 — .
this
At , in said district, on the
1216
day
Forms in Bankruftot.
tFoBM No. 81.]
Fftoor or Uksboubed Ddt.
In the District Court of the United States
for the District of
In the matter of
Bankrupt .
In Bankmptcj.
At , in said district of , on the
— day of , A. D. 189 — , came
of , in the county of , in said
district of , and made oath, and says
that — — , the person by {or against]
whom a petition for adjudication of bank-
ruptcy has been filed, was at and before the
filing of said petition, and still is, justly and
truly indebted to said deponent in the sum
of dollars; that the consideration of
said debt is as follows:
•that no part of said debt has been paid [ex-
cept
];
that there are no set-offs or counterclaims
to the same [except — — — ^— ^— —
];
and that deponent has not, nor has any per-
son by his order, or to his knowledge or be-
lief, for his use, had or received any manner
of security for said debt whatever.
Creditor.
Subscribed and sworn to before me this
— day of 1 A. D. 18^.
[Offioial oharaeter,}
[Fcmu No. 32.]
Pboof or Secured Ddt.
In the District Court of the United States
for the District of
Id the matter of
. Id Bankmptcy.
Bankrupt .
At , in said district of — , on the
day of , A. D. 189 — , came
, of , in tiie county of , in said
distiiot of p and made oath, and says
that , the person by [or u;ainst]
whom a petition for adjudication oibank-
ruptcy has been filed, was at and before ths
filing of said petition, and still is, justly and
truly indebted to said deponent, in the num
of dollars; that the condderation of
said debt is as follows ;
that no part of said debt has been paid [ex-
cept 1 ; that there are no set-
oiis or oounterplafiaas to the same [except
] ; and that the only securi-
ties held b^ this deponent for said debt are
the following:
Creditor,
Subscribed and sworn to before me this
— day of A, D. —
lOfficial oharaoter.J
IFOBM No. 33.]
Proof of Dert Dub Corpobatxov.
In the District Court of the United States
for the District of ,
Id the matter of
Bankrupt
In Bsakmptcy.
At
in said district of
day of , A. D. 189 — , came
of , in the coun^ of
on the
and State ol
that he is —
and made oath and says
of the , a corporation in-
corporated by and under the laws of the
State of , and carrying on business at
, in the county of — = — and State of
, and that he is duly authorized to make
this proof, and says that the said
the person by [or asainst] whom a petition
for adjudication ot bankruptcy has been
filed, was at and before the filing oi the said
Setition, and still is justly and truly in-
ebted to said corporation in the sum of
dollars; that the consideration of said
debt is as follows:
that no part of said debt has been paid [ex-
cept ] ; that
there are no set-offs or counterclaims to the
same [except ] ;
and that said corporation has not, nor has
any person by its order, or to the knowledge
or belief of said deponent, for its use, had or
received any manner of security for said debt
whatever.
of said Corporation,
Subscribed and sworn to before me this
— day of , A. D. 18—.
77
[Offioial eharacter.^
1217
Appendix 1.
tFoRM No. 34.]
Pboof of Debt bt Pabtnebship.
In the District Court of the United St&tee
for the District of .
In the matter of
Bimkrupt
In Bankmptcy.
At
-day
of
— , in said district of — , on the
of , A. D. 189 — , eame — ^
, in the county of . in said
district of — — , and made oath and says
that he is one of the firm of , con-
fisting of himself and , of in
the county of and State of ; that
the said , the person by [or
against] whom a petition for adjudicauon of
bankruptcy has been filed, was at and before
the filine of said petition, and still is, justly
and ixmj indebted to this deponent's said
firm in the sum of — —dollars ; that the con-
sideration of said debt is as follows:
that no part of said debt has been paid [ex-
cept ^ ]; that
there are no set-offs or counterclaims to the
same [except ] ;
and this deponent has not, nor haa his said
firm, nor has afiy person by their order, or
to this deponent's knowledge or belief, for
tlieir use, had or received any manner of se-
curity for said debt whatever.
Creditor,
Subscribed and sworn to before me this
— di^ of , A. D. 18 —
[Offioial eharaeter.J
[FoBM No. 35.]
Pboot (nr Debt bt Agent ob Attobnet.
In the District Court of the United States
for the District of .
In the matter of
Bankrupt
In Bankruptcy.
judication of bankruptcy has
at and before the filing of
still is, justly and truly
, in the sum of
to tht said
doaars; thai
the consideration of said debt is as foOowi :
that no part of said dAt has
cept
paid[
— }i
that this deponoit has not»
son by his order, or to this deponeot^
edge or belief, for his use had or
manner of security for said ddit
And this depcmoit further aajs, thai this
osition oannot be made by tlks
person because
and that he is duly authorized by his
pal to make this affidavit, and that it it
within his knoi^edge that the aforesaid debt
was incurred as and for the consideratioa
above stated, and that sudi debt, to the hert
of his knowledge and bdief , still reamiam «»-
paid and unsatisfied.
Subscribed and sworn to before so this
day of , A. D. 18—.
lOffieial
]
{FoBM Na 36.]
Proof of Sbcubed Debt bt A<
In the District Court of the United
for the District of -^^
In
— f in said district of
day of , A. D. 18»— ,
At in said district of -^-on the
day of , A. D. 189 — , came , of
, in the county of , and State of
, attorney [or authorized agent] of ,
in the county of . and State of , and
made oath and says that — , the per-
son by [or against] whom a petition for ad- '
1218
, and State of
authorised acent] of —
>, and State of -
-, in the oooatj el
, aUoracy [er,
— , in the eouty e<
— , and made oath,
. theperwHiky
and says that
[or against] whom a petition for adjndiea-
tion of bankruptcy has been filed, was. at
and before the nling of said petitioa,
still is, justly and tnily indebted to the
in the sum of dollart;
that the oonsideration oi said debt is as fol-
lows: — ^^— ^— ^^— ^— — — — —
that no part of said debt has been paid [«-
cept ] ; that there
are no sei-offs or counterclaims to the saae
[except -^— — — ^— ^— ^— ^— — ^
and that the only securities held by
for said debt are the fc^lowing
]!
Forms m Bahkbitptct.
and this deponent further says that this
deposition cannot be made by the claimant
in person because
itnd that he is duly authorized by his i»rin*
cipal to make this deposition, and that it is
within his knowledge that the aforesaid debt
was incurred as and for the consideration
above stated.
Subscribed and sworn to before me this
day of , A. D. 18—.
[Official oharaoter,}
[Form No. 37.]
Afftdavit of Lost Bill, or Note.
In the District Court of the United States
for the District of ,
In the matter of
Bankrupt
> In Bankruptcy.
On this
day of
came
of
of
and State of
., A. D. 18^, at
— , in the county
and makes oath
and says that the bill of exchange [or note],
the particulars whereof are imderwrittcn,
has been lost under the following circum*
stances, to wit, -
and that he, this deponent, has not been able
to find the same; and this deponent further
says that he has not, nor has the said
, or any person or persons to their use,
to this deponent's knowledge or belief, ne-
gotiated the said bill [or note] nor in any
manner parted with or assigned the legal or
beneficial interest therein, or an^ part there-
of; and that he, this deponent, is the person
now legally and beneficially interested in
the same.
BUI or note above referred to.
Date.
Drawer or
maker.
Acceptor.
Snm.
Subscribed and sworn to before me this
— day of , A. D. 18—.
[Offioial charaeterJ]
[Form No. 88.]
Order Reducing Clahc
In the District Court of the United States
for the District of .
In the matter of
Bankrupt .
In Bankruptcy.
At , in said district, on the
of , A. D. 18—.
day
Upon the eridence submitted to this court
upon the claim of against said estate
[and, if the foot he so, upon hearing counsel
thereon], it is ordered, that the amount of
said claim be reduced from the sum of — '-,
as set forth in the affidavit in proof of claim
filed hf said creditor in saia case, to the
sum of , and that the latter-named sum
be entered upon the books of the trustee as
the true sum upon which a dividend shall
be computed [if toith interest, with interest
thereon from the day of , A. D.
18—].
»
Referee in Bankruptop,
[Form No. 39.]
Order Expuitgino Claim.
In the District Court of the United States
for the District of .
In the matter of
Bankrupt .
In Baakmptcy.
At
of
in said district, on the
A. D. 18—.
day
Upon the evidence submitted to the court
upon the claim of against said estate
[and, if the fact he so, upon hearing counsel
thereon], it is ordered, that said claim be
disallowed and expunged from the list of
claims upon the trustee's record in said case.
Referee in Batihruptcy.
1210
Apbbndiz L
Lot or Claims
[FoBM No. 40.]
AHD DlVlDKHDB TO BB RKCOEDED BT
TO Tbustkb.
4B]> BT
la tU District Court of the United States for the
IHrtriciof
In the matter of
In Hawli I uyVo^m
Banbrupi .
At
-, in said distrlot^ on the
dajof
-^ A. D. IS— b
A U§i of 4&bU proved amd oloimed under the ^nkrupteif of
dend at the rate of —
hankruptoy.
per eemt thAe dap declared thereoa hp
No.
Creditors.
[To be placed alphabetlcallj, and the
names of all the parties to the proof
to be carefully set forth.]
8ui proved.
DoUazs.
ISM
tttfpfpp itt
FOBMB DT BaNXBUPTCT.
[Fqbm 19a 41.]
KonOB OW DiVlDERU.
In the District Court of the United JStfttee
for the District of
In the matter of
Bankrupt .
In Bankmptej.
At , on the
day of — , A. D.
To
Creditor of , bankrupt:
I hereby inform you that you may, on ap-
plication at my office, , on the day
of , or on any day thereEifter, between
the hours of —
receive a warrant for the
dividend due to you out of the above
estata If you cannot personally attend,
the warrant will be delivered to your order
on your filling up and signing the subjoined
lettisr.
s Trustee.
Cbedhob'b Iottkb to Tbusteb.
To
Trustee in bankrupU^ of the estate of
, bankrupt:
Please deliver to the warrant
for dividend payable ou( of the said estate
to BM.
— — , Creditor.
[FoBif No. 42.]
PruTioR Ain> OsDEB FOB Salb bt Auotion
ofRbal Estate.
In the District Court of the United States
for the District of -^— .
In the matter of
Bankrupt .
In Binkmiytej.
Respectfully represents , trustee of
the estate of said bankrupt, that it would be
for the benefit of said estate that a certain
portion of the real estate of said bankrupt,
to wit: [Here deaoribe it and its estimated
vaUie] should be sold by auction, in lots or
parcels, and upon tarms and conditions,
IS follows:
Wherefore he prays that he may be author-
ized to make sale by auction of said real es-
tate as aforesaid.
Dated this day of , A. D. 18—.
Trustee.
The foregoing petition having been duly
filed, and havinji; come on for a hearing be*
fore«me, of which hearing ten days' notice
was given by mail to creditors of said bank-
rupt, now, after due hearing, no adverse in-
terest being represented thereat [or after
hearing in favor of said petition
and — — in opposition thereto], it is
ordered that the said trustee be authorized
to sell the portion of the bankrupt's real es-
tate specified in the foregoing petition, l^
auction, keeping an accurate account of each
lot or parcel sold and the price received
therefor and to wh<Mn sold; which said ac-
count he shall file at once with the referee.
Witness my hand this day of ,
A. D. 189—.
Referee in Bankruptcy.
[FoBM No. 43.]
PSTmOir AND OSDKB FOB REDEMPTION
Pbopebtt nK>H Ldbn.
OF
In the District Court of the United States
for the District of ^— .
In the matter of
Bankrupt .
In Baakmptcj.
Respectfully represents , trustee
of the estate of said bankrupt, that a certain
portion of said bankrupt's estate, to wit:
{here describe the estate or property and its
estimated value] is subject to a mortgage
[describe the mortgage], or to a conditional
contract [describing i<], or to a lien [describe
the origin and nature of the lien], [or if the
property be personal property, has been
?iledged or deposited and is subject to a lien]
or [describe the nature of the {ten], and
that it would be for the benefit of the estate
that said property should be redeemed and
discharged from the lien thereon. Where-
fore he prays that he may be empowered to
pay out of the assets of said estate in his
hands the sum of , being the amount of
said lien, in order to redeem said property
therefrom.
Dated this day of , A. D." 18 — .
Trustee.
The foregoing petition having been duly
filed and having come on for a hearing be-
fore me, of which hearing ten days' notice
was given by mail to creditors of said bank-
rupt, now, after due hearing, no adverse in-
terest being represented thereat [or after
hearing in favor of said petition
and in opposition thereto], it is
ordered that the said trustee be authorized
to pay out of the assets of the bankrupt's
1221
Appendix 1.
estate specified in the foregoing petition the
sum of , being the amount of the lien,
in order to redeem the i>roperty therefrop.
Witness my hand this day of ^
A.D. 18»— b
Referee in Banhrupioy.
[FoRU No. 44.]
Petition and Oboeb fob Sale Subject to
Lien.
In the District Court of the United SUtes
for the District of .
In the matter of
Banhrupt .
In Bankruptcy.
Respectfully represents , trustee
of the estate of said bankrupt, that a certain
portion of said bankrupt's estate, to wit:
[here describe the estate or property and its
estimated value] is subject to a mortgage
{describe mortgage], or to a conditional con-
tract [deaoribe it], or to a lien [describe the
origin and nature of the lien], or [if the
property be personal property] has been
pledged or deposited and is subject to a lien
for [describe the nature of the Uen], and
that it would be for the benefit of the said
estate that said property should be sold,
subject to said mofctgase, lietn, or other en-
cimibrance. Wherefore ne prays that he may
be authorized to make sale of said property,
subject to the encumbrance thereon.
Dated this day of , A. D. 189—.
Trustee,
The foregoing petkion having been duly
filed and having; come on for a hearing be-
fore me, of which hearin|^ ten days' notice
was giyen by mail to creditors of said bank-
rupt, now, after due hearing, no adverse in-
terest being represented thereat [or after
hearing in favor ci said petition
and in opposition thereto], it is
ordered that the said trustee be authorized
to sell the portion of the bankrupt's estate
specified in the foregoing petition, by auction
[or at private sale], keeping an accurate ac-
count of tl^ property sold and the price re-
ceived therefor and to whom sold; which
said account he shall file at once with the
referee.
Witness my hand this day of ,
A. D. 189—.
1S22
Referee in Banhruptoy.
[FoBM No. 45.]
Petition and Qbdeb Tom Pbivai
In the Distnct Court of the Untied
for the District of
In the matter of
Bankrupt
y IB
d^T
Respectfully represents
appointed trustee of the estate of tbe
said bankrupt.
That for the following reaeona, to
it is desirable and for the beat intmat «f
tiie estate to sell at private sale a
portion of the said estate, to wit:
Wherefore he pra^ that he may be antksr-
ized to sell the said property at privmla *
Dated this day of , A
189—.
The foregoing petition having
filed and having come on for a
fore me, of which hearing ten days*
was given by mail to creditors of said
nipt, now, after due hearing, no a ~
terest being represented Uiereat [
hearing in favor of said
and in opposition thereto].
daly
ordered that the said trustee be
to sell the portion of the bankrupt**
specified in the foregoing petatioo, at
vate sale, keeping an aocorate
each article scld and the priee receiied
for and to whom sold; which aaid
he shall file at once with the referee.
Witness my hand this d^y oi
A. D. 189—.
it w
Referee im
[F6bm No. 46.]
Petition and Oboeb iqb Sale or
In the District Court of the United
for the District ol
In the matter of
Bankrupt .
Respectfully represents
la
bankrupt [or a creditor, or the
the trustee of the said bankrupt's
Forms in Bavkbuftot.
That a part of the Baid estate, to wit,-
now in , is perishable, and that there
'will be loss if the same is not sold immedi-
ately.
Wherefore^ he prays the court to order
that the same be sold immediately as afore-
said.
Dated this
day of , A. D. 189 —
The foregoing petition having been duly
filed and having come on for a hearing be-
fore me; of which hearing ten days' notice
was giyen by mail to the creditors of the said
bankrupt [or without notice to the credit-
ors], now, after due hearing, no adverse in-
terest being represented thereat [or after
hearing, in favor of said petition
ajod in opposition thereto], I find
that the facts are as above stated, and that
the same is required in the interest of the
estate, and it is therefore ordered that the
aame be sold forthwith and the proceeds
thereof deposited in court.
Witness my hand this
. D. 189—.
day of
Referee in Bankruptoif.
[Form No. 47.]
Tbusteb'b Report of Exempted Propbbtt.
In the District Court of the United States
for the District of .
In the matter of
Bankrupt .
In Bankmptey.
At
on the
day of
18—.
The following is a schedule of property
designated and set apart to be retained by
the bankrupt aforesaid, as his own property,
under the provisions of the acts of Congress
relating to bankruptcy.
General head.
Particular .description.
Valae.
Military oniform, arms* and equip-
ments. . - t T T T r t T t - T t , - T - - - r T . T .
Dolls.
eta
Property exempted by State laws
Trustee,
[Form No. 48.]
Trustee's Return op No Assets.
In the District Court of the United States
for the District of .
In the matter of
Bankrupt
In Bankniptey.
At I , in said district, on the
of , A. D. 18—.
day
On the day aforesaid, before me comes
, of , in the county of and
State of , and makes oath, and says
that he, as trustee of the estate and effects
of the above-named bankrupt, neither re-
ceived nor paid any moneys on account of
the estate.
Subscribed and sworn to before me at
^, this day of , A. D. 18 — .
Referee in Bankruptcy,
1228
5
i
I
I
CD
O
I
Appbndcc L
5
c^
a
I
^
a
&
s
a
<^
1224
Forms jx Baskbuftct.
[TOKK No. 60.]
lUXH TO Fur AL Aooourt OV TkUBUB.
In the Distriot Court ol tlie United States
for the -^^— District of w
In the mmtter of
Bamkrmpi .
In Bankmptey.
On this day of
before me oomes
the county of
and State of
-, A. D. 18 — ,
, of -, in
and makes oeAh, and says that he was, on
the day of , A. D. 18 — , ap-
pointed trustee of the estate and effects of
the above-named bankrupt, and that as such
trustee he has conducted the settlement of
the said estate. That the account hereto' an-
ced containing sheets of paper, the
first sheet whereof is marked with the letter
[reference may her6 also he made to
amy prior account filed hy said trustee], is
true, and such account contains entries of
every sum of money received by said trustee
on account of the estate and effects of the
above-named bankrupt, and that the pay-
ments purporting in such account to have
been made by said trustee have been so made
by him. And he asks to be allowed for said
payments and for commissions and expenses
as charged in said accounts.
-, Trustee,
Subscribed and sworn to before me at
, in said district of ,
thk day of , A. D. 18—.
[Official oTtaracter.l
[FoBif No. 61.]
Order ALLOwiito Aocottnt aitd Dischaaq-
iNo Trustee.
In the District Court of the United States
for the District of .
[Form No. 62.]
PfennoN lOB BxMOTAL or TtoBiSE.
In the matter of
Bankrupt .
In Bankniptesr.
The foregoing account having been pre-
sented for allowance, and having been exam-
ined and found correct, it is ordered, that
the same be allowed, and that the said trus-
tee be discharged of his trust.
Referee in Banhrupieff.
In the District Court of the United Statei
for the District of .
In the matter of
Bankrupt .
To the Honorable
In Bankruptcy.
Judge of the District Court for the
District of :
The petition of , one of the cred-
itors of said bankrupt, respectfully repre-
sents that it is for the interest of the estate
of said bankrupt that , heretofore ap-
pointed trustee of said bankrupt's estate,
should be removed from his trust, for the
causes following to wit: [Here set forth the
particular cause or causes for which such re-
moval is requested,]
Wherefore pray that notice may
be served upon said , trustee as afore-
said, to show cause, at such time as may be
fixed bv the court, why an order should not
be made removing him from said trust.
ItotM No. 63.]
NonoB OF Petition vor Removal or Trub-
TEB.
In the District Court of the United States
for the District of ,
In the matter of
Bankrupt .
In Bankraptcy.
-, on the
day ol
A. D.
At
18—.
To
Trustee of the estate of , bankrupt:
You are hereby notified to appear before
this court, at , on the day of ,
A. D. 18-7, ••* — o'dodc — . m., to show
cause (if any you have) why you should not
be removed from your trust as trustee as
aforesaid, according to the prayer of the
petition ol , one of the creditors of
said bankrupt, filed in this court on the
day of , A. D. 18 — , in which it is
allied [here imert the aUegation of the
petition].
-, Clerk
1225
Appendix 1.
[Form No. 54.]
Obdeb it)B Removal of Tbustke.
In the District Court of the United StatM
*for the District of
In the matter of
Bankrupt .
. In Bankmptey*
Wliereas
day of
of
did, on the
-, A. D. 18 — , present his pe-
tition to this court, praying that for the
reasons therein set forUi, , the
trustee of the estate oi said -^— — — , bank-
rupt, might be removed:
Now, therefore, upon reading the said pe-
and
tition of the said
the evidence
submitted therewith, and upcm hearing coun-
sel on behalf of said petitioner and counsel
for the trustee, and upon the evidenoe sub-
mitted on behalf of said trustee,
It is ordered that the said be re-
moved from the trust as trustee of the es-
tate of said bankrupt, and that the costs of
the said petitioner incidental to said peti-
tion be paid by said , trustee {or,
out of the estate of the said , sub-
ject to prior charges].
Witness the Hoiu)rable
judge
of the said court, and the seal thereof, at
, in said district^ on the day ol
. A. D. 18—.
( Seal of )
(the court.)
Clerk,
[Form No. 66.]
Obdeb fob Choice of New Tbusteb.
In the District Court of the United StatM
for the District of .
Id the matter of
Bankrupt .
In Bmnkmptcy.
At
18—.
on the day of
A. D.
Whereas b^ reason of the removal [or the
death or resignation] of , hereto-
fore appointed trustee of the estate of said
iMuikrupt, a vacancy exists in the office of
eaid trustee,
It is ordered, that a meeting of the cred-
itors of said bankrupt be held at , in
, in said district, on the day of
, A. D. 18 — , for the choice of a new
trustee of said estate.
And it is further ordered that notice be
1226
given to said creditors of tbe
and purpose of said meeting, by
each, to be deposited in th« mail at
days before that day.
B^erm M
[Faau No. 66.]
Cebtificatb ffr Refibbb to J
In the District Court of the United
for the District of
I,
one of the ref<
of tan
court in bankruptcy, do hereby o^tzfr the!
in the course of the proceedings in tmidt
before me the following question aj
tinent to the said prowedings: [Si
the question, a eummary of the
lating thereto, and the finding and order ef
the ref&ree thereon.]
And the said (question ia eertiiled t» tti
judge for his opinion tho^on.
Dated at , the day ol
D.
Referee in Bankrmpie^
[Fobm No. 67.]
Bankbupt'8 Pbtitio'v fob
In the matter of
Bankrupt
To the Honorable
Judge of the District Court of tkm Ci*-
ed States for the District of
, ol , in the county of
and State ol , in said district,
fully represents that on the
day et
, last past, he was duly adjudged bai
rupt under the acts of Conmie rdatiag m
iM duly I
bankruptcy; that he has duly
all his property and rights of property, tad
has fully complied with all the requiraaMHto
of said acts and of the orders ol tiM
touching his bankruptcy.
Wherefore he prays that he may he
creed by the court to have a fvll
from all debts provable against his
under said bankrupt acts, except soch
as are excepted by law from such discharfa
Dated this day of , A. D. l»—
Forms in Bankruftov.
Qbdkb or NonoB Thbbbon.
District of f m:
On this dajr of , A. D. 189 — , on
reading the foregoing petition, it is —
Ordered by the court that a hearing be
had upon the same on the day of — ,
A. D. 189—, before said court, at , in
said district, at o'clock in the
noon; and ti^at notice thereof be nublished
in , a newspaper printed in said
district, and that all known creditors and
other persons in interest may appear at the
said time and place and show cause, if auT
they have, why the prayer of the said peti-
tioner should not be granted.
And it is further ordered by the courC,
that the derk shall send by mail to all
known creditors copies of saia petition and
this order, addressed to them at their places
of residence as stated.
Witness the Honorable , judge
of the said court, and the seal thereof, at
in said district, on the day of
. A. D. 189 — .
{ Seal of )
\ the court. )
Olerh,
hereby depose, on oath, that the fore-
going order was published in the
on the following days, viz, : •
On the oay of and on the
day of , in the year 189 — .
District of
Personally appeared
, 189—.
and made
oath that the foregoing statement by him
subscribed is true.
Before me,
[Official dharader.']
I hereby certify that I have on this -^—
day of , A. D. 189 — , sent by mail copies
of the above order, as therein directed.
Clerk.
[FoBH No. 58.]
SPEcincATioN or Gbounds of Opposition
TO Bankbxtpt's Discharge.
In the District Court of the United States
for the District of ,
In the matter of
Bankrupt .
In Bankmptcj.
-, of — , in the county of —
and State of , a partr interested in the
estate of said , bankrupt, do here-
by oppose the granting to him of a disoharge
from his debts, and for the grounds of such
opposition do file the following specification:
[Here specify the grounds (^ opposition,]
CredUor,
[Form No. 69.]
Discharge of Bankrxtpt •
District Court of the United States,
District of —
Whereas,
of
in said dis-
trict, has been duly adjudged a bankrupt,
under the acts of Congress rdatinff to bank-
ruptcy, and appears to have conformed to
all the requirements of law in that behalf,
it is therefore ordered by this court that
said be discharged from all debts
and daims which are made provable by said
acts against his estate, and which existed
on the day of , A. D. 189 — , on
which day the petition tor adjudication was
filed him; excepting sudi debts as are
by law excepted from the operation of a dis-
charge in bankruptcy.
Witness the Honorable — = , judge
of said district court, and the seal thereof
this day of , A. D. 189 — .
{
Sea] of I
the eoart.1
Clerk.
[Form No. 60.]
Petition for Meeting i*o Consider Compo-
sition.
District Court of the United States for the
District of — .
In Bankruptcy.
To the Honorable
Judge of the
District Court of the United States for
the District of :
The abovenamed bankrupt respectfully
represent that a composition of per cent
upon all unsecured debts, not entitled to a
Srioritar in satisfaction of
ebts has been proposed by to
creditors, as provided by the acts of Con-
ffresa relating to bankruptcy, and verily
believe that the said composition will be ac-
cepted by a majority in number and in value
of creditors whose claims are allowed.
Wherefore, he pray that a meeting of
creditors mav be duly called to act
upon said proposal for a con^K)sition, ac-
cording to tne provisions of said acts and the
rules of court.
Banhrupi.
1227
Appendix 1.
[FoBM No. 61.]
Afpuoation fob Cokfibhation of Compo-
sition.
In the District Court of the United States
for the — District of .
In the mmtter of
Bankrupt
In Bankniptey-
To the Honorahle
Judge of the
District Court of the United States for
the District of -^^.
of
At
— , in said district, on the
A. D. 189 — , now oomes
day
the ahove-named bankrupt, and respectfully
represents lo the court that, alter he had
been examined in open court [or at a meet-
ing of his creditors] and had filed in court
a schedule of his property and a list of his
creditors, as recjuirea bv law, he offered
terms of composition to his creditors, which
terms have been accepted in writing by a
majority in number of all creditors wnoee
claims have been allowed, which number rep-
resents a majority in amount of sudi daims;
that the consideration to be paid by the
bankrupt to his creditors, the money neces-
sary to pay all debts which have priority,
and the costs of the proceedings, amounting
in all to the sum of dollars, has been de-
posited, subject to the order ot the judjg^ in
the National Bank, of , a designat-
ed depository of money in bankruptcy cases.
Wherefore the said respectfully
asks that tbe said compoeition may be con-
firmed by the court.
't Bankrupt.
[FcHac No. 62.]
Obdkb Confismino Coicposinoii.
In the District Court of the United States
for the District of .
In the matter of
In Bankraptey.
An application for the confirmation of the
composition offered by the bankrupt having
been filed in court, and it appearing that
the composition has been accepted by a ma-
jority in number of creditors whose daims
1228
have been allowed and oi mauh aSwei
daims ; and the oonsidertition and the :
requir^ by law to be deposited, hvrag
deposited as ordered, in sodi jdaee as
designated by the judge of said eo«rt,
subject to his order; and it also appearisf
that it is for the best interests d mt credit-
ors; and that the bankrupt has
guilty oi any of the acts or faOed to
any of the duties which would be a bar ta ha
discharge, and that the offo" and its
anoe are in good faith and haw
made or procured by any meaita,
or acts contrary to the acts of Congress
lating to bankruptcy: It Is therefore ~
by ordered that the said
and it herd:^ is, confirmed.
* Witness the Honorable
of said court, and the seal thereof, this
day of , A. D. 189 —
r Seal U 1
(the eonrtf
[FoBM Na 63.]
Obdb ov DisnuBunoiT on
UinTKD Staixb or Aiouoa:
In the Distriet Court of the Unitad
for the District of
In the matter of
Bankrupt
The composition offered by the
named bankrupt in this ease having
duly confirmea by the judge of said eoort*
it is hereby ordered and decreed that the
tribution of the deposit shall be
the clerk of the court as follows, to
1st, to pay the several daims which
priority; 2d, to pav the eoets of proeee<L
Sd, to pay, aooording to the tetnts of
composition, the several daims of
creditors whidi have been allowed, and
pear upon a list of allowed claims,
files in this case, whidi list is made a
of this order.
the
the
Witness the Honorable
of said court, and the seal thereof, this
day of , A. D. 189— w
jodft
( Seal o< I
I the court. I
INDEX TO GENEEAL OKDEES.
Or-
der.
tion.
Pagt.
Abbrerlatlonf and Interllneatlona in petition! and schedalcs forbidden.
Accounts of marshal
referee .•••.
trustee
Amendments of petitions and schedales
Appeals.
from circuit courts of appeals
courts of bankruptcy
supreme court of District of Columbia.
supreme court of Territory
to circuit courts of appeals
supreme court of Territory
Supreme Court of the United States. . .. .
Application for approval of composition
discharge of bankrupt.
form of., ,
Appointment and removal of trustee
Arbitration ,
Assignment of claims before proof
Attorney, conduct of proceedings by
execution of letter of
Checks for money deposited ,
Circuit courts of appeals, appeals from ,
to
Claims, assignment of, before proof
compounding of ,
of persons contingently liable
proof of ,
reexamination of ,
Clerk, compensation of ,
indemotty for expenses of«
indorsement of papers by ,
Compensation of clerk, referee, and trustee
Composition, approval of
opposition to ,
Coats in contested adjudications
Courts of bankruptcy, appeals from...
Creditors, special meeting of
Debtor, imprisoned
Debts, proof of «
D^;>osition before referee
Discharge of bankrupt, application for.
opposition to
petition for
Districts, petitions in different
Docket
Duties of referee
trustee
Examination of witnesses
Expenses of clerk, marshal, or referee, Indemnity for.
allowance of..
Pees of clerk
referee
trustee
Filing of papers
after reference
Finding of facts by referee
Forms.
Frame of petitions
General provisions ,
Hal>eas corpus of imprisoned debtor
ImprisonedT debtor
Indemnity for expenses of clerk, marshal, or referee
Injunctions of proceedings of courts or officers
Interlineation and abbreviation in petitions and schedules forbidden..
Inventory by tmstes
6
19
26
17
11
36
36
36
36
36
36
36
36
12
12
81
13
33
21
4
21
29
36
86
21
28
21
21
21
85
10
2
85
12
82
28
4
7
84
36
25
30
21
22
12
82
31
6
1
12
17
22
10
85
36
85
85
2
20
12
88
6
87
80
80
10
12
6
17
1,2,3
2
2
2
2
1
1
8
8
2.8
8
6
1
1,2,8,4
8
1.2.8
8
1.2,8
1,2,8,4
2,4
8.4
8
8
1189
1197
1193
1191
1190
1194
1194
1194
1194
1194
1194
1194
1194
1191
1191
1193
1191
1194
1192
1189
1192
1193
1194
1194
1192
1193
1192
1192
1192
1194
1190
1189
1194
1191
1193
1193
1189
1190
1194
1194
1198
1198
1192
1192
1191
1198
1198
1189
1189
1190
-91
1191
1192
1190
1194
1194
1194
1194
1189
1192
1191
1195
1189
1194
1198
1198
1190
1191
1189
1191
1228a
TABLE OF FORMS.
Now 1. DMitor's mtltton >. JjSs
Schedole A ^ 1196
SctMdole B 1201
Summary of debts and aaseU 1207
2. Partnership petition ^ 1207
8. CredttodTs' petition 1208
4. Order to show cause upon creditors' petition 1209
5. Subpoena to aileged bankrupt 1209
6. Denial of banlLruptcy 1209
7. Order for Jury trlai , , 1209
8. Special warrant to marshal % 1210
9. Bond of petitioning creditor 1210
10. Bond to marshal 1210
11. Adjudication that debtor is not bankrupt 1211
12. Adjudicatk>n of bankruptcy 1211
13. Appointment, oath, and report of appraisers 1211
14. Order of reference 1212
15. Order of reference in Judge's absence 1212
16. Referee's oath of office 1212
17. Bond of r^eree 1212
18. Notice of first meeting of creditors ..^ 1218
19. List of debts proved at first meeting 1218
20. Qeneral letter of attorney in fact 1218
21. Special letter of attorney in fact 1214
22. Appointment of trustee by creditors 1214
28. Appointment of trustees by referee 1214
24. Kotice to trustee of his appointment 1215
26. Bond of tmstee 1215
26. Order appiOYing trustee's bond ., 1215
27. Order that no &ustee be appointed 1216
28. Order for examination of bankrupt 1216
89. Bxamination of bankrupt or witness • 1216
80. Summons to witness 1216
81. Proof of unsecured debt 1217
82. Proof of secured debt 1217
88. Proof of debt due corporation .- 1217
84. Proof of debt by partnership 1218
35. Proof of debt by agent or attorney 1218
86. Proof of secured debt by agent 1218
87. Affidavit of lost bill or note 1219
88. Order reducing claim 1219
89. Order expunging claim 1219
40. List of claims and dlyidends 1220
41. Notice of dividend 1221
42. Petition and order for sale by auction of real estate 1221
48. Petition and order for redemption of property from Hen 1221
44. Petition and order for sale subject to lien 1222
46. Petition and order for private sale 1222
46. Petition and order for sale of perishable property 1222
47. Trustee's report of exempted property *. 1228
48. Trustee's return of no assets 1228
49. Account of trustee 1224
50. Oath to final account of tmstee 1225
51. Order allowing account and discharging trustee 1225
52. Petition for removal of trustee » 1225
58. Notice of petition for removal of trusts 1229
54. Order for removal of trustee 1226
55. Order for choice of new trustee 1226
56. Certificate by referee to judge 1226
57. Bankrupt's petition for discharge 1226
58. Specification of grounds of opposition to discharge 1227
59. Discharge of bankrupt 1227
60. Petition for meeting to consider composition 1227
61. Application for confirmation of composition 1228
62. Order confirming composition 1228
68. Order of distribution on composition 1228
12280
APPEimiX IL
S^npvimit (^ovLxt uf thje United ^taUs.
October Term, 1898.
Of BCEMORIAIC
ATTGTJSTUS HILL GARLAND.
The Hon. John W. Griggs, Attorney General of the United States, addreBsed the
court as follows :
"May it please the court: It is my sad duty to announce to the court the sudden
death of an ex-Attorney General of the United States,— -Augustus Hill Garland.
"The sudden and unexpected death of this distinguished man conies with a shock
of surprise to thoee of us who have heard of it, as undoubtedly it came to those of this
court who witnessed his seizure. He was a man so dietinguidhed in his profession, so
distinguished as a statesman in political life, and so connected, ofi^ally and professional-
ly, with this court to the last moment of his life, that I deem it proper to suggest to the
court that out of respect to his memory they should take a recess until to-morrow,
and I make that motion."
The Chief Justice responded:
"The court receives the information of the death of Mr. Garland with sincere sor-
row, and fully concurs in the suggestion that has been made. As a mark of respect
to the memory of this distinguished member of the bar and eminent public servant, an ad-
journment will be taken until to-morrow, at the usual hour.''
January 26, 1899.
APPENDIX IIL
^u^yrjetttje ^onvt xrf the WLniUA S^Mts.
OoTOBER Term, 1898.
ORDER.
Ths reporter hiring represented that, owing to the number of deeisioiifl at the term,
It will be impracticable to put the reports in one volume, it is therefore now here or-
dered that he publish an additional volume in this year, pursuant to section 681 of the
Revibed Statutes.
February 27, 1899.
V. •.» Book 43. 1229
APPENDIX lY.
^npvaat C^nrt xrf tht Ultfitjed ^tattes.
OcTOBBR Term, 189a
IN MEMORIAM.
BARON HERSOHELL,
The Chief Justice: "It is with sincere sorrow that I axmounce to the ii>^m1— *■ el
the bar the sudden death of Baron Herschell, former Lord Chancellor of EngUfid, i»-
formation of which has just been receiyed by the court with deep sensibilitj.
"Lord Herschell had been some months in this couihtry in a public and intematkiBaJ
capacity, and but a few days have elapsed since he sat with us here, a compliment wiiiek
has been extended only once previously, in the instaince of the then Lord Chief Jostke
of Ekigland.
"In view of the cordial relations between Lord Herschell and the members of ik»
court, his greaX distinction in our comm<Mi profession and on the bench, and his nnex*
pected death while absent from home in the discharge of high public duty, we feel called
upon to take notice of this sad event, and as a mark of respect to his
will adjourn until to-morrow at the usual hour.
if ard^ 1, 1899.
APPEOT)1X V.
S^npvzmt C0urt of tht. "WLuiUA J^tates.
OcTOBEB Term, 1898.
IN MEMORIAlf.
STEPHEN J. FIELD.
The Chief Justice: '^t becomes my sad duty to inform the gentkmeB ol the bv tkaft
Mr. Justice Field on yesterday (Sunday) evening passed peacefully from this
He died full of years and of honors, and attoided by all that riiouM
old age.
"The judicial career of Mr. Justice Field was unexampled in length and
and he occupied a seat upon this bench for a longer period than any of its members fros
the beginning. His labors left no region of jurisprudence unexplored, and now that ht
rests from th^n, his works will follow him. His retironent when he saw port
ing was so recent that he hardly seems to have been absent, and his death
to us the more keenly.
"As a mark of respect to his memory, the court will adjourn until to-morrow."
April 10, 1899,
1230
APPEin)IX VI.
S^npvtmt C0ttrt of tht WinxUA states*
OoTOBBB Tebm, 1898.
ORDER
It h now li«re ordered by ihe court that all the cases on the docket not decided, and
all the other businees of the term not disposed of by the courts be, and the
•ame are hereby, continued until the next term of the court.
May 22, 1899.
1S31
Appeal and Ebbob» L, IL a.
Vn. Heabino aitd DETBBiairATioir.
a. In General.
b. Ohieciiona Waived or Cured Be-
lOiD.
e. Deciaione on Facia,
d. Diacreiionary Rulinga.
e. What Errora Warrant ReveraaL
VIII. JUDOICENT AKD IT8 EfFEOT.
S«e also Constitutional Law, 8; Coubts,
20.
I. Appellatb JuusDionoN IN General.
1. The entry of a decree by the lower
court in conformibr with a mandate, after
reversal with specific directions, does not cut
off the right to an appeal not vet prosecuted
from the decree of reversal. Merrill t. Na-
tional Bank, 640
2. The conetitutioncd provision that no
fact tried by jury shall be otherwise re-ex-
amined in any court of the United States
than according to the rules of common law
is not violate by allowing an appeal for
trial by a common-law jury from a judgment
on the verdict of a jury of twelve men in a
court of a justice of the peace, as that is
not a coomion-law jury. Capital Traction
Co. V. Hof, 873
8. The creation of the right to appeal aft-
er the rendition of a decree by the United
States court in the Indian territory as to
tribal citizenship, and after the expiration of
the term of court at which the decree was
rendered, although the statutes in force at
the time of its rendition made it final, does
not destroy any vested right, since the ex-
emption of sudi a judgment from review,
and the mere expectation of a share in the
public lands and moneys of the tribe, if here-
after distributed, cannot be deemed such an
absolute right of property as to place the
decree beyond the power of re-examination
by a higher court under authority of a sub-
sequent act of Congress. Stephens t. Chero-
kee Nation, 1041
4. A reversal by the circuit court of ap-
peals of an injunction in favor of the United
States against a diversion by defendant of
water from a stream on the public domain to
the deprivation of a military reservation, and
a remanding of the case for further proceed-
ings, are not final for the purpose of an appeal,
where the court decides that defendant could
acquire a water right as againei the United
fitates subject to the appropriation for the
reservation, but ihe agreed facte show that,
After his appropriation, water had been tak-
•en from a higher point to the reservation,
but only a part of it used there, and it does
not appear whether this supply might not
have been sufficient if all nad been used
there. United States v. Krall, 1017
/Finality of deoiaion.
6. A final order overruling the return of
*ihe sheriff and discharging a prisoner from
•custody on writ of habeas corpus, made at
A stated term of the circuit court of the
United States, is appealable, although the
original order was made at chambers. Hark-
rader v. Wadley, 899
1234
0. A decree which determiBes
of the defenses oi a guaranty eompaay
good in law, and that it ia liable on its bn .
for such sum as may thereafter be fovad to
be due after creditii^a^ the amoonte thai
be realized from certain iweta, '
for the purposes of an appeaL
Co. T. Mechanics' Say. Bank 4 T. Oow tU
7. A reversal ol a decree^ witk epeeiie £-
rections to enter a decree in aeoordaBoe vnk
the mandate, is final for the _pujpoee e< ai
appeal. Merrill v. National Baj^ UM
8. The reversal of a jndgiiieiit, wiA 4*-
rections to sustain a danorrer, ia aot a tail
judgment on which writ of error will Ik to
a stete court from the Supreme Court e< tht
United States, if the lower court kaa
to make a new case by mm iiiliiMMt ei
ings. Clark v. Kanwaa Citj, 417
9. An order discharging a priwiwi m
writ of habeas corpus, whidi, if Talid, takn
away his ciistody from the state eoort ta4
puts an end to his imprisonmeat vader ti»
process of that court, is final for the pmrpum
of an appeal, although he ia dlsdiargcd mif
Sioding an injunction affainot tlM
on. Harkrader v. Wadley,
10. An order directing the trial eoart to
enter an order for turning over certain sue-
eys and securities receiv^ from
sons, after making reasonable al]<
''costs, disbursements, and attdmcys' leea'
aa contemplated bv law, ia not a final oHm
for the purpose oi appeaL California Ks^
Bank t. Stateler, M
H. JUBISDICnCMI.
a. Over Federal Ootirtt.
11. The right to appeal directly ta
United States Supreme Court from the
cuit court because of a consUtiitioBa]
tion ia not waived by taking an appeal aim
to the circuit court of appeala. IhiHis'i
Palace Car Co. v. Central Traasp. Oa IM
12. A writ of error to the cireait
from the Supreme Court of the United
to review the merits cannot be taken
a writ ot error from the circuit ooort ol a^
peals in the same case. Colunbtta Ciweh
Co. y. Crane Co. Hit
18. The dismissal of a bill by a Vadtnl
circuit court on the ground that the linha
claimed had been determined by a jadjuaiat
of a state court, which oonld not be aanalM.
is not a decision against the juriadictMa il
the Federal court which can be fitiaarf W
a direct appeal to the supreme oovrt. BIythi
▼. Hinckley, TV
14. A decision by a Federal dreaH eearl
that the remedy is at law and not ia emitv.
is not sudi a decision affainet the iaiMk-
tion of the court as can be itfUiiea by #-
rect appeal to the supreme eovrt. 1i
15. An action affainst a marahal ei ««t
United States and his snretiea. aad ake eft-
tachment creditors for whom he haa wakmi
goods, is not one in whioh the jadnMl rf
the circuit court of appeals ia flaau, «a*a
the aet of Congress of Mardi S, 1»1. I C
171, ITS. ITS. 1T4 V.ft
Appeal A2n> Ebbob, U. b, c.
the jurisdiction does not depend entirely
upon citizenship, although a separate suit
ai^ainst the attachment creditors would have
oozne within that section. Sonnentheil v.
Christian Moerlein Brew. Ck>. 492
16. A suit by a receiver of a Federal court
for the collection of assets is merely ancil-
lary to the suit in which he was appointed,
so that, if the jurisdiction of the original
Buit depended on diverse citizenship, an ap-
peal from the decision in the ancillary suit
ca^ be taken only to the circuit court of ap-
peals. Pope V. Louisville, N. A. & C. R. Co.
814
17. A decree of the circuit court of appeals
in a caee in which the jurisdiction at the out-
set depended on diversity of citizenship is
final, even if another ground of iurisdiction
^rae alleged in a supplemental bill by which
m, new defendant was made a party. Third
Street ft S. R. Co. v. Lewis, 766
Of oironit oonrt of appeals.
18. A judgment in an action at law
against the United States under the act of
Congress of March 3, 1887, is reviewable by
the circuit court of appeals on writ of er-
ror. United States v. Harsha, 550
b. Over Courts of Territory or Indiana.
See also supra, 3.
19. An appeal from a decision of the tribal
authorities in the Indian territory, or of an
Indian commission created by Congress, may
be authorized by act of Congress. Stephens
V. Cherdcee Nation, 1041
20. The appellate jurisdiction of a capital
case from the United States court for the
northern district of the Indian territory,
fiven by the act of Congress of March 1,
895, to the appellate court of the United
States for that territory, is exclusive, and
supersedes the provisions of the acts of Feb-
ruary 6, 1889, and March 3, 1891, respecting
the jurisdiction of the Supreme Court of the
United States. Brown v. United States,
312
21. Accrued interest legally due on a claim
at th« time of a judgment dismissing the
case is to be indud^ in determining the
amount in issue for the purpose of jurisdic-
tion <m writ of error. Gutnrie Nat. Bank
▼. Gnthils, 790
e. Over State Courts.
22. Error of a circuit court in remanding
a case to a state court is not ground of writ
of error to review the subsequent decision of
the case by the state oourt. Nelson y. Mo-
loney, 934
Federal qvestlinuk
23. There must be a real and substantial
dispute as to the effect or construction of the
Constitution or of some law of the United
States, upon the determination of which the
recovery depends, in order to make such
question a ground of jurisdiction in Federal
courts. MdDain t. Des Moines, 936
24. A judgment by a state court sustain-
ing an etD parte appointment of a receiver, as
against subsequent proceedings of attach-
ment and sequestration in a J^^ederal court,
if determined on grounds which did not in
volve Federal questions, is not subject to
review by writ of error from the Supreme
Oourt of the United States. Bemington Pa-
per Co. v. Watson, 762
25. A claim that a judgment holding a re-
ceiver of a national bank to be a trustee is
"contrary to law" does not raise a Federal
question. Capital Nat Bank t. First Nat.
Bank, 502
26. A decision that monev in the hands of
a receiver of a national bank is held in trust
and has never been part of the assets of the
bank, when rendered on general eouitable
principles, does not involve any Federal
question which will sustain a writ of error
to the state court. Id.
27. The fact that a defendant is a receiver
appointed by a Federal oourt does not raise
a Jb'ederal question which will sustain a writ
of error to a state court from the Supreme
Court of the United States, where the ques-
tions involved are questions of general law,
including the inquiry whether a reoeiyer is
responsible for the acts of his predecessor in
office. Bausman y. Dixon, 633
28. An injunction by a state court against
interference with the oonstruction or mainte-
nance of a sidewalk and curbing in front of
defendant's premises, where he has forcibly
interfered, claiming that his property is be>
ing taken without compensation, does not
present a Federal question, when the court
assumes his right to damages, but holds that
he has mistaken his remedy and must resort
to another proceeding for damages. Mc-
Quade v. Trenton, 581
29. Error in the estimate of the amount of
capital employed in a state and subiect to
tax therein does not present a Federal oues-
tion on writ of error to a state court. New
York, Parke D. & (Jo., T. Roberts, 323
30. The loss of a right under the Constitu-
tion of the United States by action or fail-
ure to act does not present a Federal ques-
tion for writ of error to a state court.
Pierce v. Somerset Railway, 316
31. A Federal question is presented by the
determination of a state court as to whether
tne right given by aot of Congress to the
"legal representatives" of a person is for the
benefit of his next of kin, to the ezdusion of
his creditors, or not. Briggs T. Walker,
243
32. A claim that a lien on property was
wholly devested by foreclosure proceedings
in a Federal court involves such an assertion
of a right and title under an authority exer-
cised under the United States as gives the
Supreme Court of the United States jurisdic-
tion to re-examine tile final judgment of the
state court. Pittsburgh, C. C. & St L. R.
Co. V. Long Island Loan ft T. Co. 528
33. The dismissal of an appeal on the
ground tiiat it is prematurely taken does not
present a Federal question. Chappell Chem-
ical & F. Co. y. Sulphur Mines Co. 520
1235
Afpbal and Ebbob, IY. — YIL a.
Btates from a dismissal of the cause for want
3f jurisdiction. Central Loan ft T. Co. ▼.
Campbell Commission Co. 623
IV. Rboobd and Ca8B on Apfkal.
49. A statement of facts not filed within
the time required by Ariz. Rev. Stat. SS 843-
845, cannot be considered as part of the rec-
ord on appeal frcMn the supreme court of that
territory. Cohn t. Daley, 1077
50. A letter of an attorney withdrawing
appearance may be brought into the record
by bill of exceptions which sets it forth at
len^h and states that it was filed by the
pktintiff in the case. Rio Grande I. ft C. Co.
V. Gildersleeve, 1103
51. A bill of exceptions may be taken to
inolude all the evidence, although it does not
expressly state that fact, if the entries suffi-
ciently show that all the evidence is includ-
ed. Gunnison County v. R. H. Rollins ft
Sods, t{89
52. An assignment of error luising a Fed-
eral question as to the validity of a personal
judgment against a nonresident of the state,
who had no personal notice, in an assessment
proceeding, is not sufficient to raise a Fed-
eral question as to the validity of the assess-
ment with respect to the' property asses&ed.
Dewey v. Des Moines, 065
53. The loss of the jurisdiction of a state
court by the pendency of a petition for re-
moval of the case to a Federal court is not
shown by a record on writ of error, which
does not contain the grounds of the petition
for removal or the petition itself, and where
the fact that this was filed appears only by
recital and by the opinion of the court.
Chappell Chemical ft F. Co. v. Sulphur Mines
Co. (2) 620
•
V. Exceptions; Mode of Raising Ques-
tions.
See supra, IV.
VI. Dismissal.
See also aupra, 40.
54. A dismissal of an appeal when the ap-
pellant was the proper party to take the ap-
peal and was entitled to hearing cannot be
justified by his admission on the appeal as
to the merits ol the case against him, but
the proper judgment in such case is an af-
firmance. BoBworth T. Terminal R. Asso.
941
55. Laches of ^rties cannot prevent the
dismissal ol a writ of error, when the ques-
tion involved has become a moot questibn,
the decision of which cannot affect the re-
lief to be ultimately granted in the case.
Kimball v. Kimball, 932
56. A writ of error to review a decision by
a state court on the ground that it denied
full force and credit to a decree of divorce
rendered in another state, because the peti-
tion of a woman claiming to be a decedent's
widow for revocation of letters of adminis-
tration to others and for her own appoint-
ment as administratrix is denied on the
n'ound that oer divorce in another state
from^ a former husband was void, must be
dismissed when the possibility of issuing any
letters of administration has been superseded
by the probate of a will, although the dis-
missal leaves her bound by the adjudication
that she was not the widow of the deceased.
Id.
57. A writ of error to a state court will
be dismissed when the decision was based on
a local or state question and it is unneces-
saiy to decide any Federal question. White
V. teovy, 907
VU. Heabino and Detebmination.
A. In QenerdL
58. The extent of the review authorized
on appeal to the Supreme Court of the Unit-
ed States in citizenship cases from the Unit-
ed States court in the Indian territory, un-
der the act of Congress of July 1, 1898, is
limited to the constitutionality or validity
of the legislation affecting citizenship or the
allotment of lands in the Indian territory.
Stephens v. Cherokee Nation, 1041
59. On appeal from the supreme court of
a territory, if there is no finding of facte or
statement of facte in the nature of a special
verdict, it must be assumed that the judg-
ment was justified by the evidence. Mar-
shall V. Burtis, 579
60. It must be assumed that the evidenoa
supporte the judgment on appeal from a ter-
ritorial court in which there is no statement
of facte in the nature of a special verdict
under the act of Congress of April 7, 1874.
Cohn V. Daley, 1077
61. On appeal from the supreme court of
a territory, when no jury was had and there
are no questions as to ^e admission or ex-
clusion of testimony, the only questiim to
consider is whether the findings of fact sus-
tein the decree. Nacglin v. De Cordoba,
315
62. Questions as to the legal title to lands,
and the right to erect a steam plant for use
when water power is unavailable, as an inci-
dent of a riffht to put an electric plant on
the banks of a canal for the use of water
power, are not reviewable on writ of error
from the Supreme Court of the United States
to a state court. Columbia Water Power
Oo. V. Columbia Electric Street R. Co. 521
Qnalifioation of judge.
63. A judge who appointed a receiver in a
foreclosure suit and made an order allowing
him a monthly sum for services, and also
rendered the final decree of foreclosure and
decrees for deliverv of possession, is prohib-
ited by the act of Congress of March 3, 1891,
chap. 517, § 3, to sit in the circuit court of
appeals on an appeal from the decree of an-
other judge concerning Uie monthly compen-
sation of t^e receiver after a certain com*
promise between him and purchasers on the
foreclosure. Moran v. Dillingham, 930
1237
Appeal and Erbor, VII. b— Attacbqient.
Ik Ohitctiona Waived or Cured Below,
64. Merely charging the jury that puni-
tive damages cannot l>e recovered will not
cure the erroneous admission of evidence, in
a libel case, of the wealth of one of the de-
fendants, when this evidence is not specifi-
eally withdrawn. Washington Gaslig^ Co.
>f. Lansden, 543
e. DecisionM on Facta*
See also supra, VIL a.
65. The relation of a person to the busi-
nees of a corporation is one of fact, which is
not open to Inquiry on writ of error to a
state court. New York, Parke, D. & Co., v.
Roberts, 323
06. Alleged errors in the admission or re-
jection of evidence cannot be passed upon by
the Supreme Court of the United States on
appeal from a territorial court, where this
cannot be done without examining the
weight of the evidence and disregarding the
facts as found. Young v. Amy, 127
67. The successive decisions oi two ooarts
in the same case, on questions of fact, are not
to be reversed unless dearly shown to be
erroneous. Smith v. Burnett, 756
d. Discretionary Rulings,
68. The denial of a motion to set aside a
judgment will no<t be reversed unless a mis-
use or abuse ol discretionary power plainly
appears. Rio Grande I. & 6, Co. v. Gilder-
sleeve, 1103
69. The decision of a motion for leave to
discontinue will not be reviewed on appeal
except for abuse of the discretion of the
court. Pullman's Palace Oar Co. v. Central
Transp. Co. 108
e. What Errors Warrant Reversal,
70. The rejection of pleas is inunaterial,
when the defendant bad all the advantages
that he could have had under them by virtue
of another plea. Johnson v. Drew, 88
71. A claim that a jury separated before
the verdict was returned is ineffectual, where
that fact does not appear on the record, but
it does appear that a sealed verdict was re-
turned, under agreement of counsel for both
parties in open court and in the presence of
the defendant. Pounds v. XJnitea States,
62
72. The dismi^al of an infbrmation
should be affirmed when there wa« an ab-
sence of proof of material facts raised by the
issues, and the case was submitted on the
pleadings, although defenses raised by
amended and supplemental answer may have
been erroneously deemed by the court below
to be sufficient. United States v. One Dis-
tillery, 920
VIII. Judgment Ainy Its EmoT.
73. Th# cost of appellate proceedings
should be paid by the appellant on final af-
1238
ol
Ml
firmance, notwithstanding error ef i
mediate court in making a fomttl
dismissal instead of an mfRnutM
worth V. Terminal R. Aseo.
74. On reversing a judgment for
to some of the defendants, tiie
power to reverse it in toio and gnat a nrv
trial in r^ard to all the defeodaota, if k
mi^t work injustice if left intact as ■^■it
one of the defendanta onlj. Waekiagt—
Gaslight Ca v. Ijinsden, SO
75. An a{^peal will not Ue frooi a 4mekmm
in exact accordance with the mandate on a
frevious appeal. United Statas t. New Ymk
ndians, 7M
76. A mandate to the court ol
reversal of its judgment, directing the
of a judgment in favor ol certain trftes oi
Indians for the value of lands granted lb^
by a treaty, does not leave the court at t^
erty to redetermine who were the partM tr
the treaty entitled to the benefit oSf ifei pre-
visions. It
77. Denial ol motion to
Central Nat Bank v. Stevena,
78. Modification ol decree.
Ames,
r
V
ir
See AonoN am Sun, 4;
BOS, 50.
See DuTns, 10, 11.
ARBITRATIOH.
1. An agreement to arbitrate,
rule of court or within the terme ef a
ute enacted for such purpose, ia a
District of Columbia v. Bailey,
2. A oonunon-law subnuesion o€
inff controversy for breach of oontraet,
referee, is not within the power ol tW <
missioners of the District ol Cblombia.
der the act ol June 11, 1878, ^lap. 180,
providing that they shall make do
and incur do obligation which is
ed for and approved by
*«
to I
IS
art
U
See EviDCNCi, 12.
ABMT.
See Prizb,S.
See Rkwabd.
A8SE8SMEHT.
See iNJUNcnoif, 7, 8;
1CKNT8; Taxes, 17.
A88IONMENT.
See Claims, 4; Oousrs, 10-lt.
ASSOCIATIOHS.
See CoNSPiRAOT, 2, ft.
S^ also ArpKAX Am Ebh«. 24:
STTnrnoNAL Law, 11; Oocvra, t.
1. The right to proceed by at
against the property ol a noaresidcQt, wk>c%
171, 17t* 173, 174 v. •
ATTOBNBTB — BAflKB.
is found within the jurisdiction, is not de-
nied by the organic act of Oklahoma terri-
tory, providing that the court cannot acquire
juri^iction oi the person of a defendant by
constructive service by foreign attachment
without its consent. Central Loan & T. Co.
V. Campbell Commission Co. 623
2. An attachment issued before the issu-
ance of a summons is void under Ariz. Rev.
Stat. 1887, If 40, as amended by the act of
March 6, 1891, allowing attachment "at the
time of issuing the summons or at any time
afterward." Henrietta Min. & M. Co. v.
Crardner, 637
3. Hm right to issue an attachment "at
the commencement of the suit, or at any time
durine its progress," as given by Ariz. Rev.
Stat. 1887, tit. 4, chap. 1, f 42, is taken away
by the j>rovision of the act of March 6, 1891,
authorizing attachment at the issuance of
summons, or at any time afterward. Id.
4. A statute providing that an assignee
for creditors shall pay the debts of ^ose
creditors who file releases of their claims
against ihe assignor, and repay to him any
surplus, is in substance and effect an insol-
▼ent law, which is operative as to property
attached in another state only so far as the
courts of that state choose to respect it. Se-
curity Trust Go. V. Dodd, 835
ATTORNEY GENERAL.
Garland, death of 1229
ATTORNEYS.
See also Action or Suit, 4.
A city attorney has no power to bind
the city by a contract that a controversy, as
to which no litigation is pending, shall abide
the result of a pending litigation, under Ky.
Rerv. Stat. § 2909, making it his duty to give
opinions, prosecute and defend suits, and at-
tend to other legal business prescribed by the
council. Stone t. Bank of Commerce,
1028
AUDITOR.
See. EviDENOB, 1.
A right to general average contribu-
tion for sacrifices made and suffered in sav-
ing a vessel, freight, and cargo, after the ves-
sel, although seaworthy at the beginning of
the voyage, has been stranded by the negli-
gence of her master, cannot be claimed by
the shipowner by virtue of the Barter act
of February 13, 1893, § 3, which exonerates
Kim from liability for the master's negli-
gence. Flint, E. & Co. V. Christall, 130
See Abbttbation.
BANKRUPTCY.
Orders in 1189
Forms in 1195
See also Banks, 0.
A deed of general assignment for cred-
itors constitutes in itself an act of bankrupt-
cy which per se authorizes an adjudication
of involuntary bankruptcy under § 3 of the
act of Congress of 1898 entirely irrespective
of actual insolvency. George M. West Co.
V. Lea Bros. & Co. 1098
BANKS.
See also Appeal and Ebrob, 25, 26;
BILL8 AND NOTKS, 4, 6; EQUITT, 2;
Tax£S, 8-12.
1. A national bank which itself pur-
chases notes that it holds as collateral se-
curity, when it has been directed to sell
them to a third party, may be held liable
for their value as for a conversion, erven
though it is not within the power of the
bank to sell them as the owner's agent.
First Nat. Bank v. Anderson, 558
2. A secured creditor of an insolvent na-
tional bank may prove and receive dividends
upon the face of nis claim as it stood at the
time of the declaration of insolvency, with-
out crediting either his collaterals or collec-
tions made therefrom after such declaration,
subject always to the proviso that dividends
must cease when from them and from col-
laterals realized the claim has been paid in
full. Merrill v. National Bank, 640
3. The bankruptcy rule which requires
the holder of collateral security to exnaust
it and credit the proceeds on his claim, or
else to surrender it, before he can prove his
claim, is not adopted for national banks by
U. S. Rev. Stat. S 5236, providing for a rata-
ble dividend on claims proved or adjudi-
cated. Id.
4. A secured creditor of an insolvent na-
tional bank is not estopped from claiming
the right to prove his full claim, by tempo-
rarily submitting to an adverse ruling of the
comptroller, when other creditors have not
been harmed thereby. Id.
5. A national banking association has no
power or authority to purchase with its sur-
plus funds as an investment, and hold as
such, shares of stock in another national
bank. First National Bank v. Hawkins,
1007
6. An ultra vires contract of a national
bank purchasing as an investment shares in
another such bank cannot make it liable as a
stockholder on the ground of an estoppel
against alleging the unlawfulness of its own
act. Id.
7. A shareholder does not withdraw or
permit the withdrawal of the capital of a na-
tional bcuik in violation of U. S. Rev. Stat.
S 5204, by merely receiving in good faith
dividends which are declared wnen there
are no net profits to divide, but which he
hoijestly supposes are declared only out of
profits. McDonald v. Williams, 1022
8. The rediscounting of paper by one
bank with another cannot be held, as a mat-
ter of law, to be out of the usual course of
business, so as to charge everybody connected
with it with knowledge that it may bo in ex-
cess of authority. Auten t. United states
Nat. Bank, . 920
9. The mailing of chedcs and remittances
by a bank to another with which its account
is constantly overdrawn, in accordance with
a general understanding that the proceeds
of such remittances are not to be returned
1239
BaSTARDT— BONDA.
but to be credited on the account, constitutes
a delivery to the bank to which they are sent
whose property therein is not destroyed or
impaired by an act oi bankruptcy by the
sender before the remittances are actually
received. McDonald y. Chemical Nat. Bank,
1106
10. The taking possession of a bank by the
Comptroller of the Currency does not pre-
vent remittances then in course of transmis-
sion by mail to another bank in the regular
course oi business in pursuance of a general
arrangement by which they are to be credit-
ed on a constantly overdrawn account, from
constituting payments on the account. Id.
11. Payments made in the due course of
business by a bank which is actually insol-
vent do not constitute invalid preferences
if they were not made in contemplation or
with a view to prefer one creditor over an-
other. Id.
BASTARDY.
See Descent and Distribution.
BATTITBE.
See Landlobd and Tenant.
BID.
See Contracts, 6, 10.
BILL OF EXOEPTIOHS.
See Appeal and Ebbob, 50, 51.
BUX OF UU>INO.
See Shipping.
BUXS AND KOTES.
See also Bonds, 5.
1. The mere fact that a person who ne-
gotiates securities is an officer of a corpora-
tion does not call for an inference that he
is acting as such in that transaction. Hub-
bard V. Tod, 246
2. Usury between the parties to a con-
tract, or defect of power of a corporation
engaged in the transaction, will not prevent
the purchaser of securities from being a
holder in good faith as against another cor-'
poration which attempts to set up a secret
equity. Id.
3. A bona fide holder of commercial paper
i9 entitled to tiansfer to a third party all
the rights with which he is vestea, even if
the indorsee is acquainted with defenses ex-
isting against the paper. Gunnison County
T. E. H. Rollins & Sons, 689
4. Notice of the want of authority of the
president of a banK to rediscount paper dwith
another bank, or that the indorsement by the
bank was merely for accommodation, is not
shown by the fact that the indorsements of
the bank were made by the president and
not by the cashier, and that the indorsement
of the president himself waA made above that
of the bank, where the paper was rediscount-
ed in the usual course of business and was
solicited by the cashier. Auten t. United
States Nat. Bank, 920
5. An accommodation note is not shown
to have been diverted from the use for which
it wns given by discounting it at a bank at
1240
which it was made payable merdy
the person who obtained it told the
that he wanted it for the purpoee of a
ing that he was putting up. Israel t. Gale,
lol»
6. A bank which discounts •■ aeeoHB»>
dation note cannot be said to ha.v« gives ■•
consideration for it because of a laqge over-
draft of the account of the peraos frooi
whom it is taken, where the overdraft is
substantially covered by other credit* aa4
more than the amount of the
note is subsequently paid out on the
account.
See also EmwiiCB, 20 ; Pbxzb, 4.
1. An effective blockade is one that it m
effective as to make it dangerous ia- fart far
vessels to attempt to ent^- tiia blockadsd
port. The Olinde Rodriguee, 1W3
2. A single modem cruiser may be saft-
cient to bloocade a port if it In fa^ readeri
it dangerous for other craft to enter the port.
I*.
8. A vessel actually captured in ^
ing to enter a blockaded port after waraisc
entered on her log by a cruiser of thai port
pnly a few days before cannot dispute t^
efficiency of the force to which she was rah
jected. 1^
BOARDS OF TRADE.
See Evidence, 2; IirmifAi, Bsmni^
2, 3.
BOKA FIDE PURCHASER.
See Bnxs and Notes, 2, 3; Boms, S, 4;
Corporations, 5.
BOHDS.
See also Appeal Ain> Errou, 39; Oobp*^
RATIONS, 6; Coupons: Corarra, 1, tX;
Judgment, 5; Lis Pendens.
1. Bonds issued by a county in a terri-
tory, whidi were yoid because not aath«r^
ised by act of Congress, may be made r%lU
by a subsequent act of Congresa. Utter v.
Franklin, 439
2. A recital in county bonds that the dc*i
thereby created does not exceed the limit
prescribed by the Constitution eatops the
county from asserting, as against a boaa
fide holder for yalue, that the contrary wis
the fact. Gunnison County ▼. £. H. Rolliw
& Sons, <93
8. The surrender of county warrants for
county bonds may make one a boaa Ms
holder of the bondis to the same ezteat as if
he had bought them in open market. IL
4. Bonds of a oorporatioo in exreas ef ths
amount stated in its charter, and of the Ualt
fixed by Iowa Co4e 1897. | 161U are m«
yoid in the hands of bona fide pfQreha«ef«.
Sioux Ci^ T. R. ft W. Co. ▼. Trust Ca
6. One who takes from a railroad or
ness corporation in good faith and vithMl
actual notice of any inherent defect a ocf*-
tiable <^ligation issued by order of the bosrf
of directors, aigned by the pre«ideRt and **^
171. 172, 173, 174 ILt.
Boundaries— Citizens.
retary in the name and under the seal oi the
corporation and disclosing upon its face no
^wanrt of authority, hae the right to assume
its validity if the corporation could by any
action of its officers or stockholders or of
both have authorized the execution and is-
sue of the obligation. Louisville, N. A. & C.
IL Co. T. Louisville Trust Co. 1081
SOUNDABIES.
1. The quantity named in a grant of
lands ma^ be of decisive weight where there
is uncertainty in the specific description, and
is necessarily so if the intenftion is plain to
convey only so much and no more. Ely v.
United States, 142
2. The holders of lote and squares abut-
ting on the line of Water street in the city
of Washington, D. C, are not entitled to ri-
parian ri^ils, as the intention, never de-
parted from since the first conoeption of tiie
city, was to establish such a street along
the water front for a common access thereto.
Morris v. United fcH^tes, 946
3. The failure to open a ceitain portion
of Water street in Washington, D. C, gives
tiie owner of an abutting lot no title to the
water front. Id.
BOUNTIES.
1. Bounties granted by a government are
never poire donations, but are allowed either
in consideration of services rendered or to be
rendered, objects of public interests to be
obtained, production or manufacture to be
stimulated, or moral obligations to be rec-
ognized. Allen V. Smith, 741
2. The manufacturer of the sugar, as dis-
tin^ished from the producer of the cane. Is
entitled to the bounty given by the act of
Congress of August 28, 1894, to producers
and manufacturers who had complied with
the provisions of the bounty law of 1890,
whicii had been repealed. Id.
See Emineitt Domain, 1 ; Taxes, 4-7.
BURDEN OF PROOF.
See EviDENOB, 7-11.
CANAU.
See also Coubts, 17 ; Watebs, 9, 10.
Water power incidentally created by
the erection and maintenance of a dam and
canal for the purposes of navigation in Fox
river, Wisconsin, which by legislation, both
state and Federal, was dedici^^ to raising
a fund to aid the enterprise, is subject to
cofotroL and appropriation by the United
States which owns and operates the public
works, and not by the state of Wisconsin,
within whose limits the river lies. Gre«i
Bay & M. Canal Co. v. ratten Paper Co.
364
OAKOZXATIOH.
See Coubts, 1 ; Usubt, 2.
CAPTURE.
See Pbize.
CARRIERS.
See also Conspibaot, S-5; Constitu-
tional Law, 26, 33; Shipping, 1-3.
1. A railroad company does not cease to be
a carrier and become a warehouseman by
placing goods upon a wharf, with notice to
a steamship company, which has not taken
actual custody of them, to remove them as
soon as possible. Texas & P. R. Co. v. Clay-
ton, 725
2. A railroad company is liable for the
loss by fire of goods placed by it on a wharf,
with notice to a eteamship company to re-
move them, where the latter had not yet
taken actual custody of them, and the bill
of lading provided Uiat tiie loss should fall
upon tmit carrier alone which had actual
custody at tne time of the loss. Id.
3. The power to fix maximum rates and
charges for railroad transportation does not
include the right to oompel a discrimination
in rates in favor of those who buy thousand-
mile tickets. Lake Shore & M. S. R. Co.
V. Smith, 858
4. The voluntary sale of thousand-mile
tickets good for a ^ear from the time of their
sale does not furnish a criterion for the meas-
urement of legislative power to require the
sale of thousand-mile tickets, or a standard
by which to measure the reasonableness of
legislative action in that matter. Id.
5. An opportunity to nurchase a thous-
and-mile ticket for less umn the standard
rate is not a ''convenience," within the rule
that the legislature may make regulations
of the business of carriers to provi& for the
safety, health, and convenience of the public.
Id.
6. Reasonableness of a schedule of rates
must be determined by the facts as they
exist when it is 80Uf(4vt to put such rates In-
to operation. SmyUi v. Ames, 197
CARS.
See Taxes, 1.
CERTIFICATES.
See CouBTS, 12.
See Appeal and Ebbob, f.
chattei. mortgage.
See MoBTGAOE.
See Banks, 9; Claims, 5.
circitit court.
See Clebk.
CIRCUIT COURT OF APPEAI4L
See Appeal and Ebbob, 18.
CITIES.
See Municipal Cobpobations.
CmZEKS.
See Constitutional Law, 5-8 ; Coubtb,
7-9.
1241
City AxTORifET— Collision.
CITT ATTORNET.
See Attornxts.
See also Eyidknck, 16.
1. An act of Conffress for the relief of the
eetate of a person referring to the court of
claims a claim of hia "legal repreeertaUves,"
makes the recovery on such claim assets of
his estate and subject to his d^>te and lia-
bilities. Briggs T. Walker, 243
2. An allowance to a claimant ''or his
heirs" by act of Coneress, to reimburse him
for moneys advanced as an accommodation
to the government, does not entitle his heirs,
as against his personal representatives, to
the money in case of his subsequent death
before its pajrment. Price ▼. Forrest, 749
3. An aovance of prices during the term
01 the contract cannot be allowed to a claim-
ant under an act of Congress providing for
additional compensation to him for addition-
al cost caused oy changes or alterations re-
quired by the government, but declaring that
no allowance for any advance in the price
of labor or material snail be considered, un-
less such advance occurred during the pro-
longed term for completing the work, ren-
dered neceaeary by delay resulting from the
acti(m ol the government. United States v.
Bliss, 463
4. The appointmeot by a state court of a
receiver of a claim against the government
and an order that i£^ claimant assign the
same to the receiver, to be held subject to
the order of the court for the benefit ol those
entitled thereto, is npt prohibited by XJ. 3.
Rev. Stat. § 3477, restricting assignments
of claims against the government. Price v.
Forrest, 749
5. A claim against the United States for
moneys carried to the credit of the payee
of a check drawn by a disbursing officer in
pursuance of U. S. Rev. Stat. § 306, for
which, by § 308, the proper officer of the
treasury is required to give a warrant, does
not accrue at the time the check is issued,
or at the time when it may have been lost or
destroyed, so that the statute of limitations
(U. S. Rev. Stat { 1069) will begin to run,
bat it will accrue only when the promise
made by § 308 is broken, — as, by refusal of
an application for a warrant. United
States V. Wardwell, 360
6. The jurisdiction of the court of daims
of a claim under the act of Congress of June
16, 1880, for repayment of the excess of $1.25
per acre when lands for which the double
minimum price has been paid are found not
to be within the limits of a railroad land
grant, is not excluded b^ the provision of
that statute for an application to the Sec-
retary of the Treasury for a warrant, as
that IS not a special wad exclusive remedy,
but merely a right, for the denial of which
the statute does not provide any remedy.
Medbury v. United States, 779
7. The jurisdiction of the court of claims
under the act of Congress of 1891 over claims
for property taken or destroyed by Indians
does not extend to an allowance of o(mse-
1242
auential damages to proper^ not
destroyed merely because its ^
diminished by the destmetioB
property which was needed to
market. Price t. United States,
of other
h to
Ifll
8. Property is not
stroyed" within the meaning of the
Congress of March 8, 1885, respecttng
allowed by the Interior Departmeot
dian depredations, vriien its inhoreat,
sic value is in no manner disturbed,
its salable value is diminished in
of Indian depredations by the
the owner's only means ii
it to market.
act flf
for Ib^
id
id
14
9. A claim for Indian depredations, that
has been merely filed with the CowimiMiof f
of Indian affairs, is not within the jonadic-
tion of the court of claims under the act id
March 3, 1891, as a claim "examined aad al-
lowed by the Interior D^artment.'' Tcrke
T. United SUtes, TW
10. One who had declared his iatcBtMi ta
become a citizen prior to the passage ol tht
act of Coneress ol March 3, 1891, proridi^
for claims for Indian depredations, aad why
afterwards becomes a citizen, is not entitled
to make claim as a citizen under tkat stat-
ute. hL
A vaeancj in the office oi derk ol tht
circuit court of the United Stataa, which
has been held by the same person wW i»
clerk ol tlie circuit court of anneals lor tht
same circuit at a salary <rf $3,000, is nsc
created, ess propria vigort^ by the nnmaoa
of the act of Congress of July, 81, 1894, that
no person holding an office ol which tht
saUury amounts to $2,500 per oai
hold any other office, but the
may elect to retain office and
otaier. United States v. Haraha, M4
CLOUD OH Tins.
1. A decree for the return ol
money, or for costs, is not required In a sait
to determine title, on holding that a patcat
is void, when its invalidity does not appear
on its face, but is shown by extrinsic evioeaev.
and the party claiming under it has not
abandonea the controversy respecting tht
title. MorrU ▼. United States, M«
2. The final determination ol all the
rights in question contemplated by the art
of Congress ol 1886, provioing for the deter-
minati(m ol interests in the Potomac mrtr
flats, should include the determination «f
the value of wharres or warehouses owatd
by licensees and standing on land hslontiai
to the government. M
OODIOCL.
See Wnxs.
OOIXATERAIi 8EGURITT.
See Banes, 8;
Sbcubitt.
COLUSIOH.
See Damagcs, 6; SBimTro. 5.
171, 17S, 173, 174 V. t.
Plkdqs aifD Coixa
GOMBINATION— COMMBRCS.
COMBINATIOH.
See CoifSPiRAOT.
See Constitutional Law, 83.
See also Tazbs, 1, 2, 6.
1. A state cannot absolutely prohibit the
introduction within its borders of an article
of commerce which is not adulterated, and
which in its pure state is healthful, simply
because such an article in the course of its
manufacture may be adulterated by dishon-
est manufacturers lor the purposes of fraud
or illegal claims. Schollenberger v. Penn-
sylvania, 49
2. The fact that inspection or analysis of
the article imported is somewhat difficult
and burdensome will not justify a state in
totally excluding a pure and healthy food
product. Id.
3. A state statute prohibiting the sale of
oleomargarine as a substitute for butter, un-
less it is of a pink color, is unconstitutional
in respect to oleomargarine imported into
the state, since it necessitates its adultera-
tion and amounts in law to a prohibition of
its sale. Collins y. New Hampshire, 60
Snbjeotfl of eommeree.
4. What Congress taxes and recognizes as
a proper subject of commerce cannot be to-
tally excluded from any particular state
simply because the state may choose to de-
cide that for the purpose of preventing the
importation of an impure or adulterate ar-
ticle, it will not permit the introduction of
the pure and unadulterated article within its
borders upon any terms whatever. Schol-
lenberger y. Pennsylvania, 49
5. Oleomargarine, having been recognized
by the tuet ot Congress of 1886 as a proper
subject of taxation and of traffic and expor-
tation and importation, must be deemed a
proper eubjeot of commerce. Id.
Inspeotioii.
6. Inspection laws are valid when they
operate on a subject before it becomes an ar-
ticle of commerce, and also when, although
operating on artides brought from one state
into another, they provide for inspection in
the exercise of that power of self -protection
commonly called the police power. Patapsco
Guano Co. v. North Carolina Bd. of Agrl.
191
7. Interstate as well as foreign commerce
is subject to a state inspection law. Id.
Orlgliud paekmc^s*
8. An inoporter has the right to sell oleo-
margarine in original packages to consumers
as 1^1 as to whMeeale deaws, and the exer-
cise of this right will not be prevented by the
fact that the padcagee are suitable for retail
trade. Schollenberger v. Pennsyhranda, 49
9. An importer mav sell original pack-
ages by an agent as well as personally. Id.
What is interst«te oonuneroe.
See also Conspibaot, 1.
10. The selling on commission of an ar-
ticle at its destination, whidi has been sent
from another SFtate on consignment, \% not
interstate commerce. Hopkins v. United
States, 290
11. The business of sdling live stock on
commission is not made interstate commerce
by the fact that the dealers send solidtors
into other states to get consignments, and
also make advances of a part of the purchase
price of the cattle to be sold, by paying
drafte drawn by the shippers. Id.
12. The fact that a state line runs through
stock yards and that a lot of stock in the
yards may be partly in one state and partly
in the other, has no effect to make the busi-
ness of sdlinff stock interstate commerce.
Id
13. The business of agents in soliciting
consignments of cattle to commission mer-
chants in another state for sale is not inter-
state commerce. Id.
RegrolAtions.
14. The power of the state by appropriate
legislation to provide for the public conven-
ience stands upon the same ground precisdy
with respect to its effect on commerce as its
power, by appropriate legislation, to protect
the public health, the public morals, or the
public safety. Lake Shore & M. S. R. Co. v.
Ohio, Lawrence, 702
15. The reasonableness or unreasonable-
ness of a state enactment is always an ele-
ment in the general inquiry by the court
whether such legislation encroaches upon na-
tional authority, or is to be deemed a legiti-
mate exertion of the power of the state to
protect the public interests or promote pub^
tic convenience. Id.
16. The right of railroad companies under
U. S. Rev. Stat. § 6268, to carry freight and
property from one state to another, does not
exempt such companies, at least in the states
of their own creation, from such regiilations
as are not directed against inters&te com-
merce, but affect such commerce only ind-
dentally or remotely, and are designed rea-
sonably to subserve the convenience of the
public. Id.
17. A statute requiring every railroad
company to cause three regular passenger
trains each way, if so many are run dauy,
Sundays excepted, to stop at every place con-
taining over 3,000 inhabitants, long enou^
to receive and let off passengers, is not un-
constitutional as a regulation of commerce in
case of interstate trains. Id.
18. Restrictions on secnding prepaid tele-
grams or tdephone messages, nmde by a by-
Miw of a live-stock exchange, when these re-
strictions are merely for the regulation of
the business of the members, and not to affect
the business of the telegraph company, are
not void as regulations of interstate com-
merce. Hopkins v. United States, 290
19. A state statute making a common car-
rier liable if it receives property to be trans-
ferred from one place to another, for the neg-
ligence of other carriers in the transporta-
tion, is not invalid as to interstate transpor-
tation when it is construed to give the car-
rier the right to limit its liability to its own
line provided the limitation is embodied di-
1243
UOMMISSIONKB OF PATENTS — CONSTTTDTIONAL LaW.
rectly and in unambiguous terms in that
portion of the agreement which recites the
contract u> tran»port. Missouri, K. & T. R.
Co. ▼. McOann, 1093
OOBOaSSIOKER OF PATENTS*
See Constitutional Law, 3.
COMMISSIOHEBS.
See CONTBACTS, 4, 12.
COMMON CARRIERS.
See Carriers.
COlfPETITIOK.
See Conspiracy, 3, 6; Con8TITDTI«nal
Law, 33.
COBiPROMISE.
See Mines, 9.
COMPTROLLER.
See Banks, 10.
CONDITIOK.
See Real Pbopebtt.
CONFEDERATE ARCHIVES.
See Evidence, 12.
CONFEDERATE GOVERNMENT.
See Prize, 3.
CONFEDERATE MONEY.
See Guardian and Ward.
CONFISCATION.
1. The confiscation of all the property
and estate of the lord proprietary of Mary-
land by Md. act 17S1 included his private
rights, if he had any, in the Potomac river
ami ihe soil under it Morris t. United
States, 940
2. Md. act 1781, confiscating the property
and estate of the lord proprietary, was not
void as in derogation of common law and of
the Constitution of the state, or on the
ground that the power to pass such acts did
not inhere as a war power in the state. Id.
3. Relief from confiscation and restora-
tion of property confiscated by Md. act 1781
did not result from the treaty oif 1783 and
its adoption by Md. act 1787 as the law of
the state or from the treaty of 1794. Id.
4. Any equitable obligation of the United
States under its treaties to restore property
confiscated by Md. act 1781, or to make com-
rtsation therefor, is a matter for Congress
consider, but is not for the consideration
of the courts in determining the title to
property. Id.
CONFLICT OF LAWS.
See also Attachment, 4.
1. The question of the revivor of an ac-
tion for personal injuries is governed by the
laws of the state in which the action is
brought, rather than by that of the^ state in
which the injuries occurred. Baltimore ft
O. R. Co. V. Joy, 677
?. Exemption laws are part of the remedy
1244
and subject to the law of the
cago, R. I. & P. R. Co. T. Sturm,
CONGRESS.
See Appeal Aim Ekbok, 3;
Constitutional Law, 1.
U4i
I;
CONNECTING
See CoifiiEBOi, 19.
CONSPIRACT.
1. A combination of
chants at stodc yards, by wbidi they
to do business with those who are not
bers of their association, even if it is illeai.
is not subject to the act of Congreia of Jmj
2, 1890, to protect trade and commeree, amot
their business is not interstate oooBBcret.
Hopkins v. United States, tM
2. A rule of a live-stodc ez^iaage, tkat
its members shall not recognize any ynt4
trader who is not also a member of the ex-
change, is not in restraint of, or an mtxemfi
to monopolize, trade, where the exrhsag*
does not itself do any business, and th€ii »
nothing to prevent all yard traders fros he^
ing members of the exchange, and do one it
hindered from access to the yards or harisf
all their facilities, except tikat of selliag to
members of the exchange. Andenoa r.
United States, 9M
3. An agreement of railroad
which directly and effectually stifles
petition is in restraint of trade under the art
of Congress, notwithstanding tiie poeeibnitj
that a restraint of trade might also foDov
unrestricted competition, wbicfa miglit de-
stroy weaker roads and give the surrivor
power to raise lates. United States ▼. JoiM
Traffic Asso.
4. A contract or eombination beii
competing railroad companies, to establish
and maintain interstate rates and fares Sar
freight «tnd passengers, even though the ratei
and fares are reasonable, may be made illega]
by Congress in t^e exercise of ita rigbt t^
regulate commerce among the several atala*
5. The rigbt of a railroad oonpaay ia s
joint traffic association to deviate froB tht
rates prescribed, provided it acta oa a reaole-
tion of its boara of directors and senes •
copy thereof on the managers of the s— nris
tion, who, upon its receipt, are required to
"act promptly for the prptectioB of tbe par
ties hereto," does not reReve the a— oriatiaa
from condemnation as an illegal restraiat «f
competition, as the privilege of dertatiac
from Uie rates would be exercised iipoa aan
of a war of oompetitioii against tie wMt
association. U.
CONSTITU TiONAK TJLW.
See also AcnoN ob Suit. S; Arrftst
AND Erbob, 8; ComcKacB, 14« IS
Cbiminal Law, 1; Bxinknt Domat*.
1; Public iMPBOvncKim, I, S; Dn^
NAL Revenue, 2, S.
1. An act of Congress it not aaeoavtita-
tional because it supersedes a prior treat?
Stephens v. Cherokee Nation, IMt
171, 17tt 173, 174 V. S.
Constitutional Law.
2. Tba eonstitutionality ol acts of Con-
press authorizing the determination of citi-
Eenship in Indian tribes cannot be success-
fully assailed on the ground of the impair-
ment or destruction of vested rights, as the
lands and moneys of these tribes are public
and are not held in individual ownership.
Id.
3. The Commissioner of Patents in decid-
ing an interference case exercises judicial
functions, and therefore the provision of the
act of Congress of February 9, 1893, gi^ng
an appeal from his decisions to the court of
appeals of the District of Columbi-a is not
unconstitutional on the ground that it pro-
vides for the revision of an executiye act by
a judicial tribunal. United States, Bernar-
din, V. Duell, 659
Ex post faoto laws.
4. A statute permitting the admission in
evidence for the purposes of comparison with
a disputed handwriting of other writings
proved or admitted to be genuine, is not an
ex post facto law in respect to a prosecution
for a crime committed before the statute was
passed. Thompson v. Missouri, 204
Equal priTlleKes and immunities.
5. The constitutional guaranty of equal
privileges and immunities to citizens for-
bids only such legislation affecting citizens
of the respective states as will substantially
or practically put a citizen of one state in a
condition of alienage when he is within or
when he removes to another state, or when
assertine in another state the rights that
commonly appertain to those who are part
of the political community known as the peo-
ple of ttie United States, by and for whom
the government of the Union was ordained
and established. Blake v. McClung, 432
6. A corporation is not a citizen within
the meaning of the constitutional provision
as to privil^es and immunities of citizens.
Orient Ins. Os. v. Daggs, 552
7. A corporation of another state cannot
invoke the constitutional guaranty of equal
privileges and immunities of citizens in case
of a. discrimination against it in favor of the
residents of a state, m respect to participa-
tion in the assets of an insolvent corpora-
tion. Blake v. McClung, 432
8. A state statute giving to residents of
that state a priority over nonresidents in the
distribution of the assets of a foreign cor-
poration which, by filing its charter or ar-
ticles of association in the state, is deemed a
corporation of that state, is, so far as it dis-
criminates against citizens of other states,
in violation of U. S. Const, art. 4, giving
equal priyileges and immunities to the citi-
zens of the several states. Id.
Equal proteotion of the laws.
See also infra, 21, 26.
9. Equal protection of the laws is not de-
nied by a law or course of procedure which
would have been applied to any other person
in the state under similar circumstances and
conditions. Tinsley v. Anderson, 91
10. The equal protection of the laws is not
denied by a state statute aA)ridging the right
of trial by jury in the courts of a city with-
out making a similar provision for the eoun-
ties of the state. Chappell Chemical & F.
Co. y. Sulphur Mines Co. 520
11. Permitting attachment against a non-
resident without a bond, while requiring the
bond for attachment a^nst a resident, doe6
not constitute a denied of the equal protec-
tion of the laws or of due process of law.
Central Loan ft T. Co. t. Campbell Commis-
sion Co. 623
12. A corporation not created by the laws
of a state, or not doing business in that state
under conditions that subject it to process
from the courts of that state, is not within
the jurisdiction of that state, within the
meaning of the coiurtitutionel provision that
no state shall "deny to any person within iti
jurisdiction the equal protection of the
laws." Blake v. McClung, • 432
13. Railroad companies ai« not denied the
equal protection of the laws foy a statute pro-
viding that damages by fire caused by operat-
ing a railroad shall be prima facie evidence
0^ negligence on the part of the railroad com-
pany, and that the plaintiff in any aotion
therefor shall be allowed a reasonable at-
torney's fee, if he shall recover, since the
peculiar danger of fire from the running of
railroad trains justifies the classification of
railroads made by such statute. Atchison,
T. & S. F. R. Co. V. Matthews, 909
14. Railroad companies are not denied the
equal protection of the laws by a statute ap-
pliccibfe to them only, which requires the
payment without discount, to a discharged
employee, of wages earned at the time of dis-
charge, and provides as a penalty that in
case of nonpayment the wages shall continue
for a limited period. St. Louis, I. M. & S. R.
Co. V. Paul, 746
15. A fire insurance company is not de-
nied the equal protection of the laws by a
statute applicable to fire insurance only,
which makes the entire amount of the insur-
ance payaile in case of total loss, except as
reduced by depreciation of the property af-
ter it was insured. Orient Ins. Co. v. Daggs,
552
16. The equal protection of the laws is not
denied to a foreign corporation which manu-
factures goods in other states and sends them
into the state for sale, by a tax on the
amount of capital employed by it within the
state, because of an exemption of corpora-
tions which are wholly engaged in manu-
facturing within the state, when the statute
makes no discrimination between foreign and
domestic corporations. New York, Parke,
D. & Co.,- ▼. Roberts, 323
17. The exemption of tracts of land of less
than 1,000 acres from a provision for for-
feiture of larger tracts by failure for five
successive years to have them charged on the
land books with taxes duo thereon does not
constitute such a discrimination against the
owners of larger tracts as to denj them the
equal protection of the laws. King y. Mul-
lins, 214
Dne prooess of law.
See alM aupra, 11.
18. Due process of law requires corapens*'
V, S.,
Book 43.
79
1245
CONTBMFT; COHTBACTB.
lion to be made or secured to the owner of
private property when it is taken by a state,
or under its authority, for public uae. Nor-
wood V. Baker, 443
19. A corporation of another state is not
deprived of property without due process of
law by denying it equality with residents of
the state in the distribution of the assets of
an insolvent corporation. Blake v. Mc-
Clung, 432
80. An obstruction in a street causing
merdy consequential danrages to a person is
not within the constitutional provision
against depriving a person of property with-
out due process of law. Meyer v. Richmond,
374
21. An ordinance requiring the written
permission of the mayor or president of the
city council, or, In their absence, of a coun-
cilor, before any person shall move a build-
ins on the streets, is not unconstitutional as
a denial of the equal protection of the laws
or of due process of law. Wilson y. Eureka
City, 603
22. Railroad companies are not deprived
of property without due process of law by a
statute limiting their future contracts by
proyidinff that on the disoharffe of an em-
ployee all wages earned up to Uiat time must
be paid without discount. 8t. Louis, I. M.
A S. R. Ca y. Paul, 746
23. A statute compelling fire insurance
companies, in case of total loss, to pay the
amount for which the property was insured,
less depreciation between the time of issuing
the policy and the time of loss, does not de-
prive the insurer of property without due
process of law, as it leaves the parties to fix
the valuation of the pro])erty as they choose,
but makes their action in this matter con-
clusive. Orient Ins. Co. y. Daggs, 552
24. Formal notice as to the precise day
upon which water rates will be fixed by or-
dinance need not be given to a company
whose rates are thus fixed under the Cali-
fornia Constitution which gives notice of the
fact that ordinances will t^ passed annually
in Februaiy to take effect on the 1st o^ July
next and the statute requiring the company
to make an annual statement of its rate-pay-
ers, revenue, and expenditures at least thirty
days prior to the 15th of June. San Diego
Land & T. Co. y. National City, 1164
25. The reasonable value of property
rather than its original cost is to De taken
as the basis of calculation in determining
whether rates fixed under legislatiye author-
ity constitute a fair compensation, for tiie
use of the property so that the owners are
not deprived ci their propeity without due
process of law. Id.
26. A statute requiring thousand-mile
tidcets to be sold by railroad companies for
less than the ordinary rates of fare, for use
by the purchaser and his wife and children,
if named on the ticket, and making them
valid for two years after date of purchase,
is a violation of the constitutional rights of
the railroad companies to due process of law
and the equal protection of the laws. Lake
Shore A M. S. R. Co. y. Smith, 858
1246
necessary to
not
inquiry for
27. A jury trial is
?roce8s of law on an
insley y.' Anderson,
28. A commitment for eootcmpt
deprive a person of liberty witluHtt
ess of law, unless the commitment
fl
U.
29. A statute authorising an
be levied upon property for a local
ment, and imposing upon the lotowner, vfe
is a nonresident of the state, a _
bilily to pay such assessment, is' in
of the Federal Constitution, i
sessment amounts to a taking of yiviymiy
without due process of law. Dewej y. Dm
Moines,
30. A notice of a reassessment for a
improvement, allowing ten days only ktr
jections, is not insufficient for doe
of law because the time is so abort,-
cially in case of a pr(^>erty owner doing brnm-
ness in the city, and when there is Botiusf
to suggest any injustice. Bdlinghaoi Bay
A B. C. R. Co. y. New Whatcom, 4m
31. The stattutes and Constitotloo ef the
state must be looked at toeether for the pur-
pose of determining wheuier a system ol
taxation is in its essential featorea liwiiii
tent with due process of law, wbcre H is
claimed that the state Constitatkm
for a forfeiture of property for
of taxes without due process of
v. Mullins,
32. Due process of law in forf eking lanis
for nonpayment of taxes and failure to niact
them on the land books is furnished nnasr s
Constitution which nroyides tiiat soek fail-
ure for five years in succeesion skaU, I7
operation of the Constitution itself. loriBt
the title to the state, where tiie statnt— pre-
vide the taxpayer a reasonable opportnicj
to protect his lands in a Judicial proeeediK
of which he is entitled to notice, aiid in wUm
the court has authority to relieye bin, wftm
reasonable terms, from the forfeltmrs. Id.;
King y. Panther Lumber Co. tt7
Freedom of ecraitrmot.
33. The constitutional freedom «f
in tiie use and management of pnnwity
not include the right of railroad eoe
to combine as one consolidated and
ful association for the purpose of «fciiiM
competition among themsdyes, and o# tkm
keeping their rates and charges higfcer tkan
they might otherwise be under the laivs ef
competition. United States ▼. Joiaft Tnmt
Asso. tli
tl4
See OoifsnTDTXOHAi. Law, fr» tt, tt.
CONTRACra.
See also Appkal aitd Bnos, S7t Aam-
TBATION, 1; AlTDBllTrS; OilTira, I;
CoifSPiiaoT, 4; OoifgiiTUTiowAL Lav.
33; COUST8, 22; EquiTT, 1; IXJOVO*
Tioif, 4; Saltaqc; Usust; WUt aa»
PBOOB88, 1.
1. A statate exempting properiif WU If
a <dtj for public or goyemmental wmfmm
cannot constitute a contract, wfwa the
171, ITS, ITS, 1T4 V. &
COHTRTBUnON — CORPORATIOHS.
meaning of the Federal Constitution. Cov-
in^^n y. Kentucky, 679
2. A statute declaring that property
''shall be and remain forever exempt" from
taxes does not constitute a contract, when
H is passed subject to a general statute mak-
ing all statutes subject to amendment or re-
peal, unless a contrary intent be therein
plainly expressed. Id.
3. An irrevocable contract was not cre-
ated between Uie state and a bank accepting
the provisions of the Kentucky act of 1886,
kiK)wn as the Hewitt act, by which the prop-
erty of the bank was taxed at a higher rate
of state taxation than that existing for other
property, but was exempted from all other
taxation during its corporate existence, al-
though to this end the bank surrendered a
contract limitation as to taxes in its charter,
since the Hewitt act expressly provided that
it should be subject to a general law author-
izing the repeal of all grants to corporations.
Citizens' Sav. Bank v. Owensboro, 840
Louisville v. Bank of Louisville, 1039
4. The mere statement of the appoint-
ment of a referee, on the minutes of the com-
missioners of the District of Columbia, with-
out any si^^nature thereto by the commis-
sioners, is insufficient to constitute a con-
tract by them under the act of Congress of
June 11, 1878, chap. 180, § 5, requiring all
contracts to be copied in a book kept for that
purpose and to be signed by the commission-
ers. District of Columbia v. Bailey, 118
5. A guaranty of the nature of the soil un-
der the site of the proposed dock is not im-
plied in a contract to oonstruct for the Unit-
ed States a dock according to specifications,
within a designated time, for an agreed
price, upon an ^'available" site, to be selected
by the United Stat e=«, where the bidder knows
that a test of the soil has been made, but
does not require a warranty that the ground
selected shall be of a defined character.
Simpson v. United States, 482
6. A contract to pay an injured employee
$66 per month and furnish him fuel and a
garden, while he releases the employer from
all liability for personal injuries previously
sustained, must be construed to be an em-
ployment so long as he is disabled by reason
of such injuries, and, if they are permanent,
for life, when this is in Heu of a prior con-
tract to pay him $60 per month and give him
the rent of his house, as well as fuel and a
garden, for such work as he can do, while be-
fore this, after his injury, the employer had
agreed to pay him regular wages while dis-
abled and furnish him house rent, fuel, and
a garden. Pierce v. Tennessee Coal, I. ft R.
Co. 691
Illegality.
7. A disaffirmance of the contract is the
basis of the right to recover property trans-
ferred under aa illegal contract. Pullman's
Palace Car Co. y. Central Transp. Co. 108
8. The right to a recovery of property
transferred under an illegal contract is
founded upon the implied promise to return
or make compensation for it. Id.
9. An accounting ot tae profits of a
partnership will not be awarded where the
partnership was only a part of a contract of
which other portions were illegal. McMul-
len V. Hoffman, 1117
10. A secret agreement between bidders
for a public contract by which their bids are
put in after mutual consultation and agree-
ment and they are to share in any contract
obtained, is illegal in its nature and tend-
ency. Id.
11. A municipal contract for a water sup-
ply for a term of years is not void as an at-
tempt to barter away the police power of the
city council, so as to justify its ahroeation or
impairment, when the water supply is in-
nocuous, and the contract is carried out with
due regard to the good order of the ci^and
the health of its inhabitants. Walla Walla
V. Walla Walla Water Co. 841
12. An agreement by commissioners of a
sinking fund who form n corporation dis-
tinct from the city and the city attorney
with certain banks to the effect that a dis-
pute between them as to which no litigation
IS yet pending concerning liability for taxes
shall abide the result of a pending litigation
with another bank is not binding either upon
the commissioners or the city in the absence
of any grant of authority to the commis-
sioners or the city attorney to make such
contract. Stone y. Bank of Commerce, 1028
Fidelity Trust & S. V. Go. y. Louisville, 1034
Impairment.
13. The impairment of a municipal con-
tract for a water supply by estahU^ing its
own system of waterworks is not excluded
from the constitutional provision against
impairing the obligation of contracts, on the
ground that the city makes the contrex^t and
takes the action which impairs it in its pro-
prietary capacity, and not as an agency of
the state. Walla Walla y. Walla Walla
Water Co. 341
OONTRIBUTIOr
See Average.
OONTBIBUTOBY NEOUOENCB.
See Trial, 9.
OONVEBSIOH.
See Tboveb.
COPTBIOHT.
The serial publicati<m of a book in a
monthly magazine, prior to any steps taken
toward securing a copyright, is such a pub-
lication of the same, within the meaning of
the act of Congress of February 3, 1831, as to
vitiate a copyright of the whole book ob-
tained subsequently, but prior to the pub-
lication of the book m an entirety. Holmes
y. Hurst, 904
COBPOBATIOH8.
See also Banks; Bills and Notes, 1;
Bonds, 4, 6; Constitutional Law, 6-
8, 12-16, 19, 22, 23, 26; Contbacts. 3;
1247
Costs and Fees — Courts.
CoxTBTS, 8, 9; Damages, 1-4; Re-
CEiYEBS, 1; Taxes, 1-3, 8-12; Writ
Ain> Pboobss.
1. The rule tliat a oorporaition cannot be
estopped from asserting that it is not bound
by a corporate aot which is absolutely Toid
does not apply tx> contracts which are merely
voidable. Sioux City T. R. ft W. Oo. t.
Trust Co. 628
2. A corporation is not bound by the dec-
larations of its superintendent outside the
scope of his agency or authority to the preju-
dice of its property rights. Walrath y.
Champion Min. Oo. 170
3. To hold a corporation liable fbr t&e
torts of any of its agents the act in question
must be perfoimed m the course and within
the scope of the agent's employment in the
business of the principal. Washington Gas
Light Co. y. Lansden, 543
4. No trust in money paid as dividends
out of the capital of a corporation, when
there are no net profits to divide, attaches to
them in the hands of stockholders who re-
ceive the dividends in good faith. McDonald
v. Williams, 1022
6. A guaranty of bonds by a corporation
whidi could be lawfully made only by a pe-
tition of the majority of its stockholders,
which was not obtained, is enforceable by
bona fide holders of the. bonds but invalid as
to other holders. Louisville, N. A. & C. R.
Co. V. Louisville Trust Co. 1081
COSTS AND FEES.
See Appeal and Ebbob, 73; Cloud on
Title, 1; Peize, 4.
1. Judgment for costs cannot be rendered
aeainst the plaintiff in an action which has
abated. McCullough v. Virginia, 382
2. The coupon provision of Va. act March
30, 1871, providing that the coupons of re-
funding bonds shall be receivable for all
taxes, debts, dues, and demands due the
state, which shall be so expressed on tbeir
face, is not void. McCullough v. Virginia,
382
COUNTIES.
See Bonds, 1-3; CoNSTrnrnoNAL Law,
10.
COUPONS.
See CouBTS, 10, 11 ; Statutes, 4.
COUBT OF CUilMS.
See Appeal and Ebbob, 76.
COURTS.
See also Claims, 6, 7; Cohmebce, 15;
. Constitutional Law, 3; Distbict At-
TOBNEYS; Habeas Cobpus, 2; Pbivatb
Land Claims, 1 ; Reoeivebs ; Statutes,
1.
1. The cancelation of the guaranty of ne-
gotiable bonds which may otherwise pass in-
to the hands of bona fide purchasers and the
restraint of suits upon the guaranty be-
cause of facts not appearing upon its face,
can be had only in a court of equity. Louis-
ville, N. A. ft C. R. Co. V. Louisville Trust
Co. 1081
1248
DeloKatioa of poirer.
2. The issuance of an attadunest
affidavit stating grounds specified by
does not involve the diwchafgc of a j«£dBl
function, whidi can be exerdaed amtj ^
judges having comnuMi-law jurisdictiott, b^
involves merely the performanoe of a mam-
isterial duty, which may be ddmtted to
er officers. Oentnd Loan 4 T. Oou t.
bell Commission Co.
Belatioa to otker parts
meiit.
3. So long as the le^ title
the government all questions of right iboaU
be solved by appeal to the Land
and not to the courts. Brown v.
« ii
4. The court cannot interfi
ceedings in the land department by
ing an order of the Secretary of the Interiar,
whereby he revoked and annulled tbe a^pn«-
al given by his predecessor to a select ki« of
swamp land by a state, nor can It restraia
the officers of the Land Departmeat tnm
carrying such order of the Secretary into rf
feet and treating iht lands as publie laad^
to
far
Gatb-
5. Whether a general law can be
plicable to a special matter ^ in
which a special law is enacted is a
the decision of the legislature itself.
rie Nat. Bank v. Guthrie, 7W
6. The judiciary i^uld not iatoifafe
with rates established undor legislative aa-
t^ority unless the caae presents clearly aaf
beyond all doubt such a flagrant attack apoe
the rights of property under the guiae of re^
ulaUons as to compel the eourt to say that
the rates prescribed will neoeeearfly baae
the effect to deny just oompeneatioB for pri-
vate property taken for the public uaa Sea
Diego Land & T. Co. v. National Oity. IIM
Federal oonrta.
7. Jurisdiction of a suit once acquired by
a court of the United States by reason of the
requisite citisenehip is not lost by a ^laagc
in the ciUzenshi^ of nther party pendiaf
the suit. Louisville, N. A. ft C R. Oo. t
Louisville Trust Co. 1081
8. A corporation remains a dtiwn ef the
state by which it was originally created fer
the purposes of the jurisdiction of Federal
courts notwithstanding it may be also imtot-
porated in other states. li
9. The rights and liabilities of a eorpe-
ration which has been incorporated in ser
eral states, as a corporation of states oUter
than that which created it, cannot be adjvdi
cated in a suit in a Federal court ia vbkk
jurisdiction depends upon ito cititenebip ia
that state and would be ousted by rifiMs
ship in the other states. Id
10. Coupons of county bonds payable Is
bearer, being made by a eorporaUoa. art
within the exception made br the act of C^e-
gress of August IS, 1888, from tbe ipeacral
rule against action by an asaii
the assignor could sue. Lake Cooait;
Dudley,
11. One who is not the real uwaei of
171, 172, 173, 174 V. a
GOYSBTURE— Damages.
pons, but to whom the apparent tkle is
transferred merely to give jurisdiction to a
ITederal court on the ground of diverse citi-
zeofihip, cannot maintain the action. Id.
12. Certificaies of indebtedness issued by
a city and payable to bearer, being made by
a corporation, fdthough not negotiable under
the law merchant, are within the exception
of the act of Congress of August 13, 188S,
from the general rule against actions in Fed-
eral courts by an assignee unless the assign-
or could see. New Orleaiis v, Quinlan, o64
13. The right given by state statute to
have a contract canceled for usury without
repaying the money loaned can be enforced
in a Federal court. Missouri, K. & T. Trust
Co. V. Krumseig, 474
14. An allegation that the annexation of
territory to a city in violation of the state
Gonetitution, but which is upheld by the
state ooui'ts after long acquiescence, on the
principle of estoppel, where the only question
IS aa to the valiait^ of the city organization,
constitutes a deprivation of the property of
inhabitants, of the territory without due
process of law, and therefore in violation of
the Federal Constitution, — is so palpably
ui^ounded that it constitutes not even a col-
or for the jurisdiction of a Federal court.
McCain v. Des Moines, 936
16. An action against a receiver of a na-
tional bank ap]>ointed by the comptroller of
the currency is one arising under the laws
of the United States and within the juris-
diction of the Federal court. Auten v.
United States Nat. Bank, 920
Conlliotins jnrisdiotioii.
See also Injunction, 1.
16. An injunction against a criminal pros-
ecution in a state court under a valid state
law, of a bank officer for embezzlement, can-
not be granted by a Federal court because it
had previously obtained jurisdiction in
equity cases in which a receiver of the bank
had been appointed and the civil liaibility of
such officer was in litigation. Harkraderv.
Wadley, 399
17. The rights and disputes of riparian
owners as to water which has found its way
into the unimproved bed of a stream must
be determined by the state courts, although
they cannot interfere with the control of the
surplus water power incidentally created by
a dam and canal owned and operated by the
United States. Green Bay & M. Canal Co.
V. Patten Paper Co. 668
Rules of deoisioB.
18. The public policy of a state in respect
to contracts made within the state and
sought to be enforced therein is obligatory
on the Federal courts, whether acting in
equity or at law. Missouri, K. & T. Trust
Co. V. Krumseig, 474
19. A state statute will be construed by
the Supreme Court of the United States as
it is settled by the court of last resort of the
state. Sioux City T. R. & W. Co. y. Trust
Co. 628
Missouri, K. & T. R. Go. v. McCann, 1093
20. The decision of a state court against
the validity of a statute wbicih l« the founda-
tion of a contract all^^ to be impaired by
subsequent statutes is not binding on the
Federal courts. McCullough v. Virginia,
382
21. The latest decision of the highest court
of a state sustaining the validity of county
bonds under state laws and Constitution, al-
though it is a departure from earlier state
decisions rendered after a decision of a Fed-
eral court based upon them, will be followed
by the Supreme Court of the United States
reviewing a Federal decision. Wade v.
Travis County, 1060
22. In determining the existence of a con-
tract which is alleg^^ to be impaired the Su-
preme Court of the United States will form
an independent judgment, and is not bound
by a decision of that question by a state court
although the contract is alleged to be cre-
ated by a state statute. Citizens' Sav. Bank
V. Owensboro, 840
23. Decisions of Maryland courts since the
cession of the District of Columbia, giving to
statutes a construction at variance with that
prevailing at the time of the cession, do not
control in construing those statutes as the
laws of the District of Columbia. Morris v.
United States. 946
C6VERTURE.
See Limitation of Actions, 1.
ORIMINAI. UiW.
See also Constitutional Law, 4;
CounTs, 16; Extradition; Habkab
Corpus; Injunction, 1.
1. The constitutional right of an accused
to be confronted with witnesses against him
is violated by the provision of the aot of Con-
gress of March 3, 1875, which makes a judg-
ment of oonviddon of the principal felons for
embezzling, stealiTig, or purloining property
of the United Stat^ evidence in a prosecu-
tion against a receiver of the property, of
the fact that such property has been em-
bezzled, stolen, or purloined. Kirby v.
United States, 890
2. A verdict of guilty "without capital
punishment" may be rendered in a murder
case under the aot of Congress of January
15, 1897, chap. 29, even if there are no mit-
igating or palliating circumstanoee. Wins-
ton V. United States, 456
CROSS bux.
See Pleading, 1.
CROSS-EXABCIKATION.
See Witnesses.
M':.
OUBATIVE AOT.
Sec Bonds, 1.
CUSTOMS.
See Duties.
DAMAGES.
See also Action or Suit, 1.
1. The market value of the stock of a
corporation is not a proper measure of the
1249
Dams — District Attorketb.
value of iU property transferred by an ultra
vires lease, and wmch must be returned or
compensation therefor made. Pullman's
Palace Car Co. v. Central Transp. Co. 108
2. Tht value of contracU with third par-
ties, or of patents owned by a company
which transfers property under an ultra
vires lease, and which have expired when the
obligsution to restore the property or make
compensation therefor is enforced, cannot
be considered in determining the value of
such property, when payment for the use of
such patents and contracts for the time thc^
were used was included in the rent paid. Id.
3. The earnings of property transferred
under an ultra vires lease cannot be included
in the compensation to be paid in lieu of the
property on disaffirmance of the contract.
Id.
4. The loss sustained i^ the lessor in an
ultra vires lease on account of the breaking
up of its business and the loss of contracts
with third persons when the leaee is repudi-
ated cannot be recovered as part of its re-
lief, on recovering compensation for the prop-
erty transferred and not restored. Id.
5. One half tiie amount of damage to car-
go of a sunken vessel may be recouped against
one half the award for the loss of the vessel
itself by collision, where both vessels were in
fault, notwithstanding the Barter act, re-
lieving a vessel from responsibility to its
own cargo for loss or damage caused by fault
of navigation, since that aoea not lessen its
liability to the other vessel in case of col-
lision by mutual fault, until the amount of
liability has been fixed upon the principle of
an equal division of danngee. The Chatta-
hoochee, 801
DAMS.
See also Canals ; Coubts, 17.
A riparian owner on a stream on
which works of public improvement have
been constructed by state and Federal au-
thority to improve navigation, whereby an
incidental water power is created, is not en-
titled to have all the water flow past his
land, so as to prevent the diversion of the
surplus water power by grantees of the gov-
ermnent, where he was given reasonable op-
portunity te obtein compensation for dam-
ages sustained by the construction of the im-
?rov6ment. Green Bay A, M. Canal Co. v.
atten Paper Co. 864
DECEDEKTS' ESTATES.
See Descent and Distbtbxttion.
t
I
l>ECOT.
See PosTOFnoB.
1>E FACTO.
See HATOAfl Corpus, 1.
:defauiiT.
, See Action ob Suit, 4.
1>EFINITIOHS.
See Cabbiers, 5; Claims. 8; Ta
1250
DEI.EGATIOH OF
See CouBTS, 2.
DEFUTY.
See Re w ABO, 1, 2.
DESCENT AND DI8TBIBUTIOH.
A release by the mother of iU^toHti
children, in her own right and for them, at
all claims against the father, withoat t^
sanction of any tribunal, will not cat off a
right of the diildren to inherit from. Ua.
Nae^lin v. De Cordoba^ SIS
DESERT IJkND ACT.
See Public Lands^ 10.
DETONATORS.
See Shitpino, 3.
See Intebnal Rbvehue, t.
.12.
See LiiciTATiON or AonoHS, L
DISCONTHrUAlfCE.
See also Appeal and Ebka, 60.
1. L^gal prejudice to authorise a deaial
of a motion to discontinue must be othmr
than the mere prospect of future Utigatioa.
Pullman's Palace Car Co. v. Central Traaii^
Co. 1«
2. Leave to discontinue a suit allegiag ■■
election to terminate a lease bv virtoe o? its
provisions, and also alleging that it vaa «i-
tra vires, and oflterinje; to do what is propv
and fair under the circumstances, asJnng ts
have the court decree just what coamaa^
tion or relief should be made, is properly de>
nied after the lease has been held votd is an-
other case, and an injunction granted againrt
recovering rent, and testimony taken relai-
ine to the subject-matter of Uie biU, w^ik
defendant asks leave to file a croaa bill to
avail itself of the tenders made in tlie orif-
inal bill. Id.
DISCOUNT.
See Bills and Notes, 4-0.
DISMISSAIfc
Of Appeal, tee Appeal and
See also Judgment. 8, h.
VL
See iNDIOTMKNT, t.
DISTRICT ATTOBNETS.
Extra compensation cannot bt
to a district attorney for services la
about a proceeding in a Federal oonrt for t^
condemnation of landi on behalf of ikm
United Stetes, as audi a proceedinir is ta-
duded in dvil acUont, whidi by U. 8. Bcv.
Stat. 9 771, it is his duty to pr oeecota, ^mi
attendance thereon is *Vmi tlie mniaess of tW
United States," withia tiie meanly of |tt4
United States t. Johnson, 791
171, ITS, ITS, 1T4 V. %.
District of Colxjmbia— Duties.
DISTRICT OF COLUMBIA.
See also Boundaries, 2 ; Contracts, 4 ;
Courts, 23; Markets; Waters, 7.
The governor, either with or without
tlie sanction of the board of public works of
the District of Columbia, had no authority
under the organic act of February 21, 1871,
to incur a pecuniary* lisubility with respect
to the improyement of nMurket grounds, the
erection of market buildings, axra the opera-
tion of the market, which were within the
province of the legislative assembly. Wash-
ington Market Co. v. District of Columbia,
478
DIVIDENDS.
See Banbls, 2-4, 7; CoRPORATion% 4;
Equity, 2.
DOCK.
See Contracts, 5*
DRAWBACK.
See Duties, 3.
DUE PROCESS OF LAW.
See Constitutional Law, 18-32.
DUTIES.
See also Indictment, 4.
1. Duties imposed under the tariff act of
July 24, 1897. H 387, sched. D, imposing spe-
cific duties of various amounts, but provid-
ing that in no case shall the goods pay less
than 50 per cent ad valorem, are "regulated
in any manner by the value thereof/' within
the meaning of the provision imposing addi-
tional duties for any excess of the appraised
value over the value declared in the entr^.
Hoeninghaus v. United States, 576
2. The additional duty of 1 per cent of
the total appraised value of merchandise for
each 1 per centum that such appraised value
exceeds the value declared in the entry ac-
crues under the act of June 10, 1890, § 7, as
amended by the act of July 24, 1897, 9 32,
where th^re is such an excess of value in case
of goods on which the duties are in any man-
ner regulated by the value, although, as act^
uall^ assessed, the duties are specified and
the importers have not benefited by the un-
dervaluation. Id.
3. Boxes made in tiie United States from
shocks imported from Canada are not wholly
manufactured in the United States, so as to
ffive a right to a drawback under the United
States treasury regulations of 1884, art. 96(3,
when all that is done in this country is to
manufacture the nails and nail the box
shooks together, and incidentally l^im off
any projections in case the boards had not
been cut exactly of the ri^ht length, and the
cost of the labor in the United States repre-
sents only one tenth of the value of the
t»oxeB. Tide Water Oil Co. v. United States,
139
4. No separate drawback for nails used in
the manufacture of boxes can be claimed un-
der the United States treasury regulations
of 1884, art. 966, on the ground that the
flails were manufactured in the United
States, when no drawback can be had on the
Iwxes. Id.
5. Sawed boards and plank planed on one
side, tong^ed and grooved, are to be classi-
fied as dressed luniber and admitted free of
duty under f 676 of the tariff act of Auguat
28, 1894, and are not dutiable under If 181 as
furniture or manufactures of wood. United
States V. Dudley, 1129
6. The separation of American-made
bags, which are free from duty, from foreign-
made bags imported in the same bales, should
be made by the importer if he wishes to ob-
tain the exemptions on the former, and he
cannot require the separation to be made by
the government. United States v. Ranlett,
393
7. The prima facie showing that ba^s
imported are of American manufacture is
overturned when it appears that foreign
bags in large numbers are included in the
same bales with those of American make. Id.
8. Natural gas imported for use as fuel
and for illuminating purposes is free from
dutv under f 496 (p. 604) of the tariff act
of October 1, 1890, as crude bitumen, or un-
der f 651 (p. 607) aa crude mineral. United
States V. Buffalo Natural Gas Fuel Co. 469
9. The word "diamonds," followed by a
semicolon, at the head of f 467 in the free
list of the tariff act of 1894, does not put all
diamonds on the free list, but that word is
plainly desired as a heading, and the semi-
colon following it should be read as though
a colon. Keck v. United States, 605
Appraisement.
10. An appraisement is not invalid as
against the importer because the examina-
tion was not made in accordance with U. S.
Rev. Stat. 9 2901, which is intended for the
benefit of the goyernment. United States v.
Ranlett, 393
11. The judgment of an appraiser after
actual examination, that imported goods are
not as described, but fall within a different
classification, must stand as against the im-
porter, unless reversed on reappraisement,
or by the board of general appraisers on
protest filed. Id.
SmnKKlins.
12. The word "smu|g;gling" as used in U.
S. Rev. Stat. 9 2865, is not extended beyond
the common-law meaning by reason of the
? revision in the anti-moiety act of June 22,
874, respecting the rewards of informers,
that, for the purpose of that act, smuggling
shall include attempts to bring dutiable ar-
ticles into the United States without pass-
ing through the customs house or submitting
them to uie revenue officers. Keck v. Uni^
ed States, 505
13. The offense of smuggling or clandes-
tine introduction of soo<u into the United
States in violation of U. S. Rev. Stat. § 2865,
does not include mere attempts to commit
the same, and is not oommJtted by the con-
cealment of goods on a ship entering the
waters of the United States, with intent to
smuggle them, where the goods are not taken
through the lines of cust<nns authorities, but
are delivered to the customs officer on board
the vessel itself at the time when or before
1251
Basembntb—Eyidbncb.
the obligation to make entry and pay the
duties arises. Id.
See HiOHWATS.
EJECTMEHT.
1. Plaintiff in ejectment eaB reeoyer only
on the strength of hit own title. King v.
Mulline. 214
2. One plaintiff cannot reoover in a joint
action of ejectment if the coplaintiffs can-
not. Davis V. Coblens, 1147
ELECTIOH OF REMEDIES.
See Action or Suit, 1.
EMIMENT DOMAIN.
See also Ck>NSTiTunoNAL Law, 18;
Public Impbovements, 1, 2.
1. The taxation by a city, of a bridge and
its appurtenances within the fixed boundary
between low-water mark on the two sides of
the Ohio river, is not a taking of private
property for public use without just com-
pensation in violation of the Constitution of
the United States, merely because that part
of the bridge which is over the river is not
as much or as distinctly benefited by the pol-
ice protection afforded by the city as the
part which is above low- water mark. Hen-
derson Bridge Co. v. Henderson, 823
2. Owners of expensive wharves and
warehouses erected and maintained under ex-
press or implied licenses from city authori-
ties on the water front along the Potomac
river in Washington, D. C, are not to be
treated as trespassers in taking the premises
for a government improvement, but are en-
titled to compensation for the value of their
private interests in the structures. Morris
▼. United States, 046
EQUAL PROTECTION OF THE
LAWS.
See Constitutional Law, 9-17.
EQUITY.
See also Cloud on Title; Courts, 1;
Injunction; Usuby, 1, 2.
1. A court of equity will not release an
individual from the operation of the statute
of frauds, which requires that interest in
lands be created by an instrument in writ-
ing, and impose an equitable lien upon land
In favor of one who makes improvements
tiiereon, knowing that the title is in another,
—•especially where the money is expended
under an express understanding wit^ refer-
ence thereto, had with liie owner,— hut will
leave the party to the remedies, if any, which
a court of law provides. Washington Mar-
ket Co. ▼. District of Columbia, 478
2. A controversy as to the basis on which
dividends should be declared by a receiver of
a national bank is within the jurisdiction of
equity as the administration of a trust. Mer-
rill V. National Bank, 640
3. A conveyance from trustees which
nujrht to have been made will be considered
1252
by a court of jrauity as having bees
Morris v. United States,
4. The legal remedy of the
municipal warrants, which, if TmUd,
causes of action, precludes a suit bj
equity for specific performanee of
tract under which im warrants
and for an injunction agsinst the
ment of ordinuicss attempting to
contract Baton Waterworks Cck ▼
repeml the
See Appeal amd
See also BAinu, 6;
COUBTS, 14; Lahdlobd, 1.
The payment of mon^ not
the amount legally due for taxas to
fioers entitled to receive taxes under
legal agreement that a dispute as
amount of taxes due shall abide the
of a pending litigation cannot
equitable estoppd against asserting
validity of the contract and the legal
of the city imposing the tax. Stone t
of Commerce,
1;
an 1^
to the
of tto
taken of tM
EVIDENCE.
See also Appeal and Ebbok, 66: Con-
stitutional Law, 13; Cbiminal Lav,
1 ; Tbial, 6 ; Witnbsses.
Judicial notiee.
1. The report of the auditor of a stats k
not a document of which the Supreme Ceert
of the United States can take judicial noCifli
on writ of error to the state eoart. Ftnt
Nat. Bsnk y. Chapman,
2. Judicial notice may be taken
common and ordinary way of doing
in exchanges or boards of trade thi
t^e count^. Nichol v. Ames,
3. Judicial notice may be
fact that semicircular hand holds
in the front of book shelves have beta
in familiar use. Office Specialty Mig. Co. r
Fenton MeUllic Mfg. Co. Itfl
4. It is a matter of common
that banks and other oorporatioos
in many instances to do their renlar and sr^
dinary business for long periods thoo^ is
a condition of actual insolvencj as dx«c4o«iil
by subsequent events. McDonald t.
6al Nat Bank,
6. It is a fact of common knowled
foreclosures of railroad mortgages
arilv mean, not the destruction of ail ii
of the mortgaffor and a transfer to the
gagee alone of the full title^ Intt that
proceedings are carried on in the
of all parties who have any ri^ghts is
mortgaged property whether as
creditor, or mortgagor. Looisrille Tr«A C^
▼. Louisville, N. A. ft C. R. Co. UW
6. Judicial notice of the point at v^k^
the navigabilitr of the river ceases caaaoi te
taken unless that is a matter of ftmml
knowledge or one that ought to be mmraBy
known. United States v. Rio Orange I^a
k I. Co. im
171, 172, 173, 174 U.»
114
tte
L\CE1'T10N8 — EXPLOSIO.N.
PresnmptionB and burden of proof.
7. The presumption of the innooence of an
accused attends him throughout the trial
and has relation to every iSct that must be
aetablished in order to prove his guilt be-
yond reasonable doubt. Kirby y. United
States, 800
8. The burden of proving undue influence
in a gift from an aged woman to daughtei's
with whom she lives alternately rests upon
the person alleging it. Towson v. Moore,
697
9. A presumptive grant of the right to
wharves and water fronts does not arise by
loDg-eontinued use of them, when the lands
and water fronts are owned by the govern-
ment, in trust for public purposes, and are
withheld from sale by the Land Department,
without any renunciation of the exercise of
jurisdiction and control over them. Morris
V. United States, 940
10. It cannot be assumed that an officer
will neglect to discharge a duty expressly
impressed upon him by law, or that courts
are without power to compel him to act,
where this is necessary for the protection of
ttM rights of an individual. King v. Mul-
lins, 214
11. Authority of Mexican officials to make
a grant cannot be presumed because they
made it, for the purpose of determining the
validity of the grant, under the act of Con-
gress which provides for confirmation of
grants only when made by persons vested
with authority, or when subsequently rati-
fied. Ely V. United States, 142
Doonmentary.
12. Certified copies from the Confederate
Archives Office of official communications be-
tween high civil and military officers of the
Confederate States are competent evidence
to show that the Confederate authorities ob-
tained possession of a vessel by purchase and
not by capture or by other forcible and com-
Sulsory appropriation. Oakes v. United
tates, 1169
Parol as to writinKS.
13. A written contract which appears to
be legal on its face may be proved to be only
part of a contract the other portions of which
were illegal. McMullen v. Hoffman, 1117
14. Evidence that a defendant in a state
court was not a citizen or resident of the
state, and gave no authority for an appear-
ance by an attorney, is admissible to contra-
dict recitals in the judgment, when the ju-
risdiction is attacked in a Federal court.
Cooper V. Newell, 803
Declarations.
15. Declarations by persons who have
made a deed of trust are admissible against
them, — ^at least in an action attacking it as
a fraud upon creditors in which there is
other evidence of a common purpose of the
vendors and vendee to defraud, when the
rights of the secured creditors are carefully
flrnarded in the charge to the jury. Sonnen-
theil V. Christian ^fi)erlein Brew. Co. 492
ftelsTanoy.
16. Any document on file in the depart-
ments of the government or in the courts.
which, by the act of Congress of March 3,
1891, is made competent evidence on the
merits for claims for Indian depredations, is
competent on the issue of amity, as amity
is an essential prerequisite to recovery. Col-
lier V. United States, 621
17. Evidence of the wealth of one of the
defendants in a libel case, offered as bearing
on the allowance of exemplary damages, is
inadmissible, as the verdict must be against
all the defendants and may be collected from
any of them. Washington Gaslight Co. v.
Lansden, 543
18. Testimony of persons named by an ac-
cused as his enemies, that they have no ill
will af;ainst him, is not collateral to the
main issue, or a contradiction of what the
prosecution has brought out, where the ac-
cused on his direct eKamination said enemies
had placed in his pocket stolen money that
was found there, and their names were
brought out on cross-examination. Scott y.
United States, 471
Sufficiency.
19. The presumption against a vessel
which is seized for attempting to enter a
blockaded port which arises from the conceal-
ment and destruction of bills of health nam-
ing that port as tiie destination of the vessel
is not conclusive where there is evidence that
the concealment was due to forgetfulness and
the destruction was made on the supposition
that the papers were worthless. The Olinde
Rodrigues, 1065
20. The evidence of evil intent must be
clear and convincing before a merchant ship
I belonging to citizens of a friendly nation wiU
< be condemned as prize for breach of blockade.
Id.
21. A mere recital in a contract cannot be
taken as sufficient to disprove the averment
in an answer, when a case is heard upon
pleadings, without any evidence except con-
tracts set forth in the complaint. Nugent
V. Arizona Improv. Co. 721
22. An intention to furnish information
for the publication of a libel cannot be in-
ferred by a mere guess from the fact that a
memorandum of figures which are used for
that purpose is furnished without knowing
what was wanted of it. Washington Gas-
light Co. V. Lansden, 643
EXCEPTIONS.
On Appeal, see Appeal and Ebbob.
EXCHANGE.
See Evidence, 2; Internal Revenitb,
2, 3.
EXECUTIVE DEPARTBfENT.
See Injunction, 3.
EXECUTORS AND ADMINISTRA-
TORS.
See Appeal and Ebror, 31; Claims, 1.
EXEMPTION.
See Conflict of Laws, 2.
EXPLOSION.
See Shipping, 2, 3.
1253
Basements — Eyidbncb.
the obligation to make entry and pay the
duties arises. Id.
See H10HWAT8.
EJECTMEHT.
1. Plaintiff in ejectment eaii reeover only
on the strength of his own title. King v.
MuUine. 214
2. One plaintiff cannot recover in a joint
action of ejectment if the coplaintiffs can-
not. Davis V. Coblens, 1147
ELECTIOH OF REMEDIES.
See Action or Suit, 1.
EMIlfENT DOMAIN.
See also Ck>N8TiTnTioNAL Law, 18;
Public Impbovements, 1, 2.
1. The taxation by a city, of a bridge and
its appurtenances within the fixed boundary
between low- water mark on the two sides of
the Ohio river, is not a taking of private
property for public use without just com-
pensation in violation of the Constitution of
the United States, merely because that part
of the bridge which is over the river is not
as much or as distinctly benefited by the pol-
ice protection afforded by the city as the
part which is above low- water mark. Hen-
derson Bridge Co. v. Henderson, 823
2. Owners of expensive wharves and
warehouses erected and maintained under ex-
press or implied licenses from city authori-
ties on the water front along the Potomac
river in Washington, D. C, are not to be
treated as trespasser's in taking the premises
for a government improvement, but are en-
titled to compensation for the value of their
private interests in the structures. Morris
▼. United SUtes, 046
EQUAL PROTECTION OF
LAWS.
See Constitutional Law, 9-17.
EQUITT.
See also Cloud on Title; Coubts, 1;
Injunction; Usuby, 1, 2.
1. A court of equity will not release an
individual from the operation of the statute
of frauds, which requires that interest in
lands be created by an instrument in writ-
ing, and impose an equitable lien upon land
In favor of one who makes improvements
thereon, knowing that the title is in another,
—•especially where the money is expended
under an express understanding with refer-
ence thereto, had with liie owner,— 4>ut will
leave the party to the remedies, if any, which
a court of law provides. Washington Mar-
ket Co. V. District of Columbia, 478
2. A controversy as to the basis on which
dividends should be declared by a receiver of
a national bank is within the jurisdiction of
equity as the administration of a trust. Mer-
rfll V. National Bank, 640
3. A conveyance from trustees whioh
;>usrht to have been made will be considered
1252
by a court of eauity as having been bu ic.
Morris v. United States, Mi
4. The legal remedy of the hoUer el
municipal warrants, which, if Tmlid,
causes of action, precludes a suit bj him
equity for specific performanee of the e
tract under which uie warrant* we
and for an injunction agsfntt the
ment of ordinuices attempting to icpcal
contract Baton W^tomoika Go. ▼. Batoa,
the
See Appeal amd
See also BAinu, 6;
CoUBTS, 14; LaHDLOBD, 1.
The payment of money not
the amount legally due for taxos to
fioers entitled to receive taxes under
legal agreement that a dispute as
amount of taxes due shall abide tibe
of a pending litigation cannot
equitable estoppS against assertiiig
validity of the contract and the legal
of the city imposing the tax. Stone t
of Commerce,
Is
as 1^
to the
rights
109
EVIDENCE.
See also Appeal akd Ebbok, 66; Oos-
strruTioNAL Law, 13; Cbhunal Lav.
1; Tbial, 6; Witnesses.
Judicial notiee.
1. The report of the aaditor ol a state b
not a document of which the Supreme Cooit
of the United States can take judicial notica
on writ of error to the state court. Fir«l
Nat. Bank ▼. Chapman, 66i
2. Judicial notice may be taken ol the
common and ordinary way of doing busiscM
in exchanges or boards of trade throughout
the count^. Nichol v. Ames, 786
3. Judicial notice may be taken of the
fact that semicircular hand holds or rccejws
in the front of book shelves have been loaf
in familiar use. Office Specialty Mig. Co. r.
Fenton Metallic Mfg. Co. 1056
4. It is a matter of common knowMfe
that banks and other oorporatioos cootiavs
in many instances to do their regular aad or>
dinary business for long periods though ta
a condition of actual insolvency as di«lo*ed
by subsequent events. McDonald t. Cheai-
6aX Nat Bank, 1106
5. It is a fact of common knowledge that
foreclosures of railroad mortgages ordia>
arily mean, not the destruction of all interest
of the mortgagor and a transfer to the mort-
gagee alone of the full title^ but that siieh
proceedings are carried on in the inteneta
of all parties who have any rights in the
mortgaged property whether as mortgagti^
creditor, or mortgagor. Looisrillt Trust C«l
▼. Louisville, N. A. ft C. R. Co. 1136
6. Judicial notice of the point at whkh
the navigabilitT of the river ceases cannot W
taken unless that is a matter of iteoerml
knowledge or one that ought to he generally
known. United States v. Rio Grande Pum
ftLCo. um
171, 172, 17S. 174 U.S.
L\cEi'TioN8 — Explosion .
PresnmptionB and burden of proof.
7. The presiunption of the innooence of an
accused attends him throughout the trial
and has relation to eyery iSct that must be
established in order to prove his guilt be-
yond reasonable doubt. Kirby y. United
States, 800
8. The burden of preying undue influence
in a gift from an aged woman to daughtei's
with whom she lives alternately rests upon
the person alleging it. Towson v. Moore,
507
9. A presumptive grant of the right to
wharves and water fronts does not arise by
loDff-oontinued use of them, when the lands
and water fronts are owned by the goveru-
ment, in trust for public purposes, and are
withheld from sale by the Land Department,
without any renunciation of the exercise of
jurisdiction and control over them. Morris
V. United States, 946
10. It cannot be assumed that an officer
will neglect to discharge a duty expressly
impressed upon him by law, or that courts
are without power to compel him to act,
where this is necessary for the protection of
the rights of an individual. King v. Mul-
lins, 214
11. Authority of Mexican officials to make
a grant cannot be presumed because they
made it, for the purpose of determining the
validity of the grant, under the act of Con-
gress which provides for confirmation of
grants only when made by persons vested
with author!^, or when subsequently rati-
fied. Ely V. United States, 142
D ocnmentary.
12. Certified copies from the Confederate
Archives Office of official communications be-
tween high civil and military officers of the
Confederate States are competent evidence
to show that the Confederate authorities ob-
tained possession of a vessel by purchase and
not by capture or by other forcible and com-
gulsory appropriation. Oakes y. United
tates, 1160
Parol as to writinKS.
13. A written contract which appears to
be legal on its face may be proved to be only
part of a contract the other portions of which
were illegal. McMullen v. Hoffman, 1117
14. Evidence that a defendant in a state
court was not a citizen or resident of the
state, and gave no authority for an appear-
ance by an attorney, is admissible to contra-
dict recitals in the judgment, when the ju-
risdiction is attacked in a Federal court.
Cooper V. Newell, 803
Declarations.
15. Declarations by persons who have
made a deed of trust are admissible against
them, — at least in an action attacking it as
a fraud upon creditors in which there is
other evidence of a common purpose of the
vendors and vendee to defraud, when the
rights of the secured creditors are carefully
guarded in the charge to the jury. Sonnen-
theil V. Christian Ik^rlein Brew. Co. 402
Releyanoy.
16. Any document on file in the depart-
ments of the government or in the courts.
which, by the act of Congress of March 3,
1891, is made competent evidence on the
merits for claims for Indian depredations, is
competent on the issue of amity, as amity
is an essential prerequisite to recovery. Col-
lier V. United States, 621
17. Evidence of the wealth of one of the
defendants in a libel case, offered as bearing
on the allowance of exemplary damages, is
inadmissible, as the verdict must be against
all the defendants and may be collected from
any of them. Washington Gaslight Co. v.
Lansden, 543
18. Testimony of persons named by an ac-
cused as his enemies, that they have no ill
will af;ainst him, is not collateral to the
main issue, or a contradiction of what the
prosecution has brought out, where the ac-
cused on his direct examination said enemies
had placed in his pocket stolen money that
was found there, and their names were
brought out on cross-examination. Scott y.
United States, 471
Sufficiency.
10. The presumption against a yessel
which is seized for attempting to enter a
blockaded port which arises from the conceal-
ment and destruction of bills of health nam-
ing that port as the destination of the vessel
is not conclusive where there is evidence that
the concealment was due to forgetfulness and
the destruction was made on the supposition
that the papers were worthless. The Olinde
Rodrigues, 1065
20. The evidence of evil intent must be
clear and convincing before a merchant ship
belonging to citizens of a friendly nation wiU
be condemned as prize for breach of blockade.
Id.
21. A mere recital in a contract cannot be
taken as sufficient to disprove the averment
in an answer, when a case is heard upon
pleadings, without any evidence except con-
tracts set forth in the complaint. Nugent
V. Arizona Improv. Co. 721
22. An intention to furnish information
for the publication of a libel cannot be in-
ferred by a mere guess from the fact that a
memorandum of figures which are used for
that purpose is furnished without knowing
what was wanted of it. Washington Gas-
light Co. v. Lansden, 643
EXCEPTIONS.
On Appeal, see Appeal and Ebbob.
EXCHANGE.
See Evidence, 2; Internal Revenitb,
2, 3.
EXECUTIVE DEPARTBfENT.
See Injunction, 3.
EXECUTORS AND ADMINISTRA-
TORS.
See Appeal and Ebbor, 31; Claims, 1.
See Conflict of Laws, 2.
EXPLOSION.
See Shipping, 2, 3.
1253
Ex Post Facto Lawb — Hakkah Cuiu'Lo.
POST FACTO UkW8.
See Constitutional Law, 4.
JSXTRADITIOH.
The right of a pereon extradited under
the treaty of 1800 with Qreat Britain to
have a reasonable time to return to hie own
irountry after his discharge from custody or
imprisonment on account of the offense for
which he is extradited, before he can be ar-
rested for any other offense committed prior
to bis extradition, is not loet or waived by
going to his own country and voluntarily
returning while at liberty on bail before his
final discharge in the case for which be was
•extradited. Cosgrove v. Winney, 897
FEDERAIi QUE8TIOH.
See Appeal and Ebbob« 1L o; Ck>i7BT8,
14, 15.
1230
See Carriers, 2; Constitutional Law,
13; Railroads.
Mr. Justice^ death of
Attoroey Genenl, drnth oC
See Seal Fisheries.
FLATS.
See Eminent Domain, t.
FLOATABLE 8TB£AM8.
See Waters, 1.
FOG.
See Shipping, 5.
FOOD.
See also Commerce, 2, 8, 5, 8.
A governor of a soldiers' home which
is under the jurisdiction of Congress is nut
subject to a state law concerning tiie use of
oleomargarine, when he furnishes that arti-
cle to the inmates of the home as part of the
rations furnished for them under appropria-
tions made by Congress ther<tfor. Ohio v.
Thomas, 699
F0RECL08ITRB.
See Mortgage.
FOREIGN JUDGMENT.
See Garnishment, 1.
FOBFEITUBE.
See Constitutional Law, 81; Public
Lands, 11, 12.
FOBM8.
In banicmptt^. 1195
See Taxes, t, t.
FRAUD.
See Trial, 6, 7.
See Constitutional Law, St.
FUGITIVE.
See ExTRADinoN.
FUR 8EAL8.
See Seal Fisheries.
1254
1. Jurisdiction in gmmialmicnt of a
due to a nonresident creditor may be ae^uifi
without service on him except by publieatioa
so as to make a judgnMot against him valid
and entitle it to full faith moA credit i
states. Chicago, R. L ft P. R. Oo. ▼.
uu
2. The appointment of a
ceiver, with the consent of
the case, before the eocpiratidb oi the
for taking issue on bis answer, prvdiiilfli Ot
necessity of traversinff the stataneots in Ui
answer, which allege his individiial n^jkt U
the possession of the proper^. Central Loss
& T. Co. y. Campbell Commienoii Co. OS
3. The failure to traverse the aiww if
a garnishee, which, b^ Okla. Stat. 1893, |
4086, makes it conduaive of the troth of tke
fact therein stated, does not make it
dusive as to statements made bj an
plea, wholly independent and diattiMt
the garnishment, setting up his
right to the possession of the property. U
GAS.
See Duties, 8; Mukicipal
TIONS, 1.
GENERAL AVERAGE.
See Average.
See also EvioEKCfB, 8.
A recital in a written dedaratliB
g^ft to the donor's daughters, that it i
made "voluntarily, without suggestion J
anyone," and the failure to diSoee the
to other relatives, will not create a sospj
of undue influence, where the donor
previously learned of the charge by
the other relatives, that her husband
been unduly influenced in
Towson V. Moore,
bni
making a wiC.
m:
GOVERNBfEHT CONTRACT.
See Claims, S.
GOVERNOR.
See District of Columbia.
GRANT.
See Evidence, 9; Private LAHoGLazMB;
Public Lands ; Waters, 6.
GUARDIAN AND WARD.
See also Contracts, 5; OosroftAmi^
5; Courts, 1.
The mere investment of the Ooofedarato
funds or currency of a ward in bonds of tke
Confederate states by a guardian, when boU
were residents within i& Confederate lint^
should be deemed a trantaotion in the ordi»>
ary course of civil society, and not illeiKal ••
a transaction to aid in the deataiMUon «f
the government of ths Union. BaMy ▼.
Hunter, tH
HABEAil OORPUI.
See also Appeal akd
9.94.
1. A oonviotion cannot be rtviewH
171. 178. 173. 174 U.
t
Hartbr Act — Injunction.
habeas corpus on the ground that the judge
before whom the trial was had had no riglit
to exercise the judicial functions, where he
was acting with color of authority. Ex
parte Ward, 766
2. Federal courts will not interfere by
habeas corpus with the trial of indictments
found in state courts, on the ground that the
state statutes are repugnant to the Federal
Constitution, laws, or treaties, unless there
Are exceptional or extraordinary circum-
stances to require it. Fitts v. McGhee, 535
3. The reiusal to permit counsel engaged
by a prisoner to have a consultation with
him before the district attomev had seen
him and examined hiro is not ground for at-
ta<ddng a conviction by habeas corpus, when
the prisoner waived examination before a
commissioner, and was represented on the
trial by counsel assigned to him at his own
request and the statement made by him to
the district attorney was voluntary and was
not put in evidence, and.no objections were
raised to questions asked him on the stand
as to what he said on that occasion, and no
witneesee were called to contradict his an-
swers. Andersen v. Treat, 351
KABTEB ACT.
See Damages, 5; SHiPPniG.
HEUtS.
See Claims, 2.
1230
Baron, death of
HEWITT ACT.
See Contracts, 3.
See also Constitutional Law, 20, 21,
30; Public Improvements, 2; Street
Railways.
Easements in the public streets, given
in perpetuity and in monopoly, must have
for their au&ority explicit permission, or if
inferred from other powers, it is not enough
that the authority is convenient to them, but
it must be indispensable to them. Detroit
Citizens* Street K. Co. v. Detroit R. Co. 67
HOMESTEAD.
See Public Lands, S.
HOMICIDE.
See Criminal Law, 2.
HXEOITIMACT.
See Descent and Distributioh.
See DxTTiBS.
INCREASE.
See MoRTOAQB, 1.
INDIAN DEPREDATIONS.
See also Claims, 7-10; Bvidbrcb^ 10;
Indians, 1.
INDIANS.
See also Appeal and Eeaxm, Z, 19^ 68,
76 ; Constitutional Law, 2.
1. Depredations by other Indians as well
as by white men are within the provision of
the aot of Congress of March 3, 1891, for al-
lowance of the claims of Pottawatomie In-
dians for depredations committed "by
others" upon their property. United States
v. Navarre, 620
2. The record of a deed from an Indian
without the approval of the President, which
is necessary for a valid conveyance, consti-
tutes notice of the title to subsequent pur-
chasers, under the Illinois conveyancing act,
S 30, making an unrecorded deed void as to
creditors and subsequent purchasers. Lo-
max V. Pickering, 601
INDICTBfENT.
See also Appeal and Ebrob, 72.
1. An indictment for receiving stolen
property need not state from whom defend-
ant received it, or that the name of such
person is unknown to the grand jurors.
Kirby v. United States, 890
2. The ownership by the United States
of stolen postage stamps when received by
the accused is sufficiently alleged by stating
that the stamps were the property of the
United States when feloniously stolen on a
certain day, and that two days afterwards
the accused received them, knowing they
were feloniously stolen, with intent to con-
vert them to his own use. Id.
3. An indictment in the language of U.
S. Bev. Stat § 3296, charging the conceal-
ment of distilled spirits on which the tax had
not been paid, which had been removed to a
place other than the distillery warehouse
provided by law, is sufficiently certain and
sufficiently alleges the existence of a ware-
house provided for such spirits. Pounds v.
United States, 02
4. An indictment for unlawfully import-
ing and bringing into a certain port of the
United States diamonds of a stated value,
"contrary to law," with intent to defraud
the United States, but not indicating what is
relied on as violative of the law« is insuffi-
cient, although it charges the offense sub-
stantially in the words of U. S. Rev. Stat.
§ 3082. Keck v. United States, 605
INJUNCTION.
See also Appeal and Error, 4, 28 ;
Courts, 16; Equity, 4; State.
1. The circuit court of the United States
sitting in equity is without jurisdiction to
enjoin the institution or prosecution of criin-
•inal proceedings commenced in a state court.
Fitts V. McGl^ 536
2. Equity cannot entertain jurisdiction to
restrain or rdieve against proceedings for
the removal of public officers, as this would
invade the domain of the courts of law or of
the executive and administrative department
of the government. White v. Berry, 199
White v. Butler, 204
3. The discretion of the executive depart-
ment in respect to assigning one person to
work in plaoe of another, even if this does not
constitute a removal of the latter from office,
will not be interfered with by a court of
equity. White v. Berry, 199
12SS
ImNOOBNOB— JUDOMBHT.
4. An injunction against the building of
waterworks by a city in violation of a con-
tract with a water company will not be de-
nied on the ground of a complete and ade-
quate remedy at law, as the damage by the
breach would be ^eaX, and perhaps irrepar-
able, and exceedingly difficult of ascertain-
ment Walla Walla v. Walla Walla Water
Co. 341
Asainat tax or aaseMment.
5. Provision for a review and correction
by the circuit court of a county, of an assess-
ment for taxes made by the board of public
works, atfords such a convenient and ade-
quate remedv for an^r error in the taxation
as will preclude an injunction against col-
lecting tne tax. Pittsburgh, C. C. & St. L.
R. Co. V. Board of Public Works, 354
6. The collection of taxes assessed under
the authority of a state is not to be re-
strained by a writ of injunction from a
court of the United States, unless it clearly
appears, not only that the tax is illegal, but
that the owner of the property taxed has no
adequate remedv by tne ordinary processes
af Uie law, and that there are special cir-
cumstances bringing the case under some
recognized head of equity jurisdiction. Id.
7. An injunction against a special assess-
ment which is illegal because it rests upon a
basis that excludes any consideration of
benefits should enjoin the whole assessment,
without considering whether the amount is
in excess of the special benefits to the prop-
erty or not Norwood v. Baker, 443
8. Payment or tendei of the amount of
benefits received from an improvement is not
necessary in order to obtain an injunction
against an illegal assessment which is based
on a rule or system that has no reference to
special benefits. Id.
IN BfEMORIAM.
Field, Stephen J.. 1230
Garland, Augustus Hill, 1220
Herschell, Baron« 1230
UfHOCENCE.
See EvioENXiE, 7*
INSOLVEHCT.
See Attachment, 4; BANKfiUPTCT;
Banks, 2; Evidence, 4; Trial, 6.
INSPECTION.
See CoMMEBCB, 2, 6, 7.
IN8ITBANCE.
See Constitutional Law, 15, 23.
INTEND ANT.
See Private Land Claims, 8.
INTEREST.
See UsuBT.
INTERNAL REVENUE.
See also Indiotmsnt, 3.
1. Rebate or repayment of the tax paid bj
a manufacturer on alcohol used in the arts is
authorized by the art of Congress of August
28, 1804, § 61, only when the alcohol is used
•jnder regulations prescribed by the Secre-
1256
tary of the Treasury; and in ikt
Bucn regulations the right
Dunlap V. United States, eU
2. The stamp tax impoeed by the war
revenue act of 1898 on sales at firhiwi m
boards of trade is not a direct tax vhi^ tkt
Constitution requires to be levied by tkt ivk
of apportionment, since it is not a tax wftm
the business its^f , or upon iht piuyaiy soU,
or upon sales generally, bat is in effect a
duty or excise laid upon the privile^ op-
portunily, or facility offered at the board if
trade or exchange. Nicol v. Ames, TM
3. The stamp tax on tales at **^^"g"
or boards of trade, being uniform tlmnighovt
the United States and upon all who armil
themselves of the privileges or laeilitMs of-
fered at the exchanges, does not violate the
constitutional rule of uniformity merely be-
cause sales dsewhere are not taxed aad tJM
tax is imposed on the seller only, and aeC the
purchaser, and the tax is not impoeed on the
use of the privilege under all circmnstaaeev
4. Union stockyards which answer aD the
purposes of an exchange or board of trade far
live-stock business are **similar" to boards «tf
trade or exchanges, within the nwniag at
the provision of the war revenue law impos-
ing stamp taxes on sales at such plaeea. U.
INTERSTATE COMMERCB.
See COMMEBCB.
INTERVENTION.
The failure of an unsecured creditor U
intervene at the first instant on a bill for the
foreclosure of a railroad mortgage filed ta the
avowed interest of all creditors witbool tak-
ing any action to notify them or briag
into court, will not be a tatal delay or
which will prevent relief against a
ure by collusion to cut off unsecured
ors. Louisville Trust Co. v. Loaisrille, X.
A. ft C. R. Co. list
INTOXICATINO IJQITOR8.
See Indictment. 3; Iktvknai.
NUE, 1.
JOINT TRAFFIC ASSOCIATION.
See CoNSPiBACT, 6.
JUDGE.
See Appeal A2io Ebbob, 6S;
Corpus, 1.
judgment.
See also Action ob Sun, 4; CknasiaL
Law, 1; Evidence, 14: OABraxMBJO;
1; Limitation or AcnoirBp S; 8rav-
UTE8, 6.
1. An application for an appeal imibi al-
lowed or pcHTfected will not preveat tiM Mr
ment from being res judicata, Hnbbdl v.
United States, IM
2. The dismissal of a case upoB aa ovia-
ion filed and certain findings of faet will he
presumed to have been upon tha BBrits* aad
to cover every question put of imnm by the
pleadings. Id.
3. The dismissal of a suit for iafriage
ment of a patent is a oomplete eetoppd n
171. 17S« 173, 174 U. S.
Judicial Noticb — Lis Pendens.
f&Tor of the successful party, in a subse-
quent action upon the same state of facts ex-
cept as to the time covered by the alleged in-
fringement, even if the new action is based
on a different theory. Id.
4. An adjudication that a party is enti-
tled under a conveyance to one half the es-
tate is a determination of a pre-existing
right which dates from the time of the con-
veyance. Grant v. Buckner, 430
5. A judgment holding bonds invalid is
not res judicata as to their validity after a
subsequent statute has cured their defect.
Utter V. Franklin, 498
6. An adjudication that an irrevocable
contract exists which precludes the enforce-
ment of a tax law in conflict with the con-
tract is rea judicata as to an attempt to en-
force such statute in a succeeding year. Stone
V. Farmers' Bank, 1027
7. A decision establishing the existence
of an irrevocable contract of exemption or
limitation of taxation for the term of the
charter of a corporation is not rea judicata
as to such exemption after that charter is re-
newed. Third Nat. Bank v. Stone, 1035
Louisville v. Citizens' Nat. Bank, 1037
8. The findings of fact mads in a case
which is set up as res judicata cannot be
changed by supulation. United States v.
Bliss, 463
0. A prior judgment cannot be used as rea
judicata without pleading or proof. Id.
10. The absence of the foreman of a jury,
who is ill, when the rest of the jury is
polled and a sealed verdict, which all signed,
13 opened, does not render a judgment en-
tered on the verdict a nullity or subject to a
motion to vacate it at a succeeding term of
court. Humphries v. District of Columbia,
044
11. The jurisdiction of a state court is
open to inquiry in a Federal court sitting in
the same state, when the judgment of the
state court comes under consideration there-
in. Cooper V. Newell, 808
JUDICIAI. HOTICEL
See Evidence, 1-6.
JURISDICTION.
On Appeal, see Appeal and Ebbob.
Of Courts, in General, see Courts.
See Constitutional Law,12;Gabnish-
KENT, 1.
JURY.
See Constitutional Law, 10, 27;
Tbial, 1-5.
JUSTICE OF THE PEACE.
See Appeal and Ebuor, 2 ; Trial, 2-4.
IJLNDLORD AND TENANT.
See also Set-Off.
1. The mere payment of rent under a
lease by a city of batture, which is subject to
a suspensive condition, does not change the
nature of the condition or work an estoppel.
New Orleans v. Texas k P. R. Co. 173
2. A lease by a city of batture to a rail-
road company in order to permit the exton*
sion of its tracks from a terminus which it
had contracted to establish under an ordin-
ance which made that a suspensive condition
is subject to the same condition. Id.
XJkRCENT.
See Indioticent, 1, 2; PosTomoB.
LAW OF PUkCE.
See Conflict of Laws.
See Landlord and Tbnaht.
LEAVE OF COURT.
See llECEiVERS, 3.
LETTER.
See PosTOFTicB.
LETTERS PATENT.
See Patents.
See also Evidenob, 17, 22 ; Prize, 6.
1. A gas company is not liable for the act
of its general manager in writing a personal
letter, which he copied into the official copy-
book in the company's office, and which was
used as the basis of a libelous publication
respecting the testimony of the former man-
ager of the company as to the price of gas.
Washington Gaslight Co. v. Lansden, 543
2. The writer of a letter which is used as
the basis of a libel and is written for that
purpose cannot escape liability therefor be-
cause of the fact that other matters, not con-
teined in his letter, are included in the same
article as published. Id.
LIENS.
See Appeal and Ebbob, 32 ; Claims, 2 ;
Equttt, 1; Lis Pendens.
LIMITATION OF ACTIONS.
See also Claims, 6.
1. The cumulative disabilily of an heir
of a woman who died during coverture can-
not arrest the running of the stetute of limi-
tations. Davis V. Coblens, 1147
2. A delay of nine years and four months
is not fatal to a suit to annul a foreclosure
on the ground of fraud, where the plaintiff
is an ignorant colored woman, defrauded by
one in whom she placed entire confidence,
who assumed to act as her agent and pro-
fessed that the sale was in her interest, and
who obtained title for little more than a
nominal sum by the false personation of a
fictitious person, when he still controls and
probably owns the property, the situation of
which has not materially changed, and there
has been no rapid rise in value or the inter-
vention of the righte of any bona fide pur-
chaser. Mclntire v. Pryor, 606
LIS PENDENS.
The pendency of a foreclosure suit in
a Federal court, m which the decree saves
the rights secured by a prior mortgage, does
not interfere with the negotiation of bonds
1257
LiVB-STOOK ExCHANOB — MiKBS.
secured by such prior mortgage, or impair
in any degree the lien tnereby created.
Pittsburgh, C. C. ft St L. R. 06. T. Long Is-
land Loan ft T. Ck>. 628
UVE-STOCK EXCHAHGEL
See COMMEBCE, 18; Ck>2fSPIBA0Ty t.
LOCAL LAWS.
See Statutes, 1.
LOCATION.
See Mines.
LOCOMOTIVES.
See Railboads.
LODE.
See Mines.
LORD PROPRIETABT.
See Confiscation, 1, 2; WATBBSy tt»
See CoPTBiOHT.
See PosTOFFicJB.
BfAHDAMUS.
The execution by a public officer of a
contract cannot be compelled by mandamus,
when the other party has not executed a
bond which is required by statute before the
contract shall be binding. Nugent y. Ari-
zona Improv. Co. 721
MANDATE.
See also Appeal and Ebbob, 76.
Motion to amend denied. Central Nat.
Bank ▼. Stevens, 97
MARKETS.
The power to establisAi rules and regu-
lations with reffpect to the Washington Mar-
ket Company, incorporated by the act of Con-
gress of May 20, 1870, w given by S 16 to the
city government, and not to the market com-
pany. Washington Market Co. v. District
of Columbia, 478
MARSHAL.
See Appeal and Erhob, 15 ; Bbwabd, 1,
2.
BCARYLAHD.
See Confiscation, 1.
MASTER AND SERVANT.
See Action ob Suit, 1 ; Constxtutional
Law, 14, 22; Contracts, 6.
MAXIMS.
1. Damnum ai>sque injuria. Meyer y.
Richmond, 374
2. Ex dolo malb non oritur actio. Pull-
man's Palace Car Go. v. Central Transp.
Co. 108
McMullen v. Hoffman, 1117
3. Ex pacto illicito non oritur actio. Mc-
Mullen V. Hoffman, 1117
4. Expressio unius est exclusio alterius.
Walla Walla v. Walla Walla Water Co. 341
1258
5. Ex turpi cauea non oritur actio.
Mullen y. Hoffman, 1117
6. Potior est conditio defeodeotii. id.
7. Sic utere tao ut alienmn non
Orient Ins. Co. v. Daggi,
List of,
MEXICAN GRANT.
See Pbivate Land CLAnca.
HIT
See Evidence, 1 1.
See Appeal and Ebbob, 4.
1. Lines of a junior lode locatioa nay to
laid within, upon, or across the surface of a
valid senior location, for the porpoa* ol
fining for or securing to such junior ~
underground or extralateral rights not
conflict with any rights of the senioi
tion. Del Monte Min. ft M. Co. ▼.
Chance Min. ft M. Co. 72
2. The end lines of a lode mining elaia
under the act of 1866 must be straigkt,
whether they need to be paralld or not.
Walrath v. Champion MiiL Co. 170
3. The end lines of a mining claim mder
the act of 1866 must be the end lines of all
the veins found within the enrfaoe bonod-
aries, which are nven to the locator by the
act of 1872. U.
4. Tb<e only exertion to the rule that th«
end lines of a location as the locator of a lode
mining claim places them establish the limits
beyond which he may not follow the ran cm
its course or strike is where it is derekipcd
that in fact the location has been placed, not
along, but across, the course of the yetii. la
such case whai he calls the side lines are tm
be deraaed his end lines, and the so-eallad
end lines are in fact side lines. Del lioBts
Min. ft M. Ca y. Last Chance Min. ft M. Ca.
72
5. Every vein the top or apex of vhjcli
lies inside the surface lines of a lode miniag
claim extended downward vertically beloaf*
to the locator, and may be pursued by him
to any depth beyond his vertical side lines,
although in doing so he enters beneath the
surface of some other proprietor. Id.
6. The right to -follow a vein on the dip
is limited by the end lines of the claim^ u
case of a patent under the act of 1866 as
well as in case of a location under the act ol
1872. Walrath v. Champion Min. Oo. 17f
7. The conditions upon which extra-
lateral rights may be acquired bv locators
of miniDgclainu WBTlLn prc^eriM by
Congress, a party must oring himself within
those conditions, or else be limited to the
mineral beneath the surface of his territory.
Del Monte Min. ft M. Ca v. Last Chance Mis.
ft M. Co. 72
8. The right to follow a vein on Its di^
beyond the vertical side line of the location
is not limited to cases in which the apex ol
171, 172, 173, 174 U. &
Mission — Orders.
the rein crosses both end lines,but extends to
& case in which it crosses one end line and
one side line. Clark v. Fitzgerald, 87
9. A compromise of a dispute as to a
mining claim, whereby an action to deter-
mine the right thereto is dismissed, in con-
sideration of an interest in the ground when
thereafter patented by the applicant, is not
invalid, in the absence of any statutory pro-
hibition. St. Louis, M. & M. Oo. v. Montana
M. Ck>. 320
BnSSION.
See Pbiyatb Land Claims, 8.
MONET IN COITBT.
See Appeal and Ebbob, 10.
MOOT 0A8B.
See Appeal and Ebbob, S5.
MORTGAGB.
See also Evidence, 5; Intebvention.
1. A mortgage of domestic animals cov-
ers their increase, although it is silent as to
them. Northwestern NaC Bank v. Freeman,
307
2. A chattel mortgage of a given number
of articles out of a larger number may be
valid as against those who know the facts.
Id.
3. The record of a chattel mortgage to
other mortgagees is not notice to an assignee
of a subsequent mortgage, but he is charge-
able with notice of wie record of a prior
mortgage on the same property by the same
mortgagor to his assignor. Id.
4. Foreclosure of a railroad mortgage by
collusion between bondholders and stock-
holders for the purpose of destroying the in-
terests of unsecured creditors may be set
aside on their application as a fraud. Louis-
ville Trust Co. V. Louisville, N. A. & C. R.
Co. 1130
MUNICIPAI. CORPORATIONS.
See ATTORNEYS; CONSTITUTIONAL LaW,
10, 21 ; contbacts, 1, 11-13; coxtbts,
12, 14; Eminent Domain, 1; Eqihtt,
4; Estoppel; Landlobd and Tenant;
Lis Pendens; Statutes, 1, 6; Taxes,
4, 6; Tbial, 5; Watebs, 11, 12.
BCURDER.
See also Criminal Law« 2.
1. A limitation of municipal indebted-
ness is not violated by a contract for a sup-
ply of water or gas at an annual rental,
merely because the aggregate of the rentals
during the life of the contract may exceed
the limit of indebtedness. Walla Walla v.
Walla Walla Water Co. 341
2. A statute requiring a municipalvty to
pay claims which a special tribunal finds to
be equitably due and based on a moral ob-
ligation is within the general legislative
power of a territory which, by an act of
Congress, extends to all rightful subjects of
legislation not inconsistent with the Consti-
tution and laws of the United States. Guth- 1
HATIOHAI. BANKS.
See Banks, 1-7; Equity. 2;
8-12.
NATURAL GAS.
See Duties, 8.
NAVIGABLE WATER.
See Waters.
NAVIGATION.
See Damages, 5; Dams; EviDBNOlDy 6.
NAVY.
See Prize, 2.
NEGLIGENCE.
See Trial, 9.
NEGOTIABLE INSTRUMENTS.
See Bills and Notes.
NONRESIDENT.
See Attachment, 1; Garnishment, I.
NOTES [Editorial] INDEX TO.
Arbitration; eubmission to; when
may be revoked; when reviewed
or set aside or void ; when bind-
ing; effect of; death of arbitra*
tor; notice of hearing; selecting
umpire; costs. IIS
Award. See Arbitration.
Forfeiture; of rights of street rail-
ways. 67
Habeas oorpns; power of Federal
courts to issue; in what cases;
when discharge granted; review
of decisions; contempt proceed-
ings. 92
Hishways. See Street Railways.
Mnnicipal oorporations; power to
impose restraints or conditions
upon street railways. 67
Street railways; right of, in the
streets; grant U>, by municipal
corporations; power of such cor-
porations to impose restraints
or conditions upon street rail-
ways; consents bv abutting
owners ; forfeiture of rights.' 67
Umpire. See Arbitration.
NOTICE.
See Constitutional XjAW. 24« 80; In-
dians, 2; Taxes, 17.
rie Nat. Bank v. Guthrie,
796
See Reward, 1; Usitbt, 2.
OFFICERS.
See Clerks; Evidence, 10, 11; Habkaij
Corpus, 1; Injunction, 2, 3; Manba-
Mus; Reward, 1, 3.
OKIiAHOMA.
See PuRLic Lands, 5.
OLEOMARGARINE.
See Commerce, 3, 6, 8; Food.
118»
1259
In bankruptcy.
Okdinanck — Private Land Claisis
ORDINAKCE.
See Waters, 11-13.
OBIGINAI. PACKAGED
See Commerce, 8, 0.
See Appeai. and Erbob, 48.
PARTNERSHIP.
See Contracts, 9.
PATENTS.
See also Constitutional Law, 8;
Damages, 2; Evidence, 3; Judgment,
3; Public Lands, 1-3.
The Hoffman patent, 450,124, for a
■upporting rack or shelf for books, oomposed
of metallic strips with a re-entrant boid or
recess in its front edge for the insertion of
the hand, with rollers projecting above and
in front of each side or recess, — is invalid for
lack of invention, as everv element of the
combination described is found performing
the same function in some one or more of the
prior devices. Office Specially Mfg. Co. v.
Fenton Metallic Mfg. Ca 1058
the postoffice department hj
to a letter box. Scott v. Imited
POST ROADS.
See Telephones.
POTOMAC RIVER.
See Cloud on Titlb, 2;
main, 2; Waters, 6, 7, 8;
H
471
Whakves, L
See Railboads.
PLEADING.
See also Appeal and Ebbob, 70; Evi-
dence, 21.
1. A cross bill is properly allowed to be
filed for the return of property delivered un-
der an illecal lease, where the complainant
has alleged an election to terminate the
lease, and also alleged its invalidity and of-
fered to do what the court should decree to
be just. Pullman's Palace Car Co. v. Cen-
tral Trrinsp. Co. 108
2. An averment that the establishment
by a city of competing waterworks would in-
jure the value of the property of a water
company, and deprive it of rentals whioh Uie
city had agreed to pay, need not specifically
state how such damage would be done. Wal-
la Walla v. Walla Walla Water Co. 341
PLEDGE AND COLLATERAI. SE-
CITRITT.
See also Action or Suit, 2.
1. A fjledge is discharged by the volun-
tary parting with possession of the proper-
ty. Hubbard v. Tod, 240
2. A secret equity in securities pledged
by a person who nad been empowered to do
Bo by a corporation cannot be set up by it
as against the pledgee. Id.
POLICE POWER.
See Commerce, 14.
POSTOFFICE.
See also Banks, 9; Indictment, 2.
The fact that a letter stolen from the
mails was a decoy addressed to a fictitious
Serson is not a defense to an indictment un-
er U. S. Rev. Stat. § 5467, when the letter
had been delivered into the jurisdiction of
1260
PRACTICE.
See Actions; Cqnujct or
Ejectment; Bvidcngb;
Mandamus ; Pleading ;
NE88BS; WrIT AND PB0CB88.
PREFERENCES.
See Banks, 11.
See Eyidencb, 7-11, 19; Pdhjo
4.
PRm CIPAI* AND AGENT.
See also Ck>BPORATioN8, 2, 3;
TUAL, 8.
One who acquires title
agent is chargeable with the
in the transaction. Mclntire t.
PRIVATE IJkND CXAIMB.
See also Evidence, 11.
1;
1. In an investigation of a
title, the court of private land piarwia ia rntd
limited to the dry, technical rules of a eovt
of law, but may inquire and establish that
which equitably wae the land rraated by tks
government of Mexico. Ely v. United Statsi.
141
2. A Mexican grant should not be s«»>
tained by the court of private land ilii—
for more than the amount purchased, peti-
tioned, and paid for, ^en all the proowri
incs contemplate a sale of that <|Qastity
omy. United States v. Maish, IM
3. Sustaining the validly d a Msiwas
erant to the extent of the land paid for is
but oarrying out the spirit of the treaty, the
oblijB^tions of international justice,
duties imposed bv the act creating the
of private land claims, where the gras
of a specified quantity of land, in a
place, at a certain prioe per sitio. Ely ▼
United States, 14S
Camou V. United States, ICS
4. The mere fact that a Mexican Iaa4
erant is narrower than the limits of the ost-
boundaries does not prevent the ooort of pri-
vate land daims, throngh the aid of a
missioner, surveyor, or master, from
mining exactly what did equitably
der the grant. Ely v. United States^ 14f
5. The several states in Mexioo bad ta
1833 authoritgr to make sales of vaoaat pnV
lie lands within their limits which na«t b»
recognized by this government under Ibt
treaty of 1853. Camou v. I nited Statrv
Perrin v. United States. 1 ?»
0. The power of an intendaat to t^omrvj
Dublic lands was recognited by the irnver*
171, 172, ITS, 174 U. &
Mission — Orders.
the vein crosses both end lines.but extends to
a case in which it crosses one end line and
one side line. Clark v. Fitzgerald, 87
0. A oompromise of a dispute cui to a
mining daim, whereby an action to deter-
mine the right thereto i« dismissed, in con-
sideration of an interest in the ^ound when
thereafter patented by the applicant, is not
invalid, in fahe absence of any statutory pro-
hibition. St. Louis, M. & M. Oo. ▼. Montana
M. Co. 320
MISSION.
See Pbiyatb Land Claims, 8.
MONEY IN COITBT.
See Appeal and Erbob, 10.
MOOT OASB.
See Appeal and Error, 6S.
MOBTGAGB.
See also Evidence, 5; Intervention.
1. A mortgage of domestic animals cov-
ers their increase, although it is silent as to
them. Northwestern Nat. Bank v. Freeman,
307
2. A chattel mortgage of a given number
of articles out of a larger number may be
valid as against those who know the facts.
^ Id.
3. The record of a chattel mortgage to
other mortgagees is not notice to an assignee
of a subsequent mortgage, but he is charge-
able with notice of ttie record of a prior
mortgage on the same property by the same
mortgagor to his assignor. Id.
4. Foreclosure of a railroad mortgage by
collusion between bondholders and stock-
holders for the purpose of destroying the in-
terests of unsecured creditors may be set
aside on their application as a fraud. Louis-
ville Trust Oo. V. Louisville, N. A. k C. R.
Co. 1130
MUNICIPAL COBPORATIONS.
See Attorneys; Constitutional Law,
10, 21; Contracts, 1, 11-13; Courts,
12, 14; Eminent Domain, 1; Eqihtt,
4; Estoppel; Landlord and Tenant;
Lis Pendens; Statutes, 1, 6; Taxes,
4, 6; TRIAI., 5; WATERS, 11, 12.
BCTTRDER.
See also Criminal Law« 2.
1. A limitation of municipal Indebted-
ness is not violated by a contract for a sup-
ply of water or gas at an annual rental,
merely because the aggregate of the rentals
during the life of the contract may exceed
the limit of indebtedness. Walla Walla v.
Walla Walla Water Co. 341
2. A statute requiring a municipali'ty to
pay claims which a special tribunal finds to
be equitably due luod based on a moral ob-
ligation is within the general legislative
power of a territory which, by an act of
Congress, extends to all rightful subjects of
legislation not inconsistent with the Consti-
tution and laws of the United States. Guth-
rie Nat Bank v. Guthrie, 706
NATIONAL BANKS.
See Banks, 1-7; Eqititt, 2; Taxes,
8-12.
NATUBAIi GAS.
See Duties, 8.
NAVIGABLE WATEB.
See Waters.
NAVIGATION.
See Damages, 6; Dams; EviDBNOlDy 9*
NAVY.
See Prize, 2.
NEGLIGENCE.
See Trial, 9.
NEGOTIABLE IN8TBUMENTS.
See Bills and Notes.
NONBE8IDENT.
See Attachment, 1; Garnishment, I.
NOTES [Editorial] INDEX TO.
Arbitration; eubmiasion to; when
may be revoked; when reviewed
or set aside or void ; when bind-
' ing; effect of; death of arbitra-
tor; notice of hearing; selecting
umpire; costs.
Award. See Arbitration.
Forfeitnre; of rights of street rail-
ways.
Habeas oorpns; power of Federal
courts to issue; in what cases;
when discharge granted; review
of decisions; contempt proceed-
ings.
Hiebways. See Street Railways.
Mnnioipal eorporatione; power to
impose restraints or conditions
upon street railways.
Street railways; right of, in the
streets; jgnrant to, by municipal
corporations; power of such cor-
porations to impose restraints
or conditions upon street rail-
ways; consents bv abutting
owners ; forfeiture of rights.'
Umpire. See Arbitration.
lis
67
92
67
67
NOTICE.
See CoNSTmmoNAL 71>aw« 24« 80; In-
dians, 2; Taxes, 17.
See Reward, 1; Usubt, 2.
See Clerks; Evidence, 10, 11; Habkaij
Corpus, 1; Injunction, 2, 3; Manba-
Mus; Reward, 1, 3.
OKIiAHOMA.
See PuBLio Lands, 5.
OLEOMARGARINE.
See Commerce, 3, 6, 8; Food.
118»
1259
In baakmptqf •
i^UBLlC FOLICT — KBCaUVBRS.
oat authoriiy i» raid. Morria t. U^ted
States
2. Belief against a patent for land issued
by inadvertence and nustake c»n he granted
t6 one who, being duly qualified «^d entitl^,
oflfered to enter the land, and on the denial
of his oflfer inatituted a contest, whidi was
pending when the patent iasued. D«ltt»*
Eon Bange R. Oo. ▼. Roy, »*»
3. A party cannot defend against a pat-
ent for liid, duly issued upon an ««»t>T made
in the local land office, on the ground that
he was in actual possession of the laml at
the time of the issue of the patent. John-
son V. Drew, ^
4. The faUure of a pre-onptkm daimant
to make proof and payment within the time
required Tby U. S. rier. Stat 8 8267, forfwts
hw right without any cancdatjon on the
recordS. Northern P. R. Oo. ▼. De Iao^^^^
5. An honorably discharged soldier was
not entitied to go into Oklahoma territory
before the desigiSuwl time, and "mJ" a valid
entry of a homestead therein, notwithsUnd-
inff the general restriction by virtue of the
1^ of oSngress of March 2, 1889, I 12, pro-
viding that the ririits of honorably dis-
cbai^ Union soldiers and sailors shall not
be abridged. Calhoun v. Violet, ol4
6. The grant of land by the act^f'^Con-
gress of July 2, 1864, was not blotted out
with respect to an intervening pre-empticm
daim by the resolution of Congr^ adopted
May 31, 1870, making a further grant
Northern P. R. Co. v. De Lacey, HH
7. The fact that only 25 feet in width of
its right of way has been occupied for rail-
road purposes, under a grant of 200 feet on
each side of the track, does not prevent the
railroad company from claiming the fuU
width of the grant as against persons who
had occupied &e premises for the purpose of
making a townsite location thereof, but had
notaSuired a right thereto as against the
railroad company when the road was built.
Northern P. R. Co. v. Smith, 157
8. The occupation and survey of lands
with intent to locate a town site thereon, but
without filing a plat or obtaining the adop-
tion of the town site or a patent therefor un-
til after a railroad is located thereon, does
not prevent the land from being a part of the
Snbfic domain for the purposes of a grant U)
tie railroad company. ^"•
9. The right to repayment oi the ei^oess
of $1.25 per acre given by the act of Con-
gress of June 16, 1880, where the double
minimum price has been paid for land aftear-
wards found not to be within the limits of
a railroad land grant does not extend to a
case in which the lands were at the time of
the payment within the limite of such a
irrantand oeaaed to be so only because the
grant was forfeited. Medbury v. United
States, ^[*
10. Valid entries can be made under the
desert land act of land within the place lim-
its of a land grant to railroad corporaUons.
United SUtee v. Ingram, «>«>
11. The forfeiture of a land grant de-
1262
dared by the act of CoograM ti —
1S89, did not operate by relation tore
the United States title to timber whi
been cut prior to the act of fortat«*^
to giw the United States a ri^t«f '
agiSmt a troipaeeer who est tM
United States ▼. Lougfarey, _^__
12. The title to timber cot friaa
feitoro on land granted by *^ ~-
giess of June 3, 1866, to the ataly ««
ffan, to aid in the oonstmeUoa of rmi
Subject to a condition subeeyi<|rttt^
sold lands should revert to thoU«M*»
if the roads wore not eompletad ^>»
years, is in the sUte, and not im tfc* ^^
SUtai.
PUBUO poucnr.
See CouBn, 18.
See Pbitatb Lahd (XifWi 9»
PUNCTVATIOir.
See DoTOBB, 9.
QUJJSTiNO YaxJuB.
SeeGLOUDOH Trxa.
Aa Carriers,
See also CoiocBaB, 16, 17 ;
or, 8-6; OoiTBiiTmiowai. Law, U, H
22, 88; BvnmroB, 6; Imt
LaNDLOBB Ain> Tbhaht, s;
4; PuBiJO LaicDS, 6-10, U;
Pbotkbtt, 1 ; Taxw, 18-15.
The legislature has power to ,
penalty for the faUure of a railroad^
to prcnrent the escape of tire fa^^™^
Uves without prescribing any ««-«<
but leaving to the corporation ,_-
of the means it deems hest therefor.
son, T. A S. F. R. Co. V. MatUiew% —
See^ Cabeubs, 8-6; Ookbtimact, >*
OOWSTITDTIONAI. LaW,
00UBT8, 6; WATHfcB, 18, 14.
4m
See also Iin>iAN8, 2.
1. A provision that certain rigbti gri^
ed to a railroad company on eoaditaoa M •»
establishing a terminus at a — ^*- *-*
shall cease if the terminua ia^
ates a resolutory condition. Vmm
Texaa A P. R. Co. ^^
2. An ordinance giving the rlffci to »
tend railroad tnwto from a depot at a *r
ionated tenninua to eertain pointa, in ^
sideration o« tha obligation to eaUMisfc »
terminus at that place, createa a ■■■|Bi>^
condition or a eoaditlon « Miiaf it
i«.M-r
BSOEIVHML
Sea alio APPStL akd
CtaiMS, 4; Oouns, 16;
GABinsHMxnr, 2; Scr-Oiy.
1. The daim of an «iuity or lien «■ W^
RscBime Stolbn Pbopkbtt— 8bal FniHKKiiie.
ire a debt to himself does not defeat the ju-
^dietion of a ooart whieh has iqipointea a
loeiyer for the oorporation in a suit to
ttiich the oiBcer is a party, after hearing on
jBe notice and iq^pearance, to order him to
Dm over such property to the receiver.
Snelej t. Anderson, 91
2. A receiver in a Federal court who toI-
Hitarily jjoes into a state court cannot ques-
lon the right of that court to determine the
ontroversy between himsdf and the other
larty. Grant ▼. Buckner, 430
3. A counterdaim or set-off comes within
she spirit of the act of Congress of August
13, 1888, allowing a receiver of a Federal
M>urt to be sued in a state court without
leave ^ the court iq^pointang him. Id.
€£iVlMO 8TOIJBN
See ImncTMENTy L
See OUT.
See Appeal ahd Bbbob, IV.| Ihuaiis,
2.
See Abutbation, 2; OoitTBAora, 4.
JlTSiiJlhnTu
See Dbsgent and Distbibutioh.
REMOVAXi OF OAU8E8.
See AonoN gr Sun, 6, 6| Appeal aud
Ebbob, 22, 63.
See Statotes, Ob
JUDICATA.
See JXTDGMSNT.
RE80I.UT0BT COHDITIOV.
See Real Pbopebtt, 1.
RESTITimOH.
See Pbizb, 4.
RESTRAIHT OF TBADB.
See CoNBPiBACT, 3.
See CoiCMEBOE, 8.
REVIVOB.
See AonoN gr Suit, ff, 6; Coriuot or
Laws, 1.
1. An offer of a reward for an arrest by
a deputy marshal Is not contrary to public
policy, when the reward is offered on oehalf
of the government. United States t. Mat-
thews, 738
2. Deputy marshals ere not excluded from
a general offer of a reward for an arrest,
whtti tlM offer is made imder direction of the
attomej general by authority of a statute
giving him discretion to offer such rewards.
Id.
3. An iqipn^riaticm act authorizing the
attorney general to offer rewards reiteves
officers who earn such rewards from the pro*
visions of earlier statutes denying extra oom-
pensation to officers. Id.
BIPABIAK RIGHTS.
See BouNDABiES, 2, 3; Ooubts, 17;
Dams; EianEifT Domain, 2; Waiebs.
BIVBRS.
See Watebs.
SAIiVAOE.
1. An agreement to pay one fourth the
value of a vessel as salvage, although it gives
very large compensation for the work wnich
actualljr proves necessary to be done, will not
be consiaered unconscionable or exorbitant,
when it was made aft«r the refusal by the
master of an offer to do the work for such
salvage as the court riiould award, and after
receiving bids, and full advice from the own-
ers of the vess^ and their agent, who came to
the vessel and saw her situation, and when
the vess^ was in fact never in imminent dan-
ger. The Elfrtda, 413
2. A salvage contract for stipulated com-
pensation, dependent upon success within a
limited time, although the amount may be
much larger than a mere quantum meruit,
will not M set aside unless corruptly entered
into, or made under fraudulent representa-
tions, a dear mistake;, or suppression of im-
portant facts, in inmiediate danger to the
ship, or under other circumstances amount-
ing to compulsion, or unless its enforconent
would be contrary to equity and good con-
science, id.
8AHTA AHHA.
See Pbivate Land Claims, 10.
See Cabbiebs, 6.
»EAT«Ta[> VERDICT.
See Appeal and Ebbob, 71; Judgment,
10.
1. The right to take fur seals under a
so-called lease from the ffovernment, which
is expressly subject to su<£ regulations of the
business as the United States may make, doea
not entitle the lessee to any damages for a
reduction of the catch allowed by tM regular
tions for which a reduction of rentals is pro*
▼ided. North American Conunereial Co. ▼.
United SUtes, 98
■ 2. In reducing the number of seals which
may be taken by a lessee of the government
in the Pribyloff islands, in the exercise of the
power reserved to hinL it is immaterial
whether the Secretlary of the Treasury acts
on his own judgment, or in compliance with
the will of the flpovemmeot is expressed by
the treaty with Great Britain. Id.
3. The ori|rfnal provisions for a maadmum
number of seals to oe taken by a lessee, and
a proportionate reduotioa of the Used rentals
in case of a linutation. nmde by the act of
1263
SBC&M.TABT OF AaBlOULTU&E — STAMP TaX
Congress of 1870, is not dont itwi^ witb bv
Impucation by the act of May 24, 1874, which
removes the restrictions imposed by U. S.
Rev. Stat. 88 1960, 1962, concerning the
months during which seals may be taken and
the number to be taken on or about each is-
land respectively. Id*
4. No reduction of the per capita amount
to be paid for each sealskin taken and
shipped by a lessee of the government can be
made on account of the limitation by the
Secretary of the Treasury of the number of
seals that may be killed, although by U. S.
Est. Stat, f 1962, a proportionate reduction
of the rents reserved may be made where the
lease provides for an annual rental of $60,-
000 and in addition thereto for a certain sum
for each skin taken and shipped, as this is
in the nature of a bonus or addition to the
stated consideration. Id.
8ECBETABY OF AGRIOUXiTUBE.
See Appkal and Ebbob, 46.
8ECRETABY OF IN TEBIOB.
See CouBTs, 4.
SEOBETABT OF TBEASVBT.
See Seal Fishebies, 2.
SEQUESTRATION.
See Appkal and Ebbob, 24.
See Wbtt and Pbocess.
SET-OFF.
See also Damagb8« 6; Reckivbbs, S.
One half the rent paid to a receiver by
one who took a lease from him rather than
to be dispossessed, but who is subsequently
adjudged to be the owner of one half the es-
tate, may be set off aeainst the rent there-
after accruing for the half that is subject to
the receiver. Grant v. Buckner, 430
See Banks, 5, 6.
See also Avebaoe; Blookadb; Dama-
, GES, 5; Evidence, 19, 20; Pbize; Sal-
i YAGE; WHABVES, 1.
1. Neglect in not closing iron eoven of
the ports (A a ship is a fault or error in the
navigation or in the management of the
ship, within the meaning of the exemption
from liability for errors in naidffation or
management^ made by t S of the tfirter act.
The Silvia, 241
2. Damage to cargo, attributable, not to a
peril of the sea, but to the explosion of a part
•of the carffo af t«r the ship hsus ended her vo^*
age and has been finally and intentionally
moored at the dodc, there to remain until her
oargo is taken out of her, is not to be consid-
ered as "occasioned by accidents of naviga-
tion," within the meaning of a bill of lading.
The 0. R. Booth, 234
8. An exploeion of a ease of detonators,
making a hole in the ship's side below the
water, while a ship is being unladen at the
1264
dock, which hapnens purely by accident
without any fault or negligence on the
of anyone engaged in carrying or diai *
the cargo, is the proximate eanae of
to cargo, which fWows from tho
inflow of sea water; and sodi
occasicmed by the perils of
exceptions in the bill of lading.
4. A ship sailing when tho
fair is not unseaworthy beeaoi
tween decks, whidi are tightly closed
glass, are not also covered with imwr
or dummies of iron, when these havo
Erovided for audi purpose, mad
atches are battened down, ifhtk
be opened in two minutes by
the wedffes, and there ie no oaryo
against Uie ports, or anything else to
or embarrass access to them in osiee a
of weather should make it
proper to dose tho iron shntterm. TW
via,
5. A schooner was in fault lor
speed in ease of a collision with a
when she was sailing at a ^leed of 7
pw hoar, through a fog, in watts
other vessels were frequently
fog horn was heard by the steamer bat
or possibly twice, while, if tho vooeel
been proceeding at the speed roqnirod bj
their signals would have be
many times that the locality and
each would have been made dearlr la
to the other, and there would have besB
ficient time to take proper steps for
the aOlision. Tho OhattahooehoSp
SIHAIiOA.
See Pbivatk Laud
snfKHf o FUiiB.
See OoirrmAOTS, 12.
Qlaims, f «
See LiBKL AND Slaitdbb.
SMUGOUirO.
SeeDunss, 12, 18;
IlTDIOTMBSfT; C
SOliDIEB.
See PuBUO Lauds, 6.
SOLDIERS' HO
See FOOD.
SOHORA.
See Pbivats Land Claims, 7, A»
SPECIAL LAWS.
See Statutes, I.
See Equitt, 4.
See SHTPPmo, ••
See IinnoTifBrr, t.
See IimcBif AL RKfBiiUB, t, 4.
171, ITS. ITS. 174 v. S.
STATE.
3ee alao Coupons; SvATirm, 4; Wa-
ters, 2, 10.
A suit to reatrain officers of a state
from taking any steps, by meaoa of judieial
proceedings, in execution of a state statute
to whicU they do not hold any special rela-
tion, is really a suit against the state within
the £rohibition of the 11th Amendment of
the Federal Constitution. Fitts y. McQhee,
635
STATTTTE OF FRAUDS.
See EQUTTTy 1.
STATUTE OF IJMITATIOHS.
See LnaxATioir of Aotions.
STATUTES.
See also Attaohkent, S ; Coubts, 6, S8 ;
Reward, 3.
1. A etatute creating a special tribunal
for elaims againet a municipal corporation
which have no legal, but only an equitable or
moral, obligation, doee not reffulate praotiee
in courts of justice, within the meaniilg of
a provision restricting local or special laws.
Guthrie Nat. Bank v. Guthrie, 790
2. In whatever lang^uage a statute mi^ be
framed, its purpose must be determined by
Its natural and reasonable effect. Collins v.
New Hampshire, 00
3. A statute taken from another state
will be presumed to be taken with the mean-
ing it had there. Henrietta Min. & M. Ck>.
▼. Gardner, 037
4. A statute authorizing state coupons
to be received for all taxes is not altogether
void because certain special taxes and dues
are, by the existinff state Constitution, re-
quired to be paid m eash. McCullougk t.
Virginia, 882
5. A rightful judgment against the stale
gives a vested right which cannot be taken
away pending writ of error, by a repeal of
the statute ^ich authorized the state to be
sued. Id.
0. A city charter anthorizingr a contract
for a water supply, without providing for an
election to ratify it, although It does provide
for such an election as a condition of the
erection of waterworks by the city, super-
sedes a ^neral statute whidi requires such
an election to ratify a contract tor a waiter
supply. Walla Walla ▼. Walla Walla Wa-
ter Co. 841
STIPUIiATIOH.
See JuDGicBKT, 8.
STOCK.
See CoBPOBATiONB; Damagss, 1; Tax-
is, 2, 8, 10.
STOCK AHD PBODUCE EXCHANGE.
See ImxRNAL BxvBiaJK, i.
STOCKHOIiDEBS.
See CoBPOSATiONS*
STOCKTABDS.
See COMMEBCB, 12; Conspibaot, 1 ; Con-
POBATioifS; Internal Beventtk, 4.
STREET RAILWATS.
1. Power to conifer an exclusive privilegt
for the use of a street by a street-railway
company is not inherent in the city council
of iJetroit Detroit Citisens' Street R. Co.
T. Detroit R. Go. 67
2. An exdusive right of a street-railway
company to use a street cannot be conferred
by a city under the Michigan tram-railway
act, providing that the corporations formed
for su<Ai purposes shall have the exdusive
right to use and operate any railways con-
structed, owned, or held by Ihem, provided
that they shall not construct a railway
through the streets of any town or city with-
out Um consent of the municipal authorities.
Id.
SUBMIS8IOH OF CONTBOVEBST.
See Abbitbation, 2.
SUGAR BOUNTIES.
See Bounties, 2.
SUMMONS.
See Writ and Pboobm.
SWAMP I.AND.
See CouBTS, i.
See also Appeal and Ebbob, 29; CoNsn-
TunoNAL Law, 16, 31, 32; CoNxmAOTS,
2, 3; CoTTPONs; Emjnbnt Domain, 1;
Estoppel; Injunction, 6, 6; Intbnal
Revenxts; Judgment, 6, 7; Statutes,
4.
1. The stats may tax the ayerage num-
ber of refrigerator cars used l^ railroads
within the state but owned by a foreign cor-
poration which has no office or place ol Imsi-
ness' in the state, and smployed as ycducles
of transportation in the interchange of inter-
state commerce. American Refrigerator
Transit Co. v. Hall, 890
On oorporatioa.
2. A franchise or bosisees tax on the
amount of capital stock employed bj a cor-
poration within the state is not ininalid be-
cause a portion of its business is the impor-
tation and sale of articles in oriffinal pack-
ages. New York, Parke, D. ft Co., t. Rob-
erts, 323
3. A tax on a corporation or its property
is not a 1^^ equivalent of a tax on the stodc
in the names of the stockholdera. Owene-
boro Nat. Bank t. Owensboro, 860
On bridge.
4. A bridge over the Ohio lirer bet^ssn
Indiana and Kentucky is subject to taxation
in a Kentucky citv, so far as it is witlun t^e
city boundaries, luthoup^h thej extend to low-
water mark on the Indiana side. Henderson
Bridge Ca ▼. Henderson, 823
6. Hie fact that a bridfls over the Obio
river was erected under uie authority or
wiUi the consent of Congress, and is used for
1«65
gacBM.TABT OF AaiUOITLTUliB — STAMP TaX
OonsreBa of 1870, Ib not dont itwi^ with bv
Implication bj the act of May 24, 1874, which
removes the restrictione imposed by U. 8.
Ray. Stat. 88 1960, 1962, concerniiig the
AODths during which teals may be taken and
the number to be taken on or about each is-
land respectiyely. Id*
4. No reduction of the per capita amount
to be paid for each aeaUkin taken and
shipped by a lessee of the ffovernment can be
made on accoimt of the limitation by the
Secretary of the Treasury of the number of
seals that may be killed, although by U. S.
BcT. Stat, f 1962, a proportionate reduction
of the rents reserved may be made where the
lease provides for an aimual rental of $60,-
000 and in addiUon thereto for a certain sum
for each skin taken and shipped, aa this is
in the nature of a bonus or addition to the
stated consideration. Id.
SECBETABY OF AOBIOIJX.TTrBE.
See Appsal and Ebbob, 46.
■EORETABT OF IN TEBIOB.
See CouBTs, 4.
■ECBETABY OF TBEASVBT.
See fiBAL FlSHEBIBS, 2.
SEQUESTBATIOir.
See Appbal and Ebbob, 24.
lEBVIOE.
See Wbtt An) Pbocesb.
See also Damagbs, 6; Recbivbbs, S.
One half the rent paid to a receiver by
one who took a lease from him rather than
to be dispossessed, but who is subsequently
adjudged to be the owner of one half the es-
tate, may be set off against the rent there-
after accruing for the half that ia subject to
the receiver. Grant v. Buckner, 430
See Banks, 5, 6.
See also Avebaoe; Blookadb; Dama-
. GES, 5; Evidence, 10, 20; Pbizb; Sal-
I YAGE; WUABVES, 1.
1. Neglect in not closing iron covers of
the ports of a ship is a fault or error in the
navigation or in the management of the
ship, within the meaning of the exemption
from liability for errors in naidsation or
management, made by 8 S of the luarUar act.
The Silvia, 241
2. Damage to cargo, attributable, not to a
peril of the sea, but to the exploeion of a part
•of the oarffo af t«r the ship has ended her vov*
age and haa been finally and intentionally
•moored at the dodc, there to remain until her
oargo is taken out of her, is not to be consid-
ered as "occasioned by accidents of naviga-
tion," within the meaning of a bill of lading.
The 0. R. Booth, 234
8. An exploeion of a ease of detonators,
making a hole in the ship's side below the
water, while a ship is being unladen at the
1264
dock, which happens purely by accident and
without any fault or negli^nce on the part
of anyone engaged in carrying or discharging
the cargo, is the proximate cause of damage
to cargo, which follows from the immi^liate
inflow of sea water; and sueh damage ia not
occasioned by the perils of the sea, within
exceptions in the bill of lading. Id.
4. A ship sailing when the weather is
fair ia not unseaworthy because porta be>
tween decks, which are tightly closed with
glass, are not also covered with inner oovers
or dummiee of iron, when these have been
Erovided for auidi purpoee, and because the
atchee are battened down, when these oonld
be opened in two minutes by knocking oat
the wedffes, and there is no cargo stowed
against ue porta, or anything else to prevent
or embarrass access to them in case a change
of weather should make it neoessary or
proper to dose the iron shuttera. The Sil-
via, 241
5. A sidiooner was in ftAtlt for eaceessive
•peed in ease of a collision with a steamer,
when she was sailing at a speed of 7 miles
per hour, through a fog, in waters whore
other veesels were frequently met, and her
fog horn was heard by the steamer but onoe,
or possibly twioe, while, if the vessels had
been proceeding at the spieed required by law,
their signals would have be«i egdianged so
many times that the locality and course of
each would have been made dearlv known
to the other, and there would have been suf-
ficient time to take proper steps for avoiding
the oollision. The tSiAttahooehee, 801
SIHAXiOA.
See Pbivatb Laud Glazms, 7.
SUfKIHG FUED.
See GoNTBAOTS, 12.
See LiBKL AND Slandbb.
mUGOUEG.
See DUTDBB, 12, 18 ; Indiotkent, C
lOLDIEB.
See Publio Lakds, 6.
10U>XEB8' HO
See Food.
80H0RA.
See Pbivatb Land Claixb, 7, t.
IPEGIAI. JJLWm.
See Statutes, 1.
IPECnrO PERFOBMAEOB.
See Equitt, 4.
See SniFPiif o, 6.
1TA1CP8.
See iKDXonaBiiT, t.
STAMP TAX.
See Intebnal REVEifUB, 2, 4.
ITI, 178, ITS, 174 n.
STATE.
^ee also Coupons; SvATirm, 4; Wa-
ters, 2, 10.
A suit to restrain offioers of a state
from taking any steps, by meaoa of judieial
proceedings, in execution of a state statute
to whicU th^ do not hold any special rela^
tion, is really a suit against the state within
the prohibition of the 11th Amendment of
the Federal Constitution. Fitts ▼• McQhee,
686
STATTTTE OF FRAUDS.
See Equttt, 1.
STATUTE OF UMITATIOITS.
See LnaxATioif of Aotions.
STATUTES.
See also Attaohkent, S; Coxtbts, 6, S8;
Reward, 3.
1. A statute creating a special tribunal
for claims against a municipal corporation
which have no legal, but only an equitable or
moral, obligation, does not regulate praotiee
in courts ox Justice, within m mes^ilg of
a prorision restricting local or special laws.
Guthrie Nat. Bank ▼. Guthrie, 790
2. In whatever lang^uage a statute may be
framed, its purpose must be determined by
Its natural and reasonable effect. Collins v.
New Hampshire, 00
3. A statute taken from another state
will be presumed to be taken with the mean-
ing it had there. Henrietta Min. & M. Co.
▼. Gardner, 037
4. A statute authorizing state coupons
to be received for all taxes is not altogether
void because certain special taxes and dues
are, by the existinff sitate Constitution, re-
quired to be paid m cash. MoCullougk t.
Virginia, 882
5. A rightful Judgment against the stale
gives a vested right which cannot be taken
away pending writ of error, by a repeal of
the statute iiniioh autiiorized the state to be
sued. Id.
0. A city ehartsr authorLsin^ a contract
for a water supply, without providing for an
election to ratify It, although it does provide
for such an election as a condition of the
erection of waterworks br the dtr, super-
sedes a eeneral statute whldi requires such
an election to ratify a contract tor a water
supply. Walla Walla ▼• WsUa Walla Wa-
ter Co. S41
STIPUUkTIOH.
See JuDOicBKT, 8b
STOCK.
See CoRPORATiONB; Damagb8» 1| Tax-
es, 2, 3, 10.
STOCK AND PRODUCE EXCKAHGE.
See Internal Bevenub, i.
STOCKHOU>EB8.
See Cobposations*
STOCKTABDS.
See CoMMEBCB, It; Conbpibaot, 1 ; Con-
POBATioifS; Internal Beventtb, 4.
STREET RAILWAYS.
1. Power to eomfer an exclusive privilegs
for the use of a street by a street-railway
ooinpany iS not inherent in the city council
of Detroit Detroit CiUaans' Street R. Co.
▼. Detroit R. Go.
67
2. An exclusive right of a street-railway
company to use a street cannot be conferred
by a oif^ under tiie Michigan tram-railway
Mtf providing that the corporations formed
for such purposes shall have the exclusive
right to use and operate any railways con-
structed, owned, or held by them, provided
that they shall not eonstruct a railway
through the streets of any town or city with-
out tM consent of the municipal authorities.
Id.
SUBMISSIOH OF CONTROVERSY.
See Abbitbation, 2.
SUGAR BOUHTIES.
See Bounties, 2.
SUMMONS.
See Whit AND Pboobm.
SWAMP I.AND.
See CouBTS, i.
See also Appeal and Bbbob, 29| Oonsti*
TunoNAL Law, 16, 31, 32; CoonmAOTS,
2, 3; COTTPONS; Eminbnt Domain, 1;
Estoppel; Injunotion, 6, 6; Intbnal
Revenxte; Judgment, 0, 7; Statutes,
4.
1. The stats may tax ths avsrags num-
ber of refrigerator cars used l^ railroads
within the state but owned by a foreign cor-
poration which has no office or place m InisI-
ness* in the state, and employed as vehicles
of transportation in the interchange of inter-
state commerce. American Refrigerator
Transit Co. t. Hall, 890
On eorporatioa.
2. A franchise or businMs tax on the
amount of capital stock employed by a cor-
poration within the state is not ini^id be-
cause a portion of its business is the impor-
tation and sale of articles in orioinal pack-
ages. New York, Parke, D. A Co., ▼. Rob-
erts, 323
3. A tax on a corporation or its propertjr
is not a le^ equivalent of a tax on the stock
in the names of ths stocklK^dsri. Owens-
boro Nat. Bank ▼. OwensborOt 860
On bridce.
4. A bridge over the Ohio river between
Indiana and Kentucky is subject to taxation
in a Kentucky dtv, so far as it Is within the
dty boundaries, luthough the|^ extend to low-
water mark on the Indiana side. Henderson
Bridge Ca ▼. Henderson, 823
5. The fact that a bridfls over the Ohio
river was erected under uie authority or
with ths consent of Oongrsss, and Is used for
1S65
iKLKflBAPHft— Traffic Absociation.
interstate eommereey does not caumpt it from
taxation by the state within wlioee limita it
is pennanentiy located. Id.
6. A eitjr eharter forbidding taxation of
lands not divided into lots of 5 acres or lees
does not apply to a bridge erected over the
Ohio river within the city limits. Id.
7. A otipulatdon in a grant to a bridge
oompany by a city, that it shall not be con-
strued as waiving tiie ri^t of the ci^ to col*
lect taxes on the bridge Itself and all appur-
tenances thereto, saves not only the right
which the city then has to impose taxes, but
any right that may subsequently be lawfully
eonferpBd upon it. Id.
Ob aattonal Ibawfcs*
8. A state tax nominally on the franchise
of a national bank, but in reality upon all its
intaiurible property, is in violation of U. 8.
Rev. Stat. 9 6219, which allows a tax only on
the shares of stock in the names of slutre-
hoMers and the real estate of such a bank.
Owensboro Nat. Bank v. Owensboro, 850
Third Nat. Bank v. Stone, 1085
Louisville v. Third Nat Bank, 1087
First Nat. Bank v. Louisville, 1038
9. A statute which requires the shares of
national banks and of other incorporated
banks to be assessed at their true value in
mon^, without any deduction of d^ts, but
allows a deduction of debts existing in the
business of an unincorporated bank, does not
make a discrimination against national
banks, as its debts are in fMt considered in
reaching the true value of its shares. First
Nat. Bank v. Chapman, 669
10. The increase of the value of national
bank shares by reason of the bank franchises
does not mske the taxation of those shares
at their ^rue value amount to a dlscrimina-
tiim in favor of unincorporated banks» which
have no franchise. Id.
11. Credits consisting of claims for labor
or services do not constitute "moneyed capi-
tal" within the meaning of U. S. Rev. Stat.
8 5219, respecting discrimination against na-
tional banks. Id.
12. Moneyed capital, within the meaning
of U. S. Rev. Stat i 5219, prohibiting the
taxation of national banks at higher rates
than other moneyed capital in the hands of
individuals, does not indude capital which
does not come into competition with the busi-
ness of national banks. Id.
13. Lands included in the grant to the
Northern Pacific Railroad Company by the
act of Congress of Julv 2, 1864, are subject
to state taxation for their value as agricul-
tural lands, although they have not be^ pat-
ented to the railrotul company and their min-
eral or nonmineral character is under inves-
tigation under the provisions of the act of
Congress of February 26, 1895, chap. 131.
Nor&iem P. R. Co. v. Myerty 664
Exemptioms.
14. The right of way for 100 feet each side
of a railroad, including all necessary grounds
for station buildings, workshops, machine
shops, switches, side tracks, turntables, and
1266
water stations, ^fhidi is
tion within l^e territories of
States under the act of CoittTw mi Jw^ 27.
1866, does not mean the ngkt
merely, but is real estate of
ity, and the exempti<m indndea'
erected upon it. New
States Trust Co.
16. The exempti<m of the railrottd T%ihi e(
wav eiven Inr S 2 of the act of fViiigTeas «f
July 27, 1866, granting lands to the
& Pacific Railroad Company, does
to the right of way acquired nader i 7, er
independoitly of that seetioa froas
owners. New Mexico v. Unitad Stmtas
Co. l«7f
16. The designation of some rmflroed im-
provements by name and ffiving
them a separate valuation does
ate their assessment sa realtj.
Assessiemt,
17. Prerious notice of
officers who make an
not necessary if there
cision, with a right to appeal to a
be heard and offer evidenoe before tlie
tion of the proper^ for taTStioa ia
fixed. Pittsbuigh, a a * 8t^ L. B. Col v.
Board of Public Works* Ui
lor
of
SeeCoMHKROB, IB»
See also Comhkrob, 18.
A telephone oompany
the electrical transmission of
speech between different poiata H not
tied to the benefit of the act of
July 24, 1866 (U. & Rev. Stot
5268), respecting the use of poet
Richmond ▼. Southern BeU Xd^IlL 4 Teler •
i;o. urn
See UsuBT, L
TEBBITOBIES.
See Attaohmkut; Bonne, 1|
PAL COSPOBATIONB, 2.
THEFT.
See
THOUSAND-MILB TICXBT.
See Cabbbm, >-6| Oohi
Law, 26.
See PuBEJO Lauds, 11, 11.
TO WH 8ITB.
See PuBUO Lauds, 8.
TBAFITO ASSOOIATIOir.
See CoNSPntACT, 5.
171, ITt, ITS, 174 v.
TaMA!
UfUBT.
Bm OcfinnMOASUKKf S, 4| Oonbtxtotioh*
AL L4W, 1; SzxmADniOH; PUVATB
Laud Okims, S, 10.
TWOAL
«•
Questioo lor Jnrj, see aJeo Advebss
PossBSSioir.
See aJeo Appbal and Ebbob, 2; Consti-
tutional Law 10, 27 ; Cbdoital Law,
1; Judgment. 10.
1. Trial by jur^r under the OonsUtation
means a trial by a jurv of twelve men in the
presence and under the euperintendenoe of
a judge empowered to instruct them on the
law and to advise them on the facts, and (ex-
e»t on acquittal of a criminal char^) to
set aside their verdict^ if, in his opinion, it
is against the law or the evidence. Capital
Traction Co. v. Hof, 873
2. A trial by a jury of twelve men before
a justice of the peace, having been unknown
in England or America before the Declara-
tion of Independence, is not a trial by jury,
within the meaning of U. S. Const. 7th
Amend. Id.
3. A common-law trial by jury in a court
of record upon appeal from a judgment of a
justce of the peace in a civil action after giv-
ing bond with surety to prosecute the appeal
aiul to abide the judgment of the appellate
court, is sufficient to eatiefy the ccmstitn-
tional riglkt ci trial by jury. Id.
4. The right of trial by jury is not un-
duljr obstructed by enlarging the civil juris-
diction ci justices of the peace to $300, and
requiring everv appellanrt to give security to
pay and satisfy the judgment oi the appel-
late court in order to obtain a trial by a
common-law jury on appeal. Id.
5. A atatutoty proceeding before a spe-
cial tribunal, to determine claims a^fainst a
eiij which has no legal obligation, is not a
suit at common law, within the meaning of
U. S. Const 7th Amend. Guthrie Nat. Bank
V. Guthrie, 796
Qweatleaa for eavrt or Jury*
0. The question of the acceptance of a
trust by creditors may be left to the jury,
notwitbstaoding thdr positive oral testi-
mony to the acceptance, where this question
is doeely connected with a question of their
participation with the debtor in defrauding
other creditors. Soimentheil v. Christian
Moerlein Brew. Co. 492
7. The knowledge of local creditors who
hKW accepted a &ed of trust, that It Is
fraudolttit, may be left to the jury, where
the debtors are shown to have remained in
practical control of the business, obtained
oredk on false representations to commercial
sgeiraiea, and made large purchases of goods
on credit just before an assignment, while
the rumors of their insolvency could hardlv
have escaped the ears of such creditors. Id.
8. The authority to act for another party
is a miestioo for the court to decide, if onlv
one fafarenes can be drawn from the evi-
dence, and thai is want of authority. Wash-
ington GasUglit Go. ▼. Lansden, 643
9. CoatributiHrT nsi^igeDfls el a persos
killed on a railroaa crossing is so eondusively
duywn that there is no question for the jax7»
where the undisputed facts are that he was
familiar witii the crossing and could not
have failed to see the train if he had looked
for it while 40 feet distant from the track,
but drove slowly upon the track without ap-
pearing to see or look for the train until just
as it strode him. Northern P. B. Co. v.
Freeman, 1014
Imstraetioas.
10. The modification of a reouested in-
struction which assumes the crediDility of a
witness, by stating that the weight to be
f;iven his testimony is a ouestiosi for ^e
I jury, does not improperly discriminate
against him. Davis v. Cbblens, 1147
11. In answering a question of the jury
in a prosecution under U. S. Bsv. 8tat. |
5208, for unlawful certification of a chedc,
when thejr come in after consultation and
ask for the law as to certification when no
money appears to the credit of the drawer
and the court assumes to answer it by ref-
erence to that section, its failure to explain
the meaning of "wilful violation" as used in
S 13 of the act of Congress of 1882 when de-
fendant's counsel requests it is error whicA
is not cured by mere reference to the original
charge. Spurr v. United States, 1160
See also Banks, 1; Pubuo Lands, 11.
The rule that a mere trespasser cannot
defeat the right of the plaintiff in trover
by showing a superior title in a third per-
son, without showing himsdf in privity or
connecting himself with such third person,
has no application to cases wherein the
plaintiff has shown no prima fade rieht to
bring the action. United States v. Lough-
rey, 420
TBUITI.
See CoBPOBATiONS, 4; Bqititt, 2, 8;
Trial, 6; Waters, 0.
UNDUE DfFXiUZSNCE.
See Evidence, 8; Gift.
UNITED STATES.
Claim against, see Claims.
See Canals; Dams; Waters, 8, 10.
UNSEAWORTHINESS.
See Shipping, 4.
USURY.
See also Bills and Notes, 2; Coubts,
13.
1. One sedcing the afBrmative aid of
equity for relief a^inet an alleged usurious
agreement must himself do equi^ by tender-
ing or offering payment of what is justly
due. Hubbard V. Tod, 246
2. An offer to repay the money loained is
not necessary in order to obtain the canoela-
tion of a contract for usuir under Minn. Gen.
Stat. 1804, 8 2217, providtng that such con-
tracts shall be canceled and frfven up. Mis-
souri, K. & T. Trust Co. v. Krumseig, 474
1267
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